Full Judgment Text & Judicial Ruling

2021 Y L R Note 158 [Lahore (Rawalpindi Bench)] Before Sadiq Mahmud Khurram, J MOHAMMAD PERVEZ---Appellant Versus The STATE---Respondent Criminal Appeal No. 306 and Criminal Revision No. 155 of 2013, heard on 1st February,2021. (a) Qanun-e-Shahadat (10 of 1984)--- ----Art. 46---Dying declaration---Scope---Dying declaration is a statement of a person who is in expectation of his death and related to the causes of his death---Such statement is admissible in evidence though its maker does not appear in the witness box so as to provide an opportunity of cross-examination to accused facing the charge of his murder---Admissibility of the dying declaration is an exception to the general rule which makes any hearsay evidence inadmissible---Dying declaration can be made the basis for awarding conviction provided it is free from the menace of prompting and tutoring and is proved to have been made by none other than the deceased himself---Paramount reason for attaching importance and credibility to such a statement is the presumption that a dying person seldom lies. (b) Qanun-e-Shahadat (10 of 1984)--- ----Art. 46---Dying declaration, recording of---Scope---Dying declaration is to be recorded either by a Judicial Magistrate or in the presence of a gazetted Police Officer and in the absence thereof in front of two or more unconcerned reliable witnesses--- However, if neither of the said persons is available, only then such a statement can be recorded in the presence of two or more Police Officers. (c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Dying declaration---Scope---Accused was charged for committing murder of the deceased by firing---First Information Report was registered on the statement made by the then injured later deceased---Perusal of the record revealed that the Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the concerned hospital---Deceased remained alive and admitted in the hospital for a considerable time, however, his purported statement was not attested by any official working at the hospital---Additionally, the deceased remained alive and under treatment for a considerable time, during which there was sufficient time for the Investigating Officer to record the dying declaration through a Judicial Magistrate, which exercise was not done---Investigating Officer of the case, during cross-examination, stated that at the time of recording the statement of deceased the Medical Officer was also present, however, the said Medical Officer never attested the document---Additionally, while appearing as a prosecution witness, Medical Officer never stated that the statement of deceased was recorded in his presence---Likewise, Trial Court had not been able to trace any explanation from the perusal of the record that as to why the statement of the deceased was not recorded in the presence of the doctor as it did not bear his signatures---For a dying person, a doctor was like nothing less than an angel and the last ray of hope for him in his capacity as a saviour of his life---Doctor, in circumstances, could be the best person to endorse the dying declaration as it was expected from a dying person to tell the whole truth to the Doctor---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel. (d) Penal Code (XLV of 1860)--- ----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Contradictions in the statement of witnesses---Scope---Accused was charged for committing murder of the deceased by firing---Medico-Legal Examination Certificate, showed that deceased was brought to the hospital in an injured condition at about 4.25 p.m. by the police and later deceased succumbed to injuries the next day at about 2.30 p.m.---During such period, deceased was provided with extensive medical treatment---Statement of deceased did not show as to how and by whom he was brought to the hospital in the injured condition and reached the said hospital after about an hour of the occurrence---Medico Legal Examination Certificate, revealed that it was Police Constable/witness who had brought deceased to the hospital, however, said Police Constable during cross-examination stated that when they reached the hospital deceased was already present there in injured condition and was being examined by the Medical Officer---Eye-witness during his statement before the Trial Court did not state as to who had taken deceased from the place of occurrence to the hospital but only stated that he remained outside the hospital in which deceased was taken to---Eye-witness during cross-examination also stated that another witness (not produced) had said that deceased should be shifted to the hospital without a cot---Perusal of the statement of eye-witness revealed that he never mentioned anything with regard to the shifting of deceased to the hospital from the place of occurrence by him---Other eye-witness during cross-examination, however, claimed that deceased was accompanied by him, eye-witness and other witnesses from the place of occurrence to the hospital---Such claim of eye-witness was contradicted by the Medico Legal Examination Certificate available on record wherein it had been clearly mentioned that deceased was brought to the hospital by police and in the relevant column of the said Medico Legal Examination Certificate the name of any relative accompanying the then injured later deceased had not been recorded---Statements of the prosecution witnesses were contradictory to each other as well as the documentary evidence available on record putting a cloud of uncertainty over the circumstances regarding the recording of the statement of injured later deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Improvement made by eye-witness---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that the Eye-witness, while appearing before the Trial Court, made an improvement in his statement earlier recorded by the Investigating Officer of the case and stated that the statement of deceased was recorded by the police in an injured condition---Said witness, during cross-examination, was duly confronted with his earlier statement and it was brought on record that the said fact had not been recorded in his earlier statement---Said improvement made by eye-witness was substantial and was made with regard to crucial aspect of the prosecution evidence---Eye-witness having introduced improvement in his statement with regard to the recording of the statement---Eye-witness having introduced dishonest, blatant and substantial improvement to his previous statement and was duly confronted with his former statement his credit stood impeached and eye-witness could not be relied upon---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. Muhammad Ashraf v. State 2012 SCMR 419; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel. (f) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account---Scope---Accused was charged for committing murder of the deceased by firing---Prosecution had relied on the statements of eye-witnesses to prove the ocular account of the incident---Both the said witnesses had previous enmity with the accused---Eye-witness during cross-examination admitted that the accused and his father had filed a suit for partition of land in which he and deceased were defendants and he also admitted that he appeared as a witness in the said suit---Other eye-witness also admitted his previous enmity with the accused---In view of the admitted enmity of the eye-witnesses with the accused, both the said witnesses were under a duty to establish that they had given evidence unbiased and unpolluted by the said enmity which they failed to do---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. (g) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---No justification for the presence of witnesses at the spot---Chance witnesses---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that in the site plan of the place of occurrence, the houses of the eye-witnesses had not been marked---In that manner, it was proved that both the witnesses were not the residents of the place of occurrence and were therefore under a duty to provide and prove a reason for their presence at the place of occurrence---Both the said witnesses claimed that they had gone to the place of occurrence in order to measure the three Marlas of land allegedly sold by a eye-witness to a witness (not produced)---Both the witnesses admitted that the said land had been sold as many as eight/nine months prior to the occurrence, however, they failed to provide any reason for measuring the same on the very day when the occurrence took place---Both the witnesses remained at variance with regard to the details of the proceedings which were being conducted at the place of occurrence by them---One eye-witness during cross-examination, stated that at the time of occurrence he was holding the measuring tape whereas other eye-witness during cross-examination stated that it was another person (not produced) who was holding the measuring tape---Investigating Officer of the case, during cross-examination, stated that he did not collect any evidence during the investigation of the case to prove that the witnesses were present at the place of occurrence for the purpose of measuring the land bought by another person (not produced)---Prosecution witnesses failed to establish the reason for their presence at the place of occurrence at the time of occurrence, thus both the witnesses were worthy of no reliance---Proven fact that none of the prosecution witnesses had their residences or their houses or any temporary residence near the place of occurrence, they were both "chance witnesses" who failed to prove the reason for their presence at the place of occurrence--- Alleged eye-witnesses admitted during cross-examination that they did not provide any first aid to deceased after he had received the injury at the place of occurrence which also supported the circumstance that both the witnesses were not present at the place of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel. (h) Penal Code (XLV of 1860)--- ----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding material evidence---Scope---Accused was charged for committing murder of the deceased by firing---One eye-witness and another person (not produced) were miraculously saved in the midst of the firing---Fact that if the witnesses were left alive, they would depose against the accused, the accused did not cause any injury to them---Such behaviour, on part of the accused, ran counter to natural human conduct and behaviour---Article 129 of the Qanun-e-Shahadat, 1984 allowed to presume the existence of any fact, which Court think likely to have happened---Court, thus, trusted the existence of that fact by virtue of the Art. 129 of the Qanun-e-Shahadat, 1984, that the conduct of the assailant as deposed to by the witnesses was opposed to the common course of natural events and human conduct---Both the eye-witnesses were not present at the place of occurrence at the time of incident and did not witness the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. Tariq Mehmood v. The State and others 2019 SCMR 1170; Rohtas Khan v. The State 2010 SCMR 566; Muhammad Farooq and another v. The State 2006 SCMR 1707 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel. (i) Penal Code (XLV of 1860)--- ----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd---Appreciation of evidence---Withholding material evidence---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that there was no explanation, much less plausible, for not recording the statements of the persons, who according to the prosecution witnesses themselves, were present at the place of occurrence and had allegedly also witnessed the same---Article 129 of the Qanun-e-Shahadat, 1984, provided that if any evidence available with the parties was not produced then it would be presumed that had that evidence been produced the same would have been gone against the party producing--- Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. Riaz Ahmad v. The State 2010 SCMR 846 rel. (j) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive was not proved---Scope---Accused was charged for committing murder of the deceased by firing---Motive of the occurrence was a property dispute--- Prosecution got examined two eye-witnesses to establish the motive of the occurrence---According to the prosecution witness, another person (not produced) had purchased three Marlas of land from eye-witness and on the day of occurrence, the said land was being measured to which the accused took exception and the occurrence happened---No explanation in the prosecution case as to for what manner the accused was aggrieved by the measurement of land being conducted---Person who allegedly purchased the said land never appeared before the Trial Court nor got recorded his statement under S.161, Cr.P.C. during the investigation of the case---Deceased was in no manner related with the motive of the occurrence---Cross-examination of eye-witness clearly established that no motive existed with regard to the accused and the deceased---Prosecution did not produce any evidence, oral or documentary, so as to establish any reason with the accused to murder the deceased---Dispute of the property, if any, existed between eye-witness and another person (not produced)---No independent witness was produced by the prosecution to prove the motive as alleged---Prosecution, in circumstances, was unable to establish any motive of the occurrence---Prosecution witnesses failed to provide evidence for determination the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the accused to have committed the qatl-i-amd of the deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction, was allowed, in circumstances. (k) Penal Code (XLV of 1860)--- ----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Principle---One tainted piece of evidence could not corroborate another tainted piece of evidence. Muhammad Javed v. The State 2016 SCMR 2021 rel. (l) Criminal trial--- ----Motive--- Recovery--- Evidentiary value---Scope---Motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery had no evidentiary value and lost their significance. (m) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that pistol was recovered from the accused---Said recovery had no evidentiary value in the eyes of law as the same was made in clear violation of S.103, Cr.P.C.---Said recovery of the pistol from the accused could not be used as incriminating evidence against the accused, being evidence, which was obtained through illegal means and hence hit by the exclusionary rule of evidence---Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the pistol from the accused to witness the same---Report of Forensic Science Agency, stated that the crime empties sent for analysis were fired in the pistol recovered from the possession of the accused---Trial Court had noted that the empties were received at the office of Forensic Science Agency, on 05.04.2010,whereas the accused was arrested by police on 01.04.2010---Possibility of fabrication on part of the Investigating Officer in order to obtain a favourable report of the Forensic Science Agency could not be ruled out---Recovery of the pistol from the accused did not further the case of the prosecution in any manner---Alleged recovery of the pistol was not proved and the same could not be used as a circumstance against the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898 and Muhammad Amin v. The State and another 2019 SCMR 2057 rel. (n) Criminal trial--- ----Benefit of doubt---Principle---When the prosecution failed to prove its case against accused then the accused was to be acquitted even if he had taken a plea and thereby admitted the killing of deceased. Azhar Iqbal v. The State 2013 SCMR 383; Muhamamd Shah v. State 2010 SCMR 1009 and Ashiq Hussain alias Muhammad Ashraf v. State PLD 1994 SC 879 rel. (o) Criminal trial--- ----Benefit of doubt---Not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person was available then such benefit was to be extended to an accused not as a matter of concession but as of right. Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel. Sh. Ahsan-ud-Din for Appellant. Ms. Memona Ehsan ul Haq, Deputy District Public Prosecutor for the State. Ch. Afrasiab Khan for the Complainant. Date of hearing: 1st February, 2021. JUDGMENT SADIQ MAHMUD KHURRAM, J.---The appellant namely Muhammad Pervaiz son of Muhammad Younis was tried by the learned Sessions Judge, Attock in case FIR No. 153 of 2010 dated 26.03.2010 registered at Police Station Hazro, District Attock in respect of an offence under section 302, P.P.C. for committing the Qatl-i-Amd of Zahid Nawaz son of Noshehry Khan (deceased). The learned trial court vide judgment dated 29.06.2013 convicted Muhammad Pervaiz son of Muhammad Younis (convict) and sentenced him as infra: Muhammad Pervaiz son of Muhammad Younis: Imprisonment for Life under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Zahid Nawaz son of Noshehry Khan (deceased) and directed to pay Rs.10,00,000/- as compensa-tion under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. 2. Feeling aggrieved, Muhammad Pervaiz son of Muhammad Younis (convict) lodged the Criminal Appeal No.306 of 2013 assailing his conviction and sentence. Mst Ghazala Khan, the widow of the deceased of the case namely Zahid Nawaz son of Noshehry Khan, filed Criminal Revision 155 of 2013 seeking the enhancement of the sentence of the convict namely Muhammad Pervaiz son of Muhammad Younis. This Court intends to dispose of the Criminal Appeal 306 of 2013 and Criminal Revision No. 155 of 2013 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as narrated by the prosecution witnesses in their statements before the learned trial court are that on 26.03.2010 at about 3.30 p.m., the deceased namely Zahid Nawaz and the witnesses namely Mehtab Shah (PW-10), Muhammad Tufail (given up), Arshad Khan (PW-11) and some other persons were present at the place of occurrence for the purpose of measuring the 3 Marlas of the land purchased by Muhammad Tufail (given up) from Mehtab Shah (PW-10) when Muhammad Pervez son of Muhammad Younis (appellant) came at the place of occurrence and directed Zahid Nawaz (deceased) to stop the measurement upon which Zahid Nawaz (deceased) directed him to approach Mehtab Shah (PW-10) with regard to any of his grievance, however, the appellant namely Muhammad Pervez took out his pistol and fired at the person of Zahid Nawaz (deceased), hitting him on the left side of the chest and subsequently Zahid Nawaz died as a result of the said injury. 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Muhammad Pervez son of Muhammad Younis was sent to face trial. The learned trial court framed the charge against the accused on 08.06.2010, to which the appellant pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got as many as twelve witnesses examined. Mehtab Shah (PW-10) and Arshad Khan (PW-11) gave evidence regarding the ocular account. Abdul Khaliq, A.S.I. (PW-1) stated that on 26.03.2010 he recorded the formal FIR (Exh. PA/1). Fakhar-uz-Zaman 1203/C (PW-2) stated that on 31.03.2010 Muhammad Tayyab 800/HC (PW-7) handed over to him two sealed parcels said to contain blood stained earth and empties for their onward transmission to the office of the Chemical Examiner to the Government of Punjab, Lahore and the Punjab Forensic Science Agency, Lahore, respectively however the parcel containing the empties was returned and he took the same to the Punjab Forensic Science Agency, Lahore again on 05.04.2010. Riasat Ali, Patwari (PW-3) prepared the scaled site plan of the place of occurrence (Exh. PB). Naveed Ahmad 2006/C (PW-4) stated that on 19.04.2010 Muhammad Tayyab 800/HC (PW-7) handed over to him one sealed parcel said to contain a pistol for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Basharat 2295/C (PW-5) stated that on 26.03.2010 he got Zahid Nawaz (the injured later deceased) examined by the Medical Officer and also received the last worn clothes of the deceased. Bashir Ahmad (PW-6) stated that on 26.03.2010 the Investigating Officer of the case took into possession the blood-stained earth and empties from the place of occurrence in his presence and on 27.03.2010 he identified the dead body of the deceased. Abdul Ghaffar (PW-8) stated that on 11.04.2010 the appellant namely Muhammad Pervez led to the recovery of the pistol (P-3). Abdul Khaliq, SI (PW-12) investigated the case from 26.03.2010 till 23.04.2010, arrested the accused on 01.04.2010 and narrated the facts of the investigation conducted in his statement before the learned trial court. 6. The prosecution also got Dr. Kashif Azad (PW-09) examined, who on 26.03.2010 was posted as Medical Officer at THQ Hospital Hazro and on the same day at about 4.25 p.m examined Zahid Nawaz (then injured later deceased and observed as under:- "Stated that on 26.03.2010, I was posted as Medical Officer, at THQ Hospital, Hazro. On the same day, at about 4:25 pm, Zahid Nawaz son of Noshehry Khan aged about 35-years, Caste Pathan, resident of Adal Zai, was produced before me in injured condition by the police for medical examination and from external examination, he was middle aged man in a drowsy state, responding to voice, clothes were socked (sic) with blood, having corresponding mark of injury, present on Qameez and Bunyan. I observed following injury on his body:- i A firearm injury about 1.5cm x 1cm about 2.5cm below nipple on left side of the chest, margins were inverted and there was also blackening of the margins. X-ray of chest was advised. The patient was referred to DHQ Hospital, Rawalpindi to surgeon for management and opinion. Injury was kept under observation. Probable duration between injury and examination was about half an hour and it was caused with firearm weapon. Ex. PG is the correct carbon copy of the MLR whereas Ex.PG/1 is the injury statement prepared by the police and endorsed by me. Ex.P.G/2 is the application moved by the I.O whether the…

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