Full Judgment Text & Judicial Ruling

2021 Y L R Note 161 [Lahore (Multan Bench)] Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ MUHAMMAD HANIF---Appellant Versus The STATE and 6 others---Respondents Criminal Appeals Nos. 703 of 2015, 280-J of 2019 and Murder Reference No.82 of 2015, heard on 25th February, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence--- Benefit of doubt---No justification was found for the presence of witnesses at the spot---Chance witnesses--- Scope--- Accused were charged for committing murder of brother of the complainant and a lady belonging to accused party, on the allegation of illicit relations between the said two deceased---Ocular account of the occurrence had been furnished by two eye-witnesses---Said witnesses were admittedly not the residents of the place of occurrence---According to the Investigating Officer the said witnesses had their residences at the distance of about 35/40 kilometres from the place of occurrence---Scaled site plan of the place of occurrence and the rough site plan of the place of occurrence showed that neither any house nor any shop nor any temporary place of residence belonging to eye-witnesses was marked in the same--- Admittedly none of the prosecution witnesses had their residences or their houses or any temporary residence near the place of occurrence---In that manner, both the witnesses could be termed as "chance witnesses"---Both the said witnesses, being not the residents of the place of occurrence, were under a bounden duty to prove, through evidence, the reason for their chance presence at the place of occurrence at the time of occurrence---Both the witnesses failed to prove the reason for them to be present at the place of occurrence, a place which was at a distance of as much as about 40 kilometres from their residences---Record did not show as to why the witnesses accompanied each other for proceeding to the place of occurrence when they were not even neighbours and also had no previous knowledge of the plans of each other regarding proceeding to that place of incident---Circumstances established that all the pieces of evidence relied upon by the prosecution, in the present case, had been disbelieved and discarded, therefore conviction of the accused could not be upheld---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence--- Benefit of doubt---Circumstantial evidence---Call Data Record---Scope---Accused were charged for committing murder of brother of the complainant and a lady belonging to the accused party on the allegation that illicit relations existed between the said two deceased---Complainant stated that he had never visited the place of occurrence earlier and it was only on the day of occurrence that he went there along with his deceased brother after his brother had received a phone call---During the investigation of the case, the mobile phone device under the use of deceased and on which he had allegedly received the call from the accused was not taken into possession by the Investigating Officer of the case nor produced by the witnesses---Even before the Trial Court no such mobile phone device on which deceased had received the call was produced---Similarly, the Medical Officer who examined deceased (when he was injured) and who also conducted the post mortem examination of the dead body of the deceased did not find any such mobile device---Investigating Officer of the case also did not find any such mobile device at the place of occurrence---Even the Call Data Record of the said mobile phone device under the use of deceased was not collected and neither the same was produced before the Trial Court---Failure of the prosecution to produce the mobile phone device under the use of deceased had repercussions resulting in the failure of the prosecution case---Circumstances established that all the pieces of evidence relied upon by the prosecution, in the present case, had been disbelieved and discarded, therefore conviction of the accused could not be upheld---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt--- Defective investigation--- Scope---Accused were charged for committing murder of brother of the complainant and a lady belonging to accused party on allegation of illicit relations between the said two deceased---Both the eye-witnesses claimed that after the occurrence, complainant held his deceased brother in his lap and admitted that his clothes were stained with blood---Record showed that the Investigating Officer of the case, did not take any blood-stained clothes of complainant in possession during the investigation of the case---If the said clothes were sent to the Forensic Science Agency for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye-witnesses---Said omission strike at the roots of the case of the prosecution and laid bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence at that time---Both the said witnesses were under a duty to provide a convincing explanation appealing to a prudent mind of their presence at the crime spot otherwise their testimony had to be declared questionable and unacceptable---Said omissions were conspicuous by their absence---In absence of physical proof or the reason for the presence of the witnesses at the crime scene, their evidence could not be relied upon---Circumstances established that all the pieces of evidence relied upon by the prosecution, in the present case, had been disbelieved and discarded, therefore conviction of the accused could not be upheld---Appeal against conviction was allowed, in circumstances. Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Nadeem alias Kala v. The State and others 2018 SCMR 153; 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. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt--- Dishonest improvements--- Scope---Accused were charged for committing murder of brother of the complainant and a lady belonging to accused party due on allegation of illicit relations between the said two deceased---Record showed that according to the oral statement of complainant the number of the accused which were present at the place of occurrence, at the time of occurrence was five out of which three, including the accused were named whereas two accused were stated to be unknown, however, subsequently complainant submitted the application wherein the number of accused was increased from five to six---Eye-witness also admitted during cross-examination that he had mentioned five accused as being present at the place of occurrence---Said addition in the number of accused present at the spot and the roles played by them in the occurrence clearly established that the eye-witnesses had not witnessed the occurrence, otherwise they would not have fallen into error with regard to the number of accused present at the place of occurrence or their roles in the occurrence---Said eye-witnesses made dishonest improvements to their previous statements which were substantial and were made with regard to crucial aspects of the prosecution evidence---By improving their previous statements, eye-witnesses impeached their own credit---Eye-witnesses introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credibility stood impeached---Such witnesses could not be relied upon on being proved to have deposed with a slight, intended to mislead the court---Said witnesses had no intrinsic worth and was to be rejected outrightly---Circumstances established that all the pieces of evidence relied upon by the prosecution, in the present case, had been disbelieved and discarded, therefore conviction of the accused could not be upheld---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. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay in conducting post-mortem upon the dead bodies of the deceased---Scope---Accused were charged for committing murder of brother of the complainant and a lady belonging to accused on allegation of illicit relations between the said two deceased---Record showed that the occurrence took place at about 1:00 p.m., however, post-mortem examinations of the dead bodies were conducted after substantial delay---According to the statement of Medical Officer, the deceased died at 1.45 p.m., however the post-mortem examination of his dead body was conducted at 10.00 a.m.---Similarly, according to the post-mortem examination report, the female deceased met her death at about 1.00 p.m., however the post-mortem examination of her dead body was conducted on the next day at 11.00 am---Complainant admitted during cross-examination that the post-mortem examinations of the dead bodies was conducted after 24 hours---Medical Officer, who conducted the post-mortem examination of the dead body of the deceased, gave the time between death and post-mortem examination as being 20 to 22 hours---Perusal of the post-mortem examination report relating to female deceased revealed that the time between death and post-mortem examination had been mentioned as 24 hours---Said fact clearly established that the witnesses claiming to have seen the occurrence or having seen the accused escaping from the place of occurrence while armed were not present at the time of occurrence and the delay in the post-mortem examinations was caused in order to procure their attendance and formulated a false account of the incident after consultation and concert---Such delay in the post-mortem examination was reflective of the absence of witnesses and the sole purpose of causing such delay was to procure the presence of witnesses and to further advance a false narrative to involve any person---Circumstances established that all the pieces of evidence relied upon by the prosecution, in the present case, had been disbelieved and discarded, therefore conviction of the accused could not be upheld---Appeal against conviction was allowed, in circumstances. Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive was not proved--- Scope--- Accused were charged for committing murder of brother of the complainant along with a lady belonging to accused party on allegation of illicit relations between the said two deceased---Motive of the occurrence as stated by the witnesses was that the accused suspected that deceased brother of complainant and female deceased had developed intimacy with each other---No further details of the said motive were mentioned---Husband of female deceased appeared before the Trial Court and was cross-examined by the prosecution, however not even a bare suggestion was put to the said witness that there was some suspicion with regard to his deceased wife having developed an intimacy with the other deceased---Investigating Officer of the case did not record statement of any witness in support of the alleged motive---No independent witness was produced by the prosecution to prove the motive as alleged, thus, the prosecution was unable to establish any motive of the occurrence---Prosecution witnesses failed to provide evidence enabling the Court to determine 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 all the pieces of evidence relied upon by the prosecution, in the present case, had been disbelieved and discarded, therefore conviction of the accused could not be upheld---Appeal against conviction was allowed, in circumstances. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---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. (h) Criminal trial--- ----Motive and recovery---Evidentiary value---Scope---Motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then the evidence of motive and recovery has no evidentiary value and loose their significance. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused---Reliance---Scope---Accused were charged for committing murder of brother of the complainant and a lady belonging to accused party on the allegation of illicit relations between the said two deceased---Record showed that a carbine 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 of the Cr.P.C---Recovery of the Carbine from the accused could not be used as incriminating evidence against the accused, being evidence which was obtained through illegal means and was hit by the exclusionary rule of evidence---Investigating Officer did not ask any individual, resident of the area neighbouring the place of recovery of the Carbine from the accused to witness the same---Report of Forensic Science Laboratory showed that the crime empties sent for analysis were fired from the Carbine recovered from the possession of the accused---Empties were received at the office of Forensic Science Agency after about nine days of arrest of accused---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 Carbine from the accused, therefore, did not further the case of the prosecution in any manner and the same could not be used as a circumstance against the accused---Circumstances established that all the pieces of evidence relied upon by the prosecution, in the present case, had been disbelieved and discarded, therefore conviction of the accused could not be upheld---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898; Muhammad Amin v. The State and another 2019 SCMR 2057 and Hashim Qasim and another v. The State 2017 SCMR 986 rel. (j) Criminal trial--- ----Benefit of doubt---Principle---For giving the benefit of the doubt it is 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 is available then its benefit is to be extended to 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. Prince Rehan Iftikhar for Appellant. Malik Mudassar Ali, Deputy District Public Prosecutor for the State. Nemo for the Complainant. Date of hearing: 25th February, 2021. JUDGMENT SADIQ MAHMUD KHURRAM, J.---Muhammad Hanif son of Noor Muhammad (convict) was tried by the learned Additional Sessions Judge, Burewala along with his co-accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta (all since acquitted) in the case FIR No.13 of 2012 dated 10.01.2012 registered at Police Station Saddar Burewala, District Vehari in respect of offences under sections 302, 148, 149, P.P.C. for committing the Qatl-i-Amd of Bashir Ahmad son of Allah Daad and Bashiran Bibi wife of Zafar (deceased). The learned trial court vide judgment dated 30.09.2015 convicted Muhammad Hanif son of Noor Muhammad (convict) and sentenced him as infra: Muhammad Hanif son of Noor Muhammad: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Bashir Ahmad son of Allah Daad (deceased) and directed to pay Rs.2,00,000/- as compensation under the 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. The convict was ordered to be hanged by his neck till dead. Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta, the co-accused of the convict were, however acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Hanif son of Noor Muhammad (convict) lodged the Criminal Appeal No.280-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.82 of 2015 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Hanif son of Noor Muhammad. The complainant of the case filed Criminal Appeal No.703 of 2015 against the acquittal of the accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta, and Muhammad Hanif son of Noor Muhammad (convict) with regard to the Qatl-i-Amd of Bashiran Bibi wife of Zafar (deceased). We intend to dispose of the Criminal Appeal No.280-J of 2019, Criminal Appeal No.703 of 2015 and the Murder Reference No.82 of 2015 through this single judgment. 3. Precisely, the facts of the prosecution case, as brought on record through the statement of Muhammad Hanif son of Allah Daad (PW-4), the complainant of the case, are as under: - "On 10-1-2012 I along with Bashir and Nazir and Bashir Ahmad son of Lal Din came to Burewala City for an urgent piece of work. When we reached Burewala by bus from Khatchi Pakki Bashir Ahmad received a telephonic call from Muhammad Hanif son of Noor Muhammad. Hanif asked Bashir Ahmad that I have discussed some thing urgent who may come immediately at my home situated in Chak No.505/E.B Basti Reema. Bashir told us about the above said telephonic call and he proposed that we all four should go to Basti Reema. We reached near petrol pump at Chak No.505/E.B road. We were settling the amount with rickshaw driver. We alighted at Rajbah situated at some distance ahead Chak No.505/E.B. It was 01:00 p.m when we alighted from rickshaw. Bashir asked us to stay over there and he will be back soon after hearing Hanif. He had hardly covered a few paces then Bashiran Bibi met him there. He began to talk each other. Along with Rajbah there was sugar cane crop cultivated in 5/10 Marlas. Hanif armed with Carbine, Ijaz armed with carbine, Allah Ditta armed with dagger, Manzoor armed with hatchet, Munaf armed with hatchet and Azam armed with sickle. Hanif fired with his weapon which landed on the right flank of deceased Bashir. Ijaz fired with his carbine which landed on the right leg of Bashir deceased. Muhammad Hanif fired repeatedly which landed on the back side of Bashir deceased below right shoulder. Bashir while he was turning back Azam accused caught hold of him and he (deceased) fell down. Allah Ditta accused caused dagger blow on the head of Bashir deceased. Manzoor accused caused injury on the head of Bashir deceased with hatchet. Munaf accused caused two injuries on the head of deceased Bashir with hatchet. Hanif and Ijaz accused persons fired with their respective weapons which hit on different parts of Bashiran Bibi deceased. Allah Ditta accused threw Bashiran Bibi down on the ground and Azam accused inflicted a sickle blow which landed on the belly of Bashiran Bibi deceased. After the occurrence accused persons fled away from the place of occurrence with their respective weapons. The motive behind the occurrence is that accused persons suspected that Bashir Ahmad deceased had illicit liaison with Mst. Bashiran Bibi. Due to this reason they committed brutal murder of Bashir Ahmad and Mst. Bashiran Bibi deceased. After the occurrence we checked the bodies of Bashir and Mst. Bashiran Bibi they were no more, on the way to hospital police officer met me I narrated him whole occurrence. He wrote down my statement which is ExP-D and my signature at the bottom of statement is ExP-D/1. Afterwards I made a written application to the SHO for nomination of unknown accused persons which is ExP-E and at the bottom of application my thumb impressions as well as signatures are ExP-E/1." 4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court, wherein the appellant namely Muhammad Hanif son of Noor Muhammad and his co-accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta (all since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 12.04.2012, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got as many as ten witnesses examined. Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) gave evidence regarding the ocular account. Maqsood Ahmad, Patwari (PW-1) prepared the scaled site plan of the place of occurrence. Muhammad Shafique 512/C (PW-2) stated that on 12.02.2012 he was handed over two sealed parcels said to contain blood stained earth and one sealed parcel said to contain empties of 12-bore for their onward transmission to the relevant laboratories for analysis and he delivered the same at the said laboratories intact. Muhammad Hussain 454/C (PW-3) stated that on 10.01.2012 he escorted the dead bodies of the deceased Bashir Ahmad son of Allah Daad and Bashiran Bibi wife of Zafar to the hospital for their postmortem examinations and also received the last worn clothes of the deceased from the medical officers. Muhammad Aslam 347/HC (PW-6) stated on 10.01.2012 he recorded the formal FIR (Exh.PP) and on the same day the investigating officer of the case handed over to him three sealed parcels said to contain blood stained earth and empties which on 12.02.2012 he handed over to Muhammad Shafique 512/C (PW-2) for their onward transmission to the relevant laboratories for analysis. Zafar Iqbal, S.I. (PW-9) investigated the case from 10.01.2012 till 16.02.2012, arrested the appellant and narrated the facts of the investigation conducted in his statement before the learned trial court. 6. The prosecution also got Dr. Muhammad Yaqoob Kamal (PW-8) examined, who on 10.01.2012 was posted as Medical Officer at THQ Hospital Burewala and on the same day at about 1.30 p.m examined Bashir Ahmad son of Allah Daad (then injured later deceased) and observed as under:- "Injury No.1 A fire arm lacerated wound 3 x 1.5 cm into going deep accompanied by multiple small 'fire arm lacerated wounds each measuring .5 x .5 cm into deep going around the wound on lower and front of right thigh, margins inverted, blackening present. It is entry wound, corresponding holes present in the clothes. Injury No.2 A multiple fire arm lacerated wound each measuring .7 x .7 cm into going deep in an area of 5 x 5 cm. on the right of the abdomen margins inverted, blackening present. All entry wounds. Corresponding holes present on Sweter and Qameez. Injury No.3. A fire arm lacerated wound 6 x 6 cm into going deep on the back and middle of right chest 8 cm away from the midline. Margins everted, no blackening. It is exit of injury No.2. corresponding holes present. Injury No.4 An incised wound 4 x .5 cm into scalp deep on the back of head. Injury No.5. An incised wound 3 x .5 cm into scalp deep on the top and right of head. Injury No.6. An incised wound 2x.5 cm into scalp deep on the top and right of head. Injury No.7. An incised wound 2 x 5 cm into scalp deep on the top and left side of head." Dr. Muhammad Yaqoob Kamal (PW-8) also conducted the post mortem examination of the dead body of the deceased Bashir Ahmad son of Allah Daad on 11.01.2012 and observed the same injuries as mentioned by him in the Medico Legal Examination Certificate (Exh. PS) and further opined as under:- "After…

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