2024 CCJ 15
Other citations: 2023 LHC 6940 = 2024 PCrLJ 147
[Lahore High Court]
Before Malik Shahzad Ahmad Khan, J
Qasim Ali—Appellant
versus
The State—Respondent
Crl. Appeal No.80274-J of 2022, heard on 4th July, 2023.
HEADNOTE
Penal Code (XLV of 1860) —
— S. 302(b) — Qatl-i-amd — Appreciation of evidence — Benefit of doubt — Scope — Prosecution case was that the complainant and his brother went to visit their brother — Upon finding their brother at a marquee, they were attacked by accused, who fatally injured their brother with a brick bat during a conversation resulting in the death of their brother — The prosecution’s account was provided by the complainant and another, both real brothers of the deceased — They stated they were not residents of the village where the occurrence took place but lived about 25/26 kilometers away — They did not provide a specific reason for their visit to the village on the relevant day — The prosecution witnesses being chance witnesses, their presence at the spot at the relevant time without a convincing reason raised doubts — Postmortem report indicated a delay of about nine hours — This delay raised suspicion that fake eye-witnesses were procured during this time — There was also a discrepancy between the ocular account and medical evidence regarding the number of injuries sustained by the deceased, weakening the prosecution’s case — Additionally, the conduct of the prosecution witnesses was deemed highly unnatural, as they did not intervene during the occurrence despite being in a group and the assailant being unarmed with a formidable weapon — The motive stated in the FIR lacked supporting evidence, as no local respectable who allegedly intervened appeared before the court, and the complainant himself admitted not witnessing the earlier quarrel — The recovery of the alleged weapon was also not adequately corroborated, as the recovery memo did not indicate bloodstains, and the brick was not sent for further examination — Based on the above considerations, the court concluded that the prosecution had failed to prove its case against the appellant beyond a reasonable doubt — Consequently, appeal was accepted, conviction and sentence were set aside, and the accused was acquitted of the charge. [Several Paras.]
Case law referred.
Nasir Abbas Zafar Malik, Advocate/defence counsel for Appellant.
Asiya Yasin, Deputy District Public Prosecutor with Ibrahim Sub Inspector for the State.
Complainant in person.
JUDGMENT
Malik Shahzad Ahmad Khan, J:—This judgment shall dispose of Crl. Appeal No.80274-J of 2022, filed by Qasim Ali (appellant), against his conviction and sentence.
2. Qasim Ali (appellant) was tried in case F.I.R. No.95 dated 20.01.2022, registered at police station Khurrianwala Tehsil Jaranwala, District Faisalabad, in respect of offence under section 302 PPC and vide impugned judgment dated 28.10.2022, passed by learned Additional Sessions Judge, Jaranwala, he (appellant) has been convicted and sentenced as under:-
Under section 302(b) PPC to imprisonment for life as Tazir. He was also ordered to pay Rs.10,00,000/- (rupees one million only) to the legal heirs of the deceased as compensation under section 544-A of Cr.P.C. and in default thereof to further undergo six months simple imprisonment.
Benefit of section 382-B Cr.P.C was also extended to the appellant.
3. Brief facts of the case as given by Amir Mehmood, complainant (PW-1) in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PE) was chalked out, are that Amir Mehmood complainant (PW-1) along with his brother, namely Parvez Iqbal (PW-2) came to Chak No.266/RB Khurrianwala to see their real brother, namely Muhammad Naveed (deceased). They were told from the house of Muhammad Naveed (deceased) that Muhammad Naveed (deceased) had gone for duty to the Royal Nawab Marquee, Jand Wali Road, Khurrianwala, whereupon, he (complainant) along with his brother Parvez Iqbal (PW-2) came to the Royal Nawab Marquee. On 20.01.2022 at about 03:20 p.m. when they were having conversation with their brother Muhammad Naveed (deceased), all of a sudden Qasim Ali (appellant) son of Abdul Bari caste Rajpoot resident of Chak No.266/RB, Khurrianwala armed with a brick bat emerged at the spot and started hurling abuses. He was refrained from doing so but Qasim Ali (appellant) gave brick bat blows on the head and chest of Muhammad Naveed (deceased) who sustained injuries and fell on the ground. The complainant party raised hue and cry due to which Qasim Ali (appellant) fled away from the spot while brandishing brick. He (complainant) and Parvez Iqbal (PW-2) attended their brother Muhammad Naveed (deceased) who succumbed to the injuries at the spot.
The motive behind the occurrence was that six days prior to the occurrence a quarrel took place between the deceased and the appellant however, the matter was patched up by the respectables of the locality. The appellant nourished this grudge and committed the occurrence.
4. After completion of investigation by the police, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 03.06.2022, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced nine witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Ex.PA) to (Ex.PJ). The statement of the appellant under section 342 Cr.P.C, was recorded, wherein he denied the allegations leveled against him. Neither the appellant opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against him nor he produced any defence evidence.
The learned trial Court vide its judgment dated 28.10.2022, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
5. Amir Mehmood, complainant (PW-1) is present before the Court. He is duly identified by Ibrahim, Sub Inspector of police station Khurrianwala District Faisalabad. The complainant submits that he does not want to hire the services of a private counsel in this case and will be satisfied with the arguments of learned Deputy District Public Prosecutor for the State. Even otherwise, it is a State case and learned Deputy District Public Prosecutor for the State is ready to argue the same, therefore, I proceed to decide the instant appeal after hearing arguments of learned defence counsel at state expenses for the appellant, learned Deputy District Public Prosecutor for the State and perusing the record.
6. It is contended by learned defence counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant party; that the prosecution witnesses are chance witnesses as they were not residents of the village, where the occurrence took place and they could not give any valid reason for their presence at the spot at the relevant time, therefore, their presence at the spot at the time of occurrence is highly doubtful; that the prosecution witnesses are closely related to the deceased, therefore, their evidence is not worthy of reliance without independent corroboration, which is very much lacking in this case; that the prosecution eye-witnesses made dishonest improvements in their statements recorded by the learned trial Court, which were duly brought on the record; that there is conflict between the ocular account furnished by the prosecution eye-witnesses and the medical evidence which has created further dent in the prosecution case; that the motive alleged by the prosecution was also not proved in this case and has also been disbelieved by the learned trial Court; that the recovery of brick bat (P.4) was falsely planted against the appellant to strengthen the weak prosecution case; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, the appeal filed by the appellant may be accepted and the appellant may be acquitted from the charge.
7. On the other hand, it is contended by learned Deputy District Public Prosecutor for the State that the FIR (Exh.PE) in this case was promptly lodged, which rules out the possibility of any concoction; that the occurrence took place in the broad day light, therefore, there was no chance of any mis-identification of the accused; that the prosecution eye-witnesses were cross-examined at length but their evidence could not be shattered; that the medical evidence has also supported the ocular account of the prosecution; that the prosecution case is further corroborated by the recovery of brick bat (P.4) on the pointation of the appellant; that motive was also proved against the appellant through reliable evidence of the prosecution witnesses; that the learned trial Court has righty convicted and sentenced the appellant, therefore, his appeal may be dismissed while maintaining his conviction and sentence.
8. Arguments heard. Record perused.
9. Prosecution story as set forth in the complaint (Exh.PA), on the basis of which the formal FIR (Ex.PA/1) was chalked out has already been reproduced in para No.3 of this judgment therefore, there is no need to repeat the same.
10. Occurrence in this case took place at the Royal Nawab Marquee situated at Jand Wali Road, Khurrianwala, District Faisalabad. The ocular account of the prosecution was furnished by Amir Mehmood, complainant (PW-1) and Parvez Iqbal (PW-2). Both are real brothers of Muhammad Naveed (deceased). Both the abovementioned witnesses stated that they are not residents of the village where the occurrence took place rather they were residents of Hajveri Town, Faisalabad City. They both stated that their residence was situated at a distance of 25/26 kilometers from the place of occurrence. The relevant parts of their statements in this respect read as under:-
Amir Mahmood (PW-1)
“My residence is about 25/26 KM away from the place of occurrence. My brother Pervez resides with me.”
Parvez Iqbal (PW-2)
“The interse distance between my residence and house of my deceased brother is about 24/25 kilometers. Royal Nawab Marquee is located at the distance of about 1/1-2 KM from the residence of my deceased brother.”
I have further noted that both the abovementioned prosecution eye-witnesses did not give any specific reason for their visit to the village where the occurrence took place on the relevant day. Amir Mehmood complainant (PW-1) further conceded during his cross-examination that he had neither any business nor residence near the place of occurrence. Although he stated that there was a special function on the residence of his brother (Muhammad Naveed deceased) but he further conceded that he was not invited at his residence by his deceased brother in connection with any function. The relevant part of his statement in this respect reads as under:-
“It is correct that neither I have any business nor residence near the place of occurrence. We went to meet my brother on our own and there was special function at his residence. My deceased brother has not invited at his residence in connection with any function.”
The nature of the stated function i.e. marriage, engagement or any Qul-kwaani, etc. has not been mentioned even during cross-examination by the abovementioned prosecution eye witnesses. As the abovementioned eye-witnesses are not residents of the village where the occurrence took place hence they are chance witnesses, therefore, their presence at the spot at the relevant time without establishing any convincing reason for their presence at the spot at the relevant time, is not free from doubt. The Hon’ble Supreme Court of Pakistan in the case of “Mst. Sughra Begum and another Vs. Qaiser Pervez and others” (2015 SCMR 1142) at Para No.14, observed regarding the chance witnesses as under:-
“14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”
Likewise, in the case of “Sufyan Nawaz and another Vs. The State and others” (2020 SCMR 192) at Para No.5, the Apex Court of the country was pleased to observe as under:-
“…………….He admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt.”
Similar view was taken in the case of “Muhammad Irshad Vs. Allah Ditta and others” (2017 SCMR 142). Relevant part of the said judgment at Para No.2 reads as under:-
“………………Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence…………”
As the above mentioned prosecution eye-witnesses are chance witnesses and they could not prove any valid reason of their presence in the village of occurrence at the relevant date and time, therefore, their very presence at the spot at the relevant time becomes doubtful.
11. It is further noteworthy that according to the prosecution case, the occurrence in this case took place on 20.01.2022 at 03:20 p.m.. The complainant himself mentioned in the FIR (Ex.PE) that his brother Muhammad Naveed (deceased) after receiving injuries died at the spot but according to post mortem report of the deceased (Ex.PB), the dead body of Muhammad Naveed (deceased) was brought in the hospital on 20.01.2022 at 11:50 p.m., and postmortem examination on the dead body of the deceased was conducted on 21.01.2022 at 12:10 a.m., i.e., after about nine hours from the occurrence. No plausible explanation has been given by the prosecution that as to why the dead body was brought to the hospital and post mortem examination was conducted with such a delay of about nine hours from the occurrence. The abovementioned delay in conducting the postmortem examination on the dead body of the deceased is suggestive of the fact that the occurrence was unseen and the delay was consumed in procuring the attendance of fake eye witnesses. In the case of ‘Muhammad Ilyas Vs Muhammad Abid alias Billa and others’ (2017 SCMR 54), the Apex Court of the country was pleased to observe that delay of 09 hours in conducting the postmortem examination suggests that prosecution eye witnesses were not present at the spot at the time of occurrence therefore, the said delay was used in procuring the attendance of fake eye witnesses. Relevant part of the said judgment at page No. 55 reads as under:-
“2. ………………….Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution. …”
Similarly, in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327), the Hon’ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time.
Similar view was taken by the Apex Court of the country in the cases reported as “Sufyan Nawaz and another vs. The State and others” (2020 SCMR 192),“Zafar vs. The State and others” (2018 SCMR 326) and “Muhammad Ashraf vs. The State” (2012 SCMR 419).
12. It is further noteworthy that there is conflict between the ocular account and medical evidence of the prosecution. In the contents of the FIR (Exh.PE), Amir Mehmood complainant (PW-1) alleged that the appellant gave two brick bat blows which landed on the head and chest of Muhammad Naveed (deceased) whereas in the post mortem report and pictorial diagrams (ExPB, Ex.PB/1 and Ex.PB/2) there is only one injury on the head of the deceased. No injury on the chest of the deceased was noted by the concerned Medical Officer. It is further noteworthy that both the eye witnesses, namely Amir Mehmood complainant (PW-1) and Pervez Iqbal (PW-2) stated before the learned trial Court that the appellant inflicted one brick bat blow on the head and three/four brick bat blows on the chest and shoulder of Muhammad Naveed (deceased). They were duly confronted with their previous statements and improvements made by them in this respect were duly brought on the record. The relevant parts of their statements in this respect are reproduced hereunder:-
(Amir Mahmood complainant (PW-1)
Examination-in-chief
“In the meanwhile, accused Muhammad Qasim present in the court raised lalkara and abused my brother Muhammad Naveed. Where after accused Qasim Ali inflicted a brick blow which landed on the right side of the head of my brother and accused Qasim Ali also inflicted brick blows on the chest of my brother three or four times. Where after accused escape from the spot while raising his brick.”
Cross-Examination
“I got recorded in my application Ex.PA that accused Qasim Ali also inflicted brick blows on the chest of my brother three or four times (as per request of learned defence counsel) confronted with Ex.PA where the fact of three or four time is not mentioned. ”
(Parvez Iqbal (PW-2)
Examination-in-chief
“In the meanwhile, accused Qasim Ali came there while armed with brick and started inflicting brick blows which landed on head, chest and shoulder areas. My brother fell down. We forward ahead to rescue our brother but he went unconccious.”
Cross-Examination
“I cannot recall whether I have got recorded in my statement u/s 161 Cr.P.C that my brother had sustained any brick blow on his shoulder.”
(bold and underlining supplied for emphasis)
It is therefore, evident that there was conflict between ocular account and medical evidence of the prosecution regarding the number of injuries sustained by Muhammad Naveed (deceased), as mentioned in the contents of the FIR (Exh.PE) and as mentioned by the prosecution eye witnesses before the learned trial Court and as noted in the post mortem report (Ex.PB) by Dr. Muhammad Khurram Ijaz (PW-4). In the cases of ‘Muhammad Ali Vs The State’ (2015 SCMR 137), ‘Irfan Ali Vs The State’ (2015 SCMR 840), ‘Usman alias Kaloo Vs The State’ (2017 SCMR 622) & ‘Nadeem alias Kala Vs The State and others’ (2018 SCMR 153), the prosecution evidence was disbelieved on account of its conflict with the medical evidence regarding the number/nature of injuries sustained by the deceased. Relevant part of the case of ‘Muhammad Ali’ supra, reads as under:-
“5…….In such circumstances, the presence of the eye-witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they could have ascribed the correct role to the accused and explain all the injuries on the person of the deceased….”
Moreover, the prosecution witnesses made improvements in their statements while appearing before the learned trial Court regarding the number of injuries sustained by the deceased on his chest and shoulder and their improved statements was also in conflict with the medical evidence, therefore, their evidence is not worthy of reliance. Reference in this context may be made to the case reported as ‘Akhtar Ali and others Vs The State’ (2008 SCMR 6).
13. The conduct of the prosecution eye witnesses of this case is highly unnatural. Amir Mehmood complainant (PW-1) and Pervaiz Iqbal (PW-2) were both real brothers of Muhammad Naveed (deceased) As per prosecution case the complainant was accompanied by Parvez Iqbal (PW-2), Naeem Butt (PW not produced) and the deceased and as such, the complainant party was comprising of 04-adults members, whereas, the appellant was alone but surprisingly they (PWs) did not try to apprehend the appellant after the occurrence or even did not try to intervene during the occurrence to save the deceased from the appellant. It is also noteworthy that the appellant was not armed with any formidable weapon at the time of occurrence and he was only armed with a brick bat. I am, therefore, of the view that conduct of the prosecution eye witnesses, who according to their claim witnessed the occurrence, is highly unnatural therefore, their presence at the spot is highly doubtful, hence their evidence is not worthy of reliance. I may refer here the case of “Liaquat Ali Vs. The State” (2008 SMCR 95), wherein at Para No.5-A of the judgment, the Hon’ble Supreme Court of Pakistan was pleased to observe as under:-
“Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W.7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaquat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.”
Similar view was reiterated by the august Supreme Court of Pakistan in the cases of “Pathan Vs. The State” (2015 SCMR 315) & “Zafar Vs. The State and others” (2018 SCMR 326). Under the circumstances, it cannot be safely held that the abovementioned eye witnesses were present at the spot at the relevant time and they had witnessed the occurrence because their conduct is highly unnatural.
14. The motive of the occurrence as stated in the FIR (Ex.PA/1) was that six days prior to the occurrence a quarrel took place between Muhammad Naveed, deceased and the appellant but the same was patched up with the intervention of the respectables of the locality. It is noteworthy that no respectable of the locality, who patched up the matter between the parties appeared before the learned trial Court in support of the motive part of the prosecution case. Moreover, the complainant while appearing before the learned trial Court as PW-1 admitted during his cross-examination that neither he nor Parvez Iqbal (PW-2) or Naeem Butt (PW not produced) witnessed the occurrence of motive. Relevant part of his statement in this respect reads as under:-
“I am not the eye witness of said quarrel as alleged in the motive part even the same has not been witnessed by my brother Parvez Iqbal or Naeem Butt.”
Moreover, in his statement recorded by the learned trial Court Amir Mehmood, complainant (PW-1) did not mention any specific date, time or place of occurrence of the motive, whereas, Parvez Iqbal (PW-2) did not utter a single word about the motive of occurrence. No reason of the earlier quarrel between the appellant and the deceased has been brought on the record. I am, therefore, of the view that the prosecution has failed to prove the alleged motive. It is also noteworthy that even the learned trial Court disbelieved the motive part of the prosecution case in paragraph No.27 of the impugned judgment.
15. Insofar as recovery of brick bat (P.4) on the pointation of Qasim Ali (appellant) is concerned it is noteworthy that the recovery memo (Ex.PJ) does not show that brick bat (P.4) was stained with blood. Moreover, the said brick (P.4) was never sent to the office of PFSA to see as to whether the same was stained with blood or not, therefore, it is not safe to rely upon the abovementioned piece of evidence of the prosecution. Under the abovementioned circumstances, there is no corroboration of the prosecution case through the abovementioned alleged recovery of brick bat on the pointation of the appellant.
16. In the light of above discussion, I am of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, I accept Criminal Appeal No.80274-J of 2022 filed by Qasim Ali appellant, set aside his conviction and sentence acquit him of the charge by extending him the benefit of doubt. The appellant Qasim Ali is in custody, he be released from the jail forthwith, if not required to be detained in any other case.
Appeal accepted