2015 PLP 1142 (SCMR)

DOST MUHAMMAD KHAN, J.

Crime No. 187 registered by PS RA Bazar, Rawalpindi dated 20-4-2003 pertains to the murder of Asad Mehmood, brother of Tanveer Mehmood, the complainant.

2. The occurrence took place in the gate of godown of one Ch. Muhammad Sabir at 9-50 a.m., while it was reported to the police station, at a distance of 3 kilometers, at 12-25 A.N. (After Noon).

3. According to the FIR, the complainant has alleged that:- "his deceased brother was dealing in transport business and in that connection he was residing in Street No.45, Peoples Colony, Rawalpindi along with his family. On the fateful day and time, the deceased was present in the godown of Ch. Muhammad Sabir, situated in Street No.45, when in the meanwhile the appellant along with acquitted accused Muhammad Ilyas, both armed with .30 bore pistols, entered there and both fired at the deceased; the fire shots of both the accused proved effective as a result, the deceased sustained injuries on different parts of his body and fell down. The crime was perpetrated at the instance of co-accused, Babu Muhammad Javed as the deceased had married his daughter without his consent 5/6 years ago and from the wedlock a son and a daughter (minors) were born. This un-ceremonial marriage between the two, caused much annoyance to Babu Muhammad Javed and hence the present tragedy." The deceased was allegedly shifted to the hospital by the complainant and Muhammad Saleem (P.W.10), however he succumbed to the injuries in the hospital.

4. After registration of the crime, the investigating officer visited the crime spot and allegedly collected nine crime empties of .30 bore, which were sealed in a parcel vide recovery memo. Exh.PG, attested by the complainant and Muhammad Saleem, the eye-witnesses. Beside the blood stained earth secured from the spot, the blood stained clothes of the deceased were also taken into possession after the autopsy on the dead body. Similarly, after their arrest, at the instance of the appellant, a .30 bore pistol was recovered from an open plot of Street No.39, Peoples Colony, which was sealed into parcel vide recovery memo. Exh.PC. The crime empties were sent to the Arms Expert, followed by crime pistol of .30 bore and the Ballistic Expert vide Exh.PH reported back that the 4 crime empties (C-4, C-6, C-8 and C-9) were fired from .30 bore pistol (Exh.P1) while rest 5 crime empties were not fired from the pistol in question.

5. At the conclusion of investigation, charge sheet was filed in the Trial Court in which accused Babu Muhammad Javed was declared innocent. The prosecution, at the trial, examined 14 P.Ws., while one C.W. was also examined and at the conclusion of the same, appellant Qaiser Pervez was convicted and sentenced to death and also to pay Rs.1,00,000 as compensation to the LRs. of the deceased, while co-accused Muhammad Ilyas and Babu Muhammad Javed were acquitted, giving them benefit of doubt. Appellant Qaiser Pervez questioned his conviction and sentence through Criminal Appeal No.3 of 2005, while mother of the deceased, Mst. Sughra Begum, filed Criminal Appeal No.15 of 2005 against acquittal of Muhammad Ilyas and Babu Muhammad Javed; she also filed Criminal Revision No. 10 of 2005 for enhancement of compensation amount.

6. Through the impugned judgment dated 13-4-2010, the learned Division Bench of the Lahore High Court at Rawalpindi, while reducing his sentence from death to life imprisonment, partly allowed the appeal of the appellant Qaiser Pervez and answered the Murder Reference in the negative, while appeal against acquittal of Muhammad Ilyas and Babu Muhammad Javed was dismissed however, by allowing the revision petition, the amount of compensation was enhanced from Rs.1,00,000 to Rs.3,00,

000. We have heard the learned ASCs for the parties and learned Additional Prosecutor General, Punjab and have carefully gone through the entire record.

7. On 16-9-2010, while granting leave to appeal to the appellant, leave was also granted to Mst. Sughran Begum, mother of the deceased to examine as to whether the acquittal of co-accused was based on correct appreciation of evidence, therefore, show-cause notice was issued to the co-accused, Muhammad Ilyas. Comprehensive reasons are given in the leave granting order holding to make proper reappraisal of evidence of the entire cases.

8. It is cardinal principle of justice that ocular account in such cases plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary, once the ocular account is disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital charge therefore, we have to see the probative value of the ocular account in light of the facts and circumstances of the case.

9. In the FIR and in the statement of Muhammad Saleem, P.Ws.9 and 10 respectively, their original address is shown village Jamrot, Tehsil Gujar Khan, District Rawalpindi, situated much away from the crime place, however, it was added that they were residing in Peoples Colony, Rawalpindi. Neither the investigating officer has taken trouble/pain to verify their present place of residence nor the witnesses have produced anything in black and white to show that indeed they were residing on the present address. The necessary inference would be that, the, best evidence in this regard has been withheld from the Court.

10. It is also not their case that the deceased and they both in a routine way used to go jointly to the godown of Ch. Muhammad Sabir to take out their taxi cars, which they allegedly used to park the same at night times. Similarly, Ch. Muhammad Sabir, the owner of the godown (parking place) was not produced at the trial to substantiate that he had extended the facility of parking the taxi cars to the two eye-witnesses and the deceased and whether it was due to courtesy or on rent basis.

11. In the absence of such a proof, the eye-witnesses i.e. the complainant and P.W. Muhammad Saleem, could be held to be chance witnesses, as at the fateful time they were residing several miles away from the place of crime and even meeting with the deceased on his arrival to the godown was by mere chance.

12. The matter doesn't end here because it is the case of the complainant and P.W. Muhammad Saleem that soon after the occurrence, they put the deceased in their taxi car, driven by the complainant and he was rushed to the hospital where, after a short while, he succumbed to the injuries and it was within 15 minutes after their arrival in the hospital that an ASI and police party arrived there, with whom the complainant lodged the report and recorded the statement of Muhammad Saleem in the hospital.

13. If maximum concession is given to the prosecution, the entire process of lifting the deceased (then injured) and transporting him to the hospital, in all probabilities, must have consumed 1/2 hour and if 15 minute further time is added to it when the ASI/I.O. reached the hospital as admitted by P.W. Muhammad Saleem then, in all circumstances the report should have been lodged by 10-30 a.m. or 10-45 a.m. however, it was lodged at 12:25 (A.N) i.e. more than 2 hours later than the required time. This noticeable delay in lodging the report gives rise to an inference that the P.Ws. were not with the deceased nor they were available for the report, otherwise the same would have not been delayed by 2 hours time, for which no explanation whatsoever is coming forth on record. Delay in making the report in each and every case cannot be taken fatal to the prosecution case, provided there are circumstances, justifying the same, therefore, no hard and fast rule can be laid down to that effect.

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.

15. Intriguingly the Medico-legal Report was suppressed from the Court however, the original register was requisitioned, which was produced by the record-keeper of the hospital, showing that the name of deceased, (then injured), alone was mentioned without parentage and address including other particulars. Not because the Medico-legal Officer, Dr. Muhammad Ashraf has stated so but it is an invariable practice, that whoever brings an injured to the hospital, whether relative or friend, his name and particulars are mentioned in a specific column, meant therefor but in this case none of the two P.Ws. i.e. the complainant and Muhammad Saleem were cited as companions of the deceased, then injured. Even in the inquest report, prepared at the time of recording the FIR, the two identifying witnesses shown are, (i) Raja Nasir Aziz of Civil Lines and (ii) Malik Mumraiz resident of 30 RA Bazar, Rawalpindi. This glaring omission casts serious doubts about the presence of two self proclaimed eye-witnesses at the spot.

16. There is another glaring inconsistency in between the entries in column No.4 of the FIR and the site plan (Exh.PD) because in the FIR the crime spot is shown in Street No.15 but in the site plan the place of occurrence is shown Street No.45 where godown of Ch. Muhammad Sabir is situated.

17. Only one car was taken from the crime place to take the injured to the hospital, while the rest of the cars belonging to the deceased and the witnesses, were left behind, however, at the time of inspection, these were not indicated in the site plan or in the foot-notes thereof. This missing link adversely reflects upon the testimony of the so-called eye-witnesses, denuding the same of legal worth and legitimate inference might be that both of them are false and procured eye-witnesses. Moreover at the trial, both these witnesses have made a radical departure from their previous stance, recorded in the FIR and the statement given under section 161, Cr.P.C.

18. To reiterate, it was Ch. Muhammad Sabir alone, the owner of the godown (parking place) who could lend strong support to the claim/version of the two P.Ws. that they used to park their cars in his godown free of charges or on rent basis but he was withheld from the Court of law for no reason, much less plausible. Same was the case of the watchman whose absence from duty on the fateful day was never pleaded.

19. On the other hand, if one Raja Nasir Aziz of Jamrot could reach the hospital and became identifier of the dead body, albeit belonging to a distant place, then the procurement of the complainant and P.W. Muhammad Saleem in the same manner, by the police also could not be ruled out in the given circumstances, particularly, in view of the delay occasioned in lodging the FIR.

20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses.

21. Motive in a criminal case has been held to be corroboratory evidence however, in some rare cases the same assumes considerable importance like the present one. It is not the case of the prosecution that the daughter of co-accused Babu Muhammad Javed was abducted or she had eloped with the deceased 5/6 years prior to the occurrence but she married the deceased without consent of her father. The motive is not only sketchy, shaky and feeble but also not believable because during the long period of 5/6 years no unpleasant incident took place between the parties, no criminal case was registered nor the parties were run down under sections 107/151, Cr.P.C. to maintain peace and tranquility. If such incident at all had occurred then the revenge would have been taken at the very beginning. It does not appear sound nor rings true that after the couple was blessed with a son and a daughter (minors) how Babu Muhammad Javed, acquitted co-accused, decided to ruin the life of his own daughter at that stage, rendering his grandchildren orphans and his daughter a widow. Mst, Tehmina (wife of deceased) was also withheld from the Court and even she was not cited in the calendar of witnesses to substantiate the motive, set up by the prosecution. No reasonable much less plausible cause, has been given for withholding the lady from the Court of Law when her testimony was very important, having a decisive and incisive role to play because it was on account of this incident, according to the prosecution version, that the deceased was done to death, therefore, it can be safely held that neither the motive was sufficient enough for commission of this crime nor it was established at the trial in a fair and legal manner.

22. Appellant is a citizen of France. According to the record, he came to Pakistan 8/10 days before the tragedy and being the son-in-law of the co-accused Babu Muhammad Javed he was remotely concerned with the subject matter and it was for Babu Muhammad Javed or his sons to take the revenge.

23. After the acquittal of Muhammad Ilyas co-accused, to whom same and similar role was attributed like the appellant and because some of the crime empties did not match with the pistol attributed to the appellant but he was given benefit of doubt along with Babu Muhammad Javed, the latter being a moving spirit behind the whole tragedy then how, in the absence of strong corroboratory evidence, the appellant could be convicted on the same quality of evidence, which was disbelieved qua the co-accused. In this regard this court in the case of Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11), has laid down a guiding principle to the effect that when case of the convict is not distinguishable from that of the acquitted accused and the evidence is indivisible in nature then in the absence of strong corroboratory evidence, coming from independent source, the same cannot be made basis for conviction qua the convict. This rule of law has been followed since long without any exception. On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course. We do not find any element of the nature discussed above, in the findings of the two Courts below therefore, the acquittal of the two co-accused is not liable to be reversed. This being the legal and factual position, the conviction of the appellant on the same quality and standard of evidence becomes unjustified and unwarranted in law, thus, has certainly caused miscarriage of justice.

24. Another visible feature, striking in nature, is that the recovery memo with regard to the discovery/recovery of pistol at the instance of the appellant has been attested by the complainant and P.W. Muhammad Saleem to corroborate their own testimony. In law, corroboratory evidence means evidence of someone else other than the eye-witness whose evidence is needed to be corroborated therefore, this evidence of recovery cannot be held to be a corroboratory one because eye-witnesses cannot corroborate themselves but it must come from an independent source. According to the Black's Law Dictionary, 9th Edition, corroborating evidence has been defined as follows:- "Evidence that differs from but strengthens or confirms what other evidence shows (needing support)" It has been repeatedly and emphatically laid down by this Court that corroboratory evidence must come from independent source of unimpeachable nature to lend support or to supplement the ocular testimony of the eye-witnesses. If this part of the evidence with regard to the recovery of pistol is excluded from consideration then, the case of the convict appellant and that of Muhammad Ilyas becomes at par with each others without any thin/slight distinction and once this piece of evidence is disbelieved and excluded from consideration then, nothing is left behind to distinguish the case of the appellant from that of the acquitted co-accused Muhammad Ilyas and he (appellant) too was entitled to the same benefit of doubt, extended to the acquitted co-accused. More over, the recovery of the crime empties on the day of occurrence is a big question mark because when the daily diary of the same day was produced in the Court, the relevant entries regarding depositing of the crime empties in the police "Malkhana" were having overwriting and appeared added entry on the same page with interpolation and back dating, thus had become absolutely doubtful. This circumstance, grave in nature, has corrupted the course of entire investigation, which appears to have been dishonestly conducted. Keeping in view this aspect of the matter, the Ballistic Expert's report has lost its evidentiary value and once this piece of evidence, as has already been discussed, is excluded from consideration then, the conviction of the appellant on the same set of evidence where the co-accused similarly charged was acquitted, was altogether unjustified in law.

25. This Court has taken serious notice of such overwriting or interpolation in the police documents of important nature, particularly, in murder cases and on this count has rejected the prosecution case. One of the leading judgments in this regard is given in the case of Muhammad Sharif v. The State (1980 SCMR 231). Keeping in view the police traditional chicanery pressed into service in procuring and planting false corroboratory pieces of evidence, the entire case of the prosecution has become highly doubtful and the evidence cannot be safely relied upon.

26. Judged and discussed from all angles, this Court is of the firm view that this crime was an un-witnessed crime, the FIR was delayed unreasonably due to such reason, the motive has not been established vis-a-vis the present appellant being remotely connected therewith; the recoveries of incriminating articles have been made in a highly doubtful and suspicious circumstances, casting serious doubts thereon, rendering the same unreliable and because both the eye-witnesses can be conveniently held to be chance witnesses and when they are interested in the prosecution of the appellant, and because their testimony is not corroborated by a single shred of evidence and also because the witnesses were found false while deposing on oath with regard to the co-accused, showing no respect to their oath taken to tell the truth, then being false witnesses, they cannot be safely relied upon without strong corroboration, which is absolutely missing in the present case, as discussed above.

27. For the above stated reasons, Criminal Appeal filed by the appellant, Qaiser Pervez is allowed; the conviction and sentences awarded to the appellant are set aside; he is acquitted of all the charges leveled against him; he be let free forthwith if not required in any other case, while connected Criminal Appeal No.369/10 filed by Mst. Sughran Begum, seeking enhancement of compensation amount, has become infructuous and is dismissed accordingly. MWA/S-10/SC Appeal allowed.