2021 P Cr (PLP)

MUHAMMAD TARIQ NADEEM, J.

Naeem Gulzar (appellant) along with Waseem Ahmad (since acquitted) was tried by the learned Additional Sessions Judge, Lahore in case FIR No.13 dated 13-01-2013, offence under sections 302/34, P.P.C., registered at Police Station Badami Bagh, Lahore for the murder of Niaz Ahmad (deceased) father of Complainant and vide judgment dated 30-05-2017 convicted and sentenced the appellant as under:- Under section 302(b), P.P.C. sentenced to death, with a further direction to pay Rs.1,00,000/- (rupees one lac only) as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for four months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.473 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under section 374, Code of Criminal Procedure. Since both the matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PB/1) registered on the written application (Ex.PB) of Muhammad Sarfraz alias Arif, complainant (PW.4) is that he is resident of Noor Road Opposite Isllah Moashara School, Double Sarkan and is "Kharadya" by profession. On 2-01-2013 at about 11:45 a.m., his father Niaz Ahmad was sitting at Saddiqya Colony No.2, Link Noor Road. Naeem Ahmad and Waseem Ahmad severely injured his father with blows of iron rod. Waseem Ahmad caught hold off his father with both hands and Naeem Ahmad gave iron rod blows on the head of his father. Niaz Ahmad, injured was brought to Mayo Hospital, Lahore from where he was referred to General Hospital, Lahore but he succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that seven months prior to the occurrence brother of complainant Asif contracted runaway marriage with the sister of accused persons and due to this grudge accused persons committed murder of complainant's father.

3. After completion of investigation, report under section 173, Code of Criminal Procedure was submitted in the case. The appellant along with his co-accused (since acquitted) were summoned by the learned Additional Sessions Judge, Lahore to face the trial. Copies of relevant documents were provided to them as required under section 265-C, Code of Criminal Procedure and formal charge under sections 302/34, P.P.C. was framed against them on 26-06-2013, to which they pleaded not guilty and claimed trial. Statements of the appellant along with his acquitted co-accused under section 342, Code of Criminal Procedure were recorded, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under section 340(2), Code of Criminal Procedure nor he produce any defence evidence. However, after conclusion of trial, the learned trial court convicted and sentenced the appellant, as detailed above. Hence, this appeal and Murder Reference.

4. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and perused the record minutely with their able assistance.

5. It has been noticed by us that the occurrence in this case, as per prosecution story took place on 12.1.2013 at 11.45 a.m. and the matter was reported to the police on the following day on 13.01.2013 at 01.40 p.m. i.e. after delay of twenty-six hours of the occurrence. The distance between the place of occurrence and the police station is 1-1/2 K.M. The most vital point in the case attracting the Court's attention is that FIR was not lodged at Police Station rather the complainant Muhammad Sarfraz (PW4) submitted a written application for the registration of case before Nazir Ahmad, ASI at Usman Chowk, Lahore near the crime spot. Had the Complainant or PW been present at the place of occurrence matter could have been reported within no time, in view of nearby location of police station. This fact indicates that the occurrence, was un-witnessed one and whole story has been concocted after preliminary investigation by joining fake witnesses. True that, in each and every case, if the FIR is lodged at the crime spot, the entire case of the prosecution cannot be thrown away but there must be some plausible reasons for such omission. In absence of above mentioned reasons, many suspicions and doubts arise and an adverse inference against prosecution has to be drawn in this regard. Reliance is placed upon case law titled as "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155).

6. It has further been noticed with concern that Niaz Ahmad son of Nabi Bakhsh was kiss to dust on 13.01.2013 at 11.20 p.m., whereas, postmortem on the dead body of deceased was conducted on 16.01.2013 at 01.15 p.m. i.e. after about three days of the occurrence. No explanation whatsoever has been given by the prosecution qua the delay in conducting the post mortem examination of the deceased which is obviously suggestive of the fact that time was consumed to fabricate whole proceedings. We fortify our view from the case laws titled as "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068), "Safdar Mehmood and others v. Tanveer Hussain and others" (2019 SCMR 1978) and "Ibrar Hussain and another v. The State" (2020 SCMR 1850).

7. Adverting to ocular account furnished by Sarfraz alias Arif complainant (PW4) and Niaz Ali son of Muhammad Hayat (PW5); we have found that presence of both the supra mentioned prosecution witnesses at the spot is highly doubtful. Sarfraz alias Arif complainant (PW4) has admitted in his cross-examination that:- "I ran 'Kharad' machine at Badami Bagh, Abu Bakar Park, Lahore. I am an employee of said 'Kharad' machine. My working hours are 09.00 a.m to 05.00 p.m. Inter se distance between road/place of occurrence to Abdullah Road can be covered within 20 minutes." It was further admitted by PW4 Sarfraz alias Arif that PW5 Niaz Ali son of Muhammad Hayat is resident of Jaloo who is his brother-in-law and reside at Jaloo situated at a distance of 1-1/4 hours' drive from the place of occurrence. This fact has also been endorsed by PW

5. PW5 also disclosed in his cross-examination that he is a labourer/pulladar by profession and deals in loading and un-loading of "jipsum", his working hours are from 08.00 a.m to 06.00 p.m. From the above depositions, it is vivid that they were chance witnesses as no plausible reason has been given qua their availability with the deceased at the relevant time. 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, 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, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Guidance is sought from the case laws titled as "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142), "Muhammad Ilyas v. Muhammad Abid alias Billa and others" (2017 SCMR 54), "Mst. Rukhsand Begum and others v. Sajjad and others" (2017 SCMR 596),. "Mst. Shazia Parveen v. The State" (2014 SCMR 1197) and "Muhammad Rafique v. The State" (2014 SCMR 1698).

8. There is yet another intriguing aspect of the case, undeniably PW4 Sarfraz alias Arif is son of deceased, whereas, PW5 Niaz Ali and jettisoned PW namely Abdul Razzaq are son-in-laws of the deceased. Had they been present at the spot at the relevant time, why they did not try to rescue the deceased or to catch hold of the appellant and his co accused, who admittedly, were not armed with any firearm to refrain the said eye-witnesses to keep them away at the time of incident. In this backdrop, presence of the witnesses and participation of the assailant in the occurrence both becomes doubtful. In this regard, reliance is placed upon the case law titled as "Anil Phukan v. State of Assam" (1993 SCMR 2236).

9. Apart from the above, both the prosecution witnesses who were claimed to be present at the place of occurrence badly neglected to escort Niaz Ahmad to hospital in injured condition rather it has been mentioned in the FIR Exh. PB that residents of the vicinity have taken complainant's father, in injured condition to Mayo Hospital, Lahore on ambulance. It is admitted by Sarfraz alias Arif complainant PW4 in his cross-examination that:- "it is correct that emergency ticket for admission issued by Mayo Hospital does not bear my name as person who brought the injured/my father. I did not produce before the I.O. emergency ticket of admission injured/my father issued by Mayo Hospital, Lahore from the door of Mayo Hospital injured/deceased was referred to General Hospital, Lahore as the machine of Mayo Hospital, Lahore is out of order, I did not narrate this fact to the police". Similarly, Exh. DB which is a report issued by Registrar South Surgical Ward Mayo Hospital, Lahore, depicts that patient Niaz 50/60 years male was not admitted/entertained by South Surgical Ward Mayo Hospital, Lahore. Patient was treated at General Hospital, Lahore and expired there, on the next day. Medico Legal Record will be available from there. Supra mentioned facts reveal that the complainant and PWs were not present at the place of occurrence. A reference in this context may be made to the cases of "Nadeem alias Kala v. The State and others" (2018 SCMR 153), "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) and "G.M. Niaz v. The State" (2018 SCMR 506).

10. There is yet another important fact in this case that Niaz Ali PW5 stated that deceased was lying on the ground when they escorted him. His clothes were not stained with blood when he escorted the deceased. This deposition of PW5 negates the natural phenomena because when an injured person is handled by a person then his clothes ought to have stained with blood. Sarfraz alias Arif complainant (PW 4) has, however, admitted in his cross-examination when he escorted his father, his clothes were stained with blood and he did not produce blood stained clothes before the police, thus, the ocular account produced by prosecution is not worthy of credence. We are guided by the verdict of the Hon'ble Supreme Court of Pakistan in the case reported as "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319).

11. It is significant to point out here that co-accused of the appellant namely Waseem Ahmad was acquitted of the charge by the learned trial court while extending benefit of doubt to him. We have noted that according to the prosecution story, firstly the appellant and his acquitted co-accused namely Waseem Ahmad severely injured Niaz Ahmad (since deceased) by inflicting iron rod blows on his head, thereafter Waseem Ahmad caught hold both hands of Niaz Ahmad and the appellant inflicted iron rod blows on the head of the Niaz Ahmad (since deceased). The role attributed to the appellant is almost identical to that of co-accused Waseem Ahmad (since acquitted) as such the eye-witnesses produced by the prosecution were capable of falsehood. No appeal either by the State or by the complainant against the acquittal of supra mentioned co-accused namely Waseem Ahmad has been filed, as confirmed by the learned Deputy Prosecutor General and learned counsel representing the complainant. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed on "Liaqat Ali and others v. The State" (2021 SCMR 455) and "Tariq Mehmood v. The State" (2021 SCMR 471).

12. So far as the motive is concerned, according to the prosecution case complainant's brother namely Muhammad Asif has contracted love marriage with one Faiza who happens to be the sister of appellant. There is no iota of evidence with regard to motive alleged. It is admitted by PW4 Muhammad Sarfraz complainant in his cross examination that:- "No FIR regarding the abduction was registered by the accused party against us. Accused persons never quarreled with us except instant case. We never reported the matter of threats against the accused person in any police station. Accused persons never demanded for return of their sister to them". From the above said admissions of Sarfraz alias Arif complainant (PW4), it is crystal clear that the motive set up by the prosecution is vague and has not been proved by any convincing and plausible evidence. The law is settled by now that if the prosecution asserts a motive but fails to prove the same, then such failure on the part of the prosecution may react against a sentence of death on the charge of murder and reliance in this regard can be placed upon the cases reported by the Hon'ble Supreme Court of Pakistan as "Qaddan and others v. The State" (2017 SCMR 148), "Qurban Hussain v. The State" (2017 SCMR 880) and "Haq Nawaz v. The State" (2018 SCMR 21).

13. So far as the alleged recovery of iron rod (P5) at the instance of Naeem Gulzar (appellant) is concerned, we may observe that the occurrence allegedly took place on 12.01.2013, whereas, the appellant was arrested on 05.3.2013 who got recovered the alleged iron rod (P5) on 10.03.2013 i.e. almost about two months after the incident and the same was received in the office of Punjab Forensic Science Agency, Lahore on 29.03.2013 with the delay of 19 days. Even otherwise, the report of PFSA Exh. PR is not helpful to the prosecution which indicate that no human blood was identified on the alleged recovered iron rod (Saria). The police officer who effected recovery of iron rod at the pointation of appellant has not joined any witness from the vicinity, thus, violated the express provisions of section 103, Cr.P.C. It is not believable that a person will retain weapon of offence with him just to facilitate the prosecution. Therefore, we are of the considered view that it is not safe to rely on this piece of evidence. Wisdom is derived from the case laws reported as "Muhammad Ismail and others v. The State" (2017 SCMR 898) and "Muhammad Farooq and another v. The State" (2006 SCMR 1707). As we have already disbelieved the ocular account in paragraph No.7 of this judgment, therefore, recovery of iron rod at the pointation of appellant is of no avail to the prosecution because the recovery of weapon of offence is only a corroborative piece of evidence, and it settled proposition of law that conviction cannot be based merely on the corroborative piece of evidence. Reliance is placed upon the case titled as "Noor Muhammad v. The State" (2010 SCMR 97).

14. The only piece of evidence left to be considered by us is the medical evidence but the same is of no avail to the prosecution as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incident. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore the appellant's conviction cannot be upheld on the basis of medical evidence alone. Reliance is placed upon the case law titled as "Hashim Qasim and another v. The State" (2017 SCMR 986).

15. It is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. After reappraisal of entire evidence we have found that the prosecution case is replete with so many doubts. It is a cardinal principle of criminal jurisprudence that it is not necessary that there should be many circumstances which create doubt about the guilt of an accused. Even a single circumstance which creates reasonable doubt in the mind of a prudent person would entitle him to acquittal. Reliance is placed upon the cases reported as "Tariq Pervez v. The State" (1995 SCMR 1345), "Muhammad Akram v. The State" (2009 SCMR 230), "Muhammad Zaman v. The State and others" 2014 SCMR 749), "Muhammad Mansha v. The State" (2018 SCMR 772) and "Mst. Asia Bibi v. The State" (PLD 2019 SC 64).

16. As natural corollary of above said discussion, we are of the view that the prosecution has failed to prove its case against Naeem Gulzar appellant beyond any shadow of doubt, therefore, we accept Criminal Appeal No.74601-J of 2017 filed by Naeem Gulzar appellant, set aside his conviction and sentence recorded by the learned Additional Sessions Judge, Lahore vide judgment dated 30.05.2017 and acquit him of the charge by extending him the benefit of doubt. The appellant is in custody, he be released from the jail forthwith if not required in any other case.

17. Murder Reference No.473 of 2017 is answered in the NEGATIVE and the sentence of death of Naeem Gulzar appellant is NOT CONFIRMED. JK/N-16/L Appeal allowed.