2022 PLP 1981 (YLR)

MALIK SHAHZAD AHMAD KHAN, J.

This judgment shall dispose of Criminal Appeal No.151447-J of 2018, filed by Muhammad Younis (appellant) against his conviction and sentence, Murder Reference No. 02 of 2018, sent by the learned trial Court for confirmation or otherwise of the Death sentence awarded to Muhammad Younis (appellant) and Criminal Appeal No.151450 of 2018, filed by Abid Hussain Shah (appellant/complainant) against acquittal of Ali Hasnain Hashim and Ali Hasnain Asim (respondents/accused). We propose to dispose of all these matters by this single judgment as the same have arisen out of the same judgment dated 21.12.2017, passed by the learned Additional Sessions Judge, Jhang.

2. Muhammad Younis (appellant), along with his co-accused Ali Hasnain Hashim and Ali Hasnain Asim (since acquitted), was tried in case FIR No.96, dated 26.02.2017, under Sections 302/34, P.P.C. registered at, Police Station Satellite Town, District Jhang lodged by Abid Hussain Shah (complainant). After conclusion of the trial, the learned trial Court vide its judgment dated 21.12.2017, has convicted and sentenced Muhammad Younis (appellant) as under:-- Under Sections 302(b)/34, P.P.C. to 'Death' for committing Qatl-i -Amd of Ghulam Abbas Shah (deceased). He was also ordered to pay Rs. 5,00,000/- (rupees five hundred thousand 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 simple imprisonment up to six months. However vide the same judgment, co-accused Ali Hasnain Hashim and Ali Hasnain Asim were acquitted of the charges.

3. Brief facts of the case as given by the complainant Abid Hussain Shah (PW-6) in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PA/1) was chalked out, are that on 26.02.2017 he (complainant/PW-6) along with Syed Ali Aoust Shah (PW-7) and Shabbir 'Hussain Shah (not produced), was present in his house, when Muhammad Younis (appellant) and Ali Hasnain Hashim (acquitted co-accused) came there on motorcycle, who asked complainant's father that deal for sale of their house has been struck and the property dealer was sitting in their house and offered complainant's father to accompany them for finalization of the deal. Father of the complainant namely Ghulam Abbas (deceased) went along with the accused on their motorcycle to the Kothi of Hashim Shah. The deceased did not return for quite some time, whereupon the complainant (PW-6) along with Syed Ali Aoust Shah (PW-7) and Syed Shabbir Hussain Shah (PW since not produced), went towards the Kothi of Hashim Shah for asking about Ghulam Abbas (deceased) and when they reached near the Kothi of Hashim Shah, they found the outer gate of Kothi lying open and heard hue and cry of Ghulam Abbas (deceased) upon which all of them rushed inside the Kothi and saw Ali Hasnain Asim, Ali Hasnain Hashim (acquitted co-accused) and Muhammad Younas Ansari (appellant), present there and within their view Hashim Shah (co-accused) raised Lalkara to Younis Ansari (appellant) to teach a lesson to Abbas Shah for not imparting demonography "Amliyaat" to them and asked him to make fire. Upon which Muhammad Younas (appellant) took out a pistol from the fold of his Shalwar and made a fire shot, which landed on the back at the left side of head of the deceased, who fell on the ground. Ali Hasnain Hashim, Ali Hasnain Asim (acquitted co-accused) and Muhammad Younas (appellant) fled away from the spot while raising Lalkaras that whosoever would come near, will not be spared. The complainant along with the PWs tried to rescue the deceased but he succumbed to injuries at the spot. Motive behind the occurrence was that Ali Hasnain Hashim, Ali Hasnain Asim (co-accused since acquitted) and Muhammad Younas (appellant), wanted to learn demonography from the deceased for their nefarious designs but the deceased refused them, due to which the appellant along with his co-accused committed the murder of Ghulam Abbas Shah (deceased).

4. In order to prove its case, the prosecution produced nine witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Exh.PA) to (Exh.PQ).

5. The statements of Muhammad Younis (appellant) and his co-accused under Section 342 of Cr.P.C. were recorded. Muhammad Younis (appellant), refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you" Muhammad Younis appellant replied as under:- "All the witnesses are closely related inter-se. There is no independent evidence whatsoever. I am innocent and the prosecution has failed to prove its case beyond any shadow of doubt. All the PWs have falsely deposed against me ". The learned trial Court vide its judgment dated 21.12.2017, found Muhammad Younis (appellant) guilty, convicted and sentenced him as mentioned and detailed above.

6. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the prosecution; that there is delay of about 3-1/2 hours in lodging the FIR (Ex.PA/1) whereas there is delay of 11-1/2 hours in conducting the post mortem examination on the dead body of the deceased and the abovementioned delays have created doubts in the prosecution story; that there is conflict between the ocular and medical evidence of the prosecution; that the prosecution witnesses have admitted during their cross-examination that they were residing at Lahore at the time of occurrence and as such they were chance witnesses, therefore, their evidence is not worthy of reliance; that Touqeer Abbas 1970/HC (PW-1) stated that he handed over the parcel of pistol to Akhlaq Ahmad, SI (PW-8) for its onward transmission to the office of the PFSA, Lahore but Akhlaq Ahmad, SI (PW-8) had not stated that he received the parcel of pistol from Touqeer Abbas, 1970/HC (PW-1) and deposited the same in the office of the PFSA, Lahore, therefore, the recovery of pistol (P-6) and positive report of the PFSA, Lahore (Ex.PQ) are inconsequential; that even the motive was not proved in this case by the prosecution; 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 Prosecutor-General assisted by learned counsel for the complainant that the FIR in this case was promptly lodged and there is no conscious or deliberate delay in reporting the matter to the police; that the prosecution eye-witnesses have categorically stated that they used to visit their native village i.e. Jhang, therefore, their presence at the spot at the releyant time cannot be termed as unnatural or improbable; that both the prosecution witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case against the appellant is fully supported by the medical evidence furnished by the prosecution through Dr. Waseem Akram (PW-9); that the prosecution case against the appellant is further corroborated by the recovery of pistol (P-6) from the possession of the appellant and positive report of PFSA, Lahore (Ex.PQ); that motive against the appellant was also established through reliable and confidence inspiring evidence of the prosecution witnesses; that there is no substance in the appeal filed by Muhammad Younis, appellant, therefore, the same may be dismissed. Insofar as the Criminal Appeal No. 151450 of 2018 is concerned it is contended by learned counsel for the complainant that the prosecution proved its case against acquitted accused, namely Ali Hasnain Hashim and Ali Hasnain Asim, who shared common intention with Muhammad Younas, accused and committed the murder of Ghulam Abbas Shah (deceased); that the abovementioned accused have wrongly been acquitted by the learned trial Court, therefore, appeal filed against their acquittal may be accepted and the said accused may be convicted and sentenced in accordance with the law.

8. Arguments heard. Record perused.

9. The occurrence in this case took place on 26.02.2017 at 04:00 p.m. but the FIR was lodged on the said day at 07:25 p.m. i.e. after three hours and twenty five minutes of the occurrence. As per relevant columns of the FIR, the distance between the place of occurrence and police station was only one Kilometer. Keeping in view the time of occurrence, the place of occurrence and its distance from the police station we are of the view that the FIR has not been promptly lodged in this case. No plausible explanation for the abovementioned delay of three hours and twenty five minutes in lodging the FIR has been given by any prosecution witness specially when the deceased died at the spot and the police station was situated at a distance of only one kilometer from the place of occurrence. We have further noted that post mortem examination on the dead body of the deceased was conducted on the next day of occurrence i.e. on 27.02.2017 at 03:35 a.m., which means that the post mortem examination on the dead body of the deceased was conducted after 11-1/2 hours from the time of occurrence. No plausible explanation has been given by the Medical Officer (Dr. Waseem Akram, PW-9) or by any other prosecution witness for the abovementioned delay in conducting the post mortem examination on the dead body of the deceased. In the case of 'Muhammad Ilyas v. 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 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 2 others v. 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 v. The State and others" (2020 SCMR 192), "Zafar v. The State and others" (2018 SCMR 326) and "Muhanunad Ashraf v. The State" (2012 SCMR 419). We have further noted that Syed Abid Hussain Shah, complainant (PW-6) has conceded during his cross-examination that photographs of the deceased P-4(1-3) were taken during investigation and in the said photographs, eyes of the deceased looked semi open. The relevant part of his statement reads as under: "The photo snaps of the deceased were taken during investigation proceedings by the investigating officer. In photo snaps P-4 (1-3) eyes of the deceased look semi open." The abovementioned fact further shows that Syed Abid Hussain Shah, complainant (PW-6), who was real son of the deceased and Syed Ali Aoust Shah (PW-7), who was son-in-law of the deceased were not present at the spot because had the said witnesses been present at the spot at the time of occurrence then they would have closed the eyes of the deceased. Reference in this context may be made to the case of "Zahir Yousaf and another v. The State and another" (2017 SCMR 2002) wherein at Para No.4 it was observed as under:- " We have also noted that as per the inquest report (Exh.PG) eyes of Ghulam Sarwar (deceased) were open which makes the presence of the witnesses of ocular account at the time of occurrence doubtful because had they been present there they would have closed eyes of deceased who was their close relative ......" Similar view was taken by the Apex Court of the country in the case of "Muhammad Asif v. The State" (2017 SCMR 486).

10. The ocular account of the prosecution was furnished through Syed Abid Hussain Shah, complainant (PW-6) and Syed Ali Aoust Shah (PW-7). We have noted that both the above mentioned witnesses were residing along with their families at Lahore at the time of occurrence. Syed Abid Hussain Shah, complainant (PW-6) conceded that he along with his children, brothers and sisters was residing at Lahore and his brother-in-law, namely Syed Ali Aoust Shah (PW-7), was also residing with him at Lahore during the days of occurrence whereas his father, namely Ghulam Abbas Shah (deceased) was living alone at Jhang. The relevant part of his statement in this respect reads as under:-- "PW-7 Aoust Ali Shah is my brother-in-law and also my cousin. PW Shabbir Hussain Shah is my maternal uncle ( ). We are seven brothers and two sisters. I am the eldest. We two brothers and one sister are married. My un-married brothers and sisters are residing with me at Lahore. PW explained we all used to visit our house at Jhang of and on. I working as merchandising manager in Textile industry. My children are studying at Lahore. My father was living alone at Jhang. PW explained a servant was also residing with him. My father was prayer leader ( ) and remained engaged in spiritual rituals. Besides his own earning we also used to send money to him. PW Aoust Ali Shah is also residing and serving at Lahore with me." (Bold and underlining supplied (for emphasis) Although the complainant stated that they (PWs) used to visit Jhang on and off but he has not given any specific schedule of their visit to Jhang from Lahore, which means that ordinary place of residence of both the above mentioned eye-witnesses was Lahore whereas the occurrence took place at Jhang. Both the above mentioned eye-witnesses did not give any valid reason for their presence at Jhang, on the day of occurrence and as such they are chance witnesses, therefore, their presence at the spot at the time of occurrence is not free from doubt. It is by now well settled that if a chance witness is unable to establish the reason of his presence at the spot at the time of occurrence then his evidence is not worthy of reliance. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another v. 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 "Safyan Nawaz and another v. 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 circum-stances, 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 v. 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 at the spot at the time of occurrence, therefore, their very presence in the house of occurrence at the relevant time becomes doubtful. If for the sake of arguments, the presence of the above mentioned eye-witnesses at Jhang on the day and time of occurrence is presumed to be correct even then it is noteworthy that the occurrence took place inside the house of one Syed Imtiaz Ali Shah (father of Ali Hasnain Hashim and Ali Hasnain Asim, acquitted co-accused). The abovementioned eye-witnesses could not give any valid reason for their presence inside the house of abovementioned co-accused at the time of occurrence. Although the said eye-witnesses stated that on the day of occurrence they (PWs) along with Ghulam Abbas Shah (deceased) were present in their house when the accused persons took the deceased along with them on the pretext to finalize the deal of sale of the house of the complainant party but when the deceased did not come back for a long time then they (PWs) reached at the house of abovementioned co-accused and witnessed the occurrence but it is noteworthy that the complainant has admitted during his cross-examination that they (complainant party) had old relationship with the accused party since 15/20 years and they frequently used to visit each other. He further stated that they (PWs) kept on waiting for the return of the deceased for 2-1/2 hours and thereafter they went out in search of the deceased. The abovementioned eye-witnesses did not explain that as to what had prompted them to start search for the deceased when the relationship between the deceased and the accused party was normal since 15/20 years. No plausible explanation in this respect to justify the presence of prosecution eye-witnesses inside the house of abovementioned co-accused at the time of occurrence has been given by the prosecution eye-witnesses. Moreover, the prosecution story does not appeal to a prudent mind because if the accused party had planned to commit the murder of Ghulam Abbas Shah (deceased) and they (accused party) had taken the deceased inside their house then as to why they kept on waiting for two and half hours till the arrival of PWs to commit the murder of the deceased so that they (the prosecution eye-witnesses) may witness the occurrence and give evidence against them (accused party). Keeping in view all the abovementioned facts we are of the view that the prosecution eye-witnesses were not present at the spot at the relevant time.

11. The medical evidence of the prosecution was furnished by Dr. Waseem Akram (PW-9). According to the statements of the prosecution eye-witnesses the fire shot made by the appellant landed at the left side on the back of head of the deceased but according to the medical evidence furnished by Dr. Waseem Akram (PW-9) the entry wound was on the back of right side of the head behind right ear of the deceased and as such there is conflict between the ocular account and medical evidence of the prosecution, which has created further doubt in the prosecution story.

12. According to the prosecution case the motive behind the occurrence was that the deceased refused to teach demonography (AMLIYAAT) to the accused and due to this grudge the accused persons committed the murder of Ghulam Abbas Shah, deceased. No cogent evidence has been produced by the prosecution to prove the abovementioned motive. No specific date, time and place that as to when and where the appellant and his co-accused asked the deceased to teach them demonograrhy (AMLIYAAT) and refusal of the deceased to do so has been given by any prosecution witness and only a vague and general motive has been alleged by the prosecution. We are, therefore, of the view that the prosecution failed to prove the alleged motive against the appellant.

13. Insofar as recovery of pistol .30 bore (P-6) recovered on the pointatoin of the appellant and positive report of the PFSA, Lahore (Ex.PQ) is concerned, we have noted that according to the statement of Touqeer Abbas 1970/HC (PW-1) on 10.03.2017 Ikhlaq Ahmad, SI (PW-8) handed over to him a parcel said to contain .30 bore pistol and on 14.03.2017 he handed over the said parcel to Ikhlaq Ahmad, SI (PW-8) for its onward transmission to the office of PFSA, Lahore. On the other hand, Ikhlaq Ahmad SI (PW-8) although stated that he handed over the parcel of pistol to Touqeer Abbas 1970/HC (PW-1) for keeping the same in safe custody and for its onward transmission to the office of PFSA, Lahore but he did not state that he received back the parcel of pistol from Touqeer Abbas 1970/HC (PW-1) and deposited the same in the office of the PFSA, Lahore on 15.03.2017. We are, therefore. of the view that the safe custody and transmission of parcel containing pistol (P-6) to the office of the PFSA., Lahore has not been proved in this case by prosecution beyond the shadow of doubt.

14. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In the case of 'Tariq Pervez v. The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- '5 .. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCMR 230), at page 236, observed as under:-- '13 . . It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

15. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept the Criminal Appeal No.151447-J of 2018 filed by Muhammad Younas appellant, set aside his conviction and sentence and acquit him of the charge by extending him the benefit of doubt. Resultantly, Murder Reference No. 02 of 2018 is answered in the negative. The appellant Muhammad Younas is in custody, he be released from the jail forthwith if not required to be detained in any other case.

16. Insofar as Crl. Appeal No. 151450 of 2018 filed by Syed Abid Hussain Shah complainant against the acquittal of Ali Hasnain Hashim and Ali Hasnain Asim (acquitted accused persons), is concerned, we have already disbelieved the prosecution evidence for the detailed reasons mentioned in paragraphs Nos. 9 to 14 of this judgment, therefore, the present criminal appeal has no force, hence, the same is hereby dismissed. JK/M-41/L Order accordingly.