2020 PLP 1522 (YLR)

SHEHRAM SARWAR CH., J.

Ali Raza (appellant) was tried by the learned Sessions Judge, Gujranwala in case FIR No.55 dated 15.02.2010, offence under section 302, P.P.C., registered at Police Station Qila Didar Singh, District Gujranwala. Vide judgment dated 14.03.2011 passed by the learned Sessions Judge, Gujranwala, the appellant had been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life, with a further direction to pay Rs.5,00,000/- (rupees five lakh only) as compensation under section 544-A, Cr.P.C. to the legal heirs of each deceased and in default whereof to further undergo imprisonment for six months. Asghar Ali Zaki (complainant) filed a Crl. Revision No.404 of 2011 for enhancement of sentence and compensation amount imposed upon the appellant, which was dismissed for non-prosecution by this Court vide order dated 13.05.2013. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.

2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the written application (Ex.PA) of Asghar Ali Zaki, complainant (PW.1) is that on 15.02.2010 at about 11:00 a.m. he along with his brother Muhammad Javed alias Shawar, Muhammad Riaz and Sabir Hussain was talking in the Baithak of his house. Ali Raza (appellant) came at the door of the house and called Muhammad Javed alias Shawar upon which he (Muhammad Javed alias Shawar) went to the door. Ali Raza (appellant) asked Muhammad Javed alias Shawar as to 'who are you' to restrain him from addicting and gave dagger blow which he was holding in his right hand, to Muhammad Javed alias Shawar hitting on his left flank, who fell on the ground and succumbed to the injury on the spot. The appellant fled away from the place of occurrence. Motive behind the occurrence as alleged in the FIR was that the deceased used to restrain the appellant from using drugs.

3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted. Ali Raza (appellant) was summoned by the learned Sessions Judge, Gujranwala to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Section 302, P.P.C. was framed against him on 12.11.2010, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 14.03.2011, wherein he refuted all the allegations of the prosecution and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. However, after conclusion of the trial, the learned trial court convicted and sentenced the appellant, as detailed above. Hence, this appeal.

4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that presence of Asghar Ali Zaki, complainant (PW.1) and Muhammad Riaz (PW.2) on the spot at the relevant time is doubtful in nature; that medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case; that motive has not been proved against the appellant; that alleged recovery of dagger (P.4) at the instance of appellant is inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.

5. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that presence of both the eye-witnesses on the spot at the relevant time is quite natural and probable; that ocular account is fully supported by medical evidence; that prosecution case is further corroborated by the recovery of dagger at the instance of appellant; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.

6. I have heard learned counsel for the parties as well as the learned Additional Prosecutor General for the State and gone through the record with their able assistance.

7. Ocular account in this case consists of Asghar Ali alias Zaki complainant (PW.1) and Muhammad Riaz (PW.2). The presence of both these witnesses on the spot at the time of incident is doubtful in nature because had they been present on the spot at the relevant time why they did not try to rescue the deceased or to catch hold of the appellant who, admittedly, was not armed with any firearm to ward the said eye-witnesses off or to keep them away at the time of incident. The conduct of both these PWs is highly improbable because they have stated in their cross-examination that they did not try to apprehend Ali Raza (appellant) before inflicting dagger blow on the person of deceased. Complainant (PW.1) has stated in his cross-examination that he was a school teacher by profession and on the day of occurrence he went to school, obtained short leave, left the school at 9:00 a.m. and reached home for some personal work but he did not produce any application for short leave during the trial or before the I.O. during the course of investigation. Complainant has stated in his statement that he along with other PWs were sitting in the baithak on sofas at the time of incident and Ali Raza (appellant) was not visible from the place where they were sitting. If it was so, then how he along with other PWs saw the appellant while inflicting dagger blow at the person of deceased. Moreover, Masood Ahmad Bhatti Draftsman (PW.13) has stated in his cross-examination that he had not mentioned any sofa or chair in the site plan where the witnesses of ocular account were sitting at the time of incident. Muhammad Riaz (PW.2) has stated in his cross-examination that his house was at a distance of 500/600 yards from the place of occurrence. The said PW has not given any plausible reason for his presence on the spot at the time of incident. Therefore, I hold that both these PWs were chance witnesses. 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as "Mst. Shazia Parveen v. The State" (2014 SCMR 1197) and "Muhammad Rafique v. The State" (2014 SCMR 1698). In view of the facts and circumstances it can safely be concluded that the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.

8. Motive behind the occurrence as alleged in the FIR was that Muhammad Javed alias Shawar (deceased) used to restrain Ali Raza (appellant) from using drugs. No evidence qua motive part of incident has been brought on record. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, I hold that prosecution has failed to substantiate motive against the appellant.

9. So far as alleged recovery of dagger (P.4) at the instance of appellant is concerned, the same is immaterial because the said recovery was effected about six months after the incident and it is not expected from the accused to keep such weapon as souvenir because during the said period he had ample time to destroy the said weapon. Reliance is placed on case law titled as "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344).

10. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605).

11. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could no prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established 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. Reliance is placed on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).

12. For the foregoing reasons, the appeal in hand is allowed, conviction and sentence awarded to Ali Raza (appellant) vide judgment dated 14.03.2011 passed by the learned Sessions Judge, Gujranwala are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Ali Raza, appellant is in jail, he shall be released forthwith if not required to be detained in any other case. SA/A-24/L Appeal allowed.