PLJ 2009 Cr.C. (
[
Present: Muhammad Ahsan Bhoon, J.
NOOR ELAHI--Appellant
versus
STATE--Respondent
Crl. A. No. 163 of 2005, heard on 6.8.2008.
----S. 302(b)--Conviction and sentence recorded against
appellant by trial Court--Challenge to--Occurrence was unseen and deceased was
done to death in dark hours of the night by some unknown
culprits--Contradictory evidence--If any doubt arise the benefit of same must
go to the accused and it is the duty of prosecution to stand on its own legs--Medical
evidence did not corroborate the ocular account as post-mortem report negates
the time of occurrence--Injuries on the body of deceased were concerned, no
doubt he was done to unnatural death yet when prosecution story and presence of
PWs act the time of occurrence has been disbelieved, the injuries itself do not
speak about assailants--In peculiar circumstances the medical evidence does not
advance the prosecution case--Appeal allowed, conviction and sentence set aside
and appellant acquitted of the charge.
[P. 569] C
& D
Evidence--
----Conviction--Presumption--Principle--A person cannot
be convicted in a case of capital punishment merely on the basis of presumption
particularly when evidence in a case of capital punishment must come through an
unimpeachable source and where the witnesses are interested ones then the other
corroborative piece of evidence to prove the prosecution case is necessary. [P. 568] A
Recovery--
----Criminal trial--When the maker of the memo could be
produced then the whole proceeding of recovery falls on the ground--When the
ocular evidence is disbelieved and the presence of PWs is not believed then the
only recovery cannot rehabilitate the prosecution case.
[P. 569] B
Mr. M. Abdul Manan and Mr. Muhammad Sharif Bhatti,
Advocates for Appellant.
Mr. Aftab Ahmad Goraya, APG for State.
Date of hearing: 6.8.2008.
Judgment
This judgment shall dispose of Cr. Appeal No. 163/2005
filed by Noor Elahi appellant against his conviction and sentence and Cr. Rev.
No. 89/2005 filed by Lal Bakhsh complainant for enhancement of sentence awarded
to Noor Elahi appellant as both arise of out same judgment dated 20.4.2005
passed by the learned Addl. Sessions Judge, Sadiqabad whereby Noor Elahi
appellant was convicted under Section 302(b) PPC and sentenced to imprisonment
for life and to pay an amount of Rs. 1,00,000/- to the heirs of the deceased by
way of compensation under Section 544-A Cr.P.C. or in default thereof to
further undergo six months. Benefit of Section 382-B Cr.P.C. was extended to
the appellant
2. As per private complaint (Ex.PA) filed by Lal Bakhsh
complainant (PW.1) briefly the facts of the case are that his son Waryam had a
shop in the shape of a Cabin out of his house. On the night between 30/31st
May, 2002 after `Eisha' prayer he along with his son Riaz Ahmad was present in
his house situated at
4. After recording statement of the complainant, the
matter was referred to the learned Illaqa Magistrate for inquiry under Section
202 Cr.P.C. The inquiry report was produced in the Court of learned A.S.J.,
Sadiqabad on 22.9.2003 who vide order dated 30.9.2003 summoned the accused to
face the trial. Charge was framed against the appellant and acquitted accused
who denied the charge, pleaded not guilty and claimed trial. The complainant,
to prove the charge against the accused, produced ten prosecution witnesses.
The accused were examined under Section 342 Cr.P.C. Noor Ellahi
appellant/accused in answer to question as to why this case was against him and
why the PWs deposed against him stated as under:
"This case was registered against me due to enmity
and suspicion."
The accused did not opt to appear as their own witness in
disproof of the allegation levelled against them as required under Section
340(2), Cr.P.C.
The learned trial Court after hearing the parties passed
the above said conviction and sentence through the impugned judgment, which has
been assailed by the appellant as well as the complainant through Cr. Appeal
and Cr. Rev. respectively.
5. Learned counsel
for the appellant contends that this is a case of no evidence; all the PWs were
interested; there is a delay of 11 hours in lodging of FIR; the delayed
post-mortem shows that the occurrence was unseen; the case of prosecution is
based on improvements and contradictions which were duly confronted; medical
evidence is contra to the ocular account; recovery was effected after a delay
of two months and was in violation of the provisions of Section 103, Cr.P.C.
6. On the other
hand, learned APG assisted by the learned counsel for the complainant has
argued that reliable confidence inspiring evidence has been produced by the
prosecution; there was no motive for false implication of the present
appellant; a young son of the complainant was brutally murdered by the
appellant with a hatchet which was recovered at his behest and same was found
blood stained in view of the report of Chemical Examiner (Ex.PJ); the statement
of complainant was corroborated by Jan Muhammad (PW.2) and Safdar Hussain
(PW.3) and they had no animus to falsely implicate the appellant. The delay in
lodging the FIR was due to the reason that there was no source of transportation.
The battery/torch was recovered vide memo Ex.PE through which Safdar Hussain
(PW.3) saw the occurrence and the medical evidence is in line with the ocular
account furnished by the eye-witnesses and the prosecution has proved its case
against the appellant beyond any shadow of doubt.
7. Heard. Record perused.
8. The ocular account in this case was furnished by Lal
Bakhsh complainant (PW.1) who filed private complaint and was originally the
maker of FIR No. 89/02 dated 31.5.2002 under Sections 302/34 PPC registered
with Police Station Bhong District Rahimyarkhan. Later on he being dissatisfied
with the police investigation filed private complaint (Ex.PA) on 8.7.2003, Lal
Bakhsh complainant (PW.1) is father of the deceased Waryam and he while
appearing before the learned trial Court reiterated the story of private
complaint which was corroborated by Jan Muhammad (PW.2), brother-in-law of the
complainant and Safdar Hussain (PW.3), nephew of Jan Muhammad and maternal
cousin of the deceased. According to FIR the occurrence was unseen and in fact
the complainant and his companions/PWs only saw the dead-body of the deceased
lying on the spot but after about 1 year and 2 months the complainant came with
a new story in private complaint whereby he narrated that the occurrence
although took place in the dark hours of the night between 30/31.5.2002 after
"Eisha" prayer but that was seen by the aforesaid PWs 1 to 3, however
the said improvements with inordinate and unexplained delay were duly
confronted to the PWs when they appeared in the witness-box.
9. Another
important aspect of the case is that Jan Muhammad (PW.2) admitted this fact
that the deceased and appellant Noor Elahi used to go in routine together and
in the police case there was no last seen evidence available but in the
complaint case for the first it was alleged that Lal Bakhsh complainant (PW.1)
had awaken the deceased to sell some household items to the appellant. Neither
there was any evidence of `vaj takkar' nor of extra-judicial confession and at a
belated stage a version of direct evidence was introduced by the complainant.
It is also pertinent to mention here that the prosecution witnesses admitted
the factum of occurrence that it was taken place in dark hours of night and
later on concocted that the occurrence was seen through a torch which does not
inspire confidence. The learned trial Court convicted the appellant merely on
the basis of presumptions. I am afraid, a person cannot be convicted in a case
of capital punishment merely on the basis of presumption particularly when it
is settled law that the evidence in a case of capital punishment must come
through an unimpeachable source and where the witnesses are interested ones
then the other corroborative piece of evidence to prove the prosecution case is
necessary.
10. Another important aspect of the case is that the FIR
was lodged at 8.20 a.m. on 31.5.2002 after a delay of 8 hours of the occurrence
when the police station was only at a distance of about 6 K.M. from the place
of occurrence and the post-mortem examination was conducted at evening time at
6.00 p.m. so I am of the considered view that it was a case of unseen
occurrence. It would be important to mention here that it was admitted by the
prosecution witnesses that the place of occurrence was a deserted place and was
not within the populated area. The site-plan (Ex.PF) prepared by Mulazam
Hussain Halqa Patwari (PW.5) further negates the case of the prosecution. If
the deceased had to receive outstanding amount from the appellant why he had
chosen to move toward a deserted place along with appellant instead of going
towards his house.
11. It would be important to mention over here that the
battery/torch allegedly recovered and taken into possession vide memo (Ex.PE)
on 2.6.2002 and the only recovery witness Khurshid Constable (PW.4) appeared,
and that too was in violation of Section 103 Cr.P.C., particularly when the
I.O. of this case was neither summoned by the learned trial Court nor produced
by the prosecution, even no effort was made for the production of said witness.
As far as the recovery of hatchet P.2 from Noor Elahi appellant is concerned,
that too was recovered after two months when the arrest of appellant was made
by Saeed Ahmad Inspector but said Inspector could not be produced during the
trial and only Jan Muhammad (PW.2) who is maternal uncle of the deceased and
also an eye-witnesses of the occurrence appeared to support the recovery of
hatchet but that was also in violation of the provisions of Section 103,
Cr.P.C. particularly when the maker of the memo could not be produced then the
whole proceeding of recovery falls on the ground. When the ocular evidence is
disbelieved and the presence of PWs is not believed then the only recovery
cannot rehabilitate the prosecution case.
12. I may observe here that this is the case wherein the
occurrence was unseen and the deceased was done to death in dark hours of the
night by some unknown culprits and evidence available on record is full of
contradiction rather it negates the original version put forth by the
complainant, and if any doubt arises the benefit of same must go to the accused
and it is the duty of prosecution to stand on its own legs.
13. The medical
evidence does not corroborate the ocular account as post-mortem report negates
the time of occurrence as also observed by the learned trial Court. So far
injuries on the body of deceased are concerned, no doubt he was done to
unnatural death yet when prosecution story and presence of PWs at the time of
occurrence has been disbelieved, the injuries itself do not speak about
assailants. So in peculiar circumstances the medical evidence does not advance
the prosecution case.
14. For what has been discussed above, this appeal is
allowed. The conviction and sentence of the appellant is set aside and he is
acquitted of the charge. He shall be released forthwith, if he is not required
in any other criminal case.
15. In view of above, Cr. Rev. No. 89/2005 is dismissed.
(A.S.) Appeal
allowed.