PLJ 2010 SC 877
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Rahmat
Hussain Jafferi & Tariq Parvez, JJ.
RIAZ AHMED--Appellant
versus
STATE--Respondent
Crl. Appeal No. 342 of 2009, decided on
11.1.2010.
(Against judgment dated 3.11.2008 of the
Lahore High Court, Lahore, passed in Criminal Appeal No. 18-J of 2003 &
M.R. No. 813 of 2002).
Qanun-e-Shahadat Order, 1984 (10 of
1984)--
----Art. 129(g)--Pakistan Penal Code,
(XLV of 1860), S. 302--Committing qatl-i-amd--Appreciation of evidence--One of
the eye-witnesses had expired, therefore, he was not examined, whereas another
eye-witness was given up by the prosecution on the ground that he was not
necessary witness to be examined--Prosecution case hinges upon the solitary
statement of the complainant--Co-accused was tried separately and was acquitted
of the charge--Validity--Statement of complainant was in conflict with the
medical evidence, as according to complainant the deceased was fired upon from
a distance of 3 karams whereas the medical officer found a wad lying near the
liver inside the body of deceased--Gun was fired from a very close range,
probably by putting its barred on the body of deceased--Statement of
complainant was neither supported nor corroborated by any piece of
evidence--One of the eye-witnesses was available in the Court but the
prosecution did not examine him, declaring him as unnecessary witness without
realizing the fact that he was the most important, only serving witness, being
an eye-witness of the occurrence--It is evidence was the best piece of
evidence, which the prosecution could have relied upon for proving the case but
for reasons best known, his evidence was withheld and he was not examined--So a
presumption under Illustration (g) of Art. 129 of Order 1984,
can fairly be drawn that had the eye-witness been examined in the Court his
evidence would have been unfavourable to prosecution--Prosecution has failed to
prove the case against the accused beyond reasonable doubt--Appeal was allowed. [Pp. 879 & 881] A, B & F
Motive--
----No quarrel between the deceased and
accused--Motive alleged in the instant case which was about 25/26 years prior
to the incident, appeared to be highly doubtful--Witness also admitted that
place where they were standing was not visible to accused--This also creates
serious doubt about their witnessing the incident from such place--Complainant
was not able to see the assailants causing fire-arm shots from a very close
range or keeping the gun on the body of the deceased--Ocular testimony was
highly doubtful, which cannot be safely relied upon on the capital charge. [P. 880] C
Recovery of Crime Empty--
----Report of FSL--Production of--In
sufficient to convict the accused in absence of substantive piece of
evidence--Crime empty secured from place of incident matched the gun recovered
from possession of the accused--Being a corroborative piece of evidence, which
by itself was insufficient to convict the accused in absence of substantive
piece of evidence. [P. 880] D
Administrative of Justice--
----Appeal was barred by 85 days--Since
no case has been made out against the appellant and he is acquitted of the
charge--For the safe administration of criminal justice, it appropriate to
condone the delay, which was accordingly done. [P.
881] E
PLJ 1985 SC 154, PLJ
1996 SC 168, PLJ 1998 SC 510 & 1995 SCMR 1730, ref.
Sheikh Muhammad Naeem, ASC for Appellant.
Mr. M. Siddique Baloch, DPG,
Date of hearing: 11.1.2010.
Judgment
Rahmat Hussain Jafferi, J.--The appellant
Riaz Ahmed was charged for committing Qatl-i-Amd of deceased Muhammad Mansha
within the area of dhari of the complainant Muhammad Abbas (PW.8) on 18.09.1998
at about 6:30 pm. The complainant alleged that on the aforesaid date at 6:30 pm
he (the complainant) alongwith Muhammad Arshad (not examined, as he had
expired) and Manzoor Hussain (not examined) was going towards his dhari. When
they reached near the crop of Noor Ahmed, which was at a distance of 30 karams
(165') from the said dhari, they saw that the appellant armed with .12 bore
single barrel gun and Muhammad Aslam, acquitted accused, coming from his dhari
and the deceased was standing outside the dhari. When the accused reached near
the sugar cane crop Muhammad Aslam, acquitted accused, raised a lalkara and on
his instructions, the appellant Riaz fired from his gun which hit the deceased
Mansha on the left side between the stomach and chest and he fell down on the
ground. The appellant fired another shot at the deceased, which also hit him on
his left arm. On the hue and cry made by them the accused persons ran away.
2.
The motive behind the incident was that about 25/26 years back Alam Sher
father of the appellant had committed the murder of brother of the deceased and
in retaliation thereto Alam Sher was also murdered and due to that grudge the
incident of the present case took place.
3.
At the trial, the prosecution relied upon the evidence the complainant
Muhammad Abbas (PW.8) only. One of the eye-witnesses, namely Muhammad Arshad
had expired; therefore, he was not examined, whereas another eye-witness
Manzoor Hussain was given up by the prosecution on the ground that he was not
necessary witness to be examined. Thus, the prosecution case hinges upon the
solitary statement of the complainant. It is pointed out that Muhammad Aslam,
co-accused, was tried separately and was acquitted of the charge.
4.
Having heard the learned counsel for the appellant, the learned Deputy
Prosecutor General, Punjab and perusing the record of the case with their
assistance, we find that the statement of the complainant is in conflict with
the medical evidence, as according to the complainant the deceased was fired
upon from a distance of 3 karams 16« whereas the Medical Officer found a wad
lying near the liver inside the body of the deceased. This aspect of the case
clearly shows that the gun was fired from a very close range, probably by putting
its barrel on the body of the deceased. Thus, there is conflict between the
medical and oral evidence. Furthermore, the statement of the complainant is
neither supported nor corroborated by any piece of evidence. One of the
eye-witnesses Manzoor Hussain was available in the Court on 29.07.2002 but the
prosecution did not examine him, declaring him as unnecessary witness without
realizing the fact that he was the most important, only serving witness, being
an eye-witness of the occurrence. Therefore, his evidence was the best piece of
the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was
withheld and he was not examined. So a presumption under Illustration (g) of
Article 129 of Qanun-e-Shahadat Order, 1984 can
fairly be drawn
that had the
eye-witness Manzoor Hussain been
examined in the Court his evidence would have been unfavourable to the
prosecution.
5.
Apart from the above facts, the complainant also admitted that before
the occurrence, there was no quarrel between the deceased and the accused,
therefore, the motive alleged in this case, which was about 25/26 years prior
to the incident, appears to be highly doubtful. He also admitted that the place
where they were standing was not visible to the accused. This also creates
serious doubt about their witnessing the incident from such place. This can
very well be proved from the fact that the complainant was not able to see the
assailants causing fire-arm shots from a very close range or keeping the gun on
the body of the deceased. Thus the ocular testimony is highly doubtful, which
cannot be safely relied upon on the capital charge.
6.
The prosecution also produced the positive FSL report, meaning thereby,
the crime empty secured from place of incident matched with the gun recovered
from the possession of the appellant. This being a
corroborative piece of evidence, which by itself is insufficient to convict the
appellant in absence of substantive piece of evidence. Reference is
invited to "Ijaz Ahmed v. State (PLJ 1998 SC 510)". It was held in the case of "Asadullah v. Muhammad Ali"
(PLD 1971 SC 541)", that corroborative evidence is meant to test the
veracity of ocular evidence. Both corroborative and ocular testimony is
to be read together and not in isolation. In the case of
"Saifullah v. The State (PLJ 1985 SC 154)", it was held that
when there is no eye-witness to be relied upon then there is nothing,
which can be corroborated by the recovery. It has been held in the cases of
"Riaz Masih v. State (PLJ 1996 SC 168) and Riaz Masih v. State (1995 SCMR
1730)" that recovery of crime weapon by itself is not sufficient for
conviction on murder charge. In the case of "Siraj v. Crown (PLD 1956
Federal Court 123)", it was held that recovery of the handle of blood
stained hatchet at the instance of the accused, when other evidence was
disbelieved, then it was not enough for conviction. In the
case of "Saifullah v. The State (PLJ 1985 SC 154)" at page
159, it has been observed as under:--
"We have therefore no option but to
exclude the testimony of the afore-mentioned two witnesses from consideration,
with the result that no evidence is left on the record to connect the accused
with the crime in question, as the recovery of the blood stained knife, even if
believed, could only be used as evidence corroborating the testimony of the
eye-witnesses, if any. But since, evidence of the eye-witnesses in this case
has been excluded this recovery is hardly of any use."
7.
It is pointed out that the appeal is barred by 85 days. Since no case
has been made out against the appellant and he is acquitted of the charge,
therefore, for the safe administration of criminal justice, we feel it
appropriate to condone the delay, which is accordingly done.
8.
In the light of what has been discussed above, the prosecution has
failed to prove the case against the appellant beyond reasonable doubt.
Consequently, the appeal was allowed by our short order dated 11.01.2010. These
are the reasons of the said short order, which reads as under:--
"For the reasons to be recorded
later on, while accepting the appeal of the appellant, his conviction and
sentences, recorded by the Courts below, are set aside. He is acquitted of the
charges and be released forthwith, if not required in any other case."
(R.A.) Appeal
allowed.