PLJ 2023 Cr.C. (Note) 197
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Ali Zia Bajwa, JJ.
TAHIR alias
TARA--Appellant
versus
STATE
and another--Respondents
Crl. A.
No. 23645-J & M.R No. 67 of 2019, heard on 19.10.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 374 & 302(b)--Murder
reference--Qatl-e-amd--Motive--Benefit of doubt--Conviction and sentence--If
appellant was arrested then better recourse for prosecution to establish his nexus
with stains over chhuri secured vide recovery memo and last worn
clothes of deceased was to get his DNA Test conducted, which was not done--Even
DNA Test is a merely a corroborative piece of evidence and cannot be considered
as conclusive proof and require corroboration/support from other pieces of
evidence--Next piece of evidence relied upon by prosecution to substantiate its
allegation against appellant is recovery of chhuri--However, when High
Court has already discarded ocular account, in our humble view, recovery is of
no avail to prosecution, case being a corroborative piece of evidence--As far
as motive is concerned, according to contents of crime report appellant used to
instigate deceased to sell narcotics, which was refused by him due to which
appellant committed occurrence--However, while making statement on oath,
complainant frankly conceded that there is no proof of motive--The motive is
considered as a circumstance which might lead to commission of an offence--Once
a specific motive is alleged and that is not proved, prosecution shall have to
face consequences--Appeal allowed. [Para 13,
14 & 15] B, C, D & E
PLD
2010 Lahore 422, PLD 2021 SC 600 & 2010 SCMR 97.
Inordinate delay in lodging FIR--
----Inordinate delay in lodging FIR would mean that occurrence
was un-witnessed. [Para 10] A
2008
SCMR 6.
Benefit of doubt--
----It is cardinal principle of criminal justice system that
for extending benefit of doubt, it is not necessary that there should be
several circumstances, rather one reasonable doubt is sufficient to acquit an
accused--Not as a matter of grace but as of right. [Para 16] F
2021
SCMR 736.
Mr. Kamran Javed Malik, Advocate for Appellant.
Mr. Abdul Rauf Wattoo, Deputy Prosecutor General for State.
Mr. Mujtaba Hassan Tatla, Advocate for Complainant.
Date of hearing: 19.10.2022.
Judgment
Ali Zia Bajwa, J.--Through
this single judgment, we intend to decide Crl. Appeal No. 23645-J/2019 titled ‘Tahir
alias Tara vs. The State’ filed by Tahir alias Tara appellant,
against his conviction and sentence and Murder Reference No. 67/2019 titled “The
State vs. Tahir alias Tara’ forwarded by the learned trial Court under
Section 374, Cr.P.C. for confirmation or otherwise of death sentence awarded to
the convict, as these are arising out of one and the same judgment of the
learned trial Court.
2. Tahir alias Tara son of Muhammad Riaz, caste Qasai,
resident of Mohallah Lal Pura, Rang Pura, Tehsil and District Sialkot
(hereinafter ‘the appellant), was involved in case F.I.R. No. 119/2018, dated
06.03.2018, offence under Section 302, PPC registered with Police Station Rang
Pura, Sialkot. He was tried by learned Sessions Judge, Sialkot (hereinafter
‘trial Court’, under the afore-mentioned offence. Learned trial
Court, seized with the Matter, vide judgment dated
20.03.2019 (hereinafter ‘the impugned judgment), convicted and sentenced
the appellant in the following terms:
Under Section
302(b), PPC, sentenced to death as Ta’zir with direction to pay Rs. 5,00,000/-
as compensation to the legal heirs of the deceased in terms of Section 544-A,
Cr.P.C. to be recovered as arrears of land revenue and in case of default in
payment thereof, to undergo simple imprisonment for six months.
3. The prosecution accusations, in brief, as per contents of
the FIR (Exh.PC/1), lodged on the written application (Exh.PC) of Sh. Alamgir
son of Sheikh Abdul Rasheed (PW-6), are that, on 06.03.2018 at 5:30 am. The
appellant called Usman Ali (hereinafter ‘the deceased’ son of the
complainant at his house for checking the electricity. However, the appellant,
after inflicting repeated chhuri blows cut the jugular vein of the
deceased due to which he died at the spot.
4. After the occurrence, the complainant reached the police
station along with a written application on the basis of which formal FIR was
chalked out by Muhammad Ashraf ASI (PW-4). Thereafter, investigation was
entrusted to Irfan Ashraf, S.I. (PW-9), who reached Civil Hospital, Sialkot. He
inspected the dead body, prepared injury statement (Exh.PI), drafted inquest
report (Exh.PJ), jotted down application for post-mortem examination (Exh.PK)
and handed over the dead body to Muhammad Younis 1791/C (PW-2) for autopsy.
Thereafter, he reached the place of the occurrence and prepared rough site-plan
(Exh.PL). He also secured blood through cotton from the place of murder of the
deceased vide recovery memo Exh.PD. After the post-mortem examination,
last worn clothes of the deceased i.e. gameez (P-1), bunyan (P-2) and shalwar (P-3) were produced
before the Investigating Officer, which he took into possession vide recovery
memo Exh.PA. On the direction of the Investigating Officer and pointing out of
the PWs, on 10.03.18, Bilal Ahmed Bhatti Draftsman (PW-8) took rough notes of
the place of the occurrence and thereafter prepared scaled site-plan (Exh.PH
and Exh.PH/1), which was made part of the file. On 19.03.2018, the appellant
was arrested. During the course of interrogation on 23.03.2018, in pursuance of
his disclosure, the appellant led to the recovery of chhuri (P-7), which
was taken into possession vide recovery memo Exh.PG. The appellant also
got recovered his blood stained clothes viz, Jarsee (P-5) and qameez
(P-6), which were secured vide recovery memo Exh.PE. The last worn
clothes of the deceased, chhuri and blood stained clothes of the
appellant were dispatched to the office of Punjab Forensic Science Agency,
Lahore (PFSA). During the course of investigation, the appellant was found
involved in the crime in question, consequently, report under Section 173,
Cr.P.C. was prepared while placing his name in Column No. 3.
5. After submission of the report under Section 173, Cr.P.C., the learned trial Court formally indicted the
appellant, vide order dated 17.07.2018, to which he pleaded not guilty
and claimed trial. Prosecution, in order to establish its case, produced as
many as nine (9) prosecution witnesses while statement of one Court witness was
also recorded.
6. Ocular account in this case consists of the statements of
Sh. Alamgir (PW-6)/complainant and Abdul Wahab (PW-7). Muhammad Ashraf ASI
(PW-4) chalked out formal FIR and Bilal Ahmed Bhatti Draftsman (PW-8) prepared
scaled site-plan of the place of occurrence. Dr. Usama Anis. (PW-3) conducted
post-mortem examination while investigation in this case was conducted by Irfan
Ashraf S.I (PW-9). Statements of rest of the prosecution witnesses, more or
less, are formal in nature.
7. After completion of the prosecution evidence, statement of
the appellant under Section 342, Cr.P.C. was recorded by the learned trial
Court. The appellant professed his innocence and pleaded false implication in
this case. Upon completion of the trial, the learned trial Court found the
prosecution case having been proved to the hilt against the appellant, thus,
convicted and sentenced him as mentioned and detailed above.
8. Arguments heard, record perused.
9. In this case, prosecution version mainly hinges upon the
ocular medical evidence, recovery and motive. We will re-appraise and
re-evaluate the afore-stated prosecution evidence so as to assess whether learned
trial Court was justified to convict and sentence the appellant while holding
that case against him stood proved beyond shadow of reasonable doubt.
10. While going through the contents of the crime report we
have noticed that according to the prosecution version, the occurrence took
place on 06.03.2018 at 5:30 a.m. while the FIR was lodged at 10:55 a.m. Record
available on the file further reflects that inter-se distance between
the place of the occurrence and the police station was only 1-KM. Moreover, the
complainant (PW-6), who is father of the deceased and Abdul Wahab (PW-7),
son-in-law of the complainant and brother-in-law of the deceased, claim that
the appellant committed the occurrence in their presence. Had the prosecution
witnesses been present at the place of occurrence as claimed by them, they must
have reported the matter to the police promptly. This fact alone creates
serious doubts regarding the authenticity of the prosecution version.
In the case of Akhtar Ali and others vs. The State-2008
SCMR 6 the august Supreme Court of Pakistan held that inordinate delay in
lodging the FIR would mean that the occurrence was un-witnessed. Similar view
was held in Mst. Asia Bibi,[1]
after discussing a plethora of judgments, the Hon’ble Supreme Court of Pakistan
took serious notice of delay in lodging the FIR and held as under:
“If there is any
delay in lodging of a FIR and commencement of investigation, it gives rise to a
doubt, which, of course, cannot be extended to anyone else except to the
accused. Furthermore, FIR lodged after conducting an inquiry loses its
evidentiary value. [see: Iftikhar Hussain and others
v. The State (2004 SCMR 1185)]. Reliance in this
behalf may also be made to the case titled as Zeeshan @ Shani v. The State
(2012 SCMR 428) wherein it was held that delay of more than one hour in lodging
the FIR give rise to the inference that occurrence did not take place in the
manner projected by prosecution and time was consumed in making effort to give
a coherent attire to prosecution case, which hardly proved successful. Such a
delay is even more fatal when the police station, besides being connected with
the scene of occurrence through a metaled road, was at a distance of 11
kilometers from the latter. In the case titled as Noor Muhammad v. The State
(2010 SCMR 97) it was held that when the prosecution could not furnish any
plausible explanation for the delay of twelve hours in lodging the FIR, which
time appeared to have been spent in consultation and preparation of the case,
the same was fatal to the prosecution case. In the case titled as Muhammad Fiaz
Khan v. Ajmer Khan (2010 SCMR 105) it was held that when complaint is filed
after a considerable delay, which was not explained by complainant then in such
situation it raises suspicion as to its truthfulness.”
There is yet another aspect of the case
that according to the statement of the doctor (PW-3), the deceased died
immediately after receiving the injuries. Neither in the FIR nor in the
statements of the prosecution witnesses of the ocular account made during the
course of trial, it stands mentioned that whether the dead body remained lying
at the place of the occurrence or it was evacuated to somewhere else and by
whom. However, it has come in the statement of the Investigating Officer (PW-9)
that after registration of the case he went to Civil Hospital, Sialkot where
the dead body was lying. The whole file is silent how the dead body was
transported to the hospital. This fact further creates doubt about the
authenticity of the prosecution story as mentioned in the crime report and
deposed in the statements of the prosecution witnesses (PW-6 and PW-7).
11. As far as the presence of the prosecution witnesses at the
place of the occurrence at the relevant time is concerned, both, Sh. Alamgir (PW-6)/complainant,
who is unfortunate father of the deceased before whom his young son was
brutally murdered and Abdul Wahab (PW-7), who is brother-in- law of the
deceased, claim to be present at the place of the occurrence at the relevant
time along with Umar Alamgir, real brother of the deceased and Shahid (both
given up) but they opted to remain mere silent spectators and did not try to
save the life of the deceased from the clutches of the appellant rather they
allowed him to inflict as many as sixteen injuries on the person of the
deceased. This fact becomes of much importance when admittedly the appellant
was not armed with any fire-arm.
12. Dr. Usama Anis (PW-3) conducted the post-mortem examination
over the dead body of the deceased. While making statement on oath during the
course of trial, the doctor stated that all the injuries on the person of the
deceased were of different dimensions and were caused by different weapons.
Relevant portion of his statement is reproduced as infra:
“All the injuries
on the person of deceased are of different dimensions. It may be caused due to
use of different weapons.”
This fact itself creates doubts about
the authenticity of the prosecution story that the occurrence was committed by
single accused (appellant). Moreover, as per statement of the doctor (PW-3)
when he conducted the post-mortem examination, the eyes and mouth of the
deceased were semi-open. Relevant extract out of his statement has been
reproduced as under:
“Eyes were semi
opened and mouth was semi opened.”
This fact was also admitted by the
Investigating Officer (PW-9) while making statement during the course of trial
in the following words:-
“During external
examination it is mentioned that mouth and eyes of the deceased were mere semi
opened.”
The above facts suggest that the PWs
were not present at the place of occurrence, at the relevant time, and the dead
body remained unattended, which finds support from the delay in lodging the
FIR. Had they been present over there as claimed by them, they must have
attended the dead body. It was observed in Zahir Yousaf[2]
by the prestigious Supreme Court of Pakistan in Para No. 4 of the judgment
while acquitting the accused as infra:
“We have also noted
that as per the inquest report (Ex.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.”
It was further observed In Asad alias
Diloo vs. The State-2019 YLR 2719 that:
“The post-mortem
report (Ex.6/B) transpires that the mouth and eyes of the deceased were found
half open, which cannot happen in the Presence of eye-witnesses.”
In the aforementioned circumstances, we
are compelled to hold that the presence of the eye-witnesses is highly doubtful
and their evidence cannot be relied upon to sustain the conviction of the
appellant.
13. During the course of the arguments, learned counsel for the
complainant vehemently agitated that stain section obtained from the bunyain
and shalwar of the deceased (2.1 & 3.1) matched with the stains
present on the qameez and jarsi of the appellant (4.1 & 5.1)
as depicted in the Deoxyribonucleic acid (DNA) report available on the record
as Exh.PN. However, perusal of the record available on the file reflects that
the occurrence in this case took place on 06.03.2018 while the appellant was
arrested on 19.03.2018 and allegedly he got recovered his blood stained clothes
on 23.03.2008. It does not appeal to reason that the appellant would keep his
blood-stained clothes, without washing, for fourteen days and then produce it
before the Investigating Officer. Even otherwise, if the appellant was arrested
then better recourse for the prosecution to establish his nexus with the stains
over chhuri secured vide recovery memo Exh.PG and last worn
clothes of the deceased was to get his DNA Test conducted, which was not done.
Even otherwise, DNA Test is a merely a corroborative piece of evidence and
cannot be considered as conclusive proof and require corroboration/support from
other pieces of evidence.[3]
Similar view was held in the judgment of this Court in Khizar Hayat vs.
Additional District Judge, Kabirwala and 2 others PLD 2010 Lahore 422. We
are afraid that there is no material/evidence available on the record to
support the contents of the DNA report (Exh.PN).
14. Next piece of evidence relied upon by the prosecution to
substantiate its allegation against the appellant is the recovery of chhuri.
However, when this Court has already discarded the ocular account, in our
humble view, recovery is of no avail to the prosecution, case being a
corroborative piece of evidence. Respectful reliance is placed upon the
decision of august Court of Pakistan in NAVEED ASGHAR[4]
wherein it was held as under:
“Recovery of weapon
of offence is only a corroborative piece of evidence; and in absence of
substantive evidence, it is not considered sufficient to hold the accused
person guilty of the offence charged. When substantive evidence fails to
connect the accused person with the commission of offence or is disbelieved,
corroborative evidence is of no help to the prosecution as the corroborative
evidence cannot by itself prove the prosecution case.”
Further reliance can be placed on Hayat
Ullah vs. The State – 2018 SCMR 2092, Nasir Javaid and another vs. The
State-2016 SCMR 1144. Muhammad Nawaz and others vs. The State and others
-2016 SCMR 267 and Muhammad Afzal alias Abdullah and others vs. The STATE
and others-2009 SCMR 436.
15. As far as the motive is concerned, according to the
contents of the crime report the appellant used to instigate the deceased to
sell narcotics, which was refused by him due to which the appellant committed
the occurrence. However, while making statement on oath, the complainant
frankly conceded that there is no proof of motive. Relevant extract of his
statement has been reproduced hereinafter:-
“It is correct that
there is no proof of motive as such I could not produce any proof that the
accused had ever persuaded the deceased to sell the narcotics.”
The motive is considered as a
circumstance which might lead to the commission of an offence. Once a specific
motive is alleged and that is not proved, the prosecution shall have to face
the consequences. Reference in this regard can be made to the judgment of
august Supreme Court of Pakistan in Noor Muhammad (2010 SCMR 97).
16. In the foregoing facts and circumstances, it is crystal
clear that the prosecution has not been able to bring on the record any
convincing and cogent evidence to establish that it was the appellant who
committed the crime in question. It is cardinal principle of criminal justice
system that for extending the benefit of doubt, it is not necessary that there
should be several circumstances, rather one reasonable doubt is sufficient to
acquit an accused. Not as a matter of grace but as of right.[5]
17. In consequence of the aforementioned discussion, Crl.
Appeal No. 23645-J/2019 filed by the appellant is allowed,
resultantly impugned judgment passed by the learned trial Court is set
aside and the appellant is acquitted of the charge. The
appellant is directed to be released forthwith provided he is not required, to
be detained, in any other criminal case.
18. Murder Reference No. 67/2019 forwarded by the learned trial
Court is answered in the negative. Death Sentence is not
confirmed.
(A.A.K.) Appeal allowed
[1]. Mst. ASIA BIBI vs. The
STATE and others - PLD 2019 SC 64.
[2]. ZAHIR YOUSAF and another vs. The STATE and another - 2017 SCMR 2002.
[3]. SALMAN AKRAM RAJA and another vs.
GOVERNMENT OF PUNJAB through Chief Secretary, Civil Secretariat, Lahore and
others - PLJ 2013 SC 10.
[4]. NAVEED ASGHAR and 2
others vs. The STATE-PLD 2021 SC 600.
[5]. Najaf Ali Shah vs. The State-2021 SCMR 736
and The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others-
2021 SCMR 873.