PLJ 2024 Cr.C. 252 (DB)
[Lahore High Court, Lahore]

Present: Shehram Sarwar Ch., and Ali Zia Bajwa, JJ.

KHALIL AHMAD & 2 others--Appellants

versus

STATE--Respondent

Crl. A. No. 78847-J, M.R. No. 375 of 2019, heard on 14.9.2023.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b) & 148--Murder reference--Conviction and sentence--Ocular account--Motive--Medical evidence--Delay in post-mortem--Benefit of doubt--Presence of eye-witnesses at place of occurrence at relevant time becomes further doubtful, considering fact that although it was claimed by prosecution that PWs had gone to fields of their brother, however, no evidence whatsoever was brought on record that for what purpose prosecution witnesses had approached place of occurrence at early hours of day--Though mere relationship of prosecution witnesses with deceased is no ground to discard their evidence provided same is straightforward and confidence-inspiring but Court, as a matter of caution, should seek corroboration from other independent evidence available on record--Insistence on corroboration is not a rule of law but of prudence--It knocks mind of Court that if assailants were so furious and desperate to commit occurrence, why they spared prosecution witnesses, who were none else but real brothers and cousin of deceased--All above facts clearly suggest that had prosecution witnesses been present at place of occurrence, they must have not been left unhurt by Appellants--Held: Medical evidence is in conflict with ocular account and keeping in view pronouncements of Superior Courts of country on subject, benefit of this conflict will go in favor of appellants--It is established principle of law 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.                                                             [P. 257, 258] B, C, D, E & H

2010 SCMR 1791, 2014 SCMR 1197 & 2021 SCMR 736.

Delay in Post-Mortem--

----It is settled law by now that delayed postmortem leads to an inference that FIR was got lodged at a belated stage and time was consumed in deliberations and consultations qua implication of accused persons and planting eyewitnesses.                                                                                         [P. 257] A

2020 SCMR 192.

Motive--

----Principle of law--It is cardinal principle of law that motive is always considered as a double edged weapon--At one hand, if it gives a reason or motivation to accused to corimit crime, on other hand, it equally provides impetus to complainant to falsely implicate accused in case to satisfy lust of rivalry.    [P. 259] F

2019 SCMR 652.

Motive--

----Proposition of law--It is an established proposition of law that motive is not substantive piece of evidence rather same is merely a circumstance, which might lead accused to commit occurrence.           

                                                                                             [P. 259] G

2007 SCMR 486.

M/s. Rana Imtiaz Hussain, Rai Bashir Ahmad and Shahid Rafique Meo, Advocates for Appellants.

Mr. Sultan Akbar Chattha, Deputy Prosecutor General for State.

Mr. Muhammad Ahsen Nizami, Advocate for Complainant.

Date of hearing: 14.9.2023.

Judgment

Ali Zia Bajwa, J.--Through this single judgment, We intend to decide Crl. Appeal No. 78847-J/2019 titled ‘Khalil Ahmad and 2 others vs. The State’ filed by Khalil Ahmad, Amanat Ali and Akbar appellants and Murder Reference No. 375/2019 titled ‘The State vs. Khalil Ahmad forwarded by the trial Court under Section 374 Cr.P.C. for confirmation or otherwise of death sentence awarded to the convict/Khalil Ahmad, as these are arising out of one and the same judgment dated 21.10.2019 (hereinafter ‘the impugned judgment’), passed by Additional Sessions Judge/Judge MCTC. Kasur (hereinafter ‘trial Court’).

2. Khalil Ahmad son of Sardar, Amanat Ali son of Charagh and Akbar son of Shahbaz, all Dogar by caste and residents of Village Ganda Singh Wala, Kot Radha Kishan, District Kasur (hereinafter ‘the appellants) along with co-accused namely Younas, Shahbaz. Charagh and Muhammad Ashraf alias Bhola (all since acquitted), Yahya and Ibrahim (both since P.Os) were implicated in case F.I.R. No. 336/2018, dated 04.06.2018, offences under Sections 302, 148 & 149, PPC registered with Police Station Kot Radha Kishan, District Kasur. Being aggrieved with the investigation carried out by the local police, the complainant preferred to file a direct complaint against the accused persons titled “Ihsan vs. Amanat Ali, etc.” Under Sections 302, 148 & 149, PPC.

3. On filing of complaint, trial Court recorded preliminary/ cursory statements of the prosecution witnesses and issued process against the accused/respondents. They were tried by the trial Court under the afore mentioned offences. Trial Court seized with the matter, vide the impugned judgment, acquitted aforesaid co-accused whereas convicted and sentenced the appellants as under:-

Sr. #

Name of the appellant

Conviction & Sentence

1

Khalil Ahmad

Ø   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 Yaqeen Ali, in terms of Section 544-A, Cr.P.C., and in case of default in payment thereof, to undergo simple imprisonment for six months.

Ø   Under Section 148, PPC, sentenced to undergo rigorous imprisonment for two years.

2

Akbar

Ø   Under Section 302 (b)/149 PPC, sentenced to undergo imprisonment for life as Ta’zir with direction to pay Rs. 3,00,000/-as compensation to the legal heirs of the deceased Muhammad Irfan, in terms of Section 544-A, Cr.P.C., and in case of default in payment thereof, to further undergo simple imprisonment for six months

Ø   Under Section 148, PPC, sentenced to undergo rigorous imprisonment for two years.

3

Amanat Ali

Ø   Under Sections 302(b)/149, PPC, sentenced to undergo imprisonment for life as Ta’zir with direction to pay Rs. 3,00,000/-as compensation to the legal heirs of the deceased Muhammad Irfan, in terms of Section 544-A, Cr.P.C., and in case of default in payment thereof, to further undergo simple imprisonment for six months.

Ø   Under Section 148 PPC, sentenced to undergo rigorous imprisonment for two years.

Ø   The sentences awarded to Akbar and Amanat Ali appellants were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in their favour.

4. The prosecution theory of the case as given in the impugned judgment has been reproduced as under:

“... that there is enmity between them and Charagh s/o Mandha. Their land is near the land of Charagh where the maize corp was ripe. On 4.6.2018 at about 6:00 am his brother Muhammad Irfan had gone to maize crop for harvesting and supervision along with their servant Yaqeen Ali s/o Muhammad Ramzan while riding on motor cycle where accused Charagh and Shahbaz due to previous enmity were present. Accused Yahyah, Ibrahim, Akbar, Amanat, Younas, Khalil and Ashraf alias Bhola while armed with fire arms were present. On raising Lalkara raised by accused Charagh and Shahbaz, accused Yahyah made fire shot with his rifle which landed on the left side of head of Irfan. Accused Ibrahim made fire shot with his rifle which landed near the testis of Irfan on right side. Accused Akbar made fire shot with his rifle which hit on the left and right hip joint of Irfan. Thereafter accused Amanat made fire shot with his rifle which hit Irfan on the back of his left hand. Then accused Younas made fire shots with his rifle which landed on near the right thigh of Irfan. Accused Yahyah made fire shot with his rifle which landed on the back side of his right thigh. Then accused Khalil while armed with rifle fired at Yaqeen Ali which landed on his chest. The occurrence was witnessed by Ihsan Ali, Muhammad Jamil, Abdul Ghafoor and Muhammad Saleem. Irfan succumbed to the injuries at the spot whereas YaqeenAlie died in the way while they were taking him for first aid.

2 The complainant narrated the motive that there was previous enmity between the complainant and the accused persons, therefore they have committed the murders of their servant Yaqeen Ali and Irfan.”

5. The complainant in order to establish his case produced six (6) prosecution witnesses. Trial Court also recorded statements of ten (10) Court witnesses. After completion of the prosecution evidence, statements of the appellants as envisaged under Section 342, Cr.P.C. were recorded by the trial Court, who professed their innocence and pleaded false implication in this case. Upon completion of the trial, the trial Court found the prosecution case having been proved to the hilt, thus, convicted and sentenced the appellants as mentioned and detailed above. However, Younas, Shahbaz, Charagh and Muhammad Ashraf alias Bhola co-accused were acquitted of the charges.

6. We have heard the arguments advanced by learned counsel for both sides and perused the record available on file.

7. In order to establish its case the prosecution led evidence in the shape of ocular account, medical evidence, recovery and motive.

8. Ocular account in this case was furnished by the prosecution through the statements of Muhammad Ehsan complainant (PW-1), Abdul Ghaffar (PW-2) and Muhammad Saleem (PW-3). PW-1/ complainant and PW-3 are real brothers inter-se as well as of the Mohammad Irfan deceased while PW-2 is their cousin, As far as presence of the prosecution witnesses at the place of occurrence at the relevant time is concerned, all of them claimed that they along with both the deceased were present at the place of occurrence and in their presence the appellants along with their co-accused made firing upon the deceased. According to the prosecution version, the occurrence took place at 6:00 a.m. and soon thereafter the complainant reached the police station where on his application, FIR was chalked out by Shoukat Ali, SI. (CW-1). Thereafter investigation was entrusted to Ghulam Abbas, A.S.I. (CW-9), Incharge Homicide of Police Station Kot Radha Kishan who reached the place of occurrence and after completing police papers, he dispatched the dead bodies to mortuary. Record available on the file further reflects that, as per statement of the doctor (CW-5), the dead body of Muhammad Irfan deceased was received in the mortuary at 11:00 am, while dead body of Yaqeen Ali deceased was received there at 2:00 p.m. Police papers in respect of both the dead bodies were received at 5:00 p.m. i.e, with a delay of eleven hours of the occurrence. After conducting the post-mortem examination, the doctor opined that probable duration between the death and the postmortem examination was about eight to twelve hours. This aspect straightway raises serious question qua the presence of the eyewitnesses at the spot. It is settled law by now that delayed postmortem leads to an inference that the FIR was got lodged at a belated stage and the time was consumed in deliberations and consultations qua the implication of the accused persons and planting the eyewitnesses. In Sufyan Nawaz[1] while extending the benefit of doubt on the ground that autopsy was ‘carried out with a delay of ten hours, Supreme Court of Pakistan observed that such delay creates serious doubts qua the presence of the eyewitnesses at the place of occurrence, Relevant extract of the judgment has been reproduced hereinafter:

“As per postmortem examination report, autopsy on the dead body of Kabeer Ahmad was conducted on 24.10.2005 at 10.00 p.m. The unexplained delay of about ten hours in autopsy of Kabeer Ahmad (deceased) alone creates dent in the prosecution story so far as presence of eye-witnesses at the place of occurrence is concerned”

9. Presence of the eye-witnesses at the place of occurrence at the relevant time becomes further doubtful, considering the fact that although it was claimed by the prosecution that the PWs had gone to the fields of their brother, however, no evidence whatsoever was brought on the record that for what purpose the prosecution witnesses had approached the place of occurrence at early hours of the day.

10. Admittedly the ocular account in this case consists of the statements of close relatives as complainant and PW-3 are real brothers inter-se as well as of Muhammad Irfan deceased while PW-2/Abdul Ghaffar is their cousin. As discussed above, the eye-witnesses could not establish any plausible justification for their presence at the place of occurrence at the relevant time, therefore, at the most they can be dubbed as related and chance witnesses. Though mere relationship of the prosecution witnesses with the deceased is no ground to discard their evidence provided the same is straightforward and confidence-inspiring but Court, as a matter of caution, should seek corroboration from the other independent evidence available on the record. Insistence on corroboration is not a rule of law but of prudence.[2] In Mst. Shazia Parveen[3] the Supreme Court of Pakistan observed as under:-

“All the eye-witnesses produced by the prosecution were closely related to the deceased and they were admittedly chance witnesses who had failed to bring anything on the record to establish the stated reason for their availability near the deceased at the relevant time”

During the course of trial the prosecution tried to establish that the prosecution witnesses had witnessed the occurrence from a close range. Although according to the prosecution version, the appellants were so callous that they made repeated fire shots upon both the deceased, however, surprisingly they let off the complainant (having similar pedestal of rivalry), PW-2 and PW-3 unhurt, who witnessed the occurrence. It knocks mind of the Court that if the assailants were so furious and desperate to commit the occurrence, why they spared the prosecution witnesses, who were none else but real brothers and cousin of the deceased. All the above facts clearly suggest that had the prosecution witnesses been present at the place of occurrence, they must have not been left unhurt by the appellants.[4]

11. According to the statement of the draftsman (CW-7), who prepared scaled site plan (Exh.CW-7/1) the firing was made from a distance of 13-karam. Dr. Muhammad Javaid (CW-5) conducted the postmortem examination over the dead bodies, who observed black margins at the point of Injury No. 1-A on the person of Yaqeen Ali deceased and Injury No. 2-A on the person of Muhammad Irfan deceased. Moreover, according to contents of the crime report, private complaint as well as statement of the complainant. Younas co-accused (since acquitted and no appeal against his acquittal was filed) made a fire shot with his rifle, which landed at the right buttock of Muhammad Irfan deceased, which was found as an exit wound. Thus, it is crystal clear that the medical evidence is in conflict with the ocular account and keeping in view the pronouncements of the Superior Courts of the country on the subject, benefit of this conflict will go in favor of appellants. Reliance is placed upon the the decision of Najaf Ali Shah[5] wherein it was ruled by the Supreme Court of Pakistan as infra:

“9. ... once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused”

Further reliance can be placed on Abdul Jabbar and another vs. The State 2019 SCMR 129.

12. Another piece of evidence led by the prosecution against the appellants is the recovery of rifle 44-bore (P-8) on the pointing out of Amanat Ali appellant, rifle .44-bore (P-9) on the pointing out of Younas appellant while Kalashnikov (P-10) on the pointing out of Akbar appellant. Those were sent to the office of Forensic Science Laboratory, however, they didn’t match with the crime empties collected from the place of occurrence. Therefore, the recoveries lend no corroboration to the prosecution case, which is founded on the evidence of related and chance witnesses while medical evidence is also in conflict with the ocular account on the basis of which co-qecused namely Muhammad Younas had already been acquitted and such acquittal was not challenged by the prosecution.

13. As far as the motive is concerned according to the prosecution version it was alleged that there was previous enmity between both sides. While appearing in the dock on oath, all the prosecution witnesses admitted that the complainant and his deceased brother Muhammad Irfan as well as other relatives were involved in number of criminal cases and in FIR No. 99/2013, under Section 302, PPC, registered at Police Station Kot Radha Kishan, District Kasur, Muhammad Yahya and Ibrahim co-accused were cited as eyewitnesses against them. Even the complainant and Muhammad Irfan deceased were convicted by Additional Sessions Judge, Kasur in one case. It is cardinal principle of law that motive is always considered as a double edged weapon. At the one hand, if it gives a reason or motivation to the accused to commit the crime, on the other hand, it equally provides impetus to the complainant to falsely implicate the accused in the case to satisfy the lust of rivalry. Guidance is sought from the decision of Supreme Court of Pakistan in Muhammad Ashraf alias Acchuu.[6] Moreover it is an established proposition of law that motive is not substantive piece of evidence rather same is merely a circumstance, which might lead the accused to commit the occurrence. Reliance in this regard can be placed on Akbar Ali.[7]

“6 ... It is also a settled law that the existence of motive/enmity is neither a substantive nor a direct evidence. It is not corroborative piece of evidence either. The motive/enmity is only a circumstances which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstances it can be taken as an evidence. Further motive/ enmity is a double-edged weapon Offence may be perpetrated because of the existence of the motive/enmity and it can also be a basts of a false charge ...”

14. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. It is established principle of law 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. Respectful reliance can be placed on catena of judgments of apex Court.[8] The Supreme Court of Pakistan in Najaf Ali Shah vs. The State 2021 SCMR 736 observed as infra:

“It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner.”

Same principle was reiterated in a celebrated judgment of the Supreme Court of Pakistan in The State through P.G. Sindh and others vs Ahmed Qmar Sheikh and others-2021 SCMR 873 in the following terms:

“Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation”

15. In consequence of the aforementioned discussion, Crl. Appeal No. 78847-J/2019 is allowed. Resultantly, impugned judgment, passed by the trial Court, is set aside and the appellants are acquitted of the charge. They are directed to be released forthwith if not required in any other case.

16. Murder Reference No. 375/2019 forwarded by the trial Court in terms of Section 374, Cr.P.C. for confirmation of death sentence awarded to Khalil Ahmed convict fails, which is answered in negative. Death sentence is not confirmed.

(A.A.K.)          Appeal allowed

 


[1].       Sufyan Nawaz and another v. State and others-2020 SCMR 192.

[2].       Anwar Shamim and another vs. The State-2010 SCMR 1791.

[3].       Mst. Shazia Parveen vs. The State-2014 SCMR 1197.

[4].       Muhammad Farooq and another vs The State-2006 SCMR 1707.

[5].       Najaf Ali Shah vs The State-2021 SCMR 736.

[6].       Muhammad Ashraf alias Acchu vs. The State-2019 SCMR 652.

[7].       Akbar Ali vs. The State-2007 SCMR 486.

[8].       Muhammad Mansha v. The State -2018 SCMR 772, The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others -2021 SCMR 873, Naveed Asghar and 2 others vs. The State -PLD 2021 SC 600 & Ayub Masih v. The State -PLD 2002 SC 1048.