Benefit of doubt , delay in FIR , evidence was not reliable . 302 Appeal accused person was acquitted .
Stereo. H C J D A 38
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Criminal Appeal No.24464-J of 2021
Muhammad Arshad & others Versus The State
Date of Hearing
06.06.2024
Appellant Muhammad Arshad
by:
M/s Rashid Javed Lodhi, Ali Hussain,
Muhammad Adnan Malik and Hafiz
Sami-ur-Rehman, Advocates.
Appellants Maqsood Ahmad and
Mudassar in person and by
Mr. Khurshid Anwar Bhindar,
Advocate.
Complainant by:
Nemo.
State by:
Ms. Samra Irshad, Assistant District
Public Prosecutor.
=======
Shakil Ahmad, J. Muhammad Arshad, Mudassar and
Maqsood Ahmad appellants have preferred the instant Criminal Appeal
through jail authorities, to challenge their conviction and sentences. They
were indicted and tried by the learned Additional Sessions Judge, Depalpur
along with co-accused Muhammad Din, Akram and Haq Nawaz on the
charge under sections 302, 364, 109, 148, 149 PPC in private complaint
titled Muhammad Hussain vs. Muhammad Arshad and 05-others relating to
case FIR No.279 of 2014 dated 12.08.2014 registered at Police Station
Mandi Ahmadabad, District Okara. Learned trial court, on conclusion of trial
vide judgment dated 27.03.2021 (impugned judgment) convicted the
appellants and sentenced them as under: -
Appellant Muhammad Arshad: -
(i)
Convicted under Section 302(b) PPC and sentenced to
undergo imprisonment for life and to pay compensation
under section 544-A Cr.P.C. to the tune of Rs.4,00,000/- to
legal heirs of the deceased and in case of default, to further
undergo simple imprisonment for six months.
(ii)
Convicted under Section 364 PPC and sentenced to
undergo rigorous imprisonment for ten years and to pay
Crl. Appeal No.24464 –J of 2021
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fine of Rs.100,000/- and in case of default, to further
undergo simple imprisonment for three months.
Appellant Muhammad Maqsood Ahmad:-
Convicted under Section 364 PPC and sentenced to undergo
rigorous imprisonment for ten years and to pay fine of
Rs.100,000/- and in case of default, to further undergo simple
imprisonment for three months.
Appellant Mudassar:-
Convicted under Section 364 PPC and sentenced to undergo
rigorous imprisonment for ten years and to pay fine of
Rs.100,000/- and in case of default, to further undergo simple
imprisonment for three months.
Co-accused Muhammad Din, Akram and Haq Nawaz were acquitted of the
charge vide impugned judgment. Acquittal order of the said co-accused has
not been challenged by the complainant and the same has attained finality.
2.
Muhammad Hussain
(PW-1) moved an application
(Exh:PA) on 12.08.2014 before Station House Officer, Police Station
Mandi Ahmadabad stating therein that he was cultivator by profession and
his son Muhammad Amjad was doing labour in Lahore; that on 07.08.2014
at night time his son Muhammad Amjad reached at
Mandi Ahmadabad after returning from Lahore and owing to his inability to
find any conveyance from Mandi Ahmadabad due to his late arrival, he
proceeded by foot towards the house of his sister situated at
Chah Doney-wala and when his son reached near Head Doney-wala,
accused persons namely Muhammad Arshad, Maqsood Ahmad, Mudassar
along with two unknown persons while armed with firearm weapons riding
on motorcycles came there and encircled his son; that his son Muhammad
Amjad, in order to save his life, raised hue and cry, on which, Muhammad
Ameer son of Muhammad Yar, Mubashar Ali son of Muhammad Zubair,
Wattoo by caste and residents of Chah Doney-wala attracted there while
having torches in their hands and accused persons abducted Muhammad
Amjad with intention to kill him and took him on a motorcycle towards
Crl. Appeal No.24464 –J of 2021
3
Attari and the witnesses, above said, informed the complainant, whereupon
the complainant convened a Punchayat for recovery of his son from the
accused persons but they delayed the matter and did not return Muhammad
Amjad; that on 12.08.2014, complainant gained a clue that his son
Muhammad Amjad was confined in the house of Haq Nawaz accused
whereupon complainant along with Nawab Ali son of Wali Muhammad and
Muhammad Zubair son of Jan Muhammad, residents of the village, reached
at Fajar time at the house of accused Haq Nawaz situated at Sufaid Chowki
in the area of Saddar Bala and saw that Maqsood Ahmad, Mudassar,
Haq Nawaz and two unknown accused were torturing his son by holding
him from legs and arms whereas accused Arshad with Safa had tied phanda
around the neck of complainant’s son and pressed his neck; that on seeing
the complainant and witnesses, accused persons fled away from the spot
considering complainant’s son as dead; that complainant and witnesses
rescued his son but he succumbed to the injuries; that complainant and
witnesses had witnessed the occurrence. Motive of the occurrence was stated
to be previous enmity. It was further alleged that the occurrence was
committed by the accused persons on the instigation of Muhammad Din and
Muhammad Akram.
3.
After registration of case, investigation was conducted by
Maqbool Hussain Inspector (CW-5) who claimed to have reached at
Attari Patan where dead body of Muhammad Amjad was lying on a cot; he
inspected the dead body, prepared the injury statement Exh.CW-5/A, inquest
report Exh.CW-5/B and application for post mortem Exh.CW-5/C and sent
the dead body for autopsy through Muhammad Amin 177/C. CW-5 claimed
to have inspected the place of occurrence on the pointation of complainant
and PWs, recorded statements of PWs u/s 161 Cr.P.C, prepared unscaled site
plan of place of abduction of Muhammad Amjad Exh.CW-5/D and on the
same day he also proceeded towards the residence of Rehmat Ali father of
Haq Nawaz accused and prepared unscaled site plan of place of occurrence
Exh.CW-5/E. CW-6 stated to have took into possession last worn clothes of
deceased vide recovery memo Exh.CW-1/A. The Investigator claimed to
Crl. Appeal No.24464 –J of 2021
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have made red notes on scaled site plan Exh.CW-4/A and Exh.CW-4/B.
After transfer of this Investigator from the Police Station, investigation of
the case was entrusted to Muhammad Munir S.I (CW-6) who claimed to
have joined into investigation the accused persons Muhammad Akram and
Haq Nawaz and held in abeyance their arrest. The second investigator
claimed to have received Call Data Record of phone number of deceased
Muhammad Amjad and conducted investigation on this point. CW-6 was of
the opinion that accused persons Muhammad Arshad, Mudassar, Maqsood
Ahmad, Haq Nawaz, Muhammad Din and Muhammad Akram were found
not involved in the occurrence.
4.
Being dissatisfied by the result of investigation, complainant
filed private complaint Exh:PB asserting therein the version narrated in
application Exh.PA regarding whole occurrence. After recording of cursory
statements of PWs, accused were summoned to face trial. Appellants
along with co-accused were indicted. They pleaded not guilty, thus trial
commenced.
5.
In order to prove the charge, complainant examined as many as
six PWs whereas
six witnesses were examined as CWs.
Muhammad Hussain (PW-1) is complainant of the case. Muhammad Ameer
(PW-2) and Mubashar Ali (PW-3) are witnesses of alleged abduction.
Muhammad Zubair (PW-4) and Nawab Ali (PW-5) are witnesses of ocular
account. Sarfraz (CW-1) claimed to have got conducted post mortem
examination of the deceased and handed over the last worn clothes to the
Investigator. Muhammad Nawaz 190/HC (CW-2), Khursheed Alam ASI
(CW-3) are formal witnesses. Muhammad Ishaq Nasir Draftsman (CW-4)
claimed to have prepared scaled site plan. Maqbool Hussain Inspector
(CW-5) and Muhammad Munir S.I (CW-6) are investigators of the case.
Medical evidence was furnished by Dr. Saad Ali Khan (PW-6),
who conducted postmortem examination on the dead body of Muhammad
Amjad on 12.08.2014 at 10:00 P.M and observed following injuries on the
dead body: -
1.
Contusion 6 x 2 cm at right side of the neck.
Crl. Appeal No.24464 –J of 2021
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2.
Contusion 4 x 3 cm at left eye.
3.
Abrasion 2 x 1 cm at back of right elbow joint.
4.
Abrasion 1 x 1 cm at back of left elbow joint.
5.
Contusion 3 x 1 cm at right upper gums just above
the right canine teeth.
6.
Contusion 1 x1 cm at bridge of nose.
Opinion. According to PW-6, cause of death was
asphyxia resulting from strangulation due to injury No.1
which was sufficient to cause death in an ordinary course
of nature. Probable time between injuries and death was
kept under observation whereas between death and
postmortem was within 18 to 20 hours.
6.
Witness Muhammad Nawaz was given up being unnecessary
and complainant’s evidence was closed. Thereafter, statements of appellants
and co-accused were recorded under Section 342 Cr.P.C. They controverted
and denied the allegations of facts came on the record in the evidence of
prosecution witnesses and professed their innocence. Appellants did not opt
to appear in the witness box as per Section 340(2) Cr.P.C and except
appellant Muhammad Arshad, also not opted to produce defence evidence.
Appellant Muhammad Arshad has produced some documents in his defence.
7.
On conclusion of trial, appellants were convicted and sentenced
whereas co-accused Muhammad Din, Akram and Haq Nawaz were acquitted
of the charge as detailed in the opening paragraph of this judgment, hence
this appeal.
8.
I have heard learned counsel for the appellants and learned
Assistant District Public Prosecutor and have gone through the record with
their able assistance.
9.
Prosecution has introduced two different episodes of incidents
that ultimately resulted in murder of complainant’s son Muhammad Amjad.
First incidence is alleging abduction of Muhammad Amjad by
Muhammad Arshad, Maqsood, Mudassar and two unknown persons at 09:00
P.M on 07.08.2014 when he was going to Chah Doney-wala. The second
episode presents the happening that culminated in the murder of Muhammad
Crl. Appeal No.24464 –J of 2021
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Amjad by accused persons namely Maqsood Ahmad, Mudassar, Haq
Nawaz, Muhammad Arshad and two unknown persons. The second episode
was claimed to have been witnessed by complainant Muhammad Hussain
(PW-1) along with Nawab Ali and Muhammad Zubair PWs. Before entering
into the appraisal of prosecution evidence on both two accounts as hinted in
the preceding lines, it seems apt to first of all discuss an important aspect of
the matter relating to non-presence of complainant at the spot when first
incident took place. The initial lines of the FIR as well as private complaint
whereby Muhammad Amjad (deceased) was shown to be returning from
Lahore on 07.08.2014 and his inability to find any conveyance from Mandi
Ahmadabad due to his late arrival there, his decision to proceed by foot
towards the house of his sister situated at Chah Doney-wala and reaching at
Head Doney-wala at about 09:00 P.M and arrival of accused persons
Muhammad Arshad, Maqsood Ahmad, Mudassar and two unknown persons
duly armed with firearms on motorcycles and their encircling of Muhammad
Amjad and raising of noise by Muhammad Amjad, is a narration qua which
whole evidence of the prosecution is silent as to from which source and
mode same came into the know of complainant when from the bare reading
of application for registration of F.I.R. or even the contents of private
complaint it stood established that he did not either witness those happenings
nor he claimed to have received information qua pre-abduction happenings
from anyone including the abductee either personally or through any
telephonic message/conversation. In this backdrop, the mentioning of the
above hinted narration in the FIR, appears to be a cock and bull story or to
say the least, a fictional account.
10.
Taking up now the worth of prosecution evidence qua the
abduction of Muhammad Amjad on 07.08.2014 it has been observed that as
per the case put forth by complainant, Muhammad Amjad was going by foot
to the house of his sister at Chah Doney-wala from Mandi Ahmadabad and
when he reached ahead of Head Doney-wala, five persons viz., Muhammad
Arshad, Maqsood Ahmad, Mudassar and two unknown, armed with
firearms, came there on motorcycles and they encircled Muhammad Amjad
Crl. Appeal No.24464 –J of 2021
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and the latter raised noise to save his life, whereupon Muhammad Ameer
(PW-2) and Mubashar Ali (PW-3) attracted there while having torches and
on seeing them, accused persons abducted Muhammad Amjad with intention
to kill him and took him on a motorcycle towards Attari and the above said
witnesses claimed to have informed the complainant, whereupon the
complainant convened Punchayat for recovery of his son from the accused
persons but they delayed the matter and did not return Muhammad Amjad.
Undeniably, the complainant having received so called information qua
abduction of his son, did not report the matter to police and instead he
claimed to have convened Punchayat. Non-reporting of the matter by
complainant to police is simply beyond one’s comprehension as if
complainant’s son in fact was abducted in the way as detailed in the F.I.R.
and private complaint, normal and natural course available to complainant
was to immediately report the matter to police in order to save the life of his
son particularly when as per complainant’s own version there existed
previous enmity between the parties. Nothing plausible has been put forth by
the complainant for not resorting to the appropriate mode of approaching the
police for the recovery of his son. Explanation so put forth by complainant
qua convening of punchayat hardly furnishes any plausible and reasonable
ground for not reporting the matter to police. It may also be seen that in the
complaint, no time whatsoever has been mentioned when PWs Muhammad
Ameer and Mubashar Ali shown to have informed the complainant about the
abduction of his son. While appearing in the witness box as PW-2, Ameer
Ali in his examination-in-chief stated that they informed the complainant
while reaching his home. This assertion of PW-2, however, was contradicted
by Mubashar Ali (PW-3) in his cross-examination by stating that they told
the matter to a passerby and the passerby informed the complainant about
the abduction of his son. It may also be seen that as per own showing of
complainant and his witnesses, Mubashar Ali (PW-3) is very close relative
of the complainant whereas Ameer Ali PW-2 is from brotherhood of
Mubashar Ali. Both these PWs made certain improvements in their
statements which were alien to their earlier narrations before police. The
Crl. Appeal No.24464 –J of 2021
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improvements made by these PWs were duly confronted to them during
cross-examination. The contents of complaint nowhere indicate that in the
entire episode of abduction of Muhammad Amjad, he was subjected to
physical torture by the accused persons. Mubashar Ali (PW-3) in his crossexamination, however, stated that Muhammad Amjad was also tortured by
the accused persons. He stated that Muhammad Amjad was being beaten up
by the accused for around four minutes. He also introduced a new stance by
stating that Sota blows and Butt blows were received by Muhammad Amjad.
This whole narration qua physical torture on Muhammad Amjad by accused
persons during his alleged abduction, at one hand is in conflict with the
contents of complaint and on the other a weapon like Sota has also been
introduced which nowhere finds mention in the complaint. Another
important discrepancy in the prosecution case that needs to be hinted is that
according to the contents of complaint, when Muhammad Ameer and
Mubashar Ali PWs attracted to the spot, on seeing them accused persons
abducted Muhammad Amjad and took him towards Attari. However,
complainant (PW-1) in his examination-in-chief introduced an altogether
strange version that PWs (Muhammad Ameer and Mubashar Ali) identified
the accused persons and warned them whereupon accused persons extended
them threats. It would not be out of context to mention here that according to
the contents of complaint, Muhammad Hussain complainant when received
information from Muhammad Ameer and Mubashar Ali qua abduction of his
son, he convened Punchayat for recovery of his son. In his examination-inchief, complainant PW-1 however introduced a different version by stating
that he demanded return of his son from Asghar son of Kareem in presence
of Muhammad Ameer and Mubashar Ali PWs and he four times demanded
return of his son from accused persons through Punchayat. It may also be
seen that as per prosecution’s case, Muhammad Ameer and Mubashar Ali
PWs were shown to have attracted to the spot when Muhammad Amjad
raised noise to save his life as he was encircled by five duly armed accused
persons owing to previous enmity. The venue reflected by the prosecution as
the place where Muhammad Amjad was abducted by the accused persons, as
Crl. Appeal No.24464 –J of 2021
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per own showing of PWs, was at a distance of around three acres from the
abode of PWs Muhammad Ameer and Mubashar Ali. Undeniably, 20-25
houses of other people were also situated near the place of alleged abduction
but strangely enough, nobody except Muhammad Ameer and Mubashar Ali
(both related to complainant) was shown to have attracted to the spot on
hearing the noise raised by Muhammad Amjad.
11.
In view of the discrepant version of the complainant and PWs
as discussed in detail in the preceding two paragraphs, this Court is of the
considered view that the first episode of crime introduced in this case qua
abduction of Muhammad Amjad by the accused persons on 07.08.2014 in
presence of Muhammad Ameer (PW-2) and Mubashar Ali (PW-3) is a
highly doubtful affair and is not proved through confidence inspiring
evidence.
12.
Coming now to the second episode of occurrence whereby
Muhammad Amjad son of the complainant was shown to have been done to
death by accused persons on 12.08.2014, as discussed in the preceding
paragraphs, the matter qua alleged abduction of complainant’s son was not
reported to police prior to 12.08.2014. It was claimed by the complainant
that on 12.08.2014, he received a clue that his son was confined in house of
Haq Nawaz accused situated in Dhari Rehmat Ali Daakhli Saddar Bala
Chowki Sufaid, whereupon he along with Nawab Ali and Muhammad Zubair
PWs reached the said place at Fajar time and saw that Maqsood Ahmad,
Mudassar, Haq Nawaz and two unknown accused had overpowered
Muhammad Amjad and they were torturing him whereas Muhammad
Arshad had strangulated Muhammad Amjad with a cloth (Safa). The entire
case of prosecution is silent as to from where the complainant received
information that his son was confined in the house of Haq Nawaz. Likewise,
none of the accused was shown to have been armed with any kind of weapon
when they were inflicting torture and ultimately murdered Muhammad
Amjad, yet no attempt whatsoever was shown to be made by the
complainant or the PWs, who undeniably were closely related to the
deceased, to save the life of Muhammad Amjad by practically restricting
Crl. Appeal No.24464 –J of 2021
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assailants or to the least making any sort of earnest supplication to the
accused persons. It is also strange to note that when complainant as per his
own version was aware of the fact qua the abduction of his son by the
accused persons with whom he had previous animosity and he came to know
about the presence of his son at a certain place, why did he not report the
matter to police to take police officials with him to rescue his son, is a
question that at one hand remained mystery and on the other, reflects that the
story qua witnessing of the occurrence in the result of which Muhammad
Amjad was done to death, was an after-thought idea to show presence of
complainant and witnesses at the spot. The whole conduct of the
complainant and prosecution witnesses can conveniently be counted as
pathetic one and same runs counter to the natural human conduct and
behavior in the ordinary course of events. Provisions of Article 129 of
Qanun-e-Shahadat Order, 1984 allow the courts to presume the existence of
any fact, which it thinks likely to have happened in the ordinary course of
natural events and human conduct in relation to the facts of a particular case.
The conduct of witnesses of ocular account in the instant case vividly was
opposite to the common course of natural events and human conduct, further
suggesting that the witnesses of ocular account were not present at the time
of occurrence. I am fortified in my view from the principles laid down by the
Supreme Court of Pakistan in case reported as “Pathan v. the State” (2015
SCMR 315) wherein it was observed that causing of large number of
injuries one after another to the deceased with scissors must have consumed
reasonable time due to pause in between the first injury and the last one but
all the three PWs including the son with a strong stature and built remained
as silent spectators and did not react or show any response when the accused
was causing injuries. It was further observed in said case as under:-
“No man on the earth would believe that a close relative
would remain silent spectator in a situation like this because
their intervention was very natural to rescue the deceased
but they did nothing
Crl. Appeal No.24464 –J of 2021
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While the foregoing is sufficient, in itself, to cast doubt on the presence of
PWs of ocular account at the spot, there is nonetheless another important
aspect of the case that requires consideration that according to prosecution
story, Muhammad Amjad was abducted by the accused persons on
07.08.2014 and accused persons started beating him in their house at Fajar
time on 12.08.2014 when complainant and his witnesses who claimed to
have reached at the spot. It would be hard to believe that assailants would
have waited for arrival of PWs so as to enable them to witness the
occurrence and on their arrival they started causing injuries on the person of
Muhammad Amjad. Such a behavior on the part of assailants is not in
consonance with the natural human behavior and it can very conveniently be
inferred that PWs were not present at the spot and they have merely been
introduced as witnesses of ocular account after due deliberations and
consultation. Reliance in this respect may safely be placed on case reported
as “The State through Advocate General Khyber Pakhtunkhwa, Peshawar v.
Hassan Jalil and others” (2019 SCMR 1154), wherein it was observed that
arrival of PWs at the venue exactly on a point of time when assailants
allegedly did away with deceased, in itself is a circumstances that reflected
on the very genesis of the prosecution case. Similar view was taken by
august Supreme Court of Pakistan in case reported as “Muhammad Imran v
The State” (2020 SCMR 857), wherein it was observed that arrival of
witnesses exactly on a point of time when accused started inflicting blows to
the deceased, with their inability to apprehend him, without there being any
weapon to keep them away, casts shadows on the hypothesis of their
presence during the fateful moments. This aspect of the matter when is seen
in conjunction with above discussed aspect qua conduct of the PWs, they
can conveniently be termed as chance witnesses.
13.
It may also be seen that motive for commission of crime as
asserted in the FIR is that there is enmity between complainant side and
accused Arshad etc on a murder case. Muhammad Hussain complainant
PW-1 in his examination in chief, however, stated the motive that accused
persons Arshad etc had enmity with them for the murder of Ramzan. In
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cross examination, complainant PW-1 provided certain details of the
criminal cases against both the parties. According to him, he was implicated
by the accused side in a criminal case for the offence under section 324 PPC
through supplementary statement. Complainant PW-1, however, admitted it
correct during cross examination that no FIR was got registered by accused
persons against his son Amjad (deceased). It was version of complainant
PW-1 during cross examination that the accused persons being inimical to
him, murdered his son. It is deduced in this backdrop that accused persons
did not have any specific motive against the deceased, rather their hostility
was with the whole kinfolk of complainant. If it is believed that the accused
persons had criminal rivalry with the complainant’s clan, then prime target
of the assailants should have been complainant and PWs and not the
deceased but strangely enough, the accused were shown to have targeted
Muhammad Amjad son of the complainant opting not to cause any sort of
harm to complainant and PWs. The motive set up by the complainant even if
is taken as gospel truth there is no explanation on the record as to why only
deceased from the complainant’s side was targeted by the accused when the
complainant against whom they had grudge, was also available at the place
of occurrence along with his real brother Muhammad Zubair Ali (PW-4).
Even it is highly unlikely that accused persons would have spared the
witnesses of ocular account for allowing them to become witnesses and
depose against them for sending them to gallows. So, the conduct of accused
persons during the occurrence ran counter to natural human conduct and the
behavior explained in the provisions of Article 129 of the
Qanun-e-Shahadat, 1984. Guidance has been sought from the dicta laid
down in cases Zahir Yousaf and another v. The State and another (2017
SCMR 2002) and Mst. Rukhsana Begum and others v. Sajjad and others
(2017 SCMR 596). Legitimate and irresistible conclusion that may
conveniently be drawn from the above discussed facts is that the occurrence
in consequence of which Muhammad Amjad lost his life, did not take place
in the mode and manner as stated by the witnesses of ocular account. It is
also a settled principle of law that motive is always considered as a double
Crl. Appeal No.24464 –J of 2021
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edged weapon which cuts both ways. It can be used by the accused to take
revenge and at the same time can be a tool used by the complainant for false
charge as well. There is also no cavil with the proposition that lack of
motive, its weakness or even its non-proving is never fatal to prosecution
case qua awarding conviction if a case otherwise stands proved through
direct evidence with regard to the occurrence, however, at the same time the
motive that is always considered a corroborative piece of evidence, even if is
proved, the same alone cannot be made basis for conviction of an accused on
capital charge particularly where evidence of ocular account is totally
disbelieved inasmuch as in such eventuality worth of evidence of motive
would stand reduced to nil. As the ocular account in this case has already
been disbelieved, the evidence of motive would have no consequence qua
conviction. It is an admitted rule of appreciation of evidence that motive
is only corroborative piece of evidence and if the ocular account is found
to be unreliable then motive alone would have no evidentiary value.
14.
Looking the matter from a different angle, occurrence of
murder of Amjad Iqbal, as per the contents of private complaint took place
around Fajar time on 12.08.2014 whereas written application Ex.PA was
claimed to have been moved at 01:05 P.M. In this way, crime alleged to
have taken place around Fajar time (04:30 A.M to 05:30 A.M), was reported
to police with delay of around 08 hours. No explanation whatsoever has
been put forward by the prosecution for such inordinate delay. This being so,
there could have been no reason for moving of application Ex.PA at 01:05
P.M, except preliminary investigation and prior consultation to nominate the
accused and plant eyewitnesses of the crime. It may also be seen that
autopsy in this case was conducted at 10:00 P.M. i.e. after around seventeen
hours of the occurrence. According to post mortem examination report
Ex.PC/2, dead body was received in hospital at 05:00 P.M. and police papers
were received at 09:30 P.M. No plausible explanation is forthcoming by the
prosecution to justify such a belated submission of police papers and post
mortem examination and the same would give rise to a legitimate
presumption that police papers were sent to hospital after deliberations and
Crl. Appeal No.24464 –J of 2021
14
consultation. Reliance in this regard may safely be placed on case reported
as Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068),
wherein following observation was made: -
“---Such unexplained delay in the post mortem of a deceased
would surely put a prudent mind on guard to very cautiously
assess and scrutinize the prosecution’s evidence---In such
circumstances, the most natural inference would be that the
delay so caused was for preliminary investigation and prior
consultation to nominate the accused and plant eyewitnesses
of the crime.”
It would not be out of context to mention here that according to the case
put forth by complainant, death of Muhammad Amjad was result of physical
torture on him by accused persons and strangulation caused by Arshad
accused with a cloth (safa). Medical Officer PW-6 observed injury No.1 a
contusion 6 x 2 CM at right side of neck of the deceased and opined that
cause of death is asphyxia resulting from strangulation due to injury No.1. In
cross examination, however, PW-6 admitted it correct that there was no
contusion, laceration or abrasion present on the right side, backside or front
side of neck. Medical Officer also admitted it correct in cross examination
that if strangulation is committed by wrapping the rope, cord or safa, then
injuries would be all around the neck. This admission on the part of Medical
Officer, indeed contradicts the version of ocular account whereby
Muhammad Arshad accused was shown to have strangulated the deceased
with a safa. Therefore, it can very conveniently be inferred that medical
evidence in this case is in contradiction with the ocular account. Medical
evidence although is corroboratory in nature, however, it is an established
principle of law that corroborative piece of evidence is meant to test the
veracity of ocular evidence and both corroborative and ocular testimonies
are to be read together and not in isolation. Guidance has been sought from
case “Noor Muhammad v. The State” (2010 SCMR 97). Had witnesses of
ocular account been present at the spot and witnessed the occurrence as
claimed by them, there could have been no possibility of conflict in between
ocular account and medical evidence qua the mode of causing death of
Muhammad Amjad. Where oral evidence is inconsistent with the medical
Crl. Appeal No.24464 –J of 2021
15
evidence, oral evidence cannot be accepted to be made basis for the
conviction of an accused. Guidance has been sought from case “Barkat Ali
v. Muhammad Asif and others”(2007 SCMR 1812). It has also been held in
Abdul Subhan’s case PLD 1994 SC 178 that if medical evidence leaves
room for doubt, benefit of that doubt should go to accused and not to
prosecution. In view of glaring conflict in between ocular account and
medical evidence that indeed belies the version of witnesses of ocular
account of having witnessed the occurrence at the spot, their presence at the
spot is not free from the doubts.
15.
Adverting now to the investigation of this case, the same had
negated the version of the complainant party and signaled about
non-involvement of the accused in the alleged occurrence by giving detailed
reasons qua the death of Muhammad Amjad and ultimately they were placed
in column No.02 of the report under section 173 Cr.P.C. Opinion of police
though is not binding upon the Court, yet in the backdrop of above hinted
discrepancies in prosecution’s case, same had not been found to be biased
and also creates doubt qua culpability of appellants. The appellants are,
therefore, entitled to the benefit of doubt as a right. Reliance in this regard
may safely be placed on case reported as “Khalid Mehmood and others v.
The State” (2011 SCMR 664), wherein the Supreme Court of Pakistan held
as under: -
“Adverting to the case of Abid Hussain appellant, it may be
observed that no weapon of offence has been effected from
his possession. He was found innocent by different police
agencies including Ch. Akhtar Hussain, DSP, CIA,
Sheikhupura and got discharged from the Court of the
Magistrate, which order was not challenged by the
complainant. We entertain serious doubt in our minds
regarding participation of appellant Abid Hussain in the
commission of crime. The evidence of the complainant and
Nasir Ahmad P.Ws. qua appellant Abid Hussain is not
credible and trustworthy.
(Underlining is to supply emphasis)
16.
In view of peculiar facts and circumstances of this case,
presence of witnesses of ocular account at the spot is highly doubtful and
possibility of lodging of F.I.R. by nominating the accused persons after
Crl. Appeal No.24464 –J of 2021
16
some deliberation and consultation cannot be ruled out. Prosecution’s case
from its inception to end remained replete with doubts whereas as per
established principle of law, when a single circumstance creating reasonable
doubt in a prudent mind about the guilt of accused arises, he would be
entitled to such benefit as a matter of right. Reliance in this regard may
safely be placed on case reported as Tariq Pervez v. The State (1995 SCMR
1345).
17.
Upshot of above discussion is that prosecution hopelessly failed
to prove its case against appellants. The evidence produced in this case by
complainant could not be relied upon for awarding conviction. Therefore,
respectfully following the dicta laid down by the Supreme Court in above
referred case findings of conviction recorded against appellants by learned
Additional Sessions Judge, Depalpur in the impugned judgment are not
sustainable, which are hereby set aside allowing the instant criminal appeal.
Consequently, appellants Muhammad Arshad, Mudassar and Maqsood
Ahmad are acquitted of the charge extending benefit of doubt to them.
Appellant Muhammad Arshad is in jail. He is ordered to be released
forthwith if not required to be detained in any other case. Appellants
Maqsood Ahmad and Mudassar are on bail. Their bail bonds are cancelled
and sureties stand discharged of the liability of bail bonds.
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