MEHBOOB-UR-REHMAN vs STATE
This criminal appeal, by leave of the court, assails the judgment of the Peshawar High Court (Abbottabad Bench), which upheld the appellant's conviction under Section 302(b) of the Pakistan Penal Code 1860 and his sentence of life imprisonment. The prosecution alleged that the appellant, along with co-accused, fired upon the deceased due to a prior blood feud. The primary legal question before the Supreme Court was whether the appellant was entitled to the benefit of the doubt given his plea of alibi, which was supported by official documents tendered into evidence by the prosecution's own investigating officer without cross-examination or challenge by the prosecution. The Supreme Court allowed the appeal and acquitted the appellant, holding that an accused raising a defense plea of alibi need only establish a reasonable possibility of innocence. When prosecution witnesses themselves introduce unrefuted documentary evidence supporting an alibi, the burden shifts to the prosecution to disprove it, failing which the resulting doubt must be resolved in favor of the accused.
- What is the standard of proof required for an accused to successfully establish a defense plea of alibi?
- Does the burden shift to the prosecution to disprove a plea of alibi when documentary evidence supporting it is introduced by the prosecution's own investigating officer?
- Is an accused entitled to an acquittal when unrefuted evidence produced by the investigating officer creates a reasonable doubt regarding the accused's presence at the crime scene?
- Section 302(b), Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
Sarmad Jalal, Osmany, J.--This Appeal, by leave of the Court, impugns the Judgment of the Learned Peshawar High Court (Abbottabad Bench) in Criminal Appeal No, 98 of 2004 filed by the Appellant whereby same was dismissed and his conviction under Section 302 (b) PPC and subsequent punishment of life imprisonment as well as fine etc. was upheld.
2. Briefly stated the facts of the Prosecution case are that on the fateful day when Complainant Mst.
Nasreen and her father-in-law Sakhawat Shah were working in the lands of one Khalil Khan along with her mother in law Mst. Gul Nia, Accused Ghani Shah, Nawab Shah, Walayat Shah, Muzaffar Shah, Tahir and Appellant/Accused Mehboob appeared at the scene duly armed with rifles. The moment Sakhawat - Shah got sight of the Accused, he attempted to run away. Nawab Shah, Ghani Shah, Muzaffar Shah and Walayat Shah caught hold of him whereas Mehboob and Tahir fired upon him with their weapons as a result of which he sustained numerous injuries i,e, on his left chest, left shoulder, stomach, right side rib, left thigh and left calf and died on the spot. All the Accused thereafter decamped towards the forest. The motive statedly was the previous blood feud between the parties.
3. Mr. Altaf Ellahi Shaikh, Learned Sr. ASC appearing for the Appellant has firstly submitted that only one solitary eye-witness was produced by the Prosecution before the learned trial Court i,e, Mst., Nasreen who being closely related to the Deceased, therefore, her evidence is to be treated with some caution. Secondly per learned Sr. ASC, co-accused Nawab Shah, Ghani Shah, Muzaffar Shah and Walayat Shah have been acquitted on the same set of evidence and hence in order to convict the Appellant, strong corroboratory evidence is required which is lacking in the matter. His final submission is that the plea of alibi as put forward by the Appellant in his statement under Section 342 Cr.P.C. before the learned trial Court has been ignored, although supported by the Prosecution itself since PW-10 Muhammad Ashraf Khan I.O. himself tendered in evidence a letter from the Frontier Constabulary wherein it has been certified that the appellant was on his duty elsewhere on the fateful day. For this proposition he has relied upon Wasiullah Vs. Mirza Ali and another (PLD 1963 SC 25), (ii) Munawar Ali alias Munawar Hussain Vs. The State (PLD 1993 SC 251), (iii) Allah Wadhayo and another Vs. The State (2001 SCM R 25) and Aminullah Vs. The State (PLD 1982 SC 429).
4. Mr. Muhammad Siddique Khan Baloch, learned ASC appearing for the Advocate General, KPK has on the other hand fully supported the impugned judgment.
5. We have heard both the learned ASC's for the parties at some length and have perused the record with their assistance.
6. The most significant aspect of the matter as noted by us is the fact that the appellant/accused had himself surrendered before PW-10 S.I./I.O. Muhammad Ashraf Khan along with the letter from the Commanding Officer of Gilgit Scouts dated 17.08.2000 to the effect that the appellant was on duty in Gilgit on the day of occurrence which was produced in evidence as Exh.PW-10/2 by said witness, Similarly under cross-examination he has also produced the statement of five persons from the Appellant's unit namely Mazhar Shah S/o Sajawal Shah, Muhammad Tariq S/o Saifullah, Said Bakht Khan Naib Subaidar, Shamsher Khan S/o Mir Tazam Khan and Muhammad Zahoor Noor Khan as Exh. PW 10/D-1 to the effect that indeed the Appellant was on duty with them in Gilgit on the day of incident. This would therefore mean that at the earliest opportunity the Appellant had insisted upon his plea of alibi before the police authorities and also stated as much in his statement under Section 342 Cr.P.C. before the learned Trial Court. PW-10 S.I./I.O, Muhammad Ashraf Khan was not declared hostile or cross-examined by the Prosecution insofar his evidence regarding the Appellant's alibi is concerned. In this regard it is well settled that the Accused while raising a defence plea is only required to show that there is a reasonable possibility of his innocence and the standard of proof is not similar to that as expected of the prosecution which must prove its case beyond any reasonable doubt. Consequently where a witness (in this case strangely for the Prosecution) has introduced certain documents in evidence which would substantiate the Appellant's plea of alibi, then the onus would shift to the Prosecution to disprove the same which as noted above was not done.
7. In the presence case, therefore, some doubt is caused in the matter of the appellant's presence at the scene of incident, the benefit of which must certainly go to him. Consequently this Appeal is allowed and the impugned Judgment is set aside. The Appellant is acquitted of the charge against him. Hence he shall be given his freedom if not required in any other case.