ALI RAZA Versus State
RAJA SHAHID MEHMOOD ABBASI, J .---Through this single judgment, we intend to decide Criminal Appeal No.97-J of 2015 filed by Ali Raza appellant against his conviction and sentence along with reference under section 374, Cr.P.C. sent by learned trial court for confirmation or otherwise of the sentence of death of the appellant, numbered as Murder Reference No.79 of 2015, as both these matters have originated from the judgment dated 29.09.2015, handed down by learned Additional Sessions Judge, Chichawatni, in case FIR No.31 dated 01.02.2013, registered under sections 302, 34, P.P.C., at Nice Station Ghazi Abad, Chichawatni, District Sahiwal, whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to death with the direction to pay an amount of Rs.2,00,000/- as compensation to the legal heirs of Muhammad Hameed deceased under section 544-A, Cr.P.C. recoverable from him under the provisions of Land Revenue Act and in case of default thereof, he shall have to undergo one year's S.I. Benefit of section 382-B, Cr.P.C. was also extended to him.
2. The prosecution story set forth in FIR (Ex.PA) by Muhammad Ali complainant, a labourer by profession, is that his son Muhammad Hameed aged about 25 years used to sell utensils made of glass on a donkey cart in different villages. On 01.02.2013 at about 10:00 a.m. Muhammad Hameed was going to Adda Khoian after loading utensils on donkey cart. The complainant along with his sons Muhammad Latif and Muhammad Hanif was present at his shop when his son Muhammad Hameed reached near the house of accused Muhammad Ramzan on donkey cart. Suddenly accused Muhammad Ramzan and Ali Raza came out from their house. Accused Muhammad Ramzan stopped the donkey cart from front side and accused Ali, while holding pistol .30 bore in his right hand, made fire shot on Muhammad Hameed, who was sitting on left side of donkey cart, which hit him on back and went through his chest due to which he fell over the donkey cart. The complainant and his sons Muhammad Latif and Muhammad Hanif tried to catch hold of accused Ali and Muhammad Ramzan, but they made their escape good while extending threats of dire consequences. Muhammad Hameed succumbed to the injuries at the spot on the donkey cart.
Motive behind the occurrence was that accused Muhammad Ramzan had strong suspicion that Muhammad Hameed had illicit intimacy with his wife and due to this grudge, both accused Muhammad Ramzan and Ali, with their common intention and while armed with deadly weapon, committed the occurrence, hence, the crime report.
3. After completion of investigation, report under section 173, Cr.P.C. was prepared and submitted before the trial court.
4. On indictment, the accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as ten witnesses before the trial court. Muhammad Ali complainant (PW2) and Muhammad Latif (PW3) furnished eye-witness account and the latter also testified about the recovery of pistol .30 bore (P2) on the pointing out of Ali Raza appellant. Muhammad Saeed Akhtar, Draftsman (PW6) prepared scaled sketch of the place of occurrence. Muhammad Esmail S.I. (PW9) and Javed Tariq S.I. (PW10) testified about various steps taken by them during the investigation of this case. Medical evidence was furnished by Dr. Muhammad Akhtar (PW8), who conducted autopsy on the dead body of Muhammad Hameed deceased vide postmortem report (Ex.PH), whereby he noted the following injuries on the dead body of the deceased:-
1. Firearm punctured wound at left side back of chest going deep 4 cm from vertebral column, 16 cm from left shoulder (entrance).
2. Firearm punctured wound 2 cm x 2 cm going deep on left side of sternum; 9 cm from left nipple at front of chest i.e. exit.
3. Dissection upper part of heart left plus right atrium badly ruptured along with aorta.
4. Chest cavity found full of blood.
5. Upper side of left lung was found also damaged along with Trachae and esophagus.
Note: - Blackness at the entrance, smoke particulars presence shows that fired from very near distance.
According to the doctor, injuries Nos.1 and 2 completely damaged heart and major blood vessels, causing to immediate death. Duration between the injuries and death was immediate and between death and postmortem examination was 3 to 4 hours.
The remaining prosecution witnesses, more or less, are formal. After tendering in evidence the reports of the Punjab Forensic Science Agency (Ex.PM and Ex.PN), the prosecution closed its evidence.
5. After completion of prosecution evidence, statements under section 342, Cr.P.C. of the accused were recorded wherein they professed innocence and pleaded false implication in the case. While answering to the question, "why this case against you and why the PWs deposed against you?" Ali Raza appellant stated as under:-
"I have been falsely involved in this case. The PWs are resident of Chak No.179/9-L which is at a distance of 04-square from Chak No.180/9-L where alleged occurrence took place and PWs falsely stated in their examination in chief that they are resident of Chak No.180/9-L. There was no eye-witness of the occurrence and I am resident of Chak No.134/9-L which is at a distance of 30/35 kilometer from place of occurrence. During cross-examination of PW-2 and PW-3 it was found that deceased was a womanizer and his elder brother Muhammad Latif PW also contracted love marriage after the abduction of his wife and many applications against deceased were pending in different police stations about his flirt with innocent girls. Some unknown persons committed murder of the deceased and later on I have been falsely involved in this case. I have no concern or enmity whatsoever with the complainant or deceased. I have no relationship with deceased. My sister is married with my co-accused Muhammad Ramzan and due to this relationship complainant lodged FIR against me in order to harass me and blackmail me in this case in order to get amount from me through blackmailing."
The other accused namely Muhammad Ramzan, while answering to the above question, simply stated that the complainant and the eye-witness, during their evidence, have stated in the court that Muhammad Ramzan accused did not play any role in the occurrence and he is not involved in this case.
The accused neither opted to get record their statements under section 340(2), Cr.P.C. nor produced any witness in their defence.
6. At the conclusion of the trial, learned trial court found the appellant guilty of the charge and convicted and sentenced him as mentioned and detailed above, but proceeded to acquit his co-accused Muhammad Ramzan by extending the benefit of doubt in his favour. Hence, the appeal and the connected murder reference.
7. Learned defence counsel appearing on behalf of the appellant contends that the appellant has been maliciously involved in this case due to erratic guess work and malicious intention of the complainant; that the matter was reported to the police after due deliberation and consultation which made the prosecution story highly doubtful. Goes on to maintain that the prosecution has miserably failed to substantiate the factum of accusation by producing any worthy of credence evidence which aspect of the matter went unnoticed, causing serious prejudice against the appellant; that the so-called eye-witnesses were related inter se and interested witnesses and in fact they were nothing but chance witnesses who could not advance any plausible justification for their presence at the spot at relevant time; that the medical evidence was not in consonance with ocular version which aspect of the matter has not been dilated upon properly; that the ocular account is filled with intentional dishonest improvements and there are various glaring contradictions which are not noticed by learned trial court resulting into serious miscarriage of justice against the appellant; that the recovery of weapon of offence was planted one and the report (Ex.PN) was maneuvered from the Punjab Forensic Science Agency which is hardly helpful to the prosecution's case; that the motive is farfetched which could not be proved by the prosecution through any independent evidence and is even otherwise not against the appellant. While concluding the arguments, learned counsel submits that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt and to connect him with the commission of incident in issue, hence, while accepting his appeal, the appellant may be acquitted of the charge.
8. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned defence counsel for the appellant and inter alia maintains that the appellant is well-nominated in a promptly lodged FIR with specific role of inflicting firearm injuries and committing murder of an innocent young person and the role attributed by the PWs to the appellant is fully established through the medical evidence; that the appellant was previously known to the eye-witnesses, therefore, there was no chance of his misidentification; that the presence of eye-witnesses at the place of occurrence is quite natural and their presence cannot at all be disputed; that the prosecution case finds further corroboration from the recovery of weapon of offence from the appellant as well as the positive report of the Punjab Forensic Science Agency in this regard; that the prosecution has proved the motive part of the occurrence and its case stood proved beyond any shadow of reasonable doubt, hence, prayed that while dismissing the appeal filed by the appellant and answering the murder reference in affirmative, his sentence of death may be confirmed.
9. We have considered the arguments advanced by learned defence counsel for the appellant and learned Deputy Prosecutor General and have gone through the record with their able assistance.
10. Muhammad Hameed, gunned down, in this case, was the real son of Muhammad Ali complainant (PW2), who, while lodging crime report (Ex.PA), maintained that the incident in this case had taken place on 01.02.2013 at 10:00 a.m. and while appearing in the witness box before the trial court, he stated that his complaint (Ex.PA) was recorded by the police which bore his thumb impression, but during cross-examination, he destructively stated that he had marked his thumb impression on Ex.PA as a blank paper. This portion of the cross-examination of Muhammad Ali complainant (PW2) has utterly swiped away the credibility of the story introduced by the prosecution in FIR (Ex.PA).
11. Primarily, it was the case of the prosecution that Muhammad Ali complainant (PW2) along with his sons Muhammad Latif (PW3) and Muhammad Hanif (given up) was present at his shop, when his son Muhammad Hameed deceased reached near the house of Muhammad Ramzan co-accused (since acquitted) on the donkey cart, he was taken to the task by the appellant and his above said co-accused due to the grudge of suspicion of his illicit relations with the wife of co-accused, ????????????? during their statements before the trial court, both the prosecution witnesses i.c. PW2 and PW3 preferred to deviate from their original version by exonerating Muhammad Ramzan co-accused. They further improved their version and introduced new facts those were not incorporated in complaint (Ex.PA) as well as in statement under section 161, Cr.P.C. which made their testimony untrustworthy and unreliable/and in this regard, relevant portion of cross-examination, wherein they have been confronted with their previous statements (Ex.DA and Ex.DB) is reproduced as under:-
Muhammad Ali complainant (PW2)
".......I correctly recorded my statement in court as examination in chief. I had recorded in my statement that Ramzan accused abstained Ali Raza accused not to make fire shot. Confronted with Ex.DA where it is not so recorded. I had not recorded in my statement that Ramzan accused stopped donkey cart. Confronted with Ex.DA where it is so recorded. I had recorded in my examination in chief that Ali Raw accused had suspicion of illicit intimacy of my son with his sister (wife of co-accused Ramzan). Confronted with Ex.DA where it is not so recorded...."
Muhammad Latif (PW3)
... ....I correctly recorded my statement before the police and I had recorded in my statement that Ramzan accused abstained Ali Raza but Ali Raza made fire shot. Confronted with Ex.DB where it is not so recorded. I had recorded in my statement that All Raza had suspicion of illicit intimacy with Fozia Bibi w/o M Ramzan accused with M Hameed deceased. Confronted with Ex.DB where it is not so recorded....."
The Court is not blindfolded in determining that the prosecution witnesses had made the above noted improvements only to exonerate Muhammad Ramzan co-accused and to strengthen their case against Ali Raza appellant, but according to the settled principle of criminal jurisprudence, when a witness improves his version to strengthen the prosecution case, his improved statement cannot be relied upon and once such improvements are found deliberate and dishonest that would cast serious doubt on the veracity of the witness. Guidance can be sought from the esteemed judgments passed by Hon'ble Supreme Court of Pakistan in case titled "Muhammad Pervaiz and others v. The State and others" (2007 SCMR 670), "Ali Sher v. The State" (2015 SCMR 142) and "Pathan v. The State" (2015 SCMR 213).
12. Though Muhammad Ali complainant (PW2) along with his sons Muhammad Latif (PW3) remained stubborn to their stance of having witnessed the tragedy with their own eyes, but deep analysis of their statements would reveal that they were miserably failed to establish their availability near the scene of occurrence at the relevant time. As noted above, they claimed that they were present at their shop, but no such shop was shown in the scaled sketch (Ex.PG) of the crime scene and Muhammad Saeed Akhtar, Draftsman (PW6), who had prepared scaled sketch (Ex.PG), also stated before the trial court in clear terms that there was no residence or shop of the complainant party near the venue of occurrence. These prosecution witnesses also maintained that they were residents of Chak No.180/9-L i.e. the locality within the precincts of which the unfortunate incident had taken place, but during cross-examination, it was proved by the defence that they were residing in Chak No.179/9-L during the days of incident. In this regard, paragraph No.5 of the cross-examination of Muhammad Ali complainant (PW2) is quite relevant, which is reproduced hereunder:-
"5. The house of Akram Mashki is adjacent to my house. House of Allah Wasaya is towards east from my house. House of Rana Imdad is also towards east from my house. I, Latif, Hanif and Hameed were jointly residing in my house. It is correct that all above said persons are resident of Chak No.179/9-L. It is incorrect to suggest that I have falsely shown my residence in Chak No.180/9-L in order to cite myself as PW in this case."
Keeping in view the above stated established facts, we have no doubt in our mind that the alleged eye-witnesses produced by the prosecution before the trial court were nothing but chance witnesses, who were miserably failed to justify their presence at the crime scene at the relevant time, which prompts us not to place any reliance on them. Guidance in this regard has been sought from the cases of "Muhammad Asif v. The State" (2017 SCMR 486), "Zahir Yousaf and another v. The State and another" (2017 SCMR 2002) and "Arshad Khan v. The State" (2017 SCMR 564).
13. Our above observation in respect of absence of Muhammad Ali complainant (PW2) and Muhammad Latif (PW3) finds impeccable strength from the statement of Javed Iqbal, S.I. (PW10), who had conducted initial investigation in this case. During cross-examination, he (PW10) stated that when he reached at the place of occurrence, many persons were present there, but none from the residents of Chak No.179/9-L was present there, whereas, as noted above, the alleged eye-witnesses were the residents of Chak No.179/9-L. He further stated that he had recorded the statements of Abdul Jabbar son of Sadique and Khursheed son of Allah Ditta as the eye-witnesses of the tragedy. He (PW10) had drastically dented the prosecution version by admitting that when he firstly visited the place of occurrence on 01.02.2013, nobody else, except Abdul Jabbar and Muhammad Khursheed, had claimed to be the eye-witness of the incident. He (PW10) was prosecution's important and crucial witness, who eventually falsified the alleged eye-witnesses qua their presence at the spot and it is also a circumstance that neither his testimony was ever disowned by the prosecution nor he was declared as a hostile witness in order to control the damage caused by him to the prosecution's case.
14. It is a matter of serious concern that being the only eye-witnesses of the tragedy, Abdul Jabbar and Muhammad Khursheed were the star prosecution witnesses, whose evidence was of foremost significance to arrive at the just and fair conclusion of the case, but neither their presence is shown in the scaled sketch (Ex.PG) nor the prosecution bothered to get them examined during trial rather they were given up being unnecessary. In the circumstances stated above, abandoning of actual eye-witnesses obviously leads to an adverse impression within the meanings of Article 129-G of the Qanun-e-Shahadat Order, 1984. It is settled law that if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Besides, it will create impression that had such witnesses been produced into witness box, they might have not supported the prosecution case. Reliance in this respect is placed on the cases of "Lal Khan v. The State" (2006 SCMR 1846) and "Muhammad Rafiq and others v. The State" (2010 SCMR 385).
15. The above comprehensive discussion has unequivocally led us to hold that Muhammad Ali complainant (PW2) and Muhammad Latif (PW3) were not available at the crime scene and they had not witnessed the tragedy with their own eyes and as such they cannot be relied upon for the purpose of maintaining conviction and sentence of the appellant.
16. So far as the remaining pieces of evidence relied by the prosecution against the appellant i.e. medical evidence, motive and recovery coupled with forensic report are concerned, it is by now well settled that the medical evidence can only confirm the ocular account with regard to seat, nature and duration of injuries and the kind of weapon used for causing such injuries but it cannot connect the accused with the commission of crime in the absence of any trustworthy and confidence inspiring direct evidence. In this regard, we are fortified by the judgments passed by the Hon'ble Supreme Court of Pakistan reported as "Muhammad Tasaveer v. Hafiz Zulqurnain and two others" (PLD 2009 SC 53), "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410) and "Ghulam Mustafa and another v. The State" (2009 SCMR 916). Similarly, the motive was of suspicion over the illicit relations of the deceased with the wife of Muhammad Ramzan co-accused, but the prosecution exonerated him with clear cut understanding that he was not the culprit of the offence. Though the alleged eye-witnesses, during their court statements, stated that the appellant had a suspicion of illicit intimacy of his sister (wife of co-accused Muhammad Ramzan) with the deceased, but as noted in paragraph No.12 above, this portion of their statements was the outcome of deliberate and dishonest improvement, which cannot be given any legal credence. We, therefore, feel no hesitation in holding that the prosecution was miserably failed to prove the motive part of the occurrence.
17. Much emphasis has been laid on the recovery of pistol .30 bore (P2) and the positive report (Ex.PN) of the Punjab Forensic Agency, ???????????the prosecution has no answer to offer that if any empty was collected during spot inspection on 01.02.2013, then why it was withheld and was ultimately dispatched to the office of the Punjab Forensic Science Agency on 21.02.2013 i.e. ten days after the arrest of the appellant on 11.02.2013. Furthermore, Muhammad Latif (PW3), in paragraph No.4 of his cross-examination, stated that the police had tested the recovered pistol from Ali Raza appellant and had fired twice at police station after effecting recovery from him. In this situation, the recovery of pistol .30 bore (P2) and the positive report (Ex.PN) of the Punjab Forensic Science Agency are of no benefit to the prosecution and cannot be taken into consideration against the appellant. Guidance in this respect has been sought from the cases of "Jehangir v. Nazar Farid and another" (2002 SCMR 1986), "Israr Ali v. The State" (2007 SCMR 525) and "Ali Sher and others v. The State" (2008 SCMR 707).
18. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by the Hon'ble Supreme Court of Pakistan in the case of "Tariq Pervez v. The State" (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Further guidance can be sought from the case of "Muhammad Akram v. The State" (2009 SCMR 230).
19. For the foregoing reasons, Criminal Appeal No.97-J of 2015 filed by Ali Raza appellant is accepted, conviction and sentence awarded to him vide judgment dated 29.09.2015 passed by the learned trial court is set aside and he is acquitted of the charge levelled against him by extending the benefit of doubt in his favour. He shall be released forthwith if not required to be detained in any other case.
20. Murder Reference No.79 of 2015 is answered in negative and death sentence of Ali Raza appellant is not confirmed.
JK/A-28/L Appeal allowed.