MUHAMMAD TARIQ Versus State
SHEHRAM SARWAR CH. J.--- Muhammad Tariq (appellant) along with his co-accused namely Muhammad Mohsan, Abdul Sattar, Mst. Hajraan Bibi and Mst. Parveen was tried by the learned Additional Sessions Judge, Muitan in case FIR No.790 dated 14.12.2015, offence under section 302, P.P.C., registered at Police Station Shah Shamas District Multan for the murder of Muhammad Rashid (deceased) paternal nephew of the complainant. Vide judgment dated 09.06.2017 passed by the learned trial court, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death, with compensation of Rs.3,00,000/- (rupees three lakh only) under section 544-A, Cr.P.C. to be paid to the legal heirs of deceased and in default whereof to further undergo six months R.I. Through the same judgment, learned trial acquitted Abdul Sattar, Mohsin, Mst. Hajran and Mst. Parveen co-accused of the appellant while extending them benefit of doubt and no appeal against their acquittal was filed either by the State or the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.123 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the written application (Exh.PA) of Ali Hassan, complainant (PW.1) is that on 14.12.2015 at about 6:00 p.m. his paternal nephew Rashid went to drop his driver at Bismillah Town and when he was coming back, Tariq, Mohsin and Abdul Sattar armed with pistols, Hajran armed with danda, Parveen armed with iron rod along with two unknown persons came in front of motorcycle of Rashid in the street and stopped him forcibly. They raised lalkara that he be taught a lesson for passing through the street instead of forbidding him. On hearing noise, complainant, Abid and Shahid, who were going towards their house attracted to the spot. Within their view, Tariq made a fire which passed near the head of Rashid. He made second fire which passed near the arm of Rashid. Tariq made third fire which landed on abdomen near umbilicus of Rashid. The complainant party tried to rescue Rashid whereupon Mohsin and Abdul Sattar made seven consecutive fires but they luckily saved. Parveen and Hajran also injured the complainant and other PWs with their respective weapons. hey z,longwith unknown accused persons damaged the motorcycle of Rashid. On hue and cry of complainant party the inhabitants of the locality came there. The accused persons fled away from the spot while making firing. The complainant and other PWs took Rashid in injured condition to Nishtar Hospital but before reaching hospital he succumbed to the injuries. Motive behind the occurrence was that on 13.12.2015, one day before the occurrence, the accused persons extended threat to Rashid that if again he passed through the street he would be done to death because on 13.12.2015 a minor altercation took place between Rashid and accused persons but the matter was patched up, however, the accused persons bore grudge in their heart.
3. We have heard learned counsel for the parties as well as the learned Addl. Prosecutor General for the State and gone through the record with their able assistance.
4. Undisputedly, the postmortem examination of the dead-body of deceased was conducted about seventeen hours and thirty minutes after the occurrence. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed v. The State" (2011 SCMR 1190) and Nazeer Ahmed v. The State" (2016 SCMR 1628).
5. The ocular account in this case consists of Ali Hassan, complainant (PW.1), Muhammad Abid (PW.2) and Muhammad Shahid (PW.3). The presence of all these PWs on the spot at the time of incident is doubtful in nature because they allegedly saw the incident from a close distance but we failed to understand that in the presence of all these PWs, who were closely related to Rashid (deceased), how such tragedy with the deceased persons could happen without any intervention on their part to rescue him. The delay in the postmortem examination of the dead-body of deceased also casts doubt their presence on the spot at the time of incident. In the FIR it was the case of complainant that Parveen and Hajran co-accused of the appellant caused injuries to the complainant and other PWs but no medical evidence qua injuries allegedly sustained by the complainant and other PWs at the hands of above said two ladies is available on record. In the FIR it is mentioned that the complainant and other PWs shifted Muhammad Rashid (deceased) in injured condition to Nishtar Hospital but while appearing before the learned trial Court it was the case of complainant that the deceased in injured was shifted to Hospital through rescue 1122. The complainant (PW.1) has stated in his cross-examination that he was on his motorcycle when he was coming behind the deceased but this fact is not mentioned in the FIR. Ali Hassan, complainant (PW.1) has stated in his cross-examination that "when occurrence took place I got information about the accused and then I moved an application for registration of the case. I do not remember the person of locality from whom I inquired about the accused persons. I was not intercepted by the accused persons because I was a bit behind the accused...I do not remember the colour of clothes worn by PWs Abid on the day of occurrence. I do not know the names of the drivers of PWs Shahid and Abid. After returning from P.S I did not go to Nishtar Hospital Multan. I met I.O. in the police station. My statement was recorded at the police of occurrence by the I.O. I was with the 1.0 when we went to the place of occurrence". Similarly, Muhammad Abid (PW.2) has stated in his cross-examination that the complainant reached the spot immediately after hearing hue and cry in about five minutes. Likewise Muhammad Shahid (PW.3) has stated in his cross-examination that "accused persons are not known to one prior to the occurrence. I saw the accused persons while they were present at the spot. I came to know about the accused persons when the case was registered...Nobody was injured by the accused persons except Rashid deceased." The above extracts of cross-examination of all the witnesses of ocular account nagate their presence on the spot at the time of incident. We have further observed that all the witnesses of ocular account were chance witnesses because the occurrence in this case had taken place about three kilometers away from their houses. Before the learned trial Court they have not given any plausible reason for their presence on the spot at the time of incident. Therefore, we hold that all the above said PWs were chance witnesses. The testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the cases reported as "Mst Shazia Parveen v. The State" (2014 SCMR 1197) and "Muhammad Rafique v. The State" (2014 SCMR 1698). Therefore, we hold that the evidence of above three eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
6. Motive behind the occurrence was that on 13.12.2015 the accused persons extended threat to Muhammad Rashid (deceased) that if again he passed through the street he would be done to death because on 13.12.2015 a minor altercation took place between Muhammad Rashid (deceased) and accused persons but the matter was patched up, however, the accused persons bore grudge in their heart. No detail as to on which issue altercation took place between the deceased and the accused persons has been brought on record. The same motive was alleged to Muhammad Mohsan and Abdul Sattar co-accused of the appellant who have been acquitted by the learned trial Court. Moreover, no independent witness qua motive part of incident was produced by the prosecution during the trial. Therefore, we hold that prosecution has failed to prove motive against the appellant.
7. So far as alleged recovery of .30 bore pistol at the instance of appellant is concerned, the same is immaterial because the prosecution has failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as "Muhammad Ismail and others v. The State" (2017 SCMR 898).
8. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprit implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605).
9. So far as the defence plea taken by the appellant in his statement under section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
10. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is placed on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).
11. For the foregoing reasons, Criminal Appeal No. 816 of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 09.06.2017 passed by the learned Additional Sessions Judge, Multan are set aside and the appellant is acquitted of the charges leveled against him while extending him benefit of doubt. Muhammad Tariq appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
12. Murder Reference No. 123 of 2017 is answered in NEGATIVE and the sentence of death awarded to Muhammad Tariq (convict) is NOT CONFIRMED.
JK/M-191/L Appeal allowed.