Doubt regarding Prosecution Case is sufficient to give Benefit of Doubt to Accused

PLJ 2013 Cr.C. (Lahore) 948 (DB)

Present: Manzoor Ahmed Malik & Malik Shahzad Ahmad Khan, JJ.

UMAR DRAZ, etc.--Petitioners

versus

STATE etc.--Respondents

Crl. Appeal No. 309 of 2008 & M.R. No. 61 of 2008, heard on 17.1.2013.

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

----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--It was evident from the perusal of statement of complainant which was made during his cross-examination that mother of appellant was an old woman of the age of about sixty-seven years and she was already divorced five six years back by appellant whereas, deceased was of the age of forty-seven/forty-eight years--The mother of appellant was living in village--Motive was mentioned in the FIR but complainant stated during his cross-examination that after the occurrence, he learnt about the illicit relations of deceased with the mother of appellant--Evidence qua stated by the complainant was based on hearsay evidence because the said witness has stated that he was told by someone about illicit relations between deceased and mother of appellant--Name of said person who told about the said illicit relations to the complainant was neither mentioned by him in his statement before the Court nor he was cited as a witness in this case--It was brought on the record that appellant was an old man of sixty-seven years of age--The appellants were not carrying any lethal weapon at the time of occurrence--Complainant party saw the appellants while strangulating deceased but instead of rescuing the deceased or trying to overpower the appellants, they raised noise, whereupon, the appellants fled away from the spot--It is not probable that appellant who was an old man of the age of sixty-seven years would succeed to flee away from the spot in presence of PW-7 who was twenty-eight years of age and complainant who was forty-nine years of age--Nothing incriminating was recovered from the possession of the appellants during their physical remand--It appeared that the occurrence was un-witnessed which took place in the darkness of night and the appellants were implicated in this case by the complainant party on the basis of suspicion because the dead-body of deceased was statedly found near their house--Prosecution had to prove its case against appellants beyond the shadow of doubt--Appeal was accepted, set aside conviction and sentence, acquitted the appellants by extending them benefit of doubt. [Pp. 953 & 955] A & B

Benefit of Doubt--

----Principle--It is by now well-settled that if there is a single circumstance which creates doubt regarding the prosecution case that is sufficient to give benefit of such doubt to the accused, whereas, the instant case is replete with number of circumstances which have created doubt about the prosecution story.       [P. 955] C

1995 SCMR 1345, ref.

Ch. Tanveer Ahmad Hanjra and Ch. Muhammad Nawaz Bosal, Advocates for Appellants.

Mr. Arshad Mehmood, D.P.G. for State.

Mr. Rehan Faheem Mahl, Advocate for Complainant.

Date of hearing: 17.1.2013.

Judgment

Malik Shahzad Ahmad Khan, J.--This judgment shall dispose of Criminal Appeal No. 309 of 2008, preferred by appellants Umar Draz and Muhammad Nawaz against their conviction and Murder Reference No. 61 of 2008, sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Umar Draz and Muhammad Nawaz appellants, as both these matters have arisen out of the same judgment dated 27.?.2008, passed by the learned Sessions Judge, Khushab in case FIR No. 192 dated 19.05.2007, offence under Sections 302 and 34, PPC, registered at Police Station Khushab District Khushab, whereby, Umar Draz and Muhammad Nawaz, appellants were convicted under Section 302(b) read with Section 34, PPC for committing the murder of Gulbaz and were sentenced to death as Tazir with the direction to pay Rs. 1,00,000/- (rupees one lac) each as compensation to the legal heirs of deceased Gulbaz as required under Section 544-A of the Code of Criminal Procedure and in default, thereof, to undergo simple imprisonment for six months each.

2.  Brief facts of the case as disclosure by Abdul Sattar complainant PW-8 in FIR (Exh. PF), are that he (complainant) was resident in Khushab and had also constructed a Dera in his land. On 18.05.2007 at about 09.00 p.m., he along with his brothers Muhammad Ramzan (PW-7), Gulbaz (deceased) and nephew Muhammad Mursaleen (given up PW) was present at his Dera situated in village Badli Wala when Umar Draz (appellant) came at their Dera and asked Gulbaz (deceased) that his father was calling him. Upon which Gulbaz (deceased) accompanied him to the Dera of Umar Draz (appellant). Gulbaz (deceased) did not return for a long time. Upon which, at about 11.45 p.m., (night), he (complainant) took the torch and went in search of Gulbaz (Deceased) along with Muhammad Ramzan (PW-7) and Mursaleen (given up PW) and when they reached near the Dera of Muhammad Nawaz (appellant), they witnessed in the light of torch that Muhammad Nawaz and Umar Draz (appellants) were strangulating brother of the complainant (Gulbaz) by putting a noose around his neck. They raised hue and cry, upon which, the appellants, on seeing them, fled away from the spot towards their Dera. They took care of the deceased who was dead. The motive, as stated by the complainant in the FIR (Exh-PF), was that Umar Draz (appellant) was having a suspicion that Gulbaz (deceased) had illicit relations with his mother and due to this grudge, both the appellants have committed the murder of Gulbaz (deceased).

3.  The appellants were arrested in this case on 20.5.2007 by Muhammad Ajmal, S.I. (PW-10). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants on 12.07.2007, to which they pleaded not guilty and claimed trial.

4.  In order to prove its case, the prosecution produced ten witnesses, during the trial. Abdul Sattar, complainant (PW-6) and Muhammad Ramzan (PW-7) are the witnesses of ocular account.

The medical evidence was furnished by Dr. Zafar Iqbal Bhatti (PW-1) who conducted the post-mortem examination on the dead body of Gulbaz (deceased).

Muhammad Ajmal, S.I., (PW-10) is the Investigating Officer of the case. Ghulam Yasin, Patwari (PW-2), Manzoor 521/C (PW-3), Ahmad Hassan 569/C (PW-4), Faiz Ahmad H.C. (PW-5), Abdul Khaliq (PW-8) and Muhammad Aslam, S.I. (PW-9) are the formal witnesses. The prosecution produced documentary evidence in the shape of post-mortem report (Exh-PA), pictorial diagrams (EXh-PA/1 & Exh-PA/2), injury statement (Exh-PB), inquest report (Exh-PC), scaled site-plans in duplicate (Exh-PD & Exh-PD/1), recovery memo. of cloth along with noose (Exh-PE), FIR (Exh-PF), recovery memo. of torch P-4 (Exh-PG), recovery memo. of blood stained earth (Exh-PH), rough site-plan of the place of occurrence (Exh-PI), report of Chemical Examiner (Exh-PJ), report of Serologist (Exh-PK) and closed its evidence.

The statements of the appellants under Section 342 of the Code of Criminal Procedure were recorded on 05.03.2008. They refuted the allegations levelled against them and professed their innocence. While answering to question "Why this case against you and why the PWs have deposed against you both the appellants replied as under:

"It is was an unseen occurrence which took place in the dark hours of the night and it was generally known in the locality that Muhammad Gulbaz committed suicide on account of his financial constraints and over a dispute of land with his brothers, Abdul Sattar and Muhammad Ramzan. I have been made scapegoat in this case."

The appellants neither opted to give evidence on oath as provided under Section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against them nor produced any evidence in their defence.

5.  Learned counsel for the appellants, in support of this appeal, contend that in fact it was an un-witnessed occurrence, which took place in the dark hours of the night and even the doctor, who conducted the post-mortem on the dead-body of Gulbaz (deceased), has given the probable time between death and post-mortem examination on the basis of police report; that the presence of both the eye-witnesses namely, Abdul Sattar, complainant (PW-6) and Muhammad Ramzan (PW-7) at the spot at the time of occurrence is improbable because they are not residents of the locality where the occurrence took place; that the torch (P-4) was handed over to the police by the complainant with the delay of four days on 22.5.2007 whereas, this occurrence allegedly took place on 18.5.2007; that the prosecution has miserably failed to prove the motive as Muhammad Nawaz (appellant) had already divorced his wife about five/six years prior to the occurrence who was living at village Kufri which is at a distance of about fifty/sixty kilometers from the place of occurrence and this fact has been admitted by the witnesses in their cross-examination; that the motive has also not been believed by the learned trial Court; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt; thus, this appeal be accepted and the appellants may be acquitted from the charges.

6.  On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that this incident took place on 18.5.2007 at about 11.45 p.m. (night) whereas, the matter was reported to the police on the same night at about 1.30 a.m.; that the post-mortem examination was also conducted on 19.5.2007 at about 6.10. a.m., which rules out the chances of consultation and false implication; that there is no evidence or circumstance available on the record which could suggest any malice on the part of the complainant or other eye-witness for false implication of the appellants in this case; that natural account of event has been given by the complainant in the FIR (Exh-PF) and while appearing before the learned trial Court; that both the eye-witnesses though related with the deceased but their evidence could not be discarded on this ground as they have no enmity for false implication of the appellants; that the ocular account of this case is fully supported by the medical evidence furnished by Dr. Zafar Iqbal Bhatti (PW-1). So far as the motive is concerned, the learned counsel for the complainant argued that it was talk of the town that Umar Draz (appellant) had a suspicion of illicit relations of Gulbaz (deceased) with his mother and as such, the motive has wrongly been disbelieved by the learned trial Court; that the sentence of death was rightly awarded to the appellants by the learned trial Court and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.

7.  We have heard the arguments of learned counsel for the appellants, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant and have also gone through the record with their able assistance.

8.  As per prosecution story, the appellants committed the murder of Gulbaz (deceased) because Umar Draz (appellant) had suspicion in his mind that Gulbaz (deceased) had illicit relations with his (Umar Draz) mother. The evidence qua said motive was furnished by Abdul Sattar, complainant (PW-6) and Muhammad Ramzan (PW-7). The complainant Abdul Sattar (PW-6) was cross-examined regarding the motive part of the prosecution and he, at page 23 of the paper book, has stated as under:

"I have seen Muhammad Nawaz accused. He might be 67 years old man and not 70 as suggested. Khadija, his wife might be of his age and that Muhammad Nawaz had divorced his wife 5/6 years before. It is correct that she had been residing in village Kufri after divorce. Kufri is about 50/60 Kilometers from Khushab. Gulbaz, since deceased was 47/48 years old when died. Till the fateful day the relations between Umar Darz and Gulbaz, since deceased had been very cordial and there had been no rumor about the suspicion of illicit relations of Umar Draz's mother with Gulbaz. After the occurrence I learnt about these illicit relations. Someone told me about. He is not a witness cited by us in this case..."

It is evident from the perusal of above-mentioned statement of Abdul Sattar, complainant (PW-6), which was made during his cross-examination that mother of Umar Draz (appellant) was an old woman of the age of about sixty-seven years and she was already divorced five six years back by Muhammad Nawaz (appellant) whereas, Gulbaz (deceased) was of the age of forty-seven/forty-eight years. The mother of Umar Draz (appellant) was living in village Kufri, which is at ainstance of about fifty/sixty kilometers from Khushab. The above-mentioned motive was mentioned in the FIR (Exh-PF) but Abdul Sattar, complainant (PW-6) stated during his cross-examination that after the occurrence, he learnt about the illicit relations of Gulbaz (deceased) with the mother of Umar Draz (appellant). The evidence qua the above-mentioned motive, as stated by the complainant Abdul Sattar (PW-6), is based on hearsay evidence because the said witness has stated that he was told by someone about illicit relations between Gulbaz (deceased) and mother of Umar Draz (appellant). The name of said person who told about the said illicit relations to the complainant was neither mentioned by him in his statement before the Court nor he was cited as a witness in this case.

9.  The occurrence, as per prosecution case, took place at 11.45 p.m. (night) near the house of the appellants. The ocular account of the prosecution was furnished by Abdul Sattar, complainant (PW-6) and Muhammad Ramzan (PW-7). They are not residents of the locality where the occurrence took place. Abdul Sattar, complainant (PW-6) is resident of Mohallah Wazirabad, Khushab and Muhammad Ramzan (PW-7) is resident of Mohallah Malkhani Wala, Khushab whereas, the occurrence took place in village Badli Wala. The distance between Badli Wala and Wazirabad is 2«/3 Kilometers and this fact was brought on the record during the cross-examination of Abdul Sattar (PW-6). Although Abdul Sattar, complainant (PW-6) and Muhammad Ramzan (PW-7) have claimed that they had a Dera in village Badli Wala but they have not given the distance of their Dera from the place of occurrence. Their Dera has not been shown in the site-plan (Exh-PD) so, it is quite obvious that they (Abdul Sattar, complainant PW-6) and Muhammad Ramzan PW-7) are not residents of the locality where the occurrence took place. According to the statements of the above-mentioned eye-witnesses, on the night of occurrence at 09.00 p.m. Umar Draz (appellant) came to the Dera of the complainant and asked Gulbaz (deceased) to accompany him to his father, upon which, Gulbaz (deceased) accompanied Umar Draz (appellant) and thereafter, he was murdered by the appellants because Umar Draz (appellant) had suspicion of illicit relations of his mother with Gulbaz (deceased). The above-mentioned story of the prosecution regarding asking of Umar Draz (appellant) to Gulbaz (Deceased) to accompany him at night time i.e. 09.00 p.m. does not appeal to common sense because according to prosecution's own case, the appellants suspected Gulbaz (deceased) that he had illicit relations with the mother of Umar Draz (appellant), therefore, it is not probable that Gulbaz (deceased) will accompany Umar Draz (appellant) to his house at the odd hours of the night. According to the statements of the eye-witnesses, they identified the appellants at the time of occurrence from a distance of ten Karams (about fifty-five feet) in the light of torch. The said torch was not produced before Muhammad Ajmal, S.I. (PW-10) at the time of his spot inspection on 19.05.2007. The occurrence in this case took place on 18.05.2007 whereas, the torch was produced before the Investigating Officer on 22.05.2007. No plausible explanation has been given by the prosecution as to why the torch was not taken into possession by Muhammad Ajmal, S.I. (PW-10) at the time of his spot inspection on 19.05.2007 although he stated that he took into the possession blood stained earth from the spot, recorded the statements of PWs under Section 161 of the Code of Criminal Procedure, prepared rough site-plan of the place of occurrence and completed other proceedings of spot inspection on the said date. Even otherwise, the identification of the appellants in the darkness of night with the help of torch light from a distance of ten Karamas (about fifty-five feet) is not free from doubt. It also does not appeal to the mind of a prudent person that when Gulbaz (deceased) was taken by Umar Draz (appellant) to his house at 9.00 p.m. then why both the appellants kept in waiting till 11.45 p.m. to commit his murder. The conduct of the complainant and other prosecution witnesses, at the time of occurrence, is also unnatural. As per prosecution case, the complainant party comprised of three male persons namely,  Abdul  Sattar,  complainant (PW-6), Muhammad Ramzan (PW-7)  and  Muhammad  Mursaleen  (given  up  PW)  whereas,  the  accused party consists of two persons namely, Umar Draz and Muhammad Nawaz (appellants). It was brought on the record that Muhammad Nawaz (appellant) was an old man of sixty-seven years of age. The appellants were not carrying any lethal weapon at the time of occurrence. The complainant party saw the appellants while strangulating Gulbaz (deceased) but instead of rescuing the deceased or trying to overpower the appellants, they raised noise, whereupon, the appellants fled away from the spot. It is not probable that Muhammad Nawaz (appellant) who was an old man of the age of sixty-seven years would succeed to flee away from the spot in presence of Muhammad Ramzan (PW-7) who was twenty-eight years of age and Abdul Sattar, complainant (PW-6) who was forty-nine years of age. Nothing incriminating was recovered from the possession of the appellants during their physical remand. It appears that the occurrence was un-witnessed which took place in the darkness of night and the appellants were implicated in this case by the complainant party on the basis of suspicion because the dead-body of Gulbaz (deceased) was statedly found near their house.

It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case that is sufficient to give benefit of such doubt to the accused, whereas, the instant case is replete with number of circumstances which have created doubt about the prosecution story. In "Tariq Pervez vs. The State" (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:--

"5.   ....The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram vs. The State" (2009 SCMR 230), at page 236, observed as under:

"13.    ...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 this Court 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 created 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 concessional but as a matter of right."

10.  In the light of the above-discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, we accept the Criminal Appeal No. 309 of 2008 filed by Umar Draz and Muhammad Nawaz (appellants), set aside their convictions and sentences and acquit them of the charges by extending them the benefit of doubt. They are in custody, they be released forthwith if not required in any other case.

11.  Murder Reference No. 61 of 2008 is answered in the Negative and the sentence of death of Umar Draz and Muhammad Nawaz (convicts) is Not Confirmed.

(A.S.)   Appeal accepted

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