Evidence against the accused is of high importance

PLJ 2010 SC 953 [Appellate Jurisdiction] Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Rahmat Hussain Jafferi, JJ. MUHAMMAD SALEEM--Appellant versus STATE--Respondent Crl. Appeal No. 593 of 2006, decided on 14.10.2009. (Against judgment dated 16.4.2003 of the High Court of Balochistan, Quetta, passed in Crl. Jail Appeal No. 56 of 2000). Pakistan Penal Code, 1860 (XLV of 1860)-- ----S. 302(b)--Conviction and sentence to suffer imprisonment for life with benefit of S. 382-B, Cr.P.C.--Co-accused was acquitted from the charge of murder--Maintained by High Court--Jail Petition was filed before Supreme Court in which leave was granted to re-appraise the evidence--Lacuna of absence of light--Incident was un-witnessed as ocular testimony was in conflict with medical evidence--Incident took place during night time and there was no source of light at that time--None of prosecution witnesses alleged that any lantern was burning or there was electricity in the village--Held: Complainant in FIR involved co-accused since acquitted, but during trial he was exonerated as no evidence was produced despite the fact that specific allegations of catching hold of deceased were leveled against him--Prosecution, in order to overcome the lacuna of absence of light, tried to establish that the witnesses had a very close look of the appellant by stating that there was knock at the door of the house which was responded by female prosecution witness where she found the accused alone present with a stone in his hand--Further held: Prosecution had failed to prove its case against the accused beyond any reasonable doubt--Appellant was entitled to benefit of doubt--Appeal accordingly allowed. [Pp. 956 & 957] A & J Identity of Culprits-- ----Prosecution witnesses were not mentioned in FIR--Question of identity of culprits and fitting in the circumstances--Presence of prosecution witnesses was not shown at the time of incident--No doubt prosecution witness was wife of deceased, whose presence cannot be doubted regarding presence of other witnesses it has not been mentioned in FIR that she was residing in the house. [P. 956] B Conflict between Medical and Oral Evidence-- ----Accused caused 6/7 blows on the head of deceased--Such fact has neither been supported nor corroborated by medical evidence as according to the medical report the deceased had only one injury on his head which was caused with blunt weapon--Held: There is a conflict between the medical and oral evidence. [P. 956] C Relationship-- ----Question of--Appreciation of evidence--No reason to falsely implicate the accused does not carry much substance--Question of relationship but veracity of witness is to be seen so as to arrive at a conclusion whether the witness is truthful or otherwise--Validity--Statement of a witness must be in consonance with probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person--Held: If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. [Pp. 956 & 957] D & E 1995 SCMR 1627, ref. Independent witness-- ----Test of veracity of a witness--Inherent merit of his own statement--Validity--An impartial and independent witness who was neither related to complainant nor inimical toward, the accused would stamp his testimony necessarily to be true--Statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. [P. 957] F Disinterest witness-- ----A disinterest witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous. [P. 957] G 1977 SCMR 457 & 1995 SCMR 1627, ref. Rule of Acceptance of Evidence-- ----Test to the prosecution witnesses--Applicability--Applying the test to the prosecution witnesses--Held: Their statements do not come within the ambit of the rule of acceptance of evidence, therefore, no implict reliance can be placed on such type of evidence without any corroboration which is lacking in the present case. [P. 957] H Limitation-- ----Delay of 287 day--Question of limitation in jail petition--Since the appeal arose out of jail petition and accused was a convict on the charge of murder--Supreme Court in the interest of justice were inclined to condone delay of 287 days caused in filing the jail petition. [P. 957] I Malik Muhammad Kabir, ASC for Appellant. Raja Abdul Ghafoor, ASC (on behalf of Government of Baluchistan) for State. Date of hearing: 14.10.2009. Judgment Rahmat Hussain Jafferi, J.--On 16.5.2000, the appellant Muhammad Saleem was convicted for an offence punishable under Section 302(b), PPC and sentenced to suffer imprisonment for life with benefit of Section 382-B, Cr.PC whereas co-accused Muhammad Akram was acquitted from the charge of murder by the learned Sessions Judge, Khuzdar on the ground that the PWs did not involve him in the commission of the crime. On appeal, a learned Division Bench of the High Court of Balochistan, Quetta maintained the conviction and sentence passed by the trial Court under the impugned judgment dated 16.04.2003. The appellant preferred Jail Petition bearing No. 103 of 2004 before this Court in which leave was granted to re-appraise the evidence, vide order dated 17.04.2006. Hence this appeal.

2. Brief facts giving rise to the present appeal as disclosed in FIR are that the complainant Muhammad Aslam alongwith his parents was residing in the house. On 19.03.1998 they were sleeping in a room when at 11.55 p.m. he woke up and saw the appellant Muhammad Saleem and acquitted-accused Muhammad Akram present in the house. They entered the house after breaking its door. The acquitted accused Muhammad Akram caught hold of Rais Maula Bakhsh, deceased whereas the appellant Muhammad Saleem was causing injuries with some hard substance on his head. He further disclosed that the accused demanded Rs.50,000/- from his deceased father and thereafter ran away. The complainant took the injured to the Hospital but he died on the way. The police investigated the case, collected the ocular evidence of complainant Muhammad Aslam (PW.1), PW.2 Mst. Dur Khatoon, wife of the deceased, and PW.3 Mst. Zar Bibi, mother of the deceased. After arresting the accused, they were challaned in the Court, where they were tried.

3. Learned counsel for the appellant has argued that the incident took place at the odd hours of the night; that there was no source of light and that the incident was un-witnessed as the ocular testimony is in conflict with the medical evidence. Conversely, learned counsel for the State, has supported the impugned judgment by submitting that the appellant was grandson of Mst. Zar Bibi (mother of the deceased); that the parties were closely related to each other, therefore, there is no question of mistaken identity. He has further argued that the PWs have no reason to falsely implicate their kith and kin.

4. Having heard the arguments of learned counsel for the appellant as also for the State and having gone through the record, with their assistance, we find that the incident took place during night time at 11.35 p.m. and there was no source of light at that time. None of the PWs alleged that any lantern was burning or there was electricity in the village in the year 1998. This fact has put us on guard to examine the oral testimony very carefully. We find that the complainant in the FIR involved co-accused Muhammad Akram, since acquitted, but during trial he was exonerated as no evidence was produced despite the fact that specific allegations of catching hold of the deceased were leveled against him. The prosecution, in order to overcome the lacuna of absence of light, tried to establish that the witnesses had a very close look of the appellant by stating that there was knock at the door of the house, which was responded by PW.3 Mst. Zar Bibi where she found the appellant alone present with a stone in his hand. This fact was never alleged in the FIR. On the contrary the case build up at the initial stage was that the appellant and acquitted co-accused had entered the house by breaking its door. This improvement made by the prosecution witnesses in the case was to strengthen the question of identity of culprits and fitting in the circumstances of the case. The learned trial Court examined this aspect of the case and rightly discarded the said portion of the statement. It is also of worth to note that in the FIR the presence of PWs.2 and 3 Mst. Dur Khatoon and Mst. Zar Bibi was not shown at the time of incident. No doubt PW.2 was wife of the deceased, whose presence cannot be doubted whereas, regarding presence of PW.3 Mst. Dur Khatoon, it has not been mentioned in the FIR that she was residing in the house. Be that as it may, the fact remains that both the PWs. 2 and 3 specifically alleged that the appellant caused 6/7 blows on the head of the deceased. This fact has neither been supported nor corroborated by the medical evidence as according to the medical report the deceased had only one injury on his head which was caused with blunt weapon. Thus, there is a conflict between the medical and oral evidence.

5. The argument of the learned State counsel that PW.3 Mst. Zar Bibi, grandmother of the appellant, had no reason to falsely implicate the accused does not carry much substance, as it is not the question of relationship but veracity of witness is to be seen so as to arrive at a conclusion whether the witness is truthful or otherwise. General rule is that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to "Haroon v. State (1995 SCMR 1627)." The avoid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterest witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequence. Reference is invited to "Muhammad Rafique v. State (1977 SCMR 457) and Haroon v. State (1995 SCMR 1627)."

6. Applying the test to the prosecution witnesses, we find that their statements do not come within the ambit of above rule, of acceptance of evidence, therefore, no implicit reliance can be placed on such type of evidence without any corroboration which is lacking in the present case.

7. So far as the question of limitation is concerned. Since the appeal arose out of a jail petition and the appellant is a convict on the charge of murder, we therefore in the interest of justice are inclined to condone delay of 287 days caused in filing the petition.

8. In the light of what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Therefore, the appellant is entitled to the benefit of doubt which is accordingly given to him. Consequently, the conviction and sentence awarded to the, appellant are set aside. He shall be released forthwith if not required in any other custody case. The appeal is accordingly allowed. (R.A.) Appeal allowed.