TARIQ SALEEM SHEIKH, J.---This appeal is directed against judgment dated 28.07.2015 passed by the learned Additional Sessions Judge/Juvenile Court, Lahore, in case FIR No.69/2005 dated 02.02.2005 registered at Police Station South Cantt., Lahore, for offences under sections 302/324/452, P.P.C.
2. Briefly, the facts of the case are that Complainant Aslam Pervaiz (PW-1) made a complaint Exh.PA to Muhammad Sarwar/SI (PW-11) stating that he was a resident of Hafizabad and had come to Lahore to see his brother Khalid Javed and was staying with him. On the night between 1/2.2.2005 his brother and Bhabi (sister-in-law) Azra Parveen (PW-2) slept in their own room and he in a separate one. At about 1:00 a.m. he woke up on hearing hue and cry and saw his brother and sister-in-law lying injured in the courtyard. Within his view the assailant (the Appellant) jumped over the main gate and escaped. He raised alarm which attracted people of locality to the spot and they took both the injured to the hospital. Khalid Javed succumbed to his injuries while he was still on way to it whereas Azra Parveen was discharged after a couple of hours. Complainant Aslam Pervaiz added that Azra Parveen told her that a few days prior to the occurrence the Appellant committed theft of motorcycle of a friend of the deceased and the same was recovered from him.
The deceased complained to his father who admonished him. He became revengeful and on the fateful night attacked Khalid Javed with a chhuri when he got up to urinate. Azra Parveen tried to apprehend him whereupon he also inflicted injuries on her head and hand. The Complainant maintained that he had identified the Appellant in the light of an electric bulb. Muhammad Sarwar/SI (PW-1.1) sent complaint Exh.PA to the police station through Akbar Ali Constable and in pursuance thereof Muhammad Aslam/SI (PW-7) registered FIR No.69/2005 Exh.PA/1.
3. The investigation of the case was entrusted to Muhammad Akram Khan/Inspector (PW-10). On the very day of occurrence, i.e. 02.02.2005, he visited the crime scene along with other police officials and prepared unsealed site plan and collected blood from there by means of a cloth and secured it vide Recovery Memo Exh.PG. He also prepared Inquest Report Exh.PH, drafted application for post-mortem Exh.PJ and dispatched the corpse to the mortuary through Muhammad Arshad and Safdar Ali constables. When the autopsy was done he took into possession last worn clothes of the deceased through Recovery Memo Exh.PB and recorded the statements of the witnesses under section 161, Cr.P.C. On 05.02.2005 he called Draftsman Syed Younas Bokhari (PW-9) who prepared scaled site plan Exh.PF and Exh.PF/1. On 08.02.2005, he recorded statement of Azra Parveen under section 161, Cr.P.C. On 07.03.2005, he arrested the Appellant and the following day got his physical remand. On 11.03.2005, he recovered the weapon of offence (chhuri P-5) at his instance which he secured through Recovery Memo Exh.PC. During the investigation he found that the Appellant had committed the offence. Report under section 173, Cr.P.C. was submitted accordingly.
4. The Appellant was a juvenile so he was tried under the Juvenile Justice System Ordinance, 2000.
The learned Additional Sessions Judge indicted him on 05.09.2006. He denied the charge and claimed trial. In order to prove the charge the prosecution examined 11 witnesses in all. The ocular account was rendered by Complainant Aslam Pervaiz (PW-1) and Azra Parveen (PW-2) while medical evidence was produced by Dr. Fakhar-uz-Zaman (PW-8). Muhammad Yousaf 10540/C (PW-5) testified the recovery of chhuri P-5. The Investigation Officer, Muhammad Akram Khan/Inspector (PW-10), gave the details of his investigation and the evidence he collected in this case. The remaining witnesses were formal in nature. The learned prosecutor gave up Tallat Ramay 10986/C, Safdar Ali/C, Dr. Farooq (Causality Officer, General Hospital, Lahore), Dr. Ayesha Ibrahim, Muhammad Ayub/SI and Muhammad Afzal/ASI being unnecessary. On 21.05.2015, he closed the prosecution evidence after tendering reports of the Serologist Exh.PM and the Chemical Examiner Exh.PN and Exh.PP.
5. Dr. Fakhar-uz-Zaman (PW-8), who conducted autopsy of Khalid Javed at 6:00 p.m. on 02.02.2005, found the following injuries on his body:
1. An incised wound 5 x 1 cm bone not exposed on right parietal area of head, 3 cm from midline and 9 cm from above right ear.
2. An incised wound 1 x 0.5 cm bone not exposed on left front parietal area of head, 5 cm from midline and 5 cm from above left eyebrow.
3. An incised wound 1 x 0.2 cm bone not exposed on right side of forehead 1 cm above right eyebrow and 2 cm right midline.
4. An incised wound 2 x 1 cm bone not exposed, 1 cm outer to right eye.
5. An incised wound 2 x 1 cm bone not exposed on right mastoid 2 cm posterior to right ear.
6. An incised wound 2.5 x 1 cm superficial on front of right shoulder 5 cm below top of it.
7. An incised wound 1 x 0.5 cm flesh cut on front upper right forearm 4 cm below right elbow.
8. An incised wound 3 x 2 cm on inner upper right forearm 6 cm below elbow joint.
9. An incised wound 6 x 2 cm going deep on front lower part of left side of chest 1 cm left to midline and 8 cm below and inner to left nipple.
Dr. Fakhar-uz-Zaman deposed that all the aforementioned injuries were ante-mortem and were caused by sharp-edged weapon. Injuries Nos.1 to 8 were non-fatal. Cause of death in this case was Injury No.9 which damaged vital organs i.e., chest and heart, leading to severe haemorrhage and shock. In his opinion, the probable time between injury and death was a few minutes and between death and post-mortem was 13 to 24 hours.
6. On 16.06.2015, the learned trial Court recorded the statement of the Appellant under section 342, Cr.P.C. and confronted him with all the incriminating evidence brought against him. He refuted the same and professed innocence. He maintained that it was a blind murder and he had no hand in it. He had been implicated due to suspicion. Khalid Javed was an electrician and he worked with him for a very short period and left his employment three months prior to the occurrence. He further stated that the deceased was issueless and did not bear good moral character. It was talk of the town that he had extra-matrimonial relations with various women and an unknown person who grudged such relationship might have killed him. The Appellant neither opted to make statement on oath under section 340(2), Cr.P.C. in disproof of the allegations leveled against him nor produced any evidence in his defence.
7. On the conclusion of the trial, vide judgment dated 28.07.2015, the learned Juvenile Court convicted and sentenced the Appellant as under:
(i) Convicted under section 302(b), P.P.C. for committing Qatl-i-amd of Khalid Javed and sentenced to imprisonment for life.
(ii) Convicted under section 452, P.P.C. and sentenced to two years imprisonment.
The learned Court, however, acquitted the Appellant of the charge under section 324, P.P.C. for attempting to commit Qatl-i-amd of Azra Parveen (PW-2). Through this appeal the Appellant has assailed his aforesaid conviction and sentence before this Court.
8. The learned counsel for the Appellant contended that the Appellant had been falsely implicated in this case. He argued that, firstly, Khalid Javed did not bear good character and someone who grudged his immoral activities had murdered him. It was a blind murder and the prosecution had failed to prove his involvement in it. Secondly, Complainant Aslam Pervaiz (PW-1) was a resident of Hafizabad and was not present at the place of occurrence at the relevant time. The police had planted him to strengthen the prosecution case. Thirdly, Azra Parveen (PW-2) was the sole witness of the incident but even she was not trustworthy because she concealed true facts. Her statement under section 161, Cr.P.C. was recorded after an unexplained delay of six days which also impinged on her credibility. Fourthly, the Appellant was feeble and of short height. He could neither attack Khalid Javed who was stout and well-built nor could he scale over 6/7 feet-high main gate to escape. Fifthly, chhuri P.5 was not recovered from the Appellant and the police had foisted it on him. The diagram of the said chhuri given on Recovery Memo Exh.PC belied the claim of the prosecution that it was used in commission of the offence because it was bent from the front side and no incised wound could be inflicted with it. Sixthly, the motive was not proved. And lastly, there were material contradictions in the prosecution evidence which legitimately entitled the Appellant to benefit of doubt and the learned trial Court had illegally withheld it. The learned counsel prayed that the instant appeal may be accepted and the Appellant be acquitted of the charge.
9. On the other hand, the learned Additional Prosecutor General assisted by the learned counsel for the Complainant vehemently opposed this appeal. He contended that the FIR was promptly lodged and the Appellant was nominated therein with a specific role. It was a case of single accused and the witnesses had no previous enmity with the Appellant. There was no reason for them to substitute, him for the real culprit which was even otherwise a rare phenomenon. He further contended that Aslam Pervaiz (PW-1) and Azra Parveen (PW-2) were the natural witnesses of the occurrence and their testimony inspired confidence. The ocular account was fully corroborated by medical evidence, recovery of the weapon of offence (chhuri P-5). Belated examination of Azra Parveen by the Investigation Officer was not fatal to the prosecution case. The learned Law Officer lastly submitted that the prosecution had proved the charge against the Appellant beyond reasonable doubt. The impugned judgment was well reasoned and did not call for interference by this Court. He prayed that this appeal may be dismissed and the Appellant's conviction and sentence be upheld.
10. I have heard the learned counsel for the parties and have examined the record with their able assistance.
11. According to the prosecution, the occurrence took place in Gulshan-e-Ali Colony within the territorial limits of Police Station South Cantt., Lahore, at about 1:00 a.m. on 02.02.2005. Muhammad Sarwar/SI (PW-11) deposed that he was patrolling in Nishat Colony when he received '15 call' that an injured person had been brought to the General Hospital whereupon he along with other police officials went there. At 2:30 a.m. when he was in the Emergency Ward Aslam Pervaiz (PW-1) submitted written complaint Exh.PA to him which he sent to the police station and on its basis FIR No.69/2005 Exh.PA/1 was registered at 3:30 a.m. As already noted, one of the contentions of the Appellant is that the Complainant was a resident of Hafizabad and was not present at the spot when the incident happened and that the police had planted him with the mala fide intent to help the prosecution. He alleges that they even suspended the Roznamcha for this purpose. Obviously the prosecution denies it.
12. Aslam Pervaiz was the brother of Khalid Javed deceased. He testified that he was employed with WAPDA and was posted at Hafizabad. He used to come to Lahore to see him and also stay with him. On the fateful night he was present in his house. In his cross-examination he stated that he was on leave that day but did not produce any evidence in support of his statement. Further, he had no specific purpose for his visit. Relevant excerpt from his deposition is reproduced hereunder: "I am a WAPDA employee and posted at Hafizabad. I perform shift duty which rotates during 24 hours. This rotation takes place week-wise, morning, evening and night. Morning duty starts from 6:00 a.m. to 2:00 p.m. Evening duty starts from 2:00 a.m. to 10:00 p.m. and night duty starts from 10:00 p.m. to 6:00 a.m. On the relevant day I was in morning duty. However, I was on leave on that day. It is correct that I did not mention regarding my leave on the date of occurrence. It is correct that I did not produce any record regarding my leave before the Investigation Officer. I would visit my brother's house fortnightly or monthly. Usually, I visited my brother's house on off days/rest day.
It is incorrect to suggest that I was not on leave on the relevant date. It is also incorrect to suggest that I have concocted the story.... I did not visit my brother on the relevant day for specific purpose.
I just went to see him."
13.Even if one ignores the fact that the prosecution has not established that Aslam Pervaiz was on leave from his job as aforesaid, he can justifiably be regarded as a chance witness and his testimony must be carefully scrutinized before it is relied upon. Here, I am guided by the following dictum laid down by the Hon'ble Supreme Court of Pakistan in "Mst. Sughra Begum and another v.
Qaiser Pervez and others" (2015 SCM R 1142): "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that 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. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to 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."
14. A wade through the testimony of Aslam Pervaiz (PW-1) reveals a lot of holes which bereave it of its credibility. To start with, he elaimed that he was present at the time when the occurrence took place. He neither called the police nor Rescue 1122 for help. In the normal course he should have asked for it immediately. It is intriguing that although the incident happened at 1:00 a.m., Khalid Javed and Azra Parveen reached the hospital at 2:00/2:15 a.m. There is no explanation for this delay. Secondly, the testimony of Aslam Pervaiz is in conflict with the other prosecution evidence with regard to the question as to how the injured were taken to the hospital. In his cross- examination he stated that a patrolling police party immediately came to the spot on hearing hue and cry and they shifted them to the hospital on their own vehicle. In contrast, Muhammad Sarwar/SI (PW-11) deposed that he was patrolling at Nishat Colony when he received a '15 call' that an injured person had been admitted to the General Hospital whereupon he proceeded straight to the hospital and did not go to the place of occurrence. Thirdly, there is no reliable evidence to show that Aslam Pervaiz even accompanied the injured to the Hospital. Fourthly, the post-mortem examination of the deceased was conducted 13 to 24 hours after his death. The prosecution has not explained the said delay. Generally such unexplained delay is "suggestive of a possibility that time had been consumed by the police in procuring and planting' eye-witnesses and cooking up a story for the prosecution." Reference in this regard is respectfully made to "Irshad Ahmad v. The State" (2011 SCM R 1190), "Muhammad Ilyas v. Muhammad Abid alias Billa and others" (2017 SCM R 54) and "Abdul Jabbar alias Jabbari v. The State" (2017 SCM R 1155). Lastly, he made dishonest improvements in his previous statement Exh:PA with which he was duly confronted. It is by now well settled that a witness who dishonestly changes or improves his version is not trustworthy. Reliance is placed on "Amir Zaman v. Mahboob and others" (1985 SCM R 685), "Ibrar Hussain and others v.
The State" (2007 SCM R 605), "Akhtar Ali and others v. The State" (2008 SCM R 6), "Muhammad Rafique and others v. The State and others" (2010 SCM R 385), "Muhammad Naeem Inayat v. The State" (2010 SCM R 1054), "Muhammad Saleem v. Muhammad Azan and another" (2011 SCM R 474) and "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCM R 344).
15. Azra Parveen (PW-2) is the prime witness of the instant case. According to the prosecution, her presence at the spot at the relevant time was natural as she was the wife of Khalid Javed and it is reaffirmed by the fact that she was injured in the occurrence. This may be true but it is intriguing that her statement under section 161, Cr.P.C. was F recorded six days after the incident for which the prosecution has not furnished any explanation. The following excerpt from the cross-examination of Muhammad Akram Khan/Inspector (PW-10) is quite instructive: "I did not record the statement of Mst. Azra by that time. I recorded the statement of Mst. Azra for the first time on 08.02.2005. I did not record any reason in any of case diary as to why the statement of Mst. Azra was not recorded prior to 08.02.2005. It is incorrect that I did not record statement of Mst. Azra for so many days after the occurrence, because it was a blind occurrence and I have been searching for the real culprits. It is correct that according to the Medico Legal Report of Mst. Azra she was in full senses." '
16. It goes without saying that Azra Parveen was not admitted in the hospital and was discharged a couple of hours after she was brought there on 02.02.2005. As such, there was no impediment in recording of her statement. In her examination-in-chief she deposed: "My husband succumbed to the injuries while on the way to the hospital. I was relieved from the hospital after providing the necessary medical treatment."
17. It is a settled law that where the statement of a witness is recorded with delay without any cogent reason his credibility becomes doubtful. Reliance is placed on "Syed Saeed Muhammad Shah and another v. The State" (1993 SCM R 550), "Abdul Khaliq v. The State" (1996 SCM R 1553) and "Muhammad Khan v. Maula Bakhsh and another" (1998 SCM R 570).
18. There is yet another significant aspect of the case. During the trial the prosecution deliberately withheld Dr. Ayesha Ibrahim, the Medical Officer who allegedly examined Azra Parveen on 02.02.2005. Resultantly, the learned Additional Sessions Judge acquitted the Appellant of the charge under section 324, P.P.C. for attempting to commit Qatl-i-amd of Azra Parveen. This fact also causes dent in the prosecution case.
19. The medical evidence furnished by Dr. Fakhar-uz-Zaman (PW-8) and the post-mortem Report of Khalid Javed Exh.PE cannot be read in isolation and would not rescue the prosecution. It is by now well settled that medical evidence may confirm the eyewitness account with regard to the seat and nature of injuries, the kind of weapon used in an occurrence but cannot identify the accused. Reference in this respect may be made to the case of "Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103), "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410), "Muhammad Shafi and others v. The State and others" (2016 SCM R 1605) and "Hashim Qasim and another v. The State" (2017 SCM R 986).
20. The prosecution heavily relies on the recovery of chhuri P-5 allegedly made from the Appellant for corroboration of the ocular account. At the very outset it is observed that the said recovery lacks credibility because it was made in violation of section 103, Cr.P.C. More importantly, the prosecution has failed to prove its safe custody. Muhammad Akram Khan/Inspector (PW-10) deposed that chhuri P-5 was recovered at the instance of the Appellant in the presence of PW-5 Muhammad Yousaf 10540/C and PW Tallat Ramay (given up) on 11.03.2005. However, he could not tell when he handed it over to the Moharrar for safe keeping. He said: "I handed over the chhuri to Moharrar but the date of handing over to Moharrar is not remembered by me. I got the parcel of chhuri dispatched to office of Chemical Examiner on 28.04.2005. I do not remember whether I recorded in the case diary for delay in dispatch the parcel of chhuri."
On the other hand, Iftikhar Ahmad/ASI (PW-6), who was the Moharrar of Police Station South Cantt talked about keeping of only one parcel (blood-stained clothes) in the Malkhana which the Investigation Officer handed over to him on 02.02.2005. He entrusted it to Muhammad Sarwar 11972/C (PW-4) on 08.03.2005 for onward transmission to the office of the Chemical Examiner. He categorically admitted in his cross-examination that I.O. Muhammad Akram did not hand over any other parcel to him. Surprisingly, the Chemical Examiner's Report Exh.PP shows that chhuri P-5 was delivered at his office by Muhammad Yousaf 10540/C. However, the latter while appearing as PW-5 did not depose about any such delivery. In the circumstances. recovery of the said weapon is of no avail to the prosecution.
21. Finally, the motive. At the time when he lodged the FIR Complainant Aslam Pervaiz stated that Azra Parveen told him that a few days prior to the occurrence the Appellant committed theft of motorcycle of a friend of Khalid Javed and the same was recovered from him. The deceased complained to his father who reprimanded him whereafter the Appellant killed him in revenge. The Complainant reiterated the motive part of the FIR when he testified as PW-1 though he did not have any direct knowledge about it. Interestingly, Azra Parveen did not depose anything about it when she got her statement recorded as PW-2. The Investigation Officer too did not collect any evidence about it. Thus, the motive was not proved.
22. It is a cardinal principle of criminal jurisprudence that the prosecution must prove its case against an accused beyond reasonable doubt and if it fails to do so he would be entitled to benefit of doubt. This principle was reiterated by the august Supreme Court in "Ayub Masih v. The State"
(PLD 2002 SC 1048) wherein it was held as under: "It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted."
23. The law is also settled that there should not be many circumstances creating doubt in the prosecution case. Even a single circumstance which creates a reasonable doubt in a prudent mind about the guilt of an accused would entitle him to acquittal. Reference in this regard may be made to "Tariq Pervez v. The State" (1995 SCM R 1345) and "Muhammad Akram v. The State" (2009 SCM R 230).
24. Reverting to instant appeal, after a thorough re-appraisal of the evidence I am of the considerable opinion that the prosecution case is riddled with doubts and it could not prove the charge against the Appellant. Resultantly, this appeal is allowed and the impugned judgment dated 28.07.2015 is set aside. The Appellant is acquitted of the charge. He is in jail. He shall be released forthwith if he is not required to be detained in any other case.