پوسٹ مارٹم رپورٹ سے صرف وجہ موت کا پتہ لگایا جا سکتا ہے. پوسٹ مارٹم اصل مجرموں کی نشاندہی نہیں ہو سکتی.
PLJ 2020 CR.C. (NOTE) 127
Post-mortem report--
----It is settled law that post mortem report can only narrate the cause of death and it cannot finger towards the real culprit. [Para 15] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt-- F.I.R. was lodged ante dated and ante time--Testimony of PWs.-- Witnesses of ocular account--Dishonest improvements-- complainant P.W. 8 is injured witness but mere presence of injury will not make her testimony worthy of gospel truth--She on odd hours of night proceeded towards the hospital for her own medical examination and treatment after reporting the matter at police station but at that time the F.I.R. was not got lodged by her or accompanying PW. 9--Deceased was not provided any first aid at local level or by shifting her to the nearest hospital or clinic--As per post mortem report the time between injuries and death is six hours or more than that--As per report of vaginal swabs the same were found stained with semen--As per prosecution case the were serious differences between the appellant and his wife resulting in latter's desertion and referring the matter to the reconciliation council with the decision to pronounce divorce to her, co-habitation of appellant with the deceased in her mother's house in this background is not readily believable--None of the witnesses has come forward during investigation or trial that he got patched up the family dispute between the appellant and the deceased--Neither father nor brother of the deceased joined investigation or pursued the matter before the Court--Even none of the residents of the locality/neighbours have joined investigation to support prosecution case--Thus, the presence of the appellant at the scene of occurrence during odd hours of night on the fateful date and time is not established--The medical evidence and of recovery of "Bhaaolla" do not corroborate the prosecution story--Held: It is settled law that benefit of doubt in such like maters has to be extended to the accused not as a matter of grace but of right. [Para 16] B
1995 SCMR 1345, 2009 SCMR 230 and 2017 SCMR 135 ref.
Mr. Muhammad Irfan Malik, Advocate for Appellant.
Mian Muhammad Awais Mazhar, D.P.G, for Respondent.
Mr. Muhammad Amin Ashraf Khan, Advocate for Complainant.
Date of hearing: 25.4.2017.
PLJ 2020 Cr.C. (Note) 127
[Lahore High Court, Lahore]
Present: Sayyed Mazahr Ali Akbar Naqvi and Mujahid Mustaqeem Ahmed, JJ.
GHAZANFAR ALI--Appellant
versus
STATE--Respondent
Judgment
Mujahid Mustaqeem Ahmed. J.--Ghazanfar Ali alias Raza, appellant was tried by the learned Sessions Judge, Gujrat in case F.I.R. No. 168 dated 17.8.2011 under Sections 302/324, P.P.C. registered at Police Station Tanda, Distt. Gujrat. At the conclusion of trial, the appellant was found guilty of the commission of Qatl-e-Amd of his wife Mst. Kaniz Bibi and for causing injuries to Mst. Zubaida Bibi, complainant (PW.8) in an occurrence which took place on 17.8.2011 at 2.45 a.m in the house of the complainant situated in village Saggar and as such vide judgment dated 21.5.2012 the learned Sessions Judge, Gujra convicted him under Section 302(b), P.P.C. and sentenced to death. He was also directed to pay compensation of Rs. 1,00,000/- to legal heirs of the deceased or to suffer six months S.I. in default thereof in terms of Section 544-A, Cr.P.C. He was further convicted under Section 337-A(ii), P.P.C. and sentenced to pay Arsh equal to 5% of Diyat. He was also convicted under Section 337-L(2), P.P.C. and sentenced to pay Rs. 20,000/- Daman.
2. Feeling aggrieved of his conviction and sentences, Ghazanfar Ali, appellant has filed Cr. Appeal No. 289-J of 2012. The learned trial Court has also approached this Court by way of Murder Reference No. 258 of 2012 seeking confirmation of sentence of death imposed on Ghazanfar Ali, convict. Both these matters being interconnected are hereby disposed of together through this single judgment.
3. After the occurrence, at 4.00 a.m. on 17.8.2011 Mst. Zubaida Bibi, complainant met Muhammad Altaf, Sub Inspector who was present at College Chowk Tanda in connection with patrol duty and submitted written complainant (Ex.P.A) stating therein that her daughter Mst. Kaneez Bibi was married to the appellant 17/18 years prior to the present occurrence; that for the last one month she (Mst. Kaneez) was living in the house of the complainant due to some family differences with her husband. The appellant (husband of Mst. Kaneez Bibi) was also staying in her house for the last 20/25 days. It was alleged that both the spouses used to quarrel inter se off and on. On the evening preceding the night of occurrence Nazir Baig, a brother of the complainant (given up PW) alongwith Mubashar Baig PW.9 visited the house of the complainant to reconcile the matter between the spouses but in vain. However, due to odd hours of night, they slept over there. At about 2/45 a.m. the family woke up to have breakfast (Sehari) when Ghazanfer Ali, appellant picked up an iron rod and gave successive blows to Mst. Kaneez hitting on her head and forehead who fell down. The complainant stepped forward upon which the appellant also gave iron rod blows to her landing on her head and hand. On hue and cry the P.Ws. intervened and the appellant left the spot while hurling abuses. Mst. Kaneez Bibi succumbed to the injuries at the spot.
The motive for the occurrence is reported to be family quarrel between the appellant and the deceased, resulting into the instant occurrence.
4. Dr. Shazia Huma, PW.5 conducted post mortem examination on the dead body of Mst. Kaneez on 17.8.2011 at 11.45 a.m. and found the following injuries:
1. A lacerated wound of 4 cm x 2 cm over the right side of head just 3 cm above the right ear. It was bone deep. On dissection fracture of under lying bone with under lying hematoma formation and damage to adjacent part of brain tissue.
2. A lacerated wound of 4 x 2 cm on right side of forehead 4 cm above the outer angle of right ear. On dissection fracture of bone with underlying hematoma and damage to adjacent part of brain tissue.
3. A bluish bruise over the left side of forehead about 4 cm x 4 cm.
4. A superficial linear abrasion of 3 x ½ cm over outer side of right arm.
5. A bluish bruise over outer side of right arm below Injury No. 4, covering an area of 12 x 3 cm.
In the opinion of the doctor all the injuries were ante mortem and caused by blunt weapon. Injuries No. 1 and 2 were severe enough to cause death damaging the brain tissue leading to death by haemoarrage and shock. Probable time that elapsed between injuries and death was within six hours and between death and post mortem 8 to 16 hours.
5. Dr. Arooj Afzaal PW. 4 medically examined Mst. Zubaida Bibi on 17.8.2011 at 1.30 a.m. and observed following injuries on her person:
1. A lacerated wound 6.5 cm x 0.5 cm underlying bone exposed on the left parietal region of scalp.
2. A lacerated wound 4.5 cm x 0.5 cm underlying bone exposed on the left frontal rieion of scalp.
3. Right hand ulnar side tender and swollen.
4. Prominence of left shoulder contused, swelled and tender on back.
Injuries No. 1, 3 and 4 were kept under observation while Injury No. 2 was declared Shujjah Mudiha. The injured was referred to ABS hospital Gujrat for x-rays and after receiving report from Radiologist, she observed that no bony lesion was noted in skull vault and as such Injury No. 1 was declared as Shujjah Mudiha and Injuries Nos. 3 and 4 were declared as other hurts.
6. As noted above, Mst. Zubaida met Muhammad Altaf, Sub Inspector PW.11 at College Chowk Tanda and made written complaint which was sent by the police officer to the police station for registration of formal F.I.R. Mst. Zubaida was found injured as such the police officer prepared her injury statement (Ex.PH) and referred her to the hospital for medical examiner. He then visited the spot where dead body of Mst. Kaneez was lying. He inspected the spot and prepared inquest report (Ex.PJ) and injury statement (Ex.PK) and dispatched the dead body to the mortuary for post-mortem examination and conducted other formal investigation. He arrested the appellant on 22.8.2011, who on the same day got recovered iron rod (P.4) from "Bajra" crop field situated near house of the complainant which was taken into possession by him vide memo. Ex.PF. After completion of investigation he found the appellant involved in the commission of crime and as such challaned him to Court to face trial.
7. At commencement of trial, charge was framed against the appellant to which he pleaded not guilty and claimed trial. At trial the prosecution produced as many as 11 P.Ws. out of which Mst. Zubaida Bibi and Mirza Mubashar Baig, P.Ws. 8 and 9 provided ocular account of the occurrence. Lady Doctors Arooj Afzaal and Shazia Huma, PWs. 4 and 5 provided medical evidence. Muhammad Altaf, Sub-Inspector proved investigation. Rest of the P.Ws. were formal in nature. At close of prosecution evidence, the appellant was examined under Section 342, Cr.P.C. He denied and dismissed each piece of prosecution evidence. When asked, "Why this case against you and why P.Ws. have deposed against you?", he replied as under:
"As a matter of fact Kaneez Bibi deceased contracted love marriage with me after getting divorce from her first husband without the consent of her family and subsequently, she developed illicit relations with one Umer resident of Mangowal. Due to this deceased got divorce from me (accused) through filing application before "Musalahati committee" police station City Jalalpur Jattan. Father and real brother of the deceased committed her murder because she had made habit to get divorce from one person and contract marriage with other person. Father and brother of the deceased had fed up due to her bad character. Complainant with the connivance of P.Ws. falsely involved me in this case due to the factum of Talaq which was got by deceased from me. All the private PWs. are inter se related and due to this reason they have deposed falsely against me."
He, however, neither entered the witness box under Section 340(2), Cr.P.C. nor produced evidence in defence. At the conclusion of trial, learned trial Court convicted and sentenced the appellant as noted above.
8. Learned counsel for the appellant has vehemently argued that the F.I.R. was not lodged at the time shown in the register F.I.R. and the occurrence has been reported to the police at a belated stage on the basis of concocted and distorted story; that presence of Mirza Mubashar Baig PW.9 at the fateful time at the place of occurrence is not established and thus he is a chance witness; that in spite of the fact that presence of father and brother of the deceased at the time of her murder was admitted by the complainant during cross-examination but there is no explanation as to why they have not joined investigation or even pursued the case before the Court and this fact alone casts serious doubt and dent in prosecution story and supports the defence version that at the odd hours of night the deceased had been done to death by her own family members and thereafter the appellant due to divorcing the deceased has been made an scapegoat.
9. Learned Law Officer and learned counsel for the complainant have defended the impugned judgment on the ground that from prosecution story which inspires confidence guilt of the appellant is fully established; that the appellant could not substantiate his plea of substitution; that the occurrence took place in the house of Mst. Zubaida (PW.8) complainant and she also sustained injuries at the hands of the appellant as such her presence at the place of occurrence at relevant time was but natural, as such her presence at the spot at the time of occurrence cannot be belied by any stretch of imagination; that she has got lodged the F.I.R. with promptitude against the single accused with specific role of his participation in this occurrence and also causing injuries on her person, as such presence of PWs. 8 & 9 at the scene of occurrence is fully established and that the medical evidence and the recovery of iron rod corroborate the testimony of P.Ws.
10. As per prosecution case the occurrence took place on 17.8.2011. It was claim of the complainant/PW. 8 at trial that she alongwith her deceased daughter and the appellant was asleep in a room whereas Mirza Mubashar Baig PW. 9 and complainant's brother Mirza Nazir Baig (given up) were sleeping in the courtyard and at about 2.45 a.m. the complainant and her deceased daughter woke up. The appellant inflicted iron rod blows to the deceased as also on the person of the complainant and thereafter succeeded to escape. The ocular account has been provided by Mst. Zubaida PW.8 real mother of the deceased and Mirza Mubashar Baig, PW.9 (another son-in-law of the complainant). Mst. Zubaida in her examination-in-chief has narrated the version as incorporated in the F.I.R. and has supported the charge that as a result of iron rod blows given by the appellant, Mst. Kaneez Fatima succumbed to the injuries at the spot. She further claimed that she was also physically beaten by the appellant when she came to rescue her injured daughter. During cross-examination she conceded that she was residing in her house alongwith her husband and son but neither they are witnesses of occurrence nor joined the investigation or pursued the case before the Court. She also conceded that none of the residents of the locality/neighbours has been cited as witness of the occurrence. She conceded that the deceased presented application before the concerned Reconciliation Council/Committee with the request of getting divorce from the appellant and that the Reconciliation Committee directed the appellant to pronounce "talaq" to the deceased and she took the deceased in her house. Mirza Mubashar Baig, PW.9 who is also resident of village Saggar, in his examination-in-chief has narrated the occurrence in line with the case reported in the F.I.R. During cross-examination he conceded that his house is situated at a distance of 3/4 acres from the place of recovery. However, he showed his lack of knowledge that the appellant had divorced the deceased.
11. A careful scrutiny of the testimony of these P.Ws. would indicate that they have made dishonest improvements in their statements. As per complainant's version, on the fateful night, she, appellant and the deceased had slept in one room whereas Mirza Mubashar Baig, PW. 9 and Mirza Nazir Baig (given up) slept in courtyard and the appellant in a brutal manner committed the murder of the deceased. From the peculiar facts and circumstances of the case the prosecution story does not ring true. As per prosecution case, during post mortem examination of Mst. Kaneez Bibi, Dr. Shazia Huma PW. 5 took vaginal swabs which were sent to the Forensic Science Laboratory, Lahore and its report Ex.PQ is positive. According to the prosecution case on the night of occurrence till late hours the complainant and the P.Ws. tried to patch up the family dispute between the appellant and the deceased but in vain and they slept there. Any cohabitation in between the appellant and the deceased in such hostile environment particularly in the room where complainant was also present is not natural and readily believable. No effort was made by the investigator for matching of semen of appellant, with the vaginal swabs of the deceased. Moreover the Reconciliation Council has asked the appellant to divorce the deceased and the appellant has placed on record photo copy of "talaqnama" dated 18.7.2011 (Mark-A) duly attested by the Oath Commissioner at Civil Courts Gujrat. P.W. 9 during test of cross-examination has not specifically denied dispatch of divorce deed to the deceased by the present appellant. As per admission of the complainant the appellant is running dental clinic at Tanda. It does not appeal to mind of a man of common prudence that after the family rift and divorce, the appellant would shift in the house of his in-laws for a long period and thus will ruin his established business. Thus the presence of appellant at the scene of occurrence on the fateful night could not be established.
PW. 9 is a resident of village Saggar where the occurrence has taken place. In our routine life, it does not happen that a person hailing from vicinity would not go to his own house which is located at a distance of hardly 2/3 acres and would prefer to sleep in the house of a relative. So his presence in odd hours of night in the house of the complainant is not established. He is chance witness and thus cannot be believed.
12. As per version of PWs. 8 and 9 Mst. Kaneez Bibi succumbed to the injuries at the spot. But, as per testimony of Dr. Shazia Huma PW. 5 the time that elapsed between injuries and death was six hours or it could be more than that. It is strange that the complainant and other P. Ws. or even residents of the locality have not made any effort to save life of Mst. Kaneez Bibi by providing her any first aid or shifting her in any near private or government hospital. No explanation for such failure has come on record. This mysterious circumstance on the part of the prosecution, creates serious doubt/dent in the authenticity of the prosecution story and thus the same cannot be readily believed as gospel truth. The complainant claims and has succeeded to establish that on receipt of injuries, she alongwith Mirza Mubashar Baig PW proceeded to the police station, got recorded Rapt No. 36 (Ex.DC) but in that Rapt she has not stated the name of assailant or the victim of injuries.
13. The motive stated in the F.I.R. is family dispute between the appellant and the deceased. The complainant has admitted that the matter was referred to the Reconciliation Council and the Council after hearing both the parties directed the appellant to divorce the deceased. The appellant has placed on record divorce deed (Mark-A). Thus the matrimonial dispute between the appellant and the deceased stood resolved and no other issue was left unsettled. As such the motive part of the occurrence is not established.
14. Muhammad Altaf, Sub Inspector/I.O. (PW. 11) arrested the appellant on 22.8.2011 and on the same day at the instance of the present appellant recovered iron rod (BHAAOLLA) (P.4) from a field. It was not blood stained. The investigator admitted that it was of common pattern easily available in rural area. The witness claimed that the deceased was done to death with "iron rod" but the investigator has recovered a "Bhaaolla". In any case this recovery is inconsequential one and cannot be relied upon as corroborative piece of evidence.
15. Dr. Arooj Afzaal PW. 4 had deposed that on 17.8.2011 at 5.00 a.m. she has medically examined Mst. Zubaida PW. 8 injured who has stated that the occurrence has taken place at 1.30 a.m. in which her son-in-law (without naming any one) with iron rod has injured her and committed the murder of his wife who succumbed to the injuries at the spot, whereas as per F.I.R. Ex.P.A. the occurrence has taken place at about 2.45 a.m. and reported to the police at 4.00 a.m. Similarly Dr. Shazia Huma deposed that she had conducted post mortem examination on body of Mst. Kaneez on 17.8.2011 at 11.45 a.m. She claimed that time between death and post mortem examination was 8 to 16 hours. As such from the medical evidence it is established that it is not a case of promptly lodged F.I.R. and the same has been registered ante-dated and ante time after consultation. It is settled law that post mortem report can only narrate the cause of death and it cannot finger towards the real culprit.
16. The resume of the above discussion is that the F.I.R. was lodged ante dated and ante time. Testimony of PWs. 8 and 9, witnesses of ocular account, is based on dishonest improvements. Mst. Zubaida Bibi, complainant P.W. 8 is injured witness but mere presence of injury will not make her testimony worthy of gospel truth. Reliance is placed on Muhammad Pervaiz case 2007 SCMR 670. She on odd hours of night proceeded towards the hospital for her own medical examination and treatment after reporting the matter at police station but at that time the F.I.R. was not got lodged by her or accompanying PW. 9. Mst. Kaneez Bibi deceased was not provided any first aid at local level or by shifting her to the nearest hospital or clinic. As per post mortem report the time between injuries and death is six hours or more than that. As per report of vaginal swabs Ex.PQ the same were found stained with semen. As per prosecution case there were serious differences between the appellant and his wife resulting in latter's desertion and referring the matter to the reconciliation council with the decision to pronounce divorce to her, co-habitation of appellant with the deceased in her mother's house in this background is not readily believable. None of the witnesses has come forward during investigation or trial that he got patched up the family dispute between the appellant and the deceased. Neither father nor brother of the deceased joined investigation or pursued the matter before the Court. Even none of the residents of the locality/neighbours have joined investigation to support prosecution case. Thus, the presence of the appellant at the scene of occurrence during odd hours of night on the fateful date and time is not established. The medical evidence and of recovery of "Bhaaolla" do not corroborate the prosecution story. It is settled law that benefit of doubt in such like maters has to be extended to the accused not as a matter of grace but of right. Reliance in this regard is placed on Tariq Pervaiz v. The State (1995 SCMR 1345), Muhammad Akram v. The State (2009 SCMR 230) and Azhar Mehmood and others v. The State (2017 SCMR 135).
17. The upshot of the above discussions and observations is that we find that prosecution case is replete with dishonest improvements and discrepancies and it has failed to prove its case beyond doubt. Resultantly, Cr. Appeal No. 289-J of 2012 is accepted, conviction and sentence recorded against the appellant are set aside and he is acquitted of the charge. He be released forthwith if not required to be detained in any other case.
18. Whereas Murder Reference No. 258 of 2012 is answered in negative. Sentence of death is not confirmed.
(A.A.K.) Appeal accepted
Crl. A. No. 289-J & M.R. No. 258 of 2012, heard on 25.4.2017.
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