PLJ 2021 Cr.C. (Lahore) 250 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Occurrence allegedly took place on at 08:30 a.m. and was carried in injured condition from place of occurrence by (complainant/PW-1) and cited eye-witnesses PWs for taking him to hospital, however, he succumbed to injuries on way near Naul Mor but when police reached in house of complainant, dead body of deceased was lying there; it is not mentioned in First Information Report that who, how and when shifted dead body of deceased to house of complainant--Deceased were living in one and same house and they ate roti and curry in breakfast and also took tea before leaving house on day of occurrence--Such breakfast takes three hours for leaving stomach; occurrence allegedly took place at 08:30 a.m., however during autopsy “stomach” of deceased was found empty, similarly his urinary bladder was also found empty; this fact suggests that occurrence took place before breakfast; in this regard, it is important to mention here that post-mortem examination of deceased was conducted at 02:00 p.m. and rigor mortis was found present, meaning thereby that death occurred 10 to 12 hours prior to post-mortem examination i.e. between 2:00 to 4:00 a.m.; although doctor while appearing before Court as PW-5 stated that probable time between death and post-mortem examination is five to six hours but said opinion of doctor is mere ipse dixit and not according to settled principles of Medical Jurisprudence on subject, particularly, when doctor has himself during post-mortem examination observed presence of rigor mortis on dead body of deceased; as per claim of prosecution, deceased was going on bicycle at time of occurrence but said bicycle was not produced during investigation; according to ocular version, received injuries at front of his abdomen and in this regard--Held: As far as medical evidence is concerned, it is trite of law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of assailant who caused injury; therefore, same is also of no help to prosecution in peculiar facts and circumstances of case in this regard--As far as recovery of dagger (خنجر) is concerned, suffice to say that occurrence took place whereas accused/appellant allegedly got recovered dagger i.e. after about thirty days of occurrence--Further held: it is well settled principle of medical jurisprudence that after period of three weeks blood disintegrates; it is own case of prosecution that allegedly recovered dagger was not blood stained and in this regard--It is mere corroboratory piece of evidence and when ocular account has not been believed, then it has lost its significance; motive is a double edged weapon and same can also be considered as reason for false involvement of appellant; furthermore, no cogent evidence has been produced before Investigating Officer to prove same--Motive could not be proved by prosecution--Prosecution has been foiled to prove its case against appellant, therefore, there is no need to discuss defence version--Appeal was allowed.
[Pp. 253, 254, 255, 256 & 257] A, B, C, D, E, F, G & H
2015 SCMR 1142, 2018 SCMR 153, 2019 SCMR 872 and
2017 PCr.LJ 1.
Mrs. Sheeba Qaiser & Mr. Jamshed Hussain, Advocates for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Mr. Athar Ali Bhinder, Advocate for Complainant.
Date of hearing: 17.12.2019.
PLJ 2021 Cr.C. (Lahore) 250 (DB)
Present: Shehram Sarwar Ch. and Farooq Haider, JJ.
versus
STATE--Respondent
Crl. A. No. 318-J of 2016 & M.R. No. 154 of 2017,
heard on 17.12.2019.
Judgment
Farooq Haider, J.--Through this single consolidated judgment Criminal Appeal No. 318/J/2016 filed by Muhammad Boota alias Nathu (appellant) against judgment dated 28.03.2016 passed by learned Additional Sessions Judge, Sialkot, whereby he has been convicted under Section 302(b), PPC and sentenced to death for committing qatl-e-amd of Parvez Iqbal with payment of compensation Rs. 5,00,000/- and in default thereof, to further undergo six months simple imprisonment and Murder Reference No. 154/2017 sent by learned trial Court under Section 374, Cr.P.C. for confirmation of death sentence awarded to the appellant through the aforementioned impugned judgment, are being decided together because both these matters have arisen out of one and same judgment.
2. Brief facts, as per Fard Biyan (Ex.PA) got recorded by Talib Mehdi complainant/PW-1 to Manzoor Hussain SI, are that he is resident of Village Mandhair Khurd and has six brothers, all of them used to work as labourer; on 04.07.1997, complainant alongwith his brother Sajjad Hussain on one bicycle whereas Parvez Iqbal (brother of the complainant) alongwith Muhammad Tufail on another bicycle were going to City Sialkot from their village for labour, the bicycle of Parvez Iqbal was ahead from the bicycle of complainant; at about 08:30 a.m. when they reached at Wazir Abad Sialkot Road near Village Raipur, Muhammad Boota alias Nathu (paternal cousin/تایا زاد of the complainant) also came behind them on white colour Suzuki Carry Van (سوزوکی ڈبہ) and after getting Parvez Iqbal deboarded from the bicycle, gave successive dragger blows hitting at left side of abdomen of Parvez Iqbal, as a result of which, he fell down; the complainant and his companions did not go near them due to fear; thereafter, Muhammad Boota alias Nathu (accused/appellant) fled away from the place of occurrence by boarding on aforementioned vehicle towards village; the complainant and his companions were carrying Parvez Iqbal in injured condition to Siaikot for the purpose of his treatment but he succumbed to the injuries at Naul Mor.
Motive behind the occurrence was a trivial exchange of words between deceased and accused/appellant over quarrel among their children, on the previous evening.
On the basis of above said oral statement/Fard Biyan (Ex.PA), case vide FIR No. 378/1997 (Ex.PA/1) dated 04.07.1997 under Section 302, PPC was registered at Police Station Uggoki, District Siaikot.
After completion of the investigation, report under Section 173, Cr.P.C. was submitted against the appellant in the Court. Accused/appellant was formally charge sheeted, to which he pleaded not guilty and claimed trial whereupon prosecution evidence was summoned and recorded, thereafter statement of the accused was recorded under Section 342, Cr.P.C. wherein he refuted allegations levelled against him; however, neither he deposed on oath under Section 340 (2) Cr.P.C. nor produced any evidence in his defence.
Learned trial Court after conclusion of the trial has convicted and sentenced the appellant as mentioned above through the impugned judgment dated 28.03.2016.
3. Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ of the case; ocular account is not trustworthy and also not corroborated/supported by any other cogent evidence. Learned counsel for the appellant finally prayed for acquittal of the appellant.
4. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has supported the impugned judgment and prayed for dismissal of the appeal.
5. Arguments heard. Record perused.
“Naul Mor, where the deceased succumbed to the injuries, situates at a distance of 5/6 kilometer from the place of occurrence. The road, where the place of occurrence as well as Naul Mor situates, is called ‘Sialkot Wazirabad’ road. It is correct that P.S. Uggoki, Sialkot was also situated on the said road. If anyone proceeds from Raypur to Naul Mor, there situates P.S. Uggoki, Sialkot, in between the said places, at left side of the road. We were taking the injured for medication in Suzuki Pickup. I alongwith Sajjad and Tufail PWs, lifted the injured and boarded in the pickup. During that process, our clothes were also stained with blood of the deceased. During the above said process, of lifting the injured, arranging the pickup, boarding the injured in said pickup and reaching at Naul Mor, consumed about 45 minutes. While crossing P.S. Uggoki, Sialkot, we did not inform the police.”
“While returning to our village, again we did not inform the police.” (emphasis added)
Perusal of aforementioned statement reveals that Talib Mehdi (complainant/PW-1), Sajjad Hussain (PW-2) and Muhammad Tufail (given up PW) were allegedly carrying Parvez Iqbal in injured condition to hospital but he expired at Naul Mor and then they did not take him to hospital, this version goes against the natural human conduct because in such situation real brothers take victim to the hospital and confirm death of the victim from the doctor; when from Naul Mor, complainant and cited eye-witnesses were bringing dead body of the deceased back, they passed in front of door of the concerned police station but did not inform the police regarding occurrence; meaning thereby that occurrence was not promptly reported to the police; it is claim of the prosecution that Parvez Iqbal in injured condition was shifted through Suzuki Pickup from place of occurrence but said vehicle has not been produced during investigation; complainant also stated that Parvez Iqbal expired after about forty five minutes of the occurrence but as per statement of Dr. Fayyaz Ahmad (PW-5), Parvez Iqbal died instantaneously after receipt of injuries, relevant portion of his statement is being reproduced:
“Probable time that elapse between injury and death-Instantaneous”
“Instantaneous death means immediate death after receiving injuries.”
This state of affairs suggests that aforementioned version was concocted in order to give cover to the delay caused in registration of the case.
“I alongwith my brother Sajjad P.W. and deceased Parvez Iqbal were living in one and the same house.”
“We had taken breakfast at our house. We had taken bread (roti) and curry (salan). We had also taken tea.”
Dr. Fayyaz Ahmad while appearing before the Court as PW-5 stated that probable time between death and post-mortem examination is five to six hours but said opinion of the doctor is mere ipse dixit and not according to settled principles of Medical Jurisprudence on the subject, particularly, when doctor has himself during post-mortem examination observed presence of rigor mortis on the dead body of deceased; as per claim of prosecution, deceased was going on bicycle at the time of occurrence but said bicycle was not produced during investigation; according to ocular version, Parvez Iqbal received injuries at front of his abdomen and in this regard, relevant portion from the statement of complainant (PW-1) is being reproduced:
but according to post-mortem examination report (Ex.PE) he received injuries at head, chest, iliac fossa, hypochondrium region and back of right hand also; Talib Mehdi (complainant/PW-1), Sajjad Hussain (PW-2), Muhammad Tufail (given up PW) and Parvez Iqbal (deceased) were four in number whereas assailant was all alone and not equipped with any sophisticated firearm weapon but complainant and cited eye-witnesses did not intervene for rescue of Parvez Iqbal, who was real brother of Talib Mehdi (complainant/PW-1) and Sajjad Hussain (PW-2); they even did not try to apprehend assailant, their said conduct is not natural and falsifies their presence at the relevant “time and place” of occurrence; in this regard, guidance has been sought from the dictum laid down by the august Supreme Court of Pakistan in the case of “Pathan versus The State” (2015 SCMR 315) and “Zafar versus The State and others” (2018 SCMR 326), relevant portion from the latter case law is being reproduced:
“7. The conduct of the witnesses of ocular account also deserves some attention. According to complainant, he along with Umer Daraz and Riaz (given up PW) witnessed the whole occurrence when their father was being murdered. It is against the normal human conduct that the complainant, Umer Daraz and Riaz (PW since given up) did not make even an abortive attempt to catch hold of the appellant and his co-accused particularly when the complainant himself has stated in the FIR and before the learned trial Court that when they raised alarm, the accused fled away. Had they been present at the relevant time, they would not have waited for the murder of their deceased father and would have raised alarm the moment they saw the appellant and his co-accused standing near the cot of their father”
It has also been noticed that in the post-mortem examination report (Ex.PE) mouth of the deceased has been mentioned as semi opened, this state of affairs further negates presence of Talib Mehdi (complainant/PW-1) and Sajjad Hussain (PW-2) at the “time and place of occurrence” because they both are real brothers of the deceased; had they been present at the place of occurrence, at the relevant time, then they would have definitely closed the mouth of the deceased; while observing so, guidance has been sought from the case of “Muhammad Asif versus The State” (2017 SCMM 486). Hence, testimony of Talib Mehdi (complainant/PW-1) and Sajjad Hussain (PW-2), who are chance witnesses, could not be corroborated by any strong and independent evidence of unimpeachable character, therefore, cannot be relied; in this regard, cases of “G.M. Niaz versus The State” (2018 SC1VIR 506) and “Muhaatmad Ashraf alias Acchu versus The State” (2019 SCMR 652) can be safely referred. In view of above, ocular account furnished by the prosecution is neither confidence inspiring nor truthful, hence is hereby discarded.
“It is correct that as per contents Exh.PC ‘dagger’ P-l is not blood stained”
Furthermore, said dagger was even not sent to PFSA, Lahore for detecting human blood on it, therefore, no report of expert regarding
availability of blood on said dagger is available on record. Hence, said recovery is inconsequential and of no help to the case of prosecution.
Therefore, motive could not be proved by the prosecution.
8. In view of, what has been discussed above, Crl. Appeal No. 318/J/2016, filed by appellant is allowed; conviction recorded and sentence awarded to the appellant through impugned judgment dated 28.03.2016 are hereby set aside. Appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case.
Murder Reference No. 154/2017 is answered in negative and death sentence awarded to the appellant is not confirmed.
(A.A.K.) Appeal allowed
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