PLJ 2022 Cr.C. 322 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 147 & 149--Conviction and sentence--Challenge to--Formal FIR was chalked out by PW.2 within a period of almost 07 to 09 hours--No plausible explanation for delay has been brought on record--Post-mortem examination on dead body of deceased was conducted by Doctor (PW.5) with delay of about 18 to 20 hours after alleged occurrence--Eye-witnesses, therefore, could not justify reason given by them for their presence at place of occurrence at relevant time--Conduct of above mentioned eye-witnesses is highly unnatural--The accused persons were empty handed and they were not armed with any lethal weapon like pistol or gun etc. to terrify prosecution eye-witnesses from saving their loved one (deceased) when he was allegedly attacked by accused party, then as to why eye-witnesses did not interfere to rescue deceased when they were standing near appellants at time of occurrence--(PWs) changed time of occurrence from midnight to ‘Sehri Wala’ in order to bring their evidence in line with medical evidence--Due to dishonest improvements, made in their statements of supra mentioned PWs-- Both PWs are not truthful witnesses and their evidence is not worthy of reliance--Co-accused of appellants, who was ascribed effective role in occurrence, was acquitted of charge by trial Court--There is a material contradiction between ocular and medical evidence of prosecution, making prosecution case further doubtful--Said recoveries being only corroboratory in nature cannot be considered to sustain conviction on a capital charge in absence of any other convincing evidence--Prosecution could not prove its case against appellants beyond any shadow of doubt--Both criminal appeals filed by appellants are accepted. [Pp. 328, 329, 330, 331,
332, 333, 334, 335 & 336] A, B, C, D, E, F, G, H, I, J & K
M/s. Shahid Shaukat, Miss Maryam, Miss Ayesha Sherazi, Miss Ambreen Sarfraz, Advocates for Appellant (in Crl. Appeal No. 104912 of 2017)
Mr. Bilal Ijaz Ch., Advocate for Appellant (in Crl. Appeal No. 114725 of 2017).
Mr. Munir Ahmad Sial, DPG for State.
Khan Rustam Khan Parhiar, Advocate for Complainant.
Date of hearing: 14.10.2021.
PLJ 2022 Cr.C. 322 (DB)
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ.
versus
STATE etc.--Respondents
Crl. A. Nos. 104912 & 114725 & M.R. No. 606 of 2017,
heard on 14.10.2021.
Judgment
Muhammad Tariq Nadeem, J.--Through this single judgment, we intend to dispose of Crl. Appeal No. 104912 of 2017 and Crl. Appeal No. 114725 of 2021, filed by Mazhar and Mst. Zahida Bibi, appellants respectively against their convictions and sentences along with Murder Reference No. 606 of 2017, transmitted by learned trial Court for confirmation or otherwise of death sentence of the appellant Mazhar being originated from the same judgment dated 30-10-2017 passed by learned Additional Sessions Judge, Chiniot in case FIR No. 120 dated 01-04-2015, under Sections 302, 147, 149, PPC registered at Police Station Langrana, Chiniot, whereby, the learned trial Court while acquitting rest of the accused, convicted and sentenced the appellants as under:
Appellant Mazhar
U/S. 302 (b), PPC sentence to death with the direction to pay a sum of Rs. 3,00,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased Naseer Ahmad, in default thereof to further undergo six months S.I.
Appellant Mst. Zahida Bibi
U/S. 302 (b), PPC Life imprisonment with the direction to pay a sum of Rs. 1,50,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased, in default thereof to further undergo four months S.I. with benefit of Section 382-B, Cr.P.C.
2. The brief facts as narrated in FIR (Ex.PA/1) lodged by Hafiz Ahmad Yar, complainant (PW.6) are that he was farmer and six months ago, he (PW.6) appointed Mazhar, appellant as servant with him, who during the employment developed illicit relation with complainant’s sister-in-law, co-convict Mst. Zahida Bibi and on knowing this fact, his brother Naseer Ahmad reprimanded them for which they got annoyed and extended threats. On the fateful day i.e. 31-03-2015, complainant’s brother as usual went to sleep in his cattle shed. He (complainant) also used to go to the cattle shed for checking the animals. Being so, during the midnight, he went to the cattle shed and saw that Mst. Zahida Bibi, appellant had caught hold the hands of his brother whereas two unknown persons had caught hold his legs and accused persons Mazhar and Fazal were throttling the neck of Naseer Ahmad (deceased). On hue and cry of the complainant, the PWs namely Afzal and Nasrullah came at the spot and in their view Fazal, accused caught hold Naseer Ahmad, deceased from his hairs; whereas Mazhar, appellant had been throttling the neck of deceased. The PWs raised lalkara upon which the accused persons swaddled the deceased in his quilt and tied him through ropes with the cot. They reached at the spot along with the torch and identified the accused persons. They could identify the unknown co-accused if they came before them. On seeing the PWs, the accused persons took to their heels while extending threats. They attended Naseer Ahmad, (deceased) but due to the throttling and asphyxia, he died. Hence, the FIR.
3. After completion of investigation, a report under Section 173, Cr.P.C. was prepared and submitted before the learned trial Court. The learned trial Court after observing all codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge u/S. 302, 34, PPC against the appellants along with his acquitted co-accused Fazal on 29-08-2015 to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 12 witnesses during the trial; Hafiz Ahmad Yar, complainant (PW.6) and Nasrullah (PW.7) have furnished the ocular account. Riaz Ahmad, draftsman appeared as (PW.9), who prepared scaled site plans of the place of occurrence as (Ex.PJ and ExPJ/1). Israr Hussain, SI (PW.10) being Investigating Officer stated about the various steps taken by him during investigation of the case.
The medical evidence was furnished by Doctor Muhammad Rehmat Ullah, SMO (PW.5) and Lady Doctor Shagufta Zahoor, WMO (PW.8).
On 01-04-2015, Doctor Muhammad Rehmat Ullah, SMO (PW.5) conducted autopsy on the dead body of deceased Naseer Ahmad and noted following injuries on his body:-
INJURIES
1. An abrasion of 4 cm x 1 cm, on right side of nose middle part.
2. Contused swelling of 8 cm x 5 cm on front of neck, upper part. On dissection, the tissues, underneath were damaged, bruised and ecchymosed.
He opined that the cause of death was cardiopulmonary arrest due to suffocation and asphyxia which was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. The probable time between injury and death was immediate and time between death and post-mortem was six to twelve hours. In this regard, the copy of post-mortem report was also tendered as (Ex.PD).
On 02-04-2015, Lady Doctor Shagufta Zahoor, WMO (PW.8) medically examined appellant Mst. Zahida and issued his MLR (Ex.PI). She also endorsed the DNA reports (Ex.PP).
4. Rest of the prosecution witnesses are almost formal in nature. The prosecution gave up Afzal, Shahadat and Arif, PWs being unnecessary and closed its evidence.
5. Thereafter, the statements under Section 342 Cr. P.C. of the appellants and their co-accused were recorded wherein they refuted the allegations leveled against them and claimed their innocence. While answering to a question, “Why this case against you and why the PWs have deposed against you?, the appellant Mazhar replied as under:
“Complainant is our relative. My father borrowed Rs. 3,00,000/-from complainant one year ago of this alleged occurrence. He demanded to return borrowed money. But my father was not able to return the same. Due to this exchange of hard wording my father and complainant. Due to taught the lesson to my father, complainant involved me and my brother in this unseen occurrence. Naseer deceased was like my brother. I and Mst. Zahida Bibi is also like my sister. I have no grudge with Naseer, decesaed.”
Whereas, on the same question, Mst. Zahida Bibi replied as under:
“I am legal heir of deceased Naseer, complainant and witnesses want to deprive me from property of Naseer. Due to this reason complainant involved me in this case.”
They neither opted to appear as their own witnesses within the scope of Section 340(2), Cr.P.C. nor produced any defence evidence.
6. Upon conclusion of the trial, the learned trial Court vide impugned judgment dated 31-10-2017 convicted and sentenced the appellant as mentioned above.
7. In support of his appeals, learned counsel for the appellants submitted that they have been falsely implicated in this case by the complainant party; that occurrence in this case allegedly took place on 31-03-2015 (midnight) whereas the matter was reported to the police on 01-04-2015 at 09:00 a.m. i.e. approximately with the delay of 09 hours. Similarly, post-mortem on the dead body of Naseer Ahmad, deceased was conducted on 01-04-2015 at 08:00 p.m. with the delay of 20 hours; that eye-witnesses of the case are not only inter se related but they are inimical towards the appellant rather they are chance witnesses, therefore, their evidence is not reliable without independent corroboration which is very much lacking in this case; that no independent witness from the vicinity where the occurrence took place had been produced by the prosecution either during the investigation or before the learned trial Court; that the medical evidence is in conflict with the ocular account of the prosecution; that according to the prosecution story complainant along with PWs Afzal and Nasrullah were present at the time and place of occurrence and in their presence the accused persons, who were also three in numbers murdered Naseer Ahmad by throttling; the appellants were not armed with any formidable weapon but even then the PWs did not physically intervened, this fact reveals that the PWs were not present at the time and place of occurrence; that co-accused namely Fazal to whom effective role was attributed has been acquitted of the charge through the same set of witnesses, in this way, their evidence cannot be believed to the extent of appellants without any corroborative piece of evidence. So far as the report of DNA (Ex.PP) is concerned, it is not helpful to the prosecution case; that alleged occurrence took place in the midnight between 31-03-2015 and 01-04-2015 but no source of light had been described by the prosecution at the alleged time and place of occurrence, however, it has been narrated in (Ex.PA) that the complainant and PWs identified the appellants along with their acquitted co-accused namely Fazal in the torch light but no torch was produced by the prosecution witnesses to the investigating officer nor he taken into possession any source of light; that the PWs had made dishonest improvements just to strengthen the prosecution case; which are also fatal for the prosecution case; that a fake recovery of weapon of offence was planted against the appellants; that the prosecution has failed to prove the motive of the case; that it is an established view of the Apex Court of the country that a slightest doubt in the prosecution evidence is sufficient to give benefit of doubt to the accused and the case in hand is full of doubts, therefore, by accepting their appeals, the appellants may be acquitted of the charge.
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the appellants are nominated in the FIR with specific role attributed to them which is borne out from post-mortem examination report of the deceased; that the prosecution witnesses had no reason to falsely implicate the appellants in this case as murderer of their kith and kin and to substitute them in lieu of real culprits, which is a rare phenomenon; that the medical evidence furnished by the doctor in this regard fully corroborates the ocular account; that the prosecution witnesses are consistent on each and every material point and there seem no discrepancies in their statements; that there was no previous ill-will or enmity between the parties, so possibility of false implication of the appellants in this case is ruled out; that the prosecution has fully proved its case through ocular account and corroborated by medical as well as DNA report; that the prosecution case is also corroborated by the recovery of cot, pieces of rope, shirt and pillow etc; thus, the appeal filed by the appellants may be dismissed and murder reference may be answered in affirmative.
9. We have heard the arguments of the learned counsel for the appellants and learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.
10. The detail of the prosecution case as set forth in the FIR (Ex. PA/1) and in the complaint (Ex.PA), has already been given in paragraph No. 3 of this judgment, therefore, there is no need to repeat the same.
11. The incident in the present case, according to the prosecution, was alleged to have taken place on 31-03-2015 at midnight within the area of Chak No. 200/GB, about 23 Kilometers towards South from Police Station and the same was reported by Hafiz Ahmad Yar, complainant (PW.6) through complaint (Ex.PA), recorded by Israr Hussain, SI (PW.10) on 01-04-2015 at 08:30 a.m. on the basis of which formal FIR (Ex.PA/1) was chalked out by Ansar Masud, 336/MHC (PW.2) at 09:00 a.m within a period of almost 07 to 09 hours. No plausible explanation for the delay has been brought on record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, we hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274).
“…. the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly, post-mortem examination on the dead body of Muhammad Tayyab was conducted on 19.9.2018 at 6:30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross examination that at THQ, Hospital, Depalpur, the arrangements for conducting posts-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m. on 19-09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours.”
Wisdom is also derived from the judgments reported as “Sufyan Nawaz and another vs. The State and others (2020 SCMR 192), Irshad Ahmad v. The State” (2011 SCMR 1190), “Muhammad Ashraf v. The State (2012 SCMR 419) and “Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327).
“Both the eye-witnesses produced in this case, i.e. Zahid Khan complainant (PW8) and Muhammad Sadiq (PW9) were very closely related to Mst. Naheed Akhtar deceased and they were admittedly chance witnesses. The said witnesses had maintained before the trial Court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site plan of the place of occurrence at all. No mosque near the house of occurrence had been shown in the said site-plan and, thus, the stated reason for presence of the said eye-witnesses near the place of occurrence never stood established on the record through any evidence whatsoever”
“.... Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W.7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaqat Ali had threatened them, therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaqauat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.”
Similar view was reiterated by the august Supreme Court of Pakistan in the cases of “Pathan vs. the State” (2015 SCMR 315) and “Zafar vs. The State and others” (2018 SCMR 326). Under the circumstances, it can be safely held that both the above mentioned eye-witnesses were neither present at the spot at the relevant time nor they had witnessed the occurrence.
“…. I had not mentioned the specific time of “Sehri Wela” in Ex.PA. I have not specifically mentioned the time midnight, confronted with Ex.PA where time about midnight is mentioned. I had not mentioned that my brother was sleeping at cattle “Behk” (Confronted with Ex.PA where it is so recorded). I had mentioned in Ex.PA that torch was in my hands. Confronted with Ex.PA where the word hand is not mentioned. However, it is mentioned that we came at the spot along with torch. I had mentioned in Ex.PA that accused persons had tide my brother under the quilt with the rope. Confronted with Ex.PA where this fact is mentioned in different sequence of words. I had mentioned in Ex.PA that PWs Afzal and Nasrullah were on chowkidara nearby. Confronted with Ex.PA where words Chowkidara and nearby is not mentioned. I had mentioned in Ex.PA that during cutting the rope, accused Mazhar sustained injuries on his hand by his hatchet. Confronted with Ex.PA where it is also not recorded.”
Similarly, Nasrullah (PW.7) has also made so many dishonest improvements before the learned trial. The relevant portion for convenience is reproduced as under:
“… I had mentioned in my statement before police that deceased was sleeping at his residential “dhari”. Confronted with Ex.DA where word residential is not mentioned. I had mentioned in my statement that deceased was sleeping in “Behk” (open place for cattle). I had mentioned the specific time “Sehri Wela” in Ex.DA. Confronted, where word Sehri is not so recorded. I did not mention the midnight time in Ex.DA. Confronted where it is so recorded. I had mentioned in Ex.DA that I was on “Chowkidara” at my agricultural land. Confronted with Ex.DA where word Chowkidara is not mentioned. I have mentioned in Ex.DA that Ahmad Yar was having torch. Confronted with Ex.DA where same is not mentioned …”
16. We have also noted that occurrence took place at the cattle shed (Behk) of Naseer Ahmad, deceased in the odd hours of night and Hafiz Ahmad Yar, complainant (PW.6) has admitted in his cross examination that electricity connection is not available at said “Dhari”. The prosecution witnesses have stated that they witnessed the occurrence in the torch light but no such torch has been produced to the investigating officer. It is also pertinent to mention here that the Investigating Officer has not taken into possession any source of light, so as to prove that sufficient light was present at the time and place of occurrence for the witnesses to make a positive identity of the assailants. This fact has created further dent in the prosecution case. Reliance is placed upon the case law titled as ‘Nazeer Ahmad vs. Gehne Khan and others’ (2011 SCMR 1473 ).
18. Another intriguing aspect of the case is that according to the prosecution story, Zahida Bibi, appellant caught hold Naseer Ahmad, deceased from his arms and two unknown persons caught hold his legs but there were no marks of bruises, redness, etc. on arms and legs of Naseer Ahmad, deceased. Doctor Muhammad Rehmat Ullah (PW.5) has described only two injuries one on nose and other at front of neck of Naseer Ahmad, deceased.
So far as the positive DNA test report with respect to the matching of vaginal swabs of Mst.Zahida Bibi, appellant with buccal swabs standards of Mazhar, appellant is concerned, we have noted that there is no direct evidence available on the record with respect to the allegation of rape/fornication. More so, no charge under Section 376, PPC was framed nor the appellants have been convicted for the said charge. It is settled proposition of law that conviction cannot be awarded mere on the basis of presumptions or corroborative piece of evidence. In this way, the supra mentioned positive report of PFSA is not helpful to the prosecution.
20. So far as recovery of cot, pieces of rope, shirt and pillow etc. taken into possession vide recovery memo. (Ex.PG) as well as recovery of hatchet (P.7) vide seizure memo. (Ex.PH) are concerned, we have observed that in the FIR (Ex.PA/1), it has not been mentioned that Mazhar, appellant used hatchet for cutting the rope. All the supra mentioned recoveries were not effected on the pointation of appellants rather the same were taken into possession on 01-04-2015 on the day of registration of FIR from the alleged place of occurrence. More so, the witnesses of recovery memo. (Ex.PG and Ex.PH) are eye-witnesses namely Afzal and Nasrullah (PW.7). Afzal, PW was given up by the prosecution whereas we have already disbelieved the evidence of Nasrullah (PW.7) qua the ocular account through paragraph No. 13 of this judgment, hence, his evidence qua the supra mentioned recoveries is also not trustworthy and confidence inspiring.
21. Now the next piece of evidence which still remains in the field is the motive advanced by the prosecution behind the unfortunate incident, which, as per Hafiz Ahmad Yar, complainant (PW.6) and Nasrullah (PW.7) was the illicit relation between Mazhar, appellant and Mst. Zahida Bibi, appellant and after knowing the illicit relation between the present appellants, Naseer Ahmad, deceased reprimanded them. We have noted that Hafiz Ahmad Yar (PW.6) has admitted in his cross examination that he did not produce any witness regarding illicit relation of accused inter-se and regarding threats extended by Mazhar appellant. He (PW.6) further admitted in his cross examination that Naseer Ahmad, deceased did not make any complaint before him regarding immoral activity of Zahida Bibi, appellant. Motive was only an oral assertion of the complainant and no material evidence was produced to substantiate the motive alleged by the prosecution.
22. We have considered all the pros and cons of this case and have come to an irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs, but in this case the prosecution remained failed to discharge its responsibility. It is also well established principle of law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In case of "Muhammad Akram vs. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe 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 concession but as a matter of right'.
Similar view was taken in the case of “Muhammad Imran vs. The State” (2020 SCMR 857).
24. Murder Reference No. 606 of 2017 is answered in negative and death sentence passed by learned trial Court against Mazhar, appellant is not confirmed.
(A.A.K.) Appeals accepted
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