PLJ 2022 Cr.C. 381 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Appellant did not like his wife upon which they had dispute and appellant wanted to contract a second marriage with some one else and due to this grudge, appellant committed the murder--Medical evidence furnished by the prosecution in this case through Lady Dr. (PW-10) has not supported the prosecution case in any manner--Occurrence in this case took place whereas, the FIR was lodged on the same day with the delay of 7½/6½ hours from the time of occurrence--Post-mortem examination was conducted on the dead body of the deceased--There is delay of 12 hours in conducting the post-mortem examination on the dead body of the deceased--Medical Officer has not mentioned the probable time that elapsed between the injuries and death and the time that elapsed between the death and post-mortem examination of the deceased--Occurrence in this case took place in the house of the appellant--Both the eye-witnesses were not residents of the village where the occurrence took place-- Conduct of the abovementioned eye-witnesses/ complainant party is highly unnatural in this case--Real sister of the deceased, being inmate of the house of occurrence was natural eye-witnesses of the occurrence. She was admittedly present in the house of occurrence at the time of occurrence but she has not been produced in the witness box by the prosecution--No proof of criminal or civil litigation has been produced in evidence by the prosecution to establish that there was any dispute between the appellant and the deceased--A piece of cloth has also been recovered on the pointation of the appellant but none of the prosecution’s eye-witnesses has stated that the appellant committed the murder of his wife with the help of a cloth or by strangulating her neck--Prosecution has failed to prove its case against the appellant beyond the shadow of doubt, accept the Criminal Appeal.
[Pp. 384, 387, 388, 389, 391, 392, 393, 394 & 395] A, B, C,
D, E, F, G, I, J, K, L & M
Chance Witness--
----If a chance witness is unable to establish the reason of his presence at the spot at the time of occurrence then his evidence is not worthy of reliance. [Pp. 389 & 390] H
Ms. Saiqa Javed, Advocate for Appellants.
Mr. Munir Ahmad Sial, Deputy Prosecutor General for State.
M/s. Farrukh Gulzar Awan & Wasif Javed Sipra, Advocates for Complainant.
Date of hearing: 11.10.2021.
PLJ 2022 Cr.C. 381 (DB)
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ.
versus
STATE and others--Respondents
Crl. A. No. 115978-J, Crl. Rev. 111926 & M.R. No. 636 of 2017,
decided on 11.10.2021.
Judgment
Malik Shahzad Ahmad Khan, J.--This judgment shall dispose of Criminal Appeal No. 115978-J of 2017 filed by Muhammad Ijaz (appellant) against his conviction and sentence, Crl. Revision No. 111926 of 2017 filed by Mst. Kalsoom Bibi complainant for enhancement of the amount of compensation awarded against the appellant by the learned trial Court and Murder Reference No. 636 of 2017 sent by the learned trial Court for confirmation or otherwise of the sentence of Death awarded to Muhammad Ijaz (appellant) by the learned trial Court. We propose to dispose of all these matters by this single judgment as these have arisen out of the same judgment dated 31.10.2017 passed by the learned Additional Sessions Judge, Sargodha.
2. Muhammad Ijaz (appellant) was tried in case FIR. No. 97 dated 18.03.2014, registered at Police Station Jhal Chakian, District Sargodha in respect of offence under Section 302, PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 31.10.2017, has convicted and sentenced the appellant as under:-
Under Section 302(b), PPC to ‘Death as tazir’ for committing Qatl-i-Amd of Mst. Shabana Kausar (deceased). He was also ordered to pay Rs. 5,00,000/-(Rupees five hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr.P.C. and in default thereof to undergo simple imprisonment for six months.
3. Brief facts of the case as given by the complainant Mst. Kalsoom Bibi (PW-4) in the FIR (Exh.PC) are that she (complainant) was resident of Skindarabad Colony Dakhli Chak No. 18 North (District Sargodha). Her daughter, namely, Mst. Shabana Kausar (deceased) was married to Muhammad Ijaz (appellant) three years earlier and from the said wedlock, there was a son, namely, Hashir Ali aged 1/2 year who was alive. On 18.03.2014 at 05:00/06:00 a.m., the complainant along with Nasir Mehmood (given up PW) and Ahmad Yar (PW-5) went to see Mst. Shabana Kausar deceased at her house situated at Chak No. 60 North (District Sargodha). Door of the room of Mst. Shabana Kausar (deceased) was closed and Muhammad Ijaz (appellant) and Mst. Shabana Kausar (deceased) were present inside the room of their house. On seeing the complainant party, Muhammad Ijaz (appellant) started to raise hue and cry that Mst. Shabana had died. The complainant party, when saw Mst. Shabana Kausar, they noticed that there were marks of injuries on her both arms and body. The complainant party expressed that the appellant had murdered Mst. Shabana Kausar. The complainant party had suspicion that Mst. Kausar Bibi was murdered by the appellant with the help of electric shock. In the meanwhile, Muhammad Ijaz (appellant) fled away from the spot.
4. The appellant Muhammad Ijaz was formally arrested in this case on 18.04.2014 by Rab Nawaz, Sub-Inspector (PW-8). On 26.04.2014, Muhammad Ijaz appellant led to the recovery of electric wire (P-1) and a dupatta (P-2), which were taken into possession vide recovery memo. (Exh.PB). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 18.07.2014, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced ten witnesses during the trial. Mst. Kalsoom Bibi complainant (PW-4) and Ahmad Yar (PW-5) are the witnesses of ocular account.
The medical evidence was furnished by Lady Dr. Qurat-ul-Ain (PW-10).
Rab Nawaz S.I (PW-8) and Muhammad Sadiq S.I (Rtd) (PW-9) are the Investigating Officers of this case. Nasir Hayat 293/C (PW-3) is the witness of recovery of electric wire (P-1) and dupatta (P-2), which were recovered on the pointation of the appellant vide memo. (Exh.PB).
Maqbool Ahmad 1415/MHC (PW-1), Muhammad Saleem Draftsman (PW-2), Akbar Mehmood 690/C (PW-6) & Zafar Iqbal (PW-7) are formal witnesses.
The prosecution also produced documentary evidence in the shape of site plan Exh.PA, memo. of possession of electric wire (P-1) and dupatta (P-2) on the pointation of the appellant (Exh.PB), FIR (Exh.PC), memo of possession of blood stained cotton (Exh. PD), injury statement (Exh.PE), rough site plan of the place of occurrence (Exh.PF), memo. of possession of seven sealed boxes & two envelops (Exh.PG), memo. of possession of last worn clothes of the deceased (Exh.PH), post-mortem report and pictorial diagrams of Mst. Shabana Kausar (deceased) (Exh.PJ, Exh.PJ/1 & Exh.PJ/2), inquest report (Exh.PK), reports of PFSA, Lahore regarding visras of the deceased (Exh.PL) & (Exh.PM) and closed its evidence.
6. The statement of the appellant under Section 342 of Cr.P.C. was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question that ‘Why this case against you and why the PWs have deposed against you” the appellant Muhammad Ijaz replied as under:-
“This false case has been registered against me due to suspicion and PWs have falsely deposed against me due to the relationship with deceased”
The appellant Muhammad Ijaz did not opt to make his statement on oath as envisaged under Section 340(2), Cr.P.C. However he produced statement of Ahmad Yar PW, recorded under Section 161 of Cr.P.C. as (Exh.DA)in his defence evidence.
The learned trial Court vide its judgment dated 31.10.2017, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
7. It is contended by learned counsel for the appellant that the appellant is innocent and he has falsely been implicated in this case by the complainant party merely on the basis of suspicion; that the prosecution’s eye-witnesses were not residents of the village where the occurrence took place and as such, they are chance witnesses but they could not establish any reason of their presence at the spot at the relevant time and as such, their evidence is not trustworthy; that there is delay of 6½ hours in lodging the FIR, whereas, there is delay of more than 12 hours in conducting the post-mortem examination on the dead body of Mst. Shabana Kausar deceased which further shows that the prosecution witnesses were not present at the spot at the time of occurrence; that the medical evidence does not support the ocular account of the prosecution and there are material conflicts between these two pieces of the prosecution evidence; that conduct of the prosecution witnesses is highly unnatural because according to the prosecution story, the appellant was empty handed, whereas, the complainant party was comprising of three members including two adult male members but they did not try to apprehend the appellant at the time of occurrence; that sister of the deceased, namely, Mst. Farzana Kausar was admittedly married with the brother of the appellant, namely, Muhammad Mumtaz and the complainant, namely, Mst. Kalsoom Bibi (PW-4) has admitted during her cross-examination that she was present at the spot at the time of occurrence but she has not been cited as a prosecution witness in this case and as such, the best evidence has been withheld by the prosecution therefore, an adverse inference may be drawn against the prosecution; that the prosecution has not produced any convincing evidence to prove the alleged motive; that the alleged recovery of wire and a piece of cloth from the possession of the appellant has been planted against the appellant and even otherwise, the Medical Officer has not stated that death of Mst. Shabana Kausar occurred due to the electric shock therefore, the said recoveries are inconsequential; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charge.
8. On the other hand, it is contended by learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant that the prosecution has proved its case against the appellant beyond the shadow of any doubt therefore, he was rightly convicted & sentenced by the learned trial Court; that presence of the prosecution’s eye-witnesses who are real mother and brother of the deceased, at the spot at the relevant time is neither unnatural nor improbable while keeping in view their relationship with the deceased; that the place of occurrence is situated at a distance of 16-kilometers from the police station and as such, there was no conscious or deliberate delay in reporting the matter to the police; that the prosecution’s eye-witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case is further corroborated by the recovery of wire and a piece of cloth from the appellant through which the appellant committed the murder of Mst. Shabana Kausar deceased; that the motive was also proved in this case against the appellant through reliable and convincing evidence of the prosecution witnesses; that place of occurrence is the house of the appellant therefore, it was duty of the appellant to explain that as to how his wife Mst. Shabana Kausar died unnatural death but he absconded at the time of occurrence and his conduct shows that he was guilty of the offence; that there is no substance in the appeal filed by the appellant therefore, the same may be dismissed and murder reference be answered in the affirmative. It is further prayed by learned counsel for the complainant, while arguing Crl. Revision No. 111926 of 2017 that the amount of compensation awarded against the appellant by the learned trial Court is very meager and the same may reasonably be enhanced.
9. Arguments heard. Record perused.
10. Prosecution case as set forth in the FIR (Exh.PC) has already been reproduced in paragraph No. 3 of this judgment therefore, there is no need to repeat the same.
11. We have noted that according to the prosecution’s case and as per contents of the FIR, the occurrence in this case took place on 18.03.2014 at 05:00/06:00 a.m. The occurrence took place in a room situated inside the house of the appellant. The ocular account of the prosecution was furnished by Mst. Kalsoom Bibi complainant (PW-4) and Ahmad Yar (PW-5). As per contents of the FIR when both the abovementioned eye-witnessed reached at the spot, they noticed that Muhammad Ijaz appellant and Mst. Shabana Kausar, who were husband and wife, were present in a room of their house and on the arrival of the complainant party, the appellant started to raise noise that Mst. Shabana Kausar had died, whereupon, the complainant party replied that the appellant had committed the murder of his wife Mst. Shabana Kausar with the help of electric shock as they noted injuries on her both arms and body. We have noted that the medical evidence furnished by the prosecution in this case through Lady Dr. Qurat-ul-Ain (PW-10) has not supported the prosecution case in any manner. As mentioned earlier, it was claim of the prosecution’s eye-witnesses that they reached in the house of the appellant on 18.03.2014 at 05:00/06:00 a.m., and thereafter, the appellant raised noise that his wife Mst. Shabana Kausar had died, whereas, according to the post-mortem report (Exh.PJ), as well as, according to the statement of Lady Dr. Qurat-ul-Ain (PW-10), made during her cross-examination, the dead body was received in the Dead House of the hospital on18.03.2014 at 05:00/06:00 a.m. Relevant part of the statement of Lady Dr. Qurat-ul-Ain (PW-10) in this respect reads as under:
at 05:00/06:00 a.m., and saw that the appellant and Mst. Shabana Kausar deceased were present in their house at that time and thereafter, the appellant raised noise that Mst. Shabana Kausar had died then as to how the dead body was received in the hospital at the same date and time i.e. on 18.03.2014 at 05:00/06:00 a.m. We have further noted that according to the prosecution’s case, the occurrence in this case took place on 18.03.2014 at 05:00/06:00 a.m., whereas, the FIR (Exh.PC) was lodged on the same day at 12:30 noon, i.e. with the delay of 7½/6½ hours from the time of occurrence. The distance between the place of occurrence and the police station was 16-kilometers. It is also noteworthy from the evidence of Lady Dr. Qurat-ul-Ain (PW-10) that although the dead body was received in the dead house of the hospital at 05:00/06:00 a.m. on 18.03.2014 but the police papers were produced before the said Medical Officer at 02:15 p.m., and thereafter, post-mortem examination was conducted on the dead body of the deceased at 04:45 p.m., and as such, there is delay of 12 hours in conducting the post-mortem examination on the dead body of the deceased. The abovementioned delay in conducting the post-mortem examination on the dead body of Mst. Shabana Kausar deceased is suggestive of the fact that eye-witnesses of the prosecution were not present at the spot at the relevant time and the said delay was consumed in procuring the attendance of fake eye-witnesses. We may refer here the case of ‘Irshad Ahmad versus The State’ (2011 SCMR 1190) wherein it was observed that the post-mortem examination of the dead body had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted. Similarly, in the case of ‘Khalid alias Khalidi and two others vs. The State’ (2012 SCMR 327)¸ the Hon’ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post-mortem examination on the dead body of deceased, to be an adverse effect against the prosecution case and it was held that it shows that the FIR was not lodged at the given time.
We have further noted that according to the ocular account of the prosecution, the appellant committed the murder of his wife, namely, Mst. Shabana Kausar with the help of electric shock but according to the final opinion of Lady Dr. Qurat-ul-Ain (PW-10), the cause of death of Mst. Shabana Kausar was due to asphyxia. It is noteworthy that initially the cause of death was not mentioned by the Medical Officer in the post-mortem report of the deceased and visras of the deceased were sent to the Punjab Forensic Science Agency and after receiving the reports of Punjab Forensic Science Agency (Exh.PL) & (Exh.PM), the Medical Officer opined as under:
“Now, in light of the reports Exh.PL and Exh.PM I am of the opinion that death in this case was due to asphyxia.”
It is not the case of any of the prosecution’s eye-witnesses that the appellant committed the murder of his wife by strangulating her neck rather it is the case of the prosecution that Mst. Shabana Kausar was murdered by the appellant after giving her electric shocks, whereas, the Medical Officer has mentioned that the cause of death of the deceased was asphyxia. We have further noted that the Medical Officer during her cross-examination has conceded that no mark of violence or abnormality was detected on the neck of the deceased. We have also noted that the Medical Officer has not mentioned the probable time that elapsed between the injuries and death and the time that
elapsed between the death and post-mortem examination of the deceased. Relevant columns in this respect of the post-mortem report (Exh.PJ) were left blank by the Medical Officer. Relevant part of her statement, made during cross-examination in this respect, reads as under:
Under the circumstances, even there is no medical evidence to support the prosecution case that the time of commission of murder of Mst. Shabana Kausar was 05:00/06:00 a.m., on 18.03.2014, as mentioned in the contents of the FIR (Exh.PC). Keeping in view all the aforementioned facts, we have come to this irresistible conclusion that the medical evidence has not supported the ocular account of the prosecution rather the same has contradicted the evidence of the prosecution’s eye-witnesses.
Likewise, in the case of “Sufyan Nawaz and another vs. The State and others” (2020 SCMR 192) at Para No. 5, the Apex Court of the country was pleased to observe as under:
“……………. He admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt.”
Similar view was taken in the case of “Muhammad Irshad vs. Allah Ditta and others” (2017 SCMR 142). Relevant part of the said judgment at Para No. 2 reads as under:
“……………… Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial Court through any independent evidence …………”
As the above mentioned prosecution eye-witnesses are chance witnesses and they could not prove any valid reason of their presence at the spot at the time of occurrence, therefore, their very presence in the house of occurrence at the relevant time becomes doubtful.
“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 Liaquat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat 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 cannot be safely held that the above mentioned eye-witnesses were present at the spot at the relevant time and they had witnessed the occurrence because their conduct is highly unnatural.
14. It is further noteworthy that real sister of the deceased, namely, Mst. Farzana Kausar was married with the brother of the appellant, namely, Muhammad Mumtaz. Mst. Kalsoom Bibi complainant (PW-4) has admitted during her cross-examination that said Mst. Farzana Kausar was present in the house of occurrence at the relevant time but she has not been cited by the prosecution as an eye-witness in this case without assigning any valid reason. Relevant part of statement, made by Mst. Kalsoom Bibi complainant (PW-4) during her cross-examination in this respect, reads as under:
“My other daughter namelyFarzana Kousar is married with Muhammad Mumtaz brother of Ijaz accused. She is living happily in the house of her husband till today. She also resided in the same house. She was present in the house in which the occurrence took place at the time of occurrence but she is not a PW in this case.”
Para No. 7
“There is no plausible explanation on the record that for what reason Mst. Noor Bibi did not disclose the story of murder of deceased till the registration of case after five days of the occurrence and why no other inmate of the house was examined in confirmation of her statement. The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutional misconduct which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence.”
(Bold and underlining is supplied for emphasis)
Similar view was taken by the Hon’ble Supreme Court of Pakistan in the judgments reported as “Muhammad Rafique and others vs. The State and others” (2010 SCMR 385) and “Riaz Ahmed vs. The State” (2010 SMCR 846).
“I do not know where Ijaz accused had wanted to contract second marriage. It is incorrect to suggest that I have attributed a false motive to Muhammad Ijaz accused.”
We are therefore, of the view that a vague and general allegation has been leveled against the appellant in respect of the motive and no convincing evidence has been produced to prove the same hence, we hold that the prosecution has failed to prove the motive part of its case.
16. It is true that the occurrence in this case took place in the house of the appellant but mere this fact by itself is not sufficient to hold the appellant is guilty of the offence. Apart from the appellant, his two brothers, namely, Rab Nawaz and Mumtaz along with their families were also residing in the house where the occurrence took place and this fact has duly been brought on the record during the cross-examination of Mst. Kalsoom Bibi complainant (PW-4) therefore, mere this fact that the appellant was also residing in the house where the occurrence took place by itself is not sufficient to hold that it was the appellant who had committed the murder of Mst. Shabana Kausar deceased. It was duty of the prosecution to prove its case against the appellant beyond the shadow of any doubt. Reliance in this respect may be placed on the cases of ‘Asad Khan vs. The State’ (PLD 2017 Supreme Court 681), ‘Nazir Ahmad vs. The State’ (2018 SCMR 787), ‘Muhammad Jamshaid and another vs. The State and others’ (2016 SCMR 1019) & ‘Nasrullah alias Nasro vs. The State’ (2017 SCMR 724).
18. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled 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 the case of ‘Tariq Pervez versus The State’ (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:
‘5. ….. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.’
The Hon’ble Supreme Court of Pakistan while reiterating the same principle in the case of ‘Muhammad Akram versus The State’ (2009 SCMR 230), at page 236, observed 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 a 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.”
20. Insofar as Crl. Revision No. 111926 of 2017 filed by Mst. Kalsoom Bibi complainant for enhancement of the amount of compensation awarded against the appellant by the learned trial Court is concerned, we have disbelieved the prosecution evidence for the detailed reasons mentioned in paragraph Nos. 11 to 18 of this judgment and acquitted the appellant by setting-aside his conviction and sentence therefore, there is no substance in the present revision petition hence, the same is hereby dismissed.
(A.A.K.) Appeal allowed
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