PLJ 2022 Cr.C. 397 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Appellant gave consecutive blows of Churri to (deceased), which landed on different parts of her body--Number of injuries inflicted on body of (deceased) shows that assailant was highly provoked against deceased--Motive alleged by prosecution was true even then there was no reason with appellant to inflict as many as fourteen injuries on body--Total twenty injuries were sustained by (deceased) during occurrence and as such there is conflict between ocular account and medical evidence of prosecution--There was possibility that injuries on body of (deceased) were caused with more than one weapon--Deelay in conducting post-mortem examination on dead-body of deceased is suggestive of fact that prosecution story has been cooked up and fake eye-witnesses have been introduced by prosecution in this case--Trial Court disbelieved prosecution story qua above-mentioned co-accused and acquitted them vide same impugned judgment--No appeal has been filed against acquittal--From perusal of evidence of prosecution eye-witnesses that they stood like silent spectators at time of occurrence and did not take a single step to rescue deceased--It is not save to rely upon prosecution evidence qua alleged recovery of Churri on pointation of appellant and positive report of Punjab Forensic Science Agency--Prosecution has failed to prove its case against appellant beyond shadow of doubt, criminal appeal accepted.
[Pp. 399, 404, 405, 406, 407, 408, 409 & 410] A, C, D,
E, F, G, H, I, J & K
Statement of an accused--
----Statement of an accused is to be accepted or rejected in toto and it is legally not permissible to accept inculpatory part of statement of an accused and reject exculpatory part of same statement. [P. 403] B
Ms. Sheeba Qaisar, Advocate for Appellant.
Rai Asghar Hussain, Deputy Prosecutor General for State.
Ch. Naveed Aslam Randhawa, Advocate and Ch. Muhammad Saeed Gujjar, Advocate for Complainant.
Date of hearing 13.10.2021.
PLJ 2022 Cr.C. 397 (DB)
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ.
versus
STATE and another--Respondents
Crl. A. No. 115212 & M.R. No. 672 of 2017, decided on 13.10.2021.
Judgment
Malik Shahzad Ahmad Khan, J.--This judgment shall dispose of Criminal Appeal No. 115212 of 2017, filed by Muhammad Ashraf (appellant) against his conviction and sentence and Murder Reference No. 672 of 2017, sent by the learned trial Court for confirmation or otherwise of the Death sentence of Muhammad Ashraf (appellant). We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 28.11.2017, passed by the learned Additional Sessions Judge, Faisalabad.
2. Muhammad Ashraf (appellant) along with Muhammad Amjad (co-accused since acquitted) and Mst. Najma Bibi (co-accused since acquitted) was tried in case F.I.R. No. 531/2016 dated 25.08.2016, registered at Police Station D-Type Colony, Faisalabad, in respect of offences under Sections 302/34, PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 28.11.2017, has convicted and sentenced the appellant as under:
Under Section 302(b), PPC to ‘Death’ for committing Qatl-i-Amd of Mst. Bashiran Bibi (deceased). He was also ordered to pay Rs. 3,00,000/-(rupees three hundred thousand only) to the legal heirs of the deceased and in default thereof to further undergo six months simple imprisonment.
However, vide the same impugned judgment, the learned trial Court/ Additional Sessions Judge, Faisalabad acquitted Muhammad Amjad and Mst. Najma Bibi (co-accused), while extending them the benefit of doubt.
3. Brief facts of the case as given by Muhammad Akram complainant (PW-5) in his complaint (Ex.PG), on the basis of which the formal FIR (Ex.PC) was chalked out, are that on 25.08.2016, at about 3.30 p.m, wife of Muhammad Akram complainant (PW-5), namely Mst. Bashiran Bibi (deceased) went to Main Bazar Sohailabad for purchasing grocery items but she did not return back for a considerable period. Muhammad Akram complainant (PW-5), therefore, went to the Main Bazar in search of his wife Mst. Bashiran Bibi (deceased) and during the said search he (complainant) came to know that Muhammad Ashraf (appellant) had forcibly taken Mst. Bashiran Bibi (deceased) to his house. Muhammad Akram complainant (PW-5), went to the house of Muhammad Ashraf (appellant) and when he reached outside the house of the appellant, he (complainant) heard noise of quarrel of Muhammad Ashraf (appellant) with Mst. Bashiran Bibi (deceased) from the Bhaitik of the said house. The complainant opened the door and saw that Muhammad Ashraf was standing while armed with Churri. On hearing hue and cry, Abdul Sattar (PW since given-up) and Asghar Ali (PW-6), who were passersby, came at the spot. Within the view of the complainant and the witnesses, Muhammad Ashraf (appellant) gave consecutive blows of Churri to Mst. Bashiran Bibi (deceased), which landed on the different parts of her body. Mst. Bashiran Bibi (deceased), fell at the spot after sustaining injuries. The complainant party, when tried to apprehend Muhammad Ashraf (appellant), Amjad (co-accused since acquitted), while armed with pistol 30 bore came outside the house and threatened the complainant party that if anybody would come near, then he shall be done to death. The accused persons thereafter fled away from the spot, whereas Mst. Najma Bibi (co-accused since acquitted) put lock on the Bhaitik of the house from the out-side. The complainant party after breaking open the lock, tried to take Mst. Bashiran Bibi (deceased) to the hospital but she succumbed to the injuries in the way.
4. Muhammad Ashraf (appellant) was arrested in this case on 01.09.2016 by Muhammad Usman Inspector (PW-9). On 09.09.2016, he (appellant) disclosed and then led to the recovery of Churri (P-4), which was taken into possession vide recovery memo. (Ex.PJ). 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 and his co-accused on 05.11.2016, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced nine witnesses during the trial. Muhammad Akram complainant (PW-5) and Asghar Ali (PW-6), are the witnesses of ocular account.
Shabbir Hussain (PW-7), is the witness of the recovery of Churri (P-4), which was recovered on the pointation of the appellant vide memo. (Ex.PJ).
The medical evidence was furnished by Lady Doctor Zuneera Misbah (PW-4).
Muhammad Usman Inspector (PW-9), is the Investigating Officer of the case.
Muhammad Nawaz draftsman (PW-1), Zahid Shareef 7018/C (PW-2), Waqas Akhtar 244/HC (PW-3) and Allah Rakha (PW-8) are the formal witnesses.
The prosecution also produced documentary evidence in the shape of scaled site plan of the place of occurrence (Ex.PA), memo. of possession of blood stained, last worn clothes of Mst. Bashiran Bibi deceased (Ex.PB), complaint (Ex.PC), post-mortem report and pictorial diagrams of the deceased (Ex.PD & Ex.PD/1), application for conducting post-mortem examination of the deceased (Ex.PE), inquest report (Ex.PF), F.I.R (Ex.PG), memo. of possession of blood stained cotton from the spot (Ex.PH), memo. of possession of blood stained Churri (Ex.PJ), site plan of the place of recovery of Churri (Ex.PJ/1), rough site plan of the place of occurrence (Ex.PK), report of the Punjab Forensic Science Agency, Lahore about blood stained cotton and Churri (Ex.PL) 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 replied as under:
“It is a false case and I have been roped in this case falsely. In fact the deceased had illicit relations with me since long and she generally remained with me in my house. Due to this, Bashiran Bibi (deceased) demanded divorce from the complainant but he refused. On the day of occurrence deceased visited my house on her free will and remained with me for a long time. Meanwhile complainant along with PWs came there. They were angry with her (deceased). Complainant abused me and tried to kill me but I fled away from the spot to save my life but Bashiran Bibi (deceased) was caught by complainant and PWs and they inflicted Churri blows one after another till her death. Due to this grudge complainant falsely involved me and my co-accused persons in this false case. The PWs are inter se relation and also related with the complainant. They falsely deposed against me only to take grudge of my illicit relations with the deceased and to strengthen this false prosecution case”.
The appellant Muhammad Ashraf neither opted to make statement on oath as envisaged under Section 340(2) Of, Cr.P.C. nor he produced any evidence in his defence.
The learned trial Court vide its judgment dated 28.11.2017, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
7. Learned counsel for the appellant contends that the appellant is absolutely innocent and has falsely been implicated in this case by the complainant being in-league with the local police; that in fact Muhammad Akram complainant (PW-5), who is husband of Mst. Bashiran Bibi (deceased) had suspicion of illicit relations of Mst. Bashiran Bibi (deceased) with Muhammad Ashraf (appellant), therefore, he committed the murder of Mst. Bashira Bibi and falsely roped the appellant in this case; that the story narrated by the prosecution eye-witnesses does not appeal to a prudent mind and there are glaring contradictions in the ocular account and the medical evidence of the prosecution because no number of injuries sustained by Mst. Bashiran Bibi (deceased) was mentioned by the complainant in the contents of the FIR, whereas the prosecution eye-witnesses while appearing before the learned trial Court stated that the appellant inflicted fourteen injuries with the help of Churri on the body of Mst. Bashiran Bibi (deceased) but if the post-mortem examination report of the deceased is examined minutely, then it would reveal that in fact Mst. Bashiran Bibi deceased received total twenty (20) injuries on her body and as such there is conflict between the ocular account and medical evidence of the prosecution; that the conduct of the prosecution eye-witnesses is highly un-natural because according to the prosecution story, the complainant party was comprising of three adult male members but they did not try to save the life of Mst. Bashiran Bibi (deceased), when the appellant was not armed with any formidable firearm weapon; that there are glaring contradictions in the prosecution evidence because according to the evidence of the prosecution eye-witnesses namely Muhammad Akram complainant (PW-5) and Asghar Ali (PW-6), they took Mst. Bashiran Bibi (deceased) after the occurrence, in injured condition to the hospital but according to the statement of Muhammad Usman Inspector/I.O (PW-9), the dead-body of Mst. Bashiran Bibi (deceased) was lying at the place of occurrence at the time of his visit of the spot; that the daughter of the complainant has not been produced in the witness box to prove the alleged motive; that according to the report of Punjab Forensic Science Agency, Lahore (Ex.PL), Churri was deposited by Muhammad Usman Inspector (PW-9), in the office of Punjab Forensic Science Agency, Lahore but the said witness has not deposed in his evidence that he received the said Churri from the Moharrar mall-khana of the police station and deposited the same in the office of Punjab Forensic Science Agency, Lahore; that the impugned judgment is result of misreading and non-reading of evidence; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, he (appellant) may be acquitted from the charge.
8. On the other hand, learned Deputy Prosecutor General, for the State, assisted by learned counsel for the complainant has argued that the prosecution has proved its case against the appellant beyond the shadow of any doubt; that the occurrence took place on 25.08.2016 at 03.30 p.m, whereas the FIR was promptly lodged on the same day at 05.45 p.m and as such the promptness of the FIR rules out the possibility of any concoction or deliberation in the prosecution story; that the prosecution eye-witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the appellant is named in a promptly lodged FIR with the specific role that he inflicted repeated Churri blows on the body of Mst. Bashiran Bibi (deceased) and the role attributed to the appellant has fully been supported by the medical evidence furnished by the prosecution through Lady Doctor Zuneera Misbah (PW-4); that the appellant has himself admitted during the cross-examination of the PWs, as well as, in his statement recorded under Section 342 Of, Cr.P.C. regarding the commission of offence in his house and presence of the complainant and the prosecution witnesses at the time of occurrence; that the motive of the prosecution case was also proved through reliable and confidence inspiring evidence of the prosecution witnesses; that the prosecution case against the appellant has further been corroborated by the recovery of Churri (P-4), on the pointation of the appellant and positive report of Punjab Forensic Science Agency, Lahore (Ex.PL); that the appellant has committed a brutal and reckless murder of an innocent lady, therefore, he does not deserve any leniency, in the quantum of his sentence; that the sentence of death was rightly awarded to the appellant, therefore, the same may be maintained, appeal filed by the appellant be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General and have also gone through the evidence available on the record with their able assistance.
10. The detail of the prosecution case as set forth in the FIR (Ex.PC) has already been given in Para No. 3 of this judgment, therefore, there is no need to repeat the same.
11. We have noted that it was the case of the appellant in his statement recorded under Section 342 Of, Cr.P.C., as well as, during cross-examination of the prosecution witnesses that in fact Mst. Bashiran Bibi (deceased) had been murdered by her husband namely Muhammad Akram complainant (PW-5), because Mst. Bashiran Bibi deceased had illicit relations with the appellant and due to the said reason, when Mst. Bashiran Bibi (deceased) came to the house of the appellant on the day of occurrence, the complainant also came there and committed murder of Mst. Bashiran Bibi (deceased), whereas the appellant fled away from the spot. On the other hand, it is case of the prosecution that in fact Muhammad Ashraf (appellant) wanted “rishta” (hand) of the daughter of the complainant for his son but Mst. Bashiran Bibi (deceased) refused to give “rishta” (hand) of her daughter to the son of the appellant, therefore, the appellant, on the day of occurrence forcibly took Mst. Bashiran Bibi (deceased) from the main bazar towards his Bhaitik and thereafter committed his murder by inflicting repeated Churri blows on her body. Insofar as the defence version of the appellant brought on the record through his statement recorded under Section 342 of Cr.P.C. and argument of learned counsel for the complainant that the defence (appellant) has thus admitted the presence of the complainant and prosecution eye-witnesses at the spot at the time of occurrence, is concerned, it is noteworthy that although the appellant admitted during his abovementioned statement that he had illicit relations with Mst. Bashiran Bibi (deceased) but he has not admitted that they ever committed zina with each other. The nature of above-mentioned illicit relationship is not determinable in his case because no detail of said relationship has been brought on the record by the defence, whereas, no such allegation has been levelled by the prosecution. No charge was framed by the learned trial Court for offence of zina. Insofar as the remaining part of the above-referred statement of the appellant is concerned, no offence is made out against the appellant from the perusal of said part of his statement because he categorically stated that he fled away from the place of occurrence at the time of murder of Mst. Bashiran Bibi (deceased) at the hands of the complainant and the PWs, therefore, no judgment of conviction can be passed against the appellant on the basis of abovementioned statement. It is by now well settled that statement of an accused is to be accepted or rejected in toto and it is legally not permissible to accept inculpatory part of the statement of an accused and reject exculpatory part of the same statement, when otherwise the prosecution evidence is not worthy of reliance. Reference in this context may be made to the case of ‘Muhammad Asghar v. The State’ (PLD 2008 Supreme Court 513). The relevant paragraph of the said judgment at page 520 is reproduced hereunder for ready reference:
We are, therefore, of the view that no benefit could be extended to the prosecution merely on the basis of above-mentioned statement of the appellant, without first determining that the prosecution has itself discharged its initial burden or not to prove its case against the appellant beyond the shadow of any doubt. We, therefore, proceed to decide the instant case after perusal of the prosecution evidence available on the record to determine the above-mentioned question.
14. We have also noted that the occurrence in this case took place on 25.08.2016, at about 3.30 p.m. The post-mortem examination on the dead-body of Mst. Bashiran Bibi (deceased) was conducted on the next day (26.08.2016), at about 10.00 a.m i.e., with the delay of about 18½ hours from the time of occurrence. Lady Doctor Zuneera Misbah (PW-4) in her examination-in-chief has categorically stated that the dead-body was received in mortuary on 25.08.2016 at 6.30 p.m, whereas the police documents were presented to her on 26.08.2016 at 10.00 a.m and thereafter she conducted post-mortem examination on the dead-body of Mst. Bashiran Bibi (deceased) at 10.00 a.m. Although Muhammad Akram complainant (PW-5), in his examination-in-chief stated that when they (complainant party) took the dead-body of Mst. Bashiran Bibi (deceased) to the hospital, the time of post-mortem examination was already over but no such statement has been made by Lady Doctor Zuneera Misbah (PW-4) that when the dead-body of Mst. Bashiran Bibi (deceased) was received in the mortuary on 25.08.2016, at 6.30 p.m, the time of post-mortem examination was already over. On the other hand, she categorically stated that the police papers were handed over to her on 26.08.2016 at 10.00 a.m and thereafter she conducted post-mortem examination on the dead-body of Mst. Bashiran Bibi (deceased). The above-mentioned gross delay in conducting post-mortem examination on the dead-body of the deceased is suggestive of the fact that the prosecution story has been cooked up and fake eye-witnesses have been introduced by the prosecution in this case. 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 deadbody 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 deadbody 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 deadbody of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time.
15. It is further noteworthy that the conduct of the prosecution eye-witnesses at the time of occurrence is highly un-natural because according to the prosecution’s own case, the accused party was comprising of two adult male members namely Muhammad Ashraf (appellant), Amjad (co-accused since acquitted) and a female member namely Mst. Najma Bibi (co-accused since acquitted), whereas the complainant party was comprising of three male adult members but they did not try to save Mst. Bashiran Bibi (deceased) at the time of occurrence and they allowed the appellant to inflict as many as twenty (20) injuries on the body of the deceased. Although the prosecution eye-witnesses have given the reason that as Amjad (co-accused since acquitted) threatened them (complainant party) with his pistol and after the occurrence Mst. Najma Bibi (co-accused since acquitted) locked the door of Bhaitik, where the occurrence took place, therefore, they could not save Mst. Bashiran Bibi (deceased) or apprehend the appellant at the time of occurrence but we have noted that both the abovementioned co-accused (Amjad and Mst. Najma Bibi) were declared innocent during the course of police investigation and the prosecution case to their extent was found to be false. Furthermore, no pistol was recovered from the possession of Amjad (co-accused since acquitted). Likewise no broken lock was recovered from the spot to support the allegation levelled against Mst. Najma Bibi co-accused. It is also noteworthy that the learned trial Court disbelieved the prosecution story qua the above-mentioned co-accused and acquitted them vide the same impugned judgment. No appeal has been filed against the acquittal of abovementioned Amjad and Mst. Najma Bibi (co-accused) by the State or the complainant, which fact has been conceded by the learned Deputy Prosecutor General for the State and learned counsel for the complainant, present before the Court. Under the circumstances, the acquittal of above-mentioned co-accused has attained finality, therefore, it is established that the abovementioned co-accused were not present at the spot at the relevant time and Muhammad Ashraf (appellant) was alone at that time but the complainant party, which was comprising of three adult male members did not try to save Mst. Bashiran Bibi (deceased) from the hands of Muhammad Ashraf (appellant) and allowed him to inflict as many as twenty injuries on her body. They did not even apprehend the appellant after the occurrence, when the appellant was not armed with any formidable firearm weapon. They also did not try to stop Mst. Najma (co-accused since acquitted) from locking the door of Bhaitik from outside, where the occurrence took place. Relevant part of the statement of Muhammad Akram complainant (PW-5), in this respect reads as under:
…………………………………………………………………………..
…………………………………………………………………………..
……….. “In our presence Najma accused locked the door from the outer side we did not intervened because she was a lady ……………………”
“The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased. The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue …………..”
Similar view was reiterated by the august Supreme Court of Pakistan in the cases of “Zafar v. The State and others” (2018 SCMR 326) and “Liaquat Ali vs. The State” (2008 SCMR 95).
16. We have further noted that according to the statement of Muhammad Akram complainant (PW-5) and Asghar Ali (PW-6), after the occurrence they shifted Mst. Bashiran Bibi (deceased), in injured condition to the Allied Hospital, Faisalabad but she succumbed to the injuries on the way, whereas according to the statement of Muhammad Usman Inspector/I.O (PW-9), he visited the spot on 25.08.2016, after receiving the information regarding this occurrence and found that the dead-body of Mst. Bashiran Bibi was lying there. He further stated that he dispatched the dead-body of Mst. Bashiran Bibi through Zahid Sharif 7018/C (PW-2) for the purpose of autopsy. Likewise in inquest report (Ex.PF), the dead-body of the deceased has been shown lying at Mohallah Sindhuwan 223-RB, Faisalabad. We are, therefore, of the view that the prosecution evidence is self-contradictory.
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 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 doubts about the truthfulness of the prosecution story. In the case of ‘Tariq Pervez vs. 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 vs. 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 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.”
(A.A.K.) Appeal accepted
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