--Ss. 302/34--Delay in recording the Statement u/S. 161 Cr.P.C.--

 PLJ 2022 Cr.C. 987

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302/34--Delay in recording the Statement u/S. 161 Cr.P.C.--Acquittal of co-accused--Acquittal of--Both these PWs had not stated in their evidence that they had seen the appellant while firing on the person of the deceased--PW-11 attracted at the crime scene and on seeing them, Appellant/ her mother also fled away--Statement u/S. 161, Cr.P.C was got recorded after a noticeable delay of 22-days and no explanation whatsoever is available on record--Co-accused, who has been acquitted from the charge, was introduced in this case through a supplementary statement--Ocular account, and their testimonies are not worth reliance and no implicit reliance can be placed upon the same to maintain the conviction--Medical evidence does not provide any corroboration,  rather the same is always supportive in nature--Crime empty and weapon of offence pistol 30 bore were sent together to the office of Punjab Forensic Science Agency (PFSA)--Any reasonable doubt arising out of the prosecution story shall be resolved in favour of the deceased--Instant appeal is allowed.                                               

                                 [Pp. 991, 992, 993 & 994] A, B, C, D, E, F, G & H

2019 SCMR 652; 2019 SCMR 79; 2009 SCMR 230;
PLD 2002 SC 1048; 1995 SCMR 1345 ref.

Malik Shahnawaz Khokhar and Ms. Laraib Rehmat, Advocates for Appellant.

Mr. Muhammad Shahzad Mehdi, Advocate-Defence counsel appointed at State expense.

Nemo for Complainant.

Mr. Mudassir Ali Malik, Deputy Prosecutor General for State.

Date of hearing: 23.2.2022.

 PLJ 2022 Cr.C. 987
[Lahore High Court, Multan Bench]
Present: Muhammad Waheed Khan, J.
Mst. ALIA alias NAINAN--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 58-J of 2016, heard on 23.2.2022.

Judgment

Appellant Mst. Alia alias Nainan has challenged conviction and sentence awarded to her by the learned Addl. Sessions Judge, Karor, District Layyah vide judgment dated 28.04.2016 in private complaint under Section 302/34, PPC regarding case FIR No. 05 dated 05.01.2011 registered at Police Station Karor, District Layyah, whereby she was convicted and sentenced as under;-

(i)       Under Section 302(b), PPC awarded imprisonment for life. She was also directed to pay Rs. 50,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, Muhammad Afzal Shah, which shall be recoverable as arrears of land revenue and in case of its default, to further undergo six months simple imprisonment.

Benefit under Section 382-B, Cr.P.C. was also extended to her.

Whereas co-accused Muhammad Asif was acquitted of the charge vide judgment dated 30.05.2015 by the learned trial Court.

2. Precisely, facts of the case are that on 05.01.2011 at about 8:40 a.m., Faiz Muhammad complainant lodged an FIR with the allegation that his nephew Muhammad Afzal was residing in his neighbourhood and was married to Mst. Alia alias Nainan (appellant) 11/12 years before and from said wedlock four children were born. On the preceding night, the complainant was sleeping with his son Mushtaq Hussain and other family members in his house, whereas Bhadar Ali (PW) was irrigating his land when at 4:00 a.m. in the morning, they heard a sound of fire from the house of Muhammad Afzal whereupon, he (complainant), his son Mushtaq Husain and said Bhadar Ali rushed there, bulbs were on and they saw inside southern room Mst. Alia alias Nainan who was laying mattress on Muhammad Afzal and putting quilt over him, whereas a lot of blood was oozing out from his head. Mst. Alia alias Nainan was armed with pistol and on seeing them, she pointed pistol upon them and fled away from the southern gate of the Havaili. The complainant looked after Muhammad Afzal, who died there. Motive behind the occurrence was that Mst. Alia alias Nainan was woman of easy virtue and both of them have strained relations, so, she in order to get rid of him murdered her husband, hence, this case. After registration of case, investigation was carried out, however, being dissatisfied of the same, the complainant opted to file a private complaint against the appellant and co-accused Muhammad Asif.

3. After recording cursory evidence, learned trial Court summoned the appellant but during the pendency of trial, she became absent and her case was separated from her co-accused Muhammad Asif, who was acquitted of the case. Later on, the appellant was arrested on 23.07.2015 and trial to her extent was commenced accordingly. The prosecution in order to prove its case produced as many as fourteen witnesses and after producing certain documents closed its evidence. Muhammad Arif, Zulqarnain, witnesses of Wajtakker appeared as PW-6 and PW-8, Mst. Aleesha Bibi, Faiz Muhammad Shah, Bhadar Ali, witnesses of ocular account appeared as PW-9, PW-10 and PW-11 respectively. Dr. Muhammad Azam, who conducted autopsy on the dead body of the deceased appeared as PW-7. Muhammad Riaz SI, Faiz Muhammad SI and Azmat Ullah Inspector, Investigating Officers of the FIR case appeared as PW-13, PW-14 and CW-1 respectively. The remaining witnesses were of formal in nature and prosecution after producing certain documents closed its evidence.

4. After completion of prosecution evidence, statement of appellant was recorded under Section 342, Cr.P.C., in which she denied all the allegations leveled against her by the prosecution. She neither opted to appear as her own witness under Section 340(2), Cr.P.C., nor produced any evidence in her defence. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt, which resulted into conviction and sentence of the appellant in the afore stated terms.

5. In support of the instant appeal, learned counsel for the appellant has argued that the prosecution has failed to prove its case against the appellant ‘beyond reasonable shadow of doubt’ and the impugned judgment is based on surmises and conjectures; that similarly placed co-accused Muhammad Asif has been acquitted from the charge by the learned trial Court and presence of the prosecution witnesses, Faiz Muhammad Shah complainant (PW-10) and Bhadar Ali (PW-11) at the crime scene at the odd hours of night is highly doubtful and no implicit reliance can be placed on the testimony of Mst. Aleesha, 13/14, (PW-9), inmate of the house on account of inherent defect in it; that even otherwise, no corroboratory evidence to support the ocular version is available in this case as the prosecution remained failed to prove the alleged motive and the stated recovery of weapon of offence is rendered inconsequential and lastly prayed that by accepting the instant appeal the appellant be acquitted of the charge.

6. Conversely, learned Deputy Prosecutor General has faithfully defended the impugned judgment and controverted the arguments of learned counsel for the appellant by contending that the prosecution has successfully brought home the guilt of the appellant by producing cogent, trustworthy and reliable evidence, coupled with the evidence of motive, medical evidence and the recovery of weapon of offence from the appellant and its positive report from the Punjab Forensic Science Agency (PFSA) and lastly prayed that the instant appeal is liable to be dismissed being devoid of merits.

7. I have heard arguments of learned counsel for the appellant, learned Deputy Prosecutor General, perused the record with their able assistance and noticed that in order to substantiate its case against the appellant, the prosecution has relied upon the ocular account provided by Mst. Aleesha (PW-9), complainant Faiz Muhammad Shah (PW-10) and Bhadar Ali (PW-11). Motive behind the murder of Muhammad Afzal was stated to be illicit intimacy between Mst. Alia alias Nainan (appellant) and Muhammad Asif acquitted co-accused. The prosecution has also relied upon the medical evidence and the recovery of weapon of offence i.e. pistol .30 bore from the appellant. While giving the detail of incident, complainant Faiz Muhammad Shah, who was paternal uncle of Muhammad Afzal (deceased), appeared before the learned trial Court as PW-10 and deposed that on the night of 05.01.2011, he along with his family members was sleeping in his Havaili, whereas Bhadar AH (PW-11), was watering his land nearby. At about 4:00 a.m. in the night, they heard fire shot from the house of Muhammad Afzal deceased, upon which, he and his son Mushtaq went to his house, Bhadar Ali also attracted there and in the light of bulb, which was lighting up on the spot, they saw accused Mst. Alia alias Nainan laying mattress on Muhammad Afzal deceased by putting a quilt on him in a room and blood was oozing from his head. Since, the appellant was having a pistol in her hand, so, on seeing PWs, she managed to flee away. This witness further deposed that the deceased was done to death in the backdrop of illicit relations between Muhammad Asif acquitted co-accused and the appellant and both of them had murdered Muhammad Afzal considering as a hurdle in their way. Other witness Bhadar Ali (PW-11), also deposed almost in a similar manner.

8. On going through the testimonies of both these PWs and after hearing arguments of learned counsel for the parties, it is noticed that in fact both these PWs had not stated in their evidence that they had seen the appellant while firing on the person of the deceased land just deposed that when they after hearing sound of firing attracted to spot, they had seen Mst. Alia alias Nainan while putting a quilt on the dead body of her husband Muhammad Afzal (deceased) and on seeing them, she managed to flee away and the witnesses could not apprehend her as she was having a pistol in her hand. Bhadar Ali (PW-11) while advancing the reason of his availability at the crime scene deposed that he was watering the field adjacent to the house of the deceased but on going through the site plan (Ex-PA), I have noticed that field, in which, the said witness was watering has not been mentioned therein.

9. But I think that evidence of third witness i.e. Mst. Aleesha 13/14, who appeared in the dock as PW-9 is paramount in nature. Since, she is the daughter of the appellant and the deceased Muhammad Afzal, so, her presence in the house cannot be doubted on any hypothesis. She while deposing before the learned trial Court stated that on 05.01.2011 at 4:00 a.m. in the night, she with sister and brothers were sleeping in the house, all of a sudden, she heard noise of fire, on which she woke up and saw in the light of electric bulb that her mother was armed with pistol and Muhammad Asif co-accused was also armed with pistol. The blood was oozing out from the head of Muhammad Afzal deceased, she along with her brothers and sister raised hue and cry, upon which, Asif accused pointed pistol upon them and threatened them of dire consequences and fled away from the crime scene. Thereafter, complainant Faiz Muhammad Shah (PW-10), Muhammad Shah (not produced) and Bhadar Ali (PW-11) attracted at the crime scene and on seeing them, Mst. Alia alias Nainan her mother also fled away. This witness further deposed that her mother had demanded divorce from her father as she had developed illicit relations with co-accused Muhammad Asif. Although, presence of Mst. Aleesha being inmate of the house cannot be doubted but at the same time, no implicit reliance can be placed on her deposition straightway on account of certain inherent flaws in the same. Firstly, I have noticed that her statement under Section 161, Cr.P.C. was got recorded on 27.01.2011 after a noticeable delay of 22 days and no explanation whatsoever is available on record regarding recording of her statement by the Investigating Officer with such delay. This witness admitted in her cross-examination that on 06.01.2011, she along with other witnesses went to the Police Station to join investigation for the first time but despite her visiting to the Police Station, the factum of non-recording her statement under Section 161, Cr.P.C. caused serious dent to the veracity of the prosecution case. It is also observed that as per version of the prosecution, since murder of her father Muhammad Afzal, this witness was living with her paternal aunts and uncles, so, there is force in the assertion of learned counsel for the appellant that influence of paternal relatives on her cannot be ruled out.

10. Co-accused Muhammad Asif, who has been acquitted from the charge, was introduced in this case through a supplementary statement made by the complainant on 09.01.2011. Admittedly, both the PWs i.e. Faiz Muhammad Shah (PW-10) and Bhadar Ali (PW-11) had not seen the said co-accused while leaving the house of the deceased, especially, Bhadar Ali, who according to the prosecution story, was watering his field near the house of the deceased. But according to the stance of Mst. Aleesha, she had seen Muhammad Asif co-accused while having pistol in his hand along with her mother, as they both were standing near the dead body of her father but neither before the police while recording her statement under Sectoin 161, Cr.P.C. nor before the learned trial Court, she has stated that she had seen Mst. Alia alias Nainan while making firing on the deceased.

11. There is another piece of evidence adduced by the prosecution before the learned trial Court in shape of evidence of Muhammad Arif (PW-6) and Zulqarnain (PW-8), they are the witnesses of Wajtakker and deposed that soon after the occurrence, they had seen Muhammad Asif co-accused while fleeing from crime scene but it is not easy to place reliance on their testimonies as their statements under Section 161, Cr.P.C. were also recorded with a noticeable delay of four days and despite their close relationship with the complainant, they remained silent for four days and during the interregnum, did not speak this factum to anybody.

12. So, after scanning the ocular account, I feel that their testimonies are not worth reliance and no implicit reliance can be placed upon the same to maintain the conviction of the appellant, without having any corroboration, coming from an unimpeachable source. For this purpose, I have gone through the evidence of motive and noticed that except oral assertions of the witnesses of ocular account, no other evidence qua the illicit relationship between the appellant and acquitted co-accused is available on record. Moreover, the same has been disbelieved by the learned trial Court as well.

13. The next piece of evidence available with the prosecution is the medical evidence and it is settled law by now that medical evidence does not provide any corroboration, rather the same is always supportive in nature and only explains nature of injuries sustained by the deceased or PWs, duration between injuries and death and kind of weapon used therein and the corroboration could only be sought from evidence, which could lead to the culpability of the accused on its own. So under the circumstances, medical evidence lends no corroboration to ocular account.

14. As far as, the evidence of recovery is concerned, case of the prosecution is that in consequence of disclosure made by the appellant, police got recovered pistol .30 bore from her possession and since the Investigating Officer secured an empty shell of .30 bore from the crime scene, so, both were sent for forensic analysis and according to the report of Punjab Forensic Science Agency (PFSA), crime empty sent to it was found wedded with the pistol allegedly recovered from the possession of the appellant. But on going through the evidence in this regard, I have noticed that evidence of recovery of weapon of offence is inconsequential in nature, firstly on the ground that both i.e. crime empty and weapon of offence pistol .30 bore were sent together to the office of Punjab Forensic Science Agency (PFSA) and secondly, evidence of Muhammad Sharif ASI Moharrer of Police Station Karor (PW-3) and evidence of Tahir Iqbal 585-C (PW-12), who transmitted the parcels to office of Punjab Forensic Science Agency (PFSA) are contradictory to each other. Muhammad Sharif ASI (PW-3), though, deposed that he received the parcels containing pistol .30 bore and crime empty of .30 bore pistol and kept those in Malkhana but he has not deposed that to whom, he had handed over those parcels for onward transmission to the office of Punjab Forensic Science Agency (PFSA) and while giving answer to a question put to him by the learned defence counsel during cross-examination, he deposed as under:

“It is not in my knowledge if parcel of crime empties and pistol .30 bore were sent to concerned offices or not.”

Similarly, Tahir Iqbal (PW-12) deposed before the learned trial Court in following terms:

“On the same day, Muhammad Sharif ASI/Moharrer handed over to me a sealed parcel said to contain blood stained earth and other sealed parcel said to contain pistol .30 bore for onward transmission to office of chemical examiner Lahore and PFSA Lahore. On the next date I deposited the aforesaid parcels to concerned offices.”

Although, this witness deposed about the transmission of parcels of blood stained earth and pistol .30 bore but he has not uttered a word about transmission of parcel containing the empty of .30 bore pistol. So, on going through the excerpts of these PWs, there is no doubt in my mind that safe custody of pistol .30 bore and its empty and safe transmission of the same to the office of Punjab Forensic Science Agency (PFSA) have not been established by the prosecution, hence, the recovery of weapon of offence i.e. pistol .30 bore from the possession of the appellant is rendered to be inconsequential, so, this piece of evidence too does not provide any corroboration to the ocular account.

15. To sum up the case in the light of observations discussed supra, as all the witnesses of ocular account were not sure that who between the accused persons has caused fire-arm injury on person of the deceased Muhammad Afzal and similarly placed co-accused Muhammad Asif has been acquitted from the charge by the learned trial Court and no independent corroboration whatsoever is forth coming to corroborate the ocular account, hence, there is no doubt in my mind that the prosecution remained un-successful to prove its case against the appellant ‘beyond reasonable shadow of doubt’ and the prosecution story is replete with many doubts and the law is settled by now that any reasonable doubt arising out of the prosecution story shall be resolved in favour of the accused not as a matter of grace but as a matter of right. Reliance in this regard is placed on the judgments passed by the august Supreme Court of Pakistan in I cases of “Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), “Munir Ahmad and another v. The State and others” (2019 SCMR 79), “Muhammad Akram v. The State” (2009 SCMR 230), “Ayub Masih v. The State” (PLD 2002 SC 1048) and “Tariq Pervez v. The State” (1995 SCMR 1345).

16. In sequel to the above discussion, the conviction and sentence awarded by the learned trial Court should not be allowed to stand, therefore, the instant appeal is allowed, the judgment passed by the learned trial is set aside and the appellant Mst. Alia alias Nainan is acquitted of the charge. She is in jail, be released forthwith if no required in any other case.

(K.Q.B.)          Appeal allowed