PLJ 2022 Cr.C. 835
Delay in Post-mortem--
----Hon’ble Supreme Court observed that delay of 11-hours in conducting postmortem examination shows that I prosecution eye-witnesses were not present at spot at time of occurrence, therefore, said delay was utilized for showing fake eye-witnesses in police papers. [P. 841] A
2018 SCMR 326.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Delay in post-mortem--Chance witness--Apex Court of Country was pleased to observe that delay of nine-hours in conducting postmortem examination suggests that prosecution eye-witnesses were not ‘ present at spot at time of occurrence, therefore, said delay was used in procuring attendance of fake eye-witnesses--Prosecution eye-witnesses were not present at spot at time of occurrence which resulted in delay of postmortem examination of deceased--Mother of complainant was residing in a different house and she was not residing in house where occurrence took place--The complainant also did not produce his mother in witness box to justify above mentioned reason--He is therefore, a chance witness and as such his evidence is not free from doubt--Prosecution eye-witness is a chance witness and he could not prove reason of his presence at spot at time of occurrence, therefore, his very presence at spot at relevant time becomes doubtful--Court have considered all aspects of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellant beyond shadow of doubt [Pp. 841, 842, 843 & 846] B, C, D & F
2017 SCMR 142, 2015 SCMR 1142 & 2017 SCMR 54.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129(g)--There is a report of Chemical Examiner that the mentioned ‘Chhurri’ was stained with blood but there is no report of Serologist to establish that above mentioned ‘Chhurri’ was stained with “human” blood or not--As per report of Chemical Examiner, ‘Chhurri’ was sent to office of Serologist to determine that as to whether or not blood detected on said ‘Chhurri’ was ‘human’ blood but prosecution did not produce , in evidence report of Serologist--In light of above best evidence has been withheld by prosecution to establish that ‘Chhurri’ was stained with ‘human’ blood, therefore, an adverse inference under Article 129(g) of Qanun-e-Shahadat der, 1984 can validly be drawn against prosecution that had e report of Serologist been produced in evidence then Same would not have favoured prosecution case.
[Pp. 845 & 846] E
Mr. Tayyab Shakoor Rana Advocate for Appellant as well as Respondent No. 1 (in Crl. Revision No. 767 of 2010.
Ch. Muhammad Ishaq, Additional Prosecutor General for State.
Nadeem son of Mubashar Ahmad (deceased) and Ahsan son of Mushtaq Ahmad for Complainant (as well as Petitioner (in Crl. Revision No. 767 of 2010.
Date of Hearing: 26.1.2021.
PLJ 2022 Cr.C. 835
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan, J.
versus
STATE and another--Respondents
Crl. A. No. 1612 & Crl. Rev. No. 767 of 2010, heard on 26.1.2021.
Judgment
This judgment shall dispose of Criminal Appeal No. 1612 of 2010, filed by Javed Aftab (appellant), against his conviction and sentence and Criminal Revision No. 767 of 2010, filed by the complainant Mushtaq Ahmad for enhancement of sentence awarded to Javed Aftab (appellant) from imprisonment for life to death, as both these matters have arisen out of the same impugned judgment dated 27.05.2010, passed by learned Additional Sessions Judge, Chiniot.
2. Javed Aftab (appellant) along with Mst. Nusrat Anjum (co-accused since acquitted), was tried in case F.I.R. No. 440 dated 22.08.2006, registered at Police Station Chenab Nagar. District Chiniot, in respect of offences under Sections 302/109, PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 27.05.2010, has convicted and sentenced Javed Aftab (appellant) as under:
Under Sections 302(b), PPC to imprisonment for life (rigorous) as tazir. He was also ordered to pay Rs. 50,000/- (rupees fifty thousand only) to the legal heirs of Mubashar Ahmad (deceased) as compensation and in default thereof to suffer simple imprisonment for six years.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellants.
However, vide the same impugned judgment dated 27.05.2010, Mst. Nusrat Bibi (co-accused), was acquitted by the learned trial Court/Additional Sessions Judge, Chiniot while giving her the benefit of doubt.
3. Brief facts of the case as given by the complainant Mushtaq Ahmad (PW-8), in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PA/1) was chalked out, are that the complainant was resident of Factory Area Chenab Nagar and his mother, as well as, brother Mubashar Ahmad (deceased) had been residing in separate houses in Mohallah Naseerabad. The mother of the complainant was sick and he (complainant) often used to visit the house of his mother in order to see her. The character of wife of Mubashar Ahmad (deceased) namely Mst. Nusrat Bibi (co-accused since acquitted) was doubtful, who had gone to Karachi during the days of occurrence. Javed Aftab (appellant) was on visiting terms with Mubashar Ahmad (deceased). On the intervening night of 21/22-08-2006, at about 12.30 (night), the complainant along with his brother Zafar Ahmad and nephew Ayaz alias Pomi (PWs since given-up) were retuning back to Bait-ul-Ahmad, Chenab Nagar after attending his mother. In the meanwhile, after hearing hue and cry from the house of his brother Mubashar Ahmad (deceased), they entered the said house and saw that Javed Ahmad (appellant) was giving repeated churri blows to Mubashar Ahmad (deceased) on different parts of his body. The complainant party tried to apprehend the appellant but he (appellant) fled away from the spot while wielding the ‘Chhurri. Mubashar Ahmad succumbed to the injuries at the spot.
The motive behind the occurrence was that after committing murder of complainant’s brother namely Mubashar Ahmad, Javed Aftab (appellant), wanted to develop illicit relations with the wife of the deceased namely Mst. Nusrat Bibi (co-accused since acquitted).
4. The appellant was arrested in this case by the police and 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 10.03.2007, to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced twelve witnesses. Prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PL. The statements of the appellant and his co-accused under Section 342, Cr.P.C., were recorded, wherein they refuted the allegations levelled against them and professed their innocence.
5. The learned trial Court vide its judgment dated 27.05.2010, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
6. Learned counsel for the complainant is again not available and request for adjournment has been made on his behalf. I have noted that the appellant is behind the bars since the year 2006 whereas the instant appeal is pending adjudication before this Court since the year 2010 and despite the laps of a period of more than 10-years, the same could not be decided so far. A lot of adjournments have already been granted in this case on the request of learned counsel for the complainant. Even, on the last date of hearing i.e. 20.01.2021, learned counsel for the complainant was not present and request for an adjournment was made on his behalf. Although, the said request was opposed by learned counsel for the appellant but the case was adjourned with the clear understanding that no further adjournment shall be granted in this case but even today, learned counsel for the complainant did not bother to appear before the Court. No valid ground for non-availability of learned counsel for the complainant has been pointed out by Nadeem son of Mubashar Ahmad (deceased) and Ahsan son of Mushtaq Ahmad (complamant). On the last date of hearing i.e. 20.01.2021, last and final opportunity to the son of the deceased, as well as, son of the complainant was granted to make arrangement for arguments on this appeal and it was made clear that in case of non-appearance of learned counsel for the complainant on the next date, the case shall be decided after hearing the arguments of learned counsel for the appellant, learned Additional Prosecutor General for the State and perusal of the record but the needful has not been done by the complainant party. It appears that son of the deceased and son of the complainant are not interested in the prosecution of this case. Under the circumstances, there is no other option with the Court but to decide the instant appeal on the basis of available recorded and hearing arguments of learned counsel for the appellant and learned Additional Prosecutor General for the State. Even otherwise, it is a State case and the learned Additional Prosecutor General for the State is ready to argue the same, therefore, I proceed to decide the instant case after hearing arguments of learned counsel for the appellant, learned Additional Prosecutor General for the State and perusal of the record.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that in-fact Mushtaq Ahmad/complainant (PW.8) who was brother of Mubashar Ahmad (deceased) had no good relationship with the deceased and the occurrence was committed by the complainant in order to usurp the property of the deceased and this fact regarding bad relationship between the complainant and the deceased has been admitted by the prosecution witness herself, namely, Mst. Aaliya Bibi (PW.7); that the evidence of Mushtaq Ahmad/complainant (PW.8) and Bilal Ahmad (PW.5) has been disbelieved by learned trial Court and the appellant has been convicted on the basis of evidence of Mst. Aaliya Bibi (PW.7) but the name of said Mst. Aaliya Bibi (PW.7) has not been mentioned in the FIR as an eye-witnesses, therefore, her evidence is not worthy of reliance; that the evidence of prosecution eye-witnesses is self-contradictory which has created serious dent in the prosecution story; that the motive of illicit relationship of Mst. Nusrat Bibi (co-accused since acquitted) and the appellant has been disbelieved by the learned trial Court and the above mentioned Mst. Nusrat Bibi, co-accused has been acquitted by the learned trial Court whereas Criminal Appeal No. 1706 of 2010 filed against the acquittal of said co-accused has also been dismissed by this Court vide order dated 03.04.2017; that the recovery of ‘Chhurri’ (P-3) was planted against the appellant and even otherwise, the said ‘Chhurri’ was recovered from an open place which was not in the exclusive possession of the appellant; that there are material contradictions in the prosecution evidence which have not been properly appreciated while passing the impugned judgment; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, appeal filed by Javed Aftab (appellant) may be accepted and the appellant may be acquitted from the charge.
8. On the other hand, it is argued by the learned Additional Prosecutor General for the State that the occurrence in this case took place on 22.08.2006 at 12:30 A.M. (night) and the FIR has promptly been lodged on the same night at 1:50 A.M. which rules out the possibility of concoction or fabrication; that the prosecution eye-witnesses were cross-examined at length but their evidence could not be shaken; that Mst. Aaliya Bibi (PW.7) was daughter of the deceased and she was natural eye-witness of the occurrence being resident of the house where the occurrence took place; that even the remaining prosecution eye-witnesses, namely, Mushtaq Ahmad/complainant (PW.8) and Bilal Ahmad (PW.5) have also given solid reasons for their presence at the spot at the time of occurrence but their evidence has wrongly been disbelieved by the learned trial Court; that the ocular account of the prosecution has fully been supported by the medical evidence furnished by the prosecution through Dr. Imran Ahmad Khan (PW.10); that the prosecution case against the appellant is further corroborated by the recovery of ‘Chhurri’ (P-3) on the pointation of the appellant and positive report of Chemical Examiner (Ex.PL); that the motive alleged by the prosecution in this case has also been proved through reliable and trustworthy evidence of the prosecution witnesses; that the prosecution has proved it case against the appellant beyond the shadow of any doubt, therefore, the appeal filed by the appellant may be dismissed.
Insofar as Criminal Revision No. 767 of 2010, is concerned, it is argued by learned Additional Prosecutor General for the State that there was no mitigating circumstance in this case, therefore, the appellant may be awarded the normal penalty of death sentence.
9. Arguments heard and record perused.
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 occurrence in this case took place on the intervening night of 21/22.08.2006 at 12:30 A.M. Although, as per relevant columns of FIR (Ex.PA/1), the matter was reported to the police on the same night i.e. on 22.08.2006 at 1:50 A.M. but I have noted that postmortem examination on the dead body of Mubashar Ahmad (deceased) was conducted on 22.08.2006 at 1:30 P.M. Dr. Imran Ahmad Khan (PW.10) stated during his cross-examination that as soon as he received the police papers and dead body, he conducted postmortem examination without any delay. The relevant part of his statement reads as under:
“As soon as I received the police papers and dead body I conducted the post mortem examination without any delay on my part.”
12. The ocular account of the prosecution has been produced through Bilal Ahmad (PW.5), Mst. Aaliya Bibi (PW.7) and Mushtaq Ahmad/complainant (PW.8). I have noted that the names of Bilal Ahmad (PW.5) and Mst. Aaliya Bibi (PW.7) have not been mentioned as eye-witnesses in the contents of the FIR rather according to the contents of the FIR, the occurrence was witnessed by Mushtaq Ahmad/complainant (PW.8), Zafar Ahmad and Ayyaz Ahmad Pomi (given up PWs). Bilal Ahmad (PW.5) and Mst. Aaliya Bibi (PW.7) were introduced subsequently in this case by the prosecution as eye-witnesses of the occurrence. It is further noteworthy that the learned trial Court at Page-10 of the impugned judgment has disbelieved the evidence of Mushtaq Ahmad/ complainant (PW.8) and Bilal Ahmad (PW.5) inter-alia on the ground that they were chance witnesses and their evidence was not trustworthy. However, the appellant has been convicted and sentenced on the basis of evidence of Mst. Aaliya Bibi (PW.7). As mentioned earlier, the name of Mst. Aaliya Bibi (PW.7) was not mentioned in the FIR as an eye-witness or in any other capacity and she has been introduced subsequently in this case by the prosecution as an eye-witness of the occurrence. Even, I have noted that Mushtaq Ahmad/complainant (PW.8) was not resident of the house where the occurrence took place. He had admitted that he was resident of a house which was situated at a distance of two (02) Furlongs from the place of occurrence. He gave this reason for his presence at the spot at the relevant time that on the night of occurrence, he went to see his mother who was sick at that time and on his return when he reached outside the house of Mubashar Ahmad (deceased) he heard hue and cry coming out of the house of the deceased and thereafter he entered the said house and witnessed the occurrence. The presence of Mushtaq Ahmad/complainant (PW.8) at odd hours of the night (12:30 A.M.) at the place of occurrence was not natural, therefore, he was bound to establish the reason of his presence at the spot at the relevant time. Though, the said witness made this excuse that at the relevant time, he was coming back from the house of his mother who was sick at that time but he did not produce any medical prescription to prove the above mentioned reason. It is also an admitted fact that mother of the complainant was residing in a different house and she was not residing in the house where the occurrence took place. The complainant also did not produce his mother in the witness box to justify the above mentioned reason. He is therefore, a chance witness and as such his evidence is not free from doubt. The Hon’ble Supreme Court of Pakistan in the case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) at Para No. 14, observed regarding the chance witnesses as under:
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”
13. Insofar as the evidence of Bilal Ahmad (PW.5) is concerned, it is noteworthy that the name of said witness is not mentioned in the FIR as an eye-witness of the occurrence or as a witness in any other capacity. He has already been disbelieved by the learned trial Court being a chance witness of the occurrence and untrustworthy.
14. Insofar as the evidence of Mst. Aaliya Bibi (PW.7) is concerned, as mentioned earlier, she was not cited as an eye witness in the FIR and she has subsequently been introduced in this case by the prosecution as an eye-witness of the occurrence. The statement of Mst. Aaliya Bibi (PW.7) is in conflict with the statements of the remaining prosecution eye-witnesses. It is noteworthy that as per contents of the FIR, the occurrence was witnessed by Mushtaq Ahmad/complainant (PW.8), Zafar Ahmad and Ayyaz Ahmad Pomi (given up PWs) but according to the statement of Mst. Aaliya Bibi (PW.7), the occurrence was witnessed by her (Mst. Aaliya Bibi/PW.7), as well as, by the subsequently introduced eye-witness of the prosecution, namely, Bilal Ahmad (PW.5). She also stated during her cross-examination that all her relatives reached at the spot after the occurrence. She further deposed that Mushtaq Ahmad/complainant (PW.8) arrived at the place of occurrence on a telephone call. She also stated during her cross-examination that her parents had cordial relationship with each other and there was no quarrel between them. She further deposed that her father (Mubashar Ahmad deceased) had not good relations with Mushtaq Ahmad/complainant (PW.8) before the occurrence and they were not on visiting terms with each other. She also stated that after the death of her father, her uncle, namely, Mushtaq Ahmad/complainant (PW.8), illegally occupied their house alongwith its paraphernalia and he also sold the car and motorcycle of the deceased and sale consideration of the said articles was not paid to them. The relevant part of her statement made during the cross-examination reads as under:
“My parents had cordial relations and there was never a quarrel between them. There was no litigation between them. I have two sisters and one brother. My father was a rich man and he had a car and motorcycle. On the day of occurrence my father was owner of a car. My uncle Mushtaq had sold that car. He has not paid amount of that car to my mother. My uncle Mushtaq has also sold motorcycle and he has also not paid the amount of that motorcycle to us. My uncle Mushtaq PW had illegally occupied our house alongwith its paraphernalia after the murder of my father. Later on we got the possession of the house forcibly but the paraphernalia of the house were not returned. My father and Mushtaq had not good relations even before the occurrence and we were not on visiting terms. The house of my grandmother is on the western side of our house at some distance about 2 furlong.
…………………………………………….
My mother went to Karachi 5/6 days prior to this occurrence alongwith my brother, I, my sister and my father were at home on the night of occurrence. My father was sleeping in the Courtyard while I and my sister were sleeping in our bed room. I did not inform Sadar Mohallah regarding the occurrence. Mushtaq arrived at the place of occurrence on a telephonic call. All our relatives arrived at the place of occurrence after the occurrence.”
It is, therefore, evident from the perusal of record that the ocular account produced in this case by the prosecution through the above mentioned eye-witness is highly self-contradictory and the same is not worthy of reliance.
15. Although, the prosecution witnesses stated that a mobile phone (P-4) of the appellant was left at the place of occurrence which was taken into possession vide recovery memo Ex.PD but I have noted that no proof regarding the ownership of the said mobile phone in the name of the appellant has been produced in the prosecution evidence. Likewise, no call-data record of the said phone was produced in the evidence by the prosecution under the circumstances the alleged recovery of mobile phone (P-4) is inconsequential.
16. Insofar as the motive alleged by the prosecution is concerned, it is noteworthy that Mushtaq Ahmad/complainant (PW.8) stated that as Javed Aftab (appellant) wanted to develop illicit relationship with Mst. Nusrat Bibi (co-accused since acquitted), therefore, he committed the murder of Mubashar Ahmad (deceased), who was husband of the said co-accused.
The above mentioned motive has been disbelieved by learned trial Court at Page-10 of the impugned judgment. I have also noted that the complainant did not allege that he had ever seen Javed Aftab (appellant) in any objectionable condition with Mst. Nusrat Bibi, co-accused. The prosecution’s own witness, namely, Mst. Aaliya Bibi (PW.7) has categorically stated that there was no quarrel between her parents (Mubashar Ahmad deceased and his wife Mst. Nusrat Bibi co-accused) and they had cordial relationship with each other. Even during the days of occurrence, Mst. Nusrat Bibi, co-accused (since acquitted) was not present in the village Chenab Nagar Tehsil Lalian District Chiniot where the occurrence took place rather she was admittedly at Karachi during the said days. The above mentioned co-accused has been acquitted by learned trial Court and appeal filed against her acquittal i.e. Crl. Appeal No. 1706 of 2010 has also been dismissed by this Court vide order dated 03.04.2017. I am, therefore, of the view that the prosecution could not prove the motive alleged against the appellant.
19. In the light of above discussion, I accept Criminal Appeal No. 1612 of 2010 filed by Javed Aftab (appellant), set aside his conviction and sentence recorded by the learned Additional Sessions Judge, Chiniot vide impugned judgment dated 27.05.2010 and acquit him of the charge under Section 302(b) PPC by extending him the benefit of doubt. Javed Aftab (appellant) is in custody, he be released forthwith, if not required in any other case.
20. Insofar the criminal revision i.e., Crl. Revision No. 767 of 2010, filed by Mushtaq Ahmad (complainant) for enhancement of sentence, awarded by the learned trial Court against Javed Aftab (appellant) from imprisonment for life to death is concerned, I have already disbelieved the prosecution evidence due to the reasons mentioned in paragraph Nos.11 to 17 of this judgment and Javed Aftab (appellant) has been acquitted from the charge, therefore, this criminal revision being devoid of any force is hereby dismissed.
(A.A.K.) Appeal accepted
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