PLJ 2022 Cr.C. 1114 (DB)
----Ss. 302/324/109--Coviction and sentence--Challenge to--Qatl-e-
Amd--Ocular version and medical evidence--Acquittal of--Appellant had made repeated fire shots at the body of the deceased--Eye witness did not receive even a singly scratch--Assailant even had not made any attempt to cause any injury to the witness, despite having an opportunity--Track/direction of injury Nos. 5 and 6 was also from downward to upward--These glaring contradictions between the ocular version and medical evidence--They are interested and related witnesses--The place of recovery of said pistol at the instance of the appellant makes the said recovery highly doubtful-- Place of recovery is surrounded by 25/30 houses--Parties are closely related to each other--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--He is acquitted the charge.
[Pp. 1119, 1120, 1121 & 1122] A, B, C, D, E, F
2021 SCMR 736; 2019 SCMR 1170; 2017 SCMR 1572; 2017 SCMR 2007; 2021 SCMR 23; 2019 SCMR 956; PLD 2021 SC 600 ref.
M/s. Rana Manzar Bashir, Nighat Saeed Mughal and Muhammad Shahzad Khan Kakar, Advocates for Appellant.
M/s. Ch. Muhammad Jawad Zafar, Muhammad Talha Mushtaq and Khawar Shabbir Khan, Advocates for State.
Mr. Munir Ahmad Sial, Deputy Prosecutor General for State.
Date of hearing 7.10.2021.
PLJ 2022 Cr.C. 1114 (DB)
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ.
MUHAMMAD NAVEED--Appellant
versus
STATE--Respondent
Crl. A. No. 112953 & M.R. No. 629 of 2017, heard on 7.10.2021.
Judgment
Muhammad Tariq Nadeem, J.--Through this single judgment, we intend to dispose of Criminal Appeal No. 112953 of 2017, filed by Muhammad Naveed, appellant against his conviction and sentence along with Murder Reference No. 629 of 2017, transmitted by learned trial Court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 21-11-2017 passed by learned Additional Sessions Judge, Wazirabad in case FIR No. 229 of 2016 dated 25.7.2016 offence under Sections 302, 34, 109, P.P.C. registered at Police Station Ahmad Nagar, Wazirabad, whereby after conclusion of trial in the instant case while acquitting rest of the accused, convicted the appellant Muhammad Naveed as under:
Under Section 302 (b), PPC, sentenced to death for committing qatl-i-amd of Mst. Noreen Bibi, deceased with direction to pay compensation of Rs. 4,00,000/- to the legal heirs of the deceased as envisaged under Section 544-A, Cr.P.C.; in default of payment thereof to further undergo six months S.I.
2. The brief facts as narrated in FIR (Ex.PA/3) lodged by
Abdul Waheed, complainant (PW. 1) are that on the fateful day i.e.
25-07-2016 at about 5:30 p.m., the complainant along with his wife Mst. Noreen Bibi (since deceased), mother Mst. Sughran Bibi and his friend Yasir were present at home. Suddenly, Muhammad Naveed, appellant along with an unknown accused armed with .30 bore pistols entered his house. Muhammad Naveed. appellant raised a lalkara to murder complainant and his wife and fired with his pistol hitting at the left side of face of Mst. Noreen. Muhammad Naveed, appellant made repeated fire shots, which landed on different parts of the body of Mst. Noreen Bibi, who fell on the ground after receiving the injuries. The complainant as well as mother and friend Yasir saved themselves by taking shelter behind the wall. The complainant and the other PWs witnessed the incident. The accused persons took to their heels. Mst. Noreen Bibi succumbed to the injuries at the spot.
The motive behind the occurrence was of previous enmity as father of Muhammad Naveed, appellant had already murdered the father of complainant.
3. After completion of investigation, a report under Section 173, Cr.P.C. was prepared and submitted before the learned trial Court. The learned trial Court after observing all pre-trial codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge under Section 302, 34 & 109, PPC against the appellant along with his acquitted co-accused on 05-06-2017 to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 08 witnesses during the trial: Abdul Waheed, complainant (PW.1) and Mst. Sughran Bibi (PW.3) have furnished the ocular account. Bilal Ahmad Bhatti, drafstman appeared as PW.6. who prepared scaled site-plan of the place of occurrence as (Ex.PD/1 & Ex.PD/2). Safdar Ali 1398/HC (PW.4) was the witness of recovery of pistol .30 bore (P.5) recovered by the police on the disclosure of the appellant, vide recovery memo. (Ex.PE). Talb Hussain, SI (PW.8) being Investigating Officer stated about the various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Momina Arif, WMO (PW.7), who conducted autopsy on the dead body of deceased Mst. Noreen Bibi and issued the PMR (Ex.PF).
The remaining witnesses produced by the prosecution before learned trial Court are almost formal in nature.
The prosecution gave up Iqbal 2116/C and Yasir, PWs being unnecessary and after tendering in evidence reports of the Punjab Forensic Science Agency (Ex.PL and Ex.PN) closed its evidence.
4. Thereafter, the statements under Section 342, Cr.P.C. of the appellant along with his co-accused were recorded wherein they denied the allegations leveled against them and claimed their innocence. While answering to a question, "why this case registered against you and why the PWs deposed against you?, the appellant Muhammad Naveed replied as under:
"The PWs are real mother and sister. The complainant contracted marriage with Mst. Farkhanda, who is my real sister. Out of this wedlock, two children were born. The complainant expelled my sister along with her children from his house to get share of property from inheritance, who are living with me. My sister instituted a suit for maintenance allowance of above said children which was decreed in her favour. It is well in the knowledge of complainant that I used to pursue the above-said case due to the grudge of that complainant implicated me in the instant case. He is greedy person and he might have murdered his own wife. I have no concern with the alleged occurrence by any mean. I am totally innocent. "
He neither opted to appear as his own witness within the scope of Section 340(2), Cr.P.C. nor produced any defence evidence.
5. Upon conclusion of the trial, the learned trial Court vide impugned judgment dated 21-11-2017 convicted and sentenced the appellant as mentioned above.
6. In support of his appeal, learned counsel for the appellant has contended that factual and legal aspects of the case have not been appreciated by learned trial Court in its true perspective which resulted into grave miscarriage of justice; that the prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence which aspect of the matter also went unnoticed, causing serious prejudice to the appellant; that there are major contradictions in the statements of the prosecution witnesses which renders the prosecution story highly doubtful; that the medical evidence was in conflict with ocular version which aspect of the matter has not been dilated upon properly rather the medical evidence is misconstrued and oral version has also not been examined thoroughly. Learned counsel goes on to submit that the prosecution witnesses are not only related to the deceased but they are also inimical towards the appellant; that on the same set of evidence co-accused of the appellant have been acquitted of the charge, which renders the prosecution story highly doubtful; that the recovery of pistol was planted one and cannot be used against the appellant; that the prosecution has failed to prove the motive against the appellant; that it is an established view of the Apex Court of the country that a slightesv doubt in the prosecution evidence is sufficient to give benefit of same to the accused and the case in hand is full of doubts, therefore, by accepting the appeal, the appellant be acquitted of the charge.
7. On the other hand, learned Law Officer assisted by learned counsel for the complainant have opposed the appeal on the grounds that the appellant is nominated in promptly lodged FIR with specific role of causing injuries on the body of Mst. Noreen Bibi (deceased); that the role assigned to the appellant by the eye-witnesses is sufficiently supported by medical evidence and prosecution case is further corroborated by the recoveries effected during the investigation of the case; that the prosecution witnesses are consistent on each and every material point; that there was no previous ill-will or enmity between the parties, so possibility of false implication of the appellant in this case is ruled out; that the prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appeal filed by the appellant may be dismissed and murder reference may be answered in affirmative.
8. We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.
9. The detail of the prosecution case as set forth in the FIR (Ex.PA/3) and in the complaint (Ex.PA), has already been given in Paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.
10. In order to prove the factum of accusations, prosecution placed reliance, mainly, on the direct evidence furnished by Abdul Waheed, complainant (PW. 1) and Mst. Sughran Bibi (PW.3), medical evidence, recoveries coupled with the report of Forensic Science Agency and lastly the motive part of the incident.
11. We have observed that it was a case of the appellant under Section 342, Cr.P.C. as well as during cross-examination of prosecution witnesses that complainant of this case contracted marriage with the sister of the appellant namely Mst. Farkhanda and out of this wedlock two children were born. The complainant expelled appellant's sister along with her children from his house who were living with the appellant. The sister of the appellant filed a suit for maintenance allowance of the minors which was decreed. It was in the knowledge of the complainant that the appellant used to pursue the above mentioned case due to that grudge the complainant implicated him in this case falsely. He further claimed that the complainant is a greedy person, therefore, he might had murder his own wife. It is further argued on behalf of the appellant that after committing the murder of his own wife (Noreen deceased) the complainant has contracted fourth marriage. On the other hand, the complainant present before the Court in person has admitted that after the murder of his third wife (Mst. Noreen deceased) he has contracted fourth marriage. We would not like to discuss the claim of the appellant because, the appellant did not produce any evidence in support of his above mentioned claim. However, we proceed to decide this case after perusing the prosecution evidence to determine that as to whether or not the prosecution has itself discharged its first liability to prove its case against the appellant beyond the shadow of doubt. Learned counsel for the complainant has submitted that the appellant's father earlier murdered the complainant's father and now the appellant intended to murder him, as well as, his wife. It is noteworthy that no direct motive was attributed to Mst. Noreen wife of the complainant. As per whole prosecution case the complainant was himself the prime target of the appellant because he had no grudge against Mst. Noreen (deceased). More so, when the complainant himself was present at the time and place of occurrence and there was no hurdle to eliminate him then there was no reasoning to spare him and instead to commit the murder of his wife.
12. Furthermore, Talib Hussain, SI (PW.8) has stated in his cross-examination that complainant party did not tender any oral or documentary evidence regarding the motive part of their case. Admittedly the animosity, if am was between the appellant and the complainant and the deceased had nothing to do with the alleged motive introduced in the case. In this way the complainant should be the prime target of the appellant. We are therefore, of the view that the prosecution has failed to prove the motive alleged by the complainant and the other witnesses against the appellant. Reliance is placed upon the case laws titled as Tariq Mahmood vs. The State and others (2019 SCMR 1170) and Waris Ali and five others vs. The State (2017 SCMR 1572).
14. As far as the medical evidence is concerned, it evinces from the record that even the medical evidence runs contrary to the prosecution's case as according to Abdul Waheed, Complainant (PW.1) and Mst. Sughran Bibi (PW.3), the appellant made straight fire shot hitting Mst. Noreen Bibi (deceased) at her right cheek thereafter, he made repeated fire shots hitting at different parts of her body. It appears that both the PWs failed to describe the specific seat of injuries except one injury and according to the medical evidence (post mortem report Exh. PE) the only specific injury described by the eye witnesses on the right cheek of the deceased (Injury No. 2) is an exit wound. Moreover, Doctor Momina Arif, WMO (P W.7), who conducted autopsy on the dead body of the deceased, during her cross examination has stated as under:
These glaring contradictions between the ocular version and the medical evidence have sufficiently established that the alleged eye witnesses were not present at the spot at the relevant time, which aspect of the case prompts this Court not to place any reliance on them. Keeping in view the afore-stated circumstances, this Court is of the view that the prosecution version with regard to ocular account seems to be tainted, not inspiring confidence and result of due deliberations as well as consultations, hence the same cannot be given any legal credence. Reliance is placed upon the case law titled as "Ghulam Abbas and another vs. The State and another" (2021 SCMR 23).
15. So far as the direct evidence is concerned, we have scrutinized the statements of Abdul Waheed, Complainant (PW.1) and Mst. Sughran Bibi (PW.2) with utmost care and caution and found that Abdul Waheed, complainant (PW.1) was husband of the deceased while Mst. Sughran Bibi (PW.3) was happened to be her mother-in-law. Though they both claimed to have seen the tragedy with their own eyes but their evidence came up with material contradictions and inconsistencies. According to Abdul Waheed, complainant (PW.1), Yasir PW (since given up) was his friend but according to the version of Mst. Sughran Bibi (PW.3), said Yasir was her nephew. We have further noted that as per statement of Abdul Waheed, complainant (PW.1) his second wife Sobia resident of Village Dullu Kalan was also a relative but Mst. Sughran Bibi (PW.3) during her statement stated otherwise that she has no relation with said Sobia. There is yet another contradictory stance in the statements of both the witnesses of ocular account, as according to Abdul Waheed, complainant (PW. 1) the police reached at the place of occurrence at 07:00 p.m. but Safdar Ali 1398/HC stated the time as 05:30 p.m. More so, according to Abdul Waheed, complainant (PW.1), they reached hospital by 12:00 a.m. and remained with the dead body till 5:00 a.m. On the contrary, Safdar Ali 1398/HC (PW.4) stated that he reached at THQ, Hospital Wazirabad with dead body at about 07:30 p.m. and reached the police station at about 02:00 a.m. According to Mst. Sughran Bibi (PW.3), police reached after 45 minutes of the incident, however, according to Safdar Ali, 1398/HC (PW.4) the incident was reported at 05:00 p.m. and the police arrived at 05:30 p.m. Mst. Sughran Bibi (P.3) stated that she did not go to the hospital but according to the version of Safdar Ali 1398/HC (PW.4) she accompanied him to the hospital. Things do not stop here because as per statement of Safdar Ali 1398/HC (PW.4) they had reached the hospital with the dead body on 25.07.2016 at 07:30 p.m. but according to Doctor Momina Arif, WMO (PW.7) the dead body arrived at the hospital at 12:30 a.m. on 26-07-2016 and the police papers followed 15 minutes after.
"...the alleged place of occurrence is house of Ghulam Murtaza…. I have not recorded statement of Ghulam Murtaza regarding recovery. I do not know about numbers of kids of said Ghulam Murtaza. It was residential room of the house, however, I cannot tell that either said room was in use of Ghulam Murtaza or any of his kids..."
"33....The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable
doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession. The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments [hudood] when there are doubts"; and" Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment". A three-member Bench of this Court has quoted probably latter part of the last mentioned saying of the Holy Prophet (peace be upon him) in Ayub Masih v. State in the English translation thus: "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
18. For the foregoing reasons, Criminal Appeal No. 112953 of 2017 filed by Muhammad Naveed appellant is accepted, conviction and sentence awarded to him vide judgment dated 21-11-2017 passed by the learned trial Court is set aside and he is acquitted of the charge leveled against him while extending the benefit of doubt in his favour. He shall be released forthwith if not required to be detained in any other case.
19. Murder Reference No. 629 of 2017 is answered in negative and sentence of death of Muhammad Naveed (convict) is not confirmed.
(K.Q.B.) Appeal accepted
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