PLJ 2022 Cr.C. (Note) 43
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 380 & 411--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Murder reference--Circumstantial evidence--Last seen evidence was not impressive--It is settled rule of circumstantial evidence that failure of prosecution to prove one link of chain of circumstances destroys all links--In case, three important links set up by prosecution connecting accused-appellant with commission of offence are not proved through convincing/cogent evidence--Held: It is established rule of law that where conviction is based on circumstantial evidence alone, facts proved must be incompatible with innocence of accused and are incapable of being explained upon any reasonable hypothesis other than guilt of accused--Circumstantial evidence should be inter-connected that it forms such a continuous chain that its one end touches dead body and other neck of accused thereby excluding all hypothesis of his innocence. [Para 16] A & B
1996 SCMR 188 & 2010 SCMR 374.
Benefit of doubt--
----Principle--It is axiomatic principle of law that benefit of doubt is always extended in favour of accused--The case of prosecution if found to be doubtful then every doubt even slightest is to be resolved in favour of accused--In this case prosecution miserably failed to prove case against appellant beyond reasonable doubt.
[Para 18] C
2018 SCMR 772 and 2018 SCMR 911.
Malik Waqar Haider Awan and Mr. Javaid Iqbal Bhatti, Advocates for Appellant.
Mr. Muhammad Irfan Aarbi, Advocate at State.
Mr. Shahid Aleem, Additional Prosecutor General for State.
Mr. Khanwar Intizar Muhammad Khan, Advocate for Complainant.
Date of hearing: 19.12.2018.
PLJ 2022 Cr.C. (Note) 43
[Lahore High Court, Multan Bench]
Present: Sardar Ahmed Naeem and anwaarul Haq Pannun, JJ.
TAALAT MEHMOOD--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 25-J of 2016 & M.R. No. 05 of 2014, decided on 19.12.2018.
Judgment
Sardar Ahmed Naeem, J.--Tallat Mehmood (appellant) was tried by learned Sessions Judge, Multan in case F.I.R. No. 768/2011 dated 29.11.2011, under sections 302, 380, 411, P.P.C., registered at Police Station Sital Mari, Multan for committing murders of Rasheeda Bibi (wife of complainant) and Sultan Bano (mother-in-law of the complainant). At the conclusion of the trial, vide judgment dated 12.12.2013, the learned trial Court held the appellant guilty, convicted and sentenced him as under:
i. Under Section 302(b)P.P.C.: Death on two counts with compensation of Rs. 2,00,000/- to the legal heirs of each deceased, in default thereof to further undergo simple imprisonment for six months.
ii. Under Section 380, P.P.C.: Three years rigorous imprisonment with fine of Rs. 10,000/-, in default of the payment of fine, to further undergo simple imprisonment for one month.
iii. Under Section 411, P.P.C.: two years rigorous imprisonment with fine of Rs. 5000/-and in default thereof to further undergo simple imprisonment for fifteen days.
All the sentences were ordered to run con-currently.
2. Being dissatisfied with the said judgment, the appellant filed Criminal Appeal No. 25-J of 2016 against his convictions and sentences. Murder Reference No. 05 of 2014 is also before us for confirmation or otherwise of death sentence awarded to the appellant by the learned trial Court.
3. The prosecution story, in brief, as narrated in the F.I.R. lodged by Muhammad Ashraf, complainant is that on 29.11.2011, he received telephone call that some unknown accused committed murders of Mst. Rasheeda Bibi and Mst. Sultan Bano, his wife and mother-in-law, respectively. He reached at the place of occurrence and saw their dead bodies. Mst. Rasheeda Bibi received sharp edged injury on her neck whereas Mst. Sultan Bano received sharp edged injury on her chest. The accused persons also took away LCD and two mobile phones alongwith them. Hence, the present F.I.R.
4. After usual investigation, challan was submitted before the Court. The learned trial Court framed charge against the appellant to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined as many as fifteen witnesses.
Muhammad Ashraf (PW.11) was complainant of this case. He narrated the story as mentioned in the F.I.R. Ghulam Farooq (PW.1) and Mumtaz Ahmed (PW.2) were witnesses of “Wajtakar”. Irfan Hayat Draftsman (PW.3) prepared scaled site plans (Exh.PA and Exh.PA/1). Muhammad Shahzad 176/C (PW.5) escorted the dead bodies to mortuary at Nishtar Hospital, Multan. Muhammad Irfan 1716/HC (PW.6) chalked out for the formal F.I.R. (Exh.PD/1).
Medical evidence, in this case, was furnished by Dr. Tasneem Kousar Malik (PW.10). She, on 30.11.2011 conducted post-mortem examination on the dead body of Mst. Rasheeda Bibi and found following injuries on her person:-
i. An abrasion 3x2 cm on bridge of nose,
ii. Contused and cyanosed lips.
iii. Multiple incised stab wounds with narrow distance were on area of 6 x 5 cm on front and right side of neck going deep.
iv. An abrasion on front leg 8 cm below knee joint.
In her opinion cause of death was Injury No. 3 inflicted by sharp edge weapon causing damage to underlying major vessels leading to hemorrhage and shock, sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem in nature. Probable duration between injury and death was immediate and between death and post-mortem was within 12-24 hours. Exh.PG is correct carbon copy of post-mortem report and Exh.PG/1 is pictorial diagram.
On the same day at 10:30 a.m. she also conducted post-mortem examination of Mst. Sultan Bano and noted the following injuries on her body:
i. Contusion was piresent on whole of nose and right and left cheek.
ii. A lacerated wound of 2 x ½ cm was present on the left side of chin which was skin deep.
iii. An incised stab wound 2 x ½ cm on the front and left side of neck going deep.
iv. Incised stab wound 1 x ½ cm on the front of neck above thyroid cartilage going deep.
v. Incised wound 1 x 3/4 on the front of chest on sternum. It was skin deep.
vi. Incised wound stab 3x3/4 cm on the front and the left side of chest, 3 cm below Injury No. 5.
vii. Multiple incised, stab wounds on front of abdomen 6x5 cm on midline and front of abdomen.
viii. Incised wound skin deep 1 x 1/3 cm on the left hand thumb. It was skin deep.
He was of the following opinion:
“In my opinion, cause of death was Injury No. 6 individually inflicted by sharp edge weapon causing damage to major vessels aorta leading to hemorrhage and shock and same was sufficient to cause death. Injury No. 7 also contributed to cause death. Time elapsed between injury and death was immediate and between death and post mortem was 12 to 24 hours .... Post-mortem report Exh.PK and pictorial diagram Exh.PK/1 are in my hand and bear my signature. Injury statement Exh.PL and inquest report Exh.PM were produced to me and I signed the same.”
6. Muhammad Ashraf (PW. 7) was witness of extra-judicial confession. Ghulam Murtaza (PW.9) identified the dead bodies of Rasheeda Bibi and Sultan Bono. Allah Ditta 75/C (PW.12) was witness of recovery of 'Churri' (P. 9) at the instance of the appellant. Arshad Abbas, S.I. (PW.13) Tahir Mahmood, S.I. (PW.15) were Investigating Officers of this case. Rest of the witnesses are formal in nature.
7. Learned Deputy District Public Prosecutor gave up Abdul Rehman and Khalid Aziz PWs being unnecessary and after tendering in evidence reports of Chemical Examiner (Exh.PR, Exh.PS and Exh.PT) and that of Serologist (Exh.PU and Exh.PV) closed the prosecution evidence.
8. After close of the prosecution evidence, the appellant was examined under Section 342, Cr.P.C. In answer to a question “Why this case against you and why the PWs deposed against you?”, the appellant replied as under:
“Instant case was registered against unknown accused. I have been involved in this case due to suspicion. Ghulam Farooq PW is close relative of Muhammad Ashraf first informant as well as Muhammad Ashraf son of Gul Muhammad PW. Mumtaz PW is close friend of first informant. Mumtaz PW is not neighbourer of the first informant. Muhammad Ashraf son of Gul Muhammad PW is resident of district Khushab and he deposed against me just to create enmity between my family and the family of first informant.”
The accused/appellant neither appeared as his own witness under Section 340(2), Cr.P.C., nor produced any defence evidence.
9. The learned trial Court after considering the merits of the case, held the appellant guilty, convicted and sentenced him as mentioned and detailed above. Now, this appeal.
10. Learned counsel for the appellant while challenging the legality of the impugned judgment submitted that it was unseen occurrence wherein the appellant had been falsely involved on the basis of engineered fabrication; that the entire case of the prosecution rests upon the circumstantial evidence but the chain of circumstances which should touch the dead body of the deceased and neck of the accused is not complete. Learned counsel submitted that the evidence i.e. last seen, extra-judicial confession and recoveries at the instance of the appellant was tailored during the investigation. Learned counsel further added that Ghulam Farooq and Mumtaz Ahmad PWs had seen the deceased coming out of the house of the deceased with L.C.D. and wearing blood-stained clothes but did not inform the complainant till 05.12.2012, thus, the conduct of the witnesses were sufficient to doubt their credibility and their evidence could not be relied upon. Learned counsel further pointed out that the evidence of recovery at the instance of appellant was a classic example of fabrication as 'Churri' (P4) was recovered from open plot and so did the cellular phones, without any identification memo and, thus, lend no support to the prosecution's case; that the case of prosecution was full of contradictions/discrepancies; that no independent witness was cited by the prosecution; that extra-judicial confession was always considered a weak type of evidence; that the instant case was nothing but a pack of lies, thus, the impugned judgment was liable to be set aside.
11. Conversely, learned Additional Prosecutor General assisted by the learned counsel for the complainant supported the impugned judgment and submitted that through legal and plausible evidence the charge stood proved against the appellant; that the witnesses withstood the test of cross-examination firmly and no favourable material was extracted during the cross-examination; that no link in the chain was broken; that no grudge was attributed to any of the PW for false involvement of the appellant; that the prosecution evidence including last-seen, extra-judicial confession and incriminating articles leaving no room to create doubt qua the involvement of the appellant and in this case, learned trial Court while relying upon the evidence produced by the prosecution had rightly convicted and sentenced the appellant.
12. After minutely going through the record and hearing lengthy arguments of the learned counsel for the parties, we have observed that it was a case of circumstantial evidence i.e. last-seen, extra-judicial confession and recovery of incriminating articles at the instance of the accused-appellant.
13. The occurrence in this case had taken place on 29.11.2011 at 10:30/11:00 a.m. in the house of the complainant/the deceased, namely, Mst. Rasheeda Bibi. The, complainant was away to Lahore for his official training and got the information of this occurrence. During the incident, two persons lost their lives including Mst. Rasheedan Bibi, wife of the complainant whereas, Sultan Bono was his mother-in-law. The incident was reported against unknown accused. The appellant was nominated, later on. He was real nephew of the complainant. In order to establish the charge, the prosecution produced Ghulam Farooq (PW. 1) and Mumtaz Ahmed (PW.2). They had last-seen the appellant while moving in the street having L.C.D. with him and wearing blood stained clothes. These witnesses could not justify their presence at that time in the street. Ghulam Farooq PW admitted in cross-examination that his business place was at Lahore whereas, Mumtaz Ahmad PW acknowledged that he used to go to his work at 08:00 a.m. and came back at 04:00 p.m. Mumtaz Ahmad was neighbourer of the complainant and claimed to have seen the accused-appellant while standing in his own door. He was residing at a distance of 10/15 yards. Ghulam Farooq (PW. 1) even could not describe the exact place of his presence. Though it was not necessary to mention the size of L.C.D. but could the appellant comfortably moved in the street with L.C.D. wearing blood-stained clothes, in particular, when it was not the claim of those witnesses that the accused was armed with some firearm weapon even then they made no effort whatsoever to apprehend the accused at the crime scene. Mumtaz Ahmed on that very day left for Okara whereas, Ghulam Farooq did not inform anyone and came to know through his cousin on 04.12.2011 regarding this occurrence. They, both remained mum till 05.12.2012 and then informed the complainant regarding movement of the accused-appellant with L.C.D. and blood stained clothes inside the street on 30.11.2012. So far as the complainant is concerned, suffice it to observe that he nominated the appellant being accused merely on the basis of the statement/information furnished by Ghulam Farooq, Mumtaz Ahmed and Muhammad Ashraf.
14. The next evidence adduced by the prosecution was extra-judicial confession. Muhammad Ashraf (PW. 7) entered in the dock that on 09.12.2011 he alongwith Khalid Aziz given up PW was sitting in his house situated in Mouza Sarkai, Khushab. The accused visited his house and confessed his guilt that he was unemployed and then managed this occurrence and committed theft, etc. Muhammad Ashraf (PW.7) was brother-in-law (Sala/Behnoi) of the complainant. Mst. Rasheeda Bibi was his real sister and Sultan Bano was his real mother. The accused-allegedly, visited his house, described the whole story but this witness also offered no resistance or made no attempt to arrest the accused rather let of the accused. Muhammad Ashraf PW came to Farrukah Colony alongwith Khalid Aziz PW not produced at trial. Khalid Aziz was also resident of Mianwali whereas Muhammad Ashraf worked at Rawalpindi. Assuming for the sake of arguments that the parties were related inter-se and may be on that account, the appellant visited the house of Muhammad Ashraf (PW.7) and assuming that he was a person who could exercise his influence on the complainant but his conduct/reaction towards the accused/appellant was highly un-natural. How could he let off the culprit, who had committed murder of his sister and mother. It is hard to digest. It seems improbable and the extra-judicial confession is nothing but seems to be a fabricated evidence.
15. During the investigation, Tahir Mahmood, S.I. (PW.15) arrested the appellant on 17.02.2012 and got recovered 'Churri' (P.9) on 24.02.2012. He also led to the recovery of L.C.D. (P. 10) and cell phones (P. 11/12) and ear rings (P. 13) from. an open plot not in his exclusive possession rather accessible to everyone. The occurrence took place on 29.11.2011 and the incriminating articles were recovered on 24.02.2011 almost after three months of the occurrence and, thus, the blood stains on 'Churri' and recovery of incriminating articles also seems to be improbable. The recovery memo (Exh.PO) suggests that those were not sealed in parcels and, thus, lend no support to the prosecution which failed to prove their safe custody at 'Malkhana'.
16. It is settled rule of circumstantial evidence that failure of the prosecution to prove one link of the chain of circumstances destroys all links. In this case, the three important links set up by the prosecution connecting the accused-appellant with the commission of offence are not proved through convincing/cogent evidence. It is established rule of law that where conviction is based on circumstantial evidence alone, the facts proved must be incompatible with the innocence of the accused and are incapable of being explained upon any reasonable hypothesis other than the guilt of the accused. It was further held in case title “Sarfraz Khan v. The State and 2 others” (1996 SCMR 188) that circumstantial evidence should be inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence.
17. Above all, the story described by the complainant seems to be improbable and does not appeal to common sense, in particular, the story of extra-judicial confession and letting off the accused-appellant by Muhammad Ashraf (PW.7) real brother/son of the deceased including Mst. Rasheeda Bibi and Sultan Bano. The story of the last-seen is also not impressive. The version of the PWs was improbable. The question of probability came up before their lordships in “Muhammad Saleem v. The State” (2010 SCMR 374) and the relevant observations of their lordships appearing in para 5 of the judgment at page 377 can advantageously be reproduced hereunder:
“5. ... General rule is that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to Haroon v. State 1995 SCMR 1627. The acid test of veracity of a witness is the inherent merit of his town statement. It is not necessury that that an impartial and independent witness, who is neither related and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a. very dangerous consequence. Reference is invited to Muhammad Rafique v. State 1977 SCMR 457 and Haroon v. State 1995 SCMR 1627.”
18. It is axiomatic principle of law that benefit of doubt is always extended in favour of the accused. The case of the prosecution if found to be doubtful then every doubt even slightest is to be resolved in favour of the accused. In this case prosecution miserably failed to prove the case against the appellant beyond reasonable doubt. Reliance in this context can be placed on “Muhammad Mansha v. The State” (2018 SCMR 772) and relevant observations of their lordships appearing in Para-4 at page No. 778 can advantageously be reproduced hereunder:
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilty of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted” Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”
In another case titled “Mst. Nazia Anwar versus The State and others” (2018 SCMR 911), the apex Court ruled:
“..... The cardinal principle in the criminal justice system in a situation like this, is to extend benefit of doubt to an accused to acquit, him/her of capital charge, instead of reducing the sentence. Once doubts about the genuineness of the story lurk into the minds of the judges, the only permissible course is to acquit the accused and not go for the alternative sentence of life imprisonment. In this regard reference may be made to the following case laws:
i. Ayub Masih v. The State (PLD 2002 SC 1048)
ii. Muhammad Zaman v. The State and others (2014 SCMR 749)
iii. Hashim. Qasim v. The State (2017 SCMR 986).
It is also well entrenched rule and principle of law that on the basis of probabilities, accused person may be extended benefit of doubt acquitting him/her of a capital charge however, such probabilities, high howsoever could not be made basis for conviction of an accused person and that too on a capital charge”
19. In view of the above, Criminal Appeal No. 25-J of 2016 is allowed, the convictions and sentences of the appellant are set aside. He is acquitted of the charges. He is in jail and be released forthwith if not required in any other criminal case.
20. Murder Reference No. 05 of 2014 is answered in the NEGATIVE and sentence of death awarded to the appellant by the learned trial Court is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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