PLJ 2023 Cr.C. (Note) 122
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
Mst. SAMAN BIBI alias ANUM--Appellant
versus
STATE--Respondent
Crl. A. No. 256-J of 2015, heard on 14.12.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Evidence of last seen--Extra-judicial confession--Recovery--Medical evidence--Undeniably, there is no direct evidence against appellant as far as murder of deceased is concerned and case in hand is one of circumstantial evidence--It has been held in a number of cases by Hon’ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of chain is missing this would entitle accused to be acquitted by giving him benefit of doubt--So far as medical evidence is concerned, suffice it to observe that same is only a supporting piece of evidence and relevant only if ocular account inspires confidence which is not situation in this case--Court have considered all pros and cons of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--Prosecution remained failed to discharge its responsibility of proving case against appellant--Appeal allowed. [Para 6 & 7] A, B & C
2008 SCMR 1103, 2011 SCMR 1127, 2009 SCMR 407, PLD 2003 SC 704, 2017 SCMR 986, PLJ 2008 SC 687, PLD 2018 SC 813, 2009 SCMR 166, 2000 SCMR 683 & 1996 SCMR 188.
Benefit of doubt--
----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [Para 8] D
2009 SCMR 230.
Syeda Feroza Rubab, Advocate/Defence Counsel at State expense for Appellant.
Mr. Ali Hassan, Addl. Prosecutor General for State.
Nemo for complainant.
Date of hearing: 14.12.2021.
Judgment
Mst. Saman Bibi alias Anum (appellant) was tried by learned Addl. Sessions Judge, Wazirabad in a private complaint under Sections 302, 364, 201 and 34, PPC instituted by Iftikhar Ahmad, complainant (PW.4) being dissatisfied with the investigation conducted by the police in case FIR No. 85 dated 15.02.2011, offence under Sections 302, 364, 201 and 34, PPC, registered at Police Station Saddar Wazirabad District Gujranwala. Vide judgment dated 17.06.2015 passed by learned trial Court, the appellant has been convicted under Section 302(b) PPC and sentenced to imprisonment for life, with a further direction to pay Rs. 1,00,000/-(rupees one lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. So far as the other offences are concerned, the same were not proved. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the written application (Ex.PA) of Iftikhar Ahmad, complainant (PW.4) is that on 15.02.2011 at about 8:30 a.m. he (complainant) got information that the dead body of his brother namely Imtiaz Ahmad alias Judge was lying near the APS School, Dhounkal Road. Thereafter he contacted Mst. Saman Bibi (appellant) to inquire about Imtiaz Ahmad, who informed that Imtiaz Ahmad had left the house on 14.02.2011 at around 12:00 p.m. while saying that he would take furniture from Gujranwala to deliver the same at Jhelum and if not returned till evening, it would mean that he would stay at Jhelum but later on Imtiaz Ahmad did not contact her. On receiving the information, he (complainant) along with his cousin Mian Zahid Javed, Adnan Javed and the appellant reached Dhounkal Road near APS School, where the dead body of Imtiaz Ahmad was lying on the footpath alongside the metalled road and there were marks of swelling on the right ear and cheeks as well as scratches on the neck and blood in the nose of the deceased. It was alleged in the FIR that some unknown accused person(s) committed murder of the deceased. The appellant was implicated in this case through supplementary statement of the complainant recorded on 15.02.2011.
3. Being dissatisfied with the investigation conducted by the police, Iftikhar Ahmad, complainant instituted a private complaint titled as “Iftikhar Ahmad vs. Muhammad Imran and another”, on similar facts as narrated in the FIR.
4. I have heard arguments of learned counsel for the appellant as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely.
5. Undisputedly, it was an unseen incident and there was no direct evidence against the appellant. No one had seen the appellant while killing the deceased namely Imtiaz Ahmad. The role played by the appellant in the incident in issue had never been mentioned in the FIR or disclosed before the learned trial Court through any solid or convincing evidence. It has also never been disclosed or alleged by the prosecution in the FIR as to under what circumstances the deceased had been done to death. It was case of complainant in the FIR that on 15.02.2011 at about 8:30 a.m. he got information that the dead body of his brother namely Imtiaz Ahmad was lying near the APS School, Dhounkal Road. Thereafter he contacted Mst. Saman Bibi (appellant) wife of deceased to inquire about Imtiaz Ahmad, who informed that Imtiaz Ahmad had left the house on 14.02.2011 at around 12:00 p.m. while saying that he would take furniture from Gujranwala to deliver the same at Jhelum and if not returned till evening, she could presume that he was at Jhelum but later on Imtiaz Ahmad did not contact her. On receiving the information, the complainant along with his cousin Mian Zahid Javed, Adnan Javed and the appellant reached Dhounkal Road near APS School, where the dead body of Imtiaz Ahmad was lying on the footpath.
6. Undeniably, there is no direct evidence against the appellant as far as murder of the deceased is concerned and the case in hand is one of circumstantial evidence. It has been held in a number of cases by the Hon’ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of the chain is missing this would entitle the accused to be acquitted by giving him the benefit of doubt. Reliance is placed upon “Altaf Hussain vs. Fakhar Hussain and another” (2008 SCMR 1103) “Muhammad Hussain versus The State”(2011 SCMR 1127), “Ibrahim and others versus The State” (2009 SCMR 407), “Sh. Muhammad Amjad versus the State” (PLD 2003 Supreme Court 704) and “Hashim Qasim and another versus The State” 2017 SCMR 986). The case of the prosecution is based on the following pieces of evidence:
Evidence of Last Seen
The evidence of last seen was furnished before the learned trial Court by Muhammad Asif (PW.6) and Allah Ditta (PW.7). Before the learned trial Court, it was claimed by them (PW.6 & PW.7) that on 14.02.2011 at about 5.30 p.m. they were standing at Nizamabad Bus Stop where they saw the appellant and Imran (since PO) carrying Imtiaz Ahmad (deceased) in unconscious condition in a Suzuki Carry Dabba. They inquired from the appellant who replied that they were going to doctor as the health of Imtiaz Ahmad was not good. On the very next day, they along with mother of said Allah Ditta went to Lahore Mayo Hospital for her medical check-up. No convincing or solid evidence for their presence at Nizamabad Bus Stop was brought on record or stated before the learned trial Court. The stance of Muhammad Asif (PW.6) and Allah Ditta (PW.7) in their cross-examination is altogether different because PW.6 stated that on the day of occurrence (instead of very next day as stated in examination-in-chief), he had taken a car from the taxi stand Wazirabad and went to Lahore but he had not handed over the slip issued at Taxi Stand to any police official. Likewise, the version of PW.7 in his cross-examination was that on 14.02.2011, he had gone to Lahore along with his mother for her medical check-up as she had heart problem, by a taxi which was driven by PW.6. The conduct displayed by the said PWs was nothing but unusual detracting from the veracity of their statements. Even otherwise last seen evidence is a weak type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. Reliance is placed on case law titled as “Altaf Hussain vs Fakhar Hussain and another” (PLJ 2008 SC 687) and “Muhammad Abid vs. The State and another” (PLD 2018 Supreme Court 813). Therefore, the statements of Muhammad Asif (PW.6) and Allah Ditta (PW.7) are of no avail to the prosecution.
Extrajudicial Confession
Evidence of extrajudicial confession was furnished by Iftikhar Ahmad Sadal, complainant (PW.4) and Mian Zahid Javed Sadal (PW.5). According to them, on inquiring from the appellant about the story of Carry Dabba, she started weeping and confessed that she had become blind for wealth and under the inducement of Imran co-accused (since PO), had administered poison pills to Imtiaz Ahmad (deceased) after mixing in the tea. Then, she along with Imran co-accused hired a Carry Dabba and took Imtiaz Ahmad to an under construction building where Imtiaz Ahmad met with death. Then the said PWs called Imran from the roof (tenant of deceased), who also confessed and sought pardon. The extrajudicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extrajudicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extrajudicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source. The question of evidentiary value of the extrajudicial confession came up for consideration before the August Supreme Court of Pakistan in the case reported as “Tahir Javed vs. The State” (2009 SCMR 166), wherein at page 170, the Apex Court of Pakistan has been pleased to observe as under:
“10. ... It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:-
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231,
(2) Ziaul Rehman v. The State 2001 SCMR 1405,
(3) Tayyab Hussain Shah v. The State 2000 SCMR 683,
(4) Sarfraz Khan v. The State and others 1996 SCMR 188.”
Though the said witnesses (PW.4 & PW.5) have stated that the appellant along with her co-accused confessed their guilt about the commission of crime but they (PW.4 & PW.5) did not try to apprehend the appellant or her co-accused at the time of their extrajudicial confession, who were not armed with any weapon, rather the PWs stated that they enticed them (accused) and thereafter, nominated them through supplementary statement. The reason behind this murder as stated by the complainant was that the appellant had become blind for wealth and that the deceased was worried about his family life. However, contrary to that, the complainant admitted that his brother (deceased) had no property in his name as he had disposed of all his property before his death and that the deceased was living happy matrimonial life with the appellant who had three children from her first marriage. In the light of above discussion, I am of the view that the evidence of extrajudicial confession in the instant case is not worthy of reliance.
Recovery:
It was case of prosecution that the appellant got recovered five tablets of ATI and a dopatta, which were taken into possession vide recovery memo (Ex.PC), the same are not much helpful for the prosecution for the reason that those are ordinary things, easily available in the market.
Medical Evidence:
So far as medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case.
7. As far as the defence plea taken by the appellant in her statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
8. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established 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 doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
9. For the foregoing reasons, Criminal Appeal No. 256-J of 2015 filed by Mst. Saman Bibi alias Anum (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 17.06.2015 passed by the learned Addl. Sessions Judge, Wazirabad are set aside and the appellant is acquitted of the charge levelled against her while extending her benefit of doubt. The appellant is in jail. She shall be released forthwith if not required to be detained in any other case. It is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of Muhammad Imran, co-accused of the appellant, still absconding.
(A.A.K.) Appeal allowed
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