PLJ 2023 Cr.C. (Note) 119
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
HAIDER ALI MARDAN--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 185 & Crl. Rev. No. 113 of 2016, heard on 10.3.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Extra judicial confession--Last seen evidence--Circumstantial evidence--Medical evidence--Motive--Last seen evidence is a weak type of evidence which can be procured at any time during investigation when direct evidence is not available to prosecution--Evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession--This evidence can be used against accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it--If other evidence lacks such corroboration, it has to be excluded from consideration--No mobile data was produced during trial to’ show that accused was infact tracked on basis of mobile he was holding--Even ownership of mobile or SIM in phone was not proved by prosecution--Therefore, prosecution has also lost a forensic evidence that could help prosecution to connect appellant with commission of offence--The recovery of Churri on lead of appellant after ten days of his arrest and about three months from date of occurrence showing it blood stained is beyond comprehension because by time blood should have been disintegrated, however, chemical examiner report showing presence of human blood over Churri is also not believable in light of dicta laid down by Hon’ble supreme Court of Pakistan--He further deposed during cross-examination that it was a dispute over petty amount and he had advised to deceased to wind it up--Neither any proof was produced by prosecution about financial dispute of deceased with appellant nor any iota of evidence was brought on record to show a link of appellant with deceased in any manner, therefore, prosecution has badly been failed to prove motive in this case--Prosecution has failed miserably to prove charge against appellant and numerous doubts in prosecution case label it as a false and failed attempt to tag him with criminal liability--Appeal allowed. [Para 7, 8, 9, 11 & 12] A, B, C, D, E & F
2008 SCMR 1103, PLD 2019 SC 64, 2009 SCMR 166, 2016 SCMR 1144, 2016 SCMR 2138 & 2019 SCMR 129.
Mr. Mehboob Ali, Advocate for Appellant.
Miss Samra Irshad, Assistant District Prosecutor General for State.
M/s. Falak Sher Bakhsh Gill and Malik Muhammad Ahmad Khokhar, Advocates for Complainant.
Date of hearing: 10.3.2022.
Judgment
Prosecution fixed the allegation on the appellant Haider Ali Mardan for murder of Saleem Abbas, son of the complainant. Though about the death of the deceased an FIR has already been registered bearing No. 1046 dated 22.08.2009 under Section 302, PPC at Police Station Gujjar Pura, Lahore but he was tried in private complaint titled “Muhammad Nawaz vs. Haider Ali Mardan.” filed under Section 302 PPC and he was finally convicted and sentenced by the learned trial Court vide judgment dated 04.01.2016 as under:-
“Imprisonment for life as Ta’zir under Section 302(b), PPC with compensation of Rs. 1,00,000/- under Section 544-A, Cr.P.C., in default thereof, shall further undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to him.”
2. Complainant has preferred Criminal Revision No. 113 of 2016 seeking enhancement of sentence of the Respondent No. 1 therein which is also being decided through this common judgment.
3. Private complaint filed by the complainant carrying facts that Saleem Abbas (deceased), son of the complainant being ex-student of Engineering University, Lahore visited the University on 22.08.2009 to inquire about his result and after that he went to his old residence situated in front of Government Degree Girls College, Gujjarpura, Lahore to see his friends. Complainant received a call that his son has been murdered by unknown accused by inflicting Churri blows, upon receiving such calls, complainant alongwith witnesses Ghulam Murtaza and Mehdi Khan reached at the spot and saw the dead body of his son lying in the room smeared with blood. Matter was reported to the police through FIR No. 1046, dated 22.08.2009 under Section 302, PPC at Police Station Gujjarpura, Lahore. On 20.10.2009, accused/appellant admitted his guilt before Mehdi Khan and Safdar Abbas upon which complainant made supplementary statement before Imran Yasin Inspector/Investigating Officer who being in league with the accused/appellant Haider Ali Mardan did not record the fact of extra-judicial confession made by the accused in such supplementary statement. Investigating officer also did not record statement of witnesses of extra-judicial confession. Later on 18.11.2009 appellant was arrested and a mobile phone Nokia 3110 of the deceased was recovered from his possession. During investigation weapon of offence i.e. Churri as well as wallet, trouser and sandal of the deceased were also recovered on the lead of the accused/appellant. Police collected material evidence connecting the appellant with the commission of crime but in connivance with the appellant did not bring on record such evidence to extend the benefit to accused. As such, the complainant being dissatisfied with the investigation filed private complaint. After cursory statements of witnesses’ accused/appellant was summoned to face the trial. Prosecution produced as many as fourteen PWs in the case. Main reliance of prosecution was on the statements of Muhammad Nawaz, complainant (PW-1), Safdar Abbas (PW-2), Mehdi Khan (PW-3) witnesses of extra-judicial confession and Muhammad Azeem (PW-4), witness of last seen and Waj Tdkar, Muhammad Arshad SI. (PW-11) & Imran Yasin Inspector (PW-12) for investigation and Dr. Rafaqat Ali appeared as secondary evidence in place of Dr. Muhammad Shahbaz who conducted postmorten examination of the deceased as (PW-13). After close of prosecutor evidence accused/appellant examined under Section 342, Cr.P.C. wherein he has controverted all the allegations levelled against him and pleaded his innocence, however, in response to a question that why this case is against you? he has replied as under:
“As it was a blind murder, therefore, just to show the efficiency, I was implicated in this case due to suspicion as escape goat. The PWs deposed against me on the asking of police. The PWs are related inter-se.”
4. After the close of trial, the appellant was convicted and sentenced as forecited.
5. Respective contentions of proponents were heard; recored perused.
6. Prosecution case hinges upon circumstantial evidence based upon last seen, extra-judicial confession and recovery of articles on the lead of accused. The complainant was not the eye witness of the occurrence, after, receiving information he when reached to the place where the dead body of his son was lying in a trouser had not raised any suspicion against any accused person. Occurrence was of 22.08.2009 whereas he made supplementary statement on 20.10.2009 after about two months wherein he raised suspicion about involvement of present appellant in the commission of murder and even at the time of nomination he was not sure about, that appellant is the actual culprit. This lead of supplementary statement was taken by the investigating officer Imran Yaseen Inspector (PW-12) who proceeded to arrest the accused on 18.11.2019 and later recovered the articles as discussed earlier. The presence of dead body in a house away from the residence of the complainant was seriously questioned by the defence that claim of prosecution that appellant has taken the place/flat on rent has not been proved, neither through production of rent deed or the owner of said house, so much so Syed Younas Bokhari draftsman when appeared as PW-6 has not given description of property neither number of flat nor area or thing else from which it could be ascertain that where it situates or in whose possession actually it was. From another angle the place of occurrence was also tried to be tracked through the statement of PW-10 Mukhtar Ahmed 7871/C who escorted the dead body from the place of occurrence to the mortuary but perusal of his statement shows that he has not explained the place of occurrence. So presence of dead body at the place is highly doubtful.
7. Next evidence against the appellant was of Muhammad Azeem (PW-4) who stated that on 22.08.2009 he was boarding on Rickshaw alongwith Muhammad Alam when alighted in front of gate of Degree College; they saw the accused/appellant running away. This witness has admitted that he had not seen the accused while committing murder of accused and has also not explained how he came across about the name of appellant or any relation with him but during cross-examination he responded to a question that it is correct that Haider Ali Mardan was not known to him. The surprising part of his statement was, when he deposed that after watching the accused at the site he returned to home and it was told to him that deceased has been murdered by the appellant. Had it been the situation, the name of the appellant could have easily been given in the first information report which is not the case. This witness further stated that his statement was recorded by the police after 2/3 months of the occurrence. The witness was permanent resident of Mianwali, however, during cross- examination defence put question which shows that he was working in Lahore in those days. He claimed that the deceased was his nephew; therefore, he being interested witness does not have anything material in his statement that could help the prosecution to tag the appellant with the commission of offence. Even otherwise, last seen evidence is a weak type of evidence which can be procured at any time during the investigation when direct evidence is not available to the prosecution. Reliance is placed on judgement reported as “Altaf Hussain vs. Fakhar Hussain and another” (2008 SCMR 1103).
8. Another evidence prosecution holds is of extra-judicial confession which was made before Safdar Abbas (PW-2) and Mehdi Khan (PW-3). Prosecution produced both the witnesses in the dock, Safdar Abbas when appeared as (PW-2) stated that he does not have any blood relation with the complainant party and stated that he was sitting on a tea stall where accused came to confess his guilt. Further stated that accused after confessing his guilt requested for pardon but in the same go this witness said that accused/appellant has also threatend them as well. This witness was permanent resident of Mianwali however, stated that 4/5 months before the occurrence, he came to Chung Lahore. The witness had not stated any source through which he was acquainted with the accused/appellant or appellant has any intimacy with the witness which could attract the accused to make (sic) contact for pardon in this case. Neither this witness was influential person nor he had any special relations with the complainant party and even does not have any acquaintance with the accused, is not expected to be a relevant person to contact upon for seeking pardon. Therefore whole story narrated by him is nothing but a bundle of lies. During his cross-examination he ruled out presence of other witness at that time when he said in response to a question in following line:
“I alone went to accused on his calling”.
Further stated that he had not stated before the police that he knew the accused. Such situation compels the Court to discard evidence of this witness. Evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession. This evidence can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. If the other evidence lacks such corroboration, it has to be excluded from consideration. Reliance is placed on judgments reported as “Mst. Asia Bibi vs. The State and others” (PLD 2019 Supreme Court 64) and “Tahir Javed vs. The State” (2009 SCMR 166).
9. Recoveries so for effected from the accused persons are not believable in the circumstances that a person who commits the murder could retain the articles of deceased in order to create an evidence against him, therefore, recovery of wallet, I.D. cards, photographs, pent, sandals of the deceased were not proved to have been on the lead of accused/appellant. So for as the recovery of mobile phone (P1) is concerned, it was recovered at the time of arrest of appellant upon his personal search is of no use for the prosecution due to many reason, first it has not been identified by the complainant through legal process as required under Article 22 of Qanun-e-Shahadat Order, 1984 because such identification was not conducted under the supervision of a Magistrate. Moreover, no mobile data was produced during trial to’ show that accused was infact tracked on the basis of mobile he was holding. Even ownership of mobile or the SIM in the phone was not proved by the prosecution. Therefore, the prosecution has also lost a forensic evidence that could help the prosecution to connect the appellant with the commission of offence. Hon’ble Supreme Court of Pakistan in case law reported as “Nasir Javaid and another vs. The State” (2016 SCMR 1144) has held as under:
13. The last piece of evidence consists of recoveries. This evidence at its best can be taken as corroborative rather than evidence of the charge. The reason is that it, per se does not name or nominate any accused, nor does it prove or point to his guilt. It simply supplements the other evidence on the record. It if, in its own rights, inspires confidence.
The recovery of Churri on the lead of the appellant on 28.11.2009 after ten days of his arrest and about three months from the date of occurrence showing it blood stained is beyond comprehension because by the time the blood should have been disintegrated, however, chemical examiner report showing presence of human blood over Churri is also not believable in the light of dicta laid down by Hon’ble supreme Court of Pakistan in case law reported as “Faisal Mehmood versus The State” (2016 SCMR 2138) wherein it has been held that human blood would have disintegrated in a period of about three weeks.
10. Medical evidence in this case was not furnished through the doctor who has conducted post-mortem examination and his absence was not explained properly. Postmortem was conducted at 12:30 a.m. on 23.08.2009. As the intimation of death to the complainant was given at 03:00 p.m. if from that time it is considered the time of death there was a delay of about nine hours in conducting the post-mortem examination but if it is counted from the time when Muhammad Azeem (PW-4) has allegedly seen the accused which was 11:30 a.m. then there was a delay of twelve hours in conducting the post-mortem examination, that is the reason doctor had given probable duration between death and post-mortem as six to twelve hours, so prosecution was also not certain about the time of death. Though it is mentioned in the post-mortem report that the dead body was received in this department on 22.08.2009 at 07:00 p.m. yet his post-mortem was conducted for further period after five hours and reaching the dead body at 07:00 p.m. on 22.08.2009 could not be proved due to the reason neither doctor/medical examiner nor Mukhtar Ahmad 7871/C (PW-10) who escorted the dead body reported the time of dispatching of dead body, rather the damaging fact he deposed that he escorted the dead body to the mortuary on 23.08.2009. So dispatching of dead body from the place of occurrence to the mortuary has not been proved within the time frame.
11. Motive in this case was alleged only by Muhammad Azeem (PW-4) who stated that the deceased had told him that appellant had a financial dispute with the deceased but during cross-examination this witness says as under:
“Deceased Saleem Iqbal had narrated before me about the concerns of financial dispute with one boy but he did not mention his name.”
He further deposed during cross-examination that it was a dispute over petty amount and he had advised to deceased to wind it up. Neither any proof was produced by the prosecution about the financial dispute of deceased with the appellant nor any iota of evidence was brought on record to show a link of appellant with the deceased in any manner, therefore, prosecution has badly been failed to prove the motive in this case.
12. For what has been discussed above, prosecution has failed miserably to prove the charge against the appellant and numerous doubts in the prosecution case label it as a false and failed attempt to tag him with criminal liability. The Hon’ble Supreme Court of Pakistan in case reported as “Abdul Jabbar and another vs. The State” (2019 SCMR 129) has held as under:
“It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.”
In view of the above, I have no option except to allow the instant appeal, resultantly, the same is ALLOWED, the conviction and sentence of the appellant is set aside and he is acquitted of the charge by giving him benefit of doubt. Appellant is in custody, he be released forthwith if not involved in any other criminal case. The case property, if any, be disposed of in accordance with law and the record of the learned trial Court be sent back immediately.
Crl. Revision No. 113 of 2016
13. For the reasons recorded above, the criminal revision in hand is without any merit, the same stand dismissed in limine.
(A.A.K.) Appeal allowed
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