PLJ 2023 Cr.C. (Note) 225
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ.
ALI HASSAN--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 28053 & M.R. No. 316 of 2017, heard on 7.6.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 449, 392 & 411--Qatl-e-amd--Conviction and sentence--Challenge to--Last seen evidence--Circumstantial evidence--Extra-judicial confession--Recovery of articles belonging to deceased and medical evidence--It was a case of delayed post-mortem, which casts serious doubts--The Courts have always deprecated such kind of statements, which are made with purpose to strengthen case of prosecution on behest of police officials or some other ulterior motives to get suspect convicted by hook or by crook--Nomination through supplementary statements has always been Deprecated and not approved by Hon’ble Supreme Court--Evidence of prosecution qua last seen is highly improbable, untrustworthy and not believable, thus, we discard same--Even otherwise, last seen evidence is always considered to be week type of evidence, unless corroborated some other independent of evidence which is lacking in this case--Complainant party is known to him since 1994--Further admitted that he had not joined PWs, who escorted dead body to hospital--PW-12 further admitted that he had no blood relation with complainant--It is admitted by him that appellant has never visited his house--It is also admitted fact that this PW has no influence upon complainant party, which shows that story of alleged extra judicial confession had been maneuvered and cooked-up afterwards to manage false implication of appellant--Evidentiary value of joint extra judicial confession--The prosecution has failed to establish fact of such availability of source of light and in absence of their inability to do so, we cannot presume existence of such a light source--Even otherwise, we have already discarded evidence in shape of circumstantial and extra judicial confession, for reason recoveries of articles mentioned in Ex.PC have lost its evidentiary worth--Similarly while not associating independent witnesses of vicinity, mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated--Medical evidence produced by prosecution was not of much avail to prosecution because murder in issue had remained un-witnessed and, thus, medical evidence could not point an accusing finger towards appellant.
[Para 6, 7, 8, 10 & 12] A, B, C, D, E & F
2008 SCMR 1103, PLD 2019 SC 64, 2011 SCMR 1673, 2015 SCMR 155, 2016 SCMR 274, 2019 SCMR 1994, PLD 2016 SC 951, 2019 SCMR 1068, 2008 SCMR 6, 1995 SCMR 1350, 2017 SCMR 1189, 2017 SCMR 898 & 2016 SCMR 1605.
Mr. Kamran Javed Malik, Advocate for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
M/s. Azam Nazir Tarar and Muhammad Qasim Ijaz Sumra, Advocates for Complainant.
Date of hearing: 7.6.2021.
Judgment
Muhammad Tariq Nadeem, J.--Ali Hassan (appellant) was tried by learned trial Court in case FIR No. 137 dated 22.03.2016 for offences under Sections 302/457/380/411, PPC registered at Police Station Cantt, District Sialkot, for committing the murder of Mst. Razia Bibi and on conclusion of trial vide judgment dated 19.04.2017 he was convicted and sentenced as under:
Under Section 302(b), PPC: death with a further direction to pay Rs. 2,00,000/- (rupees two lacs only) as compensation under Section 544-A, Code of Criminal Procedure to the legal heirs of the deceased and in default whereof to further undergo six months S.I.
Under Section 449, PPC: five years R.I.
Under Section 392, PPC: five years RI. with fine of
Rs. 50,000/-and in default thereof to further undergo one month S.I.
Under Section 411, PPC: three years R.I.
The sentences mentioned above were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to him.
Assailing the above convictions and sentences, Ali Hassan (appellant) has filed appeal whereas the learned trial Court has sent Murder Reference for confirmation or otherwise of sentence of death awarded to him. As both these matters have stem out from the same judgment, therefore, are being decided together through this single judgment.
2. The facts of the case have been stated by Rana Nisar Ahmad Complainant (PW13) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
“On 21.3.2016, at about 7:45 p.m. I along with my son Abdul Rehman PW went to see my sister Razia Bibi deceased to her house situated in the village Bharath. I knocked at the door for several times but the door was not opened where upon I asked my son Abdul Rehman to enter the house by scaling over the wall and open the door from inside he did the same. At that time, Javed Bhatti s/o Siraj Din was also present there. When door was opened, we entered the house and saw that my sister Razia Bibi was lying flat on the floor and her ‘dopta’ and ‘ozar band’ was wrapped tightly around her neck we moved her but found no response from her. We immediately took her to Civil Hospital in a car, where doctor confirmed her death. At that time, I did not know the accused and later on I came to know the accused present in the Court had murdered my sister as she offered resistance in dacoity and also took with him for Bengals, earrings, nose pin and her mobile phone having SIM No. 0341-6793559. On this, I moved an application for registration of FIR Exh. PJ bearing my signature Exh. PJ/1 and thumb impression Exh. PJ/2 on which FIR was registered.
After the registration of FIR, Mushtaq Ahmad and Muhammad Waqas PWs met me and disclosed that on 21.3.2016, while they were going to attend a marriage ceremony of relative of Mushtaq PW and they had seen the accused Ali Hassan present in the Court jumping out of the house of Razia deceased and at that time Qameez of Ali Hassan was torn from front side. They also stated that they had seen the accused person in the light of electric bulbs installed in the upper and outer portion of house of Muhammad Arif Bhatti, after attending marriage both of them came to me and narrated me what they saw on this I moved an application with thumb impression and also produced Mushtaq Ahmad and Waqas PW before the I.O. I also gave the IMEI number of the mobile (Q-Mobile) to the I.O. The I.O. recorded my statement in this regard.
3. Arguments heard and record perused.
4. The case of the prosecution, so to speak, primarily hinges upon the circumstantial evidence, extra judicial confession, recovery of articles belonging to the deceased and medical evidence.
5. According to the prosecution story, occurrence in this case took place on 21.3.2016 at about 7.45 p.m. whereas matter was reported to the police on 22.3.2016 at 2.55 a.m. (night) i.e. with a delay of seven hours and postmortem on the dead body of Mst. Razia Bibi was conducted on 22.3.22016 at 7:30 a.m. with a considerable delay of about twelve hours. It was a case of delayed postmortem, which casts serious doubt about the veracity of prosecution case. We are guided from the case law titled as “Muhammad Rafique alias Feera versus The State” (2019 SCMR 1068).
6. Initially, the FIR was lodged on 22.3.2016 on the written application (Ex.PJ) submitted by Rana Nisar Ahmad complainant (PW13), against unknown persons. Subsequently, PW-13 got recorded his supplementary statement (Ex.PP) on the same day and nominated Ali Hassan (appellant) as accused. According to contents of Ex.PP Rana Nisar Ahmad complainant was informed by Mushtaq Ahmed and Muhammad Waqas PWs that on 21.3.2016 at about 7.45 p.m, they were going to participate in a marriage ceremony and while passing through the house of Mst. Razia Bibi (since deceased), they saw in the light of bulbs, Ali Hassan (appellant) jumping out and running from the house of Mst. Razia Bibi (since deceased). When after attending marriage ceremony, they came to know that Mst. Razia Bibi has been murdered. The Courts have always deprecated such kind of statements, which are made with the purpose to strengthen the case of the prosecution on the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or by crook. Nomination through supplementary statements has always been Deprecated and not approved by the Hon’ble Supreme Court. We fortify our view from the dictum laid down upon the case laws titled as “Kashif Ali vs The Judge Anti-Terrorism Court No. II Lahore and others” (PLD 2016 SC 951) and “Akhtar Ali and others vs. The State (2008 SCMR 6) and “Falak Sher alias Shero versus The State” (1995 SCMR 1350).
7. So far as last seen evidence is concerned, to prove the same the prosecution has produced two witnesses namely Muhammad Waqas (PW10) and Mushtaq Ahmed (PW11). It is an admitted fact that both the PWs are neighbourer of Mst. Razia Bibi (since deceased). It is pertinent to mention here that when they saw the appellant while jumping from the house of Mst. Razia Bibi (since deceased) a night time why they had not made a noise and informed to the neighbours as well as the police. The conduct of both the PWs is against the nature and not believable. Both the PWs have also failed to produce marriage ceremony card. The names of these PWs have not been mentioned in the FIR. The supra mentioned facts belies the prosecution version regarding the circumstantial evidence. Similarly, the evidence of the prosecution qua the last seen is highly improbable, untrustworthy and not believable, thus, we discard the same. Even otherwise, last seen evidence is always considered to be week type of evidence, unless corroborated some other independent of evidence which is lacking in this case. In this respect, the reference can be placed upon the case titled as “Altaf Hussain v. Fakhar Hussain and another” (2008 SCMR 1103).
8. The other evidence which is being relied upon by the prosecution is an extra judicial confession of appellant before one Muhammad Younas Sadal (PW12). It is admitted by this PW that complainant party is known to him since 1994. Further admitted that he had not joined the PWs, who escorted the dead body to the hospital. PW-12 further admitted that he had no blood relation with complainant Rana Nisar Ahmad. It is admitted by him that the appellant has never visited his house. It is also admitted fact that this PW has no influence upon the complainant party, which shows that the story of alleged extra judicial confession had been maneuvered and cooked-up afterwards to manage the false implication of the appellant. Even otherwise, evidentiary value of joint extra judicial confession has been disapproved by august Supreme Court of Pakistan in many judgments including in cases titled “Mst. Asia Bibi versus The State and others” (PLD 2019 Supreme Court 64), “Shahid Hussain alias Multani versus The State and others” (2011 SCMR 1673), “Imran alias Dully and another versus The State and others” (2015 SCMR 155), “Azeem Khan and another versus Mujahid Khan and others” (2016 SCMR 274) and “Wajeeh-Ul-Hassan versus The State” (2019 SCMR 1994).
9. Although it has been narrated by Muhammad Waqas (PW10) and Mushtaq Ahmad (PW11) that they saw the appellant while jumping and running from the house of Mst. Razia Bibi (since deceased) on 21.3.2016 at 7.45 p.m in the light of bulbs but the Investigating Officer has not taken into possession any source of light. The prosecution has failed to establish the fact of such availability of source of light and in absence of their inability to do so, we cannot presume the existence of such a light source. Reliance is placed on the case titled “Gulfam and another v. The State” (2017 SCMR 1189) wherein the August Supreme Court of Pakistan observed as under:
“Courts below had incorrectly presumed that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot.”
10. According to the case of prosecution, the appellant was arrested on 18.04.2016 and while he was on physical remand, he got recovered four bangles, two ear rings, one nose pin and one mobile phone belonging to deceased and one torn shirt (Qameez) at his pointation from an open place owned by Yousaf Bhutta situated at Mouza Birth, which were lying underneath the heap of bricks, on 22.04.2016. It is pertinent to mention here that while recording his statement Fida Hussain SI/IO (PW-16) has described that he had not summoned any respectable of the locality during the recovery proceeding. Plot of Yousaf Bhutta, where recovery was effected, was easily assessable, similarly, he did not summon Yousaf Bhutta, owner of the plot. Even otherwise, we have already discarded the evidence in shape of circumstantial and extra judicial confession, for the reason the recoveries of articles mentioned in Ex.PC have lost its evidentiary worth. Similarly while not associating the independent witnesses of the vicinity, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated. Reference in this context may be placed to the case of “Muhammad Ismail and others vs. The State” (2017 SCMR 898).
11. According to the prosecution story, it is a case of dacoity with murder and intention of the appellant has been shown that he committed the murder during the dacoity. Rana Nisar Ahmad complainant (PW-13) has himself produced two rings, one of gold and the other of silver of Mst. Razia Bibi (since deceased) which were later on produced by the lady constable to the I.O. statedly worn by Mst. Razia Bibi (since deceased) and the same cannot be taken into possession vide memo. (Ex.PH). If intention of the appellant was of dacoity then why he left these things with Mst. Razia Bibi (since deceased). Therefore, this piece of evidence is of no avail to the prosecution.
12. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained un-witnessed and, thus, the medical evidence could not point an accusing finger towards the appellant. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605).
13. Resume of the above discussion is that the prosecution has failed to prove its case against the appellant, therefore, we accept appeal filed Ali Hassan, appellant, set aside his conviction and sentence recorded by the learned trial Court and acquit him of the charge by extending him the benefit of doubt. The appellant is in jail, he be released from the jail forthwith if not required in any other case and Murder Reference is answered in the NEGATIVE and the sentence of death of Ali Hassan, appellant is NOT CONFIRMED.
(A.A.K.) Appeal accepted
0 Comments