PLJ 2023 Cr.C. (Note) 198
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, J.
RUKHSANA KAUSAR--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 329-J of 2012, heard on 16.1.2017.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Presence of alleged eye-witnesses on spot seems to be doubtful--This is a very serious infirmity which destroys credibility of evidence of witness--If evidence of these witnesses is rejected as untrustworthy, nothing survives of prosecution case--These are material contradictions in prosecution witnesses’ testimony, among themselves--The alleged recovery is also not admissible in evidence, as it is not clear which information was given by which accused first, which lead to recovery of those weapon of offence--These are material contradictions in prosecution witnesses’ testimony, among themselves--Evidence in this regard, cannot be termed as reliable as related evidence substantiating prosecution case in any manner whatsoever--Therefore, evidence led by prosecution in connection with motive is not sufficient for placing reliance on testimonies of witnesses for committing occurrence--Motive is a double edged weapon for occurrence and also for false implication--There are always different motives operate in mind of person in making false accusation--In circumstances, Court cannot avoid conclusion that motive, as alleged, was an afterthought and has not been proved by any credible evidence--There is no credible evidence to establish that (PW-5) and (PW-8), eye witnesses, have brought true facts before Court--The prosecution had badly failed to lead incriminating, corroborative/independent evidence to bring home guilt of accused--Benefit of doubt is to be extended in favour of accused--Appeal accepted. [Para 20, 22, 23 & 25] A, C, D & F
2009 SCMR 230.
Evidence--
----Strong corroboration--It is settled principle off law that if evidence of prosecution is disbelieved qua major portion of B accused persons, it cannot be believed qua other in absence of very strong corroboration. [Para 21] B
PLJ 2008 SCMR 269, 2000 SCMR 1758 & 2004 SCMR 1185.
Burden of proof--
---- In any case, burden lies upon prosecution to prove its case beyond reasonable doubt--The production of seized article i.e. “blood stained Chadar and blood stained pillow” in Court is necessary--But there is no evidence on record that case property was produced before learned trial Court--The learned Law Officer is not able to show any evidence on record that case property “blood stained Chadar and blood stained pillow was produced in Court creates serious infirmity and doubt about existence of case property i.e. “blood stained Chadar and blood stained pillow”. [Para 24] E
Mian Muhammad Ramzan, Advocate and Mr. Irfan Riaz Gondal, Defence Counsel for Appellant.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 16.1.2017.
Judgment
Mst. Rukhsana Kausar widow of Safdar Ali r/o Ello Wali Gali, Basti Eid Gah, Kachwana Road, Kahna Nau, Lahore, the appellant along with Muhammad Arshad alias Bobi (since acquitted) and Muhammad Sajid (since acquitted) was involved in case F.I.R. No. 1086 of 2009 dated 09.10.2009 registered under Sections 302/109/34, P.P.C., at Police Station Kahna, Lahore and was tried by the learned Additional Sessions Judge, Lahore. The learned trial Court seized with the matter in terms of judgment dated 31.08.2012, convicted the appellant under Section 302 (b), PPC and sentenced her to undergo imprisonment for life and compensation of Rs. 200.000/- payable by the appellant to the legal heirs of the deceased within the meaning of Section 544-A, Cr.P.C. and in default thereof, accused would further undergo S.I. for six months. Benefit of Section 382-B, Cr.P.C. was also extended in favour of the accused.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellant has assailed her conviction by way of filing instant appeal.
3. The prosecution story as alleged in the F.I.R (Exh-PA/1) lodged on the Fard-Bayan-complaint (Exh-PA) of Faisal Safdar-complainant (PW-5) recorded on 09.10.2009 by Syed Ibrar Hussain Inspector/SHO P.S. Kahna, Lahore (PW-11) is that he (PW-5) is resident of Elloo Wali Gali, Basti Eid Gah, Kachwana Road, Kahna Nau, Lahore, and used to run a shop of Band Baja along with his father (deceased). He (PW-5) has three sisters and three brothers. He (PW-5) and his sister Robina were married while his (PW- 5) in laws took his (PW-5) wife to their house due to bad activities of his (PW-5) mother. Due to illicit relations of her mother-appellant, complainant (PW-5) and his father (deceased) used to forbid his mother but she-appellant used to extend threats of ousting him (PW-5) from the house. Illicit relations were developed by his (PW-5) mother with co-accused Sajid r/o Ghazi Abad (since acquitted). On 08.10.2009, his (PW-5) mother Rukhsana Bibi-appellant quarreled with his father (deceased) then he (PW-5) took his father to the shop. After a short while, his (PW-5) mother Mst. Rukhsana-accused also came there and started quarreling with his (PW-5) father (deceased) on the shop. He (PW-5) tackled the situation and sent his (PW-5) mother to the house but she-appellant extended threats that she would see him. He (PW-5) and his father (deceased) at about 10:00 pm after eating dinner from the hotel closed the shop and went to the house. Complainant’s (PW-5) uncle Saleem (PW-8) came there, he (PW-5) and his uncle (PW-8) slept in the Courtyard of the house while his (PW-5) father (deceased) slept in the bed of his (PW-5) room while his mother Rukhsana-appellant slept in another room. At 3:00 am (night time) he (PW-5) got up on hearing the shriek and saw that his (PW-5) mother-appellant having a brick in her hand was standing in the room of his (PW-5) father (deceased) and when he (PW-5) entered in the room and saw that his (PW-5) father (deceased) received injuries on his (deceased) head and was lying in a bloody condition. He (PW-5) immediately made call on 15 as well as on 1122. He (PW-5) and his Uncle Saleem (PW-8) on 1122 took his father to General Hospital for treatment where his father (deceased) succumbed to the injuries. Complainant’s (PW-5) father has been murdered by his mother- appellant on the abetment of Sajid-co-accused. He (PW-5) was close to move to police station to inform about the occurrence, when Ibrar Hussain Rizvi, Inspector/SHO P.S. Kahna Lahore, reached there. Complainant’s (PW-5) father (deceased) was murdered by his mother-the appellant on the instigation of Sajid-co-accused (since acquitted). The occurrence was not only witnessed by him (PW-5) but also by his (PW-5) Uncle Saleem (PW-8).
4. During police proceedings, Ibrar Hussain, Inspector/SHO (PW-11) along with Shahid Hussain 18370/C, Muhammad Arshad 17561/C, Mudassar Hayat 14313/C, Muhammad Azhar 18357/C along with Hussain Ahmad 18626/C while riding on the official vehicle bearing Registration No. LEG-1227 was present at Gajju Mata Stop in connection with patrolling where he (PW-11) received wireless message and thereafter he (PW-11) reached in emergency-ward of General Hospital, Lahore where the complainant (PW-5) got recorded his statement, which was read over to the complainant (PW-5) and reduced into writing (Exh-PA) and the complainant (PW-5) signed the same as a token of its correctness. Thereafter (PW-11) sent the same to the police station through Shahid Hussain 18370/C for registration of formal F.I.R (Exh-PA/1). Upon strength of which (Exh-PA) formal FIR (Exh-PA/1) was chalked out by Waris Ali S.I/D.O (PW-1) on the same day i.e. on 09.10.2009. Thereafter original statement-complaint (Exh-PA) along with copy of FIR (Exh-PA/1) was sent to the Incharge Investigation cell on the same day for further proceedings.
5. On 09.10.2009 investigation of the case was entrusted to Muhammad Islam Akhtar S.I/I.O (PW-10), who visited the place of occurrence, prepared un-scaled site-plan (Exh-PF) on the pointation of the complainant (PW-5) and witnesses, took blood from the spot through cotton along with blood stained Chadar through recovery memo (Exh-PC) and sent the same to the office of chemical examiner Lahore. He (PW-10) prepared injury statement (Exh-PG) application for conducting post-mortem (Exh-PH), application for issuance of docket (Exh-PJ) and inquest report (Exh-PK) and sent the dead body for autopsy through Aslam and Rasheed Ahmad 11850/C (PW-3). On 10.10.2009 after the post-mortem examination, Aslam and Rasheed Ahmad 11850/C (PW- 3) handed over to him (PW-10) the post-mortem examination report (Exh-PE) along with last worn clothes of the deceased i.e. Shalwar P-1, Qameez P-2 and Banyan P-3 along with a sealed box and envelope which he (PW-10) took into possession through recovery memo (Exh-PB). On 10.10.2009 sealed box and the envelope were sent to the office of Chemical Examiner Lahore, through Rasheed Ahmad 11850/C (PW-3) by Moharrir. He (PW-10) recorded statements of PWs. On 12.10.2009 he (PW-10) took Hameed- ud-Din draftsman (PW-9) to the place of occurrence, who (PW-9) took rough notes from the place of occurrence and handed over to him
(PW-10) the scaled site-plan (Exh-PL and Exh-PL/1). The notes in red ink (Exh-PL/2 and Exh-PL/3) upon the sites plans (Exh-PL & Exh-PL/1) are in his (PW-10) hand writing and signed by him (PW-10). On 28.10.2009, he (PW-10) formally arrested Mst. Rukhsana and Arshad accused and obtained their physical remand. During investigation, on the disclosure of accused Arshad (since acquitted) and Mst. Rukhsana-appellant brick P-4, weapon of offence was taken into possession from the compound of the house of Safdar (deceased) which was taken into possession by the I.O. (PW-10) through recovery memo (Exh-PD). He (PW-10) prepared un-scaled site-plan (Exh-PD) of the place of recovery. On 05.11.2009 he (PW-10) arrested the accused Sajid (since acquitted) and after completion of investigation forwarded report u/S. 173, Cr.P.C. in the Court.
6. Having found the accused guilty, the Investigating Officer (PW- 10) submitted challan against the accused Muhammad Arshad (since acquitted) Mst. Rukhsana Kausar-appellant and Muhammad Sajid (since acquitted).
7. The learned trial Court formally charge sheeted the accused- appellant Mst. Rukhsana along with accused Muhammad Arshad (since acquitted) and Muhammad Sajid (since acquitted) on 18.06.2010, to which they pleaded not guilty and claimed trial.
8. The prosecution in order to advance its case produced as many as 11-witnesses. Ocular account furnished by the prosecution was not only supplemented by the complainant (PW-5) but also by Saleem (PW-8). Muhammad Riaz (PW-6) and Ghulam Abbas (PW-7) who were chance witnesses of the alleged occurrence. Muhammad Islam Akhtar-S.I, who conducted investigation, was recorded as
(PW-10). Rest of the prosecution witnesses are of formal in nature.
9. Dr. Mohsin Javed, appeared as PW-4 and deposed that dead body of Safdar Ali son of Addalat Ali was brought by Rasheed Ahmad 11804/C (PW-3) and identified by Faisal (PW-5) and Muhammad Saleem (PW-8). On 10.10.2009 he (PW-4) conducted the post-mortem examination on the body of the Safdar Ali (deceased) and found following injuries on his person:--
(1) A partially stitched lacerated wound 6 cm x 0.2 cm with two black silk stitches intact on right forehead 10 cm above and inner to right ear.
(2) A partially stitched lacerated wound 5 cm x 0.2 cm on right parietal region of head 9 cm Above from right ear.
(3) A contused swelling 13 cm x 9cm on right forehead right eye and right side of face in front of right ear
FINAL OPINION
All the injuries stated above are ante-mortem and caused by blunt weapon. Cause of death in this case is fracture of skull bones and damage to the brain as a result of Injuries No. 1,2 & 3. These injuries are sufficient to cause death in ordinary course of nature.
After post-mortem of the dead body Along with post-mortem report carbon copy of all signed, clothes, police documents and one Sealed box were handed over to the police.
The carbon copy of the post-mortem report Exh-PE and its pictorial diagrams Exh-PE/1 and Exh-PE/2 are prepared in my hand and bear my signature.
The statements of remaining prosecution witnesses are formal in nature.
10. It is worth mentioning to note here that Safdar Ali deceased was medically examined on 09.10.2009 by Dr. Zulqarnain M.O but his evidence was not recorded.
11. On 31.01.2012, the leamed Deputy District Public Prosecutor closed the prosecution evidence after submitting report of chemical examiner (Exh-PN) and report of Serologist (Exh-PQ).
12. The accused was also examined under Section 342 of Cr.P.C. wherein she neither opted to lead defence evidence nor to appear as her own witness u/S. 340(2), Cr.P.C. While replying to a question that why this case is against her and why the PWs deposed against her, the appellant-Mst. Rukhsana Kausar made the following deposition:
“It was blind murder. I have no linked with the deceased. All the witnesses are chance witnesses. My name is not mentioned in the FIR. In supplementary statement I have been involved in blind occurrence. On blackmailing basis I have been involved in this case. Police has declared innocent his investigation because there is no evidence against me by the complainant pray. All the witnesses are interse with the complainant party. I am innocent and pray for justice, Justice.
13. The learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved to the extent of appellant beyond any shadow of reasonable doubt resulting into their conviction in the afore stated terms.
14. Learned counsel for the appellant has argued that the appellant is innocent; that this is a case of no evidence; that it was blind murder; that witnesses produced are related witnesses and as such having no worthy of credence; that presence of witnesses are not natural; That there are major discrepancies between the statements of ocular account as well as prosecution story narrated in the FIR (Exh-PA/1); that medical evidence is not in line with the ocular account. Learned counsel for the appellant has finally submitted that the prosecution has miserably failed to prove its case against the appellant ater considerable delay of 4:40 hours without explaining the said delay. Faisal Safdar (PW-5) deposed during examination-in-chief that,
“I made a call at 15 as well as at 1122. I and my Chacha took my father in General Hospital, Lahore where my father succumbed to the injuries and expired--Where police came to whom I got recorded my statement Exh.PA.”
The complainant-Faisal Safdar (PW-5) got recorded his (PW-5) statement (Exh.PA) to Syed Ibrar Hussain, Inspector (PW-11) at 07:45 a.m. on 09-10-2009, whereas Muhammad Saleem (PW-8) deposed during examination-in-chief that:
“I made call at rescue 1122. We also made phone call at rescue 15--The vehicle of 1122 reached at the scene and I and Faisal Ali boarded Safdar Hussain in the vehicle and took him to the hospital where within twenty minutes Safdar Hussain succumbed to the injuries.” (underline for emphasis).”
In the prosecution evidence there is serious flaw. So as to precisely fix the time when the deceased last breathed and passed away no evidence or material has been produced by the prosecution to prove the time when the deceased took his last breath. In this case, Dr. Mohsin Javed (PW-4), who conducted post-mortem examination of the dead body of Safdar Ali, deposed during his Court statement that the death occurred on 09-10-20009 at 7:10 a.m. vide death certificate. However, the death certificate was not brought on the record by the prosecution. Whereas, as per inquest report (Exh.PK) in column No. 3 time and date of receiving information of death was mentioned as 09-10-2009 at 7:10 a.m. This threw cloud of doubt about the time when actually incident was reported to the police. Even the request for post-mortem, was made on 09.10.2009. Whereas, the post-mortem of the dead body of Safdar Ali-the deceased was conducted on 10-10-2009 at 11:40 a.m. by Dr. Mohsin Javad (PW-4). This Court has also noted that post-mortem examination report (Exh.PE) reveals that probable time between death and post-mortem was twenty eight hours and thirty minutes. There is no plausible explanation as to beyond any shadow of doubt, thus, this appeal may be accepted and the appellant may be acquitted from the charge.
15. On the other hand, the learned Deputy Prosecutor General for the state assisted by the learned counsel for the complainant have opposed the instant appeal and have submitted that the appellant has specifically been nominated in the FIR with specific role of causing injury to the deceased; that it was a murder of husband by his wife and Mst. Rukhsana Kausar was nominated by his son and as such there was no reason for false implication of the appellant; that testimony of the witnesses are worthy of credence having no shadow of doubt to disbelieve the prosecution version and as such learned trial Court has committed material irregularities and illegalities while awarding life imprisonment to the appellant because when case is proved beyond any shadow of doubt then capital punishment must be awarded to the appellant. Lastly the learned counsel for the complainant has prayed for enhancement of his sentence from life imprisonment to death of the appellant.
16. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
17. The occurrence had taken place on the intervening night on 08.10.2009 and 09-10-2009 at 3:00 a.m. (mid night) in the area of Ello wali Street, Basti Eid Gah, at Katcha Road, situated within the jurisdiction of Police Station Kahna, District Lahore which is at a distance of 1 kilometer only from the place of occurrence. Whereas F.I.R. (Exh.PA/1) was got registered on 09-10-2009 at 08:15 a.m., on the verbal statement-fard bayyan (Exh.PA) of the complainant-Faisal Safdar (PW-5) made on 09-10-2009 at 7:40 a.m. It is notable that occurrence took place at 03:00 a.m. and distance between the police station and the place of occurrence was one (1) kilometer whereas the complainant-Faisal Safdar (PW-5) took four hours and forty minutes for reporting the incident to the police at General Hospital, Lahore. The F.I.R. (Exh.PA/1) was lodged by the complainant-Faisal Safdar (PW-5) why post-mortem of the dead body was delayed for twenty eight hours and thirty minutes. This aspect of the matter is sufficient to cast doubt about the authenticity of the F.I.R. This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.
18. As per prosecution evidence after registration of the F.I.R. (Exh.PA/1) Muhammad Islam S.I. (PW-10) proceeded to the place of occurrence and prepared un-scaled site-plan (Exh-PF) on the pointing of the complainant (PW-5) and witnesses. Muhammad Islam S.I.
(PW-10) also took into possession blood from the spot with the cotton along with blood stained Chadar. The complainant-Faisal Safdar
(PW-5) in his testimony has not stated that whether he came back to the place of occurrence with police or he followed police after making his statement at General Hospital, Lahore. As per testimony of Muhammad Islam S.I. (PW-10) after inspection of the place of occurrence he (PW-10) proceeded to hospital where the dead body was lying in the dead-house and he (PW-10) prepared injury statement (Exh.PG), application for conducting post-mortem (Exh.PH), application for issuance of docket (Exh.PJ) and inquest report (Exh.PK). But the crime number has not been given in the injury statement (Exh.PG) and application for conducting post-mortem (Exh.PH) and the places of such particulars have been left blank suggesting an inference that probably the F.I.R. had not been taken down by the time the injury statement (Exh.PG) and application for conducting post-mortem (Exh.PH) were prepared. I have noted that in the inquest report (Exh.PK) in Column No. 3 time and date of receiving information of death was mentioned 09-10-2009 at 07:10 a.m., as well as Muhammad Islam S.I. (PW-10) instead of mentioning in the inquest report (Exh.PK) the proceedings taken over by him, he (PW-10) only reproduced the entire statement of the complainant-Faisal Safdar (PW-5). Other facts having an important bearing on this case are that the Inquest Report (Exh.PK) was prepared on 09.10.2009. If the police had reached the hospital, and taken down the statement of Faisal Safdar (PW-5), there is no reason why the post-mortem of the dead body of Safdar Ali-the deceased was conducted on 10-10-2009 with delay of twenty eight hours and thirty minutes. More significantly, the Inquest Report (Exh.PK) does not bear any signatures of the witnesses nor it was mentioned in the column of brief circumstances of case that after registration of the FIR what proceedings were carried out by him (PW-10) as well as at the bottom on the last page it was not mentioned that where it was prepared. There is no reason why the police could not mention number of FIR on the injury statement (Exh.PG) and application for conducting post-mortem examination (Exh.PH) despite the fact the FIR having been registered at 8:15 a.m. on 09.10.2009. In this case, the circumstances discussed above, throw up doubts about whether the FIR was indeed recorded when it is alleged to have been lodged, by the police. The absence of the FIR number in the injury statement (Exh.PG) And application for post-mortem examination (Exh.PH) prepared by Muhammad Islam Akhtar, SI (PW-10)-the investigating officer, absence of the details regarding sending of the copy of the FIR along with the dead body and its reference in details in the inquest report, all circumstances create doubt about the timing of the FIR, and no satisfactory explanation for such delay was given by the prosecution.
19. The prosecution story hinges to a great extent on the testimonies of Faisal Safdar (PW-5) and Muhammad Saleem (PW-8), i.e. the son and brother of the deceased-Safdar Ali. Faisal Safdar
(PW-5) and Muhammad Saleem (PW-8) stated that on 08.10.2009, there was an altercation, between Rukhsana Kausar-the appellant/accused and Safdar Ali-the deceased. Faisal Safdar (PW-5) took his (PW-5) father-Safdar Ali to his shop and after a while his mother-Rukhsana Kausar arrived there and started quarrelling with Safdar Ali-the deceased. Faisal Safdar (PW-5) had reconciled the matter. The accused Rukhsana Kausar threatened to see Safdar Ali-the deceased. But the workers/employees of the deceased as well as of the complainant were not cited as witnesses to prove the quarrelling took place between Safdar Ali-the deceased and Rukhsana Kausar-the appellant. Faisal Safdar (PW-5) deposed during cross-examination that band master was his father and he, himself is also band master. He (PW-5) also admitted that no function is attended without band master. This suggests that all workers/employees were present in the shop but they were not produced in Court as witnesses. As they attended funeral ceremony of the deceased next day. Faisal Safdar (PW-5) deposed during cross-examination that,
“The dead body was delivered to us next day and funeral ceremony held at 6:00 pm which were participated by my other workers of the shop.”
The evidence of Faisal Safdar (PW-5) is not reliable and trustworthy, as regards quarrel/cruelty of appellant (wife of the deceased) and threats issued by the appellant is concerned. So the prosecution has failed to prove that any altercation had taken place between Safdar Ali-the deceased and Rukhsana Kausar-the appellant on 08-10-2009 and any threat was extended by the appellant to Safdar Ali-the deceased.
20. On 08.10.2009 at 3:00 a.m. Faisal Safdar (PW-5) and Muhammad Saleem (PW-8) heard screaming of Safdar Ali-the deceased and they saw Rukhsana Kausar the appellant-accused standing in the room of Safdar Ali-the deceased while holding a brick in her hand and Safdar Ali (the deceased) sustained injuries on his head. This was witnessed by Faisal Safdar (PW-5) and Muhammad Saleem (PW-8), who were sleeping in the compound of the house. Muhammad Saleem (PW-8) deposed during examination-in- chief that:
“It was 3:00 am (night) that I heard screaming, at which firstly complainant Faisal awoke and went to the room and I followed him and witnessed Mst. Kousar while a brick in her hand and standing at the head of Safdar Husain deceased.”
Contrary to the deposition of Muhammad Saleem (PW-8), during examination-in-chief Faisal Safdar (PW-5) deposed that,
“It was 3:00 am (night) when I heard screaming, I found my mother standing while holding a brick in her hand in the room of my father and my father had sustained injuries at his head and was blood stained. The occurrence was witnessed by me and my Chacha.”
And during cross-examination Faisal Safdar (PW-5) deposed that,
“When I awoke after hearing the screaming I saw my mother while holding a brick and standing at my father. My mother had already made noise, at which the People of Mohallah gathered there.”
In the scaled site-plans (Exh.PL and Exh.PL/1) presence of bed whereupon dead body of the deceased was laying was shown at point “A”, whereas the accused-Rukhsana Kausar was shown at point “B”. The distance between point “A” and point “B” was 2 feet. Whereas both eye-witnesses were present at point “C”. From point “C” it was not possible to see what happened at point “A” and point “B”. Hameed-ud-Din Chishti, Draftsman (PW-9) deposed during cross-examination that,
“It is correct that the place where the complainant reported his presence, bed is not visible from the said point. It is correct that the complainant had to move 8 feet before he could had a glance upon the bed.”
Although the site plan is not a substantive piece of evidence in terms of Article 22 of the Qanun-e-Shahadat Order, 1984 as held in the case of “Mst. Shamim Akhtar v. Fiaz Akhtar and two others” (PLD 1992 SC 211) but it reflects the view of the crime scene and same can be used to contradict or disbelieve eye-witnesses. So, both prosecution witnesses were not able to witness the act of the appellant while inflicting the brick blow. There are contradictions in the testimony of Faisal Safdar (PW-5) and Muhammad Saleem (PW-8) regarding presence of Muhammad Saleem (PW-8) at the place of occurrence. Both aforesaid witnesses could not justify their presence at the spot. Faisal Safdar (PW-5) deposed during cross-examination that:
“My Chacha Saleem was already present when we reached in our house at 10:00 pm. My Chacha Saleem took tea with my father. We slept after taking meal etc.”
Whereas Muhammad Saleem (PW-8) deposed during cross-examination that:
“Deceased in this case was my brother. It was 08.10.2009 that my brother Safdar Hussain made me telephonic call that accused Mst. Kousar has made scuffle in the house and called me for reconciliation, at which I went to his house at 10:00 pm where Safdar Hussain deceased, Mst. Kousar accused and Muhammad Faisal complainant were present in the house.”
Even Muhammad Saleem (PW-8) had made dishonest improvements in his examination-in-chief. The defence has confronted the Court statement of Muhammad Saleem (PW-8) with his earlier statement made before Investigating Officer. The deposition of Muhammad Saleem (PW-8) reads as under:
“I had made in my statement that Safdar Hussain was boarded by me and Faisal in the vehicle of rescue 1122 and took him to the hospital and he succumbed to the injuries within twenty minutes, confronted with Exh.DD wherein it is not so recorded. I had made in my statement that call was made at rescue 1122, confronted with Exh.DD wherein it is not so recorded. It was recorded in my statement to the police that pieces of skull of the deceased were touching to the roof of the house, confronted with Exh.DD wherein it is not so recorded. It was recorded in my statement that accused Mst. Kousar after dropping the brick went outside the street, confronted with Exh.DD wherein it is not so recorded. It was got recorded in my statement that Mst. Kousar insisted that she could leave Safdar Hussain but not to the accused Sajid, confronted with Exh.DD wherein it is not so recorded.”
Thus, the entire evidence about their i.e. Faisal Safdar (PW-5) and Muhammad Saleem (PW-8) presence at the spot appeared to be unreliable and such evidence can be created at any moment. With this background, presence of the alleged eye-witnesses on the spot seems to be doubtful. This is a very serious infirmity which destroys the credibility of the evidence of witness. If the evidence of these witnesses is rejected as untrustworthy, nothing survives of the prosecution case. These are the material contradictions in the prosecution witnesses’ testimony, among themselves.
21. Admittedly co-accused-Muhammad Arshad alias Bobi and Muhammad Sajid of the appellant have been acquitted by the learned trial Court on the same set of the evidence. There is no challenge to the acquittal of Muhammad Arshad alias Bobi and Muhammad Sajid. It is settled principle off law that if evidence of the prosecution is disbelieved qua major portion of the accused persons, it cannot be believed qua the other in the absence of very strong corroboration. Reliance is placed on the case law reported as “Akhtar Ali and others v. State” (PLJ 2008 SC 269). It has also been held by the Hon’ble Supreme Court of Pakistan “Sarfraz alias Sappi and 2 others v. The State” (2000 SCMR 1758) and “Iftikhar Hussain and others v. The State” (2004 SCMR 1185) that:-
“That eye-witnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against the other accused persons.”
22. As far as the recovery of “brick” (P-4) which had allegedly been recovered from the appellant is concerned, I may mention here that the “brick” (P-4) was recovered on 04.11.2009 i.e. after fifty-six days of the alleged occurrence from the house of the appellant. It has been noticed that the complainant-Faisal Safdar (PW-5) deposed during cross-examination that:
“I have shown the brick which was in the hand of my mother, to the police and police took the brick with him. The police did not get my signature at any recovery memo as at that time I much worried.”
However Muhammad Saleem (PW-8) deposed during cross-examination that:
“On Seeing us, Mst. Kousar accused dropping the brick on the ground, went out of the house In a street.”
Whereas Muhammad Saleem (PW-8) deposed during cross-examination that:
“I did not shown the brick to the Investigating Officer which was taken into possession by the Police and my signatures were not got at that Time by the police.”
Contrary to the deposition of the complainant-Faisal Safdar (PW-5) and Muhammad Saleem (PW-8), the Investigating Officer-Muhammad Islam Akhtar, SI (PW-10) deposed during cross-examination that:
“Then I proceeded to the hospital where the dead body of Safdar deceased was present in dead house--At the time of preparation of site plan, no witness pointed out to me regarding any brick as weapon of offence. The brick was lying in the Courtyard in open condition. It was not concealed. The witnesses pointed out towards the brick the first day. The pointation was to be checked from the accused hence I did not take the brick into possession at the time of pointation of the PWs. The brick was blood stained but I never sent the brick for the purpose of its chemical examination. I did not mention the fact in my first Zimni that blood stained brick was present in the Courtyard. I do not remember the time when the recovery of the brick was affected.”
Rasheed Ahmad, Constable (PW-3) deposed that the recovery of weapon of offence “brick P-4” was made on the joint disclosure statement of the accused persons Mst. Rukhsana Kausar and Muhammad Arshad on 04-11-2009. The alleged recovery is also not admissible in evidence, as it is not clear which information was given by which accused first, which lead to the recovery of those weapon of offence. These are the material contradictions in the prosecution witnesses’ testimony, among themselves. Hence, prosecution evidence in this regard, cannot be termed as reliable as related evidence substantiating the prosecution case in any manner whatsoever.
23. The motive set up by the prosecution in the fard bayyan (Exh.PA) and F.I.R. (Exh.PA/1) and deposed about it by the complainant- Faisal Safdar (PW-5) have been found by this Court to have remained un- proved. The prosecution case in this regard was vague and can hardly inspire confidence. The complainant-Faisal Safdar (PW-5) deposed during cross- examination that:
“I did not produce any witness of illicit relations of my mother with the accused Muhammad Sajid.”
Muhammad Saleem (PW-8), eye-witness, deposed during cross-examination That:
“I did not produce any other witness to the police regarding scuffle in between Safdar Hussain and Mst. Kousar accused. I also did not produce any other witness in respect of the illicit relationship of Mst. Kousar and Sajid accused.”
Therefore, the evidence led by the prosecution in connection with motive is not sufficient for placing reliance on the testimonies of the witnesses for committing the occurrence. Motive is a double edged weapon for the occurrence and also for false implication. There are always different motives operate in the mind of the person in making false accusation. In the circumstances, I cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
24. In any case, the burden lies upon the prosecution to prove its case beyond the reasonable doubt. The production of seized article i.e. “blood stained Chadar and blood stained pillow” in the Court is necessary. But there is no evidence on record that the case property was produced before the learned trial Court. The learned Law Officer is not able to show any evidence on record that the case property “blood stained Chadar and blood stained pillow” was produced in the Court creates serious infirmity and doubt about the existence of the case property i.e. “blood stained Chadar and blood stained pillow”.
25. In view of the above circumstances, the conclusion I arrived at is that there is no credible evidence to establish that Faisal Safdar (PW-5) and Muhammad Saleem (PW-8), eye-witnesses, have brought true facts before the Court. The prosecution had badly failed to lead incriminating, corroborative/independent evidence to bring home guilt of the accused. In this background, the benefit of doubt is to be extended in favour of the accused. In the case of Muhammad Akram v. The State (2009 SCMR 230), wherein it has been held as under:
“…..Benefit of doubt--Principles--For given the benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.”
26. The upshot of the above discussion is that the prosecution has badly failed to bring home charge against the appellant beyond any reasonable doubt, therefore, in the interest of safe administration of criminal justice, Crl. Appeal No. 329-J of 2012 filed by the appellant-Rukhsana Kausar is accepted in toto. The conviction and sentence awarded by the learned Sessions Judge, Lahore vide judgment dated 31.08.2012 is set aside and the appellant, Mst. Rukhsana Kausar is acquitted of the charge in a case F.I.R. No. 1086 of 2009 dated 09.10.2009 under Sections 302/109/34, P.P.C., registered at Police Station, Kahna District Lahore The appellant- Mst. Rukhsana Kausar widow of Safdar Ali, who is in custody, is ordered to be released forthwith, if not required in any other case.
(A.A.K.) Appeal accepted
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