PLJ 2023 Cr.C. (Note) 219
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi, J.
versus
STATE etc.--Respondents
Crl. A. No. 23637 & 17907 of 2020, heard on 21.3.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--It was an unseen occurrence as no one had seen deceased being burnt to death--The prosecution evidence is available only to extent that PWs had seen appellant coming out of home of deceased--If it was looked from outside then why he was not stopped and apprehended there and then--Interestingly, they did not try to go imide house to save their Bhabhi if she was being burnt Even PWs reached--Later-in-time--They did not state a word regarding illict relation of deceased with appellant--She also did not say a word about strange relationship of deceased with her in-laws--However, PW-2 admitted that this was second marriage of deceased and that she has two daughters and her husband used to live abroad for last 4/5 years This may had been a cause of frustration of deceased which probably had led to finish herself The investigating officer PW-13 never interrogated her husband or owner of house--Afzaal Tokeywala whose statements were relevant in unseen occurrence--The above facts are dent in prosecution story which is brought with motive and direct evidence--Why visibly would appellant kill deceased and what could be possible motive to do so is shrouded in mystery--The crime scene was compromised--The investigating officer did not collect any relevant CDR to directly connect appellant with crime--The call made to PW-2 was not recognized as she knew voice of appellant so he did not call PW-2--All these are prosecution lacunas which are sufficient to disbelieve prosecution story, therefore Prosecution has not been able to prove case against appellant beyond reasonable doubt--No iota of evidence was brought against “M” to malign him in this case, hence was rightly acquitted--Prosecution has miserably failed to bring home guilt of appellant beyond reasonable shadow of doubt--The impugned judgment has been passed merely on conjectural and whimsical reasons, which cannot be approved of the impugned conviction and sentence of appellant, is set-aside and he is acquitted of charge--He shall be released forthwith if not required in connection with any other case--Appeal accepted. [Para 10 & 11] A, B, C & D
Mr. Muhammad Tahir Butt Saleh, Advocate for Appellants.
Mr. Ijaz Ahmad Pannun, DDPP for State.
Mr. Naveed Inayat Malik, Advocate for Complainant/Appellant (in Crl. A. No. 17907-2020).
Date of hearing: 21.3.2023.
Judgment
The appellant, namely, Nadeem Haider was held guilty under Section 302(b), PPC by learned Additional Sessions Judge, Lahore after the trial of case-FIR No. 106/2016, dated 01.02.2016, registered under Section 302, 34, 440, 435 PPC, at police station Liaqatabad. District Lahore, vide judgment dated 28.02.2020 and was convicted and sentenced as under:
“Appellant/convict, Muhammad Nadeem Haider.
U/S. 302(b) PPC sentenced to life imprisonment with fine of Rs. 5,00,000/- and in default whereof, to further undergo SI for a period of six months.
Benefit of Section 382-B Cr.P.C. was given to the convict/ appellant.
2. The convict-appellant, namely, Muhammad Nadeem Haider has called in question the impugned judgment through Crl. A. No. 23637-2020. However, the complainant of FIR, namely, Kalsoom Bibi also filed Crl. A. No. 17907-2020 against judgment dated 06.05.2020 passed by Additional Sessions Judge. Lahore whereby the complainant was directed to pay Rs.25000/- as compensation to the Muhammad Nasrullah/Respondent No. 2 within 15 days otherwise it was to be recoverable as arrears of Land Revenue as well as the acquittal of Muhammad Nasrullah/Respondent No. 2. Both the appeals are being disposed of together through this single judgment.
3. Briefly, the prosecution case against the appellant/Nadeem Haider is that complainant/PW-1 Kalsoom Bibi submitted written application (Exh.PA) before the police by alleging that her daughter, namely. Mst. Abida (deceased) was married to one Shahid (not produced) and out of this wedlock two daughters were born who are alive and in her custody. Her son-in-law was employed in Dubai (Sharjah). Mst. Abida Bibi (deceased) was a tenant in the house of one Afzal (not produced) situated at Tokawala Chowk. On 01.02.2016, Mst. Abida Bibi (deceased) went out to drop her daughters in the school and thereafter was supposed to return to her house. At about 11.00 a.m. the complainant went to the house of her daughter but it was locked. She made a phone call to her but it was switched off. At about 2.30 p.m., an unknown person made a phone call from the cell phone of complainant’s daughter at the cell phone of her other daughter Mst. Nazia (PW-2) and asked her to receive Abida’s daughters from the school who were picked up by her. At about 7.30 p.m. Mohallahdars raised alarm that house of Mst. Abida (deceased) was set on fire whereupon the complainant (PW-1) along, with her said daughter Mst. Nazia (PW-2) immediately reached at the house of Mst. Abida (deceased) which was already burnt and the burnt dead body of Mst. Abida Bibi was lying on the bed. The motive behind the occurrence was that 4/5 days prior to the occurrence, Nadeem Haider/appellant went to the house of deceased at night time but was abused by her. For this grudge, he along with Nasrullah (since acquitted) and two unknown persons put the house of Mst. Abida (deceased) on fire and burned her to death while committed her murder. On the basis of written application (Exh.PA) the FIR (Exh.PE) was registered under Section 302, PPC.
4. After completion of investigation by Muhammad Ansar Inspector/PW-13. The challan against the appellant was submitted before the trial court. On indictment, the appellant pleaded not guilty and claimed trial. The prosecution produced 15 witnesses, namely. Mst. Kalsoom Bibi/PW-1. Mst. Nazia Waheed/PW-2. Asif Fara//PW-3. Ghulam Rasool/PW-4. Shamshad Bibi/PW-5. Umar Farooq/PW-6. Muhammad Imran Constable/PW-7. Pervaiz Akhtar ASI PW-8. Syed Younas Bukhari draftsman/PW-9. Muhammad Qaisar HC/PW- 10. Dr. Faiza Munir Kazmi/PW-11. Muhammad Shahbaz Constable/PW-12. Muhammad Ansar Inspector/PW-13. Ghulam Hassan Forensic Scientist Finger/PW-14 and Aabad Ayoub Forensic Scientist/PW-15. Thereafter. Makhdoom Saad Junior Forensic Scientist was summoned by the court as CW-1 Thereafter, the accused/appellant along with acquitted person were examined under Section 342, Cr.P.C. whereby they professed their innocence and denied all the allegations levelled against them. They did not opt to depose within the scope of Section 340(2), Cr.P.C. nor they opted to produce evidence in defence. In reply to the question “Why this case had been lodged against you and why the PWs had deposed against you”. Muhammad Nadeem Haider/ appellant stated as under:
“I am innocent in this case. I am not involved in this occurrence. All the PW’s are related to complainant. There is no independent evidence in this case 1 neither visit the house of deceased nor did I abuse her before occurrence that deceased Mst. Abida Bibi committed suicide by setting on fire her house. Mst. Abida Bibi and her husband used to quarrel with each other because there was no male child. The husband of deceased Mst. Abida Bibi wanted to contract another marriage for the purpose of male child and she was stone in his way. Therefore, for said reason, Mst. Abida Bibi committed suicide. The complainant had strong suspicion that I had illicit relation with said Mst. Abida Bibi and 1 used to induce her against her husband.”
5. The other acquitted co-accused Muhammad Nasrullah stated as under:
“I am innocent in this case. Police declared me innocent in this case during the course of investigation. All the PW’s did not say anything about me.”
6. After conclusion of the trial, the learned trial court pronounced its verdict against the appellant and awarded him aforesaid punishment.
7. After hearing the learned counsel for the appellant, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant and perusing the record, it is straightaway observed that the star witness of this case is Kalsoom Bibi/PW-1, the complainant and mother of Abida Bibi/deceased and according to her she was married to Shahid who did not appear before the learned trial court. According to her she narrated the prosecution story as mentioned in complaint (Exh.PA). In the cross-examination she admitted that many peoples gathered in the house at the time when she reached and that the house of her deceased daughter which is located at the end of the street and when she reached the place of occurrence, the locks of the house were opened in her presence but peoples were gathered inside the house. According to her, the dead body of deceased was shifted to the hospital later. It suggests that people had already visited the crime scene and that she did not see anyone setting the house on fire. According to her, Mohalladars informed her that the deceased's house was set on fire. However, she did not name any such person. The post-mortem of the deceased was conducted on the next day but she identified the dead body, but admitted that she knew Shamshad Bibi/PW-5 and Ghulam Rasool/PW-4. Before the occurrence. According to her, PW-3/Asif Faraz and PW-4/Ghulam Rasool were already present there. She also stated that Nadeem Haider/appellant was arrested on the night after occurrence and that neither Mst. Abida (deceased) had bad relation with her in-laws nor she had any doubt about illicit relationship of Mst. Abida (deceased) with the appellant. She had shown her lack of knowledge that Muhammad Nasrullah was declared innocent by the police. This suggests that there was no possible motive against the appellant to kill her. Likewise, Nazia Waheed/PW-2 made the supportive statement but she disclosed further information that it was the second marriage of Abida Bibi (deceased), the first was with her cousin, namely, Mehmood which remained for two years and there was no children from the said marriage as he was disabled. She volunteered that Nadeem Haider/appellant called Shahid, her husband in Dubai/Sharjah and informed him about the occurrence. This means that the appellant knew Shahid. Who did not allege the charge of murder against him. She also admitted that the deceased did not have illicit relation with Nadeem Haider appellant. She also admitted that her mother/complainant was at Sharaqpur at the time of occurrence then how could she be present simultaneously at Lahore. She did not witness who set the house on fire but had witnessed the dead body of Mst. Abida (deceased) in the house.
8. PW-3/Asif Faraz stated that he is the brother of Shahid and that he had seen in the morning that appellant was coming out of the house of Abida with speedy steps but he did not inquire about the well being of her Bhabhi who did not had a bad relation with her. He further stated that at the time of occurrence, he was present along with Umar Farooq (PW-6) and when they both entered into the street of the house of deceased, they noticed the fire. In the cross-examination he admitted that he is the son-in-law of the complainant (PW-1) which means that he is very closely related and that he reached the place of occurrence at 6.30 p.m. but the complainant (PW-1) reached after 7.30 p.m. where he met the complainant. The time of occurrence does not coincide. Ghulam Rasool/PW-4 statedly accompanied Asif Faraz/PW-3 who had seen the appellant coming out of the house of the deceased. According to him, he knew the appellant Nadeem Haider. He had seen him coming out of the house of the deceased at 10.30 a.m. situated at a walking distance. But he did not suspect the appellant at that time showing that there was nothing to be suspected. PW-5/Shamshad Bibi, the wife of Ghulam Rasool/PW-4 also stated at that time she accompanied her husband who also did not say a word about any possible motive. PW-6/Umar Farooq stated that he and Asif Faraz (PW-3), دیور of Abida received the information at 6.30 p.m. that Abida was missing and when they reached the place of occurrence, the house was already burning and they tried to extinguish the fire and the police took into possession bottle (P-1) in his possession which smelled petrol through recovery memo (Exh.PB). He did not state whether it had any petrol and did not state the details as to how the fire was extinguish. It shows that he was not present at the spot.
9. Muhammad Qaisar/PW-10 did not know even the name of owner of Askari Tailor Shop which is statedly run by the appellant. He did not mention the empty bottle lying next to bed of deceased. PW-11 is the Dr. Faiza Munir Kazmi and according to her the cause of death was dry flame burn and her tongue was bitten between the teeth. The burn was ante-mortem because typical vital reactions were present. The death was 100% ante-mortem burns which ruled out the possibility of asphyxia. She also suggests that Mst. Abida (deceased) died because of burn and not due to strangulation. PW-12/Muhammad Shahbaz is the investigating officer who stated that he does not remember the make of mobile phone relating to the CDR. He admitted that the Askari Tailor Shop was situated in Rehmani Bazar but did not record statement of its owner or any other shopkeeper. PW-13/Muhammad Ansar/Inspector is the Incharge Homicide Model Town Circle. Lahore and according to him the place of occurrence belongs to Afzaal Tokeywala but his statement was not recorded. He had seen the burnt body of Abida/deceased lying on the bed and in the room all articles were lying in the burnt condition which were taken into possession through recovery memo (Exh.PN). He also seized 1.5 liter empty pet bottle (P-1) and two burnt locks made of China (P-3 & P-3) through recovery memo (Exh.PB & Exh.PC) respectively. He prepared injury statement (Exh.PP). Inquest report (Exh.PQ) and application for post mortem examination (Exh.PR). He handed over the dead body to Qaisar and Shahbaz constables for postmortem which was conducted on 02.02.2016. He had arrested Nadeem Haider/appellant on 15.02.2016 which is against the statement of PW-1 who stated that he was arrested the same day of occurrence. He further disclosed in the cross-examination that when he reached the place of occurrence, the hoose was locked who also denied the suggestion that Abida committed suicide. He did not associate Afzaal Tokeywala in the investigation. He mentioned the name of Nasrullah in column No. 2 of report under section 173 Cr.P.C. as he was found innocent. PW-14/Ghulam Hassan, Forensic Scientist and according to him the finger prints on the bottle did not match with the finger prints of Nadeem Haider/appellant. PW-15/Aabad Ayoub, Forensic Scientist & Incharge of Polygraph who conducted polygraph test on the appellant who confessed the guilt before him. Such test is not the creating evidence against the appellant. Interestingly, such confession was not before any police officer, therefore, is not admissible CW-I/Makhdoom Saad is Junior Forensic Scientist. Crime Scene Investigation Department and according to him it is established that the scene was compromised when the processing of the scene was started and the search process was impeded due to intense smoke. He noticed unsafe conditions and no electricity at the scene. The details of the collected evidence was given in his statement. According to his observation the fire impact appeared as localized on the bed where the dead body was present. Heavy smoke was deposited on the walls and ceiling of the room. Fire initiation point could be the corner of the bed opposite to the entrance door of bed room. Heat damage was observed on the glass and metallic materials present in the bed room. No signs of short circuit were identified. According to him, the burnt plastic bottle, match box etc., were collected from the spot. It indicates that the turning triggered of possibly by the deceased herself since match box and bottle was found near her reach.
10. All these facts discussed above lead this court to an irresistible conclusion that it was an unseen occurrence as no one had seen the deceased being burnt to death. The prosecution evidence is available only to the extent that Ghulam Rasool (PW-4) and Asif Faraz (PW-3) had seen the appellant coming out of the house of Abida/deceased at 6.30 pm. If it was looked from outside then why he was not stopped and apprehended there and then. Interestingly, they did not try to go inside the house to save their Bhabhi if she was being burnt Even PW-1 and PW/2 reached at 7.30 pm. Later-in-time. They did not state a word regarding illict relation of the deceased with the appellant. She also did not say a word about strange relationship of deceased with her in-laws. However, PW-2 admitted that this was the second marriage of the deceased and that she has two daughters and her husband used to live abroad for the last 4/5 years. This may had been a cause of frustration of the deceased which probably had led to finish herself. The investigating officer PW-13 never interrogated her husband Shahid or the owner of the house. Afzaal Tokeywala whose statements were relevant in the unseen occurrence. The above facts are the dent in the prosecution story which is brought without motive and the direct evidence. Why visibly would appellant kill the deceased and what could be the possible motive to do so is shrouded in mystery. The crime scene was compromised. The investigating officer did not collect any relevant CDR to directly connect the appellant with the crime. The call made to PW-2 was not recognized as she knew the voice of Nadeem Haider/appellant so he did not call PW-2. All these are the prosecution lacunas which are sufficient to disbelieve the prosecution story, therefore, it can safely be concluded that the prosecution has not been able to prove the case against the appellant Muhammad Nadeem Haider beyond reasonable doubt. No iota of evidence was brought against Muhammad Nasrullah to malign him in this case, hence was rightly acquitted.
11. The upshot of the above discussion is that the prosecution has miserably failed to bring home the guilt of Nadeem Hinder/ appellant beyond reasonable shadow of doubt. The impugned judgment has been passed merely on conjectural and whimsical reasons, which cannot be approved of. The impugned conviction and sentence of the appellant, namely. Nadeem Haider is set-aside and he is acquitted of the charge. He shall be released forthwith if not required in connection with any other case. The Crl. A. No. 23637-2020 stands accepted However, the Crl.A.No. 17907-2020 filed by the complainant against acquittal of Muhammad Nasrullah/respondent and payment of compensation is dismissed.
(A.A.K.) Appeal accepted
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