PLJ 2024 Cr.C. (Note) 77
[Lahore High Court, Multan Bench]
Present: Muhammad Tariq Nadeem, J.
RAB NAWAZ--Appellant
versus
STATE and another--Respondents.
Crl. A. No. 500 & Crl. Rev. No. 214 of 2017, heard on 14.2.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/376/201--Qatl-i-Amd--Juvenile--Delay in FIR--Last seen evidence--Extra-judicial confession--Medical evidence contradicts--DNA profile not generate--Acquittal of--The appellant was declared juvenile under Juvenile Justice System Ordinance, 2000--Matter was reported to the police about 6 days after the incident--No plausible explanation for the aforesaid delay--Complainant had received information from the mouth of supra mentioned witnesses qua presence of his real sister deceased with the appellant and his co-accused why he remained mum till registration of FIR--There was no plausible reason qua deferring the matter till the registration of FIR--PW had narrated a fake and fabricated story of last-seen--The story of alleged extra judicial confession had been maneuvered--Appellant committed rape with deceased lady in the cotton crop--But vaginal swabs of the victim did not generate any DNA profile, therefore, no comparison could be made with DNA file of the accused--Medical evidence clearly contradict the version of the prosecution--Alleged recovery of sickle P-12 at the instance of the appellant--Said recovery was effected about 12 days after the incident and it is not expected from the appellant to keep such weapon--Appeal is acquitted.
[Para 2, 4, 6, 7, 8 & 9] A, B, C, D, E, F, G, H, I
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/376/201--Qatl-i-Amd--Delay in FIR about 6 days--Distance between police station and the place of occurrence is three kilometers. [Para 4] B
2014 SCMR 1968; PLD 2019 SC 64; 2019 SCMR 274;
2022 SCMR 393 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/376/201--Qatl-i-Amd--Last seen evidence--Last seen evidence is always considered to be a week type of evidence.
[Para 6] D
2008 SCMR 1103 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/376/201--Qatl-i-Amd--Extra-judicial confession--Extra-judicial confession attributed to the appellant was joint one, which is inadmissible in evidence. [Para 7] E
2006 SCMR 231; PLD 1961 FC 103-107; 2009 SCMR 166 ref.
Kh. Qaisar Butt, Advocate with Appellant.
Mr. Adnan Latif Sheikh, DPG for State.
Mr. Zahid Zafar Kamlana, Advocate for Complainant and for Petitioner in Crl. Rev. No. 214 of 2017.
Date of hearing: 14.2.2023.
Judgment
Through the titled Appeal filed under Section 410, Cr.P.C. Rab Nawaz appellant has called in question vires of judgment dated 08-04-2017 handed down by learned Additional Sessions Judge, Khanewal in case FIR No. 281/2012 dated 02-10-2012 under Sections 302, 376, 201, PPC, Police Station Kacha Khuh and at the conclusion of trial in the said case the Appellant was convicted as infra:-
Under Section 302(b), PPC
‘Life imprisonment for committing the murder of Mst. Shahnaz Bibi (deceased) and to pay compensation of Rs. 1,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further under six months SI.
Under Section 376, PPC
Ten years R.I. with fine of Rs. 20,000/- and in default of payment further undergo three months S.I.
Under Section 201, PPC
Two years R.I. with fine of Rs. 10,000/- and in default of payment further undergo one month S.I.
Benefit of Section 382-B, Cr.P.C. was also extended to him.
The appellant has filed his titled appeal against his convictions and sentences, whereas, criminal revision has been preferred by Muhammad Amin petitioner/complainant for enhancement of sentences of Respondent No. 2 by way of awarding maximum/major punishment as provided under the law. Since common questions of law and facts are involved, therefore, supra mentioned matters are being disposed of by means of this single judgment.
2. The prosecution case as unfolded in the FIR (Ex.PA) got lodged by Muhammad Amin, complainant (PW-4) is that his sister Mst. Shahnaz Bibi (deceased) was married with one Safdar Khokhar in Chak No. 109/15L Mian Channu. It was alleged that deceased's husband contracted second marriage and due to this reason the deceased had come to her house in Chak No. 24/10R Kacha Khuh. It was alleged that on 26.09.2012 at about 04.00/05.00 p.m. in the area of Chak No. 24/10R Police Station Kacha Khu, Mst. Shahnaz Bibi went to fetch fodder for goats in the cotton fields of one Manzoor Gujjar but she did not return. During her search Muhammad Ramzan and Muhammad Iqbal PWs told the complainant that they had seen Mst. Shahnaz (deceased), Rab Nawaz (appellant) and Shamshad Ramboo (since died) in the cotton fields of Manzoor Gujjar. When the complainant along with witnesses contacted the appellant and his co-accused, firstly they postpone it and thereafter confessed that they had committed rape with Mst. Shahnaz Mai and then committed her murder by removing her neck with sickle and threw her dead body in cotton fields for disappearance of evidence to screen out from the alleged punishment.
It is pertinent to mention here that co-accused of the appellant namely Shamshad alias Rambo died during trial and the appellant was declared juvenile under Juvenile Justice System Ordinance, 2000 and his case was tried separately.
3. Arguments heard and record perused.
4. As per contents of FIR, the alleged unfortunate incident took place on 26.09.2012 at 04:00/05.00 p.m. and the matter was reported to the police on 02.10.2012 at 11:00 a.m. i.e. about 6 days after the incident. The distance between police station and the place of occurrence is three kilometers. No plausible explanation for the aforesaid delay has been brought on record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, I hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case laws titled as Muhammad Rafique vs. The State (2014 SCMR 1698), “Mst. Asia Bibi vs. The State and others” (PLD 2019 SC 64), “Altaf Hussain vs. The State” (2019 SCMR 274) and Pervaiz Khan and another vs. The State (2022 SCMR 393).
5. The instance of the indictment, in a manner of speaking, principally pivots upon the conditional proof, which was in the idea of last-seen evidence, extra-judicial confession and recoveries.
6. First of all I would like to discuss the last seen evidence. To Prove the same, the prosecution has produced Muhammad Ramzan (PW6). It is noteworthy that supra mentioned PW is resident of the same vicinity. He stated that on 02.10.2012 he and Muhammad Iqbal (jettisoned PW) were present near Insaf Hotel in the area of Chak No. 24/10.R where Muhammad Amin complainant, Arshad and Liaqat Ali PWs met them. Muhammad Ramzan (PW6) and Muhammad Iqbal (jettisoned PW) inquired from them as for what purpose they had come there, upon which, they told that on 26.09.2013 at evening time Mst. Shahnaz Bibi sister of the complainant.had gone to cut fodder but she had not returned and is missing. On this above mentioned witnesses told that on 26.09.2012 at evening time they had seen Shahnaz Bibi (sister of the complainant) cutting fodder in the field of Manzoor Gujjar in the area of Chak No. 24/10R. They further informed that Shahmshad alias Rambo co-accused (since died) and Rab Nawaz (appellant) were also seen by them in that area. They told the complainant and other PWs that they should inquired about Mst. Shahnaz Bibi (deceased) from the appellant and his co-accused. It is noteworthy that when Muhammad Amin complainant had received information from the mouth of supra mentioned witnesses qua presence of his real sister Mst. Shahnaz Bibi (deceased) with the appellant and his co-accused why he remained mum till registration of FIR, More so, what was the reasoning about the non-disclosure of this fact meaning thereby that Muhammad Amin complainant has cocked up a false story and planted fake supra mentioned PW. Had he seen Shahnaz Bibi (deceased) in the company of the appellant and his co-accused he must disclose the said fact to the complainant just after missing of Shahnaz Bibi (deceased). I have noted that there was no plausible reason qua deferring the matter till the segistration of FIR. In the light of op-cit circs, I have no hesitation to hold that the above mentioned PW had narrated a fake and fabricated story of last-seen. Even otherwise, last seen evidence is always considered to be a week type of evidence, unless corroborated some other independent evidence. In this respect, the reference can be made to the case of Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103).
7. The evidence of extra judicial confession has been furnished by Muhammad Amin (PW-4) and Liaqat Ali (PW-5) inasmuch as PW-4 is brother, whereas, PW-5 is close relative of the deceased. They stated that they went to the Dera of Hassan Khan in the area of 24/10.R where the appellant and his co-accused were also present there. They inquired from Shamshad alias Rambo (since died) and Rab Nawaz (appellant) about the whereabouts of the sister of the complainant, whereupon, after some time the appellant and his co-accused confessed their guilt by stating that they committed rape with Shahnaz and after that cut her neck with sickle, thrown the dead body in the cotton crop of Manzoor Gujar and thereafter on the pretext of closing the gate, fled away from the said Dera, I have noted that extra-judicial confession attributed to the appellant was joint one, which is inadmissible in evidence. Moreover, unnatural conduct of the supra mentioned witnesses of extra judicial confession for not apprehending the appellant and not giving information to the police at once shows that the story of alleged extra judicial confession had been maneuvered and cooked-up afterwards to manage the false implication of the appellant. The evidentiary value of the extra-judicial-confession (joint or otherwise) came up for consideration before the August Supreme Court of Pakistan in the case reported as ‘Sajid Mumtaz and others vs. Basharat and others’ (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan has been pleased to lay emphasis as under:
“17. This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra-judicial-confession starting from Ahmad vs. The Crown (PLD 1961 FC 103-107) upto the latest. Extra-judicial-confession has always been taken with a pinch of salt. In Ahmad vs. The Crown, it was observed that in this country (as a whole) extra-judicial-confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial-confession, the Court must inquire into all material points and surrounding circumstances to ‘satisfy’ itself fully that the confession cannot but be true’. As, an extra-judicial-confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra-judicial-confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule of prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) To boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witness before whom extra judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
Another most important and natural purpose of making extra-judicial-confession is to seek help from a third person. Help is sought, firstly, when a person is sufficiently trapped and, secondly, from one who is authoritative, socially or officially.
As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial-confession have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial-confession. Such confessions by now have become the sings of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all, is the position or authority held by the witness”.
(emphasis supplied)
The above view has been reiterated in the case reported as ‘Tahir Javed vs. The State’ (2009 SCMR 166).
8. I have also noted that according to the prosecution story Rab Nawaz appellant committed rape with Shahnaz Bibi in the cotton crop of one Manzoor Gujjar but Lady Dr. Robina Kausar, WMO RHC (PW11) had noted as under:
“Incised wound 30 cm all around the neck, at the roof of the neck, head/neck was totally separate from the body, the dead body was totally perforated, maggots were present in body, foul smell was coming, muscles, skin totally were separate from the head skin and muscles. Head skin and muscles eaten by maggots, both hands and feet were bounded with red colour Shalwar from back of chest and back of thigh, skin and muscles were absent from neck, eaten by the maggots.
In my opinion death had occurred due to Injury No. 1 which was sufficient to cause death in ordinary course of nature.”
Furthermore, the supra mentioned Lady doctor had stated in her examination-in-chief which is as infra:
I had sent swabs for report of Chemical Examiner and DNA.Ex. PJ is the report of Chemical Examiner, according to which the swabs were not stained with semen. As per DNA test report dated 02.10.2012 Exh. PJ the (vaginal swabs of the victim did not generate any DNA profile, therefore, no comparison could be made with DNA file of the accused Shamshad alias Ramboo s/o Fakhar Masih and accused Rabnawaz son of Muhammad Yaqoob).”
In the eventuality of supra mentioned re-produced evidence, the medical evidence clearly contradict the version of the prosecution.
9. So far as the alleged recovery of sickle P-12 at the instance of the appellant from the Dera of Muhammad Hassan lying in an iron box is concerned, the same is immaterial because the said recovery was effected about 12 days after the incident and it is not expected from the appellant tto keep such weapon as souvenir because during the said period he had ample time to destroy the said weapon. Reliance is placed upon the case titled as Basharat and another vs. The State (1995 SCMR 1735).
10. Resume of the above discussion is that the prosecution has failed to prove its case against Rab Nawaz (appellant) beyond any shadow of doubt, therefore, I accept titled appeal filed by Rab Nawaz appellant, set aside his convictions and sentences recorded by the learned trial Court and acquit him of the charge by extending him the benefit of doubt. The appellant is on bail. His bail bonds and sureties shall stand discharged.
11. As a natural corollary, criminal revision filed by Muhammad Amin, complainant for enhancement of sentences of Respondent No. 2 by way of awarding maximum/major punishment as provided under the law stands dismissed.
(A.A.K.) Appeal allowed
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