PLJ 2024 Cr.C. (Note) 103
[Lahore High Court, Multan Bench]
Present: Syed Shahbaz Ali Rizvi and Tariq Saleem Sheikh, JJ.
versus
STATE etc.--Respondents
Crl. A. No. 67076 & M.R. 337 of 2019, heard on 4.12.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-i-amd--Conviction and sentence--Challenge to--The occurrence was not witnessed by any private person while complainant (PW-2) and other two witnesses, police officials (PW-3 & PW-4), according to prosecution’s case, witnessed occurrence and being so, furnished ocular account--Delay in registration of FIR, in circumstances, occurred because of fact that occurrence remained unwitnessed, none from residents of area was ready to become complainant of case against appellant, father of poor deceased girl whereupon SI (PW-2) preferred to become complainant and prosecution story was fabricated thereafter--The appellant escaped towards west of place of occurrence but police officials, seven in number having an official vehicle with them neither chased culprit nor even attempted to do so which conduct is quite unnatural and improbable especially when place of occurrence was an open place not surrounded by population and Dera of appellant is lonely place which stands admitted by PW-2 at page 19 of paper book--This aspect of case also renders doubts about credibility of presence of eyewitnesses there and that of their testimony-- Similarly, with regard to motive, Investigation Officer concedes that question of illicit relations of poor girl with someone is a question that remained unsolved during investigation--So far as recovery of 30 bore pistol (P-1) along with two live bullets (P-2/1-2) is concerned, suffice to observe that when direct evidence is not trustworthy, conviction cannot be inflicted only on basis of supportive piece of evidence like recovery--In consideration of facts mentioned above, we are of opinion that evidence produced by prosecution being discrepant, improbable and swerving is not at all trustworthy and being so, prosecution remained fail to prove its case beyond shadow of a reasonable doubt--Appeal allowed.
[Para 7, 8 & 9] A, B, C, D, E & F
Ch. Nazir Hussain, Advocate for Appellant.
Ms. Maida Sobia, Deputy Prosecutor General for State.
Mr. Ghulam Shabbir Abbasi, Inspector/Complainant.
Date of hearing: 4.12.2023.
Judgment
Syed Shahbaz Ali Rizvi, J.--This judgment shall dispose of Criminal Appeal No. 67076 of 2019 filed by Muhammad Tariq, appellant against his conviction and sentence and Murder Reference No. 337 of 2019 sent by the learned trial Court for confirmation or otherwise of sentence of death awarded to Muhammad Tariq, convict as both have arisen out of same judgment dated 31.10.2019 passed by the learned Addl. Sessions Judge, Mankera in case FIR No. 105 dated 19.04.2019, offence under Sections 302 & 311, PPC registered at Police Station Mankera District Bhakkar whereby, the appellant was convicted under Section 302(b), PPC for the murder of Mst. Nadia Bibi, deceased and sentenced to death with the direction to pay Rs. 500,000/- as compensation to the legal heirs of deceased as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo imprisonment for six months.
2. Brief facts of the case, as disclosed by Ghulam Shabbir, SI/complainant (PW-2) in his complaint (Exh-PC) on the basis of which formal crime report (Exh-PC/1) was registered, are that on 19.04.2019 at about 02.30 p.m, the appellant while armed with .30 bore pistol committed the murder of his daughter Mst. Nadia Bibi by firing at right side of her head and the appellant fled away from the spot.
Motive behind the occurrence, as disclosed by the complainant, was illicit relations of the deceased.
3. Muhammad Tariq, appellant was arrested in this case by Muhammad Rafi, SI (PW-11) on 24.04.2019 who, on 28.04.2019 being in police custody, after making disclosure, got recovered .30 bore pistol (P-1) along with two live bullets (P-2/1-2) which was taken into possession vide recovery memo. Exh-PH. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial Court, after observing pre-trial codal formalities, framed the charge against the appellant on 24.05.2019 to which he pleaded not guilty and Claimed trial.
4. The prosecution, in order to prove its case, produced as many as eleven prosecution witnesses during the trial. Ghulam Shabbir, SI/ complainant (PW-2), Qamar-uz-Zaman, 854/C (PW-3) and Mst. Shahana Kausar 620/LC (PW-4) furnished the ocular account. Abdul Majeed 540/C (PW-7) is the witness of recovery of crime weapon at the instance of the appellant.
The medical evidence was furnished by Dr. Atia Sherazi (PW-9) who, on 19.04.2019 at 11.10 p.m. conducted post-mortem examination on the dead body of Mst. Nadia Bibi, deceased and noted two firearm injuries, one entry and one exit on her body. In her opinion, in this case, cause of death was Injury No. 1 which was sufficient to cause death in ordinary course of nature.
Muhammad Rafi, SI (PW-11) is the Investigation Officer of this case. Muhammad Shafiq Khan, Draftsman (PW-6) prepared scaled site plans (Exh-PG & Exh-PG/1) of the place of occurrence whereas, rest of the witnesses are formal in nature. Learned Assistant District Public Prosecutor gave up Imdad Hussain 739/C, Liaqat Ali 60/C, Muhammad Amir 583/C and Muhammad Azeem PWs being unnecessary and after tendering in evidence reports of the Punjab Forensic Science Agency (Exh-PL & Exh-PM) closed the prosecution evidence.
5. Statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898 was recorded wherein, he refuted the allegations levelled against him and professed his innocence. He further deposed that a false case had been registered against him and that neither the complainant nor the PWs was present at the place of occurrence at the relevant time. He also stated that Mst. Nadia Bibi was done to death in some mysterious circumstances and she committed suicide. He further asserted that nobody witnessed the occurrence and the police has fabricated a false story. He neither opted to appear as his own witness as provided under Section 340(2) of the Code of the Criminal Procedure, 1898 in disproof of the allegation levelled against him nor did he produce evidence in his defence.
6. Arguments heard. Record perused.
7. Admittedly, the occurrence was not witnessed by any private person while the complainant (PW-2) and other two witnesses, the police officials (PW-3 & PW-4), according to prosecution’s case, witnessed the occurrence and being so, furnished ocular account. Admittedly, the distance of police station from the place of occurrence as per relevant column of crime report is 19/20 Kilometers. The reason given by the complainant for availability of his team at the place of occurrence is that they were passing by that place in connection with compliance of certain orders of the superior authorities but no documentary evidence including Rapt No. 14 of the Daily Diary Register purportedly incorporated qua the departure of the witnesses from police station, has been tendered in evidence. The witnesses are not even consistent with regard to the distance between the place of occurrence and MM Road, a land mark as according to the Investigation Officer (PW-11), the distance between the two places was 7/8 Kilometers while PW-2 gives the same distance as 4 to 5 Kilometers. Per Qamar-uz-Zaman 854/C (PW-3), the distance is 10 to 15 Kilometers. Contrary to all Mst. Shahana Kausar 620/LC (PW-4) stated that the distance between the two places i.e. place of occurrence and MM Road is 300 yards. This material discrepancy regarding the distance between the place of occurrence and MM Road confirms that the witnesses actually did not visit the place of occurrence. We have also noticed that according to ocular account furnished by PW-2, PW-3 and PW-4, the occurrence took place at 02:30 p.m. while endorsement available under complaint (Exh-PC) reveals that the same was completed and dispatched towards police station at 03.30 p.m. but the FIR (Exh-PC/1) stands registered at 07.30 p.m. It is relevant to keep into consideration here that police party was even having an official vehicle with them bearing Registration No. BKA-8836 driven by Najeeb Ullah 647/C. No explanation for this inordinate delay has been given by the prosecution. We are of the opinion that the delay in registration of FIR, in the circumstances, occurred because of the fact that the occurrence remained unwitnessed, none from the residents of the area was ready to become complainant of the case against the appellant, father of the poor deceased girl whereupon Ghulam Shabbir, SI (PW-2) preferred to become complainant and the prosecution story was fabricated thereafter. It is not denied that none of the police officials including PW-2, PW-3 and PW-4 was previously acquainted with the appellant. The three witnesses even could not name the person who disclosed the name of the appellant to them. The appellant was not subjected to test identification parade. Perusal of scaled site plan (Exh-PG) reveals that the occurrence took place at Point No. 1 and the same was witnessed by the witnesses available at Points No. 4, 5, 6 and 7 i.e. in the South-East of Points No. 1 & 2. The appellant escaped towards west of the place of occurrence but police officials, seven in number having an official vehicle with them neither chased the culprit nor even attempted to do so which conduct is quite unnatural and improbable especially when the place of occurrence was an open place not surrounded by population and Dera of the appellant is lonely place which stands admitted by PW-2 at page 19 of the paper book. This aspect of the case also renders doubts about the credibility of presence of the eye-witnesses there and that of their testimony.
8. Similarly, with regard to motive, the Investigation Officer concedes that question of illicit relations of poor girl with someone is a question that remained unsolved during the investigation.
9. So far as the recovery of .30 bore pistol (P-1) along with two live bullets (P-2/1-2) is concerned, suffice to observe that when the direct evidence is not trustworthy, the conviction cannot be inflicted only on the basis of supportive piece of evidence like recovery.
In consideration of the facts mentioned above, we are of the opinion that the evidence produced by the prosecution being discrepant, improbable and swerving is not at all trustworthy and being so, the prosecution remained fail to prove its case beyond the shadow of a reasonable doubt.
10. In the light of above discussion, Criminal Appeal No. 67076 of 2019 filed by Muhammad Tariq, appellant is allowed, conviction and sentence awarded to him by the learned trial Court is set aside and he is acquitted of the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required to be detained in any other case.
11. Murder Reference No. 337 of 2019 is answered in the NEGATIVE and sentence of death awarded to Muhammad Tariq, convict is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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