PLJ 2024 Cr.C. (Note) 183
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Muhammad Amjad Rafiq, JJ.
versus
STATE and another--Respondents
Crl. A. No. 17089-J & M.R. No. 76 of 2020, decided on 13.5.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Inordinate delay--Last seen evidence--It case is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other neck of the accused. But if chain link is missing then its benefit must go to the accused--This inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version--Last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case--The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case--The prosecution could not prove its case against the appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. [Para 4 & 6] A, B, C, D & E
2016 SCMR 1605, 1992 SCMR 1047, 1996 SCMR 188, PLJ 1999 SC 1018, 2019 SCMR 274, 2022 SCMR 1527, 2022 SCMR 393, PLJ 2008 SC 687 and PLD 2018 SC 813.
Benefit of Doubt--
----It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. [Para 6] F
2009 SCMR 230.
M/s. Nighat Saeed Mughal, Ch. Najam-ul-Hassan and Amir Shoaib, Advocates for Appellant.
Rana Tasawar Ali Khan, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 13.5.2024.
Judgment
Shehram Sarwar Ch., J.--Shabbir Hussain, appellant was tried by the learned Addl. Sessions Judge/MCTC, Gujranwala in a private complaint under Sections 302, 365, 201, 147, 149 and 109, PPC instituted by Muhammad Arshad, complainant (PW.6) being dissatisfied with the investigation conducted by the police in case FIR No. 365 dated 18.05.2018, offence under Sections 302, 365, 212, 109, 201, 147 and 149, PPC, registered at Police Station Saddar Gujranwala District Gujranwala for the murder of Parveen Kanwal sister of complainant. vide judgment dated 20.02.2020 passed by the learned trial Court, Muhammad Arshad, appellant was convicted under Sections 302 (b), PPC and sentenced to death with a further direction to pay Rs. 5,00,000/- (rupees five lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. He was also convicted under Section 364, PPC and sentenced to ten years R.I. alongwith fine of Rs. 1,00,000/- and in default whereof to further undergo three months simple imprisonment. The appellant was further convicted under Section 201, PPC and sentenced to seven years imprisonment alongwith fine of Rs. 1,00,000/- (rupees one lakh only) and in default whereof to further undergo three months simple imprisonment. However, he was acquitted of the remaining offences. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 76 of 2020 for confirmation or otherwise the sentence of death of appellant as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Initially the machinery of law was set into motion on the written application of Muhammad Yousaf (PW not produced) on the basis whereof FIR (Exh.PJ) was registered mentioning therein that on 18.05.2018 at about 02:30 p.m. he was going on the bank of canal where he saw a dead-body of an unknown woman aged 35/40 years, having a sharp edged weapon injury on its head, was floating beside a tree who has been murdered by unknown accused at unknown place Thereafter, Muhammad Arshad, complainant (PW.6) moved an application (Exh.PA) stating therein that his sister Parveen Kanwal was married to Shabbir Hussain about 30 years ago who used to torture her and he had remained in jail in Saudi Arabia in connection with some narcotics case. Shabbir Hussain secretly contracted second marriage about ¾ months ago due to which his behavior got changed. The sister of the complainant purchased a house and Shabbir Hussain asked her to transfer the same in his name due to which she had come to the house of the complainant after locking the said house. On 08.03.2018 she instituted a suit for dissolution of marriage against Shabbir Hussain and subsequently withdrew the same on the assurance of her in-laws that Shabbir Hussain had left his second wife. The complainant party again sent Parveen Kanwal to the house of Shabbir Hussain. On 13.05.2018 at about 8:30 p.m. Shabbir Hussain, after leaving his children in the house of Parveen Kanwal, abducted Parveen Kanwal on the pretext of taking her medicine. At about 10:30 p.m. he came back alone and demanded key of his house from Shabana Bibi who asked him about Parveen Kanwal whereupon he showed his ignorance and subsequently disappeared. On 19.05.2018, on receiving information of a dead-body of a woman, the complainant and other PWs went to DHQ Hospital, Gujranwala and identified the dead-body of Parveen Kanwal. It was further alleged in the FIR that Shabbir Hussain and his co-accused namely Abid, Kalsoom, Shamim, Shoaib alongwith two unknown accused persons have committed the murder of Parveen Kanwal on the abetment of Hameedan Bibi, Shafique, Hafiz Shafqat, Abbas and Waheed.
Being dissatisfied with the investigation conducted by the police, the complainant instituted a private complaint titled as “Muhammad Arshad vs. Shabbir Hussain etc”, almost on same facts as narrated in the FIR.
3. We have heard arguments of learned counsel for the appellant as well as learned Law Officer for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.
4. The prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other neck of the accused. But if chain link is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as “Ch. Barkat Ali vs. Major KaramElahi Zia and another” (1992 SCMR 1047), “Sarfraz Khan vs. The State” (1996 SCMR 188) and “Asadullah and another vs. State” (PLJ 1999 SC 1018). The occurrence qua taking/abducting Parveen Kanwal by the appellant allegedly took place on 13.05.2018 whereas the matter was reported to the police by Muhammad Arshad (PW.6) on 19.05.2018 after the discovery of dead-body of Parveen Kanwal (deceased). The distance between police station and the place of occurrence is just five kilometers. There is a delay of about six days in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court Muhammad Arshad (PW.6) and other material prosecution witnesses did not utter even a single word about the above said delay. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274), “Abdul Ghafoor vs. The State” (2022 SCMR 1527) and “Pervaiz Khan and another vs. The State” (2022 SCMR 393). Admittedly, there was no direct evidence against the appellant. No one had seen the appellant while killing Parveen Kanwal (deceased) after her abduction. Furthermore, the role played by the appellant in the incident in issue had not been brought on record through any cogent and convincing evidence. The whole prosecution case is mainly based on the confession of appellant allegedly made by him before Muhammad Arshad (PW.6), Muhammad Ashraf (PW.7), Shabana (PW.8) as well as police party at the time of his arrest. Undeniably, under Article 39 of Qanun-e-Shahadat, Order 1984, confession by accused of his guilt under custody of police is inadmissible in evidence. Moreover, the appellant was not produced before the learned Area Magistrate soon after his arrest for recording his judicial confession. Furthermore, the dead-body of deceased was not recovered at the instance of appellant. The prosecution case is mainly based upon the statement of Shabana (PW.8). It was her claim that on 13.05.2018 Shabbir Hussain (appellant) and Parveen Kanwal (deceased) came to her house and asked her to keep their children Benish and Sajwal with her because they were going to take medicine. Thereafter, Shabbir Hussain (appellant) came back alone and demanded the key of his house. On inquiring about Parveen Kanwal the appellant did not reply and went away. Admittedly, the above said PW remained silent for about six days after the above said incident. Neither she informed the complainant nor reported the matter to the police qua missing of Mst. Parveen Kanwal (deceased). Such like conduct of above said PW is highly improbable. Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. Reliance is placed on case law titled as “Altaf Hussain vs Fakhar Hussain and another” (PLJ 2008 SC 687). Moreover, the Hon’ble Supreme Court of Pakistan in its judgment titled as “Muhammad Abid vs. The State and another” (PLD 2018 Supreme Court 813) has given an exhaustive view about the theory of last seen which is reproduced as under:
5. .. The theory of last seen together is one where two persons are ‘seen together’ alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other’s death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.
6. The foundation of the “last seen together” theory is based on principles of probability and cause and connection and required 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. Proximity of the crime scene. 3. Small time gap between the sighting and crime 4. No possibility of third person interference 5. Motive. 6. Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the Inference that it was the accused who committed the crime. There must be something more establishing connectively between the accused and the crime.”
Another intriguing aspect of the case in that during the course of Interrogation, a CCTV footage was obtained from the camera/DVR System installed at Sprit School in which Mst. Parveen Kanwal (deceased) was seen lastly in the company of appellant but this piece of evidence is of no avail to the prosecution because in the said CCTV footage the appellant was not seen while committing the murder of deceased. Moreover, Muhammad Tauqeer SI (CW.1) has stated in his cross examination that in the CCTV footage the faces of the deceased and accused were not visible. We have further noted that in the FIR as well as private complaint it was the case of complainant that the appellant and his accomplices namely Abid, Kalsoom, Shameem and Shoaib committed the murder of Parveen Kanwal after her abduction but all the above said accused persons were found not involved during the course of investigation. Motive behind the occurrence was that Shabbir Hussain secretly contracted second marriage about ¾ months ago due to which his behavior got changed. Parveen Kanwal (deceased) purchased a house and Shabbir Hussain (appellant) asked her to transfer the same in his name due to which she had come to the house of the complainant after locking the said house. On 08.03.2018 she instituted a suit for dissolution of marriage against Shabbir Hussain and subsequently withdrew the same on the assurance of her in-laws that Shabbir Hussain had left his second wife. The complainant party again sent Parveen Kanwal to the house of Shabbir Hussain but no solid evidence qua motive part of incident was produced by the prosecution during the trial. No independent witness qua strained relations between the spouses was produced by the prosecution at trial stage. Moreover, no documentary proof of suit for dissolution of marriage was got exhibited by the prosecution during the evidence. Therefore, we hold that prosecution has failed to prove motive against the appellant. So far as alleged recovery of pistol 30 bore at the instance of appellant is concerned the same is immaterial because the report of PFSA qua said weapon is in the negative. As far as alleged recovery of bughda at the instance of appellant is concerned the same does not advance the case of prosecution because it was not stained with blood. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605). Therefore, we hold the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining the convictions/sentences of the appellant.
5. So far as version of the appellant taken by him in his statement recorded under Section 342, Code of Criminal Procedure, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence version which is exculpatory in nature.
6. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is placed on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).
7. For the foregoing reasons, the appeal in hand filed by Shabbir Hussain, appellant is allowed, convictions and sentences awarded to him vide judgment dated 20.02.2020 passed by the learned trial Court are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Shabbir Hussain (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
8. Murder Reference No. 76 of 2020 is answered in the NEGATIVE and the sentence of death awarded to Shabbir Hussain (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
0 Comments