PLJ 2024 Cr.C. (Note) 174
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Ali Zia Bajwa, JJ.
versus
STATE etc.--Respondents
Crl. A. Nos. 78686-J, 70240 & M.R. No. 339 of 2019,
decided on 19.12.2023.
Criminal Jurisprudence--
----Delay--It is established proposition of our criminal jurisprudence that where FIR is registered with a noticeable delay without any plausible justification, it is considered that such time was consumed in deliberation and consultation to cook up a fake story. [Para 7] A
2021 SCMR 23.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 34--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--As far as presence of eye-witnesses at place of occurrence at relevant time is concerned, in crime report it was specifically alleged by complainant that he along with other eye-witnesses was present there when appellant committed occurrence--According to prosecution version, one day prior to occurrence complainant and other PWs visited house of appellant in order to reconcile matter between spouses--While scanning record available on file Court have noticed that as per inquest report mouth and eyes of deceased were open--The doctor (PW-8) while appearing in dock on oath also stated that at time of autopsy she observed that eyes of deceased were semi- opened while her mouth was also open--The aforementioned facts suggest that dead body remained unattended after occurrence--Had prosecution witnesses been present over there as claimed by them particularly complainant, they would have attended dead body--It further creates doubt qua presence of eye-witnesses at place of occurrence--Where eyes and mouth of deceased were observed open in inquest report, Supreme Court disbelieved presence of eye-witnesses at place of occurrence at relevant time--Appellant is husband of deceased and presence of his DNA in nails of deceased seems natural as according to prosecution own version prior occurrence both spouses were living together along with their two minors kids--Even otherwise, DNA Test is a merely a corroborative piece of evidence, which cannot be considered as a conclusive proof and requires corroboration/support from other pieces of evidence--According to contents of crime report as well as evidence produced by prosecution, appellant used to demand amount of کمیٹی from deceased--However, except oral assertions of witnesses, no cogent evidence in this regard was brought on record--It does not appeal to common sense that on a petty matter, one can take life of his spouse leaving two minor kids orphan--Even otherwise motive is just a circumstance, which might lead appellant to commit occurrence and conviction cannot be maintained on motive alone--Facts and circumstances when evaluated on yardstick of judicial prescriptions laid down in various judgments, reflect that prosecution has failed to prove involvement of appellant in instant occurrence beyond reasonable doubt--Appeal allowed. [Para 8, 9, 11, 13 & 14] B, C, D, E & F
2017 SCMR 486 and 2023 SCMR 1698.
Benefit of Doubt--
----It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right. [Para 14] G
2021 SCMR 736 & 2018 SCMR 772.
Mr. Kamran Javed Malik, Advocate for Appellant.
Rai Akhtar Hussain, Additional Prosecutor General and Sultan Asghar Chattha, Deputy Prosecutor General for State.
Malik Nazim Ali Awan, Advocate for Complainant.
Date of hearing: 19.12.2023.
Judgment
Ali Zia Bajwa, J.--Through this single judgment, we intend to decide Crl. Appeal No. 78686-J/2019 titled ‘Muhammad Azeem vs. The State’ filed by Muhammad Azeem appellant against his conviction & sentence, Murder Reference No. 339/2019 titled ‘The State vs. Muhammad Azeem’ forwarded by the trial Court under Section 374 of the Code of Criminal Procedure, 1898 (hereinafter ‘Cr.P.C.) for confirmation or otherwise of death sentence awarded to the convict as well as Crl. Appeal No. 70240/2019 titled ‘Mehmood Ahmad vs. Zahid Kamal Pasha, etc.’ filed by the complainant against acquittal of co-accused, as these are arising out of one and the same judgment dated 21.10.2019 (hereinafter ‘the impugned judgment), passed by the Sessions Judge, Sialkot (hereinafter ‘the trial Court’).
2. Muhammad Azeem son of Shahid Kamal Pasha, caste Malik, resident of Post Office Kachhi Wala Chak No. 208/R-9, Tehsil Fort Abbas, District Bahawalnagar presently resident of Koarpur, Tehsil and District Sialkot (hereinafter ‘the appellant’) along with his co-accused Zahid Kamal Pasha and Nadeem Kamal Pasha (both since acquitted) was implicated in case F.I.R. No. 407/2018, dated 05.07.2018, offences under Sections 302 & 34 of the Pakistan Penal Code, 1860 (hereinafter ‘PPC’) registered with Police Station Muradpur, District Sialkot. He was tried by the trial Court under the afore-mentioned offences. Trial Court seized with the matter, vide the impugned judgment, convicted and sentenced the appellant as under:
Ø Under Section 302(b), PPC, sentenced to death as Ta’zir with direction to pay Rs 5,00,000/- as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C., to be recovered as arrears of land revenue, and in case of default in payment thereof, to undergo simple imprisonment for six months.
3. The prosecution story as given in the FIR (Exh.PB/1) reads as under:
جناب عالی!
گزارش ہے کہ سائل کور پور کا رہائشی ہے۔ جو کہ سائل کی بیٹی صائمہ محمود دختر محمود احمد کی شادی ہمراہ محمد عظیم ولد شاہد اقبال پاشا قوم ملک سکنہ ڈاک خانہ کچھی والا چک نمبر 208/R-9تحصیل فورٹ عباس ضلع بہاولنگر حال مقیم کور پور تحصیل و ضلع سیالکوٹ سے ہوئی تھی ۔ جو کہ سائل کی بیٹی اور داماد محمد عظیم کے درمیان اکثر اوقات گھریلو معاملات پر جھگڑا ہوتا رہتا تھا۔ جس وجہ سے میری بیٹی کافی پریشان رہتی تھی ۔ مورخہ 18-07-04 بوقت شام ویلہ سائل کی بیٹی صائمہ محمود متوفیہ میرے گھر آئی اور کہا کہ میرا خاوند مجھ سے معمولی معمولی باتوں پر لڑائی جھگڑا کرتا ہے اور مجھے کہہ رہا ہے کہ اپنا زیور اور کمیٹی کی رقم مبلغ 60000 روپے مجھے دے دو نہیں تو میں تم کو جان سے ماردوں گا جس پر سائل ہمراہ جاوید اقبال ولد محمد اکرم اور پرویز اقبال ولد منظور احمد اپنی بیٹی متوفیہ صائمہ محمود کے گھر گئے تو وہاں پر پہلے ہی موجود ملزم محمد عظیم مذکور اور اس کے برادران ندیم اقبال پاشا اور زاہد بیٹھے ہوئے تھے۔ سائل نے محمد عظیم مذکور کو سمجھایا کہ چھوٹی چھوٹی باتوں پر سائل کی بیٹی کے ساتھ جھگڑا نہ کرے لیکن ملزم مذکور کے برادران اور خود ملزم مذکور طیش میں آکر دھمکیاں دے رہے تھے اگر صائمہ محمود نے زیور اور پیسے نہ دیے تو اس کو جان سے مار دیں گے۔ میں نے ملزمان مذکور ان کی منت سماجت کی اور کافی سمجھایا اور رات کو کافی وقت گزر چکا تھا اور ہم وہاں سے اپنے گھر آگئے ۔ جو کہ مجھےخدشہ تھا کہ ملزمان دوبارہ میری بیٹی کے ساتھ جھگڑا نہ کریں تو امروز مورخہ 18-7-5 بوقت تقریبا صبح 30/00,9/10 بجے میں ہمراہ جاوید اقبال، پرویز اقبال دوبارہ اپنی بیٹی کے گھر پہنچے تو دیکھا کہ گھر کے دروازے کھلے ہوئے ہیں تو ہم گھر کے اندر داخل ہو گئے اندر سے کافی شور کی آواز آرہی تھی اور مسمیان ندیم اقبال پاشا اور زاہد للکارے مار رہے تھے کہ صائمہ محمود کو قتل کر دو اور مسمی محمد عظیم ملزم مذکور میری بیٹی کے پیٹ پر بیٹھا ہوا تھا اور اپنے دونوں ہاتھوں سے میری بیٹی کی گردن دبائی ہوئی تھی جب میں نے اپنی بیٹی کو چھڑانے کے لئے ملزم محمد عظیم کو روکا تو ملزم مذکور نے مجھے دھکا دیا اور ہماری مداخلت کرنے پر ملزمان محمد عظیم، ندیم اقبال پاشا اور زاہد وہاں سے تیزی سے بھاگ گئے جب میں نے اپنی بیٹی کو دیکھا تو اس کی گردن پر گہرے نیلے رنگ کے نشانات موجود تھے اور و ہ مر چکی تھی۔ جناب عالی! ملزمان مذکوران محمد عظیم نے میری بیٹی کو قتل کر کے اور ندیم اقبال پاشا اور زاہد نے ملزم محمد عظیم کا ساتھ دے کر نہایت گھناؤنے جرم کا ارتکاب کیا ہے ملزمان مذکوران نے جاتے ہوئے میری بیٹی کا زیور 5 تولے اور نقد رقم مبلغ -/60000 روپے اور موبائل فون ساتھ لے گئے۔ وقوعہ کو سائل کے علاوہ جاوید اقبال ولد محمد اکرم، پرویز اقبال ولد منظور احمد ساکنائے کور پور نے بچشم خود دیکھا۔ میرے ساتھ سخت ظلم ہوا ہے ۔ ملزمان کے خلاف اندراج مقدمہ کر کے قرار واقعی سزادی جائے۔
4. After registration of the case, the Investigating Officer conducted the investigation and recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. After completion of the investigation, report under Section 173, Cr.P.C. was prepared and submitted before the trial Court. The prosecution in order to establish its case produced twelve (12) prosecution witnesses. After the prosecution evidence, statements of the appellant and other co-accused, as envisaged under Section 342, Cr.P.C., were recorded wherein they pleaded their innocence and refuted all the allegations levelled against them in the prosecution evidence. Upon completion of the trial, the trial Court found the prosecution case against the appellant having been proved to the hilt, thus, convicted and sentenced him as mentioned and detailed above. However, Zahid Iqbal Pasha and Nadeem Iqbal Pasha co-accused were acquitted of the charges.
5. We have heard the arguments advanced by learned counsel for both sides and perused the record available on file.
6. In this unfortunate occurrence, as per prosecution version, the appellant has been saddled with the liability of ‘uxoricide’. According to prosecution version, the deceased was done to death by the appellant in the presence of the complainant and other eye-witnesses. But this Court has to evaluate from the facts and circumstances, whether evidence produced by the prosecution during the course of trial is sufficient to maintain conviction and sentence recorded against the appellant. Prosecution in order to establish its case produced evidence in the shape of ocular account, medical evidence, recovery and the motive.
7. In the instant case perusal of the record transpires that there is a delay of five hours and forty-five minutes in lodging the crime report. According to contents of the crime report the occurrence took place on 9:30/10:00 a.m. while the F.I.R. was registered at 3:45 p.m. Admittedly it is not the prosecution case that the occurrence took place in a barren area which could result into delay in reporting the matter to the police rather the place of occurrence was a residential house and according to the prosecution own version besides the complainant, PW-10 and Pervaiz Iqbal (given up PW) were also present there. Inter-se distance between the place of occurrence and the police station was hardly 4-KMs and there is no explanation why the matter was reported to the police belatedly. It is established proposition of our criminal jurisprudence that where the FIR is registered with a noticeable delay without any plausible justification, it is considered that such time was consumed in deliberation and consultation to cook up a fake story. In Ghulam Abbas[1] there was delay of five hours in lodging the crime report and the Supreme Court of Pakistan extended the benefit of doubt to the appellant in Para No. 4 of the judgment in the following terms:
“4. As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrence at about 05.00 am. and he had completed the police proceedings by 06.30 pm In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out.”
8. As far as presence of the eye-witnesses at the place of occurrence at the relevant time is concerned, in the crime report it was specifically alleged by the complainant that he along with other eye-witnesses was present there when the appellant committed the occurrence. According to prosecution version, one day prior to the occurrence the complainant and other PWs visited the house of the appellant in order to reconcile the matter between the spouses. It is also mentioned in the FIR that on that day (04.07.2018) the appellant was extending threats of dire consequences to the deceased. If this aspect is taken into consideration, there was sufficient time with the appellant to commit the occurrence and it does not appeal to reason that the appellant would wait for the arrival of the prosecution witnesses and then commit the occurrence in their presence, so that they may become witnesses in this case and depose against him. Presence of the eye-witnesses at the place of occurrence at the relevant time further becomes doubtful, considering the fact that according to the prosecution own version the appellant was not armed with any weapon while it has come in the evidence of Javed Iqbal (PW-10) that he was physically more powerful than the accused present in the Court, however, no effort whatsoever was made by any of the eye-witnesses to rescue the deceased or to apprehend the appellant. Relevant portion of the statement of PW-10 has been reproduced hereinafter:
“I am more powerful than accused present in the Court. I did not make any attempt to apprehend the accused when they were trying to make escape from the scene of occurrence.”
9. While scanning the record available on the file we have noticed that as per inquest report (Exh.PK) mouth and eyes of the deceased were open. The doctor (PW-8) while appearing in the dock on oath also stated that at the time of autopsy she observed that eyes of the deceased were semi- opened while her mouth was also open. The aforementioned facts suggest that dead body remained unattended after the occurrence. Had the prosecution witnesses been present over there as claimed by them particularly the complainant, they would have attended the dead body. It further creates doubt qua the presence of eye-witnesses at the place of occurrence. In Muhammad Asif[2] where eyes and mouth of the deceased were observed open in inquest report, the Supreme Court disbelieved the presence of eye-witnesses at the place of occurrence at the relevant time. Relevant portion of the judgment has been reproduced hereinafter:
“In column No. 8 of the inquest report, the eyes and mouth of the deceased were found open, thus, if the parents, witnesses, and the two close friends wore present then, at least after the death as is a consistent practice of such close relatives, they would have closed eyes and mouth of the deceased on his expiry. This fact by itself indicates that none was present with the deceased till his death and why his eyes and mouth remained open and were not set right by any one and his dead body was discovered late in the night.”
10. As mentioned earlier, Mehmood Ahmad (PW-9)/ complainant is father of the deceased, thus, he is a related witness. Although, mere relationship of the PW with the deceased is no ground to discard his evidence provided the same is straightforward and confidence-inspiring but Court, as a matter of caution, should insist on corroboration from the other independent evidence available on the record. Insistence on corroboration is not a rule of law but of prudence.[3] In Mst. Shazia Parveen[4] the Supreme Court of Pakistan observed as under:
“All the eye-witnesses produced by the prosecution were closely related to the deceased and they were admittedly chance witnesses who had failed to bring anything on the record to establish the stated reason for their availability near the deceased at the relevant time.”
11. During the course of the arguments, learned counsel for the complainant vehemently agitated that two left hand nail swabs of the deceased matched with the DNA profile of the appellant as reflected from the forensic report (Exh.PP). However, perusal of the report reflects that DNA profile obtained from item No. 2 (left hand nail swabs of the deceased) was found mixture of at least three individuals and the prosecution case is silent that who was the third person/contributor. Appellant is husband of the deceased and presence of his DNA in the nails of the deceased seems natural as according to prosecution own version prior the occurrence both the spouses were living together along with their two minors kids. Even otherwise, DNA Test is a merely a corroborative piece of evidence, which cannot be considered as a conclusive proof and requires corroboration/support from other pieces of evidence.[5] Relevant extract of the judgment in Atta-ul-Mustafa Supra has been reproduced hereinafter:
“Even otherwise, the DNA report cannot be treated as primary evidence and can only be relied upon for the purposes of corroboration .....
Similar view was held in the judgment of this Court in Khizar Hayat vs. Additional District Judge, Kabirwala and 2 others PLD 2010 Lahore 422. When ocular account has already been disbelieved by this Court, conviction of the appellant cannot be sustained on the basis of DNA report alone.
12. Next piece of evidence led by the prosecution is the recovery of mobile phone (P-4) of the deceased. According to the prosecution version, after recovery of mobile phone of the deceased, the same was identified by the complainant and in this regard identification memo. (Exh.PD) was prepared. However, bare perusal of the crime report reflects that no description/features of the mobile were given. Moreover, such details are also missing in the statements of the complainant and PW-10 made during the course of trial. As far as the recovery of Rs. 30,000/- from the appellant is concerned, admittedly no description of the currency notes was mentioned in the FIR. The appellant is none other but husband of the deceased, therefore, recovery of these articles cannot be taken into consideration to maintain conviction on capital charge.
13. As far as motive in this case is concerned, according to contents of the crime report as well as evidence produced by the prosecution, the appellant used to demand amount of کمیٹی from the deceased. However, except oral assertions of the witnesses, no cogent evidence in this regard was brought on the record. It does not appeal to common sense that on a petty matter, one can take the life of his spouse leaving two minor kids orphan. Even otherwise motive is just a circumstance, which might lead the appellant to commit the occurrence and conviction cannot be maintained on the motive alone.
14. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to prove involvement of the appellant in the instant occurrence beyond reasonable doubt. It is established principle of law that for extending the benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right. Respectful reliance can be placed on catena of judgments of the apex Court.[6] The Supreme Court of Pakistan in Najaf Ali Shah vs. The State – 2021 SCMR 736 observed as infra:
“It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner.”
Same principle was reiterated in a celebrated judgment of the Supreme Court of Pakistan in The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others 2021 SCMR 873 in the following terms:
“Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation”
15. In consequence of the aforementioned discussion, Crl. Appeal No. 78686-J/2019 is allowed. Resultantly, impugned judgment, passed by the trial Court, is set-aside and the appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case.
16. Murder Reference No. 339/2019 forwarded by the trial Court in terms of Section 374, Cr.P.C. for confirmation of death sentence awarded to convict/appellant fails, which is answered in negative. Death sentence is not confirmed.
17. For the reasons recorded in the preceding paragraphs as we have disbelieved the prosecution story, Crl. Appeal No. 70240/2019 is devoid of any merits, which is accordingly dismissed.
(A.A.K.) Appeal allowed
[1]. Ghulam Abbas and another vs. the state and another-2021 SCMR 23.
[2]. MUHAMMAD ASIF v. The STATE-2017 SCMR 486.
[3]. ANWAR SHAMIM and another vs. THE STATE 2010 SCMR 1791.
[4]. Mst. SHAZIA PARVEEN vs. The STATE-2014 SCMR 1197.
[5]. ATTA UL MUSTAFA vs. The STATE and another-2023 SCMR 1698, AZEEM KHAN and another vs. MUJAHID KHAN and others 2016 SCMR 274 and SALMAN AKRAM RAJA and another vs. GOVERNMENT OF PUNJAB through Chief Secretary, Civil Secretariat, Lahore and others – PLJ 2013 SC 107.
[6]. MUHAMMAD MANSHA vs. The STATE-2018 SCMR 772, The STATE through P.G. Sindh and others vs. AHMED OMAR SHEIKH and others -2021 SCMR 873, NAVEED ASGHAR and 2 others vs. The STATE-PLD 2021 SC 600 & AYUB MASIH vs. The STATE-PLD 2002 SC 1048.
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