PLJ 2024 Cr.C. (Note) 299
[Lahore High Court, Multan Bench]
Present: Muhammad Waheed Khan, J.
MUHAMMAD MUMTAZ--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 104-J of 2015, decided on 24.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Medical evidence--Testimony of chance witness--Delay in post-mortem--As per prosecution case, appellant committed murder of his wife in backdrop of suspicion of her bad character but record shows that these were mere oral assertions of complainant side and no other proof has been produced to prove this aspect of case--Be that as it may, without commenting much regarding authenticity of motive, Court have observed that motive is always considered as double-edged weapon--Both witnesses could not reasonably explain their presence at time of incident in house wherein alleged occurrence took place, rather their conduct ran against natural behavior of normal human being as had they been present there, they should have tried to save life of their sister-in-law in a situation when appellant was not equipped with any kind of weapon but instead of doing so, they ran away from spot, so, their testimonies are unbelievable, hence, discarded and other pieces of evidence motive part of incident and medical evidence, also do not lend any corroboration to ocular account and there is no cavil to proposition that prosecution is supposed to prove its case against accused “beyond reasonable shadow of doubt” and if any reasonable doubt arises from prosecution story, same shall be resolved in favour of accused but in instant case, Court find that prosecution story is replete with number of doubts on basis of which stance of eye witnesses cannot be believed--Appeal allowed.
[Para 10 & 11] E & F
1982 SCMR 1781; 1995 SCMR 1345 & PLD 2002 SC 1048.
Delay in Lodging FIR--
----There is no cavil with proposition that unexplained inordinate delay in lodging FIR is an intriguing circumstance, which tarnishes authenticity of FIR casting a cloud of doubt on entire prosecution case and has to be put into consideration while examining prosecution evidence. [Para 6] A
PLD 2019 SC 64; 2018 SCMR 326; 2008 SCMR 1210 &
PLJ 1995 SC 1.
Unexplained Delay in Post-Mortem--
----It is settled by now that unexplained delay in conducting postmortem suggests procuring/planting eye witnesses and fabrication of false story. [Para 6] B
2011 SCMR 1190.
Testimony of Chance Witness--
----There is no cavil to proposition that testimony of chance witnesses can be relied, if same is sufficiently corroborated by another independent evidence, which is missing in this case as there is no corroboration available to ocular account qua culpability of appellant. [Para 7] C
1995 SCMR 896; 2016 SCMR 2021 & 2018 SCMR 344.
Withholds Evidence--
----If any party withholds best piece of evidence then it can fairly be presumed that it had sinister motive behind it. [Para 8] D
2006 SCMR 1846 & 2010 SCMR 385.
Prince Rehan Iftikhar Sheikh and Mr. Muhammad Adeel Shah, Advocate for Appellant.
Mr. Muhammad Umer Farooq Khan, Additional Prosecutor General for State.
Mehar Muhammad Ilyas Wasli and Ch. Muhammad Umair Siddiq, Advocates for Complainant.
Date of hearing: 24.9.2024.
Judgment
Through the instant ppeal, appellant, Muhammad Mumtaz, has challenged his conviction and entence awarded to him by the learned Addl. Sessions Judge, Mian Channu, vide judgment dated 31.08.2015, passed in case FIR No. 305 dated 16.09.2013, registered under Section 302, PPC, at Police Station Chhab Kalan, Mian Channu, whereby he was convicted under Section 302(b), PPC and warded imprisonment for life as Ta’zir. He was also held liable to pay
Rs. 50,000/- to each legal heir of the deceased Kausar Bibi as compensation under Section 544-A, Cr.P.C. The compensation amount was ordered to be recoverable as arrears of land revenue and if not recovered, the appellant shall further undergo six months simple imprisonment on each default. Benefit under Section 382-B, Cr.P.C. was also extended to him.
2. Brief facts of the case as stated by complainant, Muhammad Ibrahim (since died) in FIR (Ex-PB), are that marriage of his daughter Kausar Bibi was solemnized with Muhammad Mumtaz (appellant) and three daughters and one son were born and both of them were living at Chak No. 105/15-L, Vanjari, Mian Channu in the house of one Malik Imtiaz Awan as the appellant used to cultivate his land on “Batai”. Both of them often used to quarrel with each other, on which complainant called his other sons-in-law, Muhammad Ashraf and Shamsher for reconciliation between them. On 05.09.2013, his son-in-law, Muhammad Ashraf called up the complainant that when he along with Shamsher went to Chak No. 105/15-L, Vanjari for patch up and at about 09:00 a.m., in their presence during reconciliation hot words were exchanged between Kausar Bibi and the appellant and in their view, the appellant started beating Kausar Bibi with the blows of fists and kicks, due to which she fell down on the ground and then the appellant pressed her neck with his hands and strangulated her. The motive behind the occurrence was that the appellant had suspicion upon the character of the deceased, hence, this case.
3. After registration of the case, investigation was carried out and on culmination of the same, the appellant was found guilty, so, report under Section 173, Cr.P.C. was submitted before the learned trial Court, whereby after completing codal formalities, charge was framed, which was denied by him, hence, trial commenced. The complainant in order to prove his case produced as many as six witnesses. Ocular account was furnished by Muhammad Ashraf (PW-2) and Shamsher (PW-3). Investigation of the case was conducted by Mulazam Hussain SI (PW-4) and Lady Dr. Sumera, who conducted postmortem examination of the deceased, appeared as (PW-5), whereas the remaining witnesses were given up being formal in nature and the prosecution after producing certain documents closed its evidence. Thereafter, statement under Section 342, Cr.P.C. of the appellant was recorded, in which he denied the allegation leveled against him. He neither opted to appear as his own witness under Section 340 (2), Cr.P.C., nor produced evidence in his defence. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct ‘beyond any shadow of doubt against the appellant, which resulted into his conviction and sentence as mentioned above.
4. In support of the instant appeal, learned counsel for the appellant has submitted that the impugned judgment was a result of non-comprehension of real facts and circumstances of the case and it is based upon surmises and conjectures, having no evidentiary foundation; that both the eye-witnesses have failed to establish their presence at the crime scene and their testimonies are not only contradictory to each other but also failed to inspire confidence; that there was considerable delay not only in lodging the FIR but also in conducting postmortem of the deceased; that medical evidence and evidence of motive are only corroboratory in nature and no implicit reliance can be placed on the same for conviction and sentence of an accused and finally prayed that since the prosecution has miserably failed to prove its case “beyond reasonable doubt”, hence, the impugned judgment is not sustainable, therefore, the instant appeal be allowed and the appellant be acquitted of the charge.
5. On the other hand, by taking exceptions to the arguments advanced by learned counsel for the appellant, learned Additional Prosecutor General assisted by learned counsel for the complainant, has submitted that the prosecution has proved its case ‘beyond shadow of doubt, against the appellant and successfully established his guilt by producing cogent, trustworthy and confidence inspiring evidence in shape of oral evidence, corroborated by medical evidence and motive part of the incident and the prosecution also remained successful to establish the guilt of the appellant during the course of investigation and also before the learned trial Court, which resulted into his conviction and finally prayed that since there is no force in the assertions of learned counsel for the appellant, hence, this appeal is liable to be dismissed.
6. I have heard arguments of learned counsel for the parties, gone through the record with their assistance and noticed that this unfortunate incident, in which one, Kausar Bibi, was done to death, took place on 05.09.2013 at 9:00 am. In the area of Chak No. 105/15-L, a place situated within the territorial limits of the above said Police Station, wherein according to the contents of FIR, appellant Muhammad Mumtaz, allegedly committed murder of his wife, Kausar Bibi, by strangulation, in the backdrop of a motive of suspicious character of the deceased. It is noticed that the alleged occurrence as stated in the FIR (Ex-PB) took place on 05.09.2013 at 9:00 am., whereas the matter was reported to the police on the next day i.e. On 06.09.2013 at 6:10 a.m. With a delay of twenty one hours and ten minutes, explanation of which has not been rendered by the complainant while lodging the same. It is further noticed that according to testimony of Lady Dr. Sumera, dead body of the deceased was brought to hospital on the next day of occurrence i.e. on 06.09.2013 and autopsy was conducted at 05:00p.m., which shows that autopsy on the dead body of the deceased was conducted after registration of case with further delay of thirty two hours of the occurrence. So, keeping in view the unexplained delay in lodging the FIR coupled with the fact that postmortem examination of the deceased was conducted with a noticeable delay of thirty two hours, I have reached to an inescapable conclusion that the FIR was recorded after consultation and deliberation. Thus possibility of fabrication of prosecution story and false implication of the appellant cannot be excluded altogether. There is no cavil with the proposition that unexplained inordinate delay in lodging the FIR is an intriguing circumstance, which tarnishes the authenticity of the FIR casting a cloud of doubt on the entire prosecution case and has to be put into consideration while examining the prosecution evidence. Reliance in this regard may be placed on the judgments rendered by the august Supreme Court of Pakistan in cases reported as “Mst. Asia Bibi v. The State and others” (PLD 2019 Supreme Court 64), Zafar v. The State and others” (2018 SCMR 326), “Ziaullah alias Jajj v. The State (2008 SCMR 1210) and “Mehmood Ahmad and 2 others v. State” (PLJ 1995 SC 1). As far as delayed postmortem on the dead body of the deceased as noted above is concerned, it is settled by now that unexplained delay in conducting postmortem suggests procuring/planting eye-witnesses and fabrication of false story. Reliance is placed on the cases titled as “Irshad Ahmed v. The State” (2011 SCMR 1190) “Khalid @ Khalidi and 2 others v. The State (2012 SCMR 327), “Muhammad Ashraf v. The State (2012 SCMR 419), “Ulfat Husain v. The State” (2018 SCMR 313) “Muhammad Yaseen v. Muhammad Afzal and another” (2018 SCMR 1549) and “Muhammad Rafique alias Feeqa v. The State” (2019 SCMR 1068).
7. Admittedly, complainant Muhammad Ibrahim was not the witness of the occurrence, rather according to the contents of the FIR (Ex-PB), it was his son-in-law Muhammad Ashraf, who informed about murder of his daughter Kausar Bibi, by the appellant. Said Muhammad Ashraf, while appearing in the dock as (PW-2), deposed that on 05.09.2013, he along with his brother-in-law (HAM ZULF) Shamsher, went to the dera of Malik Imtiaz early in the morning, they were sitting in the Bethik of Malik Imtiaz, where they tried to reconcile the matter between the spouses. The wife (Kausar Bibi) of the appellant was standing in the drawing room and in their view the appellant started beating Kausar Bibi with fists and kicks, due to which she fell down and then, he strangulated her with his hands and threatened them of dire consequences and thereafter, telephoned to their father-in-law Ibrahim regarding the murder of his daughter Kausar Bibi. Other eye-witness Shamsher appeared before the learned trial Court as (PW-3), who narrated the incident almost in a similar manner as deposed by Muhammad Ashraf (PW-2). To appreciate the claim of the above said PWs, I have gone through their evidence got recorded by the learned trial Court as (PW-2 & PW-3) and other relevant record and noticed that Muhammad Ashraf (PW-2) was the resident of Chak No. 717/GB, Tehsil Kamalia, District Toba Tak Singh, whereas second eye-witness. Shamsher (PW-3), was the resident of Chak No. 7/8-R, Tehsil Mian Channu, District Khanewal. It shows that these PWs were not the residents of the village, wherein the alleged occurrence took place. While responding to a query put to Muhammad Ashraf (PW-2) by the learned defence counsel, he replied as under:
“I do not remember the date of marriage of accused Mumtaz with Kausar Bibi, Kausar Bibi eloped with accused Mumtaz and afterwards they contracted love marriage. I do not know where they contracted love marriage. My wife Shamim Akhtar is elder than Kausar Bibi while the wife of Shamsher PW whose name I do not know is elder than Kausar Bibi as well. I was at the house of Shamsher PW on 04.09.2013. I do not know the exact distance from Chak No. 7/8.R. Mian Channu to Chak No. 105/15-L Vanjrai and I cannot tell how much time we took to reach from the house of Shamsher to Vanjrai. We started travel at about 05:00 am, and we took two to three hours for Vanjari Chak No. 105/15-L, Tehsil Mian Channи. We reached at the house of Mumtaz at about 07:00/07:30 am. It is incorrect to suggest that I suppressed real facts.”
Similarly, Shamsher (PW-3), while giving answer to a question put to him by the learned defence counsel replied as under:
“Complainant reached at about 05:00 p.m. We went to the dera of Malik Imtiaz at evening after Asar prayer. There was no dead body. Malik Imtiaz told us that dead body has been taken to Chak No. 14/W.B by accused. It was 9/10 p.m. when we reached at Chak No. 14/W.B. Vehari.”
There is yet another aspect of the case, which raises my eye brows qua the availability of these PWs that they have not advanced any plausible reason qua their visiting the house of the appellant and deceased Kausar Bibi as according to their own versions, they were not in visiting terms because the appellant had contracted marriage with Kausar Bibi after elopement. Learned defence counsel put question in this regard to Shamsher (PW-3), who replied in the following manner;-
“Mumtaz accused eloped Kausar Bibi deceased and contracted love marriage with her. I do not know where they got married. Kausar Bibi did not marry with the consent of her father.
We have not good terms with accused Mumtaz. There were bad terms with Mumtaz family for last 10/12 years.”
In view of the above excerpts from the testimonies of both PWs (PW-2 & PW-3), I have entertained no scintilla of doubt in my mind that both of them were the chance witnesses of the incident as they had not plausibly explained their presence at the crime scene. There is no cavil to the proposition that the testimony of chance witnesses can be relied, if the same is sufficiently corroborated by another independent evidence, which is missing in this case as there is no corroboration available to the ocular account qua the culpability of the appellant. Reliance in this regard may be placed on the judgments passed by the august Supreme Court of Pakistan titled as “Zafar Hayat v. The State” (1995 SCMR 896), “Muhammad Javed v. The State” (2016 SCMR 2021) and “Imtiaz alias Taj v. The State and others” (2018 SCMR 344).
8. Another aspect of the case is that as per claim of the prosecution the appellant along with Kausar Bibi (deceased) was living in the Dera of one Malik Imtiaz as he was cultivating his land on “Batai” and this factum has also been admitted by both the witnesses of ocular account (PW-2 & PW-3) and they have also claimed that both of them went to the house of said Malik Imtiaz on the day of occurrence in order to reconcile the dispute between the spouses and for this purpose they were sitting in Bethik of said Malik Imtiaz, whereas Kausar Bibi was standing in drawing room of the said house. Meaning thereby that the occurrence took place in the house of Malik Imtiaz, who being owner/inmate of the house was an important and star witness of the incident but astonishingly, neither he had been joined during the course of investigation nor was produced before the learned trial Court as witness. So, I believe that the prosecution has withheld most natural and important witness of the incident i.e. owner of the house where the alleged incident took place and the law is settled by now that if any party withholds best piece of evidence then it can fairly be presumed that it had sinister motive behind it. Reliance is placed in this regard on the cases of “Muhammad Rafique and others v. The State and others” (2010 SCMR 385) & “Lal Khan v. The State” (2006 SCMR 1846). This aspect of the case goes against the prosecution and presumption would be that any witness been produced before the learned trial Court, he would not have supported the prosecution version.
9. So far as the medical evidence is concerned, there is no cavil with the proposition that the same does not point out any accusing finger towards the culpability of the accused, rather it just explains the nature, seat of injuries, kind of weapon used therein, time elapsed between injuries and death, death and postmortem and its value is merely supportive in nature. Reliance in this regard may be placed on the judgment passed by the august Supreme Court of Pakistan in case of “Muhammad Saleem v. Shabbir Ahmed and others” (2016 SCMR 1605).
10. As far as the motive part of the incident is concerned, as per prosecution case, the appellant committed murder of his wife Kausar Bibi in the backdrop of suspicion of her bad character but record shows that these were mere oral assertions of the complainant side and no other proof has been produced to prove this aspect of the case. Be that as it may, without commenting much regarding authenticity of motive, I have observed that motive is always considered as double-edged weapon. Reliance is placed on the dictum laid down by the august Supreme Court of Pakistan in the case of “Sahib Masih and others v. The State” (1982 SCMR 178) wherein at Page No. 183, it had been observed as under:
“The motive by itself in a case like this, serves as a double-edged weapon. It could prompt false implication. It could as well prompt revenge in the form of aggression. In determining the intrinsic worth or consistency of the statement of eye-witnesses, the mere presence of motive is not sufficient.”
11. Viewing the facts of the case in its totality, I found that both the witnesses i.e. Muhammad Ashraf (PW-2) and Shamsher (PW-3) could not reasonably explain their presence at the time of incident in the house wherein the alleged occurrence took place, rather their conduct ran against natural behavior of normal human being as had they been present there, they should have tried to save the life of their sister-in-law Kausar Bibi, in a situation when the appellant was not equipped with any kind of weapon but instead of doing so, they ran away from the spot, so, their testimonies are unbelievable, hence, discarded and other pieces of evidence motive part of the incident and the medical evidence, also do not lend any corroboration to the ocular account and there is no cavil to the proposition that the prosecution is supposed to prove its case against the accused “beyond reasonable shadow of doubt” and if any reasonable doubt arises from the prosecution story, the same shall be resolved in favour of the accused but in the instant case, I find that the prosecution story is replete with number of doubts on the basis of which the stance of the eye-witnesses cannot be believed. Reliance is placed upon the judgments passed by the august Supreme Court of Pakistan in cases of “Tariq Pervez v. The State” (1995 SCMR 1345), “Ayub Masih v. The State” (PLD 2002 SC 1048) “Muhammad Akram v. The State” (2009 SCMR 230), “Muhammad Ashraf alias Acchu v. The State” (2019 SCMR 652), “Munir Ahmad and another v. The State and others” (2019 SCMR 79) and “The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others” (2021 SCMR 873).
12. Under the circumstances, the instant appeal is allowed while setting aside the conviction and sentence awarded by the learned trial Court through impugned judgment to the appellant, Muhammad Mumtaz and acquit him of the charge. He is on bail, so, his surety stands discharged from liability of bail bond.
(A.A.K.) Appeal allowed
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