2024 CCJ 23
Other citations: Original Judgment = 2024 PCrLJ 214
[Lahore High Court]
Before Shehram Sarwar Ch. and Muhammad Tariq Nadeem, JJ
Muhammad Saleem—Appellant
versus
The State and another—Respondents
Crl. Appeal No. 237968 and Murder Reference No. 340 of 2018, heard on 8th September, 2022.
HEADNOTES
(a) Criminal trial —
— Delayed post-mortem examination — Scope — Delay in post-mortem examination is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination on the dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of un-witnessed occurrence. [Para. No. 5]
Sufyan Nawaz and another v. The State and others (2020 SCMR 192); Muhammad Adnan and another v. The State and others (2021 SCMR 16); Pervaiz Khand and another v. The State (2022 SCMR 393) referred.
(b) Qanun-e-Shahadat (10 of 1984) —
— Art. 129(g) — Withholding best evidence — Scope — If any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. [Para. No. 7]
Pervaiz Khan and another v. The State (2022 SCMR 393) referred.
(c) Criminal trial —
— Dishonest improvements — Scope — A witness is untrustworthy if he makes dishonest improvements in his statement on a material aspect of the case in order to fill gaps in the prosecution case or to bring his statement in line with the other prosecution evidence. [Para. No. 8]
Naveed Asghar and two others v. The State (PLD 2021 SC 600); Khalid Mehmood and another v. The State (2021 SCMR 810) referred.
(d) Criminal trial —
— Motive — Scope — Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. [Para. No. 11]
Muhammad Ilyas and another v. Ameer Ali and another (2020 SCMR 305); Liaqat Ali and another v. The State and others (2021 SCMR 780); Khalid Mehmood and other v. The State and others (2021 SCMR 810) referred.
(e) Criminal trial —
— Duty of prosecution — Scope — The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person. [Para. No. 12]
Muhammad Mansha v. The State (2018 SCMR 772); Muhammad Imran v. The State (2020 SCMR 857); Najaf Ali Shah v. The State (2021 SCMR 736); The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others (2021 SCMR 873); Muhammad Ashraf alias Nikka v. The State (2022 SCMR 1328) referred.
(f) Criminal trial —
— Benefit of doubt — Scope — Multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient — It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. [Para. No. 12]
Muhammad Mansha v. The State (2018 SCMR 772); Muhammad Imran v. The State (2020 SCMR 857); Najaf Ali Shah v. The State (2021 SCMR 736); The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others (2021 SCMR 873); Muhammad Ashraf alias Nikka v. The State (2022 SCMR 1328) referred.
Sheeba Qaiser, Advocate for appellant.
Abdur Rauf, Deputy Prosecutor General for State.
Muhammad Ayub Sialvi, Advocate for complainant.
Date of hearing: 8th September, 2022.
JUDGMENT
Muhammad Tariq Nadeem, J:—Muhammad Saleem appellant was tried by the learned trial court in case FIR No. 131 dated 06.02.2018 for offences under sections 302, 311 PPC registered at Police Station Sadar, Faisalabad and vide judgment dated 13-09-2018 convicted and sentenced the appellant as under:-
Muhammad Saleem
Under section 302 (b) PPC
Death as Tazir for the murder of Mst. Kousar Bibi (deceased) along with compensation under section 544-A, Cr.P.C. of Rs.2,00,000/- to the legal heirs of deceased and it was ordered to be recovered as arrears of land revenue.
The appellant has filed appeal against his conviction and sentence whereas the learned trial Court has sent Murder Reference for the confirmation of death sentence of Muhammad Saleem appellant or otherwise. Since common questions of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.
2. The facts of the case have been stated by Ghulam Muhammad complainant (PW4) in his statement before the learned trial court, which are hereby reproduced for narration of the same:-
“Stated that on 06.02.2018, it was Tuesday. I alongwith Mukhtar Ahmad and Shaukat Ali PWs arrived at the residence of accused Muhammad Saleem in the last evening time. I alongwith said PWs remained constantly beseeching Muhmmad Saleem accused and his wife Mst. Kousar Bibi regarding their inter-se matrimonial hostilities and we stayed there. On the following morning, i.e. 06.02.2018, at about 07.00 a.m., after hearing hue and cry of quarrel, we attracted there, we saw that Muhammad Saleem accused was sitting at the chest of Mst. Kousar Bibi deceased who was lying on the ground at the carpet, the accused throttling her neck with his hands. We step forwarded to rescue her, but she succumbed to the above said throttling. In the meantime, the accused made good to his escape from the spot. The above said occurrence was witnessed by myself alongwith Mukhtar Ahmad and Shaukat Ali PWs. Motive behind the occurrence was that there was inter se hostilities between Muhammad Saleem accused and his wife Mst. Kousar Bibi, my deceased daughter, due to which accused Saleem (present before the Court) committed the murder of my deceased daughter.
3. Arguments heard and record perused.
4. As per contents of FIR, the alleged incident took place on 06.02.2018 at 07:00 a.m. and the matter was reported to the police on 06.02.2018 at 02:30 p.m. i.e. about 7 hours and 30 minutes after the incident. The distance between police station and the place of occurrence was 12 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, we hold that this delay in setting the machinery of law into motion speaks volumes against the veracity of prosecution version. Reliance is placed on case laws titled as “Altaf Hussain vs. The State” (2019 SCMR 274), “Ghulam Abbas and another Vs. The State and another” (2021 SCMR 23) and “Pervaiz Khan and another Vs. The State” (2022 SCMR 393).
5. We have also noted that the postmortem examination on the dead body of Mst. Kousar Bibi deceased was conducted on 06.02.2018 at 09.20 p.m. with the delay of nine hours and twenty minutes. So it was a case of delayed post-mortem, which casts serious doubt. It has been held repeatedly by the Hon’ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination on the deadbody of the deceased which happens only when the Complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Wisdom is derived from the judgments “Sufyan Nawaz and another vs. The State and others” (2020 SCMR 192), “Muhammad Adnan and another Vs. The State and others” (2021 SCMR 16) and “Pervaiz Khand and another Vs. The State” (2022 SCMR 393).
6. The ocular account of the incident in issue had been furnished by Mukhtar Ahmad (PW3) and Ghulam Muhammad complainant (PW4) inasmuch as Ghulam Muhammad complainant (PW4) was father and Mukhtar Ahmad (PW3) is close relative of the deceased. It is noteworthy that conduct of the above mentioned eye witnesses is highly unnatural. According to the statements of supra mentioned PWs on the fateful morning, they were in the house where the occurrence took place at 07:00 a.m. and saw that Muhammad Saleem, appellant was throttling Mst. Kousar Bibi (deceased), why they had not physically intervened especially when the appellant was empty handed. According to their statements, Mst. Kousar Bibi (deceased) made hue and cry, upon which her father Ghulam Muhammad, complainant (PW4), brother Shaukat Ali (jettisoned PW) and Mukhtar Ahmad (PW.3) close relative (سمدھی) of complainant attracted the place of occurrence. They were three male adult members whereas the appellant was alone and not armed with any weapon to terrify the prosecution eye witnesses from saving Mst. Kousar Bibi (deceased). It is not appealable to a prudent mind that if the above mentioned eye witnesses, who were closely related to the deceased were present at the house of occurrence, then as to why they did not physically intervene to apprehend the appellant after the occurrence. Under the circumstances, it can be safely held that both the above mentioned eye witnesses were neither present at the spot at the relevant time nor they had witnessed the occurrence. We may refer here the case of “Liaqat Ali Vs. The State” (2008 SCMR 95). Similar view was reiterated by the august Supreme Court of Pakistan in the cases of “Pathan Vs. the State”(2015 SCMR 315), “Zafar Vs. The State and others” (2018 SCMR 326) and “Shaukat Hussain Vs. The State” (2022 SCMR 1358).
7. Similarly, according to the prosecution evidence, at the time of alleged occurrence, five children of spouses were present at the place of occurrence at the relevant time. The eldest of them was daughter Mst. Saima, aged 12/13 years but not a single child was produced during the trial as a witness. In the given scenario, abandoning of the abovesaid witnesses obviously leads to an adverse inference in terms of Article 129 (g) of the Qanun-e-Shahadat Order, 1984 that had they been produced in the witness box, they might have not supported the prosecution case. We may observe here that if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Reliance in this respect is placed on the case of “Pervaiz Khan and another Vs. The State” (2022 SCMR 393).
8. We have also noted with grave concern that the witnesses namely Mukhtar Ahmad (PW.3) and Ghulam Muhammad, complainant (PW.4) have made blatant and dishonest improvements to their earlier statements. Mukhtar Ahmad (PW.3) was duly confronted with improvements and the relevant portion of his cross-examination highlighting those improvements is as under:-
….I got written in my statement before police that 06.02.2018 was Tuesday. Confronted with Exh.DA where Tuesday is not mentioned. I got written in my statement that we came at house of the accused in preceding night. Confronted with Exh.DA were it is not so recorded. I got written in my statement before police that we came at the place of occurrence and saw that deceased was lying on the ground and accused was sitting at her chest. I also got written in that statement that I alongwith Ghulam complainant and Shoukat Ali Pw saw the occurrence by our own eyes. Confronted with Exh.DA where the word by own eyes is not mentioned, however, it is recorded there that Pw alongwith complainant and Shoukat Ali Pw attracted at the place of occurrence after hearing hue and cry of deceased and tried to take her out of clutches of the accused.……”
Similarly, Ghulam Muhammad, complainant (PW.4) during his cross examination stated as under:-
“…. I got written in Exh.PC that 06.02.2018 was Tuesday. Confronted with Exh.PC where it is not recorded that said day was Tuesday. I got written in Exh.PC that I alongwith Mukhtar and Shoukat Ali PWs reached at the residence of accused Muhammad Saleem in the evening time of preceding night. Confronted with Exh.PC where it is not recorded. I did not get written in Exh.PC that in that night, we kept on advising the deceased and the accused to live with harmony. Voluntarily stated that my brother know it better. I was worried about my daughter, so, I do not know that I had got written in Exh.PC that “on the following morning” was written or not. However, it is written……”
In a slew of decisions, the Hon’ble Supreme Court of Pakistan has held that a witness is untrustworthy if he makes dishonest improvements in his statement on a material aspect of the case in order to fill gaps in the prosecution case or to bring his statement in line with the other prosecution evidence. Reference in this respect may be made to the judgments reported as “Naveed Asghar and two others Vs. The State” (PLD 2021 SC 600) and “Khalid Mehmood and another Versus The State” (2021 SCMR 810).
9. It is noteworthy that prosecution story is negated by the postmortem report (Ex.PE) wherein three injuries in the shape of bruise were found on the neck of Mst. Kousar Bibi (deceased) but Doctor Zuneera Misbah (PW.6) has stated in her cross-examination that hyoid bone was not broken and ribs as well as cartilages were not damaged. Although cause of death was manual strangulation (throttling) leading to Asphyxia, nonetheless, it does not appear to have occurred in the manner suggested in the crime report. Reliance is placed upon the case law titled as “Shaukat Hussain Vs. The State” (2022 SCMR 1358).
10. So far as the report of PFSA (Exh. PJ) regarding sample taken from neck of deceased gave for DNA of three individuals including the DNA of the appellant is concerned, we have noted that the same was not believed by the learned trial court for valid reasons and upon our own independent appreciation of evidence, we do not find any reason to differ with the well-reasoned findings of the learned trial court.
11. Now the only piece of evidence remains in field is the motive advanced by the prosecution behind the unfortunate incident, which, as per Ghulam Muhammad, complainant (PW4) and Mukhtar Ahmad (PW3) was the quarrel between the spouses but it was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive alleged by the prosecution. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the cases titled as “Muhammad Ilyas and another Vs. Ameer Ali and another” (2020 SCMR 305), “Liaqat Ali and another Vs. The State and others” (2021 SCMR 780) and “Khalid Mehmood and other Vs. The State and others” (2021 SCMR 810).
12. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. The Hon’ble Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772). Similar view was taken in the case of “Muhammad Imran Vs. The State” (2020 SCMR 857). Similar view was taken in the cases of “Najaf Ali Shah vs. The State” (2021 SCMR 736), “The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others” (2021 SCMR 873) and “Muhammad Ashraf alias Nikka Vs. The State” (2022 SCMR 1328).
13. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. So by extending the benefit of doubt to Muhammad Saleem, appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
14. Murder Reference No. 340 of 2018 is answered in negative and death sentence passed by learned trial court against Muhammad Saleem appellant is not confirmed.
Appeal accepted