2021 PLP 1828 (YLR)

MRS. RASHIDA ASAD, J.

Mst. Fareeda and Sidra who are inter se mother and daughter, hereinafter appellants, were indicted by learned Additional Sessions Judge-V, Malir, Karachi to face trial in FIR No.117/ 2016 dated 01.06.2016 (S.C. No. 461/2016) under sections 302/34, P.P.C., registered at Police Station Malir City, Karachi. On conclusion of trial, the learned trial court, vide its judgment dated 13.02.2018 (impugned judgment) convicted the appellants under section 302(b), P.P.C., for murder of Imran and sentenced them to suffer imprisonment for life (RI) and to pay compensation of Rs.3,00,000/- each to the legal heirs of the deceased, in default whereof to undergo six (6) months S.I. Benefit of section 382-B, Cr.P.C., was also extended to them.

2. Briefly stated, the facts of the case as divulged from the FIR (Ex. 4-A) are that on 31.05.2016, at 11:30 p.m., complainant Muhammad Yaqoob Khan was present in his house when his mother informed him that Komal, sister of fianc e of his younger brother Imran, (hereinafter deceased) had informed her on phone that a quarrel was taking place among the deceased and appellants. On receiving such information, he along with his mother proceeded to the house of the appellants on a motorcycle and when they were on the way, his brother Muhammad Kamran and cousin Waqas who were also on a motorcycle also joined them. When they reached at the house of appellants they found Imran lying on a cot unconscious in a Varanda. He noted two injuries on deceased's chest and abdomen and as such he along with his brother Kamran took Imran to Khumini Hospital where a Doctor declared Imran dead half an hour before. Complainant further disclosed that he went back to his house along with his mother. For postmortem the dead body was shifted to JPMC on an ambulance by his brother Kamran and uncle Nadeem. Complainant further disclosed that on enquiry from neighbours he came to know that deceased Imran came to the house of his fiancee Sidra at 11:00 p.m., where Komal, Sidra their mother Fareeda and uncle Asif were present and on some issue between them a quarrel took place as a result whereof his brother was done to death by Sidra, Mst. Fareeda and Asif by causing churri blows. Complainant lodged the FIR on 01.06.2016 at 2020 hours after burial of the deceased.

3. After completing the usual investigation, police submitted challan against the appellants for their trial under section 302/34, P.P.C.

4. Charge against the appellant was framed by the trial court at Ex.2, to which they pleaded not guilty and claimed trial.

5. In order to prove its case the prosecution examined 06 witnesses (PW's) and thereafter prosecution side was closed vide statement Ex.14.

6. Statements of the appellants were recorded under section 342, Cr.P.C. (Ex.15 and Ex.16) wherein they have denied the allegations/charge. The appellants, however, did not examine themselves on oath and also did not produce any evidence in their defence.

7. The facts of the case and evidence produced before the trial court elaborately depict and found discussed by the learned trial court in the impugned judgment which reveals that evidence of the complainant was considered to be convincing, cogent and confidence inspiring to hold the appellants guilty of the offence alleged against them for the reason that dead body of the deceased and crime weapon was recovered from the house of the appellants. Admittedly, the only eye-witness of the incident is PW-4, Komal, a young girl and resident of the same house and daughter of appellant Fareeda and sister of appellant Sidra. Komal deposed in her testimony that the deceased committed suicide by stabbing himself after causing injury to appellant Sidra, she was got declared hostile and cross-examined by prosecutor as well as by counsel for the appellants.

8. I have learned counsel for the appellants and learned A.A.G. at length and have perused the available record with their assistance.

9. Learned counsel for the appellants contended that impugned judgment is perverse, bad in law, result of misreading and non-reading of evidence and based on surmises and conjectures. The learned counsel vehemently argued that there is no iota, whatsoever, to prove charge of murder of deceased Imran by the appellants but on the contrary there are material and glaring contradictions in prosecution's evidence which simply cast doubt on the prosecution's case culminating into right of benefit of doubt to the appellants. Per learned counsel the trial court erred in taking evidence of PW-4, Komal as corroborative evidence by making pick and choose and unlawfully discarded her testimony on material points which emanates and tantamount to demolish the charge against appellants.

10. On the other hand learned DPG appearing for the State fully supported the impugned judgment and submitted that the appellants were named in the FIR and the statements of prosecution witnesses are sufficient to connect the appellants with the commission of offence, where a young person was done to death; that PW-4, Komal, who supported the prosecution case in her statement recorded under section 161, Cr.P.C. and the fact that she had now been influenced to change her mind at trial for not supporting the prosecution's case was not fatal as the fact that a witness had turned hostile would not immediately collapse the prosecution where there was other supportive, circumstantial and corrobora-tive evidence as in this case.

11. For using the testimony of P.W-4 Komal as corroborative piece of evidence against appellants inasmuch to convict them for the offence under section 302, P.P.C., it is significant to refer the cross-examination of said witness by the prosecutor after declaring her hostile, "It is incorrect that as per my statement to police my sister Sidra snatched the knife from Imran and stabbed him". This is the only suggestion put to the witness. I wonder to find with the assistance of learned DPG, that after such suggestion to witness whether her statement under section 161, Cr.P.C., was confronted to her to surface on record that her reply was not correct and that at trial she has changed her statement, but found nothing in this respect. Had it been established that she deposed falsely, she must, have lost credibility and trust.

12. The occurrence in this case, as per prosecution, took place on 31.05.2016 between 10:30 to 11.30 pm as it gathers from evidence of PW-1 (Complainant) Muhammad Yaqoob and PW-2 Muhammad Kamran (both brothers of the deceased) who stated to have reached at the place of occurrence along with their mother (given up) on her information that she had received call from PW-4, Komal that a quarrel was taking place between the deceased and the appellants. PW Muhammad Yaqoob further stated that "It was 11:45 pm when we reached at the house of Fareeda, found Imran lying on a cot having two injuries on chest and an injury on abdomen". On this particular point, the statement of PW-2 Muhammad Kamran is "We saw that my brother was lying on the cot and his body was wet with water. We removed his shirt and found stab wound on his abdomen". Statements of both the witnesses as regard to number of injuries seen on the body of deceased do not seem to be mutually in harmony.

13. Next relevant situation evolves around the fact that at first instance the deceased was taken to a nearby Hospital namely Khomani. In this respect PW Muhammad Yaqoob deposed "I took Imran on motorcycle to Khumani Hospital along with my younger brother Kamran, where on examination Medical Officer informed me that Imran had died half an hour back". He has not disclosed about time when they reached at hospital. On this series of fact PW Muhammad Kamran stated "My brother took him on his lap and shifted him Khomani Hospital which was near to spot, where he was declared as dead about 30 minutes back. Then we shifted him to JPMC where police also reached and inspected the dead body of deceased Muhammad Imran". In cross-examine he stated that it was about 11:00 p.m. when they took the dead body from the house of appellants to Khomani Hospital, whereas according to statement of Muhammad Yaqoob they reached at the house of appellants at about 11:45 p.m. On scrutiny of statement of PW-2 a sheer and glaring contradiction was noted on the fact that this witness stated that they (means who took deceased to Khomani Hospital) shifted body of deceased to JPMC. Whereas, PW Muhammad Yaqoob deposed that "I was advised by the Doctor that since it was police case, therefore, we would bring dead body to JPMC for its autopsy. Thereafter, I along with my mother came to house, however, Kamran and my uncle Nadeem Khan took the dead body to JPMC for its postmortem". PW Nadeem and Waqas were given up at trial and as such it is hardly possible for a judicial mind to reconcile and accept evidence of both prosecutions' witness being sufficient on this single fact if taken into consideration with the statement of PW-3, Dr. Nasreen Qamar who conducted postmortem of dead body. She has stated that dead body was brought at JPMC by ASIP Abdul Rashid of Police Station Malir City. The untrustworthiness of prosecution witnesses is apparent on the face of the record as PW-6 Abdul Rasheed, who according to statement of PW-3 brought the dead body at JPMC, has made a quite contradictory statement that during his duty hours he received intimation through MLO Dr. Shahzad about a dead body brought at JPMC. PW Nadeem was cited witness of arrest of appellants, recovery of crime weapon, site inspection, memo of inspection of dead body, Inquest Report and memo of handing over of dead body. Withholding or giving up of best witness causes a reason to draw lawful inference that such witnesses, if examined, might not have supported prosecution.

14. Apart from the above, there is another missing link of fact and evidence of shifting of deceased to Khumani Hospital by the said prosecution witnesses as stated by them. According to inquest report and memo of examination of dead body, fresh blood was found on the wears of deceased. It is quite natural that a person who lifts an injured or a dead body who had received injuries with a large knife, a little time before lifting, must receive blood on his clothes and the vehicle used for transportation shall also get smeared with blood. None of the said PWs produced their wears which might have smeared with blood while carrying the dead body. Motorcycle used for shifting of dead body was also not produced or seized. No one from Khumani Hospital was examined in corroboration of statements of said witnesses. Fact of shifting of dead body on a motorbike also does not appeal to a prudent mind.

15. In chronological order the next step taken, as stated by complainant Muhammad Yaqoob, was lodging of FIR who deposed in evidence; "After leaving my mother at home, I went to the house of Fareeda. When I reached at the house of Fareeda, no electric light was there due to load shedding. On my enquiry from neighbourer, I came to know that Sidra, Koomal, Asif and Freeda were in their house, wherein a quarrel took place. As a result Imran was done to death. On 01.06.2016 I went to PS and lodge FIR, which I produce as Exb. 4/A and say that it is same, true and correct and bears my signature. I had shown place of occurrence to the police, whereby Sidra and Fareeda were arrested. Besides, Sidra produced crime weapon viz, Churri by which my brother Imran was done to death. Police prepared such memo of arrest of the accused, which I provide as Exb. 4/B and say that is same true, correct, bears my signature as well as signature of mashirs Muhammad Yaqoob and Muhammad Nadeem. Again the police brought at venue of occurrence, whereby they secured blood stained earth, as well as packet of Morven cigarette and match. The Churri/Knife, blood stained stings of cot, blood stained earth and cigarette packet along with match were sealed separately. Such memo bears my signatures as well as signature of same mashirs".

16. A very glaring and sheer contradiction floats on surface of statement of complainant (PW-1). His statement depicts that on registration of FIR on 01.06.2016, the appellants were arrested and crime weapon was also seized and such memos were prepared at spot. Whereas, both memos simply, plainly and sufficiently negate the statement of the complainant which on the face of it, reflect to have been prepared on 02.06.2016. Contents of the FIR to this affect also contradict the statement of complainant. It appears from recital of FIR that it was registered on 01.06.2016 at 2020 hours after burial of the deceased and it was against appellants and one Asif reported to be uncle of appellant Sidra. Keeping aside other serious discrepancies floating on surface of the case, a very serious point require consideration which is that alleged role of Asif in murder of the deceased has not been investigated. Such inaction of police makes the entire matter very fishy as to role and involvement of appellants in the alleged offence. Moreover, succinctly, if entire evidence is thrashed in juxta position to each other, registration of FIR after deliberation cannot be ruled out. Similarly, investigation as regard to recovery of incriminating articles etc and preparing of respective memos appears to be arranged. Notably, the memo of handing over of dead body (Ex-05/C) does not contain time and there is no oral evidence to this effect. According to statement of PW-3, the dead body was brought at JPMC by ASIP Abdul Rasheed of Police Station Malir City, Doctor Nasreen Qamar, carried out postmortem of the dead body at 03:45 a.m. on 01.06.2016 and completed the same at 05:30 a.m. In cross-examination PW-6, ASI Abdul Rasheed has stated that postmortem of the deceased was conducted before preparing inquest report. It means that he consumed good amount of time in completion of inquest report (Ex-5/ B) after postmortem, procedure for handing over of dead body to family members of the deceased vide memo Ex-5/C (which does not contain time) then it is quite impossible that said PW could have returned to Police Station (which is at least 16 km from JPMC) at 0545 hours what same reflect from Station Diary No. 66 produced as Ex-13/B. It is also quite astonishing to note that PW who brought dead body at JPMC at about 12:50 a.m. has produced station diary Ex-13/A, containing time of receipt of information from MLO at 0125 hours and thereafter his purported departure to Hospital. There is another important aspect that FIR was not lodged till the time the said PW assumed his next day duty.

17. There is delay of more than 21 hours in lodging of the FIR. It is observed that delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful. Such a delay is even more fatal when the police station, besides being connected with the scene of occurrence through a metalled road, was at a distance of 03 kilometers from the latter. Reliance in this behalf is placed to the case titled as Zeeshan alias Shani v. The State (2012 SCMR 428). In the case titled as Noor Muhammad v. The State (2010 SCMR 97), it was held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in lodging the FIR, which time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. Thus, I am of the view that in the facts and circumstances of the case, the explanation given by the prosecution is not plausible.

18. PW-5, SIP Muhammad Riaz Ghuan, the investigation officer disclosed in statement that investigation of the case was entrusted to him on 02.06.2016 and it was thereafter that he called complainant at about 09:00 am for site inspection, recovery of incriminating articles including knife, blood stained soil/ earth and strings of cot etc. Nevertheless, such statement already stands belied in the context of statement of complainant PW-1, who disclosed that after leaving his mother at house he went to Police Station and lodged FIR on the night of incident and right thereafter the appellants were arrested and knife was seized, said statement of the Investigation Officer stands contradicted by the statement of complainant who stated in cross-examination that call was received on his uncle's cell phone and in the wake of such call they reached at the house of appellants at about 9:30 pm and he along with police remained there till 11:00 p.m. Even otherwise, production of blood stained knife by the appellant after about 36 hours does not appeal particularly in the context of statement of PW-1 and PW-2 who stated that dead body was washed before they saw it. Even leaving cot stained with blood till such time is unimaginable and such seizure of blood stained strings is also improbable and hence doubtful rather the same appears to be planted. Chemical examination report to the affect that all the articles were found blood stained without grouping and matching of such blood with the blood of deceased is of no support to the prosecution's case. The statement of complainant PW-1 that "again the police brought me at venue of occurrence, whereby they secured blood stains of strings of cot and blood stained earth as well as ... ...." further makes the prosecution's case narrative and evidence sketchy, arranged and foisted unsupported by iota of cogent, reasonable and confidence inspiring evidence. There are glaring and sheer inconsistencies, contradictions and short coming in the prosecution evidence. Circumstances, foundational facts of case and evidence which had a serious reflections on the version of the prosecution when put together and thread bare analyzed, it made prosecution version, as regard to involvement of appellant in the case, implausible, flimsy and uncanny as set forth. The only eye-witness of the case (PW-4 Komal) has made exonerating statement as regard to commission of offence of murder of deceased by appellants.

19. As far as the credibility of the statement of said witness is concerned, that cannot be discarded out rightly; reason that despite she was declared hostile and cross-examined by prosecutor, prosecution could not shake her testimony and credibility. It is settled law that the hostile witness may be a truthful witness and a witness does not lose credibility merely on the ground that he had turned hostile. Court should take into consideration entire evidence of such witness to see whether any part of his/her evidence was worthy of belief in the light of the other evidence, and testimony of such witnesses cannot be discarded altogether and has to be considered like the evidence of any other witness, but with a caution. Reliance in this regard is placed upon the cases of Zarid Khan v. Gulsher and another 1972 SCMR 597, Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214, Islam v. The State PLD 1962 Lahore 1053, Kaloo and 2 others v. The State 1973 PCr.LJ 334 and Muhammad Luqman v. The State 1989 MLD 1708.

20. Apart from other glaring improbabilities and discrepancies in the prosecution version and available evidence as discussed in the preceding paragraphs, I have noticed that complainant has deposed that mohalla people informed that his brother deceased Imran came to the house of appellants at 11:00 p.m. and he was done to death by the appellants. But not a single witness from the locality has been examined in corroboration of statement of complainant. On the touchstone of established commandment of law that prosecution has to prove its case against accused beyond even a slightest doubt that he/she cannot be convicted merely for the reasons that his/her defense was either not plausible or convincing inasmuch the accused can take a number of pleas and even if all are shown to be false, yet it is the duty of the prosecution to prove its case to the hilt; "better that ten guilty persons escape than that one innocent suffer". Reliance is placed on PLD 2011 SC 554 (556). To sum up discussion for arriving at pragmatic and lawful conclusion and findings, I consider it to seek support from a recent authoritative pronouncement of the Hon'ble Supreme Court reported in PLD 2019 SC 64 which reads as under: (d) Criminal Procedure Code (V of 1898)

S. 154

Delay in lodging First Information Report (FIR)

Effect

In absence of any plausible explanation, the Supreme Court had always considered the delay in lodging of FIR to fatal and it casted a suspicion on the prosecution story, extending the benefit of doubt to the accused...if there was any delay in lodging of FIR and commencement of investigation, it gave rise to a doubt, which, could not be extended to anyone else except to the accused. (f) Criminal trial

Benefit of doubt

Scope

For the accused to be afforded the right of benefit of the doubt

It was not necessary that there should be many circumstances creating uncertainty

If a single circumstances creating un-certainty

If a single circumstance created reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as a right. .. (j) Criminal trial

Presumption of innocence

Scope

Such presumption remained throughout that the case until such the prosecution on the evidence satisfied the Court beyond reasonable doubt that the accused was guilty of the offence alleged against him. (k) Criminal trial

Standard of proof

Scope

Suspicion howsoever grave or strong could never be a proper substitute for the standard of proof required in a criminal case i.e. beyond reasonable doubt.

21. As discussed hereinbefore, evidence of PW-1, PW-2, PW-5 and PW-6 have been noticed, with serious concerns, to be untrue and as such not worthy of reliance. On the face of it the investigation proceedings have been found to be manipulated, arranged and concocted which is fatal to the prosecution case to the effect of recovery of crime weapon (knife), blood stained strings, soil (earth) wears of deceased, removal of dead body from the place of occurrence to JPMC and registration of FIR. Evidence of PW-3 does not lend corroboration to the evidence of said prosecution witnesses, rather, it negated the prosecution's version that dead body was brought to JPMC by the brother and uncle of the deceased. Such destructive prosecution evidence and omission to investigate any possible role of Asif into the occurrence as alleged in the FIR has left no room for court to itself draw any inference about appellants' involvement in the death of the deceased on the basis of statement of PW-4, Komal who is the only witness present at the site of occurrence. In view of sheer and glaring inconsistencies, discrepancies and contradictions noticed in the statements of other witnesses, the statement of PW-4 cannot be brushed off so as to its complete context to draw inference that since appellant Sidra had injuries on her left arm, therefore, appellants are guilty of murder of the deceased. Even otherwise, there is no evidence to prove purported injury of appellant Sidra. In view of very careful scrutiny and assessment of prosecution evidence, I am of considered view that prosecution has failed to prove charge against appellants beyond shadow of doubt and as such they are entitled for benefit of doubt.

22. Resultantly in view of what has been discussed above, conviction and sentence recorded by the learned trial court in terms of judgment dated 13.02.2018, is set aside and Cr. Jail Appeal No.133 of 2018 is allowed. Consequently appellants Mst. Fareeda and Mst. Sidra are acquitted of the charges in case FIR No.117/2016, offence under sections 302/34, P.P.C., registered at Police Station Malir City Karachi. They shall be released forthwith, if not required in any other custody case. JK/F-26/Sindh Appeal allowed.