2016 PLP 1 (YLRN)

JAMES JOSEPH, J.

The above said appeals are directed against the judgment dated 29.01.2009 passed by Additional Sessions Judge, Jampur in case FIR No. 138/2006 dated 19.03.2006 under section 302, P.P.C. registered at Police Station Jampur District Rajanpur whereby the appellant Punoon son of Ghulam Nabi was convicted under section 308(2) of P.P.C. and sentenced to suffer imprisonment for fourteen (14) years R.I. as Tazir. He was ordered to pay Diyat as prescribed by law to the legal heirs of the deceased. He was also extended benefit of section 382-B, Cr.P.C. Being aggrieved, both appellant/ convict Punoon and complainant Ali Muhammad filed their appeals against the said judgment dated 29.01.2009, and through this single judgment I intend to dispose of both above captioned criminal appeals, as both have arisen out of one and the same judgment dated 29.01.2009.

2. Ali Muhammad, complainant narrated whole facts of the case in his statement before the trial court while appearing as PW-6 which is hereby reproduced for narration of the facts:-- "Mst. Mehnaz Mai deceased was my daughter. About 1-1/2 years prior to the occurrence, I married my daughter Mst. Mehnaz Mai with Punoon accused present before the court. A daughter was also born out of the said wedlock. About 2-1/2 years back I went to the house of my daughter Mst. Mehnaz Mai, where it was told that she along with her husband Punoon had gone to Chah Siddo-wala. So I along with my son Abid Hussain went to Chah Siddowala where Sobha also came there. Thereafter we were conversating with each other in front of the quarter near the door on cot. In the meanwhile, we heard voice of Dhar, Dhar of Mst. Mehnaz Mai. I along with Abid Hussain and Sobha entered inside the quarter and saw that Punoon accused was giving sota blows on the person of Mst. Mehnaz Mai which landed on right arm, back and buttock, on receipt of sota blow Mst. Mehnaz Mai fell down on the ground. Thereafter Punoon accused poured the poisonous pesticides into the mouth of Mst. Mehnaz Mai. We raised lalkara to Punoon but he fled away from there after scaling over the western wall. We attended Mst. Mehnaz Mai but she was unconscious. We arrange a vehicle and took Mst. Mehnaz Mai to Hospital Jampur where she died. Motive behind the occurrence is that we were going to the accused for the watta of Mst. Mehnaz and Mst. Mehnaz was pressing Punoon accused for the same which was felt ill by Punoon accused and for the said reasons, he caused sota injuries on the person of Mst. Mehnaz and also poured poisonous pesticide, resulting into murder of Mst. Mehnaz. Police also came in the hospital to whom I got recorded my statement Exh PA which was read over to me and I thumb marked the same in token of its correctness". Upon the said statement of the complainant (Exh PA) formal FIR (Exh PA/1) was recorded by Shamshir Ali SI (PW-1).

3. After the registration of the case and on completion of the investigation, Report under section 173, Cr.P.C. was submitted for trial before the trial court.

4. Trial court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge on 31.10.2007 against Punoon under section 302, P.P.C., to which he pleaded not guilty and claimed trial, hence, prosecution evidence was summoned.

5. In order to prove the guilt of the accused, the prosecution examined Shamshair Ali S.I. (PW-1) who chalked out for formal FIR Exh PA/1 on the receipt of complaint Exh PA without any addition or omission. Khadim Hussain, ASI appeared as PW-2 and he being Moharrir of the Police Station, received four sealed jars from the IO which he kept in the safe custody in the Malkhana and on 03.04.2006 he handed over the above said jars to Bashir Ahmad 396/C for their onwards transmission to the office of Chemical Examiner Lahore intact. Bashir Ahmad 396/C appeared as P.W.4. He deposited four sealed Jars in the office of chemical examiner Lahore after receiving the same from Moharrir intact. Ghulam Asghar PW-5 identified the dead body of deceased at the time of post mortem examination. Ali Muhammad PW-6 complainant of the case deposed in support his statement Exh PA. Malik Sobha PW-7 is the alleged eye-witness of the occurrence who deposed in support of the complainant. Fidda Hussain PW-8 is the recovery witness of last worn clothes of the deceased, four jars and bottles of pesticides. Pervaiz Akhtar Inspector/SHO PW-9 appeared instead of Faiz Muhammad SI/IO of the instant case who died. Khalil-ur-Rehman Patwari PW-10 prepared the scaled site plans Exh PH, Exh PH/1 and Exh PH/2. Muhammad Aslam SI PW-11 got prepared the scale site plans from Patwari Halqa.

6. Medical evidence was furnished by Dr. Shafqat Nazir WHO T.H.Q Hospital Jampur PW-3 who observed the following injuries on the dead body of the deceased.

1. A bruise of 4x3 cm at right upper arm on front side of it.

2. A bruise of about 4x4 cm at lower part of right back.

3. A bruise of 6x3 cm at upper border of left buttock.

4. Multiple bruises of 1/2 x 1/2 cm (nine in number) at upper back of chest.

5. A scratch of 1/2 x 1/2 cm at left side of neck.

6. A scratch of 1/4 cm at right side of neck, 4 cm lateral to mid line of neck. In his final opinion, the cause of death in this case was poison.

7. The prosecution has given up P.Ws. Abid Hussain, Haji Bilal Ahmad being unnecessary.

8. After tendering in evidence certain reports, ADPP has closed the prosecution case. Statement of accused was recorded under section 342, Cr.P.C. who refuted the allegations so leveled against him. He did not opt to appear as witness under section 340(2) Cr.P.C. however, he opted to produce defence evidence. In reply to question "Why this case against you and why the PWs deposed against you? The appellant Punoon replied as under: - "I am innocent. Actually I contracted a love marriage with Mst. Mehnaz for which the complainant party was having a grudge and for the said reason a criminal case under Islamic Law was also got registered by the complainant party against me. Since there was a registered Nikah Nama in between me and Mst. Mehnaz prior to the registration of the criminal case, so as per terms of compromise arrived at in between the parties Nikah of my sister was solemnized with brother of Mst. Mehnaz but Rukhsati had not yet taken place. It was also agreed that in case of non-giving of hand of my sister, Rs. 250,000/- would be paid to the complainant. On the day of alleged occurrence, I along with my wife Mst. Mehnaz was working in the tobacco field when my daughter started weeping, so I asked my wife Mst. Mehnaz to give milk to her but she showed reluctance, so I slapped her which was felt ill by her and she went to the quarter and committed suicide by taking poisonous pesticides. I took Mst. Mehnaz to Hospital where doctor told us that she had died. I also informed the complainant party but the complainant with the consultation of the other PWs and after due deliberation got registered the instant case falsely against me because they were having grudge of my love marriage with Mst. Mehnaz. The complainant and the PWs also falsely deposed against me due to above said grudge as well as to get Chatti. I was also declared innocent by the police after thorough investigation."

9. After conclusion of the trial, learned trial court convicted Punoon appellant, as mentioned supra. Hence, these appeals.

10. Learned counsel for the appellant contends that the case against the appellant is false, no such occurrence took place; that the prosecution evidence is full of discrepancies and contradictions and is not trust worthy; that the conduct of the PWs is un-natural and their presence at the spot is highly doubtful; that the judgment passed by the trial court is result of misreading and non-reading of evidence present on the file; that the judgment passed by the trial court is base on surmises and conjectures. Lastly a prayer for acceptance of appeal and acquittal of appellant has been made.

11. Conversely, the arguments advanced by the learned counsel for the appellant have vehemently opposed by learned Deputy Public General assisted by learned counsel for the complainant on the ground that the prosecution specifically proved the charge against the appellant; that the evidence produced by the prosecution is consistent upon all material points without their being uncontradiction and discrepancies; that the evidence of the complainant and other eye-witness was duly supported by the medical evidence; that the judgment passed by the learned trial court is based on sound and cogent reasons therefore, does not call for any interference by this Court and hence prayer for dismissal of the appeal filed by the appellant and acceptance of appeal filed by the complainant has been made.

12. We have heard the arguments advanced by the learned counsel for the parties and perused the record.

13. The gist of prosecution story has already been mentioned in the preceding paragraph of this judgment, however, it is observed that in order to substantiate the charge against the appellant and to prove its ocular account the prosecution produced complainant Ali Muhammad as PW-6 who undisputedly is real father of the deceased, Malik Sobha son of Ghulam Muhammad (PW-7) who is admittedly the real uncle (Chacha) of the deceased whereas the occurrence was also witnessed by one Abid Hussain (given up PW being un-necessary) real brother of the deceased. While appearing in the witness box Ali Muhammad, the complainant PW-6 deposed in reply to a question put to him as follows:-- "I and Abid reached the quarter of Punoon accused at 11.30 a.m. Soon our reaching Sobha, my brother, also came there from the western side". He further deposed in reply to a question put to him by the defence side that: "When the accused was giving sota blows to Mst. Shehnaz (deceased) we did not intervene to rescue her". The complainant P.W.6 further replied in the following manner to a question put to him:

"When the accused poured poison into the mouth of Mst. Mehnaz we reached there in running position".

14. In a similar situation, the Hon ble Court of Pakistan was pleased to hold as under in case of "Mehmood Ahmad and 3 others v. The State" (1995 SCMR 127):-- "Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate". Therefore we are of the considered view that the FIR was not promptly lodged rather it was informed to the police after due deliberation and consultation which is not worthy of reliance.

15. The occurrence, in the instant case took place at 12.00 noon but the matter was reported to the police at 02.15 P.M. after two hours and 15 minutes besides the fact that the police station is hardly at a distance of 03 K.M. from the place of occurrence, especially in the circumstances when the complainant Ali Muhammad PW-6 replied to a question put to him deposed as follows:

"I do not know who informed the police. The police remained in the hospital along with our elders". In the light of above deposition, it is clear that the matter was not lodged by the complainant rather the same was reported after due deliberation and consultation especially in the peculiar facts and circumstances of the instant case.

16. Malik Sobha, appeared as PW-7 in order to substantiate the ocular account. He also reiterated the same facts but during the course of cross-examination, while replying in a question put to him he replied as under:

"We did not try to intervene when Mst. Mehnaz raised hue and cry and we remained only seeing her". He further answered to a question put to him in the following manner:

"We were sitting on southern side of the quarter at a distance of about 2/4 karam from the door". PW-7 further replied to a question put to him in the following manner: - "Ali Muhammad (complainant) is my real brother".

17. From the above said deposition made by both the PWs, we have noted that Ali Muhammad PW-6 is real father of the deceased and Malik Subah is the real uncle (Chacha) of the deceased while Abid Hussain (since given up PW) is real brother of the deceased, claimed to have witnessed the occurrence from a distance of 2/4 karams as given in the cross-examination but none tried to rescue Mst. Shehnaz deceased and the appellant had a free hand to inflict as many as six injuries on the person of the deceased and there-after he poured poisonous pesticides into the mouth of the deceased. The explanation given by the witnesses that since the appellant run away after committing the occurrence in their presence and threatened them, does not appeal to common sense as the appellant was not armed with any firearm which could have restrained them from overpowered him. He was a single alleged assailant and if the witnesses and complainant were present there at the spot, who are of-course most close relatives of the deceased, could have easily overpowered him. The conduct shown by the PWs and replying on the answers put to them during cross-examination is highly doubtful and un-natural. The Hon'ble Apex Court in a similar case was pleased to hold as follow in the case of "Liaqat Ali v. the State (2008 SCMR 95):

"Having heard learned counsel for the parties and having gone through the evidence on record, we note that although PW-7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaqat Ali had threatened them, therefore, they could not go near Fazil deceased to rescue him is appellant to common sense as Liaqat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful".

18. Similar is the situation in the present case. Besides the alleged presence of the complainant and his alleged eye-witnesses were present at the spot at the time of occurrence but none of them tried to rescue the deceased from the assailant, therefore, we are of the considered view that the presence of the complainant and the witnesses at the spot at the relevant time is highly doubtful and their presence at the spot is not proved from the evidence produced by the prosecution.

19. Motive, as alleged by the prosecution is that they were going to accused for the watta of Mst. Mehnaz and Mst. Mehnaz was also pressing Punoon appellant/accused for the same, who felt ill and for the said reason, the appellant caused injuries on the person of the deceased and also poured poison pesticides into her mouth. We have observed that Malik Sobha PW-7 while appearing in the witness box as PW-7 during his examination in chief did not utter a single word regarding the motive of the present occurrence. We have also noted that during the course of successive investigations, the participation of the appellant in the occurrence is not proved; therefore, we hold that the stance taken by the complainant regarding the motive is not corroborated by any other witness, therefore, we hold that the motive has not been proved in this case.

20. The investigation of the instant case was initially conducted by Faiz Ahmad SI (since dead) who thoroughly interrogated the matter, joined many persons from both the sides and from the locality and concluded that Mst. Mehnaz deceased committed suicide by taking poison pesticide. After the investigation concluded by the local police, the investigation of the instant case was entrusted to Syed Behar Shah DSP Rajanpur on the application moved by the complainant which fact has also been admitted by the complainant during his cross-examination. The said D.S.P. also came to the same conclusion arrived at by Faiz Ahmad S.I. The investigation conducted by the aforementioned I.Os. was verified by Saif Ullah Khan D.S.P. Headquarter who also opined that the present appellant was innocent and did not commit the murder of her wife rather she committed suicide. Although opinion of police is not binding upon the Court but if the same is being supported by other facts and circumstances of the case, then it can be the relevant fact to believe into the guilt or innocence of the accused. Reliance is placed on the case titled as "Muhammad Sharif v. Muhammad Aslam and another (2003 SCMR 528) wherein their lordship was pleased to hold as under:

"The Investigating Officer had declared the appellant innocent in this case and this fact was also verified by the D.S.P. of the Circle. Although, opinion of the police is not binding on the Court but in cases of capital punishment it is duty of the prosecution to prove the case beyond any shadow of doubt".

21. Medical evidence in the present case was furnished by PW-3 Doctor Shafqat Nazir WMO who observed as many as six injuries on the person of the deceased which were mostly on the back side. Injuries Nos.1 to 4 were bruises whereas injuries Nos. 5 and 6 were scratches. In the light of observation made by us in the preceding paragraphs of this judgment we are of the view that the injuries on the back of the deceased in the shape of bruises and scratches are not the result of injuries inflicted by the appellant rather the same could have been caused on her back side while after taking the poison pesticide she was squirming on ground in agony of pain and no one was there to rescue her, therefore, we are of the view that the story narrated by the prosecution of infliction of injuries by the appellant is not supported by the medical evidence.

22. On the other hand, the plea taken by the appellant that the deceased committed suicide seems to be more plausible as the plea taken by him was also substantiated during the course of investigation and also he took the same plea as his first version before the police when he was arrested. In the light of above mentioned facts the prosecution case is not free from doubt and to give the benefit of doubt to the accused not many infirmities are necessary rather one single circumstance creating doubt in prudent mind regarding the guilt of the accused would be sufficient to extend him the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on the case of "Muhammad Akram v. The State (2009 SCMR 230) wherein their lordship were pleased to hold as follows:-- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubt. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".

23. Epitome of above discussion is that the prosecution has not been able to establish the charge against the appellant Punoon beyond any shadow of doubt, thus the same benefit must be given to the accused/appellant. Resultantly Criminal Appeal No. 60 of 2009 filed by appellant Punoon succeeds and thus is allowed and judgment dated 29.01.2009 passed by Additional Sessions Judge Jampur in case FIR No. 138/2006 dated 19.03.2006 under section 302, P.P.C. registered at Police Station Jampur District Rajanpur is set-aside and the appellant namely Punoon is acquitted of the charge while the appeal filed by Malik Ali Muhammad (complainant) bearing No. 762-2009 stands dismissed. The appellant Punoon is behind the bars. He shall be released forthwith if not required in any other case. HBT/P-12/L Appeal allowed.