2017 P Cr (PLP)

SHAHID HAMEED DAR, J.

This appeal arises from the judgment, dated 17.7.2010, whereby learned Additional Sessions Judge, Shorkot, District Jhang convicted Muhammad Ramzan (appellant) under section 302(b), P.P.C. and sentenced him to imprisonment for life with the direction to pay a sum of Rs.1,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was extended to him. His co-accused, Muhammad Hussain, Khuda Bakhsh, Muhammad Sharif, Rab Nawaz and Allah Ditta were, however, acquitted of the charge on extension of benefit of doubt. It all happened on conclusion of their trial in a private complaint-case, filed by Mst. Bashiran Bibi (complainant/P.W.3) for offences under sections 302, 201, 148, 149, P.P.C., which was virtually an off-shoot of case-FIR No.180/09, dated 20.2.2009, registered for an offence under sections 302, 109, 148, 149, P.P.C., at Police Station Shorkot City (Jhang).

2. Precisely, the prosecution story as narrated by the complainant (P.W.3) in FIR (Exh.PD/1) is that her daughter Mst. Safia Bibi was married to Muhammad Ramzan (appellant); she was abducted about 1-3/4 years before, regarding which a case was registered at Police Station Kabirwala City; she was retrieved through a panchayat and taken to their house by Muhammad Hussain (since acquitted), Khuda Bakhsh (since acquitted) and Muhammad Ramzan (appellant), situated at Chah Muradwala Kakki Nau Awal, Tehsil Shorkot; Muhammad Hussain and Muhammad Ramzan telephonically contacted Muhammad Ramzan son of Allah Ditta (P.W.4), Ghulam Muhammad (P.W.5) and Amjad Hussain PW (not produced) and asked them to come to the house of Muhammad Hussain, whereon they gathered at the house of Muhammad Sharif at Maghribvela on 22.6.2008; it was at about 9.00/10.00 p.m. on the said day, when Muhammad Hussain, Khuda Bakhsh, Muhammad Sharif, Rab Nawaz, Muhammad Ramzan (appellant) and Allah Ditta called Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5) and Amjad Hussain PW (not produced) to the baithak of Muhammad Hussain, where they all discussed a plot for disposing of Mst.Safia Bibi, as she had degraded their family by running away from the house, so that they might selvage their lost honour and respect; Muhammad Ramzan (P.W.4), Ghulam Muhammad and Amjad Hussain did not agree with their scheme, so Muhammad Hussain and others gave the word that they would not murder her and asked Ghulam Muhammad and others not to leak this secret to anyone; Muhammad Ramzan and his companions being satisfied went to their homes, whereafter Muhammad Hussain and his cronies murdered Mst. Safia Bibi, the same night and made it public that she died naturally; they did not inform her or any other member of her family and buried her dead body in the graveyard of village Kakki Nau Soim (Jhang) on 23.6.2008; thereafter, Muhammad Hussain informed her about the death of Mst. Safia Bibi on telephone, on which she along with her son Muhammad Mansha and two others, namely, Gul Muhammad (P.W.9) and Malik Manzoor Hussain (P.W.8) reached her daughter's house, where all the accused including Muhammad Ramzan (appellant) were present along with many a men and women, who talked about her unnatural death due to discolouration of the dead body; she and her co-witnesses questioned Muhammad Hussain and others as to why they had not timely informed them before burying her dead body and also threatened to lodge a case against them; in the meanwhile, Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5) and Amjad Hussain PW (not produced) also reached there and informed her about the scheme of Muhammad Hussain and others, whereby they planned to murder Mst. Safia Bibi; all the accused admitted their guilt one by one before Gul Muhammad (P.W.9), Malik Manzoor Hussain (P.W.8), Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5) and Amjad Hussain PW (not produced) beside herself, by contending that they had murdered her to avenge their insult; she got exhumed the dead body of Mst. Safia Bibi, whereafter its postmortem examination was conducted by a woman medical officer, who found the hyoid bone fractured at its right side; Muhammad Hussain (since acquitted) visited the house of Malik Manzoor Hussain (P.W.8) in the afternoon of 14.9.2008, in presence of Gul Muhammad (P.W.9) and confessed that he and his companions had strangulated Mst. Safia Bibi to death at night between 22/23.6.2008 by means of a Danda, which he and his co-accused Khuda Bakhsh pressed against her neck while Allah Ditta and Muhammad Sharif gripped her legs and Muhammad Ramzan (appellant), joined by Rab Nawaz, clutched her arms; Muhammad Hussain further told that he poured insecticide in her mouth to indicate it a case of suicide; also disclosed that they buried the dead body without informing the mother and other relatives of the deceased-lady, as it bore many a torture-marks; he maintained that he was highly upset and mentally unrested, so he entreated Malik Manzoor Hussain (P.W.8) and Gul Muhammad (P.W.9) to fetch him pardon from Mst. Safia Bibi's mother and they consoled him by telling that they would take notables of the brethren to her for this purpose; Muhammad Hussain (since acquitted) had hardly finished his disclosure, when Khuda Bakhsh (since acquitted) also reached there and narrated the same story, as told by Muhammad Hussain; Malik Manzoor Hussain (P.W.8) and Gul Muhammad (P.W.9) immediately informed her about this development; on the next day, i.e. on 15.9.2008; all the accused reached her residence at about 1.00 p.m. along with a panchayat, which included Malik Manzoor Hussain (P.W.8), Gul Muhammad (P.W.9), Ghulam Muhammad (P.W.5) and Muhammad Ramzan (P.W.4), where all of the accused narrated the same facts turn by turn, as spoken about by Muhammad Hussain and Khuda Bakhsh earlier, who said it again, one after the other and sought pardon from her. She submitted written application (Exh.PD) along with an order of Additional Sessions Judge, Shorkot for registration of a case, on the basis of which Arshad Ali ASI (P.W.2) drew up FIR (Exh.PD/1), at 2.30 p.m. on 20.2.2009.

3. After registration of the case, its investigation was entrusted to Muhammad Riaz Aziz SI/PW (not produced), who, on completion thereof declared Rab Nawaz and Allah Ditta innocent and submitted the challan under section 173, Cr.P.C. before the learned trial court for trial of the accused in accordance with the law. The complainant (P.W.3) being dissatisfied with the investigation conducted, filed private complaint (Exh.PE) to prosecute the accused, which was based on the same facts, as she mentioned in FIR (Exh.PD/1), supra.

4. Learned trial court after necessary proceedings under sections 200, 202, Cr.P.C. summoned the appellant and his acquitted co-accused (respondents therein) to face the trial. The FIR-case and the private complaint were taken up together by the learned trial court for trial of the accused.

5. On indictment, the accused pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced nine witnesses, namely Dr. Sadaf Naqvi WMO (P.W.1), Arshad Ali ASI (P.W.2), Mst. Bashiran Bibi (complainant/P.W.3), Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5). Jan Muhammad draftsman (P.W.6), Irfan Akram Tarar, Judicial Magistrate (P.W.7). Manzoor Hussain (P.W.8) and Gul Muhammad (P.W.9), while Zulfiqar Ali was recorded as C.W.1. Thereafter, the accused were examined under section 342, Cr.P.C., whereby they proclaimed their absolute innocence in the matter. While answering the question, why this case was registered against him and why the PWs had deposed against him, Muhammad Ramzan (appellant) stated, as under:- "I am innocent. Mst. Safia deceased used to go out of the house. On the night of occurrence, deceased Mst. Safia went out of the house for some evil designs. I went out of the house and started searching her. During search, I found Mst. Safia dead at Kacha road Kalia Peer. I raised hue and cry. On my hue and cry number of persons came there. They took the dead body of Mst. Safia Bibi to the house of my co-accused Muhammad Hussain. I informed all the relatives about the death of Mst. Safia Bibi. All the relatives and members of brotherhood participated in the funeral and burial ceremonies of Mst. Safia Bibi. Thereafter, I have been falsely involved in this case due to family disputes. I did not commit the murder of Mst. Safia Bibi. The story of the prosecution is false and baseless. The PWs are closely related to each other and they have falsely deposed against me." His acquitted co-accused while answering the said question took a consistent stand of their false involvement in this case. All of them including the appellant declined to appear under section 340(2), Cr.P.C. and to lead any evidence in their defence.

6. Learned trial court held the appellant guilty of the charge and sentenced him in the mentioned terms through the impugned judgment.

7. It has been contended by the learned counsel for the appellant that the prosecution case is devoid of any incriminating material against the appellant, who has, unfortunately, been singled out by the learned trial court to award him the impugned conviction and sentence, regardless the fact that all others, who faced identical situation, rather, worse than the appellant, had been acquitted of the charge; it is virtually a case of no evidence and the learned trial court brought it from nowhere on the record that the prosecution had proved its case against the appellant beyond any doubt, which could hardly be matched with a finding, recorded in any other criminal case, being the worst. The witnesses of extra-judicial confession of the accused, including Mst. Bashiran Bibi (complainant/P.W.3), Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5), Manzoor Hussain (P.W.8) and Gul Muhammad (P.W.9) had been disbelieved qua all the co-accused, but learned trial court held the appellant guilty merely on the ground that he happened to be the husband of the deceased-woman, Mst. Safia Bibi; the impugned judgment is ridiculous as well as foolish, for, it was based on thoughtless assumptions and conjectural/whimsical arguments. Lastly contended that illegality committed by the learned trial court may be rectified and the appellant may be acquitted of the charge.

8. On the contrary, learned counsel for the complainant has submitted that the deceased-lady lived with the appellant under the same roof being his wife and it was he alone, who had committed her murder and quickly buried her dead body, without waiting for his in-laws to reach. so as to conceal his guilt, which had been established through overwhelming believable circumstantial evidence, tendered by the prosecution witnesses; the evidence of extra-judicial confession is unflinchingly corroborated by the medical evidence, tendered by Dr. Sadaf Naqvi WMO (P.W.1), the evidence of Irfan Akram Tarar, a judicial magistrate (P.W.7), who supervised the exhumation of the dead body of Mst. Safia Bibi, the evidence of recovery of Dopatta and by other pieces of auxiliary evidence, that made it a formidable prosecution case against the appellant; the impugned judgment is well-reasoned and bore all the characteristics of a sustainable pronouncement, therefore, it may be sustained and the appellant's appeal may be dismissed.

9. Learned Deputy Prosecutor General Punjab has defended the impugned judgment, though, in a lukewarm manner, by contending that the appellant, being husband of the deceased had rightly been picked up by the learned trial court to hold him guilty of the offence charged and he had justifiably been condemned being assassin of his wife.

10. This is a queer case, wherein all those, who allegedly made clean breast of their guilt as to the murder of Mst. Safia Bibi before Mst. Bashiran Bibi (complainant/P.W.3), Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5), Manzoor Hussain (P.W.8) and Gul Muhammad (P.W.9) have been acquitted of the charge and the only one, the appellant, who made no such confession pending investigation, has been awarded the impugned conviction and sentence, for the reasons, known to none. Learned trial court considered the appellant a sinner, only for his status of being the husband of the slain-lady. Otherwise, there existed nothing on the record, which could render his case distinguishable from that of his five trial mates, Muhammad Hussain, Khuda Bakhsh, Muhammad Sharif, Rab Nawaz and Allah Ditta, who all have been acquitted of the charge, despite having admitted their guilt before the complainant and her co-witnesses (P.W.4, P.W.5, P.W.8 and P.W.9) on different occasions. The said witnesses either contended not to have been recorded by the police during investigation or they admitted to have rendered belated statements under section 161, Cr.P.C. Ghulam Muhammad (P.W.5) mentioned this time-period as more than three months after the occurrence of murder of Mst. Safia Bibi. Learned trial court, while discussing the evidence of extra-judicial confession, made certain observations and drew as many conclusions to reject the said evidence, which were equally, rather more vociferously applicable to the appellant's case, but his identity, being husband of the deceased-woman, placed him in a disadvantageous position, that earned him the impugned condemnation. While tendering evidence of extra-judicial confession of Muhammad Hussain (since acquitted) and Rab Nawaz (since acquitted), Muhammad Ramzan (P.W.4), Ghulam Muhammad (P-W-5). Manzoor Hussain (P.W.8) and Gul Muhammad (P.W.9) contended that the accused had admitted before them to have murdered Mst. Safia Bibi in the manner that her legs had been caught by Allah Ditta and Muhammad Sharif, her arms by Muhammad Ramzan (appellant) and Rab Nawaz and her neck was pressed with a danda by Muhammad Hussain and Khuda Bakhsh to strangulate her to death. A detailed commentary has been made by the learned trial court in the impugned judgment, as to why the evidence of extra-judicial confession did not appeal to its judicious conscience and why was it found rejectable as a baseless and manoeuvred exercise, which is equally applicable and beneficial to the appellant's case.

11. Minus the extra-judicial confession of the accused, learned trial court was left with the evidence of exhumation of the dead body of the deceased, that took place on 13.9.2008 under the supervision of Irfan Akram Tarar, Judicial Magistrate (P.W.7), followed by postmortem examination of partly decomposed dead body of ill-fated deceased, by Dr. Sadaf Naqvi WMO (P.W.1), the same day, during the course of which she found the hyoid bone fractured, that led her to conclude that it was a case of asphyxia/strangulation. Medical evidence further revealed that the deceased-lady had not been poisoned before her death and it was so observed by the woman medical officer, as she found report of the Chemical Examiner (Exh.PA) and that of the Histopathologist (Exh.PB) negative and inconclusive. Could this material be deemed sufficient to hold the appellant guilty of the charge, made a childish riddle, which could easily be resolved by even a lad of ten, that it was literally improbable.

12. The alleged recovery of Dopatta at the instance of the appellant on 19.4.2009 went unestablished, as the only witness Zulfiqar Ali (C.W.1) produced in this regard disowned the said recovery and contended that his signatures had been obtained by the police on a blank paper. Interestingly, the memo of recovery of Dopatta could not be exhibited in his statement nor in any other's statement. The investigating officer, Muhammad Riaz Aziz ASI had surprisingly been given up by the prosecution being unnecessary. Learned trial court multiplied this mistake by failing to summon him as a court witness, resultantly, a number of crucial documents prepared by him could not be received in evidence.

13. It itched the mind, how could a barren prosecution case, like this one, yield a conviction and sentence, as the appellant, probably, never lived with the deceased-wife in her life time, after she was either abducted by one Abbas or she eloped with him about 1-3/4 years before. Mst. Bashiran Bibi (complainant/P.W.3) claimed in her testimony that her daughter, after having been recovered, lived with her husband for about three months and this interval has been mentioned by Muhammad Ramzan (P.W.4) as two to three days, before she met the eventuality. Her dead body had allegedly been buried by Muhammad Hussain (since acquitted), at whose house all the mourners including Mst.Bashiran Bibi (complainant/P.W.3) and her co-witnesses, Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5), Manzoor Hussain (P.W.8) and Gul Muhammad (P.W.9) had gathered to participate in its funeral rituals. It was not the house of the appellant, where she had been murdered or where her dead body had been brought to before being buried in a graveyard. These circumstances are sufficient to belie the complainant's claim that her daughter lived with the appellant on the fateful day.

14. Muhammad Ramzan (P.W.4) and Ghulam Muhammad (P.W.5) also stated about the conspiracy, having vainly been hatched up by all the accused at the residence of Muhammad Hussain (since acquitted) on 22.6.2008 to plot the murder of Mst. Safia Bibi, which was also attended, on the invitation of Muhammad Hussain (since acquitted), by Muhammad Ramzan (P.W.4), Ghulam Muhammad (P.W.5) and Amjad Hussain PW (not produced). The accused must be the fool-hardics, to have invited them to the said conspiratorial discussion. If at all any such scheme was in the offing, it could have been plotted by the accused behind the locked doors, so as to keep it secret from the world at large. What sort of conspirators they were, that they invited the aliens to their schematic sitting, only to enable them to adduce evidence against them. It was an unbelievable circumstance, hence, rightly disbelieved and rejected by the learned trial court.

13. Every bit of the prosecution evidence is worth rejecting, but learned trial court wronged all calculations and handed down the appellant the impugned sentence, which was nothing but his sheer bad-luck. The impugned judgment does not qualify to be maintained, being an illegal and unreasonable verdict, hence, undone. The present appeal is accepted, the conviction/sentence of the appellant is set aside and he is acquitted of the charge. He is present on bail, for, his sentence had been suspended by this court on 13.1.2011. His bail bonds are cancelled and sureties discharged. WA/M-171/L Appeal accepted.