2018 P Cr (PLP)

RAJA SHAHID MEHMOOD ABBASI, J.

This single judgment shall dispose of Criminal Appeal No. 45-J of 2014 filed by Mst. Najma Shaheen, accused/appellant and Criminal Revision No. 172 of 2014 filed by the complainant against the impugned judgment dated 25-04-2014 passed by the learned Additional Sessions Judge, Pind Dadan Khan, District Jhelum arising from the FIR No. 91 dated 01-07-2013, under section 302/201//34, P.P.C. registered at Police Station Jalalpur Sharif, Tehsil Pind Dadan Khan, District Jhelum, whereby Mst. Najma Shaheen, appellant was convicted and sentenced under section 302(b), P.P.C. imprisonment for life with fine of Rs.1,00,000/- as compensation to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was extended in favour of the appellant.

2. The prosecution case as unfolded in the FIR, (Ex.PC/1) got lodged by Nasir Mahmood, complainant wherein he stated that he was resident of village Pinanwal, Tehsil Pind Dadan Khan, District Jhelum and a truck driver by profession and often remained outside his house due to his truck driving. He stated that his brother Faisal Dilshad was employee in Wah Factory and when complainant was away from his house on truck duty on 01-07-2013 at 7.00 a.m., he received the telephonic call of his wife Mst. Nazia who told him that a decomposing smell of human body was oozing out of the room of his brother Faisal Dilshad. She stated that Faisal Dilshad had come to his house on Saturday leave. Faisal Dilshad's wife Mst. Najma Shaheen accused had disappeared in the evening of 30-06-2013 after locking her room. After receiving telephonic information, complainant along with PWs Naseer Ahmad Chisti and Nazar Hussain reached his house where the mother of Najma Shaheen and his own wife along with other women of village were present. He also smelt human decomposing odour. Many people of Mohallah gathered there and in their presence, he opened the door of Faisal Dilshad and further discovered that the said smell was coming out from iron trunk (Paiti) lying in the room and when that iron trunk was opened, the dead body of deceased Faisal Dilshad was lying underneath the quilts which had decomposed to a great degree. He stated that his Bhabhi Mst. Najma Shaheen was absent from her house since last evening who committed murder of deceased Faisal Dilshad along with her 2/3 unknown accused persons by administering some poison to the deceased.

3. After completion of the investigation, report under section 173, Cr.P.C. was submitted against the appellant in the Court for trial. Charge was framed to which she pleaded not guilty and claimed trial.

4. During the trial the prosecution produced as many as sixteen witnesses in support of its case against the appellant. Nasir Mehmood, complainant (PW.14), who reiterated the averments of the FIR. Waqar Ahmad (PW.12) and Shabbir Ahmad (PW.13) are the witnesses of extra judicial confession.

5. Post mortem examination of the death body of Faisal Dilshad (deceased) was conducted by Doctor Muhammad Shafique Khokhar, MO (PW.15). He found the following injuries on the dead body:- INJURIES

1. A small lacerated wound on top of head right side of vertax. It was 1 x 1/2 scalp deep. After receipt of report of PFSA, his final opinion regarding cause of death of Faisal Dilshad, deceased was as under:- "Vide Chemical Examiner Report, no drug/poison was detected, so in my opinion the cause of death was asphyxia (blockage of respiration by closing the mouth and nostrils) which caused cardio pulmonary arrest. The injury on scalp was ante- mortem" The probable time that elapsed between injuries and death was within one hour and that between death and post mortem was about 2 to 4 days. Asif Akhtar Nadash (PW.1), who prepared scaled site plan Ex.PA, Ex.PA/1 and Ex.PA/2. Muhammad Ilyas, SI/I.O (PW.16) deposed about the recovery of weapon of offence from the appellant and also stated about various steps taken by him during the investigation of the case. The remaining evidence produced by the prosecution was more or less formal in nature.

6. In her statement recorded under section 342, Cr.P.C. Mst. Najma Shaheen appellant/accused denied and controverted all the allegations of the fact leveled against her by the prosecution and professed her innocence, who on question as to "why this case was registered against you and why the PWs deposed against you?" she replied as under:- "I had cordially relations with my husband. During my wedlock, three children were born, I loved my husband. It was a blind murder. I myself do not know about the occurrence of this case as the alleged occurrence is unseen one; therefore, the complainant party in connivance with the local police falsely implicated me in the instant case just to deprive me from the house which was commonly used by my deceased husband and the complainant and now the complainant wants to get possession of entire property and furthermore the complainant party wants to deprive me from the lawfully custody of my children after the death of my husband. All the private witnesses are related inter se and have deposed falsely against me in order to strengthen the prosecution case which was an unseen one" However, she opted not to make any statement on oath under section 340(2), Cr.P.C. and also did not produce any witness in her defence.

7. The appellant has now challenged the conviction and sentence awarded to her on 25-04-2014 by means of this appeal. Whereas the complainant through Criminal Revision No. 172 of 2014 seeks enhancement of sentence awarded to the accused.

8. Learned counsel for the appellant contended that appellant has falsely been implicated in the instant case and there is no direct evidence available against the appellant; that there is noticeable delay in reporting the matter to the police; that there is nothing on the record to connect the appellant with the commission of the crime; that according to the prosecution witnesses the deceased and the appellant being wife and husband had cordial relations; that the evidence of extra-judicial confession is lacking probity; that the prosecution failed to bring on record any motive of the occurrence; that all the prosecution witnesses are inter se related and are inimical towards the appellant; that the appellant is absolutely innocent, she is involved in the case in order to grab the share of the deceased where he was residing; that the complainant and the deceased being real brothers, were residing in a common house; that the appellant had no occasion to make confession before Waqar (PW-12) who was remotely related to the complainant; that the evidence of Wajid Nawaz (PW-10) and Muhammad Nazeer (PW-11) is not trust worthy and confidence inspiring; that the prosecution has failed to prove case against the appellant beyond any shadow of doubt; that this appeal may be accepted and appellant be acquitted from the charge leveled against her.

9. Conversely learned Deputy District Public Prosecutor assisted by learned counsel for the complainant vehemently opposed the contentions raised by the learned counsel for the appellant and, inter alia, maintains that though there is no direct evidence available against the appellant yet prosecution proved its case through circumstantial evidence; that appellant was arrayed as accused on the basis of statement of the brother of deceased who is brother-in-law of the appellant; that the complainant has no ill will or mala fide against the appellant to falsely implicate in this case; that the evidence led by the prosecution is trust worthy, confidence inspiring; that the prosecution case is corroborated by the medical evidence; that the prosecution case is further corroborated by recoveries from the appellant supported by the positive report of the forensic science laboratory; that extra-judicial confession made by the appellant before Waqar (PW-12) and subsequently arrest of the appellant from his clinic fully connects the appellant with the commission of offence; that prosecution has fully proved its case through natural and inspiring evidence and prays that appeal in hand may be dismissed. While addressing the arguments in Criminal Revision No. 172 of 2014, learned counsel for the complainant contended that learned trial court has taken unwarranted lenient view while awarding sentence, (sic.)

10. I have heard the learned counsel for the appellant, learned DDPP, learned counsel for the complainant and have gone through the record with their able assistance.

11. I have noticed that it is a matter in which no direct evidence is available with the prosecution to prove its case against the appellant that mainly hinges upon the circumstantial evidence, therefore, utmost care and caution is required to reach at a just decision. It is settled law by now that in such like cases, prosecution is required to link each circumstance to the other in a manner that it should form such a continuous chain of circumstances firmly connecting the accused with the alleged offence. Reliance in this respect is placed on the esteemed judgment of Hon'ble Supreme Court of Pakistan reported as Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103) and Muhammad Hussain v. The State (2011 SCMR 1127).

12. The prosecution in order to prove its case against the appellant through circumstantial evidence produced the evidence of extra-judicial confession, medical evidence and evidence of recovery.

13. Admittedly, there is no direct evidence in the instant case and no body saw the present appellant committing the murder of the deceased. According to the real brother of the deceased, Nasir Mehmood (PW-14), he was informed by his wife, Mst. (sic.) Faisal Dilshad, deceased. She further informed him that said Faisal Dilshad, deceased, came to his house on Saturday morning after taking leave from Wah Factory, where he was performing his duties; that children of Faisal Dilshad had gone to the house of their maternal grandfather while Mst. Najma, accused, disappeared, since evening of 30.06.2013 after locking of her room. At this information, he rushed to the place of occurrence, where in front of the people, who already gathered at the place of occurrence, open the door of the house of the deceased and when the lid of iron trunk (P-3) was opened, he found the dead body of Faisal Dilshad, deceased, lying underneath the quilts, in putrefying condition. Upon information, police arrived at the place of occurrence and got recorded the statement of complainant (Ex-PC). I have observed that place of occurrence is a room of a house and the house is jointly possessed by two brothers, Nasir Mehmood (complainant) and Faisal Dilshad (deceased). According to the complainant, mother of the accused, Musarat Bibi, and her sister-in-law also came at the spot after learning about the murder of Faisal Dilshad, deceased, and Musarat Bibi provide keys of room to the complainant. Almost all the prosecution witnesses, including Nasir Mehmood (PW-14), Mst. Nazia (PW 8), Waqar (PW-12), Muhammad Nazeer (PW-11) have stated that the appellant and her deceased husband, Faisal Dilshad, had cordial relations and there were at all no difference between the spouses, in this way the prosecution is absolutely silent about the motive of the occurrence and according to the prosecution own showing she had no occasion to commit the murder of her husband and it is also an admitted fact that out of matrimonial bindings of the appellant and the deceased they were blessed with children. It is also an admitted fact that neither the dead body was recovered on the disclosure of the appellant nor on her pointation. Keeping in view the venue of occurrence, situated in a joint possession of complainant and the deceased, locking of healthy persons in an iron trunk is not acceptable to a prudent mind. Though the complainant in his statement (Ex-PC) suspected that Najma Shaheen, appellant, along with 2/3 unknown person have committed the murder of the deceased by administering poison to him but during the entire investigation names of those two/three persons mentioned by the complainant did not come on surface; moreover, during the post mortem report, no poison was detected from the sample taken by the doctor from liver and stomach contents. Report of Forensic Science Laboratory (Ex .PK) also negates the version of the complainant. According to Mst. Nazia (PW-8), she saw Najma Shaheen, appellant, along with her children in company of her husband, Faisal Dilshad (deceased), on 29.06.2013 which shows that on 29.06.2013 the deceased was alive and he was murdered some where on 30.06.2013. The post mortem examination of the deceased was conducted by Dr. Muhammad Shafiq Khokhar (PW-15) (sic.) mortem is 2-4 days. The opinion of the doctor is also not in line with the deposition of the said Mst. Nazia (PW-8). In this way, complainant, Nasir Mehmood (PW-14) and Mst. Nazia (PW-8) have failed to connect the appellant with the commission of the crime. It has also not been explained in the entire evidence that if the present appellant was responsible for the murder of her husband, Faisal Dilshad, then what was the fun that her real mother Musarat Bibi witnessed the recovery of dead body and even provided keys to the complainant Nasir Mehmood.

14. As far as the evidence of extra-judicial confession furnished by Waqar (PW-12) is concerned, according to him on 04.07.2013, at about 8.00 a.m., he was present in his clinic, as usual and Shabir Ahmed, PW, was also with him at his clinic in connection with some medical treatment, while Mst. Najma Shaheen, present appellant, entered his clinic and made request that as she had murdered her husband after locking him in an iron trunk and now she is feeling guilty and he should get pardon from the complainant. I have noticed that as per statement of Waqar Ahmed (PW-12) the place selected by the appellant is the clinic of a homeopathic doctor and she confessed her guilt in presence of one Shabbir Ahmed, (PW.13) not previously known to the appellant. It is also noted that during the cross-examination said Waqar Ahmed (PW-12) admitted the fact that he had no direct relationship with the complainant, Nasir. According to him his clinic consists of only between it and it is not possible that while the said PW was calling the police officials the appellant who was present under the stress did not hear the conversation between the police officials and said PW and she did not opt to run away and the stance taken by this PW is also not acceptable to the prudent mind. I am also not convinced that why she would go to a person who is not directly related to the complainant family and would make extra-judicial confession in the presence of an alien, a person not known to the appellant. The extra-judicial confession, made by the appellant, before Waqar (PW-12) is not corroborated by any other piece of evidence. Moreover, according to the said PW-12, appellant was observing Naqab at the time when entered in the clinic but no such burqa or naqab was taken into possession by the investigating officer. The other mentioned PW, Bashir, was not examined by the prosecution. In view of above, I am of the considered opinion, that said evidence of extra-judicial confession furnished by Waqar Ahmed (PW-12) is not reliable, trust worthy and the same is after thought and fabricated just to strengthen the prosecution case.

15. There is another piece of evidence in this case that Muhammad Nazeer (PW-11) who is brother-in-law of the complainant, Nasir, who according to him on 30.06.2013 at about 5 p.m., saw Mst. Najma Shaheen while alighted from Quinche Rickshaw and she was looking worried and anxious husband after making a quarrel with him and locking him in an iron paiti and now she is going to Rawalpindi. The conduct of this witness is quite unnatural. Being "Chachazad" of complainant, he did not bother to go to the house of the complainant or have not informed the police or any of his relative, immediately. Similarly Wajid Nawaz, real brother of Mst. Nazia (PW-8), stated that he came across Najma Shaheen, waiting for a rickshaw and on his inquiry she disclosed the same fact to him and he also remained mum and never bother to go to the house of his real sister and not informed to the complainant, to the police or any other relative regarding the disclosure of the appellant. In this view of the matter it is clear that such prosecution evidence is afterthought and fabricated and their deposition is unnatural and not reliable and trust worthy, therefore, their evidence could not be taken into consideration for the purposes of capital punishment.

16. As far as the medical evidence is concerned, though the deceased met his unnatural death but now it is settled that medical evidence may confirm the other available evidence with regard to receipt and nature of injuries, the kind of weapon used in the occurrence but it would not itself identify the accused. Reference in this respect may be made to the case of Muhammad Tasaveer v. Hafiz Zulqarnain and 2 others (PLD 2009 SC 53) and Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103).

17. In case of circumstantial evidence like the case in hand, the chain of evidence should be in a geometry progression touching from one side to the dead body whereas from the other side it should touch to the neck of the accused in the shape of motive, pointing of place of occurrence by the accused and recovery of weapon of offence if any and if one ring (ingredient) of chain is missing then whole evidence would be discarded and prosecution case would fall on ground. In the instant case, the evidence produced to connect the appellant with the alleged offence of murder of Faisal Dilshad is not free from doubt being improbable and untrustworthy. I, therefore, allow this Criminal Appeal No. 45-J of 2014 filed by appellant Mst. Najma Shaheen and while extending the benefit of doubt to her set aside the impugned judgment dated 25-04 -2014 and acquit the appellant Mst. Najma Shaheen from the charge against her. She is in jail. She be released forthwith if not required in any other case.

18. In light of above, Criminal Revision No. 172 of 2014 filed by the complainant is hereby dismissed. JK/N-27/L Appeal accepted.