2018 PLP 100 (YLRN)

SHAHID HAMEED DAR, J.

Rehana Bibi (appellant) and Shafqat Abbas (appellant) have filed Criminal Appeal No.1490 of 2016 and Criminal Appeal No.1642 of 2016, respectively, against the judgment dated 11.6.2016, whereby learned Additional Sessions Judge, Ahmadpur Sial (Jhang) convicted them under sections 338-C/34 and 496-B/ 34, P.P.C, on conclusion of their trial in case-FIR No.187/14, dated 11.6.2014, under sections 302, 337-J, 365-B, 511/34 P.P.C., registered at Police Station Garh Maharaja (Jhang) and sentenced them as under:- i) Under section 338-C/34 P.P.C.: To rigorous imprisonment for five years each. ii) Under section 496-B/34 P.P.C.: To rigorous imprisonment for five years, with fine of Rs.10,000/- each, in default, to undergo simple imprisonment for five months each. They were extended benefit of section 382-B, Cr.P.C. with the observation that their sentence(s) would run concurrently. Their co-accused, Safdar Abbas and Khalida Bibi were, however, acquitted of the charge. Both the appeals are being decided compositely through this judgment.

2. Precisely, the prosecution story as narrated by Shamsher Ali (P.W.8/complainant) in his application (Exh.PG) is that Khalida Bibi (since acquitted) visited his house at about 8.00 p.m. on 10.6.2014, as she used to, even before; she cunningly poisoned the sweetened rice, cooked at his house then by intoxicating pills and he learnt this fact afterwards; all the inmates took food and slept; it was at about 12.45 a.m., when Shafqat (appellant) and two unknown persons entered his house and almost took his daughter Rehana Bibi (appellant) out of the house, when he got up on her screaming; Muhammad Ameer (P.W.9) and Bashir Ahmad (P.W.10) also reached there, whereon they left Rehana Bibi and decamped; his wife Razia Bibi, aged about 45, who apparently looked slept, had, in fact, died; the accused conspired to abduct his daughter Rehana Bibi (appellant) with intent to commit rape and adultery on her by using intoxicating pills and they murdered his wife in the process. He reported the crime through his written application (Exh.PG) to Abdul Shakoor SI (P.W.12) at Kot Bahadar, at 1.15 a.m. on 11.6.2014, who despatched it to police station through Mudassar. Yasin 101/C for registration of case, on receipt of which Muhammad Younas 798/MHC (P.W.5) drafted formal FIR (Exh.PE), at 2.10 a.m., the same day. The complainant (P.W.8) rendered a supplementary statement through written application (Exh.PH) on 27.6.2014 with the contention that he was under the effect of drugs and felt highly upset by the callous murder of his wife, due to which he could not narrate real facts of the case or reveal names/ addresses of unknown accused earlier; after having regained senses and recollected himself, he was of the view that Khalida Bibi (since acquitted), who lived in his neighbourhood, visited his house at about 8/9.00 p.m. on 10.6.2014, when his daughter Rehana Bibi (appellant) was cooking rice; they both talked for a while and poisoned the rice under a plot, whereafter Khalida Bibi went away; his daughter gave the rice to her mother to eat and with it some tea to drink; on taking these items, his wife Razia Bibi fell asleep and it so happened with all others, who too slept almost unconscious; his brother Ameer Ali (P.W.9) tried to awake him at about 12.45 a.m., but failed, so he raised alarm and many people of the area gathered there; he was taken to a nearby medical clinic; in the meanwhile they found his wife Razia Bibi dead due to intake of poisonous rice and tea; actually, Shafqat (appellant) had developed illicit relations with his daughter Rehana Bibi (appellant) through Khalida Bibi (since acquitted), due to which she got pregnant; in this background, Shafqat, Baqir, Safdar, Khalida Bibi and Rehana Bibi plotted a plot and committed the crime; when he and others were under the effect of the drugs, Shafqat, Baqir and Safdar entered the house and hurriedly took away Rehana Bibi with them; his brother Ameer Ali and Bashir Ahmad saw the incident of abduction of Rehana Bibi and they chased the accused, but they all sped away their car; the accused had abducted his daughter to cause miscarriage to her.

3. Abdul Shakoor SI (P.W.12) carried out investigation of this case. He reached the spot, inspected dead body of Razia Bibi, prepared injury statement (Exh.PJ), inquest report (Exh.PK) and despatched it to the mortuary for autopsy under the escort of Muhammad Shaukat 277/C (P.W.2); he prepared visual site-plan (Exh.PL) of the place of occurrence; he prepared injury statement (Exh.PM) of Shamsher Ali (complainant/P.W.8) and sent him to THQ hospital Ahmadpur Sial through Mudassir Mehdi 752/C (P.W.4); he moved an application (Exh.PN) before learned magistrate seeking for permission of medical examination of Rehana Bibi and also made request to the M.S. THQ hospital, Ahmadpur Sial for her medical examination, who referred her to RHC Garh Maharaja, where she was medically examined; he got prepared site-plan in-scale (Exh.PF and Exh.PF/1) of the place of occurrence by Saifal Khan, Halqa Patwari (P.W.7); the complainant presented an application (Exh.PH) for recording supplementary statement before him on 27.6.2014, whereby he nominated the accused, Shafqat (appellant), Baqir, Safdar (since acquitted), Khalida Bibi (since acquitted) and Rehana Bibi (appellant); thereafter, he arrested the accused Shafqat Abbas, Safdar and Rehana Bibi on 11.7.2014 and subjected them to interrogation, during the course of which Shafqat Abbas (appellant) got recovered a condom, vide memo of recovery Exh.PC; he deleted the offence under section 365-B/511 P.P.C. and added sections 338-C, 376(1) and 109 P.P.C.; he got conducted DNA test of Shafqat Abbas and Rehana Bibi from Punjab Forensic Science Agency, Lahore. On completion of investigation, he prepared report under section 173 Cr.P.C. and submitted it before the learned trial court for trial of the accused in accordance with the law.

4. On indictment, the accused pleaded not guilty and claimed a trial. The prosecution produced seventeen witnesses, namely Dr.Arshad Ali Khan (P.W.1), Muhammad Shaukat 277/C (P.W.2), Muhammad Arif 677/C (P.W.3), Mudassar Mehdi 752/C (P.W.4), Muhammad Younas 798/MHC (P.W.5), Hakim Ali 22/HC (P.W.6), Saifal Khan, Patwari (P.W.7), Shamsher Ali (complainant/P.W.8), Ameer Ali (P.W.9), Bashir Ahmad (P.W.10), Bibi Rani 1041/LC (P.W.11), Abdul Shakoor SI/IO (P.W.12), Muhammad Islam (P.W.13), Dr.Hafeez Ullah (P.W.14), Dr.Nuzhat Asad (P.W.15), Dr.Sumaira Arif (P.W.16) and Muzafar Ahmad 459/C (P.W.17) to prove its case. 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 is registered against them and why the PWs had deposed against them, the appellants, Rehana Bibi and Shafqat Abbas stated as under:- REHANA BIBI: "My father wants to contract my marriage with his nephew Parvez who is son of PW Ameer whereas I along with my mother want to contract marriage with my maternal cousin namely Farooq Zahoor. I and my mother refused to contract marriage at the wishes of my father and due to this grudge my father had committed murder of my mother and levelled false allegations of rape and abortion against me in order to defame me in the area as I am bachelor. The PWs Ameer and Bashir are brother of the complainant who have falsely deposed against me as they had planned to take revenge from me for refusing of marriage with Parvez son of Ameer." SHAFQAT ABBAS: "All the PWs produced by the prosecution are related interse and they are also related with the deceased. No person from the locality has been produced as PW during investigation or during the trial. They had deposed against me only due to the relationship with each other. In fact I had a shop at Adda Kot Bahadar and the complainant used to purchase grocery and other articles from me. The complainant and his family had borrowed some amount from me in shape of cash and in shape of purchasing articles which I used to demand back and due to this grudge they had involved me and my sister Khalida Parveen in this false case." The appellants and their acquitted accused opted not to appear under section 340(2), Cr.P.C. nor they adduced any evidence in their defence. Learned trial court concluded trial of the appellants through the impugned judgment by holding them guilty of the charge and awarded them the sentence, in mentioned terms.

5. Learned counsel for the appellants have submitted in unison that the appellants have been convicted for an offence, which they did not commit and they were unfortunately sentenced due to misconception of law and facts by the learned trial court; Safdar Abbas and Khalida Bibi co-accused were acquitted of the charge by disbelieving the prosecution evidence, but it was unjustly believed to condemn the appellants; the expert reports as to detection of poison had been received in negative and it was for this reason that the woman medical officer (P.W.16) did not declare the death of Razia Bibi unnatural; the appellants were acquitted of the charge of murder of the deceased-lady, but handed down the impugned conviction/sentence for committing rape and causing Rehana Bibi to miscarry, without any corroboratory evidence in this regard, which has made the impugned judgment, as based on conjectures and surmises; a case of no evidence has been made into one of conviction by the learned trial court gratuitously, therefore, the impugned judgment may be set aside and the appellants may be acquitted of the charge.

6. On the other hand, learned Deputy Prosecutor General Punjab and learned counsel for the complainant have strongly defended the impugned judgment by contending that the prosecution witnesses rendered creditworthy evidence against the appellants, which led to an irresistible conclusion about their guilt and having it so held, the learned trial court has not committed any error in law, therefore, the impugned judgment may be sustained and challenge thrown thereto by the appellants may be brought to an end.

7. After hearing the learned counsel for the parties and perusing the record, it is observed that none of the appellants was held guilty of the murder of Razia Bibi and they both were acquitted of the charge under section 302, P.P.C., simply for the reason that prosecution failed to establish that she had died unnaturally. The autopsy conductor, Dr. Sumera Arif (P.W.16) recorded in the necropsy report (Exh.PT) that cause of death of the deceased could not be determined in the face of negative report (Exh.PU) of the chemical examiner and an alike report (Exh.PV) of the Histopathologist. The complainant (P.W.8) categorically mentioned in written-complaint, Exh.PG, that he and his wife Razia Bibi took meals at night on 10.6.2014, which had been poisoned with intoxicating pills by Khalida Bibi (since acquitted) and after this intake, she died. He reiterated this allegation in the subsequent written application (Exh.PH) a bit divergently by contending that his daughter Rehana Bibi (appellant), being in league with her acquitted co-accused Khalida Bibi, mixed poison in the sweetened rice as well as in tea, which she gave to her mother Razia Bibi to take and after taking it, she fell unconscious and died in a trance. It was at about 12.45 a.m., the same night, when his brothers, Ameer Ali (P.W.4) and Bashir Ahmad (P.W.10) awoke him, but they found his condition critical due to intake of poisoned-food, so they immediately shifted him to a nearby medical clinic for his treatment.

8. The charge of culpable homicide mainly hinged on expert-reports, for detection of poison in body-contents of the deceased, including stomach, intestines, liver, kidney, spleen, lungs and heart etc., some portions whereof had been transmitted to Punjab Forensic cience Agency for their forensic analysis. Besides, vaginal swabs of Rehana Bibi were also despatched to the said agency for detection of spermatozoa, so as to adjudge the veracity of allegation of committing adultery by her with the co-accused, Shafqat Abbas (appellant), Safdar Abbas (since acquitted) and Baqir Ali (since PO). The expert-reports (Exh.PU and Exh.PV), as stated earlier, have been received in negative. The complainant's blood, urine and stomach contents were taken by Dr.Hafeez Ullah (P.W.14) at the time of his medical examination, conducted vide MLR (Exh.PR) for detection of poison, but it remained an unresolved affair, as prosecution could not tender any forensic report in this context at trial of the accused. Medical evidence is overwhelmingly inconsequential to the prosecution case, which caused its demolition as to the charge of murder of Razia Bibi. The prosecution did not challenge the acquittal of the appellants and that of their co-accused for the charge of murder and it attained finality by afflux of time. It was a big blow to the prosecution and the story set up by it. Rest was nothing but an embroidery of the main allegation, which fell through the course of the trial.

9. Insofar as the allegation that Rehana Bibi (appellant) lived in adultery with Shafqat Abbas (appellant), Safdar Abbas (since acquitted) and Baqir Ali (since PO) due to which she got pregnant and got herself aborted, is concerned, it is more of a hearsay story or a chit-chat, rather than being something, based on cogent material or some plausible evidence. None of the witnesses of ocular account, Shamsher Ali (complainant/ P.W.8), Ameer Ali (P:W.9) and Bashir Ahmad (P.W.10) could make a single believable deposition during their examination as to commission of rape on Rehana Bibi by the mentioned troika. Interestingly, Safdar Abbas, who faced identical allegation of committing rape on Rehana Bibi and causing her to miscarry, has been acquitted of the charge under sections 302, 496-B and 338-C, P.P.C. by the learned trial court, as it found the prosecution evidence too Scanty in relation thereto. There may be found some evidence on the record as to miscarriage of Rehana Bibi caused by the woman medical officer, Nuzhat Asad (P.W.15), who handed over a fetus of fourteen weeks to the police, vide MLR (Exh.PS). The issue of examinee's pregnancy, being a result of her intimate/sexual liaison with Shafqat Abbas (appellant), Safdar Abbas (since acquitted) and Baqir Ali (since PO), remained an unproven circumstance during the trial. Her pregnancy and abortion, in absence of any evidence to the contrary, cannot connect the appellant Shafqat Abbas with the said charge, nor could there be made any supposition or presumption by the learned-trial court to convict the appellants and sentence them in mentioned terms. It oozes from the record that a police official, Abdul Shakoor SI (P.W.12) got Rehana Bibi aborted by the lady doctor (P.W.15), hence, Shafqat Abbas (appellant) could not be held liable in this regard on any count. The name of the person, who turned Rehana Bibi pregnant, has constantly remained hidden and in such an eventuality, to dub Shafqat Abbas (appellant) liable for it would be uncalled for and unfathomable. Unless zina-bil-raza between man and a woman was established through some unimpeachable evidence, a positive medical or expert report by itself would have no evidentiary value. Reliance in this regard may be had on Muhammad Saleem Arshad and another v. The State (2007 PCr.LJ 50). The acquittal of Safdar Abbas co-accused was a definitive circumstance, resolvable in favour of the appellants as well.

10. Learned trial court's method of "pick and choose" for passing the questioned judgment, cannot be approved of by any stretch of imagination. The ocular account virtually contained nothing, which might incriminate the appellants and in this situation of haziness all around, the fallibility of the prosecution case might have equally been beneficial to the appellants as well. By having resolved it otherwise in a gratuitous manner, learned trial court has certainly done no good to the appellants and the administration of criminal justice. It is always the accused to be extended the benefit of doubt and not the prosecution, under any circumstance. Learned trial court has fallen in error to convict and sentence the appellants through the impugned judgment, which is too frail and flimsy to be sustained. A fallible judgment must fall to the ground and so is the fate of the impugned judgment which is hereby set aside, resultantly, the appellants, Rehana Bibi and Shafqat Abbas are acquitted of the charge. Shafqat Abbas (appellant) is in custody, he is directed to be released from the prison forthwith, if not required in any other case, whereas Rehana Bibi (appellant) is present on bail, for, her sentence had been suspended by this court on 7.11.2016. Her bail bonds are cancelled and surety discharged.

11. These appeals (Crl. A. No.1490/ 2016 and Crl. A. No.1642/2016) stand allowed. MH/R-19/L Appeals allowed.