1992 PLP 1047 (SCMR)

(b) Penetrating lacerated wound communicating injury No.3(a) over outer back lower part of left, arm 0.9 x 0.9 c.m. with everted margins. Against injury No.l there was a hole in the left temporal bone and right parietal lobes showed lacerated tracks. A foreign metallic body was recovered from back part of right parietal lobe of brain. Membrane showed corresponding holes and blood clots. All the injuries were ante‑mortem, caused by firearm. Injuries Nos.l, 2(a) and 3(a) were the wounds of entry; injury No.2(b) was the exit wound of injury No.2(a). Injury No.3(b) was the exit wound of injury No.3(a). Injury No.l was sufficient to cause death in the ordinary course of nature. On the same day, viz. 31‑12‑1976, at 4‑10 a.m. Dr. Zaffar Ali Syed, Medical officer, examined the respondent and found the following injuries on his person:‑‑‑ (1) Contused swelling 3 x 3 c.m. mid forehead. (2) Contused swelling 2 x 2 c.m. right forehead. He also complained of pain on the inner side of right hand. Injuries Nos.l and 2 were kept under observation. Vide report, dated 10‑1‑19'77 these injuries were declared simple "unless proved otherwise by subsequent events .

5. Besides the recoveries, the report of Firearms Expert, check up of the motor‑car, referred to above and the medical evidence, the investigating agency produced evidence relating to motive, previous conduct of the respondent and the rehearsal undertaken by him on the preceding night for the commission of murder.

6. At the trial the complainant Amjad Yousaf brother of the respondent was given up by the prosecution as having been won over. However, he was examined as a Court‑witness. The respondent pleaded not guilty and denied the incriminating evidence led against him. As regards his involvement he made the following statement:‑‑‑ "My injuries two on head and one in my hand were caused by Butt of some weapon and also a Danda/lathi blow. These were caused when I had entered into a scuffle with two of the dacoits outside the car. What I can recall is that the dacoits saw light of some vehicle coming from Lahore, they got panicky and left in hurry after making me unconscious." When asked why this case against him, he stated as under:‑‑‑ "Following are the reasons:‑‑‑ (1) Police corruption and gross misunderstanding of my in‑laws, caused and instigated by P.W. Rashid, his family and Haji Chanan Din, also by S.H.O. Mansabdad, falsely involved me in this case. (2) S.I. Mansabdad is a corrupt Police Officer. He has been suspended from service a number of times. A case for accepting illegal gratification in a murder case for letting away the accused is still pending in the Court of Special Judge. Mansabdad asked money from me. I was very rude with him. I abused him. He got annoyed and developed hostile and vindictive attitude towards me. He asked bribe from my brother and my parents. For this purpose he visited my house a number of times at Kasur but was also disappointed. He got Rs.20,000 from Ibrahim of Jhulkey whom I had identified on the morning of 31‑12‑1976 as one of the dacoits, when the Police had not involved me. Mansabdad also manoeuvred to get Rs.8,000 from my in laws ensuring them that no repercussions will come on their reputation and honour. It was a very cunning and clever move. (3) During my involvement in this case there were three different groups First was of S.H.O. Mansabdad who had joined hands with Ibrahlim Malik Mansabdad was already infuriated and hostile towards me dug to my pressure on him to trace the dacoits and my refusal for giving him any bribe. 2nd group was that of P.‑W. Rashid, his father, other family members and Haji Chanan Din who were already hostile to me due to refusal of my in‑laws to marry my wife to younger brother of Bashir, Tufail and also due to other business and important reasons Both these groups poisoned the ears of my in‑law; adopting in revengeful attitude towards me. My in‑laws and others hid no dispute at the time of funeral of my wife at Kasur and also at QLLL at Kasur So much so that when my mother and children visited My in‑laws at Chiniot a number of times immediately after the occurrence, there was no unpleasantness between my family and my in‑laws. (4) On account of my marriage with the deceased there had ensued rivalry between the father of my wife and his son P.W. Sakhi Bhutta on one side and father of Rashid P.W. and his sons and Haji Chanan Din on the other. My marriage with the deceased was resented ay the family of Faqir Muhammad (father of Rashid P.W.). As he wanted the deceased to marry his son Tufail. Ever-since my marriage the family of Faqir' Muhammad had lost significance qua my in‑laws and this led to family jealousy and hostility. I have been implicated in this case on account of suspicion installed in the mind of P.W. Barkit and Sakni P.W. On the upgrading and villainous role played by Rashid P.W. and his family members alongwith Haji Chanan Din. Police had challaned me acting dishonestly in league with the aforesaid Rashid P.W. and others. The Investigating Officer acting in league with Rashid had also played the role of misleading my in‑laws to involve me in this case. (5) Poisonous Police and newspaper propaganda creating , mis-under standing in the mind of in‑laws and others. (6) Hostility and jealously of P.W. Rashid, his family members and Haji Chanan Din (father‑in‑law of P.W.9 Hamida) for the following: (a) P.W. Rashid who has three fold relationship with my late wife, and his family strongly desired that my wife Samina should be married to Tufail. Rashid P.W., his family and Haji Chanan Din were deadly against my marriage with Samina. (b) My father‑in‑law is a very rich man. This fact is proved from letter of my wife reverse of page 43 dated 26‑6‑1970 (File No.2). Prior to my marriage P.W. Rashid and his family used to get financial aid/loan from business from my father‑in‑law and mother‑in‑law which is clearly evident from the above quoted letter. Rashid and his father had lot of importance and their house at Lahore was a sort of headquarter for family problems and activities. Haji Chanan Din had also his importance in the eyes of my in‑laws. With my marriage and posting at Lahore due to my rank and position Rashid and Chanan Din were overshadowed as all importance had shifted to me, I being a high military officer. My in‑laws would prefer to come to the house of their own daughter as compared to house of P.W. Rashid and Haji Chanan Din. Therefore, Rashid and Chanan Din nourished grudge against me. (7) Sister of P.W. Rashid who is also wife of P.W. Sakhi continuously instigated P.W. Sakhi and P.W. Barkat against me. (8) Due to the above reasons my in‑laws made it a prestige point and they decided to try their best for my conviction so that they could file a civil suit for dowry and secondly to deprive my three children of their share in the property. They thought that in case I am acquitted they will be humiliated because I am completely penniless as compared to their being very wealthy and influential." No evidence was led in defence.

7. The learned Additional Sessions Judge, Kasur came to the conclusion that the circumstantial evidence produced by the prosecution was sufficient, therefore, it convicted the respondent and sentenced him to death subject to confirmation by the High Court and a fine of Rs.20,000 or in default in the payment thereof to undergo R.I. for six months. The fine, if recovered, was ordered to be paid to the children of the deceased. This is vide order, dated 24‑8‑1978. The convict appealed to the Lahore High Court. The case was also before it for confirmation of the death sentence. The appellant, father of the deceased filed a revision for enhancement of compensation.

8. All the aforesaid three matters were taken up by a learned Division Bench of the Lahore High Court. The learned Judges of the High Court went through the entire prosecution evidence on the record but were not satisfied with the same. It was observed that the crucial evidence was that of recoveries made by the Investigating Officer, Mansabdar, but no implicit reliance could be placed thereon, as he had admitted that he was suspended twice during his career as a Police Officer. He further admitted that he was also challaned for, demanding illegal gratification and the case was pending in the Court of Special Judge. The allegation was that he and his co‑accused had demanded illegal gratification in a murder case for letting off the accused. He, however, came up with the explanation that he was involved by the then Inspector General of Police. He was under suspension even at the time when he entered the witness box in this case. The above admissions tend to show that he is a person of questionable integrity. The entire investigation conducted by him has to be viewed in the light of this background. After closer examination of the evidence on the record, the learned Judges did not feel satisfied with the same. They further observed that "there are three big question marks staring the prosecution in the face, the most crucial being the survival of the deceased for quite few hours after she was fired at. Amjad Yousuf C.W. reached the spot with brake‑oil at 12.45 a.m. and the occurrence took place some time before that. Mst. Samina Balqees succumbed to her injuries at 2.45 a.m. in General Hospital, Lahore. If the appellant had. been the assailant he would not have spared her without ensuring that she was no more in this world. According to the prosecution, the revolver recovered at his instance had three more live bullets in its chamber. He could conveniently fire one or two shots more and silence her for ever. In a situation like that, he was least expected to leave her in injured condition because he could foresee that her survival would be disasterous for him. The place of occurrence is another circumstance which creates a serious doubt regarding the culpability of the appellant. Under the heading; "preparation", the trial Judge observed:‑‑‑ "Reconnoitering commonly known as reconnaissance in Military Parlance is considered to be of vital importance" and relying on the evidence of Bus Conductor Nemat and Syed Altaf Hussain Shah, A.S.I. he came to the conclusion that on the night of 29th December, 1976 "the accused was trying to select the scene for the crime". After considering the venue of occurrence and the fact that the appellant had made himself identifiable before Bus Conductor Nemat and Syed Altaf Hussain Shah, A.S.I. on the aforesaid night, one would feel that it was not a re‑connaissance but a suicidal act on the part of the appellant. Would he with all that experience as a military officer select a place just three hundred yards away from the abadi of village Jhulkey on Lahore Kasur Road where buses, trucks and all sorts of other vehicles ply day and night. The answer is in the negative. He would not commit the murder at that particular place where he had been identified by Bus Conductor Nemat and Syed Altaf Hussain Shah, A.SJ. in the light of 'a match stick on the previous night. The third circumstance which throws a serious doubt on the prosecution version is the incident of drowning. Only one month prior to the occurrence, i.e. on 28th November, 1976, Mst Samina Balqees accidentally slipped in the AX. Canal Bahawalpur where she had gone with the appellant and her children for picnic. If the appellant had been maltreating her or was having illicit intimacy with a girl prior to his marriage with the deceased and for that reason wanted to get rid of her, he could conveniently achieve his object by keeping silent for a few minutes more when she was drowning in the canal. There is nothing on the record to suggest that any cause of grievance providing a motive to the appellant to kill the deceased had occurred after 28th November, 1976. The cause of grievance, according to the prosecution, had occurred much earlier. According to Dr. Sakhi Muhammad, P.W.1 it was in the month of February or March, 1976 when the deceased complained to him that' the appellant was not treating her properly and was having illicit intimacy with Mst. Shahida. His conduct on 28th November, 1976 at the canal bank speaks volumes about his love and affection for the deceased. He shouted for help and as soon as she was brought out of the canal by Abdul Wajid P.W., he took her to C.M.H. Bahawalpur without losing any time. Would he behave in that way if he was actually fed up with her. Mere silence for few minutes on his part or a delay of few minutes in taking the deceased to C.M.H. Bahawalpur could achieve the object attributed to him by the prosecution. Could he miss that golden chance if actually he wanted to get rid of her. Like a devoted husband he made every possible effort to save her life and in the Hospital she informed Col. Sarfraz Ali that she had fallen in the canal and "fortunately she escaped". Finally, the learned Judges accepted the appeal of the respondent and acquitted him. This is vide order, dated 30‑5‑1982. Hence, these appeals.

9. We have heard the learned counsel for the parties and perused the record with their assistance. The entire prosecution case is based on circumstantial evidence. There is no direct evidence of the murder. Law relating to circumstantial evidence is that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See "Siraj v. The Crown" PLD 1956 FC

123. The prosecution evidence in this case was of the deceased last seen with the accused and from the latter was recovered a handle of the hatchet blood stained and he was absent from the' forest after the murder. The learned Federal Court held that the evidence was not sufficient and the accused was acquitted. In the case of "Karamat Hussain v. The State" 1972 SCMR 15 it was laid down that "In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused".

10. Although the learned trial Court accepted the circumstantial evidence in the present case, yet after its re‑appraisal the learned Judges of the High Court found it insufficient for the reasons already quoted. The motive given by the prosecution was that because of a liaison with a girl from Xasur the respondent tried to get rid of his wife and in that behalf he tried to drown her in a canal in Bahawalpur. The incident of drowning was dated 28‑11‑1976. P.W.7 Lt. Col. Zafar Ali Commanding Officer, C.M.H. Bahawalpur deposed that "the wife of the accused according to the record was brought . in the Hospital in unconscious condition and the accused gave the history to the concerned doctor". He had also deposed that "the wife of the accused informed me that she fell in a canal near Bahawalpur and fortunately she escaped". The observation of the learned Judges of the High Court that if the accused/respondent had intended to kill his wife he needed only few minutes to wait for her drowning. Nor did he need to take her in unconscious condition to the Hospital for treatment. This incident of drowing was not mentioned as a complaint by the deceased to her brother Dr. Sakhi Muhammad, P.W.1 who visited her in the first week of December, 1976. Although the witness said that the accused "did not permit his sister to be all alone to have a talk with me for a moment and all the time accused remained present", yet he had stayed overnight and if the lady had believed that because of liason with another girl the respondent had tried to get rid of her by drowing, she would have found some moments to convey the information. More importantly she came to the house of her parents in Chiniot and stayed there for 4/5 days but her father who appeared as P.W.8 did not depose that the deceased ever mentioned the incident of drowing to him during this period. The second incident about planning and reconnaisance as the learned trial Court put it of a night earlier than the murder, the learned Judges of the High Court observed that that would have been a suicidal act to get identified. Therefore, these two incidents do not furnish fool proof evidence of the intention of the accused respondent. The greatest anxiety caused is by the evidence that the deceased was found. shot at on the front seat of the car. The accused must be on the steering wheel. The car was parked whether intentionally by the respondent or accidentally because of the failure of the brakes, but parked it was. The question considered was whether the respondent shot or the dacoits as alleged by him. The injuries caused to the deceased are not unequivocal that those were caused from a fire from the right side of the deceased where the accused was sitting, or from the left from which side the dacoits would come and fire. It was laid down in "Machia and 2 others v. The State" PLD 1976 SC 695 at 707 that "Medical evidence by itself and without more cannot throw any light on the identity of the assailants". It may also be noted that according to the prosecution evidence the couple was travelling with the brother of the accused. If the accused had intended to kill his wife on the way he would not have normally taken his brother alongwith them. Secondly, the occurrence had taken place while the car was parked near a village and close by a brick kiln. If the respondent had intended to kill his wife he could have easily chosen a more deserted place on the way. Moreover, we are dealing with an appeal against acquittal. Law on the subject is summarized in "Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 at 18‑

19. It is as follows:‑‑‑ "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for there‑appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach, is mainly conditioned by the fact that the acquittal carries with it the two well‑accepted presumptions; one initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) In either case the well‑known principles of re‑appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumption keeping always in view that a departure from the normal principle must be necessitated be obligatory observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on re appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by the Court was such that no reasonable person, would conceivably reach the same and was impossible then this Court would interfere exceptional cases on overwhelming proof resulting in conclusion an irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous. In the light of the principles enunciated above, the judgment of the learned Judges of the High Court cannot be interfered with. Therefore, these appeals are dismissed. M.B.A./B‑193/S Appeals dismissed.