2009 PLP 1219 (MLD)

SYED SHABBAR RAZA RIZVI, J.

We propose to decide Criminal Appeal No.169 2007 titled Falak Sher v. State and Criminal Appeal No.168 of 2007 titled Muhammad Mansha, etc. v. State as both appeals are outcome of the same impugned judgment.

2. Appellants Falak Sher, Muhammad Mansha and Nishan Ali along with Muhammad Yaseen, Ranjha, Mst. Rasoolan Bibi and Mst. Khatoon Bibi (since acquitted), were tried by Sardar Ahmad Khan Maiken, Additional Sessions Judge, Sheikhupura in complaint case under sections 302, 148, 149, 109, P.P.C. for committing murder of Mst. Roqayya Bibi and Mst. Mumtaz Bibi. After completion of the trial, Falak Sher, appellant was sentenced to death on two counts under section 302(b), P.P.C. as Tazir. He was also ordered to pay compensation of Rs.100,000 to the legal heirs of each deceased under section 544-A, Cr.P.C., failing which to undergo R.I. for two years. While, Muhammad Mansha and Nishan Ali were convicted and sentenced to file imprisonment. They were also directed to pay compensation of Rs.50,000 each to the legal heirs of both deceased, failing which to further undergo R.I. for one year. They were given benefit of section 382-B, Cr.P.C.

3. The complainant, Mst. Iqbal Begum, P.W.2 filed a private complaint alleging that her two daughters Mst. Roqayya Bibi and Mst. Mumtaz Bibi (deceased) were married with Muhammad Mansha and Nishan, appellants 4/5 years ago. Four months prior to the occurrence, they came to the complainant at Lahore due to strained relations with their husbands, who were sent back with the intervention of the respectable. That 7/8 days prior to the occurrence the deceased took a house on rent in the village Baway-da-Kutia and started living therein. On 27-8-2004, the complainant along with her daughters Mst. Sardar Begum, Mst. Parveen Bibi, P.W.3 came to see the deceased and due to shortage of space in the courtyard, their cots were put on the rooftop. At about 10 p.m., on hearing the noise, they saw that Falak Sher accused armed with hatchet, Nishan armed with Hatchet, Mansha armed with Churri, Yaseen and Ranjha accused armed with hatchet and Churri respectively, were causing blows to her daughters while Mst. Khatoon accused was raising lalkara that the victims be slashed as they were not acceding to the demands of the accused. The complainant and the P.Ws. came down when Mst. Khatoon Bibi asked the other co-accused that the complainant and the P.Ws. also be put to death. On listening their hue and cry, the residents of the locality gathered there. In the meantime, the accused fled away. While decamping, Mst. Rasoolan Bibi accused said to the complainant, that she had got slaughtered the daughters of the complainant as she had threatened earlier. The complainant reported the matter to the police at Police Station and Abdul Aziz, 112/C, Hidayat Ullah 668/C took the dead bodies for post-mortem examination to the mortuary at Sheikhupura. After registration of the F.I.R. No.631/2004 at Police Station Factory Area, only Falak Sher was arrested by the police. The motive behind the occurrence was that the deceased owned one or two marlas of land at Lahore and the accused wanted to sell that land to usurp the sale price but the deceased did not concede to demand of the appellants, therefore, the accused with the abetment of Mst. Rasoolan Bibi, etc. murdered the daughters of the complainant, The complainant being not satisfied with the investigation, filed the complaint before the Sessions Court.

4. To prove the guilt of the accused, the prosecution examined 8 Prosecution Witnesses and 3 Court Witnesses.

5. Lady Doctor Farida Sheraz Waraich was examined as P.W.5. On 28-8-2004, she conducted the post-mortem examination of Mst. Mumtaz Bibi wife of Mansha and found the following injury:-- "An incised wound 10 c.m. x 4 c.m. in front of neck upper most part Underlying vertebra cut (third) making damage skin, muscles, blood Vessels, trachea, esophagus spinal cord cut." On the same day, at 4 p.m., this lady doctor also conducted the post-mortem examination on the dead body of Mst. Ruqayya Bibi wife of Nishan Ail and found the following injuries:-- (1) An incised wound 10 x 2 c.m. x underlying bone cut on right lower jaw, making damage skin muscles, blood vessel, teeth of right side. (2) An incised wound 8 x 2 c.m. x bone deep. On upper part, in front of neck, making damage to skin, muscles, blood vessels, trachea esophagus. (2) And incised wound 8 x 2 c.m. x underlying bone of left hand, cut on back of left hand little finger, ring finger and middle finger cut, making damage skin, muscles, blood vessels.

6. Hidayat Ullah, 668/C was examined as P.W.1. He stated that on 27-8-2004, he along with Abdul Aziz, 712/C took the dead bodies of Mst. Ruqaya Bibi and Mst. Mumtaz Bibi to the mortuary of DHQ Hospital, Sheikhupura for post-mortem examination. He produced last worn clothes of both deceased before the I.O. which were taken into possession through memo. Exh.P.A. and Exh.P.B. Mst. Iqbal Begum, appeared as P.W.2., She was complainant of the case. She supported the prosecution story as an eye-witness of the occurrence. Mst. Parveen Bibi appeared as P.W.3. She was daughter of P.W.2. She also supported the prosecution story as an eye-witness of the occurrence. Her statement is in line with that of the complainant. Ch. Hameed ud Din Chishti, Draftsman, appeared as P.W.4 and stated that on 30-8-2004 he inspected the spot and prepared the site-plan Exh.PG. Khayrat Ali appeared as P.W.6 and stated he knew the complainant as well as the deceased. He further stated that three or four months prior to the occurrence, the deceased refused to sell the plots which were in their names at the instance of accused. Abdul Aziz, 712/C appeared as P.W.7 and deposed that on 28-8-2004 he along with Hidayat took the dead bodies of both deceased to the hospital for post-mortem examination. He further deposed that on 1-9-2004 Basharat Ali, MHC handed over to him two sealed parcels of blood-stained earth which he delivered to the office of Chemical Examiner: On 27-9-2004, Basharat Ali also handed over to him one sealed parcel containing hatchet which he delivered to the office of Chemical Examiner, Lahore along with two sealed boxes said to contain swabs. He delivered the said parcels on the same day. Basharat Ali, 601/MHC appeared as P.W.8. He stated that on 28-8-2004 the I.Q. handed over him two sealed parcels containing blood-stained earth for keeping in safe custody in police malkhana. He kept the same in malkhana and then on 1-9-2004 handed over the said parcels to Abdul Aziz, 712/C for onwards transmission to the office of Chemical Examiner, Lahore. He further deposed that on 27-9-2004, the I.O. handed over to him one sealed parcel containing hatchet and two parcels containing swabs which he kept in safe custody. On the same, date, he handed over the said parcel along with sealed boxes to Abdul Aziz, 712/C for onward delivery to the office of Chemical Examiner, Lahore. Shafqat Ali, S.-I. appeared as P.W.1. He deposed that on 27-8-2004 while he was on patrol duty along with police officials at Khanpur canal, he received information about the occurrence. On which he proceeded to the place of occurrence where the complainant, Mst. Iqbal Begum appeared before him and made her statement Exh.P.C. He sent the complaint to the Police Station and he himself inspected the spot, prepared unsealed site-plan of the place of occurrence Exh.C.W.1/A. Then he prepared inquest report of Mst. Mumtaz Bibi as Exh. CW 1/B and that of Mst. Ruqaya Bibi as Exh.CW1/C. He also prepared injury statements Exh.CW1/D and CW1/E respectively. He drafted an application for post-mortem examination of both the deceased Exh.CW1/F and handed over the dead bodies to Abdul Aziz, 712/C and Hidayat Ullah, 663/C for post-mortem. He secured blood-stained earth from the place where the dead body of Mst. Ruqaya Bibi was lying vide recovery memo. Exh.PE and from the place where the dead body of Mst. Ruqaya Bibi was lying vide recovery memo. Exh.P.E. and from the place where the dead body of Mst. Mumtaz Bibi was lying vide memo. Exh.PF respectively. On 28-8-2004, Abdul Aziz and Hidayat Ullah constables produced before him blood stained last-worn clothes of the deceased which were taken into possession through memo. Exh.PA and Exh.PB. He also recorded the statement of the P.Ws. under-section 161, Cr.P.C. On 14-9-2004, he arrested Falak Sher, accused/appellant and obtained his physical remand. On 17-9-2004, Falak Sher accused while in police custody led to the recovery of hatchet P5 from a residential house which was taken into possession through memo. Exh.CW1/G. On 19-9-204 Falak Sher accused was sent to judicial lock up. On 25-9-2004 Ghulam Abbas Inspector prepared report under section 173, Cr.P.C. against Falak Sher accused. Zafar Ali, C.W. 2 deposed that on 27-8-2004, on receipt of complaint Exh.PC, he recorded the formal F.I.R. Exh.PC/1. Muhammad Quraish, 925/HC was the recovery witness of hatchet P

5. He along with Zulfiqar Ali attested the recovery memo. of hatchet.

7. Mst. Iqbal Begum, complainant tendered in evidence photostat copy of report of Chemical Examiner regarding blood-stained earth of Mst. Mumtaz Exh.PJ., photostat copy of report of Chemical Examiner regarding blood stained earth of Mst. Ruqaya Exh.PK, photostat copy of report of Serologist regarding blood-stained earth of Mst. Mumtaz Exh. PL., photo stat copy of report of Serologist regarding blood-stained earth of Serologist regarding hatchet as Exh.PN and closed the prosecution evidence.

8. After close of the prosecution evidence, statements of the accused were recorded under section 342, Cr.P.C. Falak Sher, appellant in reply to question, "Why this case against you and why the P.Ws. deposed against you", he replied as under:-- "P.Ws. are closely related to the deceased and they have made false statement against me. The occurrence had taken place in the night. I am resident of village Jatri Nan, Police Station Sardar Farooqabad (now Police Station Safdarabad, District Nankana Sahib) and have never been of village Baway-da-Kutia, Police Station Factory Area, Sheikhupura. The deceased, Mst. Mumtaz Bibi and Mst. Ruqayya Bibi were married with Mansha and Nishan co-accused, respectively. Deceased Ruqayya Bibi was previously married with one Maqbool Malik at Kasur. She had 9 children from her first husband namely, Maqbool Malik of Kasur. Her relations with the said Maqbool became strained, she got divorce from him and then contracted second marriage with my brother Nishan. This fact infuriated deceased Mst. Ruqayya's children in general and her adult sons Mehmood and Imran in particular. They thought that their mother disgraced them and their family in the society, so they bore grudge against the deceased. The deceased were all alone in the house and might have been murdered by the said Mehmood and Imran. The police summoned Nishan and Mansha after the occurrence from the village Jatri Nau through Police Station Sadar Farooqabad by sending wireless message and then Police summoned the P.Ws. from Lahore with the help of Mst. Khatoon Bibi. The complainant and P.Ws. concocted a false story and implicated me and my co-accused in this case, with ulterior motive. In fact none of the P.W. was present at the place of occurrence and they had not witnessed the occurrence. I had no motive against the deceased and have been implicated on mere suspicion. I appeared before the police by myself and narrated about my innocence but the police did not record my version and challaned me under the influence of complainant party." The trial culminated into conviction and sentence of the appellants and -acquittal of co-accused as mentioned above. Hence these appeals.

9. The learned counsel for the appellants contended that the appellants are innocent; the prosecution failed to prove its case beyond any shadow of doubt; the occurrence was not witnessed by the P.Ws.; the recovery was planted and confession of Falak Sher, appellant cannot be made basis of any conviction/sentence. Such confession is not recognized in law.

10. On the other hand, the learned Deputy Prosecutor General, Punjab supported the order of the learned trial Court.

11. At this stage, we would like to examine/discuss the prosecution evidence. According to P.W.1, he had taken the dead bodies to the Police Station from the place of occurrence and then on 28-8-2004, the dead bodies were escorted from Police Station to the mortuary. According to P.W.2., Iqbal Begum who was also complainant, when along with Mst. Sardar Begum and Parveen Begum she reached at the house of deceased at 8 p.m., accused were present there. She had not mentioned presence of accused in Exh.PC as well as in complaint Exh.PD., P.W.2 also stated in the Court that appellant, Falak Sher was caught by the Mohalladars. She had not mentioned so in F.I.R. and complaint. In Exh.PC and Exh.PD, she mentioned that on their hue and cry accused had fled away. Moreover, CW1 Shafqat Ali, S.-I. stated before the Court that he arrested appellant Falak Sher on 14-9-2004 and obtained physical remand from the learned Magistrate. He further stated that on 17-9-2004, he recovered hatchet P5 from his residential house which was taken into possession vide recovery memo. Exh.CW1/G. It may also be mentioned that overall prosecution case is that P5 was recovered from the house of the deceased where occurrence took place. During the cross-examination of P.W.2, she contradicted on all material points, in her statement Exh.DA on oath before the trial Court and Exh.PC. To avoid any ambiguity, few lines from her cross-examination are reproduced herein:-- "I had stated before the police that when we reached in the house of Mst. Ruqaya and Mumtaz (both deceased), the accused Mansha, Nishan, Falak Sher, Yasin and Ranjha were present over there (confronted with Exh.PC wherein not so record). I also stated in my sarsari statement that all the said five accused were present in their house when we reached there (confronted with Exh.DA where it is not so recorded). I had mentioned names of all the said five accused in my sarsari statement (confronted with Exh.DA wherein it is not so recorded). I had stated in my sarsari statement that Nishan, Falak Sher and Yasin accused were armed with hatchets (confronted with Exh.DA wherein names of the accused being armed with hatchets are not mentioned). I had stated in my sarsari statement that Nishan and Ranjha accused were armed with Churri (confronted with Exh.DD wherein names of the accused armed with Churri are not recorded). I had stated before the police that Falak Sher accused was caught hold by the mohalladars (confronted with Exh.PC wherein it was not so recorded)."

12. P.W.3., daughter of P.W.2 and real sister of both deceased also stated before the Court that their cots were put on rooftops of the house due to shortage of space in the courtyard and at 10 p.m. they heard noise in the courtyard whereupon saw accused Falak Sher, etc., inflicting injuries to the deceased. She also stated that residents of Mohalla had gathered who caught hold of appellant/accused, Falak Sher at the spot. As pointed out in the preceding para, on point of arrest P.W.3 and P.W.2 were contradicted by C.W.1. At this point, it may also be pointed out that in site-plan prepared by C.W.1, Exh.CW1/A and site-plan prepared by P.W.4., Exh.PG, no such cots were shown on the rooftops. P.W.3 also stated in her statement before the Court that there was a wooden ladder in the house of occurrence but no such ladder was shown in the site plans above mentioned. P.W.4., Ch. Hamid ud Din, Draftsman categorically stated as under:-- "I had shown two cots in the courtyard where the occurrence had taken place, in site-plan Exh.PG. I had not shown in any other cot there in the site-plan. I had not shown on the top rooftop Churri any cot in the site-plan. I had not shown in site-plan Exh.PG from which side the accused came to the place of occurrence and left the place of occurrence. According to P.W.4, he visited the place of occurrence on 30-8-2004 and took notes on the pin pointing of the 'P.Ws. and on the direction of the I.O. Despite that he clearly did not support the description of cots which were supposedly used by P.W.2 and P.W.3 for their sleeping on the rooftop. He categorically mentioned only cots in the courtyard. He also omitted to show the presence of any wooden ladder, as stated by P.W.3." (13) P.W.1. Hadayat Ullah, 668/C stated in examination-in-chief:-- "On 27-8-2004, I along with Abdul Aziz, 712/C took the dead bodies of Ruqaya Bibi and Mumtaz Bibi to the mortuary DHQ Hospital, Sheikhupura from the place of occurrence." However, he explained in his cross-examination, "I took the dead bodies to the Police Station from the place of occurrence and then on 28-8-2004 the dead bodies were escorted from Police Station to mortuary." P.W. mentioned name of Abdul Aziz, 712/C who also recorded his statement before the Court as P.W.7. Let us see what he stated before the Court:-- "On 28-8-2004, I along with Hayat Ullah, 668/C took the dead bodies of Ruqaya Bibi and Mumtaz Bibi to the mortuary at Sheikhupura from the place of occurrence." He deliberately and for obvious reason omitted date of 27-8-2004 and tried to hide that on 28-8-2004 dead bodies of the deceased were taken to mortuary from the Police Station and not from the place of occurrence as stated by P. W.1. Even otherwise, it was not possible that after occurrence on 27-8-2004, the bodies would remain at the place of occurrence until afternoon of 28th August, 2004. The humidity of month of August would not allow that. At this point, a reference may also be made to the statement of C.W.1. and Exh.C.W,1./B wherein it is mentioned that occurrence became known to C.W.1 at 10-30 p.m. (night) on 27-8-2004. According to doctor, P.W.S., on 28-8-2004 at 4 p.m. she conducted post-mortem of the deceased. According to P.W.5, the time between the injury and death was immediate while between death and post-mortem within 24 hours. Even in injury statements of both deceased Exh.CW1/D and CW1/E, dated 27-8-2004 it is mentioned that the dead bodies were being sent for the post-mortem. Therefore, in the presence of these documents, can statement of Abdul Aziz, P.W.7 be believed that he had taken dead bodies to mortuary on 28-8-2004 directly from the place of occurrence. Therefore, we tend to believe statement of P.W. that on 27-8-2004 dead bodies were taken to the Police Station from the place of occurrence and they were taken to the mortuary on the following day i.e. on 28-8-2004. Why this was done?

14. C.W. Shafqat Ali S.-I. stated that he arrested appellant, Falak Sher on 14-9-2004 and on his pointation recovered weapon of offence hatchet P5 on 17-9-2004, from his residential house but in actual recovery memo. Exh.CW1/G place of recovery is shown place of occurrence. At this point, two points need consideration. P.W. and P.W.2 unambiguously stated that appellant, Falak Sher was arrested by the neighbours at the time of occurrence but C.W. negated above statements. Likewise, recovery of hatchet P5 seems doubtful. How could an accused leave the weapon of offence in a house occupied by deceased or the enemy. At this point statement of C.W. may be referred to in his own words:-- "The weapon of offence, hatchet was recovered from the house of occurrence. The house of occurrence was surrounded by other houses. At the time of recovery, some persons had gathered but none was ready to become witness. I did not associate any notable of the vicinity i.e. councillor or lumbardar with the recovery proceedings. I do not remember I had the said persons to join the investigation at that time or not. Main door of the house of recovery was lying open at the time of recovery. No household articles were lying in the room of recovery of hatchet." We do not think that the above description can convince a man of ordinary prudence to believe the recovery of weapon of offence P5 in the above circumstances as natural or believable.

15. The above discussion in relation to statements of P. W.1., P.W.S. and C.W.1 on the one hand and statements of P.W.2 and P.W.3 on the other hand provide strength to belief that occurrence had not taken place as described by the prosecution. It also seems that the occurrence was not witnessed by P.W.2 and P.W.3. The story of the defence is more probable that P.W.2 and P.W.3 were called from Lahore and thereafter the whole story was coined. This is the reason why P.W. stated that dead bodies were taken on night of 27-8-2004 to the Police Station on the following day after registration of F.I.R., etc. the dead bodies were taken to the mortuary, where post-mortem was conducted at 4 p.m. In normal circumstances, post-mortem would have been conducted in the early part of the day on 28-8-2004. The story of the prosecution is doubtful for another reason also. In this context, we again refer to the statement of CW1 who stated:-- "On photostat copies of the statement of complainant Exh.PC no time of recording police karwai is given. Volunteered, in the original statement the time is given which might have been missed from the photostat copy. It is incorrect that volunteered portion of my statement is false. It is incorrect that no time was given due to the reason that the case was registered on the next day after due deliberation and consultation."

16. As noted above, photostat copy of the statement of complainant Exh.PC did not have any time and date because original F.I.R. Exh.PC/1 says that the occurrence was reported on 27-8-2004 at 11-30 p.m. but karwai police shows time 11 p.m. on 27-8-2004. However, strangely, Exh.C.W.1/V, inquest report of CW1/B and Exh.CW1/C show time as 10-30 p.m. It must be noticed that karwai police or report to the Police Station is sent as soon as complaint is received from the complainant outside police station first before going to the scene of occurrence. Inquest report is filled at the scene of occurrence which, in this case was done at 10-30 p.m. C.W. 1 did not realize while filing time in Column-III of Inquest Report as 10-30 p.m. that he had already written time in karwai police as 11 p.m. These mistakes were made as everything was done to make up the deficiencies in the prosecution case C and after due deliberations and consultations.

17. For the above reasons and grounds, we hold that the case of the prosecution is full of serious doubts, material contradictions and this prosecution evidence cannot be made basis to uphold the decision of the learned trial Court.

18. Before we part with this judgment, an observation may be made upon another finding of the learned trial Court. The learned trial Court observed:-- "It has smacked from the stance of Falak Sher accused which he took at his own before the Court on the day of pronouncement of this judgment that he had alone murdered both the victims due to having -found them with a man in an objectionable condition; that this accused was assisted by the husbands of both the deceased, being accused Nishan and Mansha who also were annoyed with them on the allegation of their bad character. I am mindful of this fact that any such disclosure made by the accused in such manner may not be considered equivalent to a material evidence but in the case in hand, I feel myself constrained to take judicial notice of it for considering the guilt of this accused as well as to draw an inference about the assistance rendered by the co-accused Nishan and Mansha, because the injuries caused to the victims could not be inflicted by one accused." The learned trial Court attached unnecessary and unwarranted importance to the statement of appellant, Falak Sher which is also repugnant to the provisions of relevant provisions of the law i.e. sections 164, 364 and 265-E, Cr.P.C. The learned Court wrongly inferred from the so-called confessional statement of appellant, Falak Sher that he was the principal offender, therefore, could also be abetted/helped by appellant Nishan and Mansha. Before the commencement of trial a confession can be made under section 164., Cr.P.C. After commencement of trial Court confession may be made under section 265-E or 364, Cr.P.C. The confession before the learned trial Court on the day of pronouncement of the judgment is not recognized in the Code. Confession even when made under sections 164 and 364, Cr.P.C. is viewed with very care and caution. If any fault is found in the procedure, confession is not believed or made basis for conviction. Therefore, we reject the inference of the learned trial Court in the above context which is mentioned in para. 25 of page 15 of the judgment of the learned trial Court.

19. In a similar situation, the learned Peshawar High Court accepted the appeal and did not agree with the finding of the learned trial Court. It may be pointed out that in the precedent case, appellant pleaded guilty under section 365-E which is a recognized stage at a trial. According to the facts, the appellant was charged under section 302, P.P.C. to which he pleaded guilty and stated that he had committed the murder of the deceased. The learned trial Court after recording of his pleading asked him as to why he should not be sentenced. Whereupon, the appellant again repeated his guilt. In consequence of which, the impugned order of his conviction and sentence was passed. The learned Division Bench of the Peshawar High Court observed as under:-- "It is true that the proceedings before the trial Court indicate, that the appellant has made a confession voluntarily but whether it is true or not is still to be seen and which conclusion can be arrived at by reference to the material on record. Though no specific reference has been made -to this aspect of the case in the impugned judgment, yet it appears that the trial Court in order to satisfy itself about the nature of the confession as to whether it is true or not has referred to some. material on record by' reproducing the medical report submitted by the doctor and also the evidence collected by the I.O. but their evidence to that aspect was not recorded in the Court and in the absence of which such material i.e. the medical report and the various evidence collected by the I.O. referred, to in the judgment cannot be considered as a legal evidence against the appellant." (Tariq Mehmood v. State 2000 PCr.LJ 837.

20. The statement of appellant, Falak Sher in the instant case on the day of pronouncement of judgment is at much weaker pedestal, therefore, is not tenable and inference drawn by the learned trial Court is rejected.

21. As a result of above, Criminal Appeal No. 168 of 2007, and Criminal Appeal No.169 of 2007 are allowed. The conviction/sentence of the appellants is set aside and they are acquitted of the charges. They are directed to be released forthwith if not required in any other case.

22. Murder Reference No.34 of 2007 is answered in the Negative. N.H.Q./F-49/L Appeals accepted.