2022 PLP 193 (MLD)

RAJA SHAHID MEHMOOD ABBASI, J.

Through this judgment, we intend to decide Criminal Appeal No.970 of 2019 filed by Umer Zaib appellant against his conviction and sentence along with Murder Reference No.88 of 2019 received from learned trial court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 30.10.2018 passed by learned Additional Sessions Judge, Taxila in case FIR No.175 dated 25.04.2018 registered under section 302, P.P.C., at Police Station Saddar Wah, District Rawalpindi, whereby the appellant was convicted under section 302(b), P.P.C. and sentence to death with the direction to pay a sum of Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased. In case of non-payment of compensation, the amount shall be realized as arrears of land revenue or in default thereof the appellant will undergo simple imprisonment for six months.

2. The brief facts as narrated in FIR (Ex.PN) lodged by Gul Munir complainant (PW7) are that he was resident of Upper Deer and was working at Bismillah Service Station along with his brother Sami Ullah. During the days of incident, he along with his wife Mst. Khalida and brother Sami Ullah was residing in Wah Garden in a rented house. Umer Zaib (hereinafter referred as the appellant), who was his villager, used to visit his house off and on. Mst. Khalida had informed him about appellant's bad intention of developing illicit relations with her, due to which the appellant had nourished grudge against her. On 25.04.2018 at about 12:30 p.m. he along with his brother Sami Ullah, as per routine, came to his house to have lunch; the door of the house was open and on hearing the hue and cry of his wife, he along with his brother rapidly climbed the stairs and saw that the appellant was giving chhuri blows to his wife, while saying that she would be taught a lesson for complaining her husband. On seeing the complainant and his brother, the appellant while brandishing chhuri and extending threats made his escape good. Motive behind the occurrence was that few days prior to the occurrence, the complainant had forbidden the appellant to visit his house.

3. After registration of FIR, investigation of the case was conducted by Fakhar Abbas S.I. and after its completion, report under section 173, Cr.P.C. was submitted against the appellant.

4. On indictment, the appellant pleaded not guilty and claimed trial. The prosecution in order to prove its case produced 12 witnesses out of whom Gul Munir complainant (PW7) and Sami Ullah (PW8) have furnished ocular account and the former also testified about the recovery of chhuri at the instance of appellant, whereas Fakhar Abbas S.I. (PW11) stated about various steps taken by him during the investigation of the case. Lady Dr. Mansoora Ismail (PW10) has conducted autopsy on the dead body of Mst. Khalida deceased vide postmortem report (Ex.PJ) and noted following injuries:-

1. On the left arm at dorsal surface 7.5 cm x 3.5 cm x 1.5 cm muscle exposed crossing below joint. 2. 2 cm below injury No.1, 4.5 cm x 1.7 cm x 0.5 cm skin deep.

3. On the left side of the chest 3 cm x 1.5 cm x 1 cm skin deep, 5 cm below the left breast. 4. 5 cm below the injury No.3 about 6 cm x 2 cm x 1.5 cm in the left hypochondrium. 5. 3 cm x 1 cm x 0.5 cm in the mid sternal region go towards the right-side skin deep.

6. On left breast 6 cm 2 cm deep inside the cavity and injured heart and left lung and on autopsy on the circular wound on heart and lung and blood in chest cavity was found 3 cm away from left sternal border and 2 cm away from the left nipple.

7. In the right hypochondrium 3.5 cm x 1 cm penetrating into cavity at dissection of 3 cm fine cut one surface of right lobe of liver and ascending colon injured with a circular opening to through which fecal matter coming out

8. An injury of 2 cm x 1 cm size skin deep 5 cm away from umbilicus.

9. On anterior aspect of right thigh 3.5 cm x 1.5 cm skin deep. 10. 2.5 cm below injury No.9 and 2.5 cm x l cm skin deep.

11. On the back in left iliac fossa 4.5 cm x 1 cm skin deep. According to the doctor, the cause of death in this case was due to injury No.6 which damaged the heart and led to profuse bleeding followed by cardiac arrest. Duration between the injuries and death was immediate and between death and postmortem examination was within four hours. The remaining prosecution witnesses, more or less, are formal in nature. The prosecution renounced PWs Muhammad Muntazir Shah and Bacha Zada being unnecessary and closed its evidence after tendering the reports (Ex.PO and Ex.PP) of Punjab Forensic Science Agency, Lahore.

5. The statement under section 342, Cr.P.C., of the appellant was recorded wherein he refuted the allegations leveled against him and professed his innocence. While answering to a question that why this case was registered against him and why the PWs deposed against him, the appellant replied as under:- "Infact, deceased was not enjoying good reputation and she was murdered by complainant Gul Munir himself when he found her in compromising situation with some other person. I and complainant belong to the same area and this is the reason that I heard this entire story from the people of our area soon after the occurrence. Our families had previous grudge in our native village. The complainant joined hands with the .1.0 and then nominated me in order to save his own skin and to teach a lesson to my family. There is no independent witness of the occurrence. The complainant and the other PWs are real brothers. Nothing was recovered from my possession. I am quite innocent and have been made a scapegoat. PWs have deposed against me to shift the responsibility of the offence to me which they had committed themselves." The appellant did not opt to record his statement as provided under section 340(2), Cr.P.C. or produce any evidence in his defence.

6. The learned trial court vide its judgment dated 30.10.2018 found the appellant guilty, convicted and sentenced him as mentioned above. Hence, the present appeal and the connected murder reference before us.

7. Learned counsel for the appellant inter alia maintains that the evidence on record has not been appreciated in its true perspective, which resulted in serious miscarriage of justice; that the prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence; that there are so many contradictions in the statements of prosecution witnesses, which went unnoticed by learned trial court; that the appellant is absolutely innocent and has been falsely roped in this case due to erratic guesswork and malicious intentions of the prosecution; that the unnatural conduct of the alleged eye witnesses speaks volume about their non-availability at the spot at the relevant time; that open eyes and mouth of the deceased also pointed out the absence of so-called eye witnesses at the place of occurrence at the relevant time, but learned trial court failed to appreciate these important aspects of the case while pronouncing guilty verdict against the appellant. He further contends that the medical evidence is in conflict with ocular version which aspect of the matter has not been dilated upon properly; that the recovery of chhuri was planted on the appellant only to strengthen the prosecution case against him and the prosecution was also unable to prove the motive part of the occurrence against the appellant, which created serious doubt in this case; that the prosecution has failed to prove its case beyond the shadow of doubt and the evidence so produced is not confidence-inspiring or worthy of reliance, hence, prays that the appeal may be accepted, murder reference may be answered in negative and the appellant may be acquitted of the charge.

8. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and inter alia maintains that the appellant is nominated in a promptly lodged FIR with specific role of committing murder of an innocent lady that too on account of the grudge that she had informed her husband about appellant's bad intention of developing illicit relations with her; that the appellant as well as the eye witnesses belonged to the same village which shows that they were familiar with each other and there was no chance of misidentification of appellant by the eye witnesses at the time when he was inflicting chhuri blows on the person of the deceased; that the presence of eye witnesses at the place of occurrence is quite natural and their presence in their dwelling house cannot be disputed; that the prosecution case finds ample support from medical evidence; that the recovery of weapon of offence stood proved against the appellant and in this regard the report of the Punjab Forensic Science Agency was also received in positive; that the motive part of the occurrence has also been proved by the prosecution and its case against the appellant stands proved beyond any shadow of reasonable doubt. Finally prays that the appeal may be dismissed, murder reference may be answered in affirmative and death sentence of the appellant may be confirmed.

9. After hearing the learned counsel for the parties and going through the record, we have observed that Mst. Khalida deceased met with an unnatural death in the residential room of her house and according to the prosecution, her husband Gul Munir complainant (PW7) and brother-in-law Sami Ullah (PW8) had witnessed the tragedy when they returned home from their workplace to take lunch. The pivotal question to be determined by us is whether the alleged eye witnesses were present at the place of occurrence at the relevant time and had witnessed the tragedy as claimed by them and whether their conduct is acceptable to a common prudence? In an attempt to unearth the answer of this crucial question, we have minutely examined their statements and found that though they stated to be present at the scene of occurrence at the relevant time and to have witnessed the tragedy, but the prosecution side has absolutely failed to justify their own conduct at the spot. As noted above the alleged eye-witnesses, when returned home to take lunch, the door of their house was open and on hearing the hue and cry of the deceased, they hurriedly climbed the stairs and saw that the appellant was inflicting chhuri blows to the ill-fated wife of the complainant. According to site plan (Ex.PD), the assailant as well as the deceased were near northern wall of residential room at points Nos.1 and 2 respectively whereas the alleged eye-witnesses were present inside the door of the same room at point No.3 and if such was the state of affairs, it was absolutely beyond possibilities that the assailant, who was only equipped with a conventional tool like chhuri, was successful in making his escape good that too untouched and unscathed in the presence of two well-built male witnesses i.e. Gul Munir (PW.7) and Sami Ullah (PW.8). Strangely enough, none of the aforementioned closely related witnesses of the deceased dared to physically intervene in order to save the victim or apprehend the accused at the spot. The prosecution has no explanation as to why both the witnesses of the occurrence preferred to be lame ducks at the time of occurrence and did not make any resistance whatsoever, particularly when the assailant was not equipped with any firearm tool or lethal weapon, therefore, the passive conduct of the so-called eye witnesses by not making any resistance or rescuing the deceased or letting the appellant escape unhurt is a query which begs for explanation. The claim of alleged eye witnesses that they had witnessed the tragedy with their own eyes is bristling with doubts from whatever angle it is looked and is creating a serious doubt with regard to their presence at the crime scene at the relevant time. Reliance in this respect is placed on the case of "Muhammad Asif v. The State" (2017 SCMR 486), wherein the Hon'ble Supreme Court of Pakistan has held as under:- "

10. We fail to understand that in the presence of the two close friends accompanying the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far away as shown in the site plan." Apart from the unnatural conduct of Gul Munir complainant (PW7) and Sami Ullah (PW8), we have observed that their arrival at the place of occurrence exactly at a point of time when the assailant was inflicting churri blows on different parts of body of the deceased is also a circumstance, which casts further doubt on their veracity. Guidelines in the said respect can be sought from the case of "State through Advocate General Khyber Pakhtunkhaw Peshawar v. Hassan Jalil and others" (2019 SCMR 1154) and "Muhammad Imran v. The State" (2020 SCMR 857). In Muhammad Imran's case, the Hon'ble Supreme Court of Pakistan has held as under:- "3....... arrival of Noor Seema (PW) at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case." Another intriguing aspect of the case badly shattering the presence of alleged eye witnesses at the crime spot at relevant time is that according to lady Dr. Mansoora Ismail (PW10) as well as inquest report (Ex.PL), the eyes and mouth of the deceased were open with her teeth exposed which means that she remained unattended for quite some time after the occurrence. We may observe here that if the alleged eye witnesses were present at the spot at the time of occurrence, then, at least, after the death, as is a consistent practice in our society, they would definitely have closed the eyes and mouth of the deceased on her expiry. Reliance in this respect is placed on the case of "Muhammad Asifv. The State" (2017 SCMR 486). Another discrepant feature which casts further doubt in the case is that though there was no allegation of committing rape upon the deceased, but the prosecution had deposited two external vaginal swabs, two high vaginal swabs, one internal and one external anal swabs from the deceased with the Punjab Forensic Science Agency and according to Forensic DNA and Serology Analysis Report (Ex.PO), seminal material was identified on two external vaginal swabs and trace amount of seminal material was identified on two high vaginal swabs and one external anal swab, but no DNA analysis was conducted on buckle swabs of the deceased and the appellant, which shows that the prosecution itself was reluctant to bring on record the actual episode of the tragedy. Keeping in view the above aspects of the case, it can safely be held that the alleged eye witnesses were not present at the spot and as such they no more remained truthful or trustworthy witnesses and it is highly unsafe to rely upon them to maintain conviction and sentence of the appellant.

10. So far as the other pieces of evidence relied by the prosecution i.e. medical evidence, recovery of chhuri coupled with report (Ex.PP) of the Punjab Forensic Science Agency, Lahore and motive are concerned, we are of the view that these limbs of the prosecution evidence are only helpful to its case when there exists some convincing, trustworthy and reliable direct or indirect evidence against the accused. In this case, the depositions of alleged eye witnesses could not inspire our confidence due to which no importance can be given to the remaining prosecution evidence against the appellant. Even otherwise, it is by now well settled law that medical evidence may confirm the other available evidence with regard to the seat and nature of injuries, the kind of weapon used and the time of occurrence but it would not itself identify the accused. Reference in this regard may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53) and "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410).

11. Similarly, we are not much convinced with the recovery of blood stained chhuri from the appellant after more than one month of the incident, because, it does not appeal to human prudence that after committing the incident, the appellant would keep the chhuri, stained with human blood, in safe custody in his own house as he had ample opportunity during the above mentioned period to wash away the blood. Reliance is placed on the case of "Basharat and another v. The State" (1995 SCMR 1735). So far as possibility of presence of blood on the chhuri after the lapse of considerable period as noted above is concerned, it was not likely that the blood would not disintegrate in the meantime. Reliance is placed on the case of "Muhammad Jamil v. Muhammad Akram and others (2009 SCMR 120). Taking guidance from the above dictums, we are of the view that it is not safe to rely on such a weak piece of prosecution evidence, which even otherwise is merely supportive of direct evidence and is not the evidence of charge.

12. Adverting to the last piece of prosecution evidence in the shape of motive, we have observed that a specific motive was set up in FIR (Ex.PN), according to which the appellant was trying to develop illicit relations with the deceased, who informed her husband/complainant about the bad intention of the appellant and the complainant had forbidden him from coming in his house. We may observe here that such like motive is a double-edged weapon, which is more suitable to the complainant to falsely implicate the appellant. Furthermore, the untold story according to which seminal material was detected on vaginal and anal swabs of the deceased also defies the prosecution evidence regarding the motive, therefore, we are convinced that the prosecution remained unable to connect the appellant with the murder of Mst. Khalida deceased through the motive part of its case.

13. As a sequel of above discussion, we have come to an irresistible conclusion that the prosecution remained unable to prove the alleged guilt of the appellant beyond any shadows of doubt rather shadows of doubt are looming large in this case rendering the same smeared with dishonest and polluted evidence. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather single circumstance creating doubt is enough to extend benefit of same to the accused which too not as a matter of grace but as a matter of right. Reliance in this respect is placed on the case of "Muhammad Akram v. The State" (2009 SCMR 230).

14. For the foregoing reasons, we accept the appeal filed by Umer Zaib appellant and acquit him of the charge while setting aside his conviction and sentence. He shall be released from jail forthwith if not required in any other case. Murder Reference is answered in negative and death sentence is not confirmed. JK/U-5/L Appeal allowed.