2018 PLP 181 (YLRN)

SADAQAT ALI KHAN, J.

This single judgment shall dispose of Criminal Appeal No.27-J of 2015 filed by Ihsan Elahi appellant (against his conviction) and Murder Reference No.54 of 2015 sent by the learned trial court for confirmation of death sentence of Ihsan Elahi appellant or otherwise as the above mentioned matters have arisen out of the same judgment dated 26.11.2014 passed by learned Additional Sessions Judge, Chiniot according to which Ihsan Elahi, (appellant) was convicted and sentenced as under:-- Ihsan Elahi was convicted under section 302(b), P.P.C. as Tazir for the Qatl-i-Amd of Mst.Ambreen deceased and sentenced to death with compensation of Rs.500,000/- (rupees 5-lacs) as compensation to the legal heirs of deceased and in default whereof to further undergo SI for six months. in case FIR No.234 dated 02.06.2011, under section 302, P.P.C., Police Station Rajoya, District Chiniot.

2. The facts of the case have been stated by Muhammad Waris (complainant) PW-1, in his statement (examination-in-chief) before the learned trial court which is hereby reproduced for narration of the facts:-- "My daughter Amreena Bibi was got married with Ihsan Elahi son of Mohammad Yaqub. On 1/6/2011 at about 1:00/p.m./ Dopehr Wela, I went to the house of Ihsan Elahi. He was quarreling with Amreen Bibi. I made him understand, but in vain. On his voice some male and female attracted there. They also made Ihsan Elahi understand but of no avail. Meanwhile before our view he ran towards room and picked out pistol. When Amreen saw pistol, she rushed into the room. He ran behind Amreen, we also ran behind them. Ihsan Elahi entered in the room first and he made fire shot of pistol before our view, which hit on the head of Amreen Bibi, she fell on bed. Nazeer and five/six females saw the episode along with myself. We tried to capture him but he threatened that in case anybody came nearer to him, he would kill him. We moved backward and he ran away along with pistol. We attended Amreen Bibi and removed her to Allied Hospital Faisalabad. She breathed her last at about 2:00/a.m./night. We brought her to Chiniot hospital. Members of the brotherhood restrained us from reporting the matter up till 10:00 a.m. Thereafter I went to Police Station Rajoa. Police Van met me within Mauza Rajoa. I narrated whole of the story to them. They reduced my statement into writing and obtained my signature which is Ex.PA.

3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. was submitted in the trial Court.

4. Learned trial court after observing legal formalities provided under Criminal Procedure Code framed the charge on 10.02.2012 against Ihsan Elahi (appellant) under section 302, P.P.C. to which he pleaded not guilty and prosecution evidence was summoned.

5. The prosecution produced following witnesses during the trial before the learned trial court:-- Muhammad Waris (complainant) P.W.1 Nazeer Ahmad P.W.2 Mumtaz Ali 165, MHC P.W.3 Ijaz Ahmad 8/c P.W.4 Muhammad Jamil 1062/c P.W.5 Jaffar Ali 220/c P.W.6 Mukhtar Ahmad S.I. P.W.7 Riaz Ahmad Draftsman P.W.8 Dr.Shazia Abdul Sattar P.W.9 Whereas Iftikhar Ahmad PW was given up being unnecessary and after tendering certain documents i.e. Exh-PA to Exh.PO closed its evidence.

6. Medical evidence was furnished by Dr. Shazia Abdul Sattar 1-D.W.9, who conducted postmortem examination on the dead body of Mst.Ambreen and observed as under:-- "INJURY 1A. A fire-arm lacerated wound l cm x l cm with inverted bruised margins and collor of abrasion present on right side of vertex (top of head). No burning, blackening tattooing present underlying bone fractured into multiple pieces (egg shall fracture). It was wound of entry. 1B. A fire-arm lacerated wound lcm x lcm with bruised everted margins present on left side of front of head. It was exit wound. OPINION:- Death in my opinion was due to injury Nos. lA and 1B resulting in hemorrhage, shock, injury to vital organs, (brain hemispheres), leading to cardio pulmonary arrest which was sufficient to cause death in ordinary course of nature and was fatal. Injury was antemortem and caused by firearm weapon. Probable time between injury and death according to police paper and death certificate from Allied Hospital 12 hours and 30 minutes and between death and post mortem was within 12 hours.

7. On the other hand, statement of Ihsan Elahi appellant was recorded under section 342, Cr.P.C. in which he refuted the allegations levelled against him by the prosecution. The appellant Ihsan Elahi did not opt to appear as witness under section 340(2), Cr.P.C. however, he has produced Iftikhar Ahmad DW-1 and also tendered documents Exh-DW1/A, Exh.DA, Exh. DA/1, Exh. DA/II and Exh.DB to Exh.DG in their defence. In reply to the question "Why this case against you and why the PWs deposed against you? Ihsan. Elahi appellant replied as under:-- PWs closely related inter se, and they are inimical to me, thus they have reasons to falsely depose against me. In fact my father Yaqoob had very good relation with complainant Waris, who is father of my deceased wife Ambreen Bibi. My father had been serving in Pakistan Army and complainant barrowed Rs. 1,50,000/- as loan to meet the expenses of marriage of Ambreen Bibi. After the wedding ceremony my father Yaqoob used to demand the return of said amount 02/03- months after my marriage with Ambreen Bibi but complainant did not return the said amount, due to which relations became strained between my father and complainant of the instant case, and for the same reasons complainant had nourished grudge against my father and our family. Moreover, PW Nazeer married twicely. His first wife Mst.Jannat Bibi daughter of Akbar Ali filed a suit for maintenance for herself and for her children against PW Nazeer in Family Court, Chiniot and same was decreed against PW Nazeer. Execution proceedings were in progress against PW Nazeer and on that juncture my father Yaqoob stood surety for said PW Nazeer and my father paid Rs.50,000/- on his behalf and PW Nazeer was released after payment of above said amount by my father. After that my father Yaqoob demanded above said Rs.50,000/- from PW Nazeer but PW Nazeer did not pay the above said amount due to which dispute arose between my father Yacloob and PW Nazeer. Due to above said reasons, PW Nazeer had also grudge against our family and he had reasons to falsely depose against me in this case. In fact, one close relative of mother of deceased Ambreen Bibi namely Muhammad Ali had bad reputation to bring dacoites in the area and used to get robbery committed with the help of them and in this regard many FIRs have been registered against him in different police stations. Deceased Ambreen Bibi also sustained injury during resistance in an occurrence of dacoity or robbery by the hands of unknown assailants. Complainant party tried to trace the real culprits but when they could not trace, they falsely implicated me in this case. Uncle (mamoon) of deceased namely Ahmad Sher is a serving officer of Anti-Corruption department and he used his influence upon police and in this way complainant party got falsely challaned me in this case. I am innocent. Neither I have committed the above said occurrence nor I committed the murder of Mst. Ambreen Bibi, as she was living happily with me, thus I had no motive to commit her murder. Whole the allegations of complainant party are false and frivolous.

8. After conclusion of the trial, learned trial court convicted Ihsan Elahi, appellant with above stated sentences. Hence this appeal.

9. Learned counsel for the appellant has contended that:- i. the judgment of the trial court dated 26.11.2014 is against law and facts and is liable to be set-aside; ii. it is submitted that the story of the prosecution is improbable and not believable; iii. it is further submitted that prosecution has failed to prove its case against Ihsan Elahi appellant beyond shadow of doubt and the learned trial court wrongly convicted him in surmises and conjectures; iv. and lastly submitted for acquittal of Ihsan Elahi appellant.

10. On the other hand, learned DPP and learned counsel for the complainant have vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against Ihsan Elahi appellant with solid evidence and prayed for the dismissal of the present appeal of the appellant.

11. We have heard the learned counsel for the appellant as well as learned DPP assisted by the learned counsel for the complainant and perused the record.

12. The detail of prosecution case has been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.

13. According to the FIR, occurrence took place on 01.06.2011 at 01.00 p.m. whereas, FIR was registered on the second day i.e. on 02.06.2011 at 1.00 p.m. on the statement Exh.PA made by Muhammad Waris complainant PW-1 (real father of Mst. Ambreen deceased who was murdered in the house of her husband Ihsan Elahi appellant) with an unexplained delay of twenty four hours which itself creates doubt in the prosecution story. Although in some circumstances a delay may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate. Reliance is placed on case titled "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127).

14. Muhammad Waris complainant PW-1 (real father of Mst. Ambreen deceased) and Nazir Ahmad PW-2 (maternal Uncle of Mst. Ambreen deceased as stated by Muhammad Waris complainant PW-1 in his cross-examination that Nazir Ahmad (PW-2) is his brother) claim themselves to be the eye-witnesses of the occurrence. Muhammad Waris complainant PW-1 stated in his statement (examination-in-chief) that he along with Nazir Ahmad PW-2 witnessed the occurrence and after the occurrence, they attended Mst.Ambreen deceased and took her to Allied Hospital in injured condition where she died at about 2.00 a.m. (night) and then they brought her to Chiniot Hospital. Neither the Medical Officer of Allied Hospital nor Medico Legal Report in this respect has been produced by the prosecution to support its story that the witnesses after the occurrence (on 01.06.2011 at 1.00 pm) brought Mst.Ambreen deceased in injured condition to Allied Hospital Faisalabad where she died at about 2.00 a.m. (night) and thereafter they took her dead body to Chiniot Hospital. Dr.Shazia Abdul Sattar PW-9 who conducted postmortem examination (Exh.PL) on the dead body of Mst.Ambreen deceased admitted in her cross-examination that at the time of submission of police papers before her no previous medical certificate was produced before her. She (Dr.Shazia Abdul Sattar PW-9) further admitted in her cross-examination that injury statement Exh.PF was prepared on 02.06.2011 and was not prepared on 01.06.2011. She (Dr.Shazia Abdul Sattar PW-9) further admitted in her cross-examination that in column No.3 of inquest report Exh.PG time of death is written as 01:00 p.m. (noon). She (Dr.Shazia Abdul Sattar PW-9) further admitted in her cross-examination that as per postmortem report Exh.PL date and time of death is 01.06.2011 at 01.30 p.m. according to the police papers. Both eye-witnesses (Muhammad Waris PW-1 and Nazir Ahmad PW-2) stated in their statements (examination-in-chief) that appellant made fire shot of pistol which hit on the head of Mst.Ambreen deceased. Muhammad Waris complainant PW-1 stated in his statement Exh.PA recorded for registration of FIR Exh.PE that fire shot made by Ihsan Elahi appellant hit on the left side of head of Mst.Ambreen deceased. Dr.Shazia Abdul Sattar PW-9 observed firearm entry wound on the right side of head of Mst.Ambreen deceased and exit wound on her left side of front of head. This conflict between ocular account and medical evidence is also not ignorable. We have also perused scaled site plan Exh.PK where names of eye- witnesses at relevant point No.4 are not mentioned. The endorsement made by I.O. on the bottom of scaled site plan Exh.PK also does not contain the names of the eye-witnesses at relevant point No.4. Further scaled site plan Exh.PK does not show the houses of Muhammad Waris complainant PW-1 and Nazir Ahmad PW-2 in the surrounding place of occurrence. Both these eye-witnesses were chance witnesses but they have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled Muhammad Rafique v. The State (2014 SCMR 1698) in which Hon'ble Supreme Court of Pakistan has observed at pages 1700 and 1701 as under:- "

3. After hearing the learned counsel for the parties and going through the record we have straightaway observed that the ocular account of the incident in issue had been furnished before the learned trial court by two eye-witnesses namely Falak Sher complainant (PW.6) and Abdul Razzaq (PW.7) who were both related and chance witnesses. Falak Sher complainant PW.6 was the father of Mukhtar Ahmad deceased and Abdul Razzaq (PW.7) was a brother in law of the said deceased. Both the said eye-witnesses had claimed that although they lived about one Kilometer away from the scene of the crime yet they were present near the spot because they were working as labourers at a project regarding construction of the banks of Kanda Minor at the. relevant time which project was being undertaken quite close to the place of occurrence. Before the learned trial court the said eye-witnesses had utterly failed to establish the stated reason for their presence near the place of occurrence at the relevant time inasmuch as they had failed to give any detail of the project in issue and they did not even know the name of the contractor who had hired them as labourers for the purpose." The argument of learned DPP that in the circumstances like the present one, the accused conviction can be maintained when his wife is found murdered in his house and he does not satisfactorily explain the circumstances of the death, has no force because the basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The unnatural death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However, this by itself wound not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime, which is missing in the present case. Reliance is placed on case titled "Arshad Khan v. The State" (2017 SCMR 564) wherein Hon'ble Supreme Court of Pakistan has observed in para 4 at page 567 as under:-- "It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all."

15. Mukhtar Ahmad S.I. P.W.7 stated in his statement (examination-in-chief) that on 17.06.2011, Ihsan Elahi appellant during interrogation disclosed and got recovered 30-bore pistol P4 along with five live bullets P5/1-5 from his residential house. Ijaz Ahmad 8/c PW-4 stated in his statement (examination-in-chief) that on 10.06.2011 Mumtaz Ali 165/MHC PW-3 handed over to him sealed parcel said to contain one crime empty for its onwards transmission to the office of Forensic Science Agency which he (Ijaz Ahmad 8/c) deposited the same in the said office on the same day. According to report of FSL Exh.PO crime empty received in the office on 11.06.2011 and not on 10.06.2011 as stated by Ijaz Ahmad 8/c PW-4. Ijaz Ahmad 8/c PW-4 further stated in his statement (examination-in-chief) that on 20.06.2011 Mumtaz Ali 165/MHA (Moharrar) PW-3 handed over to him a sealed parcel said to contain 30-bore pistol which he deposited on 22.06.2011 in the Office of FSL intact. Report of FSL Exh.PO shows that pistol 30-bore was received in the office on 25.07.2011 and not on 22.06.2011 as stated by Ijaz Ahmad 8/c PW-4. This material contradiction is not ignorable, rather creates doubts. Considering above positive report of FSL Exh.PO is not believable and same is hereby discarded.

16. In view of the above discussion, we entertain serious doubt in our minds regarding participation of Ihsan Elahi appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram v. The State" (2009 SCMR 230), in which Hon'ble Supreme Court of Pakistan has observed in para No. 13 of page 236 as under:-- "

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

17. For the foregoing reasons, Criminal Appeal No.27-J of 2015, filed by Ihsan Elahi appellant is accepted. Conviction and sentence of Ihsan Elahi appellant awarded by the learned Trial Court through the impugned judgment are hereby set aside. Ihsan Elahi, appellant is ordered to be acquitted in case FIR No. 234 dated 02.06.2011 under section 302, P.P.C., Police Station Rajoya, District Chiniot. He is directed to be released forthwith if not required in any other case. Murder Reference No.54 of 2015 is answered in NEGATIVE and death sentence of Ihsan Elahi appellant is NOT CONFIRMED. JK/I-1/L Appeal accepted.