2004 PLP 206 (YLR)

(1) Multiple ropes marks around the neck just below hyoid bone width 0.5 x 1 c.m. (2) Abrasion 3 c.m. x 0.5 c.m. over left eye brow laterally. (3) Abrasion 3 c.m. x 0.5 c.m. over right cheek. (4) Abrasion 2 c.m. x 0.5 c.m. over lateral aspect of right upper arm. (5) Multiple abrasions 1 c.m. x 0.5 c.m. middle of veitaberal column. The Medical Officer opined that the cause of death of the said deceased was due to asphyxia, leading to cardio respiratory failure as a result of strangulation of neck. He produced post‑mortem notes at Exh.

39. In her 342, Cr.P.C. statement; appellant Mst. Shakeela denied the allegations of the prosecution and did not offer any other defence evidence, excepting that she examined herself on oath in denial of the evidence of the prosecution wherein she deposed that she was having very good terms/relations with her deceased husband and no cause of grievance ever ensued in between them nor any dispute arose in between them, that appellant Habib is related to the complainant who had been ejected from some house by his landlord and therefore lived in the house of the deceased (and appellant Mst. Shakeela) for about 15 days, six months before this incident. Mother of appellant Habibur Rehman also lived with them but they left the house after 15 days, by obtaining another house on rent situated in Drigh Colony and never returned to the house of the deceased. She further deposed that during the night of the incident, someone knocked from the outside of the outer door of the house and she went to the said door, where someone informed her that her deceased husband was lying/sitting in the street of the said house, whereupon she started crying which attracted the people of the locality, and then she made her son Adnan to wake up from the sleep and sent him to inform her mother‑in‑law residing nearby. They all brought the dead body of Muhammad Haroon inside the house and then took it to the hospital. She lived for some days with her mother‑in‑law after the death of Muhammad Haroon; an amount of Rs.50,000 and her jewellery were left by the deceased in the house wherein she was residing with her husband while some other articles were taken by her mother‑in‑law from ‑the said house, who had brought the same to her own house. She further alleged that her mother‑in‑law refused to give her the said cash amount and the jewellery and instead entered into a quarrel with her (appellant Shakeela) while she was observing the 'Iddat' when her mother‑in- law got her arrested on 30‑6‑1999 at the hands of the Police, and further that she was given beatings by the police officials at the police station in the presence of her mother‑in‑law and others to compel her to implicate appellant Habibur Rehman for the murder of her deceased husband, and on that account she was falsely implicated in this case. So also appellant Habib alias Habibur Rehman denied the allegations of the prosecution in his statement under section 342, Cr.P.C. and pleaded innocence; he neither examined himself on oath as his own defence witness nor produced any other defence evidence. Learned trial Court found the appellants guilty and convicted and sentenced them as reproduced above. Hence these criminal, appeals filed by the appellants. We have heard Mr. Mehmood Qureshi, Advocate for appellant Mst. Shakeela Akhtar and Mr. Syed Saeed Hassan Zaidi, Advocate for appellant Habib alias Habibur Rehman and Mr. Jawed Akhtar, Advocate for the State. Also perused the evidence available on the record of the case. The prosecution case against the appellants is based on the following pieces of evidence:‑‑ (i) Motive against the deceased to the effect that appellant Habib alias Habibur Rehman had been ejected from some rented premises by its landlord and therefore had lived in the house of the deceased (wherein appellant Mst. Shakila was also residing) for some days but appellant Habib alias Habibur Rehman had been intervening into the domestic relations of the deceased with appellant Mst. Shakila, which allegedly gave a cause of altercation/fight in between the deceased and appellant Habib alias Habibur Rehman and ultimately, it is alleged, appellant Habib alias Habibur Rehman went away issuing threats of dire consequences to the deceased. (ii) The allegation of entering into a conspiracy by both the appellants to commit murder of the deceased. (iii) Ocular evidence of P. W. Muhammad Irfan. (iv) Extra‑judicial confession allegedly made by the appellant Mst. Shakila before the police officials and others. (v) The recovery of blood‑stained nylon rope at the hands of the appellants and pointation of the place of occurrence by them to the police officials in presence of the Mashirs, and (vi) Identification parade. It is a well‑settled provision of law that where the prosecution alleges a particular motive in a case against the accused for committing such an offence, the same is to be proved by it, and further that if such a motive is not se proved by the prosecution, then such circumstance adversely affects the case of the prosecution, benefit whereof shall have to I go to the accused, more particularly in a case where the incident of the case is based on such a motive and giving a reasonable presumption that had there been no such motive, then no such incident could have had taken place. Motive having not been proved, capital sentence cannot be awarded; precedent thereto can be found out in "Amin alias Muhammad Amin Brohi v. The State" 2001 PCr.LJ 845(L). In the present case, some of the prosecution witnesses have asserted that after appellant Habib alias Habibur Rehman had been ejected `from rented premises by its landlord some days prior to the alleged incident of this case, he started living in the house of the deceased, wherein some altercations/domestic disputes used to take place in between the deceased on one hand and appellant Mst. Shakila on the other hand, and further that appellant Habib alias Habibur Rehman used to intervene into such disputes of the said spouses and used to take side of appellant Mst. Shakila against the deceased, which gave a cause of grievance in between the deceased on the one hand and appellant Habib alias Habibur Rehman on the other, to which the appellant allegedly left the house and went away while issuing threats of dire consequences to the deceased. But no direct evidence is produced by the prosecution to prove any such events having had taken place in the house of the deceased, and only hearsay evidence is produced which is also contradictory in nature, as one witness states that appellant Habib alias Habibur Rehman only used to take side of appellant Mst. Shakila against the deceased, while the other witnesses allege that both the appellants had developed "'illegitimate intimacy", which gave cause to the deceased to remove appellant Habib alias Habibur Rehman from the house. No implicit reliance can be placed on such hearsay evidence, moreso for the reason that no such mention is made by complainant Muhammad Tujamal in the F.I.R./154, Cr.P.C. statement made by him before S.‑I.P. Muhammad Rafiq Pathan, when he first lodged such report of the incident of this case with him; so also, had any such events taken place in the house of the deceased, mother of the deceased namely Mst. Raheema Bibi would not have had taken appellant Mst. Shakila to her own house after the death of the deceased where, apparently, she started passing the period of 'Iddat'; it has conclusively come in the evidence that Mst. Raheema Bibi had taken appellant Mst. Shakila to her own house from the house of the deceased, and she lived with her till she was arrested by the police in this case; this piece of evidence, available on record, by itself proves that neither any event, as reproduced above, pertaining to the alleged motive of this case, ever took place in the house of the deceased nor there was anv such grievance with Mst. Raheema Bibi against the appellants, so that it could give rise to a motive for the appellants to kill husband of Mst. Shakeela. The next allegation against the appellants is to the effect that they entered into a conspiracy to kill the deceased, but there is no direct or circumstantial evidence to prove any such conspiracy having been hatched by the appellants; only allegation against them is to the effect that appellant Mst. Shakila allegedly made extra‑judicial confession before the police officials while witnesses were also present, to the effect that she with appellant Habib alias Habibur Rehman entered into a conspiracy whereby appellant brought sleeping pills/intoxicating pills which were mixed by her with the milk and then they administered the same to deceased Muhammad Haroon, who thereby felt gravely sleepy intoxicated, and then nylon rope was placed around his neck and was thereby strangulated to death even there is no such medical evidence that deceased was administered any such intoxicating sleeping material. It is one of the settled provisions of law that in order to do complete justice and to ensure that real culprit may not escape legal punishment the grain is to be sifted from chaff. But if it is found that it could not be possible to sift the grain from the chaff and the testimony of a witness is not confidence‑inspiring then it will be unsafe to record the conviction. In Muhammad Khan and another v. The State 1990 SCMR 1220, Honourable Supreme Court has directed that conviction must be based on unimpeachable evidence and certainty of guilt, and that any doubt arising in the prosecution case must be resolved in favour of the accused. It is also a well‑settled principle of law that any confession/extra judicial confession made by the accused before the police officials is inadmissible in the evidence and no conviction can be based thereupon; reference may be made to Article 37 of Qanun‑e‑Shahadat which stipulates that no confession, made to Police Officer, shall be proved as against a person, accused of any offence. In this regard, if any precedent is needed then reference could be made to an observation recorded by Honourable Mr. Justice Abdul Hameed Dogar (as his lordship then was) in "Muhammad Akram v. The State" 2001 PCr.LJ 1300 (Karachi), relevant observation at page 1303:‑‑ "This case mainly hinges on two important legal points. The first point agitated that initial statement of the appellant recorded by A.S.‑I. Mumtaz Ali at Police Station Naseerabad should not be acted upon as being inadmissible in evidence, has got sufficient force. The reasons for the same firstly are that it is a simple statement before the police which is inadmissible in evidence and secondly, the said statement cannot even be equated with confession as the same has not been recorded before any Magistrate but was recorded by A.S.‑I. in presence of two police Mashirs, namely, H.C. Manzoor Ali Bhutto and W.H.C. Mukhtiar Ahmed. It further loses its value as the same was not got signed from the persons of locality who were visiting police station at the time the appellant appeared there, which fact is supported by P.W. Manzoor Ali in his evidence at trial. Article 37 of Qannn‑e -Shahadat stipulates that no confession made to Police Officer shall be proved as against a person accused of any offence. It is pertinent to note here that if the statement of the appellant before police was made voluntarily and was true, then he should have been immediately produced before a Magistrate having jurisdiction where his confessional statement should have been recorded. By not doing so, inference can be drawn that the appellant was not willing to confess his guilt. This gets support from the statement of P.W. Mumtaz Ali, Investigating Officer of his case; according to him, the appellant was produced before the Mukhtiarkar and F.C.M., Malir on the next day of recording of F.I.R., but he did not admit the guilt and refused to make confession. In such circumstances it would be highly unsafe to rely upon the said statement. The defence version put forth by the appellant in his statement under section 342, Cr.P.C. merits consideration and should not have been ignored by the learned trial Court." In the case in hand, also, appellant Mst. Shakila was produced before a learned Magistrate by the Investigating Officer with a request to record her confessional statement but she declined before the Magistrate to make any such confessional statement and even went to make statement to the effect that neither she had any reason to murder her own husband nor she ever committed his murder, instead she posed a question "Why and how could I?", further specifically stating that she being mother of five children could never have murdered her own husband. Learned trial Court failed in its duty to properly appreciate the relevant provisions of law, and ignored the statements of appellant Mst. Shakeela illegally, made by her under sections 342 and 340(2), Cr.P.C. Admittedly, while complainant Muhammad Tujamal lodged F.I.R. of the incident of this case, it was registered as an un-witnessed incident, whereafter the only ocular evidence said to have been collected by the police officials against the appellants is that P. W. Muhammad Irfan (who is son of the deceased as well as son of appellant Mst. Shakila) and was aged about 14 years when his deposition was recorded in the trial Court (and was about 13 years old when his 164, Cr.P.C. statement was recorded by the Magistrate during the investigation of the case). In the trial Court, Muhammad Irfan deposed that in his statement recorded by the police he had specifically stated that he did not know as to who had committed the murder of his father, he was cross -examined by the prosecutor in the trial Court and denied 'the suggestion of the prosecutor that the deceased and appellant Mst. Shakila frequently used to enter into domestic dispute or that the deceased used to give beating to his mother Mst. Shakila on such domestic affairs; P.W. Muhammad Irfan further specifically deposed "I had not seen accused Habib alias Habibur Rehman visiting our house on 13th June, 1999 during the night hours. I had not stated in my police statement that at the time of the commission of murder of my father during night I woke up, and had not seen the incident as to how accused Habib alias Habibur Rehman committed murder of my father and that due to fear I continued to lie down on the bed". Thus, evidence of P. W. Muhammad Irfan has destroyed the very basis of the case of the prosecution; suffice it to say that prosecution admits that Mst. Shakila, with her children, was taken away by her mother‑in‑law to her own house after the murder of the deceased, and that P.W. Muhammad Irfan was residing with his own grandmother; circumstances give a very strong indication on the one hand that Mst. Raheema Bibi had no grievance against her for many days after the incident, and on the other hand, P.W. Irfan had made 164, Cr.P.C. statement before the Magistrate as tutored to him while he had subsequently come under her influence. There being no ocular evidence against the appellants and extra‑judicial confession, allegedly made by them before the police officials, having been excluded under Article 37 of Qanun‑e‑Shahadat, and no evidence of entering into conspiracy by the appellants to murder the deceased having been produced, mere recovery of blood‑stained nylon rope cannot be made the basis for the conviction of the appellants. So also, the appellants were, admittedly, known to the P. Ws. since before the incident and the piece of identification parade is of no material value. Appellant, Mst. Shakila, has taken a plea in her statement, recorded under section 342, Cr. P. C., as well as under section 340(2), Cr.P.C., that her mother‑in- law namely Mst. Raheema Bibi took away the cash amount alongwith the jewellery from the house of the deceased after his death, and when she demanded for the same from her, her mother‑in‑law became much hostile against her and managed to get falsely implicated both the appellants in this case, which statement of the said appellant appears to be carrying much force for the reason (as stated above) that she was first happily taken away by P.W. Mst. Raheema Bibi from the house of the deceased, apparently, for the purpose of passing the period of 'Iddat', and then there was no cause of grievance against appellant, Mst. Shakila, nor any such cause was got incorporated in the F.I.R., and it was only on 30‑6‑1999 that the said appellant was got implicated in this case for the reason known to Mst: Raheema alone. Had there been least possible grievance of P.W. Mst. Raheema Bibi against any of the appellants, pertaining to the death of her son Muhammad Haroon, she (Mst. Raheema Bibi) would not have .had taken Mst. Shakila (appellant) with herself to her own house and, instead, would have definitely given her name at least under suspicion in the F.I.R. which was got lodged through complainant Muhammad Tujamal, and contents whereof clearly indicate that an unseen incident had taken place in the house of the street of the deceased. Trial of a case against the accused has to proceed on the basis of reliable and confidence‑inspiring evidence, and no conviction can be awarded against the accused on the basis of suspicion or a presumption from evidence of the prosecution; in the absence of cogent and reliable evidence, the trial Judge improperly drew the presumption against the appellants, which is not sufficient, even to the least, to award the conviction and sentence against them; the convictions recorded by the trial Court are not based on the sound reasons. It is to be based only on substantive or direct evidence and not on any other type of evidence howsoever convincing it may be precedent to that effect could be found out in "Muhammad Aslam alias Shin v. The State" 2001 PCr.LJ 86(C), furthermore, it is quality of the evidence and not the quantity of the evidence which has a bearing on the fate of the case "Haq Nawaz and others v. The State and others" 2000 SCMR 785(L). Accordingly, both the appeals deserved to be allowed and were so allowed by a short order dated 28‑3‑2003 impugned judgment was set aside, both the appellants were acquitted of the charge, and directed to be, released forthwith if not required in any other custody case. Reference for confirmation of death sentence against appellant Habib alias Habibur Rehman is not received from the trial Court and the sentence of death as recorded in the judgment is not confirmed (reference is answered in the negative). Above are the reasons for the said short order dated 28‑3‑2003. N.H.Q./H‑109/K Appeals accepted.