2022 PLP 25 (YLRN)

SADAQAT ALI KHAN, J.

Appellant (Tahir Mistri) has been tried by learned trial Court in case FIR No.154 dated 06.05.2016 offences under sections 302/34, P.P.C. registered at Police Station City Burewala, District Vehari, and was convicted and sentenced vide judgement dated 17.07.2017 as under:- Tahir Mistri (appellant) under section 302(b), P.P.C. Sentenced to DEATH for committing Qatl-i-Amd of Aqeel Raza (deceased) with compensation of Rs.5,00,000/- payable to legal heirs of the deceased under section 544-A, Cr.P.C. which shall be recovered as arrears of land revenue in default whereof to further undergo simple imprisonment for 6-months.

2. Appellant has filed this Criminal Appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

3. Brief facts of the case have been stated by the complainant Mst. Shehnaz Bibi (PW-6) in her statement before learned trial Court, which is hereby reproduced as under for narration of the facts:- Stated that I had two children namely Aqeel Raza deceased and Asia Bibi. I married my daughter Asia Bibi who remained issueless since her marriage till now therefore, she is residing with me at present my husband had already died. My son Aqeel Raza used to work at the Clinic of Dr. Mubashar. I contracted marriage of my son Aqeel Raza with Fakhira Javed Abbas (approver). After 15 days of marriage I heard a knock at the door of my house and my daughter in law Fakhira Javed Abbas (approver) went running towards the door and started conversation to the person who knocked at the door i.e. Tahir Mistri present in court. I and my daughter Asia Bibi went to door and saw that Fakhira Javed Abbas (approver) was conversing with the accused present in court. On seeing the situation present at door I warned the accused Tahir Mistri present in court not to come in my house to meet my daughter in law in future. I also reprimanded my daughter in law and forbade her to meet Tahir Mistri accused. About one year ago on 2nd of month after taking breakfast again said after taking meal in the evening my daughter in law Fakhira Javed Abbas gave us Doodh Soda in which she mixed intoxicant tablets. We drank that Doodh Soda and fell as sleep soundly. My son Aqeel Raza used to come from clinic at 10:00/12:00 at night. In the morning when I woke up I saw that my daughter in law Fakhira Javed Abbas (approver) was sitting at the bed of my daughter Asia Bibi on foot side, on my asking that why she has not slept in the room of her husband, she told me that my son had expelled her from his room , therefore, she was sitting here. She further told me that her husband told her that he was feeling upset, she further told me that he was not in position to talk, therefore, he advised me to go into his room and checked him. When I went to his room I saw that my son was lying on the bed straight having his face upward. When I checked him he did not make any movement, therefore, I called for the doctor who checked him and declared that he is dead. In laws of my son deceased took his dead body to their house and got him buried after performing necessary religious obligations. On the 6th of that month I along with my nephew and his wife was sitting in room, I saw that my daughter in law Fakhira Javed Abbas (approver) was weeping bitterly. On our query she disclosed and confessed on the second of that moth she and Tahir Mistri planned to murder the deceased. As a result of their plan Tahir Mistri brought her intoxicant tablets that she mixed in Doodh Soda and gave us; we drank that Soda and fell as sleep. She further disclosed that on the fateful night Tahir Mistir was already present at the roof of house and when Aqeel Raza deceased came to house from clinic, she called Tahir Mistri from the roof. She caught hold the arms of Aqeel Raza deceased at the bed and Tahir Mistri pressed hard the throat of the deceased with both of his hand till his death. After disclosing the all the facts that how she and Tahir Mistri murdered the deceased she implored before us and requested for pardon as they have committed a blunder by killing Aqeel Raza.

4. After hearing learned counsel for the parties as well as learned D.P.G., and on perusal of record with their able assistance, we have observed as under:- i. Aqeel Raza was done to death in his house in between night of 2/3 May 2016, FIR was lodged on 06.05.2016 at 5:30 p.m. on the written application of his mother Mst. Shahnaz Bibi complainant P.W.6 against Tahir Mistri appellant and Mst. Fakhra Javed Abbas wife of the decease/ approver P.W.5 on the basis of alleged extra-judicial confession of Mst. Fakhra Javed Abbas accused (now approver) made by her on 06.05.2016 at 4:30 p.m. in the house of the complainant. It is important to note here that dead body of Aqeel Raza deceased had already been buried on 03.05.2016 in the graveyard of the village of Mst. Fakhra Javed Abbas accused/approver. Mst. Shahnaz Bibi complainant P.W.6 (mother of the deceased) is real sister of mother of Mst. Fakhra Javed Abbas accused/approver. On 18.05.2016 dead body of the deceased was exhumed under the supervision of Muhammad Yasir Khan, Civil Judge P.W.10, whereafter on 24.05.2016, Tahir Mistri appellant was arrested, then on 25.05.2016, Mst. Fakhra Javed Abbas accused was arrested who during interrogation got recovered pillow P-2, wrapper of intoxicant tablets, Qameez P-3 which were taken into possession through recovery memos, on the same day, she was sent to the judicial lock up. No person from the prosecution claims to be the eye-witness of the occurrence rather case of the prosecution is based on alleged extra-judicial confession of Mst. Fakhra Javed Abbas accused as well as her statement as approver P.W.5. ii. Mst. Shahnaz Bibi complainant P.W.6 and her daughter Mst. Asia Bibi P.W.7 while appearing before the learned trial Court stated in their statements that on 06.05.2016 (date of registration of FIR) Mst. Fakhra Javed Abbas accused/approver while sitting with them in their house made confession regarding the present occurrence. She being empty handed was not apprehended despite .presence of some relatives of the said witnesses as stated by them before the learned trial Court rather she was arrested on 25.05.2016 by Khushi Muhammad S.I. P.W.8. The story narrated by these two witnesses in their statements is neither plausible nor believable. The law is settled by now that evidence of alleged extra-judicial confession of an accused is a weak type of evidence which cannot be relied upon in absence of independent corroborative piece of evidence which is conspicuously missing in the present case, especially against co-accused (appellant).(2016 SCMR 274)"Azeem Khan and another v. Mujahid Khan and others". (iii) Recovery of Dopatta on pointing out of the appellant being of common pattern is inconsequential in the present case. (iv) Rest of the evidence of the prosecution against the appellant is only statement of Mst. Fakhra Javed Abbas accused/approver P.W.5, initially on whose alleged extra-judicial confession, FIR was lodged on 06.05.2016 with the delay of about three days from time of occurrence i.e. in between night of 2/3 May, 2016. She was arrested on 25.05.2016 as an accused by Khushi Muhammad S.I. P.W.8 and got recovered certain articles mentioned above as an accused. Report under section 173, Cr.P.C. was submitted against her as well as appellant in the learned trial Court whereafter charge was framed against them by the learned trial Court on 23.08.2016 wherein she pleaded not guilty. On 20.04.2017, she moved written application through her learned counsel (Mr. Abdul Ghaffar Sajid Bhatti, Advocate High Court) before the learned trial Court for approver, learned trial Court without recording of her confessional statement accepted that application declaring her an approver vide order dated 10.06.2017 whereafter her statement was recorded as approver (P.W.5), she stated that at the time of occurrence, she held Aqeel Raza deceased in her arms at the bed whereafter appellant Tahir Mistri pressed his throat with force. v. Motive of the occurrence was her illicit relation with the appellant. She stated in her cross-examination that it was written in her bail application that FIR was got lodged by the complainant on fabricated facts. She ,admitted in her cross-examination that her mother and her mother-in-law are real sisters. Dr. Shahid Iqbal P.W.9 observed during post-mortem examination that no injury was identifiable at the neck of the deceased. He stated in his cross-examination that he had not expressed any opinion regarding cause of death of the deceased. The law is settled by now that testimony of approver in order to be accepted as worthy of credence must pass the double test namely he is a reliable witness and that his testimony receives sufficient corroboration on material particulars which is missing in the present case. The statement of approver is also belied by the medical evidence as according to her statement cause of death of the deceased was strangulation i.e. pressing of his neck by the appellant but medical officer did not observe any identifiable injury at his neck and also did not give his opinion regarding cause of death. We have not been impressed on the statement of approver who had made divergent statements; after her arrest, in her bail application, before the I.O., at the time of framing of charge pleading not guilty shattering her credibility. We feel that approver has not made a truthful statement which is not reliable. (1996 SCMR 1588) "Muhammad Yasin v. The State".

5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of 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 circumstances 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.

6. For the foregoing reasons, instant criminal appeal is allowed, conviction and sentences of Tahir Mistri appellant awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charge. He is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Tahir Mistri (appellant) is NOT CONFIRMED. JK/T-11/L Appeal allowed.