2006 SCMR 1846 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This criminal appeal by leave of the Court has been directed against the judgment, dated 29-3-2002 passed by learned Judge in Chamber in the Lahore High Court, Rawalpindi Bench whereby a criminal appeal filed by the appellant against the conviction and sentence awarded to him under section 302(b), P.P.C. by the learned Sessions Judge, Chakwal, was dismissed. The appellant was sentenced to life imprisonment with direction to pay Rs.50,000 as compensation to the legal heirs of Baz Khan deceased, whereas Mst. Jamalan Khatoon and Riasat Ali co-convicts were awarded the sentence of R.I. for 14 years under section 308, P.P.C. with direction to pay Diyat to the legal heirs of the deceased.

2. The charge against the appellant and his co-accused namely Mst. Jamalan Khatoon widow of Baz Khan and Riasat Ali his son, was that during the night between 2/3rd December, 1996, they in furtherance of their common intention committed the murder of Baz Khan by strangulation in his house situated in Dhoke Gulsheri, Dakhli Dharnal, Tehsil Talagang, District Chakwal. Muhammad Aslam, nephew of the deceased, on the information given to him by Riasat Ali (convict), that Baz Khan his father, has committed suicide, went to the house of deceased and having found his dead body hanging with the roof of the cattle shed, informed the police about the matter. In the preliminary inquiry conducted by Muhammad Amir, A.S.-I., at the spot, the inmates of the house, including Mst. Noor Bibi and respectables of the area, have firmly stated that Baz Khan committed suicide, whereupon A.S.-I. having taken certain articles into possession from the place of occurrence prepared the inquest report of the deceased and sent the dead body to District Headquarter Hospital, Talagang for post-mortem examination. This Police Officer again visited the place of occurrence on 5-12-1996 and after recording the statements of Mst. Jamalan Khatoon, widow of deceased, Riasat Ali, Zafar Iqbal and Ansar Ali, his sons, Noor Bibi and Mehr Khatoon, his daughters as well as few respectables of the area prepared the report under section 174, Cr.P.C. However, on 7-12-1990 the case for the murder of deceased was registered against the appellant and his co-accused at Police Station Lawa, on the statement made by Muhammad Aslam (P.W.3) wherein he stated that as per disclosure of Mst. Noor Bibi (P.W.7) her deceased father was murdered by Lal Khan (appellant) with the help of her mother Mst. Jamalan Khatoon and brother Riasat Ali (convicts) on account of difference of her father with her mother on the question of her marriage. The prosecution, mainly relied upon the statement of Mst. Noor Bibi (P.W.7), daughter of deceased, Muhammad Aslam (P.W.3) and Dr. Muhammad Farooq (P.W.1) who conducted post-mortem examination of the deceased. Mst Noor Bibi deposed that on the fateful night she was sleeping in the house along with other family members, namely Jamalan Khatoon her mother, Mehr Bibi, her sister Riasat Ali, Shahid Iqbal, Zafar Iqbal and Ansar Ali, her brothers and Baas Khan, her deceased father, when at about 10 p.m. Mst. Jamalan Khatoon and Riasat Ali with the help of Lal Khan who secretly entered in the house, haying put a nylon string around the neck of Baz Khan, caused his death, by strangulation and thereafter by removing his dead Lady to the cattle shed hanged it with the roof of cattle shed. The motive for the murder of her father was that he wanted her marriage with one Liaquat Ali whereas her mother desired that she should be married with Lal Khan. Mst. Noor Bibi however, admitted that on the arrival of Muhammad Amir, A.S.-I. at the spot in the morning, she as well as her, sister Mehr Bibi and brothers namely, Zafar Iqbal, Ansar Ali, Shahid Iqbal who have also seen the occurrence stated before him that deceased committed suicide and repeated the same version of occurrence in their statements recorded by the A.S.-I. after two days of the occurrence. Dr. Muhammad Farooq, (P.W.1), Medical Officer, Tehsil Headquarter Hospital, Talagang having conducted the post-mortem of the deceased on 3-12-1996 found a mark of a nylon string around his neck with naught on the backside and observed that rigor mortis was present in all limbs whereas post-mortem staining was present on back and gluteal regions. The injury sustained by the deceased was described as under: "A dark brownish coloured ligature mark was present all around the neck without interruption, above hyroid cartilage. It was 30 c.m. in length and 1 c.m. in width and was produced by strong nylon rope, 18 feet long. Ligature mark was 5 c.m. deep." The little bruising was seen underneath the thickened ligature mark and on dissection hyoid bone was found fractured 1.5 c.m. on left side from the mid line. The stomach was healthy and it contained about 3 ounces of undigested food. The bladder was also healthy and contained about 3 ounces of urine while other organs in thorax and abdomen were also healthy. In the opinion of the doctor, it was homicidal death which was caused by the fracture of hyoid bone as a result of strangulation and injury was anti-mortem which was sufficient to cause death in the ordinary course of nature. In addition to the statement of Noor Bibi and medical evidence the prosecution has also placed reliance on the extra-judicial confession allegedly made by Mst. Jamalan Khatoon before Mola Baksh (P.W.6) on 7-12-1996 wherein she stated that she having developed differences with her husband on the question of marriage of their daughter Mst. Noor Bibi, was annoyed with him and conspired with her co-accused for causing his death by strangulation. The appellant and his co-accused in their statements under section 342, Cr.P.C. having denied the charge pleaded that they have been falsely implicated in the case at the instance of Muhammad Aslam (complainant) and Liaquat Ali. 4 (sic). The learned trial Judge placing reliance on the testimony of Mst. Noor Bibi coupled with the' medical evidence held the accused guilty of the charge with the observation that she having no reason to make a false statement against her real mother and brother, was a truthful witness and her statement would also be supported by the evidence of extra-judicial confession of Mst. Jamalan, the recovery of certain articles including the nylon string and wooden carrier from the place of occurrence. The joint appeal filed by the appellant and his co-accused in the High Court against their conviction and sentence was dismissed and the present appeal has been filed only by Lal Khan, convict. Leave was granted in this appeal to consider the following questions:-- "(i) Whether Mst. Noor Bibi, daughter of the deceased had witnessed the incident or not keeping in view of the fact that she remained silent from 3-12-1996 to 7- 12-1996 and did not narrate A the incident to anyone? (ii) Whether Shahid Iqbal, Zafar Iqbal and Ansar Ali brothers and Mst. Mehr Bibi sister of Mst. Noor Bibi were also sleeping along with her at the time of incident. If, so what would be the effect of their neither citing them as witness nor their examination at the trial. (iii) To examine the effect of admission of Mst. Noor Bibi P.W. in her statement at the trial that her brothers Shahid Iqbal and Zafar Iqbal stated before the police in her presence that their father had committed suicide.

5. Learned counsel for the appellant has contended that the prosecution version was a cooked up story, which would be negated by the fact that respectables of the area as well as the inmates of the house including Mst. Noor Bibi, the star-witness of the prosecution on the first day of occurrence, stated before the Investigating Officer that deceased committed suicide but subsequently, in the light of opinion of the doctor, Muhammad Aslam (complainant) in connivance with Muhammad Amir, A.S.-I. and Liaqat Ali with ulterior motives, deliberately changed the initial version and motivated her to hold the accused responsible for the death of deceased. Learned counsel argued that it being a case of two versions, the improbabilities and doubts arising regarding the truthfulness of the prosecution version would seriously reflect upon the credibility of the statement of Mst. Noor Bibi who probably being not in favour of the proposed of her marriage with Lal Khan changed the initial version of occurrence at the instance of complainant and Liaqat Ali and in view thereof, the mere fact that she being real daughter of Mst. Jamalan Khatoon and sister of Riasat Ali would not be expected to make a false statement against them may not be the true test to judge the credibility of her testimony. Learned counsel argued that in the facts of the present case the medical evidence would equally support the suicidal version of the occurrence and consequently medical evidence would not be considered an independent source of corroboration to the ocular account based on the tainted statement of Mst. Noor Bibi to establish the charge.

6. Learned counsel for the State on the other hand, has submitted that Mst. Noor Bibi, real daughter of Mst. Jamalan Khatoon, had no reason to involve her real mother and brother in the murder of her father and she being inmate of the house, was most natural and truthful witness. The learned counsel argued that Mst. Noor Bibi being under threat of life kept silent for a few days but ultimately she deposing confidence in Muhammad Aslam, (complainant) brought the actual story to his notice and thus, the unimpeachable character of prosecution evidence coupled with the circumstances leading to the occurrence would exclude even a remote possibility of suicidal death and charge of murder against the appellant and his co-accused was proved beyond any reasonable doubt.

7. The examination of the statement of Mst. Noor Bibi and doctor Muhammad Farooq, who conducted post-mortem examination of the deceased apparently would create an impression that deceased was done to death by strangulation and it was a case of homicidal death but detail scrutiny of evidence would also lead to a strong possibility of the correctness of the version of suicidal death of the deceased. The presence of Riasat Ali, Zafar Iqbal, Shahid Iqbal, Ansar Ali, brothers of Mst. Noor Bibi and her sister Mehr Bibi with their parents in the house during the night of occurrence was admitted and this was also a fact that on the information conveyed to the complainant by Riasat Ali about the incident, he brought Muhammad Amir, A.S.-I. at the spot who after holding an inquiry into the matter recorded the statement of inmates of the house as well as respectables of the area and prepared a report under section 174, Cr.P.C. regarding suicidal death of deceased. There is no plausible explanation on the record that for what reason Mst. Noor Bibi did not disclose the story of murder of deceased till the registration of case after five days of the occurrence and why no other inmate of the house was examined in confirmation of her statement. The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence. The non-production of any other inmate of the house by the prosecution and subsequent change of initial version of the occurrence by Mst. Noor Bibi not only, would seriously reflect upon the credibility of her testimony but also create a reasonable doubt regarding the correctness of the subsequent version of homicidal death of deceased set up by the prosecution. This is correct that in the normal circumstances, it does not appeal to mind that a daughter would charge her real mother and brother for murder of her father but at the same time it is also not acceptable that due to petty difference on the domestic affairs, a real son and wife of a person would commit his murder. The special features of the case may strongly suggest that Mst. Noor Bibi being not in favour of proposal of her marriage with Lal Khan, in the given circumstances and under the influence of Muhammad Aslam and Liaquat Ali was motivated to change the initial version of the occurrence and notwithstanding of her close relationship with the deceased and the accused, she while watching her own interest may not be telling truth. The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not. In the present case no other reliable evidence was brought on record in support of the allegation of murder against the accused except the solitary statement of Mst. Noor Bibi which being mudded with exaggeration and doubts would not be considered of the standard to be given much credence and being not confidence-inspiring would not be blindly relied upon to hold the accused guilty of the charge of murder. This is not to be ignored that prosecution for undisclosed reasons instead of bringing on record the best available evidence of other inmates of the house in confirmation to the statement of Mst. Noor Bibi preferred to place reliance only on her statement and the material evidence in support thereof. It may be pointed out that opinion of the doctor regarding the death of the deceased by strangulation, was based on the nature of injury traced on the dead body and undoubtedly the medical evidence is most reliable source of proving the nature of injury or injuries sustained by a person, the time of occurrence and death, and also kind of weapon used for causing injuries but it may not be a source of proving the manner in which the injuries were caused. This is to be seen that the kind of injury sustained by the deceased could also be the result of suicide by hanging and thus, the opinion of doctor that injury was caused as a result of strangulation, would not be a conclusive proof of homicidal death rather it being equally an evidence of suicide, would not be considered an independent source of corroboration to the shaky evidence of a single eye-witness. Be that as it may, in the light of the special features and peculiar circumstances of the present case, the real question for determination would, be whether deceased was done to death by strangulation or he committed suicide and how the incident had happened. The hanging is most common form of suicide whereas homicidal hanging is rare which may occur in very unusual circumstances and in the medical jurisprudence, no definite opinion can be given on the basis of ligature mark around the neck whether death was homicidal or suicidal. The causation of an injury found on the person of deceased, may be either homicidal or suicidal and in that the prosecution is under heavy burden to prove that the death was homicide and not suicide. In the human psychology, it cannot be said with certainty that a person in all circumstances would act and behave in the same manner rather it varies person to person and also depends upon the attending circumstances that in what manner a person behaves at a particular time and visualizing the situation in the present case, we may observe that possibility cannot be ruled out that Mst. Noor Bibi was motivated at the instance of complainant and Liaqat Ali to change the initial version of occurrence, to remove the hurdle of his mother and brother to mature her choice of marriage with Liaqat Ali.

8. This is a well-known principle of criminal administration of justice that the witnesses apart from being independent and disinterested, must be truthful and confidence-inspiring and mere fact that a witness is disinterested or having no motive to falsely implicate an accused in the case is independent is not an inflexible rule to test his credibility. In the ordinary circumstances, it may not be acceptable that real son and wife of a person would conspire to commit his murder for the interest of a third person or a person for minor consideration may involve his own kith and kin in a case of capital punishment but there may be a situation in which a person may choose to act in abnormal manner. The careful analysis of the facts and circumstances of the present case would lead to the conclusion that two Courts being influenced by the statement of Mst. Noor Bibi without keeping in mind the possibility of suicidal death formed an opinion of homicidal death of the deceased and held the appellant and his co-accused guilty of the charge. The evidence relating to the extra-judicial confession of Mst. Jamalan Khatoon being highly doubtful was also not reliable as Mola Bakhsh (P.W.6) before whom she allegedly confessed her guilt, did not inform the complainant or any other person about her confession before registration of the case and probably the Investigating Officer with a view to strengthen the prosecution case subsequently manipulated this piece of evidence. Similarly, the recovery of nylon string and other articles also would be of no use to the prosecution and the opinion of the doctor regarding death of deceased by strangulation was not a conclusive evidence of homicidal death because the same nature of injury would be sustained by him in case of suicide by hanging and consequently, medical evidence could not be safely used as independent source of corroboration. In absence of definite conclusion regarding the death of the deceased whether homicidal or suicidal, the doubt arising in respect of the nature of transaction and manner of taking place the occurrence would certainly be given to the accused and would not be stretched in favour of prosecution, whereas the trial Court as well as the High Court' in complete departure to the settled principles of appraisal of evidence and criminal administration of justice withheld the benefit of doubt available to the accused in favour of prosecution. There can be no deviation from the rule that prosecution must prove its case beyond reasonable doubt and except in a case of special plea taken by an accused in his defence, the burden is not shifted to the accused to rebut the accusation and in the present case we find that although onus of proving the homicidal death of the deceased to fix the responsibility of appellant and his co-convicts, was not satisfactorily discharged by the prosecution, yet the two Courts taking departure to this fundamental rule of criminal administration of justice, held them guilty of the charge. This is settled law that finding of guilt against an accused must not be based on probabilities to be inferred from evidence rather the finding of guilt must rest surely and firmly on the evidence of unimpeachable character otherwise, the golden rule of benefit of doubt would be reduced to naught. In the case in hand, the probabilities of homicidal as well as suicidal death being equally and substantially consistent with the guilt or innocence of the appellant, the conclusion drawn by the two Courts was in violation of the golden rule of criminal administration of justice that benefit of doubt must be given to the accused and must not be withheld in favour of prosecution. The absolute certainty is seldom in forming an opinion regarding guilt or innocence of a person but the Courts by means of proper appraisal of evidence must be vigilant to dig out the truth of the matter to ensure that no injustice is caused to either party. In the case in hand, the concurrent finding regarding guilt of the appellant and his co-accused was not based on sound evidence to sustain the conviction on the capital charge and consequently the conviction and sentence awarded to them, was bad in law. In the light of foregoing reasons, this appeal succeeds. The conviction and sentence awarded to the appellant is set aside and he is directed to be released from the jail forthwith if not required in any other case Mst. Jamalan Khatoon and Riasat Ali, her son, co-convicts of appellant, have not questioned the legality of their conviction and sentence before this Court and judgment of the High Court to their extent attained finality but the case against them being not distinguishable, they being entitled to the same benefit would not be dealt with differently. Consequently, the conviction and sentence awarded to Mst. Jamalan and Riasat Ali is also set aside and they are directed to be released from jail, forthwith if not required in any other case. This appeal is accordingly allowed. M.H./L-5/SC Appeal allowed.