PLJ 2022
Cr.C. 211
[Lahore High Court, Lahore]
Present: Ali Zia Bajwa, J.
FAISAL--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 258963 of 2018, decided on 20.8.2021.
Pakistan Penal Code, 1860 (XLV of
1860)--
----S. 302(b)--Qatl-e-amd--Circumstantial evidence--Acquittal
of co-accused--Appellant alongwith other accused committed the murder of
deceased lady by strangulating her with a rope around her neck on the pretext
of honour--Entire prosecution case hinges upon circumstantial evidence--In
circumstantial evidence, each piece of such evidence must be proved to
hilt--Witnesses of the Wajtakkar did not witness the occurrence and they saw
appellant with acquitted accused while fleeing away from the place of
occurrence--House where alleged murder was committed belonged to the acquitted
accused--Why accused made confession before the complainant and PW, as neither
they were any moral compulsions nor they would expect pardon from PW’s--Extra
judicial confession is a very weak type of evidence--Rope recovered from the
appellant is of common patron easily available in the market having no
distinctive mark--Mere recovery cannot basis for conviction--Human blood was
identified of dry soil whereas the blood stained mattress was not sent to
PFSA--Co-accused with identical allegations were acquitted--Prosecution
evidence is disbelieved against said accused--Appellant is acquitted. [Pp. 213, 216, 218,
220, 221, 223
& 224] A, B, C, D, E, F, G, I, J, K & L
2003 SCMR 477;
2008 YLR 1104; PLD 2019 SC 64; 2009 SCMR 166; 2018 SCMR 772; 1969 PCrLJ 1253;
2016 SCMR 1605;
2001 SCMR 308 ref.
Pakistan Penal Code, 1860 (XLV of
1860)--
----S. 302(b)--Qatl-e-amd--Medical
evidence--Medical evidence can only confirm the ocular account with regard to
the receipt of injury, locale of injury, kind of weapon, duration between the
injury and death and did not disclose the identity of the accused. [P.
222] H
2018
SCMR 772; 2017 SCMR 986 ref.
Pakistan Penal Code, 1860 (XLV
of 1860)--
----S.
302(b)--Qatl-e-amd--Acquittal of co-accused on same set of evidence--Co-accused
with identical allegations were acquitted--Prosecution evidence is disbelieved
against said accused, cannot be read against remaining accused. [P. 224] L
2019
SCMR 79; 2018 SCMR 313; 2019 SCMR 652 ref.
Mr. Adnan Afzal, Advocate
for Appellant.
Hafiz Asghar Ali, DPG for
State.
Nemo. for Complainant.
Date of hearing: 20.8.2021.
Judgment
This criminal Jail appeal has been
directed against the judgment, dated 14-11-2018 passed by learned Additional
Sessions Judge District Jhang, whereby Muhammad Faisal appellant was convicted
under Section 302(b), P.P.C. and sentenced to imprisonment for life with the direction
to pay Rs. 2,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal
heirs of the deceased or in default thereof to undergo 06 months' S.I. The
benefit of Section 382-B, Cr.P.C. was, however, extended to him. On the other
hand accused Ghulam Hassan (died during trial) Sharif, Riaz, Jahangir, Hasnat
and Qaisar were acquitted of the charges through the same judgment. (Para No.
22 of impugned Judgment)
Factual
matrix
2. The construction of the prosecution
case, mainly was based upon the statement of Mst. Fatima Bibi (PW-12)
and the brief facts narrated in the said complaint Ex.P-M are that complainant
came to Basti Dewan wali Jhang after receiving the information of death of her
grand daughter and she observed bluish marks on the neck of Mst. Shabna
Bibi deceased. Complainant having suspicion of murder of Shabna Bibi, inquired
about the cause of death from Jahangir accused, when he along with accused
Faisal and Qaisar came there, to which they became apprehensive and nervous and
could not furnish satisfactory justification qua the death of deceased to the
complainant.
Akhter Abbas and Anwar PWs informed
the complainant that on 17.10.2015 at about 5:00 a.m. they saw the accused
Faisal, Qaisar Jahangir and Hasnat coming out of the house of Riaz Fouji and
Sharif, walking away at a fast pace. They further suggested that if the
aforementioned accused persons do not disclose the cause of death of deceased,
then she must had been murdered by them. Accused Ghulam Hassan (since died)
also came there after hearing hue and cry of the complainant and said that he
will not spare the culprits who committed murder of the deceased. Meanwhile
police reached there and shifted the dead body of the deceased to Civil Hospital
Jhang for post-mortem examination. Complainant further stated that on
21.10.2015 she came to know that accused persons had committed the murder of Mst.
Shabna on the behest of Ghulam Hassan. Accused Ghulam Hassan got recorded his
statement regarding suicide of Shabna Bibi on 17.10.2015 to the police. When
complainant asked Ghulam Hassan accused qua his statement before the police
regarding suicide of Shabna Bibi on 21.10.2015 at 10:00 a.m. after
shillyshallying, he replied that character of deceased was not good and she was
ruining the family honor. He further disclosed that accused Faisal, Qaisar,
Jahangir, Hasnat and Sharif committed her murder on his instigation. Meanwhile
accused Faisal came there and confessed in presence of one Nasrullah that he
along with co-accused Qaisar Jahangir, Hasnat, Muhammad Riaz and Muhammad
Sharif had committed murder of Mst. Shabna Bibi by strangulating her with a
rope around her neck. The accused Faisal also extended threats of dire
consequences to the complainant in case of making any complaint to the police.
As for the motive, the complainant stated that accused persons committed the
murder of her granddaughter on the pretext of honour.
3.
Alleged Place of occurrence in this case is Chak No. 163 J.B. Basti Dewan Wali,
Jhang. It is the case of prosecution that after the murder of deceased Shabna
Bibi, her corpse was taken to Chak No. 159 J.B. by the appellant and other
accused, which is situated in the territorial Jurisdiction of a different
police station i.e. Mochiwala, District Jhang, for burial.
4. Appellant is husband of
deceased, accused Ghulam Hassan (since died) is her real father, accused
Jahangir (since acquitted) is her father-in-law, accused Qaiser (since
acquitted) is her brother in law (brother of appellant Faisal), Hasnat (since
acquitted) is brother of accused Jahangir and acquitted accused Sharif and Riaz
are also from the brotherhood of appellant.
Police
Proceedings
5. Preliminary proceedings under
Sections 174 & 176, Cr.P.C. were carried out on 17-10-2015 by Nawaz Anjum
Inspector (PW.14) as result of Rapt No. 15 dated 17-10-2015 incorporated in
daily diary of the concerned police station on the stance of accused Ghulam
Hassan (real father of deceased) and autopsy of deceased (Ex:PH) was conducted on
the same day. Thereafter on the application of complainant (Ex:PM) crime report
(Ex:PD) was registered qua the alleged murder of deceased Shabna Bibi. Initial
investigation of the case was also conducted by the Nawaz Anjum ASI. He
arrested appellant/accused Faisal in this case on 11-11-2015, who got recovered
“Rasi” P-2 in consequence of his discloser from the room of his house on
15-11-2015. On 18-11-2015 he got prepared report under Section 173, Cr.P.C.
against accused Faisal and Ghulam Hassan (since died), and same was submitted
in the Court through prosecution.
6. On 22-12-2015 accused Jahangir
(Since acquitted), Sharif (Since acquitted) and Riaz (Since acquitted) joined
the investigation of the case and their arrest was deferred in this case but
subsequently on 26-1-2016, I.O. arrested accused Jahangir. After completion of
investigation, I.O. submitted report under Section 173, Cr.P.C. before the
trial Court through prosecution for trial of accused Jahangir (Since acquitted)
in Column No 3 and accused Qaisar (Since acquitted) and Hasnat (Since
acquitted) in Column No 2 of the report with red ink being proclaimed offender
in accordance with law. Subsequent investigation of the case was carried out by
Ikhlaq Ahmad SI and after completion of investigation he submitted reports
under Section 173, Cr.P.C. to the extent of accused Hasnat (Since acquitted)
and Qaisar (Since acquitted) on 08-11-2016 and 25-11-2016 respectively.
Proceedings
before the Trial Court
7. On 10-01-2017 accused persons
were charge sheeted in this case and they pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, produced total fourteen witnesses,
against accused persons. Fatima Bibi, complainant, (PW-12) and Nasrullah (PW-8)
were witnesses of extra-judicial confession. Anwar Ali (PW-6) and Akhter Abbas
(PW-7) were witness of wajtakkar.
8. Imtiaz Ali 621/C (PW-3) and
Kashif Waseem 2059/C (PW-5) were witness of recovery of “Rasi” P-2. On the
receipt of written complaint prepared and sent by Nawaz Anjum. (PW-14) through
Abdur Rasheed 1243/H.C (PW-1), Faiz Ullah 1522/MHC (PW-4) chalked out formal
FIR (Ex.PD), while Raja Usman Yousaf Draftsman (PW-11) has prepared scaled
site-plan EX.PL of the place of occurrence. Investigation in this case was
carried out by Nawaz Anjum ASI. (PW-14) and Ikhlaq Ahmad SI (PW-13). Dr. Tahira
Shamim appeared as (PW-10) who had conducted post-mortem examination on the
dead body of Shabna Bibi deceased. Rest of the prosecution witnesses, more or
less, are formal.
9. After the recording of prosecution
evidence, appellant and other co-accused were examined under Section 342,
Cr.P.C., whereby they pleaded their innocence and denied all the allegations
leveled against them. The appellant and other accused did not opt to depose
within the scope of Section 340(2), Cr.P.C. however, appellant produced
attested copy of judgment dated 29-05-2015 Ex.D-A and copy of Rapt No 15
Mark-D-A in his defense.
10. The learned trial judge on conclusion of the trial held the
appellant guilty of the offence charged and sentenced him in the manner as
mentioned hereinabove but acquitted rest of the accused persons.
Arguments of the Parties
11. Learned counsel for the appellant submits that the
prosecution version is a cooked up story; the appellant has been falsely involved
in this case due to unreliable conjunctures and surmises with malicious
intention of the complainant; that admittedly there is no eye-witness of the
occurrence and entire case is based upon circumstantial evidence, which is also
not confidence inspiring; that the evidence of wajtakkar and that of extra-
judicial confession are not worthy of reliance; that the instant case was
registered against the appellant and other acquitted co-accused persons just to
exert pressure upon them to effect a compromise in a case FIR No 384/10
offences under Section 302/324/149/109, P.P.C. registered with Police Station
Mochiwala against the Ghulam Hussain son, and Sarfraz son in law and other
close relatives of the complainant Fatima Bibi; that the prosecution did not produce
any independent and confidence inspiring evidence against the appellant during
the course of trial, despite that he was held guilty and awarded the sentence
of imprisonment for life merely on the basis of unreliable evidence; that the
allegations were leveled against the appellant by the witnesses who had
personal grudge against the appellant; that the medical evidence is merely a
corroborative piece of evidence, which cannot take place of primary and
substantive evidence; that the recovery of rope at the instance of the
appellant is hardly of any consequence being an embroidery of the main
allegation, which could not be proved by the prosecution, through some concrete
evidence; that the case against the appellant is nothing but a bunch of lies,
therefore, the prosecution badly failed to bring home the guilt of the
appellant beyond any reasonable doubt but learned trial Court ignored all these
facts and convicted the appellant in this case on the basis of same evidence
which was disbelieved qua the other acquitted co-accused; Finally prays that
the appeal may be accepted and the appellant being an innocent person may be
acquitted of the charges.
12. Contrary to the above, learned
Deputy Prosecutor General Punjab contended that the appellant strangulated his
innocent wife in a cold-blooded manner and his guilt had been established
beyond any shadow of doubt by the prosecution through tangible and cogent
evidence; that the ocular account, the medical evidence, recovery of rope at
the disclosure of the appellant and other surrounding circumstances made it a
case of proven credibility against him, hence, the impugned judgment did not
suffer from any infirmity or legal defect; that the appellant committed brutal
murder of his own wife, hence, he does not deserve any leniency and finally
prays for dismissal of appeal.
13. Arguments heard and record
perused.
14.
Entire prosecution case hinges upon the circumstantial evidence as no direct
evidence is available on the record qua the alleged murder. Prosecution relied
upon the following evidence to prove the guilt of appellant:
i. Wajjtakkar-
Res Gestae
ii. Extra
Judicial confession
iii. Medical evidence
iv. Recovery
of Rasi (rope)
v. Spot
recoveries
vi. Motive
Extreme
care and caution is required in cases of circumstantial evidence and each piece
of such evidence must be proved to hilt. In cases of circumstantial evidence
every link must be connected with other link so as to form a continuous chain
in a way that its one end touches the dead body and other end touches the neck
of the accused. If any link in the said chain is weak or broken, remaining
links shall also lose their probative value and benefit of such missing link
should go in favour of accused. Reliance can be placed on various verdicts of
esteemed Supreme Court of Pakistan wherein it was held as infra:
“To believe or rely on circumstantial
evidence, the well settled and deeply entrenched principle is, that it is
imperative for the Prosecution to provide all links in chain an unbroken one,
where one end of the same touches the dead body and the other the neck of the
accused. The present case is of such a nature where many links are missing in
the chain”[1]
“Placing reliance on circumstantial evidence,
in cases involving capital punishment, the superior Courts since long have laid
down stringent principles for accepting the same. It has been the consistent
view that such evidence must be of the nature, where, all circumstances must be
so inter-linked, making out a single chain, an unbroken one, where one end of
the same touches the dead body and the other the neck of the accused. Any
missing link in the chain would destroy the whole and would render the same
unreliable for recording a conviction on a capital charge”[2]
“In cases of circumstantial evidence, the
Courts are to take extraordinary care and caution before relying on the same.
Circumstantial evidence, even if supported by defective or inadequate evidence,
cannot be made basis for conviction on a capital charge. More particularly,
when there are indications of design in the preparation of a case or
introducing any piece of fabricated evidence, the Court should always be
mindful to take extraordinary precautions, so that the possibility of it being
deliberately misled into false inference and patently wrong conclusion is to be
ruled out, therefore hard and fast rules should be applied for carefully and
narrowly examining circumstantial evidence in such cases because chances of
fabricating such evidence are always there. To justify the inference of guilt
of an accused person, the circumstantial evidence must be of a quality to be
incompatible with the innocence of the accused. If such circumstantial evidence
is not of that standard and quality, it would be highly dangerous to rely upon
the same by awarding capital punishment. The better and safe course would be
not to rely upon it in securing the ends of justice”.[3]
“By
now, it is a consistent view that when any case rests entirely on circumstantial
evidence then, each piece of evidence collected must provide all links making
out one straight chain where on one end its noose fit in the neck of the
accused and the other end touches the dead body. Any link missing from the
chain would disconnect and break the whole chain to connect the one with the
other and in that event conviction cannot be safely recorded and that too on a
capital charge”.[4]
As the entire case against the appellant is based
upon aforementioned circumstantial evidence, therefore, I would like to examine
each and every piece of evidence to ascertain whether the same is corroborated
by other piece of evidence, and maintains complete chain of circumstances
directly relatable to each other or whether any link in the chain is missing.
Wajjtakkar-
Res Gestae
15. the first significant piece of evidence relied upon by the
prosecution in this case is evidence of wajtakkar, which has been furnished by
Anwer Ali (PW6) and Akhter Abbas (PW7). According to these witnesses, they saw
Muhammad Faisal appellant along with his other co- accused (since acquitted) on
17.10.2015 at about 5:00 a.m. while coming out from the house of Riaz Fouji and
at that time they were in a perplex condition. Alleged occurrence took place in
this case on 17-10-2015 but crime was reported to police on 21-10-2015 with an
inordinate delay of four days for which no plausible explanation had been
rendered by the prosecution.
16.
Witnesses of the Wajtakkar did not witness the occurrence, and had allegedly
seen appellant along with acquitted accused while fleeing away from the place
of occurrence. PWs didn’t offer anything plausible to justify their presence at
the alleged place in such early hours of the day. It is also pertinent to
mention that complainant of this case Fatima Bibi (PW.12), while deposing
before the Court on oath, didn’t not utter a single word qua the fact that any
of the prosecution witnesses informed her about the appellant Faisal coming out
of the house of a co-accused Riaz Fouji along with other co-accused. Akhtar
Abbas (PW.7) was also inimical towards the accused persons due to implication
of his brother, father and uncle in Murder case of daughters of Ghulam Hassan.
He was cross-examined qua the aforementioned case and he admitted as under:
“It is in my knowledge
that the Sarwar bibi and Rukhsana daughter of Ghulam Hassan (since died) have
murdered and a criminal case was registered in police station Mochiwala
regarding that occurrence”
“It is correct that
my brothers namely Allah Ditta, Riaz, my father Shah Muhammad and my uncle
Nazar were nominated as accused in the murder case of Sarwar bibi and Rkhsana
at police station Mochiwala”
17.
Furthermore, according to crime report, the house where alleged murder was
committed belonged to accused Riaz (since acquitted) and nothing was brought on
the record that appellant was occupant of that house. Although complainant of
this case in his examination-in-chief stated that the house where alleged
occurrence took place was hired by appellant from Riaz but nothing was brought
on the record to substantiate such assertion. Witnesses of the Wajjtakkar Anwar
Ali (PW.6) and Akhtar Abbas (PW.7), who are inhabitant of the locality also
stated that appellant along with other accused was coming out of the house of
Riaz @ Fouji rather from the house rented by appellant as tenant.
18. Even otherwise, evidence of Wajtakkar was a weak
incriminating circumstance, which could easily be maneuvered by prosecution.
Reliance can be placed on Muhammad Mansha Kausar’s Case[5]
as under:
“Learned counsel attempted to persuade us
to accept the evidence furnished by Vajtakar witnesses but, in our view,
without any ocular evidence, no importance can be attached to this piece of
evidence, which is otherwise weak and infirm”
Wajtakkar evidence in
this case seems nothing, but an attempt on the part of the prosecution to craft
evidence to ensure conviction of accused persons in a case of unseen
occurrence.
Extra
Judicial Confession
19. Prosecution produced
complainant of this case Fatima bibi (PW.12) and Nasrullah (PW.8) to prove
extra judicial confession allegedly made by appellant Faisal and accused Ghulam
Hassan. According to complainant, appellant on 21-10-2015 confessed, in
presence of Nasrullah (PW.8), that he murdered the deceased Shabna Bibi and
also extended threats that if she (complainant) did pursue the case, she will
also be murdered. She further stated that next day i.e. 22-10-2015
accused Ghulam Hassan also came to her and confessed that he got the deceased
murdered through Faisal accused etc. and also begged for the pardon, which I
refused. Contrary to that Complaint (EX:PM) clearly transpires that only
accused Ghulam Hassan (since died) made confession before the complainant and
none else and that too on 21-10-2015. On the other hand Nasrullah (PW.8)
deposed before the Court that on 21-10-2015 he was present at Chak No. 159/J.B.
when in his presence complainant of this case asked Ghulam Hassan why he stated
before the police that deceased committed suicide. In reply Ghulam Hassan confessed
that due to bad character of deceased, he got her murdered through appellant
and other co-accused. In the meanwhile appellant also came there and confessed
that he along with other co-accused murdered the deceased.
20. According to complainant, she arrived
at Basti Deewan Wali, Jhang on 17-10-2015, where dead body of Shabna was lying
and she noticed bluish mark on her neck. Meanwhile police arrived there and
took the dead body of Shabna bibi for autopsy to civil hospital jhang. Such
assertion of the complainant is negated by the statement of Kamran Ali Si
(PW.9) who stated that after the occurrence at Chak No. 163 J.B. dead of Shabna
bibi was taken to Chak No. 159 J.B. situated in the territorial jurisdiction of
Police station Mochiwala. He did not utter a single word qua the presence of
complainant there. Complainant remained mum for four days, which further makes
her stance doubtful, disbelieving and skeptical.
21.
Why accused shall make confession before the complainant and why would they
implicate themselves before her and Nasrullah (PW.8), as apparently neither
there were any moral compulsions nor they would expect pardon from her or other
prosecution witness, especially keeping in view that Ghulam Hassan one of the
accused was real father of deceased Shabna bibi. Allegedly appellant and other
co-accused also extended threats of dire consequences to complainant if she
pursues the case, which further weaken the justification of making extra
judicial confession. No time, place, manner of occurrence and role played by
each accused in commission of offence in question had been provided in
extra-judicial confession, which further makes it doubtful. Extra judicial
confession not providing any details of the occurrence and manner in which it
was committed as such said story cannot be treated as confession made by the
accused. Same view was rendered by Honorable Mr. Justice Asif Saeed Khan Khosa
in Ghulam Abbas’s Case[6]
in the following terms:
"The alleged confession
made by Ghulam Abbas appellant before these witnesses was deficient in the
relevant details and it had never been specified therein as to which appellant
had played what role in the alleged murder of Ghulam Mustafa deceased"
22. In its landmark Judgment of Mst. ASIA BIBI’s Case,[7]
august Supreme Court of Pakistan, after analyzing approximately the entire case
law on the subject, held at Para No. 42 as infra:
“to the extent of
confessing the guilt in a public gathering, cannot be termed as an extra-judicial
confession because no time, date and manner of commission of offence was given
and further, no circumstances under which the appellant had allegedly committed
the offence, have been narrated in the alleged confessional statement. In this
regard it is to be noted that this Court has repeatedly held that evidence of
extra- judicial confession is a fragile piece of evidence and utmost care and
caution has to be exercised in placing reliance on such a confession. It is
always looked at with doubt and suspicion due to the ease with which it may be
concocted. The legal worth of the extra judicial confession is almost equal to
naught, keeping in view the natural course of events, human behaviour, conduct
and probabilities, in ordinary course. It could be taken as corroborative of
the charge if it, in the first instance, rings true and then finds support from
other evidence of unimpeachable character. If the other evidence lacks such
attribute, it has to be excluded from consideration. Reliance in this behalf
may be made to the cases of Nasir Javaid v. State (2016 SCMR 1144), Azeem Khan
and another v. Mujahid Khan and others (2016 SCMR 274), Imran alias Dully v.
The State (2015 SCMR 155), Hamid Nadeem v. The State (2011 SCMR 1233), Muhammad
Aslam v. Sabir Hussain (2009 SCMR 985), Sajid Mumtaz and others v. Basharat and
others (2006 SCMR 231), Ziaul Rehman v. The State (2000 SCMR 528) and Sarfraz
Khan v. The State and 2 others (1996 SCMR 188)”
23. In the present case complainant also had her own axe to
grind to implicate the accused persons in the present case. Complainant
admitted in her cross-examination that a criminal case qua the murder of Sarwar
bibi, Rukhsana daughters of Ghulam Hassan and Faizan bibi wife of Jahangir was
registered against Ghulam Hussain son of the complainant and her son-in- law
Sarafraz. As a result of trial in that case son-in-law of the complainant was
awarded death penalty. Judgment of that case was also tendered in defense by
the appellant as (EX:DA). Complainant further admitted in her cross-examination
as under:
"If
the complainant party of murder case of Sarwar bibi, Faiza Bibi and Rukhsana
agreed to compromise in that case I will also compromise in this case"
24.
The aforementioned facts certainly raise serious doubt about the veracity of
the witnesses of the prosecution, undermines the credibility of the testimony
and renders it unsafe and unworthy to place any reliance upon it. Even
otherwise, extra-judicial confession is a very weak type of evidence and the
same obviously needs neutral/strong corroboration from other independent
sources which is conspicuously missing in this case. Guidance can be sought
from Tahir Javed's
Case[8]
wherein at page 170, the august Supreme Court of Pakistan was pleased to
observe as under:
"10. …. It may be
noted here that since extra-judicial confession is easy to procure as it can be
cultivated at any time, therefore, normally, it is considered as a weak piece
of evidence and Court would expect sufficient and reliable corroboration for
such type of evidence. The extra-judicial confession therefore must be
considered with over all context of the prosecution case and the evidence on
record. Right from the case of Ahmad v. The Crown PLD 1951 FC 107 it has been
time and again laid down by this Court that extra-judicial confession can be
used against the accused only when it comes from unimpeachable sources and
trustworthy evidence is available to corroborate it.
25. Taking in to consideration the guiding principle given by
Hon'ble Supreme Court of Pakistan in judgments referred above, I have no other
option than to discard the evidence of extra-judicial confession being
concocted and cooked up by the prosecution to strengthen its case.
Medical evidence
26.
Autopsy of deceased was conducted by Dr. Tahira Shamim (PW.10) on 17-10-2015.
Ligature mark was found present on the front of neck. Except that no injury or
marks of violence were detected on dead body of Shabna bibi. It is otherwise
trite law by now that medical evidence can only confirm the ocular account with
regard to the receipt of injury, locale of injury, kind of weapon used for
causing the injury, duration between the injury and the death but would not
disclose the identity of the culprits. Reliance can be placed on Muhammad
Mansha’s Case[9]
wherein it was held by the august Supreme Court of Pakistan after considering
number of judgments[10]
that:
“It has been declared by this Court in
various judgments that the medical evidence neither pin point the accused nor
establish the identity of the accused, and at the most can depict the locale of
injury, duration, weapon used etc. and medical evidence can never be considered
to be a corroborative piece of evidence and at the most can be considered a
supporting evidence only to the extent of specification of seat of injuries,
the weapon used, duration, the cause of death etc.”
27. According to PW.10 Dr. Tahira Shamim six viginal swabs were taken
during autopsy. Three were sealed in bottle and sent to chemical laboratory for
detection of semen and serologist test. Three other swabs were sent to Punjab
Forensic Science Agency (PFSA), Lahore for DNA test. Astonishingly two sealed
parcels, one containing three viginal swabs and other containing one viginal
swab, were submitted with PFSA on 22.10.2015 by Muhammad Nawaz Anjum (899/C).
No statement of any such constable before the trial Court is available on the
record. According to report of PFSA i.e. Exh.PX there was no seminal
material was detected on three viginal swabs rather seminal material detected
on one viginal swab separately sealed, which clearly suggests that one extra
viginal swab was submitted with PFSA in order to craft evidence against the
appellant and other accused persons. In addition to that no DNA test was got
conducted by the investigation officer of this case. Aforementioned
circumstances reflect that investigation officer carried out investigation of
this case in a manner which was far from fair and honest. In view of above, it
is clear that medical evidence hardly lends any support to the prosecution case
to prove that present appellant committed the murder in question.
Recovery
of Rasi (rope)
28.
On 15-11-2015 on the pointing out of appellant Rasi-P2 (rope) was recovered
from the house situated at Basti Dewan Wali, which was taken into possession
vide recovery memo EX:PC. Furthermore rope recovered from the appellant is
of common patron easily available in the market having no distinctive mark,
which can easily be foisted upon the appellant. Such recovered piece of rope
was also not sent to Forensic Science Laboratory for DNA test to ascertain
whether it was the same rope, which was used to strangulate the deceased,
therefore the recovery of rope does not bear any significance to prove the
guilt of appellant. Even otherwise, it goes without saying that the recovery of
such piece of rope is a corroborative piece of evidence and in a case where
ocular evidence is discarded, mere recovery of such piece of rope cannot be
made basis for conviction. Reliance can be placed on Kirir and another v.
The Crown[11]
wherein august Supreme Court of Pakistan held:
“What remains therefore is only the evidence
of recovery of a shirt from Kirir and a hatchet from Yaroo, both of which were
found to be stained with human blood. These recoveries by themselves, without
any reliable evidence as to how the occurrence took place, cannot be regarded
as evidence establishing the case against the appellants beyond all reasonable
doubt. In the circumstances of the case these recoveries are not inconsistent
with the innocence of the appellants”
Same view was rendered by the honorable Supreme Court of Pakistan in Muhammad
Saleem’s Case[12]
and in Muhammad Yaqoob’s Case[13]
respectively:
“mere recovery of a
weapon of offence matching with a crime- empty was not sufficient to provide
corroboration to the other pieces of circumstantial evidence”
“We agree with the
High Court that in absence of any other incriminating evidence mere recovery on
the pointation, of Muhammad Yaqoob respondent would not be sufficient to hold
him guilty”
Consequently, mere recovery of piece of
rope on the pointing out of appellant without having any distinct mark thereon
to identify and relate the same in connection with the alleged crime, is hardly
of any avail to the prosecution.
Spot Recoveries
29.
According to investigation officer (PW.14), he secured blood stained earth and
also took into possession a blood stained mattress (Talai P.3) from the place
of occurrence vide recovery memo EX:PG on 21.10.2015 i.e. four
days after the alleged occurrence. According to autopsy report, no injury was
found on the body of deceased which caused any bleeding, so in that eventuality
taking into possession blood stained earth and mattress seems overdoing, which
resultantly is of no avail to prosecution case. Report of Punjab Forensic
Science Agency (PFSA) EX:PX only reveals that human blood was identified on dry
soil whereas the blood stained mattress was not sent to PFSA.
Motive
behind the alleged occurrence
30. The motive allegedly came to
known to the prosecution witnesses through the extra judicial confession made
by appellant that deceased was of bad character and was ruining the family
honour. Prosecution could not brought on the record any other independent
evidence to prove that alleged motive existed and resulted in the alleged
occurrence. Even otherwise, when evidence of extra judicial confession is not
credible, such motive would also not be worthy of believing.
31.
Apart from the above, co-accused Qaisar, Jahangir, Hasnat, Muhammad Riaz and
Muhammad Sharif were burdened with identical allegations as compared to those
leveled against the appellant. The above said accused persons were acquitted of
the charge after full-fledged trial. Neither complainant nor the State opted to
prefer appeal against the acquittal of said accused persons and judgment of
their acquittal has attained finality. Now the next proposition of law which
involves consideration in present case is whether the evidence which had been
disbelieved to the extent of five co-accused who had been acquitted by the
trial Court can be believed to the extent of the appellant.
32.
It is well established law that if the prosecution evidence is disbelieved
against the few accused facing trial, Court is competent to reject such
evidence against other accused in absence of strong and independent
corroboration on record. In these circumstances when the evidence to the extent
of acquitted co-accused has already been disbelieved by learned trial Court, it
cannot be believed against the appellant until and unless the same is supported
by any independent corroborative piece of evidence. Reliance can be placed on Munir
Ahmed’s Case[14]
wherein august Supreme Court pronounced:
“If some independent and strong
corroboration is available the set of witnesses which has been disbelieved to
the extent of acquitted co-accused of the appellant can be believed to the
extent of the appellant”
This view can be
further fortified by Ulfat Husain’s Case[15]
in which it was held:
“In these circumstances, independent and
strong corroboration from other pieces of evidence is required to believe the
same set of evidence against the appellant which has already been disbelieved
by the learned trial Court against his acquitted co- accused, whose roles were
quite similar as that of the appellant. Such corroboration is very much lacking
in the instant case. Considering all these circumstances, we have no manner of
doubt in our minds that prosecution has failed to prove its case against the
appellant beyond any shadow of doubt”
Similar view was
expressed by the honorable Supreme Court in Muhammad Ashraf Alias Acchu’s
Case[16]
that:
“In these circumstances, when the direct
evidence of Sultan Ahmad (PW9) and Abdul Shakoor (PW11) has been disbelieved up
to this Court to the extent of co-accused Saeed Ahmad, it is of paramount
importance to see as to what independent corroboration is available on record
to distinguish the case of appellant from that of his acquitted co-accused”
33. I have minutely scrutinized the
record and carefully examined the prosecution evidence which leads me to
observe that no independent and strong corroborative evidence is available on
the record to warrant the conviction of appellant. Even otherwise, the whole
case of prosecution was primarily founded on the strength of extra-judicial
confession and wajtakkar evidence, both of which have miserably failed to
secure any credence on the accepted legal parlance. Resultantly, the case of
prosecution is left as a spineless structure and as an unfounded resume of
fiction far from believable and proven facts.