ABDUL JABBAR Versus State

SOHAIL NASIR, J.--- This Criminal Appeal filed by Abdul Jabbar (appellant) is directed against judgment dated 10.05.2017 passed by the learned Additional Sessions Judge, Sahiwal resulting into his conviction under Section 302(b), P.P.C. 1 (on two counts) and sentence to imprisonment for life (on two counts). It was directed that appellant will pay Rs.500000/- (five lacs) as compensation in terms of Section 544-A, Cr.P.C. 2 to the legal heirs of each deceased and in default thereof to further undergo six months S.I. 3 each. His period of detention already served in jail was also ordered to be computed in terms of Section 382-B, Cr.P.C. 4

2. The convictions are outcome of case FIR 5 No. 16 (PB) recorded on 28.01.2003 under Section 302, P.P.C. at Police Station Farid Town District Sahiwal on the complaint of Muhammad Anwar (Pw-6) for the allegations of commission of 'Qatl-i-Amd 6 ' of Mst. Bashiran Bibi and her daughter Shahida Bibi.

3. Facts of the case are that on 28.01.2003 Muhammad Anwar (Pw-6) 7 appeared in Police Station and got recorded FIR (PB) where he maintained that he was a laborer; Hakim Ali his Behnoi 8 (husband of Bashiran Bibi deceased) had died about six months earlier; Mst. Bashiran Bibi his/ complainant's sister along with her children was residing at Bungalow of one Mian Ehsan-ul-Haq Arain, an Ex-Councilor, situated at Officers Colony Sahiwal; she was enjoying illicit relations with Abdul Jabbar (appellant) since the life time of her husband; Zafar Iqbal (Pw-7) son of Mst. Bashiran Bibi told him/complainant that few days earlier Abdul Jabbar (appellant) came to the house of Bashiran Bibi, quarreled and forced her for Nikah 9 with him; for this reason, on that day (28.01.2003), he and Zafar Iqbal were sitting in a room of the house of Bashiran Bibi and were busy in conversation; Bashiran Bibi and Shahida Bibi were busy for making tea; it was about 07:45 am, when Abdul Jabbar armed with 12-bore pump action gun came and asked Bashiran Bibi to accompany him which she refused; thereafter Abdul Jabbar made a fire that hit on the face of Bashiran Bibi who being injured fell down on the ground; he/complainant and Zafar Iqbal when came out from the room, Abdul Jabbar also extended threats to kill them; with indiscriminate firing on Shahida Bibi, Abdul Jabbar was succeeded to escape from there; Bashiran Bibi died at the spot, however, Shahida Bibi lost her last breath on arrival to Civil Hospital Sahiwal.

4. FIR was recorded by Zahoor Ahmad Sub-Inspector (Pw-10) who thereafter started the investigation. When appellant could not be arrested, he was declared as Proclaimed Offender and a report under Section 173, Cr.P.C. (Challan) was submitted in court.

5. On, 12.08.2016 appellant was arrested by Muhammad Nazeer Sub-Inspector (Pw-9) who later on submitted a supplementary report under Section 173, Cr.P.C. (Challan) in Court.

6. A charge under Section 302, P.P.C. framed against appellant, on 31.01.2017, was not pleaded guilty by him and he demanded for his trial.

7. In order to prove its case, prosecution had produced Asghar Ali Head Constable/Moharrar (Pw-1), Muhammad Shafiq Constable (Pw-2), Manzoor Ahmad Constable (Pw-3), Muhammad Saeed Akhtar/Draftsman (Pw-4), Allah Ditta Constable (Pw-5), Muhammad Anwar/complainant (Pw-6), Zafar Iqbal / eye-witness (Pw-7), Dr.Warda Gulzar (Pw-8), Muhammad Nazir Sub-Inspector/Investigating Officer (Pw-9) and Zahoor Ahmad Sub-Inspector/ Investigating Officer (Pw-10).

8. Hassan Ali and Muhammad Shahbaz Constable were given up by learned Assistant District Public Prosecutor who thereafter closed the prosecution's evidence.

9. In his examination made under Section 342, Cr.P.C. version of appellant was as under:--

"I am contractor and in fact I, complainant and Zafar lqbal PW were used to work together and both complainant and PW Zafar lqbal had been working with me as labourer, resultantly, Rs.50,000/- of the PW and complainant were against me, due to that we were quarreled with each other, taking the opportunity of the occurrence; that the complainant, the PWs and one Shah Nawaz landlord of that area, after consultation and deliberation entangled me in this case falsely to take revenge of that scuffle"

10. Appellant also denied about his absconding and maintained that he was not in the knowledge about this case. He opted not to appear in terms of Section 340(2) 10 , Cr.P.C. or to produce defense evidence.

11. Learned counsel for appellant contended that this is the duty of prosecution to prove its' case beyond reasonable doubt without taking any benefit from weakness of defense which in the case in hand has not been discharged; both the eye-witnesses could not furnish any reason for their presence at crime scene; their conduct was highly objectionable; the delayed post mortem examination has made the entire prosecution's story doubtful; statements of witnesses are suffering from contradictions and infirmities. He finally added that as prosecution could not discharge its' liability therefore, on the basis of absconding alone conviction cannot be recorded and if recorded cannot maintain.

12. On the other hand, learned Assistant District Public Prosecutor argued that this is a case in which two ladies lost their lives at the hands of appellant; FIR was recorded without loss of time, so it has ruled out the possibility of false involvement of appellant; in the promptly lodged FIR the manners of occurrence have been described with all relevant details that includes the weapon carried by appellant, firing he made on two ladies and then escape from crime scene; witnesses were having no enmity whatsoever so question of framing the appellant does not arise; statements of both the eye-witnesses are not suffering from any conflict and there is nothing in their depositions to discard their credibility; delayed postmortem examination can give no premium to appellant because it was the duty of the doctor to enter into that exercise without wastage of time; absconding of appellant spreading over twelve years is the strongest corroborative piece of evidence in favour of prosecution. Learned Law officer finally maintained that learned trial court has already taken a lenient view while not awarding the normal sentences of death to appellant so the impugned decision requires no interference.

13. HEARD.

14. Mst. Bashiran (deceased) was residing in house No.179/A situated at Officers Colony Sahiwal that was the part of Bungalow of one Mian Ehsan-ul-Haq an Ex-Councilor where she used to work. Muhammad Anwar/ complainant (Pw-6) is the real brother of Mst. Bashiran Bibi but he was not the resident of the same house or locality. He, in cross-examination, admitted that his house was at a distance of about 4/5 Kilometers from crime scene and that he was a laborer. Similarly Zafar Iqbal

(Pw-7) although was the real son of Bashiran Bibi but he too was not residing in the house with her mother. He in examination-in-chief gave his address as of house No.384-W-Block Farid Town Sahiwal where he was also running his shop of hair dressing and that was at a distance of one Kilometer from crime venue.

15. Both Muhammad Anwar (Pw-6) and Zafar Iqbal (Pw-7) in view of above circumstances were the chance witnesses. A chance witness is the person who under ordinary circumstances is not supposed to be present at a place where he claims but he has to be at his ordinary place of residence or work. Therefore, when a chance witness claims his presence at a particular site he is always under heavy obligation to show any specific reason to establish his availability at the stated place. In failure to offer any good reason such witness remains of no worth for prosecution 11 .

16. It was stated in FIR by Muhammad Anwar that Zafar Iqbal told him that few days earlier Abdul Jabbar came to the house of Bashiran Bibi and forced her for Nikah and for this reason on the day of occurrence he and Zafar Iqbal were sitting in the house of Bashiran Bibi. Surprisingly these words never came out from their mouths during their examination-in-chief. It goes without saying that the contents of FIR are not the final words and cannot substitute the evidence. Unless said contents are proved by maker while appearing in court, no value can be attached thereto.

17. As both the eye-witnesses completely failed to disclose any reason for their presence in the house of Bashiran Bibi, therefore, on this score alone their credibility has lost the value and importance.

18. Zafar Iqbal (Pw-7) was aged about 28 years at the time of occurrence because he gave his age while making his statement as 36 years in 2017. In the presence of real son who was young, the appellant who was aged about 44 years came and committed the murder of his real mother but this gentleman made no attempt to interfere or intercept. No doubt that appellant was having 12-bore pump action gun but at the same time the target for him was the real mother of Zafar Iqbal, so in that situation it cannot be expected from real son to prefer the death of his real mother for saving his own life.

19. According to Zafar Iqbal when he attended both the deceased, his clothes were smeared with blood. Said clothes could be the strong corroboration to establish his presence at crime scene but where those clothes are? Prosecution has no answer in this regard.

20. FIR (PB) shows that occurrence took place at 07:45 am and it was recorded at 08:45 am. If confined to this document, it appears to be promptly lodged FIR but if all the circumstances are seen and evaluated together, it can be safely concluded that FIR was not recorded at the given time. This document says that Bashiran Bibi died at spot whereas Shahida Bibi had taken her last breath on arrival to hospital. FIR further stated that leaving the dead bodies there, Muhammad Anwar/complainant went to Police Station and got registered the FIR. It means that before 08:45 a.m. both Bashiran Bibi and Shahida Bibi were no more in this world but this position has been contradicted when Muhammad Anwar and Zafar Iqbal maintained that at first Shahida Bibi was shifted to hospital and it was 3/4 hours thereafter when dead body of Bashiran Bibi was taken to hospital.

21. Manzoor Ahmad Constable (Pw-3) in his examination-in-chief added that he received both the dead bodies for autopsy which he had taken to DHQ 12 Teaching Hospital Sahiwal. In his cross-examination he responded that he reached hospital at 08:30 am. By conflicting the prosecutions' story narrated in the FIR he stated that at first they took the dead bodies from crime scene to Police Station and then to hospital.

22. There is another angle to criticize the prosecutions' evidence. If the statements of all relevant witnesses are read together the reflection is that both the dead bodies were in hospital at least by 09:00 am. When Dr. Warda Gulzar (Pw-8) came in witness box, she categorically maintained that she conducted the post mortem examinations on the same day at 06:45 pm. In cross-examination, she replied that she proceeded for post mortem examination immediately when she received the dead bodies. If the dead bodies were in hospital at 09:00 am then why the postmortem was conducted after about 10 hours that was 06:45 pm and why the doctor said that she received the dead bodies at that time also? The delayed post mortem examination has always been considered as vital blow in prosecutions' case as it creates serious doubt about worth and veracity of presence of the witnesses 13 .

23. Ehsan-ul-Haq was the most important witness of the case because Bashiran Bibi and Shahida Bibi were living in a portion of his house. Zahoor Ahmad Sub-Inspector (Pw-10) although in his cross-examination replied that he joined said Ehsan-ul-Haq in the investigation but admittedly no statement of him under Section 161, Cr.P.C. was recorded. Not to examine him by the Investigating Officer amounts to withhold the best available evidence therefore an adverse inference can be safely drawn against the prosecution.

24. Statement of Dr. Warda Gulzar (Pw-8) has already been referred that she conducted the postmortem examinations at 06:45 pm. She found firearm injuries on the person of both the deceased. She, during dissection, recovered some foreign material. According to her these were bullets which she handed over in two sealed bottles to police. Zahoor Ahmad Sub-Inspector (Pw-10) in his examination-in-chief claimed that said bottles were containing pallets. The foreign body recovered from the bodies of the deceased could be the most authentic piece of evidence to establish that if both females received shots from cartridges fired from 12 bore gun or otherwise. To my mind those bullets or pellets were required to be sent for forensic examination for resolving the controversy between doctor and the Investigating Officer. Hence this is another blow in prosecutions' case.

25. Recovery of gun at the instance of appellant on 26.08.2016 needs no discussion as the same was inconsequential.

26. Only evidence therefore remains with the prosecution is absconding of appellant spreading over about fourteen years. These are the settled principles of law that absconding cannot be viewed as a proof for the crime; people stay away from law for a variety of reasons not necessarily compatible with hypothesis of guilt, to avoid impending wrath of opponents in hostile environment, more often than not compel even the innocent into recusal of safety; absconding cannot be made sole basis for conviction of accused when the other prosecutions' evidence is doubtful and riddle with contradictions and that absconding is never sufficient by itself to prove the guilt 14 .

27. I am conscious of the fact that two innocent ladies lost their lives in this occurrence but on this ground alone, the conviction recorded by the learned trial court cannot sustain. Under no circumstance prosecution can escape from its duty to prove the case by producing the evidence of high quality and if it is short of prescribed standard the accused shall have a right of acquittal irrespective of heinousness of offence and gravity of crime.

28. Finalizing the discussions and deliberations made above, this Court finds no difficulty to hold that prosecution has failed to prove its case beyond reasonable doubt against Abdul Jabbar (appellant) therefore, this Appeal is allowed. Impugned judgment dated 10.05.2017 is set aside. Appellant is acquitted from the case. He is in custody and shall be released forthwith if not required in any other case. Case property shall be dealt with in the same manners as directed by the learned trial court.

JK/A-72/L Appeal allowed.