MUDASSAR alias YASRI Versus State

SADAQAT ALI KHAN, J .---This single judgment shall dispose of Criminal Appeal No.1878 of 2015 filed by Mudassar alias Yasri appellant (against his conviction) , Criminal Revision No.489/2017 and M.R. No.371 of 2015 sent by Trial Court for confirmation of death sentence of Mudassar alias Yasri appellant or otherwise, as all the above stated matters have arisen out of same judgment dated 06.10.2015 passed by learned Additional Sessions Judge, Phalia, according to which appellant was convicted and sentenced as under:-

Mudassar alias Yasri son of Abdul Razzaq

"He was convicted under section 302(b), P.P.C. and sentenced to DEATH as Tazir on three counts along with compensation Rs.1,00,000/- on three counts payable to the legal heir, of each deceased under section 544-A, Cr.P.C. and in default thereof further undergo six months' simple Imprisonment on three counts.

He was also convicted under section 376, P.P.C. and sentenced to 25 years' R.I. along with fine Rs.1,00,000/- and in default thereof further undergo six months' S.I,.

He was also convicted under section 449, P.P.C. and sentenced to 10 years' R.I along with fine Rs.50,000/- and in default thereof further undergo six months' S.I.".

All the sentences of the appellant were ordered to be run concurrently along with benefit of section 382-B, Cr.P.C., whereas his co-accused namely Muhammad Waqas, Nawaz Sajjad Ahmad and Muhammad Naseeb were acquitted by the learned trial court in private complaint under section 302, P.P.C. arising out of case FIR No. 398 dated 9.12.2010 under sections 302/449/34, P.P.C. police station, Pharianwali District Mandi Baha-ud-Din.

2. The facts of the case have been stated by Muhammad Asim (PW2) (complainant of the private complaint) in his statement before the learned trial court, which is hereby reproduced for narration of the facts:-

"On 9.12 2010 at about Fajjar prayer I received information at Lahore through Muhammad Naseeb that Waqas and Mudassar present in court along with un-known persons murdered Mst. Rukhsana Bibi my wife, Maqdas Bibi my daughter and Junaid my son through strangulation after committing zina-bil-jabr with Mst. Maqdas Bibi. I came from Lahore at the place of occurrence and came to know that Muhammad Naseeb has already got registered FIR. Mst. Rukhsana Bibi my wife told me before the occurrence that Mudassar had developed illicit relations with Maqdas Bibi my daughter. Mudassar had given a Mobile to Maqdas Bibi. They used to conversant with each other on the Mobile. I took Mobile from Maqdas Bibi and went to the Baithak of Shan Elahi where Shan Elahi and Farman were sitting. Shan Elahi called Muhammad Nawaz and Sajjad elder of Mudassar and Waqas accused to his Baithak. I complained against Mudassar and Waqas to their elder but they showed their inability. Shan Elahi and I went to the house of Mudassar accused and complained against him to his mother Mst. Bashir Bibi but she started to quarrel with us by saying to give hand of Maqdas to Mudassar. Farman Ali told me after the occurrence that he had seen Muhammad Nawaz and Sajjad while saying Mudassar, Waqas and Bashiran Bibi two days before the occurrence on 7.12.2010 at about 8.00 p.m. to murder Maqdas Bibi to end the-quarrel. Mudassar took away ear-rings from the dead body of Mst. Rukhsana Bibi. I appeared before the police and got recorded my statement but the police did not record my statement correctly. Shan Elahi and Jamal saw the accused while coming out from my house after the occurrence. The police did not conduct investigation properly so I filed this complaint Ex:PA."

3. After filing of private complaint, learned trial court recorded the cursory evidence produced by the complainant and thereafter summoned the appellant and his co-accused (since acquitted) mentioned above to face the trial.

4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 15.08.2011 against the appellant and his co-accused since acquitted mentioned above under section 302/34, 449, 376, 404, 411, 109, 201, 213, P.P.C. to which they pleaded not guilty and prosecution evidence was summoned.

5. The Prosecution produced Muhammad Zaman PW-1, Muhammad Asim (complainant) PW-2, Shan Elahi PW-3, Farman Ali PW-4, Jamal Din PW-5, Mazhar Hussain CW-1, Dr. Muhammad Zafar Shah CW-2, Umar Farooq CW-3, Muhammad Iqbal S.I CW-4, Adil Riaz CW-5 Irfan Mushtaq CW-6, Dr. Shahid Naseem CW-7, Dr. Husna Aslam CW-8, Irfan Mushtaq CW-9, Zulifqar Ali CW-10, Muhammad Azam S.I CW-11 and Aamir Zaman CW-12 whereas, PWs namely Asjad Ali and Mukhtar Ahmed were given-up by the prosecution being unnecessary and after tendering documentary evidence i.e. report of Chemical Examiner Ex.CW8, closed the prosecution evidence.

6. Medical evidence has been furnished by Dr. Muhammad Zafar Shah CW-2, Dr. Shahid Naseem CW-7 and Dr. Husna Aslam CW-8 whose details are as under:-

"Dr. Muhammad Zafar Shah Ex-Medical Officer CW-2 stated that on 9.12.2010 he conducted postmortem examination on the dead body of Muhammad Junaid deceased and observed as under:-

External injuries.

1. Strangulation/ligature mark was present around the neck. Hyoid bone was fractured into many pieces.

Opinion

In my opinion injury No.1 was sufficient to cause death as a result of strangulation of the neck leading to asphyxia and cardio-pulmonary arrest. Hyoide bone was fractured into many pieces.

Dr. Shahid Naseem APMO, CW-7 stated as under:-

"On 8.1.2011 when I vas posted as SMO at RHC Pahrianwali, police brought on the same day Mudassar Hayat son of Razzaq Ahmed aged about 23 years resident of Haslanwala, Tehsil Phalia District Mandi Bahauddin. On examination he was young person, wearing Shalwar and Qamiz, well oriented in time and space. His primary and secondary sex character was fully developed. Cremestoric reflex was present. No organic disease was found which hinder the sexual act."

Dr. Husna Aslam WMO CW-8 stated that on 9.12.2010 she conducted post-mortem examination on the dead body of Rukhsana Kausar deceased and observed as under:-

Injuries

1. A confuse swelling 2.5 cm in width was seen all around the neck with abrasion reddish in colour. On dissection under line tissues were congested and hyoid bone was broken.

Opinion

After careful examination on the dead body both externally and internally I was of the opinion of that the injury described above was ante mortem in nature and was caused by some ligature leading to a asphyxia, anoxia to brain and cardiopulmonary arrest leading to death which causing death in ordinary course of nature.

Time between injury and death within minutes between death and postmortem 12 to 18 hour.

On the same day, Dr. Husna Aslam WMO CW- 8 also conducted postmortem examination on the dead body of Mst. Muqaddas Bibi deceased and observed as under:-

Injuries

1. A ligature mark 2 cm in width in redish in colour along with abrasion and haemorrhages were seen all around the whole neck. Hyoid bone was intact. Under line soft tissues were congested.

2. Three ligature marks each was 2 cm in width was present all around both forearm near wrist joint, redish in colour.

OPINION

After careful examination on the dead body both externally and internally I was of the opinion of all the injuries described above were ante-mortem in nature and were caused by some ligature. Injury No.1 was fatal in nature leading to a asphyxia, anoxia and cardiopulmonary arrest and causing death which causing death in ordinary course of nature. Victim Maqdas Bibi was not a virgin. According to Chemical Report No. 2962/S the above swabs are stained with semen. In my opinion zina was committed with Maqdas Bibi."

7. On the other hand, statements of Mudassar alias Yasri appellant and his co-accused (since acquitted) mentioned above were recorded under section 342, Cr.P.C. who refuted the allegations so leveled against them. The appellant neither opted to appear as witness under section 340(2), Cr.P.C. nor produced any oral defence evidence, however, he produced documents (Ex.DA and Ex.DD) in documentary defence evidence and in reply to question "why this case against you and why the PWs depose against you?" Mudassar alias Yasri appellant replied as under:-

"All the PWs are related inter-se and have deposed falsely against me and my co-accused persons for saving their skin. The real facts are that Farman Ali cousin and Behnoi of Shan Elahi wanted to marry his son namely Haroon with Muqadas Bibi. Rukhsana Bibi deceased refused which infuriated the above said Farman Ali and Shan Elahi etc. So Shan Elahi etc., started narrating the false facts against the character of Muqadas Bibi to Muhammad Asim (complainant of this case). Due to the intrigue of Shan Elahi etc., Muhammad Asim became fed up. And in this respect two days prior to the murders of Rukhsana Bibi, Muqadas Bibi and Muhammad Junaid deceased, Muhammad Asim asked Shan Elahi, Khawar Jamal, Farman Ali, Master Muhammad Zaman, Asjad Iqbal and Jamal alias Jali for murdering his wife Rukhsana Bibi, his daughter Muqadas Bibi and his son Junaid deceased. In this respect on 09.12.2010 at about 2:30 a.m. (night) Muqadas Bibi made a telephone call to Muhammad Naseeb and told that Shan Elahi, Khawar Jamal, Farman Ali, Master Muhammad Zaman, Asjad Iqbal and Jamal alias Jali while entering in their house are murdering her mother Rukhsana Bibi and they also want to murder her brother, upon which Muhammad Naseeb along with Muhammad Ashraf and Zafar Iqbal went towards the house of his sister Rukhsana Bibi. When Muhammad Naseeb etc., reached in the street near the house his sister Rukhsana Bibi at about 2:45 a.m. (night). In the light of bulb Muhammad Naseeb and his companions saw Shan Elahi, Khawar Jamal, Farman Ali, Master Muhammad Zaman, Asjad Iqbal and Jamal alias Jali while coming out from the house of his sister Rukhsana Bibi and entering in the house of Shan Elahi. When Muhammad Naseeb etc. entered in the house of his sister Rukhsana Bibi (deceased), they saw Rukhsana Bibi, Muqadas Bibi and Muhammad Junaid being murdered by strangulating with ligatures having their hands and feet being tied with the ligatures. Muhammad Naseeb, Muhammad Ashraf and Zafar Iqbal swiftly went to the house of Shan Elahi where all the above said Shan Elahi and his above said companions were present and upon asking of the Muhammad Naseeb for they murderers of Rukhsana Bibi etc, they could not satisfy Muhammad Naseeb and his companions. In the morning Muhammad Azam (SI) along with other police personel arrived at the place of occurrence, Muhammad Naseeb told about the culpability of Shan Elahi and his above said companions but Muhammad Azam (SI) joined hands with the Shan Elahi etc. Muhammad Naseeb informed Muhammad Azam (SI) that he will lodge the FIR after Rasme Qull of the deceased persons, but Muhammad Azam (SI) got signed and thumb marked some blank papers by Muhammad Naseeb on the pretext of conducting of post-mortem examination of all the three above said deceased persons. But latter on when Muhammad Naseeb went to the police station for the purpose of registration of FIR where he came to know that FIR had already been registered against the innocent persons instead of the real culprits who were Shan Elahi etc., above said. For the purpose of registration of false FIR Exh.CW4/A, Muhammad Azam (SI) investigating officer and Shan Elahi etc, used those blank papers were used which were got signed and thumb marked by Muhammad Azam on the pretext of conducting the post-mortem examinations of above said deceased persons. And in the police station, Muhammad Naseeb saw Shan Elahi while sitting beside Muhammad Azam (SI) was preparing case diaries of the instant case upon which Muhammad Naseeb approached DPO M.B. DIN, the DPO summoned Muhammad Azam (SI) and Shan Elahi along with case file of the instant case and upon inquiry case diaries of the instant case were found to be prepared by Shan Elahi. Shan Elahi who served in the police department for a long period and retired as SI from the police department. Then and there, the DPO dismissed Muhammad Azam (SI) and investigation was handed over to Malik Pervaiz (SI) since dead, who also connived with Shan Elahi etc. I along with my co-accused persons was falsely roped in this case by stating false facts and by fabricating false motive in order to save the skin of real culprits who were Shan Elahi etc. I along with my co-accused persons have no concern with the instant alleged occurrence. Infact the instant occurrence was committed by the Shan Elahi etc. along with his above said companions on the instigation and abetment of Muhammad Asim (alleged complainant). It is important to mention here that on 25.01.2011, Asjad Iqbal and Jamal alias Jali (companions of Shan Elahi etc.) confessed about murdering Rukhsana Bibi, Muqadas Bibi and Junaid with the ligatures on the abetment of Muhammad Asim before Muhammad Akram and Muhammad Arif (PWs of connected complaint case titled Muhammad Naseeb v. Shan Elahi etc., being under trial along with the instant complaint). When Muhammad Naseeb could not get justice from the police department then he filed the complaint against the real culprits upon the real facts titled Muhammad Naseeb v. Shan Elahi etc. in the same court after disposing of his petition filed under sections 22A, 22B, Cr.P.C. instant complaint was filed against the real facts just to save the skin of real culprits. I along with my co- accused persons are innocent. Shan Elahi from the day first being retired police officer has been fabricating and maneuvering false piece of evidence being in league with the investigating officers".

8. After conclusion of the trial, learned trial court while acquitted co-accused of the appellant convicted the appellant (Mudassar alias Yasri) with above said sentences. Hence this appeal and Criminal Revision.

9. Learned counsel for the appellant have contended that:-

(i) the judgment of the trial court dated 06.10.2015 is against law and facts on the file and is liable to be set aside.

(ii) that the prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial court has convicted the appellant on the basis of surmises and conjectures;

(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;

(iv) lastly submitted that instant appeal may be accepted and the judgment of the trial court dated 06.10.2015 may kindly be set aside and appellant/convict may be acquitted.

10. On the other hand, learned D.P.G has vehemently apposed the appeal and submitted that:-

(i) the prosecution has proved its case beyond any shadow of doubt against the appellant/convict with solid evidence and prayed for the dismissal of the appeal.

(ii) Learned D.P.G while arguing in Criminal Revision No.489/2017 has submitted that the prosecution has proved its case beyond shadow of doubt but learned Trial Court without any valid reason awarded lesser punishment to the respondent in offence under section 376, P.P.C. and prayed for enhancement of his sentence in that offence also.

(iii) learned counsel for the complainant submits that he has no objection on acceptance of this appeal and acquittal of the appellant.

11. We have heard the learned counsel for the appellant as well as learned DPG assisted by learned counsel for the complainant and perused the record.

12. According to the prosecution story, Mst. Rukhsana, her daughter Mst. Muqaddas and her son Muhammad Junaid were murdered in their house on 9.12.2010 at 2:45 a.m. (night). Initially, FIR was registered on 9.12.2010 at 9.05 a.m. on the written application Exh.CW11/A moved by Muhammad Naseeb (complainant of the FIR), real brother of Mst. Rukhsana Bibi deceased against Mudassar alias Yasri appellant, his brother Muhammad Waqas accused (since P.O) and two unknown accused. It is mentioned in the endorsement made Muhammad Azam S.I/CW11 at the bottom of the application Exh.CW11/A moved by Muhammad Naseeb complainant of the FIR that Muhammad Asim husband of Mst. Rukhsana Bibi (complainant of the private complaint) was with him (Muhammad Naseeb complainant of the FIR) at the time of moving said application. Thereafter, Muhammad Asim husband of Mst. Rukhsana Bibi deceased, father of Mst. Muqaddas and Muhammad Junaid deceased filed private complaint Exh.PA while arraying as accused to Muhammad Naseeb complainant of the FIR, Sajjad Ahmad, Nawaz, Waqas Ahmad (since P.O) and Mudassar alias Yasri appellant. Muhammad Naseeb complainant of the FIR also filed private complaint against Muhammad Asim (complainant of the above said private complaint), Shan Elahi PW3, Farman Elahi PW4, Jamal Din PW5, Khawar Jamal, Master Muhammad Zaman and Asjad Iqbal. All the above said matters were tried separately by the Trial Court having different versions and accused. All the accused of the private complaint of Muhammad Naseeb complainant of the FIR have been acquitted by the Trial Court vide judgment dated 6.10.2015. Crl. P.S.L.A. No.323/2015 filed by him against acquittal of accused has been dismissed today (17.5.2018) by this court as having not been pressed. Nawaz, Sajjad and Muhammad Naseeb (complainant of the FIR as well as complainant of above said private complaint) have been acquitted by the Trial Court in private complaint filed by Muhammad Asim complainant of the private complaint, criminal PSLA No.315/2015 filed by him (Muhammad Asim) against acquittal of Nawaz, Sajjad Ahmad and Muhammad Naseeb has also been dismissed by this court today (17.5.2018) as having not been pressed. Muhammad Waqas accused of private complaint of Muhammad Asim is P.O, whereas, Mudassar Yasri appellant has been convicted by the Trial Court through impugned judgment. No person from the prosecution claims to be the eye-witness of the occurrence, rather case of the prosecution is based on circumstantial evidence which is categorized as under:-

(i). Motive

13. Muhammad Asim PW2/complainant of the private complaint stated in his statement (examination-in-chief) that on 9.12.2010 at about 'Fajarvaila' he received information regarding the present occurrence through Muhammad Naseeb accused (since acquitted/complainant of the FIR/real brother of Ms. Rukhsana Bibi deceased) when he was at Lahore. He further stated in his statement (examination-in-chief) that his wife Mst. Rukhsana Bibi deceased before the occurrence told him that Mudassar alias Yasri appellant had illicit relations with his daughter Mst. Muqaddas Bibi deceased; Mudassar alias Yasri appellant had given a mobile phone to her (Mst. Muqaddas Bibi deceased); they used to have conversation with each other on mobile; he took mobile from Mst. Muqaddas Bibi deceased and went to the 'bathek' of Shan Elahi PW3 where Shan Elahi PW-3 and Farman Ali PW-4 were sitting, Shan Elahi PW3 called Muhammad Nawaz and Sajjad Ahmad accused (since acquitted) elder of Mudassar alias Yasri appellant and Waqas accused (since P.O) to his Bathek, he complained to them, he and Shan Elahi PW3 also complained against Mudassar alias Yasri appellant to his mother Mst. Bashir Bibi, who started to quarrel with them. Perusal of the FIR Exh.CW5/A shows that this PW (Muhammad Asim PW2) was with Muhammad Naseeb accused (since acquitted) at the time of registration of the FIR, but did not disclose the above said story, rather names of Shan Elahi and Farman Ali PW4 have not been mentioned in the FIR regarding motive story, which creates doubt in the prosecution story.

(ii) Evidence of 'Wajtakar'.

14. Shan Elahi PW3 and his brother Jamal Din PW5 stated in their statements (examination-in-chief) that in between night of 8/9 December, 2010 they were sleeping in their house; at about 2:45 a.m., they woke-up on the hue and cries of Muhammad Naseeb accused (since acquitted/complainant of the FIR). They came at main gate of their house and saw Mudassar alias Yasri appellant and Waqas accused (since P.O) along with two unknown accused in the light of electric bulb while coming out from the house of Asim (complainant of private complaint) PW2; in the meanwhile, Muhammad Naseeb accused (since acquitted) and Muhammad Irfan also came there; they entered in the house of Muhammad Asim complainant PW2 and saw dead body of Mst. Rukhsana Bibi on a bed with ligature on her neck on ground floor of the house; they went to the upper portion of the house and saw dead bodies of Junaid and Mst. Muqaddas Bibi. Names of these two witnesses (Shan Elahi PW3 and Jamal Din PW5) are not mentioned in the FIR, rather they have been made accused in the private complaint filed by Muhammad Naseeb complainant of the FIR, but they have been acquitted by the Trial Court through separate judgment discussed above. Even otherwise, evidence of `wajtakar' is a weak type of evidence and same can be procured at any time during the investigation, when direct evidence is not available with the prosecution. Reliance is placed on case titled "Muhammad Mansha Kausar v. Muhammad Asghar and others" 2003 SCMR 477 in which, Hon'ble Supreme Court of Pakistan has observed at page 479 as under:-

"Without any ocular evidence no importance could be attached to the evidence of 'Vajtakkar' which was otherwise weak and infirm".

(iii) Evidence of extra judicial confession.

15. Shan Elahi PW3 and Farman Ali PW4 stated in their statements (examination-in-chief) that on 2.1.2011, Mudassar alias Yasri appellant came in the `bathek' of Shan Elahi PW3 and made confession regarding the present occurrence. Considering the peculiar circumstances of this case, we are of the view that above said extra judicial confession is the result of concoction. Even otherwise, evidence of extra-judicial confession is a weak type of evidence, however, it could be taken as corroborative piece of evidence if it rings true and then finds support from other evidence of unimpeachable character, which is missing in the present case. Reliance is placed on case titled Nasir Javaid and another v. The State (2016 SCMR 1144) in which Hon'ble Supreme Court of Pakistan has observed at page 1150 as under:-

"11. Next is the evidence of extra-judicial confession. Evidence of this type because of its being connected easily is always looked at with doubt and suspicion. 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. Extra -judicial confessions of the appellants when examined in this light neither ring true nor agree with true nor fit in with the surrounding circumstances of the case."

(iv) Medical evidence.

16. Medical evidence may confirm the evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime". Reliance is placed on case titled "Altaf Hussain v. Fakhar Hussain and another" 2008 SCMR 1103 in which Hon'ble Supreme Court of Pakistan has observed at page 689 as under:-

"It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime."

(v) Evidence of recovery of mobile phone C1 and 2-ear rings C2/1-2.

17. Zulfiqar Ali constable CW10 stated in his statement (examination-in-chief) that on 8.1.2011, the appellant during interrogation disclosed and got recovered mobile Phone C 1 and 2-ear rings C2/ 1-2 from his cattle shed. Considering peculiar circumstances of the present case, this recovery is not believeable.

18. Muhammad Asim complainant along with his learned counsel (Ch. Pervaiz Iqbal Gondal, Advocate) present in court submits that he has no objection on acceptance of the appeal of Mudassar alias Yasri and his acquittal. Learned D.P.G submits that DNA profile has not been generated in this case. Further submits that no other incriminating evidence is available against the appellant.

19. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant in the present case. It is settled by now that for giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled for the same not as a matter of grace and concession but as of right. Reliance is placed on case titled "Muhammad Akram v. The State" (2009 SCMR 230) in which Hon'ble Supreme Court of Pakistan has observed at page 236 as under:-

"The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".

20. For the foregoing reasons, criminal appeal filed by Mudassar alias Yasri appellant is accepted, conviction and sentences of the appellant (Mudassar alias Yasri) awarded by learned trial court through impugned judgment are set aside and the appellant (Mudassar alias Yasri) is acquitted of the charges. He is directed to be released forthwith if not required in any other case. M.R. is answered in NEGATIVE and death sentence of Mudassar alias Yasri appellant is NOT CONFIRMED.

21. In view of above decision, Criminal Revision No.489/2017 has become infructuous and is disposed of. Notice issued is hereby recalled.

22. Before parting with this judgment, it is observed that Waqas Ahmad co-accused of the appellant is still P.O. His case shall be decided by the learned trial court on its own merits without being influenced from this judgment whenever he is arrested.

HBT/M-95/L Appeal accepted.