SAEED Versus State
MUHAMMAD TARIQ NADEEM, J .---Appellant Saeed son of Mushtaq was charge sheeted for causing the murder of Rabia Bibi in respect of a case FIR No. 513 dated 06-10-2012, under sections 302, 34, P.P.C. registered at Police Station Saddar Mianchannu, District Khanewal and after conclusion of trial, vide judgment dated 29-10-2016, the learned trial court convicted and sentenced him as under:-
Under section 302(b), P.P.C.
Life imprisonment along with compensation of Rs. 5,00,000/- to the legal heirs of deceased, under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months' S.I.
Benefit of section 382-B, Cr.P.C. was extended to the appellant.
Feeling aggrieved from the judgment of the learned trial court, the appellant has assailed his conviction and sentence through the instant appeal.
2. Brief facts of the case as narrated by Muhammad Rafique, complainant (PW.7) in the FIR (Ex.PK) are that he was driver by profession and on the fateful day i.e. 06-10-2012, his mother Mst. Mukhtaran Bibi and sister Rabia Bibi (since deceased) went to the fields of Muhammad Younas Lambardar, resident of Chak No. 132/16-L to pick cotton. He (complainant) came back from his job and went along with his brothers namely Umer Shahzad and Muhammad Rasheed towards the cotton field to take the key. At about 05:30 p.m., complainant's sister went to the cotton crop of one Ihsan-ul-Haq Arain to attend the call of nature, suddenly, accused Saeed armed with pistol along with two unknown persons, who were also armed with pistols 30 bore, came out from the cotton crop. In their view, Muhammad Saeed made fire shots on complainant's sister which landed on her right shoulder, right upper arm, right flank and right wrist. Unknown persons also made fire shots which landed on her right elbow and right wrist, who fell down on the ground. The accused persons extended life threats and took to their heals while brandishing their weapons. They were going to Civil Hospital, Mianchannu but Rabia Bibi succumbed to the injuries on the way to the hospital.
The motive behind the occurrence was that the accused Saeed wanted to marry Mst. Rabia Bibi (deceased) but complainant's mother refused and due to that grudge, the accused persons in connivance with each other committed the murder of complainant's sister.
3. After completion of investigation, report under section 173, Cr.P.C. was submitted against the accused. The charge against the appellant was framed on 18-05-2013 to which he pleaded not guilty and claimed trial. In order to bring home the guilt of the accused, the prosecution got examined as many as 09-witnesses. Muhammad Rafique, complainant (PW.7) and Umer Shahzad (PW.8) have furnished the ocular account. Raja Usman Yousaf (PW.3) prepared scaled site plan of the place of occurrence (Ex.PA and Ex.PA/1). Falak Sher, SI (PW.9) being investigating officer stated about various steps taken by him during investigation of the case. The Medical evidence was furnished by Doctor Sameena Masood, WMO (PW.6), who conducted autopsy on the dead body of deceased Rabia Bibi vide PMR (Ex.PC) and noted following injuries on her body:-
INJURIES
1. A lacerated wound (firearm) 1 x 1 c.m. with inverted margins X deep going on top of right shoulder 1.5 cm from neck (entry wound).
2. Exit wound fire armed lacerate wound 1.5 cm x 1 cm x deep going with everted margins on back of left side of chest, 18 cm from left shoulder 2.5 cm from the midline.
3. A lacerated firearm wound with inverted margins 1.0 x 1.5 c.m. on right side and outer part of lower chest 9 cm from right illiacspine (entry wound).
4. A lacerated firearm wound 1 X 1 cm x going deep on outer side of right upper arm 9 cm above right elbows (entry wound).
5. A lacerated firearm wound with everted margins 1.5 x 1.5 cm x deep going on front and medial aspect of right elbow (exit wound).
6. A lacerated firearm wound 1 x 1 cm x going deep on lateral side of right forearm 2 cm proximal of right wrist.
7. A lacerated wound firearm and everted margins on frontal medial aspect of right forearm 2 cm proximal to right wrist.
According to her opinion, injuries Nos.1, 2 and 3 caused by firearm were sufficient to cause death in ordinary course of nature. Death occurred due to haemorrhage and shock. All the injuries were ante-mortem. Probable time that elapses between injury and death immediately; between death and postmortem five to six hours.
4. The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up Mukhtaran Bibi and Muhammad Rasheed, PWs being unnecessary and after tendering in evidence report of Punjab Forensic Science Agency regarding the crime empties and pistol (Ex.PR) and blood stained earth (Ex.PS), closed its evidence.
5. After completion of prosecution evidence, statement under section 342, Cr. P.C. of the appellant was recorded wherein he denied the allegations levelled against him and claimed his innocence. He neither opted to appear as his own witness within the scope of section 340(2), Cr.P.C. nor produced any defence evidence.
6. The learned trial court vide judgment dated 29-10-2016 found the appellant Saeed, guilty convicted and sentenced him as mentioned above, hence, this appeal.
7. After hearing the learned counsel for the parties at length and perusal of available record with their assistance, it has been observed by this Court that the occurrence in this case, as per prosecution, took place on 06-10-2012 at 5:30 p.m. whereas the FIR was lodged on the same day at 6:55 p.m. with the delay of 01 hour and 25 minutes. I have further observed that in this case that FIR was not lodged at the Police Station rather the complainant got recorded his statement at Civil Hospital, Mianchannu. I have also noted that none of the witnesses including Muhammad Rafique, complainant (PW.7) and Umer Shahzad (PW.8) ever proceeded to report the matter to the police station. This has left no doubt in my mind that the witnesses were not present at the place of occurrence at the relevant time, thus the FIR (Ex.PK) was chalked out with due deliberations and consultations, after preliminary investigation. The august Supreme Court of Pakistan in the case titled as "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) has observed as under:
"An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
Similar view has been reiterated in other salutary judgments of Hon'ble apex Court in cases titled as "Muhammad Ishaque v. The State" (2007 SCMR 108), "Arshad Khan v. The State" (2017 SCMR 564), "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596), "Nasrullah alias Nasro v. The State" (2017 SCMR 724) and "Nazeer Ahmad v. The State and others" (2019 SCMR 594).
8. Postmortem examination on the dead body of deceased Rabia Bibi was conducted on 06-10-2012 at 11:40 p.m. i.e. with the delay of 06 hours. It was a case of delayed postmortem, which casts serious doubt that the FIR was got recorded with promptitude, but the inference can be drawn that the intervening period was consumed in fabricating the prosecution story, planting the PWs and after the preliminary investigation, otherwise there was no justification for conducting postmortem examination with such a considerable delay. Reliance in this regard is placed upon the cases titled as "Irshad Ahmad v. The State" (2011 SCMR 1190) "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068), "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) "Muhammad Yasin and another v. The State through P.G. Punjab and others" (2020 SCMR 1237) and "Khalid Mehmood and another v. The State and others" (2021 SCMR 810).
9. The ocular account in this case has been furnished by Muhammad Rafique, complainant (PW.7) and Umer Shahzad (PW.8). The complainant as well as Umer Shahzad (PW.8) and Muhammad Rasheed (since given up) are real brothers' inter se as well as real brothers of Rabia Bibi (deceased). Muhammad Rafique, complainant (PW.7) himself incorporated in his written complaint (Ex.PE) that he is driver by profession.
PWs have not given any plausible reasoning qua their presence at the alleged time and place of occurrence. Similarly, story narrated in complaint (Ex.PE) that Muhammad Rafique, complainant (PW.7) along with Umer Shahzad (PW.8) and Muhammad Rasheed (since given up) went to take key from their mother namely Mukhtaran Bibi is repellant to senses because all of them had no occasion to go for a small assignment which could have been done easily by any one of them. Reliance is placed upon the cases titled as "Mst. Sughran Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) and "Muhammad Ashraf alias Acchu v. The State" (2019 SCMR 652).
10. Similarly, Mukhtaran Bibi was present along with Rabia Bibi (deceased) at the land of Younas Lambardar situated at Chak No. 132/16-L for the purpose of picking of cotton was not produced. Moreover, Younas Lambardar was also not produced in evidence from whose land the supra mentioned Mukhtaran Bibi and Mst. Rabia Bibi (deceased) were picking cotton crop. In the given scenario, abandoning of the abovesaid witnesses obviously leads to an adverse inference in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984 that had they been produced in the witness box, they might have not supported the prosecution case. I may observe here that if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Reliance in this respect is placed on the cases of "Lal Khan v. The State" (2006 SCMR 1846) and "Muhammad Rafiq and others v. The State" (2010 SCMR 385).
11. I have further noticed that the investigating officer has taken into possession the blood stained earth from the place of occurrence through seizure memo (Ex.PG) but the report of Punjab Forensic Science Agency (Ex.PS) reflects that sample could not be confirmed as human in nature. This fact has made the alleged place of occurrence as doubtful in nature.
12. There is another intriguing aspect of the case, that Muhammad Rafique, complainant (PW.7) during his cross-examination stated as under:- " our clothes also smeared with blood oozing out from the wounds of deceased Rabia Bibi when we lifted her from the place of occurrence to mettaled road, "
Had they been present at the place of occurrence, they must have produced the clothes to the Investigating Officer to enable him to take into possession of the same, hence, both the witnesses of ocular account were not reliable and there is likelihood that they had not witnessed the occurrence. Reliance is placed upon the case law titled as "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319) wherein the Hon'ble Supreme Court of Pakistan has held as under:-
" Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced. In these circumstances, the High Court had concluded that the eye-witnesses produced by the prosecution were not reliable and in all likelihood they had not witnessed the murder in issue "
13. Another crippling feature of the case which cannot be lost sight of that Muhammad Rafique, complainant (PW.7) during his cross-examination admitted that he did not know the accused prior to the occurrence when the appellant was not familiar to him before the occurrence then how he identified him and why the identification parade was not held. I am guided by the cases titled as "Asghar Ali alias Sabah and others v. The State and others" (1992 SCMR 2088) and "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410).
14. There are material contradictions in the statements of the prosecution witnesses. Muhammad Rafique, complainant (PW.7) in his complaint (Ex.PE) stated that on the day of occurrence he came back after driving but during his cross-examination, he stated as under:-
" I went to Karachi on trailer 5/6-days prior to occurrence from Mianchannu. Malik Waqas brought trailer from Gujranwala when I accompanied him from Mianchannu. I boarded on the trailer 07/07:30 a.m. from Mianchannu. I exchanged hot words with Malik Waqas on way to Karachi and came back from Duniapur on the same day and reached home 04:45/05:00 p.m. Exchange of hot words with Waqas took place when I left Mianchannu for Karachi 05/06-days prior to the day of occurrence. Thereafter, I did not drive said trailer till the day of occurrence. Said Waqas was himself owner of the trailer. After my return from Duniapur (when the hot words exchanged) I never drover trailer of Malik Waqas till the day of occurrence "
Similarly, Umer Shahzad (PW.8) during his cross-examination stated as under:-
" .Rafique PW went on trailer 15/16-days prior to day of occurrence. Muhammad Rafique Pw came to home two days prior to occurrence ."
Muhammad Rafique, complainant (PW.7) during his cross-examination stated as under:-
" The distance between my house and place of occurrence is 4/5-squares "
Contrary to the above, Umer Shahzad (PW.8) during his cross-examination stated as under:-
" The place of occurrence is at a distance of 4/5-kilometer from ours house "
According to the statement of Muhammad Rafique, complainant (PW.7) that appellant made first short from distance of 5/6 feet at Rabia Bibi (deceased) and after receiving the same she remained in standing condition; second fire shot hit her on the upper part of right arm and she remained standing; third fire shot was made by the appellant, which hit on the right flank of Rabia Bibi (deceased) and at that time she was in bending position and after receiving 4th shot on her right wrist, she was about to fall. Whereas Doctor Sameena Masood, WMO (PW.6) has stated in his evidence that the pedestal of deceased was lower than assailant. Injury No.1 might be caused when deceased was in falling condition. Umer Shazad (PW.8) during his cross-examination stated that Rabia Bibi remained at the place of occurrence for 5/6 minutes. Whereafter, she shifted on a cot, to mettle road, then she was shifted to THQ, Hospital on a rickshaw. They took Rabia Bibi to police station first. A Thanidar recorded the statement of Rabia Bibi. It consumed 3/4 minutes. Said Thanidar asked them to shift Rabia Bibi to Hospital. The police did not record the statement of Muhammad Rafique, complainant (PW.7) at police station whereas Falaksher, SI (PW.9) during his cross-examination stated that he received information from THQ, Hospital, Mianchannu regarding the occurrence and he reached at THQ, Hospital, Mianchannu. The complainant did not met him in the police station along with the deceased prior to receiving the information from THQ, Hospital, Mianchannu.
Supra mentioned facts and contradictions reveal that the PWs were not present at the place of occurrence. Both the PWs are related and chance witnesses. They are not trustworthy and reliable, therefore, I discard their evidence. It may not be out of place to mention here that no independent witness has been produced by the prosecution. Reliance is placed upon the case laws titled as "Muhabbat Khan v. Fateh Muhammad and 2 others" (PLD 1976 SC 593), "Muhammad Nawaz v. The State" (1983 SCMR 1316) and "Liaqat Ali and another v. The State and others" (2021 SCMR 780).
15. I have also noted with grave concern that the witnesses namely Muhammad Rafique, complainant (PW.7) and Umer Shahzad (PW.8) have made blatant and dishonest improvements to their earlier statements. Muhammad Rafique, complainant (PW.7) stated in his cross-examination that:
" .I did not state in Ex.PE that an unknown person made a fire shot upon Rabia Bibi which hit on the inner side of right elbow. Confronted with Ex.PE where it is so recorded "
Similarly, Umer Shahzad (PW.8) during his cross-examination stated as under:-
" I had not stated before the police regarding the two unknown person at the place of occurrence confronted with Ex.DA where it is so recorded. I had not stated before the police that two unknown persons armed with pistol were also present at the time and place of occurrence confronted with Exh.DA where it is so recorded. I had not stated before the police that one unknown person made a fire shot which hit on the right wrist of my sister confronted with Exh.DA where it is so recorded. I had not stated to police that another unknown person made a fire shot which hit on the inner side of right elbow. I had not stated in court in my examination in chief regarding the presence of two unknown persons at the place of occurrence armed with pistols. Confronted with examination-in-chief where it is stated that two unknown persons also came there. No unknown person made firing. I did not make any statement in respect of unknown persons even after the registration of case. Saeed made four fire shots upon Rabia Bibi. Six fire shots were made during this occurrence. Four fire shots which hit Rabia Bibi and were made by accused Saeed while other two fire shots were aerial fire shots "
The Hon'ble Supreme Court of Pakistan has observed in a plethora of judgments that a witness improves his statement and at the moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. All the circumstances highlighted above, lead me to irresistible conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Reference in this respect may be made to the judgments reported as "Hassan and others v. The State and others" (PLD 2013 SC 793), "Muhammad Mansha v. The State" (2018 SCMR 772),"Muhammad Arif v. The State" (2019 SCMR 631) and "Khalid Mehmood and another v. The State and others" (2021 SCMR 810).
16. According to the contents of FIR (Ex.PK), the appellant made pistol shots upon the person of Rabia Bibi (deceased) on her right shoulder, right upper arm, right flank and right wrist whereas one unknown person fired on the right elbow of Rabia Bibi, (deceased) and other unknown person made fire on her right wrist. It is pertinent to mention here that according to the statement of Doctor Sameena Masood, WMO (PW.6) there are four entry wounds on the body of Rabia Bibi i.e. injuries Nos.1, 3, 4 and 6. In this way, there is a material contradiction between the statements of the eye-witnesses and medical evidence. I fortify my view from the case law titled as "Muhammad Idrees and another v. The State and others" (2015 SCMR 612).
17. The complainant implicated Zameer and Afzal through written application (Ex.PQ) on 31-10-2012 i.e. with the delay of 25 days. According to (Ex.PQ), Zameer gave pistol shot on the inner side of right elbow of Rabia Bibi (deceased) whereas Afzal made pistol shot, which landed on her right elbow. It is pertinent to mention here that injury No.3 is on right side and outer part of lower chest of Rabia Bibi, which has not been ascribed to anyone. Injury No.4 is on right elbow, which has been ascribed to the appellant as well as co-accused Zameer and Afzal. According to the prosecution story effective role has been ascribed to co-accused of the appellant namely Zameer and Afzal, who were acquitted of the charge on the same set of evidence under section 265-K, Cr.P.C. on 04-10-2016 as such the eye-witnesses produced by the prosecution were capable of falsehood. It is apprised by the learned Deputy Prosecutor General that no appeal against the acquittal of supra-mentioned co-accused has been filed by the complainant or the State. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed upon the cases titled as "Shahbaz v. The State" (2016 SCMR 1763), "Nazir Ahmad v. The State" (2018 SCMR 787) "Haroon Shafique v. The State and others" (2018 SCMR 2118), "Munir Ahmad and another v. The State and others" (2019 SCMR 79) and "Safdar Abbas and others v. The State and others" (2020 SCMR 219).
18. Adverting to the medical evidence which is in the shape of statement of Doctor Sameena Masood, WMO (PW.6) who conducted autopsy on the dead body of the deceased Rabia Bibi vide PMR (Ex.PC), suffice it to say that medical evidence may confirm the ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injuries but it cannot connect the accused with the commission of crime. I am fortified with the judgments passed by the Hon'ble Supreme Court of Pakistan reported as "Muhammad Tasaveer v. Hafiz Zulqurnain and 2 others" (PLD 2009 SC 53), "Ghulam Mustafa and another v. The State" (2009 SCMR 916), "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410), "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327) and "Sajjan Solangi v. The State" (2019 SCMR 872).
19. The motive alleged by the prosecution has already been disbelieved by the learned trial court. It was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive alleged by the prosecution. It is well established principle of law that once the motive is established by the prosecution, then it has to be proved, otherwise, adverse inference would be drawn. Although he prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution setup a motive and fails to prove it, then, it is the prosecution who has to suffer and not the accused. I very respectfully rely on the case of "Noor Muhammad v. The State and another" (2010 SCMR 97) wherein the Hon'ble apex Court has emphasized as under:-
"It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCMR 432 it has been held that the prosecution through not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defense. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
A similar view was expressed by the august Supreme Court of Pakistan in the cases titled as "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344) and "Manzoor Ahmed Shah and others v. The State and others" (2019 SCMR 2000).
20. So far as recovery of pistol from the petitioner is concerned, which being purely corroboratory in nature cannot only be considered to sustain conviction on a capital charge.
According to the prosecution case on 18-10-2012 recovery of pistol .30 bore (P.12) was taken into possession vide memo (Ex.PJ) on the pointation of appellant Saeed from the bushes alongside the road. I have noticed that the said recovery is shown from an open place which is easy accessible to all, which is not reliable. Reliance is placed upon the case titled as "Arshad Khan v. The State" (2017 SCMR 564).
The appellant was arrested in this case on 18-10-2012 and he got recovered .30 bore (P.12) on the same day and item Nos. C1 to C6 cartridges, have been fired from the same pistol, the crime empties were sent to the office of Punjab Forensic Science Agency on 24-10-2012 after the arrest of appellant. Although report of Punjab Forensic Science Agency (Ex.PR) is positive qua the pistol but it has not been explained by the prosecution that why the crime empties were not sent to the Office of Punjab Forensic Science Agency till the arrest of appellant, this fact makes the report of Punjab Forensic Science Agency inconsequential. Reliance is placed on the cases reported as "Nazeer Ahmad v. The State" (2016 SCMR 1628) and "Asad Rehmat v. The State and others" (2019 SCMR 1156).
It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence howsoever convincing it may be. Reliance is placed upon the cases titled as "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142) and "Muhammad Mansha v. The State" (2018 SCMR 772).
21. After having looked into the prosecution case from all angles, I have observed that the case to the extent of appellant is of doubtful in nature and his conviction and sentence cannot be maintained on the basis of such type of shaky and unreliable evidence. It is well settled by the apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace, but of right. Reliance is placed upon case laws titled as "Tariq Pervez v. The State" (1995 SCMR 1345), "Ayub Masih v. The State" (PLD 2002 SC 1048), "Muhammad Akram v. The State" (2009 SCMR 230), "Khalid Mehmood and others v. The State" (2011 SCMR 664), "Arshad Khan v. The State" (2017 SCMR 564), "Muhammad Mansha v. The State" (2018 SCMR 772), "Asia Bibi v. The State and others" (PLD 2019 SC 64), "Muhammad Ashraf alias Acchu v. The State" (2019 SCMR 652), "Najaf Ali Shah v. The State" (2021 SCMR 736). It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so, the accused is entitled to the benefit of doubt. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. So, after considering all the pros and cons of the case, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set aside and the appellant Saeed is acquitted of the charge. He is in jail; he be released forthwith if not required in any other case.
MH/S-61/L Appeal allowed.