Raja MUHAMMAD RASHEED KHAN Versus MUHAMMAD ADEEL
1. CHAUDHARY KHALID YOUSAF, J.--- As both the appeals arise out of the same judgment, therefore, these are being consolidated any disposed of together through this single judgment.
2. The captioned appeals have been directed against the judgment of Additional District Court of Criminal Jurisdiction Sehnsa dated 24.04.2013, whereby, Muhammad Adeel, appellant was convicted and sentenced to; life in imprisonment under section 302(b), A.P.C, 7 years' simple imprisonment along with fine Rs.50,000/- under section 392, A.P.C. and also awarded sentence of 5 years simple' imprisonment under section 458, A.P.C. along with fine Rs.50,000/- whereas Robeena Begum, appellant No.2, was awarded sentence of 1 year's simple imprisonment under section 411, A.P.C. and Saail Bi, appellant No.3, was awarded punishment of 1 year's simple imprisonment under section 458, A.P.C.
3. Brief facts forming background of the instant appeals are that Haji Muhammad Yaqoob, complainant, lodged two applications, at Police Station Sehnsa, first on 20/21.09.2010, alleging therein that on 20/21 of September, 2010, complainant's mother Lailo Begum and Mst. Saail Bi wife of Maqsood Khan were sleeping at 11:00 p.m. when four unknown persons, two of them having medium height whereas two of them were tall persons, wearing black colored Qameez and Shilwar veiled with black cloth, entered the room, inquired from Saail Bi about Haji Muhammad Yaqoob, complainant's bedroom but she did not disclose his whereabouts thereupon, they caught hold of Saail Bi, who tried to make hue and cry, however, she was forced to swallow sleeping pill/tablet, and when complainant's mother tried to stop they caught and strangulated her to death. Thereafter, they snatched 8 tola gold Ornaments of complainant's mother as well as Saail Bi, they also took Rs.8000/- from purse.
4. On very next day complainant Muhammad Yaqoob Khan filed subsequent application at the said Police Station alleging therein that after funeral of deceased mother, his "Bhabi" namely, Iqbal Begum checked the house-hold articles and found, one necklace, three rings, one tikka (Jhoomer), one nose ring, six bangles, four band gold ornaments weighing 43 tolas and Rs.6,00,000/- and some U.K. pounds were missing/stolen by the accused-persons. He suspected that occurrence was done by the Saail Bi herself or by her relatives for steeling of gold ornaments and cash.
5. On this report, a case under sections 302, 458, 34, A.P.C. and 17(4), Harraba was registered against the convict-appellants at Police Station Sehnsa. After investigation section 302, A.P.C. was deleted, challan was submitted in the remaining sections and the accused-persons were sent to face trial before Additional District Court of Criminal Jurisdiction Sehnsa. The statements of accused under section 265/D, Cr.P.C. were recorded on 13.12.2010, who pleaded not guilty. Thereafter, prosecution was ordered to lead evidence. The prosecution produced as many as 21 witnesses in support of its case. After recording prosecution evidence, the statements of accused under section 342, Cr.P.C. were recorded on 13.02.2013, who once again denied the guilt, they produced defence evidence, and also got recorded their statements on oath under section 340(2), Cr.P.C.
6. The trial court while concluding the case awarded sentences to Muhammad Adeel; life imprisonment under section 302(b), A.P.C., 7 years' simple imprisonment along with fine Rs.50,000/- under section 392, A.P.C. and 5 years' simple imprisonment under section 458, A.P.C. along with fine Rs. 50,000/- whereas Robeena Begum, appellant No.2, was awarded sentence of 1 year's simple imprisonment under section 411, A.P.C., and Saail Bi, appellant No.3, was awarded punishment of 1 year's simple imprisonment under section 458, A.P.C. However, Manzer accused was acquitted of the charges. The benefit of section 382. Cr.P.C. was also extended to the convict-appellants, vide judgment dated 24.04.2013.
7. Feeling aggrieved from the aforesaid judgment, complainant party, filed Criminal Appeal No.35/2017 for enhancement of sentences awarded to convict- appellant and for awarding sentence to Manzoor acquitted-accused, whereas, convict-appellants, also filed Appeal No.36/2017 against their conviction.
8. Mr. Riaz Naveed Butt, Advocate the learned counsel for complainant contended that there was no enmity between the parties therefore; question of false implication of the convict appellants would not arise at all. He further submitted that if the recoveries are made on pointation of an accused then section 103, Cr.P.C. is not applicable, rather Article 40 of the Qanun-e-Shahadat Order, 1984, is applicable. Learned counsel argued that as the stolen articles were recovered at the instance of accused therefore, the commission of alleged offences is proved against the convict-appellants. Learned counsel next argued that allegations levelled against the convict-appellants are corroborated by the post mortem report of deceased. Learned counsel strenuously argued that the motive alleged by the prosecution was proved against the accused-persons but the trial court committed gross illegality while awarding them lesser punishment, rather they deserve capital punishment. He submitted that by accepting the appeal filed on behalf of complainant the punishment/ sentences of convict-appellants may be enhanced up to death and acquitted-respondent may also be punished. Learned counsel placed his reliance on the following case law,-
9. Mirza Abdul Aziz Ratalvi, Advocate, the learned counsel for convict-appellants strenuously argued that the convict-appellants were falsely implicated in the case by the complainant, he further argued that charge in offence under section 302, A.P.C. was not put to the accused-persons while recording their statements under section 265/D, however, the trial Court wrongly awarded life imprisonment to convict, Adeel under section 302(b), A.P.C. Learned counsel argued next that a fake and concocted story was made against the convict-appellants with the connivance of police. He further submitted that recovery witnesses are either police officials or close relatives of the deceased, being interested witnesses, their evidence is not reliable. He further argued that the witnesses produced by the prosecution were no found Adil, hence, their evidence is not reliable on this ground as well. Learned counsel contended that this is unseen occurrence initially a complaint was lodged against unknown persons later on, by submission of subsequent application convict-appellants were falsely implicated in the case. Learned counsel further contended that the prosecution's evidence is full of doubts on account of which prosecution failed to prove its case beyond reasonable doubt, but the trial court wrongly convicted the accused-persons. He lastly submitted that by accepting the appeal filed by the convict-appellants they may be acquitted of the charges and counter appeal may be dismissed. He placed his reliance on the following case law;-
5. 2004 YLR 206
6. 2008 MLD 1226
10. Sardar Mazhar Iqbal, A.A.G. appearing on behalf of the State fully owned and supported the arguments advanced on behalf of the complainant and submitted that convict-appellants are liable to capital punishment.
11. We have heard the learned counsel for the parties and gone through the record of the case with utmost care.
12. So far as the contention of the learned counsel for the convict-appellants that charge was not framed under section 302, A.P.C. rather it was framed under section 17(4) (Haraba) therefore, accused cannot be convicted under section 302, A.P.C. is concerned, we would like to observe here that section 237 of Cr.P.C. enables the Courts to convict an accused of an offence which is established after recording evidence although he was not charged with it. Even otherwise, perusal of charge framed under section 265/D of Cr.P.C., reveals that although section 302 A.P.C. is not mentioned in the charge, yet allegation of murder is specifically put to the accused in the said charge hence, this objection of the convict-appellants, being devoid of any force is hereby repelled.
13. At very outset, it has been observed that it is unseen occurrence and prosecution's case rests upon the circumstantial evidence. We are cognizant of the fact that conviction can be awarded to an accused on the basis of circumstantial evidence. Even a death penalty can be awarded provided no link of chain is found missing and all the circumstances must lead to the guilt of the accused but if a single link of the chain is missing in such circumstance, circumstantial evidence cannot be relied upon.
14. The Hon'ble apex Court laid down the dictum in plethora of judgments upon the point of circumstantial evidence. For instance in case law reported as "Munawar Hussain and 2 others v. Imram Waseem and another" [2013 SCR 374], the apex Court laid down as under:
15. "The circumstantial evidence should be so interconnected that it forms such a continuous chains that its one end touches the dead body and the other the neck of the accused thereby excluding all the hypothesis of his innocence."
16. In another case law reported "Javaid Akhter v. Muhammad Zubair and 3 others", "Muhammad Zuabair and another v. State and another" wherein, the Hon'ble apex Court held as under;-
17. "An accused may be convicted on the basis of circumstantial evidence provided that such evidence is confidence inspiring and is based upon such piece which from a chain of unbroken events and every link in the chain is connected with each other so that no link in the chain is missing and end of the chain touches the dead body and the other to the neck of the accused and from such evidence that no other inference except the guilt of the accused is drawn. If any link is missing and chain of events is broken then an accused cannot be convicted on the basis of such circumstantial evidence."
18. In another case law reported "Zaffar Hussain Malik v. Abdul Salam and 5 others" [2017 PCr.LJ 185], wherein, the Hon'ble apex Court as under;-
19. "Before proceeding further, we may observe here that in the case of circumstantial evidence, the pieces of evidence should have the unbroken chain of the events. All the links in the chain should be fully connected and interlinked. If any link of the chain is missing, then the whole case falls on the ground. In a case resting upon the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. If a single link of the chain is missing, in such circumstances, the evidence cannot be relied upon. Every link in such a case should be proved by cogent evidence; otherwise, no conviction to an accused can be awarded or maintained."
20. Admittedly, this is an unseen occurrence, initially nobody was nominated and the FIR, was lodged against unknown persons. After considerable delay subsequent application was lodged, whereby, along with unknow persons, Mst. Saail Bi was also suspected for commission of alleged offence. The prosecution's case rests upon circumstantial evidence which is mainly based upon the recovery of stolen articles i.e. gold ornaments and cash. Therefore, first of all we would like to deal with the recoveries.
21. As per subsequent application Exh.P/C the stolen gold ornaments were specifically mentioned along with its weight which is usefully reproduced as under;-
22. Haji Muhammad Yaqoob, PW-1, the complainant deposed in his statement that after funeral, on search the said cold ornaments were missing. From perusal of the recovery memo Exh. PI, it transpires that quantity of the recovered gold ornaments was not matched with the alleged stolen gold ornaments. The quantity of recovered articles has been increased by 6 bangles to 12 bangles, 1 male ring, one nose pin but weight remained same i.e. 43 tolas which is unperceivable. If for the sake of arguments the gold ornaments mentioned in the first application was included the weight of recovered articles might be increased to 51 tolas but as per recovery memo the weight remained constant i.e. 43 tolas. Moreover, all the recovery witnesses are either police officials or closely related persons to deceased, although the evidence of police officials and related persons cannot be discarded merely on this ground but in the case of circumstantial evidence where the other evidence is not corroborated with the facts then reliance upon such evidence would not be safe.
23. Furthermore, in absence of direct evidence recovery alone which is itself corroborative evidence is not sufficient to prove the charge against the accused. Reliance is placed on the case reported as [2009 SCMR 436], the relevant portion is usefully reproduced as under:-
24. "After taking out from consideration the ocular evidence, the evidence of identification and medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available eviction cannot be recorded on the basis of any other type of evidence however, convincing it may be."
25. There is another important aspect of the case that the female medical officer who examined the dead body provisionally gave her opinion i.e. "Cause of death is due to suffocation (compression on neck)" in our opinion both are entirely different things and after receiving the chemical examiner's report the cause of death finally reported by the female Medical Officer is Asphyxia/suffocation. It also appears from record that Medical Officer Lady Dr. Rukhsana, PW No.13, appeared before the Court and deposed to the effect that after examining the dead body of deceased, she arrived at the conclusion that the cause of death was suffocation. It is observed that the death alleged by the prosecution is compression on neck by fingers and as per Modi's Medical Jurisprudence and Toxicology the suffocation is described as under;-
26. "Suffocation:- The term, suffocation, is applied to that form of death which is resulting from the exclusion of air from the lungs by means other than compression of the neck. The causes of suffocation are.... i) Smothering or closure of the mouth and nostrils. ii) Choking or obstruction of the air-passages from within. iii) Pressure on the chest. iv) Inhalation of irrespirable gases."
27. Whereas, strangulation is described as follows;-
28. "Strangulation:-- Strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. It is called throttling, when constriction is produced by the pressure of the fingers and palms upon the throat, Strangulation may also be brought about by compressing the throat with a foot, knee, elbow, or some other solid substance."
29. (Underlining is ours)
30. In our view the cause of death as alleged by the prosecution is strangulation which is not sufficiently proved either by the post mortem report or by the statement of the Lady Dr. PW-13. Perusal of her entire statement reveals that she has not stated anywhere in her statement that the cause of death is due to strangulation. There is a marked difference between the strangulation as alleged by the prosecution and suffocation as described by the Female Medical Officer. So as the opinion formed by the medical officer does not corroborate the version taken by the prosecution which makes the case doubtful.
31. So far as, the motive is concerned, it is important to note here that in the case of ocular evidence, motive is not to be necessarily proved, but where ocular evidence is not available then the motive plays a vital role. In the case in hand the motive alleged by the prosecution is that the offence was committed by Saail Bi or her relatives to steel the gold ornaments and cash. Admittedly, convict-appellant Saail Bi being daughter-in-law was the resident of the same house and the gold ornaments and cash was in her approach she could easily steel the same and did not need to become part of the alleged occurrence. Moreover, it was not alleged by the prosecution that the stolen gold ornaments and cash are owned by the deceased lady. Abdul Sabbor PW-9, grandson of deceased deposed in his statement that he never saw the grandmother wearing gold ornaments.
32. The whole story of the prosecution circles around the alleged disclosure made by the accused during investigation but in this regard prosecution failed to record statement of accused-person under section 164, Cr.P.C. After perusal of the entire evidence it reveals that except PW-21, Raja Muhammad Illyas Khan SHO, none of the other prosecution witnesses uttered a single word about manner of occurrence, even a star witness (complainant) did not say a single word about it that who caught hold of the neck/throat of the deceased which cause her death. If the accused-persons made any voluntary statement before the investigating officer it was enjoined upon the investigating officer that accused should be immediately produced before the Magistrate having jurisdiction where the confessional statement should have been recorded, but in the case in hand the same has not been done, hence, it is not safe to convict the accused in grave offences merely on alleged disclosure of an accused during investigation in police custody without any independent corroboration. Hence, this piece of evidence being inadmissible is hereby discarded. Reliance can be placed to the case reported as [2004 YLR 206 Karachi], wherein it is held as under;-
33. "It is one of the settled provisions of law that in order to do complete justice and to ensure that real culprit may not escape legal punishment the grain is to be sifted from chaff. But if it is found that it could not be possible to sift the grain from the chaff and the testimony of a witness is not confidence-inspiring then it will be unsafe to record the conviction. In Muhammad Khan and another v. The State 1990 SCMR 1220, Hon'ble Supreme Court has directed that conviction must be based on unimpeachable evidence and certainty of guilt, and that any doubt arising in the prosecution case must be resolved in favour of the accused. It is also a well-settled principle of law that any confession/extra judicial confession made by the accused before the police officials is inadmissible in the evidence and no conviction can be based thereupon; reference may be made to Article 37 of the Qanun-e-Shahadat which stipulates that no confession, made to Police Officer, shall be proved as against a person, accused any offence."
34. Thus, a thorough scrutiny of evidence reveals that links of the chain of circumstantial evidence are missing in the instant case.
35. It is noticed that the court below has not applied its judicial mind while convicting the appellants. According to prosecution story Saail Bi and Iailo Begum (deceased) to reside in the same house and were in the same room at the fatal night. The court below has convicted Saail Bi in the offence of house breaking under section 458, A.P.C. which is not justified because Saail Bi did not enter the house forcibly as per prosecution version. In such circumstances offence offence under section 458, A.P.C. did not attract. Mst. Robina Begum has been convicted for dishonestly receiving stolen property under section 411, A.P.C. It has already been mentioned that stolen gold jewelry does not match with the one recovered from convict-appellants. In such a situation order of conviction of Mst. Robina Begum is not safe merely on the basis of recovery. There are many missing links in the prosecution story and an order of conviction cannot be safely based on such circumstantial evidence. Muhammad Adeel the convict appellant has been sentenced by the court below under section 458, A.P.C. as well, which also does not match with the prosecution version because the prosecution evidence states that Muhammad Adeel the convict-appellant along with his companion entered the house of the complainant secretly when Mst. Saail Bi had left the door unlocked. We are cognizant of the fact that a precious life has been taken away but it is better to acquit a suspicious accused than to convict him on the basis of doubtful evidence. The prosecution has not proved the case beyond doubt so the impugned order of conviction is not maintainable.
36. It is duty of the prosecution to establish its case through convincing and cogent evidence. In the present case the prosecution has failed to prove such events as alleged in the challan to be taken place at the place of occurrence, and conviction in absence of reliable and convincing evidence is not justified at all. It is celebrated principle of administration of criminal justice that benefit of slightest doubt always goes in favour of an accused, and there is no need that there must be lot of doubt in the prosecution's case even if a single infirmity in the prosecution's evidence, creating reasonable doubt in a prudent mind, is sufficient to acquit the accused. Reliance is placed on the case reported as [2013 PCr.LJ 1730], the relevant portion is usefully reproduced as under;-
37. "From the above noted contradictions a reasonable doubt existed regarding guilt of the appellant. It is well-settled law that for the purpose of benefit of the doubt to an accused more than one infirmity is not required. A single infirmity, creating reasonable doubt in a prudent mind regarding the truth of the charge, is sufficient to give benefit of doubt to the accused."
38. After taking into consideration the entire prosecution evidence, we arrived at the conclusion that it would be unsafe to rely upon the prosecution's evidence, accordingly while extending benefit of doubt in favour of the convict-appellants, their appeal is allowed, conviction-sentences of convict-appellants are set-aside and they stand acquitted from the charges, they shall be released forthwith if not required in any other case. As we have allowed the appeal of the convict-appellants, therefore, we do not find any merit in the appeal filed on behalf of the complainant for enhancement of sentences, as well as for awarding sentence to Manzer accused, which is hereby dismissed. A copy of the judgment shall be annexed with connected file.
39. Ordered accordingly.
40. JK/17/HC(AJ&K) Appeals allowed.