SAFDAR IQBAL Versus GHULAM MUHAMMAD
ORDER
MUDASSIR KHALID ABBASI, J.--- Through this order, we propose to decide Crl. Misc. No.380/2014 arisen out of judgment dated 07.07.2014 passed by learned Additional Session Judge, Layyah whereby respondents Nos.1 to 3 were acquitted from the charge under sections 302, 379, 411 and 460, P.P.C. in case FIR No.409/2011 dated 28.09.2011 registered at Police Station Chobara, District Layyah.
2. Facts of the case are that Safdar Iqbal complainant has lodged a complaint against unknown accused, wherein he states that house of one Falak Sher, his paternal uncle, is situated at a distance of two acres from his residence. In the said house, Falak Sher and his deceased wife Noor Khatoon were dwelling. Upon hue and cry of the said Falak Sher, he, on 28.02.2011 at about 06:30 a.m., reached at his house along with Bashir Ahmad and Fateh Sher PWs. It was told by his uncle that he saw Noor Khatoon lying dead in the room. Complainant, along with PWs and Falak Sher went into the room and saw that dead body of Noor Khatoon was lying on a cot. Articles lying in the room were scattered whereas the hand and legs of the Mst. Noor Khatoon deceased were tied. Moreover, handkerchief was placed in her mouth. After making search of the room, said Falak Sher told them that 12-tola gold ornaments of his wife and Rs.6000/- are missing. Safdar Iqbal, complainant further states that he along with PWs had seen foot marks of the accused persons in the house and verandah upon which he called Hasham Khoji and secured the same. Falak Sher and PWs stayed back with the dead body whereas he proceeded for Police Station and in his way at Adda Tarku came across the police and got his statement recorded as Ex.P.A.
3. On the following day, i.e. 29.09.2011, the said complainant got his supplementary statement recorded that at the time of Janaza of the deceased, Aqeel Ahmad and Muhammad Shafi PWs told him that last night while they were coming on Dasu Pul, they saw Ghulam Muhammad, Zahid Aziz and Shakeel were proceeding towards Pul Dasu and the said accused entered in the house of deceased in order to commit decoity.
4. Report under section 173, Cr.P.C. was submitted against the respondents/accused. Prosecution was called upon to produce the evidence in order to substantiate its case, prosecution has produced as many as 12-witnesses.
5. The accused persons were sent to judicial lockup after conclusion of the investigation. Prosecution/complainant gave up PWs Zafar Iqbal, Bashir Ahmed, Hashim Khoji being unnecessary and Falak Sher being dead. While closing its case, prosecution/complainant produced report of Chemical Examiner Ex-PQ.
6. While responding to the question as to why the PWs deposed against him, Ghulam Muhammad accused stated that all the PWs are interrelated. He along with his father cultivated the land of Falak Sher, husband of Mst. Noor Khatoon for 7/8 years as tenants. Complainant wanted to get the possession of aforesaid land. He was not ready to relinquish the same, that is why, complainant involved him in this case as he wanted possession of aforesaid land of Falak Sher. As there was no witness of occurrence and cause of death of Mst. Noor Khatoon was left uncertain, therefore, the complainant in connivance with police nominated him at belated stage it was an afterthought and fabricated story. Co-accused Manzoor Hussain is his uncle. Nothing was recovered from him. Second opinion of WMO Ex-PF/1 is given in connivance with complainant party. He is innocent and falsely involved in this case. While responding to the question as to why the PWs deposed against him, Manzoor Hussain accused stated that all the PWs are related to each other. He is innocent. He was involved in this case as he is uncle of Ghulam Muhammad co-accused. Complainant got loan of Rs.200,000/- from him and in order to avoid from payment, the complainant involved him in this case. Police also declared him not involved in the occurrence. In post-mortem report, WMO declared cause of death uncertain in Ex-PF. Later on, in connivance with complainant and police, WMO changed her opinion. He is innocent and falsely involved in this case. While responding to the question as to why the PWs deposed against him, Zahid Aziz accused stated that all the PWs are related inter se. He is a poor man. There was no witness of this occurrence and death of Mst. Noor Khatoon was mysterious and witnesses were adamant to give it colour of homicide, that is why, he had been named as an accused at belated stage, after thought, fabricated tainted piece of evidence and he has been made an escape goat in this case. All the recoveries are fake, fictitious, and falsely planted upon him in order to strengthen the prosecution case. Subsequent report dated 16.08.2012 by WMO was collusively prepared to give this occurrence colour of murder.
7. Learned Trial Court, after conclusion of the trial, acquitted all three accused vide judgment dated 07.07.2014. Feeling aggrieved, complainant has preferred this appeal against acquittal of accused under section 417(1), Cr.P.C.
8. In support of his appeal, learned counsel for appellant argued that the prosecution story is based on true facts and circumstances. Prosecution has proved its case against the respondents Nos.1 to 3 beyond any shadow of doubt. There was absolutely no lacuna at all in the prosecution evidence which could lead the learned trial court for acquittal of the respondents Nos.1 to 3. Further argued that prosecution has proved the case against the respondents Nos.1 to 3 from all corners. Further argued that impugned judgment is absolutely against the law, facts/circumstances and the same is liable to be set aside.
9. Arguments heard. Record perused.
10. Critically important aspect of this case is that, admittedly, there is no direct evidence against the respondents, it is a blind murder and primary question involved is that as to whether the respondents/accused could be convicted on the basis of circumstantial evidence, coupled with other pieces of evidence, available with the prosecution, in this case.
11. Entire prosecution story hinges on various elements of circumstantial evidence. At the first instance, we will take up the evidence of wajtakkar. Complainant got his supplementary statement recorded on the following day of occurrence i.e. 29.09.2011 wherein he states that at the time of Janaza of the deceased Noor Khatoon, PW-8 Aqeel Ahmad and Muhammad Shafi PW-7 disclosed before him that in the night between 27th and 28th of September, 2011, Muhammad Shafi telephonically called Aqeel Ahmad at Dasupul. Aqeel Ahmad reached there, proceeded to Chak on motorcycle. On their way, they saw accused Manzoor Ahmad, Zahid Aziz, Ghulam Muhammad and Shakeel Ahmad going towards Dasu Pul and entered in the house of deceased.
12. Material contradictions have been highlighted by the learned Trial Court in the impugned judgment which clearly reflects that on the fateful night these two witnesses did not see the accused persons near Dasu pul which is substantiated by the fact that PW-7 deposed that it was dark night when the accused came across on the way whereas PW-8 has stated that there was moonlight. Muhammad Shafi PW-7 states that he came to know about the murder of the deceased on the morning of 28.09.2011 at 11:00 a.m. and on the same day police visited the place of occurrence. Whereas, this was not disclosed before the police on that day by the said PW and was subsequently narrated by the complainant on 29.09.2011, through a supplementary statement. Prosecution has miserably failed to establish that these two PWs of wajtakkar were natural witnesses. Such prosecution version must be proved through a very high and unimpeachable evidence.
13. By now it is an established principle of criminal jurisprudence that circumstantial evidence of wajtakar is a weak and infirm evidence and assumes no importance until and unless corroborated by some strong independent piece of evidence. Reliance is placed on a case reported as "Muhammad Mansha Kausar v. Muhammad Asghar and others" (2003 SCMR 477).
14. Another aspect of the prosecution version is that complainant has stated while lodging FIR that on 28.09.2011, he along with PW-9 Fateh Sher and Bashir Ahmad saw the footmarks of the accused persons at the place of occurrence. Said Bashir Ahmad was given up whereas Fateh Sher appeared as PW-9 and deposed that he saw the footmarks of three persons on the place of occurrence, whereas the complainant Safdar Iqbal appeared as PW-10 and stated that he told the police that there were footmarks of four accused. Complainant PW-10 states that foot prints parade of the accused was conducted in the police station under the supervision of investigation officer and the tracker. This important witness, Hashim tracker was given up by the prosecution who was the only expert.
15. So far as the medical evidence is concerned, PW-5, lady doctor Tahira Yasmeen who conducted the postmortem of the deceased vide report Ex.PD, initially observed that cause of death is uncertain and final opinion can be given after the receipt of report from medical examiner. She, at the first instance, rendered her opinion that the cause of death cannot be determined because poison was not detected in the viscera, according to the report of the chemical examiner. Subsequently, the said doctor, upon the application submitted by the police, on the basis of the same report of the chemical examiner observed that no poison was detected in the viscera, however, cause of death may be throttling, placing a cloth underneath.
16. Prosecution has made another unsuccessful attempt to connect the accused with the commission of offence through an extra judicial confession made by Ghulam Muhammad accused before the police that he committed the offence along with other co-accused. Such statement is not admissible in terms of Article 39 of Qanun-e-Shahadat. Moreover, Extra-judicial confession can be used against the accused only when it comes from an unimpeachable source and trustworthy evidence is available to corroborate the same. Reliance is placed on cases reported as "Tahir Javed v. The State" (2009 SCMR 166) and "Muhammad Akram v. The State" (2009 SCMR 230). In this particular case, investigation officer did not even bother to get this statement recorded before the Magistrate.
17. Another piece of evidence is in shape of recovery of Kara P-4 and two clips of gold P-5/1-2 from accused Ghulam Muhammad and recovery of Kara P-10 and two rings fingers P-11/1-2 from accused Zahid Aziz made on 23.10.2011 after the lapse of one month, these articles were not even, identified by the Falak Sher, husband of the deceased. So far as the recovery of pistol from Ghulam Muhammad and Zahid Aziz accused is concerned, it has no relevance with the case because no fire arm injury was made by them to deceased, therefore, such recovery is not worthy of reliance.
18. For the foregoing reasons we have no hesitation in our mind that the prosecution has miserably failed to prove his case against the respondent/accused. We are equally least impressed by the evidence produced by the prosecution, which even if accepted would not be adequate enough to connect the accused with the commission of offence; therefore, the impugned judgment was neither arbitrary nor perverse and accused persons were rightly acquitted by the trial Court. After having gone through a regular trial respondents/accused have earned a double presumption of innocence. Reliance is placed on cases reported as "Muhammad Shafi v. Muhammad Raza and another" (2008 SCMR 329), "Abdul Mateen v. Sahib Khan and others" (PLD 2006 Supreme Court 538) and "Farhat Azeem v. Asmat Ullah and 6 others" (2008 SCMR 1285). Law is well settled that where view taken by the trial court, while acquitting the accused is a possible view, favourable to the accused, then on re-appraisal of evidence, even if second view is possible, acquittal cannot be reversed, therefore, we see no valid grounds to interfere in the impugned judgment. Resultantly, this appeal does not succeeded and is dismissed.
JK/S-57/L Appeal dismissed.