SAQI JAVED alias SAQIB JAVED Versus State
SHEHRAM SARWAR CH. J .---Saqi Javed alias Saqib Javed and Ghulam Qadir (appellants) along with their co-accused namely Maryam Bibi and Muhammad Ijaz were tried by the learned Addl. Sessions Judge, Khushab in a private complaint under sections 302 and 34, P.P.C. instituted by Mst. Shazia Bibi, complainant (PW.1) being dissatisfied with the investigation conducted by the police in case FIR No.222 dated 11.07.2015, offence under section 302, P.P.C. got registered by Sajid Iqbal (CW.9) at Police Station Noorpur District Khushab for the murder of Mst. Sana Bibi (deceased). Vide judgment dated 27.04.2017 passed by the learned trial court, Saqi Javed alias Saqib Javed (appellant) has been convicted under sections 302(b), 34, P.P.C. and sentenced to death, with a further direction to pay Rs.2,00,000/- (rupees lac lakh only) as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Ghulam Qadir (appellant) has also been convicted under sections 302(b)/ 34, P.P.C. and sentenced to imprisonment for life, with a further direction to pay Rs.2,00,000/- (rupees two lac only) as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was also awarded to him. Through the same judgment, Maryam Bibi and Muhammad Ijaz, co-accused of the appellants were acquitted of the charges by extending them benefit of doubt and no Cr. P.S.L.A.. against their acquittal was filed either by the State or the complainant, as conceded by learned Deputy Prosecutor General as well as learned counsel for the complainant. Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the learned trial court has sent Murder Reference No.298 of 2017 for confirmation or otherwise of Saqi Javed alias Saqib Javed, appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PB) registered on the statement (Ex.CW2/A) of Sajid Iqbal (CW.9) is that his wife Mst.Sidra Bibi and Sana Bibi were two sisters, whose father had died and mother left the house. Sana Bibi aged about ten years used to live with his paternal uncle Muhammad Ijaz in village Biland and her nikah was solemnized with her paternal cousin Saqib Javed (appellant). On 10.07.2015 at around 7.00 p.m. Sajid Iqbal (CW.9) along with his father Muhammad Ramzan and Ghulam Qadir went to the house of said Muhammad Ijaz to see him where they saw that Saqib Javed was beating Mst. Sana Bibi. The appellant threw her on the ground 2/3 times and pressed her neck. On hue and cry of complainant party, Saqib Javed ran away from the spot. They attended Mst. Sana Bibi but she succumbed to the injuries after a short time.
3. Mst. Shazia Bibi (PW.1) was mother of Mst. Sana Bibi (deceased) and being aggrieved and dissatisfied with the investigation conducted by the police, she instituted a private complaint titled as "Shazia Bibi v. Saqi Javed etc." to the effect that on the intervening night of 10/11.07.2015, Habib Ullah brother of Muhammad Ijaz gave her information at Rawalpindi that Saqi Javed alias Saqib etc. (four persons) committed the murder of her daughter Sana Bibi and she (PW.1) directed him (Habib Ullah) that she is coming and become the complainant and till then, no proceedings be initiated. On reaching her village Biland, Habib Ullah (PW.2) and Muhammad Naeem (PW.3) disclosed her that at noon time, Sana Bibi told them that Mst.Maryam Bibi mother of Saqi Javed alias Saqib had illicit relations with Ghulam Qadir (appellant) brother-in-law (behnoi) of Saqi Javed alias Saqib and Mst. Sana Bibi saw them in an objectionable condition in her house and informed her husband Saqi Javed alias Saqib Javed (appellant) and husband of Maryam Bibi namely Muhammad Ijaz, who felt it ill and slapped Mst. Sana Bibi and threatened her for dire consequences in case she told the said incident to anyone. Habib Ullah further informed the complainant that Sana Bibi apprehended that Saqib, his father Ijaz, mother Maryam Bibi and Ghulam Qadir are bent upon to assassinate her in order to save them from possible humiliation. So, on 10.07.2015 at around Maghrab time, Habib Ullah and Muhammad Naeem proceeded towards the house of Saqi etc. in order to forbid them from committing murder of Mst. Sana Bibi and on hearing shrieks of Sana Bibi, both of them entered the house and saw that Saqi, Maryam Bibi and Ghulam Qadir were catching hold of Sana Bibi from her hairs while Saqi and Ghulam Qadir inflicted successive danda blows on her person. Saqi gave danda blows on her nose, left eye and left side of forehead. Ghulam Qadir caused her sota blow on her left elbow, back and right eye etc. who fell down. Maryam Bibi gave her fist and kick blows whereas Muhammad Ijaz kept on raising lalkara that she would not be spared. Then Saqib Javed pressed the neck of Sana Bibi. Habib Ullah and Muhammad Naeem stepped forward and tried to save Sana Bibi but she succumbed to the injuries on the spot. Motive behind the occurrence as alleged in the private complaint was that the accused suspected that Sana Bibi would publicize the illicit relations of Maryam Bibi and Ghulam Qadir in the relatives and other people and to save them from humiliation, they in consultation with each other committed her murder.
4. After recording of cursory evidence in the present case, the appellants and their co-accused namely Maryam Bibi and Muhammad Ijaz were summoned by the learned trial court to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under section 302, P.P.C. read with section 34, P.P.C. was framed against them on 09.12.2015, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as four witnesses whereas ten were examined as court witnesses. Statements of the appellants and their co-accused under section 342 of the Code of Criminal Procedure were recorded on 11.04.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants did not opt to appear as their own witnesses in disproof of the prosecution allegations as provided under section 340(2) of the Code of Criminal Procedure, however, Saqi Javed alias Saqib Javed (appellant) produced some documents (Ex.DA and Ex.DB) as defence evidence. After conclusion of trial, the learned trial court convicted and sentenced the appellants and acquitted their co-accused, as detailed above. Hence this appeal and murder reference.
5. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that the matter was reported to the police with due deliberation and consultation on the part of the complainant; that the postmortem examination of the dead body of deceased was also conducted after a long time; that Mst. Shazia Bibi, complainant (PW.1) is not an eye-witness of the incident and she instituted the private complaint after more than two months of the occurrence; that the names of Habib Ullah (PW.2) and Muhammad Naeem (PW.3), alleged witnesses of ocular account are not mentioned in the FIR; that both the eye-witness have not given any plausible reason for their presence on the spot at relevant time; that ocular account is in direct conflict with the medical evidence; that a vague motive was set up by the prosecution in the private complaint and brought before the learned trial court which has not been proved; that the recovery of sota (C.4) at the instance of Saqi Javed alias Saqib Javed, appellant is inconsequential; that the versions of the appellants are more probable, convincing and even get full support from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellants are entitled to acquittal.
6. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that the postmortem examination of the dead body of deceased was conducted early in the morning on the next day at 6.30 a.m.; that though Mst. Shazia Bibi, complainant (PW.1) is not an eye-witness but Habib Ullah (PW.2) and Muhammad Naeem (PW.3), who witnessed the incident, have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that the eye-witnesses have no enmity with the appellants to falsely implicate them in this case; that a specific motive was set out in the private complaint and brought before the learned trial court which has been proved against the appellants; that ocular account is fully supported by medical evidence; that the prosecution case is corroborated by the recovery of sota (C.4) at the instance of Saqi Javed alias Saqib Javed, appellant; that the prosecution has successfully brought home guilt against the appellants to the hilt and there is no merit in this appeal.
7. We have heard arguments of learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
8. This unfortunate incident wherein Mst. Sana Bibi (deceased) daughter of complainant of private complaint lost her life, as per prosecution, took place on 10.07.2015 at about 7.00 p.m. in the area of village Biland situated within the territorial limits of Police Station Noorpur District Khushab. The distance between the place of occurrence and the police station is about eleven kilometers. The matter was reported to the police through statement (Ex.CW2/A) of Sajid Iqbal (CW.9) on the same night i.e. 11.07.2015 at 12.05 a.m. i.e. five hours and five minutes after the incident and formal FIR (Ex.PB) was got registered at 1.00 a.m. No convincing or plausible reason was assigned in the FIR by Sajid Iqbal (CW.9) or stated before the learned trial court for this inordinate delay of more than five hours in reporting the crime to the police. Even the postmortem examination of the dead body of deceased was conducted on the next day after about eleven and a half hours of the incident at 6.30 a.m. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed v. The State" (2011 SCMR 1190) and "Nazeer Ahmed v. The State" (2016 SCMR 1628).
9. Initially the case was got registered by Sajid Iqbal (CW.9) for the murder of his sister-in-law (sali) Mst. Sana Bibi on 11.07.2015 wherein he as well as Muhammad Ramzan (CW.10) and Ghulam Qadir (appellant) were cited as eye-witnesses of the incident. Subsequently, after the expiry of more than two and a half months, Mst. Shazia Bibi mother of deceased instituted the private complaint on 30.09.2015, in which she arrayed the appellants along with Muhammad Ijaz and Maryam Bibi (since acquitted) as accused and Habib Ullah (PW.2) and Muhammad Naeem (PW.3) were cited as eye-witnesses. While appearing before the learned trial court as PW.1. Shazia Bibi complainant herself admitted that she was not eye-witness of this occurrence. Therefore, the statement of complainant (PW.1), so far as the eye-witness account is concerned, is excluded from consideration.
10. The ocular account in this case has been furnished before the learned trial court by Habib Ullah (PW.2) and Muhammad Naeem (PW.3), who were closely related to the deceased being paternal uncle (PW.2) and cousin of father of deceased (PW.3). We have observed that the names of said eye-witnesses do not figure anywhere in the FIR rather they were cited as witnesses in the private complaint instituted by mother of deceased at a belated stage. Both the eye-witnesses claimed before the learned trial court to have witnessed the occurrence but their presence on the spot at relevant time is not free from doubt because Habib Ullah (PW.2) admitted during his cross-examination that neither he nor Muhammad Naeem (PW.3) lodged the FIR. He further admitted that they did not inform the police. According to Habib Ullah (PW.2), both of them were possessing cell phones at the time of incident but they did not call the police through cell phones. Both the eye-witnesses also stated before the learned trial court that their statements were recorded by the police under section 161, Cr.P.C. but the same were not found correct by the I.O. (CW.7). There is nothing on record to show that their statements under section 161, Cr.P.C. were produced before the learned trial court. Even the perusal of postmortem examination report (Ex.CW.1/A) shows that the dead body of deceased was brought to the dead house by the police and the same was identified by Ahmad Khan (CW.6) and Ghulam Abbas (not produced). The story cooked up by both the witnesses of ocular account appears to be improbable and makes their presence on the spot doubtful because according to them, the appellants were armed with danda at the time of occurrence and gave its blows to the deceased; had they (eye-witnesses) been present on the spot at relevant time, why did they not try to rescue the deceased during whole episode or to catch hold of the appellants or their co-accused (since acquitted), who admittedly were not armed with any firearm to ward the said eye-witnesses off or to keep them away at the time of incident. In this regard, reliance may be placed on the case law reported as "Irshad Ahmed v. The State" (2011 SCMR 1190). Moreover, Sajid Iqbal, complainant of FIR and Muhammad Ramzan were also called by the learned trial court and their statements were recorded as CW.9 and CW.10 respectively and in their examination-in-chief, they stated that on the day of occurrence at about 12.00 p.m. Muhammad Ijaz accused (since acquitted) came to their house and informed that Saqib Javed (appellant) has murdered his wife and they went to the house of said Muhammad Ijaz. All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
11. Motive behind the occurrence as alleged in the private complaint and brought before the learned trial court was that the appellants suspected that Sana Bibi would publicize the illicit relations of Maryam Bibi and Ghulam Qadir in the relatives and other people and to save them from humiliation, they committed her murder. We have noted that Sana Bibi (deceased) informed and showed her fear before Habib Ullah (PW.2) that she might be murdered at the hands of accused persons and Habib Ullah (PW.2) brought the said fact to the notice of Muhammad Naeem (PW.3) but they did not move any application or informed the police in this regard. Furthermore, they (PW.2 and PW.3) did not disclose the date and time as to when the deceased informed them regarding her apprehension. Muhammad Afzal, S.I./I.O. (CW.7) stated during his cross-examination that no eye-witness of compromising position of Maryam Bibi and Ghulam Qadir appeared before him. Even no independent witness with regard to the motive was brought forward in the witness box during the course of trial. In this view of the matter, we hold that the prosecution has not been able to substantiate the motive part of the occurrence.
12. So far as the alleged recovery of sota (C.4) at the instance of Saqi Javed alias Saqib Javed (appellant) which was taken into possession vide recovery memo Ex.CW5/A is concerned, the same is inconsequential for the reasons that the investigating officer admitted in his cross-examination that neither the blood was present on the sota (C.4) nor it was sealed by him. Moreover, it was a sota of common nature, easily available on the place of occurrence/village areas. No recovery of any sota was effected at the instance of Ghulam Qadir (appellant).
13. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and thus the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605).
14. So far as the defence plea taken by the appellants in their statements under section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
15. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be place on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).
16. For the foregoing reasons, Criminal Appeal No.24275 of 2017 filed by Saqi Javed alias Saqib Javed and Ghulam Qadir (appellants) is allowed, convictions and sentences awarded to the appellants vide judgment dated 27.04.2017 passed by the learned Addl. Sessions Judge, Khushab are set aside and they are acquitted of the charges levelled against them while extending them benefit of doubt. Saqi Javed alias Saqib Javed (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case. Ghulam Qadir (appellant) is present in Court on bail; his surety stands discharged from the liability of bail bond.
17. Murder Reference No.298 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Saqi Javed alias Saqib Javed (convict) is NOT CONFIRMED.
JK/S-26/L Appeal allowed.