MUHAMMAD NADEEM Versus State
ISHTIAQ IBRAHIM, J.--- Feeling aggrieved by the investigation carried out in case FIR No.334/2012 dated 21.09.2012, registered under sections 302, 109 and 34, P.P.C., at Police Station Pirmahal, District Toba Tek Singh, Muhammad Imran, the informant of the said FIR, instituted a private complaint (Exh.PA) before the learned Trial Court. According to the averments in the complaint, on 21.09.2012 the complainant along with his mother, Mst. Kalsoom Bibi, was engaged in filling earth on a thoroughfare leading to their house situated in Chak No.681/22-GBN, Tehsil Pirmahal when at about 11:30 a.m., his maternal cousin Muhammad Nadeem, the petitioner, armed with a 12-bore rifle, accompanied by his father/co-accused Akhtar Ali ( maternal uncle of the complainant and real brother of Mst. Kalsoom Bibi ) and his mother Mst. Azra Parveen, emerged from their adjoining house and came to the place of occurrence; that co-accused Akhtar Ali and Mst. Azra Parveen commanded their son, Muhammad Nadeem petitioner, to kill Mst. Kalsoom Bibi on the premise that she had filed a writ petition against them and had persistently been demanding her half share ( ihata ) in the adjoining property, upon which the petitioner fired at Kalsoom Bibi as a result she got hit on chest and died on the spot. Upon the hue and cry raised by the complainant, his brothers, namely Muhammad Shahzad and Muhammad Sarwar, rushed to the place of occurrence and allegedly witnessed the incident. After the commission of the offence, the accused persons fled from the spot. The motive behind the occurrence was that the accused were aggrieved by the persistent demand of the deceased for her half share in the property, which, according to the complainant, was in possession of the accused. Besides the above-named accused, the complainant also nominated co-accused Haroon and Salah-ud-Din for abetment of the offence.
2. The petitioner, along with co-accused Mst. Azra Parveen, Haroon and Islam-ud-Din, was tried by the learned Additional Sessions Judge, Kamalia ("the learned Trial Court"). Co-accused Akhtar Ali, however, expired prior to the commencement of his trial. Upon conclusion of the full-dressed trial, the learned Trial Court, vide judgment dated 01.10.2015, acquitted the co-accused named above but convicted the petitioner under section 302(b), P.P.C., and sentenced him to death as Ta'azir . He was further directed to pay compensation of Rs.200,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C., and in default thereof to undergo simple imprisonment for six months.
3. The Lahore High Court, Lahore ("the High Court"), vide judgment dated 22.02.2018, while dismissing the appeal preferred by the petitioner-convict, maintained his conviction under section 302(b), P.P.C.; however, the sentence of death was commuted to imprisonment for life. Consequently, Murder Reference No.355 of 2015 was answered in the negative.
4. Now through Jail Petition No.217 of 2018, the petitioner-convict seeks leave to appeal against the impugned judgment of the High Court. Conversely, the complainant, Muhammad Imran, has filed Criminal Petition No.305-L of 2018 seeking enhancement of the sentence of the respondent-convict from imprisonment for life to death, being the normal penalty provided for the offence under section 302(b), P.P.C.
5. We have heard the arguments of learned counsel for the parties as well as the learned Deputy Prosecutor General, Punjab, appearing on behalf of the State and perused the record, evidence and the judgments of the Courts below with their able assistance.
6. It appears from the record that petitioner-convict Muhammad Nadeem, along with his father/co-accused Akhtar Ali (since dead) and his mother Mst. Azra Parveen (since acquitted), was charged in for murder of Mst. Kalsoom Bibi (deceased). The role attributed to the parents of the petitioner was that of raising lalkara , whereas the petitioner-convict was assigned the specific role of making a single effective fire shot with a 12-bore rifle at the deceased. The deceased was the sister of accused Akhtar Ali and the paternal aunt of the petitioner-convict. The occurrence took place on 21.09.2012 at about 11:30 a.m. The alleged motive behind the occurrence was a dispute arising from the demand of the deceased for her share in the joint property from her brother, accused Akhtar Ali. According to the complainant, Muhammad Imran (PW-6), on the fateful day he, along with his deceased mother, was putting mud on a thoroughfare near their house when the occurrence took place. During the course of investigation it surfaced that, in fact, accused Akhtar Ali had committed the murder of his deceased sister, whereas the petitioner-convict Muhammad Nadeem was present at Lahore at the relevant date and time. In view of the said investigation, Muhammad Idrees, S.I. (CW-2), the Investigating Officer, found the petitioner-convict innocent and submitted a report for his discharge before the learned Illaqa Magistrate on 08.04.2013. However, the learned Magistrate did not concur with the discharge report and ordered that the petitioner-convict be sent to judicial lock-up. Dissatisfied with the investigation, the complainant thereafter filed a private complaint.
7. The complainant Muhammad Imran (PW-6) and his brother Shahzad (PW-7), both sons of the deceased, furnished the ocular account of the occurrence. They claimed their presence at the spot at the relevant time. The former was working as a mechanic at Pirmahal, whereas the latter was a labourer working with a zameendar in the village lands as is evident from their statements. Considering the time of occurrence, i.e., 11:30 a.m. and the professions of the alleged eye-witnesses, they would ordinarily have been present at their respective places of work. In these circumstances, the alleged eye-witnesses fall within the category of chance witnesses. A "chance witness" is one who, in the ordinary course of events and in the normal pursuit of life, would not be expected to be present at the place of occurrence but claims to have been there by chance. The concept has consistently been examined by this Court while assessing the credibility and evidentiary value of ocular testimony. A chance witness must, therefore, furnish a satisfactory account of his presence at the relevant place and time. Such explanation must be natural, probable and in harmony with the surrounding circumstances of the case. Moreover, his presence should be supported by independent circumstances appearing on record, such as corroboration from local witnesses, or his conduct immediately before or after the occurrence. The testimony of a chance witness cannot be accepted as a matter of course; it demands greater circumspection than that of a natural witness. Criminal liability, particularly in cases entailing severe punishment, cannot be founded upon doubtful or inherently improbable evidence. If a witness, who in the normal course of his affairs would be elsewhere, such as at his workplace during working hours, claims presence at the scene, he must offer a cogent and credible explanation. Failing that, his evidence becomes unsafe for reliance. Furthermore, if the conduct of such a witness appears unnatural or his testimony suffers from material contradictions, the probative value of his evidence is further diminished. It is, therefore, a well-established rule of prudence that although the evidence of a chance witness is admissible, it must inspire confidence and ordinarily be corroborated by reliable and independent evidence before forming the basis of conviction. In case of doubt, the benefit thereof must accrue to the accused.
8. Upon evaluating the testimonies of the alleged eye-witnesses, we find that they have failed to furnish any plausible or satisfactory explanation regarding their presence at the place of occurrence at the relevant time. The manner of occurrence, as narrated by them, does not appeal to a prudent mind. It appears highly improbable that in the presence of two grown-up sons of the deceased, the petitioner-convict would choose to fire at their mother without first neutralizing the male members who were capable of offering resistance. Such conduct attributed to the accused is against the normal course of human behaviour. Equally unnatural is the conduct of the alleged eye-witnesses who remained silent spectators while their mother was being fired upon, without making any attempt to apprehend the petitioner-convict, raise alarm in an effective manner, or even rush to their adjacent house to procure some means of resistance and chase the petitioner-convict. In circumstances of such gravity, some reaction consistent with ordinary human conduct was expected. Their passive behaviour renders their presence at the spot doubtful. No independent witness from the locality was produced to at least depose about their presence in the village at the relevant time, though the occurrence allegedly took place in a residential area during daytime. We have also noticed material contradictions in their testimonies, particularly with regard to the events preceding and succeeding the occurrence, which further erode their credibility. The conduct of the complainant in leaving the dead body of his mother at the spot and proceeding to lodge the report, despite the fact that his house was adjacent to the place of occurrence, is also beyond the comprehension of a prudent mind. In the ordinary course of human conduct, the alleged eye-witnesses would have first shifted the deceased either to the house, to a hospital, or at least taken immediate steps in that direction. The unexplained delay of about two hours in reporting the occurrence is yet another circumstance which casts serious doubt upon the presence of the alleged eye-witnesses at the spot. In view of the foregoing circumstances, the ocular account furnished by the alleged eye-witnesses does not inspire confidence and cannot be safely relied upon without independent corroboration.
9. Muhammad Idrees, S.I., was examined as CW-2. He was the Investigating Officer of the case. Despite lengthy cross-examination by the complainant party, nothing could be elicited to suggest any mala fide or ulterior motive on his part in conducting the investigation. In cross-examination by the defence, he stated that on 05.03.2013, he, along with Shahid Aslam, S.I., Incharge Investigation, went to Lahore and recorded the statement of Iqbal, owner of Sarhad Hotel, Lahore, who stated that on the day of occurrence petitioner-convict Muhammad Nadeem remained present on duty at his hotel in Lahore. He further stated that on 14.03.2013, he, along with Shahid Aslam, S.I., and the SHO of Police Station Pirmahal, conducted investigation in village Chak No. 681/22-GBN, where one Muhammad Hussain appeared and stated that after the occurrence the complainant had told him that his mother was killed by his mamoo (Akhtar Ali). Another co-villager, Ghulam Hussain, who resided adjacent to the complainant's house and whose intervening wall permitted visibility over it, stated that at the time of occurrence he had seen only accused Akhtar Ali and that accused Mst. Azra Bibi and petitioner-convict Muhammad Nadeem were not present at the spot. The investigation was successively scrutinized and verified at various levels, including by the DSP Saddar Toba Tek Singh, DSP Headquarters Toba Tek Singh, Inspector Range Crime Branch Faisalabad and even by officers at the office of the I.G. Punjab (Investigation Branch), Lahore.
10. Ghiyas-ud-Din, DSP (Investigation Branch), was examined as CW-4. He deposed that on 27.04.2015 the investigation of the case was entrusted to him. He summoned both parties, examined the record and associated the earlier Investigating Officers, including Muhammad Idrees, S.I., and Atta-ur-Rehman, Inspector RIB Faisalabad. He categorically stated that during the course of investigation it was established that the murder of Mst. Kalsoom Bibi deceased was committed by her brother Akhtar Ali (since dead), and that the other accused nominated in the FIR were found innocent. His final report was verified by the I.G. Punjab (Investigation Branch), Lahore. In cross-examination, he admitted that during his investigation it was confirmed that petitioner-convict Muhammad Nadeem was present at Bismillah Sarhad Hotel, Ghazi Road, Lahore, on the day and time of occurrence, and that this fact was verified from the hotel owner. He also admitted that Muhammad Sarwar (PW), cited as an eye-witness by the complainant, had disclosed before him that he had not witnessed the occurrence and had reached the spot about half an hour after the incident.
11. We are mindful of the settled principle of law that the Court is not bound by the ipse dixit of the police, and that the opinion formed by the investigating agency is neither conclusive nor binding upon the Court. It is the duty of the Court to independently appraise the evidence brought on record and arrive at its own conclusion. However, where successive investigations have been conducted by different officers at different levels, and each of them, after due scrutiny, has reached the same conclusion declaring an accused innocent, such findings cannot be brushed aside lightly or discarded without assigning cogent reasons. In the present case, the petitioner-convict Muhammad Nadeem was found innocent not by a solitary investigating officer but through successive investigations, which were duly verified by senior supervisory officers, including officers of the Investigation Branch and the office of the I.G. Punjab. No material has been brought on record to suggest any mala fide, collusion or extraneous influence on the part of any of the investigating officers. In the absence of any such allegation substantiated by evidence, the consistent findings of innocence recorded during successive investigations carry persuasive value and lend support to the defence version.
12. Upon our independent reappraisal of the entire evidence, particularly the doubtful ocular account of chance witnesses, the contradictions in their testimonies, and the consistent investigative findings affirming the petitioner's absence from the place of occurrence, we are of the considered view that the prosecution has failed to establish the guilt of petitioner-convict Muhammad Nadeem through cogent, reliable and confidence-inspiring evidence beyond reasonable doubt. The petitioner-convict, in his statement under section 342, Cr.P.C., while admitting the occurrence, stated that his aunt Mst. Kalsoom Bibi deceased was killed by his father Akhtar Ali, but that he himself was present at Lahore on duty at the relevant time. This plea finds support from the investigative material discussed above. In the circumstances of the case, the petitioner-convict is entitled to the benefit of doubt as a matter of right and not of grace.
13. For what has been discussed above, Jail Petition No.217 of 2018, is converted into an appeal and allowed. The conviction and sentence of the appellant-convict recorded by the Courts below are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.
Criminal Petition No.305-L of 2018
14. In view of acquittal of the respondent-convict the instant petition for enhancement of sentence has become infructuous which is hereby dismissed and leave to appeal is refused.
JK/M-18/SC Appeal allowed.