SARDAR TARIQ MASOOD, J.---Three persons namely Abdul Razzaq, Basharat Ali and Mst.
Manzooran Bibi were tried in private complaint filed by Muhammad Nawaz under sections 302/34, P.P.C: at Police Station Faqirwali, District Bahawalnagar. The learned Additional Sessions Judge vide judgment dated 31-7-2007 convicted Abdul Razzaq and Basharat Ali appellants under sections 302(b)/34, P.P.C. and sentenced them to imprisonment for life as Tazir each. They were further directed to pay compensation under section 544-A, Cr.P.C. of 1,00,000 each to the legal heirs of the deceased or in-default thereof to further undergo 6 months' S.I. each. The benefit of section 382-B, Cr.P.C. was given to them. However, co-accused Mst. Manzooran Bibi was acquitted.
The appellants have filed the instant, appeal against their conviction and sentence whereas the complainant has filed Criminal Revision No,356 of 2007 for the enhancement of sentence of the appellants. The complainant has also filed Criminal Appeal No, 65 of 2008 against the acquittal of Mst. Manzooran Bibi which was withdrawn on 23-7-2009. I propose to dispose of both the matters by this single judgment.
2. Briefly the facts of the private complaint are that Muhammad Nawaz complainant is resident of Chak No, 37/3.R within the area of Police Station Faqirwali. The complainant alleged that Ihsan Ahmad his son used to do the business of sale/purchase of the cattle with Abdul Razaq and he in connection with his business used to go and stay at the house of the accused situated in Chak No,109/6.R. On 19-2-2006 at about 5-00 p.m. Abdul Razzaq came in the house of the complainant.
At that time complainant and his son Bashir Ahmad were present at the house. Abdul Razzaq asked to Ihsan Ahmad to accompany with him for sale/purchase of cattle and he did so. On 20-2- 2006 at about 1-30 p.m. complainant received a telephonic call that his son Ihsan Ahmad has died.
Thus, the complainant, his son Bashir Ahmad and Muhammad Irshad went to Chak No, 109/6.R where they found Ihsan Ahmad dead. They saw bluish ligature mark on the throat of deceased who was murdered by Abdul Razaq, Basharat Ali and Mst. Manzooran Bibi by way of hanging by neck with rope with the guarder of the ceiling of their house. Accused persons with their common intention committed the murder of deceased.
Motive behind the occurrence was stated to be a dispute of distribution of profit of sale of buffalo between Abdul Razzaq and the deceased. The deceased had demanded profit from Abdul Razaq.
P.Ws. Manzoor Hussain and Akbar Ali had told to the complainant that on 20-2-2006 at about 11-30 a.m. they had gone to the house of Abdul Razzaq where he, his son Basharat Ali and his wife Mst.
Manzooran Bibi were quarrelling with Ihsan Ahmad and the accused persons in their presence had threatened to the deceased to withdraw his demand of profit of 'the buffalo; otherwise he would be killed by them. In this connection, the F.I.R. was lodged but thereafter the police declared them innocent. During successive investigations, police came to the conclusion it was a case of suicide.
Police applied for cancellation of case but the same was not agreed by the learned Illaqa Magistrate. Consequeiitly, the challan was submitted in Court. However, the complainant filed the present private complaint.
On filing of the private complaint, the statement of the complainant under section 200, Cr.P.C. was recorded by the learned Additional Sessions Judge on 19-8-2006. Thereafter the complaint was sent to the learned Illaqa Magistrate for holding inquiry under section 202, Cr.P.C. to ascertain the truthfulness or otherwise of the complaint. The learned Illaqa Magistrate recorded the cursory statements of Manzoor Hussain, Bashir Ahmad and Akbar Ali. The complainant also tendered documentary evidence and in the light of preliminary evidence produced by the complainant; prima facie the commission of offence under section 302, P.P.C. was found against the accused persons and the accused were summoned on 16-2-2007.
3. After fulfilling the legal formalities, all the accused persons were charge-sheeted, to which, they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as -9 P.Ws. in all and also tendered documentary evidence.
P .W.1 Muhammad Nawaz complainant supported the private complaint filed by him.
P.W.2 Bashir Ahmad is brother of deceased Ihsan Ahmad. He stated that one year and 4 months ago, he was present at his house along with his father. They received telephonic message about the death of deceased. He along with his father and Muhammad Aslam proceeded to Chak No,109/6.R in the house of Abdul Razzaq accused. They noticed ligature mark on the neck of deceased and one rope was also lying near the dead-body. Police also reached at the spot and secured two pieces of ropes P.1 and P.2 along with a Churri P.3 vide recovery memo. Exh.PB which was attested by PW.2 and Muhammad Aslam.
P.W.3 Akbar Ali stated that about one' year and 4 months back, he along with Manzoor Ahmad P.W.4 went to the house of Abdul Razaq in connection with their business. On 20-2-2006 at about 11-00 a.m. Abdul Razzaq, Basharat Ali and Mst. Manzooran Bibi were present in the house along with Ihsan deceased. All the accused persons were quarrelling with deceased over the profit of a buffalo sold by Abdul Razzaq accused. In their presence, accused persons extended threats that in case of demand of profit, they will do away with him. On the next day, he came to know that Ihsan had been murdered. He along with Manzoor P.W.4. reached in Chak No,37/3.R and narrated the occurrence of quarrel before Muhammad Nawaz complainant who produced them before the I.O. to record their statements who refused the same. Later on, their statements were recorded by the I.O. under the direction of this Court.
P.W.4 Manzoor Hussain supported the statement of P.W.3 Akbar Ali.
P.W.5 Dr. Hamid Akhtar conducted the post-mortem examination of Ihsan Ahmad deceased on 21- 2-2006 at 9-00 a.m. and found a ligature mark 1-1/4 cm wide around the neck. No other mark of violence was present on the body; Cause of death was due to hanging, blockage of air and blood passages and neurogenatic shock. P.W.6 Muhammad Fayyaz constable stated that on 20-2-2006 he was performing his duty at the Police Station. On the same day, Moharrir of Police Station handed over to him seven sealed parcels which were given to him by the doctor after autopsy for their onward transmission to the office of Chemical Examiner for analysis. He deposited the abovesaid sealed parcels in the concerned office on 21-2-2006. During his custody, all the above- said sealed parcels remained intact, and no body tampered with it.
P .W.7. Abdul Latif, S.-I. stated that on receipt of the complaint Exh.PA/2 sent by S.H.O. drafted the F.I.R. Exh.PA/1 on 20-2-2006 without any addition or omission which is in his hand and bears his signatures.
P.W.8 Pervaiz Akhtar Jatoi, S.H.O. stated that on receiving the information about the occurrence, he reached the place of occurrence along with police contingencies. Complainant appeared before him and recorded his statement Exh.PA/2. He sent the same to the Police Station for registration of. formal F.I.R. He recorded the statements of witnesses under section 161, Cr.P.C. He inspected the place of occurrence and prepared rough sketch of place of occurrence. He inspected the dead- body and prepared injury statement Exh.PC/3. He also prepared inquest report Exh.PC/2 and handed over the dead-body to Muhammad Riaz Constable for autopsy. On 21-2-2007 Abdul Rehman Shah, D.S.P visited the spot who also inquired from the respec tables of the locality and concluded that deceased had committed suicide and it was not murder. He investigated the case and found that the deceased had committed suicide. On the application of the complainant to the Additional I.G. (Investigation), Punjab, the investigation was transferred to Zahoor Rabbani, D.S.P. who also concurred with his investigation and he recommended the case for cancellation. He submitted cancellation report before the learned Illaqa Magistrate who disagreed with the same.
On 29-9-2006 he prepared the report under section 173, Cr.P.C. and submitted the same before the Court.
P .W.9 Muhammad Riaz, A.S.-I. stated that on 20-2-2006 he escorted the dead-body of lhsan deceased for mortuary. On 21-2-2006 after autopsy, doctor handed over to him the dead-body, post-mortem report, police papers and last worn clothes of the deceased who took into possession vide recovery memo. Exh.PF attested by the P.Ws. His statement under section 161, Cr.P.C. was recorded by the I.O.
Two witnesses namely Ahmad Yar, H.C. and Muhammad Islam were summoned as CWs.
CW-1 Ahmad Yar, HC stated that he did not know about the occurrence as he assumed the charge of Moharrir on the last' day of March, 2006. His name in calender of witnesses has been mentioned by the I.O. inadvertently.
CW-2 Muhammad Islam stated that about 1 year back, he was present in Chak No,37/3.R, he received information about the death of lhsan Ahmad deceased. He along with Muhammad Nawaz and Bashir Ahmad went to the place of occurrence and saw that dead-body of Ihsan Ahmad was lying in a cot in the house of accused. He cannot tell his name. He noticed ligature mark on the neck of the deceased. On 21-2-2006 constable produced last worn clothes of deceased who took the same into possession vide recovery' memo. Exh.PF, He along with Bashir Ahmad attestea the recovery memo. His statement was recorded under section 161, Cr.P.C. On 20- 2-2006 police secured two pieces of ropes P.1 and P.2 from the spot and a churri which was taken into possession by the I.O. vide recovery memo. Exh.PB.
4. The appellant when examined under section 342, Cr.P.C. denied the prosecution allegations levelled against them. They pleaded their Innocence. In answer to question No, 7, why this case against you and why the P.Ws. deposed against you, Abdul Razaq appellant stated as under:--- "Complainant and the P.Ws. are closely related inter se. P.Ws. deposed against me on the asking of the complainant. Son of the complainant lhsan Ahmad deceased had bad/amorous eye upon his daughter. He attempted to develop indecent relation with Mst. Shamma Razaq. Deceased asked Mst. Shamma Razaq his daughter , to elope with him but she refused to do so. As Mst. Shamma Razaq refused to fulfil his evil wishes, so he went in the room of his house and killed himself by hanging. He is a poor man. He offered that he gave oath on Holy book regarding his innocence but complainant did not accept his offer. However, local police declared him as well as his co-accused innocent during investigation and the case was recommended for its cancellation".
Neither the appellants opted to appear in defence as their own witnesses under section 340(2), Cr.P.C. in disproof of the allegations of the prosecution nor adduced any defence evidence.
Basharat Ali appellant and Mst. Manzooran Bibi relied upon the statement of Abdul Razaq appellant.
5. Learned counsel for the appellant submits that it was an unseen occurrence; that there was no ocular account but circumstantial evidence produced by the prosecution is highly unnatural and unreliable; that it is purely fabricated evidence which has no leg to stand upon. Learned counsel for the appellant highlighted material contradictions between the statement of P.W.3. Akbar Ali and P.W.4. Manzoor Hussain. Further argued that the deceased did not have any injury on his person and it was more improbable that he committed suicide. He prays for the acceptance of the appeal and acquittal of the appellants.
6. Learned D.D.P.P. for the State assisted by the learned counsel for the complainant argued that the evidence of prosecution was consistent and confidence inspiring; that the place of occurrence is admitted and the dead-body was found in the house of the accused; that the prosecution witnesses Muhammad Nawaz and Bashir Ahmad had seen the dead-body lying on the cot in the house of the accused when they received information about the death of the deceased; that there was evidence of last seen through the version of P.W.3 Akbar Ali and P.W.4. Manzoor who had seen the accused and the deceased quarrelling over the dispute of profit earned in the sale of buffalo.
These witnesses had seen the accused threatening the deceased for the dispute. He contends that the accused had taken the plea and onus shifted upon them to prove the same.
7. I have minutely gone through the entire record and have also anxiously considered the respective contentions of the learned counsel for the parties. I have come to the conclusion that prosecution was unable to prove its case beyond shadow of doubt and reasons for such conclusions are as under:---
(i) So far the evidence of last seen is concerned, suffice it to say that even according to the prosecution's own case that the deceased usually visited the house of accused and resided there.
The statement of the complainant that Abdul Razaq appellant had taken along with his deceased son from the house on 19-212006 does not remain as last seen evidence because thereafter P.W.3 Akbar Ali and P.W.4 Manzoor Hussain saw him alive on 20-2-2006 at 11-30 a.m. in the house of the accused. Even otherwise, the last seen evidence is ever considered to be weak type of evidence and unless and until there is substantive evidence on the record, no conviction can be based upon such evidence.
(ii) The material evidence produced by the prosecution consisted of statements of P.W.3 and P.W.4.
According to them on 20-2-2006, they saw the accused person quarrelling with the deceased over the share of profit earned in the sale of buffalo. Both of them are real maternal nephews of the complainant and maternal cousins of the deceased. According to them, they had gone to purchase the buffalo from the appellants, thus, they were chance witnesses for all intent and purposes. The evidence of related and chance A witnesses is not looked favourably as laid down in the case of Muhammad Shafi and another v. The State 1978 PCr.LJ Note 10 at page 7, Mukhtar Ahmad and others v. The State 1975 PCR.LJ 698 and Zafar Hayat v. The State 1995 SCM R 896-B.
(iii) Their assertion for their visit to the house of accused persons at the relevant time was to purchase a buffalo. According to Manzoor Hussain P.W.4, he had to purchase a buffalo from Abdul Razaq appellant while according to Akbar Ali P.W.3, it was he who had to purchase the buffalo from Abdul Razaq appellant.
(iv) According to both these witnesses, they never visited the house of Abdul Razaq earlier to that day. P.W.3 Akbar Ali stated that the house of accused was previously known to P.W.4 Manzoor Hussain while conversely according to Manzoor Hussain, the location of the house was known to Akbar Ali P.W.3. Thus, very explanation offered by these two witnesses for their arrival at the house of the accused person is fizzled out.
(v) The most abnormal conduct on their part further belied them that when after hearing the threatening of murder of deceased by the accused/appellants, they did not take him at the mercy of the accused for being way eliminated.
(vi) Both these witnesses did not inform the complainant and got up from slumber only after the occurrence which leave no room to doubt that they are got up witnesses, no reliance can be placed upon their testimony.
(vii) Medical evidence does not furnish corroboration to the version of the prosecution. The deceased was a young man of 30 years. There was no bruise, abrasion or scratch on his person.
Even the clothes have not been shown to have any tear. It is not believable that he would have not resisted at the time of incident. The presence of rope further indicates that it was a case of suicide.
During successive investigations, it was found case of suicide.
The above factors are cumulatively pro notes the commission of suicide and are of no help to the prosecution in any way.
8. It is a case of circumstantial evidence and it is settled principle that cases depending upon circumstantial evidence in order to justify inference of guilt, incriminating evidence must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The evidence in this case does not qualify the principle laid down.
9. The argument of learned counsel for the complainant that the accused had raised a specific plea and thus, onus is shifted upon them is misconceived. Article 121 of Qanun-e-Shahadat lays down that "when a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Penal Code or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." The plea taken by the accused in this case is that the deceased committed suicide does not fall within any General Exception of Pakistan Penal Code.
10. Moreover, the accused is blue eye child of law and he can take any plea whatsoever, it may be contradictory and even false. The Court has to base conviction upon a firm and straight forward convincing prosecution evidence and initial onus never shifted upon the accused. It was held in the case of Shamoon alias Shamma v. The State (1995 SCM R 1377) that "prosecution must prove its case against the accused beyond reasonable doubt irrespective of any plea raised by him in his defence." It was further held that "question of burden of proof on the accused to establish his plea in defence does not arise until the case is established against him by the prosecution."
11. The argument of learned counsel for the complainant that Abdul Razaq appellant did not produce his daughter has C also not impressed me because keeping in view our social values of society, it is difficult for a father to produce his own unmarried daughter in the witness-box to place the tape of cross-examination which was to be done upon her and establish when there is no convincing evidence on the file against him.
I am mindful that the Court has to keep in view its moral duty towards the aggrieved family while deciding the case but conversely it is the equal duty of the Court that for convicting a person for the murder charge the confidence inspiring evidence satisfying the mind of the Court should be on the file and it should not be swa yed with sentiments.
12. For giving benefit of doubt to any accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation and in such a situation, a strong corroboration becomes necessary which is lacking in the present case. Reference can be given to the basic judgment reported as Muhammad Luqman v. The State (PLD 1970 SC 10) in which it is held that:-- "It may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of poof. If a case were to be decided merely on high Probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
Further reference can be made from the cases cited as Tariq Parvaiz v. The State (1995 SCM R 1345) and Muhammad Ilyas v. The State (1997 SCM R 25).
In this case as discussed above, there are many circumstances which create doubt upon the prosecution case.
I have come to the conclusion that prosecution was unable to prove its case beyond shadow of doubt rather prosecution hopelessly failed to prove the charge against any of the accused/appellants.
The upshot of the above discussion is that there being no satisfactory reasons for upholding the conviction and sentence of the appellants, therefore, the appeal is allowed and the conviction and sentence of the appellants is set aside and they are acquitted of the charge. They shall be released forthwith if not required in any other case.
14. The complainant had already withdrawn Criminal Appeal No, 65 of 2008 against acquittal of Mst. Manzooran Bibi on 23-7-2009.
15. Due to above-mentioned observations, Criminal Revision No, 3562007 filed by the complainant for enhancement of sentence of the appellant is dismissed.