Vide judgment dated 03.7.23006 handed down by learned Additional Sessions Judge, Bhalwal, after conclusion of trial in case FIR No, 2 of 2005 registered under Section 302 of The Pakistan Penal Code, 1860 at police station Bhalwal, the appellant Shamas Naveed was convicted under Section 302(b) of The, PPC and was awarded life imprisonment besides payment of compensation to .the tune of Rs, 1,00,000/- under Section 544-A of The Code of Criminal Procedure, 1898 and in default of payment of compensation to further undergo simple imprisonment for six months.
By preferring criminal appeal, legality and validity of judgment has been questioned on legal as well as factual premises.
2. Matter was reported to the police by Mushtaq Ahmad (PW.8) by submitting application with the stance that his sister, Mst. Robina was married with appellant, Shamas Naveed having four children from this wedlock. Relation between the spouses became strained. On 12.8.2004 he alongwith his father, Amjad Hussain (not produced), Muhammad Afzal (P.W.9) and Mst. Khurshid Bibi (given up) want to see his sister. On 13.8.2004, at about 10.30 a.m. when they were planning to return, the appellant asked the complainant to pay Rs,70,000/- which were borrowed by- Muhammad Ilyas, otherwise, he will divorce Mst. Robina, upon which quarrel started and the appellant after taking .30-bore pistol, went to kitchen, took gallon of kerosene oil, sprinkled over Mst. Robina and set her on fire. On the hue and cry of the complainant and others, appellant while making aerial firing fled away. His sister sustained burn injuries and after seven days succumbed to the injuries. On the application of complainant under the order of Sessions Judge, Special Judicial Magistrate arranged exhumation and medical board examined the dead body.
Motive behind the occurrence statedly is that one Muhammad Ilyas, village fellow of the complainant borrowed Rs,70,000/- from the appellant who did not return the amount and appellant used to press upon the deceased to arrange money from her brother who refused to make any such demand.
3. Muhammad Afzal, SI (P.W.10) to whom complaint was entrusted got lodged formal FIR (Ex.PE/1), recorded the statements of witnesses, inspected the place of occurrence and prepared site-plan.
On 12.1.2005 Muhammad Hafeez, Draftsman (PW.4) after spot inspection, took rough notes and prepared scaled site-plan in duplicate (Ex.PD, Ex.PD/1).
4. Dr. Misbah Abu-Bakar (PW.2) conducted post-mortem examination of the deceased on 08.9.2004 and noted following injuries:--
1. Right leg completely burnt, anterior and posterior aspect, up to right inguinal area.
2. Right foot was completely burnt from anterior and posterior aspect.
3. Abdominal area fully burnt from front and flanks bilaterally, extending from the xiphisternul up to pubic area.
4. Right arm fully burnt up to the hands anteriorly and posteriorly.
5. Left arm fully burnt anteriorly and posteriorly up to the left hand.
6. Sole of the left foot completely burnt.
Time between injuries and death was about seven days while between death and autopsy was about 19-days. Postmortem report is Ex. PA.
5. During trial, prosecution produced Ghulam Hussain Constable (PW.1), Dr. Misbah Abu-Bakar (PW.2), Wafadar Ahmad, Constable (PW.3), Muhammad Hafeez, Draftsman, (PW.4), Dr. Atta Ullah Khan Niazi, (PW.5), Lady Dr. Tasneem Hayat (PW.6), Abdul Razaq, Head constable (PW.7), Mushtaq Ahmad, complainant (PW.8), Muhammad Afzal, an eye-witness (PW.9), Muhammad Aslam, SI/I.O.
(PW.10), Muhammad Farid, Inspector (PW11) and Hafiz Ahmed Tariq, special Judicial Magistrate (PW.12).
6. The appellant in his statement recorded under Section 342 of The Code of Criminal Procedure, 1898 denied the incrimipating evidence and while pleading falsity of accusation it was stated that death of Mst. Robina was accidental.
7. The learned counsel for the appellant, while referring to the contents of FIR (Ex.PE/1), statement of complainant (PW.8) and Muhammad Afzal (PW-9), maintained that occurrence took place on 13.8.2004 but matter was report to the police on 01.01.2005, sufficient to suggest falsity of accusation. Referring to the statements of the witnesses (PW.8 and PW.9), it was submitted that it is not understandable that the complainant, being real brother left for his village even his sister was seriously burnt and he even did not bother to take the deceased to the hospital. Argued that conduct of the complainant is sufficient to suggest that either the occurrence did_ not take place in the manner and mode described by the prosecution or the witnesses were not present at the spot. Referring to the copy of application (Ex.DA) made by complainant to the learned Sessions Judge, for disinter corpse and statement of the complainant recorded by learned Special Judicial Magistrate, copy of which is Ex.DB, it was argued that entirely different story was introduced casting serious doubts about the prosecution version. Submitted that conscious and dis-honest improvements were made by the witnesses while appearing in the Court and as such not worthy of reliance. Argued that prosecution failed to produce convincing, worthy of credit evidence and as such benefit of doubt should have been extended to the appellant but the learned trial Court in utter disregard of well-settled proposition of law granted premium to the prosecution.
Repelling the arguments, the learned Deputy Prosecutor General submitted that story narrated by the prosecution is simple, straight and worthy of credit, fully established by the statements of the witnesses (PW.8, PW.9) having no bias or malice against the appellant. Argued that ocular account finds full support from the motive duly established and medical evidence. Contended that since deceased and appellant were living under the same roof, when she died, therefore, it was the duty of the appellant to substantiate his contention regarding her accidental death but nothing was produced.
8. Ocular account led by prosecution consists of the statement of Mushtaq Ahmad, complainant (PW.8) and Muhammad Afzal (PW.9).
The complainant, while appearing as PW.8, deposed that on 12.08.2004, he alongwith his father, Amjad Hussain and mother, Mst. Khurshid Bibi went to the house of appellant to see his sister, wife of the appellant and on the following day when they were about to leave, the appellant started quarrel with them and made demand of Rs,70,000/- lent by him to one Muhammad Ilyas, his village fellow. Stated that appellant took out pistol, brought gallon of kerosene oil from the kitchen, threw it upon Mst. Robina and put her on fire. Further disclosed that after that appellant while extending threats fled away. According to the complainant, Mst. Robina died after seven days.
Deposed that relatives of the appellant requested for compromise and as such they did not take Mst Robina and left her there.
Muhammad Afzal (PW.9) deposed the facts on similar lines.
9. Scanning of the evidence of both the witnesses cast serious doubts about the veracity of prosecution version. Delay in lodging FIR by itself is a strong circumstance, which goes against the prosecution, sufficient to demolish the superstructure of the case of the prosecution. Occurrence took place on 13.8.2004 and that too in the presence of complainant (PW.8) who reported the matter to the police on 01.01.2005. Though attempt was made by the complainant to justify delay by suggesting that relatives of the complainant made request for compromise but even after death, occurred, seven days of the occurrence omission to report the matter to the police is not understandable.
10. Application (Ex.DA) for exhumation of dead body was made by the complainant on 24.8.2004.
Postmortem was conducted by medical board on 08.9.2004 but even then, complainant for the reasons best known to him remained in slumber for next three months and reported the matter to the police on 01.01.2005. Conduct of the complainant undeniably does not appeal to the reason.
11. Though the complainant (PW.8) and Muhammad Afzal (PW.9) maintained that they witnessed the occurrence but in view of replies given in cross-examination, their presence at the spot is under serious cloud.
The complainant in cross-examination stated that after two-three hours of occurrence, they left the house of his sister for his village and even: after their departure they did not inquire about the health of deceased though real sister. There is also frank admission on the part of the complainant that he as well his father did not make any attempt to take deceased in injured condition to the hospital. Real sister sustained bum injuries in the presence of parents and real brother but they did not bother to take the injured in the hospital, throwing her at the mercy of relatives of the appellant, admittedly having no blood relations with the deceased. Inaction on the part of the complainant speaks loudly that the occurrence did not happen in the manner, style and fashion deposed by the complainant (PW.8) and Muhammad Afzal (PW.9).
12. Presence of Muhammad Afzal (PW.9), at the spot alongwith the complainant also does not appeal to the reason. He is resident of Chak No, 72-SB while complainant is residing in Chak No, 75- SB. Complainant as per saying of the witness (PW.9) is maternal cousin of his wife. Relationship between the witnesses is remote and as such his visit with complainant and his parents as par prosecution version in the absence of justified reasons is neither natural nor probable.
13. Even otherwise, the complainant introduced two versions. One in the crime Report and second in the application (Ex.DA) for exhumation of dead body in which his statement was recorded by the learned Judicial Magistrate (PW.12), copy of which is Ex.DB. Perusal of the contents of the application (Ex.DA), categorically contradicts the version of the complainant regarding witnessing the occurrence as stated in the FIR and in his examination-in-chief. In para-6 of the application, it is stated that on 20.8.2004 they got information about the death of his sister. He made statement on similar lines before the learned Special /I Judicial Magistrate, copy of which is Ex.DB. He was confronted with his statement (Ex.PB) but made attempt to suggest that in the said statement, he disclosed the factum of witnessing the occurrence though not written. Dis-honest and conscious improvement was made by the complainant and as such no implicit reliance can be placed upon his statement on this score alone. Reliance is placed upon "Akhtar Ali and others u. The State" (2008 SCM R 6) and 'Muhammad Rafique and others v. The State and others" (2010 SCM R 385).
14. Motive alleged and deposed is also sketchy and weak, which does not appeal to the reason to commit murder. It is not understandable why the appellant will show reaction against the deceased having no concern with the episode.
15. Evidence led by the prosecution as such is shakey, not worthy of credit, lack of confidence inspiring and as such prosecution failed to prove its case against the appellant beyond shadow of doubt.
16. In order to extend benefit of doubt, there must not be so many circumstances and a single circumstance casting reasonable doubt would be sufficient to record acquittal not as a matter of grace and concession but as a matter of right as held in "Tariq Pervez v. The State" (1995 SCM R 1345), "Faheem Ahmed Farooqui v. The State" (2008 SCM R 1572) and Allah Bachaya and another v.
The State" (PLD 2008 Supreme Court 349).
17. In view of above state of law and facts, while extending benefit of doubt, setting aside the judgment assailed, appeal preferred by the appellant is accepted, resulting in his acquittal who be released forthwith if not required in any other case.