' RAJA SHAHID MEHMOOD ABBASI, J.---The appellant Habib-ur-Rehman was tried by the learned Additional Sessions Judge, Pind Dadan Khan, District Jhelum, in case FIR No, 165 dated 16.07.2008 under section 302/109, P.P.C., registered at P.S. Find Dadan Khan District Jhelum. The learned trial court vide judgment dated 04-01-2010, convicted the appellant under Section 302(b), P.P.C. And sentenced him to death as Tazir, for the murder of Mst. Munawaran Bibi (deceased) and held him liable to pay compensation of Rs,2,00,000/- under section 544-A, Cr.P.C. To the legal heirs of deceased or in default whereof to further undergo six months' S.I. The appellant has filed Crl.
Appeal No,154 of 2010 against his conviction and sentence whereas the learned trial Court has sent a reference (M.R.No,99 of 2010) under section 374, Cr.P.C. For the confirmation of death sentence of Habib-ur-Rehman appellant or otherwise. The complainant has filed CrI.Rev.No,29 of 2010 for enhancement of amount of compensation. We propose to dispose of all these matters by this single judgment.
2. Occurrence in this case took place on 15-07-2008 at about 11.00 AM within the revenue estate of Khotian, Daryala Jalab situated at a distance of 15 kms from the Police Station Pind Dadan Khan, District Jhelum. It was reported by Muttali Khan son of Channan Din real father of deceased PW.12 through complaint Ex. P. H.
3. The prosecution case as unfolded in the FIR (Ex.PH) by Muttali Khan is that he is resident of Chak Jani and labourer by profession; he has three sons and four daughters; his younger daughter Mst.
Munawaran Bibi was married with Habib ur Rehman, appellant and from their wedlock one son and two daughters were born. The appellant was suspecting the character of his wife and due to this reason he used to punish her. Six months prior to the occurrence, appellant strangulated his wife and threw her considering as dead. Due to which strained relations cropped up between them. For some days, Habib ur Rehman and Nazir Ahmad used to quarrel with his daughter, who complained him on cell phone several times and the complainant directed his daughter to remain patient. On the fateful day, at about 7.30 a.m., he along with his son Muhammad Azam PW went to see his daughter. When they reached in the house of his daughter, they saw that his daughter was lying in the pool of blood, in the courtyard, His daughter Mst. Munawaran Bibi has been murdered by Habib ur Rehman with the conspiracy of his brother Nazir Ahmad with dagger. The report under Section 173, Cr.P.C. Was sent before the Court against the appellant Habib ur Rehman and Muhammad Nazir. During the pendency of the trial Muhammad Nazir accused was murdered on 30-09-2009.
4. Charge was framed against the appellant/accused under Section 302, P.P.C. Read with 109, P.P.C.
On 13-03-2009 to which he pleaded not guilty and claimed trial.
5. The prosecution ventured to produce as many as fourteen witnesses to bring home guilt of the accused. Mutalli Khan PW.12 is the complainant of the case. Muhammad Afzal PW.7 furnished the evidence of Waj Takkar. Mukhtar Ahmad PW.8 is the witness of conspiracy between the accused.
Muhammad Nazeer PW6 is recovery witness of crime weapon at the instance of appellant.
6. On 16-07-2008, Doctor Robina Kauser PW.11, conducted postmortem examination on the dead body of the deceased Munawaran Bibi and found the following injuries:- "1. Present on the anterior surface of chest between both breasts. Clotted blood around the wound was present. Size of wound was 1 1/2 x 1 cm. Margins inverted.
2 Injury present just below the right Side of zixisternum. Margins were also inverted and size 1 1/2 x 1 cm. Clotted blood was present around the wounds.
3. With inverted margins was present on left side of chest just below left axilla. Clotted blood present around the wound.
4. Injury present on dorsal surface of right hand. Margins inverted and clotted blood was present around the wound and bones underlying the wound were expressed.
' In her opinion injury No,1 causes were hemorrhage, so death occurred due to damage of liver which resulted in sever hemorrhage. This injury was anti mortem and due to sharp edge weapon.
Other three injures are also anti-mortem and caused by sharp edged weapon.
' Time between injury and death was within half an hour and between death and postmortem within twelve hours. Ex.PF is the exact carbon copy of her post mortem report which is written in her hand and bears his signature. The diaphragm Ex.PF/1 is also in her hand and bears her signature.
Inquest report Ex.Pg and application for post mortem Ex.PG/1 also bears her signature.
7. Gul Zaman, SI PW.14 is the Investigating Officer of this case. Akhtar Nakash, Draftsman PW.13, prepared scaled site plan Ex.PJ. Whereas, rest of the prosecution witnesses are formal in nature.
8. The prosecution gave up Rana Mushtaq, ASI, Muhammad Ashraf, Muhammad Akram, Zafar Iqbal, Muhammad Aslam and Tariq Mehmood being unnecessary and after tendering in evidence the report of Serologist Ex.PN closed its evidence.
9. The appellant/accused was examined under Section 342, Cr.P.C. Wherein he pleaded not guilty and professed his innocence. To a question as to "why this case is against you and why the PWs have deposed against you", Habib ur Rehman, accused has stated as under:-- "He has been falsely implicated in this case at the connivance and instance of Muhammad Mumtaz etc. With the complainant as there was a land dispute existing between them and.
Mumtaz etc."
' The accused did not opt to appear as his own witness under section 340(2), Cr.P.C., however, he produced Bashir Ahmad DW.1 as defence witness in his favour.
10. The learned trial Court having heard the learned counsel for the parties passed the above said conviction and sentences, which is being impugned herein.
11. It has been argued by learned counsel for the appellant that the impugned judgment is against the law and facts; that there is no direct evidence against the appellant; that the prosecution case is based on circumstantial evidence in the shape of Waj Takkar brought on surface at belated stage; that PW-7 is the witness of Waj Takkar, while PW-8 is the witness of hatching conspiracy on the night of occurrence but both remained mum for seven days despite residents of same village; that Mutali Khan PW-12 is not the eye-witness of the occurrence; that the recovery of the Chhuri is planted one and did not corroborge the prosecution case; that the medical evidence contradicts the prosecution story; that the prosecution story is pregnant with doubts; that the PWs are interested and inimical to the appellant and in this way prosecution failed to bring home guilt of the appellant. Lastly, prays for acquittal.
12. On the other hand the learned ADPP assisted by the learned counsel for the complainant supported the impugned judgment, controverted the arguments of learned counsel for the appellant with vehemence and submitted that substitution is a rear phenomenon and the relative of the deceased cannot let free the actual culprit; that the PWs have no malice or against the appellant and their statements are straightforward and confidence inspiring; further submitted that plea of alibi taken by the appellant/accused was not substantiated during his statement under Section 342 Cr.P.C.; that the recovery of blood stained Chhuri on the pointation of the accused connects him with the commission of the offence.
13. Heard and perused the record.
14. We have noticed that in the instant case there is no direct evidence available with the prosecution to prove its case against the appellant and it has relied upon the circumstantial evidence which is in the shape of Waj Takkar furnished by PW.7 Muhammad Afzal, evidence of conspiracy furnished by Mukhtar Ahmad PW.8, evidence of motive furnished by complainant Muttali PW.12 (father of the deceased) and the evidence of recovery of Churri P6 at the instance of the appellant furnished by Muhammad Latif PW.6. So far as evidence of Waj Takkar is concerned, we have noticed that PW.7 Muhammad Afzal is related to the complainant as well as appellant and is inimical towards the appellant for the dispute with the brother-in-law (Bhenoee) of the appellant. The statement of this witness has been recorded with inordinate delay of seven days without any explanation on the part of the prosecution. Moreover, this witness has made crude and dishonest improvements in order to cover up the delay and bring the case in line with the prosecution version, which were duly confronted with at trial. Furthermore, according to this witness he came to know about the murder of Mst Munawaran Bibi at about 6.30 am on 16-07-2008 upon which he reached the place of occurrence and saw the police coming at the house of Habib at 7.45 am. According to the prosecution's own case complainant PW.12 was present at the place of occurrence at 7.30 am but the fact of seeing the accused with the brass base while coming out from his house i,e, place of occurrence, was not imparted to complainant by PW.7 Muhammad Afzal nor the same is mentioned in the FIR, had this witness seen as deposed this fact should have been disclosed to the complainant, then and there, withholding such statement clearly indicates that witness is not truthful and he is supporting the afterthought, fabricated and concocted story meant to A create incriminating evidence to strengthen the case of an un-witnessed occurrence against the appellant, therefore, we have no hesitation in holding that the evidence furnished by PW.7 does not inspire confidence and cannot be relied upon.
15. The next link of prosecution evidence is of hatching conspiracy between Naseer Ahmad accused (since dead) and the appellant furnished by Mukhtar Ahmad PW.8. We observed that said witness is not only closely related to the complainant as well as daughter of his Chacha is married with Imtiaz, (husband of his sister) of PW.7 Muhammad Afzal. The statement of said Muhammad Afzal PW.7 was recorded after unexplained delay of seven days and he remained mum despite having overheard the conversation of the appellant and Nazeer Ahmad, accused (since dead) on 15-07-2008 at 7/7.30 pm, while they were hatching conspiracy for the murder of Mst. Munawaran (wife of appellant, Habibur-Rehman) but he remained mum till 22-07-2008 when his statement was first time recorded on 22-07-2008 by Gul Zaman, SI, PW.14. The evidence of this witness is not worthy of any credence, neither inspires confidence nor is appealable to a prudent mind that conspiracy of murder would be hatched at a public place. Even otherwise, the evidence of an EAVE DROPPER is to be scrutinized with great care and caution. The occurrence admittedly took place in village Khotian and this PW is also resident of same village. It is also in his statement that on the very night of the occurrence he went to the house of Muhammad Imtiaz but during cross- examination, he was confronted with the statement under section 161, Cr.P.C. Ex.DA where said fact is not so recorded. The said witness tried to explain the delay of recording the statement by stating in examination-in-chief that thrice on different dates, he appeared before the I.O, who did not record his statement and consequently, the complainant appeared before the DSP and thereafter the statement was recorded. During cross-examination, he stated that he informed the I.O. while recording his statement on 22-07-2008 that they approached to DSP for recording of statement but the same was not recorded in Ex.DA. Moreover, the statements of PW.7 and PW.8 are not corroborated by the complainant while appearing as PW.12 in his examination-in-chief regarding non recording of their statements by the I.O. And thereafter appeared in the company of witness before the DSP. PW.8 admitted that he has not seen the house of Muhammad Ashraf from inside and did not see Ashraf on that day, therefore, he was not certain whether appellant was available in the Bhaitak or not. During the statement PW.8 has also stated that in consequence of the murder the appellant and his co-accused will get possession of the land which has been forcibly occupied by Imtiaz. It is very strange that when Imtiaz had no concern with said murder then how in consequence of murder the appellant could have succeeded in getting the possession of this land.
The statement of this PW has also broken the chain of circumstances against the appellant and we have no hesitation to discard this piece of evidence also.
16. Next piece of evidence against the appellant stressed by learned A.D.P.P. Is the recovery of churri (P6) from the house of the appellant, which was made into sealed parcel vide recovery memo Ex.PD in the presence of Muhammad Latif PW.6. The witness of recovery is admittedly the son-in- law of the complainant and from the perusal of recovery memo Ex.PD it transpires that recovered churri P6 was not blood stained. It is admitted by said PW-6 that the room and Almirah from where the appellant got recovered churri P6 was not locked and three children were available in the courtyard of the house. The recovery of churri P6 is not believable as the occurrence took place on 15-07-2008 and said churri P6 remained lying open in an unlocked Almirah and an unlocked room.
The blood present on the churri P6 has not matched with the blood of the deceased. Therefore, such recovery from the house which is not in exclusive possession of the accused, is inconsequential.
17. So far as the statement of PW.12 Muttali Khan Complainant of the case, is concerned, he is not an eye-witness of the occurrence and on the basis of his statement, the FIR was registered and the law was set into motion. The said witness stated that about six months prior to the occurrence Habib-ur-Rehman appellant was suspecting the character of his daughter and he strangulated his daughter but luckily she survived. Said witness also deposed about quarrel took place between the appellant and his deceased daughter but during cross-examination he stated that he did not report the matter of strangulation to the police. He had not got her daughter medically examined at the time of alleged strangulation. He did not report any quarrel to the police. The evidence of the witness regarding quarreling or strangulation is not corroborated by any other independent witness and his evidence is not inspiring confidence and trustworthy.
18. Above facts lead us to hold that the sketchy and shaky evidence produced by the prosecution to connect the appellant with the alleged offence of murder of deceased Mst. Munawaran Bibi is not free from doubt being improbable and untrustworthy.
19. As discussed above, there is no direct evidence in this case against the appellant and the prosecution case hinges on circumstantial evidence. In such like cases the chain of evidence should be in a geometrical progression touching from one side to the dead body whereas from the other side it should touch to the neck of the accused in the shape of motive, medical evidence, Waj Takkar, recovery of weapon of offence. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and the entire structure of the case crumbles down to the ground. In this regard guidance has been sought from the judgment of Apex Court of the country in case of ""Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103) relevant extract from the judgment is reproduced as under:- "7 ...Needless to emphasize that all the pieces of evidence should be so link that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain"
' Same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Imran alias Dholi and another v. The State "(2015 SCM R 155), wherein, at page 164, it was held that:-- "5... By now, it is a consistent view that when any case rest entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and other end touches the- dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge..."
20. By now, it is a consistent view that it is not necessary that there should be a number of circumstances creating doubt but a single circumstance creates reasonable doubt. When reasonable doubt is created by a single circumstance about guilt of the accused he would be entitled to such benefit not as a matter of grace and concession but as a matter of right. In the case in hand, we have found more than one instances that have shattered the case of prosecution and so benefit thereof must go to the appellant.
' Reliance is placed on "Tariq Pervaiz v. The State" (1995 SCM R 1345), "Riaz Masih alias Mitho v. The State" (1995 SCM R 1730) and "Muhammad Saeed alias Rashid alias Sheda and another v. The State"
(2008 PCr.LJ 1752).
21. The nutshell of the above discussion is that we allow Criminal Appeal No, 154 of 2010 filed by Habib ur Rehman (appellant), set aside his conviction and sentence recorded by the trial Court and acquit him of the charge by extending the benefit of doubt; he is in custody, be released forthwith if not required in any other case.
22. In view of acquittal of appellant from the charge, Criminal Revision No, 29 of 2010 is accordingly dismissed.
' Murder Reference No, 99 of 2010 is answered in negative and the sentence of Habib-ur-Rehman (appellant) is not confirmed.