Ch. Abdul Aziz, J. Peeru Ram (appellant) had allegedly murdered his wife named Kammo Mai on 08.04.2013 in his house situated in Chak No.61/DB in the area of Police Station Yazman. For committing the said offence, appellant was booked in case FIR No.82/2013 registered at the said Police Station on the same day for an offence under section 302 PPC. After trial, Peeru Ram (appellant) was convicted by learned Additional Sessions Judge, Yazman, District Bahawalpur on 31.05.2014 and was sentenced in the following terms:- "Under section 302 (b) PPC: awarded death sentence. He was also directed to pay compensation of Rs.500,000/- to the legal heirs of deceased and in default thereof to undergo SI for six months".
Challenging his conviction and sentence, Peeru Ram (appellant) filed Criminal Appeal No.275 of 2014. On the other hand, the trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.29 of 2014 for the confirmation or otherwise of death sentence awarded to Peeru Ram (convict). Both these matters are being disposed of through this single judgment.
2. Briefly stated the story of the prosecution as unveiled by complainant Markas Ram (PW.1) in FIR (Exh.PB) is to the effect that Kammo Mai (deceased) was married with Peeru Ram (appellant) way back in August, 2006; that Kammo Mai (deceased) along with Peeru Ram, came to the house of her parents situated in Chak No.18/DNB on 06.04.2010 to attend marriage function of her brother, namely, Ajmal Ram; that the marriage function was over on 07.04.2013 and thereafter Peeru Ram (appellant) asked the deceased to accompany him back to their house; that Markas Ram (PW.1) asked the couple to spend another day in his house; the said request was acceded to by Kammo Mai (deceased), however, Peeru Ram (appellant) expressed his resentment over the decision and took her to his house situated in Chak No.61/DB; on the next morning, Markas Ram (PW.1) received a call from his deceased sister, whereby she voiced her apprehension of murder from Peeru Ram and further complained about the receipt of beating; that on the receipt of such information, Markas Ram (PW.1) along with his brother Amarya Ram (PW.2) and brother in law Beeba Ram (PW.3) arrived at the house of ill-fated couple at about 9:00 a.m. and witnessed Peeru Ram while inflicting successive blows to deceased through handle of hatchets, due to which she fell on a ground and subsequently was strangulated to death by him through a rope; that on an attempt of witnesses to apprehend Peeru Ram, he made good his escape from the crime scene while brandishing his hatchet.
3. The law was set into motion on the application (Exh.P A) of Markas Ram (complainant) presented before Sajjad Hussain SI (PW.9) during his visit to the crime scene. Subsequent thereto he examined the dead body of Kamoon Mai (deceased), prepared injury statement and inquest report (Exh.PH & Exh.PJ). From the spot, he secured rope (P.1) which was taken into possession vide memo Exh.PC. He sent the application (Exh.PA) to the Police Station through Muhammad Imran Razakar for the registration of formal FIR (Exh.PB). He also dispatched the dead body of Kamoon Mai to the hospital for the post-mortem examination through Rashid Bashir Constable. Sajjad Hussain SI (PW.9) arrested Peeru Ram on 25.04.2013, who on 29.04.2013 made a disclosure and in pursuance thereof led to the recovery of hatchet (P.2) which was taken into possession vide memo Exh.PD. On 30.04.2013, he got prepared scaled site plan through Saeed Akhtar Sub-Engineer. He recorded the statements of witnesses under section 161, Cr.P.C. and thereafter delivered the file to SHO for the preparation of report under section 173, Cr.P.C.
4. Prosecution in order to prove its case against the appellant produced nine PWs including Markas Ram (PW.1), Amarya Ram (PW.2), Beeba Ram (PW.3), who are eye-witnesses of the occurrence, Dr.Bushra Tariq (PW.6) who furnished medical evidence and Sajjad Hussain SI (PW.9) who is Investigating Officer of the case. The remaining witnesses, more or less, were formal in nature.
5. Dr. Bushra Tariq (PW.6) on 08.04.2013 at 2:30 p.m. conducted the post-mortem examination of Kamoon Mai (deceased) and observed the following injuries:- "1. A scratch 1 x 1 cm on left side of forehead.
2. A bruise of reddish colour 3 x 3 cm on back of left ear .
3. A ligature mark horizontal 15 cm x 1 cm encircling front of neck extending from right side of neck to left side of neck. Mark is of reddish blue colour . Ligature mark is absent at back.
4. A scratch 2 x 2 cm on posterior aspect of right elbow joint.
5. An abrasion 3 x 2 cm on upper medial aspect of right forearm.
6. A bruise of reddish blue colour 4 x 3 cm on top of left shoulder .
7. Three bruises of reddish blue colour 6 x 3 cm on antero lateral aspect of left thigh.
8. A bruise 2 x 1 cm on right side of back of abdomen. Bruise is of reddish blue colour .
She gave the following opinion:- "On careful external and internal post mortem examination, I am of the opinion that death occurred due to asphyxia which is due to blockage of air passages as neck. I have collected the hyoid bone, sealed and sent to Histopathologist Government of Punjab Lahore for any microscopist ante-mortem and post mortem injury . All injuries on dead body are by blunt weapon and are ante-mortem in nature. Post mortem examination report Exh.PB is computerized copy which bears my signature. Exh.PB/1 is pictorial diagram which also bears my signature."
6. After the conclusion of prosecution evidence, the learned trial court examined the appellant under section 342, Cr.P.C. who in response to question "why this case against you and why the PWs have deposed against you" made the following reply:- "I am innocent. I have falsely been involved in this case by the complainant party . In fact, Atam Ram son of Mansha Ram is brother-in-law of complainant. Kamoon Mai had illicit relations with Atam Ram. Kamoon Mai was caught hold of in objectionable condition with Atam Ram on the day of marriage of Ajmal Ram, complainant party felt it ashamed in the presence of their brotheri. Her father stopped her visits to his house due to her above said illicit relations with Atam Ram. Kamoon Mai stated to her father that now he would come to her house within one or two days. Kamoon Mai was not murdered by any one, she committed suicide by strangulation. Beerki Mai wife of Asu Ram untied the knot of Kamoon Mai, when she was hanging. Kamoon Mai received injuries when Beerki Mai untying her knot, the dead body was fallen on the grass-pot (Khurli) and injuries came on the dead body of Kamoon Mai, Balam Ram informed me through his cell No.0346-71561`58, when I was present at the daira of Khalid Waraich at Chak No.62/DB on his cell No.0343-7029823. The complainant came to my house on my information.
The complainant concocted false story just to falsely involve me in this case.
The PWs are close relative of the complainant and PWs are resident of 11 K.M away from the place of occurrence, therefore, they deposed against me on the asking of complainant".
The appellant neither opted to make statement under section 340 (2) of Cr.P.C. nor produced any witness in his defence. On the conclusion of trial, the appellant was convicted and sentenced as mentioned above, hence, the instant appeal and murder reference.
7. It is contended by the learned counse l that the instant case is arising out of a crime report which though was apparently registered within three hours of the occurrence, however , the perusal of record reflects that it was registered much thereafter; that the eye-witnesses, contradicted each other regarding the manner in which information of occurrence was conveyed to police; that the eye-witnesses of the occurrence, were residents of a place situated at a distance of about 30-32 kilometers from the crime scene and miserably failed to justify their presence at the eventful time; that this aspect makes them as chance witnesses and on this score alone their evidence is liable to be discarded; that the absence of eye witnesses from the crime scene is further evident from their response which they demonstrated at the time of occurrence by not making any effort to save the life of Kammo Mai deceased; that had the witnesses been present at place of occurrence, they would have restrained the appellant from strangulating the deceased to death or at least should have raised some hue and cry to attract the people of vicinity for an intervention; that the appellant came forward with the spec ific stance that deceased died a suicidal death; that such defence of the appellant is strongly supported by position of ligature mark on the neck of deceased; that though a reasonable doubt emerges from the plain recital of prosecution case, however , its benefit was not extended to appellant which is contrary to the basic principle of Criminal Jurisprudence. With these submissions, it was urged by the learned counsel that conviction awarded to the appellant is not maintainable.
8. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant strongly controverted the arguments advanced on behalf of appellant and submitted that instant case is arising out of a promptly lodged First Information Report; that appellant is the only person nominated therein for having committed the murder of deceased; that the eye witnesses not only explained their presence at the crime scene beyond any shadow of doubt but they also provided all the necessary details of the occurrence; that the narration of occurrence put forth by the witnesses is strongly supported by the medical evidence; that as per admitted facts, none of the eye-witnesses had any grudge or animos ity against the appellant so as to falsely implicate him in the commission of crime; that though the appellant came forward with the plea that deceased committed suicide, however , miserably failed to substantiate it and that since the guilt of appellant is well established from the prosecution evidence, hence, the conviction awarded to him needs no interference from this Court.
9. Arguments heard. Record perused.
10. A wade through the record reveals that the case in hand pertains to the death of Kammo Mai (deceased) who took last breath in the house of her husband, Peeru Raam, situated in Chak No.6 1/DB. According to the detail of events mentioned in the crime report (Exh.PB), Kammo Mai (deceased) was married with Peeru Ram (appellant) way back in August, 2006. Kammo Mai (deceased) along with Peeru Raam, came to the house of her parents situated in Chak No.18/DNB on 06.04.2010 to attend marriage function of her brother , namely , Ajmal Ram. The marriage function was over on 07.04.2013 and thereafter Peeru Ram (appellant) asked the deceased to accompany him back to their house. However , Markas Ram (PW.1) asked the couple to spend another day in his house. Such request was acceded to by Kammo Mai (deceased), however , Peeru Ram (appellant) expressed his resentment over the decision and took her to his house situated in Chak No.61/DB. On the following morning, Markas Ram (PW.1) received a call from his deceased sister , whereby she voiced her apprehension of murder from Peeru Ram and further complained about the receipt of beating. On the receipt of such information, Markas Ram (PW.1) along with his brother Amarya Ram (PW.2) and brother in law Beeba Ram (PW.3) arrived at the house of ill-fated couple at about 9:00 a.m. Upon their arrival, the three persons witnes sed Peeru Ram while inflicting successive blows to deceased through handle of hatchets, due to which she fell on a ground. Immediately thereafter , the deceased was strangulated to death by the appellant through a rope. On an attempt of witnesses to apprehend Peeru Raam, he made good his escape from the crime scene while brandishing his hatchet.
11. The wheel of law regarding this occurrence was set in motion through written application (Exh.P A) of Markas Ram (PW.1), presented before Sajjad Hussain SI (PW.9) during his visit to the crime scene at about 11:30 a.m. which later formed basis of crime report No.882/13 (Exh.PB) registered at about 6:05 p.m.
Though from above, it insinuates that the case is arising out of First Information Report, registered with all promptitude, however , an in-depth analysis of the record reveals otherwise. It is observed by us that the scene of crime was situated at a distance of 9-kilometer from Police Station Yazman and the complaint (Exh.P A) was forwarded to Police Station through Imran PQR who was not produced during trial. It needs no mention that the prompt registration of FIR in a criminal case is an important feature and is to be proved by prosecution and that too by leading some evidence. From such omission, we are left with no other option but to draw an inference in consonance with Article 129 Illustration (g) of Qanun e-Shahadat Order, 1984 that had Imran been produced as witness, he would not have supported the case of prosecution. It is also noticed by us that the three eye- witnesses stated consistently that the information of occurrence was conveyed to police by Beeba Ram in the Police Station and thereafter Police arrived at the crime scene. However, Sajjad Hussain SI (PW.9) stated during cross-examination regarding the receipt of information in question through a telephonic call of Moharrar. Swayed by these features, we are constrained to hold that claim of prosecution regarding prompt registration of FIR is not free from doubts.
12. In the above backdrop, we have made a meticulous analysis of the ocular account from which it is borne out that all the three eye-witnesses were residents of a vicinity known as Chak No.18/DNB, whereas the murder incident occurred in the house of appellant situated in Chak No.61/DB. The intervening distance between the two places was described by the Investigating Officer of the case, namely , Sajjad Hussain SI (PW.9) as 30/32 kilometers. For advantage sake an extract from his cross-examination is being reproduced below:- "It is correct that all the PWs of this case except Mansha Ram were resident of Chak No.18/DNB. There is distance of 30/32 K.M. between Chak No.18/DNB and Chak No.61/DB. "
From the above feature it reasonably spells out that as per their daily routine, the eye-witnesses should not have been present at the crime scene. Keeping in view the fact that just two days before the occurrence, marriage ceremony of Ajmal Raam brother of Markas Ram and Amarya Ram (PW.1 & PW.2) and brother in law of Beeba Ram (PW.3) took place, hence, it appears more improbable for them to be present at the eventful place. This aspect goes long way in making all the afore-mentioned three persons as chance witnesses. We are not oblivious of the fact that evidence of such witness is not to be brushed aside straightway and instead it can be given legal credence if such person reasonably explains and justifies his presence at the crime scene during occurrence.
Likewise, the testimony of such a witness, as an abundant caution, is to be scrutinized on the touchstone of corroboration. Reliance in this respect can be made on the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon'ble Supreme Court of Pakistan while dealing with a case of chance witness observed as under:- "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt".
In order to justify their presence at the crime scene, the eye witnesses came forward with the stance that in the earlier hours of the day, Markas Ram (PW.1) received a telephonic message from Kammo Mai (deceased), whereby she complained about a maltrea tment in the form of physical torture and apprehension of her death from the hands of Peeru Ram (appellant). At the very outset, it is noticed from a peep through the prosecution evidence that the call was received at about 8:00 a.m. whereas the witnesses made it to the crime spot at about 9:00 a.m. on their bicycles. Keeping in view the intervening distance between the place of abode of witnesses and the house of deceased as 30/32 Kilometers, it does not appear to be even a remotely possible to make it and that too on the saddles of cycles. On their arrival at the spot, the witnesses saw Peeru Ram (appellant) while inflicting blows to deceased through the handle of hatchets. According to them, Kammo Mai after receiving successive blows fell on the ground and immediately thereafter was strangulated to death through a rope by Peeru Raam. It further evinces from the ocular account that the aggression of appellant lasted about one/two minutes, however, none of the three eye-witnesses made any serious effort to intervene for saving Kammo Mai (deceased) from the deadly clutches of appellant. In our considered view, the conduct demonstrated by the witnesses in no manner befits with natural human response to such an occurrence, where a lady having same blood line was being done to death.
Such response suggests nothing but the absence of eye witnesses from the eventful place. In order to justify their non interference, the witnesses stated to opt silence due to fear of hatchet in the hand of appellant. Such explanation besides being lame in nature is preposterous as well, since it was improbable for appellant to hold two corners of rope and hatchet at same time and then to strangulate the deceased.
13. We have not been able to form a consensus with the theory of crime advanced by prosecution whereby the appellant resorted to extreme step of taking the life of deceased only when the PWs arrived at the place of homicide. Their entry into the house at the thick of moments and peek of aggression is giving rise to many questions adverse to the case of prosecution as this is not understandable as to why the appellant dispensed the strangulation of deceased till the arrival of PWs. Needless to mention here that such narration of facts is always looked with suspicion. In this respect, reference can be made to the case of Irshad Ahmed v. The State (2011 SCMR 1 190) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "We have found it to be quite strange that if the appellant had to murder the deceased then he did not have to wait for arrival of the said witnesses for starting infliction of injuries upon the deceased. It is also noticeable that despite their claimed presence at the scene of crime at the relevant time the said eye witnesses had not tried to stop the appellant from inflicting injuries upon the deceased especially when the appellant was not armed with any firearm to ward the said eye-witnesses off or to keep them away."
14. We have noticed another aspect which without an exaggeration can be termed as final nail in the coffin of prosecution case. It divulges from the picture canvassed by the eye-witnesses that at the eventful time Peeru Ram (appellant) was all set to slay Kammo Mai. If it was so, the question arises as to what precluded the appellant to achieve his designs through the hatchet blows which was in his hand.
15. A review of medical evidence reveals that autopsy was conducted by Dr. Bushra Tariq (PW.6) on 08.04.2013 at about 2:30 p.m. Though the intervening duration between death and post mortem was 5-1/2 hours, however, it was described by PW.6 in post-mortem report (Exh.PG) as within 24-hours which does not coincide with prosecution case. This anomaly when seen in the context of the defence plea of appellant, according to which Kammo Mai (deceased) died suicidal death, gives rise to a convincing doubt. It is also observed that during post-mortem examination, a ligature mark was noted by the doctor around the neck of deceased. However, a close look of the medical evidence unveils that the ligature mark was absent at the back of neck. Likewise, it further emerges from the testimony of Dr. Bushra Tariq (PW.6) that the hyoid bone of the deceased was found not fractured. According to the prosecution case, the deceased died homicidal death, whereas the appellant came forward with the stance that it was suicidal in nature. We consider it to be in fitness of things to embark upon this issue in depth as it is essential to decide the truth of two theories regarding the death of deceased. In our considered view, which is formed after going through the medical jurisprudence and other material, the ill- fated lady became victim of suicidal death. According to the view of Dr. S. Siddiq expressed in A Text Book of Forensic Medicine and Toxicology, the difference between suicidal and homicidal death by strangulation through rope lies in the nature of ligature mark and the fracture of hyoid bone. It is found mentioned in the afore mentioned book of Medical Jurisprudence that ligature in suicidal death is mostly oblique in nature and fracture of hyoid bone is very rare. Similar view was expressed by C.K. Parikh in his book Parikh's Textbook of Medical Jurisprudence and Toxicology. While drawing a distinguishing line between death by hanging and death through strangulation, Dr. Parikh observed that in former kind of death, the ligature is found in position above hyoid cartilage, mark incomplete, directed obliquely upward with the gap indicating position of the knot and with no damage to the skin in the gap. He further opined that fracture of hyoid is very rare in death by hanging.
The fracture of hyoid bone always remained under debate for differentiating the cases of homicidal and suicidal death through strangulation. In a research paper published in J. Indian Acad Forensic Med. Jul-September 2013, Vol.35, No.3 for Study of Fracture of Hyoid Bone in Hanging Cases , on the basis of data collected from different hospitals during a period comme ncing from 2009 to 2012 it was concluded by Abhishek Yadev et al, that fracture of hyoid bone is a rare phenomen on in cases of death by hanging. We are also mindful of the fact that 6/7 injuries other than the ligature mark on the neck were observed by the doctor during autopsy on the body of deceased. These injuries are in the nature of bruises, abrasion and a scratch. In our view, probably , the deceased was maltreated and beaten by the appellant which led to the frustration and decision to commit suicide. From above discussion, we are persuaded to hold that the prosecution cannot seek refuge under the shelter of medical evidence as it runs contrary to it.
16. The superstructure of Criminal Jurisp rudence rests on the theory that if any legitimate benefit arises out of a case, the accused cannot be deprived of it. While following the afore-mentioned principle we have observed that there are two interpretations possible from the record i.e. either the death of deceased is suicidal or homicidal and according to aged old principle the one which favours the accused is to be followed . Same view was expressed by the Hon'ble Apex Court of the Country , the supreme forum to interpret law, in case reported as Qurban Hussain alias Ashiq v . The State (2010 SCMR 1592 ) which for the purposes of guidance is reproduced as under:- ".....it is settled that the interpretation or theory favourable to the accused is to be accepted. Reference is invited to Wali Muhammad v. Nawab and others (1984 SCMR 914), Kazi Abdul Jamil and others v. The State (PLD 1958 SC (Pak.) 12 )".
If any further reference on the subject is required, it can be made to the case of Muhammad Shah and another v.
State and others (PLJ 2011 Supreme Court 348). While following the afore-mentioned thumb rule laid down arising out of Criminal Jurisprudence, we are persuaded to hold that theory of crime put forth by the defence appears to be more probable and favours the accused, hence, merits acceptance.
17. In accordance with our findings, mentioned above, we are inclined to lean in favour of appellant and to acquit him from the charge by declaring him entitled to get the benefit of doubt emerging from the record. Consequently , we accept Criminal Appeal No.275 of 2014 and while setting aside the conviction and sentence of Peeru Ram (appellant), acquit him of the charge. He shall be released forthwith if not required to be detained in any other criminal case.
18. Resultantly , Murder Reference No.29 of 2014 is answered in the NEGA TIVE and Death Sentence awarded to Peeru Ram (appellant) IS NOT CONFIRMED .