Muhammad Nadeem son of Salabat, caste Kharl, resident of Chak No, 126/WB, Tehsil Mailsi, District Vehari, appellant was involved in case FIR No, 272/2012, dated 25.04.2012, offence under Section 302, PPC, registered with Police Mitro, District Vehari. He was tried by learned Additional Sessions Judge, Vehari. The learned trial Court seized with the matter aide its judgment dated 22.12.2012 convicted and sentenced the appellant in the following terms:-- Under Section 302 (c) PPC > Sentenced to undergo Rigorous Imprisonment for a period of twenty five years on two counts which was ordered to run concurrently . > He was also extended the benefit of Section 382-B of Cr .P.C.
2. Feeling aggrieved by the judgment of- the learned trial Court, appellant has assailed his conviction and sentence through filing the captioned criminal appeal.
3. Prosecution's story as portrayed in the FIR (Exh.PU) lodged on the statement (Exh.PK) of Muhammad Yousaf son of Roshan Din, caste Gujjar (PW-8) is to the effect that he is resident of Chak 126/WB and is a labourer by profession. At evening time, the complainant along with his sons Muhammad Ashraf and Muhammad Asghar returned home after reaping wheat crop. The sons of the complainant namely Asghar and Ashraf were sleeping in the cattle shed. On 25.04.2012 at 12.30 a.m. (night), accused Nadeem son of Salabat came and took Muhammad Ashraf son of the complainant in his house. After some time, the complainant along with his son Asghar and his brother Muhammad Munir went in the house of Salabat in order to see him where they saw accused Muhammad Nadeem was committing murder of Muhammad Ashraf in a room by inflicting hatchet blows on his neck. He also committed the murder of his sister Kausar Mai by inflicting blows of hatchet on her neck as well.
The motive of the occurrence as disclosed in the FIR is that Muhammad, Nadeem accused had the suspicion of illicit intimacy of Muhammad Ashraf with his sister Kauser Mai.
4. On 25.04.2012, Zubair Anwar , SI (PW-10) posted at P.S. Mitro, on the same day on receipt of information about the occurrence, reached the place of occurrence, the complainant Muhammad Yousaf ( PW-8) appeared before him and made his statement (Exh.PK), which was reduced into writing and after endorsement on it in the shape of police karvai, which was transmitted to Police. Station for registration of formal FIR (Exh.PU) through Sohail Iqbal 453/C. Thereafter Investigating Officer inspected the dead bodies of (i) Muhammad , Ashraf (deceased) and (ii) Mst.
Kauser Mai (deceased), Prepared injury statement of Muhammad Ashraf deceased (Exh.PD), inquest report ( Exh.PE) under Rule 25.35 of the Police Rules, 1934 and injury statement of Mst. Kausar Mai (Exh.PH), inquest report (Exh.PJ) and dispatched the dead bodies to mortuary under the escort of Muhammad Ashraf 936/C. He also inspected the place of occurrence and prepared its rough site-plan (Exh.PO). He secured blood-stained earth underneath the dead bodies of both the deceased vide recovery memos Exh.PL and Exh.PM respectively . After post-mortem examination last worn clothes of the Muhammad Ashraf (deceased) blood-stained i,e, Shalwar (P-1), Qameez (P-2) and vest (P-4) as well as Kauser Mai (deceased) viz: Qameez P-5 and Shalwar P-6 were produced before the Investigating Officer, which he took into possession vide recovery memo, Exh.P A and Exh.PB respectively . On the direction of Investiga ting Officer and pointing out of PWs Muhammad lqbal Janjua, Draftsman (PW-4) on 27.04.2012 took rough notes of the place of occurrence and thereafter prepared scaled site plan in triplicate ( Exh.PF , Exh.PF/1 and Exh.PF/2), under Rule 25.13 of the Police Rules, 1934, which was made part of the file. He on 01.05.2012 arrested Nadeem accused and obtained his physical remand. During the course of interrogation in pursuance of his alleged disclosure on 04.05.2012, Nadeem accused led to the recovery of hatchet (P-7) blood-stained, which Investigating Officer took into possession vide recovery memo. Exh.PN and prepared site-plan of the place of recovery Exh.PP . He on 05.05.2012 got remitted Nadeem accused to judicial custody . He recorded the statements of all the PWs stage-wise. On reaching at Police Station, the Investigating Officer handed over case property to the Moharrar for its safe custody in the Malkhana.
5. The investigation was encapsulated into submission of report under Section 173, Cr.P.C., the learned trial. Judge took the cognizance, supplied the requis ite statements under Section 265(c), Cr.P.C., framed the charge against them on 18.06.2012, which the accused denied, and while professing their innocence, claimed trial.
6. Ocular account in this case consists of the statements of the Muhammad Yousaf complainant (PW-8) and Muhammad Munir ( PW -9). Investigation in this case was carried out by Zubair Anwar , SI ( PW -10 ).
Whereas medical evidence has been furnished by Dr. Mazahir Akhtar (PW-3) who conducted, post-mortem examination on the dead body of Muhammad Ashraf (deceased) and observed as under:-- EXTERNAL EXAMINA TION.
"A dead body of young man lying on mortuary table wearing black colour Shalwar Qameez and black vest. Qameez and Bunyan blood-stained and cut prese nt, mouth open, both eyes closed. Rigor mortis developed. Post-mortem staining was present on the dependent part of the body . There were following injuries found on his dead body:-
1. An abrasion 1 CM x 1 cm on the left side of forehead.
2. An abrasion 1 cm x cm on lateral aspect of left eye.
3. An incised wound measuring 11 cm x 5 cm on front and lower part of neck, wound is going deep upto skin back of neck. All musculature + bony structure and vessels cut through.
4. An incised wound 05 cm x 03 cm muscle deep on front of left shoulder corresponding cut present on Qameez.
After conducting post-mortem examination, doctor rendered the following opinion:-- "According to my opinion, cause of death in this case was shock due to excessive hemorrhage caused by damage of both carotid vessels. All injuries were ante-mortem and were sufficient to cause death in ordinary course of nature.
Probable time that elapsed between injury and death was immediate while between death and post-mortem was 12 hours approximate."1/2 1/2 1/2 And lady doctor Mosarrat Farhan (PW-6) had conducted post-mortem Examination on the dead body of Mst.
Kauser Mai (deceased) and observed as under:-- EXTERNAL EXAMINA TION.
"A young lady about 21/22 years old lying on the mortuary table wearing black Shalwar and Qameez with multiple shaded embroided. Rigor mortis present. Post-mortem staining positive. Eyes and mouth closed. She observed following injury on the body of deceased: -- "1. Incised wound 9 cm x 4 cm, 3 above the medial ends of both clavicles extending laterally . Wound was going deep, upto skin of back of neck All musculatures plus bone structures with vessels cut through.
After conducting post-mortem examination, doctor rendered the following opinion:-- "To me cause of death in this case was shock due to excessive hemorrhage and damage to vital organs i,e, both carotid vessels. All injuries were ante Probable time that elapsed between injury and death with half hour approximately while between death and post- mortem was 8 to 10 hours approximate. "
Statements of rest of the prosecution witnesses are formal in nature.
7. Learned ADPP vide his statement dated 28.11.2012 gave up witness Naveed Ahmad SI being unnecessary and he by tendering reports of Chemical Examiner regarding blood-stained earth Exh.PQ, and Exh.PR, reports of Chemical Examiner of hatchet Exh.PS and that of Serologist regarding hatchet Exh.PT closed the prosecution case. The learned trial Court keeping in view the facts of the case, itself requi sitioned report of the Chemical Examiner (Exh.CA) regarding vaginal swabs of Mst. Kauser Mai (deceased) which was withheld by the prosecution.
8. Thenceforth, the appellant was examined under Section 342, Cr.P.C. wherein he refuted the allegations levelled against him in the prosecution version. He did not opt to appear as his own witness in terms of Section 340(2), Cr.P.C., however , opted to adduce defen ce evidence but thereafter vide his statement dated 15.12.2012 did not produce any defence evidence.
He while replying to the question why this case against him and why the PWs deposed against him, made the following deposition: "It is false case, All the PWs are close relative and interested witnesses. All the PWs deposed falsely . On 25.04.2012 at about 12.30 (night), I saw Muhammad Ashraf deceased with my sister namely Kausar Mai deceased in compromising position in my house and in heat of passion and due to sudden provocation, I took up the hatchet and murdered them."
9. On conclusion of trial, the learned trial Court convicted and sentenced the appellant in the above stated terms.
10. Learned counsel for the appellant submits that according to the prosecution's story , the alleged occurrence has taken place inside one of the room of house of the appellant during odd hours of night; that the deceased had no legitimate and justifiable cause for his presence at the place of occurrence at the time of occurrence; that the PWs could not have been able to justify their presence and claim of witnessing the occu rrence with their own eyes; that evidence available on record demonstrate that occurrence remained un-witnessed; that learned trial Court despite disbelieving the prosecution's evidence had proceeded to convict the appellant under Section 302(c), PPC merely on the basis of his own plea recorded in his statement under Section 342, Cr.P.C. which is against settled canons of law; that the prosecution in order to prove its case has to stand on its own legs and no accused can be convicted on the basis of plea taken in statement recorded under Section 342, Cr.P.C. and thus has craved for acceptance of appeal and acquittal of the appellant.
11. Conversely , learned Law Officer has argued that keeping in view the statement of the appellant recorded under Section 342, Cr.P.C. it emerges that he has committed double murder on account of ghairat', therefore, learned trial Court while taking into consideration his statement/plea has already taken a lenient view while convicting and sentencing the appellant, however , he has half heartedly stated that if his conviction is maintained and he is sentenced upto the period undergone by him so far, the same would be sufficient to meet the ends of justice. Lastly he has prayed for dismissal of the appeal.
12. Arguments heard. Record perused.1/2 1/2
13. After hearing arguments of learned counsel for the appellant as well as learned Law officer it is observed that following features of this case are not disputed:--
(i) The occurrence allegedly took place inside a room situated within the four walls of the house of the appellant during the intervening night of 24/25.04.2012.
(ii) Muhammad Ashraf deceased aged about 22 years and Mst. Kauser Mai deceased aged about 22 years (as per post-mortem reports) had no inter-se legitimate relation at all.
(iii) Both the deceased died mainly as a result of injuries caused by sharp edged weapon on their bodies.
(iv) The appellant is real brother of Mst. Kauser Mai, one of the deceased.
(v) Both the eye-witnesses i,e, Muhammad Yousaf complainant (PW-8) and Muhammad Munir (PW.9) have inter se relation of being real brothers. The deceased Muhammad Ashraf was son of PW .8.
(vi) Motive behind the occurrence is the suspicion of illicit relation inter se with the deceased.
(vii) The appellant first version which he had taken before the Investigating Officer remained his version even before learned trial Court in the form of his statement under Section 342, Cr .P.C.
Considering the prosecution evidence as well as material available on record in its entirety , the hard but un- refutable ground realities, enumerated here in the preceding paragraphs of the judgment, simple questions which have emerged requiring their judicial determination are whether ( i) the eye-witnesses have "duly established their presence" at crime scene at the time of occurrence and their claim of having witnessed the occurrence is believable? (ii) whether the conviction and sentence inflicted by the learned trial Court merely on the plea of appellant is sustainable under the law or not.
14. In order to prove its case prosecution has produced complainant Muhammad Yousaf as PW-8 and Muhammad Munir as PW-9 is real brother of the complainant. The scanning of evidence of both the said PWs it emerges that both of them have failed to establish their presence' at the relevant time of occurrence at the crime scene. , PW-9 has deposed while appearing in the witness box that on 24.04.2012 he was present in the house of his brother Muhammad Yousaf. He in the company of Muhammad Yousaf (complainant) and Muhammad Asghar (given up PW) had witnessed the occurrence. PW.8 Muhammad Yousaf when cross-examin ed has stated that. "Munir PW-9 is my brother . Volunteered that he resides with me. It is correct that the house of my brother Munir is at a distance of 2 square from my house". The further stated while facing cross-examination that "Munir PW is married and is having wife and children. His wife and children do reside in their own home Munir PW is the bread winner of his family ." Whereas PW.9 partly contradicted PW.8 while facing cross-examination while stating that "I am married and have two children. My wife and children also resident in the house of my brother Yousaf ". Assertion of PW.9 that during night of occurrence he slept in the house of his brother Muhammad Yousaf and his other family members are also residing in the same house was only an abortive attempt on his part to justify his presence at the first instance in the house of the complainant and then at the place of occurrence. I do not feel any hesitation in holding that this PW-9 who according to PW-8 was residing in a separate house situated at a distance of 21/2 square in which his family members also reside and he being sole bread earner of his family has made a false statement; only under the social compulsion, being closely related to the complainant and the deceased. Thus, his statement cannot safely be relied upon and is discarded. So far as evidence of Muhammad Yousaf PW.8, the complainant is concerned, he stated that "on 24.04.2012, I was sleeping in my house. My son Muhammad Ashraf and Muhammad Asghar were sleeping in the cattle shed". Further stated during cross-examination that "my son Ashraf always used to sleep in the cattle shed and I always used to sleep at my home. Cattle, shed is constructed over a land of seven marlas. " When suggested that there is no door from his home towards cattle shed from inside, he although replied in the negative but the Investigating Officer (PW-10), during his cross-examination has stated that "I had seen the house of the complainant Muhammad Yousaf. Ehata Mowashian' of complainant is also separate to his residential house" He further stated that according to complaint (Exh.PK), the complainant was present in his house whereas Ashraf and Asghar PWs were sleeping in the adjacent Ehata `Mowashian', therefore, the claim of this PW/complainant about being acquainted with that his son Muhammad Ashraf was called by the appellant appears to be totally false because it is established that he was sleeping in his house where his deceased son was sleeping in the Ehata. Only one person, could have been in a position to tell as to whether appellant came to call the deceased or not he was Asghar (given up PW). He has not been produce. This PW8 has also made very blatant and dishonest improvements in order to bring his case, as set out in the FIR, in conformity with the medical evidence as he deposed in examination-in -chief that "we saw my son Ashraf, Kauser Mai and Nadeem accused (appellant) were standing in the house of Nadeem. Nadeem gave the blow of hatchet to my son Muhammad Ashraf on different parts of his body including head who fell on the ground and then inflicted the hatchet blow on his neck and committed his murder . He also inflicted the blow of blunt side of hatchet to his sister Kausar May on her left thigh. She fell down on the ground and he gave the blow of hatchet on her neck. She also succumbed to the injuries at the spot. " When confronted with his previous statement, he stated that "police recorded my statement Exh.PK without any addition or omission on his part. In my statement before the police I had stated that the accused inflicted the hatchet blow to my son who fell on the ground. Confronted with Exh.PK where not so recorded. I had stated before the policed that accused gave the hatchet blow on different parts of body of my son. Confronted with Exh.PK where not so recorded. In my statemen t before police I had stated that accused Nadeem gave the blow of blunt side of hatchet on the thigh of Kausar Mai deceased. Confronted with Exh.PK where not so recorded. I had stated before police that accused fled away from the spot and we raise the alarm attracting many persons of the locality . Confronted with Exh.PK where not so recorded". The above excerpts from the evidence of PW.8 clearly indicate that he was making a . nefarious effort with mala fide to bring his ocular account in conformity with the medical evidence while lodging FIR he had only stated that "where they saw accused Muhammad Nadeem while committing murder of Muhammad Ashraf in a room by inflicting blows of hatchet on his neck. He also committed murder of his sister Mst. Kauser May by inflicting blows of hatchet on his neck as well". Another factor to the mind of this Court which belies the claim of eye-witnesses regarding their presence at the spot of occurrence is that the accused was armed with hatchet and not any fire-arm weapon. He could have been overpowered by the witnesses, or their presence at least, could have been helpful for running away any of the deceased, from the place of occurrence. It is curiously noticed that none of the PWs have made any effort to rescue or intervene, during the occurrence in order to save the life of any deceased persons They , according to the recital of the FIR only stayed motionless like statutes, therefore, presence of this PW at the place of occurrence at the time of occurrence is held to be doubtful. Even from the bare perusal of the FIR, it appears that complainant has projected a self-harming and self-destructive version in it by stating that Muhammad Ashraf, his son, the deceased was called and taken along by the appellant during odd hours of night. When the motive of the occurrence viz that Muhammad Nadeem accused had the suspicion of illicit intimacy of Muhammad Ashraf with his sister Kauser Mai. Moreover , internal and external vaginal swabs of the deceased Mst. Kauser Mai taken by PW-6 while conducting post-mortem examination over her dead-body , sent to the office of Chemical Examiner and its corresponding report (Exh.CA) confirms that said swabs were stained with semen, unfolds the real story of the occurrence, making prosecution version highly unbelievable and preposterous.
15. The perusal of evidence available on record keeping in view the motive behind the occurrence, it emerges that both the deceased had some illicit intimacy/relation. The Investigation Officer PW.10) has stated while facing cross- examination that "during my investigation, it came to light that both the deceased had illicit relations. Place of occurrence was residential house of accused Nadeem and both the murders were committed in the same place.
According to my investigation, it was not a pre-planned occurrence, the accused saw his sister with the deceased Muhammad Ashraf and in heat of passions and due to sudden provocation he took up the hatchet and murdered them. The accused had also taken this version in his first version during the invest igation". It is also noticeable that Dr. Mosarrat Farhan, WMO, (PW-6) who at the time of post-mortem examination of the deceased Mst. Kauser Mai took her internal and external vaginal swabs of the said deceased and sent the same for procuring report of the Chemical Examiner to the relevant quarter but without producing the said repor t, the prosecution proceeded to close its evidence. The learned trial Court itself made an endeavor by requisitioning/summoning the Chemical Examiner's report and . brought the same on record itself as Exh.CA, according to which vaginal swabs of the deceased Mst. Kausar Mai taken by PW.6 at the time of post-mortem examination of the deceased were found to be stained with semen which reflects that both the. deceased were not Masoom-ud-Dam. They have been done to death when they had indulged themselv es in sexual intercourse without any legitimate relations. During cross- examination of PW.8, he impliedly admitte d that his deceased son had contracted love marriage with his niece. The relationship between spouses were strained. He although denied the suggestion that the relations were strained due to keeping of relations by deceased Ashraf with other women but from the facts of the case it appears to be correct, that the deceased son of the complainant had indulged himself in such activities.
16. In nutshell, the prosecution has failed in establishing not only the presence of the eye-witnesses (PW.8 and PW.9) at the spot at the time of occurren ce, thus, proving their claim of witnessing the occurrence with their own eyes also, hence, it failed in discharging of its bounden and basic duty of proving the charge against the appellant.
It is also noticeable that learned trial Cour t while disbelieving the version of the complainant/prosecution as well as the ocular account furnished by PW,8 and PW.9 had only proceeded to pass the impugned conviction and sentence upon the appellant on account of his plea which he has taken during investigation as well as while recording his statement under Section 342, Cr.P.C. reproduced herein above, which is not sustainable under the law. It is trite law that accused cannot be convicted and sentenced on the basis of his plea taken while recording statement under Section 342, Cr.P.C. as it is the duty of the prosecution to stand on its own legs and proved its case. Reliance in this regard is placed on the case of 'Abdul Samad and another v. the State and another (2018 YLR 922 ) in which the Hon'ble Federal Shariat Court has held as under:-- "Defense plea--Scope--Failure of accused to prove any plea in defence, if taken, by itself is not sufficient to prove case of prosecution--Prosecution is under compulsion to prove its case against accused beyond shadow of doubt."
Moreover , in case of Azhar kbal v. the State' (2013 SCMR 383), the august Supreme Court of Pakistan has observed infra:-- "----S. 302(b)--Qatl-e-amd--Re-appraisal of evidence--Prosecution failing to prove its case--Accused admitting to killing the deceased--Conviction awarde d on sole basis of such admission--Legality--Both Courts below had rejected version of prosecution in its entirety and then proceeded to convict and sentence the accused on the sole basis of his statement recorded under 5.342, Cr.P.C., wherein he had advanced a plea of grave and sudden provocation--Prosecution had failed to prove its case against accused beyond reasonable doubt, therefore, he should have been acquitted, even if he had taken a plea and admitted to killing the deceased--Appeal was allowed, convictions and sentences recorded and upheld by the Courts below were set aside and accused was acquitted of the charge".
17. For what has been discussed supra, both the questions seeking their determination referred in para No, 13 are hereby answered in the negative and it is observed that learned trial Court has rightly held that neither the PWs had proved their presence at the place of occurrence at the relevant time nor they had seen the occurrence but had illegally passed the conviction and sentence which C could not be sustained having been based upon the plea taken by the appellant while recording statement under Section 342, Cr.P.C., therefore, we allow the instant appeal, resultantly , conviction and sentence inflicted upon the appellant vide judgment dated 22.12.2012 passed by learned Addl. Sessions Judge is set aside and he, is acquitted of the charge imputed against him. He is in jail, directed to be set at liberty in this case forthwith if not liable to be detained in any other case.