Sadiq Mahmud Khurram, J. Muhammad Irshad, appellant, was tried by the learned Addl. Sessions Judge, Khairpur Tamewali, in case FIR No. 282 of 2013 dated 15.07.2013 registered at Police Station Khairpur Tame Wali District Bahawalpur , in respect of offences under Sections 302,34, PPC, for committing Qatl-e-Amd of the complainant's sister namely Shamshad Mai. The learned trial Court ride judgm ent dated 04.3.2015 convicted Irshad, appellant and sentenced him as infra: Muhammad Irshad son of Abdul Razzaq.
Death under Section 302(b), PPC as Tazir for committing Qatl-e-Amd of Shamshad Mai, deceased, and pay Rs.5 Lac as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased. The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Muhammad Irshad (convict) lodged Criminal appeal No. 110-J of 2015 against his conviction and sentence. The learned trial Court submitted Murder Reference No. 16 of 2015 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Irshad. We intend to dispose of Criminal appeal No. 110-J of 2015 and Murder Reference No. 16 of 2015 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Muhammad Fayyaz (PW -3) are as under: "Stated that we are living at the tube well of Rana Zafar for the last 4/5 years and doing our labour over there. My deceased sister Shamshad Bibi was married with Muhammad. Irshad accused present before the Court in custody for facing the trial of this case. As a resul t of that marriage one son and one daughter were born. The daughter of my sister was died when she was. 2/3 days old. Her son is alive. My deceased sister Shamshad Bibi and Irshad accused were living with us 2/3 months prior to the occurrence for the purpose of labour . On the day of occurrence, Shamshad Bibi was pregnant of 5/6 months.
On 14.07.2013 at about 04.00 PM, my deceased sister and Muhammad Irshad accused went to the nearby filed for the purpose of picking up the grass. After some time Muhammad Irshad accused with the bundle of grass came back alone, I inquired from him why Shamshad Bibi had not returned? He replied that Shamshad Bibi would come after some time. Thereafter Muhammad Irshad accused went to the house of his father at Khairpur Tamewali. I alongwith Amin, Ghulam Yasin and Muha mmad Mukhtiar (P:Ws) went into the search of Sham shad Bibi. At about 11.30 PM we reached at the cotton crop of Sheikh Hameed and found the dead body of Shamshad Bibi and identified her in the light of torch, her neck, was cut down by sickle.
The motive behind the murder of my sister was that Muhammad Irshad accused suspected that his wife/my sister Shamshad Bibi had developed, illicit relation with Rana Zafar , landlord of locality .
On the arrival of police, my statement Ex.PD was recorded. I signed the same as a token of its correctness".
The oral statement (Exh.PD). was recorded by Iftikhar Ahmad, SI (PW-12) and the formal FIR was recorded by Ghulam Murtaza, SI (PW -2).
4. The learned trial Court framed charge against the appellant on 05.11.201.3 to which he pleaded not guilty and the learned trial Court proceeded to examine the prosecution witnesses.
5. The prosecution in order to prove its case got recorded statements of as many as thirteen witnesses.
Muhammad Fayyaz (PW-3) gave the evidence as mentioned in para 3 of the judgment. Muhammad Amin (PW-4) stated that on 14.7.2013 at about 6.00 p.m he received the call of Muhammad Fayyaz (PW-3) regarding the missing of the deceased and later found the dead body of the deceased from the cotton crop of Sheikh Amin. This witness farther stated that on 06.08.2013 he witnessed the recovery of a sickle from the possession of Muhammad Irshad, appellant which was taken into possession through recovery memo (Exh.PF ). Khuda Bakhsh (PW-5) stated that on 14.07.2013 at about Maghrab waila he saw Muhammad Irshad, appellant, with a blood stained sickle in his hand. Ghulam Yaseen, (PW-6) stated that on 15.07.2013, the last worn cloth of the deceased were taken into possession by the police through recovery memo (Exh.PG). Gulzar Hussain 532/C (PW-7) stated that on 15.07.2013 he escorted the dead body of the deceased to THQ, Khairpur Tamewali for getting conducted the postmortem examination. Muhammad Yar 1959/C (PW-8) stated that on 18.08.2 013, he was handed over four sealed parcels by Muhammad Iqbal 1609/HC (PW-13) for their onward transmission to Punjab Forensic Science Agency Shahid (PW-9) stated that on 15.07.2013 he had identified the dead body of the deceased. Muhammad Aslam, SI (PW-10) stated that he investigated the case from 22.11.2013 till 25.01.2014. Muhammad Iqbal patwari, (PW-11) stated that on 13.3.2014 he prepared the scaled site plan of the place of occurrence (Exh.PJ). Iftikhar Ahmad, SI (PW-12) investigated the case from 15.7.2013 till 7.8.2013 and detailed the facts of the investigation before the learned trial Court.
6. The prosecution also got examined Doctor Asma Sadia (PW-1), who was posted at THQ, Hospital Hasilpur as W.M.O on 15.07.2013. On the said date Doctor Asma Sadia (PW-4), conducted the postmortem examination of the deceased Mst. Shamshad Mai and issued the postmortem report (Exh. P A. She observed as under: EXTERNAL APPEARANCE: A dead body of a female aged about 30/31 years, lying supine on the post-mortem table, length was about 05 feet, weight about 50/55 K.G, rigor mortis developed, postmortem staining were prese nt, purification nill, condition of eyes semi opened, condition of orifices healthy , congestion present, patecheal hemorrhage nill.
Examination of clothes: She was wearing Ferozi coloured Qam eez and orange colour Shalwar and printed Phooldar Dupatta. All the clothes were blood stained and signed by me, therefore, handed over to the police.
Examination of Neck: An incised wound of size about 10 cm x 07 cm extending from right carotid to left carotid cutting all major vessels trachea, larynx, esophagus, right and left carotid, arteries and veins, all muscles and skin upto cervical spine, hyoid bone cut into pieces, however , hyoid bone taken and to Histopathologist, Govt. of Punjab, Lahore for expert opinion.
Opinion After thorough internal and external examination of the dead body , I am of the opinion that all above injuries are ante- mortem in nature and caused by some sharp edged weapon and cutting all major vessels of neck including both carotid arteries, all vessels and nerves, trachea, larynx and esophagus that is sufficient to cause death in ordinary course of life, however , I have taken different samples, scaled and sent to the Chemical Examiner and Bacteriologist, Govt. of Punjab, Lahore (Forensic Science Agency for DNA) and Histopathalogist. Govt of Punjab, Lahore for expert opinion and report. Final result could be given after receiving the reports from the Chemical Examiner and Forensic Science Agency .
PROBABLE TIME B/W INJUR Y & DEA TH: Within minutes.
PROBABLE TIME B/W DEA TH & POSTMOREM: Within 15 to 20 hours:
7. On 20.09.2014, the learned counsel for the complainant gave up PW Mukhtar Ahmad being Unnecessary and on 20.11.2014 the learned DDPP gave up PWs Jind wadda and Zahid being unnecessary . On 10.12.2014, the learned DDPP closed the prosecution evidence after tendering the report-of Punjab Forens ic Science Agency , Lahore Exh.
P.K relating to blood stained earth, and the report of Punjab Forensic Science Agency , Lahore Exh. P.L, relating to sickle.
8. After the closure of prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C. wherein he claimed that he had been falsely involved in the case. The appellant neither opted not to get himself examined under Section 340(2), Cr .P.C. nor he adduced any evidence in defence.
9. On the conclusion of the trial, the learned Addl. Sessions Judge, Hasilpur convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts arid did not produce any unimpeachable, admissible and relevant evidence. Learned counsel further contended that the statements of Muhammad Fayyaz, (PW-3) and Khuda Bakhsh (PW-5) are unworthy of any reliance as being bereft of proof. Learned counsel also contended that PWs examined by prosecution were related to the deceased and interested. Learned counsel also argued, that the recoveries were result of fake proceedings. Learned counsel finally submitted that the prosecution has remained totally unsuccessful to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned .Deputy Prosecutor General, along with the learned counsel appearing on behalf of complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant further argued that the deceased died as a result of injuries suffered at the hand of the appellant. They further contended that the medical evidence also corroborated the prosecution evidence. They further argued that the recovery of sickle (Exh.P4) from the appellant also corroborated the prosecution evidence. They contended that the appellant could not establish any enmity with the prosecution witnesses and there' was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly , learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant and with their assistance, have perused the record and evidence recorded during the trial, carefully .
13. The whole prosecution case revolves around the statements of Muhammad Fayyaz (PW-3) and Khuda Bakhsh, (PW-5). These witnesses namely Muhammad Fayyaz (PW-3) and Khuda Bakhsh, (PW-5) were related to each other . Their relationship with the deceased is also on record. Khuda Bakhsh, (PW-5) stated that Muhammad Fayyaz (PW-3) was son of his cousin. We have also noticed that there was no eye-witness of the occurrence itself.
Muhammad Fayyaz (PW-3) only stated to the effect that he had seen his sister (deceased) accompany Muhammad Irshad, appellant to a nearby fields for picking up the grass, however , after some time only Muhammad Irshad returned with a bundle of grass and his sister did not. This witness went on to further state that after meeting him Muhammad Irshad, appellant, went to the house of his father . As per this witness they discovered the dead body of the deceased at 13.30 p.m from the cotto n crop of Sheikh Amin. Muhammad Fayyaz (PW-3) admitted that it was month of Ramzan during the days of occurrence and the place of occurrence was just at a distance of two acres from their house. It is a fact that at the time of occurrence both the deceased and Muhammad Irshad were residing with Muhammad Fayyaz (PW-3), What has persuaded us to entirely reject the evidence of Muhammad Irshad (PW- 3) is the fact that if the deceased had entered the nearby fields within his view and the said field was just two acres away from his house then why a period of seven hours was required by this witness to discover the dead body from such a proximate-place. Muhammad Fayyaz (Pw-3) during cross-examination further admitted as under:-- "We went out in the search of Shamshad Bibi at 5/5.30 pm"
When the dead body was located by its, at that time the name of the murderer was not in my knowledge"
"This case was recorded on my statement (Exh.PD). My second statement was recorded at Police Station on 15.07.2013 when munshi Khuda Bakhsh told me about the involvement of Irshad accused. Irshad accused was nominated in (Exh.PD) on the basis of suspicion".
These admissions made by Muhammad Fayyaz (PW-3) prove that the oral statement (Exh.PD) upon which the formal FIR was recorded is in fact a maneuvered atid a compromised document which offers no corroboration to the statement of this witness. We have also carefully gone through the statement of Khuda Bkahsh (PW-5) as well.
This witness during cross-examination admitted that though he had seen the appellant Muhammad Irshad having a blood stained sickle in his right hand and had not received any satisfactory answer for the same being stained with blood, still he did not report this to any of the relatives of Mst. Shamshad Mai including Muhammad Fayyaz (PW-3) on the said date i.e 14.7.2013. This witness during cross-examination admitted that he met the complainant on the next day i.e 15.07.2013 and it was then that he told him about the episode narrated by him. Khuda Bakhsh (PW-5) was closely related to the complainant as well as the deceased being son of his cousin. His total inaction points out to only one conclusion that he had actua lly never seen Muhammad Irshad armed with a blood stained sickle on 14.07.2013.
14. We have also observed with great concern that as per the prosecution case the deceased was done to death by infliction of an incised wound of about 10cm x 7 cm which had cut all the major vessels trachea, larynx, esophagus right and left carotid arteries, all muscles up to the cervical spine. Anyone causing such grievous injuries would have blood spluttered all over him. However , Muhammad Fayyaz (PW -3) admitted as under:- "When Muhammad Irshad came back alone at the dera at that time my parents and our all family members were present at dera. At that time Irshad was wearing vest of white colour and shalw ar of blue, colour . When Irshad accused came back, his vest and shalwar was wet. It seems that he had taken the bath. Accused was wearing the same dress at the time of his departure and arrival. The dress was not blood stained".
This admission of Muhammad Fayyaz (PW-3) during cross-examination has further reinforced our view that had Muhammad Irshad, appellant caused the injuries as mentioned above, then his clothes must have been smeared with blood. It is not the case of prosecution that Muhammad Irshad, appellant was residing at some different house rather he was residing in the same house as Muhammad Fayyaz (PW-3). It is all the more reflective that if Khuda Bakhsh, (PW-5) had seen Muhammad Irshad, appellant armed with blood stained sickle then why Muhammad Fayyaz (PW-3) and all of his family failed to observe the same when he had returned to the house in their presence. The absence of even a speck of blood upon the person or the clothes of Muhammad Irshad (appellant) has made us firm in our view regarding his innocence. His action of returning to the same house along with the sack of grass is also indicative of absence of guilt on his part otherwise there was no occasion for him to return to the house of Muhammad Fayyaz ( PW-3) if he had committed such a gruesome murder .
15. In view of the above we are of the considered opinion that had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the learned trial Court, then these contradictions would not have cropped up in their testimony . These self-negating and contradictory statements of the witnesses reflect that the witnesses are not truthful and they are supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of unwitnessed occurrence against the appellant.
The august Supreme Court of Pakistan in the case of Imran alias Dully and anothe r vs. the State and others (2015 SCMR 155 ) at page 164 has held as under:-- By now, it is a consistent view that when any case rests 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 the 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.
To carry a conviction on a capital charge it is essential that the Courts should deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon and very minute and narrow examination of the same is necessary to secure the ends of justice. It is imperative for the prosecution to provide all links in chain, where one end of the same touches the dead body and the other , neck of the accused. The present case is of such a nature that many links are missing in the chain. It would not be wrong to observe that in this particular case, it can be said that there is no link, what to talk about a chain. The august Supreme Court of Pakistan in the case of Fiaz Ahmad vs. The State (2017 SCMR 2026 ) has observed at page 2030 as under:-- It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however , if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same.
16. We have also observed that Dr. Asma Sadia (PW-1) has given the probable duration of time between death and post mortem as 12 to 20 hours. During cross-examination Dr. Asma Sadia (PW-1) submitted that that the dead body was brought before her after a lapse of 15-20 hours and due to this fact the postmortem was conducted after the said period. We have also noted that despite the claim of the prosecution that the matter was reported to the police at 12.30 a.m., when the FIR (Exh. PD) was recorded, the postmortem examination on the person of the deceased was conducted after a delay of about nine hours from the time of registration of FIR (Exh. PD). It has been repeatedly held by the August Supreme Court of Pakistan that such delay is reflective of absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The August Supreme Court of Pakistan in the case of Khalid alias Khalidi and two others vs. The State (2012 SCMR327) has held as under: "The incident in the instant case took place at 2.00 a.m., FIR was recorded at 4/5 a.m., Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m. i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
17. Learned Deputy Prosecutor General along with learned counsel for the complainant have laid much stress that Muhammad Irshad (appellant) had the motive to do away with the deceased. We have also observed that regarding motive the prosecution did not produce any independent evidence. A tainted piece of evidence cannot corroborate another tainted piece of evidence. Muhammad Fayyaz (PW-3) stated that the motive behind the occurrence was that Muhammad Irshad, appellant was harbouring suspicion of illicit relations of the deceased with one Rana Zafar . It is an admitted fact of the prosecution case that the said Rana Zafar never joined the investigation of the case. It is also an admitted fact of the prosecution case that Muhammad Irshad, appellant and Shamshad Mai were residing together in the same house along with the complainant Muhammad Fayyaz (PW-3).
What totally fragments the prosecution case is the fact that as per prosecution case Muhammad Irshad, appellant led to recovery of the sickle from the dera of Rana Zafar . This is the same Rana Zafar with whom the prosecution was alleging that the appellant had suspicion upon with respect to illicit relations with his wife. Even on the day of recovery of the sickle said Rana Zafar was not joined in the investigation of the case nor made a witness of the same. In view of this the prosecution has miserably failed to prove the motive of the occurrence. The august Supreme Court of Pakistan in the case of Muhammad Javed vs. The State ( 2016 SCMR 2021 ) has held as under:-- "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.
18. Learned Deputy Prosecutor General along with learned counsel for the complainant have also relied upon the recovery of sickle (Exh.P-4) from Muhammad Irshad (appellant). However , the said sickle (Exh.P4) was got recovered from the house of Rana Zafar and Muhammad Irshad appellant was not a resident of the said house.
The said recovery of the sickle (Exh.P4) cannot be believed as the same was neither made from a place which belonged to Muhammad Irshad (appellant) nor was under his exclusive possession . Iftikhar Ahmad SI (PW-12), the Investigating Officer of the case, did not join any witness of the locality during the recovery of said sickle (Exh.P4) which was in clear violation of Section 103 Cr.P.C and cannot be used as incriminating evidence against/Muhammad Irshad (appellant), being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. The State (2.017 SCMR 898) at page 901 has held as under:-- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr .P.C. had flagrantly been violated in that regard.
19. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Irshad, appellant, in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The August Supreme Court of Pakistan in the case of Muhammad Mansha vs. The State (2018 SCMR 772) has enunciated the following principle: "Needless to mention that, while giving the benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reaso nable doubt in a prudent mind about the guilt of the accused, then the accused would, be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. "
Reliance is also placed on the judgment of the August Supreme Court of Pakist an Muhammad Akram vs. the State (2009 SCMR 230 ) in which it has been observed in paragraph No. 13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstances which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused, would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
20. For what has been discussed above, Criminal Appeal No. 110-J of 2015 filed by Muhammad Irshad, appellant is accepted, the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment are hereby set-aside. Muhammad Irshad, appellant is ordered to be acquitted. He is directed to be released forthwith if not required in any other case.
21. Murder Reference is answered in Negative and death sentence of Muhammad Irshad, appellant is Not Confirmed.