AALIA NEELUM, J. The appellant-Muhammad Shahzad, son of Bashir Ahmad, caste Khoje, resident of Mouza Kamal Pur P.S. Khan Garh, Tehsil, and District Muzafar Garh, was involved in case F.I.R.
No.82 of 2016, dated 23.01.2016, an offence under Sections 380, 411, 302 P.P.C., registered at P.S. Sabzazar, District Lahore and was tried by the learned Addl. Sessions Judge, District Lahore. The learned trial court seized with the matter in terms of the judgment dated 25.01.2019 and convicted Muhammad Shahzad (the appellant) under Section 302(b) PPC as Tazir and sentenced to Death for committing Qatl-e-Amd of Sakina Kareem (deceased), with the direction to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to further undergo 06-months S.I. The appellant was also convicted under section 380 PPC and sentenced to 03-years imprisonment, with the direction to pay a fine of Rs.20,000/- and, in case of default thereof, to undergo 06-months S.I further. The appellant was further convicted under section 411 PPC and sentenced to undergo 03-years imprisonment, with the direction to pay a fine of Rs.20,000/- and, in case of default thereof, to further undergo 06- months S.I. All the sentences awarded to the appellant would run concurrently. The benefit of Section 382-B Cr.P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Shahzad, the appellant has assailed his conviction by filing an instant appeal bearing Criminal Appeal No.6256 of 2019.
Whereas the learned trial court also referred M.R. No.20 of 2019 (The State. Vs. Muhammad Shahzad) for confirmation of the death sentence awarded to the appellant-Muhammad Shahzad.
The matters arising out of the same judgment of the learned trial court are being disposed of through a single judgment.
3. The prosecution story, as alleged in the F.I.R (Ex.PA/2) lodged on the statement (Ex. PA) of Amir Kareem (PW-1)-the complainant, is that on 19.01.2016 at 07:15 a.m., he (PW-1), along with his children, came out of the house to leave them for school. When he (PW-1) reached the street where his mother, Sakina Kareem, resided, he saw that a woman was knocking at the door of her house.
The complainant stopped his vehicle and started to walk toward her house; meanwhile, the woman holding a shopper in her hand went away, leaving the door of the house open. When the complainant reached his mother's house, he (PW-1) called her but to no avail. After that, he found that his mother was lying on the bed, and blood was oozing out of her mouth while she was in dead condition. During ablution, a wound was observed under the left ear on the head of the deceased.
The gold earrings and two mobile phones belonging to the deceased were missing. The complainant's mother was also a heart patient, and the complainant was under suspicion that someone had killed his mother. Later on, the complainant (PW-1) named the appellant as his accused through his supplementary statement dated 02.05.2016.
4. After receiving a call on 15, Fateh Muhammad S.I. (PW-6), along with police officials, reached the house of the complainant (PW-1), where he (PW-6) found the dead body of a lady, namely Sakina, and funeral bath had already been given to the deceased. He (PW-6) inspected the dead body of Sakina (the deceased) and found a wound present on the back of her left ear. The complainant (PW-1) got recorded his statement and asked for a postmortem of the deceased. He (PW-6) prepared an injury statement (Ex. PG) and inquest report (Ex. PH), escorted the dead body of the deceased along with other documents to the dead house through constables Kamran and Mohsin Ali along with the application for postmortem examination (Ex. PJ). After conducting a postmortem examination, the doctor handed over to him (PW-6) the postmortem report and the last worn clothes of the deceased, i.e., Dupatta (P-4), Qameez (P-5), Shalwar (P-6), which were taken into possession through recovery memo (Ex. PK). After that, he (PW-6) sent the last worn clothes of the deceased and the postmortem report of the deceased to the police station through Muhammad Kamran/constable for registration of formal F.I.R, after that formal F.I.R (Ex.PA/2) was chalked out by Muhammad Yousaf S.I (PW-3).
5. After registration of the case, investigation of this case was entrusted to Khalid Yaqoob S.I. (PW- 12), who being Investigating Officer, visited the place of occurrence and, on the pointing of the complainant and prosecution witnesses, prepared a rough site plan (Ex. PR) of the place of occurrence and recorded the statements of PWs under section 161 of Cr.P.C. On 25.01.2016, the Investigating Officer (PW-12) took Syed Younas Bukhari, draftsman (PW-4), to the place of occurrence, who prepared the scaled site plan of the place of occurrence (Ex. PD & Ex.PD/1) in the scale of one inch equal to ten feet. On 26.01.2016, he (PW-12)-the investigating officer, made efforts and submitted an application to high-ups for obtaining the orders to put the stolen cell phones on track. On 01.02.2016, the investigating officer (PW-12) recorded statements of Fateh Muhammad S.I. and Muhammad Sajjad Moharrar 15855/H.C. regarding the submission of parcels that contained a box and an envelope to the Punjab Forensic Science Agency. After that, on different occasions, he (PW-12)-the investigating officer- searched for the unknown accused, and on 18.02.2016, this case was entrusted to CIA, Cantt. Division, Lahore. After the entrustment of the investigation on 25.02.2016, Muhammad Ashraf Javed S.I. (PW-11) called upon the complainant to join the investigation. On 02.05.2016, he (PW-11)--- the investigating officer, recorded a supplementary statement of the complainant (PW-1) regarding the nomination of accused/appellant Muhammad Shahzad. On 13.06.2016, Atif Rehman 1506-C computer operator D.S.P office produced eight pages of C.D.R Ex.PE/1-8 of mobile phone set Nokia 106 IMEI No.3571.390671545.30, in which SIM No.0310- 4768268 of deceased was used during 08.01.2016 to 18.01.2016 and another cell phone set of deceased having IMEI No.354069060468500, wherein accused Muhammad Shahzad inserted his SIM having No.0301-2560331 and used the same on 21.01.2016 at 05:44 p.m. Before the sim No.0301- 2560331 in said mobile phone, another number of the deceased Sakina Kareem, i.e., 0315-4234589, was being operated. He (PW11)-the investigating officer, took the CDR into possession through a recovery memo (Ex. PF). On 17.06.2016, he (PW-11)-the investigating officer, arrested Muhammad Shahzad (the appellant) and during the investigation on 24.06.2016, accused Muhammad Shahzad (the appellant) made a disclosure and got recovered mobile phone Nokia model 106 having IMEI No.357139067154530 along with SIM Zong company having serial No.899204040314557513 having scriber No.03104768268 and gold ornaments, i.e., earrings, which were secured into possession by the investigating officer (PW-11) through recovery memo (Ex. PG). The investigating officer (PW-11) also prepared a rough site plan of the place of recovery (Ex. PQ).
6. Having found the accused/appellant guilty, the Investigating Officer (PW-11) prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. On 25.03.2017, the learned trial court formally charge sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as twelve (12) witnesses.
7. It is a case of circumstantial evidence, and evidence in this regard came from the statement of Amir Kareem (PW-1)-the complainant. However, Dr. Mansoora Mirza, Assistant Professor KEMU (PW- 10), who conducted a postmortem examination of the dead body of the deceased-Sakina Kareem, found the following injuries on her person: - INJURIES 1) Abrasion No.1 (1 x 0.2) cm on right side of neck 8 cm below right ear 6 cm above the root of neck (crescent shape).
2) Abrasion No.2 (2 x 0.4) cm on the left side of the neck, 8.5 cm below the left ear, and 4 cm above the base of the neck (crescent shape).
3) Bruised area (6.5 x 5) cm on the right side of the neck, 3 cm below the right ear, and 4.5 cm above the base of the neck.
OPINION After conducting the postmortem examination, the doctor opined that the cause of death, in this case, was obstruction of earn way at the level of mouth and nose by means of smothering and at the level of the neck by means of manual strangulation leading to asphyxia and death. All the injuries were ante mortem in nature. The probable time between injuries and death was 03 to 05 minutes, whereas between death and postmortem was 15 to 30 hours.
The statements of the remaining prosecution witnesses are formal in nature.
8. The learned Deputy District Public Prosecutor gave up PWs Mohsin Ali 5658/C and Muqadas Hussain 9150/C as unnecessary and closed the prosecution evidence.
9. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he neither opted to appear as his own witness in terms of section 340(2) Cr.P.C. nor produced any defence evidence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following deposition: - "The private PWs are closely related to each other and they are inimical towards me that is why they are deposing against me and the police officials including IO joining hands with the complainant to rope me in this false case. Moreover, it was a blind murder. I was not nominated in the FIR. Subsequently, the complainant got recorded his first supplementary statement even then I was not nominated after the lapse of more than seven months. I was falsely nominated by the complainant through supplementary statement. No specification of stolen articles which are Mobile phones and gold ear rings were mentioned in the FIR. Subsequently, the complainant himself provided the alleged recovered articles to the IO to rope me in this false case. The deceased was my real Aunt (Khala) and I can never do such act. The complainant was not in speaking terms with his deceased mother and she was living separately and she was having love affection with me and this thing was not acceptable to the complainant and his family members that is why they are deposing falsely against me. I am totally innocent and have nothing to do with the alleged occurrence. I am noble and law abiding citizen of the country.
There is not a single FIR has been registered against me except this false one."
10. The learned trial court, after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the conviction of the appellant in the aforestated terms.
11. We have given our anxious and most thoughtful consideration to both sides' rival submissions.
We have minutely gone through the evidence on record.
12. How the incident which gave rise to this case took place and how the investigation commenced can be ascertained from the First Information Report (FIR) (Exh. PA/2).
The facts, as narrated by Amir Kareem (PW-1)-the complainant, in FIR, are to the effect that on 19- 01-2016 at 07:00 a.m., he (PW-1), along with his children, came out of the house to leave them for school. When he reached the street where his mother, Sakina Kareem, resided, he saw that a woman was knocking on the door of her house. He stopped his vehicle and started to walk toward her house; meanwhile, the woman holding a shopper in her hand went away, leaving the house door open. When he reached his mother's home, he found that his mother was lying on the bed, and blood was oozing out of her mouth while she was in dead condition. During ablution, a wound was observed under the left ear on the head. Amir Kareem (PW-1)-the complainant reported the incident to the police against the unknown woman. After that, Amir Kareem (PW-1)-the complainant, through his supplementary statement, named the appellant as his accused on 02.05.2016. Amir Kareem (PW-1)-the complainant involved the appellant in the case based on suspension. He (PW-1) deposed during examination-in-chief, "On 23.1.2016, after receipt of post mortem report it was disclosed that it was a murder, so I got lodged this FIR. We already ready had doubts and suspicion on Shahzad since the first day, that he could have been involved in this occurrence and it was based upon the previous history where already 2/3 mobiles were stolen and signs were traced towards accused Shahzad, we did not nominate him at the very earliest as we had no clue at that time. I nominated the accused Shahzad through a supplementary statement in May 2016." Muhammad Ashraf Javed S.I. (PW-11)-investigating officer admitted during cross-examination, "It is correct that the complainant mentioned a woman in the FIR that she was knocking at the door and after having seen her, he entered into the house of his mother deceased. I did not make any effort to search the above mentioned woman." Amir Kareem (PW-1)-the complainant admitted during the cross-examination that he did not make any effort to trace the woman who was knocking on the door of the house of the complainant's mother. Amir Kareem (PW-1)-the complainant deposed during cross-examination, "I did not move any application before the police and did not make an effort regarding the search of that woman who was knocking on my mother's door on the day of the occurrence." The learned counsel for the appellant submitted that, in any event, there is no material in the entire charge sheet to make out a prima facie case of any offence against the appellant. It is submitted that the appellant has been falsely implicated in the present case. Amir Kareem (PW-1)-the complainant, in the supplementary statement, claimed that they had already doubts and suspicion about the appellant since the first day, that he could have been involved in the occurrence. It was based on the previous history where already 2/3 mobiles were stolen by him, and signs were traced towards the appellant. We have considered the matter. Interestingly, Amir Kareem (PW-1)-the complainant, had seen some woman knocking on the door of the house of the complainant's (PW-1) mother. A woman holding a shopper in her hand went away, leaving the door of the house open, and despite this, a categorical statement that they doubted and suspected that the appellant belonged to the incident. The prosecution is coming to the material evidence collected against the appellant. The only material against the appellant consists of statements made by Atif Rehman 1505/C (PW-5) and Fateh Muhammad S.I. (PW-6) and the Call Data Records (CDRs) regarding his mobile telephone and use of his sim number in the cell phone of the deceased and confessional statement. Atif Rehman 1505/C (PW-5), deposed during examination-in-chief, "Ashraf Javed, SI earlier forwarded a request for obtaining CDR of two IMEI numbers of two different mobile phones, i.e., Nokia 106 other Samsung and one of SIM number 0301-2560331.---- On 13.06.2016, CRO branch responded to that request and forwarded an e-mail to me containing CDR of said IMEI numbers and same numbers consisting upon eight pages Ex.PE/1-8 (under objection) which I got printed the same and handed over to Ashraf Javed, SI. Same was taken into possession by Ashraf Javed, SI vide recovery memo Ex.PF. Muqaddas Constable and I signed the same."
However, during cross-examination, Atif Rehman 1505/C (PW-5) deposed, "The CDR record is taken into custody by the I.O which was in printed form and I did not write any additional thing on it. Volunteered that Javed Ashraf, SI got written by hand. It is correct that CDR does not contain information regarding the ownership of SIM number 0301-2560331." The trial court had marked the call record data consisting of eight pages. Ex.PE/1-8 was received by Atif Rehman 1505/C (PW-5) through an e-mail, a printed document taken from E-mail. That call detail record Ex.PE/1-8 does not contain the e-mail address of the sender or receiver, nor it contains the signatures of any representative of the service provider company from which the call details of the two mobile companies was secured, have not been examined to prove on record the data in respect of the call details of the mobile number 0310-4768268 was used in Nokia 106 having IMEI No. 3571.390671545.30 available with the service provider company. Therefore, the call detail record Ex.PE/1-8, has not been proved on record by the law. The call detail record Ex.PE/1-8, does not show to whose name this Mobile number 0310-4768268 stands registered. The call detail record Ex.PE/1-8 relied upon by the prosecution though otherwise not proved by the law, also does not support the version of the prosecution that Amir Kareem (PW-1)-the complainant, had seen some woman knocking on the door of the house of the complainant's (PW-1) mother. A woman holding a shopper in her hand went away, leaving the house door open. During cross-examination, Muhammad Ashraf Javed S.I./I.O. (PW-11) admitted, "It is correct that supplementary statement of complainant Amir Kareem was recorded on 23.01.2016. It is correct that in the supplementary statement there was no mention of any mobile phone, SIM number, or gold ornaments." Since the prosecution has failed to lead any evidence on record about the persons whose names these two mobile numbers were registered and working, the court can neither guess nor presume that one of these mobile numbers belongs to the appellant and deceased. The crucial evidence in the present case is the sim of the deceased used by the appellant in his mobile phone set from 08.01.2016 to 18.01.2016. The complainant's statement is conspicuously silent about the sim numbers and makes and models of the cell phones that were stolen after the incident. In the present case prosecution has placed on the record call details, which were marked as Ex.PE/1-8. The defence counsel objected to this document. Amir Kareem (PW-1)-the complainant, during his cross- examination, admitted, "The model, maker, and IME number is not mentioned in my Fard Beyan Ex. PA. It is correct that even today, I have never produced any purchase receipt of mobile phones during the course of the investigation ---I did not move any application or made any complaint before any person of my family regarding missing of two mobile phones around whom the accused was rooming. It is correct that I did not record in my statement Ex.PA any cell number of my mother." Similarly, Fateh Muhammad S.I. (PW-6)-investigating officer during cross- examination has admitted, "It is correct that statement of complainant, produced before me for registration of a case, is silent about the make and model of cell phone and it is also not mentioned that which SIM number is activated in those mobile phones." During cross- examination, Muhammad Ashraf Javed S.I./I.O. (PW-11) admitted, "The complainant neither produced before me any slip of purchasing of mobile phone or mobile box nor did I make it part of the record. Volunteered that the complainant gave me the IMEI numbers of mobiles of the deceased. It is correct that the complainant did not produce the proof of ownership of the cell phone numbers of which IMEI numbers were provided to me. It is correct that in second supplementary statement of the complainant recorded on dated 02.05.2016, there is no mention of Model, colour, make of cell phones." The prosecution's case was based on call details of the mobile phones but has miserably failed to establish its case in this regard, as well. No official of the concerned mobile phone company was produced in the court, nor the call details of the mobile phones were proved on record. The prosecution also failed to prove in whose names the mobile numbers were issued. It has also failed to bring on record any link evidence, pointing out the accusing finger against the appellant.
13. The prosecution also relied on the disclosure statement of the appellant leading to the recovery of stolen articles, i.e., earrings P-1/1-2, Mobile Nokia red color model 106 P-2, and one Zong sim P-3.
But the admissibility of disclosure statement in terms of Article 40 of the Qanun-e-Shahadat Order, 1984, made to a police officer leading to the discovery of a fact depends on how the prosecution proves it. Adnan Mushtaq 2592/11C (PW-9) deposed during cross-examination, "It is correct that amount Rs.65,000/- is not mentioned in my statement u/s 161 Cr. P.C however, the word cash amount is mentioned there. It is correct that the word "removed from the side table and after that he fled away" mentioned in my statement as PW-09 were not mentioned in my statement u/s 161 Cr.P.C. I mentioned ZONG SIM at the time of disclosure of the accused in my statement u/s 161 Cr.P.C. (Confronted with the Ex. DB where the same is not mentioned). I did not mention the registration number of vehicle LEG-1219 in my statement u/s 161 Cr.P.C. I also did not mention the passing of vehicle near Moti Choor mentioned in my statement u/s 161 Cr.P.C." Muhammad Ashraf Javed S.I./I.O. (PW-11) during cross-examination has admitted, "It is correct that no specification/details of any Gold ornaments were mentioned in the complaint by the complainant---- The complainant did not produce before me any slip of purchase of gold ornament." At the cost of repetition, we reproduce the testimony of Muhammad Ashraf Javed S.I./I.O. (PW-11) made during cross-examination, wherein he (PW-11) has admitted that "It is correct that the supplementary statement of complainant Amir Kareem was recorded on 23-01-2006. It is correct that in the supplementary statement there was no mention of any mobile phone, SIM number, or gold ornaments." Soon after the recovery of earrings, P-1/1-2 and Mobile Nokia red color model 106 P-2 were not identified by Amir Kareem (PW-1)-the complainant in the police station in the presence of witnesses nor same were identified by PW-1 in court. Adnan Mushtaq 2592/11C (PW-9) deposed during examination-in-chief, "The IO sealed the parcels three in number through the stamp AR." During cross-examination, Adnan Mushtaq 2592/11C (PW-9) deposed the contrary, "It is correct that at present there is only one sealed parcel before me with three sealed stamps." The recovery was made after five months, five days, and that too from an open shop, and the bag from which recovery was effected was lying open by the side of a wall of the shop. The recovery has not been made from any closed or concealed place but from an open area that is accessible to all and everyone, including those working and visiting the shop, which did not even belong to the appellant; it was insufficient to bring the guilt home to the appellant or to prove that he had the stolen goods. Adnan Mushtaq 2592/HC (PW-9) deposed during cross-examination, "Alleged place of recovery is a shop which was containing shutter, and it was open. At that time, 2 to 3 persons were present there. That area contains only one shop, and there is no partition. It is correct that all the material was opened there. It is correct that the black color bag was openly placed there. The bag was not locked and was open. I did not read the FIR of this case."
Muhammad Ashraf Javed S.I./I.O. (PW-11) deposed during cross-examination that, "At the said time, all the shops were opened. I did not join the nearby shopkeepers in recovery proceedings.
There was door present at the shop but it was open. It is correct that the bag of the accused was lying in corner of the shop. It is correct that the bag was not locked. It is correct that the workers of the shop were present at that time and were working. None of those workers were joined the recovery proceeding." We hold that the prosecution has failed to prove recovery of stolen properties belonging to the deceased, at the instance and from the appellant'.
14. All the above-narrated facts and circumstances lead this Court to only one conclusion: the whole prosecution case seems to be hinging upon conjectures and surmises and had severely failed to show incriminating, corroborative/independent evidence to bring home guilt of the accused in the case of capital charge. The learned trial court was not justified in convicting the appellant while basing upon such un-trustworthy, uncorroborated evidence. The conviction passed by the learned trial court in the circumstances is against all cannons of law recognized for dispensing criminal justice. As per dictates of the law, the benefit of every doubt is to be extended in favor of the accused. In the case of "Muhammad Akram v. The State" (2009 SCMR 230), it has been held as under:- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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 circumstance 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."
The golden principle of law is that the Court should let off a hundred guilty but not convict one innocent person. In the case of "Ayub Masih v. The State" (PLD 2002 SC 1048), it has been held by the Hon'ble Supreme Court of Pakistan that:- "----It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which can not be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
In simple words it means that utmost care should be taken by the Court in convicting an accused.
It has further been held in "The State v. Mushtaq Ahmed" (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".
15. The upshot of the above discussion is that the prosecution had severely failed to bring at home charge against the appellant beyond any reasonable doubt; therefore, in the interest of the safe administration of Criminal Justice, Crl. Appeal No.6256 of 2019 filed by Muhammad Shahzad, the appellant is accepted in toto. The sentence awarded by the learned Additional Sessions Judge, Lahore vide judgment dated 25.01.2019, is set aside, and the appellant is acquitted of the charge.
The appellant-Muhammad Shahzad son Bashir Ahmad is ordered to be released forthwith, if not required in any other case. Murder Reference No.20 of 2019 is answered in the negative, and the sentence of death awarded to Muhammad Shahzad, son of Bashir Ahmad, caste Khoje, resident of Mouza Kamal Pur P.S. Khan Garh, Tehsil and District Muzafar Garh (convict) is Not Confirmed.