SHEHRAM SARWAR CH. J. Anees ur Rehman (appellant) along with his co-accused namely Farhan Tahir was tried by learned Addl. Sessions Judge, Lahore in case FIR No.327 dated 17.04.2016, offence under Sections 302 and 34, P.P.C., registered at Police Station Ghalib Market District Lahore for the murder of his wife Mst. Badar-un-Nisa (deceased) daughter of the complainant. Vide judgment dated 20.03.2019 passed by learned trial court, the appellant has been convicted under Section 302(b), P.P.C. and sentenced to imprisonment for life, with a further direction to pay Rs.5,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof, to further undergo six months SI. Benefit of Section 382-B Cr.P.C. was extended to the appellant. Through the same judgment, Farhan Tahir, co-accused of the appellant was acquitted of the charge by extending him benefit of doubt. Assailing the above conviction and sentence, the appellant has filed the appeal in hand. The complainant has also preferred a Crl. Revision No.18891 of 2019 for awarding death sentence to the appellant and his co-accused. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PE/1) registered on the written application (Ex.PG) of Zaheer Babar, complainant (PW.11) is that about six years prior to the occurrence, his daughter namely Mst. Badar-un-Nisa was married to Anees ur Rehman (appellant) and out of this wedlock, two daughters were born. The appellant used to torture Mst. Badar-un-Nisa and ousted her from the house. On 17.04.2016 at 3:30 a.m. (night) the appellant along with his unknown friends committed murder of Mst. Badar-un-Nisa after torturing her and he just to save his skin made a phone call to the complainant that something had happened with Mst. Badar-un-Nisa and she was lying on the ground. Upon receiving this information, the complainant reached there and saw that Mst. Badar-un-Nisa was lying on the floor in unconscious condition and blood was dozing from her, ear and head. Mst. Badar-un-Nisa was shifted to the Services Hospital, Lahore for medical treatment through rescue 1122 and she was declared dead. It was alleged that the appellant along with his co-accused committed murder of Mst. Badar-un-Nisa (deceased) after torturing her.
3. Arguments heard. Record perused.
4. As per prosecution case, the occurrence allegedly took place on 17.04.2016 at 3:30 a.m. (night) whereas the matter was reported to the police through written application (Ex.PG) of the complainant on the same day at 6:10 a.m. and formal FIR was registered at 6:30 a.m. The distance between police station and the place of occurrence is just three kilometers. There is a delay of about two hours and forty minutes in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court the complainant (PW.11) did not utter even a single word about the above said delay.
Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain v. The State" (2019 SCMR 274), "Abdul Ghafoor v. The State" (2022 SCMR 1527) and "Pervaiz Khan and another v. The State" (2022 SCMR 393). Undisputedly, the postmortem examination of the dead-body of Mst. Badar-un-Nisa (deceased) was conducted on the next day i.e. 18.04.2016 at 10:30 a.m. with a delay of about thirty one hours after the occurrence. Dr. Mansora Mirza. (PW.1), who conducted autopsy of dead-body of the deceased, stated in her cross- examination that the delay caused in postmortem examination was not on her part rather police submitted police papers with delay. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed v. The State" (2011 SCMR 1190) and "Nazeer Ahmed v. The State" (2016 SCMR 1628).
5. Admittedly, Zaheer Babar, complainant (PW.11) had not seen the incident and his testimony is based on hearsay evidence as he received the information about the occurrence from his wife as well as, appellant, therefore, the same is excluded from consideration. Ocular account in this case consists upon the solitary statement of Mst. Ayesha Badar (PW.10), who was real daughter of the appellant and the deceased. Before the learned trial court, it was case of the said PW that upon hearing the noise she woke up and saw that the appellant (father) and deceased (mother) were quarrelling with each other and the appellant was beating the deceased; the deceased managed to get free from the clutches of the appellant and she was in the door when the appellant hit her with hammer on backside of her head, who fell down; the appellant dragged her in the room and strangulated her through a sting and thereafter the appellant fled away from there. The presence of the said PW on the spot at the time of incident is doubtful in nature because Zahid, EMT (PW.3), who along with Riaz EMT (given up PW) carried the deceased in injured condition to Services Hospital, Lahore, stated in his cross-examination that as per record of control log book, the information about the occurrence was provided by the appellant and the appellant took him inside the house where the deceased was lying and after some time, father of appellant reached there and nobody else was present there. Moreover, the said PW was not cited as a witness in the FIR.
Even, the complainant (PW.11) in his examination-in-chief did not mention her name as an eye- witness of the incident. It has also been brought on record during cross-examination conducted on Muhammad Khalid, SI/I.O. (PW.15) that during investigation, the complainant did not record any statement, in which the name of Mst. Ayesha Badar (PW.10) was disclosed as an eye-witness.
Muhammad Khalid, SI/I.O. (PW.15) has alto conceded in his cross-examination that in fard bayan, FIR, supplementary statement, inquest report, injury statement, applications for postmortem examination and issuance of dockets, no where it is mentioned about eye-witnesses including Mst, Ayesha Badar (PW,10). So far as extra-judicial confession allegedly made by the appellant before Liaqat Ali (PW.14) is concerned, it was case of PW.14 before the learned trial court that he was sitting in his baithate at about 1:00/2:00 p.m. where the appellant came, confessed his guilt regarding commission of crime and asked him to get pardoned from the complainant. I have noted that there was no occasion for the appellant to make such confession before him because at that time, there was no strong evidence against appellant regarding his involvement in this crime. Moreover, it is not understandable as to why the appellant went to Liaqat Ali (PW.14) for making extra-judicial confession when he was neither influential person nor closely related to the complainant or the appellant. The most important and natural purpose of making extra-judicial confession is to seek help from a third person and the same is usually sought from an influential person who had some authority/power in the society but in the case in hand the witnesses of extra-judicial confession was an ordinary person. Furthermore, extra-judicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extra-judicial confession too is almost equal to naught,. keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extra-judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source, therefore, in my view this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police chicanery. Reliance is placed on case laws titled as "Hamid Nadeem versus The State"
(2011 SCMR 1233), "lmran alias Dully and another versus The State and others" (2015 SCMR 155), "Muhammad Nawaz and others versus The State and others" (2016 SCMR 267) and "Nasir Javaid and another v. The State" (2016 SCMR 1144). No solid evidence qua motive part of incident was produced by the prosecution during the trial and the same was rightly disbelieved by the learned trial Court in para No.42 of the impugned judgment. As far as alleged recoveries of dupatta (P.10) and Hammer (P.11) at the instance of appellant is concerned the same is inconsequential for the reasons that the same are ordinary things, easily available in the market. Moreover, the prosecution has 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. Reliance may be placed on case law titled as "Muhammad Ismail and others v. The State" (2017 SCMR 898). The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605). Considering overall circumstances of the case, I am of the view that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for main-taining the conviction/sentence of the appellant.
6. As far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there% is no need to discuss the same which is exculpatory in nature. .
7. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230),
8. For the foregoing reasons, the appeal in hand filed by Anees ur Rehman (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 20.03.2019 passed by the learned trial Court are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
9. In view of above discussion, Crl. Revision No. 18891 of 2019 filed by the complainant having no substance is dismissed.