F.I.R. which is always considered as “cornerstone” has lost its value in case and superstructure i.e. case of prosecution built on basis of this F.I.R. is bound to fall like house of cards
PLJ 2024 Cr.C. (Note) 83
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Farooq Haider, JJ.
PERVAIZ AHMAD--Appellant
versus
STATE--Respondent
Crl. A. No. 45528-J & M.R. No. 210 of
2019, heard on 31.10.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)--Qatl-e-amd--Conviction and
sentence--Challenge to--Delay in recording statement--Testimony of witness--Any
explanation to justify this delay in recording of his statement and/
introducing him as eye-witness has not been offered by prosecution and by now
it is well settled that if statement of witness is recorded with
delay--Advantageously referred--In such circumstances, testimony of such
witness who has not been mentioned as eye-witness in F.I.R. cannot be termed as
confidence inspiring and in this regard--It is well settled that witness who
introduces dishonest improvement or omission for strengthening case, cannot be
relied--Even otherwise, it is not understandable that when accused was having
sufficient time to wash/clean knife (چھری) then why he kept same in blood stained form and for said
reason also, said recovery is not reliable rather doubtful and in this
regard--In this case, eye-witness and (given-up PW) were recovery witnesses;
so, (PW-8) cannot corroborate his own testimony and on this score also, this
piece of evidence is of no evidentiary value--Held: It is well
established principle of law that single dent/circumstance in case of
prosecution is sufficient for acquittal; can be safely referred-- Nutshell of
above discussion is that prosecution has been failed to prove its case against
appellant; therefore, there is no need to discuss defence
version. [Para
7, 8 & 8-A] D, E, F, H, I & J
2022 SCMR 986, 2006 SCMR 1152, 2021 SCMR 1428,
2019 SCMR 631, 2021 SCMR 810, PLJ 1996 SC 139 and 2022 SCMR 1527.
First Information Report--
----It is well settled that First Information Report lays
foundation of criminal case and when it has not been promptly recorded rather
with delay as stated above and no reasonable explanation regarding its delayed
recording has come on record, then it is fatal for case of
prosecution. [Para
7] A
2019 SCMR 1068, 2019 SCMR 1170, 2019 SCMR
1391, 2019 SCMR 1978, 2021 SCMR 16 & 2021 SCMR 542.
F.I.R.--
----F.I.R. which is always considered as “cornerstone” has lost
its value in case and superstructure i.e. case of prosecution built
on basis of this F.I.R. is bound to fall like house of cards. [Para 7] B
2021 SCMR 23, 2022 SCMR 393 & 2022 SCMR
1527.
Chance witness--
----He was also a “chance witness” and bound to prove valid reason
to justify his coming and presence at relevant “time and place” of occurrence;
though he stated that he received information that appellant was quarrelling
with his niece and he along with (complainant/ PW-6) and (given-up PW) went to
house of appellant yet in his statement before Court he also could not explain
that how and from whom he received said information, therefore, he also could
not prove “cause” of his arrival as well as of other eye-witnesses at relevant
“time and place” of occurrence; therefore, he is also a “chance witness”, who
could not establish any reason regarding his arrival and presence at “time and
place” of occurrence--So, evidence of both aforementioned cited eye-witnesses,
who could not establish any valid reason/cause regarding their presence at “time
and place” of occurrence, is “suspect” evidence and cannot be accepted without
pinch of
salt. [Para
7] C
2015 SCMR 1142.
Medical Evidence--
----So far as medical evidence is concerned, it is trite law that
medical evidence is mere supportive/confirmatory type of evidence; it can tell
about locale, nature, magnitude of injury and kind of weapon used for causing
injury but it cannot tell about identity of assailant who caused injury;
therefore, same is also of no help to prosecution in peculiar facts and
circumstances of
case. [Para
7] G
2019 SCMR 872.
Mr. Kamran Javed Malik, Advocate for Appellant.
Mr. Munir Ahmad Sayal, Deputy Prosecutor General for State.
Khawaja Shoaib Mushtaq, Advocate for Irshad Begum (mother of Sanam
Shehzadi (deceased of the case) for Complainant.
Date of hearing: 31.10.2023.
Judgment
Farooq Haider, J.--This single judgment will dispose of Crl.
Appeal No. 45528-J/2019 filed by Pervaiz Ahmad (appellant) against
his “conviction & sentence” and Murder Reference No. 210/2019 sent
by trial Court, as both the matters have arisen out of one and the same
judgment dated 20.05.2019 passed by Addl. Sessions Judge, Sialkot/trial Court.
2. Pervaiz Ahmad (appellant) was tried in case
arising out of F.I.R. No. 246/2018 dated 28.04.2018 registered under Sections
302, 109, PPC at Police Station: Nekapura, District Sialkot; trial Court after
conclusion of the trial vide impugned judgment dated 20.05.2019 has convicted
and sentenced the appellant as under:
|
Conviction |
Sentence |
|
Under Section 302(b), PPC |
“Death” as Taz’ir on two
counts along with payment of compensation of Rs. 300,000/- to the legal heirs
of Mst. SanamShehzadi (deceased) under Section 544 [sic],
Cr.P.C. and in default of payment of compensation amount to further undergo
S.I. for six months. |
3. Brief facts, as per application (Ex.PC) moved by Rizwan Ahmad
(complainant/PW-6) to Arshad Ali A.S.I. (PW-4) at Police Station: Nekapura,
District: Sialkot on 28.04.2018 for registration of case are that complainant
is resident of Tauheed Town, Nawan Pind Araian, Sialkot and
lives abroad in Saudi Arabia; marriage of sister of the complainant namely
Sanam Shehzadi aged about 30/32 years was executed with Pervaiz Ahmad about ten
years ago and they have been blessed two children i.e. elder son
namely Subhan aged about 7/8 years and daughter namely Rida aged about ¾ years;
Pervaiz Ahmad oftenly used to quarrel with sister of the complainant; he wanted
to sell house, however, sister of the complainant used to refrain him; on
28.04.2018 at about 01:00 (night) complainant received information that Pervaiz
Ahmad was uttering abuses and quarrelling with his sister, upon which,
complainant along with Muhammad Ashraf and Naseer Hussain went to the house of
Pervaiz Ahmad, who was quarrelling with sister of the complainant; he was made
understand (جس کو سمجھایا) due to which he
became silent for the time being; subsequently complainant and PWs slept there
in the Baithak (بیٹیک) and about 03:00 a.m.
(night) woke up after hearing noise/report of cry; electric bulbs of the room
and Courtyard were litting and they saw that Pervaiz Ahmad armed with knife (چهری)was giving repeated blows to Sanam (sister
of the complainant) who was sitting on a cot; they tried to catch/apprehend the
accused but he fled away; they saw that sister of the complainant who becoming
severely injured had expired; Pervaiz Ahmad on the instigation and in
consultation with his brother namely Muhammad Arif, who used to ask him for
selling the house, committed murder of sister of the complainant; complainant
submitted application for legal proceedings.
On the basis of application (Ex.PC), F.I.R.
(Ex.PC/1) was chalked out by Arshad Ali A.S.I. (PW-4).
After completion of investigation, challan
report under Section: 173, Cr.P.C. was submitted against the appellant in the
Court wherein name of Muhammad Arif (co-accused/brother of present appellant)
was placed in Column No. 2 as he was found innocent in the case, appellant was
formally charge sheeted but he pleaded not guilty and claimed trial whereupon
prosecution evidence was summoned; after recording of prosecution evidence,
appellant was examined under Section: 342, Cr.P.C. but he refuted the allegations
levelled against him; he neither opted to appear as his own witness under
Section: 340(2), Cr.P.C. nor produced any evidence in his defence.
Trial Court after conclusion of trial has
convicted and sentenced the appellant as mentioned above through the impugned
judgment dated: 20.05.2019.
4. Learned counsel for the appellant has
submitted that conviction recorded and sentence awarded to the appellant
through impugned judgment are against the ‘law and facts’ of the case; ocular
account is neither trustworthy nor corroborated/supported by any other
independent evidence; prosecution has remained unable to prove its case.
Learned counsel for the appellant finally prayed for acquittal of the
appellant.
5. Learned Deputy Prosecutor General and
learned counsel for the legal heir i.e. mother of the deceased have
supported the impugned judgment and prayed for dismissal of the appeal.
6. Arguments heard. Record perused.
7. It has been noticed that as per case of
prosecution, occurrence allegedly took place in the mid night at about 03:00
a.m. on 28.04.2018 in the area of Tauheed Town, which is situated at a distance
of 3-km from the police station as per Column No. 4 of the F.I.R. (Ex.PC/1),
however, case was got registered by Rizwan Ahmad {complainant/PW-6/brother
of Mst. Sanam Shehzadi (deceased of the case)} through written
application (Ex.PC), which according to case of prosecution, was produced to
Arshad Ali A.S.I. (PW-4) at Police Station: Nekapura, District: Sialkot at 8/9
a.m. on 28.04.2018; as mentioned above, place of occurrence was just at a
distance of 3-k.m. from the police station but case was got registered after
delay of about 5-hours and any explanation in this regard is neither mentioned
in the application (Ex.PC) for registration of case nor otherwise brought on
the record by the prosecution; furthermore, Rizwan Ahmad (complainant/PW-6)
clearly stated during his statement before the Court that police reached at the
place of occurrence after one hour of the occurrence and application was
written by police officer reached at the place of occurrence; relevant portion
of his statement in this regard is hereby reproduced as under:
“Police reached at the place of
occurrence after one hour of the occurrence. Application was written by police
officer reached at the place of occurrence drafted by me.”
In this regard, Urdu version of statement of complainant/PW-6 is
also hereby reproduced below:
"پولیس وقوعہ کے ایک گھنٹہ بعد وہاں پہنچی تھی۔
درخواست پولیس والے آفیسر نے میرے بتانے پر تحریر کی تھی۔"
This statement of the complainant/PW-6 on the one hand contradicts
aforementioned stance of the prosecution that complainant moved application
(Ex.PC) for registration of case in the police station whereas on the other
hand reflects that police reached at the place of occurrence one hour after the
occurrence and occurrence took place at 03:00 a.m., meaning thereby that police
reached at the place of occurrence at 04:00 a.m., then why case was not
registered immediately thereafter rather at 08:09 a.m. on 28.04.2018;
furthermore, question does arise that where is the application which was
recorded by police officer at the spot and why case was not registered on the
basis of said application? It is also relevant to mention here that distance
between place of occurrence and hospital was just 7-k.m. and in this regard,
relevant portion of statement of complainant/PW-6 is hereby reproduced:-
“Distance
between place of occurrence and hospital is about 07 kilometers.”
However, perusal of post-mortem examination report (Ex.PA)
reflects that complete documents were received from the police on 28.04.2018 at
04:00 p.m. and post-mortem examination over dead body was conducted on
28.04.2018 at 04:15 p.m. Dr. Sidra Aslam (PW-1), who conducted post-mortem
examination over dead body of deceased of the case, in her statement before the
Court clearly stated that she conducted post-mortem examination at 04:15 p.m.
on 28.04.2018; in this regard, relevant portion her statement is reproduced below:
“The time of death was on
28.04.2018 at 3:00 am and examination of dead body was done at 04:15 p.m. on
28.04.2018.”
Doctor/PW-1 further deposed that as soon as she received complete
papers, she commenced the proceeding of autopsy; in this regard, relevant
portion of her statement is reproduced as under:
“I was on duty for 24 hours on
28.04.2018. as soon as I received the complete papers I commenced the
proceeding of autopsy.”
Therefore, autopsy over dead body of the deceased lady was
conducted after about lapse of more than 13-hours of the occurrence, which
state of affairs clearly suggests that none of the cited eye-witnesses
including the complainant was present at the relevant “time and place” of
occurrence, time was consumed for engaging/procuring witnesses, tailoring story
for prosecution, then getting the case registered in its present form and
completing police papers for post-mortem examination. It further reflects that First
Information Report (F.I.R.) was not recorded at the stated time rather with
much delay however ante-time was shown in the record in this regard; therefore,
neither any sanctity nor evidentiary value can be attached to the First
Information Report (F.I.R.) in the case and it cannot provide any corroboration
to the case of prosecution against the appellant rather it has lost its
efficacy and smashed the case of prosecution; in this regard, guidance has been
sought from the case of “Haroon Shafique versus The State and others” (2018
SCMR 2118). By now it is well settled that First Information Report lays
foundation of the criminal case and when it has not been promptly recorded
rather with delay as stated above and no reasonable explanation regarding its delayed
recording has come on the record, then it is fatal for the case of prosecution;
in this regard, guidance has been sought from the case of “Muhammad
Rafique alias Feeqa versus The State” (2019 SCMR 1068), “Tariq
Mehmood versus The State and others” (2019 SCMR 1170), “Tariq
Ali Shah and another versus The State and others” (2019 SCMR
1391), “Safdar Mehmood and others versus Tanvir Hussain and others” (2019
SCMR 1978), “Muhammad Adnan and another versus The State and others” (2021
SCMR 16) and “Ghulam Mustafa versus The State” (2021 SCMR
542). Furthermore, F.I.R. which is always considered as “cornerstone” has lost
its value in the case and superstructure i.e. case of prosecution
built on the basis of this F.I.R. is bound to fall like house of cards; in this
regard, guidance has been sought from the case of “Ghulam Abbas and
another versus The State and another” (2021 SCMR 23), “Pervaiz
Khan and another versus The State” (2022 SCMR 393), “Abdul
Ghafoor versus The State” (2022 SCMR 1527).
Ocular account in the case produced by
prosecution comprises of statements of Rizwan Ahmad (complainant/PW-6), Subhan
(PW-7) and Muhammad Ashraf (PW-8). Rizwan Ahmad (complainant/PW-6) is brother
of Mst. SanamShehzadi (deceased of the case), Subhan (PW-7) is
maternal nephew (بھانجا) of the complainant and son of the deceased lady whereas
Muhammad Ashraf (PW-8) is maternal uncle (ماموں) of the complainant. Admittedly, Rizwan
Ahmad (complainant/PW-6) is not resident of the house of occurrence, therefore,
he is a “chance witness” and was bound to prove valid reason to justify his
coming and presence at the relevant “time and place” of occurrence; though as
per claim of prosecution, on 28.04.2018 at about 01:00 a.m. (night),
information was received by the complainant/PW-6 that Pervaiz Ahmad (appellant)
was uttering abuses and quarrelling with his sister, he along with
witnesses i.e. Muhammad Ashraf (PW-8) and Naseer Hussain (given-up
PW) went to the house of Pervaiz Ahmad (appellant) yet how he came to know about
said quarrel, what was the source in said regard, through whom he received said
information and name of any witness, who heard or saw and informed the
complainant about said quarrel, is neither mentioned in the application (Ex.PC)
for registration of case nor brought on record during trial, hence, this very
reason which was claimed by the complainant/PW-6 as main “cause” of
his arrival as well as of cited eye-witnesses at the “time and
place” of occurrence, could not be proved; therefore, he is a
“chance witness”, who could not establish any valid reason regarding his
arrival and presence at the “time and place” of occurrence.
Similarly, Muhammad Ashraf (PW-8) is also not
resident of the house of the occurrence rather he himself deposed that distance
between his residence and place of occurrence is about two kilometers; in this
regard; relevant portion of his statement is as under:
“The distance between my
residence and place of occurrence is about two kilometers.”
So, he was also a “chance witness” and bound to
prove valid reason to justify his coming and presence at the relevant “time and
place” of occurrence; though he stated that he received information that
Pervaiz Ahmad was quarrelling with his niece and he along with Rizwan Ahmad
(complainant/ PW-6) and Naseer Hussain (given-up PW) went to the house of
Pervaiz Ahmad (appellant) yet in his statement before the Court he also could
not explain that how and from whom he received said information, therefore, he
also could not prove the “cause” of his arrival as well
as of other eye-witnesses at the relevant “time and place” of
occurrence; therefore, he is also a “chance witness”, who
could not establish any reason regarding his arrival and presence at the “time
and place” of occurrence. So, evidence of both aforementioned cited
eye-witnesses, who could not establish any valid reason/cause regarding their
presence at the “time and place” of occurrence, is “suspect” evidence
and cannot be accepted without pinch of salt; guidance in this regard has been
sought from the case of “Mst. Sughra Begum and another vs. Qaiser
Pervez and others” (2015 SCMR 1142) and relevant portion from
paragraph No. 14 of said case law is hereby reproduced:
“14. 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.
Further guidance on the subject has been sought from the cases
of “G. M. Niaz versus The State” (2018 SCMR 506). “Muhammad
Ashraf alias Acchu versus The State” (2019 SCMR 652), “Sufyan
Nawaz and another versus The State and others” (2020 SCMR 192), “Mst.
Mir Zalai versus Ghazi Khan And Others” (2020 SCMR 319), “Ibrar
Hussain and another versus The State” (2020 SCMR 1850) and “Sarfraz
and another versus The State” (2023 SCMR 670).
Perusal of Column No. 8 of the Inquest Report
(Ex.PM) reflects that mouth and eyes of the deceased were semi open
(منہ تھوڑا کھلا انکھیں تھوڑی کھلی ہوئیں)
and statement of Dr. Sidra Aslam (WMO/PW-1) also reveals that mouth was open
and eyes of the deceases were semi-open; Rizwan Ahmad (complainant/PW-6) is
brother of the deceased, Muhammad Ashraf (PW-8) is maternal uncle of the
complainant whereas Naseer Hussain (given-up PW) is brother-in-law “بہنوئی”of the complainant, had they been present
at the place of occurrence, at the relevant time, then they would have
definitely closed the mouth and eyes of the deceased; while observing so,
guidance has been sought from the cases of “Muhammad Asif versus The
State” (2017 SCMR 486) and “Muhammad Rafique alias Feeqa
versus The State” (2019 SCMR 1068).
Rizwan Ahmad (complainant/PW-6/brother of
deceased), Muhammad Ashraf (PW-8/maternal uncle of the complainant) and Naseer
Hussain (given- up PW/brother-in-law (“بہنوئی”)
of the complainant) were three in number and assailant was only one but they
did not attempt to intervene at the time of occurrence particularly when it is
not case of prosecution that Pervaiz Ahmad (appellant) was equipped with any
sophisticated fire-arm weapon rather he was having a knife (چھری) only and it was very easy for them to
intervene/catch hold/apprehend and overpower the assailant and rescue the
deceased when he was giving repeated blows of knife (چھری) but they remained there as silent spectators; furthermore, it
was not impossible for them to apprehend the assailant after the occurrence
because according to site-plan (Ex.PJ), there was only one door for entry and
exit from the room where occurrence statedly took place and said door was
occupied by the complainant and other cited eye-witnesses but they could not
apprehend him. Said conduct of aforementioned cited eye-witnesses including the
complainant, who are closely related to the deceased, falsifies their presence
at the place of occurrence; in this regard, guidance has been sought from the
case of “Pathan versus The State” (2015 SCMR 315) and “Zafar
versus The State and others” (2018 SCMR 326); relevant portion from
the latter case law is being Reproduced:
“7. The conduct of the
witnesses of ocular account also deserves some attention. According to
complainant, he along with UmerDaraz and Riaz (given up PW) witnessed the whole
occurrence when their father was being murdered. It is against the normal human
conduct that the complainant, UmerDaraz and Riaz (PW since given up) did not
make even an abortive attempt to catch hold of the appellant and his co-
accused particularly when the complainant himself has stated in the FIR and
before the learned trial Court that when they raised alarm, the accused fled
away. Had they been present at the relevant time, they would not have waited
for the murder of their deceased father and would have raised alarm the moment they
saw the appellant and his co-accused standing near the cot of their father”
So far as Subhan (PW-7) is concerned, though as per claim of the
prosecution, he was minor child of deceased of the case and produced as
eye-witness of the occurrence yet he was merely mentioned as child of deceased
lady in the application (Ex.PC) for registration of case but not mentioned as
“eye-witness” in said application as well as in F.I.R. (Ex.PC/1) however was
introduced as eye-witness through dishonest improvement by the complainant
(PW-6) and relevant portion of statement of complainant/PW-6 is hereby
reproduced:-
“The witnesses of occurrence
are myself, Naseer, Ashraf and Subhan.”
However, he was duly confronted and it was proved as dishonest
improvement; in this regard, relevant portion of his statement is reproduced as
under:
“It is correct that there was
no mention of PW Subhan in the said application Ex. PC.”
Muhammad Ashraf (cited eye-witness/PW-8) in his statement before
the Court did not state that occurrence was also witnessed by Subhan (PW-7)
rather he clearly stated that occurrence was witnessed by him, Rizwan Ahmad
(complainant/PW-6) and Naseer (given-up PW); in this regard, relevant portion
of his statement is reproduced as under:
“The occurrence was witnessed by myself,
Rizwan and Nasser.”
Perusal of site-plan (Ex.PJ available at Page No. 121-122 of the
Paper Book) of the place of occurrence prepared by draftsman on the pointing
out of cited eye-witnesses including complainant, reveals that Subhan (PW-7)
has neither been mentioned as eye-witness of the occurrence nor as present in
the house of occurrence in the same. Till 03.05.2018, he was not shown as
eye-witness of the occurrence rather his statement was first time recorded by
the police after 5-days of the occurrence i.e. on 03.05.2018 and in
this regard, relevant portion of statement of Subhan (PW-7) is reproduced
below:
“The police recorded my
statement on 03.05.2018. I did not mention the date of occurrence in my
statement recorded before police.”
Any explanation to justify this delay in recording of his
statement and introducing him as eye-witness has not been offered by the
prosecution and by now it is well settled that if statement of the witness is
recorded with delay, then it diminishes its evidentiary value; in this regard,
case of “Bashir Muhammad Khan versus The State” (2022 SCMR
986) can be advantageously referred. In such circumstances, testimony of such
witness who has not been mentioned as eye-witness in the F.I.R. cannot be
termed as confidence inspiring and in this regard, cases of “Rashid
Ahmed versus Muhammad Nawaz and others” (2006 SCMR 1152) and “Abdul
Latif versus Noor Zaman and another” (2021 SCMR 1428) can be safely
referred.
It is important to mention here that Subhan
(PW-7) in his statement before the Court, did not mention presence of
complainant and other cited eye-witnesses i.e. Muhammad Ashraf
(PW-8) and Naseer (given-up PW) at the “time and place” of occurrence.
Complainant also introduced aforementioned dishonest improvement qua
introducing Subhan (PW-7) as eye-witness and by now it is well settled that
witness who introduces dishonest improvement or omission for strengthening the
case, cannot be relied; in this regard, case of “Muhammad Arif versus
The State” (2019 SCMR 631) and “Khalid Mehmood and another
versus The State and others” (2021 SCMR 810) can be advantageously
referred.
It is relevant to mention here that
complainant in his application (Ex.PC) for registration of case claimed
that Mst. Sanam Shehzadi (deceased lady of the case) was his
sister, who married with Pervaiz Ahmad (appellant) but during cross-examination
admitted that his sister obtained divorce from present appellant after filing
suit for dissolution of marriage and then contracted marriage with Foreman
working in the factory who was resident of KharotaSyedan and said marriage
lasted for about 2-3 months; relevant portion of his statement is hereby
reproduced:
“My sister got divorce from
accused Tariq Parvez by filing a suit for dissolution of marriage on
15.12.2011. It is correct that after becoming effective of that divorce
proceeding, certificate of effectiveness was duly issued by Union council No.
21 namely Cherind on 02.05.2012. After that divorce my deceased sister got
married with a foreman working in that factory. Subhan child PW was living with
her mother. The said foreman was resident of KharotaSyedan. The marriage
between my deceased sister and foreman lasted for two three months.”
Similarly, Muhammad Ashraf (PW-8) admitted during his statement
before the Court that deceased of the case obtained divorce from present
appellant and contracted marriage with Mohsin Shah, Foreman; in this regard,
relevant portion of his statement is reproduced below:
“It is correct that my maternal
niece since dead got married with that Mohsin Shah foreman and she got divorce
from present accused Parvez.”
It has been admitted by the complainant/PW-6 that deceased of the
case obtained divorce from present appellant and contracted marriage with
Mohsin Shah, Foreman and said marriage lasted for about 2-3 months but neither
it has come on the record nor proved by the prosecution that when she again
contracted marriage with present appellant; any Nikahkhawan or
witness of said re-marriage has not been produced during trial and even it has
not been mentioned in the statements of the complainant as well as cited eye-witnesses
before the Court that deceased lady again contracted marriage with the
appellant; so, claim of the complainant/ PW-6 and Muhammad Ashraf (PW-8) that
appellant had been quarrelling with the deceased lady and on said night they
received information that he was quarrelling with said lady and due to said
reason, they went over there, is a question mark and raises eyebrows because
when she had already obtained divorce from the appellant and any material has
not come on the record to the effect that she again contracted marriage with
him, then how and why she was residing with the appellant in his house, hence,
aforementioned claim of the complainant as well as prosecution in this regard,
is neither plausible nor could be proved and even otherwise against the normal
human conduct. Therefore, it appears to be a cock and bull story without any
evidence.
It is also relevant to mention here that as
per Column No. 4 of the F.L.R. (Ex.PC/1), occurrence took place in the area of
Tauheed Town but during cross-examination, complainant/PW-6 clearly stated that
distance between Tauheed Town and place of occurrence is 400/500 yards; in this
regard, relevant portion of his statement is reproduced as under: -
“The distance between Toheed
Town and place of occurrence is 400/500 yards.”
So, when on the one hand as per F.I.R. (Ex.PC/1), occurrence took
place in the area of Tauheed Town whereas complainant stated that distance
between Tauheed Town and place of occurrence is 400/500 yards, then exactness
of place of occurrence is also doubtful in the peculiar facts and circumstances
of the case.
It Is also relevant to mention here that blood
was secured from place of occurrence through cotton and said blood stained
cotton was sent to Punjab Forensic Science Agency, Lahore and though as per
report of PFSA, Lahore (ExPQ), human blood was identified on the same yet DNA
profile obtained from the same was found as partial and inconclusive; in this
regard, relevant portions of aforementioned report of PFSA (Ex.PQ) are
reproduced below: -
“1. Cotton.”
“The DNA profile obtained from
item #1 is partial and inconclusive.”
So, it could not conclusively opined by the Punjab Forensic
Science Agency, Lahore that blood collected through cotton from the place of
occurrence was of deceased lady of the case and this fact also raises eyebrows
regarding certainty of the place of occurrence.
When all aforementioned factors are taken into
consideration in totality, then ocular account furnished by complainant/PW-6,
Subhan (PW-7) and Muhammad Ashraf (PW-8) is neither confidence inspiring nor
truthful; hence, same cannot be relied and is hereby discarded.
So far as medical evidence is concerned, it is
trite law that medical evidence is mere supportive/confirmatory type of
evidence; it can tell about locale, nature, magnitude of injury and kind of
weapon used for causing injury but it cannot tell about identity of the
assailant who caused the injury; therefore, same is also of no help to the
prosecution in peculiar facts and circumstances of the case, in this regard,
case of Sajjan Solangi versus The State (2019 SCMR 872) can be
safely referred.
As far as motive is concerned, it was claimed
by the complainant/PW-6 in application (Ex.PC) for registration of case that
Pervaiz Ahmad (appellant) used to quarrel with deceased of the case/sister of
the complainant as he wanted to sell the house whereas Mst. SanamShehzadi
was nefraining him to do so, during his statement before the Court,
complainant/PW-6 also deposed in this regard; relevant portion of his statement
is hereby reproduced:-
“Tariq Parvez used to quarrel
with my sister SanamShahzadi, the cause of dispute was that he insisted my
sister to sell out the property measuring three marlas built house situated at
Toheed Town, Sialkot.”
It was not claim of the complainant that said house was in the
name or ownership of deceased lady and appellant was compelling her to sell the
same and any document to support this fact that said house was in the name of
deceased lady has not been produced by the prosecution rather Muhammad Ashraf
(PW-8) during his statement before the Court stated that said house was in the
name of the appellant; in this regard, relevant portion of his statement is as
under:-
“The said house was in the name
of accused Parvez present in the Court.”
Furthermore, it has not brought on the record by the prosecution
that to whom appellant was selling said house; even name of any witness in
whose presence, quarrel over said issue took place, was neither mentioned in
the application (Ex.PC) for registration of case nor any such witness was
produced before the Court to prove the same. Even otherwise, if said house was
not in the name of the deceased lady rather in the name of present appellant,
then he was in a quite good position to sell the same without getting any prior
permission from the deceased lady and mere refraining of said lady was of no
avail particularly when it has come on record that she had already obtained
divorce from the appellant and then contracted marriage with another person
namely Mohsin Shah, Foreman and thereafter any proof to the effect that she had
again contracted marriage with the present appellant, is not available on the
record, thus, said claim of the prosecution as motive of the occurrence is
neither appealing to the common prudent man nor plausible; therefore, said
motive has not been proved.
So far as recovery of knife (چھری)/P-8 on the pointing out of the appellant
is concerned, suffice it to say that though it is claim of the prosecution that
appellant got recovered knife (چهری)
on 04.05.2018 in the presence of Muhammad Ashraf (PW-8) and Naseer Hussain
(given-up PW) and same was found as blood stained as per report of Punjab
Forensic Science Agency, Lahore (Ex.PQ) yet as per own case of the prosecution,
it was got recovered from an under construction house of one MehrQaisar which
was a common place and easily accessible; in this regard, relevant portion of
statement of Muhammad Ashraf (PW-8) is hereby reproduced below:
“The place from where the
weapon of offence was recovered is a common place, where everybody can come
easily.”
So, on this score alone also, recovery is inconsequential; in this
regard, case of “Muhammad Saleem versus Shabbir Ahmed and others” (2016
SCM R 1605) can be advantageously referred and relevant portion from the same
is hereby reproduced below:
“We have noticed that the
weapon in issue had allegedly been recovered from a place which was open and
accessible to all and sundry and, thus, it was unsafe to place reliance upon
such recovery.”
In this regard, guidance can also be sought from the case of “Amir
Muhammad Khan versus The State” (2023 SCMR 566); relevant Portion from
said case law is also reproduced below:
“So far as recovery of
blood-stained hatchet is concerned, the same was allegedly recovered on the
pointation of appellant from a thoroughfare, which was easily accessible to
everyone, therefore, it is Settled law that the same is inconsequential.”
Admittedly, owner of said under construction house from where
knife (چھری) P-8 was allegedly recovered, was not
interrogated during investigation of the case; in this regard, relevant portion
of statement of Irfan Ashraf S.I./Investigating Officer (PW-10) is reproduced
as under:
“I did not interrogate the
owner of house from where the crime weapon Churri was recovered.”
Investigating Officer (PW-10) also stated that it was commonly
available in the market and house of recovery was un-attended under
construction house; relevant portion of his statement is reproduced below:
“It is correct that kind of
recovered weapon, is commonly available in the market. There was no
any other person available at the place of Recovery as it was under
construction house.”
(emphasis added)
He further deposed that said weapon was recovered from a box which
was locked but he did not take into possession said lock or any key of said
lock; in this regard, relevant portion of his statement is reproduced as under:
“The box from where the crime
weapon was recovered, was locked from outside. The accused who concealed the
key of lock of said box, produced it before me and unlocked said lock. I
did not take into possession the said lock, key and the box from where weapon
of offence was recovered.
(emphasis added)
Even otherwise, it is not understandable that when accused was
having sufficient time to wash/clean the knife (چھری), then why he kept the same in blood stained form and for said
reason also, said recovery is not reliable rather doubtful and in this regard,
case of “Basharat and another versus State” (PLJ 1996 SC 139)
can be safely referred; relevant portion from the same is hereby reproduced:
“11. The occurrence took place
on 20.4.1988. Basharat appellant was arrested on 28-4-1988. The blood-stained
churri was allegedly recovered from his house on 30-4-1988. It is not
believable that he would have kept blood-stained churri intact in his house for
ten days when he had sufficient time and opportunity to wash away and clean the
blood on it.”
Furthermore, perusal of report of Punjab Forensic Science Agency,
Lahore )Ex.PQ) reveals that though swabs taken from the blade of the knife (چھری) was found as blood stained yet swabs
taken from handle of the same (which was marked as “Item No. 2.2”) was not got
analyzed; in this regard, relevant portions of aforementioned report of PFSA
(Ex.PQ) are reproduced below:
“2.2 Swab(s) taken from the handle of the
“churri”.”
“No analysis was conducted on item #2.2 at
this time.”
So, report of Punjab Forensic Science Agency, Lahore (Ex.PQ) has
not conclusively proved that said knife (چهری)
was used by the appellant.
Though recovery is a corroborative piece of
evidence and it has to corroborate the ocular account yet it is trite law that
eye-witness cannot corroborate himself and corroboration must come from
independent source i.e. evidence of other witness; in this regard
case of “Mst. Zahida Saleem versus Muhammad Naseem and others” (PLD
2006 Supreme Court 427), “Mst. Sughra Begum and another vs. Qaiser
Pervez and others.” (2015 SCMR 1142) and “Mst. Rukhsana Begum
and others vs Sajjad and others” (2017 SCMR 596), can be referred;
relevant portion from “Mst. Zahida Saleem’s case (supra) is
reproduced as under:
“In the present case the
prosecution had produced P.W.6 and P.W.7 to prove the motive, ocular account
and recovery. In the instant case the eye-witnesses and the recovery witnesses
being the same, as mentioned above, the question of corroboration would be a
mere farce. Whenever any corroboration is required, it empties that it should
be an independent one. If the corroboration is also through the same witness
whose statement is required to be corroborated it will be no corroboration in
the eye of law in these circumstances, we are of the opinion that both the
Court below were justified to ignore the recoveries.
In this case, Muhammad Ashraf (eye-witness/PW-8) and Naseer
Hussain (given-up PW) were recovery witnesses; so, Muhammad Ashraf (PW-8)
cannot corroborate his own testimony and on this score also, this piece of
evidence is of no evidentiary value.
Hence, for all aforementioned reasons,
recovery is also of no help to the case of prosecution.
8. It is well established principle of law
that single dent/ circumstance in case of prosecution is sufficient for
acquittal; in this regard, case of “Abdul Ghafoor versus The State” (2022
SCMR 1527) can be safely referred.
8-A. Nutshell of the above discussion is that
prosecution has been failed to prove its case against the appellant; therefore,
there is no need to discuss defence version.
9. In view of, what has been discussed above,
Criminal Appeal No. 45528-J/2019, filed by Pervaiz Ahmad (appellant), is
allowed; conviction recorded and sentence awarded to the appellant through
impugned judgment dated 20.05.2019 is hereby set aside. Appellant is acquitted
of the charge, he shall be released from the jail forthwith, if not required in
any other case.
10. Resultantly, death sentence awarded to
Pervaiz Ahmad (appellant) is NOT CONFIRMED and Murder
Reference (M. R. No. 210 of 2019) is answered in NEGATIVE.
(A.A.K.) Appeal
allowed
.jfif)
