State vs Muhammad Ishfaq

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

Criminal Appeal No. 387 of 2010 (Muhammad Ashfaq V. The State) (M.R. NO. 48 of 2010)

Date of hearing: 15.04.2014 Appellants by: Mr. Zafar Iqbal Awan, Mr. Ghazanfar Ali Khan and Mr.

Tariq Mehmood, Advocates Complainant by: Nemo despite service Respondent by: Mr. Asghar Ali Gill, DPG Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 387 of 2010 filed by Muhammad Ashfaq present appellant and Murder Reference No.48 of 2010, arising out of the same judgment dated 12.10.2010 passed by learned Additional Sessions Judge, Haroonabad district Bahawalnagar according to which the present appellant was convicted and sentenced as under:-

(1)was convicted under section 302(b) PPC and sentenced to death for committing Qatl-i-Amd of Mst: Zulekhan Bibi deceased along-with compensation Rs.1,00,000/- and in default thereof further undergo six months S.I. He was also convicted under section 365-B PPC and sentenced to life imprisonment alongwith fine Rs.20,000/- and in default thereof further undergo six months S.I He was also convicted under section 376 PPC and sentenced to ten years R.I alongwith fine Rs.20,000/- and in default thereof further undergo sixmonths S.I.

in case FIR No. 102 dated 15.03.2010 under sections 302, 365-B, 376, 201 PPC police station, Faqirwali, Tehsil Haroonabad district Bahawalnagar.

2.Brief facts of the case as given by the complainant Muhammad Asghar (PW-1) in his complaint (Ex.PA) upon which FIR (Ex.PA/1) was registered are that he is resident of Chak No. 75-4-R and his sister Zulekhan Bibi was married with Muhammad Rafique (given up PW) and from this wedlock 3 sons and 3 daughters were born. Muhammad Ashfaq accused present appellant had lustful eyes upon his sister. His brother-in-law (Behnoi) forbade him and the accused/present appellant oftenly use to chase his

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sister. He stated that one week prior to the present occurrence his sister came to his house. On 13.03.2010 at evening time, he alongwith his wife went to participate in marriage ceremony of their relatives, when they returned home his sister was missing from house. He started search for his sister whereupon Muhammad Anwar (PW-2) and Muhammad Siddiq (PW-

3)told him that they have seen Mst.Zulekhan Bibi in the company of accused present appellant on a motorbike who abducted her forcibly in their view. He alongwith PWs started search for his sister but without success. On 15.03.10 at about 08:30 a.m. people of vicinity informed him that they had seen the dead body of Mst. Zulekhan Bibi lying in the wheat crop of one Mehnga R/O our chak. He alongwith PWs proceeded to the field and saw that the dead body of his sister was lying there. Muhammad Ashfaq accused/present appellant abducted his sister Mst. Zulekhan Bibi in order to commit sexual intercourse with her and murder her in order to screen the evidence of Zina.

3.After registration of the case investigation started and on completion of the investigation, Challan was submitted in the court.

4.Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 11.05.2010 against present appellant Muhammad Ashfaq under section 302, 365-B, 376, 201 PPC to which he pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Muhammad Asghar complainant as PW-1, Muhammad Anwar PW-2, Muhammad Siddiq PW-3, Muhammad Afzal PW-4, Muhammad Sarwar PW-5, Muhammad Yasin Patwari PW-6, Abdul Rasheed PW-7, Mumtaz Hassan PW-8, Muhammad Shafiq PW-9, Ayesha Attique Lady Doctor PW-10, Maqsood Saleem SI/I.O PW-11 whereas PWs Muhammad Rafique and Abdul Ghaffar given up being unnecessary by the prosecution and tendered in evidence complaint Ex.PA, copy of FIR Ex.PA/1,

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Recovery of Chadar Ex.PB, recovery memo of last worn clothes of the deceased Ex.PC, site plan Ex.PD, post mortem report Ex.PE, inquest report Ex.PF, report of Chemical Examiner Ex.PG & Ex.PH, report of Forensic Histopathalogist Ex.PI and closed the prosecution evidence.

6.Medical evidence was furnished by Ayesha Attique, Lady Doctor, Civil Hospital Haroonabad who stated that on 15.03.2010 at 2 pm she conducted postmortem examination on the dead body of Mst. Zulekhan Bibi and observed as under: - “External appearance.

The dead body of middle age woman lying straight on post mortem table bearing purple colour Shalwar, Qameez, Dupatta and off white colour, Shameez and light brown brazier with protruded tongue, eyes are bulging out, ear froth from both nostrils face is decongested and petechian haemorrhage present on face, neck is slightly swollen, postmortem staining present on dependent parts and dark brown in colour rigor mortis slightly present.

Injury No.1.

There is 10 cm x 3 cm black colour ligature mark present on the front of neck extending to both side of neck upto left and right angle of mandible at the level of thyroid cartilage ligature mark is tapering on both ends.

Injury No.2.

There is 3 cm x 1 cm black colour eroded mark also present on right side of chin. Injury No.3 There is 1 cm x 1 cm eroded mark also present on the back of neck. On dissecting ligature mark under line muscles ruptured vassals ruptured and white glistening band present under the ligature mark.

CRANIUM AND SPINAL CORD.

N.A.

THORAX.

Trachea ruptured, lungs congested, all other parts normal and healthy.

ABDOMEN.

Walls, partioneum, mouth, pharynx and Oesophagus, diaphragm Normal and healthy.

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Stomach contained gastric secretion, pancreas normal, small and large intestine normal, liver and spleen congested, kidneys normal, bladder empty, organs of generation normal and healthy, uterus contained Cu-T.

MUSCLES BONES, JOINTS.

Hyoid bone taken with soft tissue sent to the Bacteriologist four any fracture, either anti-mortem or post-mortem.

REMARKS.

I kept reserved my final opinion till receipt of reports of Chemical Examiner and Forensic Histopathology. I have received reports of Chemical Examiner and Forensic Histopathalogist and produced the same before the court. Keeping in view report of Forensic Histopathalogist, I have come to the conclude that death of the deceased was caused by asphyxia due to strangulation. Report of Chemical Examiner regarding swabs reveals that swabs were stained with semen, so I am of the view that the deceased was subjected to sexual intercourse prior to her death. Chemical report regarding kidney, liver, heart, stomach, small and large intestine, screen brain and uterus reveals that poison was not detected.

7.On the other hand, statement of present appellant was recorded under section 342 Cr.P.C who refuted the allegations so leveled against him and has not opted to appear as a witness under section 340(2) Cr.P.C and Muhammad Ashfaq present appellant did not produce defence evidence and in reply to question “why this case against you?” he replied as under: - “Case against me is false. I had been working as apprentice with Muhammad Rafique husband of deceased who used to white wash/paint the buildings. He loved me very much and I use to visit his house. Muhammad Asghar complainant and Muhammad Sarwar PW-5 asked Muhammad Rafique to cut off relations with me, who refused. Muhammad Asghar and Muhammad Sarwar used to beat me so that I leave my apprenticeship. When deceased was murdered by some unknown person, I was summoned at ‘Dera’ of said Muhammad Sarwar where Muhammad Sarwar, Muhammad Asghar, Muhammad Siddique, Muhammad Afzal and Muhammad Anwar gave beating to me with sticks so that I should admit that I have

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murdered Zulekhan deceased. They put me before saw machine and threatened that they are going to cut me to pieces. As I was innocent, I refused to confess the murder of deceased. They summoned Maqsood Saleem SI and this case was planted against me in connivance with complainant party and Police. PWs being party man of complainant have deposed falsely. I am innocent”.

8.After conclusion of the trial, learned trial court convicted the present appellant with above stated sentence through judgment dated 12.10.2010. Hence this appeal.

9.Learned counsel for the appellant contended that:-

(i)the judgment of the trial court dated 12.10.2010 is against law and facts on the file and is liable to be set-aside.

(ii)that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the PWs and the learned trial court has convicted the appellant on the basis of surmises and conjectures;

(iii)it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;

(iv)it is contended that there is nothing on the record in the shape of convincing, reliable and trustworthy evidence to connect the appellant/accused with the commission of alleged offence;

(v)lastly submitted that appeal may be accepted and the judgement of the trial court dated 12.10.2010 may kindly be set aside and appellants may be acquitted.

10.On the other hand, Muhammad Asghar complainant despite service did not appear whereas learned DPG has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-

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(i)prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.

11.We have heard the appellant as well as the learned DPG for the state whereas Asghar complainant despite service has not appeared today.

12.The detail of prosecution case as mentioned in complaint Ex.PA recorded on the statement of Asghar PW-1 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

13.The case of the prosecution hings upon only last seen evidence furnished by Muhammad Anwar PW-2 and Muhammad Siddique PW-3. Muhammad Anwar PW-2 stated before the trial court that on 13.3.2010 Muhammad Ashfaq present appellant abducted Mst: Zulekhan Bibi deceased forcibly in presence of Muhammad Siddique PW-2 who was making hue and cry at the time of her abduction and they informed the complainant about the occurrence who alongwith them started search for his sister and on 15.3.2010 at about 08:30 a.m he alongwith Muhammad Siddique PW-3 went to the house of complainant as some people had informed the complainant that the dead-body of Zulekhan Bibi deceased was lying in the wheat crop of one Mehnga resident of their Chak and thereafter they proceeded to that place and saw the dead body of Mst: Zulekhan Bibi lying in the field. Muhammad Anwar PW- 2 stated in cross-examination that it was evening time when they saw Ashfaq present appellant was going alongwith Mst: Zulekhan Bibi deceased on a motorcycle. He further stated in cross-examination that he did not accompany complainant for search of Mst: Zulekhan Bibi. Muhammad Anwar PW-2 has not given exact time of seeing Mst: Zulekhan Bibi deceased in the company of Ashfaq and also Muhammad Anwar PW-2 has not stated in examination-in-chief that he had seen Mst: Zulekhan Bibi in the company of Muhammad Ashfaq appellant while going on motorcycle whereas

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Muhammad Siddique PW-3 stated that on 13.3.2010 he alongwith Muhammad Anwar PW-2 was present on metaled road of their Chak and saw Zulekhan Bibi deceased in the company of Ashfaq appellant who was on a motorcycle so there is major contradiction between these two PWs as Muhammad Anwar PW-2 has simply saying that he had saw Mst: Zulekhan deceased in the company of Muhammad Ashfaq appellant on 13.3.2010 without giving any time and place whereas Muhammad Siddique PW-3 stated that he had seen Zulekhan Bibi deceased in the company of Muhammad Ashfaq appellant while going on motorcycle without giving any time. In cross-examination, Muhammad Siddique PW-3 stated that when he saw Muhammad Ashfaq accused/present appellant taking away Zulekhan deceased, it was evening and darkness was prevailing at that time. Muhammad Siddiuque PW-3 further stated that Zulekhan deceased alongwith her husband had been running a hotel near Saw Haveli and her hotel was remained open till 10:00/11:00 pm. Muhammad Siddique PW-3 never stated in his statement that Mst: Zulekhan Bibi deceased was making hue and cry when they saw her in the company of Ashfaq appellant whereas Muhammad Anwar PW-2 stated that she was making hue and cry at the time of her abduction. This contradiction between above stated PWs is also not ignorable.

14.Learned DPG on court query submitted that there is no other incriminating evidence against Muhammad Ashfaq present appellant except above stated last seen evidence and we think that above stated contradictory last seen evidence furnished by Muhammad Anwar PW- 2 and Muhammad Siddique PW-3 with unexplained delay of three days is not believable. Otherwise, the last seen evidence is considered weakest type of evidence and it can be procured at any time when prosecution feels that there is no direct evidence and admittedly there is no corroboratory piece of evidence of it. Further, the above stated last seen evidence is not believable on the ground that Muhammad Asghar PW-1

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stated in cross-examination that dead body was recovered in front of Zulekhan Zahoor and not at her back side of her house as suggested and gate of Saw machine is towards south. Dead-body was not recovered from the back side of Saw-Haveli. Dead body was recovered from the place situated in front of his house at a distance of two Killas. This shows that Mt: Zulekhan Bibi deceased was not abducted by any person including Muhammad Ashfaq present appellant and was not seen in the company of Muhammad Ashfaq appellant as stated by PW-2 Muhammad Anwar and Muhammad Siddique PW-3 because her dead body was recovered in front of the house of the complainant Muhammad Asghar at a distance of two Killas near the Saw-machine of her husband Muhammad Rafique (given up PW) so the above stated last seen is a concocted story and recovery of the dead body of Zulekhan Bibi deceased in front of the house of complainant Muhammad Asghar and near the Saw- machine of Muhammad Rafique husband of deceased has raised many questions and makes the case of prospection doubtful. Lastly it is concluded that last seen evidence stated above is not believed and conviction could not be sustained on this sole weakest type of evidence without corroboration.

15.In this regard, reliance is placed on case titled Altaf Hussain and others V. Fakhar Hussain and another (PLJ 2008 SC 687) in which Hon’ble Supreme Court of Pakistan has observed as page 689 as under: - “it is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. This piece of evidence has been disbelieved by the trial Court as well as learned High Court and rightly so. So far as circumstantial evidence is concerned it does not lead to the conclusion in any manner that the respondent had any hand in the affair and caused the murder in question. Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the

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neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain”.

16.Even otherwise above stated so called last seen evidence has not been put to Muhammad Ashfaq appellant/accused in his statement recorded under section 342 Cr.P.C for his explanation and thus same cannot be used against Muhammad Ashfaq appellant for his conviction but learned trial court illegally without realizing the legal position not only used the above stated last seen evidence against Ashfaq appellant but also convicted him on such piece of evidence which cannot be sustained and it is admitted principle of law that if any incriminating piece of evidence is not put to accused in his statement under section 342 Cr.P.C for his explanation then the same cannot be used against him for his conviction. Reliance is placed on case titled “Muhammad Shah V. The State (2010 SCMR 1009) in which Hon’ble Supreme Court of Pakistan has observed at page 1015 as under:- “The perusal of statement of the appellant, under section 342 Cr.P.C, reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342 Cr.P.C enabling him to explain the circumstances particularly when the same was abandoned by him. It is well settled that if any piece of evidence is not put to the accused in his statement under section 342 Cr.P.C then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained”.

And same view has been reiterated by the Hon’ble Supreme Court of Pakistan in case titled “Muhammad Fayyaz Vs. The State (2012 SCMR 522) in which Hon’ble Supreme Court of Pakistan has observed at page 425 as under: - “Be that as it may the fact remains that no question had been put to the appellant at the time of recording of his statement under section 342 Cr.P.C regarding his alleged abscondence”

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17.The motive of the occurrence as stated by Asghar complainant PW-1 was that Muhammad Ashfaq appellant/accused was keeping bad eyes upon his sister. Muhammad Siddique PW-3 stated in cross examination that Zulekhan Bibi alongwith her husband was running a hotel near Saw-Haveli. We think that if there was anything from the side of Ashfaq appellant such lady i.e. Zulekhan Bibi deceased could make complaint against Muhammad Ashfaq in the police station but admittedly there was no complaint against Muhammad Ashfaq appellant and further Muhammad Rafique husband of Mst: Zulekhan deceased has been given up by prosecution during the trial on 13.7.2010 and was not produced as a witness. Non production of Rafique as a witness in the trial itself creates doubt in the story of the motive because admittedly Mst: Zulekhan Bibi deceased was residing in the house of her husband Muhammad Rafique given up PW and Muhammad Asghar PW-1 also admitted this fact in his cross-examination that his sister was residing at a distance of 04-Kilas from his house at the time of occurrence and stated that his house is situated at main road but house of his deceased sister was not at road rather it was at a distance of one Killa from the road and further admitted that his sister was residing in Haveli where there was a Saw machine at the time of occurrence and further stated that his ‘Behnoi’ Muhammad Rafique running a hotel at said road and her deceased sister used to help her husband in running the hotel. In view of above, it is concluded that prosecution has failed to prove the motive which is disbelieved. Ex.PG is a Chemical Examiner report according to which the swabs were stained with semen but we think that it is not helpful to the prosecution because Mst: Zulekhan Bibi admittedly was residing with her husband happily and DNA or group semen test in this case was of immense importance which could have sufficiently be determined as to whether the inter- course with Zulekhan Bibi deceased was committed

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only by Ashfaq present appellant and therefore in our considered view, benefit of this omission should go to the accused rather the prosecution as admittedly the DNA/group semen test had not been done in this case. Further, Asghar PW-1 complainant is a real brother of Zulekhan deceased who stated in cross-examination that Muhammad Siddique PW-3 and Muhammad Anwar PW-2 met near ‘Baithak’ of Muhammad Siddique which was situated at metaled road and they met him after 15/20 minutes of his having reached to his house from Chak Hafizwala and they on his asking told him that Ashfaq accused was taking Zulekhan deceased towards City Haroonabad but this PW Muhammad Asghar PW-1 remained silent for three days till the recovery of the dead body from the wheat crop of Mehnga in front of the house of the complainant Muhammad Asghar at a distance of two Killas. The conduct of Asghar PW-1 is un-natural because after receiving the information of abduction of her sister Zulekhan deceased, his natural and immediate conduct would have been to go to police station for reporting the matter but he remained silent for three days which creates doubt about the veracity otherwise his evidence is hearsay basing on the evidence of Muhammad Anwar PW-2 and Muhammad Siddique PW-3 which is not believable and is discarded.

18.It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injuries, nature of the injuries and kind of weapon used in the occurrence but it would not connect the accused with the commission of crime.

19.The alleged recovery of ‘Chadar’ P-1 from the appellant on 21.3.2010 by Maqsood Saleem I.O/PW-11 is not helpful to the prosecution because as the same was not blood stained and further it was sealed into parcel at the time of its recovery according to the contents of Ex.PB recovery memo but same was not sent to Chemical Examiner so it is not an incriminating article and was not belonging to deceased.

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20.From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by Muhammad Asghar complainant/PW-1 (real brother of Mst: Zulekhan Bibi deceased), Muhammad Asghar PW-2 and Muhammad Siddique PW-3. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant. The Criminal Appeal No. 387 of 2010 filed by Muhammad Ashfaq, present appellant is accepted and he is acquitted of the charges in case FIR No. 102 dated 15.03.2010 under sections 302, 365-B, 376, 201 PPC police station, Faqirwali, Tehsil Haroonabad district Bahawalnagar by giving him benefit of doubt and conviction and sentence awarded by the learned trial court vide judgment dated 12.10.2010 is set-aside and the appellant is directed to be released forthwith if not required in any other case. Death sentence is NOT CONFIRMED and Murder Reference No.48 of 2010 is answered in NEGATIVE.

(James Joseph) (Sadaqat Ali Khan) Judge Judge

Approved for reporting

Irfan