State vs Mst Khalida Bibi @ Mani W/O Muhammad Bashir

HCJDA-38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No. 22-J of 2009 (Khalida Bibi versus The State) and Murder Reference No.28 of 2009 (The State versus Khalida Bibi alias Mani)

JUDGMENT

Date of hearing 03.07.2014 Dr. Muhammad Akmal Saleemi, Advocate Appellant by assisted by Mian Liaqat Ali, Advocate.

Ch. Muhammad Mustafa, Deputy Prosecutor State by General Complainant by Complainant in person.

Syed Shahbaz Ali Rizvi, J. This judgment shall dispose of Criminal Appeal No.22-J of 2009 titled as “Khalida Bibi versus The State” filed by the appellant against her conviction and sentence as well as Murder Reference No.28 of 2009 titled as “The State versus Khalida Bibi alias Mani” transmitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to the appellant as both these matters have originated from the same judgment dated 30.07.2008 passed by the learned Addl. Sessions Judge, Gujranwala, in complaint case under Sections 302, 364-A, 201, 148 and 149 PPC filed by complainant Ghulam Mustafa, whereby the appellant was convicted under Section 364-A/34 PPC for kidnapping Samra Bibi (deceased) and sentenced to death. She was further convicted under Section 302(b)/34 PPC for perpetrating the murder of Mst. Samra Bibi (deceased) and sentenced to death with the direction to pay Rs.1,00,000/-as compensation to the legal heirs of deceased Samra Bibi, as envisaged under Section 544-A of the Code of Criminal Procedure and in default thereof to further undergo

Murder Reference No.28 of 2009

imprisonment for six months. She was ordered to be hanged by her neck till death. She was also convicted under Sections 201/34 PPC and sentenced to seven years with a fine of Rs.10,000/- and in failure to pay the same, to further undergo simple imprisonment for six months.

The learned trial court, however, through the same judgment acquitted Mst. Robina Bibi, Muhammad Ashraf, Khalid Pervaiz and Muhammad Shahid, co-accused of the appellant.

2.Brief facts of the case, as unveiled by Ghulam Mustafa, complainant (PW-8) in his complaint (Ex.PM), are that on 10.04.2005 at about 12.00 noon, her daughter Mst. Samra Bibi (deceased) aged about seven years went to shop to purchase sweets but did not return home. His wife told him that since long Mst. Samra Bibi (deceased) had gone to shop to purchase sweets but had not come back, therefore, he (complainant) should search for her. He searched in the area and also made announcements in the mosques of the Mohallah but in vain. On the same day, at about 05.00 pm, Rashid Ahmad (PW-9), Muhammad Shahzad (PW-10) and Nemat Ali (given up PW) came to his house and informed that at about 04.00 p.m, they were present at Lohianwala/Pindi Bypass when they saw Mst. Khalida Bibi alias Mani (appellant), Muhammad Bashir accused (since P.O), Muhammad Rafique accused (since P.O), Robina Bibi accused (since acquitted), Muhammad Ashraf accused (since acquitted), Khalid Parvez accused (since acquitted) and Muhammad Shahid accused (since acquitted) along with Samra Bibi (deceased) in a white colour Toyota steering towards Rawalpindi. The complainant along with inhabitants of the Mohallah went to the houses of the said persons but the same were locked and above said persons were not present at their houses. After some days, the accused persons came back to their houses and complainant along with respectables of the area went to demand return of his daughter but they threatened him to kill and that he will not find his daughter for rest of his life. On the same day, he went to Police Station Civil Line, Gujranwala for reporting the matter

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but the police lingered on the matter by saying that accused persons could not do so and he should search his daughter on his own. After about one month of the occurrence, the above said accused persons Mst. Khalida Bibi alias Mani etc. abducted the son of brother of the complainant and committed his murder which was revealed soon and Mst. Khalida Bibi alias Mani (appellant) confessed that they had committed the murder of the boy. Meanwhile, she also disclosed that one month ago, she along with her co-accused had taken Mst. Samra Bibi (deceased) to Abbotabad, killed and buried her there. The complainant further asserted that the police, in connivance with the accused persons, registered case FIR No.250/05 dated 12.05.2005 under Sections 302, 364-A, 201 and 34 PPC after the delay of about one month and instead of writing actual events started fictitious proceedings and also took their (complainant party) signatures on blank papers. The police, in connivance with the accused persons, prepared a fake supplementary statement of the complainant. Upon which, being dissatisfied with the police investigation, instant private complaint was filed by the complainant. The private complaint was filed on 18.01.2007 i.e. after about one year and eight months of the registration of FIR upon the written application of the complainant.

It is pertinent to mention here that the complainant did not allege any motive in the private complaint, however, in the FIR, he disclosed the motive for the occurrence that civil litigation was pending between Muhammad Ashraf, Robina Bibi accused persons (since acquitted) and the complainant’s sister-in-law (Sali) and about 21⁄2 months ago, Muhammad Imran stopped Ali Raza and Muhammad Awais sons of the complainant while going to school and gave them filthy abuses and asked them to ask the complainant not to interfere in the matters of his sister-in-law otherwise, he will kill them, which fact was brought into the notice of Headmaster of the school who called Imran and reprimanded him.

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3.The learned trial court, after recording the cursory statements of the complainant and his witnesses, summoned the appellant along with her co-accused to face trial. All the accused persons except Muhammad Bashir and Muhammad Rafique (since P. Os.) put in appearance before the learned trial court. Formal charge against them was framed on 18.04.2007 to which they pleaded not guilty and claimed trial.

4.In order to prove its case, the prosecution produced as many as twelve witnesses during the trial. Shabbir Ahmad SI appeared as CW-1. The complainant appeared as PW-8 who almost portrayed the facts of the case as already detailed in his complaint (Exh-PM). Rasheed Ahmad (PW-9) and Muhammad Shahzad (PW-10) furnished the evidence of last seen.

The medical evidence was furnished by Dr. Nusrat Ara, WMO, DHQ Hospital, Abbotabad (PW-6) who conducted exhumation of the dead body of Mst. Samra Bibi (deceased) on 21.05.2005 at about 10:00 a.m. and found as under:-

SPECIMEN:

“Piece of hair, nails, liver, spleen, stomach, intestines, hyoid bone, kidney, lung, heart and soil above and below the body.”

She was of the opinion that the cause of death cannot be given due to highly putrefaction of body. After receipt of the report of Chemical Examiner, it was found that poison was not detected in the above articles. She produced postmortem report Exh-PJ.

Dr. Nasir Khan Jadoon (PW-7) examined the X-Rays of the dead body of Mst.Samra Bibi and found no bony injury of neck and chest. However, he noted fracture of the inferior pubic ramus of the left side.

Saif Ullah, Sub Inspector (PW-3), Fazal Ahmad, Inspector (PW-5) and Shabbir Ahmad, SI (CW-1) collected the evidence in this case. Masood Ahmad Bhatti, Draftsman (PW-1) prepared the scaled

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site plans of the place of occurrence. Mr. Jahanzeb, Additional District & Sessions Judge appeared as PW-4 and narrated the exhumation proceedings entrusted to him when he was a Judicial Magistrate, Abbot Abad whereas, rest of the witnesses are formal in nature.

5.The prosecution gave up Nemat Ali PW being unnecessary and after tendering in evidence report of the Chemical Examiner (Ex.PN) closed the prosecution evidence.

6.The statements of the appellant and her co-accused (since acquitted) under Section 342 of the Code of Criminal Procedure were recorded on 23.07.2008. They refuted the allegations levelled against them and professed their innocence. While answering to a question that “Why this case against you and why the P.Ws deposed against you?”, the appellant replied as under:- “Firstly brother of the complainant falsely involved me in the fake murder case of Faseeh-ud-din, nephew of the complainant in which the same set pof PWs namely, Ghulam Mustafa, Rasheed Ahmad, Niamat Ali etc. were cited as PWs. I have been acquitted by the Hon’ble Lahore High Court, Lahore, in that case. On the disappearance of Samra Bibi, the complainant vide written application (Ex.DC) got registered F.I.R. (Ex.PB) No.250 dated 12.5.2005 at P.S. Civil Line in which neither I was nominated nor any motive was attributed to me but later on, on 18.1.2007 by concocting false evidence and PWs the complainant filed the present complaint and the case is so fake that even the complaint is devoid of any narration of leading the policy party and complainant and PWs on 17.5.05 to Abbotabad for pointing out the alleged grave of Samra Bibi on 18.5.05, as narrated by the complainant and PWs. The I.O. (CW1) Shabbir Ahmad Inspector has shown my arrest on 18.5.05 on evening time, so the prosecution case becomes, prima facie ipso facto false. The complainant and PWs had local enmity against me due to the dispute of a rented house and further more, they had falsely involved me in another fake case of the abduction and murder of Faseeh-ud-din. So in order to get involved more and more innocent persons in a case in which the whereabouts of Samra Bibi have not known as yet. The complainant due to the above mentioned reasons and to blackmail has involved me falsely in the present complaint case. The other PWs being closely related to the complainant have falsely deposed against me.”

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7.The appellant did not opt to appear as her own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against her. However she produced certain documents in her defence.

8.The learned trial court vide its judgment dated 30.07.2008, found the appellant guilty, convicted and sentenced her as mentioned and detailed above.

9.Learned counsel for the appellant, in support of this appeal, contends that the alleged incident of abduction took place on 10.04.2005 whereas, the FIR (Exh-PB) was registered on 12.05.2005 i.e. after the delay of about thirty-two days wherein, the appellant is not named in any context; that thereafter, on 18.05.2005, the complainant got recorded his supplementary statement wherein, he implicated the appellant; that after about 1 3⁄4 year of the occurrence, the complainant instituted a private complaint against the appellant and her co-accused; that there is no eyewitness of the occurrence and the prosecution case hinges upon the circumstantial evidence; that the evidence of last seen was fabricated by the complainant party; that had Nemat Ali (given up PW), Rasheed Ahmad (PW-9) and Muhammad Shahzad (PW-10) actually seen the appellant along with her co-accused in the company of the deceased on the day of abduction, she and her co-accused could have been nominated in the FIR; that the evidence of pointing out of the grave of Mst. Samra Bibi (deceased) by the appellant is also not helpful to the prosecution as there is no independent witness in whose presence, she pointed out the grave of the deceased; that medical evidence is also not helpful to the cause of the prosecution as the same could not disclose the cause of death of the deceased; that the motive alleged by the complainant in the FIR is also not proved by the prosecution; that the prosecution has failed to prove its case beyond doubt rather it is full of doubts and it is, by now, established proposition of law that benefit of doubt is to be extended to the accused as of right. The learned counsel for the appellant has craved for the acceptance of the appeal and acquittal of

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the appellant and that the Murder Reference may be answered in the negative.

10.Conversely, learned Deputy Prosecutor General assisted by the complainant maintained that the complainant has no enmity with the appellant and her co-accused for their false implication in this case; that the complainant is real father of Mst. Samra Bibi deceased, therefore, there is no chance of substitution; that the complainant filed the private complainant being dissatisfied with the investigation of the police; that the prosecution case is supported by the evidence of last seen furnished by Rasheed Ahmad (PW-9) and Muhammad Shahzad (PW-10); that the prosecution case is further corroborated by the evidence of pointing out of the grave of Mst. Samra Bibi (deceased) by the appellant; that the prosecution has proved its case beyond any reasonable doubt and remained successful in discharging its duty to prove the same. Lastly, argued that the judgment passed by the learned trial court does not require any interference by this Court which is well reasoned and the appellant deserves no leniency as she has murdered a seven years old innocent girl with whom she had no enmity or grudge; that this appeal may be dismissed and the Murder Reference be answered in the Affirmative.

11.We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and also gone through the record with their able assistance.

12.We have observed that it is a unique case in which the appellant is behind the bars since 2005 who faced the rigor of trial till 2009 and was sentenced to death as mentioned above in a case in which till today the place of occurrence of abduction as well as of murder and the manner of murder are not known, cause of death not determined, weapon of offence not known and the motive of occurrence still shrouded in mystery. The complainant, real father of alleged abductee and deceased minor Samra Bibi aged seven years moved an application (Exh-DC) for registration of case for the first time to the SHO on 12.05.2005 i.e. after the delay of about thirty-two days as the

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occurrence of abduction allegedly took place on 10.04.2005. The application (Exh-DC) was moved against Muhammad Imran son of Rehmat Ali, Muhammad Ashraf son of Muhammad Sadiq and Mst. Roubina wife of Muhammad Ashraf under the belief of the complainant that they had abducted his daughter with a specific motive alleged against all three accused. The reason for delay in approaching the police is available in the body of the application wherein it is narrated that the complainant along with his relatives kept on searching his daughter in the surrounding areas and towns, announcements made through loudspeakers of mosques and on rickshaws as well as slides on TV Cable networks but after developing belief about the abovementioned accused persons, he preferred the said application for registration of FIR and recovery of his daughter. Despite the fact that no complaint against the scribe of application (Exh-DC) and the contents of the FIR was ever made to the higher police officers or any other forum but the complainant himself as PW-8 and his brother Rasheed Ahmad (PW-9) besides Muhammad Shahzad cousin of the complainant (PW-10) have come in the witness box with a stance that Rasheed Ahmad (PW-9), Muhammad Shahzad (PW-10) and Nemat Ali (given up PW), another cousin of the complainant, had witnessed the nominated accused of private complaint (Exh-PM) including the appellant in the company of minor Mst. Samra Bibi, the abductee on 10.04.2005 at about 3/4 p.m. at Pindi Bypass Lohianwali, Gujranwala in a white coloured van. Had this stance of the said witnesses been true, this fact would have been found mention in the application (Exh-DC) and the FIR (Exh-PB) would have been registered against all the seven nominated accused persons including the appellant. Moreover, had the said witnesses seen the abductee in the company of the accused persons, there would have been no need of announcements on loudspeakers of local mosques and surrounding areas and town as well as slides on television cable networks for many days after 10.04.2005. In this view of the matter we believe that this piece of evidence of last seen has been fabricated by the complainant at a belated stage to create

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incriminating evidence against the appellant and her co-accused persons which has already been disbelieved by the learned trial court to the extent of co-accused Mst. Roubina Bibi, Muhammad Ashraf, Khalid Pervaiz, Muhammad Shahid, resulting in their acquittal which necessitated the extreme careful reappraisal of evidence regarding the present appellant. Even otherwise, the evidence of last seen is a weak type of evidence. Reliance in this respect is placed on the cases of Rehmat alias Rhaman alias Waryam alias BAdshah versus The State (PLD 1977 SC 515), Naqibullah and another versus The State (PLD 1978 SC 21) and Israr Ali versus The State (2007 SCMR 525).

13.So far as the evidence of pointing out of grave of Mst. Samra Bibi in a graveyard of Abbotabad by the appellant furnished by Saif Ullah SI (PW-3), Rasheed Ahmad (PW-9) and Ghulam Mustafa, complainant (PW-8) is concerned, we have observed that Saif Ullah SI (PW-3) who was not the Investigating Officer of this case and being so was not competent to conduct investigation, was sent to the other province for pointing out of grave of alleged abductee by the appellant who was under custody in connection with some other case with the same police station. According to him, upon the direction of SHO, he along with the appellant Mst. Khalida Bibi alias Mani, a lady constable and the witnesses went to Abbotabad on 17.05.2005 which was accordingly done on 18.05.2005 but surprisingly, Saif Ullah SI (PW-3) when appeared in witness box could not disclose the name of lady constable who accompanied them along with the appellant from Gujranwala to Abbotabad. No statement under Section 161 of the Code of Criminal Procedure of said lady constable was recorded by him. He also admitted that he did not record the names of people gathered at the spot. He also voluntarily stated that he had not recorded any case diary because he was not the Investigating Officer of the case. He also expressed his ignorance about the fact that whether any endorsement regarding his appointment as Duty officer was mentioned in the daily rapt roznamcha of police station. He also maintained that he did not remember that whether any endorsement regarding the direction for going to Abbotabad was mentioned in daily

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diary register. It is important to note here that neither the record of police post Sikandar Abad, Abbotabad was incorporated in the file of this case nor any record regarding the sending of Saif Ullah SI (PW-3) to the extent of pointing out of grave of Mst. Samra Bibi (deceased) by the appellant has been brought on the record of this case. No witness from Abbotabad ever appeared in the witness box before the learned trial court. Mr. Jahanzaib, Addl. Sessions Judge who was Senior Civil Judge, Abbotabad at that time has appeared as PW-4 and maintained that on 21.05.2005 he supervised the exhumation proceedings of dead body of Mst. Samra Bibi (deceased) upon the direction of learned Sessions Judge, Abbotabad and according to him the grave was identified by the complainant Ghulam Mustafa (PW-8) father of the deceased. He also maintained that he attested the joint statements of the people of the locality (Exh-PG) on 21.05.2005 at the time of exhumation but the fact remains that none of these persons ever appeared before the Investigating Officer of this case or the learned trial court. Moreover, they were never confronted with the appellant, during the whole investigation. It is not the case of the prosecution that they were present on 18.05.2005 at the time of alleged pointing out of grave by the appellant while on the day of exhumation, neither the appellant was present in the graveyard nor the grave was pointed out by her. So, the joint statement of the people of locality of Abbotabad in said graveyard that on 15.04.2005 Mst. Khalida Bibi alias Mani daughter of Muhammad Bashir caste Taili resident of Gujranwala whose name was disclosed to them then had come to them along with a man said to be her brother-in-law for burial of the minor girl stated to be her daughter, upon which, they buried the minor girl in that graveyard, cannot be believed. Another important aspect of this case is that according to the prosecution the grave was pointed out by the appellant in presence of the witnesses on 18.05.2005 but this most material evidence of prosecution is not mentioned in private complaint filed on 18.01.2007 by PW-8, the complainant himself. All the facts available on file have led us to infer

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that the testimony of PW-3 Saif Ullah SI, Ghulam Mustafa (PW-8) and Rasheed Ahmad (PW-9) is not reliable and trustworthy.

14.Similarly, Dr. Nusrat Ara, WMO, DHQ, Hospital Abbotabad (PW-6) has stated that the dead body was completely putrefied. During her examination-in-chief, she also maintained as under: - “...Due to advance putrefaction cannot see any sign of external violence. However, hyoid bone is taken to see the fracture. Whole body was x-rayed. Facial features not recognizable. Whole body was black in colour.”

She also expressed her opinion, after going through the report of the Chemical Examiner, Punjab Lahore, that “poison was not detected in the articles sent for this purpose”. During cross examination, she also reiterated that the dead body was not identifiable. While Dr. Nasir Khan Jadoon, the then Incharge Radiology Department DHQ Hospital, Abbotabad, in his examination in chief maintained as under:- “...There was no bony injury on the x-rays of neck and chest. However, fracture of the inferior pubic ramus of the left side was noted...As the x-rays were not done in the radiology department and neither I was requested to do the X-rays at the exhumation site so I cannot say surely that who was the deceased. I had given my opinion only on the X-rays which were presented to me by the local and Gujranwala Police... ” In this view of the matter, firstly, the identification of dead body was not possible as opined by Dr. Nusrat Ara (PW-6). Secondly, the cause of death has not been determined. Though, Dr. Nusrat Ara (PW-6) in the end of her cross examination has stated that death in this case may be due to violence yet no cause of death has been specifically determined.

By thrashing all the supra narrated circumstances, we are of the view that the evidence regarding pointing out of grave by the appellant is not confidence inspiring and similarly, the identification of dead body is also doubtful and that the prosecution could not prove its case regarding the abduction of the minor daughter of the

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complainant and her murder by the appellant beyond shadow of any reasonable doubt.

15.There is no direct evidence and prosecution case hinges on the circumstantial evidence. It is, by now, well settled that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other neck of the accused. But if any link of the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgment of the Apex Court of the country in the case of Sarfraz Khan versus The State (1996 SCMR 188) wherein, at page 192, it was held that: -

“7. ...it is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence...”. Same view was reiterated by the Hon’ble Supreme Court of Pakistan in the case of Altaf Hussain Vs. Fakhar Hussain and another (2008 SCMR 1103) wherein, at page 1105 it was held by the hon’ble Supreme Court as under: -

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

So, having guidance from the supra referred esteemed judgments when we have a glance over the complete evidence of the instant case, we find so many links missing from the chain of prosecution evidence.

16.We 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 the 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 fail to

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discharge its responsibility of proving the case against the appellant. It is by now well settled law 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 Tariq Pervez versus The State (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- “5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.’

The Hon’ble Supreme Court of Pakistan reiterated the same principle in the case of Muhammad Akram versus The State (2009 SCMR 230).

17.In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No.22-J of 2009 filed by Mst. Khalida Bibi (appellant), set aside her conviction and sentence recorded by the learned Addl Sessions Judge, Gujranwala vide judgment dated 30.07.2008 and acquit her from the charges under Sections 364-A, 302(b), 201 and 34 PPC by extending her the benefit of doubt. She is in custody, be released forthwith if not required in any other case. It is pertinent to mention here that the findings made in this judgment are not relevant to the case of Muhammad Bashir and Muhammad Rafique, co-accused of the appellant (since P.Os.).

18.Murder Reference No.28 of 2009 is answered in the NEGATIVE and the sentence of death of Mst. Khalida Bibi alias Mani (convict) is NOT

CONFIRMED.

(Abdul Sami Khan) (Syed Shahbaz Ali Rizvi) Judge Judge *Javaid*

APPROVED FOR REPORTING:

Judge Judge