Muhammad Siddique vs Mst. Rehana Kausar etc.

Cr. Appeal No. 1042/2009

Muhammad Siddique. Mst. Rehana Kausar etc.

06.16.6.2014. Mr. Khan Muhammad Vehniwal, Advocate for the appellant.

Mr. Muhammad Amjad Rafique, Deputy Prosecutor General.

Appellant Muhammad Siddique by way of instant appeal, has challenged the acquittal of respondents No.1 to 3 recorded by the learned Addl. Sessions Judge, Sangla Hill, District Nankana Sahib vide judgment dated 29.5.2009 in case F.I.R. No.57 dated 20.3.2008, offence under section 302, 34 P.P.C. registered at Police Station City Sangla Hill, District Nankana Sahib.

2.Briefly, the facts narrated in the crime report are that brother of the complainant, namely, Muhammad Sharif was an employee in Sandal Bar Mills, Chak Jhumra, who was residing with his family members in Mohallah Islampura, Sangla Hill for the last six years and he had doubt on the character of his wife Mst. Rehana Kausar who had developed illicit relations with Muhammad Naeem Ghaffari accused due to which Muhammad Sharif had quarreled with his wife. The incident took place on 19.3.2008 at 2.00

p.m. when Muhammad Sharif went to Sandal Bar Mills on his duty and returned back at 11.00 p.m. to his home when he saw his wife Mst. Rehana Kausar and Naeem Ghaffari in compromising position. On which he started abuses them upon which Muhammad Naeem Ghaffari and unknown accused fled away. Said Muhammad Sharif did not want to keep Mst. Rehana Kausar as his wife as he had danger to his life from the hands of Mst. Rehana Kausar. This story was told by the deceased to the complainant telephonically on the same day. On which the complainant stated to the deceased that he will visit him in the next morning and on the next morning, i.e. on 20.3.2008 the complainant along with his son, namely, Shahid Khalil and his brother, namely, Muhammad Latif reached at the house of Muhammad Sharif, deceased and found that Muhammad Sharif was lying on a cot in dead condition while Rehana Kausar was found sitting besides the dead body, who told the complainant that Muhammad Sharif had committed suicide. Upon examining the dead body they found ligature marks on the neck of the deceased and reported that Rehana Kauswar, Naeem Ghaffri and an unknown accused had committed murder of Muhammad Sharif by way of strangulation.

3.On the basis of the complaint (Exh.PG) submitted by the complainant, formal F.I.R.

(Exh.PG/1) was chalked out and after registration of case, the investigation was entrusted to Muhammad Ikhlaq, SI (PW-12) who being Investigating Officer of F.I.R. in question visited the place of occurrence and prepared injury statement as (Exh.PC), inquest report as (Exh.PB) and site plan without scale (Exh.PJ) and got recorded statements of the PWs under section 161 Cr.P.C., while dead body of the deceased was escorted to the Rural Health Centre for autopsy and thereafter Muhammad Tanveer, constable handed over him last worn clothes of the deceased Shalwar (P/2) and Kameez (P/3). Then recovery memo (Exh.PH) was prepared about last worn clothes of deceased. On 21.3.2008 draftsman handed over him the scaled site plan in triplicate (Exh.PE) and (Exh.PE/1). On 4.4.2008 he arrested Mst. Rehana Kausar and during investigation on the same day wire was recovered on the pointation of accused Mst. Rehana Kausar which was taken into possession by the Investigating Officer through recovery memo (Exh.PF). On 30.4.2008 the Investigating Officer also arrested accused Naeem Ghaffari.

4.Having found the accused persons (respondents No.1 and 2) guilty, the Investigating Officer prepared report under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction whereas he found accused

Ghulam Mustafa alias Bagga innocent. The learned trial court on 06.1.2009 formally charge sheeted the accused persons (respondents No.1 and 2) whereas on 20.3.2009 the learned trial court also formally charge sheeted the accused (respondent No.3) to which they pleaded not guilty and claimed trial. The prosecution in support of its version, produced thirteen (13) witnesses. The statements of rest of the prosecution witnesses are of formal in nature.

5.Ocular account of first part of occurrence in this case has come out from the statement of Muhammad Saddique, complainant (PW-7), Shahid Khalil (PW-8) and Asad Naeem (PW-6) whereas Dr. Muhammad Naseer Ahmed Khalon, SMO, RHC, Sangla Hill (PW-3) had conducted post mortem examination of the dead body of deceased Muhammad Sharif on 20.3.2008 and observed as under:-

“There was a ligature mark with abrasion on the front and sides of the neck extending below the right ear to the left ear but not present on the back.

Ligature mark was about 3⁄4 cm wide but no string, wire or rope was along with the body.

No other sign of violence was visible on the body at the time of examination.

Tongue was not extruded out of the mouth, mouth and eyes were closed.

No forth had been drained from the nose or mouth nor that was draining at the time of examination.

As per expert opinion of the Chief Chemical Examiner, Lahore, no poison has been found in the viscera’s. However, as per report of Forensic Histopathologist, Lahore, there was an anti mortem fracture of the Hyoid bone.

On analysis:- The cause of death is due to the interference at the level of the neck apparently the death occurred due to compression/ throttling e.g. homicidal.

6.On 12.5.2009 the learned Deputy District Public Prosecutor gave up Muslim Javaid and Muhammad Latif PWs being unnecessary and closed evidence of the prosecution by tendering reports of the Forensic Histopathologist as (Exh.PL) and the Chemical Examiner, Lahore as (Exh.PM) on 15.5.2009.

7.The accused persons (respondents No.1 to 3) were also examined in terms of Section 342 Cr.P.C. wherein all of them opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to a particular question why this case against her and why the

PWs deposed against her, Mst. Rehana Kausar, accused/respondent No.1 made the following deposition which reads as under:- “I have been involved in this case by the complainant due to long standing enmity with the complainant. I used to ask my deceased husband to get the share of land and the produce of agricultural land inherited by him which was in the possession of the complainant Muhammad Saddique and all the PWs are interse related being biased and interested witnesses, they had deposed against me in order to get my conviction from this Hon’ble Court. The fact remains that on 20.3.2008 at about 7.0-0 a.m. a dispute irrupted between me and my husband whereupon altercation took place between me and that of my deceased husband and this fact happened when I was preparing breakfast for my children and my deceased husband. On account of altercation and quarrel deceased lost his mental equilibrium and in the state of anger, went inside the room of the house and committed suicide with the hook of ceiling fan. After about 20 minutes, I entered the said room and saw my husband hanging with the hook of ceiling fan. I started wailing and crying, went out side the house and on hearing my shrikes Saleem Ghaffari and Sawar alias Phalla came at the place of occurrence and detached my husband from the ceiling hook and put his dead body on a cot and the cot on which they stood with the intention to detach my

husband was broken and that broken cot is still lying in the police station.

Naeem Ahmad, co-accused/respondent No.2, made the following deposition which reads as under:-

“I am quite innocent in the instant case and have not participated in the commission of offence. Moreover, PWs are interse related and being biased and interested witnesses they have deposed against me falsely. I had no motive of my own to kill the deceased.

Likewise, Ghulam Mustafa, accused/respondent No.3 made the following deposition which reads as under:-

“I am quite innocent in the instant case and have not participated in the commission of offence. Moreover, PWs are interse related and being biased and interested witnesses they have deposed against me falsely. I had no motive of my own to kill the deceased.

8.The learned trial court after evaluating the evidence available on record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused (respondents No.1 to 3), resulting into acquittal of the accused persons (respondents No.1 to 3).

9.The learned counsel for the appellant has contended that the judgment of acquittal of respondents No.1 to 3 is fanciful, arbitrary and against the facts which cannot be maintained and liable to be set aside; that the learned trial court has mis-appreciated the evidence available on the record in sheer disregard to the principles of administration of criminal justice; that the prosecution evidence, extra judicial confession and last seen is worthy of credence; that the respondents No.1 and 2 deserve conviction and sentence for causing Qatl-e-Amd of Muhammad Sharif.

10.We have carefully considered the submissions made on behalf of the learned counsel for the appellant and have perused the record.

11.From the perusal of record it appears that incident in the instant case comes into the knowledge of the complainant at 8.00 a.m. on 20.3.2008 but the complainant lodged F.I.R. at 9.30 a.m. after delay of 1.30 hours and no plausible explanation was given in the F.I.R. in this regard which shows that F.I.R. was registered with consultation. Admittedly, the complainant/appellant Muhammad Saddique (PW-7) and Shahid Khalil (PW-8) are not the eye- witnesses and whatever narrated by the

complainant-appellant in the F.I.R. is based on hearsay as what he deposed in the court came into his knowledge through Muhammad Sharif (deceased), who allegedly informed the complainant about illicit relations of Mst. Rehana Kausar with Naeem Ghaffari telephonically. During cross-examination, PW-7 Muhammad Saddique deposed as under:-

“It is correct that neither I nor my son Shahid Khalil and brother are eye witnesses of the occurrence.”

PW-8 Shahid Khalil whatever deposed in the court was came into his knowledge through his father-complainant. During cross-examination, he deposed as under:-

“All the story told in paragraph No.1 was told by my deceased uncle to my father who (my father) told me whereupon my father asked me and my uncle to join him for proceeding the house of the deceased next morning. It is correct that deceased had told my father about illicit relations of his wife Rehana Kausar with Naeem Ghaffari.”

12.If the statement of PW-7 Muhammad Saddique is seen, he in his statement did not state time when he received call from his deceased brother. During investigation in this back ground to ascertain that whether any telephonic call was made by the deceased prior

to the day of occurrence to the complainant was not secured by the police nor telephone Number was provided by the complainant. This witness has specifically stated in the witness box that he did not see committing murder of his deceased brother by the accused persons by way of strangulation and this fact was told to him by Asad Nadeem (PW-6), Saeed (PW-9) and Imran (PW-10). He further deposed that they had told him about it after 2/4 days of murder of Muhammad Sharif, whereas statement of Asad Nadeem (PW-6) (son of the deceased) was recorded by the Investigating Officer on 01.6.2008 and statement of Saeed (PW-9) and Imran (PW-10) were recorded by the Investigating Officer (PW-12) under Section 161 Cr.P.C. on 07.6.2008. Asad Nadeem (PW-6) in his deposition admitted as correct that after the death of his father he got recorded his statement before the police after lapse of two months and ten days and no sufficient explanation has been given by him about the delay in making statements under section 161 Cr.P.C. It is also in evidence of PW-7 that when he came in the house of his deceased brother on 20.3.2008, the children of the deceased were weeping and Asad Nadeeem (son of the deceased) was not seen by him. No direct evidence against accused persons to connect them with

commission of the alleged offence is available on the record. The prosecution through PW-9 and PW-10 produced evidence of extra-judicial confession before whom allegedly the three accused/respondents No.1 to 3 made extra- judicial confession. PW-9 Saeed Ahmed stated while appearing in the witness box that on 25.3.2008 at about 6/7 p.m. when he was sitting in his “Baithak” with Imran (PW-10) the accused persons (respondents No.1 to 3) confessed that Naeem Ghaffari had committed murder of Muhammad Sharif whereas PW-9 during cross- examination deposed as under that:- “Both the accused Naeem and Mustafa alias Bagga had made confession before me jointly.”

He also deposed which reads as under:- “On the next day of 25.3.2008, we had made statement before the police regarding disclosure of the accused about murder of the deceased at their hands.”

Whereas PW-10 Imran Ali during cross- examination deposed as under:-

“All of them individually told the story regarding murder of the deceased.”

13.This witness had also made dishonest improvements in his statement which were duly confronted with (Exh.DC) which are as under:-

i)I had informed the police that after five days of the murder of Sharif deceased, accused Naeem and Mustafa alias Bagga had come to the bhatik of Saeed

PW.

ii)I had told the police in my statement that accused had electric wire and during this occurrence Rehana Kausar and Bagga accused had been catching hold of the legs and hands of the deceased.

14.From the face of it, there are clear contradictions in the evidence of PW-9 and PW-

10.Both the PWs have deposed that on the next day of extra judicial confession, they went to police station and got recorded their statements whereas PW-12 Investigating Officer during cross-examination admitted as correct that he recorded statements of PWs Saeed (PW-9) and Muhammad Imran (PW-10) under section 161 Cr.P.C. on 07.6.2008, which reveals that statements of both the PWs were recorded after 75 days.

15.On the other hand, PW-7 Muhammad Saddique deposed during cross-examination that factum of committing of murder was informed to

him by Asad Nadeem, Saeed and Imran after 2/4 days of the occurrence whereas in conflict of the statement of PW-7, Imran (PW-10) deposed as under:-

“Before 25.3.2008, I did not know the real culprits of Sharif deceased”.

16.From the facts and circumstances of the case, prima facie there are clear contradiction between the depositions of PW-7, PW-9 and PW- 10 which creates doubts about veracity of their statements. The entire case is based upon joint extra-judicial confession and circumstantial evidence. The joint extra-judicial confession could not be used against respondents No.1 to 3 in absence of any confirmatory evidence. The prosecution evidence on extra-judicial confession appears to be fabricated and thus cannot be relied upon.

17.As far as motive is concerned, the story of motive is also not only weak but in fact prosecution has failed to prove motive except that suspicious was raised against the respondents/accused for committing murder of the deceased as PW-7 deposed during cross- examination which reads as under:- “It is correct that story of my statement told before this Court that Mst. Rehana had illicit relations with

Naeem Ghaffari accused and the deceased saw them in a compromising position whereupon abuses were exchanged between Naeem Ghaffari and the deceased was told me telephonically by the deceased and I had not seen the accused and Rehana in compromising position”.

As such the story of motive was also correctly discarded by the learned trial court.

18.As far as recovery of electric wire on 04.4.2008, on the pointation of respondent No.1 which was taken into possession through memo (Exh.PF) is concerned, we have noted that the same was allegedly recovered from the living room of respondent No.1’s house, which was inspected by the Investigating Officer (PW-12) on 20.3.2008 and had prepared un-scaled site plan (Exh.PJ) but had not find electric wire there whereas Shahnaz Ahmed constable (PW-5) deposed during cross-examination which reads as under:-

“It is correct that any person entering the house of accused Rehana Kausar can see the electric wire which was hanging on a nail with the wall.”

19.Apart from, the recovery was affected after 16 days of the occurrence from the same room from where dead body was recovered.

20.As far as medical evidence is concerned, Dr. Muhammad Naseer Ahmed had conducted post-mortem over the dead body of Muhammad Sharif on 20.3.2008. He had not found any sign of violence which was visible on the body of the deceased; tongue was not extruded out of the mouth but mouth and eyes were closed; no forth had been drained from the nose or mouth. This doctor though reported the cause of death due to throttling and compression yet in cross- examination he has created doubt regarding the manner of death of the deceased. He deposed as under:-

“It is correct to suggest that the deceased was having the ligature mark during hanging.-------Compression means pressure. It is correct to suggest that compression may be inflicted by ligature, throttling, hanging and by bans-dola.”

21.It is thus, obvious that the learned trial court has rightly come to the conclusion that medical evidence does not support the ocular account by advancing cogent reasons.

22.It is a settled principle of law that conviction can only be based upon unimpeachable evidence and if any doubt arises in the prosecution story, the benefit of the same should be gone to the accused. It is clear from the above analysis that the learned trial court had

discussed the evidence of the prosecution in detail and had discarded the same for cogent and convincing reasons.

23.We may point out that in the appeal for acquittal, interference is made only when it appears that there had been gross misreading of evidence on the record leading to miscarriage of justice so as to call for interference with the impugned judgment. Reliance is placed on the case law reported in Mst. Saira Bibi v. Muhammad Asif and others (2009 S C M R 946).

24.On the above analysis, we find that the view taken by the learned trial court is just and quite reasonable, not suffering from any perversity. It is not a case of misreading of evidence. No doubt, Muhammad Sharif was murdered but the court is followed by the evidence on the record and the accused/respondents could not be convicted on the basis of unreliable and untrustworthy evidence of the eye witnesses running counter to medical evidence. The prosecution has badly failed to prove its case against the accused-respondents No.1 to 3 beyond any shadow of doubt and the learned trial court has rightly appreciated the evidence brought on record, therefore, we are not inclined to interfere in the judgment rendered by the learned trial court which is not perverse. It has

also been observed by the Hon’ble Supreme Court of Pakistan that in such circumstances, acquittal earned by an accused should not be disturbed and as such the learned trial court has not committed any illegality or material irregularity in exercise of its jurisdiction vested in it. Reliance is placed on the case reported as Jahangir v. Amanullah and others (2010 SCMR

25.Consequently, this Criminal Appeal is devoid of any force and the same is hereby dismissed.

(SYED IFTIKHAR HUSSAIN SHAH) (AALIA NEELUM)

JUDGE JUDGE

Approved for reporting.

Hamid/*