Naheeda Bibi Vs The State etc

Judgment Sheet

Pns HAWAR HICU COURT, ASTOTTABAD BENqH

JUDICIAI- DEPARTME,N]'

Criminal Appeal No.43-Al2010

Naheeda Bibi... (Appellant) Yersus

The State and others... (Respondents) Present: Mr.AzeemullahKhanTahirlcheli, Advocate for appellant.

Sardar Waqar-ul-Mulk, Assistant Advocate General for State.

Mr.Awais Abbasi, Advocate for accused/respondents.

Date of hearing: 03.10.2023.

JUDGMENT

MuHavrvran Iraz Ku,q.N. J.- Through the instant appeal, appellant Naheeda Bibi (widou, of deceased Muhammad Faroocl) has challenged the order and judgment of learned Sessions Judge, Abbottabad dated 16.02.2010 whereby respondents No.2 to 4 namely Muhammad Javed, Muhammad Parvez and Shahid have been acquitted in case FIIt No.308 dated 06.10.2008 registered under sections 3A2824134 PPC, at Police Station Doonga Gali, Abbottabad.

(DB)llon'ble lvlr.Justice Kamran Llayat ,Vliankhel, IIon'ble Mr.Justice Muhantmad ljaz Khan. (Jamil)

2.Precisely, the facts of the present case are that Raja Saeed SHO Police Station Doonga Galli was on mobile patrolling at Kala Bagh when he, on receipt of information through mobile from Amjad Councilor, reached on the spot i.e. Padreri Sair Gharbi where Mst.Sanam Farooq daughter of Muhammad Farooq on 05.10.2008 at 23.00 hours, in her house, lodged report to him that at 17 .40 hours she alongwith her mother were present at her home and her father Farooq went to house of his real brother Amanat. Javed son of Fazal Dad equipped with Churri (knife), Shahid son of Anwar, Parvez son of Fazal Dad came to her home; Shahid and Parvez caught hold of her mother and ovelpowered her, while Javed gave Churri blow on abdomen of her mother Mst.Naheeda with intent to commit her murder and thereby injured her; while decamping he FT said that now its turn of her father Farooq on which she ran to chase them; at sufficient distance when she reached at place known as Padreri her father was coming from the

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijqz Khan. (Jami1)

pathway of Padreri to his home when Shahid tried to overpower her father, meanwhile Pawez gave knife blow on the chest of her father with intent to commit his murder; her father raised hue and cry; Javed gave Churri blow to her father beneath umbilicus and Shahid made him fall by pushing and he died on the spot; accused went from the spot; many people of the village gathered to the spot;

motive for the occurrence is dispute over water; the occurrence was witnessed by Amanat Khan besides her; she charged the accused for the commission of offences. Her report was recorded in shape of Murasila (Ex.PA/1) which resulted into registration of instant FIR (Ex.PA).

3.After registration of the case, a full- fledged investigation was carried out and then challan was put in court against the 0 respondent. In support of its case, prosecution produced as many as fifteen (15) witnesses and after hearing both the parties, the respondents were acquitted of the charges levelled against

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan. (Jamil)

them vide impugned order and judgment dated 16.02.2010. The appellant namely Mst.Naheeda Bibi (widow of deceased Muhammad Farooq) has now challenged the aforesaid order through the instant appeal

4.Arguments of learned counsel for the parties as well as leamed Additional Advocate General were heard in considerable detail and record perused with their able assistance.

5.The record would reveal that as per the version of the complainant, the instant incident has taken place on 05.10.2008 at 17.40 hours, however, when Mst.Naheeda mother of the complainant namely Mst.Sanam Farooq was allegedly stabbed by the acquitted respondent namely Javed and thereafter all the three nominated accused went after the father of the complainant namely Muhammad Farooq o 1 where on the way he was also allegedly stabbed and done to death. It is also part of the evidence that the son of the deceased namely Mehtab and his brother namely Amanat Ali were the persons amongst others who attracted

(DB)Hon'ble Mr.Justice Kamran Hayat lvliankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan. (Jamil)

to the scene of occurrence where the deceased was done to death and they managed to put the dead body on the cot and took the same to the house of Amanat Khan. It is also part of the record that soon after the occurence, many people of the locality attracted to the spot but surprisingly neither the complainant nor the son of the deceased nor his brother namely Amanat nor any other inhabitant of the village has bothered either to shift the injured PW-9 Mst.Naheeda Bibi to the hospital or even the deceased who was by then alive and they even did not bother to register an FIR as it was after 5% hours of the occurrence (23.00 hours) when the local police after receiving information from Amjad Councilor, themselves came to the house of the complainant party and where-after the instant report was lodged. The available record is 'L9 completely silent about this unnatural conduct of the complainant party including of two close male members of deceased family and thus this delayed registration of the report casts

(DB)Hon'ble Mr.Justice Kamran Llayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan. (Jamil)

a serious doubt on the veracity of the prosecution story. It is also part of the record and as stated by the scriber of the Murasila namely Raja Saeed Aslam (PW-14) that he was informed by one Amjad Councilor about the occurrence but even the prosecution has not examined the said Amjad as a witness and as such the prosecution has not been able to prove the very foundation of its case. In the case titled ttAmir Khan vs The State" reported as @, the APex Court

has held that nowhere in the entire evidence, the prosecution has explained the reason for the delay in reporting the matter to the Police with such a delay. The delayed FIR shows dishonesty on the part of the complainant and that it was lodged with deliberation and consultation.

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6.It is the case of prosecution that PW- 8/the complainant was present with her mother in her house when the acquitted respondents came to their house and two out of them got hold of her mother and the third one stabbed

(DB)Hon'ble Mr.Justice Kamran llayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan. (Jamil)

her in belly and there-after when the nominated accused were leaving the house of the compiainant, they warned her that now they will see to her father as well who was by then in the house of his brother i.e. PW-10 Amanat Khan and the complainant allegedly followed the nominated accused to his house and thus the complainant has also shown herself as eyervitness of the murder of her father which has taken place in the front gate of the house of the nominated accused Javed and near the front gate of the house of her uncle Amanat Khan. Such conduct on the part of complainant Mst.Sanam Javed is highly unreasonable and unnatural as allegedly she left her loving mother in a pool of blood and did not make reasonable efforts to save the life of her mother rather opted to follow the nominated accused, therefore, sttch conduct on ^i her part too casts serious doubt about the truthfulrress of the prosecution story.

7.It is also part of the record that the injured PW namely Mst.Naheeda Bibi was not

(DB)Iton'ble Mr.Justice Kamran llayat Miankhel' Hon'ble Mr,Justice Muhamntad liaz Khan. (Jarnil)

shifted to the hospital and she remained at her home even after 5Yz hours of the occurrence when the local police came to her house and it was on the next morning when she was examined by the lady Dr.Nusrat Ara (PW-3) which obviously shows that the injured Mst.Naheeda remained normal after the occurrence as had she been seriously injured then of course her nears and dears and especially her educated daughter Mst.Sanam Farooq (who has worked in a beauty polar at Rawalpindi and she has also remained as model) would have tried to shift her to the hospital. It is also quite astonishing that as she was an injured PW, therefore, she should have been the complainant of this case and as stated hereinabove that throughout the ensuing night and even in the morning she remained in her house which obviously speaks of her normal condition and on the very next date, PW-3 I lady Dr.Nusrat Ara has examined her and the said doctor has admitted in her cross- examination that all the facts scribed by her in

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiqz Khan. (Jamil)

the medico-legal report were noted down as a result of conversation with Mst.Naheeda Bibi which fact also shows that she was oriented and able to talk but the prosecution opted not to lodge the report of the incident through her.

The learned counsel for the appellant/ complainant though made reference to her cross-examination that she remained unconscious for a couple days, however, such stance in the presence of statement of the doctor could not be appreciated as the same appears to be afterthought and just to fill the aforesaid lacuna in the prosecution case.

8.It is also highly astonishing to note that admittedly injury-sheets (Ex.PW-14/1 and Ex.PW-14/3) of deceased as well as injured were prepared by the I.O. (PW-14) after drafting Murasila at 11.00 p.m. at the night of occuffence i.e. on 05.10.2008 and he has sent both dead body of the deceased and injured Mst.Naheeda Bibi to DHQ Hospital Abbottabad for post mortem examination and medical examination under the escort of PW

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhommad Iiaz Khan. (Jamil)

Muhammad Siddique FC No.515, however, the post mortem examination of the deceased and medical examination of the injured were conducted on the following day i.e. 06.10.2008 at 10.45 a.m. and 11.00 o.ffi., respectively. The said Muhammad Siddique FC No.515 in his cross-examination as PW-6 also stated that he took the injured and deceased to hospital on 06.10.2008, however, he never explained that where he as well as injured and deceased remained during such a long intervening time of about twelve (12) hours. This aspect of the matter also creates a doubt about the safe escort of the injured and dead body of the deceased.

9.It is also part of the record that neither any blood was recovered from the place of injured Mst.Naheeda Bibi nor from the place of deceased Muhammad Farooq nor from the house of PW- 1 0 Amanat Ali, where the dead ^2 body was immediately shifted from the spot.

For non-availability of the blood from the place of deceased, the prosecution though has

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijqz Khan. (Jamil)

offered an explanation that in fact there was raining after the occuffence but the non- recovery of blood from the house of PW Amanat Ali as well as from the place of injured Mst.Naheeda which is inside the room as well as non-recovery of any blood stained articles from the house of the complainant or from the house of PW Amanat Ali are fatal lacuna in the prosecution case. For this non- recovery, learned counsel for appellant/ complainant stated that in fact after receiving the stab wound, victim Mst.Naheeda stopped blood through her Dopatta but again that Dopatta was neither taken into possession through a recovery memo nor produced before the trial court by the prosecution. These aspects of the case make the places of occurrence highly dubious and also create a reasonable doubt in the prosecution version.

10.It is also part of evidence asPW-9 D Mst.Naheeda has stated that after receiving stab wound, she made cries and due to her cries, the complainant attracted from her room

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan. (Jamil)

to the room of this injured PW, which obviously means that PW-8/the complainant Sanam Farooq is not the eyewitness of the real episode of the incident, but in her statement as PW-8 she has stated a photogenic narration of this incident to the effect that when the accused entered her house, two accused caught hold of her mother and the third one stabbed her and when her this bald statement is seen in juxtaposition with the statement of PW-10 Amanat Ali who has stated that when they shifted the dead body of his brother from his house to the deceased house, there the complainant told him that her mother has also been injured by the accused, which statement outrightly falsifies the presence of the complainant as well as her story as set in the FIR that she followed the accused from her house to the place where her father was done to death. ThisJweeping statement of PW-10 Amanat Ali has cut the prosecution case at the very roots and thus the learned trial court has rightly extended benefit of these doubts to the acquitted respondents.

(DB)Hon'ble Mr.Justice Kumran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan. (Jamil)

11.It is also part of the record that the acquitted respondent Javed who was specifically charged for stabbing knife blows to the victim as well as to the deceased was arrested on the same night from his house and that too in the injured condition, however, neither the I.O. bothered to exhibit his card of arrest which is available on file nor mention any time and date of his arrest therein. Having said that, PW-14 Muhammad Saeed Alarn (scriber of Murasila) prepared and exhibited injury-sheet of accused Javed dated 05.10.2008 as Ex.PW-14/4 and his medical report was exhibited as Ex.PW-141D.2.It was admitted by the Investigation Officer namely Muhammad Khursheed (PW-15) that accused was arrested on 06.10.2008. Flowever, it is very strange that injury-sheet of accused Javed was prepared on 05.10.2008 i.e. before his * arrest. It has also been admitted by Investigation Officer that he was handed over accused Javed in injured condition by the Operational Staff and he lvas already

(DB)Hon'ble Mr.Justice KQmran Ilal'at l,'lianklrcl, I{on'ble Mr.Juslice Mtthammad liaz KlMn. (Jami1)

medically examined. He has also admitted that there was a medical report at the time of receiving the accused and as per the advice of the doctor, he also obtained a Radiologist report, however, neither the Investigation Officer has bothered to investigate his defence plea as stated in his confessional statement as well as in his statement recorded under section 342 Cr.PC nor the trial court has bothered to dig out the real truth of the instant occuffence.

In the given facts and circumstances neither during the course of investigation nor from the available evidence, it could safely be concluded that as to whose stance/plea i.e. of the complainant (PW-S) or of accused Javed is true and correct and thus benefits of such uncertainty in the prosecution case has to be extended to the nominated accused. It was also noted that the complainant of this case

I

L9 Mst.Sanam Farooq has suppressed the injury on the body of acquitted respondent Javed, whereas Javed in his report has come with a fair narration of facts and has not suppressed

(DB)Hon'ble Mr.Justice Kamran Hayat 741onppu,, Hon'ble Mr.Justice Mtthammad Ijaz Khan. (Jamil)

anything, therefore, the prosecution has to suffer for this suppression of facts. In the case titled o'saehir Ahmad vs The and

otherso' reported as 2023 SCMR 241, the Apex Court has held that it is a well settled principle of law that for the accused to be afforded the right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner. The august Supreme Court of Pakistan in its judgment rendered in the case titled "Bashir Muhammad Khan vs The State" reported as 2022 SCMR 986, has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a

6)matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution

(DB)Hon'ble Mr.Justice Kanran Hayat Miankhel, IIon'ble Mr.,luslice Muhammad liaz Khan. (Jamil)

to prove its case beyond reasonable shadow of doubt. Similarly, in the case titled ,,Khalid Mehmood lias Khaloo vs The State" reported as 2022 SCMR 1148, the Apex Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Similarly, in the case titled "Khalid Mehmood alias Khaloo vs The State" reported as 2022 SCMR 1!!E, the Apex Court has reiterated the same rational o.)

by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single

(DB)Hon'ble Mr.Justice Kamran Hayat Mionkhel, Hon'ble Mr.Justice Muhammad Iiaz Khan. (Jamil)

circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. In another case titled "Kashif Ali alias Kalu vs. The State and another" reported as 2022 SCMR 1515, the Apex Court has held that it is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused.

-0'> Reliance in this behalf can be made upon the cases Tariq Pervez v. The State (1995 SCMR 134il, Ghulam Oadir and 2 others v. The State (2008 SCMR 1221), Akram

v. The State (2009 SCMR 230), Muhammad

(DB)Hon'ble Mr.Justice Kqmran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khqn. (Jamil)

Zaman v. The State (2014 SCMR 749) and Muhammad Mansha v The State" (2018

SCMR 772).

12.It merits to mention here that the Investigation Officer was required to also investigate the plea of the acquitted accused namely Javed during the course of investigation of present FIR in light of law settled by the Apex Court in the case tilted "W vs. The srATE" reported as PLD 2018 SUPREME COURT 595 in which it was held that this section (S.160 of Cr.PC) clearly dispels the impression that the investigating officer is to be guided or controlled by the contents of the FIR or that the investigation to be conducted by him is driven by any duty to establish that the story of the incident contained in the FIR is correct. In fact, to the contrary, after registration of the FIR the investigating officer is to embark upon an exercise to discover the actuality of the matter irrespective of the version of the incident narrated by the first informant through

(DB)Hon'ble Mr.Justice Kamran llayat Miankhel, IIon'ble lvlr.Justice Muhammad Iiqz Khan. (Jamil)

the FIR and in the process he is expected to collect information frorn any number of persons who appear to him "to be acquainted with the circumstances of the case". Every new information received by him during the investigation of the case or every new circumstance in which the relevant offence was committed coming to his notice during the investigation of the case is not to require registration of a separate FIR because such further information or knowledge is a part of investigation of the same case which had taken birth at the time of registration of the FIR.

13.It is also part of the record that though the prosecution has set a motive of dispute over flowing and blocking of water, hov,rever, they have not brought on record an iota of evidence to prove the same except bald allegation. It is settled law that prosecution is ,ej not bound to set a motive, however, when once it opted to set a motive then it ltas to be proved and in case of its failure to do So, benefit thereof has to be given to the accuseci. In the

(DB)Hon'ble Mr.Ju,stice Kawan Ilayat lvliankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan. (Jamil)

above cited case titled "Taiamal Hussain Shah vs The State and another" reported as 2022 SCMR 1567, the Apex Court has also held that according to the prosecution the motive of the occuffence was previous quarrel between co-accused Nazakat Hussain Shah (tried separately) and Wajid, son of the cornplainant. However, the prosecution failed to produce the said Wajid in order to prove the motive part, therefore, it can safely be concluded that prosecution could not prove the motive part of the story. The Honourable Supreme Court of Pakistan in case referred above titled "@ vs The

S!g1!9" reported as 2023 SCMR 670, has also held that it is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the same would go in favour of the accused.

14.As far as confessional statement of the acquitted respondent Javed is concerned, the

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan. (Jamil)

same would show that he has only taken a defence plea therein to the effect that he was attacked by the deceased party and his this stance and the contents of his confessional statement find corroboration from this facts that at the time of his arrest he was having fatal injury on his head and it is also part of the record that he was medically examined by the doctor and he was advised X-Ray, however, neither during the course of investigation nor during trial, prosecution has been able to rebut the counter-plea of the acquitted respondent, therefore, in such circumstances, the confessional statement could not be considered even for conviction what to speak of recalling an acquittal.

15.It is also settled law that before the trial, an accused is presumed to be innocent unless proven guilty and once an accused succeeds to ( f? earn an acquittal order then double presumption is attached to his innocence and AS such while hearing an appeal against acquittal, the appellate Court cannot disturb, or

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan. (Jamil)

reverse or set-aside such an acquittal order unless the same is found to be perverse, shocking, artificial and over and above suffering from jurisdictional defect or non- reading of evidence or misreading of evidence.

The above yardstick if applied to the present case, I found that the impugned acquittal order is neither perverse nor artificial nor suffering from misreading or non-reading of evidence. It is also settled law that while hearing of appeal, if on re-appraisal of evidence, a contrary view is spelling-out even this is not sufficient for interference in the acquittal order unless it is established that none of the ground of acquittal finds support from the record and evidence available on file. In the case titled "Jehsnsir vs Aminullah & others" reported as 2010 SCMR 491, the Apex Court has held that there 6 are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence

(DB)Hon'ble Mr.Justice Kamran Hayat iv{iankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan. (Jamil)

it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible.

If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court wouid interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too rvith a view only to avoid grave miscarriage of justice and for no other purpose. The view taken by this Court in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 1/ is well-known that in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused This approach is slightly different fi'om that in .o?

an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is ttndeftaken so as to see that benefit of every reasonable doubt should

(DB)Hon'ble l.{r..lttstice Kamran lIayat Miankhel, Hon'ble Mr.Jrtstice lv{uhamrnad Iiaz Khqn. (Jamil)

be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well- accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. In the case titled o'Ba4kal Ali vs Shaukat Ali & others" reported as 2004 SCMR 249, the Apex Court has held that whenever an accused person is acquitted of a criminal charge then he enjoys double presumption of innocence; one before the trial of the case and second after his acquittal.

2 Similarly, in the case titled "@Sta1!9 vs fu@I" reported as PLD 1997 Sunreme Court 408, the Apex Court has held that an acquittal appeal stands on a different footing

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble MnJustice Muhammad Ijaz Khan. (Jamil)

than an appeal against the conviction. In acquittal appeals, the superior Courts generally do not interfere with unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on re- appraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to justi$, interference r,vith the acquittal judgment.

16.For the reasons recorded hereinabove, no illegality or iregularity could be either pointed out by learned counsel for the appellant or found by this cotttl in the impugned judgrnent/order dated 16.02.2010 rather the same .is cogetrt, sound eurd well- reasoned, therefore, the same is rnaintained and upheid, while instant crirninal appeal being meritless is hereby dismissed.

ANNouxcnlD

(Jarnil)

E

,6t

JUD G

(DB)IIon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammud Iiaz Khan.