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Official Citation: 2024 PCRLJ 463
Court / Jurisdiction: Lahore High Court
Year of Decision: 2022
Decision Date: 2022-10-04
Parties: Muhammad Arslan vs The State and another
Ruling Summary: This decision was rendered by the Lahore High Court on 2022-10-04, officially reported as 2024 PCRLJ 463. In this matter between Muhammad Arslan and The State and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 PCRLJ 463
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Muhammad Arslan vs The State and another Case No.: Criminal Appeal No. 584 and Murder Reference No. 46 of 2022 Date of Judgment:2022-10-04 Reported As: 2024 PCRLJ 463 Result: Appeal allowed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Arslan son of Muhammad Iqbal (convict) was tried by the learned Additional Sessions Judge, Layyah in the case FIR No. 50 of 2020 dated 06.02.2020 registered in respect of an offence under section 302, P.P.C. at the Police Station Kot Sultan, District Layyah, for committing the Qatl-i-Amd of Arbia Bibi daughter of Javaid Iqbal (deceased) and the Isqat-i-Janin of the unborn child Ariba Bibi (deceased) was pregnant with. The learned trial court, vide judgment dated 09.06.2022, convicted Muhammad Arslan son of Muhammad Iqbal (convict) and sentenced him as infra: Muhammad Arslan son of Muhammad Iqbal: i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-amd of Ariba Bibi daughter of Javaid Iqbal (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to tile legal heirs of Ariba Bibi daughter of Javaid Iqbal (deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Imprisonment for seven years as Tazir under section 338C, P.P.C. for causing Isqat-i-Janin of the child Ariba Bibi daughter of Javaid Iqbal (deceased) was pregnant with and also directed to pay one-twentieth of the Diyat. 2. Feeling aggrieved, Muhammad Arslan son of Muhammad Iqbal (convict) lodged Criminal Appeal No. 584 of 2022 assailing his conviction and sentence. The learned trial court submitted Murder Reference No. 46 of 2022 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad ArsIan son of Muhammad Iqbal.
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We intend to dispose of the Criminal Appeal No. 584 of 2022 and Murder Reference No.46 of 2022 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as narrated by Javaid Iqbal (PW-7), the complainant of the case are as under:- "Stated that on (sic) Ariba Bibi was my daughter. She was married 6/7 months prior to the occurrence to Muhammad Arslan accused. They contracted love marriage against my will. After two months of their marriage, there arose differences between spouses. My daughter Ariba Bibi told me about her quarrel with her husband, Muhammad Arslan, accused present before the court, through telephonic call. On 06.02.2020, I along with Muhammad Akbar and Muhammad Saleem went to the house of Muhammad Arslan accused on motor cycle at about 12/12.30 noon, As soon as we entered from gate in the house, we saw Muhammad Arslan accused present before the court was dragging my daughter Ariba Bibi while holding her hair and taking her into the room. In our view accused Muhammad Arslan immediately made fire shot, which hit at the front side of belly of Ariba Bibi. As we proceeded ahead, the accused Muhammad Arslan pointed his pistol towards us and threatened that if we would proceed, he would fire at us. We stepped back. Accused Muhammad Arslan threw the pistol there and ran away while scaling over the western wall of the house. We saw Ariba Bibi was smeared in blood, but she was died. We came out from the gate. We informed the police. Motive behind the occurrence was matrimonial dispute between accused Muhammad Arslan and my daughter Ariba Bibi. Police came at the spot. I got recorded my statement Exh-PB before the police, which bears my signature." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the appellant namely Muhammad ArsIan son of Muhammad Iqbal was sent to face trial.- The learned trial court framed the charge against the accused on 21.03.2020 and reframed the charge on 06.10.2020, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as nine witnesses recorded. The ocular account of the case was furnished by Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8). Malik Khizhar Hayat, Halqa Patwari (PW-1), prepared the scaled site plan of the place of occurrence (Exh.PA). Zahid Abbas, 566/14C (PW-2) stated that on 06.02.2020, he received one sealed parcel said to contain the pistol recovered from the place of occurrence and one sealed parcel said to contain blood stained earth and another sealed parcel said to contain the piece of bullet recovered from the place of occurrence and he handed over the said parcels to Muhammad Riaz, SI (PW-9) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Zafar Iqbal, ASI (PW-3) stated that on 06.02.2020, he got recorded the formal FIR (Exh.PB/1). Tehmeena Abbas 36/LC (PW-5) stated that on 06.02.2020, she escorted the dead body of the deceased to the hospital for post-mortem examination and received the last worn clothes of the deceased from the Woman Medical Officer after post-mortem examination. Ahsan Javed (PW-6) stated that he identified the dead body of the deceased at the time of its post-mortem examination and the Woman Medical Officer handed over the last worn domes of the deceased to the Investigating Officer of the case, in his presence. Muhammad Riaz, SI (PW-9) investigated the case from 06.02.2020 till 25.02.2020, arrested the appellant on 13.02.2020, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Sana Zahra (PW-4) examined who on 06.02.2020 was posted as Woman Medical Officer at the T.H.Q. Level Hospital, Kot Sultan and on the same day had conducted the post mortem examination of the dead body of the deceased namely Ariba Bibi daughter of
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Javaid Iqbal. On conducting the post mortem examination of the dead body of the deceased namely Ariba Bibi daughter of Javaid Iqbal, Dr. Sana Zahra (PW-4) observed as under:- "Description of Injuries Injury No.1 An entry wound of size 01 x 01 cm inverted margins in midline of abdomen 17 cm above anterior superior iliac spine. An area of burned black skin, semi circular in shape of diameter 03 cm around the entry wound, singeing of hair was present, abrasion collar of wound present. Shape of wound was semi circular, upon dissection mild burning of subcutaneous tissue present however deep subcutaneous fat was normal. No tattoing was seen. Injury No.2 An exit wound of size 01 x 0.5 cm on the back 16 cm above from anterior superior illiac spine. The wound was just 1 cm right lateral to mid line the margins of wound were everted. Injury No.3 An abrasion of size 02 x 01 cm on left patella. No erythema/swelling was seen. ..................................................... Opinion Death occurred by cardio pulmonary arrest due to Hypovolemic shock caused by firearm injury to pancreas mesentery vessels and inferior vena cava. The probable duration between injuries and death was within two hours and between death and post-mortem was six hours. During post- mortem examination, I received samples of some organs and sent to PFSA for analysis. After post- mortem examination, I handed over dead body of deceased and last-worn clothes of deceased i.e. shalwar, kameez to the police. Computerized post-mortem report Exh-PD was signed by me and diagram about locale of injuries Exh-PD/1 were also signed by me. Inquest report Exh-PE was endorsed by me." 7. On 10.02.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Mohsin Javed as being unnecessary. On 17.02.2022, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Saleem as being unnecessary. On 18.02.2022, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the blood stained earth (Exh.P.N.), the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the empty recovered from the place of occurrence and the pistol (Exh.PM) and the report of the Punjab Forensic Science Agency, Lahore regarding the latent fingerprint examination (Exh.PL). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Arslan son of Muhammad Iqbal under section 342, Cr.P.C. and in answer to the question why this case against you and why the P.Ws. have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Arslan son of Muhammad Iqbal opted not to get himself examined under section 340(2), Cr.P.C. however got Muhammad Rizwan Ali, IT Statistical Officer (DW-l) examined in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Layyah convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to suspicion alone. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
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11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the pistol (P-4) from the place of occurrence also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance, perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8), the eye-witnesses of the occurrence. The relationship of the said witnesses with the deceased is on record. Ariba Bibi (deceased) was the real daughter of Javaid Iqbal (PW-7) and the maternal niece of Muhammad Akbar (PW-8). During cross-examination, the prosecution witness namely Javaid Iqbal (PW-7) stated as under:- "PW Muhammad Akbar is my brother-in-law and maternal uncle of deceased Ariba Bibi. PW Muhammad Saleem is paternal brother (Chachazad) of my wife. He is not my "Humzulf". PW Ahsan Javaid is my son." The prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8), both of them were residents of Mohalla Balochan Wala, whereas the occurrence had taken place at Basti Masuwali, Mouza Ali Dasti, which place was admittedly at a distance from the place of residences of Javaid Iqbal (PW- 7) and Muhammad Akbar (PW-8). Muhammad Riaz SI (PW-9), the Investigating Officer of the case, during cross-examination stated as under:- "The place of occurrence is situated in Mauza Ali Dasti Basti Masuwali. On the day of occurrence, I did not join in investigation any person from Mauza Ali Dasti Basti Masuwali to verify the version of the complainant party." It is an admitted fact that both the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) did not have their residences or their places of employment near or around the place of occurrence. The prosecution witness namely Javaid Iqbal (PW-7) during cross-examination admitted as under:- "My house is situated at a distance of about one and half kilometers towards west from the place of occurrence. PW Muhammad Akbar is also residing in the adjacent house to me. The house of PW Muhammad Saleem is situated at a distance of two and half kilometers towards north from the place of occurrence. ............... My shop is situated at a distance of about one and half kilometers towards west from the place of occurrence. It is my routine to open shop after "Fajr" prayer and to close the shop after "Maghrib" prayer." Similarly, the prosecution witness namely Muhammad Akbar (PW-8) during cross-examination admitted as under:-
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"My house is situated at a distance of about 2/3 kilometers from the place of occurrence. Same is the distance of my shop from the place of occurrence" Ahsan Javed (PW-6) also admitted during cross-examination as under:- "The complainant Javid Iqbal is my real father. My residence is about two kilometers away from the house of the accused. The complainant and we have been residing together. ........................ PW Akbar is my maternal uncle whose residence is at a distance of about 02 kilometers from the place of occurrence. PW Saleem is also my maternal Uncle whose house is 1-1/2 kilometer away from the place of occurrence and half kilometer away from my residence towards north." In this manner, both the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. In order to prove their presence at the place of occurrence, at the time of occurrence, Javaid Iqbal (PW-7) stated that the deceased namely Ariba Bibi daughter of Javaid Iqbal called him, telling him about the violence being exacted upon her by the appellant and it was this reason which persuaded the prosecution witness namely Javaid Iqbal (PW-7) to proceed to the matrimonial house of his deceased daughter namely Ariba Bibi. The prosecution witness namely Javaid Iqbal (PW-7) admitted during cross-examination that it was his routine that he used to open his shop after Fajr prayer and close the same after Maghrib prayer, therefore, during the course of the recording his evidence by the learned trial court, he invented the claim that because he had received a call from the deceased, therefore, he, on the day of occurrence, contrary to his routine, proceeded to the place of occurrence at about 12.00 noon. The claim that the prosecution witness namely Javaid Iqbal (PW-7) had received a telephonic call from the deceased namely Ariba Bibi was not mentioned initially by Javaid Iqbal (PW-7) in his oral statement (Exh.PB) recorded at the place of occurrence, after the occurrence by Muhammad Riaz, SI (PW-9). It was only during the course of the trial that the prosecution witness namely Javaid Iqbal (PW-7), after realizing the inherent flaw in his narrative wherein no reason had been mentioned for the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW- 8) to have proceeded to the place of occurrence, on the day of occurrence, improved upon his previous statement and came up with the narrative that because his daughter had called him, therefore, he proceeded to meet her, however, the prosecution witness namely Javaid Iqbal (PW-7) was badly exposed in his effort and during the course of examination of Javaid Iqbal (PW-7), the learned trial court observed as under:- "I got recorded in my statement Exh-PB that my daughter Ariba Bibi told me about her quarrel with her husband, Muhammad Arslan, accused present before the court through telephonic call. Confronted with Exh-PB where telephonic call is not mentioned."(emphasis supplied) The prosecution witness namely Javaid Iqbal (PW-7) also admitted that neither during the investigation of the case nor before the learned trial court he had mentioned the phone number of the mobile phone device used by Ariba Bibi (deceased) from which Javaid Iqbal (PW-7) had received the call. Javaid Iqbal (PW-7) also admitted during cross-examination that he did not even mention his own phone number on which he had received the call of Ariba Bibi during the cOurse of the investigation. Javaid Iqbal (PW-7), during cross-examination, admitted as under:- 'I did not tell cell number of Ariba Bibi through which she telephonically informed me about the quarrel. I also did not tell my cell number to the police"
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Javaid Iqbal (PW-7) during the investigation of the case and even before the learned trial court did not produce any evidence in the shape of Call Data Record (C.D.R.) of the mobile phone number under his use or under the use of Ariba Bibi (deceased) to establish that he had indeed received the telephonic call of Ariba Bibi (deceased) and after receiving the said call he and Muhammad Akbar (PW-8) had proceeded to the place of occurrence. Furthermore, Muhammad Riaz SI (PW-9), the Investigating Officer of the case, also did not collect any evidence during the investigation of the case so as to prove that Javaid Iqbal (PW-7) had indeed received a phone call of Ariba Bibi (deceased). The mobile phone device through which the deceased had called Javaid Iqbal (PW-7) was also not found present at the place of occurrence nor was produced by any witness during the investigation of the case nor was produced before the learned trial court. The Woman Medical Officer who conducted the post-mortem examination of the dead body of the deceased also did not find any such mobile phone device at the time when she conducted the post-mortem examination. The Investigating Officer of the case, also did not find any such mobile phone device at the place of occurrence, despite his presence at the place of occurrence for a continued period. The failure of the prosecution to produce the mobile phone device under the use of Ariba Bibi (deceased) has repercussions. The very inception of the prosecution case is put in doubt due to the said failure of the prosecution. Furthermore, the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) remained at variance with regard to their departure from their shops to the place of occurrence, on the day of the occurrence. According to the prosecution witness namely Javaid Iqbal (PW-7), on the day of occurrence, Muhammad Akbar (PW-8) met him at his shop, from where they proceeded to the place of occurrence, whereas according to the prosecution witness namely Muhammad Akbar (PW-8), on the day of occurrence, Javaid Iqbal (PW-7) had come to his shop, where after they went to the place of occurrence. Javaid Iqbal (PW- 7), during cross-examination, stated as under:- "The shop of Muhammad Akbar is situated in front of my shop. He met me at the shop on that day at about 08.30/9 a.m. PW Muhammad Saleem is butcher by profession. He met me on that day at the shop situated near my shop early in the morning. We left our shops on the day of occurrence at about 11.45/12 noon." (emphasis supplied) Muhammad Akbar (PW-8), to the contrary, during cross-examination stated as under:- "On 06.02.2020, we gathered at my shop to go to the house of accused Muhammad ArsIan. Fristly Javaid lqbal complainant and then PW Muhammad Saleem came." (emphasis supplied) We have also noted that though it was claimed by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) that they had gone to the place of occurrence on one motorcycle, however, during the course of the investigation as well as before the learned trial court, the said motorcycle allegedly used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence was not produced. Javaid Iqbal (PW-7) during cross-examination stated as under:- "Motor cycle was owned by me on which we went to the house of accused Muhammad Arslan. I did not produce my motor cycle before the police." (emphasis supplied) As mentioned above, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, visited the place of occurrence, after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence, if the same was available. The said motorcycle which was used by the prosecution witnesses namely Javaid Iqbal (PW-7) and
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Muhammad Akbar (PW-8) was not even produced during the entire period of investigation nor was produced before the learned trial court. The non-production of the motorcycle used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence and the failure of Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such motorcycle was available. Had a motorcycle been used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Muhammad Riaz, SI (PW-9), the Investigating Officer of the case and the same would necessarily have been taken into possession by Muhammad Riaz, SI (PW-9), the Investigating Officer of the case but it was not and it proves that a false claim was made by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) that they had arrived at the place of occurrence on a motorcycle. The very inception of the prosecution case is therefore put in doubt. Reliance in this regard is placed on the case of "Muhammad Ali v. The State" (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:- 'The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material." We have also noted with concern that both the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) made mutually destructive statements regarding the place where they had parked the motorcycle while proceeding to the place of occurrence. According to the prosecution witness namely Javaid Iqbal (PW-7), the motorcycle was parked at a distance of two feet from the place of occurrence, whereas according to Muhammad Akbar (PW-8), the place of parking of the motorcycle was as far as 40/45 feet from the place of occurrence. Javaid Iqbal (PW- 7) during cross-examination stated as under:- "I parked my motor cycle in front of gate of house of accused Muhammad Arslan at a distance of about two feet.'' Muhammad…
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