Full Judgment Text & Judicial Ruling

2019 Y L R Note 25 [Lahore (Multan Bench)] Before Syed Muhammad Kazim Raza Shamsi and Asjad Javaid Ghural, JJ ZAFAR and another---Appellants Versus The STATE and another---Respondents Criminal Appeals Nos. 190, 191 and P.S.L.A. No.51 of 2014, heard on 31st May, 2018. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 324, 201, 109 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of the offence, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused entered into the house of complainant and sprinkled acid on the daughter and grand-daughter of complainant and also threw acid upon the complainant, due to which complainant sustained acid burn injury while her daughter and grand-daughter died due to acid burn---Record showed that matter was reported to the police by the father of the deceased, nominating husband of one of the deceased along with two unknown accused persons---During investigation, mother of deceased ladies along with two persons had intruded themselves to be the eye-witnesses of the occurrence and on the direction of Ex-officio Justice of Peace, alleged eye-witnesses got recorded their statements under S.161, Cr.P.C. with different versions---Said eye-witnesses had not supported the contents of FIR rather the complainant, who in the initial part of her statement, had stated that five unknown accused persons had sprinkled acid upon both the deceased and stating the detail of the occurrence, she had nominated the present accused and co-accused with the joint role---Mother of the deceased girls had alleged that her husband in connivance with the accused persons managed to lodge the FIR in order to save his close relatives, thus private complaint was filed---Ocular account was furnished by the complainant of the private complaint, son and brother of the complainant---Complainant had deposed that accused persons, who were having acid in the bottles and in their view, accused sprinkled acid on the eyes and other parts of body of her daughter, whereas co-accused persons sprinkled acid on her grand-daughter---Complainant raised hue and cry and tried to apprehend the accused persons whereupon accused threw acid upon the complainant and she fell injured, however some drops had injured the accused also---Co-accused persons sprinkled acid upon the son of complainant but he luckily saved but his quilt was burnt---Motive behind the occurrence was that daughter of the complainant had contracted love marriage with one "W", whereas accused had a bad-eye upon the deceased and he wanted to marry her for running brothel---Admittedly, the present private complaint had been filed on 23.1.2012 after more than five months of the occurrence having consumed sufficient time for consultation, deliberation and fabrication and despite having such long period, she had no specific stance---Complainant had claimed that during the occurrence she had also received injuries but her medico legal examination was conducted on 12.9.2011 after more than 40-days of the occurrence showing a simple acid burn injury on her back, establishing her presence at the venue of occurrence at the relevant time at odd hours of the night, which otherwise had not been denied by the defense---Question remained as to the identification of the actual culprits---Occurrence had taken place at 1.00 a.m. and the complainant had mentioned no source of light in her examination-in-chief before the Trial Court---Witness had deposed in his cross-examination that the occurrence was visible due to the light of the nearby filling station but the said tube light had admittedly not been taken into possession by the Investigating Officer at the time of his first visit of the place of occurrence on the same night---Employee of the filling station being independent and natural witness and one of the persons, who shifted the injured girls to the hospital, his evidence was withheld by the complainant---Said witness was summoned and examined by the Trial Court where he had deposed that he reached at the place of occurrence on hearing hue and cry---Said witness inquired about the matter from complainant of FIR, who replied that somebody had sprinkled acid on his daughters and requested him to inform the police and he called the police from his mobile phone---Statement of said witness though recorded by the Investigating Officer at belated stage in support of the complainant of FIR yet it clearly negated the version being claimed by the present complainant---Investigating Officer had recorded the statement of injured daughter of the complainant under S.161, Cr.P.C. on the same day, wherein she had fully supported the version as claimed by the complainant of the private complaint---Judicial Magistrate had recorded the statement of said injured under S. 164 Cr.P.C. at hospital wherein she had supported the stance taken by her father in the FIR---Circumstances established that the prosecution had badly failed to prove the charge of homicidal death of the deceased ladies against the accused persons through any piece of evidence---Appeal was allowed and accused persons were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court. (b) Criminal Procedure Code (V of 1898)--- ----S. 161---Delay in recording the statement of witness---Effect---Delay of even one or two days in recording the statements of eye-witness had been found fatal for the prosecution and not worth reliance. Muhammad Asif v. The State 2017 SCMR 486 rel. (c) Administration of justice--- ----Every case was to be decided on the basis of totality of impressions gathered from the facts and circumstances of a particular case. Nadeem Ramzan v. The State 2018 SCMR 149 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302, 324, 201, 109 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of the offence, abetment, common intention, act of terrorism---Appreciation of evidence---Motive not proved---Effect---Record showed that the complainant had put different motives for the occurrence---Complainant had jumped from one motive to another at different forums as she herself was not certain as to what was the actual reason behind the murders in issue---Even otherwise, the complainant had not led any oral or documentary evidence in order to prove any one of the alleged motives---Actual cause of the murders in issue remained shrouded in mystery. (e) Criminal trial--- ----Post-mortem examination---Object---Purpose of post-mortem examination was always to ascertain the number, nature and locale of injuries, kind of weapon used, cause of death, duration between injuries and death as well as death and autopsy but it alone did not raise finger towards any specific culprit. (f) Criminal trial--- ----Benefit of doubt---Principle---Single doubt was sufficient to tilt the scale of justice in favour of accused and accused was entitled to the benefit of doubt as a matter of right and not as a grace. Muhammad Akram v. The State 2009 SCMR 230 rel. Rana Muhammad Nadeem Kanju and Abdul Khaliq Dogar for Appellants. Syed Nadeem Haider Rizvi, Deputy District Public Prosecutor for the State. Complainant in person. Date of hearing: 31st May, 2018. JUDGMENT ASJAD JAVAID GHURAL, J.---Through this common judgment, we propose to decide the instant Criminal Appeal No. 190 of 2014-ATA filed by appellants Zafar and Zahoor Ahmad and a connected Criminal Appeal No. 191 of 2014-ATA filed by appellant Ijaz, both under Section 25 of the Anti-Terrorism Act, 1997 whereby they have challenged the vires of judgment dated 17.04.2014 passed by the learned Judge, Anti-Terrorism Court-I, Multan in private complaint titled 'Mst. Kaniz Mai v. Zafar and 7 others' in respect of offences Sections 302, 324, 201, 109 and 34, P.P.C. and Section 7 of The Anti-Terrorism Act, 1997, Police Station Saddar Kehror Pakka District Lodhran arising out of case FIR No.382 dated 02.08.2011, in respect of offences under Sections 324 and 34, P.P.C. and Section 7 of the Anti-Terrorism Act, 1997 registered at the instance of one of the co-accused namely Muhammad Yar. The appellants were convicted and sentenced as under:- Appellant Zafar, Under Section 302(b), P.P.C. Imprisonment for life for committing Qatl-i-Amd of deceased Mst. Yasmin Bibi. Appellants Zahoor and Ijaz, Under Section 302(b), P.P.C. Imprisonment for life each for Qatl-i-Amd of deceased Mst. Sanobar. Appellants Zafar, Zahoor and ljaz Under Section 302(b), P.P.C. read with Section 34, P.P.C. Imprisonment for life each for sharing common intention of death of Mst. Yasmin Bibi and Mst. Sanobar. Under Section 7 the Anti-Terrorism Act, 1997 Imprisonment for life each and to pay the fine of Rs.100,000/- by each and in default thereof, to further undergo simple imprisonment for one year. All the three appellants were directed to pay the compensation of Rs.200,000/- each to the legal heirs of the deceased and in case of non-payment of compensation, to further undergo simple imprisonment for six months. All the aforesaid sentences were directed to run concurrently. The benefit of Section 382-B, Cr.P.C. was extended to the appellants. 2. Complainant Mst. Kaniz Mai filed a Petition for Special Leave to Appeal No. 51 of 2014 against the acquittal of respondents Nos.2 to 6, which shall also be decided through this common judgment. 3. The prosecution story unfolded in the private complaint (Ex.PA) filed by Mst. Kaneez Mai (PW-1) is that in the intervening night of 01/02.08.2011 at 1:00 a.m. she along with her son Zubair, daughter Mst. Yasmin and grand daughter Mst. Sanobar were sleeping in the courtyard of her house. Her husband Muhammad Yar and another son Yasin were not present in the house. She woke up on hearing some noise and saw Zafar, Zahoor and Ijaz (appellants), who were having acid in the bottles. In their view, Zafar sprinkled acid on the eyes and other parts of body of her sleeping daughter Mst. Yasmin whereas Zahoor and Ijaz sprinkled acid on her grand-daughter Mst. Sanobar. The complainant raised hue and cry and tried to apprehend the accused persons whereupon Zafar threw acid upon the complainant and she also fell injured, however some drops had injured accused Zafar himself. Zahoor and ljaz sprinkled acid upon Zubair, a son of the complainant but he luckily saved. The complainant raised hue and cry and poured water upon both the injured girls. In the meanwhile, her brother Muhammad Arif and one Qasim attracted there. The complainant informed the police and got recorded her statement. The complainant and both the aforesaid injured girls were shifted to hospital with the help of the lady constable. The investigating officer recorded the statement of Mst. Yasmin in the hospital. Mst. Yasmin succumbed to injuries on 29.08.2011 whereas injured Sanobar had passed away on 07.09.2011. It was alleged in the private complaint that the complainant's husband, in connivance with the accused persons, managed to lodge the FIR in order to save his close relatives. Thereafter, the complainant had come to know that her version had not been recorded correctly by the investigating officer whereas her husband had mentioned the name of an innocent person namely Wazir as an accused. Motive behind the occurrence was that Mst. Yasmin was earlier married with one Farooq, thereafter she contracted love-marriage with one Wazir, accused Zafar had a bad-eye upon Yasmin he wanted to marry her for running brothel. Earlier Zafar had taken Mst. Yasmin at the Daira of one Allah Dditta Daha in order to murder her but she luckily escaped. The accused persons had nourished grudge of her marriage with Wazir and they used to exert pressure to get divorce from her husband. Accused Muhammad Yar (since acquitted), in connivance with her close relatives, had got recorded the statement of Mst. Yasmin under Section 164, Cr.P.C. who had in fact received injuries while sleeping and did not see the occurrence. It was further alleged that on 03.08.2011, the accused persons had individually made extra judicial confession before her sister Pathani Mai and brother Muhammad Arif and sought pardon. 4. Muhammad Khaliq, Inspector (CW-10) reached at the place of occurrence on 02.08.2011, prepared injury statements of Mst. Yasmin (Ex.PE) and Mst. Sanobar (Ex.PG) and sent them to the hospital. He recorded the statement of Muhammad Yar (complainant of FIR) for the registration of the FIR. He inspected the place of occurrence, prepared rough site plan (Ex.CW-10/A), took into possession cot (P-5) of Mst. Sanobar, a dupatta, Khais, pillow, Shalwar, (P-6 to P-9) with burnt marks of acid of Mst. Sanobar, Dupatta, Khais, Gindi and cot (P-10 to P-13) with burnt marks of acid and stained with earth and took the same into possession vide recovery memo (Ex.CW-10/B). He recorded the statements of witnesses under Section 161, Cr.P.C. at the spot. He recorded the statement of injured Mst. Yasmin at the hospital on the same day after getting permission from the doctor. He conducted raids to arrest accused Wazir, Kabir and Zulfiqar, nominated by the complainant and also accused Zafar, Zahoor, Ijaz, Mst. Pathani Mai and Mst. Hamshir Mai, nominated by the injured in her statement recorded under Section 161 Cr.P.C. He arrested Wazir Ali, an accused of the FIR on 15.08.2011. Thereafter, he accompanied the learned Area Magistrate, who recorded the statement of Mst. Yasmin under Section 164, Cr.P.C. on 17.08.2011. During investigation, Wazir Ali led to the recovery of a motorbike (P-14). On 29.08.2011 he was informed by the complainant of the FIR that Mst. Yasmin had succumbed to the injuries, he prepared her injury statement (Ex.PJ), inquest report (Ex.PK) and escorted her dead body to the mortuary. On 07.09.2011, Mst. Sanobar died due to acid burn injuries, he prepared her injury statement (Ex.PM) and inquest report (Ex.PN) and escorted her dead body to the mortuary. On 8.9.2011 he got prepared incomplete report under Section 173, Cr.P.C. On 10.9.2011, the present complainant along with her brother appeared before him, claimed themselves to be the eye-witnesses of the occurrence, he prepared injury statement (Ex.PQ) of the complainant and got her medically examined. He again submitted incomplete report under Section 173 Cr.P.C. on 20.09.2011. On 24.10.2011 he recorded the statements of Muhammad Tayyab, Qari Muhammad Iqbal and Riaz Ahmad under Section 161, Cr.P.C. On 11.11.2011 the JIT arrested Muhammad Yar (complainant of FIR). During investigation, Muhammad Yar was found connected with this occurrence. He arrested accused Ahmad Yar on 12.12.2011. He arranged confrontation meeting of the complainant with the accused party Muhammad Ijaz Mst. Hamshir Mai and Mst. Pathani Mai. He obtained proclamation under Section 87, Cr.P.C. of accused Zafar, Zahoor and Manzoor. He arrested Mst. Pathani Mai on 06.01.2012 whereas the pre-arrest bail of Ejaz-ur-Rehman and Mst. Hamshir Mai was confirmed. He artested Zafar on 11.04.2012, who was sent to the judicial lockup by the court. On 03.05.2012 he got prepared challan against Manzoor Ahmad and Zahoor Ahmad accused. 5. Dr. Aneela Ali (PW-4) had conducted medical examination of injured Mst. Yasmin on 02.08.2011 and observed the following injuries:-- No.1 There was superficial burn marks on both eyes. There was complaint of burning of vision on both eyes. Expert opinion from Bahawalpur. No.2 There was superficial burn marks on whole of face and neck. No.3 There was superficial burn marks on thorax. No.4 There was superficial burn marks on abdomen. No.5 There was superficial burn marks on right and left arm and on right and left legs. No.6 Superficial burn marks were also present on medial aspect of left elbow joint to left wrist. No.7 Superficial burn marks on right elbow and right wrist and dorsal aspect of right hand. Mst. Yasmin expired on 29.08.2011, the said medical expert conducted autopsy on her dead body and observed the aforesaid injuries. It was opined that almost 65% of body surface area was burnt and due to hypovolemic shock and wounds sepsis death was occurred in ordinary course of nature. The duration between injuries and death 27-days and between death and post mortem examination almost 3-1/2 hours. She had conducted medico legal examination of injured Mst. Sanobar on 02.08.2011 and observed the following injuries:- No.1 There were deep burn marks on both eyes. Expert opinion from B.V.H. No.2 There was deep burn marks on whole of face. No.3 Deep burn marks on neck. No.4 Anteriorly and posteriorly, there were deep burn marks on thorax. No.5 There were deep burn marks on upper half of both arms. No.6 There were deep burn marks on sides of abdomen. No.7 There were deep burn marks on left thigh and left leg. Mst. Sanobar expired on 07.09.2011, the said medical expert conducted autopsy on her dead body on the same day and observed the aforesaid injuries. It was opined that almost 40% to 45% of body surface area was burnt and due to hypovolemic shock and wounds sepsis death was occurred in ordinary course of nature. The duration between injuries and death one month and five days and between death and post mortem examination almost 6-1/2 hours. She had conducted medico legal examination of injured/complainant (present) on 12.09.2011 with the history of acid burns on 02.08.2011 at 1:00 a.m. and observed a superficial burn mark above buttock and lower part of her back, which was declared as 'Jurh Ghair Jaifah Dania'. The duration of injury was almost one month and 10-days. 6. At the commencement of trial, the prosecution had produced 08-witnesses whereas 14-witnesses had been examined as Court Witnesses. Learned Law Officer had tendered reports of Chemical Examiner (Ex.PT, Ex.PU, Ex.PV and Ex.PW). The appellants and their co-accused, in their statements recorded under Section 342 Cr.P.C., had denied and controverted all the allegations of fact levelled against them, they did not opt to make statements under Section 340(2), Cr.P.C., however co-accused Muhammad Yar had produced documents Ex.DK to Ex.DT in their defence. 7. Learned trial Court, upon conclusion of the trial, had acquitted Muhammad Yar, Ahmad Yar, Manzoor Ahmad, Mst. Hamshir Mai and Mst. Pathani Mai whereas convicted and sentenced the appellants supra. Hence, this criminal appeal. 8. Learned counsel for the appellants has contended that the appellants are quite innocent having nothing to do with the murders in issue and they being close relatives of the complainant's husband namely Ahmad Yar (complainant of the FIR) had been falsely implicated in this case; that initially the case was registered against one Wazir and two unknown accused persons but due to the intended dishonest investigation by the investigating officer, the complainant of the FIR (Muhammad Yar) had filed a private complaint against the innocent persons, who after facing full-dressed trial, had been acquitted in the said private complaint case by the learned trial court; that the present complainant had made her statement under Section 161, Cr.P.C. with the delay of more than 2-1/2 months of the occurrence wherein it was alleged that some unknown accused persons while trespassing into her house, had committed the murder of both the deceased girls by sprinkling acid; that the complainant had earlier filed a petition under Section 22-A, Cr.P.C. before the learned Ex-officio Justice of Peace seeking direction for recording her statement against her husband and others (Ex.DB) wherein the set of accused persons and the version were different to that as mentioned in this private complaint; that the version of the complainant is contradicting the first version mentioned in the FIR, registered at the instance of her husband namely Muhammad Yar; that the story narrated by the complainant in the private complaint filed after about 5-1/2 months of the occurrence was an afterthought and has no sanctity wherein she had concealed some real facts to that of her husband's version for the reasons best known to her; that in her statement recorded under Section 164, Cr.P.C., injured Mst. Yasmin had supported the version recorded in the FIR by her father; that there was no occasion for the appellants to murder the deceased girls by sprinkling acid; that the entire prosecution story is based on the presumptions and is highly doubtful. Finally, the prayer for acquittal of the appellants has been made. 9. On the other hand learned counsel for the complainant has sent a written request for adjournment. The same was the position on the last many dates of hearing when the case was adjourned as a last opportunity with the clear direction that no further adjournment shall be granted in future but today again a written request for adjournment has been sent, which shows his least interest to prosecute the matter. It is an old matter, learned Law Officer states that he is well-prepared and, thus, the written request for adjournment sought for by learned counsel for the complainant is turned-down. 10. Learned Deputy Prosecutor General appearing for the State, in the presence of the complainant, has contended that the complainant being wife of Muhammad Yar (complainant of FIR) remained under the impression that her statement had been recorded in verbatim and after getting information that her statement had not been recorded correctly by the local police, she obtained direction from the court of learned Ex-officio Justice of Peace and got recorded her statement under Section 161, Cr.P.C.; that the complainant, being an injured witness and inmate of the house, is not expected to deviate from the true facts for the murder of her real daughter and grand-daughter: that Mst. Yasmin in her statement recorded under Section 161, Cr.P.C. recorded on the same day, had fully supported the version of the complainant; that there was no occasion for the complainant to implicate her close relatives including her husband for the murder of his own daughter and grand-daughter; that the story narrated by the complainant's husband in the FIR had already been disbelieved by the learned trial court and the accused persons mentioned therein had been acquitted of the charge vide even dated separate judgment; that both the deceased girls had been murdered in a brutal, shocking, callous and barbaric manner, which created panic and insecurity in the society; that the appellants do not deserve any leniency rather they are required to be sentenced to the capital sentence; that the acquitted co-accused had actively participated in the occurrence and they are also required to be punished for their barbaric act. Finally, prayer has been made for dismissal of both the appeals against conviction of the appellants and also acceptance of her petition for special leave to appeal against the acquittal of respondents Nos.2 to 6. 11. We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State and have perused the record with their able assistance. 12. This unfortunate incident had taken place in the intervening night of 11/2.08.2011 at about 1:00 a.m., which was reported to the police by one Muhammad Yar (since acquitted) on the same night, his narration was recorded at 2:00 a.m. and the case was registered at 2:10 a.m. nominating one Wazir Ali along with two unknown accused persons. During investigation, the complainant of the instant private complaint along with Muhammad Arif and Muhammad Qasim had intruded themselves to be the eye-witnesses of the occurrence and on the direction of learned Ex-officio Justice of Peace, they got recorded their statements under Section 161, Cr.P.C. on 23.10.2011 with different versions wherein they had not supported the contents of the FIR rather the complainant, who in the initial part of her statement, had stated that five unknown accused persons had sprinkled acid upon both the deceased girls and while further stating the detail of the occurrence, she had nominated the appellants and their co-accused with the joint role. The statement of the complainant (Ex.DA) gives an impression that she had two versions in her one statement with the specification of roles of the accused persons but different in mode and manner of the occurrence, which creates doubt with regard to the veracity of her statement. The overall view, which infers from the facts and circumstances of the case, is that the sanctity shall remain attached with the version recorded in the promptly lodged FIR instead of the private complaint, which was filed after 5-1/2 months whereas the delay of even one or two days in recording the statement of an eye-witness has been found fatal for the prosecution and not worth reliance by the august Supreme Court of Pakistan in case titled "Muhammad Asif v. The State" (2017 SCMR 486) as…

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