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Petitioner: The State, Muhammad Imran alias Aamir VS Respondent: Muhammad Imran alias JUDGMENT
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title:The State, Muhammad Imran alias Aamir vs Muhammad Imran alias
JUDGMENT
Reported As: 2023 LHC 1815 Result: Murder Reference answered in Negative Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J.- Muhammad Imran alias Aamir son of Hazoor Bakhsh (convict) was tried by the learned Additional Sessions Judge, Bahawalpur in case F.I.R. No. 493 of 2020 dated 25.11.2020 registered at Police Station Uch Sharif, District Bahawalpur in respect of offences under sections 302,364 and 34 P.P.C. for committing the Qatl-i-Amd of Saima Bibi daughter of Muhammad Shafi (deceased). The learned trial court vide judgment dated 30.06.2022 convicted Muhammad Imran alias Aamir son of Hazoor Bakhsh (convict) and sentenced him as infra: Muhammad Imran alias Aamir son of Hazoor Bakhsh :- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. 2. Feeling aggrieved, Muhammad Imran alias Aamir son of Hazoor Bakhsh (convict) lodged the Criminal appeal No.462 of 2022, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.17 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Imran alias Aamir son of Hazoor Bakhsh. We intend to dispose of the Criminal appeal No.462 of 2022 and the Murder Reference No.17 of 2022 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as stated by Sakina Bibi (PW-1), the complainant of the case, are as under:-
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"States that I am resident of Mouza Trend Busharat Uch Sharife. Previously, I contracted marriage with Muhammad Shafi s/o Khuda Bukhsh. Out of this wedlock, Saima Bibi was born. Muhammad Shafi had died. After the death of Muhammad Shafi, I contracted second marriage with Allah Ditta s/o Yar Muhammad caste Jam r/o Mouza Trend Busharat, Uch Sharif. I performed the marriage of my daughter namely Saima Bibi aged about 24/25 years with Imran alias Aamir s/o Hazoor Bukhsh caste Mochi r/o Basti Bhanda Mouza Sheni Miani Tehsil Jalalpur Peer Wala 09 years prior to this occurrence. Out of that wedlock, one daughter and one son namely Muhammad Adil were born. Daughter had died and son namely Muhammad Adil is alive. Four months prior to this occurrence, one Muhammad Fiyyaz abducted my daughter Mst. Saima Bibi with the intention to commit zina with her. My daughter Saima Bibi ran away from the clutches of one Muhammad Fiyyaz after one month of her abduction. Saima Bibi got registered the criminal case against one Muhammad Fiyyaz in police station Dhor Kot. From the day of her return from the clutches of one Muhammad Fiyyaz, my son in law namely Muhammad Imran alias Aamir started teasing my daughter due to her abduction. Accused Imran alias Aamir misbehaved her that she went to Fiyyaz Ahmad with her consent due to illicit relations. I changed the residence of my daughter in the area of Trend Busharat due to fear of murder of my daughter from hands of her husband. On 24.11.2020 at about 07:00 a.m. (morning) Muhammad Imran alias Aamir alongwith one unknown accused person came to my house on motorcycle and sought permission in presence of P.W.s namely Ghulam Sarwar and Muhammad Riaz that she send her daughter with Imran alias Aamir for pervi of case and hear of darbar Syed Jaini Ud Din. 1 forbidden my daughter to go with him but Imran alias Aamir sworn on oath that he shall return her daughter at my house Trend Bushrat at evening time safely. On the same day, at Maghrib vela, my son in law returned alone in my house in worried condition and told me that her daughter became missing from Darbar Syed Jalal Ud Din and I did not commit anything with her daughter. I searched my daughter with the help of witnesses but she was not found anywhere. I strongly suspected that Imran alias Aamir (present in the court) abducted my daughter with intention to murder her. 1 got drafted application/complaint Exh. P.A. on the next day which bears my thumb impression Exh.PA/1 as token of its correctness to police for registration of F.I.R. After registration of F.I.R., police came at my house Trend Busharat/place of occurrence and inspected the place of occurrence Police called me telephonically at 11:00 p.m. that they arrested the accused Imran alias Aamir (present in the court). I alongwith P.W.S. reached at P.S. Uch Sharife where accused Imran alias Aamir (present in the court) disclosed in our presence that he committed the murder of my daughter Saima Bibi in the crop of sugarcane of Sami Sain Gilani . He took us and police party to the crop of sugarcane where dead body of my daughter was lying there. Her neck was cut off, a knife, motorcycle and two face masks were also lying there. Total eight numbers of articles were lying there. Thereafter, police sent the dead body of deceased to R.H.C. Uch Sharife. After post mortem examination, dead body of my daughter was handed over to me through receipt Exh. P.B. which bears my thumb impressions. The murder of my daughter was committed by Imran alias Aamir accused (present in the court)." 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 Imran alias Aamir son of Hazoor Bakhsh was sent to face trial. The learned trial court framed the charge against the accused on 22.03.2021, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got recorded statements of eleven witnesses. Sakina Bibi (PW-1), the complainant of the case, gave the same evidence as has been reproduced in Paragraph 3 of the judgment. Muhammad Riaz (PW-2) also gave the same evidence as that of Sakina Bibi (PW-1). Shaista Iqbal 2426/L.C. (PW-3) stated that on 25.11.2020, she escorted the dead body of the deceased to the hospital and on 26.11.2020 received the last worn clothes of the
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deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Mudassir Irshad, Incharge Crime Scene Unit, (PW-4) stated that on 25.11.2020, he went to the place where the dead body of the deceased had been discovered and collected relevant evidence which he handed over to Ali Sagheer 545/C (PW-5) and Muhammad Azam in the presence of Investigating Officer of the case. Zahoor Ahmad 1193/MHC (PW-6) stated that on 25.11.2020, the Investigating Officer of the case handed over to him eight sealed parcels and one sealed parcel said to contain blood stained earth , shoes and a motorcycle and on 26.11.2020, the Investigating Officer of the case handed over to him the last worn clothes of the deceased and on 02.12.2020, he handed over the sealed parcels and the envelopes to Mansoor ul Hassan, SI (PW-10) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Khawaja Kharat Hussain Siddiqui, Patwari (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PM). Abdul Razzaq, SI (PW-11) investigated the case on 13.01.2022 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court.Mansoor Ul Hassan, SI (PW-10) stated that on 25.11.2020 he recorded the formal F.I.R (Exh.PA/2) and also investigated the case from 25.11.2020 till 10.12.2020, arrested the appellant on 25.11.2020 and narrated the facts of investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr.Qurat-ul-Ain (PW-7) examined, who on 26.11.2020 was posted as Woman Medical Officer at the R.H.C., Uch Sharif and on the same day conducted the postmortem examination of the dead body of Saima Bibi daughter of Muhammad Shafi (deceased). Dr.Qurat- ul-Ain (PW-7), on examining the dead body of Saima Bibi daughter of Muhammad Shafi (deceased), observed as under:- "EXAMIANTION (sic) OF NECK (Injury No. 1) I examined neck thoroughly under good light, an incised wound on front of neck, measuring 19 x 7 cm. All neck muscles and main blood vessels cut. Vertebras visible. Thyroid and parathyroid glands cut DESCRIPTION OF INJURY (INCLUDING FINDING AND DISECTION) (Injury No.2) An abrasion on left knee measuring 3 x 1 cm, skin deep. Injury No.3 A rough abrasion on right side of nose, measuring 3 x 3 cm, skin deep. Injury No.4 (1) A wound on right eye brow, measuring 5 x 1.2 cm, skin deep, eye brow hairs alongwith skin were shaved. (ii) A wound on left eye brow, measuring 6 x 2 cm, skin deep, eye brow hairs alongwith skin were shaved. Injury No.5 A wound on right side of forehead measuring 2 x 1 cm, skin deep, above medial end of right eye brow at distance of 2 cm. VI-REMARKS BY MEDICAL OFFICER. After complete external and internal post mortem examination of body, I have collected the already mention samples and sent to histopathalogist and chemical examiner, (PFSA Lahore). Final opinion about cause of death will be given after receiving reports from concerned corners (PFSA Lahore). Probable time that elapsed (a) between injury and death. Within minutes. (b) Between death and post mortem. Within 24 Hours. FINAL OPINION.
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Keeping in view the complete autopsy findings and reports of toxicology and histopathalogical analysis by PFSA Lahore, I am of opinion that injury No.1 is sufficient to cause death of normal healthy person. I issued computerized post mortem report containing my final opinion Exh. P.L. to police." The prosecution also got Dr. Khurram Mahmood (Radiologist) (PW-8) examined who stated that on 28.01.2021, he received skiagrams (P-12/1-2) related to the dead body of the deceased and gave his opinion (Exh.PM) that the deceased had not suffered a fracture of any bone. 7. On 31.03.2022, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Ghulam Sarwar, Muhammad Javed 678/C and Muhammad Azam 1731/C as being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh. P.O.). 8. After the closure of prosecution evidence, the learned trial court examined appellant namely Muhammad Imran alias Aamir son of Hazoor Bakhsh under section 342 Cr.P.C. and in answer to question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. He further stated that he had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant, namely Muhammad Imran alias Aamir son of Hazoor Bakhsh opted not to get himself examined under section 340(2) Cr.P.C did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Bahawalpur, 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. The learned counsel for the appellant submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt. 11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased was murdered by the appellant who had been last seen taking away the deceased. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the recoveries from the appellant also corroborated the statements of the other witnesses. The learned Deputy Prosecutor General and 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, The learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of 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 assistance carefully perused the record and evidence recorded during the trial. 13. After consideration of the contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent to mention here that in the instant matter, ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence, the rules especially applicable to such evidence
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must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1938) 2 Lewin 227) where he said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." Sir Alfred Wills, in his book "An Essay on the Principles of Circumstantial Evidence" (pages 173 to 190 of the Fifth American, from the Fourth London Edition published in 1872), lays down the following rules specially to be observed in the case of circumstantial evidence: "RULE 1. The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum. RULE 2. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability RULE 3. In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits RULE 4.- In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. RULE 5. If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted." The august Supreme Court of Pakistan in its binding judgment titled "Naveed Asghar and two others Vs. The State" (PLD 2021 Supreme Court 600) has enunciated the following principle of law for the appreciation of circumstantial evidence: "Approach to determine sufficiency of circumstantial evidence 14. The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion; however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course." Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however, grave it may be, can never be treated as a substitute for proof. From the evidence of the prosecution available on
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record, it is clear that the case of the prosecution hinges upon the evidence of the recovery of the dead body of the deceased on the pointing of the appellant, the deceased being last seen alive in the company of the appellant, the recoveries of articles from the place of the recovery of the dead body and the report of Punjab Forensic Science Agency, Lahore (Exh. P.O.) regarding the D.N.A. analysis of the items submitted to the same and the recovery of the motorcycle (P-10) and the knife (P 6). 14. Firstly, we shall deliberate upon the evidence of the prosecution that the dead body of the deceased was recovered at the pointing of the appellant. The learned Deputy Prosecutor General and the learned counsel for the complainant have vehemently argued that as the appellant, after his arrest, pointed out the place from where the dead body was recovered, hence, there was sufficient evidence to prove that it was indeed the appellant who had killed the deceased. We have scrutinized the prosecution evidence and have noted that every prosecution witness who was examined with regard to the recovery of the dead body of the deceased had a different version to narrate of the said recovery. According to the prosecution witness namely Sakina Bibi (PW-1) , the complainant of the case, it was on 25.11.2020 at about 11.00 p.m that she received a call from the Police Station telling her that the appellant had been arrested and after getting the said information she along with other witnesses went to the Police Station where the appellant was present in police custody and in the presence of the witnesses disclosed that he could lead to the place where the dead body of the deceased was present and subsequent to this statement, the appellant got recovered the dead body of the deceased from the land belonging to one Sami Gillani. The relevant portion of the statement of the prosecution witness namely Sakina Bibi (PW-1) reads as under:- "I got drafted application/complaint Exh. P.A. on the next day which bears my thumb impression Exh.PA/1 as token of its correctness to police for registration of F.I.R. After registration of F.I.R., police came at my house Trend Busharat/place of occurrence and inspected the place of occurrence. Police called me telephonically at 11:00 p.m. that they arrested the accused Imran alias Aamir (present in the court). I alongwith P.W.S. reached at P.S. Uch Sharife where accused Imran alias Aamir (present in the court) disclosed in our presence that he committed the murder of my daughter Saima Bibi in the crop of sugarcane of Sami Sain Gilani. He took us and police party to the crop of sugarcane where dead body of my daughter was lying there. Her neck was cut off, a knife, motorcycle and two face masks were also lying there" (emphasis supplied). Contrary to the above mentioned statement of the prosecution witness namely Sakina Bibi (PW-1) it was on 25.11.2020 at about 11.00 p.m that she received a call from the Police Station telling her that the appellant had been arrested and after getting the said information she along with other witnesses went to the Police Station where the appellant was present in police custody and in the presence of the witnesses disclosed that he could lead to the place where the dead body of the deceased was present and subsequent to this statement, the appellant got recovered the dead body of the deceased from the land belonging to one Sami Gillani, the other prosecution witness namely Muhammad Riaz (PW-2) did not state that it was on 25.11.2020 that they proceeded to the Police Station , rather got recorded his statement that on 24.11.2020, the appellant had taken away the deceased at about 07.00 a.m, returned to the house of Sakina Bibi (PW-1) without the deceased at Maghrib Waila on 24.11.2020 and thereafter at 11.15 p.m. the police called the witnesses to the Police Station where the appellant was present in police custody and in the presence of the witnesses disclosed that he could lead to the place where the dead body of the deceased was present and subsequent to this statement, the appellant got recovered the dead body of the deceased. It would be advantageous to reproduce the relevant portion of the examination in-chief as recorded by the learned trial court of the prosecution witness namely Muhammad Riaz (PW-2). It was got recorded by Muhammad Riaz (PW-2) as under:-
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"On 24.11.2020, at about 07:00 a.m. (morning) I alongwith Ghulam Sarwar were sitting in the house of Sakina Bibi. In the meanwhile, Imran alias Amir alongwith one unknown accused came there on motorcycle and sought permission from Sakina Bibi to send her daughter with Imran alias Aamir for pervi of case (registered at P.S. Dhor Kot against Fiyyaz Jarah etc) and hazri of darbar Syed Jalal Ud Din. Sakina Bibi forbidden her daughter to go with him. But Imran alias Aamir sworn on oath that he shall return her daughter at her house Trend Bushrat at evening time safely. On the same day, at Maghrib vela, I alongwith Ghulam Sarwar were present in the house of Sakina Bibi where Imran alias Aamir son in law of Sakina Bibi returned alone in her house in worried condition and told us that Saima Bibi became missing from Darbar Syed Jalal Ud Din and I did not commit anything with her. Thereafter, we apprehended the accused Imran alias Aamir and started searching. During search, Imran alias Aamir ran away, thereafter, Sakina Bibi submitted an application against Imran Aamir for the registration of F.I.R. After registration of F.I.R., police came at the house of Sakina Bibi and inspected the place of occurrence. At about 11/11:15 p.m. police called us at police station where Imran alias Aamir was in police custody, and he disclosed in our presence that he committed murder of Saima Bibi and is ready to get recover the dead body of Saima Bibi (deceased). I alongwith Sarwar, Sakina Bibi complainant and police Uch Sharife and Bahawalpur reached at crop of sugarcane, Imran alias Aamir pointed out the dead body of Saima bibi and we identified the dead body of Saima Bibi in the light of torch," The relevant portion of the examination in-chief as recorded by the learned trial court of the prosecution witness namely Muhammad Riaz (PW-2) reproduced above, also reflects that Muhammad Riaz (PW-2) never stated that it was on the next day that Sakina Bibi (PW-1) had submitted the application (Exh. P.A.) for the registration of the F.I.R rather stated that when the appellant succeeded to flee away during the search, Sakina Bibi (PW-1) submitted the application for the registration of the F.I.R.. Despite our repeated queries, both the learned Deputy Prosecutor General and the learned counsel for the complainant are unable to refer to any part of the statement of the prosecution witness namely Muhammad Riaz (PW-2) wherein it had been stated that the dead body had been recovered on 25.11.2020 and not on 24.11.2020. In this manner, a fatal flaw has crept up in the statements of the prosecution witnesses namely Sakina Bibi (PW-1) and Muhammad Riaz (PW-2). 15. The scrutiny of the prosecution evidence also reveals that hugely contradictory statements were made by the prosecution witnesses regarding the time when the dead body was recovered. According to the prosecution…
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