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Petitioner: MUHAMMAD ANWAR VS Respondent: StateHonorable Justice Tariq Saleem SheikhPrince Rehan Iftikhar Sheikh
2019 P Cr. L J Note 80 [Lahore (Multan Bench)] Before Tariq Saleem Sheikh, J MUHAMMAD ANWAR---Appellant Versus The STATE---Respondent Criminal Appeal No. 13 of 2009, heard on 20th November, 2018.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence--- Benefit of doubt---Circumstantial evidence---Prosecution case was that accused and one of the deceased ladies were members of an organized group which was engaged in human trafficking---Other lady being wife of accused had learnt about the activities and went to her brother---Accused followed her on the pretext of reconciliation and after giving false explanations to his in-laws brought her back and killed the two ladies---Admittedly, it was un-witnessed occurrence---Record showed that on 12.11.2004 dead bodies of two unknown women in a drain were discovered by the witness---Said witness raised alarm which attracted witness and other villagers to the spot---Announcement was made from the mosque in their village and the surrounding areas to call people for their identification but nobody could identify them---Later on, the dead bodies were buried after completing the legal requirements---On 10.1.2005, eight persons appeared before the Investigating Officer and from the photographs that he had retained, identified the dead bodies of deceased women---On the same day, a witness joined the investigation and got his statement recorded in which he nominated accused-appellant and six others for the murders---Record transpired that the prosecution neither produced the photographer nor got exhibited the said photographs in evidence---Witnesses, who identified the dead bodies in the police station did not state in their deposition that they had identified the deceased women---Prosecution, in circumstances, had failed to conclusively establish their identity and prove its case through circumstantial evidence---Appeal was allowed and accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Effect---Motive behind the occurrence as stated by witnesses was that the accused and one of the deceased were members of an organised group which was engaged in human trafficking---Other deceased being wife of accused had learnt about the activities and went to her brother---Accused followed her on the pretext of reconciliation and after giving false explanations to his in-laws brought her back and killed the two ladies---Record showed that witnesses of motive did not have any personal knowledge that the accused was involved in illicit human trade---Testimony of said witnesses was essentially based on the statement of deceased lady which was not supported by any direct or indirect evidence---Police, during the course of investigation, did not make any effort to verify the fact---Motive had not been proved, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Last seen evidence---Accused was charged for committing murder of two ladies---Last seen evidence was furnished by a witness, who deposed that he had seen the accused and one of the deceased lady in a van at diesel sale point one day prior to the day of announcement from the mosque that two women were found murdered near the drain close to the village---Testimony of said witness smacked of concoction and was liable to be rejected for more than one reasons, firstly, the witness had not mentioned the precise date and time when he came across the accused; secondly, said witness was a chance witness and had failed to explain his presence at the diesel sale point at the relevant time and thirdly, the accused was previously not known to the said witness, who identified him about 3-4 months after his first sight---Circumstances suggested that it was improbable, if not impossible to recognise a previously unknown person after such a long time when one had only his fleeting glimpse---Said witness did not join the investigation and during cross-examination contradicted himself in material particulars---Last seen evidence, in circumstances, had no significance---Record showed that the Trial Court had acquitted co-accused on the same evidence by extending benefit of doubt---Prosecution had not filed any appeal against the said acquittal---Since the case of present accused was not distinguishable from him, his conviction was also liable to be set aside---Appeal was allowed and the accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.
(d) Criminal Procedure Code (V of 1898)---
----S. 161---Examination of witness by police---Testimony of a witness whose statement had not been recorded during the investigation could not be credible one.
Dilshad v. The State 1995 PCr.LJ 248; Akbar v. The State 1996 MLD 1311 and Muhammad Idrees v. The State 2011 PCr.LJ 552 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt--- Extra-judicial confession--- Scope---Allegedly, accused and his co-accused made extra-judicial confession before a witness, cousin of prosecution witness, who nominated the accused and his co-accused persons---Said witness had testified that he along with a person, not produced, overheard a conversation between the accused and his co-accused in which he admitted his guilt, while passing through the street outside the house of one of the co-accused---Firstly said witness lacked credibility as he was a chance witness and failed to justify his presence there at the relevant time; secondly, it did not appeal to a prudent mind that a person would talk so loudly about his crime that the people might hear him in the street and thirdly, said witness unequivocally had admitted that he did not see the accused's face and recognised him by voice---Such identification could be considered as doubtful and was inconsequential.
The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378; Abdul Razzaq v. The State 2009 YLR 756; Ahmed Sher and another v. The State PLD 1995 FSC 20 and Ayyub v. The State 1994 PCr.LJ 1057 rel.
(f) Criminal Procedure Code (V of 1898)---
----Ss. 164 & 364---Joint extra-judicial confession---Scope---Joint extra-judicial confession was inadmissible.
(g) Criminal trial---
----Medical evidence---Scope---Medical evidence could only furnish details of the injuries sustained by a person, living or dead and the kind of weapon used in the occurrence but it did not identify the culprits.
Akbar Ali v. The State 2007 SCMR 486; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803; Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Allegedly, pistol .30-bore along with two live bullets was recovered from the accused which he used for the commission of offence---Record showed that the alleged recovery was made in violation of S. 103, Cr.P.C.---Report of the Forensic Science Laboratory only certified that the recovered pistol was in working condition---Report did not say whether the crime empties wedded with it or not---Accused was not confronted with report when his statement under S. 342, Cr.P.C. was recorded---Such recovery was inconsequential, in circumstances.
(i) Criminal Procedure Code (V of 1898)---
----S. 342---Examination of accused---Scope---Examination of accused under S. 342, Cr.P.C. was not a mere formality but a legal requirement whose primary purpose was to apprise the accused of all the incriminating material that had been brought against him during the trial and providing him opportunity to explain his position with respect to it---If any piece of evidence was not put to him, the same could not be used against him.
Muhammad Shah v. The State 2010 SCMR 1009; Qaddan and others v. The State 2017 SCMR 148; Muhammad Saddique v. The State 2018 SCMR 71 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.
(j) Criminal trial---
----Circumstantial evidence--- Value--- Scope--- Prosecution, in a case of circumstantial evidence, was obliged to show that different pieces of evidence brought on the record were inter-linked so as to make a single chain---Circumstantial evidence must be of a quality to be incompatible with the innocence of accused---Any missing link in the chain would destroy the entire prosecution case.
Hashim Qasim and another v. The State 2017 SCMR 986 rel.
Prince Rehan Iftikhar Sheikh for Appellant.
Ansar Yasin, Deputy Prosecutor-General for the State.
Shahzad Saleem Khan Balouch for the Complainant.
Date of hearing: 20th November, 2018.
JUDGMENT
TARIQ SALEEM SHEIKH, J.---Through this appeal the Appellant, Muhammad Anwar, has assailed judgment dated 23.11.2006 passed by the learned Additional Sessions Judge, Sahiwal, in case FIR No. 569/2004 dated 12.11.2004 registered at Police Station Harappa, District Sahiwal, for offences under sections 302/109/148/149, P.P.C. whereby he was convicted and sentenced for the murder of his wife Nasreen Bibi and another woman named Rasoolan Bibi.
2. Brief facts of the case are that on 12.11.2004 Bashir Ahmad (PW-8) made a statement before Nisar Ahmad/SI (PW-15) to the effect that he was a resident of Chak No. 4/10-L and an agriculturist by profession. On the same day, i.e. 12.11.2004, at about 8:00 a.m. when he went to his fields he found dead bodies of two unknown women lying in the drain. A five-month-old baby girl was by their side who was crying. One of the deceased was aged 41/42 years while the other was young and appeared to be around 21/22 years old. The Complainant raised alarm which inter alia attracted PW-7 Noor Ahmad and PW Mureed Hussain son of Ghulam Muhammad (given up) to the spot. They got announcements made from the mosques in their village and the surrounding areas to call people to the aforesaid place for the identification of the deceased but nobody could identify them. At 9:05 a.m. Nisar Ahmad/SI (PW-15) recorded the statement of Complainant Bashir Ahmad (Exh. PG/1) and despatched it to the police station through Muhammad Abbas 1114/C on the basis of which FIR No.569/2004 (Exh.PG) was registered at 9:45 a.m.
3. The investigation of this case was also entrusted to Nisar Ahmad/SI (PW-15). He reached the crime scene, took the dead bodies in his custody and despatched them for autopsy under the escort of Muhammad Aslam 688/C (PW-5). Then he prepared rough site plan of that place Exh. PS and recorded the statements of the witnesses under section 161, Cr.P.C. During spot inspection he collected blood-stained earth from the points where the corpses were lying and secured them vide Recovery Memos Exh.PJ and Exh.PK. He found there six empties P-3/1-6, lead of a cell phone P-4 and baby's feeder P-5 which he took into possession vide Recovery Memos Exh.PM and Exh.PN. On the same day he entrusted the infant to Munir Ahmad (PW-9) against acknowledgement Exh.PP. After the postmortem examination was done Muhammad Aslam 688/C (PW-5) produced before him stitched dead bodies of both the deceased and their last worn clothes. Nisar Ahmad/SI (PW-15) secured the said clothes through Recovery Memo Exh.PQ and handed over the corpses to Muhammad Iqbal, Sanitary Supervisor, Municipal Committee, Sahiwal, against receipt Exh.PR for their last rites. He also had the announcements made through loudspeakers in the nearby villages calling upon the people if they could identify the deceased. However, despite his best efforts they could not be identified and were eventually buried. On 10.1.2005, Muhammad Mansha (PW-11), Muhammad Siddique (PW-12) and Abdul Ghaffar (PW-13) appeared before Nisar Ahmad/SI who showed them the photographs of the dead bodies from which they identified them as Nasreen Bibi and Rasoolan Bibi. He recorded their statements under section 161, Cr.P.C. On the same day Muhammad Ijaz (PW-10) joined the investigation and got his statement recorded in which he nominated Appellant Muhammad Anwar, Muhammad Sarwar (since acquitted), Mst. Rashidan Bibi wife of Sharif, Abdul Aziz son of Bagh Ali and Salamat Ali son of Nawab Din along with four unknown persons for the murders. Muhammad Ijaz (PW-10) also alleged that all was done on the instigation of Murad Ali son of Khushi Muhammad and Allah Ditta son of Burra. On 15.11.2004, Nisar Ahmad/SI got prepared scaled site plan from Draftsman Saeed Akhtar (PW-6). On 15.3.2005, he arrested Abdul Aziz and Salamat Ali. The Appellant and Muhammad Sarwar approached the learned Additional Sessions Judge, Sahiwal, for pre-arrest bail. He arrested them after their bail applications were dismissed on 30.5.2005. Mst. Rashidan Bibi could not be apprehended and was declared a proclaimed offender. On 11.6.2005, during the course of investigation Nisar Ahmad/SI allegedly recovered pistol .30-bore P-1 and two live bullets P-2/1-2 at the instance of the Appellant which he took into possession vide Recovery Memo Exh.PF. Kamran Yousaf (PW-16), who was then posted as SP, Investigation, also investigated this case for a short period. The police found that the Appellant and Muhammad Sarwar were involved in the occurrence while four other accused, namely, Abdul Aziz, Salamat Ali, Murad Ali and Allah Ditta were innocent. Report under section 173, Cr.P.C. was submitted accordingly. The learned Additional Sessions Judge indicted the Appellant and Muhammad Sarwar on 29.12.2005. Both of them denied the charge and claimed trial.
4. In order to prove its case the prosecution examined 16 witnesses. Noor Ahmad (PW-7) and Complainant Bashir Ahmad (PW-8) testified about the recovery of two dead bodies of females from the latter's field. Munir Ahmad (PW-9) deposed that Nisar Ahmad/SI (PW-15) gave the baby girl found alongside them in his care. Muhammad Ijaz (PW-10) and Abdul Ghaffar (PW-13) deposed that the Appellant had a motive to kill Nasreen Bibi and Rasoolan Bibi. Muhammad Siddique (PW-12) overheard a conversation between the Appellant and his co-accused in which he confessed his guilt. Haji Munir Ahmad (PW-14) furnished the evidence of the last seen. Muhammad Mansha (PW-11) testified about the extra-judicial confession of the Appellant and Azmat Ali 1075/C (PW-2) proved recovery of pistol P-1 and live bullets P-2/1-2 from him. Medical evidence was provided by Dr. Afshan Akram (PW-1). The Investigating Officers, Nisar Ahmad/SI (PW-15) and Kamran Yousaf, Deputy Director Intelligence Bureau (PW-16), gave the details of their investigation and the evidence they collected in this case. The remaining witnesses were formal in nature. The prosecution also adduced reports of the Chemical Examiner (Exh.PS and Exh.PS/1), the Serologist (Exh.PT and Exh.PT/1) and the Forensic Science Laboratory (Exh.PV).
5. After the prosecution was through with its evidence the learned trial court recorded the statements of the Appellant and co-accused Muhammad Sarwar under section 342, Cr.P.C. Both of them denied the allegations and professed innocence. They maintained that it was a case of no evidence. The occurrence took place in the dark hours of the night. There was neither any direct nor circumstantial evidence to connect them with it. None of them opted to get their statements recorded on oath under section 340(2), Cr.P.C. or examine any witness in their defence.
6. On the conclusion of the trial, vide judgment dated 23.11.2006, the learned Additional Sessions Judge acquitted Muhammad Sarwar but convicted the Appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life on two counts. He also ordered him to pay compensation of Rs.50,000/- to the legal heirs of each deceased under section 544-A, Cr.P.C. In the event of non-payment of compensation, the Appellant would undergo simple imprisonment for a further period of six months on each count. The sentences of imprisonment were to run concurrently and benefit of section 382-B, Cr.P.C. was extended to him. Through this appeal the Appellant has assailed his conviction and sentence before this Court.
7. In support of this appeal Prince Rehan Iftikhar Sheikh, Advocate, contended that it was a case of no evidence. The learned trial Court had not appraised the prosecution evidence properly which had caused grave miscarriage of justice. He argued that, firstly, the Appellant had no motive to murder Nasreen Bibi and Rasoolan Bibi. The motive alleged by the prosecution was false and even that was not proved. Secondly, the last seen evidence furnished by Haji Munir Ahmad (PW-14) was untrustworthy and the prosecution had concocted it to strengthen its case. Thirdly, the Appellant had no reason to make any extra-judicial confession before Muhammad Mansha (PW-11) and the one attributed to him was false. Even otherwise, it had no legal value as it was stated to have been jointly made by him and co-accused Muhammad Sarwar (since acquitted). Fourthly, the testimony of eavesdropper Muhammad Siddique (PW-12) also lacks credibility. He was a chance witness and failed to justify his presence outside the house of Abdul Aziz at the relevant time. Fifthly, pistol P-1 and live bullets P-2/1-2 were not recovered from the Appellant and the police had foisted them on him. Sixthly, the medical evidence was of no avail to the prosecution as it was only confirmatory and could not be used to identify the culprits. Lastly, the learned trial Court had acquitted co-accused Muhammad Sarwar on the same evidence against which the prosecution had not filed any appeal. Since the Appellant's case had no distinguishing feature the trial Court erred in convicting him. The learned counsel prayed that this appeal be accepted and the Appellant be acquitted of the charge.
8. On the other hand, the learned Deputy Prosecutor General assisted by Mr. Shahzad Saleem Khan Balouch, Advocate, controverted the above contentions and supported the impugned judgment. He contended that the Appellant was involved in anti-social activities and viewed Nasreen Bibi and Rasoolan Bibi deceased as hurdle so he killed them to get them off his way. He maintained that the prosecution had proved its case against him through credible circumstantial evidence. The PWs had no enmity or ill-will against him. As such, there was no reason for them to falsely implicate him in this case. He prayed that this appeal be dismissed and the appellant's conviction be upheld.
9. I have heard the learned counsel for the parties and examined the record with their able assistance.
10. Admittedly, it was an unwitnessed occurrence. On 12.11.2004 at about 8:00 a.m. Bashir Ahmad (PW-8) discovered dead bodies of two unknown women in a drain within the territorial limits of Police Station Harrapa, District Sahiwal, with a five-month-old baby girl around them. He raised alarm at the ghastly sight which attracted Noor Ahmad (PW-7) and other villagers to the spot. They got announcements made from the mosques in their village and the surrounding areas to call people for their identification but nobody could identify them. Bashir Ahmad (PW-8) informed the police whereupon Nisar Ahmad/SI (PW-15) came to the spot. He recorded his statement Exh.PG/1 and despatched the dead bodies to the mortuary for autopsy. On the same day he entrusted the infant to Munir Ahmad (PW-9) against acknowledgement Exh.PP. Inasmuch as the deceased could not be identified, after their postmortem he handed over their corpses to Muhammad Iqbal, Sanitary Supervisor, Municipal Committee, Sahiwal, for their last rites and burial which he did. It was about two months later, i.e. on 10.1.2005, Muhammad Mansha (PW-11), Muhammad Siddique (PW-12), Abdul Ghaffar (PW-13) and PWs Muhammad Umar, Muhammad Amin, Muhammad Yasin, Sardar Ali and Sooba (not produced) appeared before the Investigating Officer, Nisar Ahmad/SI (PW-15) and from the photographs that he had retained identified the dead bodies as of Nasreen Bibi and Rasoolan Bibi. On the same day Muhammad Ijaz (PW-10) joined the investigation and got his statement recorded in which he nominated Appellant Muhammad Anwar and six others for the murders. Perusal of the record reveals that the prosecution neither produced the photographer nor got exhibited the aforesaid photographs in evidence. More importantly, in their depositions Muhammad Mansha (PW-11), Muhammad Siddique (PW-12) and Abdul Ghaffar (PW-13) did not state that they had identified the deceased women. In this view of the matter, in my opinion, the prosecution has failed to conclusively establish their identity.
11. The prosecution relies on the motive, the last seen evidence, extra-judicial confession, the medical evidence and recovery of pistol .30-bore P-1 and two live bullets P-2/1-2 to bring home guilt to the Appellant.
12. The prosecution produced Muhammad Ijaz (PW-10) and Abdul Ghaffar (PW-13) to prove the motive. They alleged that the Appellant and Rasoolan Bibi were members of an organized group which was engaged in human trafficking. Nasreen Bibi learnt about it. When the Appellant discovered that he gave her beating and turned her out of his house. Nasreen Bibi went to her brother, Muhammad Ijaz. The Appellant followed her on the pretext of reconciliation and after giving false explanations to his in-laws brought her back and killed Nasreen Bibi and Rasoolan Bibi both. Perusal of the record shows that Muhammad Ijaz (PW-10) and Abdul Ghaffar (PW-13) did not have any personal knowledge that the Appellant was involved in illicit human trade. Their testimony is essentially based on the statement of Nasreen Bibi which is not supported by any direct or indirect evidence. Even during the course of investigation the police did not make any effort to verify it. In his cross-examination Nisar Ahmad/SI (PW-15) admitted:
"I have not visited the place where Mst. Nasreen Bibi had resided and also did not inquire about the information which was narrated by Nasreen Bibi deceased to Ijaz from anywhere About the motive of occurrence as alleged by Ijaz he did not produce any evidence in this respect except his verbal statement." The baby girl found near the dead bodies of the deceased women would not advance the prosecution case because her identity was also not established. It is not known whether she was the daughter of Rasoolan Bibi or anybody else. For all these reasons I hold that the motive has not been proved.
13. Haji Munir Ahmad (PW-14) furnished evidence of the last seen. He deposed that about 1-1/2 years prior to the day when his testimony was recorded he along with PW Muhammad Afzal (not produced) was sitting at a diesel sale point in village 183/9L when a Toyota van came there for refueling. The driver purchased diesel for Rs.300/- and gave the salesman a currency note of Rs.1000/-. The latter went to the office to fetch the change. In the meantime, two persons alighted from the van out of whom one was bearded while the other was fat. PWs Haji Munir Ahmad and Muhammad Afzal heard one of the women in the van weeping. They went near it and saw 6/7 passengers in it who told them that they were going to a funeral. The next morning there was an announcement from the mosque that two women were found murdered near the drain close to the village. He further stated that he and Muhammad Afzal went to the spot and observed one of the deceased was the same woman they had seen weeping in the van on the preceding night. About 3/4 months later the two of them went to Police Station Harrapa where they found those men whom they had seen in the van which included the Appellant. The testimony of Haji Munir Ahmad (PW-14) smacks of concoction and is liable to be rejected for more than one reason. First, he has not mentioned the precise date and time when he came across the Appellant. Secondly, he is a chance witness and has failed to explain his presence at the diesel sale point at the relevant time. Thirdly, the Appellant was previously not known to Haji Munir Ahmad. He identified him about 3/4 months after his first sight. It is improbable if not impossible to recognize a previously unknown person after such a long time when one had had only…
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