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Petitioner: Mst. AMIRAN and others---Appellants VS Respondent: The STATE and others--- JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Abdul Aziz, Abdul Sami Khan Title:Mst. AMIRAN and others---Appellants vs The STATE and others---
JUDGMENT
Reported As: 2017 P Cr. L J 1591 Result: Appeal accepted Judgment JUDGMENT CH. ABDUL AZIZ, J.---This judgment shall dispose of Criminal Appeal No,1162 of 2010 filed by Mst. Amiran Bibi and Mst. Jamila Mai, appellants (against conviction) and Reference sent by the trial court under section 374 of Criminal Procedure Code, 1898, which is numbered as Murder Reference No,20 of 2011 for confirmation or otherwise of sentence of death awarded to Munir Ahmad (convict). The appeal as well as the murder reference are originating from the judgtnent dated 30.11.2010 passed by the learned Additional. Sessions Judge, Dunyapur, arising out of private complaint for the offence under sections 302, 34, 109, P.P.C. with regard to an occurrence taken place within the territorial jurisdiction of Police Station Saddar Dunyapur. Learned Additional Sessions Judge vide the said judgment convicted and sentenced the appellants and their co-convict namely Muhammad Munir as under:- 1.Amiran Bibi and Jameela Bibi (appellants) were convicted under sections 302(b)/34, P.P.C. and were sentenced to imprisonment for life. They were also directed to pay Rs,100,000/- each as compensation to the legal heirs of the deceased and in default of payment of the amount, they were ordered to further undergo six months' SI each. Benefit of section 382-B, Cr.P.C. was also extended in their favour. 2.Muhammad Munir (convict) was convicted under sections 302(b)/34, P.P.C. and awarded death sentence. He was also directed to pay Rs,100,000/- as compensation to the legal heirs of the deceased and in default of payment of the said amount, he was ordered to further undergo six months' SI. 2. Succinctly, the case of the prosecution as unfolded by Hafiz Karim Bakhsh, real brother of the
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deceased (PW.2) in private complaint (Exh.PE) is that on the night falling in between 19/20.09.2009 after offering Isha and Tarawih prayer he along with Muhammad Hanif and Ghulam Shabbir was standing on a water course near their house situated in village Hafizabad, Mouza Qutubpur and were talking with each other. Meanwhile they heard the hue and cry of Muhammad Rafique (deceased), they rushed to the crime scene and saw in the light of torch that Muhammad Rafique (deceased) was made to lay on the cot and he (Muhammad Munir) was piercing Churri on his neck, whereas Mst. Amiran Mai and Mst. Jameela were holding his limbs and were asking Munir Ahmad (convict) to hurry up for commission of his murder. Within the view of complainant and other PWs, Muhammad Rafique was slaughtered and when they tried to catch hold of Munir Ahmad, he threatened that if anyone came near him, he would also be slain and fled away while boarding on a motorcycle with an unknown accused. Muhammad Rafique succumbed to the injuries at the spot. Motive behind the occurrence was stated to be the illicit relations of Munir Ahmed with Mst. Jameela Mai (appellant). It was further alleged in the complaint (Exh.PE) that regarding the same occurrence, a case FIR. No,455/2009 dated 20.09.2009 under sections 302, 34, P.P.C. was previously registered at Police Station Saddar Dunyapur on the complaint of Amiran Bibi (appellant) which was based on false and fabricated story. It also evinces from the complaint that eight days before filing of the private complaint, Altaf Khan (co-accused) approached the complainant in the presence of PWs Muhammad Hanif and Ghulam Shabbir and sought pardon stating- that he along with Munir Ahmad, Amiran and Jameela were involved in the murder of Muhammad Rafique. 3.Initially the matter was brought to the notice of police through the statement (Exh.CW-7/A) of Mst. Amiran Bibi (appellant), wife of Muhammad Rafique (deceased) which was reduced into writing by Farhat Abbas SI (CW.7). On the basis of this statement, formal FIR (Exh.CW.5/A) was registered. Briefly stated the facts narrated by Mst. Amiran Bibi (appellant) in FIR (Exh.CW.5/A) are to the effect that on the night of 20.09.2009 she along with other family members was present in the house. On hearing the hue and cry of Muhammad Rafique (deceased), she along with her daughters attracted to the courtyard and saw three accused namely Muhammad Younas, Husnain and Farooq standing there and within their view Husnain and Farooq got hold the limbs of the Muhammad Rafique (deceased) and Muhammad Younas cut the throat of Muhammad Rafique (deceased) with a Churi who succumbed to the injuries at the spot. On the hue and cry of the witnesses, the three accused decamped from the spot. The motive behind the occurrence statedly was the dispute of land. 4.After the registration of FIR (Exh.CW.5/A) Farhat Abbas SI (CW.7) proceeded to the crime scene and after examining the dead body, prepared the injury statement (Exh.PB) and the inquest report (Exh.PC). He also secured blood stained earth from the crime scene through recovery memo (Exh.CW.4/A). He forwarded the dead body of the deceased to hospital for the purposes of autopsy under the escort of Muhammad Ali 304/C (CW.8). After preparing the rough site plan (Exh.CW-7/B), he recorded the statements of the witnesses including Tahira Bibi, Muhammad Shabbir and Abdul Hameed etc. Initially, in order to arrest the accused nominated in the FIR, he conducted raid but remained unsuccessful. However, later on, these accused persons joined the investigation proceedings and were found innocent and instead arrived at a conclusion that the occurrence was committed by Amiran Bibi, Jameela Bibi and Munir Ahmad. On 22.10.2009, he arrested the appellants. Jameela Bibi (appellant), who during the course of investigation led to the recovery of Bughda (Exh.CW-2/1) which was taken into possession through memo (Exh.CW-2/A). Munir Ahmad (convict) was also arrested on 23.10.2009. During the course of investigation, Investigating Officer arrived at a conclusion that Jameela Bibi (appellant) committed the murder of her father at the behest of Amiran Bibi and Munir Ahmed. On the conclusion of investigation, he . submitted report under section 173, Cr.P.C.
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Karim Bakhsh (PW.2) feeling dissatisfied from the conclusion drawn by the police, proceeded to file the private complaint (Exh.PE) on which the trial commenced. 5.The prosecution, in order to prove its case against the appellants and Munir Ahmad (co- convict/absconder) produced three persons as prosecution witnesses i,e, Hafiz Karim Bakhsh (PW.2) and Ghulam Shabbir (PW.3), the eye-witnesses of the occurrence and Dr. Akhtar Shahzad (PW.1) who conducted the post-mortem examination of Muhammad Rafique (deceased). Trial court also examined ten persons as Court Witnesses which include Muhammad Arshad 330/C (CW.2) the witness of recovery of Bughda, Mst. Tahira Bibi (CW.6) an eye-witness, Farhat Abbas SI (CW.7), investigating officer of the case and Muhammad Nawaz (CW.9), the draftsman. 6.Dr. Akhtar Shahzad (PW.1) on 20.09.2009 at 8:00 a.m., conducted autopsy on the dead body of Muhammad Rafique and observed the following injuries:- Injury No,1 An incised wound 3 cm x 0.5 cm present on chin. Bone was exposed. Periostium of bone was cut. Injury No,2 An incised wound 1.3 cm x 1.05 cm on front of neck. Cutting skin, muscles. Vessels of right side of neck cartilage was deep, Injury No,3 An incised wound 3 cm x 1 cm on right side of neck. Cutting skin muscles, vessels of right side of neck (internal carotid artery and jugular vein 1 cm below injury No,2), Injury No,4 An incised wound 2 cm x 1 cm in front of neck 1 cm below the injury No,3. Cutting of muscles, cartilage deep 6 cm above the clavicles. According to the opinion of the doctor, the death occurred due to injuries Nos,2 and 3 which damaged the right side of vessels, internal carotid artery and jugular vein. These injuries further caused haemorrhage and shock and ultimately resulted into the cardio pulmonary arrest. The injuries were described sufficient to be enough to cause the death in ordinary course of life. All injuries were ante mortem in nature and were caused by sharp edged weapon. The probable time between injury and death described by the doctor was within ten minutes and between death and post-mortem was between two to twenty four hours. 7. The learned trial court examined the appellants and their coconvict/absconder Muhammad Munir under section 342, Cr.P.C. Mst. Amiran Bibi (appellant) in response to question No,3 replied as under:- "It is incorrect on 19/20-09-2009 at night co-accused Munir visited the house of deceased Mohammad Rafique. It is also incorrect that Munir co-accused with the help of myself and Mst. Jameela Bibi murdered the deceased Mohammad Rafique with the weapon of offence churri and occurrence was witnessed by the PWs. I am the complainant of FIR as well as private complaint titled: Mst. Amiran Bibi v. Mohammad Younas, etc. pending in this Hon'bie Court. Murder of my husband Mohammad Rafique was committed by the accused Mohammad Younas, etc. of the said complaint and FIR. The witnesses namely Hafiz Karim Baldish, Tahira, Hanif and Ghulam Shabbir joined the investigation of my FIR case dated: 20.09.2009 in which they stated before the 1.0 individually and collectively that they were not present at the time of occurrence and they had not seen the occurrence. The complaint filed by complainant Hafiz Karim Bakhsh is based on false facts and with ulterior motive. Accused Mohammad Younas, etc. are his real nephew who saved them who filed this private complaint against us. After postmortem examination the dead body of my husband Mohammad Rafique deceased was handed over by the police. All the funeral ceremony expenses were afforded by me. Hafiz Karim Bakhsh involved me and my minor daughter Mst. Jameela Bibi in this case with the concocted story of illicit relations with Munir." In response to the question "why this case against you and why the PWs have deposed against you", Mst. Amiran Bibi (appellant) gave the reply which reads as under:-
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"Hafiz Karim Bakhsh's real nephews Mohammad Younas, Husnain and Farooq are real culprits of the FIR case as well as my complaint case titled: Mst. Amiran Bibi v. Mohammad Younas etc. which is still pending adjudication in this Hon'ble Court. To save the real culprits Hafiz Karim Bakhsh as complainant lodged this false complaint against me and my co-accused and all the evidence produced by the prosecution is fake, false and against the facts with ulterior motive". Similarly, Mst. Jameela Bibi in response to question "why this case against you and why the PWs have deposed against you", she made the following reply:- "Real culprits of case FIR are Mohammad Younas, Husnain and Farooq. The complainant Hafiz Karim Baksh is real uncle of the said Younas, etc. so to save them instant private complaint is filed against us." Munir Ahmad, during his examination under section 342, Cr.P.C., in reply to the question "why this case against you and why the PWs deposed against you", stated as under:- "Real culprits of FIR case are Mohammad Younas, Husnain and Farooq. The complainant is real uncle of said accused persons. To save the real culprits, the instant private complaint was lodged and all the evidence produced by the prosecution is false and against facts. There is land dispute in between Mohammad Younas accused and Muhammad Rafique deceased. Due to this reason Mohammad Younas murdered Mohammad Rafique deceased. I am ready to give oath on Holy Quran about my innocence." All the three accused (appellants and Munir Ahmad) neither opted to appear as witnesses under section 340(2) of Cr.P.C. nor produced any evidence in their defence. 8.After the completion of trial, the learned trial court convicted and sentenced the appellants and their co-convict Munir Ahmad, as stated above, hence, the instant appeal and Murder Reference. 9.Learned counsel for the appellants contended that the impugned judgment was passed in a trial, arising out of a private complaint which was filed with an unexplained delay of about 3-1/2 months; that initially the occurrence was brought to the notice of the local police through an FIR registered at the instance of Amiran Bibi (appellant); that in the said FIR, Jameela Bibi (appellant) was the witness of the occurrence and after about 3-1/2 months, the instant complaint was filed; that the complaint was comprising upon the set of the witnesses who admittedly joined the process of investigation on the first day of occurrence but uttered not a single word against the appellants; that after about one month of the occurrence, Karim Bakhsh (complainant) moved an application against the appellants for the registration of FIR without offering any explanation for this delay; that in the instant case, the ocular account was furnished by the witnesses who admittedly were not in best of terms with the accused persons and they miserably failed to justify their presence at the crime scene; that even during the course of investigation, Amirarl Bibi (appellant) was found not to have participated in the commission of crime and that despite the fact a reasonable doubt arose out of discrepancies and contradictions from the prosecution evidence but the learned trial court gave no benefit to the appellants. 10.On the other hand, learned DPG assisted by learned counsel for the complainant strongly controverted the arguments of learned counsel for the appellants and submitted that though there is a delay of 3-1/2 months in filing the complaint but the same stands reasonably explained; that the complainant who is the real brother of the deceased had no reason to falsely implicate the appellants in the commission of crime; that the guilt of the appellants and Munir Ahmad (convict) stands proved on the basis of the statement of Mst. Tahira Bibi who is the real daughter of Mst. Amiran Bibi and sister of Jameela Bibi; that the ocular account furnished by the eye-witnesses is supported by the medical evidence as well as by the recovery of Bughda effected at the instance of Jameela Bibi (appellant); that though initially the FIR was registered at the instance of Amiran Bibi, however, during the course of investigation, both the appellants were found involved in the commission of offence and that both the appellants are fully connected with the commission of
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crime, from the facts and circumstances brought on record during the course of trial. 11.Arguments heard and record perused with the able assistance of learned counsel for the respective parties. 12.The case of the prosecution, primarily hinges upon the ocular account furnished by Hafiz Karim Bakhsh (PW.2), Ghulam Shabbir (PW.3) and Mst. Tahira Bibi (CW.6), the medical evidence brought on record by Dr. Alchtar Shehzad (PW.1), the recovery of Bughda (CW-2/1) witnessed by Muhammad Arshad 330/C (CW.2). The prosecution sought corroboration from the motive which was described as illicit relations of Jameela Bibi (appellant) with Munir (absconder). 13.It divulges from the perusal of the record that the occurrence which became the foundation stone of the instant case took place on the night of 20.09.2009 at about 12:30 a.m. within the jurisdiction of P.S. Saddar Dunyapur district Lodhran. The detail of the occurrence was brought to the notice of local police by Mst. Amiran Bibi (appellant) through her statement which was converted into a complaint/Fard Bian (Exh.CW-7/A). On the basis of this complaint, subsequently formal FIR (Exh.CW-5/A) was registered. Amiran Bibi, through her above statement saddled Muhammad Younas, Hasnain and Farooq, with the responsibility of committing the murder of Muhammad Rafique, her husband (deceased). However, later on Hafiz Karim Bakhsh (PW.2), the real brother of the deceased, approached the local police on 15.10.2009 with an application (Exh.PD) for the registration of FIR, alleging therein that Muhammad Rafique (deceased) was done to death by Amiran Bibi, Jameela Bibi and Munir Ahmad. He claimed that the occurrence was witnessed by him and his brothers namely Ghulam Shabbir (PW.3) and Muhammad Hanif (given up PW). Admittedly, the application (Exh.PD) was moved after about 25 days of the occurrence. We have meticulously examined the contents of the application (Exh.PD) moved by Karim Bakhsh (PW.2) as well as the prosecution evidence and have failed to come across any explanation, justifying this inordinate delay of 25-days in reporting the matter to the police. Such inordinate delay warrants more cautious approach by this Court, while appraising the version of the complainant. 14. The complainant Karim Bakhsh (PW.2) at the time of moving of application (Exh.PD) as well as in the private complaint (Exh.PE) took up a specific motive and described it as illicit relations between Jameela Bibi (appellant) and Muhammad Munir (co-convict/absconder). It evinces from the prosecution evidence that except an oral assertion by Karim Bakhsh (PW.2), no other evidence was brought on record in support of the alleged motive. Neither he made reference to any specific incident nor produced any other witness in support of his claim of illicit relations of Jameela Bibi with Muhammad Munir. So much so, that even Ghulam Shabbir (PW.3) his real brother uttered not a single word regarding the alleged motive. The motive has its own importance in every murder case and can safely be termed as backbone of the prosecution case. Keeping in view the peculiar facts and circumstances of the instant case which is in the nature of complainant turned accused, the motive gains more importance. The motive is to be proved on the basis of some evidence and not through presumption. In this regard, we are of the view that the prosecution failed to satisfactorily prove the motive. It is settled that the failure to establish motive as set out in FIR is a factor, which goes against the prosecution. The prosecution though is not obliged to prove the motive in each and every case, however, once the motive is setup then it must be established. The guidance in this respect can be sought from the judgment reported as Noor Muhammad v. The State and another (2010 SCM R 97) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence." 15. According to the contents of the private complaint (Exh.PE), the occurrence was witnessed by
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Karim Bakhsh and his two brothers namely Ghulam Shabbir and Muhammad Hanif. During the course of trial, Karim Bakhsh and Ghulam Shabbir appeared as PW.2 and PW.3 respectively, whereas Muhammad Hanif was given up. It divulges from the record that the two eye-witnesses were not in best of terms with Muhammad Rafique (deceased) as well as with Amiran Bibi (appellant). In this respect, relevant extract from the cross-examination of Karim Bakhsh (PW.2) is being reproduced below:- "I have limited talking terms with deceased Muhammad Rafique at the time of occurrence. It is correct that I was not at talking terms with Jamila and Ameeran Bibi." Such aspect of the matter puts this Court at guard, while making the appraisal of the prosecution evidence. As a necessary corollary, the primary question which is required to be determined is the fact that whether the prosecution witnesses reasonably justified their presence at the crime scene or not. According to the record, Muhammad Hanif (given up PW) was residing in Qutubpur, situated approximately at a distance of one kilometer from the house of Karim Bakhsh (PW.2), whereas Ghulam Shabbir was residing at a distance of one mile from his house. Similarly Karim Bakhsh was residing at a distance of 2 acres from the house of the deceased, adjacent to a mosque. According to the record, they offered their Isha and Tarawih prayer individually and not in the mosque. None of the eye-witnesses advanced any reasoning for their presence outside the house of the deceased and that too at the odd hours of the night. Such aspect coupled with the fact that the PWs were not in good terms with the deceased, makes their presence outside the house of the deceased dubious in nature. It divulges from the record that by the time, the police arrived at the crime scene, all the three eye- witnesses were in attendance. This feature is even admitted by the eye-witnesses. In this regard, it would be appropriate to make reference to the relevant extract from the statement of Hafiz Karim Bakhsh (PW.2), which is as under:- "Ameeran Mai have got recorded police statement under section 154, Cr.P.C. in my presence which is Ex.D-B. Voluntarily stated that police had not heard our version. The police had prepared site plan in my presence. I cannot recollect the time of recording of said statement of Ameeran Bibi. The site plan was prepared by the police in day light." In addition to above, he further admitted that Amiran Bibi had nominated two accused in his presence. It is important to mention here that Amiran Bibi (appellant) placed the blame of the commission of crime on the shoulders of Younas, Husnain and Farooq. Younas and Husnain are the real nephews of Karim Bakhsh, whereas Farooq is his maternal nephew. In this background, the question arises that if at all they had witnessed the appellants while slaughtering the deceased then why they remained silent before the police at the time of their visit to the crime scene on the first night. Admittedly, this question remained unexplained throughout the trial. The perusal of the statement of Ghulam Shabbir (PW.3) conveys somewhat the same picture. According to him, the police arrived at the crime scene within 30/60 minutes of the occurrence and the statement of Amiran Bibi (appellant) was recorded by the police in the presence of PWs. Similarly, he admitted that even the spot inspection was conducted on the pointation of Amiran Bibi (appellant) and that too in the presence of Hafiz Karim Bakhsh. At that particular time, neither any application was submitted by Hafiz Karim Bakhsh nor he raised any objection. He admitted in unequivocal terms that at the relevant time he along with Tahira Bibi (CW.6), Mian Muhammad Shabbir, Abdul Hameed, Hafiz Karim Bakhsh (PW.2), Haji Muhammad Hanif (given up PW), Abdul Ghafoor, Khursheed, Muhammad Farooq and many other persons was present. The learned counsel for the complainant as well as learned DPG laid much emphasis on the statement of Tahira Bibi (CW.6) and portrayed it as a solitary circumstance, sufficient to uphold the conviction of the appellants. In order to evaluate such argument, we have made an in-depth analysis of the prosecution case. Though Tahira Bibi, tried to supplement the ocular account
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furnished by Karim Bakhsh (PW.2) and Ghulam Shabbir (PW.3) but the perusal of the record reveals that the actual position is altogether different. Tahira Bibi admittedly is the inmate of the house where the occurrence took place. While appearing as CW.7, she stated that though she witnessed the occurrence but at the arrival of the police, she was locked in a room and was not permitted to interact either with the police or with the PWs. However, such stance of CW.7 is strongly belied by the prosecution evidence itself. In this respect, we have already discussed the evidence of Ghulam Shabbir (PW.3), who admitted in clear terms regarding her presence at the time of the visit of the police. Even Farhat Abbas SI (CW.7), the Investigating Officer of the case stated that he recorded the statement of Tahira Bibi on the very first day of the occurrence. Not only this, he also deposed about the remaining PWs that they joined the investigation process and stated nothing about the involvement of the appellants in the commission of crime. It would be advantageous to make reference to the relevant portion of evidence of Farhat Abbas (CW.7), which is as under:- "I inquired and recorded the statement of Mst. Tahira Bibi at the spot. This is the same statement Ex.D-E which I recorded there. Para No,4 of case diary No,1 is before me. It is correct that I inquired Mst. Tahira Bibi, Muhammad Shabir son of Mian Allah Baksh, Abdul Hameed son of Shah Ali, Hafiz Karim Baksh son of Qadir Baksh caste Arain resident of Basti Hafiz Abad, Haji Muhammad Haneef son of Qadir Baksh, Abdul Ghafoor son of Muhammad Ramzan caste Chohan, Khursheed son of Muhammad Ramzan caste Chohan, Muhammad Farooq son of Muhammad Nawaz Caste Chohan, Haji Muhammad Aslam son of Sarwar caste Mochi resident of Qutubpur, Master Muhammad Ramzan son of Muhammad Hussain caste Jatt resident of Basti Hafiz Abad, Muhammad Habib son of Muhammad Ramzan Caste Jatt. They have recorded their statement in general interrogation that this is an alarming incident and that justice be…
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