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Petitioner: The State, Abdul Jabbar VS Respondent: Abdul Jabbar, The State
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: The State, Abdul Jabbar vs Abdul Jabbar, The State Case No.: Murder Reference No.14 of 2022, Criminal Appeal No. 351-J of 2022 Date of Judgment:2023-03-08 Reported As: 2023 LHC 1914, PLJ 2024 Cr.C. 87 Result: Murder Reference answered in Negative
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.- Abdul Jabbar son of Jan Muhammad (convict) was tried by the learned Additional Sessions Judge, Chishtian in case F.I.R No. 139 of 2021 dated 28.05.2021 registered in respect of offences under sections 302 and 325 P.P.C. at Police Station City B-Division Chishtian, District Bahawalnagar for committing the Qatl-i-Amd of Mst. Bushra Bibi daughter of Muhammad Ashraf (deceased). The learned trial court vide judgment dated 21.05.2022, convicted Abdul Jabbar son of Jan Muhammad (convict) and sentenced him as infra: Abdul Jabbar son of Jan Muhammad :- i) Death under section 302(b) P.P.C. as Tazir for committing Qatl i-Amd of Mst. Bushra Bibi daughter of Muhammad Ashraf (deceased) and directed 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 directed to undergo further six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Simple Imprisonment for one year under section 325 P.P.C. 2. Feeling aggrieved, Abdul Jabbar son of Jan Muhammad (convict) lodged the Criminal appeal No.351-J of 2022 through jail, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.14 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Abdul Jabbar son of Jan Muhammad. We intend to dispose of the Criminal appeal No.351-J of 2022 and the Murder Reference No.14 of 2022 through this single judgment.
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3. Precisely, the necessary facts of the prosecution case, as stated by Muhammad Ashraf (PW-1), the complainant of the case, are as under:- "Stated that about 10/11 years prior to the occurrence, I got married my daughter namely Bushra Bibi with accused Abdul Jabbar, present in court and out of their wedlock three children i.e one daughter and two sons are alive, who are presently residing with their grandmother in Chak No.3/G, Tehsil Chishtian. My said daughter and her husband Abdul Jabbar accused had been residing in Basti Awanpura. One month prior to the occurrence my said daughter came to my house after quarrelling with her husband/present accused. Thereafter sister and mother of the accused came to my house and I sent my daughter with them. My daughter was working at Civil Hospital Hasilpur and accused Abdul Jabbar forced her to resign from service, because he had suspicion that she she (sic) was having illicit relations with someone. On 27.5.2021 I alongwith Rasheed Ahmad and Mujahid came to Chishtian Lari Adda in order to drop my son namely Muhammad Nadeem, who used to work at Lahore. After dropping my son Muhammad Nadeem we went to AwanPura in the house of my said daughter at about 10:15 PM but her house was locked. Accused Abdul Jabbar had a Karyana shop, we went to the said shop, the shutter of the shop was down but electric bulb was on. We opened the shutter and saw that rope was present on neck of accused Jabbar and he was lying on the ground in unconscious position. We made hue and cry whereupon inhabitants of the village came there. We saw that my daughter Bushra Bibi was lying in dead condition, she was soaked in blood lying on a cot while her throat was cut and nearby a blood stained 'Churri' was lying. Accused Abdul Jababr (sic) committed murder of my daughter because he was suspecting that she was having illicit relations with someone else. The accused also attempted to committed suicide himself. Thereafter we made a call on 15, upon which police came at the spot. I got recorded my version which was reducing into writing by the police. My thumb impression was obtained in this regard. After completion of police proceedings said written application (Exh.PA) was sent to police station for registration of FIR. After completion of proceedings police escorted dead body to THQ Hospital Chishtian for autopsy whereas accused Abdul Jabbar was produced before M.O for medical treatment. After that I alongwith PWs and police reached at place of occurrence where police on our pointation (sic) prepared rough site plan and recorded our statements u/s 161 Cr.P.C." 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 Abdul Jabbar son of Jan Muhammad was sent to face trial. The learned trial court framed the charge against the accused on 24.08.2021, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got recorded statements of fourteen witnesses. Muhammad Ashraf (PW-1), the complainant of the case, gave the same evidence as has been reproduced in Paragraph 3 of the judgment. Rasheed Ahmad (PW-2) stated that on 27.05.2021 he discovered the dead body of the deceased, present in the shop of the appellant along with the appellant, also being present there in an unconscious condition and further stated that on 28.05.2021, the Investigating Officer of the case, took into possession the clothes of the appellant Shalwar (P-1) and Qameez (P-2) and on the same day also took into possession blood stained Churri (P-1) and a rope (P-2) from the place of occurrence as well as the last worn clothes of the deceased were produced before the Investigating Officer of the case after the post mortem examination. Zafar Iqbal (PW-3) stated that on 28.05.2021, he identified the dead body of the deceased at the time of its post mortem examination. Muhammad Nadeem (PW 4) stated that on 28.05.2021, he received the dead body of the deceased after post mortem examination. Atif Sarwar 693/HC (PW-5) stated that on 28.05.2021, the Investigating Officer of the case handed over to him one sealed parcel said to contain blood stained piece of carpet, five sealed parcels handed over to the Investigating Officer of the case by the Crime Scene Unit, one sealed parcel said to contain
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clothes of the appellant, one sealed parcel said to contain the last worn clothes of the deceased, two sealed envelopes and two sealed parcels handed over by the Woman Medical Officer and on 31.05.2021, he handed over five sealed parcels and two sealed envelopes and two sealed parcels handed over by the Woman Medical Officer to Saqib Hussain Wajid, SI (PW-12) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Atif Sarwar 693/HC (PW- 5) further stated that on 04.06.2021, he handed over the one sealed parcel said to contain blood stained piece of carpet to Saqib Hussain Wajid, SI (PW-12) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Yasir Irfat 966/C (PW-6) stated that on 28.05.2021 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Shafique, ASI (PW 7) stated that on 28.05.2021, he got recorded the formal F.I.R (Exh.PA/1). Muhammad Farooq Draftsman (PW-13) prepared the scaled site plan of the place of occurrence (Exh.PR). Muhammad Shehroz Iqbal, SI (PW-10) investigated the case from 18.12.2021 till 03.03.2022 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court. Saqib Hussain Wajid, SI (PW-12) investigated the case from 27.05.2021 till 11.06.2021, arrested the appellant on 31.05.2021 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Iram Zafar (PW-9) examined, who on 28.05.2021 was posted as Woman Medical Officer at the THQ hospital Chishtian and on the same day conducted the postmortem examination of the dead body of Mst. Bushra Bibi daughter of Muhammad Ashraf (deceased). Dr. Iram Zafar (PW-9) on examining the dead body of Mst. Bushra Bibi daughter of Muhammad Ashraf (deceased), observed as under:- "Description of Injuries Injury No. 1 An incised wound just above the larynx (sound box) starting from about 5/6 cm below the angle of mandible (right) and extending from right side to left side just near the cervical vertebrae. Transverse in direction, skin, soft tissues, muscles and neck vessels were damaged. Hyoid bone seem fractured, wound was 10/12 cm deep and almost 12/14 cm long. Injury No.2 A lacerated wound of 5 cm x 1.5 cm extending from right side of lip to above the angle of mandible (right). Injury No.3 Incised wound of 3 x 3 cm, bone exposed, muscles and vessels cut, tendons exposed on right metacarpophalangeal joint of right thumb." After external and internal examination of dead body and receiving reports from PFSA Lahore I was of the opinion that injury No.1 was the cause of death which caused excessive bleeding which leads to cardio pulmonary arrest and death. Injury was caused with sharp edged weapon. Injury was ante-mortem at the level of neck." The prosecution also got Dr. Syed Muhammad Shoaib Akhtar (PW-8) examined who on 28.05.2021 was posted at THQ hospital Chishtian and had examined the appellant on the same day. On examining the appellant, Dr. Syed Muhammad Shoaib Akhtar (PW-8) observed as under:- Examination of Clothes Wearing white clothes, clothes intact. No staining on clothes. General Physical examination: Pulse 90 p/m, P.B 100/60 temperature A/F, R/R 16 per minute. The patient was irritable. Description of Injuries: Injury No.1 A bruise horizontal in position in front of neck 5 cm below chin present.
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The patient was referred to BVH Bahawalpur for further management. Final opinion was KUO till receipt surgical notes BVH Bahawalpur. Surgical/treatment notes of Abdul Jabbar son of Jan Muhammad, BVH Registration No.160379- 603-66 issued on 01.7.2021, received on 03.3.2022. As per treatment notes, patient received with strangulation from ceiling fan with strangulation marks extending from one sternomastoid muscle to other on anterior aspect of neck. Patient was present with hypertension and was resuscitated and after neurosurgical evaluation and ENT evaluation was performed by the said specialty respectively for the treatment notes please refer to the concerned wards i.e. neurosurgery ward, ENT ward, Patient was shifted to the ward and discharged on 31.5.2021 in satisfactory condition." The prosecution also got Dr. Waleed Bin Tariq (PW-11) examined who stated that on 27.05.2021, he was posted at THQ hospital Chishtian and at about 11.55 p.m had examined the appellant as an emergency case. The prosecution also got Dr. Hafiz Aamir Bashir (PW-14) examined who stated that on 28.05.2021, he was posted as Medical Officer at BV hospital Bahawalpur and on the same day examined the appellant and observed as under:- Treatment notes: Patient received with strangulation from ceiling fan with strangulation marks extending from one sternomastoid muscle to other on anterior aspect of neck. Patient was present with hypertension and was resuscitated and after neurosurgical evaluation and ENT evaluation was performed by the said specialty respectively for the treatment notes please refer to the concerned wards i.e. neurosurgery ward, ENT ward, Patient was shifted to the ward and discharged on 31.5.2021 vide discharge slip Exh.PK/2, in satisfactory condition. I issued surgical treatment notes No.E-97 Exh.PK/1, which bears my signature and stamp.": 7. On 12.04.2022, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Mujahid, Muhammad Aamir and Uzair Farrukh 76/C as being unnecessary and closed the prosecution evidence after tendering the reports of Punjab Forensic Science Agency, Lahore (Exh.PS, Exh.PT and Exh.PU). 8. After the closure of prosecution evidence, the learned trial court examined appellant namely Abdul Jabbar son of Jan Muhammad 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 Abdul Jabbar son of Jan Muhammad opted not to get himself examined under section 340(2) Cr.P.C, however, got Maryam Jabbar (DW-1) examined in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Chishtian 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, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries
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suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also supported the facts in issue. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the Churri (P-1) and the reports of the Punjab Forensic Science Agency, Lahore also provided support to the prosecution case. The learned Deputy Prosecutor General along with the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their 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 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
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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 record, it is clear that the case of the prosecution hinges upon the statements of the prosecution witnesses namely Muhammad Ashraf (PW-1) and Rasheed Ahmad (PW-2), who stated that they discovered the dead body of the deceased inside the shop of the appellant and also found the appellant to be present in an unconscious condition in the same shop, making them perceive that the appellant had murdered the deceased, the evidence of the presence of the dead body of the deceased inside the shop of the appellant , the recovery of the Churri (P-1) from the place of occurrence, the blood stained Shalwar and Qameez of the appellant and the report of the Punjab Forensic Science Agency, Lahore (Exh.PU). 14. According to the prosecution witnesses namely Muhammad Ashraf (PW 1) and Rasheed Ahmad (PW-2), it was on 27.05.2021 at about 10.15 p.m, when they proceeded to inquire about the deceased and arrived at the shop of the appellant where they found the shutter door of the shop downed, however, the electric light bulb being on, so they went inside the shop and discovered the dead body of the deceased inside the shop of the appellant and also found the appellant to be present in an unconscious condition in the same shop, convincing them that the appellant had murdered the deceased. A perusal of the statements of the prosecution witnesses namely Muhammad Ashraf (PW-1) and Rasheed Ahmad (PW-2) proves that both the witnesses failed to establish that they were the first to arrive at the place of occurrence and the first to discover the presence of the dead body of the deceased inside the shop of the appellant and the first to find the appellant to be present in an unconscious condition in the same shop. Both the prosecution witnesses namely Muhammad Ashraf (PW-1) and Rasheed Ahmad (PW-2) admitted that the shop of the appellant, where the dead body was found present, was in Basti Awan Pura, whereas the prosecution witness namely Muhammad Ashraf (PW-1) was resident of Mauza Mehr Shareef, whereas the prosecution witness namely Rasheed Ahmad (PW-2) was the resident of Tibbi Tanki, Tehsil Chishtian. Both the prosecution witnesses namely Muhammad Ashraf (PW-1) and Rasheed Ahmad (PW-2) also admitted that Basti Awan Pura was at a distance from their residences. The prosecution witness namely Muhammad Ashraf (PW-1) admitted during cross-examination, as under:- "Mahar Sharif is at a distance of about five kilometers from Basti Awanpura. It is incorrect to suggest that the above said distance is about 14/15 kilometers. The distance between Basti AwanPura and Basti Tibba Tainki is about 1/1/2 kilometer. PW Muhammad Rasheed is husband of sister of my wife." (emphasis supplied)
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The prosecution witness namely Rasheed Ahmad (PW-2) admitted during cross-examination, as under:- "The distance between AwanPura and Mahar Sharif is three kilometers. It is incorrect to suggest that the above mentioned distance is about 14/15 kilometer. The distance between Awanpur and Tibba Tainki is about one kilometer. Complainant Muhammad Ashraf is husband of my sister in law." As both the prosecution witnesses namely Muhammad Ashraf (PW-1) and Rasheed Ahmad (PW-2) were not the residents of Basti Awan Pura, therefore, being conscious of this fact that there did not exist any reason for them to had proceeded to the place of the recovery of the dead body , the prosecution witnesses namely Muhammad Ashraf (PW-1) and Rasheed Ahmad (PW-2) came up with a reason that as they had to board Muhammad Nadeem (PW-4) on a bus for Lahore, therefore, on 27.05.2021, they accompanied Muhammad Nadeem (PW-4) to the Bus stop and returning from the same went to the matrimonial house of the deceased to inquire about her. The prosecution witness namely Muhammad Ashraf (PW-1), in his examination in-chief, stated as under:- "On 27.5.2021 I alongwith Rasheed Ahmad and Mujahid came to Chishtian Lari Adda in order to drop my son namely Muhammad Nadeem, who used to work at Lahore. After dropping my son Muhammad Nadeem we went to AwanPura in the house of my said daughter at about 10:15 PM but her house was locked." The prosecution witness namely Rasheed Ahmad (PW-2), in his examination in-chief recorded by the learned trial court, stated as under:- "Stated on 27.5.2021 I alongwith complainant Muhammad Ashraf and Mujahid came to Chishtian Lari Adda in order to drop Muhammad Nadeem son of complainant, who used to work at Lahore. After dropping Muhammad Nadeem we went to AwanPur in the house of complainant's daughter Bushra Bibi (now deceased) at about 10:15 PM, but her house was locked." Incidentally the prosecution also got Muhammad Nadeem (PW-4) examined, however, Muhammad Nadeem (PW-4) did not state that on 27.05.2021, the prosecution witnesses namely Muhammad Ashraf (PW-1) and Rasheed Ahmad (PW-2) had accompanied him to the bus stop when he was to proceed to Lahore. In his statement before the learned trial court, Muhammad Nadeem (PW-4) stated as under:- "Stated that I am resident of Mahar Sharif and labourer by profession. On 28.5.2021, I received dead body of deceased Mst. Bushra Bibi my sister after autopsy for her funeral ceremony and burial through receipt Exh.PG. I.O recorded my statement u/s 161 Cr.P.C in this regard on the same day. XXX Cross examination by learned counsel for the accused. I reached at Lari Adda on 27.5.2021 at about 10:00 PM. I had…
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