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Petitioner: MUHAMMAD IQBAL VS Respondent: The STATE and 3 others
Court Name: Federal Shariat Court Judge(s): Sheikh Ahmad Farooq, Dr. Allama Fida Muhammad Khan, Shahzado Sheikh Title: MUHAMMAD IQBAL vs The STATE and 3 others Case No.: Criminal Appeal No,199/I of 2007 Date of Judgment:2013-03-21 Reported As: 2013 P Cr. L J 1683 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' DR. FIDA MUHAMMAD KHAN, J.---Muhammad Iqbal/ appellant after grant of special leave to appeal under section 417(2) of the Code of Criminal Procedure has filed this criminal appeal against the judgment dated 26-4-2007 delivered by learned Additional Sessions Judge, Kabirwala District Khanewal whereby respondents Shahid alias Munna, Mst. Sajida alias Gogi and Haitam Ali were acquitted from the charges under sections 302/34 and 201 of P.P.C. As well as sections 16 and 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance). 2. This appeal arises out of a private complaint, (Exh.PB) moved on 8-1-2004 by Muhammad Iqbal complainant (P.W.1) against four accused persons including the proclaimed offender Muhammad Saajid son of Talib Hussain, with regard to an incident covered by the mischief of sections 10(3)/16 of the said Ordinance, as well as sections 302/34 and 201, P.P.C. Of the Pakistan Penal Code. The incident allegedly occurred during the night between 10/11 November, 2001. The period between incident and moving the learned trial Court by way of private complaint is 26 months. 3. Brief facts of the prosecution case are that initially on 11-11-2001 Muhammad Iqbal complainant in the presence of Haji Bashir Ahmed, Manzoor Ahmed avid Thiraj Nazim Abdul Hakeem, made a statement before Mazhar Nawaz SI (C.W.7) informing him about the unnatural death of his daughter. That statement was reduced by him into writing and recorded in the appropriate register as Rupt No,5 of even date. The Rupt was duly signed by Muhammad Iqbal complainant. Investigation by police into the cause of reported death was initiated thereafter. Inquest Report (Exh.PA) was prepared and dead body, duly escorted by Aalam Sher, (P.W.8) was sent for Postmortem Examination and report in respect thereof was obtained by the police.
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4. The facts narrated in the said Rupt were that Mst. Ghazala Iqbal, daughter of Muhammad Iqbal, complainant, (aged about 18/19 years) student of 3rd year in Government Post Graduate College for Women, Satellite Town Rawalpindi, who had come to Abdul Hakim on account of death of her maternal grandfather, was found missing from her bed at 11-00 p.m. During the night between 10/11-11-2001. Search was carried out. It was suspected that she might have gone to accused Shahid alias Munna and Sajid Arain but in the morning at about 9-00.a.m, the complainant was informed that his daughter had committed suicide having been over-run by train at Gate No,16/C Abdul Hakim. The complainant suspected that both the aforementioned persons after subjecting her to illicit sex must have turned her out of the house, whereafter she committed suicide out of shame. 5. The local police, as a consequence of the information received about the unnatural death of Mst. Ghazal Iqbal under suspicious circumstances, initiated investigation into the matter. Mazhar Nawaz ASI reached the place where the dead body was lying near the rail tack. Inquest report was prepared. Dead body was taken to THQ Hospital Kabirwala by P.W.8 Aalam Sher Constable for Post Mortem, after the arrival of police at the spot. Post Mortem was conducted the same day at 4-30 p.m. By P.W.9 Dr. Mehmooda Hamid, who observed following 11 injuries on the dead body. Her opinion is also being reproduced:- "EXTERNAL EXAMINATION ' On external examination I found the following injuries on the dead body:- (1) A lacerated wound 5 cm x 1.5 cm muscle deep on the left side of face mideal to left ear. (2) A lacerated wound 3 cm x 3 cm size on the back of left ear lobule. (3) A skin abrasion 6 cm x 3 cm on the left side of face below injury No, 1 . (4) Skin abrasion 8 cm x 4 cm on the right side of face, start from cheek and extend upto the right side of chin. (5) A skin abrasion 2 cm x 1 cm in size on the right side of nose. (6) A diffuse swelling 5 cm x 5 cm on the back of skull (occipitan region) (7) A skin abrasion 10 Gm x 5 cm on the back at left side. (8) Fracture of 8, 9, 10 ribs felt posterior by hand on left side. (rubbing or crackling sensation felt). (9) Multiple abrasion on the abdomen was seen. (10) Multiple abrasion on the front of left and left foot. (11) Multiple abrasion on the right foot and multiple abrasion on the back of both hands was seen. INTERNAL EXAMINATION. Scalp, skull and vertebrae ' Head movable on neck, there was dislocation or fracture of first, second cervical vertbebrae was confirmed by feeling and nothing crackling sound, heard and felt on moving head. ' THORAX. ' Externally fractures of left 8, 9, 10 ribs were confirmed on opening thorax walls by feeling. Walls, Ribs and cartilages. ' Thorais cavity contained blood mostly on left side. ' Pleuras, Larynx, Trachea, Right Lung, were found walls NA Ditonium, Mouth ' Left Lung was injured, and ruptured. On examination blood came out from lung. Paricardium and heart. ' Right chamber contained blood and left chamber was empty. ABDOMEN ' Walls, Paritorium mouth, pharynx and oesophagus, diaphragm were NAD. STOMACH AND ITS CONTENTS ' NAD. Contained liquid food material. Small intestine contained digested food while large intestine was empty containing air. ' Liver, Spleen, kidney were NAD and bladder was full.
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Vaginal Examination. ' No stain or bleeding was seen on shalwar or on her vulva. Hymen was torn. ' Three vaginal swa bs were taken and sealed in a bottle and handed over to the police for semen detection. ' Uterus was antiverted, normal size on opening abdomen. Muscles, Bones and Joints were NAD. OPINION. ' After complete external and internal post mortem examination all the injuries were found ante- mortem. There was dislocation or fracture of first and second cervical vertebrae. Head freely mobile. Fracture of left 8, 9 and 10 ribs. Rupture of left lung, death occurred immediately through natural process due to neuroginic shock and excessive bleeding. The, time which elapsed between injuries and death was immediate and between death and post-mortem 18 to 20 hours." ' The dead body was handed over to the complainant after the post mortem. Sealed Phial received by P.W.8 from the Lady Doctor were deposited by P.W.8 in the Malkhana. Mazhar Nawaz ASI recorded statements of witnesses. He joined into the investigation accused Shahid who was on pre-arrest bail. Abdul Karim Inspector, SHO (C.W.5) had also undertaken investigation. He submitted discharge report in respect of accused Shahid alias Munna and Mst. Sajida alias Gogi in the Court besides getting the proceedings under section 87-88, Cr.P.C. Conducted against absconding accused Saajid. 6. The complainant then filed a direct complaint, (Exh.PB), before the Illaqa Magistrate on 8-1-2004 because the police had found only Saajid accused guilty of offence of illicit sex. However an altogether different story regarding the murder of his daughter Mst. Ghazala Iqbal was introduced in the private complaint by complainant Muhammad Iqbal. 7. Learned trial Court initiated proceeding as a result of the private complaint lodged in his court. After recording preliminary evidence of five witnesses including the evidence of the complainant, the learned trial Court summoned accused/respondents. On 2-10-2004 charge against three accused was framed under sections 16, 10(3) of the said Ordinance, as well as section 302/34 and section 201 of Pakistan Penal Code. The accused did not plead guilty and claimed trial. Muhammad Sajid accused had been declared proclaimed offender. 8. The prosecution produced nine prosecution witnesses at the trial. Eight court witnesses were also examined. The gist of their deposition is given as under:-- ' Muhammad Iqbal, complainant appeared as P. W.1. He endorsed the facts recorded in the complaint (Exh.PB) filed by him before the Illaqa Magistrate. On 8-1-2004. ' Mst. Shehzadan Begum as P.W.2 stated that she along with Mst. Daulat Bibi, Razia Bibi and Taslim Bibi visited the place of occurrence at Railway Gate Abdul Hakim and saw the dead body of Mst. Ghazala Iqbal. She is also a witness of extra/judicial confession of Mst. Sajida alias Gogi accused. ' P.W.3 Mst. Daulat Bibi deposed that she along with Mst. Shehzadan Begum and other ladies went to the spot and saw the dead body of Mst. Ghazala Iqbal. She is another witness of extra-judicial confession of the accused Mst. Sajida alias Gogi. ' Muhammad Amjad appearing as P.W.4 stated that some three years and five months back he had seen the Shahid accused carrying a dead body on his shoulder while Saajid and his sister Sajida alias Gogi were accompanying him. On his inquiry the accused disclosed that they had a guest from Jhang who was being taken to doctor for treatment. Mukhtar Hussain P.W.5 stated that on 10-11-2001 at 8-30.p.m. He along with Muhammad Saeed saw Mst. Sajida alias Gogi in the company of Mst. Ghazala Iqbal entering the house of the latter. ' Muhammad Arif appeared as P.W.6. He stated that one Bashir (since dead) had told him that he had seen the accused carrying a girl who was wearing a black colour chadar with white dots on it. This witness also claims to be a witness of extra-judicial confession of the male accused.
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' Draz Ahmad, Railway Guard, Shorkot Cantt. Appeared at the trial as P.W.7 to state that on 11-11-2001 the train left Abdul Hakim for Darkhana Railway Station at 8-12 a.m. During this journey the train did not meet with any accident, nor it was stopped nor any accident was recorded. ' Aalam Sher Constable appeared as P.W.8 and stated that he escorted the dead body of Mst. Ghazala Iqbal for post-mortem which was conducted in Tehsil Headquarter Hospital Kabirwala. After post-mortem the witness received police papers, postmortem report; sealed phial, last worn clothes of the deceased as well as the dead body. The corpse and last worn clothes were handed over to the complainant. The other articles i.e,, police papers, post-mortem report and sealed phial were deposited with the Moharrir of police station. ' Lady Dr. Mehmooda Hamid appeared as P.W.9 and stated that on 11-11-2001 she conducted post- mortem examination on the dead body of Mst. Ghazala Iqbal. On external appearance she found that blood was oozing from the right ear from inner side. Clotted blood was seen in the left ear. Mud and blood was also present on the shirt of the deceased. On external examination the lady doctor found 1 lwounds of the category of lacerations, swellings and abrasions of different measurements. She had also undertaken vaginal examination. She made a detailed statement and verified the post-mortem report. 9. The learned, trial Court examined eight court witnesses. The gist of their deposition is asunder:-- ' Sarfraz Constable, C.W.1, stated that on 19-11-2001 Muhammad Anwar Moharrar of Police Station, Abdul Hakim handed over to him one sealed phial for onward transmission to the Office of Chemical Examiner Multan which was deposited intact on the same date. ' Shahid Javed, Head Moharrir, C.W.2, stated that on 15-5-2002 a fire broke out in the Malkhana and all the articles were burnt. In this respect he produced Rupt No,13 dated 15-5-2002 (Exh.C.W.2/1). Copy was compared with the original record. ' Muhammad Anwar, ASI C.W.3, stated that on 14-1-2002 after receiving Rupt No,5 dated 11-11-2001, recorded on the statement of complainant Muhammad Iqbal and sent by Muhammad Nawaz, S.I, he formally registered F.I.R. (Exh.0 . W. 3/A). ' Muhammad Usman, Inspector/SHO who had partly investigated the case appeared as C.W.4. He had recorded statements of witnesses and arrested Shahid alias Munna accused on 4-2-2002. Thereafter the investigation was transferred to the District Superintendent Police, Headquarter. ' Abdul Karim, Inspector appeared at the trial as C.W.5. He stated that on 26-11-2002 he received the file of this case and pursuant to the recommendations made therein, he submitted discharge report respect of accused Shahid alias Munna and Mst. Sajida alias Gogi before the court besides getting the proceedings under sections 87/88 of the Code of Criminal Procedure conducted against the absconding accused Sajid. ' Abdul Sattar, C.W.6 is another chance witness who allegedly saw accused Shahid, Mst. Saajda alias Gogi and an unknown person on 11-11-2001 after crossing the Ravi Bridge. The witness also stated that the three persons standing there looked worried. ' Mazhar Nawaz, S.I. Appeared as C.Ws.7 and deposed that on 4-1-2002 he received file of this case. He recorded supplementary statement of complainant and two witnesses namely Muhammad Amjad and Bashir Ahmed. ' Rab Nawaz D.S.P. Headquarter Multan appeared at the trial as C.W.B. He was entrusted with the investigation of this case on 8-5-2002. He obtained query from the lady Doctor in view of the post- mortem report. He recorded the statement of two witnesses and gave his "final report" on 3-9-2002 exonerating two accused i,e. Shahid alias Munna and Mst. Sajida alias Gogi respondents. He had fixed liability upon accused Shahid, the proclaimed offender. 10. After closure of the evidence of the prosecution, the learned trial Court then proceeded to record statements of accused Shahid alias Munna, Mst. Sajida alias Gogi and Haitam Ali under
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section 342 of the Code Criminal Procedure. The appellant/Accused Shahid in answer to question No,9, "why this case against you and why the P.Ws. Have deposed against you?" stated as follows:-- "I am innocent. I have no concern with the alleged occurrence. There were two shops owned by one Allah Ditta Kumhar near my house as well as near the house of complainant. The complainant wanted to purchase those shops but my elder brother Allah Ditta Javaid purchased the above- mentioned shops at higher price than that of the complainant prior to this occurrence Since then my family had not visiting terms with the family of complainant. P.Ws. Are closely related to the complainant party and are inimical towards me. They are interested witnesses. Due to that grudge I have been falsely implicated in this case". ' Accused Haitam Ali answered to the same question as under:-- "I was a Railway employee. On 11-11-2001 I was on duty at. Gate No,0 16 situated at Sidhnai Canal Railway Cross. I am the eye-witness of the commission of suicide committed by Mst. Ghazala deceased on 11-11-2001 at about 8.00 a.m. In this . Regard my statement under section 161, Cr.P.C. Was recorded by various Investigating Officers during the investigation of above mentioned occurrence. The complainant forced me to give affidavit in his favour against the real facts against the accused party but I refused to do so and due to that grudge the complainant has falsely implicated me in this private complaint". ' Haitam Ali accused also made a statement on oath under section 340(2) of the Code of Criminal Procedure. He appeared as D.W.1 and made statement in the following words:- "On 11-11-2001, I was performing my duty as Gate man at Gate No,C-16 near Railway Station Abdul Hakim. After offering Fajar prayer, I was reciting Holy Quran when I saw a girl going towards Ravi Bridge besides railway track. After about 1-1/2 hours I again noticed that the same girl was coming back. Two persons namely Afzal and Chiragh were coming ahead of her. I was on the western side of the railway gate, when the aforesaid three persons including the said girl reached near Eastern gate, the train Dhamaka Express was coming from Abdul Hakim side and moving towards Shorkot and was given clearance signal. At that time Umar Hayat and Imran were also standing beside me. The girl was standing inside the railway gate. The aforesaid Imran asked her to stay back since the train was coming on which the girl moved outside the gate. When the train reached near the gate the said girl again came inside the gate and tried to be run over by the train. When the train passed I saw that she was lying near the railway track. When we approached the said girl, I found that she was lying dead after hitting the train. I asked the aforesaid Afzal to lodge report with the Station Master. When the police arrived at the spot, I narrated the above facts in my statement. I have also been joining the investigation of this case at later stage. The complainant had been approaching me and insisting upon to deviate from my statement, to which I did not agree for which reason now I have been cited as an accused in this direct complaint case". ' In answer to question, "why this case against you and why the P.Ws. And C.Ws. Have deposed against you?, Mst. Sajida alias Gogi made statement answered in the following words:- "I rely upon the answer given by my co-accused Shahid alias Munna. I am, his real sister." 11. The learned trial Court thereafter heard the arguments of the contending parties in the light of evidence brought on record of this case. After assessing the entire evidence the learned trial Court came to the conclusion that "the prosecution evidence in no way can be termed as trustworthy, confidence-inspiring or emanating from unimpeachable source". The learned trial Court also found that the case depended entirely upon circumstantial evidence and in order to bring home guilt of the accused the chain of the events must not be unbroken. Consequently all the accused except Saajid, the absconding accused, were acquitted of all the charges Hence the present appeal against acquittal filed by the complainant to challenge the judgment whereby the three respondents have been acquitted.
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12. We have heard the learned counsel for the parties and perused the record with their assistance. Learned counsel for the appellant placing reliance on judgments reported as 1998 SCM R 2669, 2000 PCr.LJ 320, 2007 SCM R 778, 1972 SCM R 672 and contended that:- ' the entire case is based on circumstantial evidence; the postmortem report favours the complainant as according to the evidence no train accident took place and it was a murder and not suicide case; ' no blood was recovered by the Investigating Officer from the place of occurrence. According to the nature of wounds and lacerations on the face of the victim, did not support the claim that she was hit by the moving train as in that case the skull would have been smashed; ' the chaddar on the dead body of the deceased belonged to Mst. Sajida alias Gogi respondent/accused; ' the accused Sajid who is proclaimed offender in this case is said to be relative of respondents; ' the complainant reported the matter to police on very day of incident on the basis of which Rupt was lodged; the medical report also endorses commission of zina with the deceased/victim; ' respondent/accused Sajida alias Gogi made her extra-judicial confession regarding commission of Zina-bil-Jabr and subsequent murder of Mst. Ghazala Iqbal, before P.W.2 and P. W . 3; and ' the learned trial Court has not appreciated the evidence properly and the impugned judgment is based on surmises and conjunctures and suffers from misreading and non-reading of the evidence. ' Learned counsel for the respondents contended that:- ' Placing reliance on Judgments reported as 2008 SCM R 1103, 2003 SCM R 868, 2006 YLR 3147 and 2004 SD, 392 double presumption of innocence is attached to acquittal of respondents by trial Court; ' there was inordinate delay complainant; in lodging the F.I.R. And the ' the chaddar was not stained with blood and the same was neither sent to the Chemical Examiner nor was produced at the time of evidence; ' extra-judicial confession of Mst. Sajida alias Gogi is a weak piece of evidence which cannot be made basis for conviction; ' there are many contradictions and doubts in the prosecution case and the benefit must be extended to the respondents/accused; ' the respondents/accused have been falsely implicated by the complainant and there was no incriminating evidence on record to connect them with the commission of offence; ' Learned Additional Prosecutor-General for State supported the impugned judgment and argued that the judgment is based on valid reasons and the learned trial Court has rightly acquitted the accused/respondents in this case. 13. We have gone through the file. The evidence, oral and documentary, brought on record by the prosecution and the deposition of court witnesses as well as the statement of accused and the statements of defence witnesses have been perused. Relevant portions of the impugned judgment have been scanned. Arguments advanced on behalf of the contending parties were noted for consideration. 14. After recording the contentions raised by the learned counsel for the appellant we observed that the following points emerge for consideration in this appeal. (a) In an appeal against acquittal usually the courts are reluctant to interfere in the impugned judgment unless it can be shown that the impugned judgment is perverse or based upon non- A reading/misreading of evidence available on record to an extent that it has caused miscarriage of justice. (b) The legal position as regards the acceptability of an extrajudicial confession is that A three fold proof is required to make the extra-judicial confession the basis of conviction.: First; that in fact it
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was made; secondly, that it was voluntarily made and, thirdly; it was truly made." This reference is from the case of Muhammad Kamran versus State reported as 2003 SCM R 1070 at page 1072. (c) That conviction is ordinarily based upon substantive or direct evidence and not on any other type of evidence howsoever convincing it may be. Reference Muhammad Noor versus Member I, Board of Revenue, Balochistan and others 1991 SCM R 643. (d) In order, however, to claim conviction in a case depending upon circumstantial evidence, the prosecution must establish four basic requirements:- (i) The circumstances from which the conclusions are drawn should be fully established. (ii) All the facts must be consistent with the hypothesis. (iii) The circumstances should be of a conclusive nature. (iv) The circumstances should, to a moral sanctity, actually exclude every hypothesis, but the one proposed to be proved. Muhabbat v. State 1990 PCr.LJ 73. ' These principles were also enunciated in the case of State of UP v. Dr. Ravindra Prakash Miltal AIR 1992 Supreme Court 2045. The record of the case must show that a chain of events has been interwoven in such a way that its assessment would lead to inescapable conclusion that accused committed the offence. The evidence is of course to be of high quality. It should inspire confidence in the mind of Judge because direct evidence is not before him. (e) Fundamental principle of universal application in cases depending upon circumstantial evidence is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Wazir Muhammad and another v. The State 2005 SCM R 277 at page 278. (f) It is not necessary to look for many circumstances in order to grant benefit of doubt to an accused. A single circumstance creating a reasonable doubt would entitle the accused to claim benefit of doubt. (g) Grant of benefit of doubt is more than a mere principle of law. It is a rule of prudence which cannot be ignored because it is deemed to be his right. 15. Reverting to the facts of this case we wanted to ascertain whether any material fact was overlooked or not considered by the learned trial Court or some factor alien to the facts proved on record was made the basis of acquittal. We discovered two significant points: a/ that the complainant and accused were neighbours and the former visited the house of latter at 1-00 a.m. And searched it to ascertain whether the deceased Ghazala Iqbal was in the house of the accused and he found all the three accused present in their house and b/ according to the deposition of C.W.8 Rab Nawaz, DSP, Headquarter, who had partly undertaken investigation and recorded statement of witnesses, stated in his examination-in-chief as follows:-- "That Mst. Ghazala deceased was neither abducted nor murdered by any one rather she had gone with absconding accused Saajid son of Talib of her own free accord; that she was subjected to Zina by the aforesaid Saajid who was guilty in this case; that thereafter, the aforesaid accused did not keep the promise made with her on which Mst. Ghazala Iqbal deceased committed suicide by colliding with train out of remorse. I did not find any incriminating evidence against accused Shahid and Mst. Saajida during my investigation." ' In…
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