2009 S C M R 985

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD ASLAM—-Petitioner

Versus

SABIR HUSSAIN and others—-Respondents

Criminal Petitions Nos.437 and 438 of 2008, decided on 13th February, 2009.

(On appeal from the judgment, dated 17-9-2008 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.1993 and 1996 of 2002).

(a) Penal Code (XLV of 1860)—

—-Ss. 302(b) & 308(2)/34 Constitution of Pakistan (1973), Art.185(3)—Appeal against acquittal—-Evidence of conspiracy being fabricated was not worth reliance—Statement of the prosecution witness regarding extra-judicial confession allegedly made by accused before him was devoid of truth—Accused had no occasion for making such a confessional statement before the paternal first cousin of the deceased, who had not even tried to apprehend the accused alter their confession—Ocular testimony furnished by the sole eye witness stood belied by host of circumstances and her solitary evidence could not be safely relied upon in the absence of any corroboration from independent and unimpeachable source—Recovery of pistol from the accused though matched with one of the crime empties, was useless for the prosecution being open to doubts due to some overwriting and cutting in the recovery memo.—-Medical evidence could not support the prosecution version’s the event of the same having not been proved through trustworthy ocular account–No misreading or non-appraisal of evidence warranting interference could he pointed out in the impugned judgment of acquittal, which was neither fanciful nor conjectural Prosecution case was replete with doubts and infirmities—Occurrence appeared to have gone un-witnessed– Leave to appeal was refused to complainant in circumstances.

Muhammad Rafique v. Mohabbat Khan and others 2008 SCMR 715; Qamar Zaman v. Waseem Iqbal and 5 others 2001 SCMR 1209 and Qalb-e-Abbas alias Nahola v. the State 1997 SCMR 290 ref.

(b) Criminal Procedure Code (V of 1898)—

—-S. 164—Confession—Extra judicial confession—Evidence of extra-judicial confession is always treated as a weak piece of evidence.

—-Ss. 302(b) & 308(2)/34—Evidence—Medical evidence–Scope and extent– Medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of injury and kind of weapon used in the occurrence, but it would not connect the accused with the commission of the crime.

(d) Criminal Procedure Code (V of 1898)—

—-S. 417—Appeal against acquittal—Principles—Law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied alter a finding of not guilty recorded by a competent Court of law Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non reading of evidence—Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 13th February, 2009.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.—Muhammad Aslam, petitioner, through instant petitions, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal from a judgment passed by a learned Division Bench of the Lahore High Court, Lahore, dated 17-9-2008 whereby Criminal Appeal No.1993 of 2002 filed by Mst. Razia Bibi and Sabir Hussain, respondents, and Criminal Appeal No.I996 of 2002 filed by Zafar Ullah, respondent challenging their convictions and sentences, were accepted, resulting in acquittal of respondents and Murder Reference No.879 of 2002, sent by trial Judge against Sabir Hussain, respondent for confirmation of his death sentence, was answered in the negative. However, Criminal Revision No.165 of 2003, filed by petitioner for enhancement of sentence awarded to Mst. Razia Bibi was dismissed.

2. The prosecution story, as reflected in the impugned judgment, is to the effect that on 18-4-2002 at about 5-30 a.m., complainant Muhammad Aslam was informed by a niece of his wife, namely, Mst. Razia Bibi that her father and mother were murdered at about 1-00 a.m. of the same date. When the complainant along with other relatives as well as two other persons namely, Ghulam Rasul, (P.W.5) and Muhammad Anwar (P. W.6), reached the place of occurrence, he was told by Mst. Razia that at about 1-00 a.m. in the night, she along with her father Mehdi Khan and mother Mst. Seeman Bibi, deceased was asleep in the residential room of the house. The outer gate was locked from inside. According to the complainant, four unknown persons of medium height, entered the house and after scaling over the wall barged into the room. On hearing the muffled tone of their footfall, Mst. Razia and her father and mother, woke up but on seeing the accused armed, did not rise from their cots. Out of them, one person tired two shots, one after the other, which hit Mehdi Khan (deceased) in his head, who died at the spot. Thereafter, the said intruders demanded keys of the box, which were provided by her, after taking out from the pocket of Mehdi Khan. She further told the complainant that while the murderers were leaving, her mother said that she had recognized them, upon which one of them fired from his pistol at her mother culminating in her death at the spot. When the accused made their escape good, she started wailing on which her aunt, Mst. Seeman Bibi and cousin Muhammad Yaqoob were attracted to the spot. Since the electric bulbs were on, the accused were also seen by them.

3. Mst. Razia Bibi and Sabir Hussain were tried by learned Additional Sessions Judge, Gujrat, in case F.I.R. No.81, dated 18-4-2002 registered at Police Station City Jalalpur Jattan, District Gujrat for offence under section 302/34, P.P.C. Zafar Ullah being minor was tried separately, regarding the same occurrence by learned Judge, Juvenile Court, Gujrat. At the conclusion of the trials, vide judgments, dated 30-10-2002, Sabir Hussain, respondent was convicted and sentenced to death under section 302(b), P.P.C. on two counts, with direction to pay Rs.1,00,000 each as compensation under section 544-A, Cr.P.C. to legal heirs of the deceased, or in default to undergo six months’ S.1. Mst. Razia Bibi, respondent, was convicted under section 308(2)/34, P.P.C. and sentenced to suffer 14 years imprisonment as “Tazeer” with direction to pay Rs.3,00,000 each as “Diyat” on two counts to legal heirs of the deceased. However, Zafar Ullah, respondent was convicted and sentenced to suffer 14 years’ imprisonment as “Tazeer” under section 308(2)/34, P.P.C. with direction to pay Rs.3,00,000 as “Diyat” to legal heirs of the deceased. He was further directed to pay an amount of Rs.1,00,000 each as compensation under section 544-A, Cr.P.C. on two counts to legal heirs of the deceased or in default to undergo six months’ S.I. Benefit of section 382-B, Cr.P.C. was extended to the accused.

4. Feeling aggrieved, respondents filed appeals, calling in question their convictions and sentences, complainant filed Criminal Revision, seeking enhancement of sentence awarded to Mst. Razia Bibi, respondent. Learned trial Court sent Murder Reference under section 374, Cr.P.C. for confirmation of death sentence inflicted on Sabir Hussain. All the three matters were decided together through judgment impugned herein. The appeals were accepted, Murder Reference was answered in the negative and criminal revision was dismissed, as stated and mentioned above.

5. Alter registration of the case against the unknown culprits, complainant made the supplementary statement and nominated the respondents as perpetrators of the crime.

6. The prosecution, in support of its case, produced 13 witnesses at the trial. Mst. Seeman Bibi (P.W.3), a neighbour of the deceased, furnished eye -witness account of occurrence and charged the accused respondents for commission of offence. Ghulam Jafar S.H.O. (P. W. 13) investigated the case and gave the details of the investigation conducted by him.

7. Dr. Muhammad Safdar Awan, Medical Officer, Aziz Bhatti Shaheed, Hospital, Gujrat (P. W.7) conducted post-mortem examination of Mehdi Khan deceased and noted the following:–

(1) A fire arm entry wound 2 x 2 cm. x cranial cavity deep on the right side of the vertex of the skull with brain mallet manenges and blood coming out of it.

(2) A fire-arm entry wound 2.5 cm. x 2 cm. x cranial cavity deep on the vertex of the skull 3 c.m. left and posterior to the wound No. 1 with brain matter, manenges and blood coming out of it.

8. Dr. Anjum Ara, (PW.9) Medical Officer Maternity Hospital, Gujrat conducted post mortem examination of Mst Seema deceased, and found the following :-

(1) A fire-arm wound of entry 1 x 1 c.m. on the left check 5 cm. away from the left car.

(2) Wound of entry 1 x 1 c.m. on the lateral aspect of the upper left forearm. Wound of exit side 1.5 x 1 c.m. on the interior aspect of left upper arm.

9. After tendering in evidence the report of the Chemical Examiner, (Exh.P.DD.), report of the Serologist (Exh.P.BB.) and the report of Forensic Science Laboratory, (Exh.P.CC.), prosecution’s evidence was closed.

10. The accused in their statements recorded under section 342, Cr. P.C. denied the prosecution allegations and claimed to have been falsely charged. In reply to the question, as to why this case against you, Sabir Hussain, accused stated:-

“I have been falsely involved in this case at the instance of Muhammad Afzal A.S.-I., subordinate to the Investigating Officer/S.H.O., who had registered a false case under the Arms Ordinance against Zafrullah accused vide F.I.R, No.66, dated 2 4-2002 Police Station City J.P. Jattan. I went to the S.II O and the said Afzal A.S.-I. where some hot words were exchanged and later on the accused Zafarullah was released by the police on his personal bond without producing hint in the competent Court. Hence for this very grudge I and Zafarullah accused have been booked in this case falsely, under the public pressure of the vicinity.”

Mst. Razia Bibi accused in answer to a similar question, stated: —

“I am innocent. I being only the offspring of the deceased parents have been booked in this case by the complainant party as the complainant party wanted to usurp my property. Seeman Bibi wanted to marry me with her son Yaqoob P.W. to usurp my properly and when she was not successful and when dacoity by unknown persons was committed in my house and in the said dacoity my parents were murdered and I have been booked in this case later on by the complainant party. Previously dacoity was committed in our house and Aslam complainant has also pursued the same.”

11. The accused, however, declined to appear as their own witness under section 340(2), Cr.P.C.

12. Mr. Zulfiqar Khalid Maluka, Advocate tom the petitioner contended that prosecution had succeeded in proving the charge of “Qatl-e-Amd” and robbery of currency notes and ornaments, against respondents, which fact was supported by the ocular account and medical evidence; that motive as assigned by the prosecution was fully proved; that reports of the Chemical Examiner, Serologist and Forensic Science Laboratory were returned in positive; and that learned High Court had no justification, in the wake of’ the evidence on record, to acquit the respondents. The learned counsel reiterated that ocular account furnished by the prosecution witnesses establishes the commission of offence by respondents, who had no motive to falsely implicate them. According to learned counsel, the impugned judgment passed by learned High Court is arbitrary, fanciful and opposed to the settled norms and guiding principles of safe administration of justice in a criminal matter. The judgment under challenge suffers from the defect of misreading and non-reading of material evidence. Learned High Court gave more weight to the story of the defence without giving any concrete, solid and cogent reasoning whereas on the other hand the prosecution has established its case on the touch-stone of evidence of sole eye-witness. Concluding the arguments, learned counsel contended that the close scrutiny of the prosecution evidence would suggest that ocular account sought sufficient corroboration from other sources and the defence has not been able to create even a slight doubt qua the truthfulness of Mc evidence of eye-witness. The medical evidence and recovery of weapon of offence which was found matched with the crime empties recovered from the spot on the day of occurrence have provided an independent corroboration to the ocular account and motive part of the story would be another strong source of corroboration. The ocular account provided by Mst. Seeman Bibi, a disinterested witness and who had no enmity Io falsely implicate the respondents, which got support from the medical evidence, recovery of weapon of offence at Mc instance of accused, evidence regarding extra-judicial confession and positive report of Forensic Science Laboratory, regarding the matching of crime-empty with the crime weapon recovered trout the respondents, were sufficient for sustaining the conviction of the respondents.

13. The prosecution case binges on the ocular account furnished by Mst. Seeman Bibi (P.W.3), evidence of conspiracy provided by Ghulam Rasool (P.W.5) and Muhammad Anwar (P.W.6) evidence regarding extra judicial confession provided by (P. W8) motive and recovery of pistol i.e. the weapon of offence, from Sabi Hussain, besides looted articles.

14. Having considered the matter from all angles in the light of the material on file, we bud that evidence of conspiracy provided by Ghulam Rasool and Muhammad Anwar (P.Ws.) has not been believed by learned high Court for reasons which arc cogent and not open to legitimate exception. It may be pertinently mentioned here that though both the said witnesses claimed to have come to know about plan of the respondents to’ eliminate the deceased, yet none of them bothered to bring this fact to the notice of the deceased or the police. The testimony of both the witnesses of alleged conspiracy becomes further doubtful on account of the fact that though both of them after receipt of information of the double murder, accompanied complainant Muhammad Aslam (P.W.2) lodger of the F.I.R., yet they did not reveal the said conspiracy to the complainant. Had the said conspiracy been in the knowledge of the said witnesses, they would have definitely informed Muhammad Aslam complainant about it. Needless to point out that F.I.R. was registered against unknown persons as slated above. We feel that the evidence provided by Ghulam Rasool (P.W.5) and Muhammad Anwar (P.W.6) is fabricated and not worth reliance.

15. Insofar as evidence of extra judicial confession is concerned, the same has been provided by Amanat Ali (P.W.8). This piece of evidence has also been discarded for valid and sound reasons. A close scrutiny of the statement of the said witness reveals that he is a paternal first cousin of Mehdi Khan deceased and Mst. Seeman Bibi (P.W.3). During cross-examination, he admitted that he had not tried to apprehend the said accused after their confession. The statement of this witness appears to be devoid of truth. There was no occasion for the accused for making such a confessional statement before P.W.8. Even otherwise, evidence air extra-judicial confession is always treated as a weak piece of evidence, as held by this Court on a number of occasions.

16. Coming to the ocular account, we find that Mst. Seeman Bibi (P.W.3) is the sole eye-witness in this case. She claims to have seen the incident from the rooftop of her house. The statement of Mst. Seeman Bibi (P.W.3) stands belied by host of circumstances as pointed out by learned High Court in para. 13 of the impugned judgment and we have no reason to differ. It would be highly unsafe to base conviction on the solitary evidence of Mst. Seeman Bibi (P.W.3) in the absence of any corroboration of testimony from independent and unimpeachable source.

17. Apart from the ocular evidence, the prosecution has heavily relied upon the recovery of pistol, i.e. the weapon of offence, from Sabir Hussain respondent besides alleged recovery of looted articles. Though the pistol allegedly recovered from Sabir Hussain respondent wed with one of crime-empties as per the report of Forensic Science Laboratory, yet the said recovery is useless for the prosecution, because the same is open to doubts and hardly inspires confidence. The recovery memo., regarding the crime-empties, reveals that some overwriting and cutting was made by the Investigating Officer while preparing the same. The figure showing three crime-empties was entered alter tampering with the original figure, which makes the recovery highly doubtful, as rightly held by learned High Court.

18. Adverting to medical evidence in the peculiar circumstances of the case, it cannot lend any support to the prosecution case especially when the prosecution has failed to prove its allegations against the respondents through trustworthy ocular account. Medical evidence may confirm the ocular evidence with regard to the scat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.

19. Needless to emphasize that it is wroth and truthfulness of ocular account furnished by a witness which is to be taken into consideration for believing the same and relying for conviction. Learned counsel for the petitioner though argued at length but could not point out any misreading or non-appraisal of evidence warranting interference by this Court. There is nothing wrong with the reasons advanced by learned High Court while passing finding of acquittal in favour of the respondents. The ground which found favour with learned High Court in passing the impugned Judgment are neither fanciful nor conjectural. These are backed by the material on record. This Court in the case of Muhammad Rafique v. Mohabbat Khan and others 2008 SCMR 715 observed that:—

“Learned counsel for the petitioner has not been able to satisfy us that in the facts of present case, the acquittal of respondent offended the principle of safe administration of criminal justice and would not create double presumption of innocence in favour of accused. This Court is not supposed to interfere in the judgment of acquittal unless, very strong reasons appeared on the case regarding the perversity of the judgment. The mere fact that witnesses Were natural and occurrence took place in the daylight would not he sufficient to believe or disbelieve the evidence rather the real test is whether the witnesses were truthful and confidence-inspiring in the peculiar facts of the case to be relied upon for conviction. In the present case, the prosecution evidence did not fulfill the above test to the satisfaction of the two Courts and we also do not find any good reason to differ with the High Court. ”

20. This view was reiterated in Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCMR 1209 wherein it was observed:- —

“The consideration warranting interference in appeals against acquittal and in appeals against conviction are quite different. This Court cannot interfere unless the grounds on which the High Court had acquitted the respondents were not supportable from the evidence on record or the judgment of’ acquittal is perverse and reasons thereof are artificial and ridiculous.”

21. In an appeal against acquittal this Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This Court itself has laid down limitation upon itself in challenging with an appeal against acquittal. A judgment of acquittal cannot be reversed unless the same is shown to be shocking, perverse, ridiculous and arbitrary. Unless a substantive or direct evidence is available, conviction cannot be based on any other type of evidence as held by this Court in Qalb-e-Abbas alias Nahola v. The State 1997 SCMR 290.

22. It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 “that the law relating to reappraisal of evidence in appeals a against acquittal is stringent iii that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non-reading of evidence… law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.

23. In view of what has gone above, we find that the sole eye-witness not being independent and natural witness of occurrence, infirmities having been found in the prosecution case and doubts having crept in the prosecution version, the possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of the ocular testimony, it cannot be said that the prosecution had succeeded in proving the guilt of the respondents beyond any reasonable doubt.

24. Having, thus examined all aspects of the matter, we find that it
could not be said that acquittal recorded by the High Court proceeds on reasons which are perverse or whimsical. Resultantly, finding no merit in these petitions, we dismiss the same and refuse to grant leave.

H.BQ./M-35/SC Leave refused.