Ashna ke sath mil kar mubaina qatlo ko shawahad ki kami ki wajah se bari kar dia.
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شواہد اور گواہوں کی غیر معتبر نوعیت کی وجہ سے عدالت نے ملزمان کو سزا سے بری کیا۔
**کیس کی کہانی:**
یہ کیس محمد محیب شاہ اور مسز زریںہ بی بی کے خلاف ہے، جنہیں عدالتِ اضافی سیشن، لیاقت پور، ضلع رحیم یار خان نے قتل کے جرم میں سزا دی تھی۔ اس کیس میں درج ذیل واقعات پیش آئے:
1. **واقعات کا پس منظر:**
- مقتول، حاجور بخش، مسز زریں بی بی کا شوہر تھا، اور محمد محیب شاہ اس کے ساتھ تعلقات رکھتا تھا۔
- 15 فروری 2009 کو رات کے وقت حاجور بخش کو قتل کر دیا گیا۔
2. **گواہی اور شواہد:**
- شکایت کنندہ غلام رسول، جو مقتول کا بھائی تھا، نے رپورٹ درج کروائی کہ اس نے مقتول کی چیخیں سنیں اور جب وہ موقع پر پہنچا تو اس نے دیکھا کہ دونوں ملزمان (محمد محیب شاہ اور مسز زریں بی بی) مقتول کو دھمکا رہے تھے۔
- میڈیکل رپورٹ کے مطابق، مقتول کی موت خنجر سے ہوئی اور پوسٹ مارٹم رپورٹ میں سمو تھنگ (دبانے) کی وجہ سے موت کی تصدیق کی گئی۔
3. **عدالتی فیصلہ:**
- محمد محیب شاہ کو موت کی سزا دی گئی اور اسے 500,000 روپے ہرجانہ ادا کرنے کا حکم دیا گیا۔
- مسز زریں بی بی کو عمر قید کی سزا دی گئی اور اسی طرح 500,000 روپے ہرجانہ ادا کرنے کی ہدایت دی گئی، ورنہ چھ ماہ قید کی سزا ہو گی۔
- مسز زریں بی بی کو دفعات 382-B Cr.P.C کے تحت کچھ رعایت دی گئی۔
4. **اعلیٰ عدالت کا فیصلہ:**
- لاہور ہائی کورٹ، بہاولپور بینچ نے اپیل پر غور کیا اور کہا کہ مقدمے میں کافی عدم ثبوت اور گواہوں کی متضاد گواہیوں کی بنا پر فیصلہ کیا گیا۔
- عدالت نے اپیل منظور کرتے ہوئے ملزمان کو بری کر دیا اور محمد محیب شاہ کی سزائے موت کو بھی کالعدم قرار دیا۔
یہ فیصلہ اس بات کی عکاسی کرتا ہے کہ مقدمے میں شواہد اور گواہوں کی غیر معتبر نوعیت کی وجہ سے عدالت نے ملزمان کو سزا سے بری کیا۔
Must read judgement
JUDGMENT SHEET
LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
Criminal Appeals No. 367 of 2010
Mst. Zarina etc. Versus. The State etc.
M.R No.47-2010
Date of hearing:
09-12-2013
Appellant by: M/S. Sardar Muhammad Aslam Khan and
Syed Muhammad Jamil Anwer Shah,
Advocates
Complainant by Jam Shakeep Iqbal, Advocate
State by: Ch. Asghar Ali Gill, DPG
SADAQAT ALI KHAN,J:- This judgment shall
dispose of Criminal Appeal No. 367 of 2011 filed by Mst. Zarina Bibi
etc vs. The State, and Murder Reference No.47/2010 sent by the
learned trial court for confirmation or otherwise of the sentence of
death awarded to appellant Muhammad Mohib Shah arising out of the
same judgment dated 06.10.2010, passed by the learned Additional
Sessions Judge Liaquatpur, District Rahimyar Khan, in case FIR
No.110/2009 dated 15.02.2009 under Section 302/34 PPC Police
Station Liaquatpur District Bahawalpur District Rahimyar Khan,
according to which appellant Muhammad Mohib Shah was convicted
and sentenced to Death under Section 302 (b) PPC by way of Tazir.
He was further directed to pay the compensation amount Rs.5,00,000/-
(Rupees five Lac) u/s 544-A Cr.P.C., to the legal heirs of the deceased
Hazoor Bakhsh. In case of non- payment of above said compensation
amount, Mohib Shah convict was further directed to undergo S.I for six
M.R No.47-2010,
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(6) months, whereas appellant/Mst. Zarina Bibi was convicted and
sentenced to Imprisonment of life u/s 302 (b) PPC by way of Tazir
for committing the murder of her husband Hazoor Bakhsh. She was
further directed to pay the compensation amount Rs.5,00,000/- (rupees
five lac) u/s 544-A Cr.P.C to the legal heirs of the deceased Hazoor
Bakhsh. In case of non-payment of above said compensation amount,
Mst. Zarina Bibi was further directed to undergo S.I for six (6) months.
The convict Mst. Zaria Bibi was also given the benefit of Section 382-B
Cr.P.C.
2.
Brief facts according to complaint Ex.P.A lodged by Ghulam
Rasool complainant PW-1 are that Hazoor Bakhsh deceased was his
brother. His marriage was solemnized with Mst. Zarina Bibi(accused).
As a result of their marriage, four children were born and they are alive.
Mohib Shah accused had visiting terms to his brother. Mohib Shah
developed illicit relations with his “Bhabhi” Zarina Bibi. Both of them
did not like his brother.
3.
On 15.02.2009 at 12/1:00 a.m. (mid-night), he was sleeping in
his house. He heard a noise coming from the house of Hazoor
Bakhsh, whereupon he, Ashique Hussain and Khuda Bakhsh reached
there. When he reached at the residential room of Hazoor Bakhsh, he
noticed that it was locked. His brother was crying. He had peeped
through the door where both the accused persons were pressing the
neck of Hazoor Bakhsh and thereafter they placed pillow on the mouth
of Hazoor Bakhsh. When they left from the place of occurrence, they
gave iron-rod blow on the head of the deceased. Electric light was on
in the room. Both the accused persons wanted to solemnize their
marriage, therefore, they murdered his brother Hazoor Bakhsh.
M.R No.47-2010,
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8.
On the other hand statements of both the appellants under
Section 342 Cr.P.C were recorded. Mst. Zarina Bibi in a question why
the prosecution witnesses have deposed against you? she replied as
under:-
“The complainant and his witnesses are inter se related and are
related to the deceased also. In conspiracy with each other they
have falsely involved me in this case.”
Q.
Why this case against you?
A.
“The house/place of occurrence where I was residing with my
deceased husband is my name. The complainant in connivance
with the PWs wants to get the possession of that house and
when I refused, the complainant alongwith PWs involved me
falsely in this murder case.”
9.
The appellant Muhammad Mohib Shah in answer to
question why prosecution witnesses have deposed against you?
he replied as under:-
“The complainant and his witnesses are inter se related
and are related to the deceased also. In conspiracy with
each other, they have falsely involved me in this case.”
Q.
Why this case against you?
A.
“The complainant wants to extort some money from me and
when I refused, the complainant alongwith PWs involved me
falsely in this murder case.”
10. After conclusion of the trial, the learned trial court heard the
arguments from both sides and convicted the appellants with above
stated sentences.
11. Hence this appeal.
12. The learned counsel for the appellants submitted that the
judgment of the learned trial court is against law and facts on the file
and is liable to be set aside. It is further submitted that the prosecution
has failed to prove its case beyond any shadow of doubt but the
M.R No.47-2010,
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learned trial court has convicted the appellants in surmises and
conjectures. It is further submitted that there are major discrepancies in
the statements of the prosecution witnesses, thus are not believable. It
is further submitted that medical evidence is also not in line with the
ocular evidence. It is further submitted that alleged recovered pillow
and iron rod being not stained with blood are not corroborated piece of
evidence. Lastly submitted that by accepting appeal of both the
appellants the judgment of the learned trial court may be set aside and
both the appellants may be acquitted.
13.
On the other hand, learned DPG assisted by the learned
counsel for the complainant submitted that the prosecution has
proved its case beyond any shadow of doubt against the present
appellants. It is submitted that the minor discrepancies in the
statements of the PWs may be occurred due to lapse of time which are
not fatal to the prosecution case. It is further submitted that judgment of
the trial court is well-reasoning and rightly both the appellants have
been convicted by the trial court and supported the judgment.
14. We have heard the learned counsel for the parties and have
perused the record.
OCULAR ACCOUNT:-
15. PW-1 Ghulam Rasool is real brother of Hazoor Bukhsh
deceased. According to FIR occurrence took place on 15.02.2009 at
12:00 a.m (mid night) whereas FIR was registered on 15.02.2009 at
about 2/5 p.m with the delay of about 23 hours and for this delay no
plausible explanation has been given by PW-1 Ghulam Rasool
complainant of the case rather he stated in the complaint Ex.PA that he
was stopped by the “Bradri” for decision but decision was not taken
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place. This ambiguous explanation is not acceptable rather creates
doubt and was omitted by the complainant PW-1 in his statement
before the trial court as Dr. Niaz Hussain PW-5 stated that at the time
of post mortem deceased was wearing kaffan . PW-1 stated in his
statement before the police (Ex.PA) that on the night of occurrence on
hue and cry of his brother Hazoor Bukhsh deceased he reached at the
residential room of the deceased, and found there Ashiq Hussain PW-2
and Khuda Bukhsh given up PW and found that the door of the room of
the deceased was bolted from inside and deceased Hazoor Bakhsh
was crying. Complainant PW-1 stated that he alongwith others, PWS
Ashiq Hussain and Khuda Bukhsh saw from the window installed on
the back of the room that Muhammad Mohib Shah and Zarina Bibi
appellants had caught hold of Hazoor Bakhsh and were pouring some
poisonous liquid into the mouth of Hazoor Bakhsh and they pressed his
neck, gave iron rod on the back of his head and both the accused fled
away after seeing them. Whereas while appearing before the trial court
PW-1 stated that he along with Ashiq Hussain PW-1 and PW-2 Khuda
Bukhsh given up. PW-2 after hearing hue and cry of Hazoor Bukhsh
deceased rushed at the residential room of Hazoor Bukhsh deceased
and noticed that it was bolted from inside and his brother crying. PW-1
stated that he peeped through the door and found that both the
accused persons were pressing the neck of Hazoor Bukhsh and
thereafter they placed pillow on the mouth of Hazoor Bukhsh deceased
and gave blow of iron rod on the head of the deceased and electricity
light was on in the room. The statement of PW-1 is a result of
dishonest improvement and is self contradictory and he did not state in
the statement Ex.PA before the police that accused placed pillow on
M.R No.47-2010,
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the mouth of Hazoor Bukhsh deceased and further electricity light was
on in the room. Likewise he has not stated in Ex.PA that he alongwith
PW-2 Ashiq Ali had peeped through the door and saw the occurrence.
He stated in cross examination that he had recorded in his statement
Ex.PA that the accused persons put pillow on the mouth of his brother
Hazoor Bukhsh deceased which was confronted with Ex.P-A where it
was not so recorded. He stated in cross examination that he had not
mentioned in application Ex.PA that electricity bulb was on volunteered
at the time of submission of copy of Ex.PA, he was upset due to the
death of his brother and stated that source of light was which of
electric bulb was mentioned by him in supplementary statement. He
stated in cross examination that room of Hazoor Bukhsh was locked.
Confronted with Ex.PA where it was not so recorded, where it is
mentioned that room was bolted from inside. He stated in statement
that he had stated in Ex.PA that both accused persons have murdered
his brother because they wanted to solemnize their marriage which
was confronted with Ex.PA, where it was not so recorded. He stated
before the trial court in cross examination that he had stated in Ex.PA
that both the accused persons poured some poisonous liquid into the
mouth of his brother. He stated that he had not seen in which port both
the accused were carrying poisonous liquid because he was
witnessing the occurrence through small hole. He stated that eldest
daughter of deceased was not at home she had already gone to the
house of her maternal-grand- mother, whereas three remaining
children were at house.
16. PW-2 Ashique Hussain stated in his statement when police
came to the place of occurrence Mst. Zarina bibi produced pillow P-1
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before the police which was taken into possession by the police
through recovery memo Ex.PB. He stated in cross examination that
first of all accused persons poured poisonous into the mouth of
Hazoor Bukhsh thereafter they tried to strangulate him and then they
put pillow on his mouth. He stated in cross examination that he had
made a statement before the police that both the accused persons put
pillow on the mouth of Hazoor Bakhsh which was confronted as Ex.DA
where it was not so recorded. He stated that he is neighbourer of the
complainant. He stated in cross examination that first of all he
witnessed the occurrence. He stated in cross examination that he
peeped through the hole of the door, however, the door was bolted
from inside. He stated that although there was bolt of that door from
the outside but it was not bolted from outside. Since he was upset,
therefore, he had not bolted the door from out side. He stated that
Muhammad Mohib Shah made good his escape from the back side of
the window. He stated that they beat the accused Mst. Zarina Bibi,
who was present there after the occurrence. He stated that he made a
statement during the investigation that he witnessed the occurrence by
peeping through the door which was confronted to him as Ex.D.A,
where it was so recorded. Ex.PL is a site plan in which point No.2 was
shown as window of the room, which is the place of eye witness from
where they saw the occurrence, which is contradictory to the statement
of the above two witnesses PW-1 and PW-2, who stated in their
statements before the trial court that they had seen the occurrence
from the hole of the door of the room. Ex.Pl also does not show the
house of of PW-1 or PW-2 adjacent to the house of the deceased i.e
place of occurrence.
R No.47-2010,
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MEDICAL EVIDENCE
17. PW-5 is Dr. Niaz Hussain, M.O, T.H.Q Hispital Liaquatpur,
who wile examining the dead body observed as under:-
EXTERNAL APPEARANCE
“It was a dead body, middle stature, wearing Kaffan,
received
examine/ No mark of ligature on the neck.”
Injuries observed as under:-
INJURIES
“ A lacerated wound ½ c.m * 1/1 c.m occipital region.”
In remarks observed as under:-
“After careful external & Internal examination of the dead
body, at that time, I could not opine the cause of death because
the expert reports were not available, but now the said reports
are available on record. According to report Histopathologist
Exh.PE vide reference No.363 F.H dated 27.04.2009, Lab
No.142 of 2009 dated 23.02.2009, which is reproduced as
under:-
“Histological examination of the heart sections reveals
patent coronaries and unremarkable myocardium. The lung
sections reveal vascular congestion and presence of RBCs
inside alveoll. Histological examination of the hyoid bone
sections reveals bone. No ante mortem hemorrhages are seen.”
According to report of Chemical Examiner Exh.PF vide
reference No.266 PCF.H dated 02.04.2009, which is reproduced
as under:-
“Poison is not detected in the above articles.”
Keeping in view the above said reports, I am of the opinion
that the death in this case had occurred ASPHYXIA caused by
smothering, which was sufficient to cause death in ordinary
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course of nature. Probable time between the injury and death
was 15 minutes, whereas between the death and post mortem, it
was about within 15 hours.
The post mortem report Exh.PG is the correct carbon copy
of the original report, which is in my hand and bears my
signatures and seal. The diagrams showing the seat of injuries
are Exh.PG/1 & Exh.PG/2 which were drawn by me and it bears
by signatures & seal.
After post mortem examination, the dead body and the last
worn clothes of the deceased alongwith other papers were
handed over to Atta Muhammad constable (PW3). I endorsed
the injury statement Exh.PH and the inquest report Exh.PJ and
the same are signed by me and bear my signatures also.”
18.
He stated in cross examination that it is correct that injury on the
head is not cause of death. He stated that it is corrected that no froth
was coming from the mouth of the deceased. He stated that no
bleeding was coming from the nostril as well as from both the ears. He
stated that both the lungs of the deceased were healthy.
19. While considering the medical evidence and discrepancies in
the statements of PW-1 and PW-2 and dishonest improvement and
omissions made by the said PWS during the trial we are of the view
that PW-1 and PW-2 were not present at the time of occurrence; hence
their evidence is disbelieved. Medical evidence itself does not identify
culprit.
RECOVERIES.
20.
Recovery of iron rod P-2 being not stained with blood is
inconsequential, likewise recovery of pillow P-1 being not blood
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stained, is not corroboratory evidence. Otherwise evidence of recovery
is mere corroboratory evidence. When the basic evidence i.e ocular
account has been disbelieved, this corroboratory evidence has no
value.
21. Burden of the prosecution to prove its case against the accused
beyond reasonable doubt remains throughout upon it and does not
shift to the accused. Eye witness had not been able to establish their
presence at the scene of occurrence and the crime had remained unwitnessed in the instant case. In absence of positive evidence against
the accused they could not be convicted on the presumption that since
the murder of her husband had taken place in the house where spouse
was living it could only be her and no other, who had murdered the
deceased.
It is also held in the case titled “Abdul Majeed Vs. The State”
(2011 SCMR 941) as under:-
“ In the absence of any positive prosecution evidence, the
appellant cannot be convicted on presumption that since
the murder of his wife took place in his house it can only be
him and no other who had murdered the deceased. The
conviction and sentence of the appellant on this single
circumstance cannot be sustained in law. The appeal is,
therefore, allowed. The conviction and sentence of the
appellant are set aside and he is acquitted of the charge
against him. He shall be set at liberty if not required in any
other case.”
22.
From the facts and circumstances narrated above, we
are persuaded to hold that prosecution has badly failed to bring the
guilt of the appellant to the hilt and the learned trial court was not justified in
convicting the appellants while basing upon untrust worthy and
uncorroborated evidence deposed by interested witnesses which even
M.R No.47-2010,
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otherwise is full of material contradictions specially unreliable story deposed
by the complainant unexplained delay in lodging the crime report dishonest
improvement and material omissions in their statements, contradictions in the
medical and ocular account, we are of the view that the prosecution has
badly failed to bring on record an iota of confidence inspiring evidence
against both the appellants. As per dictates of law benefit of every doubt is to
be extended in favour of the accused.
23.
Resultantly salutary principle of benefit of doubt is extended in favour
of the appellants. This criminal appeal No.367/2010 filed by Mst. Zarina Bibi
d/o Haji Muhammad widow of Hazoor Bakhsh and Muhammad Mohib Shah
son of Shabbir Hussain Shah is accepted and conviction and sentence
recorded by the learned trial court vide judgment dated 06.10.2010 is set
aside as a consequence whereof the present appellants are ordered to be
acquitted of the charges in case FIR No.110/2009 dated 15.02.2009 under
Section 302/34 PPC Police Station Liaquatpur District Bahawalpur District
Rahimyar Khan and directed to be released forthwith if not required in any
other case. Murder reference No.47/2010 sent by the learned
trial court for confirmation of death sentence inflicted upon
Muhammad Mohib Shah is answered in negative. Death
sentence is not confirmed.
(Altaf Ibrahim Qureshi) (Sadaqat Ali Khan)
Judge
Judge