January 2019

PLJ 2019 Cr.C. 98
[Lahore High Court, Multan Bench]

Present: Sadaqat Ali Khan, J.

MUHAMMAD SAJJAD HAIDER and another--Appellants

versus

STATE etc.--Respondents

Crl. Appeal No. 878 of 2011 and Crl. Rev. No. 297 of 2010,
heard on 14.11.2018.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 410--Criminal appeal--Conviction and sentence--Challenge to--Benefit of doubt--Witness being close relative of deceased did not report the matter to the police at relevant time and remained mum for more than one month, thereafter matter was reported to the police with unexplained delay one month from the date of occurrence, then the statement of this witness was recorded after registration of FIR--Extra-Judicial confession being joint one is an inadmissible evidence--Unnatural death of wife of appellant in the house where they were residing may be a circumstance to be taken into account alongwith the other prosecution evidence, if available. However, this by itself would not be sufficient to establish the guilt of appellant in the absence of any other evidence of the prosecution connecting him with the crime--He would be entitled to its benefit not as a matter of grace or concession, but as of right--Benefit of doubt--Appellant acquitted. [Pp. 100 & 102] A & E

2017 SCMR 486; 2017 SCMR 564; 2009 SCMR 230, ref.

Extra-Judicial confession--

----Extra-Judicial confession being joint one is inadmissible evidence.

[P. 101] B

Medical evidence--

----Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. [P. 101] C

PLJ 2008 SC 687, ref.

Burden of proof--

----It is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. [P. 102] D

Benefit of doubt--

----Principle--It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. if there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused. [P. 102] F

Sardar Mehboob, Advocate with Appellant

Ch. Muhammad Akbar, DPG for State.

M/s. Kh. Qaisar Butt and Ch. Muhammad Imran, Advocates for Complainant.

Date of hearing: 14.11.2018.

Judgment

This single judgment shall dispose of Criminal Appeal No. 878 of 2011 filed by Muhammad Sajjad Haider appellant (against his conviction) and Crl. Revision No. 297 of 2010 filed by Mst. Razia Bibi complainant P.W. 7 against Muhammad Sajjad Haider appellant for enhancement of his sentence, as both the above stated matters have arisen out of the same judgment dated 12.05.2010 passed by learned Addl. Sessions Judge, Lodhran, according to which appellant was convicted and sentenced as under:-

Muhammad Sajjad Haider appellant

He was convicted under Section 302(b), PPC and sentenced to imprisonment for life along with compensation of Rs.2,00,000/- to the legal heirs of Mst. Tahira Manzoor deceased and in default thereof, same can be recovered as arrear of land revenue as mentioned in sub-section (2) of Section 544-A, Cr.P.C. Benefit of Section 382-B, Cr.P.C. was extended to the appellant in case FIR No. 50 dated 27.02.2007 under Sections 302, PPC Police Station Gailay Wal, District Lodhran, whereas his co-accused namely Muhammad Arif and Mst. Shamim were acquitted.

2. I have heard the learned counsel for the appellant as well as learned D.P.G assisted by learned counsel for the complainant and perused the record with their assistance.

3. Mst. Tahira Manzoor (wife of Muhammad Sajjad Haider appellant) was murdered in his house in between night of 9th/10th of January, 2007 whereas FIR was registered on 27.02.2007 at 12:30 a.m. (night) with the delay of about 1 1/2 month on the written application Ex.P.E moved by Mst. Razia Bibi complainant P.W. 7 (real mother of Mst. Tahira Manzoor deceased) who does not claim herself to be the eye-witness of the occurrence rather no person from the prosecution claims to be the eyewitness of the occurrence and case of prosecution is based upon circumstantial evidence which is categorized as under:--

(i) EVIDENCE OF LAST SEEN/WAJTAKKAR

Mst. Maqsood Bibi P.W.8 (sister of husband of Mst. Razia Bibi complainant P.W.7) Who statedly was present in the house of occurrence in the night of occurrence, does not claim herself to be the eye-witness of the occurrence and stated in her statement (examination-in-chief) that she alongwith Mst. Tahira Manzoor deceased on 09.01.2007 went to the house of Muhammad Sajjad Haider appellant. She was made to sleep in another room and Muhammad Sajjad Haider (appellant), Muhammad Arif, Mst. Shamim Bibi accused (since acquitted) and Mst. Tahira Manzoor deceased were sitting in another room. At about 11:00/12:00 (night), she heard noise from the room of Muhqmmqd Sajjad Haider etc. went to the said room wherefrom Muhammad Sajjad Haider appellant came out hearing the noise of her foot steps and asked her to sleep in the room as it was their personal matter she went to sleep in the room. In the morning, Muhammad Sajjad Haider (appellant) Muhammad Arif and Mst. Shamim Bibi accused (since acquitted) told her that Mst. Tahira Manzoor has died. This witness being close relative of Mst. Tahira Manzoor deceased did not report the matter to the police at relevant time and remained mum for more than one month, thereafter matter was reported to the police on 27.02.2007 with unexplained delay of about more than one month from the date of occurrence i.e. 10.1.2007. then statement of this witness (Mst. Maqsood Bibi P.W.8) was recorded after registration of FIR. Said delayed statement of this witness shatters her credibility. Reliance is placed on the case titled “Muhammad Asif vs. The State” (2017 SCMR 486) wherein the Hon’ble Supreme Court of Pakistan has observed at page 492 as under:--

“There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon.”

(ii) EVIDENCE OF EXTRA-JUDICIAL CONFESSION

Evidence of extra-judicial confession has been furnished by Muhammad Hanif P.W.10, who stated in his statement (examination-in-chief) that after 1 1/2 month of the occurrence) Muhammad Sajjad Haider (appellant), Muhammad Arif and Mst. Shamim Bibi accused (since acquitted) came to him and confessed the murder of Mst. Tahira Manzoor deceased. Muhammad Arif and Mst. Shamim Bibi have been acquitted by the learned trial Court by disbelieving the evidence of this P.W. and same evidence cannot be believed to the extent of the appellant. Even otherwise, above extra-judicial confession being joint one is an inadmissible evidence.

(iii) MEDICAL EVIDENCE

Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. Reliance is placed on case titled “Altaf Hussain v. Fakhar Hussain and another” (PLJ 2008 SC 687) in which Hon’ble Supreme Court of Pakistan has observed at page 689 as under:-

“9. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the 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.”

4. Learned DPG submits that Muhammad Sajjad Haider appellant was arrested on 2.3.2007 and nothing was recovered from his possession during investigation.

5. The argument of learned counsel for the complainant that Mst. Tahira Manzoor deceased met her unnatural death in the house of her husband Muhammad Sajjad Haider appellant who does not satisfactorily explain the circumstances of her death which is sufficient proof of his guilt, has no force because the basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The unnatural death of wife of Muhammad Sajjad Haider appellant in the house where they were residing may be a circumstance to be taken into account alongwith the other prosecution evidence, if available. However, this by itself would not be sufficient to establish the guilt of appellant in the absence of any other evidence of the prosecution connecting him with the crime, which is conspicuously missing in this case. Reliance is placed on the case tiled “Arshad Khan vs. The State” (2017 SCMR 564), in which Hon’ble Supreme Court of Pakistan has observed in para 4 at page 567 as under:

“It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person’s wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all.”

6. In view of the above discussion, I entertain serious doubt in my mind regarding participation of the appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance