PLJ 2013 Cr.C.
(Peshawar
[D.I. Khan Bench]
[D.I. Khan Bench]
Present: Qaiser Rashid Khan and Rooh-ul-Amin
Khan, JJ.
ATTAULLAH--Petitioner
versus
STATE and
another--Respondents
Crl. A. No. 72 of
2010, decided on 15.11.2012.
Benefit of
Doubt--
----Golden
rule--Principles of criminal administration of justice that if there is an
element of doubt as to the guilt of the accused, it must be extended to
him--The golden rule of benefit of doubt is initially a rule of prudence, which
cannot be ignored while dispensing justice in according with law--It is based
on the famous maxim that it is better that 10 guilty persons be acquitted
rather than one innocent person is convicted of or acquittal of an accused in
an offence, how so heinous it may be, only a y single doubt in the prosecution
case is sufficient--It will not be out of place to mention here that in the
Islamic Law, the above said principle occupies a pivotal place as is evident
from the following saying of Holy Prophet, PBUH, that mistake of Qazi in releasing a criminal is better than his mistake in
punishing an innocent. [P. 542]
A
PLD
2002 SC 1048 and 2011 SCMR 664 ref.
Appeal against
acquittal--
----Principles
or appraisal of evidence in an appeal against acquittal are altogether
different from the appeal against conviction--Once an accused is acquitted by a
competent Court of law after facing the agonies of a protracted trial, then he
earns the presumption of double innocence which cannot be set at naught by the
appellate Court slightly unless it is established on the basis of available
evidence that the impugned judgment of acquittal is perverse, fanciful or has
resulted into grave miscarriage of justice. [Pp.
542 & 543] B
2004
SCMR 249 and 2009 SCMR 288/496.
Mr. Ghulam Hur Khan Baloch, Advocate for Appellant.
Mr.
Khan Wali Khan Mahsud,
Addl. A.G. for State.
Mr. Sultan Shehryar Khan Marwat, Advocate
for Complainant.
Date of hearing:
15.11.2012.
Judgment
Rooh-ul-Amin Khan, J.--This
Single judgment is directed to dispose off Criminal
Appeal No. 72/2010 filed by the convict-appellant Attaullah,
Criminal Appeal No. 77/2010 filed by the complainant Syed
Obaidullah Shah against the acquittal of
accused-respondents, namely, Hidayatullah and Shakirullah and Criminal Revision No. 22/2010 filed by the
complainant Syed Obaidullah
Shah for enhancement of the sentences so awarded to the convict/appellant Attaullah, because all these three matters are the outcome
of one and the same judgment dated 20/5/2010 passed by the learned Additional
Sessions Judge-V D.I. Khan in case FIR No. 86 dated 29/2/2008 of Police Station
Gomal University D.I. Khan registered under Sections
302/34, PPC.
2. The
prosecution story as gleaned from the initial report lodged by the complainant Hidayatullah on 29/2/2008 at 1830 hours is to the effect
that his niece named Mst. Mumtaz
Alam was married to his son, namely, Attaullah about 15/16 years earlier who has since retired
from Pak Army. On the fateful day at 1715 hours, he (the complainant) was
present in his house while his sons Attaullah and Shakirullah were present in their own rooms. Meanwhile, his
another daughter-in-law, namely, Mst. Shagufta Bibi, wife of Muhammad
Anwar Ali, in order to serve tea to Mst. Mumtaz Alam and her husband Attaullah went inside their room but came out raising hue
and cry and informed him that Mst. Mumtaz Alam was lying dead on
Sofa, stained with blood. On entering the room, he saw that Mst.
Mumtaz Alam was lying on
the sofa drenched in blood, while his son Attaullah
was not available. On query, he was informed that Attaullah
by taking his chadder had gone out sometime ago. On
further search, he found an axe type `toka' stained
with blood lying with the sofa, which was under their domestic use, with which Attaullah had killed his wife Mst.
Mumtaz Alam. Motive for the
offence was stated to be strained relations between the spouses. On the basis
of such report, case FIR ibid was registered.
3. On the
following day, i.e. 1.3.2009, Obaidullah Shah,
brother of deceased, submitted an affidavit to the SHO Police Station Gomal University D.I. Khan and charged the complainant Hidayatullah and his sons Shakirullah
and Attaullah for committing the murder of the
deceased Mst. Mumtaz Alam.
4. On arrest of
the accused and completion of investigation, challan
was put against them in the Court where they were formally charged but they
pleaded innocence and false implication. In order to prove its case against the
accused, the prosecution produced and examined five witnesses and closed its
evidence. Thereafter, statements of the accused were recorded under Section
342, Cr.P.C., but none of them, neither produced any evidence in defence nor opted to be examined on oath in terms of
Section 340(2), Cr.P.C. The learned trial Judge on
weighing the evidence brought on record and considering the arguments of the
learned counsel for the parties addressed at the bar, found accused Attaullah guilty of the offence charged with and thus on
conviction, sentenced him to the imprisonment as Ta'zir
under Section 302(2), PPC and to pay compensation under Section 541-A, Cr.P.C. amounting to Rs. 5,00,000/- to the legal heirs of
the deceased Mst. Mumtaz Alam recoverable as arrears of land revenue, in default to
suffer rigorous imprisonment for six months, while acquitted the accused Hidayatullah and Shakirullah,
vide judgment dated 20.5.2010, which is now under challenge by the
convict-appellant Attaullah and complainant Syed Obaidullah Shah through the
aforesaid two appeals and revision petition.
5. We have
anxiously considered the valuable arguments of the learned counsel for the
parties and thread barely scanned the entire record of the case.
6. The record
depicts that initially the matter was reported by Hidayatullah
son of Asmatullah which was reduced into writing on
the spot by Inayat Ali Shah in the shape of murasila to the effect that at the relevant time he was
present in his house whereas his sons, namely, Attaullah
and Shakirullah were also present in their respective
rooms. According to the report, his daughter-in-law Mst.
Shagufta Bibi, wife of
Anwar Ali went to the room of Attaullah for serving
tea but came out with hue and cry and called him. Upon his arrival, she
informed him that her sister-in-law Mst. Mumtaz Alam is lying dead on
sofa, inside the room. He ran towards the room and saw that his daughter-in-law
was lying dead on the sofa besmeared with blood, while his son Attaullah was not available in the room. On inquiry, he was
informed that sometime before Attaullah had gone away
from the house. On further inquiry, a claver type blood stained axe was
recovered from the spot. The motive was stated as strained relations between
the spouses. On the basis of above said murasila, the
FIR No. 86 was chalked out in the police station.
7. The injury
sheet and inquest report of the deceased were prepared and thereafter the
deceased was shifted to the hospital for post mortem examination. On the next
day, i.e. 1-3-2008, Obaidullah Shah, brother of the
deceased, alongwith other family members reached D.I.
Khan and straightaway went to the police station Gomal
University where they were informed that the dead body of the deceased was
lying in the hospital, so they reached there, collected the dead body from the
hospital and went to the police station for lodging the report of the
occurrence, but they were informed that an FIR had already been registered on
the report of complainant Hidayatullah. He submitted
an affidavit in the police station and charged the complainant Hidayatullah, Shakirullah alongwith Attaullah, husband of
the deceased.
8. Perusal of
the record and evidence on file show that the prosecution case mainly hinges
upon ocular account furnished by Obaidullah Shah,
circumstantial evidence in the shape of recovery of blood from the spot, Toka, blood stained heirs of the deceased, clothes of the
accused Attaullah wearing at the time of occurrence
from the place of occurrence, post-mortem report of the deceased and last but
not the least, motive for the commission of the offence.
9. First of all
we would like to take up the ocular account furnished by Obaidullah
Shah, who was examined as PW-4 in the Court. It is an admitted fact that at the
time of death of the deceased Mst. Mumtaz Alam, he was present in
his ancestral village Qazi Khel
at Dir Bala and was informed about the occurrence by
his uncle Aleemullah at about 9.00 p.m. on 29-2-2008,
thus the basic person who transmitted the information, first time to brother of
the deceased, was Aleemullah, who never came into
sight during investigation of the case. The first link in the chain of
prosecution case is missing. It is not known that how this Informer came to
know and after conveying the information why he disappeared of the screen. The
prosecution has also not bothered to examine Aleemullah,
particularly for linkage of the chain. The missing of this link would make the
matter obscure and ambiguous. This witness further disclosed that on arrival to
Dera Ismail Khan from Upper Dir alongwith
his father and other family members, he straightaway went to police station,
where they were informed that the deceased lady was lying in Zanana Hospital
10. Obaidullah Shah, brother of the deceased, has also alleged
that the relations between the spouses were strained and some two months prior
to the present occurrence, the deceased Mst. Mumtaz Alam was ousted from the
house, by her husband Attaullah, his brother Shakirullah and father Hidayatullah.
Some fifteen days prior to the occurrence, the above named persons had gone to
their house for reconciliation of the matter but the deceased was reluctant to
go with them for the reason that she would be killed by them, but she was
compelled by the family members to go with them.
11. Except the
statement of PW-4, an iota of evidence is not available on record to suggest
that the relations between the spouses were so strained which culminated into
homicide of Mst. Mumtaz Alam. The father and other family members, being present
and available at D.I. Khan have avoided coming forward to shore up the
assertion of complainant by recording their statements with the local police.
The motive for commission of the offence was brought through affidavit, which
has been filed with the local police with a considerable, unexplained delay,
which indicate that the alleged motive is after-thought and manipulated by the
prosecution.
12. No doubt,
crime can be committed without any motive, but once the prosecution alleged a
particular motive, then it became the duty of the prosecution to prove the
same. If the prosecution alleged the motive but failed to prove the same, then
the ocular evidence is required to be scrutinized with great care and caution.
Reliance in this respect is placed on the judgment reported as Noor Muhammad vs. The State and another (2010 SCMR 97).
13. Coming to
the alleged recovery from the spot, suffice it to say that when there is no
eye-witness of the occurrence, then there is nothing to be corroborated by the
recovery from the spot.
According to the
prosecution case, a blood stained axe type Toka,
blood through cotton and cream colour clothes stained
with blood left by the accused Attaullah, allegedly
worn by him at the time of occurrence alongwith a
certificate pertaining to his service in Army, were taken into possession by
the Investigating Officer. The recovery of blood stained clothes will only
affirm the place of occurrence, which is not denied by the accused also. The
main question for determination would be that who had used the axe for the
murder of Mst. Mumtaz Alam? Admittedly, the axe was recovered from the spot lying
near the corpse and simultaneously accused Hidayatullah
and Shakirullah were arrested on 2.3.2008, while Attaullah was arrested on 6-2-2008, but the weapon of
offence recovered from the spot and specimen of the finger prints of the
accused were never sent to the Finger Print Expert for analysis and comparison.
In absence of any expert opinion and positive report, it could not be
ascertained that the axe was used by the accused. The recovery of Toka could not be used as piece of evidence against the
appellant, as admittedly it was not secured at the instance of the appellant, rather it had been recovered by the SHO, from the
spot, lying near the corpse. So far as the recovery of clothes is concerned,
there is nothing available on record to prove that, in fact, these were the
clothes used by Attaullah. The alleged service
certificate has not been produced before the Court and has not been exhibited
during the trial, thus the same could not be made basis for conviction of the
convict-appellant. The medical evidence is always treated of confirmatory
nature and it does not identify the actual culprit involved in commission of
the offence.
14. According to
murasila, first time the scene of occurrence was
witnessed by Mst. Shagufta Bibi, daughter-in-law of the complainant, when she went
inside the room of the deceased for serving tea. On her information, Hidayatullah entered the room and Mst.
Mumtaz Alam was found lying
on Sofa drenched in blood, whereas his son Attaullah
was not present. On inquiry, he came to know that some time before,
his son had left the house. The above report reveals that neither Mst. Shagufta Bibi
nor Hidayatullah has noticed the presence of any body
at the time of occurrence. Mst. Shagufta
Bibi was not brought as witness by the prosecution,
while Hidayatullah was arrayed as accused in the
case. Statement of Hidayatullah was recorded under
Section 342, Cr.P.C. wherein he replied Question No.
4 in the following words:-
"I have
never charged my son Attaullah at any stage and the
so called murasila and FIR was in, fact the result of
malicious and dishonest investigation and I have never signed the FIR."
From the above
discussion, it is evident that the prosecution has failed to establish the
presence of convict/appellant Attaullah in his
dwelling room or residential house, at the time of occurrence. No doubt the
deceased was done to death in her residential room, but in absence of any
direct or substantial evidence, the conviction of the appellant cannot be
maintained merely on account that her husband was bound to explain the murder
of his wife inside the room. We are aware of the judgment of the august Supreme
Court of Pakistan in case titled "Abdul Majeed
vs. The State (2011 SCMR 941), wherein the honorable Supreme Court laid down
the law in the following words:
"7. 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
defense plea, if he takes one. The strangulation to death of the appellant's
wife in his house may be a circumstance to be taken into account along with the
other prosecution evidence. However, this by itself would not be sufficient to
establish the appellant's guilt in the absence of any other evidence of the
prosecution connecting him to the crime. The prosecution has also not been able
to establish that the appellant was present in the house at the time his wife
was murdered ......
8. 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
not 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. ....."
15. Moreso, PW-2, witness of the alleged recovery stated before
the Court that he went to the spot alongwith the I.O.
at 8.00 p.m., which means that at first time, the I.O., namely, Inayat Ali Amjad alongwith PW-2 left the police station at 8.00 p.m, i.e. after chalking out the FIR, as according to the
FIR, the time of occurrence has been shown as 1715 hours and time of report as
1830 hours, while the FIR was registered at 19:45 hours. The statement of this witness
has also contradicted the statement of PW-3 Khalid Javed,
who on receipt of the murasila registered the case at
police station. According to the statement of PW-3, they had received
information in police station prior to murasila, upon
which the SHO alongwith the police party had gone to
the spot. Accused Hidayatullah during his statement
under Section 342, Cr.P.C. has straight away denied
reporting the matter to the I.O. and lodging of the FIR. According to his
statement, he has never charged his son Attaullah at
any stage. The prosecution witnesses have contradicted each other on material
points, particularly on the time of report and recovery from the spot.
16. It is an
admitted fact that the alleged occurrence is not witnessed by any person. Mst. Shagufta Bibi
who being a first witness of the scene of occurrence, was not examined by the
prosecution. Her non-appearance or non-production by the prosecution creates
serious doubts in the prosecution case, as well as indicate the apathetic and
lethargic conduct and behavior of the local police in the case. It is necessary
for the prosecution to prove its case against the accused beyond any shadow of
reasonable doubt and if there is found any doubt therein, then
the accused shall be entitled to it. It is also settled principles of criminal
administration of justice that if there is an element of doubt as to the guilt
of the accused, it must be extended to him. The golden rule of benefit of doubt
is initially a rule of prudence, which cannot be ignored while dispensing
justice in according with law. It is based on the famous maxim that it is
better that 10 guilty persons be acquitted rather than one innocent person is
convicted. For acquittal of an accused in an offence, how so heinous it may be,
only a single doubt in the prosecution case is sufficient. It will not be out
of place to mention here that in the Islamic Law, the above said principle
occupies a pivotal place as is evident from the following saying of Holy
Prophet, PBUH, that mistake of Qazi in releasing a
criminal is better than his mistake in punishing an innocent. In support of the
above discussion, reference may be made to the case titled Ayub
Maseeh vs. The State (PLD 2002 SC 1048) and Khalid Mehmood and another vs. The State (2011 SCMR 664).
17. The instant
case, as discussed above, is pregnant with serious doubts and the
convict-appellant is entitled to outright acquittal on the basis of benefit of
doubt.
18. Likewise,
the principles or appraisal of evidence in an appeal against acquittal are
altogether different from the appeal against conviction. Once an accused is
acquitted by a competent Court of law after
facing the agonies
of a protracted
trial, then he
earns the presumption of double
innocence which cannot be set at naught by the appellate Court slightly unless
it is established on the basis of available evidence that the impugned judgment
of acquittal is perverse, fanciful or has resulted into grave miscarriage of
justice in view of the dicta laid down by the Apex Court in the judgments
reported as 2004 SCMR 249 and 2009 SCMR 288/496. No such infirmity was
pinpointed by the learned counsel for the complainant in the impugned judgment
through the appeal against acquittal.
19. As a
corollary to what is discussed above, we are firm in our view that the
prosecution had not been able to prove its case against the three accused
beyond any shadow of reasonable doubt. As such, we accept Criminal Appeal No.
72/2010 of the convict-appellant Attaullah, set aside
the impugned judgment of conviction and sentence and acquit him of the instant
charge. He shall be set a liberty forthwith if not
wanted in any other case. Similarly, we find no substance in the appeal against
acquittal of the accused-respondents Hidayatullah and
Shakirullah Bearing No. 77/2010, and Criminal
revision No. 22/2010 filed by the complainant for enhancement of the sentences
awarded to the convict-appellant Attaullah which are
accordingly dismissed.
(A.S.) Appeal
accepted
