Thursday 31 May 2012

Circumstantial evidence matters a lot in murder case

PLJ 2010 Cr.C. (Lahore) 50 (DB)
[Multan Bench Multan]

Present: Kazim Ali Malik & Malik Saeed Ejaz, JJ.

MUHAMMAD RAMZAN--Appellant

versus

STATE--Respondent

Crl. Appeal No. 256 of 2002 & Crl. M.R. No. 879 of 2003,
heard on 27.11.2008.

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

----S. 302(b)--Conviction and sentence--Challenge to--Appellant accused was committing of Qatl-i-Amad of his wife--Occurance allegedly took place in bed room of complainants/father of deceased home at night--Accused/convict stated to be Ghar Damad living in his in-laws--Circumstantial evidence--Benefit of doubt--Held: On cross examination, complainant was left with no other option but to admit that previously he got registered a case against, appellant his father and others with an allegation that they had forcibly abducted his daughter/deceased--Abduction case had been cancelled--With this back ground it is easily understandable that the marriage between deceased and appellant was not arrange one--Proven fact that deceased, contracted marriage of her choice with appellant against complainant's wishes--Although hard and fast rules about human conduct and behavior are neither available nor can they be framed, yet it can be safely said in the light of accepted standards of human behavior that the complainant belonging to rural southern Punjab was not supposed to allow to appellant to stay in his house as Ghar Damad, after having contracted a love marriage with his daughter--Theory of Ghar Damad put forward by the complainant is not believable--How can we believe that in presence of father, uncle and cousin of the deceased, the appellant succeeded to kill her in a small room having one door and then made good his escape?--In the light of nature, seat and dimention of 10 injures suffered by the deceased, Court find no difficulty in concluding that she was at the mercy of her assailant and there was none else to save her--Further held: That at relevant time the deceased was alone and her killing was un-witnessed--Combined examination of the motive proved at trial i.e. love marriage of the deceased, venue of the killing i.e. bed room of the complainant, seat/nature/number/dimention of injuries suffered by the deceased, provide a basis to say that it was honour-killing of unfortunate girl, who despite being rustic member of the male dominated rural society dared to contract marriage of her choice with the convict to the annoyance of her complaint father--Prosecution failed to prove the charge beyond any shadow of doubt--Conviction and sentence set aside--Appellant acquitted by giving benefit of doubt--Appeal allowed.    [Pp. 55 & 56] A, B, C, D, E & G

Benefit of Doubt--

----Principle--Benefit of doubt, however slight, is right of the acused.

      [P. 56] F

Mr. Muhammad Nadeem Kanju, Advocate for Appellant.

Mr. Asjad Javed Gural, DPG for Respondent.

Date of hearing: 27.11.2008.

Judgment

Kazim Ali Malik, J.--Murder Reference No. 879 of 2003 and Criminal Appeal No. 256 of 2002 have arisen out of judgment dated 30.03.2002 by a learned Additional Sessions Judge, Khanewal in a case FIR No. 252 of 2000 registered with Police Station Kacha Koh, district Khanewal. We propose to dispose them of by this single judgment.

2.  The alleged occurrence took place at night between 20/21.10.2000 inside the bed room of Allah Ditta, complainant, located in Chak No. 19/9-L, district Khanewal, two miles away from the police station and was reported to Police on the following day in the morning at 6.50 a.m, in which his young daughter Mst. Sakina Bibi suffered death allegedly at the hands of her husband Muhammad Ramzan. Besides Allah Ditta, complainant, Bashir Ahmad, PW.6, and Muhammad Yar (given up PW) claimed to have witnessed the occurrence. Mazhar Noor Khan, SI, PW.9, was investigator of the case, who after having conducted investigation got challaned Muhammad Ramzan, appellant to the Court of Session, Khanewal to stand trial on the charge of Qatl-i-Amad of his wife Mst. Sakina Bibi.

3.  On conclusion of trial, the appellant was convicted under Section 302-b PPC and sentenced to death as Tazir with a further direction to pay Rs. 50,000/- as compensation to legal heirs of the deceased and in case of default in payment thereof to suffer simple imprisonment for six months vide judgment, now under challenge.

4.  The prosecution case set up in the FIR, Ex.PF, in brief, is that five years before the occurrence Mst. Sakina Bibi, deceased, was married to Muhammad Ramzan, appellant. From this wedlock she gave birth to a son Muhammad Hanif, who was three years of age at the time of occurrence. On 20.10.2000 at about 8.00 p.m. Mst. Sakina Bibi, deceased, asked her husband Muhammad Ramzan, appellant, to return her ornaments, upon which they both exchanged hot words. In the meantime Bashir Ahmad son of Fazal and Muhammad Yar, brother of the complainant, also reached there and they both pacified the spouses. Thereafter, Bashir Ahmad and Muhammad Yar, PWs, 7 Allah Ditta, complainant, Mst. Sakina, deceased, and Muhammad Ramzan, appellant, slept in the same room. At about mid night Ramzan, appellant, and Sakina, deceased, again quarreled with each other, upon which the above mentioned three PWs woke up. In presence of father, uncle and another close relation of Mst. Sakina, deceased, her husband Muhammad Ramzan picked up a hatchet from underneath the cot and delivered successive blows, which landed on her neck and arms. The three PWs unsuccessfully attempted to catch fleeing accused, but he made good his escape with hatchet. Mst. Sakina died of her injuries at the spot.

5.  Motive for the occurrence as stated by the complainant was that Muhammad Ramzan, appellant, had been living with him as GHAR DAMAD and he had sold gold ornaments of his deceased wife to her annoyance.

6.  On 21.10.2000 Dr. Azra Rizvi, PW. 1, made autopsy on the dead body of 25 years old Mst. Sakina and found following injuries:--

(i)   An incised wound 12x2 cm on front of lower arm inside wrist joint.

(ii)  Left little finger was found cut and was missing.

(iii) Left ring finger was found cut from the base and its underneath bone was fractured.

(iv)  Incised wound 2x1 cm x muscle deep on front of outer side of left upper arm with corresponding cut on the shirt.

(v)   Incised wound 5x3 cm on right index finger with cut through and through leaving only tag of skin.

(vi)  Incised wound 2x3 cm x bone exposed on middle finger of right hand, which had been partially cut at the base of distal phelex.

(vii) Incised wound of 9 x 4 cm on right shoulder joint, which had cut underneath bone.

(viii)      Incised wound of 6 x 3 cm x muscle deep on front and right side of neck.

(ix)  Incised wound 5x2 cm x muscle deep on right side of the neck, which cut blood vessels.

(x)   Incised wound 14 x 6 cm, which cut spinal card underneath bone of first vertebrae and major blood vessels.

7.  In the opinion of post mortem examiner cause of death was haemorrhage and shock caused by Injury No. 10, which badly damaged and cut spinal card, blood vessels and vertebra. This injury was also sufficient to cause death in ordinary course of nature. All the injuries were ante mortem with sharp edged weapon. Probable time which elapsed between injuries and death was immediate while between death and autopsy was 10 to 12 hours. Under his report Ex.PA, the post mortem examiner concluded that Mst. Sakina died of violence.

8.  After recording the FIR Ex.PF Mazhar Nawaz, SI, PW.9, reached the spot and collected blood stained earth under memo Ex.PG. After preparing injury statement Ex.PB, inquire report Ex.PC dead body was dispatched to the mortuary for autopsy. Thereafter, the IO prepared rough site plan Ex.PI and examined the witnesses. After post mortem examination the escorting constable produced last worn clothes of the deceased, cot, and bedding all blood stained, which were taken into possession vide memo Ex.PD.

9.  On 27.10.2000 Muhammad Ramzan, appellant was arrested in this case and on the same day he led to the recovery of blood stained hatchet, P.7 from ceiling of his residential house, which was seized by means of memo Ex.PH. After completion of investigation the accused was sent up to Court to face trial.

10.  At commencement of trial, Muhammad Ramzan, appellant, was charged under Section 302 PPC for having committed Qatl-i-Amd of his wife Mst. Sakina. He denied the charge and claimed trial.

11.  The prosecution examined 9 PWs in all in support of the charge, Lady Doctor Azra Rizvi, PW. 1, proved post mortem report. Justin Anwar, constable, PW.2, escorted the dead body to the mortuary and attested recovery memo of last worn clothes of the deceased. Muhammad Akbar, PW.3, identified the dead body before post mortem examiner and attested the said memo. Raja Muhammad Iqbal, draftsman, PW.4, proved scaled site plan Ex.PF. Allah Ditta, complainant, PW.5 and his sister's son Bashir Ahmad, PW.6, furnished ocular account of the incident. They also deposed about the motive. Fiaz Hussain, Muharer, PW.7, kept the sealed parcels in safe custody till their onward transmission to the concerned offices. Mazhar Ali, constable, PW.8, transmitted sealed parcels of blood stained earth and hatchet to the office of Chemical Analyst. Mazhar Nawaz, SI, PW.9 was the last prosecution witness who proved his investigation.

12.  When examined under Section 342 Cr.P.C Muhammad Ramzan, appellant, dismissed each piece of prosecution evidence. In an answer to a question as to why this case against him, the appellant says:

"The PWs are closely related to the complainant and are inimical towards me. The complainant previous to this occurrence had also lodged FIR No. 289 of 1997 under Section 452/ 34 PPC at Police Station Katcha Koh against me and thereafter the case was cancelled on statement of Mst. Sakina Bibi, deceased of this case. The complainant wanted to get divorce of her daughter namely Sakina Bibi, deceased, and also wanted to marry her with his close relative, but her daughter did not agree to it. PWs were not present at the time of alleged occurrence. I was also not present at the relevant time in the house of complainant and was at Vehari on my lands. It was a blind murder and later on with the connivance of Police, the complainant involved me in this case falsely due to above said grudge. I am innocent."

13.  The learned counsel for appellant has contended that the prosecution miserably failed to prove the charge with convincing evidence and that learned Trial Court recorded the impugned conviction and sentence in utter disregard of the principles governing the subject of appreciation of evidence. Contrary to this, the learned Law Officer has supported the impugned judgment.

14.  We have heard both the sides and have perused the record very carefully.

15.  Mst. Sakina Bibi admittedly suffered death in the bed room of his father Allah Ditta, complainant. The complainant and his sister's son Bashir Ahmad, PW, deposed that Muhammad Ramzan, appellant, along with the deceased, also slept in the same room being their GHAR DAMAD. The claim of the witnesses in this regard is not receiving support from the record. On cross examination Allah Ditta, complainant, was left with no other option but to admit that previously he got registered a case against Muhammad Ramzan, appellant, his father and others with an allegation that they had forcibly abducted his daughter Mst. Sakina, deceased. The complainant further admitted that the abduction case had been cancelled. With this background it is easily understandable that the marriage between Mst. Sakina Bibi, deceased, and Muhammad Ramzan, appellant, was not arranged one. Either Mst. Sakina Bibi eloped with Muhammad Ramzan, appellant, or she had been taken away by him. In the first instance the complainant did not accept the marriage of Mst. Sakina with Muhammad Ramzan, appellant, and got registered an abduction case against him, which ended in cancellation in terms of compromise or on its merits. However, the appellant put forward his counter version to the effect that Mst. Sakina, deceased, an abductee in that case did not side with her father and in the light of her stance that case was cancelled. Be that as it may it is an established and proven fact that Mst. Sakina, deceased, contracted marriage of her choice with Muhammad Ramzan, appellant against complainant's wishes. Although hard and fast rules about human conduct and behavior are neither available nor can they be framed, yet it can be safely said in the light of accepted standards of human behavior that the complainant belonging to rural southern Punjab was not supposed to allow the appellant to stay in his house as GHAR DAMAD, after having contracted a love marriage with his daughter Mst. Sakina. In the circumstances, the theory of GHAR DAMAD put forward by the complainant is not believable.

16.  The eye-witnesses Allah Ditta, Bashir Ahmad and Muhammad Yar, who claimed to have slept alongwith the deceased and her husband are the father, maternal cousin and paternal uncle of the deceased girl. It is true that in the rural Punjab the people do not have the facility of separate bed rooms for each member of the family, but this is a question of common knowledge that the father, uncle and cousin of the newly wedded girl would not like to share the bed room of groom and bride groom. The claim of the father, uncle and cousin of the deceased girl (PWs) that they had a night in the same room, in which she slept along with her husband, is offensive to recognized and accepted human conduct.

17.  It was/is the prosecution case that Allah Ditta, Bashir Ahmad and Muhammad Yar, father, maternal cousin and paternal uncle of Mst. Sakina were present at the relevant time and in their presence the appellant allegedly assaulted Mst. Sakina with hatchet. The post mortem report discussed in the preceding paragraph demolished the claim of the three witnesses that in their presence the deceased had been done to death. Had the complainant, his real brother and his sister's son been present at the spot, the appellant could not have been in a position to cause as many as 10 injuries to Mst. Sakina with hatchet. The available record does not tell nor could the learned Law Officer point out during course of arguments as to why the three close relations of the deceased did not physically intervene to save her particularly when they were in a position to do so as the appellant was not armed with gun or pistol. How can we believe that in presence of father, uncle and cousin of the deceased, the appellant succeeded to kill her in a small room having one door and then made good his escape? Had the three PWs witnessed the killing in the alleged manner, they would have caught the killer at the spot.

18.  In the light of nature, seat and dimension of 10 injuries suffered by the deceased, we find no difficulty in concluding that she was at the mercy of her assailant and there was none else to save her. She offered maximum resistance and sustained injuries on her hands/fingers but being defenseless she ultimately yielded to the attack. We, therefore, can safely conclude that at relevant time the deceased was alone and her killing was un-witnessed.

19.  Mst. Sakina Bibi suffered death in the bed room of her father. The latter is, therefore, under an obligation to explain as to how she suffered death in his house and in his presence. Keeping in view the venue of murder, the appellant, who contracted run away marriage with the deceased to the annoyance of her father, could be held responsible for the killing. In the given circumstances, the contention of learned defence counsel that the complainant deceitfully brought back his daughter and then killed her to teach her a lesson for having contracted run away marriage, cannot be lightly ignored. Combined examination of the motive proved at trial i.e. love marriage of the deceased; venue of killing i.e. bed room of the complainant; seat/nature/number/dimension of injuries suffered by the deceased, provide a basis to say that it was honour-killing of unfortunate girl, who despite being rustic member of the male dominated rural society dared to contract marriage of her choice with the convict to the annoyance of her complainant father, who had been prosecuting her abduction case against the convict, but unsuccessfully.

20.  It is an established principle of law that the benefit of doubt, however slight, is right of the accused. For the foregoing reasons we are of the considered view that the prosecution failed to prove the charge beyond  any shadow of doubt. We, therefore, accept Criminal Appeal No. 256 of 2002, set aside the impugned conviction and sentence and acquit Muhammad Ramzan, appellant, of the charge by giving him benefit of doubt. He be released forthwith, if not required to be detained in any other case.

21.  Murder Reference No. 879 of 2003 is answered in negative.

22.  The death sentence is not confirmed.

(M.S.A.)    Appeal allowed.


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