IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Justice Syed Hasan Azhar Rizvi
Justice Musarrat Hilali
Justice Naeem Akhtar Afghan
Jail Petition No. 181 of 2016
A/w.
Criminal Petition No. 154-L of 2016
(On appeal against the judgment dated 02.12.2015 of the Lahore
High Court, Lahore passed in Crl. A. No. 150-J of 2014 alongwith
M.R. No. 497 of 2011)
Mst. Saima Noreen (J.P. No. 181/2016)
Muhammad Shafiq (Crl.P. No. 154-L/2016) …. Petitioners
Versus
The State
(In both petitions) …. Respondent
For the petitioners: Mian Liaquat Ali, ASC
(J.P. No. 181/2016)
(Crl.P. No. 154-L/2016): Ch. Nisar Ahmed Kausar, ASC
(Through video link from Lahore)
For the complainant: In person
For the state: Mr. Irfan Zia, Addl.P.G., Punjab
Date of hearing: 17.04.2024
JUDGMENT
NAEEM AKHTAR AFGHAN, J. While acquitting co-accused Arfan Ullah
Son of Muhammad Ramzan, the petitioner Saima Noreen (widow of deceased
Muhammad Akmal) and the petitioner Muhammad Shafique son of Salamat Ali
(with whom the petitioner Saima Noreen allegedly had illicit relations) were
awarded conviction and sentence under section 302 (b)/34 PPC as follows by the
court of learned Additional Sessions Judge, Okara (‘the Trial Court’) vide
judgment dated 19.11.2011 in FIR No. 727/2010, Police Station (‘P.S.’) A-
Division Okara which was got registered on 15.11.2010 by Muhammad Arshad
son of Babu Khan (brother of deceased Muhammad Akmal) for committing
murder of deceased Muhammad Akmal by strangulation:
“I hold Siama Noreen accused guilty of qatl-e-amd of Akmal
deceased, she is convicted U/S 302(b)/34 PPC and is awarded the
sentence of death, she shall be hanged by neck till death. She shall
also pay Rs.2,00,000/- as compensation U/S 544-A Cr.PC. to the
legal heirs of deceased Akmal and in default thereof to further
under go six months S.I.
Criminal Petition No. 181 of 2016 etc.
2
35. I also hold Muhammad Shafique guilt of qatl-e-amd of Akmal
deceased. He is convicted U/S 302(b)/34 PPC and is awarded
sentence of death, he shall be hanged by neck till death, he shall
also pay Rs.2,00,000/- as compensation U/S 544-A Cr.PC. to the
legal heirs of deceased Akmal and in default thereof to further
under go six months S.I.”
2. Both the petitioners challenged their conviction and sentence by filing
Criminal Appeal No. 150-J of 2014 before Lahore High Court, Lahore (‘the
Appellate Court’). Murder Reference No. 497 of 2011 was also forwarded to the
Appellate Court under section 374 of the Criminal Procedure Code, 1898
(‘Cr.P.C.’).
3. While dismissing the appeal of both the petitioners and maintaining their
conviction under section 302 (b)/34 PPC, their sentence of death was converted
to imprisonment for life as Ta’zir with benefit of section 382-B Cr.P.C, the
amount of compensation to be paid to the legal heirs of deceased was ordered to
remain intact and murder reference was answered in negative by the Appellate
Court vide impugned judgment dated 02.12.2015. Both the petitioners have filed
the instant petitions to challenge their conviction and sentence.
4. After hearing learned counsel for the petitioners, the complainant in
person and learned Additional Prosecutor General, Punjab we have perused the
available record.
It is the case of the prosecution that in the night of 15.11.2010 at about 2:00
a.m. PW-3 (Muhammad Arshad brother of deceased Muhammad Akmal), PW-4
(Adnan Abid Hussain brother in law of deceased Muhammad Akmal and PW-3)
along with Muhammad Ashraf (paternal uncle of deceased Muhammad Akmal
who has not been produced by the prosecution at the trial) were sleeping in the
adjoining room; they awoke on hearing the alarm and rushed to the adjacent
room of deceased Muhammad Akmal wherein an electric bulb was on; they saw
the petitioner Muhammad Shafique sitting on the chest of deceased Muhammad
Akmal strangulating him with a rope wrapped around his neck while petitioner
Saima Noreen and acquitted accused Arfan Ullah were holding the legs of
deceased Muhammad Akmal whose hands and feet were tied; when they reached
near them, the petitioner Muhammad Shafique and acquitted accused Arfan
Ullah pointed out firearms (pistols) towards them; they were threatened for life;
due to fear, they stopped and all the accused fled while pointing their pistols
towards them; they untied hands and feet of deceased Muhammad Akmal and
also removed the rope from his neck but deceased Muhammad Akmal had
succumbed to the injury; they raised alarm and the Mohalladars gathered; after
half an hour the police reached and PW-8 (investigating officer Muhammad
Criminal Petition No. 181 of 2016 etc.
3
Ashraf Lashari S.I.) took into possession two ropes, one mat and two pillows from
the place of occurrence vide recovery memo.
5. It is further the case of the prosecution that the petitioner Saima Noreen
was not bearing good character and she had illicit relations with petitioner
Muhammad Shafique; petitioner Muhammad Shafique used to visit petitioner
Saima Noreen on the pretext of being her relative and same was objected by
deceased Muhammad Akmal who was having suspicion about their character
and he used to forbid petitioner Muhammad Shafique from visiting his house
due to which usually quarrel took place between deceased Muhammad Akmal
and the petitioner Saima Noreen.
6. It is the defence plea of the petitioner Saima Noreen that she being legal
wedded wife of deceased Muhammad Akmal had no relations with petitioner
Muhammad Shafique and he never visited their house; her husband deceased
Muhammad Akmal, being tailor master, remained in Saudi Arabia for about
seven years wherefrom he used to send his earnings to PW-3; PW-3 had usurped
the earnings of deceased Muhammad Akmal; when her husband/deceased
Muhammad Akmal returned back and settled in Okara, she forced her husband
to demand the usurped amount from PW-3 due to which an altercation had
taken place between her and PW-3 and she along with her four children were
expelled from the house of her husband about one month prior to the
occurrence; she was living a deserted life; she was informed about the death of
her husband during day time of 15.11.2010 and when she along with her
children reached the house of her husband, she was arrested by the police and
was falsely implicated in the murder of her husband at the behest of PW-3 who
intended to usurp the earnings of her husband and his properties.
7. It is the defence plea of petitioner Muhammad Shafique that he has no
relations with the petitioner Saima Noreen; he was not present in the house of
deceased in the night of the occurrence; he was active political worker of the
opponent of sitting MNA Naseer Bhutta with whom Muhammad Ajmal (another
brother of deceased Muhammad Akmal) was working as his personal employee;
for being active political worker of the opponent of MNA Naseer Bhutta and being
headman of his family, he has falsely been implicated in the instant case by
PW-3 at the behest of MNA Naseer Bhutta.
8. It was the defence plea of acquitted accused Arfan Ullah that he, being an
employee of petitioner Muhammad Shafique, was falsely involved by PW-3 with
the connivance of the investigating officer who had conducted raids at his shop
in Lahore for arrest of petitioner Muhammad Shafique and had exerted pressure
upon him for getting the petitioner Muhammad Shafique arrested; due to his
Criminal Petition No. 181 of 2016 etc.
4
failure to disclose the whereabouts of the petitioner Muhammad Shafique, he
was falsely implicated by the investigating officer with the connivance of PW-3.
9. According to PW-8, PW-3 presented an application (Ex.PC) to him for
registration of FIR which was sent to police station through Muhammad Ramzan
Constable (not produced at the trial) on the basis whereof FIR No. 727/2010 was
registered with P.S. A-Division, Okara. The acquitted accused Arfan Ullah was
not nominated in the FIR and his name was introduced subsequently by PW-3
through a supplementary statement.
10. According to PW-3 and PW-4 the occurrence took place in the night of
15.11.2010 at 02:00 a.m.. According to the statements of PW-3 and PW-4
recorded at the trial, they both did not inform the police about the occurrence.
None of the prosecution witness has disclosed at the trial as to who had informed
the police about the occurrence or how the police reached at the place of
occurrence when neither any relative of deceased Muhammad Akmal nor any
inhabitant of the area had informed the police about the occurrence.
11. Record transpires that computer typed application (Ex.PC) in Urdu
language bearing date nil, was submitted to SHO P.S. A-Division, Okara by PW-3
for registering FIR. According to the contents of FIR No. 727/2010 and statement
of PW-8, the computer typed application in Urdu was submitted to him by PW-3
in the night of occurrence at about 02:55 a.m.
None at the trial, including PW-3, has explained as to how Ex.PC was got
typed on computer in the night of the occurrence at 02:55 a.m.
12. According to PW-8 he had reached the place of occurrence along with
police officials including Muhammad Arif Head Constable (PW-7) and
Muhammad Ramzan where at 02:55 a.m. he received Ex.PC from PW-3 for
registering FIR.
The above has been contradicted by PW-7 with the statement that he along
with PW-8 had reached the place of occurrence at 06:00 a.m. on 15.11.2010.
13. The time of taking the dead body to the hospital by PW-7 i.e. 06:30 a.m.
on 15.11.2010 has been contradicted by Dr. Shakeel Anjum, Medical Officer,
DHQ Hospital Okara (PW-6) who stated that the dead body was brought by PW-7
for postmortem on 15.11.2020 at 01:30 p.m.
14. The site map mentions about only one door of the room of deceased
Muhammad Akmal but PW-3 and PW-4 have stated that the room of deceased
was having two doors. According to statement of PW-3 and PW-4 there was only
Criminal Petition No. 181 of 2016 etc.
5
one entrance door of the house of the deceased but the site map reveals that
another door also existed in the Baithak of the house of the deceased which was
opening in the street.
15. The statements of PW-3, PW-4, PW-7 and PW-8 reveal of material
contradictions and discrepancies which have shaken veracity of their testimony.
According to the settled principles, material contradictions in evidence in a
criminal case create doubt in the case of the prosecution and lead to reasonable
possibility of the witnesses being not truthful. Reference in this regard is made to
the cases of ‘Buland Khan v. The State’1, ‘Muhammad Riaz v. Muhammad
Zaman’2 and ‘Basharat Ali v. Muhammad Safdar’3.
16. According to the evidence available on record, PW-3 was married with
Rahila and from the wedlock he was having children. According to PW-3, at the
time of occurrence he along with his family, family of deceased Muhammad
Akmal and his brother Muhammad Ajmal were residing in the house where the
occurrence had taken place. According to PW-3 they heard the voice of elder
daughter (Aisha aged about 8/9 years) of deceased Muhammad Akmal who was
crying and saying to them that her father was given beating due to which they
awoke and rushed towards the door of the room of deceased Muhammad Akmal
which was not closed and was slightly open.
17. The elder daughter Aisha (aged about 8/9 years) of deceased Muhammad
Akmal was mature enough to testify for supporting/corroborating the above
version of PW-3 and PW-4 but the investigating officer did not record her
statement and she was also not produced at the trial by the prosecution.
Surprisingly, the statement of the Mst. Rahila (wife of PW-3) was also not
recorded by the investigating officer nor she was produced at the trial by the
prosecution to lend corroboration to the version of PW-3 and PW-4.
18. PW-3 as well as the site map is silent as to why PW-4 and Muhammad
Ashraf were sleeping with PW-3 in the night of occurrence in the adjacent room
and if so, where the wife and children of PW-3 were sleeping in the house at the
time of the occurrence.
19. It has come on record that PW-4 was resident of Chak No. 5/4-L at a
distance of ten kilometers from Okara while Muhammad Ashraf (paternal uncle
of PW-3 and deceased Muhammad Akmal introduced as eye witness during
1
1990 SCMR 170
2
PLD 2005 SC 494
3
2017 SCMR 1601
Criminal Petition No. 181 of 2016 etc.
6
investigation but not produced by the prosecution at the trial) was resident of
Chak No. 32/2-R at a distance of 7/8 kilometers from Okara.
PW-3 and PW-4 have failed to furnish any convincing reason for stay of
Muhammad Ashraf and PW-4 in the house of PW-3 in the night of the
occurrence.
20. Surprisingly, PW-3, PW-4 and Muhammad Ashraf, claiming to be the eye
witnesses of the occurrence, did not take the dead body of deceased Muhammad
Akmal to the hospital immediately after the occurrence. As per evidence available
on record, the dead body of deceased Muhammad Akmal was taken to the
hospital by Muhammad Arif Head Constable (PW-7). According to the statement
of PW-7 he shifted the dead body to hospital around 06:30 a.m. on 15.11.2010
and at that time the investigating officer (PW-8) was also accompanying him.
PW-7 has not mentioned about the presence of PW-3, PW-4 and Muhammad
Ashraf or their accompanying to the hospital with the dead body.
The above aspect also creates serious doubt about the presence of PW-3,
PW-4 and Muhammad Ashraf in the house of deceased Muhammad Akmal at the
time of occurrence.
21. According to the statements of PW-3 and PW-4 when they awoke on alarm
they rushed to the room of deceased and on sliding the door (which was not
closed) they saw the petitioner Muhammad Shafique strangulating the deceased
and they saw the petitioner Saima Noreen and acquitted accused Arfan Ullah
holding the legs of deceased Muhammad Akmal but they put no resistance to the
accused nor took any step to save the life of deceased Muhammad Akmal.
It is alleged by PW-3 and PW-4 that they were restrained due to aiming of
firearms by petitioner Muhammad Shafique and acquitted accused Arfan Ullah.
The above version of PW-3 and PW-4 is lacking corroboration as during
investigation no firearms were recovered from the petitioner Muhammad
Shafique and acquitted accused Arfan Ullah.
22. The unnatural conduct of PW-3, PW-4 and Muhammad Ashraf reveals of
their non-presence in the house of deceased Muhammad Akmal at the time of
occurrence.
23. While recording their statements at the trial, PW-3 and PW-4 have also
made dishonest improvements which were duly confronted to them by the
learned defence counsel. The dishonest improvements made by PW-3 and PW-4
in their statements at the trial have rendered their testimony unworthy of
Criminal Petition No. 181 of 2016 etc.
7
reliance. According to the settled principles of law dishonest improvements made
by a witness in his statement to strengthen the prosecution case casts serious
doubt about veracity of his statement and makes the same untrustworthy and
unreliable. Reference in this regard is made to the cases of ‘Sardar Bibi v.
Munir Ahmed’4, ‘Muhammad Arif v. The State’5 and ‘Naveed Asghar v. The
State’6.
24. The postmortem report of the deceased is accompanied by report (Ex.PE)
of the Chemical Examiner and Histopathologist of Government of Punjab
contents whereof reveal that viscera (internal organs) of deceased Muhammad
Akmal i.e. his stomach with contents, small and large gut with contents, liver,
spleen, kidneys, lungs and saturated saline were sent for analysis and the
following result was found:
“Tranquillizer belonging to benzodiazepine group is
detected in the above viscera. However quantitative estimation is
not possible.”
Benzodiazepines colloquially called “benzos, are a class of depressant drugs
that produce sedition and hypnosis. The most common benzodiazepines are the
prescription drugs Valium, Xanax, Halicon, Ativan and Klonopin. In an overdose
benzodiazepines can cause dangerous deep unconsciousness.
25. The report of the Chemical Examiner transpires that before strangulation,
the deceased was administered tranquilizer.
26. At the trial the prosecution has not produced Muhammad Ashraf (paternal
uncle of deceased Muhammad Akmal) who was mentioned as an eye witness by
PW-3 and PW-4. The prosecution has also not produced Muhammad Ajmal
(brother of deceased Muhammad Akmal and PW-3) about whom it has come on
record that he used to reside in the Baithak of the house in a room whereof the
occurrence had taken place and he had identified the dead body in the hospital
at the time of postmortem examination by PW-6.
An adverse inference is drawn under Article 129(g) of the Qanoon-e-Shahadat
Order, 1984 to the effect that had the above two witnesses been produced by the
prosecution at the trial, they would not have supported the version of the
prosecution.
27. On reappraisal of the evidence available on record, we have no hesitation
to conclude that the occurrence of the death of deceased Muhammad Akmal by
4
2017 SCMR 344
5
2019 SCMR 631
6
PLD 2021 SC 600
Criminal Petition No. 181 of 2016 etc.
8
strangulation was unwitnessed; the conduct of PW-8 was not fair and impartial
as an investigating officer; fabrication has been made during investigation by
PW-3 with the connivance of PW-8 to falsely implicate the petitioners by planting
himself, PW-4 and Muhammad Ashraf as eye witnesses of the occurrence.
It is further concluded that, the prosecution has miserably failed to prove the
charge against both the petitioners beyond reasonable doubt; the conviction and
sentence awarded to both the petitioners by the Trial Court as well as by the
Appellate Court is result of mis-reading and mis-appreciation of the evidence
available on the record.
28. Both the petitions have already been converted into appeals, the same
have been allowed and both the appellants have been acquitted of the charge
under section 302 (b)/34 PPC vide our short order dated 17.04.2024 which reads
as follows:
“For reasons to be recorded later, both these petitions are converted
into appeals and allowed. The impugned judgment dated 02.12.2015 of the
Lahore High Court, Lahore passed in Criminal Appeal No. 150-J alongwith
Murder Reference No. 497 of 2011 is set aside. Both the appellants are
acquitted of the charges leveled against them in case FIR No.727 dated
15.11.2010 registered under sections 302/34 PPC at Police Station A-
Division, Okara. They shall be released from jail forthwith in the instant
case if not required to be detained in any other case.”
The above are the reasons of our short order dated 17.04.2024.
Judge
Judge
Judge
Islamabad
14.05.2024
Atif/Zohaib Afzal
APPROVED FOR REPORTING
