Sunday, 13 March 2016

Appellant court can modify charge in a criminal case

PLJ 2011 Cr.C. (Lahore) 941
Present: Mazhar Iqbal Sidhu, J.
Mst. KAUSAR BIBI--Appellant
versus
STATE--Respondent
Crl. Appeal No. 68-J of 2007, heard on 25.1.2011.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 308 & 201--Conviction and sentence--Challenge to--Modification in sentence--No cavil in legal proposition--Held: Recovery of dead body does not imply that the deceased was murdered by appellant but at the same time, in the circumstances of the case and also in the presence of the prosecution evidence, the appellant can be convicted and sentenced for this offence in accordance with law--Trial Court did not frame charge against appellant and her co-accused u/S. 201 PPC for causing disappearance of the deadbody of the deceased but the appellate Court has ample powers u/S. 561-A 237/535/537 Cr.P.C. to look into the material available on the record and to convict and sentence an accused in accordance with law--Mere non-framing of charge for a particular offence does not vitiate at the trial--Believing upon evidence of the PWs, appellant was liable to be convicted and sentenced u/S. 201 PPC for causing disappearance of the dead body of the deceased and is sentenced to imprisonment up to the extent having been undergone by her--Jail authorities were directed to Court the period of sentence of the appellant uptil now towards the substantive portion of sentence with benefit as envisaged u/S. 382-B Cr.P.C.--With modification appeal stand disposed of.        [P. 946] A & B
Ch. M. Shafi Meo, Advocate for Appellant.
Mr. Khalid Parvez Uppal, DPG for State.
Mian Noor Ali Wattoo, Advocate for Complainant.
Date of hearing: 25.1.2011.
Judgment
Mst. Kausar Bibi appellant was convicted for an offence under Section 308, PPC vide judgment dated 28.02.2007 rendered by learned Additional Sessions Judge, Bahawal Nagar in a case registered vide FIR No. 94/2006 at Police Station Dunga Bunga and was directed to pay Diyat amounting to Rs. 3,15,000/- to the legal heirs of Muhammad Amin deceased. She was further convicted u/S. 308, PPC and was sentenced to rigorous imprisonment for fourteen years as Ta'zir. The benefit under Section 382-B, Cr.P.C. was extended to her. The appellant has challenged her convictions and sentences before this Court through the present appeal.
2.  The prosecution case unfolded in the FIR is that Niaz Ahmad complainant got registered the above mentioned FIR against Mst. Kausar Bibi with the allegation that Muhammad Amin was his maternal cousin who was residing in Basti Kokara. He has one daughter Amna Bibi aged two and a half years who is still alive. Muhammad Amin was an old man of 60/65 years. Due to this reason, relationship between Muhammad Amin and his wife remained strained and they had been quarrelling with each other. Muhammad Amin disappeared from the house for the last 17/18 days and Mst. Kausar Bibi also remained missing from the house. He was kept on searching Muhammad Amin but of no avail and on the day of registration of the case, he alongwith Muhammad Yousaf and Muhammad Sharif went to Mst. Kausar Bibi in her house, who there confessed that she had murdered Muhammad Amin about 17/18 days ago during the night by inflicting hatchet blows on his head and his deadbody had been disposed of. Hence, the FIR.
3.  After registration of the above mentioned FIR, the case was investigated by Ghulam Mustafa, SI (PW-8). He arrested Mst. Kausar Bibi appellant on 20.4.2006 and on the same day, she got recovered the deadbody of Muhammad Amin deceased from Courtyard of her house vide recovery memo. Exh. PF, which was attested by the PWs.He prepared the injury statement (Exh. PD/2) of deadbody of the deceased, which was in his hand and bore his signature. He also prepared inquest report (Exh. PD/3).The deadbody was identified by Muhammad Hanif and Fakhar Din PWs. The deadbody was sent to DHQ Hospital, Bahawal Nagar for post-mortem examination through Muhammad Sharif Constable. The appellant also pointed out the place of murder and burial of the deceased, memo. Exh.PK was prepared by the I.O. attested by the PWs.
4.  Mst. Kausar Bibi accused got recovered Pillow P-1, Piece of cloth P-2, cover of pillow P-3, Chaddar P-4, Dari P-5, blood-stained Khais P-6, one pair of shoes P-7/1-2 by digging a pit in the Courtyard of her house on 20.4.2006. The above mentioned articles were taken into possession vide recovery memo. (Exh. PG), which were attested by the PWs. The accused also got recovered Kassi P-8 and kudala P-9 from the cotton sticks, which was lying in the Courtyard of her house and were taken into possession vide recovery memo. (Exh. PH) attested by the PWs.
5.  Mst. Kauser Bibi also got recovered blood-stained Bahi of cot P-10 vide recovery memo. (Exh. PI), which was attested by the PWs. He also prepared sealed parcel of said Bahi for onward transmission to the office of Chemical Examiner, Lahore. He recovered weapon of offence (Exh. PJ) from residential room vide recovery memo. P-11, he prepared memo. of the place of occurrence (Exh. PK) and site-plan (Exh. PL) on the pointing out of the accused. He recorded the statements of PWs Muhammad Nawaz and Muhammad Hanif. On the same day, Mahmood Akhtar Qureshi, draftsman visited the place of occurrence and prepared scaled site-plan of the place of occurrence Exh. PA and Exh. PA/1. The I.O. recorded the statements of PWs u/S. 161 of the Cr.P.C.
6.  After post-mortem examination, deadbody of Muhammad Amin was handed over to the I.O. by Muhammad Sharif Constable. On the same day, he got judicial remand of Mst. Kausar Bibi accused from Ilaqa Magistrate and sent her to judicial lock-up. On 22.4.2006, he submitted incomplete Challan against Mst. Kausar Bibi accused. After receiving the reports from the office of Chemical Examiner, Lahore, he recorded the statements of PWs and submitted the supplementary Challan in the Court.
7.  During the trial of the case, the complainant Niaz Ahmad being dissatisfied with the proceedings conducted by the police in State case, filed a private complaint against accused Mst. Kauser Bibi, Niaz Ahmad s/o Karam Din, Muhammad Azam and Akbar Ali under Sections 302/34, PPC. This private complaint was entrusted to the learned trial Court on 6.9.2006. On the same day, statement of the complainant was recorded and the same was sent to Rana Muhammad Ishfaq, learned Magistrate 1st Class, Bahawal Nagar to hold an inquiry u/S. 202, Cr.P.C. who submitted his report on 23.9.2006 holding that the allegations levelled in the private complaint are well-founded and fulfilled the ingredients of offence of Section 302, PPC.
8.  Thereafter, accused Mst. Kauser Bibi, Niaz Ahmad, Muhammad Azam and Akbar were summoned by the learned trial Court to face trial u/S. 302/34, PPC. The proceedings of State case were consolidated with the private complaint and it was ordered that proceedings will be conducted in the private complaint whereas the file of State case will be put up alongwith complaint case, whereafter charge was framed against the accused persons, to which they pleaded not guilty and claimed trial. During the trial, the complainant produced nine witnesses in support of his case against all the accused, whereas the remaining witnesses of State case namely Parvez Arshad Constable (CW-1) and Muhammad Iftikhar, ASI (CW-2) were summoned as Court Witnesses.
9.  Dr. Abdul Rasheed, Medical Officer (PW-6) provided the medical evidence. According to his opinion, the cause of death of Muhammad Ameen deceased was head injury with fracture of right parieto temporal bone caused by blunt weapon and no poison was detected from the visceras. In their statements recorded under Section 342, Cr.P.C. the appellant and her co-accused denied and controverted all the allegations of fact levelled against them and professed their innocence. They opted not to make statements on oath under Section 340(2), Cr.P.C. and did not produce any witness in their defence. However, only Akbar Ali co-accused has produced documents Exh.DA to Exh. DE in his defence.
10.  Upon conclusion of the trial, the learned trial Court after finding the case against Mst. Kausar Bibi appellant to have been proved beyond reasonable doubt, it convicted and sentenced her as mentioned and detailed above. However, the learned trial Court by extending the benefit of doubt to other co-accused Niaz Ahmad, Muhammad Azam and Akbar Ali acquitted them of the charge by observing that the prosecution has not been able to prove their linkage with the commission of crime and now the present appeal is before this Court.
11.  In support of this appeal, learned counsel for the appellant has argued that there is a delay of 17/18 days in lodging the FIR, about which no, explanation has been given by the complainant; the story given in the FIR is not convincing; the appellant has not made her confessional statement about the murder of her husband Muhammad Amin before the complainant and the other PWs; there is no eye-witness of the occurrence and the witnesses of extra-judicial confession are inter se contradictory; after registration of the case, private complaint was filed by Niaz Ahmad complainant against the appellant and her co-accused who have been acquitted by the learned trial Court on the same evidence, the appellant cannot be convicted and sentenced; the entire prosecution case hinges upon the statements of Niaz Ahmad complainant (PW-3), who is cousin of the deceased, Fakhar Din (PW-4), Muhammad Latif (PW-5) and Muhammad Sharif (PW-7) and their statements are not reliable due to lack, of intrinsic values of their evidence; false recovery of the deadbody and other articles have been planted against the appellant but in fact the deadbody was not recovered either on the pointing out of the appellant or from the Courtyard of the appellant's house; and lastly it has been contended that the prosecution has miserably failed to prove its case and by extending the benefit of doubt to the appellant, she may be acquitted of the charge.
12.  Learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has opposed the submissions made by the learned counsel for the appellant and has defended the impugned judgment and prays for dismissal of the appeal.
13.  I have heard the learned counsel for the parties and have gone through the record.
14.  After registration of the FIR, Niaz Ahmad complainant (PW-3) instituted a private complaint against the appellant alongwith her co-accused Niaz Ahmad s/o Karam Din, Muhammad Azam and Akbar Ali wherein the entire story has been changed by the complainant. In the FIR, it has been mentioned that the appellant made confessional statement in her house whereas in the complaint, it has been mentioned that on 13.4.2006 the appellant alongwith Niaz Ahmad, Muhammad Azam and Akbar Ali came to Muhammad Sharif, Muhammad Hanif and Muhammad Hanif in village/Basti Keekranwali, Mauza Doonga Aaluka and all of them made confessional statements about the murder and disposal of the deadbody of Muhammad Amin deceased. Only one witness Muhammad Sharif (PW-7) has deposed about the fact of extra-judicial confession allegedly made by the appellant. Although in the statement of Niaz Ahmad complainant (PW-3) this aspect has also been mentioned, yet the versions given in the FIR as well as in the private complaint are self contradictory as to the place of making extra-judicial confession by the appellant and her co-accused as the same is also joint one, which is inadmissible in evidence. Co-accused of the appellant have been acquitted by the learned trial Court and appeal was filed against the said judgment before this Court, which was also dismissed. Therefore, this piece of evidence of the prosecution case cannot be believed against the appellant without any independent corroboration, which lacks in this case and the same is thrown out of consideration and is disbelieved. Thus, conviction and sentence of the appellant imposed under Section 308, PPC is set aside and she is acquitted of the charge.
15.  One aspect of the case is very important which has not been smashed during trial of the case. Mst. Kausar Bibi appellant after her arrest on 20.4.2006 and after making disclosure, got recovered deadbody of Muhammad Amin deceased, her husband, after digging out earth from the Courtyard of her house, which was identified by Muhammad Hanif (PW-5) and Muhammad Nawaz (PW-9). Thereafter, his post-mortem examination was conducted. The doctor opined death of the deceased because of head injury, which had caused fracture of right parieto temporal bone caused by blunt weapon. During the trial, statements of Muhammad Latif (PW-5), Ghulam Mustafa, SI/IO (PW-8) and Muhammad Nawaz (PW-9) were recorded. They were cross-examined but nothing could be elicited by the learned Defence Counsel favouring  theappellant. It is difficult to disbelieve the statements of said PWs because deadbody of the deceased has been recovered from the house of the appellant. There is no cavil to this legal, proposition that recovery of the deadbody does not imply that the deceased was murdered by the appellant but at the same time, in the circumstances of the case and also in the presence of the prosecution evidence, the appellant can be convicted and sentenced for this offence in accordance with law. Although the learned trial Court did not frame charge against the appellant and her co-accused under Section 201, PPC for causing disappearance of the deadbody of the deceased but the appellate Court has ample powers under Sections 561-A/237/535/537, Cr.P.C. to look into the material available on the record and to convict and sentence an accused in accordance with law. Mere non- framing of charge for a particular offence does not vitiate at the trial. However, it may be considered an irregularity on the part of the prosecution but decisions of the cases are required to be based upon the material available on the file. Therefore, believing upon evidence of the above said PWs, the appellant is liable to be convicted and sentenced under Section 201, PPC. Accordingly, the appellant is convicted under Section 201, PPC for causing disappearance of the deadbody of the deceased and is sentenced to the imprisonment up to the extent having been undergone by her. Jail Authorities are directed to count the period of sentence of the appellant uptil now towards the substantive portion of sentence with benefit as envisaged under Section 382-B, Cr.P.C. The appellant is also directed to pay an amount of Rs. 1,00,000/- as fine and in default of payment thereof to further undergo simple imprisonment for three months. With this modification, appeal stands disposed of.
16.  Case property is directed to be disposed as ordered by the learned trial Court and the office is directed to remit the record of learned trial Court forthwith.
(A.S.)   Appeal disposed of.

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