2006 PLP 3270 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Shaukat Ali appellant was tried by the learned Additional Sessions Judge, Daska, District Sialkot, in lieu of case F.I.R. No.262 registered at Police Station Satrah on 7-9-1999 for offence under section 302, P.P.C. for committing the murder of Mst. Sajida Bibi. Vide judgment dated 17-9-2001, the learned trial Judge convicted the appellant for offence under section 302 (b), P.P.C. and sentenced him to death. He was also directed to pay Rs.1,00,000 as compensation to the legal heirs of the deceased. In default in payment thereof, he was to suffer six months' imprisonment.

2. Shaukat Ali, convict/appellant, has challenged his above noted conviction and sentence through the instant appeal. Murder Reference No.618 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.

3. The brief facts of the case per complaint Exh.PA recorded by Muhammad Younas Butt, SI/P.W.9, at the instance of Muhammad Hanif, complainant/P. W.1, which based the registration of formal F.I.R. Exh.PA/l, are that the complainant had installed a saw machine in front of his house situated at Adda Kassowala. On 6-9-1999 at 10/11-00 a.m. when his daughter Mst. Sajida Bibi aged about 20/22 years was watering the cattle near the saw-machine, Shaukat, accused/appellant, happened to pass nearby and cut joke with her, whereupon she rebuked him. On hearing the noise of his daughter, the complainant carne out of his house. On seeing him, the appellant went to his house. At about 2-00 p.m. when the complainant/ P.W. 1, Muhammad Arshad and Muhammad Siddique/P.W.2 and Rehmat Ali/P.W.3 were sitting and chatting in the godown of Maqbool Hussain Gujjar and at some distance Mst. Sajida Bibi (deceased) and Mst. Razia Bibi/D.W.1 were sitting and talking with each other, the appellant, while armed with pistol emerged from the field of Abdul Ghani and raised Lalkara that he would teach a lesson to Mst. Sajida Bibi for insulting him, whereupon the latter stood up and was about to run away when within the view of the P.Ws., the appellant fired a pistol shot, which hit Mst. Sajida on her left buttock and abdomen, as a result of which she fell down on the ground, while the appellant fled away from the scene of occurrence. The complainant' took his daughter to Civil Hospital, Daska, wherefrom she was referred to Civil Hospital, Gujranwala, where despite best efforts of the doctor, she succumbed to the injuries. She was then taken back to Civil Hospital, Daska. It was further alleged that Shaukat appellant had earlier cut joke with the complainant's daughter and protest was made to Amanat and Rahmat, the brothers of the appellant. Due to this grudge, the appellant committed the murder of the deceased. Besides the complainant, the occurrence was witnessed by Rahmat/P.W. Muhammad Arshad/D.W.2 and Muhammad Siddique/P. W .2.

4. On 7-9-1999, on receipt of information about the murder of Mst. Sajida Bibi, Muhammad Younus Butt, S.-I. (Retd)/P.W.9, went to Civil Hospital, Daska, where Muhammad Hanif complainant got recorded his statement Exh.PA which was sent to the police station for registration of the case. He prepared injury statement Exh.PJ and inquest report Exh.PK and got autopsy on the dead-body of the deceased. Then he went to the place of occurrence; prepared its rough site-plan Exh.PL; collected blood-stained earth from the spot and took the same the same into possession through memo. Exh.PC. After post-mortem examination, he took into possession the last-worn clothes of the deceased, i.e. Shalwar P.1, Qameez P.2 and brassier P.3, through memo. Exh.PB. On 11-9-1999, the Investigating Officer got prepared the site-plan of the place of occurrence Exh.PH with its duplicate Exh.PH/1. The appellant was arrested on 17-9-1999. On 23-9-1999, while in custody, the appellant led to the recovery of pistol P.4 which was taken into possession vide memo. Exh.PD, prepared by the Investigating Officer and attested by Muhammad Aslam/P.W.4. After completion of investigation, the appellant was sent up to face the trial.

5. To substantiate its version at the trial, the prosecution produced eleven witnesses. Ocular account was furnished by Muhammad Hanif/P.W.1, Haji Muhammad Siddique/P.W.2 and Rahmat Ali/P.W.3. They also stated about the motive. Their statements are in line with the story given in the F.I.R. Dr. Captain Muhammad Khalid/P.W.6 medically examined Mst. Sajida Bibi on 6-9-1999 at 3-20 p.m. and while observing three injuries; one fire-arm lacerated wound on upper part of her buttock (entry wound), second fire-arm lacerated wound with everted margins" on the left front of her abdomen (exit wound) and the third one a farrowed abrasion (grazing) wound on left front of abdomen just 2 c.m. above Injury No.2, opined that the injuries were fresh. He referred her to DHQ Hospital, Gujranwala. Dr. Saima Kausar/P.W.5 conducted post-mortem examination on the dead-body of Mst. Sajida Bibi on 7-9-1999 at 1-00 p.m. He found four injuries on her person, of which two were fire-arm lacerated wounds: one on left side of abdomen lateral to umbilicus (surgically interfered wound) and the other on upper most part of her left buttock near the midline, while Injury No.2 was a farrowed abrasion (graze) just 2 c.m. above Injury No.1, whereas Injury No.3 was a surgical laparotomy incision. In the opinion of the doctor, death was caused due to Injury No.4 which was exist wound of Injury No.1. The injuries were caused by fire-arm. The duration between injuries and death was not certain, while it was about sixteen hours between death and post-mortem examination. Muhammad Aslam/P.W.4 stated about the recovery of weapon of offence at the instance of the appellant. Muhammad Younus Butt, S.-I. (Retd.)/P.W.9, stated about the drafting of complaint, its dispatch to the police station and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication by stating that the case was registered against him due to rivalry and party-faction and that the P.Ws. were interested and related inter se. The appellant did not appear as a witness in his defence. He, however, produced Mst. Razia Bibi and Muhammad Arshad as D.Ws. 1 and 2.

7. Learned counsel for the appellant contends that there was unexplained delay of more than nineteen hours in reporting the matter; that the delay in reporting the matter to the police denotes that it was an un-witnessed occurrence; that all the three eye-witnesses were chance witnesses; that Maqbool Hussain in whose godown allegedly the complainant party was sitting was not produced during trial; that two of the eye-witnesses named in the F.I.R. (Mst. Razia Bibi and Muhammad Arshad) did not support the prosecution case; that the motive as set down by the prosecution was neither plausible nor was proved during trial; that recovery of pistol was of no consequence, as no empty was taken from the spot; and that in any case, it was not a case of capital punishment.

8. Conversely, the learned counsel appearing on behalf of the State has submitted that it was a day-light occurrence and the identity of the accused was not in question; that all the three eye-witnesses have given a consistent account of the occurrence; that none of the witnesses had any ill-will or previous enmity with the appellant so as to rope him in a false case; that substitution was a rare phenomenon and no reason existed for the father to substitute the real killer by an innocent person; that the ocular account is fully supported by the medical evidence as well as by the recovery of pistol which was found to be in working order; that the delay stands duly explained in the F.I.R. itself; and that the appellant, who was has taken the life of an innocent woman, deserves no leniency.

9. We have heard the 'learned counsel for the parties and have also gone through record of the case.

10. The prosecution has produced three eye-witnesses in this case. Muhammad Hanif/P.W.1 is father of the deceased. Haji Muhammad Siddique/P.W.2 is related to Muhammad Hanif/P.W.1, as his daughter is married with the son of Muhammad Hanif. Rahmat Ali/P.W.3 is son-in-law of complainant. We are conscious of the fact that all the P.Ws. are related to the deceased but then it is to be judged, whether they were natural witnesses or they had any ill motive or previous enmity to falsely involve the appellant in the case. It is in evidence that all the witnesses were present in the godown of Maqbool Hussain gossiping with each other, while Sajida Bibi-deceased was having Gup-Shup with Mst. Razia Bibi nearby in the corner of the godown. This was not an unusual circumstance, as the back of the house of the complainant was adjacent to the godown of Ch. Maqbool Hussain and the P.Ws. usually used to sit either in their Haveli or A in the godown. So their presence at the place of occurrence is quite plausible. The presence of Muhammad Hanif is further supported by the fact that according to MLR Exh.PG, it was Muhammad Hanif who had taken Sajida Bibi to Civil Hospital, Daska. All the three witnesses had no previous ill-will or enmity whatsoever against the appellant so as to depose falsely against him. A bald suggestion was made to Muhammad Hanif that there was some business rivalry between him and the appellant. What was the nature of rivalry was never brought on the record of the case. All the three witnesses have given consistent account of the occurrence and despite very lengthy cross-examination no dent could be caused in the veracity of their statements. The confrontations brought on the record of the case are, in fact, the details of the incident which were given during cross-examination by the P.Ws. No mentionable discrepancy of consequence could be pointed out by the learned counsel for the appellant.

11. The learned counsel for the appellant has laid much stress on the point of delay in reporting the matter to the police. The delay stands fully explained in this case, as the complainant had been desperately trying to save the lice of his young daughter. The occurrence took place at about 2-00 p.m. Thereafter Mst. Sajida Bibi was taken to Civil Hospital, Daska, by the complainant. The doctor after attending to her advised the complainant that she should be taken to Civil Hospital, Gujranwala, so that her life could be saved. So the complainant took her to Civil Hospital, Gujranwala, where she lost her life and her dead-body was brought back to Civil Hospital, Daska. These facts are supported by the statement of P.W.6 Dr. Cap. Muhammad Khalid, who was working at Civil Hospital, Daska, and had initially attended to Mst. Sajida. In his examination- in-chief, he stated that `"after all maximum possible management, the patient became in comparatively better condition and then she was referred to D.H.Q. Hospital, Gujranwala, for expert opinion and management". P.W.6 is an independent witness and he was not challenged on this point. Even otherwise, delay in lodging of F.I.R. matters in cases where previous enmity exists or where a large net is thrown by the complainant or when the complainant lives at quite some distance from the place of occurrence. In the instant case, none of the above conditions exists. Hence, the delay in lodging the F.I.R. would be of no consequence and would not benefit the appellant.

12. Dr. Cap. Muhammad Khalid observed three injuries on the person of Mst. Sajida Bibi. Injury No.1 was on the left buttock. It was an entry wound. Injury No.2 was on abdomen having everted margins and was an exist wound. Injury No.3 was a farrowed abrasion (grazing wound) in front of the abdomen just 2 c.m. above Injury No.2. During cross-examination the doctor stated that "possibility of Injuries Nos.1 and 3 of being caused independently is there if the injured was in a standing position." The doctor used the word `possibility' only and his opinion was not conclusive. Injury No.3 (grazing wound) was described at Serial No.2 by P.W.5, who conducted post-mortem examination. She clarified during cross-examination that Injury No.2 could be inflicted by the exit bullet when the injured was in sitting position and the abdomen was in folding position. However, she admitted that she did not surgically interfere with the injured. Hence, the medical evidence is in support of the ocular account.

13. The appellant was arrested on 17-9-1999. During custody, he led to the recovery of .30 bore pistol P.4 on 23-9-1999 from his house. The pistol was sent to Forensic Science Laboratory and according to its report Exh.PN, the pistol was in working condition. However, it would not be safe to rely upon the recovery evidence, as no empty was recovered from the spot and it could not be said with certainty that it was the same pistol which was used during the occurrence.

14. According to F.I.R., earlier on the date of occurrence, the appellant cut joke which was not taken lightly by the deceased and she rebuked the appellant which caused annoyance to him. The latter returned armed with pistol and fired at the deceased. As against this, no. other plausible reason for causing death of Mst. Sajida Bibi is available on the record of the case. According to defence plea, the case was registered against the appellant due to rivalry and party faction. While in cross-examination, it was suggested to the P.Ws. that Mst. Sajida Bibi deceased was engaged with one Muhammad Rafiq son of Muhammad Bashir. Subsequently, Mst. Sajida Bibi refused to marry him and for that reason, Muhammad Rafiq felt insulted and murdered her. But, as noted above, Shaukat Ali in his statement recorded under section 342, Cr.P.C. did not refer to any such story; perhaps, he was aware that it would be totally implausible that a father would substitute the real culprit by an innocent person against-whom he had no enmity or ill-will.

15. The appellant produced Mst. Razia Bibi/D.W.1 and Muhammad Arshad/D.W.2, who were mentioned as eye-witnesses in the F.I.R., in his defence. It was suggested to the P.Ws. that both the D.Ws. were not ready to depose against the accused, as the real culprit was not named in the F.I.R. However,' D.W.1 simply stated that she had not seen the occurrence, as she was busy in doing some domestic chore in her Haveli. She further stated that she did not know whether the accused present in Court had murdered Sajida Bibi or not. We are afraid, this statement hardly helps the appellant or his plea that it was in the knowledge of the D.Ws. that it was Muhammad Rafiq who had murdered Mst. Sajida. Similarly, Muhammad Arshad/ D.W.2 stated that he was sitting at a distance of 220 feet at the time of occurrence and he could not identify the person who had committed the murder of Sajida, as he saw the murdered while he was fleeing away from the spot. This witness has also refused to give a clean chit to the appellant, rather in cross-examination he admitted it to be correct that the accused party after the occurrence came to his house and approached him not to depose against him in the instant murder case (page 61 of Paper Book).

16. The upshot of the whole discussion is that we are of the considered opinion that the prosecution has proved its case beyond doubt against the appellant through reliable ocular account which was supported by medical evidence and was corroborated by the circumstances of the case. Having come to this conclusion, we have given our anxious thought to the quantum of sentence in the instant case. Learned counsel for the appellant has prayed for lesser penalty on the grounds of weakness of motive and the factum of solitary blow. In this case, the accused came armed with a fire-arm weapon and took life of an innocent girl aged about 20/22 years. No premium can be given to him for causing a single blow. As far as motive is concerned, its inefficiency or its being shrouded in mystery could not be considered as a circumstance justifying non-awarding of the normal penalty of death, as held by the Honourble Supreme Court in the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427).

17. In this view of the matter, we are constrained to hold that no mitigating circumstance exists in favour of the appellant. This appeal is dismissed. The death sentence is confirmed. The murder reference is answered in the affirmative. H.B.T./S-169/L Appeal dismissed.