2012 PLP 301 (YLR)

SYED IFTIKHAR HUSSAIN SHAH, J.

Ghulam Shabbir alias Shabbu, appellant was convicted for an offence under section 302(b), P.P.C. vide judgment dated 15-4-2006 handed down by the learned Sessions Judge, Faisalabad and was sentenced to death for committing 'Qatl-e-amd' of Raza-ul-Mustafa, deceased with direction to pay a sum of Rs.1,00,000 to the legal heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo S.I. for six months. Ghulam Shabbir alias Shabbu, appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No. 678 of 2006 which has been heard by us along with Murder Reference No. 381 of 2006 sent by the learned trial court under section 374, Cr.P.C. seeking confirmation of the sentence of death passed by the learned trial court against the appellant. We propose to decide both these matters together through the present judgment.

2. Succinctly the facts of the prosecution case set-up in the F.I.R. (Exh.PD/1) got lodged by Noor Ahmad complainant (P.W.9) are that he was a Naib Qasid at Union Council No.2 Chak No.41/J.B. On 22-12-2004, at about 8-45 p.m. while he along with Muhammad Raza-ul-Mustafa aged about 18 years, Muhammad Waqas aged 15 years, his sons and Ghulam Mustafa was watching T.V. in the drawing room of his house in the light of an electric bulb when all of a sudden, Ghulam Shabbir alias Shabbu (appellant) while armed with rifle 7-mm reached there and raised lalkara while standing in the drawing room that none should try to move. In the meanwhile Muhammad Raza-ul-Mustafa, son of the complainant tried to catch Ghulam Shabbir, but at the same moment, Ghulam Shabbir-accused made a straight fire with his rifle hitting on the left side of chest of Raza-ul-Mustafa, who fell on the ground and succumbed to the injuries at the spot. Ghulam Shabbir alias Shabbu, appellant fled after having committed the crime. The motive behind the occurrence as alleged by the complainant was that his first wife had died and he had contracted second marriage with Mst. Mumtaz Bibi, a close relative of the appellant, who had grudge over the said marriage and due to which, the appellant committed Qatl-e-amd of the deceased. After the occurrence, Noor Muhammad, complainant got his statement (Ex.PD) recorded before Falak Sher, S.-I. at about 10-25 p.m., the same day at Adda Arorri, who sent the same through Liaqat Ali, Constable (P.W.5) to the police station for lodging the formal F.I.R. (Exh.PD/1).

3. The investigation of this case was conducted by Falak Sher, Sub-Inspector/I.O. (P.W.11) on the basis of statement (Exh.PD) made by Noor Ahmad, the complainant. Then I.O. went to the place of occurrence, inspected the dead body of the deceased, prepared injury statement (Exh.PB) and inquest report (Exh.PC), statements of the witnesses under section 161, Cr.P.C. were also recorded, he inspected the place of occurrence, prepared the rough site plan Exh.PJ collected blood through cotton and made it into a sealed parcel vide recovery memo Exh.PH, which were attested by Ghulam Mustafa and Waqas P.Ws., that the dead body of the deceased was sent to the mortuary for autopsy. On 23-12-2004 Noor Ahmad, the complainant after the postmortem examination of the deceased handed over the last-worn clothes (P-3 to P-6) of the deceased to I.O. which were taken into possession vide recovery memo Exh.PG. The appellant was arrested on 7-2-2005, his physical remand was obtained and on his pointedness rifle .7-mm (P-1) along with five live bullets (P-2/1-5) were recovered vide recovery memo Exh.PE. Thereafter, he was sent to the judicial lock-up on 18-2-2005. After completion of the investigation, challan was submitted in the Court on 6-3-2005.

4. Dr. Liaqat Ali (P.W.1) had stated in his examination that on 23-12-2004 he conducted post mortem examination on the dead body of Muhammad Raza-ul-Mustafa, aged about 18 years. He stated that dead body was clad in a blood-stained shirt, Shalwar, vest and sweater. He further stated that it was dead body of well built male, eyes and mouth were closed, pupils were dilated and fixed, skin colour was pale, rigor mortis and post mortem staining on dependent parts of body were present. There was no ligature mark around the neck. He noted the following injuries. Injuries A fire arm entry wound 3/4 cm x 1/2 cm, margins inverted 4 cm inner and slightly above the level of left nipple. Sweater, shirt and vest bore corresponding holes. There was a firearm exit wound 2 cm x 1 cm, margins everted on back and inner side of right lumber region, 4 cm away from spine. Corresponding holes were present on Sweater, Vest and Shirt. Cranium and Spinal Cord were normal and healthy. Thorax: Pericardium and heart were injured at its lower part, blood vessels of thorax were injured corresponding to the injuries of chest, and rests of the organs of thorax were normal and healthy. Abdomen Peritoneum was injured, diaphragm was also injured. Stomach was injured containing a lot of almost undigested material, liver was also injured. Rests of the organs of abdomen were normal and healthy. According to the opinion of Doctor, cause of death in this case was haemorrhage and shock due to injury to vital organs i.e. heart, liver and stomach which was sufficient to cause death in ordinary course of nature. The injury was caused by fire arm and was ante-mortem.

5. The learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. to the appellant, framed a charge under section 302, P.P.C. against him on 11-10-2005, to which he pleaded not guilty and claimed for a trial.

6. During the trial the prosecution produced as many as eleven witnesses in support of its case. The ocular account of the incident in question was furnished by Noor Ahmad complainant (P.W.9) and Ghulam Mustafa (P.W.10) who also deposed about the motive, while Ahmad Nawaz, Constable (P.W.8) had escorted the dead body of the deceased to the mortuary for autopsy. Akbar Ali Nazami, P.W.6 Draftsman on the pointation of the witnesses had prepared site plan in scale (Exh. PF and Exh PF/1) while the medical evidence was provided by Dr. Liaqat Ali (P.W.1) The remaining evidence produced by the prosecution was more or less formal in nature.

7. In their statements recorded under section 342, Cr.P.C, the appellant controverted the allegation of fact levelled against him by the prosecution and professed his innocence. However, to a question that "Why this case is against you and why the P.Ws. have deposed against you" Ghulam Shabbir alias Shabbu appellant replied as under:-- "Complainant Noor Ahmad contracted marriage with Mst. Mumtaz Bibi, my close relative, after abducting her. The complainant had four issues from his first wife including Raza-ul-Mustafa deceased, aged about 20 years. Other children are also of the age between 15 to 20 years. The children of Noor Ahmad used to tease Mst. Mumtaz Bibi and she was fed up from Noor Ahmad, complainant and wanted to marry with me after getting divorce from Noor Ahmad, complainant. The deceased also used to quarrel with the complainant for his marriage with Mst. Mumtaz Bibi. I used to pressurize Noor Ahmad complainant to divorce Mst. Mumtaz Bibi, otherwise I and Mst. Mumtaz Bibi would seek dissolution from the Court of law. Deceased Raza-ul-Muastafa used to sleep in the Baithak alone and on the fateful night some unknown dacoits entered into the Baithak for dacoity and on resistance, they killed Raza-ul-Mustafa in the darkness of night. It was a blind murder and no one had seen the occurrence and the real culprits could not be traced out by the police and the complainant. The complainant had involved me in this case falsely due to the above said grudge. I had no grudge or enmity with Raza-ul-Mustafa deceased and have not committed his murder. The P.Ws. have deposed against me falsely at the behest of the complainant to support the false prosecution story." The appellant opted not to make any statement on oath under section 340(2), Cr.P.C. but he produced photocopy of case F.I.R. No.89 dated 16-2-2006 registered under sections 10/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Sadar Chiniot, District Jhang as Exh.DA in his defence.

8. Upon conclusion of the trial the learned trial court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned above. Hence, the present appeal and the connected Murder Reference before this Court

9. The learned counsel for the appellant contends that it was a night time occurrence committed by some unknown accused persons. The appellant has been falsely implicated in this case due to previous enmity. The appellant is closely related to Mst. Mumtaz Bibi, second wife of the complainant with whom, Noor Ahmad, complainant had contracted marriage after enticing her. The appellant has been made scape-goat in this case so that the complainant may get rid of him. P.Ws. are also closely related to the deceased, therefore, they are interested witnesses and cannot be safely relied upon. No crime empty was recovered from the place of occurrence and allegedly recovered rifle at the instance of the appellant was not in working condition as is apparent from the report of Forensic Science Laboratory Exh.PL. The prosecution has failed to establish the guilt of the appellant, but the learned trial Court convicted him arbitrarily without caring for the material available on record, therefore, the appellant deserves to be acquitted and instant appeal merits acceptance while answering the murder reference in the negative.

10. Conversely, the learned D.P.-G. Has opposed this appeal by contending that the appellant is a nominated accused in the promptly lodged F.I.R He while armed with firearm entered the drawing room of the house of the complainant when he in the company of his two sons Muhammad Raza-ul-Mustafa and Muhammad Waqas, watching T.V. Ghulam Mustafa (P.W.10), a relative of the complainant was also sitting there to watch T.V. The appellant while entering there raised a lalkara that no one should move and in the meanwhile, Muhammad Raza-ul-Mustafa, son of the complainant tried to apprehend the appellant, who all of a sudden fired from his rifle .7-mm hitting on the left side of chest of Raza-ul-Mustafa, who in an injured condition fell on the ground and succumbed to the injuries at the spot. The motive stands proved and the medical evidence is in line with ocular account. The prosecution has established its case against the appellant beyond any shadow of doubt; therefore, the appellant has been rightly convicted and sentenced to death. The conviction and sentence of the appellant is liable to be maintained and this appeal is liable to be dismissed.

11. We have heard the learned counsel for the appellant, learned D.P.-G. and gone through the entire record with care and caution.

12. Allegedly, the appellant while armed with firearm had trespassed into the house of the complainant at the time of occurrence, when complainant along with his two sons Muhammad Raza-ul-Mustafa and Waqas and Ghulam Mustafa, another person (P.W.10) were watching T.V. while sitting in the drawing room. The appellant while entering the drawing room raised a lalkara that no one should move. In the meanwhile, Muhammad Raza-ul-Mustafa, tried to apprehend him, but all of a sudden, the appellant made a fire-shot from his rifle which hit the left side of chest of Raza-ul-Mustafa, who in injured condition fell on the ground and succumbed to the injuries at the spot. The motive as alleged in the F.I.R. is that the complainant had contracted second marriage with Mst. Mumtaz Bibi, a close relative of the appellant, who was not happy with this marriage and having grudge in his mind; he trespassed in the house of the complainant and committed murder of son of the complainant.

13. The motive alleged by Noor Ahmad complainant in complaint (Exh.PD) might have been relevant and deemed to have been admitted, had it not been changed by him in his testimony as P.W.9. It is alleged in the complaint Exh.PD that wife of Noor Ahmad had died and he contracted second marriage with Mst. Mumtaz Bibi, a relation to Ghulam Shabbir (appellant), which caused grudge and annoyance to the latter and for this reason, the appellant committed the murder of Raza-ul-Mustafa. The appellant admittedly did not have any motive whatsoever against the deceased. Strangely the motive has been changed by the complainant in his testimony as he adopted the version during the trial that he contracted second marriage with a lady who was close relation to the appellant and for this reason the accused nourished grudge against his second wife. Likewise, Ghulam Mustafa (P.W.10) made the deposition in his testimony that the appellant-accused had nurtured grudge against Noor Ahmad and his second wife who was his close relative. The appellant though replied in negative in his statement under section 342, Cr.P.C. so far as question No.3 relating to the bone of contention between the parties was concerned, still it transpires from his answer to question No.8 that he used to pressurize Noor Ahmad complainant to divorce Mumtaz Bibi, who otherwise was allegedly determined to get her marriage with Noor Ahmad, complainant dissolved through Court of law. The complainant, as proven on record, had contracted runaway marriage with Mumtaz Bibi, who was closely related to the appellant and a criminal case (Exh.DA) had been got lodged against the complainant by her first husband Manzoor Hussain. The appellant has also given an impression in his statement under section 342, Cr.P.C. that Mst. Mumtaz Bibi was fed up with Noor Ahmad, complainant and she wanted to marry accused-appellant after having her marriage with second husband dissolved. Both the witnesses of ocular account have changed the tenor of the motive in their testimonies. Ghulam Shabbir appellant was hardly 20 years of age on the date of occurrence of murder of Raza-ul-Mustafa so being a youthful person, must have been effervescent over abduction of his relative Mst. Mumtaz Bibi by Noor Ahmad (complainant P.W.9). The appellant apparently did not have any motive against the deceased, but he was certainly displeased with the complainant due to the aforesaid reason. The complainant strangely felt shy of establishing the set-up motive during trial as is evident from the above noted circumstances.

14. The ocular account was furnished by Noor Ahmad, complainant (P.W.9) and Ghulam Mustafa (P.W.10) against the appellant. Noor Ahmad (P.W.9) has fully supported the contents of F.I.R. He has categorically stated that appellant while armed with firearm entered in the drawing room of the complainant and raised lalkara that no one should move and Muhammad Raza-ul-Mustafa tried to apprehend the appellant, who all of a sudden made fire from his rifle hitting on the left side of chest of Raza-ul-Mustafa, who fell on the ground in an injured condition and succumbed to the injuries at the spot. Ghulam Mustafa (P.W.10) also corroborated the statement of P.W.9 by stating that appellant at the time of occurrence entered the drawing room of the complainant when he along with his sons was watching T.V. and the appellant while entering there, made fire from his rifle hitting on the left side of chest of the deceased, which passed through and through, due to which he succumbed to the injuries at the spot.

15. The learned counsel for the appellant has assailed the testimony of both eye-witnesses (P.Ws. 9 and 10) on the ground that they are close relatives of the deceased and are interested witnesses. It is admitted fact of this case that eye-witnesses are related to the deceased but on this score their statements cannot be discarded. It is well-settled by now that merely on the basis of inter se relationship the statements of prosecution witnesses, who stood firm to the test of cross-examination, cannot be discarded especially when sufficient corroboratory material is available. It is intrinsic value of the statements of the prosecution witnesses which is to be examined and not the relationship. The following reliance can be placed in this regard:-- "Khadim Hussain v The State" (PLD 2010 SC 669), "Muhammad Amin v The State" (2000 SCMR 1784) "Iqbal alias Bhala and 2 others v The State" (1994 SCMR 1) "Devi Parasad and others v The State" (AIR 1967 Allahabad 64) "Nazir and others v The State" (PLD 1962 SC 269)

16. We have carefully examined the respective contentions as agitated on behalf of the appellant and for the State, scrutinized the entire prosecution evidence by keeping it in juxtaposition to the defence evidence and perused the judgment of learned trial Court. After having gone through the entire evidence, we are of the view that prosecution has established the guilt of the appellant to the hilt by producing forthright and convincing evidence. In this regard, statements of Noor Ahmad (P.W.9) and Ghulam Mustafa (P.W.10) can be referred to that the occurrence had taken place in the drawing room of the complainant which was witnessed by Ghulam Mustafa, who resided in the adjacent house and was related to the complainant, who was also watching T.V. there. In spite of lengthy and exhaustive cross-examination of the P.Ws., nothing beneficial could be elicited rendering any help to the case of appellant. The ocular version finds full support from the medical evidence as is apparent from the nature of firearm injuries received by Muhammad Raza-ul-Mustafa. The appellant has alleged that occurrence had been committed by some unknown persons and he had been substituted for the real culprit but the substitution is a rare phenomenon, which may occur where the identity of the accused is doubtful, but in the instant case, the appellant, who was previously known to the P.Ws., had been specifically nominated in the promptly lodged F.I.R. The occurrence had taken place at night in the drawing room of the complainant and electric bulb was also lit at the time of occurrence, so there is no chance of substitution of the accused when the prosecution fully established its case through trustworthy evidence. The ocular evidence of both these P.Ws. is in line with the medical evidence. The prosecution has fully established its case against the appellant, who has rightly been convicted by the learned trial Court under section 302(b), P.P.C.

17. So far as the quantum of sentence of the appellant is concerned, we have already observed that the appellant being a youthful person of mere 20 years of age, having blood, bubbled in his veins, must have felt annoyed and upset over the abduction of a close female relative Mst. Mumtaz Bibi by Noor Ahmad (complainant). The aforesaid lady was enticed away by the complainant and it was her first husband Manzoor Hussain, who got lodged case F.I.R. No.89-2006, dated 16-2-2006, under sections 10/16 Offence of Zina (Enforcement of Hadood) Ordinance 1979, at Police Station Saddar Chiniot, District Jhang (Exh.DA) against the abductor, Noor Ahmad. It was certainly a runaway marriage as is evident from the deposition of the complainant, who admitted in his testimony that he contracted marriage with Mst. Mumtaz Bibi at Kutchery, High Court, Lahore The appellant might have some liking for the said lady and the probability cannot be ruled out that he was emotionally attached with her as is manifest from her statement under section 342, Cr.P.C. wherein he has unequivocally stated that Mst. Mumtaz Bibi intended to marry him after having her marriage dissolved with Noor Ahmad complainant through court of law. The exertion of pressure in this regard on the complainant by the appellant is also an admitted fact. The appellant had no intention to commit the murder of Raza-ul-Mustafa (deceased) nor did he, as discussed earlier, have any grudge against him. The fire shot had not been repeated by the appellant during the occurrence, which is also an important fact to determine the quantum of sentence of the appellant. Love of the appellant for Mst. Mumtaz Bibi, the act of her abduction by the complainant and contracting runaway marriage by him with her, emotionally being disgraced and injured by the above said act of the complainant, continuously having been given to understand by Mst. Mumtaz Bibi that she wished to be divorced by her husband who persistently denied to do so and above all being adolescent on the day of occurrence are the circumstances which create mitigation in favour of the appellant besides, the fire shot was not repeated by the appellant and the evidence of recovery of rifle .7 mm Exh.P-1 at the instance of the appellant on 17-2-2005 vide memo Exh.PE is inconsequential as above said weapon had been found defective due to shortened firing pin by the office of Forensic Science Laboratory vide report Exh.PL.

18. In view of mitigating circumstances of the case we have no hesitation in holding that the sentence awarded to the appellant is harsh one. Resultantly, we while maintaining the conviction of the appellant under section 302(b), P.P.C. modify his sentence of death into imprisonment for life. However, the sentence of compensation and that of default in payment thereof shall remain intact as recorded by the learned trial Court. The instant appeal is dismissed with the above modification in the sentence.

19. Consequently, the death sentence awarded to Ghulam Shabbir alias Shabbir convict-appellant is not confirmed and Murder Reference No. 381 of 2006 is answered in the negative. N.H.Q./G-53/L Sentence reduced.