2013 P Cr (PLP)

ABDUS SATTAR ASGHAR, J.

Ghulam Hussain son of Mehram Khan appellant was tried by the learned Additional Sessions Judge, Sadiqabad, District Rahimyar Khan, in case F.I.R. No.147 of 2007 dated 26-5-2008, under sections 302/324/325, P.P.C., registered at Police Station Sadar Sadiqabad for causing murder of Mst. Abida Mai daughter of Lal Bakhsh and also for causing murderous assault upon Lal Bakhsh complainant by inflicting multiple Chhuri-blows and thereafter for making an attempt to commit suicide while injuring himself with Chhuri. The learned trial Court vide judgment dated 27-6-2009 convicted the appellant as under:-- (1) Under section 302(b), P.P.C. for committing qatl- e-amd of Abida Mai and sentenced to death and also to pay compensation amounting to Rs.1,00,000 to the legal heirs of Mst. Abida Bibi deceased under section 544-A, Cr.P.C., and in default to undergo 6 months' SI; (2) Under section 324, P.P.C. for attempting to commit murder of Lal Bakhsh and sentenced to ten years' SI and fine of Rs.10,000, and in case of default in payment whereof further undergo one month SI; (3) Under section 325, P.P.C. for attempting to commit suicide and sentenced to one year's SI with fine of Rs.2,000, in case of default of payment whereof to further undergo one month SI. He was also allowed benefit under section 382-B, Cr.P.C.

2. Feeling aggrieved the appellant has lodged the instant Criminal Appeal against the above convictions and sentences. The State has also approached this Court with Murder Reference No.29 of 2009 seeking confirmation of death sentence awarded to the appellant. We intend to dispose of the instant appeal and the Murder Reference through this single judgment.

3. Epitome of the prosecution case as set-forth in the F.I.R. is that in between the night of 25/26-5-2008 at about 10 P.M. in the area of Mauza Kotla Mohana Lal Bakhsh complainant and his daughter Mst. Abida Bibi was sleeping on their cots in the courtyard of his house when the appellant Ghulam Hussain alias Mangal armed with Chhuri entered the house, caught hold of Mst. Abida from her hairs and inflicted multiple Chhuri-blows on different parts of her body. On hearing hue and cry complainant attempted to apprehend Ghulam Hussain who also seriously injured him with Chhuri blows on various parts of his body including head, chest and abdomen, Mst. Abida Bibi got injuries on her head, face, neck and other parts of the body. Responding to the noise complainant's sons Shaukat Ali and Mukhtar Ahmad and other people attracted to the spot who while witnessing the occurrence attempted to apprehend the accused/appellant whereupon he himself caused multiple injuries on his own head and abdomen with an intention to commit suicide. P.Ws. with the help of other people apprehended the accused/appellant along with offence weapon Chhuri. Abida Mai succumbed to the injuries at the spot. The occurrence was reported to Mushtaq Ahmad, Zamindar who informed the police and the police reached the spot where the accused/appellant along with offence weapon Chhuri was produced to the police and also made his statement to Khaleeq Iqbal Sub-Inspector at the spot on the basis whereof F.I.R. was recorded on 26-5-2008 at 2-00 a.m.

4. Khaleeq Iqbal, SI/Investigating Officer of this case (P.W.11) deposed that on 25-5-2008 when he was posted at Police Station Sadar Sadiqabad, Chowki Bahadurpur, pursuant to receipt of a message from wireless about the occurrence at 10 p.m. he reached the place of occurrence at 12/1.00 (night) along with other police constables on official vehicle, inspected the deadbody of Mst. Abida and prepared her inquest report Exh.PE. He also recorded the statement of the complainant Exh.PB bearing his thumb-impression. He added that the complainant was in serious injured condition and his intestines were appearing out of the belly therefore he was referred to Sheikh Zaid Hospital, Rahimyar Khan in the police escort after preparing his injury statement Exh.PJ/1. He also collected the blood-stained earth beneath the deadbody of Mst. Abida sealed it into parcel through recovery memo Exh.PA attested by the P.Ws. He categorically stated that the accused was also available at the spot in injured condition. His injury statement Exh.PL was prepared and he was referred to THQ Hospital Sadiqabad in police custody and the deadbody of Abida was also dispatched to THQ Hospital, Sadiqabad for postmortem examination in police escort. He deposed that the offence weapon Chhuri (P.1) produced by the witnesses was also taken into possession by him, sealed into parcel through recovery memo Exh.PC, also attested by the P.Ws. He also prepared the sketch of the offence weapon Chhuri Exh.PC/1 attested by the P.Ws. Thereafter he prepared the site-plan Exh.PN showing five identical marks therein and also took hairs of the deceased into possession vide recovery memo Exh.PA along with blood-stained earth. Statements of the P.Ws. were also recorded by him at the spot. He further deposed that after postmortem on the deadbody of Abida Riaz Ahmad Constable produced before him last-worn blood-stained clothes of the deceased i.e. Qameez (P.2), Shalwar (P.3) along with two sealed phials and one sealed envelope which he took into possession vide recovery memo Exh.PG attested by the P.Ws. and thereafter he handed over the deadbody to the heirs of the deceased. Meanwhile accused was referred to the Sheikh Zaid Hospital Rahimyar Khan due to his serious condition; that he recorded formal arrest of the accused on 31-5-2008 and thereafter sent him to judicial lock-up. He also obtained MLC of Lal Bakhsh complainant and got prepared scaled site-plan in triplicate from the Patwari Halqa and thereafter he submitted the file to the SHO for submission of the challan under section 173, Cr.P.C. against the accused Ghulam Hussain.

5. After submission of the challan in the court accused/appellant was formally charge sheeted under sections 302/324/325, P.P.C. to which he did not plead guilty and claimed to be tried.

6. Prosecution has produced as many as 14 witnesses besides report of the Chemical Examiner pertaining to the blood -stained earth Exh.PN, report of the Chemical Examiner regarding blood-stained Chhuri Exh.PO and report of Serologist (Exh.PO/1) pertaining to blood-stained Chhuri. Lal Bakhsh injured, complainant (P.W.2), Mukhtar Ahmad (P.W.3) the eye-witness, Dr. Nadia Parveen (P.W.4) who conducted the postmortem examination on the deadbody of Abida deceased, Dr. Noor Ahmad (P.W.6), Dr. Mukhtar Ahmad (P.W.7) and Dr. Mushtaq Ahmad (P.W.8) who medically examined the injured complainant Lal Bakhsh (P.W.2) and the accused/appellant Ghulam Hussain and investigating officer Khaleeq Iqbal SI (P.W.11) are the material witnesses besides the formal witnesses.

7. After concluding the prosecution evidence statement of the accused/appellant under section 342, Cr.P.C. was recorded by the learned trial Court whereby he denied each and every piece of prosecution evidence while pleading his innocence. In reply to the question "Why this case against you and why the P.Ws. deposed against you" the accused/appellant replied as under:-- "All the P.Ws. are closely related inter-se. That the deceased Mst. Abida was my maternal cousin. Her mother is my real maternal aunt. As a result of custom of Watta Satta the marriage of the complainant's son namely Ahmed was solemnized with daughter of Khair Muhammad and hand of deceased Mst. Abida was to be given to the son of Khair Muhammad. Lal Bakhsh complainant refused to give hand to Shaukat Ali and shifted from Chowk Bahadarpur to Kotla Mohana. Khair Muhammad threatened to Lal Bakhsh that he will not spare the complainant party. On 26-8-2008 at Assar Waila I was present at Chowk Bahadurpur, the complainant Lal Bakhsh called me in order to help for irrigation. When I reached over there Lal Bakhsh told me that the fuel had not been provided by the landlord, so irrigation could not be possible today and asked me to stay with him. During the odd hours of night some unknown persons put cloth on my face and started causing Chhuri blows on different parts of my body including head. I became senseless and came into senses in hospital and at that time I came to know about the death of Mst. Abida. I am innocent and falsely involved in this case just to save the real culprits whom are in-laws of Ahmed son of the complainant."

8. Accused/appellant neither produced any defence evidence nor opted to make any statement on oath in terms of section 340(2), Cr.P.C.

9. Learned counsel for the appellant has argued that he has been falsely implicated in this case with malice; that the deceased Mst. Abida was his maternal cousin; that in fact on 25-5-2008 at Asarwela he was present at Chowk Bahadurpur when the complainant Lal Bakhsh called him to help in irrigation of the land; that when he reached to Lal Bakhsh complainant he told him that the landlord has not provided him fuel for engine to irrigate the land and also asked him to stay with him; that during the late hours of the night some unknown persons put cloth on his face and caused multiple Chhuri blows on different parts of his body including the head and consequently he became senseless and retrieved his senses in the Hospital where he also came to know about the murder of Mst. Abida Bibi. Learned counsel for the appellant added that the P.Ws. are related to each other as well as the deceased; that the ocular account produced by the prosecution is self-contradictory as well as inconsistent; that the medical evidence fails to furnish sufficient corroboration to the ocular account; that the recovery of offence weapon Chhuri was not effected from the appellant/accused rather fabricated; that motive attributed against the appellant/accused is not substantiated through reliable evidence and that he is falsely implicated in this case to save the real culprits who are in-laws of Ahmad son of the complainant.

10. On the other hand learned DPG for the State assisted by the learned counsel for the complainant contended that in the promptly lodged F.I.R. appellant/accused is specifically nominated with particular attribution of causing murder of Mst. Abida and attempting murderous assault upon Lal Bakhsh complainant by inflicting multiple Chhuri blows as well as for suicidal attempt by inflicting Chhuri blows to himself apprehended at the spot along with offence weapon Chhuri and handed over to the police at the spot along with offence weapon; that presence of the accused is admitted at the time and place of occurrence; that the accused/appellant is close relative of the complainant therefore it is neither a case of mistaken identity nor of substitution; that the motive particularly alleged by the complainant in the F.I.R. is not denied by the accused/appellant; that the prosecution has proved its case to the hilt through ocular account of the complainant injured P.W. and the eye-witness Mukhtar Ahmad real son of the complainant and brother of the deceased; that the medical evidence has fully corroborated the ocular account produced by the prosecution; that the appellant/accused committed a premeditated wilful murder of Mst. Abida Bibi besides attempting murderous assault upon the complainant; that in absence of extenuating circumstances the learned trial Court has rightly convicted and sentenced the appellant to suffer death for brutal murder of Mst. Abida Bibi as well as other sentences in accordance with law to fulfil the requirements of justice and that there is no force in the instant appeal which is liable to dismissal and the death sentence awarded by the learned trial Court besides other sentences is liable to be confirmed.

11. We have heard the learned counsel for the parties as well as the learned DPG for the State and carefully gone through the record.

12. Lal Bakhsh injured complainant (P.W.2) in his testimony has categorically reiterated the prosecution version as set-forth by him in the F.I.R. While appearing in the witness-box he has furnished details of the occurrence pertaining to the complicity of the accused/appellant regarding infliction of multiple Chhuri blows on the various parts of the body of Abida deceased as well as on his own hand, shoulder, head and abdomen. He has particularly mentioned that the accused/appellant apprehending his failure to escape due to presence of a number of people outside the complainant's house, himself inflicted the injuries on his head and abdomen. The complainant has also reiterated the motive that the accused/appellant having illicit intention towards Abida deceased was stopped by him to visit his house and due to this reason he nourished the grudge and launched premeditated murderous assault upon the deceased as well as the complainant.

13. Simultaneously Mukhtar Ahmad, P.W.3 the eye-witness as well as son of the complainant and brother of Abida deceased while appearing in the witness-box deposed that on 25-5-2008 at 10 p.m. he along with his brother Shaukat Ali P.W. (given-up) were coming home on bicycle when heard hue and cry from their house; that responding to the hue and cry from their house rushed, scaled over the wall and saw that Ghulam Hussain accused was inflicting Chhuri blows to his sister and father; that on their Lalkara Ghulam Hussain cut the throat of his sister Mst. Abida and attempted to runaway, however apprehending presence of number of people outside the house he himself inflicted Chhuri blows on his head and abdomen; that the accused was apprehended at the spot along with the offence weapon and the matter was reported to the police through Haji Mushtaq Zamindar; that on arrival of the police the accused with Chhuri was handed over to the police.

14. Above quoted statement of Mukhtar Ahmad (P.W.3) furnishes full corroboration to the complainant's version regarding time and place of the occurrence and complicity of the accused/appellant by inflicting Chhuri blows to the deceased Abida, Lal Hussain complainant and to himself. Mukhtar Ahmad (P.W.3) being son of the complainant and brother of Mst. Abida deceased is resident of the same house therefore his availability at the time and place of occurrence as explained by him cannot be doubted. Besides defense side has not denied the presence of Mukhtar Ahmad P.W.3 at the time and place of occurrence as alleged by him. During cross-examination upon him it is nowhere suggested by the defence side that he was not present at the time and place of occurrence. Presence of Lal Bakhsh injured complainant at the time and place of occurrence is also not doubtful at all. Therefore, we have no reason to disbelieve or discard their testimonies. Mere relationship between the P.Ws. is no ground to discard their statements.

15. Medical evidence produced by the prosecution through the testimonies of Dr. Nadia Parveen (P.W.4), Dr. Noor Ahmad (P.W.6), Dr. Mukhtar Ahmad (P.W.7) and Dr. Mushtaq Ahmad (P.W.8) also furnishes full corroboration to the ocular account produced by the prosecution. Lady Doctor Nadia Parveen (P.W.4) in the postmortem report Exh.PD of Abida deceased has recorded 21 incised wounds (major and minor injuries) on various parts of her body furnishing cause of death due to haemorrhage and shock on account of injuries on the vital organs i.e. heart, lever, lung and major blood-vessels and neck. Simultaneously P.W.6 Dr. Noor Ahmad Niazi, M.O. Sheikh Zaid Hospital, Rahimyar Khan who conducted medical examination of Lal Bakhsh injured complainant (P.W.2) on 25-5-2008 has recorded as many as eight incised wounds on various parts of his body including abdomen, shoulder, chest and right hand. He also deposed that due to serious condition of the victim he was immediately shifted from Emergency to Operation Theater and operated upon to repair his stab wounds and thereafter shifted to the Surgical Ward.

16. Mukhtar Ahmad eye-witness (P.W.3) in his examination-in-chief has also testified the presentation of offence weapon Chhuri (P.1) to the investigating officer Khaleeq Iqbal, SI (P.W.11) during his first visit at the spot who had taken it into possession through recovery memo Exh.PC. Simultaneously Khaleeq Iqbal, SI (P.W.11) has also verified it in his statement that the same was transmitted to the office of Chemical Examiner wherefrom it was reported blood-stained vide report Exh.PO and further verified by Serologist as stained with human blood through report Exh.PO/1. Careful appraisal of the aforenoted ocular account, medical and documentary evidence produced by the prosecution through the help of confidence inspiring and reliable witnesses leads us to formulate the opinion that the prosecution has proved its case regarding complicity of the accused Ghulam Hussain to the hilt.

17. On the other hand, learned Defence counsel has taken much reliance upon various suggestions put by him to the P.Ws. We take up his contentions one by one as under:-- (i) It is argued by the learned counsel for the appellant that the complainant has mentioned during cross-examination that when the appellant inflicted Chhuri blows to Abida Bibi he was alone therefore presence of Mukhtar Ahmad (P.W.3) at the time and place of occurrence is doubtful. Learned appellant's Counsel is misconceived. It is no-where suggested by the defence to Lal Bakhsh complainant (P.W.2) that Mukhtar Ahmad was not present at the time and place of occurrence. The defence side has also failed to put this suggestion to Mukhtar Ahmad P.W.3 during cross-examination, therefore, this argument of the learned Counsel for the appellant is devoid of any force. (ii) It is argued by the learned appellant's Counsel that the complainant as well as Mukhtar Ahmad P.W. have admitted during cross-examination that Rishta of Abida was promised to son of Khair Muhammad in exchange of the daughter of said Khair Muhammad married to Ahmad son of the complainant and the complainant later on refused to give hand of Abida to Shaukat Ali son of Khair Muhammad and thereafter shifted his abode from Chak Bahadur to Kot Mohana. On the basis of above admissions learned appellant's Counsel has added that Khair Muhammad had caused a threat to the complainant to take revenge and that the alleged occurrence is committed by son of Khair Muhammad. This argument of the appellant's Counsel is also devoid of any force for the simple reason that mere admission of any differences between the complainant and his relatives over the dispute of hand of Abida Bibi deceased does not create any dent or doubt in the statements of the P.Ws. with regard to details of the occurrence on material dimensions. Needless to mention that minor and immaterial discrepancies or inconsistencies in the statements of P.Ws. do not reflect upon the intrinsic value and inherent worth of their statements. (iii) It is also argued by the learned counsel for the appellant that Dr. Mushtaq Ahmad P.W.8 who had medically examined Ghulam Hussain appellant/accused in injured condition on 26-5-2008 recorded multiple incised wounds on his head as injury No.1 and an elliptical incised wound on his abdomen as Injury No.2 while facing cross-examination categorically stated that there is no possibility of self-infliction of injuries to the accused in this case and it is very difficult that a person could inflict as many injuries caused to the accused at a time. The appellant's counsel has added that the aforementioned opinion of the doctor renders the prosecution case doubtful that the injuries on the body of the accused/appellant were self-inflicted. In this regard suffice to say that such like opinion of a doctor cannot be awarded any preference over and above the confidence inspiring and reliable ocular account furnished by the injured complainant Lal Bakhsh (P.W.2) and Mukhtar Ahmad eye witness (P.W.3). Keeping in view the appellant's admission about his presence at the time and place of occurrence of murderous assault upon Abida Bibi and Lal Bakhsh complainant by inflicting multiple Chhuri blows on various parts of their bodies in the background of the alleged motive as well as apprehending his failure to escape from the scene of occurrence in presence of P.Ws. and other people who had gathered outside the house of the complainant at that time, a suicidal attempt by inflicting Chhuri blows upon his abdomen and head cannot be ruled out in the given circumstances. Opinion of the doctor is not worth to cast any reasonable doubt in the prosecution case fully established on the record. Therefore this argument of the learned counsel for the appellant is also repelled.

18. Besides above, the defence version as put-forth to the P.Ws. during cross-examination and also advanced in the statement of the accused/appellant under section 342, Cr.P.C. mostly evolves around a couple of suggestions referring to some family dispute of the complainant with his relatives i.e. in-laws of the complainant's son Ahmad over a dispute of Rishta of Abida deceased. On the basis of the above suggestions defence side has pleaded the plea of substitution. In this regard it is pertinent to mention that the accused has admitted his presence at the time and place of occurrence. However defence plea that in the same evening complainant had called him as a helping hand to irrigate the land but later on abandoned due to non-availability of the fuel and asked to stay with him at night does not appeal to reason. If the complainant had abandoned the plan to irrigate the land there was no reason to ask the accused/appellant to stay with him for a night. It is also important to note that even statement of the accused under section 342, Cr.P.C. is self-contradictory. In the earlier lines he has contended that some unknown persons inflicted injuries to him by putting a cloth upon his face, however in the concluding lines he says that the real culprits are in-laws of Ahmad son of the complainant.

19. It is an established principle of law that substitution is a rare phenomenon in the criminal justice system. The story of substitution is mostly used in unseen cases where the complainant has an option to implicate any person keeping in view the motive and degree of enmity with a particular person. Plea of substitution for real culprit in a murder case not supported by any speck of evidence on record is a mere banal and devoid of any force. In the instant case admittedly accused/appellant is also closely related to the complainant. Wife of the complainant is real maternal aunt of the appellant/accused. In view of above noted close relationship, substitution of real culprit with the accused/appellant cannot be believed especially when the complainant and the P.Ws. have no enmity against the appellant/accused for his false implication. Reliance is made upon Allah Ditta v. The State (PLD 2002 SC 52) and Khair Muhammad and another v. The State (2007 SCMR 158-Appellate Jurisdiction).

20. It is an established principle of law of evidence that mere suggestion from the defence side put to the P.Ws. during cross-examination and categorically denied have no evidentiary value unless corroborated by independent evidence produced from the defence side. In this case defence side has neither produced any evidence nor accused/appellant himself opted to appear in the witness box to make any statement on oath under section 340(2), Cr.P.C. Therefore, plea raised by the accused/appellant in his statement under section 342, Cr.P.C. or through suggestions put to the P.Ws. in cross-examination is not maintainable at all. Reliance is made upon Naveed Akhtar and another v. Muhammad Saeed Khan and another (2004 SCMR 1489-Appellate Jurisdiction).

21. Careful appraisal and comparative analysis of the material available on the record therefore makes it crystal clear that the prosecution has proved its case to the hilt with the help of wholly reliable ocular account based on confidence-inspiring and reliable testimonies of the injured P.W. and eye- witness corroborated by the medical evidence and recovery of the offence weapon Chhuri. Arraignment of the appellant as actual assailant of the occurrence resulting into a callous and brutal murder of Abida and alike attempt of murderous assault upon Lai Bakhsh complainant causing serious injuries on the vital parts of his body is fully proved beyond any iota of doubt. Therefore, we are of the considered view that the learned trial Court has rightly convicted him for the charges established against him.

22. Certainly this is not a case of Qisas as the P.Ws. are not subjected to the test of Tazkia-tul-Shahood in terms of Article 17(1) of the Qanun-e-Shahadat Order, 1984. Therefore, conviction of the appellant/accused under section 302(b), P.P.C. as Tazir as well as other offences under sections 324 and 325, P.P.C. does not call for any interference. As regards quantum of punishment, suffice it to say that in the absence of any extenuating/mitigating circumstances keeping in view the brutal and callous murder of Mst. Abida deceased by causing as many as 21 major and minor injuries in result of multiple Chhuri blows on various parts of her body as well as eight injuries on the person of the complainant P.W. inflicted with Chhuri in result of an attempt of murderous assault upon him therefore leads us to formulate the opinion that capital punishment of death awarded to him under section 302(b), P.P.C. as well as quantum of other sentences awarded to him under sections 324 and 325, P.P.C. by the learned trial Court are salutary and do not call for any interference.

23. For the above discussion and reasons, this appeal having no merit is dismissed. Death sentence awarded to the appellant/accused is confirmed and the Murder Reference is answered in positive. MH/G-7/L Appeal dismissed.