2017 PLP 338 (YLRN)

MUHAMMAD TARIQ ABBASI, J.

This single judgment shall decide the above captioned criminal appeal as well as the murder reference, as both are outcome of single judgment dated 25.5.2009, passed by the learned Sessions Judge, Khanewal, whereby in case FIR No. 137 dated 06.4.2007, registered under sections 302/34, P.P.C., at Police Station, City Khanewal, District Khanewal, Muhammad Siddique, appellant has been convicted under section 302(b), P.P.C. and sentenced to death, with compensation of Rs.50,000/-, payable to the minor children/legal heirs of Mst. Janat Bibi (deceased), otherwise he shall undergo S.I. for six months.

2. The facts are that Muhammad Amin, complainant (PW-1) made the statement (Ex.PA), before the police, contending therein that on 5.4.2007, when he along with his family members was sleeping in his house, at about 12:15 a.m, he heard cries coming from the house of his sister Mst. Janat Bibi (deceased), hence he as well as his brother Abdul Jabbar (PW-2) and Muhammad Saleem (given up PW) rushed to the said house; in the electric and moon light, they saw that Mst. Janat Bibi was lying on a cot and Mst. Hajiran Bibi (accused since P.O.) had caught hold of her feet, whereas Muhammad Siddique (appellant/ convict), while armed with a hatchet and Hameed (co-accused since P.O.) having poker (Soowa) were standing near the cot; within their view, Muhammad Siddique (appellant/convict) made two successive blows of hatchet, which hit at forehead and head of Mst. Janat Bibi (deceased); Hameed (co-accused sine P.O.) inflicted poker (Soowa) at temporal region of Mst. Janat Bibi and blood started oozing from the wounds; they tried to catch hold the accused but were threatened that whosoever would come near, would also be met with in the same way, hence due to fear they were restrained; all the accused with their respective weapons fled away. The motive as alleged by the complainant was a family dispute between the appellant/convict and the deceased and that a day earlier, the matter was patched up from the court and the deceased had gone to the house of the appellant/convict but murdered.

3. During investigation, the appellant/convict was found to be involved, hence challaned to the Court. He was formally charge sheeted on 12.1.2009 but pleaded not guilty and claimed trial, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined as many as 09-witnesses. Gist of evidence of the material witnesses is as under:- i) PW-1 Muhammad Ameen complainant as well as eye-witness had deposed almost the same facts as were narrated by him in the complaint (Ex.PA). ii) PW-2 Abdul Jabbar another eye-witness of the alleged occurrence had supported and corroborated the version of the complainant (PW-1) in all its four corners. He had also attested the memos Ex. PB and Ex. PC, through which the last worn clothes (P-1 to P-3), as well as the blood stained earth and the hatchet (P-4) got recovered by the appellant/convict were respec-tively taken into possession by the I.O. iii) PW-3 Dr. Humaira Mushtaq had conducted the post-mortem examination of the dead body on 6.4.2007 and prepared report Ex.PE and diagram Ex.PE/1. At that time, following injuries were noticed on the dead body:- INJURIES:

1. Incised, wound 10 x 3 cm on the left side of head 6 cm behind of left ear. It was bone deep. Bones were fractured and brain matter was protruding out of the wound.

2. Incised wound 7 x 1 cm on front side of forehead which was bone deep.

3. Penetrating injury 1 x 1 cm on left side of cheek 3 cm in front of left ear. As per the doctor, the above mentioned injuries were anti mortem in nature and result of death and that the probable time between injuries and death was within an hour. v) PW-8 Muhammad Shafi, SI had recorded the statement (Ex.PA) of the complainant and also carried on the investigation, during which prepared injury statement (Ex.PG), application for postmortem examination (Ex.PH), inquest report (Ex.PJ) and transmitted the dead body to the hospital for postmortem examination; inspected the spot and drafted rough site plan (Ex.PK); collected blood stained earth from the spot, made into sealed parcel and secured it through memo (Ex.PL); took into possession the mattress through memo (Ex.PM); secured the blood stained clothes of the deceased (P-1 to P-3) vide memo (Ex.PB); got prepared the scaled site plan (Exs.PF and Ex.PF/1); arrested the appellant/convict on 27.4.2007 and took into possession blood stained hatchet (P-4), got recovered by the appellant/ convict on 6.5.2007 through memo (Ex.PC); deposited the parcels in the Malkhana; recorded statements under section 161 Cr.P.C. of the relevant witnesses at relevant stage and ultimately got the appellant/convict challaned.

4. After got examining the prosecution witnesses, the reports of the chemical examiner and the serologist were tendered as Ex.PO, Ex.PP, Ex.PQ and Ex.PR and the case for the prosecution was closed. Thereafter, the appellant/convict was examined under section 342 Cr.P.C, during which, the questions emerging from prosecution evidence were, put to him and he denied almost all such questions, while pleading his innocence and false involvement, in the case, with mala fide. The question "Why this case against you and why the PWs have deposed against you?" was answered by the appellant/convict in the following words:-- "This case is false and fabricated. All the PWs are related inter se. I and my family are residing in Arifwala District Pakpattan. I was residing in Khanewal after my marriage with my wife. On the fateful night I was not present in Khanewal. I was in Arifwala because on the same day I received information from my brother from Arifwala that my mother is seriously suffering from asthma. Some unknown persons have murdered my wife and brother of deceased did not find the real culprits and they put my name as murderer because in this view they want to grave my house which was purchased by my in Khanewal and they also took into possession my animals 52 in number to usurp my house, animals and other valuables brothers of my deceased wife have involved in this case falsely. It was a blind murder." He did not opt to lead evidence in his defence or make statement under section 340(2), Cr.P.C.

5. After completion of all above mentioned proceedings, the learned trial court had pronounces the impugned judgment, in the above mentioned terms. Consequently, the murder reference and the criminal appeal, in hand.

6. The learned counsel for the appellant has argued that the appellant is innocent and falsely involved in the case with mala fide, after due consultation and deliberation; it was a dark night occurrence, which was not witnessed by any one and PW-1 and PW-2 were introduced later on, who had made false statements; statements of eye-witnesses are full of material contradictions, almost on all the material particulars, hence not reliable; the recovery of weapon was not established on the record; the case for the prosecution and the charge against the appellant/convict was not established and proved but the learned trial court had erred in not considering the attending facts and circumstances and passing the impugned judgment, which is not sustainable in the eye of law.

7. The learned Additional Prosecutor General assisted by the learned counsel for the complainant has opposed the appeal, while supporting the impugned judgment to be well reasoned and demand of the situation.

8. Arguments of all the sides have been heard and the record has been perused.

9. In the complaint (Ex.PA), which resulted into registration of the FIR (Ex.PA/1), Muhammad Ameen, complainant (PW-1) had narrated a specific motive that there was a dispute between his deceased sister and the appellant/convict; the matter went to the family court from where it was patched up a day earlier and consequently the deceased, along with minors went to the house of the appellant/convict but he due to grudge had done her to death. The above said alleged motive does not appeal to prudent mind because when the deceased was annoyed with the appellant/convict and residing in the house of the complainant and also filed family suits in the family court, the appellant/convict did not take any step or make any overt act against the deceased, hence it is not acceptable that when the matter was patched up, the suits were decided on the basis of compromise and the deceased started residing with the appellant/convict he had committed her murder. It seems that cause of death, of the lady at the hands of the appellant/convict was something else, which either had not been disclosed by either side or not known to the complainant party. Therefore, it can rightly and safely be said that the alleged motive could not proved and established and real cause of death is still shrouded in mystery.

10. Now coming towards the ocular account, it is stated that both Muhammad Ameen complainant (PW-1) and Abdul Jabber (PW-2) have categorically deposed that when they on hearing alarm and cries coming from the house of their sister (deceased) rushed to the said house, they saw that deceased was made to lie on a cot and the appellant/convict while armed with a hatchet was standing there, who inflicted the said weapon at the head of the lady and done her to death. The above mentioned version of the above named witnesses is corroborative, concurrent, consistent and confidence inspiring. The defence had cross-examined the witnesses at length but during the said exercise neither their statements could be shaken nor any dent or scratch in their versions could be created or any other material favourable to the appellant/convict could be brought on the record.

11. Admittedly, the deceased was sister of the above named witnesses, residing in their neighbourhood hence it was natural for them to attract at the spot, on hearing alarm of their sister. Both witnesses had justifiably and satisfactorily explained their appearance and availability at the spot. Therefore, the arguments of the learned counsel for the appellant that the witnesses were not available at the spot and introduced later on do not have any force.

12. The occurrence was promptly reported to the police, hence no chance of any consultation or deliberation as alleged by the learned counsel for the appellant/convict.

13. Although the above named eye-witnesses are closely related inter se as well as the deceased but their no grudge or enmity with the appellant/convict could be established on the record, hence mere relationship is not sufficient to discard their testimony, which otherwise is trust worthy and confidence inspiring. In this regard reliance is placed in case of "Haji v. The State" (2010 SCMR 650, in which it has been held by the Hon'ble Supreme Court of Pakistan that:- "Both the ocular witnesses undoubtedly are inter se related and to the deceased, but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence, which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."

14. During postmortem examination, the injuries found at the head of the deceased were the same as described by the above named eye-witnesses, hence it can safely be said that the ocular account and the medical evidence are in line to each other.

15. Recovery of the hatchet (P-4) at the instance of the appellant/convict has been alleged. It has further been alleged that the said weapon for the analysis was sent to the laboratory. Reports of the chemical examiner as well as the serologist regarding the said weapon are available on the record as Ex.PO, Ex.PP, Ex.PQ and Ex.PR respectively, according to which the weapon was found to be stained with blood which was of human origin but nothing is available on the record that the blood was, of the origin of the deceased. Therefore, the said recovery has not given much benefit to the prosecution.

16. The appellant/convict has taken plea of alibi before the learned trial court but failed to establish it. Even during arguments of the appeal, no material in support of the said alleged plea has been brought on the record. Hence, the said plea nothing but a bald assertion could not be given any importance. Reliance in this regard may be placed upon case Hayatullah Khan and another v. Muhammad Khan and others (2011 SCMR 1354), wherein the following was held:-- "Let we mention here at this juncture that the plea of alibi being a distinct plea is required to be substantiated by adducing cogent and concrete evidence which aspect of the matter has been altogether ignored by the Investigating Officer as well as the learned Judicial Magistrate."

17. As a result of what has been discussed above, we have come to the conclusion that the impugned judgment towards conviction of the appellant for the offence under section 302(b), P.P.C., being result of correct appreciation and evaluation of the material available on the record was call of the day. As about the quantum of sentence, it is stated that non establishment of the alleged motive and hiding of the real facts and circumstances, which resulted into murder of the lady at the hands of the appellant/convict, in our view are sufficient to give consideration towards quantum of his sentence. Reliance in this respect is placed in case "Muhammad Imran alias Asif v. The State" (2013 SCMR 782) and Naveed alias Needu and others v. The State and others (2014 SCMR 1464), the relevant portion whereof reads as under:-- "Upon our own assessment of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecution had indeed remained for from being established on the record. The law recently declared by this court in the cases of Ahmed Nawaz and another v. The State (2011 SCMR 593), Iftikhar Mahmood and another v. Qaisar Iftikhar and others (2011 SCMR 1165) and Muhammad Mumtaz and another v. The State and another (2012 SCMR 267) reiterates the settled and long standing principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice."

18. Furthermore, it has been found that there are minor children of the appellant and the deceased. Their mother has been murdered and the father (appellant) is lying in death cell. If the capital sentence awarded to the appellant is maintained then the minors will also be deprived of their father and in this way their whole life will ruin and fall in miseries. In our humble view the said aspect is also a ground to give premium to the appellant towards quantum of his sentence.

19. Due to the above mentioned reasons, the conviction of Muhammad Siddique, appellant under section 302(b), P.P.C. is maintained but his sentence is converted from death to imprisonment for life. The compensation awarded to him by the learned trial court and sentence in its default is maintained and up-held. The benefit of section 382-B, Cr.P.C. is also provided to the appellant.

20. Consequently, with the above said modification, in the sentence of Muhammad Siddique, appellant, Crl. Appeal No. 446 of 2009 is dismissed. Murder Reference No.119 of 2009 is answered in negative and death sentence of Muhammad Siddique is not confirmed. HBT/M-407/L Sentence reduced.