2018 PLP 259 (YLRN)

MALIK HAQ NAWAZ, J.

The appellant/convict Arif Hussain son of Shaffa Ali was booked for the above offences and stood trial in the Court of learned Additional Sessions Judge Gilgit.

2. The instant case was registered on the complaint submitted by one Sulaiman son of Ali Muhammad, father of deceased Mst. Mumtaz, which was converted into FIR No. 5/2007 dated 09-01-2007 (Exh. PW-9/B). The complainant charged convict/appellant for commission of murder of his daughter and the motive of the murder was stated that the deceased being step mother of accused, the accused was nurturing a grudge in his mind and was having strained relations with the deceased.

3. The appellant was arrested on the same day and after necessary investigation he was sent to face trial in the Court of learned Sessions Judge Gilgit. The case was registered in the relevant register as Session case No. 13/2007 and the proceedings of the case started.

4. As evident from the order sheet dated 13-05-2013 the learned Sessions Judge, entrusted the case to the Court of learned Additional Sessions Judge for disposal. In order to prove the case prosecution examined 11 PWs and the learned District Public Prosecutor closed the case. The accused was examined under section 342, Cr.P.C. on 10-09-2013. However the accused did not opt to produce any DW or to be examined on oath under section 340(2), Cr.P.C. in disproof of charges against him.

5. On 21-12-2013, the learned trial Court announced its verdict and awarded death sentence to the accused under section 302(b), P.P.C., with a fine of Rs. 5,00,000/- (five lac) under section 544-A, Cr.P.C. and in default thereof to suffer one year R.I.

6. Being aggrieved from the order of learned trial Court the appellant has approached this Court by filing the instant Criminal Appeal No. 35/2013.

7. The learned counsel for the convict/appellant submits that there is no any worth reliance evidence on the file to connect the appellant with the crime as the FIR lodger who is real father of the deceased lady has been declared hostile. Per learned counsel when the FIR lodger has disowned the FIR, the superstructure built thereon would fall to ground. The star witness of prosecution Mst. Kalsoom, a daughter of deceased lady and step sister of convict/appellant when examined in Court has not supported the case in true sense, while PW-6 Sharif Hussain real son of deceased Mst. Mumtaz was a minor and he was not competent to depose in Court. These PWs being interested witnesses should not be believed, while PW-3 Fida Ali who is neighbour of deceased lady though deposed in favour of prosecution but the story put forth by this PW does not appeal to a prudent mind. The pistol of 30 bore, which was allegedly recovered from the accused was not sent to forensic expert for expert opinion, hence, no independent corroboration is available on record to sustain conviction on a capital charge. The learned counsel contended that the appellant was minor at the time of commission of offence and his trial by the learned Additional Sessions Judge was Coram non judice.

8. On the other hand the learned Deputy Advocate General vehemently controverted the arguments raised by learned counsel for the convict/appellant submitted at bar that the statement of PW-1 Mst. Kalsoom, PW-2 Fida Ali, PW-4 Muhammad Ullah and PW-6 Sharif Hussain are all in line with each other and postmortem report of deceased is on record, which also corroborates the story of prosecution. There is also report of chemical examiner which is an independent piece of corroboratory evidence. Finally the learned Deputy Advocate General submits that the conviction awarded by the learned trial Court be maintained as the convict/ appellant committed a cold blooded and gruesome murder of his step mother without any justified reasons.

9. We have heard the learned counsel for both the parties at length and scrutinized the record with their able assistance.

10. The instant case was registered on the complaint of one Sulaiman real father of deceased Mst. Mumtaz, who turned hostile in the trial Court. The ocular evidence of the case has been furnished by PW-1 Mst. Kalsoom, daughter of deceased and her real son PW-6 Sharif Hussain. Both these witnesses are inmates of the house and the accused is their step brother. Both these witnesses have narrated this tragic occurrence in a natural manner and without any exaggeration. The defence despite lengthy cross-examination could not shatter their trustworthy evidence. Not a single suggestion has been put to any of the two witnesses for sparing the real culprit and substitution of accused. We scanned the evidence of both these PWs but found that even no previous enmity or any ill will is attributed to both of these witnesses. The defence has not challenged the time of occurrence, venue of occurrence and the manner of occurrence nor alleged any motive to rope in the accused in the case of capital punishment. The statements of these PWs were promptly recorded and they remained in line to their statements in the Court throughout. PW-6 Sharif Hussain, though was a "child witness" but the learned trial Court took all the legal precautions and fulfilled the formalities and ensured that the PW is capable to understand the consequences and implication of his statement. Article-3 of Qanun-e-Shahadat, 1984 does not specify any age limit of child, the law requires only intelligence and capability of understanding the questions and their rational answers. The evidence of a child witness cannot be discarded merely on account of his being of tender age. The statements of PW-1 Mst. Kalsoom and PW-6 Sharif Hussain are supporting each other on almost all material points and not an iota of doubt is in our mind that these witnesses either involved the appellant, who is their step brother falsely or have exaggerated the story of occurrence. As discussed above the trial Court is quite competent to record its observations by putting certain questions to adjudge the capability of understanding of a child and then to record his evidence. The question put to PW-6 Sharif Hussain by the defence also depicts a clear picture that he was intelligent enough to meet the abrupt and technical questions put by the defence. The statements of PW-3 Fida Ali and PW-4 ASIP Muhammad Ullah, who both are neighbours of accused and their statements are also in line with the prosecution story. The accused immediately after commission of murder knocked the doors of these two PWs and narrated the occurrence before them. These two PWs are natural witnesses and we have gone through the examination-in-chief and cross-examination of these PWs and astonished that their evidence regarding conduct of accused soon after the occurrence has not been challenged and not a single suggestion has been put to these PWs that either they were deposing falsely or the accused has not approached them soon after the occurrence. We found that only some formal questions have been put just to fill in the blank. It is now an admitted legal proposition that evidence of a witness on a "fact in issues" if not challenged by the adverse party the same is admitted as correct and the statements of almost all the PWs completely went unchallenged.

11. As evident from the statements of PW-3 Fida Ali and PW-4 ASIP Muhammad Ullah, the local police arrived at the place of occurrence and accused was handed over to the police. The accused handed over a 30 bore pistol bearing No. 544 to the local police, which was taken into possession vide Exh. PW-7/A and one crime empty of 30 bore pistol was also recovered from the place of occurrence and taken into possession vide Exh. PW8/D. The weapon of offence was not sent to forensic expert for expert opinion, the reasons for non-sending of the crime weapon to forensic expert are not available on file. A letter of I.O. dated 25-02-2017 is available at page 65 of the file of the trial Court, by means of which I.O. of the case sent the weapon of offence and crime empty for their onward transmission to forensic expert but we scanned the file and could not find any report of forensic expert, thus recovery of pistol by itself does not lend any support to the prosecution case.

12. Postmortem of deceased Mst. Mumtaz was performed by PW-5 Dr. Ghazala Wazeer, and as evident from the contents of Exh. PW-5/A, the cause of death has been shown to be the result of a bullet fired from fire arms from a distance of less than three feet. The postmortem report is a strong piece of corroboratory evidence. Medical evidence though does not establish identity of an accused yet the same could be read in favour/otherwise of ocular evidence.

13. Investigating Officer of the case during investigation of the case collected blood stained pieces of bed sheet, pillow cover, shirt of deceased and these items were sent to chemical examiner for chemical expert opinion, which report is also positive and available at page 39 of the file of trial Court. On 10-09-2013, the accused was examined under section 342, Cr.P.C. The accused pleaded innocence and a bare denial of the occurrence came from his mouth. The accused failed to put forth any justifiable reasons for his false implication and that too in the murder of his own step-mother. No motive has come on record for commission of murder of deceased but now Courts of the country are almost all consistent that absence of motive is not fatal for the prosecution as motive is mostly hidden in the mind of an accused.

14. The FIR of the instant case was lodged by PW-2 Sulaiman, who is real father of deceased lady. He turned hostile when entered into witness box and stated that he has not lodged any report regarding the occurrence, which is very unfortunate. The FIR was lodge on 09-01-2007 and he was examined on 20-08-2007. During whole of this period, this PW remained mum and did not approach any law enforcing agency or any Court of law and did not disown the FIR. When cross-examined by learned District Public Prosecutor, he admitted his signatures on the application for registration of FIR but gave a vague and untenable explanation for putting his signatures on the application. FIR is just to set the law in motion and if FIR lodger does not own the FIR at trial, the same shall not effect the fate of the case, if from the other attending circumstances and reliable evidence, offence is proved. The contention of learned counsel that the accused was minor at the time of trial was minor is devoid of any legal foundation. We confronted the learned counsel for the appellant to the prosecution evidence, wherein it was not suggested to any of the PWs and even to the I.O., that the accused was minor at the time of commission of offence. No oral/ documentary evidence was tendered in evidence in support of the bare claim of minority. The accused while being examined under section 342, Cr.P.C. also failed to took any such plea. We also gone through the arguments advanced before the learned trial Court, wherein no such arguments were raised. In absence of any proof or plea we out-rightly reject the claim of the appellant.

15. For the above detailed discussion, we are of the view that prosecution has established the guilt of the accused beyond any shadow of doubt and he was rightly convicted by the trial Court. There are no mitigating circumstances available in the case and the death sentence was appropriate sentence awarded to the convict/appellant.

16. The instant appeal is meritless, which is dismissed accordingly.

17. Murder reference sent by the learned trial Court under section 374, Cr.P.C. is answered in positive. HBT/198/GB Appeal dismissed.