2007 PLP 608 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Muhammad Siddique, appellant, along with his co-accused namely Abdul Majeed, Manzoor Ahmad and Munir Ahmad, was tried by the learned Sessions Judge, Pakpattan Sharif, in lieu of case F.I.R. No.154 registered at Police station Chakbedi on 11-4-1998 for offences under sections 302/452/337-F(I)/34, P.P.C. Vide judgment dated 18-9-2000, the learned trial Judge, while acquitting the aforesaid co-accused of the appellant, convicted and sentenced the appellant Muhammad Siddique as follows:- (I) For offence under section 452, P.P.C. to undergo R.I. for five years plus fine of Rs.5,000, in default in payment whereof to suffer further R.I. for six months; and (II) For offence under section 302(b), P.P.C. to death plus payment of Rs.50,000 as compensation to the legal heirs of the deceased, in default in payment whereof to undergo S.I. for six months.

2. Muhammad Siddique, convict-appellant, has challenged his above noted convictions and sentences through the instant appeal. Murder Reference No.555 of 2000 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.

3. Briefly, the facts of the prosecution case per F.I.R. Exh.PN recorded by Muhammad Anwar Chishti, Inspector/ P.W.11, at the instance of Akbar Ali, complainant/P.W.9, are that the complainant had been residing with his brother-in-law Jahangir in a house situated in the latter's land. Mst. Parveen Bibi/niece of the complainant was married with Muhammad Siddique 3/4 months prior to the occurrence. Due to estrangement of relations with her husband, Mst. Parveen Bibi came to her parental house one month earlier to the occurrence. Muhammad Siddique and Abdul Majeed came to take her back twice or thrice but Rahmat Ali did not send her with them, upon which both threatened that they would forcibly take away Mst. Parveen and also teach a lesson to Rahmat Ali for not sending her with them. On 10-4-1998 at evening time, the complainant along with his family members went on sleeping in his room, while Muhammad Moosa/D.W.2 and Ghulam Rasool/P.W.8, who had come to see the complainant party, slept under a Chhappar. Electric bulb was on in the compound of the house. At about 11-00 p.m. on hearing the alarm, the complainant came out of his room and saw Muhammad Siddique armed with pistol, Abdul Majeed, Manzoor Ahmad, both armed with Sotas, and Munir Ahmad armed with .12 bore gun, entering the house by scaling over the wall. Munir Ahmad raised Lalkara to lift Mst. Parveen and to murder Rahmat Ali. On hue and cry raised by the complainant party, Jahangir, Muhammad Moosa and Ghulam Rasool also woke up. The P.Ws. saw that Muhammad Siddique and Abdul Majeed had trespassed into the residential room of Jahangir where Mst. Zarina Bibi/P.W.6, Mst. Parveen Bibi/P.W.5 and Mst. Jannat Bibi, the sisters of the complainant, were sleeping. Mst. Parveen Bibi was dragged out of the room. Mst. Zarina Bibi intervened but was caught hold of her hair and dragged by Abdul Majeed (acquitted accused). On hearing alarm, Rahmat Ali deceased came out of the room, whereupon Munir Ahmad raised Lalkara that Rahmat Ali should not be spared. Muhammad Siddique/appellant fired a shot from his pistol which hit Rahmat Ali on his left eye, in view whereof the latter fell on the ground. Ghulam Rasool intervened but was given two Butt blows by Munir Ahmad (acquitted accused) hitting him on his right arm and back side of the head. Jahangir and Muhammad Moosa tried to release Mst. Zarina Bibi when Abdul Majeed gave a Sota blow on his right ribs. Manzoor Ahmad (acquitted accused) caused a Sota blow on the back of Moosa. The hue and cry raised also attracted Munir Ahmad and Manzoor/ P.W.8 at the spot. They also witnessed the occurrence. The accused decamped from the scene of occurrence along with their respective weapons. The injured were taken to the Bonga Hayat, Hospital, where Rahmat Ali succumbed to his injuries. As to the motive, it was alleged that Mst. Parveen, who was married with Muhammad Siddique, had come to her parental house on account of estrangement of relations between the two and was not being sent back to the house of the appellant by Rahmat Ali, which annoyed the appellant who had committed the murder of Rahmat Ali.

4. On 11-4-1998, after registration of case at the instance of Akbar Ali/complainant, Muhammad Anwar Chishti, Inspector/P.W.11, went to Rural Health Centre (RHC), Bonga Hayat, where he prepared injury statement Exh.PC and inquest report Exh.PD of Rahmat Ali deceased and sent the dead body of the deceased to DHQ Hospital, Pakpattan, for post-mortem examination. He also prepared injury statements of Ghulam Rasool, Jahangir, Mst. Zarina, Mst. Parveen Bibi and Muhammad Moosa, injured P.Ws. On the same day, the Investigating Officer (IO) went to the spot; collected blood-stained earth and sealed the same into parcel through memo. Exh.PK. He prepared the rough site-plan Exh.PQ of the place of occurrence. He got prepared the site-plan of the place of occurrence (Exh.PO) from Farooq Ahmad Bhatti, Draftsman/P.W.10. On 8-7-1998, Abdul Majeed, Inspector/P.W.12, arrested Muhammad Siddique/appellant, who, while in custody, on the same day, led to the recovery of .12 bore pistol P-5 and four live cartridges P-6/1-4, which were taken into possession vide memo. Exh.PM, attested by Manzoor Ahmad/P.W.8 and one Ghulam Sarwar. After completion of investigation, the appellant along with his acquitted accused was sent up to face the trial.

5. The prosecution examined twelve witnesses in support of its case during trial. Ocular account was furnished by Mst. Parveen Bibi/P.W.5, Mst. Zarina Bibi/P.W.6, Manzoor Ahmad/P.W.7, Ghulam Rasool/P.W.8 and Akbar Ali/P.W.9. In addition to that, P.Ws.5, 6 and 9 also stated about the motive. Manzoor Ahmad/P.W.7 also stated about the recovery of pistol at the instance of the appellant. Dr Aman Ullah Khan/P.W.4 conducted post-mortem examination on the dead body of Rahmat Ali deceased on 11-4-1998. He found two injuries on his person: one was a fire-arm entry wound on the left eye with blackening, pressing the left eye into cranial cavity, protruding out the brain matter and the other was a bruise on the lateral side of upper arm, fracturing the left frontal bone and destroying the brain matter. In the opinion of the doctor, the death was caused by brain damage due to injury. No.1 which was sufficient to cause death in the ordinary course of nature. The injury was caused by fire-arm. The duration between the injury and death was within half to one hour, while the time which elapsed between death and post-mortem examination was 12 to 13 hours. On the same date, the doctor medically examined Ghulam Rasool and, vide MLR Exh.PE, found two injuries on his person; one was a bruise on the lateral side of his right arm and the other was a small swelling on the right side of his upper back, caused by a blunt weapon within the duration of to 1 hour. He also medically examined Mst. Zarin Bibi and vide MLR Exh.P.F. found two abrasions: one on her left knee joint and the other on her right knee joint, caused by blunt weapon within the duration of 1/2 to 1 hour. The doctor also medically examined Mst. Parveen Akhtar and, vide MLR Exh.PG, observing three injuries: one bruise on the outer side of her right lower thigh; one bruise on her left knee joint and one swelling on the right side of her abdomen, opined that the injuries were caused by blunt weapon within the duration of twelve hours. Muhammad Anwar Chishti, Inspector/P.W.11, stated about the registration of the case and the investigation thereafter. Abdul Majeed, Inspector/P.W.12, who also partly investigated the case, stated about the arrest of the appellant, recovery of pistol at his instance and submission of challan against the accused. The rest of the evidence, being formal in nature, need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., pleaded his innocence and false implication, stating that it was an unseen occurrence; in fact, the parents of Mst. Parveen were against her, marriage with him; they demanded her divorce from him and on his refusal to do so, they involved him in this case. He also adopted the statement of his acquitted co-accused Munir Ahmad, which, for facility of reference, is reproduced hereunder:- "All the P.Ws. are related inter-se. They are interested and inimical towards me and my co-accused. It was an unseen occurrence which took place in the odd hours of the night. In fact my son Siddique accused contracted marriage with Mst. Parveen P.W. without my consent. She was already divorced and had a son from her first husband. I was against that marriage as well as the mother of Parveen because she wanted a huge money in the alternative of that marriage. In case of non-fulfilment of demand of mother of Parveen she had continuously insisted for divorce. Muhammad Siddique co-accused was not willing, to divorce Mst. Parveen P.W. Due to this grudge I and my co-accused have been falsely involved in this case. DSP Range Crimes Branch Lahore Rai Muhammad Abdullah declared innocent, me and my co-accused Manzoor and Abdul Majeed and placed us in column No.2 of supplementary challan and according to the finding of aforesaid DSP the real culprits of this case were Noor Lurka, Younas Mochi and Riaz Jatala. Supplementary challan has been submitted against them. I.O. Abdul Majeed Virk conducted defective investigation as he arrested the above said real culprits but did not take legal action against them and challaned me and my co-accused who were innocent in this case. In this regard the Superintendent of Police, Crimes Branch Punjab, Lahore sent a memorandum to the S.P., Pakpattan and recommended for departmental proceedings against Abdul Majeed I.O. who challaned us in this case." The appellant did not appear as a witness in his defence as contemplated by section 340(2), Cr.P.C. However, he produced two witnesses, namely, Rai Muhammad Abdullah, DSP/D.W.1, and Muhammad Moosa/D.W.2 in his defence.

7. Learned counsel for the appellant contends that the occurrence took place during night; hence, the real assailants could not be identified; that on the statements of the eye-witnesses, three co-accused have been acquitted and, thus, no reliance can be placed on them qua the appellant; that the ocular account is not corroborated by any independent evidence; that the motive as set down in the F.I.R. cold not be proved during trial; that the defence plea taken by the appellant, which is supported by D.W.2, husband of Mst. Zarina/P.W.6, appears to be nearer to the truth; and that in any case, it was not a case of capital punishment, as only one fire is attributed to the appellant.

8. Conversely, the learned counsel appearing on behalf of the State submits that Mst. Parveen and Mst. Zarina, P.Ws., were inmates of the house and were injured during the occurrence, so they were natural witnesses; that their statements were fully corroborated by the statements of rest of the witnesses; that the ocular account is fully supported by the medical evidence; that the F.I.R. was lodged without any loss of time which ruled out the possibility of fabrication; that the prosecution has successfully proved motive behind the occurrence; that both the D.Ws. implicated the appellant; that the acquittal of the other accused would not benefit the appellant in the circumstances of the case; that no mitigating circumstance exists in favour of the appellant, who took the life of an innocent person, who was aged about twenty five years. Supports the judgment passed by the learned trial Court.

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

10. The occurrence took place in the compound of the house of the deceased during night at 11-00 p.m. The place of occurrence and the time of occurrence have not been challenged. The presence of Mst. Parveen Bibi/wife of the appellant, who received injuries during the occurrence as well as the presence of Mst. Zarina, who also received injuries during the occurrence, has not been challenged. Both are star witnesses of the occurrence. They have given very consistent account which is supported by the statements of Ghulam Rasool/injured P.W.8, Manzoor Ahmad/ P.W.7 and Akbar Ali/P.W.9. Despite very lengthy cross-examination, no notable contradiction of consequence could be brought on the record of the case. They had no motive to depose falsely against the appellant. Similarly, no reasons existed for substitution which was a very rare phenomenon. The argument of the learned counsel for the appellant that it was a night time occurrence and identification of the assailant was not possible, has no force, as Mst. Parveen Bibi was married with Muhammad Siddique and the occurrence took place in the house of in-laws of the appellant, who knew him very well. Even if there was no light, they could easily identify him, especially where the assailant remained in the house of deceased for a considerable time and during the occurrence six persons including the deceased received injuries. Even otherwise it was mentioned in the F.I.R. that electric bulb was on in the compound of the house and this fact has been mentioned at Point No.8 of site-plan Exh.PO. The learned trial Court acquitted the real brothers and father of the appellant, mainly for the reason that they had not caused any injury to the deceased and were found innocent during the investigation by the DSP/D.W.1. The learned trial Court had followed the principle of safe administration of justice. In the circumstances, the acquittal of the rest of the accused would not benefit the appellant.

11. The occurrence took place at 11-00 p.m., while the matter was reported' to the police by Akbar Ali/P.W.9 within two hours at the police station, situated at a distance of 8 kilometers. The F.I.R. was lodged promptly leaving the little room for fabrication.

12. The medical evidence furnished by P.W.4 Dr. Aman Ullah Khan fully supports the prosecution case. According to him, Rahmat Ali lost his life due to fire-arm injury caused from a close range on the left eye. On the night of occurrence at 12-15 a.m. on 11-4-1998, the doctor medically examined Ghulam Rasool/P.W.8, Mst. Zarina Bibi/P.W.6 and Mst. Parveen Bibi/P.W.5, who had received injuries during the occurrence. No suggestion was given to the doctor that the P.Ws. did not receive injuries during the occurrence.

13. According to the prosecution case, Mst. Parveen Bibi contracted marriage with Muhammad Siddique 3/4 months prior to the occurrence. However, due to some quarrel, Mst. Parveen left the house of Muhammad Siddique one month prior to the occurrence and started living with her parents. Muhammad Siddique had been making efforts to get back his wife. However, Rahamt Ali did not agree to send his sister back to the house of the appellant. During trial it was brought on the record that Mst. Parveen was previously married with Bashir Ahmad who was son of her maternal uncle and that marriage subsisted for five years. Bashir Ahmad divorced Parveen after contracting a second marriage. Thereafter she married with the appellant. In her statement, Mst. Parveen stated that neither Rahmat Ali deceased was in favour of sending her to the house of the appellant nor she was willing to go to the house of her husband. For the reasons noted above, the appellant felt aggrieved. The motive finds support from the statement of appellant himself, as, according to him, the parents of Mst. Parveen were against this marriage and they demanded that the appellant should divorce Mst. Parveen.

14. Though the Investigating Officer (IO) recovered .12 bore pistol from the residential room of the appellant at his instance yet it would not be safe to use the evidence of recovery of pistol against the appellant, as neither any empty nor the pistol was sent to the Forensic Science Laboratory.

15. Now coming to the defence version, it was suggested to the P.Ws. during cross-examination that on the fateful night some thieves had entered into the Ihata of the deceased to steal cattle, Rahmat Ali grappled with the thieves who murdered him. However, in his statement recorded under section 342, Cr.P.C. the appellant did not say a word about the thieves. A perusal of the site-plan Exh.PO reveals that the occurrence took place just in front of the room where Rahmat Ali was lying and the room of the deceased was adjacent to the room where Mst. Parveen Bibi and Mst. Jannat Bibi were sleeping. The accused opted to produce two defence witnesses during trial. D.W.1 Rai Muhammad Abdullah, DSP, who exonerated the brother and father of the appellant, who, according to him, were innocent. However, he did mention the name of the appellant as one of the accused, who had trespassed into the house of the deceased. D.W.2 Muhammad Moosa, who was married with the sister of deceased Rahmat Ali, came out with a stogy that at about 11-00 p.m., he saw Muhammad Siddique appellant along with Noor Lurka, Riaz Jatala and Younas Mochi, inside the compound of the house of the deceased. He and Jahangir father of Rahmat Ali overpowerd Siddique appellant, put him in a room and locked the door from outside. Thereafter, he and Jahangir grappled with the remaining accused, whereupon Noor Lurka fired at Rahmat Ali deceased which proved fatal. He further stated that his wife due to misunderstanding opened the door of the room and Siddique made good his escape. The story put-forward by D.W.2 holds no ground, as it has not been mentioned in it as to how Parveen, Zarina and Ghulam Rasool received injuries during the occurrence. Furthermore he stated that he was medically examined by a doctor privately and not through the police. According to him, during entire investigation, he had never made any statement to the I

0. In other words he came out with the story on 29-6-2000, i.e. after more than two years of the occurrence.

16. In the above noted circumstances, we are of the opinion that the prosecution has successfully proved its case against the appellant beyond doubt through the eye-witnesses, who were inmates of the house and had received injuries during the occurrence; their statements are fully supported by the medical evidence and corroborated by the circumstances of the case as well as motive. The appellant, while armed with a deadly weapon, trespassed into the house of the complainant during night and caused the death of an innocent person, who was in his twenties. No mitigation circumstances exists in his favour; hence, this appeal is dismissed. The judgment passed by the learned trial Court is upheld. The death sentence is confirmed. The Murder Reference is answered in the affirmative. S.M.B./M-512/L Appeal dismissed.