2006 PLP 970 (YLR)

M.A. SHAHID SIDDIQUI, J.--Muhammad Arif appellant was tried along with his brother Tariq Mehmood (since acquitted) by a learned Additional Sessions Judge, Lahore for committing Qatl-e-Amd of Muhammad Nisar alias Afzal in case F.I.R. No.112 of 1998 registered with Green Town Police, Lahore under section 302, P.P.C. read with section 34, P.P.C. on 20-3-1998. The appellant alone was convicted under section 302(b), P.P.C. vide judgment dated 8-11-2000. He was sentenced to death and directed to pay Rs.30,000 or in default of payment thereof to suffer simple imprisonment for six months. Muhammad Arif appellant has assailed his conviction and sentence through Criminal Appeal No.1704 of 2000 whereas the acquittal of Tariq Mehmood co-accused has been challenged by the complainant through Criminal Appeal No.737 of 2001. The complainant has also directed a Revision Petition for the enhancement of sentence awarded to Muhammad Arif appellant. There is also a reference (Murder Reference No.634 of 2000) made by the learned Trial Court seeking confirmation of death sentence awarded to Muhammad Arif appellant. We propose to dispose of all these matters through this consolidated judgment.

2. The occurrence took place on 20-3-1998 at 1-15 p.m. The F.I.R. (Exh.PC) is based on the statement (Exh. PC/1) of Asghar Ali (P.W.10), the real brother of Muhammad Nisar deceased, was on his way to the Police Station when he met Tariq Masood, S.-I./S.H.O. at Qadir Chowk within the area of Police Station Green Town, Lahore. As per F.I.R. Muhammad Nisar alias Afzal deceased was married to Mst. Shahnaz about four years prior to the occurrence. Sometime after the marriage Muhammad Nisar decease got annoyed with his family and shifted to the house of his in-laws situated in Mochipura, Lahore 1-1/2 years thereafter Muhammad Nisar, after having strained relations with his wife, decided to leave the house of his in-laws. While leaving the house he kidnapped Mst. Shaheen (P.W.9), the younger sister of his wife and kept her in the house of some relative without disclosing it to the complainant. In the meantime he left for Saudi Arabia. Four months prior to the occurrence he returned to Pakistan and disclosed that he had abducted Mst. Shaheen and that he had kept her in the house of a relative and that he wanted to marry her. The complainant approached the parents of Mst. Shaheen and on their refusal to accept the proposal, Mst. Shaheen and Muhammad Nisar contracted marriage of their own. The in-laws of Muhammad Nisar reconciled with the situation and started visiting the house of the complainant. On the day of occurrence at about 1-15 p.m. the complainant, Akbar Ali (P.W. not produced), Iftikhar Ahmad (P.W.6) and Muhammad Nisar alias Afzal deceased were present in their house Muhammad Arif appellant and Muhammad Tariq (since acquitted) entered the house while their brother Muhammad Zafar remained standing outside the house. The accused, after exchange of greetings (Dua-Salam) with Mst. Shaheen took seats. Mst. Shaheen went to the kitchen to prepare tea for them. She was followed by Muhammad Tariq accused. Muhammad Nisar deceased was sitting in the company of Muhammad Arif and talking to him. He had just got up when Muhammad Arif Appellant took out a pistol which he had concealed and fired repeated shots at Muhammad Nisar. On the report of fire shot Mst. Shaheen came out of the kitchen and ran towards the room. The complainant and other P.Ws. also got up. Tariq accused took out his pistol and threatened to kill them in case they tried to intervene. Muhammad Nisar after receiving fire-arm injuries fell on the ground and died at the spot. The accused then decamped. Asghar Ali, complainant proceeded towards police station. He met Tariq Masood at 2-50 p.m. at Qadari Chowk and made statement Exh.PC/1.

3. Tariq Masood, S.-I. P.W. 13, visited the spot, prepared Inquest Report Exh.PH, Injury Statement Exh.PJ and seized five crime empties Exh.P:1 to 5 and four led pellets P.6 to P.9. He also collected blood-stained earth from the spot vide memo. Exh.PK and prepared rough site plan Exh.PL. After post-mortem examination which was conducted on 21-3-1998, he collected last worn clothes of the deceased on 3-4-1998. He arrested Muhammad Arif and Muhammad Tariq, accused. On 5-4-1998 Muhammad Arif accused got recovered Mouser P.1 and Muhammad Tariq accused got recovered Pistol P.12. He completed the formalities. Zafar co-accused was found innocent. Accordingly he submitted challan against Muhammad Arif' and Tariq Mehmood, accused. The learned trial Court formally charge-sheeted the accused on 26-7-1999. He pleaded not guilty and claimed trial.

4. The prosecution in order to bring home the charge against the accused produced thirteen witnesses and tendered in evidence the reports of the Chemical Examiner, the Serologist and that of Forensic Science Laboratory. The statements of Muhammad Pervez, Constable, P.W.1 and Faiz Ahmad, Head Constable, P.W.2 are to the effect that they had escorted the dead-body to the Mortuary for post-mortem examination on 20-3-1998. Nazir Ahmad, Constable, P.W.3 stated about the transmission of blood-stained earth and empties recovered from the spot to the office of Chemical Examiner and the Forensic Science Laboratory, Lahore. Nadeem Khan P.W.4 deposed about five empties P.1-5 and four led pieces P.6-9, which were taken into possession by the I.O. on 20-3-1998. Khalid Javed, A.S.-I. stated that he had drafted formal F.I.R. (Exh.PC). The medical evidence has been furnished by Dr. Javed Iqbal Khokhar P.W.7. He deposed that on 23-3-1998 he was on duty in demonstrator office of Forensic Medicine Department, when he received the dead-body of Muhammad Nisar, which has been brought by Faiz Muhammad and Muhammad Pervez, Constable, vide Docket No.5132/ Sindh Public Model Town, Lahore dated 21-3-1998. He had observed four entry wounds and their exits. The descriptions of injuries is as under:- 1.A 0.8 x 1.0 c.m. lacerated wound will inverted margins with collar of abrasion all around chest cavity deep was present on front of left chest, 14 c.m. to left of anterior mid-line and 7 cm below left nipple at 5-00 clock position (Entry wound). 1.B. 1.0 x 1.0 c.m. circular lacerated wound with inverted margins chest cavity deep was present on back of right chest 16 c.m. to the right of posterior mid-line and 25 c.m. below top of right shoulder. (Exit wound) 2.A.1.5 x 0.8 c.m. lacerated wound with collar of abrasion with inverted margin, abdominal cavity deep was present on front of abdomen, 3 c.m. to the left of anterior mid-line and 8 c.m. below umbilicus at 5-00 Clock position. (Entry wound). 2.B.1.5 x 1.0 c.m. lacerated wound with inverted margins was present at the back of abdomen, 15 c.m. to the right of posterior mid-line and 6 c.m. about ilic crest (Exit wound). 3.A. 1.0 x 1.5 can. lacerated wound with collar of abrasion inverted margin was present on right side of neck, 3 c.m. in front of posterior mid-line, 8 c.m. below right ear. (Entry wound). 3.B.0.5 x 0.5 c.m. lacerated wound with inverted margin was present on left side of neck, 9 c.m. above shoulder top and 5 c.m. below left ear and 9 c.m. to the left of anterior mid-line (Exit wound). 4.A.1.0 x 1.0 c.m. circular lacerated wound with collar of abrasion was present on right side of head, 10 c.m. to the back of right ear and 12 c.m. below top mid-line (Entry wound). 4.B. 1.0 x 1.5 c.m. lacerated wound with inverted margin, 1.0 c.m. behind left ear, 11 c.m. below top mid-line. There was also laceration of Pinna of left ear in an area of 10 x 2 c.m. (Exit wound). He found that the injuries were ante mortem and were caused by fire-arm and the cause of death was damage to the brain and its vessels under Injury No.4 and vital structure under Injuries Nos.1, 2 and

3. All the injuries were individually and collectively sufficient to cause death in ordinary course of nature. He also opined that the probable time between the death and post-mortem was between 16 to 24 hours. In cross-examination he admitted that the dimensions of the injuries were different, which would have been caused by different fire-arms. He firmly opined that the minimum time between the examination and death was 16 hours.

5. The ocular account as well as the evidence of motive has been furnished by Iftikhar Ahmad P.W.6, Mst. Shaheen P.W.9 and Asghar Ali P.W.10.

6. Ahmad Abbas, A.S.-I., P.W.12 stated about the recovery of pistol P.10 and P.12 made by him at the instance of Muhammad Arif and Muhammad Tariq, accused. Tariq Masood, S.-1., P.W.13 stated about the registration of the case on the statement of Asghar Ali, P.W. and subsequent stops which he took during the investigation of the case and submission of challan.

7. Muhammad Arif, accused, in his statement under section 342, Cr.P.C. denied the allegation and pleaded innocent. According to him Muhammad Nisar had in fact been killed by his own brother Akbar. In order to appreciate the plea of Muhammad Arif, appellant, we consider it proper to reproduce his answer to question No.11 in his statement under section 342, Cr.P.C. "Nisar deceased had married my sister Shahnaz in the year 1995. Akbar brother of the deceased who is unmarried had cut unhealthy joke with Shahnaz, who on return told this fact to Nisar. As a consequence Nisar left the house of his parents and came to our house. During his stay in our house he developed illicit relations with my younger sister Mst. Shaheen. On one day when nobody was at home except Nisar and Mst. Shaheen my younger sister Samina who saw Nisar and Shaheen committing illicit act whereupon Samina was burnt by kerosene oil. Nisar and Shaheen feeling that this matter would be known to everybody Nisar and Shaheen having developed illicit relations decamped from our house. Nisar while going has left his wife Shahnaz with us while going Shaheen had administered poison to Tariq and my mother. When Tariq and my mother's conditions became very serious, the matter was reported to the police. They were also taken to the Hospital, whereafter the case was registered. (Certified copy of the case is Exh.D.A. Tariq's injury statement and that of my mother are Exh.DB and Exh.D.C. The report under section 173, Cr.P.C. is Exh. DD while Tariq's medico-legal report and that of my mother are Exh.DE and Ex.DF). Mst. Shaheen while going had also taken away the jewelry and hand cash. Nisar and Shaheen started living together. After some time Nisar had disappeared leaving Mst. Shaheen with Akbar who is unmarried and he then developed relations with Shaheen and as a consequence of that relations a child was born who was subsequently killed. Nisar when came back, heard about the relations of Shaheen and Akbar and quarrelled and as consequence of the fight, Nisar was killed. In order to safe their own brother the relations of Nisar and Akbar became witnesses against us. They being our enemies have deposed falsely against us." The accused tendered in defence Injury Statement of Muhammad Tariq dated 15-8-1996 Exh.DB and that of his mother Mst. Sakina of even date Exh. DC and the copy of F.I.R. (Exh.DD) in case F.I.R. No.205 of 1996, dated 16-8-1996, which was got registered by Shah Muhammad, father of the accused. The copy of Medico-legal report of Muhammad Tariq Exh.DE and that of Mst. Sakina Bibi Exh.DF and closed his side.

8. The learned trial Court after taking into consideration the entire material brought on record came to the conclusion that the prosecution had established its case against the appellant beyond reasonable doubt. Accordingly, the appellant was convicted and sentenced as mentioned in the opening paragraph of this judgment.

9. The learned counsel for appellant while assailing the conviction and sentence argued that P.W.6 and P.W.9 being real brothers of the deceased are highly interested and inimical, whereas Mst. Shaheen P.W.9, even though, happens to be the sister of appellant is a woman with doubtful chastity as such is not reliable. He maintained that these witnesses besides being interested and inimical are chance witnesses and that they were not present at the spot; their statements are self-contradictory and do not inspire confidence. He argued that the medical evidence being in conflict with the ocular account of occurrence does not provide support to the prosecution story. Lastly he argued that the appellant deserve lesser punishment as the deceased was a debauch, who had been living in adultery with Mst. Shaheen younger sister of his first wife.

10. On the other hand, the learned counsel for the complainant argued that the deceased after having divorced his first wife had contracted marriage with Mst. Shaheen younger sister of his first wife and conciliation had taken place between the accused and the deceased, which is evident from the fact that the accused had started visiting the house of the deceased. However, they had retained grudge. He described the incident as a cold-blooded murder.

11. We have made re-appraisal of the entire material brought on the record from both the sides. The learned counsel for appellant has laid great emphasis on the medical evidence with reference to the statement of Dr. Javed Iqbal Dogar P.W.7 in which he deposed that he had conducted autopsy on the dead-body of Muhammad Nisar on 23-3-1998 and that the duration between the death and post-mortem was between 16-24 hours. We have perused the original post-mortem examination report Exh.PD, which consists of four pages and pictorial diagram Exh.PD/1 and Exh.P/2. All the six pages of post-mortem examination report show that it was issued on 21-3-1998 and the dead-body had been brought by Faiz Ahmad and Muhammad Pervez, Constables, along with Docket No.5132/SP-MT dated 21-3-1998. Muhammad Pervez, Constable, P.W.I Faiz Ahmad, Head Constable P.W.2 deposed that they had escorted the dead-body to Mortuary on 20-3-1998. Arshad Ali P.W.11 stated that he had identified the dead body of Muhammad Nisar on 21-3-1998 and that in his presence last worn clothes of the deceased has been collected by Faiz Ahmad, P.W. after post-mortem examination. Above all Tariq Masood, P.W.13 deposed that the post-mortem examination of the deceased was conducted on 21-3-1998. All these statements have not been challenged in cross-examination by the accused in any manner. The statement of Doctor that he had conducted the autopsy on 23-3-1998 appears to be on the basis of sole entry in Column No.2 of the post-mortem report pertaining to date and hour of the wrong entry had cropped up due to sheer inadvertence because all other entries on this very report are evidence of the fact that the post-mortem examination was conduced on 21-3-1998. So the duration between the death and post-mortem examination fully corresponds to the time of occurrence given in the F.I.R. The post-mortem examination report shows that the deceased had sustained four fire-arm wounds. On the head, one on the neck and the other two were on chest and abdomen. The dimension of these injuries varies from 0.5 c.m. x 0.5 to 1.0 c.m. x 1.5 c.m. The variations pointed out by the learned counsel for the appellant are not a marked significance because of the dimension of injury on a hard seat would be different from that of injury on soft seat with the same weapon. We are, therefore, of the firm view that the medical evidence is not in conflict with the ocular account of the occurrence in any manner. It fully corroborates the date and time of the occurrence as well as the weapon used in the commission of the crime.

12. Now we proceed to deal with the evidence of motive and the ocular account of the occurrence. There is no dispute that the place of occurrence is the house of Muhammad Nisar, deceased, who was living there with his brothers and wife Mst. Shaheen. In this way all the three eye-witnesses are inmates of the house. The occurrence allegedly took place on 20-3-1998 at 1-15 p.m. It was reported to the Police promptly. It is in the evidence that it was Friday. The P.Ws. explained that they had come to take their meals at the relevant time. In view of this explanation the presence of two P.Ws. namely Iftikhar Ahmad P.W.6 and Asgahr Ali P.W.10 appears to be natural and cannot be doubted in any manner. Similarly the presence of Mst. Shaheen P.W.9, who admittedly had been living with Muhammad Nisar, deceased, was natural. She claims to be the wife of the deceased. Had the deceased, as per the plea of the appellant, been killed by his own brother Akbar, she would not have substituted her own brother for the real culprit. We have, therefore, absolutely no doubt about the presence of all the three eye-witnesses at the spot. They have given consistent account of the occurrence.

13. The motive revolves around Mst. Shaheen P.W.9, who according to the prosecution case had developed illicit relations with Muhammad Nisar, deceased, during subsistence of his marriage with Mst. Shehnaz, the elder sister of Mst. Shaheen. Iftikhar Ahmad P.W.6 and Asghar Ali P.W.10 both stated that Muhammad Nisar, deceased, after his return from Saudi Arabia had expressed his desire to marry Mst. Shaheen and on the refusal of Mst. Shaheen's parents they both had contracted marriage of their own and subsequently reconciliation was made. The accused in his statement under section 342, Cr.P.C. alleged that the deceased during his stay in his (accused's) house had developed illicit relations with Mst. Shaheen and that both were found in compromising position by his younger sister Mst. Samina and for this reason Samina had been burnt by the deceased and Mst. Shaheen. From the statements of P.Ws. and the accused, it is established that the accused had feeling of ill-will against the deceased, as such he had a motive to kill the deceased.

14. The last piece of evidence against the appellant is in the shape of recovery of .3 bore Pistol P.10, which is of no consequence because of the failure of the Investigating Officer to send the crime empties P.1 to P.5 and pellets P.5 to P.9 for matching to the Forensic Science Laboratory.

15. In view of the above discussion we are of the considered view that the learned trial Court had rightly placed reliance on the ocular account of the occurrence furnished by the P.Ws., which is fully corroborated by the motive and supported by the medical evidence. We endorse the finding of the learned trial Court that the prosecution has established its case against the appellant beyond reasonable doubt. We, therefore, uphold the conviction of the appellant recorded by the learned trial Court under section 302(b), P.P.C.

16. The learned counsel for the appellant has pleaded for lesser punishment with vehemence mainly on the ground that the deceased was a debauch, who had developed illicit relations with the appellant's sister during the subsistence of his marriage with appellant's sister Shehnaz and at the relevant time was leading an immoral life and the occurrence was the result of sudden provocation, as such the learned trial Court should have taken a lenient view while awarding the punishment. We have given anxious consideration to these arguments. According to the P.Ws. the deceased had stayed with his in-laws for one and a half year, who after having strained relations with his wife had returned to his house. Thereafter he had divorced his wife and had gone to Saudi Arabia and on his return had contracted marriage with Mst. Shaheen against the wishes of her parents and subsequently both parties had reconciled with each other. The visit of the accused to the house of the deceased on the day of occurrence is evidence of the reconciliation arrived at between the parties. Despite reconciliation the appellant came armed to the house of the accused and fired four successive shots. The incident cannot be the outcome of sudden and grave provocation. It can be described only and only as a planned cold-blooded murder. We find no reason to exercise our discretion and reduce the sentence.

17. Muhammad Tariq, respondent in Criminal Appeal No.737 of 2001 was allegedly armed with a pistol, but he did not cause any injury to anyone. The finding of his acquittal recorded by the learned trial Court is not perverse, as such it requires no interference. The trial Court has awarded compensation of Rs.30,000 to the legal heirs of the deceased, which in the circumstances of the case does not appear to be improper.

18. Resultantly Criminal Appeal No.1704 of 2000 filed by Muhammad Arif, Criminal Appeal No.737 of 2001 and Criminal Revision No.295 of 2001 both filed by Asghar Ali, complainant, are G hereby dismissed. The death sentence awarded to Muhammad Arif, appellant, is hereby confirmed. Murder Reference No.624 of 2000 is answered in affirmative. H.B.T./M-1340/L Appeal dismissed.