2003 PLP 184 (YLR)

In his opinion her death also occurred due to cardio respiratory failure resulting from shock and hemorrhage due to the throat cut by sharp‑edged weapon. In his opinion time elapsed between death and post‑mortem was between 8 to 12 hours. He produced the MLR report as Exh.

22. P.W.4 Masiullah is a marginal witness of the recovery memos. of the dead bodies i.e. Exhs.17 and

18. He is also a marginal witness of the recovery memo. Exh.15, vide which police secured blood‑stained towel, bed sheet, kitchen knife and a piece of rope from the place of occurrence. P.W.5 Muhammad Mustafa Brohi, is son of the complainant. He had identified the allegedly stolen articles from the house i.e. coins as well as ornaments etc., in presence of the Magistrate, vide memo. Exh.26. P.W.6 M. Akhtar is a marginal witness of the recovery memo. Exh.26, vide which a few clothes, one pair of socks, a Khaki colour jacket, blood‑stained, a light brown colour Chaddar also blood‑stained and a pair of brown shoes were recovered from the servant quarter of the bungalow. He is also a. marginal witness of the identification memo. of the ornaments as well as coins i.e. Exh.11. P.W.7 Manzoor Ahmad is the marginal witness of the memo. of arrest of appellant Shaukat i.e. Exh.29. P.W.8 Saeed Ahmed is another witness of Exh.

29. P.W.9 Ahmad Mujtaba Brohi is the nephew of the complainant. fie deposed that on the day of occurrence he had gone to P & T Colony to see hi, in‑laws and was supposed to see the complainant on return. On reaching the bungalow of the complainant he gave bell and also knocked at the door. Resultantly, accused Shaukat who was working as domestic servant in the said bungalow came out and opened the door. The witness enquired from him as to why he had opened the door so late whereupon he replied that since his relatives had come to see him and he was talking with them, therefore, it so happened. The witness enquired from him regarding his maternal uncle and other family members whereupon Shaukat told him that the complainant alongwith his daughter had already let the bungalow whereas. Begum Sahiba had gone to purchase something. While the witness was still talking with accused Shaukat two unknown persons came out of the bungalow. On enquiry accused Shaukat told the witness that they were his guests. After shaking hand with them and leaving a message regarding his arrival, for the complainant, the witness departed. P.W.9 added that accused Shaukat had also informed him that in the morning maid servant Mst. Sharifan had also come. Subsequently, it was learnt that wife of the complainant and her daughter were murdered. The witness correctly identified the accused persons to be the servant of the complainant and his companions who had met him on the day of occurrence. P.W.10 Ameer Afzal is the marginal witness of the recovery memo. Exh.33 vide which police, at the pointation of accused persons, had recovered golden and silver ornaments as well as foreign currency notes and coins. P.W.11 Fakhruddin, S.‑I. Gizri, deposed that in his presence the Investigating Officer had completed the proceedings and had also prepared the inquest report of he dead body i.e. Exhs.16 and

18. P.W.12 Mst. Sharifan deposed that she was working in the house of the deceased for the last 14 years. Accused Shaukat was also working in the same bungalow. She was being paid Rs.10 to 20, each visit, as fare. On the day of occurrence she had gone to the house of the deceased at 9‑30 a.m. She rang the door bell twice and on third occasion Shaukat came at the gate. He, however, did not open the main gate and said that since inmates of the house had gone to condole the death of their relatives, therefore, she should also leave. He also gave her a sum of Rs.10 as fare. The witness, therefore, returned to her house. On the following day when she again went to attend her duty it was learnt that the deceased were killed. She also correctly identified accused Shaukat in Court. P. W .13 Saeed Tariq Chaudhry had initially investigated the case. P.W.14 Siraj Ahmad, had subsequently carried out investigation.

5. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their above statements they denied the charge and pleaded innocence. In answer to the question, has he anything else to say? Appellant Shaukat stated that he had been working with the complainant for about 3/3‑1/2 years. However, he had committed no offence. He added that after the incident he went to his brother's friend. On the next day he read in the paper that he was one of the suspects of the murders. Then Ghulam Farid came to know of the incident and phoned Muhammad Iqbal to reach Karachi. Muhammad Iqbal and Ghulam Farid produced him at the Gizri Police Station where, he was detained whereas both the abovenamed persons were allowed to go. He was beaten by the police for 8/10 days and subsequently handed over to CIA Police. CIA also kept him under remand for 6/7 days and also gave him beating. Thereafter, he was produced in Court. The Magistrate only enquired from him his name. On the following day he was sent to jail. He pleaded that there was a dispute over the property between the deceased Mukhtiar Bibi and his son. Whereupon the complainant had driven away his son and instead, he was falsely implicated. Case of the other two accused persons was of total denial.

6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the appellants/ respondents and sentenced them to the punishments as mentioned in the opening para. hereof.

7. We have heard Mrs. Aftab Bano Rajput, Advocate, learned counsel for the appellants. Mr. Muhammad Mustafa Hussain, Advocate, learned counsel for the complainant and Mr. Arshad Lodhi, Assistant Advocate‑General, Sindh for the State and have also perused the entire record with their assistance.

8. Mrs. Aftab Bano Rajput, Advocate, learned counsel for the appellants has raised the following contentions:‑‑‑ (i) That the so‑called confessional statements having been extracted from the appellants by applying third degree methods were not admissible. (ii) That the occurrence was unseen and an iota of evidence was not available to connect the appellants with the crime. (iii) That since appellant Shaukat being not an adult was not liable to Qisas within the purview of section 306(a) of the P.P.C., therefore, the prayer contained in Criminal Revision No. 10‑K of 1997 regarding enhancement of sentence, cannot be granted.

9. Mr. Muhammad Mustafa Hussain, Advocate, learned counsel for the complainant, on the other hand, while controverting the contentions raised by the learned counsel for the appellants submitted that all the accused persons in furtherance of their common intention. had not only committed cold‑blooded murder of Mst. Mukhtiar Bibi, but had also slaughtered her innocent daughter Mst. Sarwar Sultana and in prosecution of the object i.e. robbery they also took away golden ornaments, money including foreign currency and precious coins, lying in the house. The prosecution in order to prove charge against them besides providing on record the judicial confessions of all the accused persons has also examined Mst. Sharifan, the maid‑servant and Muhammad Mustafa Brohi, P.W.5 who both had seen appellant Shaukat present in the house of the deceased just before the occurrence, the medical evidence of Serologist and other circumstantial evidence including the evidence of recoveries lead to the inference that the occurrence had taken place in a manner as suggested by the prosecution. In support of the grounds taken in Criminal Revision No.10‑K of 1997, he submitted that since the accused persons including appellant Shaukat, who was a servant in the house of the complainant for the last 8 to 10 years, had committed the murder of two innocent and helpless ladies and, at the trial, their guilt was proved to the hilt, therefore, the learned trial Judge was not justified to inflict life imprisonment instead of normal penalty i.e. death on them.

10. Mr. Arshad Lodhi, Assistant Advocate‑General, Sindh while supporting the judgment, contended that since guilt of the accused persons was substantially and materially brought home at the trial by the prosecution through independent and reliable evidence, therefore, the impugned judgment was unexceptionable. Regarding quantum of sentence, however, he submitted that since as per the confessional statements it was appellant Shaukat who had inflicted knife blows to both the ladies and the other two appellants had only aided him, therefore, normal penalty for murder should have been inflicted on him. He submitted that since age of the appellant as per his statement recorded under section 342, Cr.P.C. was 18/19 years, therefore, in the absence of evidence to the contrary, his case was not covered by the exception contained in section 306(a), P.P.C.

11. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case carefully.

12. To supplement her first contention that since the judicial confessions were extracted from the appellants by applying third degree methods, therefore, it were inadmissible, the learned counsel for the appellants submitted that all the appellants were arrested on 19‑2‑1995. They for the purpose of recording of their confessional statements were produced before the Magistrate on 26‑2‑1995 after seven days, therefore, the only inference possible to be drawn is that the confessional statements were extracted from them. In order to ascertain as to whether or not there is substance in the contention we have ourselves minutely gone through the relevant record. No doubt, the appellants were arrested on 19‑2‑1995, as pointed out by the learned counsel for the appellants, and they were produced before the Magistrate on 26‑2‑1995 and appellant Shaukat in the course of his 342, Cr.P.C. statement has also complained that he was beaten by the police but the record does not indicate that coercive methods were applied by the police because P.W.1 Dhani Bakhsh, Magistrate, who had recorded the confessional statements in question, at the trial, has confirmed that before recording the confessional statements in question he had not only observed all the legal formalities but having satisfied that it were being made by the accused persons voluntarily, had recorded the same. In the course of his statement he has categorically denied the suggestion as incorrect that accused persons at the time of recording of their confessional statements had complained before him regarding application of third degree methods. Further perusal of the confessional statements shows that all the accused persons were specifically questioned by the Magistrate with regard to the application of third degree methods but all had answered the questions in negative. The record indicates that each and every answer recorded in the confessional statements was authenticated by the accused persons themselves by putting their respective signatures, therefore, in the absence of any evidence to the contrary presumption would be towards its truthfulness. The contention, therefore, has no force.

13. As regards the next contention of the learned counsel for the appellants that since an iota of evidence was not available to connect the appellants with the crime, therefore, they could not have been convicted for the offence, it may be pointed out here that the contention on the face of it appears to be misconceived because on record, sufficient incriminating material was available to connect the appellants with the crime. The prosecution case is primarily based on the confessional statements i.e. Exhs. 8, 9 and 10 of the appellants, and the recovery of stolen property at the instance of appellant Shaukat as well as the recovery of crime weapon and the blood‑stained clothes of appellant Shaukat from the store of the house wherein, the murder was allegedly committed render strong corroboration thereto. The statement of Mst. Sharifan to the effect that she had seen appellant Shaukat in the house just before the occurrence in the morning leads to the inference that the appellant was not only present at the time of occurrence but was very much aware as to what happened on the fateful days. The statement of P. W.4 to the effect that he had seen appellant Shaukat as well as the other accused persons present in the house just before the occurrence and that appellant Shaukat had disclosed to him that inmates of the house had gone to attend a funeral, which statement was apparently wrong as dead bodies of both the ladies were recovered from the house subsequently and presence of the other accused persons with him just before the occurrence, indicates that he had guilty intention. It would be pertinent to mention here that in the F.I.R. which was lodged by the complainant promptly, soon after his returning home, appellant Shaukat was straightaway nominated. He was suspected for the murders because as per complainant the appellant was present in the house in the morning but had disappeared after the occurrence. Appellant Shaukat in the course of his statement recorded under section 342, Cr.P.C. himself has stated that tie had "after the occurrence" gone to see his brothers' friend. The exact words uttered by him are as under:‑‑‑ "After the incident I went to my brother's friend. On the next day I read in the paper that I was one of the suspects of this murder." 'Underlining is our'. The underlined words i.e. "after the incident" used by him in his statement are of much significance because it imply that before and during the incident he was present in their house but had left thereafter. He has offered no explanation as to what prompted him to leave the house soon after the occurrence and that too, without permission from the owner. In the given situation, if he was not involved in the crime, at least, was supposed to know as to who was responsible for the murder. His silence and disappearance from the scene of occurrence, therefore, leads to the only inference that the prosecution version was true. It would be pertinent to mention here that as per prosecution version appellant Shaukat after his arrest had disclosed that he had committed the offence with the help of other appellants. In pursuance of the disclosure he had led the police to the recovery of the stolen property i.e. ornaments, cash Rs.50,000 as well as coins from the house of accused persons namely, Muhammad Riaz and Muhammad Younis which were taken into possession by the police vide Exh.33. Later on the recovered material was identified by Muhammad Mustafa Brohi son of the deceased Mst. Mukhtiar Begum in presence of the Magistrate vide memo. Exh.11. All these accused persons also confessed their guilt before the Magistrate i.e. P.W.1. Facts disclosed by the appellants in their confessional statements find strong corroboration from the other evidence produced by the prosecution. Here, it would be advantageous to have a glance at the confessional statement of appellant Shaukat which is reproduced hereinbelow it extenso:‑‑ It would also be worthwhile to mention here that both the other appellants in their confessional statements had taken the similar stand as was of appellant Shaukat with the exception that it was Appellant Shaukat who had inflicted knife blows to the deceased ladies. We are, therefore, unable to subscribe to the contention that an iota of evidence was not available on record to connect the appellant with the crime.

14. Adverting to the last contention of the learned counsel for the appellants that since appellant Shaukat at the time of occurrence was not beyond 18 years of age, therefore, he was not liable to Qisas within the purview of section 306, P.P.C., it may be pointed out here that no doubt it has been provided by section 306(a), P.P.C. that if an offender is minor or insane he shall not be liable to Qisas, yet, the argument advanced by the learned counsel for the appellants, in our view, cannot prevail because firstly, ii is not evident on record that the appellant was definitely a minor within the ambit of section 299 (a) and (i) of the P.P‑ C. and secondly; if the sentence of death as Qisas could not have been inflicted to him for committing Qatl‑e‑Amd under section 302(a) in view of the bar contained in section

306. P.P.C. even then the sentences of death or imprisonment for life could have been inflicted on him as Tazir under section 302(b), P.P.C. For the sake of clarity here, it would be beneficial to have a glimpse of sections 306 and 302, P.P.C. as well, which read as follows:‑‑ "Section

306. Qatl‑e‑Amd not liable to Qisas.‑‑‑Qatl‑e‑Amd shall not be liable to Qisas in the following' cases, namely:‑‑ (a) When an offender is a minor or insane: Provided that, where a person liable to Qisas associated with himself in the commission of the offence a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from qisas: (b) when an offender causes death of his child, grandchild, howlowsoever, and (c) .. S.

302. Punishment of Oatl‑e -Amd.‑‑‑Whoever commits. Qatl‑e- Amd shall, subject to the provisions of this Chapter be‑‑ (a) punished with death as Qisas; (b) punished with death for imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) .................................... " In the above context it would also be helpful to go through subsections (a) and (i) of section 299, P.P.C. which read as follows:‑‑ "Section

299. Definition. ‑‑‑In this Chapter, unless there is anything repugnant in the subject or context:‑‑ (a) "adult" means a person who has attained the age of eighteen years: . (i) ",minor" means a‑person who is not an adult. A bare reading of subsection (a) of section 299, P.P.C. leads to the inference that a person who has not attained the age of eighteen years shall be deemed to be a minor. Though in the statement recorded under section 342, Cr.P.C. the age of appellant Shaukat has been described as 18/19 years yet, in the absence of any evidence on record and the fact that at the trial he has claimed no exception with regard to his age it cannot be concluded that was definitely a minor. Be that as it may, case of appellant Shaukat otherwise, is not covered by section 302(a), P.P.C as no proof within the purview of section 304 of the P.P.C., in this case, was available. We, therefore, do not find any force in this contention of the learned counsel for the appellants.

15. While arguing in support of the grounds taken in Criminal Revision No.10‑K of 1997 preferred for enhancement of sentences of the appellants the learned counsel for the complainant/petitioner submitted that in the absence of any mitigating or extenuating circumstance the learned trial Judge was not justified to inflict lesser sentence on the appellants particularly, on appellant Shaukat. It may be pointed out here that the learned trial Judge, having found the accused persons guilty under section 17(4) of the Ordinance, has convicted and sentenced them to imprisonment for life alongwith the sentences of fine. They have been further been convicted and sentenced under section 412, P.P.C. for keeping in possession the stolen property. It would be pertinent to mention here that under section 17(4) of the Ordinance the only sentence provided for committing the offence of Harrabah is death as Hadd. Therefore, if the punishment provided for the offence under section 17(4) of the Ordinance was not attracted, either. for want of proof of theft liable to Hadd within the purview of section 7 of the Ordinance or due to any other reason, than the learned trial Judge ought to have convicted the appellants under the provisions of the Pakistan Penal Code in view of section 14 of the Ordinance which provides punishment for the offence of theft liable to Tazir. Since in the instant case proof of theft liable to Hadd, within the purview of section 7 of the Ordinance was not available, therefore, conviction of the appellants under section 17(4) of the Ordinance cannot be sustained it, therefore, is set aside and the appellants are convicted under section 302(b) read with section 392, P.P.C., instead.

16. Learned trial Judge has also convicted and sentenced the appellants under section 412, P.P.C. In our view conviction recorded against the appellants under section 412, P.P.C. cannot sustain because if the appellants were responsible for committing robbery in the house of ‑ the complainant then they could not have been convicted under section 412, P.P.C. for keeping in possession the stolen property for the simple reason that legally the same person cannot be a robber as well as receiver of the pillage. It would be pertinent to mention here that the offence of robbery cannot be committed unless something is taken away by an offender, within the purview of section 390, P. P. C. , as otherwise it would be mere an attempt to commit the offence or something else. The convictions and sentences of the appellants under section 412, P.P.C., therefore, are set aside.

17. So far as the sentences inflicted on the appellants by the learned trial Judge are concerned, it may be pointed out here that case of appellant Shaukat Ali alias Tayyab is a bit different from the other accused persons. In their confessional statement though all the accused persons have admitted to commit the crime but all are unanimous on the point that it was appellant Shaukat Ali who had inflicted knife blows to both the ladies. We are unable to understand that in the absence of any extenuating or mitigating circumstances as to why the normal penalty i.e. death was not inflicted on appellant Shaukat by the learned trial Judge. In the case of Muhammad Yaseen and 2 others v. The State reported as 2002 SCMR 391 it was held by the Hon'ble Supreme Court of Pakistan that when an offence is proved against an accused person a Judge should never hesitate to award punishment for that offence, even if it was a capital punishment. Their Lordships were further pleaded to observe that leniency was being shown in matters of capital punishment by the Courts below, even in those cases where act/crime involved was of heinous nature and no doubt, a Judge ought to be lenient or compassionate in awarding punishment but at the same time he should be more cautious in believing the prosecution story as it is narrated before him and efforts should not be made to look for mitigating circumstances, creating doubt in the prosecution case and extend benefit of doubt to the accused so that the miscreants may not be set at free who are causing unrest in the society as a whole and this menace should be curbed. The above view was also affirmed by the Hon'ble Supreme Court of Pakistan in the case of Anees Ahmad alias Muhammad Umar and another v. The State reported as 2002 SCMR 1431. Reference in this regard, in addition to the above judgments, may also be usefully made to the following reported judgments:‑‑ (1) Ijaz alias Billa and 3 others v. The State (2002 SCMR 294); (ii) Sakhawat v. The State (2001 SCMR 244); (iii) Muhammad Fazal v. Ghulam Asghar and others (PLD 2000 SC 12); (iv) Ch. M. Yousaf and another v. The State (1992 SCMR 983); (v) Waris Ali alias Dulli and others v. The State (1999 SCMR 1469); (vi) Pervez and others v. The State (1998 SCMR 1976); (vii) Noor Muhammad v. The State (1999 SCMR 272); (viii) Mst. Bismillah and others v. ha.. Jabbar and others (1998 SCMR 862); (ix) Muhammad Sharif v. Muhammad Javed alias Jedda Tedi (PLD 1976 SC 452). Upshot of the above discussion is that the appeal being misconceived and unwarranted by law and facts is hereby dismissed. Criminal Revision No. 10‑K of 1997 to the extent of Shaukat alias Tayyab son of Taj Ali is allowed. Convictions of the appellants are altered from section 17(4) of the Ordinance to that of under section 302(b) read with section 392, P.P.C. and they are sentenced as under:‑‑ (i) Appellant Shaukat is sentenced to death. He may be hanged by neck till he is dead. (ii) Sentences of imprisonment for life inflicted on appellants Muhammad Younis and Muhammad Riaz by the learned trial Judge are maintained. (iii) All the appellants are also sentenced to ten years' R.I. alongwith a fine of Rs.5,000 each or in default to further undergo R.I. for six months each under section 392, P.P.C. All the sentences of imprisonment shall run concurrently. Benefit of section 382‑B, Cr.P.C. extended to the appellants by the learned trial Judge shall remain intact. The amount of fine if realized shall be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C. as ordered by the learned trial Judge. These are the reasons for our short order of the even date. Note:‑‑‑ In our short order, while specifying the sentences inflicted on the appellants in the end of the sentence "conviction and sentences recorded against the appellants under section 412, P.P.C" instead of the word 'set aside' the word 'maintained' was typed due to typographical mistake, therefore, it may be read as "set aside". N.H.Q./89/FSC Order accordingly.