2009 PLP 1789 (YLR)

KAZIM ALI MALIK, J.

Murder Reference No.730 of 2002, Criminal Appeal No.882 of 2002, Criminal Appeal No. 936 of 2002 ad Criminal Revision No.440 of 2002 have arisen out of judgment dated 10-9-2002 by learned Sessions Judge, Vehari in a case F.I.R. No.236 of 2001 registered with Police Station Machhiwal, District Vehari and we find it convenient to dispose of all these interconnected matters by this single judgment.

2. Abdul Aziz (42) and his wife Mst. Salma Kausar (16), appellants, were challaned to the Court of session, Vehari and were convicted under Sections 302(b) and 303(c), P.P.C. respectively. Abdul Aziz was sentenced to death while his wife Mst. Salma Kausar was sentenced to undergo 14 years' R.I. The appellants were also directed to pay Rs.1,00,000 each as compensation to legal heirs of the deceased and in case of default in payment thereof to suffer six months' R.I. each vide judgment, under challenge.

3. Abdul Qadeer (23), a real brother of Abdul Aziz, appellant, suffered death in this happening. Fazal Kareem, father of Abdul Qadeer, deceased and Abdul Aziz, convict, was the first informant, who lodged the F.I.R. Exh.PA at Police Station Machhiwal on 21-12-2001 at 2-15 p.m. about the occurrence, which took place the same day at 12-40 p.m. Fazal Kareem (P.W.7), Muhammad Anwaar (P.W.8) and Mahmood Khan (given up P.W.) respectively father, brother in law and uncle of Abdul Qadeer, deceased, and Abdul Aziz, convict, claimed to have witnessed the occurrence, which took place in the lane abutting house of the complainant and Abdul Qadeer, deceased, close to its outer door.

4. The prosecution case set up in the F.I.R., in brief, was that on 21-12-2001 at about 12-40 p.m. Fazal Kareem, complainant, along with his son Abdul Qadeer, deceased, son-in-law Muhammad Anwaar (P.W.8) and maternal cousin Mahmood Khan (given up P.W.) was present in his house located in Chak No.539/EB, District Vehari, when the complainant's elder son Abdul Aziz (appellant) armed with pistol .30 bore and his wife Mst. Salma Kausar empty handed emerged in front of the house and threatened the complainant to vacate the house in his possession. Abdul Qadeer, deceased came out of his house to pacify his elder brother Abdul Aziz, when wife of the latter, Mst. Salma Kausar, raised Lalkara that Abdul Qadeer should be finished. In the meantime, Fazal Kareem, Muhammad Anwaar and Mahmood Khan (P.W.$) also came out of the house and within their view Abdul Aziz, appellant, fired with pistol .30 bore striking his younger brother Abdul Qadeer on right arm. The projectile entered his abdomen, upon which he fell down. Thereafter, both the assailants fled. Abdul Qadeer died of his injuries at the spot.

5. Motive for the occurrence was that after having alienated his house located in 7 Marlas Scheme Chak No.539/EB Abdul Aziz (convict) planned to grab and occupy the house in occupation of his father (complainant) and unmarried younger brother (deceased).

6. On 21-12-2001 at 6-00 p.m. Dr. Javed Khalid, P.W.2, made autopsy on the dead body of 23 years old Abdul Qadeer and observed that the eye and mouth were closed while post mortem staining and rigor mortis had developed. The post mortem examiner also noted the following injuries: (i) Lacerated wound 1.2 x 1 cm through and through on front and outer side of right forearm at elbow joint with inverted margins and blackening. (ii) Lacerated wound .1.3 x 1 cm x through and through on back and inner side of right forearm, 9 cm from elbow joint with averted margins, but without blackening. (iii) Lacerated wound 1.5 x 1 cm going deep in right side of abdomen 7 cm from umbilicus with inverted margins and without blackening. On dissection, peritoneum, small intestine and blader were found ruptured. In the opinion of post mortem examiner Abdul Qadeer died due to excessive bleeding and shock, resulting from the above said injuries, which were ante martem by firearm and also sufficient to cause death in ordinary course of nature. Probable time which elapsed between injuries and death was about 1/2 hour and between death and autopsy was within 5 hours. The post mortem examiner certified vide his report Exh.PB that Abdul Qadeer died of firearm injuries.

7. After recording the F.I.R., Khadim Hussain, S.-I., P.W.9, reached the spot the same day and prepared injury statement Exh. PC, inquest report Exh. PD in respect of the dead body and dispatched it to the dead house through Muhammad Yasin, Constable, P.W.5. Thereafter, the Investigator collected blood stained earth from the place of occurrence vide memo. Exh.PE. An empty cartridge Exh. P.5 was lying at the spot, which was seized and sealed by means of memo. Exh. PH. After post mortem examination the escorting constable produced last worn clothes of the deceased, which had been taken into possession by the investigator under memo. Exh. PE.

8. On 24-12-2001 Mst. Salma Kausar, appellant, was arrested. On 3-1-2002 Abdul Aziz, appellant, was apprehended and the same day he led to the recovery of pistol .30 bore, P.6 along with 6 live cartridges, P.7/P-6 from his residential house, which were taken into possession vide memo. Exh. PJ. After necessary completion of investigation both the appellants were challaned to the Court of Sessions, Vehari to stand trial for the charge of Qatl-i-Amd liable to Taazir.

9. At commencement of trial, the appellants were charged under section 302, P.P.C. read with section 34 of the same Code for having committed Qatl-i-Amad of Abdul Qadeer in furthermore of their common intention. The appellants denied the charge and claimed trial.

10. Ten P.Ws. entered the witness-box from prosecution side and supported the charge, out of whom Fazal Kareem, P.W.7 and Muhammad Anwaar, P.W.8, furnished ocular account of the incident and also deposed about the motive.

11. The appellants repudiated and dismissed each piece of prosecution evidence put to them while making their statements under section 342, Cr.P.C. Abdul Aziz, appellant, introduced his counter version to the following effect:-- "I have four children from wedlock from my first wife Mst. Shameem. After retirement from Army I started my service in a factory and there I contracted second marriage with Mst. Salma Kausar without the consent of my parents. My father was very much annoyed on the said act and due to this grudge I was falsely implicated in this case at the instance of my father. P.Ws. have deposed falsely against me." Mst. Salma Kausar also adopted the above said version of her husband. No witness was examined in defence. The appellants also did not make statements on oath in terms of section 340(2), Cr. P.C.

12. To start with, we find it convenient to take up the case of Mst. Salma Kausar, appellant, first. She was admittedly empty handed at the relevant time. She did not touch the deceased and the P.Ws. The only allegation against Mst. Salma Kausar, appellant, was that she instigated her husband Abdul Aziz to kill his brother by raising Lalkara. The learned Sessions Judge convicted her on the charge of murder with an observation that at the relevant time she was in commanding position and that in pursuance of her Lalkara, Abdul Aziz committed the murder of his brother Abdul Qadeer. We could not persuade ourselves to agree with the observation and conclusion of the learned trial Court. Admittedly, the appellants and the P.Ws. were/are permanent residents of Chak No.539/EB, Police Station Machhiwal, District Vehari i.e. a remote part of rural southern Punjab. This is a question of common knowledge that in the rural Punjab the women folk are at the mercy of male members of their families. How can be believed that in a male dominated rural society of southern Punjab Mst. Salma Kausar, appellant, was in commanding position or that she raised commanding Lalkara. Abdul Aziz, appellant, served in Pakistan Army for sufficient long time, after his retirement he secured employment in a factory. He was having licensed pistol which was admittedly recovered at his instance. Keeping in view the background of his army service it is offensive to the accepted standards of normal human behavior that he committed the crime in furtherance of commanding Lalkara of his wife. Here we must add on the basis of judicial experience and common knowledge that proverbial lalkara without an overt act is normally attributed to innocent family members of the principal accused.

13. The impugned judgment qua the conviction and sentence of Mst. Salma Kausar, appellant, is self contradictory. The learned Sessions Judge concluded that both the appellants committed the crime in furtherance of their common intention. He also observed in express terms that Mst. Salma Kausar was in a commanding position and that in pursuance of her commanding Lalkara Abdul Aziz fired at Abdul Qadeer, deceased, and killed him. Despite the above said observation and conclusion the learned Trial Court convicted Abdul Aziz under section 302(b), P.P.C, whereas Mst. Salma Kausar was convicted under section 302(c) of the same Code. It appears that the learned Sessions Judge himself was not certain as to what offence had been committed by Mst. Salma Kausar. Had she shared common intention with her husband in commission of the offence of Qatl-i-Amd, she would have been convicted under section 302(b), P.P.C. Keeping in view the above noted facts and circumstances together particularly the alleged role attributed to Mst. Salma Kausar, we feel inclined to hold that the allegation to her extent is open to serious doubt. Needless to add that the benefit of doubt, however slight, is right of the accused. We, therefore, accept Criminal Appeal No.936 of 2002, set aside impugned conviction and sentence imposed on Mst. Salma Kausar, appellant and acquit her of the charge by giving benefit of doubt. She be released forthwith, if not required to be detained in any other case.

14. Now remains in field Abdul Aziz, appellant, against whom his father Fazal Kareem, P.W.7, and his sister's husband Muhammad Anwaar,' P.W.8, deposed that within their view he kilted his younger brother Abdul Qadeer by firing at him.

15. Learned counsel for the appellant took exception to the testimony of Fazal Kareem, P.W.7, with the plea that he was not present at the spot at the relevant time nor he witnessed the killing of his son Abdul Qadeer. The spot is not in dispute or disputable. Abdul Qadeer suffered death in the lane abutting his residential house close to its outer door. Blood-stained earth collected from the spot was found stained with human blood on chemical analysis-. We have carefully examined the evidence and the stance of the convict. During the course of investigation as well as at trial the appellant did not dispute the above said spot of killing. The complainant Fazal Kareem deposed that he along with his deceased unmarried son resided in the house in front of which the occurrence took place. Keeping in view the venue of the incident Fazal Kareem, P.W.7, was the only natural witness of the killing. Outsiders, non-residents of the area and other disinterested persons were not expected and supposed to be present inside or in front of outer gate of the house of Fazal Kareem, complainant, at the relevant time.

16. Learned counsel for the appellant criticized the statement of Muhammad Anwaar, P.W.8, with the plea that his presence at the scene of crime being as per chance demolished evidentiary value of his claim and deposition. Admittedly, Muhammad Anwaar, P.W.8, is son-in-law of Fazal Kareem, P.W.7. The claim of P.W.8 that at the relevant time he was present in the house of his father in law Fazal Kareem is not open to any exception. Furthermore, P.W.8, is brother-in-law of the convict. He is/was not inimical or hostile towards him. The learned defence counsel could not point out as to why father and brother in law of the convict deposed against him.

17. The occurrence took place on 21-12-2001 in which unmarried 23 years old son of Fazal Kareem, P.W.7, had been killed. Fazal Kareem lodged the F.I.R. on 21-12-2001 with the claim that within his view his elder son Abdul Aziz, appellant, murdered his (complainant's) younger son Abdul Qadeer by firing at him with a pistol. The trial commenced before the learned Court of Session, Vehari on 22-6-2002 and ended in conviction and sentence of Abdul Aziz vide impugned judgment dated 10-9-2002. The appeal and the murder reference have come up for hearing before this Court in October, 2008. Since 21-12-2001 Fazal Kareem, P.W.7, has been prosecuting his elder son Abdul Aziz on the charge of murder vigorously. The contention of the appellant that his second marriage caused annoyance to his father Fazal Kareem resulting in his prosecution on the charge of murder, appears to be ridiculous. How can we believe that Fazal Kareem, P.W.7, chose to let off actual killer of his 23 years old unmarried son substituting him with his elder son Abdul Aziz for the only reason that the latter contracted a seconds marriage without -his approval. The way Fazal Kareem, P.W.7, prosecuted his case and cause for about six years is a circumstance which provide a basis to infer that it was Abdul Aziz, appellant, and none else who killed his younger brother in presence of Fazal Kareem, P.W.7 and Muhammad Anwaar, P.W.8.

18. Fazal Kareem P.W.7, and Muhammad Anwaar, P.W.8, deposed with one voice and in a sure footed manner after having stood the test of cross examination that on 21-12-2001 at 12-40 p.m. Abdul Aziz, appellant, fired at his younger brother Abdul Qadeer and killed him at the spot within their view. The two witnesses were/are not hostile or inimical towards the appellant in any manner. For the sake of arguments if it is admitted that the second marriage of Abdul Aziz, appellant, caused annoyance to Fazal Kareem, P.W.7, even then annoyance of the father, if any, could be termed as his displeasure at the most. Needless to add that displeasure or annoyance of father against his son over some domestic/family issue would not amount to enmity or hatred between the two.

19. For what has been stated above, we are of the considered view that the prosecution successfully proved the charge, against Abdul Aziz, ,appellant, with truth inspiring and trustworthy statements of his father (Fazal Kareem, P.W.7) and brother in law (Muhammad Anwaar, P.W.8). Abdul Aziz, appellant, murdered his younger 23 years old unmarried brother on account of property dispute in front of the house of the latter in presence of his father. Keeping in view the mode and manner of the incident, we are in agreement with the learned trial Court that no mitigating circumstances, whatsoever, is available to the appellant qua the quantum of his sentence.

20. For the foregoing reasons we uphold the conviction and sentence imposed on Abdul Aziz, appellant, by the Trial Court and consequently dismissed criminal Appeal No.882 of 2002.

21. Murder Reference No.730 of 2002 stands answered in affirmative.

22. Death sentence awarded to Abdul Aziz, appellant, by the Trial Court stands confirmed. H.B.T./A-166/L Order accordingly.