2016 P Cr (PLP)

MAZHAR IQBAL SIDHU, J.

This judgment will dispose of above captioned criminal appeal filed by appellant Muhammad Nadeem who was convicted by learned Addl. Sessions Judge/Juvenile Court, Faisalabad in a case registered vide FIR No.676/06 dated 16.7.2006 under section 302/34, P.P.C. at P.S. Ghulam Muhammad Abad, Faisalabad vide impugned judgment dated 29.9.2007 and sentenced infra:- (i) Life imprisonment under section 302(b), P.P.C. with payment of Rs.50,000/- as compensation to the legal heirs of deceased Muhammad Ummer in terms of section 544-A, Cr.P.C. and in default whereof to further undergo SI for two months. (ii) Ten years R.I. under section 364, P.P.C. with fine of Rs.20,000/- He was also extended the benefit of section 382-B, Cr.P.C.

2. The penitent saga as divulged by complainant Aurang Zeb (PW-07) in FIR Exh.PE is that he is resident of Mohallah Naseerabad, Faisalabad and has a shop of milk and yogurt. On 16.7.2006, at about 5.00 PM, Bilal son of Qammer co-accused (since acquitted) called Ummer aged about 09 years son of the complainant from his house who came out from his house whereas Muhammad Imran appellant was already present on motorcycle nearby to the house of the complainant. Imran Ali appellant sat down both Muhammad Ummer (deceased) and Bilal accused on motorcycle and took them towards Rajay-wala Road. The complainant had some suspicion in his mind that Imran and Bilal above said accused will not cause any harm to his son Muhammad Ummer whereupon he along with Ishtiaq Ahmad and Rasheed Ahmad after boarding on a separate motorcycle went behind them. Imran Ali appellant took Muhammad Umer (deceased) and Bilal accused (since acquitted) towards Rajay-wala Mosque and then to nearby crop of fodder where Muhammad Nadeem co-accused (tried separately as major), the brother of Imran Ali accused was already present there. Muhammad Nadeem co-accused caught hold Muhammad Ummer from his arms whereas Imran Ali slaughtered Muhammad Ummer son of the complainant with Chhurri. The accused persons threatened the PWs that whosoever step forward would be done to death in the same manner. The accused persons while brandishing 'Chhurri' and by imparting threats of dire consequences succeeded to make off from the place of occurrence. They took care of his son Ummer who succumbed to the injuries at the spot. The motive behind the occurrence was that some petty fracas in between Imran Ali appellant and the complainant took place in the Mohallah one day prior to the instant occurrence due to the business of shop keeping and the said matter was patched up by the residents of Mohallah. Due to this grudge, Muhammad Imran (appellant) Bilal (since acquitted) and Muhammad Nadeem (co-appellant) in prosecution of their common intention committed brutal murder of Muhammad Ummer. He left Ishtiaq Ahmad and Rashid Ahmad at the dead body to guard it and went to police station to report the matter. Hence, instant FIR.

3. After the conclusion of investigation, appellant was found guilty and report under section 173, Cr.P.C. was prepared and was submitted in the court for trial by placing his name along with name of co-accused Bilal (since acquitted) in column No.3 of the said report.

4. Learned trial court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused Bilal (since acquitted) to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge.

5. The prosecution in order to prove its case produced 11 witnesses in all. Doctor Muhammad Naeem Demonstrator Forensic Medicine Department, Faisalabad (PW.4) deposed that on 17.7.2006 at 10.00 AM performed postmortem examination on the dead body of Muhammad Ummer deceased and observed as under:- INJURIES: (i) An incised wound 8 x 6 cm in size extending from right to left side of front of neck just about the thyroid cartilage cutting the trachea, esophagus, carotid vessels and cut mark was present on cervical vertebrae, 5 cm below chin and 3 cm above sternal notch. (ii) Multiple abrasion in an area 13 x 10 cm in size 9 in number, 6 on left side of forehead, 4 on front of forehead and one on right side of forehead. (iii) An abrasion 5 x 5 cm in size on bridge of nose. OPINION. Death occurred in this case due to haemorrhagic shock caused by injury No.1 inflicted by sharp edged means, ante mortem and was sufficient to cause death in ordinary course of nature. Injuries Nos.2 and 3 were also ante mortem and was by blunt means. However, three anal swabs were taken and sent to Chemical Examiner, for detection of semen and grouping. Probable time that elapsed between injuries and death was immediate and between death and post mortem was about 12 to 24 hours. Exh.PB was the correct carbon copy of post mortem report and Exh.PB/1 was the pictorial diagrams showing the location of injuries also bore her signatures. He also endorsed injury statement Exh.PC and inquest report Exh.PD.

6. Learned DDA by tendering in evidence report of Chemical Examiner No.1484-S dated 7.8.2006 regarding anal swabs Exh.PM, certified copy of final opinion of Department of Forensic Medicine dated 24.9.2007 Exh.PN, certified copy of report of Chemical Examiner, Lahore dated 29.7.2006 with regard to human blood Exh.PO and that of certified copy of Serologist Exh.PR, certified copy of report of Chemical Examiner, Lahore dated 29.7.2006 regarding Chhurri Exh.PS and that of certified copy of Serologist Exh.PT vide his statement dated 24.9.2007 closed the prosecution evidence.

7. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. wherein he negated the charge and professed his innocence. He neither opted to make statement on oath as permissible under section 340(2), Cr.P.C. nor opted to produce defence evidence. He in reply to a question "why this case against you and why the PWs deposed against you" replied infra:- "Actually in the year, 2002, one Ilyas alias Peppu son of Muhammad Malak was murdered. Rashid Ahmad given up PW and two sons of the brother in law (Sala) of the complainant were nominated in the murder of above said Ilyas alias Peppu. My father Zahoor Ahmad did not help the accused party in the above said murder case. Afterwards on 26.2.2005 one Muhammad Boota s/o Sadiq, Caste Jat, R/o Chak No.103/JB who is also relative of the complainant and Ishtiaq PW went to Chak No.106/RB Chaudhary Wala for taking possession of a house. I was also accompanying the above said Muhammad Boota. During the said occurrence, Zafar Iqbal s/o Ishtiaq Ahmad PW was murdered. My brother Muhammad Nadeem accused (tried separately) was an eye-witness of the said occurrence and he was asked to give evidence in the said murder case of Zafar Iqbal but my brother Muhammad Nadeem (tried separately) did not give evidence on the asking of Ishtiaq Ahmad PW. My brother Muhammad Nadeem (tried separately) was threatened by Ishtiaq Ahmad PW that he will take revenge from us by not giving evidence in favour of Ishtiaq Ahmad PW. On 16.7.2006 Muhammad Umar son of the complainant was abducted by some unknown persons due to some unknown reasons who committed the murder of Muhammad Umar. The dead body of Muhammad Umar was found lying in a bag in the "Charri" crops within the University Area. Ishtiaq Ahmad PW by showing his kindness with Aurang Zaib complainant got involved me in this case as well as my brother Muhammad Nadeem and my "Banja" Bilal by putting a false story due to above said grudge with the help of Asghar Sindhu SI who is also relative of the complainant and the PWs. I am totally innocent in this case. The PWs are related with each other and they being inimical towards me have deposed falsely.

8. On the conclusion of trial the appellant was convicted and sentenced as mentioned supra while his co-accused Bilal was acquitted by the learned trial court. Hence, instant appeal.

9. Learned counsel for the appellant has argued that prosecution has failed to prove the motive as no direct evidence has been brought on record in this respect; Aurang Zeb complainant PW.7 is real father of the deceased whereas Ishtiaq Ahmad PW.8 is the uncle of the deceased, in this way, both the PWs are related inter se as well as the deceased and from the vicinity either from where the deceased was taken away or the place where the deceased was caused to death, any person who may be independent has not been joined to the proceedings; the eye witnesses are inter se contradictory, their presence at the place of occurrence on account of material contradictions on the vital points exists which cannot be reconciled, in this way, presence of the PWs at the place of occurrence is highly doubtful. Further submitted that element of previous enmity has gone proved on record because of the same appellant Imran has been falsely involved, the appellant has no reason to commit the murder of a child of 09 years so he has been made a fall-guy in this case and the recovery of Chhurri has also been foisted. It has also been admitted by the PWs that Chhurri is of common pattern available in the market, in this way, prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubts.

10. Learned Addl. P.G. assisted by learned counsel for the complainant has opposed the submissions on the grounds that matter was reported to the police promptly and Muhammad Imran appellant is the only person who caused death of the deceased by a Chhurri blow giving on the throat of the deceased, the same is vivid through the statement of Dr. Muhammad Naeem (PW.4). Further submitted that although PWs are inter se related and with the deceased but this fact alone is not sufficient to discard their testimonies because they have been tested on the touchstone of cross-examination. Lastly, it has been submitted that during investigation Imran appellant has got recovered motorcycle on 24.7.2006, this fact again corroborates the prosecution version, therefore, instant appeal may be dismissed.

11. Arguments heard. Record perused.

12. The alleged incident took place on 16.7.2006 at about 5.00 PM in the area of University Rajeywali, distant 03 kilometers from the Police Station Ghulam Muhammad Abad, Distt. Faisalabad. The matter was reported at Police Station by the father of the deceased PW.7 Aurangzeb at 6.00 PM on the same day, in this way, the prosecution took no time to make it tale for the incident and if this was the state of affairs, then the FIR Exh.PE has to be given due weight. Although the direct motive against Muhammad Ummer deceased was not with the appellant Imran but a day earlier, there was a fracas in between appellant and the complainant over a money matter as the complainant had set up a milk shop, its detail has not been brought on record by the prosecution and it has also been noticed that appellant Imran had no direct wrath lurking in his mind against the deceased Muhammad Ummer aged about 9/10 years. Perhaps, the deceased accompanied him by becoming pillion rider. The peculiar circumstances of the case warrant not to thrash the motive in this case like in enmity based cases but at the same time, reasons sans exists for the false implication of the appellant to make him a scapegoat. PW.7 Aurangzeb and PW.8 Ishtiaq, both along with Rasheed Ahmad PW (not produced) on knowing the departure of the appellant and his co-appellant (since acquitted) and the deceased towards Rajeywala road chased them and saw the incident. PWs were searchingly cross-examined by the defence but neither any material omission nor addition has been brought on record in their statements to extirpate their presence at the spot nor contradictions have been noticed in their testimonies which may make the case doubtful or throbbing the court to lurk some doubt in proving the case against the appellant beyond shadow of reasonable doubts. Medical evidence has its own significance in this case. Doctor Muhammad Naeem PW.4 found following injuries on the body of the deceased when he perform autopsy at 10.00 AM on the following day:- INJURIES: (iv) An incised wound 8 x 6 cm in size extending from right to left side of front of neck just about the thyroid cartilage cutting the trachea, esophagus, carotid vessels and cut mark was present on cervical vertebrae, 5 cm below chin and 3 cm above sternal notch. (v) Multiple abrasion in an area 13 x 10 cm in size 9 in number, 6 on left side of forehead, 4 on front of forehead and one on right side of forehead. (vi) An abrasion 5 x 5 cm in size on bridge of nose. Abrasions all over the forehead including the bridge of nose necessarily implicates that the deceased was murdered in ruthless manner as incised wound found on the right to left side of the front of neck cutting upto thyroid and trachea measuring 8 cm x 6 cm led the death of the deceased immediate caused with Chhurri. Medical evidence supports the ocular account. Appellant was arrested on 18.7.2006 and while in police custody he on 24.7.2006 got recovered blood-stained Chhurri P-3 on his pointing out, the same was made into sealed parcel and took into possession vide recovery memo. Exh.PG and its report is positive and also got recovered motorcycle on the same day vide recovery memo Exh.PH and these factors further beef up the prosecution version. It was the good fortune of the appellant that he was tried as juvenile and remained escape from the capital punishment of death as the case against the appellant has been noticed as foolproof. On the other hand, the explanation furnished by the appellant in his statement recorded under section 342, Cr.P.C. has no support being alien to facts and circumstances of the case. Befalling of such like incidents are not only regarded macabre stunning a layman but mantle lie upon the court to decide the cases strictly within the bounds of law in order to maintain equilibrium in the society leaving poignant aspect of the case. Though the appellant was tried ill-wind but fortunately his life is safe being a juvenile. The impugned judgment is based upon sound principles of appreciation of evidence and has not been noticed unpalatable or has caused miscarriage of justice. Moreover, learned trial court has also given well-reasoned judgment and this Court has not been able to locate any perversity, illegality and impropriety in the impugned judgment or any loophole in the material available on file to extend any benefit to the appellant, therefore, instant appeal being shorn of reasons stands dismissed. Resultantly, impugned judgment is maintained and upheld.

13. The appellant is on bail by suspending his quantum of sentence but today is not present. Office to issue warrant of his arrest to be executed by the SHO concerned for his arrest and lodgment in jail to serve out the remaining portion of his sentence in accordance with law. MH/I-24/L Appeal dismissed.