2010 SCMR 1090 (PLP)

JAVED IQBAL, J.

Pursuant to F.I.R. No.503 of 2001 dated9-7-2001 got lodged by complainant Bashir Ahmed (P.W.5) under sections 302, 452 and 109, P.P.C. registered at Police Station Kharian, District Gujrat, petitioner was convicted under section 302(b), P.P.C. and sentenced to death by the learned Additional Sessions Judge, Gujrat Camp at Kharian by means of judgment dated 26-6-2002 with direction to pay Rs.25,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in case of default to suffer further S.I. for six months. The petitioner was also convicted under section 452, P.P.C. and sentenced to four years' R.I. The co-accused namely Fazal Hussain, Mst. Rashida Bibi and Muhammad Asif were acquitted. Being aggrieved, an appeal was preferred which hac been dismissed by the learned Division Bench of the Lahore Hign Court, Lahore, hence this appeal.

2. Leave to appeal was granted by means of order dated 14-4-2009 which is reproduced hereinbelow for ready reference:

"Keeping in view the circumstances of the case and also the statement of D:W.4, who is a close relative of the complainant being his brother, though equally related to the accused party, who excluded the presence of the complainant at the time of occurrence and which witness i.e. D.W.4, is also alleged to be occupant of the said house make the case of the petitioner for further scrutiny and also reappraisal of the evidence.

2. Therefore, leave to appeal is granted."

3. Precisely stated the facts of the case "as narrated by the complainant, Bashir Ahmad (P.W.5), in the F.I.R., was to the effect that on 9-7-2001 at 9-30 a.m., lie, along with his wife Mst. Fatima Bibi, daughter Mst. Rasheed Begum and grand-daughter Mst. Shameem, aged 3 years, was present in his house, when all of a sudden, Khadim Hussain-appellant, alias Khadu, armed with a machete/Chhurri, came into sight and raised a Lalkara that he would kill Mst. Rasheed Begum and her daughter Mst. Shameem. Thereafter, he went to the bathroom, where Mst. Rasheed Begum and her daughter were present, and slit their throats open with his machete/Chhuri. Both, mother and daughter, allegedly succumbed to their injuries at the spot. The motivating factor behind the occurrence, statedly, was that the complainant had refused to give her daughter Mst. Rasheed Begum (slain) in marriage to her ex-husband, Muhammad Asif/acquitted co-accused for the second time, and due to that the appellant, who is brother of the said Asif butchered Mst. Rasheed Begum (slain) and her daughter Shamim (deceased)".

4. Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court entered appearance on behalf of petitioner and contended that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the prosecution has failed miserably to substantiate the accusation and no convincing or forthright evidence could be produced. It is next contended that prosecution story is neither probable nor plausible and revolves around the motive which could not be proved. It is urged with vehemence that statements of all the prosecution witnesses who are related inter se should have been discarded which have wrongly been taken into consideration by the learned trial and Appellate Courts as no conviction and sentence could have been awarded on the statements of interested eye-witnesses. It is contended that Fazal Hussain, Mst. Rashida Bibi and Muhammad Asif (co-accused) have been acquitted on the basis of same evidence led against the petitioner which aspect of the matter went unnoticed causing serious prejudice against the petitioner. It is further argued that there are glaring contradictions in the statements of prosecution witnesses which have been ignored without any rhyme and reason, benefit whereof should have been given to the petitioner. It is also pointed out that the defence version has not been kept in juxtaposition and the statement of Noor Hussain (D. W.4) has been ignored without any justification whatsoever. Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court on behalf of petitioner has further argued that Mst. Rasheed Bibi (deceased) was a lady of easy virtue and could have been murdered on this account by her relatives which aspect of the matter should have been considered but ignored by the learned trial and Appellate Courts. Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court on behalf of petitioner while arguing the alternation plea for reduction in sentence submitted that in view of the mitigating and extenuating circumstances the sentence of death may be altered to that of life imprisonment which would meet the ends of justice as according to him the sentence of death does not commensurate with the gravity of offence if, viewed in the light of all the surrounding circumstances.

5. Mr. Shahid Mehmood Abbasi, learned Deputy Prosecutor General, entered appearance on behalf of State and has strenuously controverted the view-point as canvassed at bar by Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court for the petitioner and supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has proved the guilt to the hilt by producing ocular evidence, strong motive, medical evidence and factum of recovery. It is also contended that prosecution witnesses cannot be labelled as interested witnesses merely on account of inter se relationship. They stood firm to the test of cross-examination and have rightly been believed by the learned trial and Appellate Courts and besides that they have absolutely no motive to involve the accused in such a heinous offence which otherwise does not appeal to logic and reason.

6. We have carefully examined the respective contentions as adduced on behalf of the petitioner and for State in the light of evidence which has come on record by keeping the defence version in juxtaposition. A careful scrutiny of the entire evidence would reveal that prosecution case mainly hinges on the eye account, motive, medical evidence and recovery of blood-stained Chhuri at the pointation of petitioner. We have also kept the defence version in juxtaposition which will be discussed in latter portion of the judgment. After having an in depth scrutiny of the eye account furnished by Bashir Ahmed (P.W.5) and Mazhar (P.W.3) it can be inferred safely that they were trustworthy and their statements have rightly been relied upon by the learned trial and Appellate Courts. It is worth-mentioning that they have highlighted each and every aspect of the tragic incident and stood firm to the test of cross-examination and nothing advantageous could be elicited rendering any help to the case of petitioner. There are neither any glaring contradictions in their statements nor any dishonest exaggeration, omission or concealment could be found. Let we mention here at this juncture that Mr. Ch. Muhammad Arshad, learned Advocate Supreme Court was asked pointedly to mention the glaring contradictions but he could not point out any contradiction which can be termed as a major contradiction. It is an admitted position that with the passage of time the minor contradictions do creep in which can be ignored safely. The inter se relationship of Bashir Ahmed (P.W.5) and Mazhar (P.W.3) is not disputed but merely on the basis of inter se relationship the statements of eye-witnesses cannot be discarded because it is not the relationship but the intrinsic value of the evidence which matters. It is well-settled by now that interested witness is one who has a motive to falsely implicate an accused or has some rancor or enmity which was never alleged seriously. There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances. In this regard reference can be made to case titled Muhammad Mansha v. The State 2001 SCMR 199.

7. There is no cavil to the proposition that "motive is a double edged weapon but its significance and importance cannot be ignored. It cannot be sine qua non for bringing offence home to accused yet relevant and significant enough to determine the factum of intention and can be considered in view of facts and circumstances of the case." Noor Elah v. Zafarul Haque PLD 1976 SC

557. Even if the motive is excluded sufficient evidence has come on record to establish accusation.

8. It may, however, be kept in view that medical evidence furnished by Dr. Robina Sajid (P.W.8) lends full corroboration to eye account furnished by Bashir Ahmed (P.W.5) and Mazhar (P.W.3). There is no inconsistency between the ocular version and that of medical evidence. Besides that the blood-stained Chhuri got recovered at the pointation of petitioner lends full corroboration to the ocular version. The report of Chemical Examiner (Exh.P.S) is positive and according to Allah Ditta (P.W.2) the Chhuri was found blood-stained which finds support by the report of Chemical Examiner (Exh.P.S.) as mentioned hereinabove. It transpired from the scrutiny of record that this barbaric and heinous murder of Mst. Rasheed Bibi and her minor daughter was committed in a broad-daylight and the F.I.R. was got lodged promptly with a specific role assigned to petitioner which negates the possibility of consultation or deliberation. The petitioner has a strong motive to commit double murder which has been established by the prosecution in a categoric manner. The personal character of Mst. Rasheed Bibi would not have substantial bearing on merits of the case and even otherwise if Mst. Rasheed Bibi (deceased) was a lady of easy virtue it does not give a blank cheque to the petitioner to commit her gruesome murder on this account and that too along with her minor daughter namely Shamim.

9. We are not persuaded to agree with the contention of learned Advocate Supreme Court on behalf of petitioner that co-accused have been acquitted on the basis of same evidence which has been relied upon while awarding death sentence to the petitioner for the reason that the role of inflection of Chhuri blows which resulted into the death of Mst. Rasheed Bibi and her daughter namely Shamim has been assigned to the petitioner in an ambiguous manner and besides that no concrete evidence could be led to substantiate the factum of conspiracy or abetment and therefore, benefit of doubt has rightly been extended to Fazal Hussain, Mst. Rashida Bibi and Muhammad Asif. In fact a futile exercise appears to have been made to press into service the doctrine of "falsus in uno falsus in omnibus (false in one thing, false in all), which is admittedly not applicable in prevalent system of criminal administration of justice and moreso there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. Samano v. State 1973 SCMR

162. There is no cavil to the proposition that `the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be sifted from the Chaff in each case, in the light of its own peculiar circumstances Riaz Hussain v. The State 2001 SCMR 177.

10. We have kept the defence version in juxtaposition to that of prosecution evidence and after having scrutinized if thoroughly we are of the view that it has rightly been discarded by the learned trial and Appellate Courts. The contention of Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court that defence version has not been examined by the learned Appellate Court seems to be baseless as it has been dilated upon and decided in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference: "The plea of alibi as advanced by D.W.1, mother-in-law of the appellant being oral in nature and unsupported by any other source does not hold any water. Therefore, the said evidence is useless, and no reliance can be placed upon the same. Learned counsel laid much stress oil the point that D.W.4 being real brother of the complainant, demands the acceptance of his evidence but while doing so, he lost the sight of the fact that the said witnesses is real brother of Fazal Hussain, co-accused and real uncle of the appellants. Instead of supporting the dead ones, he has tried to save the life of his nephew. Moreover, like other witnesses, he also does not claim to be an eye-witness. Mst. Bilquees Bibi, D.W.1 is mother-in-law of the appellant, while Allah Ditta, D.W.2 is cousin (khalazad) of the appellant. So the defence evidence does not advance the case of the appellant."

11. The alternate plea of alternation of death sentence to that of life imprisonment cannot be considered in the absence of any extenuating or mitigating circumstances which cannot be pointed out by the learned Advocate Supreme Court on behalf of petitioner. It is a barbaric and gruesome double murder for which no leniency is called for.

12. The upshot of the above discussion is that the prosecution has established the guilt to the hilt. Accordingly the appeal being meritless is dismissed. N.H.Q./K-3/SC Appeal dismissed.