PLJ 2021 Cr.C. (Lahore) 26 (DB)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Right of private defence--Medico legal examination certificate--Defence version--Witnesses--Suggestions were categoryically denied by PWs--No observation with regard to colour of injuries witnessed--Determine age of an injury--Held: It is established that appellants failed to produce any evidence that appellants had received any injury at hands of deceased or witnesses, at time of occurrence and during same. [P. 44] A
Recovery of churri--
----Scope of--Report of FSL--Blood available on churri--During such a period of more than a month, blood available on Churri if any, would also have disintegrated--As mentioned above, it is not possible to believe that blood had not disintegrated by then and therefore said recovery of Churri also cannot be used as incriminating evidence against appellant. [P. 45] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 337-F(v), 337-L(2), 337-D, 147, 148 & 149--Qatl-i-amd--Sentence--Challenge to--Recoveries--Procedural defects--No legal worth and value--Ocular account--Broad day light occurrence--Question of misidentification--Motive of occurrence--Quantum of sentence--Death sentence--Prosecution has proved its case against appellants beyond shadow of any doubt--Firstly, evidence of recovery of Churri from possession of appellant has been disbelieved by Court for reason mentioned in Para No. 18 of this judgment, secondly prosecution has alleged a specific motive in this case but has failed to prove same--Held: It is well recognized principle by now that question of quantum of sentence requires utmost attention and thoughtfulness on parts of Courts--If a specific motive has been alleged by prosecution then it is duty of prosecution to establish said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of accused--Conviction of appellant as awarded by trial Court through abovementioned judgment is maintained but sentence of death awarded to appellant under section 302(b), P.P.C. is altered to imprisonment for life--Compensation awarded by trial Court under section 544-A of Cr.P.C. and sentence in default thereof is maintained and upheld.
[Pp. 46, 47 & 49] C, D, E & F
Mr. Basharat Ullah Khan, Advocate for Appellants.
Mr. Sajjad Hussain Bhatti, Deputy Prosecutor General for State.
Mr. Ghulam Mehdi Khan, Advocate for Complainant.
Date of hearing: 28.9.2020.
PLJ 2021 Cr.C. (Lahore) 26 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ.
versus
STATE and another--Respondents.
Crl. A. No. 141-J and M.R. No. 83 of 2017, decided on 28.9.2020.
Judgment
Sadiq Mahmud Khurram, J.--The appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah were tried by the learned Additional Sessions Judge, Rawalpindi in case FIR No. 509 of 2013 dated 9.8.2013 registered at Police Station Saddar Barooni, District Rawalpindi in respect of offences under Sections 302, 324, 337-F(v), 337-L(2), 337-D, 147, 148 and 149, PPC for committing the Qatl-i-Amd of Qalab Abbas Shah son of Syed Khair Hussain (deceased). The learned trial Court vide judgment dated 22.12.2016, convicted Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah (convicts) and sentenced them as infra:
Intikhab Ameer son of Fayyaz Hussain Shah.
i) Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Qalab Abbas Shah son of Syed Khair Hussain (deceased) and directed to pay
Rs. 100,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
ii) Rigorous Imprisonment for ten years under Section 324, PPC and directed to pay fine of Rs. 20,000/- and in default thereof to further undergo simple imprisonment for two months.
iii) Rigorous Imprisonment for five years under Section 337-F(v), PPC and directed to pay
iv) Rigorous Imprisonment for one year under Section 337-F(i), PPC and directed to pay
v) Rigorous Imprisonment for one year under Section 148, PPC.
Gulshan alias Moon son of Fayyaz Hussain Shah.
i) Imprisonment for life under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Qalab Abbas Shah son of Syed Khair Hussain (deceased) and directed to pay Rs. 100,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.
ii) Rigorous Imprisonment for ten years under Section 324, PPC and directed to pay fine of Rs. 20,000/-and in default thereof to further undergo simple imprisonment for two months.
iii) Rigorous Imprisonment for one year under Section 148, PPC
Fazal Ameer son of Fayyaz Hussain Shah.
i) Rigorous Imprisonment for ten years under Section 324/149, PPC and directed to pay fine of Rs. 20,000/-and in default thereof to further undergo simple imprisonment for two months.
ii) Rigorous Imprisonment for one year under Section 337-F(i), PPC on three counts and directed to pay Daman of Rs. 5,000/-to each injured and in default thereof to remain in jail till its realization (for causing injuries to Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9).
iii) Rigorous Imprisonment for one year under Section 148, PPC
Fayyaz Hussain Shah son of Inayat Hussain Shah.
i) Rigorous Imprisonment for ten years under Section 324/149, PPC and directed to pay fine of Rs. 20,000/-and in default thereof to further undergo simple imprisonment for two months.
ii) Rigorous Imprisonment for one year under Section 337-F(i), PPC on three counts and directed to pay Daman of Rs. 5,000/-to each injured and in default thereof to remain in Jail till its realization (for causing injuries to Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9).
iii) Rigorous Imprisonment for one year under Section 148, PPC
All the sentences were ordered to run concurrently and the benefit provided under Section 382-B of the Code of Criminal Procedure, 1898, was also extended to the convicts by the learned trial Court.
2. Feeling aggrieved, Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah (convicts) lodged Criminal appeal No. 141-J of 2017 against their conviction and sentences through jail. The learned trial Court submitted Murder Reference No. 83 of 2017 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Intikhab Ameer son of Fayyaz Hussain Shah. We intend to dispose of the Criminal Appeal 141-J of 2017 and Murder Reference No. 83 of 2017 through this single judgment.
3. Precisely the facts necessary, as divulged in the statement of Syed Qalab Hussain Shah (PW-10) are as under:
“2½ years prior to the occurrence marriage of Mst. Tahira was solemnized with Intikhab Ameer and out of this wedlock they were blessed with a daughter Amama Ameer who on 09.08.2013 i.e. fateful day was of the age of 1½ years. 20/22 days prior to the occurrence due to rift Intikhab Ameer ousted my niece Tahira from his house and she was living in the house of her parents. The minor was retained by Intikhab Ameer accused. We have tried for reconciliation and rehabilitation but our efforts were failed. On 09.08.2013 it was Eid-ul-Fitar day I alongwith my brother Najaf Hussain Shah went to the house of my brother Qalab Abbas Shah for Eid visitation. my brothers Qalab Abbas, Jabir Husain alongwith our nephew Aoun Abbas and Mobasher Abbas were present there. In the meantime, Mst. Tahira came there and asked us that today is Eid day and she is living without her daughter since last 25 days and requested for arranging visitation with her daughter. Mobasher Abbas went to the house of Intikhab Ameer to take minor and made request for handing over the minor for visitation. At that time Fayyaz Husain, Gulshan Intikhab Abbas, Fazal Ameer and Ahmed Ali were present there. They flared up and started beating Mobasher Abbas. He ran therefrom to rescue his life. On hearing the noise I alongwith my brother Qalab Abbas, Jabir Husain. Najaf Hussain and nephew Aoun Abbas came out of the house, we saw the accused Intikhab Ameer and Gulshan were armed with Chhuries whereas; Fazal Ameer, and Fayyaz Husain were armed with pistols and Ahmed Ali was armed with Danda were present there. Gulshan Ameer and Intikhab Ameer inflicted injuries with Chhuries to Qalab Abbas. The accused Fazal Ameer and Fayyaz Husain with their pistols made firing and resultantly my nephew Aoun Abbas, Mobasher Abbas and my brother Jabir Husain were injured by receiving the fire-arm injuries. In the meantime the accused Intikhab inflicted injury to Jabir Hussain and Aoun Abbas with his chhury on their abdomen area. The accused Ahmed Ali inflicted injury with Danda on the head of Mobasher Abbas. After receiving the injures they fell down on the earth and were shifted to hospital. My brother Qalab Abbas succumbed to the injures when we were on way. The local police after receiving the information of occurrence reached BBH hospital.1 narrated whole the facts to the police. My statement was recorded and my signatures were procured thereupon. The contents of Ex PF were read over to me and I put my signatures thereupon which are Ex PF/1. As my brother was succumbed to the injures, his dead body was shifted from BBH hospital to DHQ hospital
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah were sent to face trial. The learned trial Court framed the charge against the accused on 07.05.2015, to which the appellants pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case, got recorded statements of as many as twenty one witnesses. The ocular account of the case was furnished by Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). Muhammad Tahir, ASI (PW-2) stated that on 09.08.2013 he got the witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9) examined by the Medical Officer and also received their blood stained clothes which were taken into possession by the Investigating Officer through recovery memo. (Exh.PD). Muhammad Banaras (PW-3) and Syed Tanvir Hussain Shah (PW-11) identified the dead body of the deceased. AmirAli 5715/C (PW-4) stated that on 09.08.2013 he escorted the dead body of the deceased for its post-mortem examination and received the last worn clothes of the deceased which were taken into possession by the Investigating Officer through recovery memo. (Exh.PE). Hakim Ali, ASI (PW-5) stated that on 09.08.2013 he received two sealed parcels said to contain blood stained cotton and fifteen empties which on 13.08.2013 he handed over to Babar Shakeel 8301/C (PW-6) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and on 21.08.2013 he received two sealed parcels said to contain a Chhuri and a pistol 30-bore which he, on 25.08.2013, handed over to Babar Shakeel 8301/C (PW-6) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and on 02.09.2013 he received two sealed parcels said to contain a Chhuri and a pistol 30-bore which on 10.09.2013 he handed over to Faheem 6076/C for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Khurram Shahzad draftsman (PW-12) prepared the scaled site-plan of the place of occurrence (Exh.PR). Pervaiz Akhtar, SI (PW-17) recorded the formal FIR (Exh.PAC). Hasnain Ali 2369/C (PW-18) stated that on 09.04.2014 he was handed over a proclamation regarding the co-accused of the appellants namely Ahmad Ali Shah (Proclaimed Offender). Arshad Azeem 3554/C (PW-20) stated that on 23.11.2013 he was handed over non-bailable warrants of arrest regarding the co-accused of the appellants namely Ahmad Ali Shah (Proclaimed Offender). Raja Abdul Rasheed Inspector (PW-21) stated that he prepared the report under Section 173 of the Code of Criminal Procedure, 1898 regarding the co-accused of the appellants namely Ahmad Ali Shah (Proclaimed Offender). Safdar Hussain, SI (PW-13) investigated the case from 8.9.2013 till 09.12.2013 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Tariq Mahmood, SI (PW-14) investigated the case from 09.08.2013 till 05.09.2013, arrested the appellants in this case and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court.
6. The prosecution also got Dr. Muhammad Ijaz (PW-16) examined, who on 09.08.2013 was posted at Benazir Bhutto Hospital, Rawalpindi and on the same day at about 11.30 a.m medically examined Syed Mubasher Abbas son of Qalab Abbas Shah (PW-8) and observed as under:
“Stated that on 9.8.2013 at 11.30 a.m. injured Mobasher was son of Syed Khair Hussain Shah was brought in COD for medical examination. I examined him at 11.45 a.m. Following injuries were noted:-
Injured was fully conscious.
1. A lacerated wound 3x1 cm on posterior aspect of head, bone was exposed. X-Ray skull AP lateral view was advised.
2. A wound of entry .5x.5 cm 8 cm below the right knee joint on front no blackening. Corresponding hole present on Shalwar, signed and handed over to police.
3. A wound of exit .75x.5cm.10 cm above right knee.
4. A wound of entry.5x.5 cm on the dorsal aspect on right thumb.
5. Wound of exit.5x75 on medial aspect of right hand.
Injured was referred to surgical unit for treatment and expert opinion. X-ray right hand AP view and X-ray right lower leg AP lateral view was advised. Injuries were kept under observation and duration of injuries within one hour.
Injury No. 1 was declared due to blunt weapon and Shujjah-e-Damiah. Injuries No. 2, 3, 4 and 5 were fire-arm.X-ray report shows fracture of right metacarpal. Injuries 4 and 5 were declared as Jarh Jafia. Clothes and copy of MLR were handed over to Muhammad Tahir ASI. Application for conducting medical examination Mobasher Abbas EX-PY is also signed by me. My signatures on Ex PY are EX-PY-1. I conducted the medical examination on Mobasher. MLR EX-PAJ of Mobasher Shah is the correct carbon copy of original MLR. My signatures thereupon are Ex.PAJ/1. Application EX-PAB regarding opinion for recording of statement of injured Syed Mobasher Shah, Aoan Abbas, Jabir Shah is also signed by me. My signatures on EX-PAB are EX-PAB/1. I referred the injured to surgical Unit for expert opinion. My referring application for Mobasher is EX-PAK and signed by me.”
On the same day Dr. Muhammad Ijaz (PW-16) had medically examined Syed Jabir Hussain Shah son of Khair Hussain (PW-9) at 11.50 a.m and observed as under:
“Following injuries were noted:-
1. An incised wound 3x1 cm on abdomen, 2 cm left lateral to umbilicus, depth not probed, corresponding cut marks were present on the kameez and signed.
2. An entry wound of fire-arm 1x1 cm on anterior aspect of right middle leg with external deformity, blackening positive, corresponding hole present on Shalwar. X-ray right lower leg AP lateral view was advised.
3. A wound of entry 075x 075 on lateral aspect 3 cm above left knee joint. Blackening positive. Corresponding cut was preset on Shalwar.
4. A wound of exit 3x1 cm below left knee joint on posterior aspect. X-ray left knee advised.
5. A wound of entry 1 cm on posterior aspect of left leg middle.
6. A wound exist 1.5x1.5 cm below wound of (5cm below the wound of 5)
Corresponding hole present on Shalwar and handed over to police.
Injuries were kept under observation. Injury No. 1 stab. Injury No. 2, 3, 4, 5, 6 were fire-arm. All injuries occurred within one hour. Injuries were declared.
According to radiologist report, there is fracture of Tibia and fibula in injury No. 2. Injury No. 2 declared as Ghair Jafiah Hashima. Injury No. 1 declared as Ghair Jaifa. Injuries No. 3, 4, 5 and 6 were fire-arm. Opinion is attached with the report of Radiologist. After examining the injured, I handed over clothes, copy of MLC, X-ray form to Muhammad Tahir ASI.
Application submitted by Tariq Mahmood SI for conducting medical examination on Jabir Shah is EX-PZ which is also signed by me as EX- PZ/1. MLR of Jabir Shah EX-PAL is the correct carbon copy of original MLR which is in my hand writing and bears my signatures. My signatures thereupon are EX-PAL/I.”
On the same day Dr. Muhammad Ijaz (PW-16) had medically examined Syed Aoun Abbas son of Qalab Abbas Shah (PW-7) at about 12.00 noon and observed as under:
“Following injuries were noted:
1. An incised wound 1.5x1 cm just lateral aspect of pubic symphysis ommentin protrobing.
2. An entry wound 1x1 cm at the level of Lumber 3 on left side on back corresponding hole was present on cloth.
3. Superficial wound 1.5x1.5 cm on left cubitle fosa, probably due to bullet.
4. An entry wound 1x1 cm 3 cm below right knee joint.
5. A wound of exit 1.5 x 1 cm 10 cm below Wound No. 4.
The prosecution also got examined Dr. Muhammad Ashraf (PW-15) who on 09.08.2013 conducted the post-mortem examination of the deceased namely Qalab Abbas Shah son of Syed Khair Hussain. Dr. Muhammad Ashraf (PW-15), after post-mortem examination, observed as under:-
“On examination, following injuries were noted on the dead body:-
1. an incised wound lying obliquely measuring 4x1 cm on the anterior surfice right side of abdomen 22 cm below right nipple, deep into cavity.
2. An incised wound 3x1 cm just close to umblicous on the right side, deep into cavity.
3. An incised wound lying horizontally 8x2 cm on the front of chest and it is bone expose 9 cm below the sternoclavicular fossae.
4. An incised wound 3x1 cm on the left front of the chest just below left nipple and it is lying vertically deep into cavity.
5. An incised wound 3x1 cm on the anterior surface of left side of abdomen 14 cm below the nipple and it is deep into the cavity.
6. An incised wound 2 x 0.5 cm muscle deep on the left deltoid region.
7. An incised wound 3x1 cm bone not exposed on the right paerital region of skull, 9 cm above the right ear pinna.
8. An incised wound 2x1 cm bone not exposed on the right occipital region of skull.
9. An incised wound 3x1 cm bone not exposed on the mid of vault of skull.
…………………………………………………………………
In my opinion the deceased died due to the injuries No. 1, 2, 4 and 5 caused by sharp edged weapon, ante mortem in nature causing extensive damage to vital chest cavity organs i.e. lungs and pulmonary vessels and abdominal cavity organs i.e. intestines which lead to perfused bleeding, shocked and ultimately death. Such type of injuries are sufficient to cause death in ordinary course of nature. The other injuries also contributed in causing death due to haemmarage.
The probable time between injuries and death was half an hour and probable time between post-mortem and death was within 4 to 12 hours.”
The prosecution also got examined Dr. Muhammad Nawaz Khokhar (PW-1), who on 16.08.2013 conducted the radiological examination of Syed Aoun Abbas (PW-7) and Syed Jabir Hussain Shah (PW-9) and on 09.08.2013 conducted the radiological examination of Syed Mubasher Abbas (PW-8) and exposed the X-rays films.
7. On 18.05.2016 the learned DDPP gave up prosecution witnesses namely Najaf Hussain and Tajammal Hussain as being unnecessary. On 27.10.2016, the learned ADPP closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PAP) regarding the analysis of knife recovered from the appellant namely Gulshan alias Moon, the report of Punjab Forensic Science Agency, Lahore (Exh.PAQ) regarding the analysis of knife recovered from the appellant namely Intikhab Ameer, the report of Punjab Forensic Science Agency, Lahore regarding the blood stained cotton (Exh.PAR) and the report of Punjab Forensic Science Agency, Lahore (Exh.PAS) regarding the analysis of the pistol recovered from the appellant Fazal Ameer and the empties.
8. After the closure of prosecution evidence, the learned trial Court examined the appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants replied that on the day of occurrence the complainant party trespassed into their house and apprehending danger to their lives, the appellant namely Fayyaz Hussain Shah and one Raza Hussain Shah acted to save their lives which resulted in the injuries to the deceased as well as the prosecution witnesses. The appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah opted not to get themselves examined under section 340(2) Cr.P.C however got Ghulam Mustafa (DW-1), examined in their defence.
9. On the conclusion of the trial, the learned trial Court convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false; that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants in support of this appeal, further contends that the story of the prosecution mentioned in the F.I.R., on the face of it, is highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence is without any justification. He further contended that the statements of Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) were not worthy of reliance. The learned counsel for the appellants further submitted that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants has also argued that the appellants acted in exercise their right of private defence of their person and had not committed any offence. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). They further argued that the recoveries from the appellants also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). These witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) were related to each other as well as the appellant namely Intikhab Ameer. Their relationship with the deceased is also on record. The deceased namely Qalab Abbas Shah son of Syed Khair Hussain was the father of Syed Mubasher Abbas (PW-8) and brother of Syed Aoun Abbas (PW-7), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). The deceased namely Qalab Abbas Shah son of Syed Khair Hussain was the father-in-law of the appellant namely Intikhab Ameer. It is also a fact that the appellants namely Fazal Ameer and Gulshan alias Moon are brothers of the appellant namely Intikhab Ameer, whereas the appellant namely Fayyaz Hussain Shah is the father of the appellant namely Intikhab Ameer. To establish the ocular account of the occurrence, the prosecution produced Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) who all had explained their presence at the place of occurrence categorically and their presence is even otherwise admitted by the appellants. The presence of the witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) at the place of occurrence was quite probable and natural, especially when Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), and Syed Jabir Hussain Shah (PW-9) had stamp of injuries on their persons. The occurrence in the present case took place just outside the house of the deceased namely Qalab Abbas Shah and of the witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). During the course of investigation, Tariq Mehmood, SI (PW-14), the Investigating Officer of the case, also collected the blood stained cotton from the place of occurrence and took the same into possession through recovery memo. (Exh.PG). The report of the Punjab Forensic Science Agency,
"In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."
Hence, in view of the above facts, Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10), by no stretch of imagination, can be declared as chance witnesses. The presence of the witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) at the place of occurrence, at the time of occurrence stands proved beyond a shadow of doubt.
14. We have also noted that the occurrence in this case took place in the broad-daylight at about 10.30 a.m. which was reported by the complainant namely Syed Qalab Hussain Shah (PW-10) on the same day at 1.15 p.m, when the complainant got recorded his oral statement (Exh.PF) to Tariq Mehmood SI (PW-14) at the hospital and the formal F.I.R. (Exh.PAC) was registered at 1.45 p.m. by Pervaiz Akhtar (PW-17). The formal F.I.R. (Exh.P.A.C) was registered at 1.45 p.m. when the police station was at a distance of eleven kilometers from the place of occurrence. Thus, it is apparent that the FIR (Exh.PAC) was got lodged within a short duration and the complainant not only named the appellants, but also mentioned each and every minor as well as material fact of the incident therein, which of course excludes the possibility of deliberation or consultation regarding false implication of the appellants in the instant case. The detail of the occurrence has been elaborately explained in the F.I.R. (Exh.PAC) as well as the oral statement (Exh.PF) of the complainant namely Syed Qalab Hussain Shah (PW-10). The promptitude in lodging of the F.I.R., in circumstances when the complaint had seen his brothers Qalab Abbas Shah deceased, Syed Auon Abbas (PW-7), Syed Jabir Hussain Shah (PW-9) and nephew Syed Mubasher Abbas (PW-8) being attacked and grievously injured, also corroborates the case of the prosecution as against the appellants. This promptitude in reporting the matter to the police also establishes the presence of the witnesses at the place of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as “Muhammad Waris v. The State” (2008 SCMR 784) wherein the August Supreme Court of Pakistan was pleased to observe as under:
“The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death.”
15. As mentioned above, the occurrence in question had admittedly taken place in broad daylight and the same, therefore, could not have gone un-witnessed nor could have the culprits escaped unnoticed. As it was a broad daylight occurrence and because of previous acquaintance of the parties, question of misidentification does not arise. The deceased Qalab Abbas Shah was the father in-law of the appellant namely Intikhab Ameer. As cited earlier, it is a fact that the appellants namely Fazal Ameer and Gulshan alias Moon are brothers of the appellant namely Intikhab Ameer, whereas the appellant namely Fayyaz Hussain Shah is the father of the appellant namely Intikhab Ameer. In the incident it would not have been difficult for the complainant party to identify the present appellants. Hence, according to the facts and circumstances, the misidentification of the appellants, is not even a question in this case.
16. The medical evidence produced by the prosecution in the case proved that the deceased and the witnesses had received injuries on their persons with the weapons yielded by the appellants and Qalab Abbas Shah, deceased succumbed to the injuries caused by the appellants namely Intikhab Ameer and Gulshan alias Moon. The medical evidence fully supports the ocular account. The probable time between the injuries received by the deceased namely Qalab Abbas Shah and the injured witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9) and their medical examinations, as conducted by Dr. Muhammad Ijaz (PW-16) coincides with the time of occurrence as mentioned by the prosecution witnesses. Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9) were examined by Dr. Muhammad Ijaz (PW-16) quite promptly as mentioned above, leaving no room for pondering or manufacturing of a story by the prosecution witnesses. The appellants have been saddled with the responsibility of causing the injuries on the persons of the deceased namely Qalab Abbas Shah and the witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9). The statements of Dr. Muhammad Ashraf (PW-15) and Dr. Muhammad Ijaz (PW-16) reveal that the deceased as well as the witnesses had received the injuries on their persons by the weapons as seen and deposed to by the witnesses in their statements before the learned trial Court. It was recorded by the Medical Officers that none of the injuries observed by them on the persons of the deceased as well as the injured witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9) were fabricated. Dr. Muhammad Ashraf (PW-15) stated that he observed as many as nine incised wounds on the body of Qalab Abbas Shah (deceased) at the time of post-mortem examination caused by sharp edged weapon. Dr. Muhammad Ijaz (PW-16) observed two entry wounds caused by a fire-arm weapon on the person of Syed Mubasher Abbas (PW-8), three entry wounds caused by a fire-arm weapon and one incised wound on the person of Syed Jabir Hussain Shah (PW-9) and two entry wounds caused by a fire-arm weapon and one incised wound on the person of Syed Aoun Abbas (PW-7). The said injuries have been attributed to the appellants by the witnesses in their statements before the learned trial Court .Hence the ocular account of the occurrence is totally corroborated by the medical evidence.
17. The learned counsel for the appellants has also argued that the appellants acted in exercise of their right of private defence of their person and had not committed any offence. The learned counsel submitted that the truthfulness of the defence version could be visualized even in absence of any evidence in this regard. We, having heard the learned counsel for the appellants and after perusing the record with his assistance, have found that the appellants had taken the plea of exercise of their right of private defence of their person but this plea as such was neither traceable in support thereof in the evidence nor the appellants produced any reliable evidence in defence to prove the same. All the witnesses and the deceased had received multiple injuries by sharp edged weapons and fire-arm weapons but the appellants failed to explain the presence of the said injuries miserably. Besides above, the defence version as put-forth to the prosecution witnesses during cross-examination and also advanced in the statements of the appellants under section 342, Cr.P.C. is based on a couple of suggestions, which suggestions were categorically denied by all the prosecution witnesses to whom they were put. The appellants had claimed that during the occurrence the appellants namely Intikhab Ameer and Fayyaz Hussain Shah were injured. The learned trial Court examined Dr. Fauzia Syed as (CW-1) so as to prove the medico legal examination certificates of the appellants namely Intikhab Ameer and Fayyaz Hussain Shah as prepared by Dr. Imran, who has since gone abroad. Dr. Fauzia Syed (CW-1) stated that she identified the handwriting of Dr. Imran and the medico legal examination certificates of the appellants namely Intikhab Ameer (Exh. CW-1/B) and Fayyaz Hussain Shah (Exh.CW-1/A) were prepared by Dr. Imran. We have perused both the medico legal examination certificates of the appellants namely Intikhab Ameer (Exh. CW-1/B) and Fayyaz Hussain Shah (Exh.CW-1/A). It is obvious from the perusal of the said medico legal examination certificates that Dr. Imran had observed one injury (the other being only a complaint of pain) on the person of the appellant namely Intikhab Ameer and two injuries (the other being only a complaint of pain) on the person of the appellant namely Fayyaz Hussain Shah, however, had not determined the probable duration of the injuries observed by him on the persons of the appellants namely Intikhab Ameer and Fayyaz Hussain Shah. Both the appellants were examined at 4.00 p.m. on 09.08.2013 and no observation with regard to the colour of the injuries witnessed on their person was made by Dr. Imran. To determine the age of an injury it is necessary that the colour of the same be observed by the Medical Officer. According to the medical jurisprudence, the average duration of bleeding and oozing is within a range 18 hrs, the average duration for the formation of reddish scab is within a range of 12-72 hrs. and complete shedding of scab is seen within a range of 5-10 days. It was also the claim of the appellants namely Intikhab Ameer and Fayyaz Hussain that as a result of being beaten, their wounds were bleeding profusely. However, in this case at the time of examination of the appellants namely Intikhab Ameer and Fayyaz Hussain Shah no bleeding or oozing of blood was observed by Dr. Imran. This clearly establishes that the appellants namely Intikhab Ameer and Fayyaz Hussain Shah had not received the injuries during the occurrence as bleeding or oozing of blood should have been observed by Dr.Imran. Furthermore, the appellants immediately fled away from the place of occurrence after the commission of the same and were arrested subsequently by Tariq Mehmood SI (PW-14), the Investigating Officer of the case. This conduct of the appellants is also relevant for the purpose of exposing the hollowness of their plea that they acted in the exercise of their right of private defence. It is established that the appellants failed to produce any evidence that the appellants namely Intikhab Ameer and Fayyaz Hussain Shah had received any injury at the hands of the deceased or the witnesses, at the time of occurrence and during the same. The plea raised by the appellants in their statements under section 342, Cr.P.C. or through suggestions put to the prosecution witnesses in cross-examination is not borne out from the record of evidence available. The August Supreme Court of Pakistan in the case of Shahid Ghafoor vs. the State (2007 SCMR 1338) has held as under:
Reliance is also placed the case of Navid Akhtar and another v. Muhammad Saeed Khan and another (2004 SCMR 1469) wherein it has been held as under:
“The defence version that during snatching the pistol from the deceased three or four fire shots went off which hit the deceased, is not appealing at all. It is strange that during the scuffle of snatching pistol, the petitioner did not receive even a scratch. It is also not believable that his licensed pistol which he produced before the police, was substituted for the real weapon of offence. The plea of self-defence taken by the petitioner appears to be un-founded as he failed to substantiate his claim by any cogent proof. Under Article 121 of the Qanun-e-Shahadat Order, 1984 the onus to prove the existence of circumstances bringing his case within any of the General Exceptions in the Pakistan Penal Code or within any special exceptions or proviso contained in any other pan (sic) of the same Code or in any law, was on him which he failed to discharge and in such circumstances presumption can tie drawn against him. Since the petitioner has failed to prove his defence plea by any evidence so much so that he did not even appear under section. 340(2), Cr.P.C. to give evidence on oath in disproof of the charges or allegations against him therefore, presumption can be drawn against him and such a plea cannot be sustained in absence of any proof. There is no doubt that the prosecution has no prove its case and the defence version, if reasonably possible being true can be taken into consideration but where such a plea is a mere claim and is not convincing and there is not even an iota of evidence in support of the such plea except for certain suggestions put to the P.Ws. in cross-examination which were categorically denied, such a plea cannot be maintained”.
such a period of more than a month, the blood available on the
Churri (P-14), if any, would also have disintegrated. As mentioned above, it is not possible to believe that the blood had not disintegrated by then and therefore the said recovery of the Churri (P-14) also cannot be used as incriminating evidence against the appellant namely Gulshan alias Moon. The august Supreme Court of Pakistan in the case of “Faisal Mehmood vs. The State” (2016 SCMR 2138) has held as under:
“The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”
19. The motive of the occurrence, given in the oral statement (Exh.PF) was that the appellant namely Intikhab Ameer was married to Mst. Tahira, the daughter of Qalab Abbas Shah (deceased) and they were blessed with a daughter, however the relations between the appellant namely Intikhab Ameer and his wife had soured 20/25 days prior to the occurrence due to which the said Mst. Tahira had returned to her home leaving back her daughter and wished to see her on the day of occurrence and when Syed Mubasher Abbas (PW-8) went to bring the daughter of Mst. Tahira to their home, the accused attacked him and subsequently the occurrence took place. It is obvious from the perusal of the record that Mst. Tahira, the daughter of Qalab Abbas Shah (deceased) neither joined the investigation of the case nor appeared before the learned trial Court to prove the said motive of the occurrence. The failure of the prosecution to produce Mst. Tahira has resulted in us concluding that the prosecution had failed to establish the motive of the occurrence by not producing the best evidence available in this respect. Consequently, it is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Qalab Abbas Shah, deceased. Therefore, we have concluded that the prosecution failed to prove the motive of the occurrence.
"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
"10. The recent trend of the Courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".
The august Supreme Court of Pakistan has held in the case of “Mst. Nazia Anwar v. The State and others” (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under:
“In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.”
A reference in this respect may also be made to the cases of “Nawab Ali v. The State” (2019 SCMR 2009), “Muhammad Akram alias Akrai v. The State” (2019 SCMR 610), “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165), “Muhammad Mumtaz v. The State and another” (2012 SCMR 267), “Muhammad Imran alias Asif v. The State” (2013 SCMR 782), “Sabir Hussain alias Sabri v. The State” (2013 SCMR 1554), “Zeeshan Afzal alias Shani and another v. The State and another ” (2013 SCMR 1602), “Naveed alias Needu and others v. The State and others ” (2014 SCMR 1464), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Muhammad Asif v. Muhammad Akhtar and others” (2016 SCMR 2035) and “Qaddan and others v. The State” (2017 SCMR 148).
hereby dismissed. The appellants namely Fayyaz Hussain Shah son of Inayat Husain Shah and Fazal Ameer son of Fayyaz Hussain Shah are present on bail as their sentences were suspended by this Court. They are ordered to be taken into custody and lodged in the judicial lock up to serve out the remaining portion of their sentences. Their bail bonds are discharged.
23. Murder Reference is answered in Negative and the death sentence of Intikhab Ameer son of Fayyaz Hussain Shah is Not Confirmed.
(S.A.B.) Appeal dismissed
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