PLJ 2022 Cr.C. 285 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 449, 324, 337-A, 337-F & 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Case revolves around an occurrence having taken place during which two persons, aged about 80 years and aged about 60 years lost their lives, whereas aged about 32 years got injured--For this bloodbath, appellant was held solely responsible--Scrutiny of record, Court have not come across any convincing material which may cast even a remote doubt about acclaimed time of imparting information of crime to police--Tale of occurrence mentioned in promptly registered FIR on one hand attains credibility and on other hand rules out possibility of fabrication--She was residing in a different vicinity but on fateful night had come to see her mother and sisters--PW.9 & PW.10 were inmates of house wherein crime in question occurred--Since nothing as such is available on record from which it may even remotely insinuate that PW.9 & PW.10 should have been present at sope other place in accordance with their ordinary pursuit of life, hence by no stretch their presence at spot can be doubted--Though three persons fell prey to murderous assault of appellant and multiple fire-arm injuries were caused to them but even then eye-witnesses opted against spreading a wider net for implication of other family members of appellant in case--This aspect demonstrates strongly credibility of eye-witnesses and their testimony is weighed by the Court favourably--Narrators of ocular account put forth detail of occurrence, which inspires confidence--All of them remained consistent while narrating time and manner of occurrence, identity of perpetrators and weapons with which he was armed--No discrepancy of some material nature is discernible from deposition of eye-witnesses--Even otherwise, it appears wholly illogical that eye-witnesses will let actual culprit go scot-free and to substitute him with appellant as sole culprit of this gory incident--Hon'ble Supreme Court of Pakistan in case reported as Khizar Hayat v. The State (2011 SCMR 429) while dealing with case of a single accused observed as under:
"In addition to it, it is a case of single accused, who has fired upon deceased Ghulam Ghous, therefore, substitution of a culprit is not f possible besides it is a rare phenomenon where a witness whose close relative has been murdered would substitute accused with an innocent person thereby allowing actual accused to go scot-free."
In this context, reference can usefully be made to case of Sharafat Ali v. The State (2000 SCJ 50) wherein Hon'ble Supreme Court of Pakistan held as follows:
".......it was most callous and brutal murder and therefore appellant hardly deserves any leniency."
For what has been discussed above, prosecution has been successful in proving its case against appellant for committing 'qatl-i-amd' of two innocent persons and injuring a lady to hilt.
[Pp. 292, 293, 294 & 296] A, B, D, E, F, H & I
PLD 2019 SC 261, 2007 SCMR 324, 2011 SCMR 492,
2011 SCMR 429 & 2000 SCJ 50.
PLJ 2022 Cr.C. 285 (DB)
[Lahore High Court, Lahore]
Present: Sayyed Mazahar Ali Akbar Naqvi and
Ch. Abdul Aziz, JJ.
Ch. Abdul Aziz, JJ.
MUHAMMAD NADEEM--Appellant
versus
STATE and another--Respondents
Crl. A. No. 1474, 1913, Crl. Rev. No. 983 and M.R No. 490 of 2010, heard on 30.1.2020.
Homicide cases--
----Ocular account--In cases of homicide, intrinsic worth of ocular account is scrutinized on multiple grounds, foremost out of them is justification put forth by a witness for his presence at spot.
[P. 293] C
2007 SCMR 324.
Conviction--
----No doubt conviction cannot be awarded on basis of absconsion alone--Since appellant failed to satisfactorily address his absconsion, hence, same can be used as corroboration for confidence inspiring evidence of PWs. [P. 295] G
Mr. Muhammad Ahsan Bhoon, Advocate for Appellant.
Malik Muhammad Aslam, Advocate for Complainant.
Mr. Munir Ahmad Sial, Deputy Prosecutor General for State.
Date of hearing: 30.1.2020.
Judgment
Ch. Abdul Aziz, J.--Muhammad Nadeem (appellant) along with three other co-accused, namely, Muhammad Naeem, Muhammad Jamil and Mushtaq Ahmad, involved in case FIR No. 349/2006 dated 08.04.2006 registered under Sections 302,324,452,34 & 109, PPC at Police Station Chak Jhumra, Faisalabad, was tried by learned Additional Sessions Judge, Faisalabad. The learned trial Court in terms of judgment dated 31.05.2010 while acquitting others proceeded to convict and sentence Muhammad Nadeem (appellant) in the following terms:-
"(i).Under Section 449, PPC to suffer rigorous imprisonment for five years with fine of Rs. 10,000/- and in default whereof to further undergo six months SI.
(ii).Under Scction 324, PPC to suffer rigorous imprisonment for five years with fine of Rs. 10,000/- and in default whereof to further undergo six months SI.
(iii).Under Section 337-A(iii), PPC to suffer rigorous imprisonment for five years with Arsh Daman to 10 % of the Diyat.
(iv).Under Section 337-F(iii), PPC to suffer rigorous imprisonment for one year with Daman-of Rs. 5,000/-.
(v). Under Section 302 (b), PPC to suffer life imprisonment for committing 'qatl-i-amd' of his grandfather Muhammad Ishaq. He was also directed to pay Rs. 100,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo SI for six months.
(vi). Under Section 302 (b), PPC to suffer death sentence for committing qatl-i-amd of Mst. Zubaida Bibi. He was also directed to pay Rs. 100,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo SI for six months.
All the sentences of imprisonment were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
Challenging his conviction and sentence, Muhammad Nadeem (appellant) filed Criminal Appeal No. 1474 of 2010, whereas Rukhsana Kausar complainant filed Criminal Appeal No. 1913 of 2010 (against the acquittal of respondents Muhammad Naeem, Muhammad Jameel and Mushtaq Ahmad) & Criminal Revision No. 983 of 2010 (for the conversion of sentence of life imprisonment awarded to respondent Muhammad Nadeem into that of death sentence for committing 'qatl-i-amd' of Muhammad Ishaq). Likewise, the trial Court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No. 490 of 2010 for the confirmation or otherwise of death sentence awarded to Muhammad Nadeem (convict). All these matters are being disposed of through this single judgment.
2. Concisely stated the facts of prosecution case as unveiled by complainant Rukhsana Kausar (PW.8) in FIR (Exh.PJ/1) are to the effect that on 08.04.2006 at about 12:00 p.m. she along with her sisters Tasleem Kausar alias Bawi (PW.9), Farzana Kausar (PW.10), Muqaddas Bibi (given up PW), mother Zubaida Bibi (deceased), real brother Muhammad Nawaz and maternal uncle Muhammad" Ishaq (deceased) was present in the house in Chak No. 118/JB; that suddenly Muhammad Nadeem (appellant) trespassed into the house of her parents, took out two pistols .30 bore from the fold of his shalwar in his hands and exhorted that nobody would be spared; that he made first fire shot which hit at the mouth of Mst. Tasleem Bibi, whereas the second shot hit on the head of Muhammad Ishaq; that Mst. Zubaida Bibi tried to intervene, whereupon Nadeem (appellant) made two fire shots which hit Mst. Zubaida Bibi at her chest and temporal region and she succumbed to the injuries at the spot; that the complainant, her sisters Farzana Kausar, Muqaddas Bibi saved their lives while hiding behind the door; that Muhammad Nawaz tried to apprehend Muhammad Nadeem (appellant) and during scuffle one pistol from the hand of Muhammad Nadeem fell down and the accused managed his escape while brandishing second pistol in his hand on a motorcycle; that Muhammad Nawaz took Tasleem and Muhammad Ishaq to Allied Hospital, Faisalabad for treatment. Motive behind the occurrence was that Tasleem Bibi was married with Muhammad Jamil son of Muhammad Ishaq about 10-years back but was divorced, whereafter Muhammad Ishaq shifted his residence in the house of parents of complainant. Muhammad Ishaq also got transferred 8½ acres agricultural land in the name of Tasleem Bibi which was sold out by her about two days prior to the occurrence. Muhammad Nadeem being grandson of Muhammad Ishaq had grudge about sale of land. Allegedly, Muhammad Nadeem (appellant) committed the afore-mentioned crime upon the instigation of his co-accused Muhammad Jamil, Muhammad Naeem and Mushtaq Ahmad.
3. The law was set into motion on the statement/Fard Bian (Exh.PJ) of Mst. Rukhsana Kausar (PW.8) which she made before Khalid SI (PW.17) during his visit to the crime scene. He sent Fard Bian (Exh.PJ) to the police station through Muhammad Aslam 4486/C for the registration of formal FIR. He prepared injury statement (Exh.PR), inquest report (Exh.PS) of Zubaida Bibi (deceased) and sent her dead body to the mortuary under the escort of Faqir Hussain 3337/C for the purpose of autopsy. From the spot, he took into possession blood of Mst. Zubaida and Muhammad Ishaq through cotton and pistol .30 bore along with an empty shell of same caliber through memos Exh.PK, Exh.PL, Exh.PM & Exh.PN respectively. On 17.04.2006 Muhammad Ishaq (injured) died and Muhammad Khalid SI prepared his inquest report (Exh.PAA) and application for conducting postmortem examination (Exh.PZ).
Thereafter, the file of this case was entrusted to Sabir Ali ASI (PW.18), who on 30.04.2006 arrested co-accused of the appellant, namely, Muhammad Naeem and Muhammad Jamil. He on 03.05.2006 obtained warrants of arrest of accused Muhammad Nadeem and Mushtaq as well as their proclamations through applications (Exh.PDD & Exh.PEE) on subsequent date. He recorded the statements of witnesses under Section 161, Cr.P.C. and got submitted report under Section 173, Cr.P.C.
Muhammad Nadeem (appellant), who was proclaimed offender was ultimately arrested by Javaid Ali Inspector (PW.19) on 31.01.2007. During investigation conducted by Muhammad Akram Shah SI (late), Nadeem (appellant) made disclosure on 10.02.2007 and in pursuance thereof led to the recovery of pistol .30 bore which was taken into possession vide memo. Exh.PH.
4. Prosecution in order to prove its case against the appellant produced as many as twenty two PWs, out of them, Rukhsana Bibi (PW.8), Tasleem Bibi (PW.9) and Mst. Farzana Kausar (PW.10) narrated the ocular account, Dr. Nageen Sobia (PW.11), Dr. Bushra Tahir (PW.12), Dr. Khalid Rafique (PW.13), Dr. Khalid Mehmood Naz (PW.14), Dr. Profcssor Tariq Ahmad (PW.15), Dr. Altaf Pervez Qasim (PW.16) and Dr. Jamil Ahmad (PW.22) furnished the medical evidence and Khalid SI (PW.17), Sabir Ali ASI (PW.18) and Javaid Ali Inspector (PW.19) are the Investigating Officers of the case. The remaining PWs more or less were formal in nature.
5. Dr. Nageen Sobia (PW.11) on 08.04.2006 conducted the autopsy of Zubaida Bibi and noted the following injuries:
1. An entry wound 1 cm x 1 cm was present on the left side of neck middle part with blackening of the margin and inversion of the margin.
2. An exit wound 2½ cm x 2½ cm with everted margin on the frontal part of the head with fracture of frontal and both parietal bones. Brain matter was coming out of the head.
3. An entry wound 1 cm x 1 cm with margin blackened and inverted was present on the outer aspect of left arm upper part.
4. An exit wound 1 ½ cm x 1 ½ cm with everted margin was present on the left shoulder.
The doctor gave the following opinion:-
"In this case the cause of death was trauma to the brain matter and fractures of the skull bone caused by injury No. 1 which was ante mortem and was sufficient to cause the death in ordinary course of nature. The time between injury and death within seconds, and the time between death and postmortem was 6 to 12 hours."
Dr. Bushra Tahir on 08.04.2006 conducted the medico legal examination of Mst. Tasleem Kausar and noted the following injuries:-
(1) A lacerated wound of entry 1 cm x 1 cm on the front of upper lip at left side.
(2) A lacerated wound of exit of 2 ½ x 2 ½ cm on right side of neck at its lower part.
Dr. Khalid Rafique (PW.13) on 08.04.2006 at about 12:45 p.m. did the medical examination of Muhammad Ishaq (when he was injured) and noted the following injuries:-
1. Lacerated wound complex of fire-arm (gutter shape) 4 x 1 cm on top of left side of head outer/middle part x DNP. The wound was bright red and bleeding. The anterior border was abraded. The wound was directed towards back (sagittal plan). The condition of the patient was serious and patient was drowsy. The injury was kept under observation for the opinion of surgeon/radiologist. The injury was fresh at that time and was caused by fire-arm weapon.
Dr. Altaf Pervez Qasim (PW.16) on 17.04.2006 at about 6:15 p.m. conducted the postmortem examination of Muhammad Ishaq (deceased) and observed the following injuries:-
(1). A healed wound measuring 13 cm, with marks of 11 stitches, over the left parietal area of head, extending from 05 cm above the left eyebrow, upto the left side of back of head at 07 cm above the mastoid process of left ear. (Injury No. 1 of MLC No. 758/06 dated 10.4.2006).
The doctor gave the following opinion:
"The death in this case occurred due to injury No. 1 of MLC No. 758/06 dated 10.4.2006 and its complications, leading to "Extensive Bain Damage" which was ante mortem, inflicted by fire-arm and sufficient to cause the death in ordinary course of nature. Probable time between injury and death was about nine days (As per hospital record) whereas interval between death and postmortem examination was 45 minutes (according to hospital record)."
6. Learned trial Court also examined the appellant under Section 342, Cr.P.C. who in response to question "why this case is registered against you", replied as under:-
"I have been involved in this case falsely in order to grab the property of my grandfather. The alleged motive is also false and fabricated."
Similarly, in response to question "why the witnesses have deposed against you", the appellant took the following stance:
"It is a false case, the PWs did not see the occurrence. They have deposed falsely being close relative of the deceased. The alleged witnesses were procured and to become witness arranged falsely to depose the false prosecution story. They could not substantiate their version. The alleged recoveries are also false and fake. I have been involved in this case falsely in order to grab the property of my grandfather. The alleged motive is also false and fabricated. None had seen the alleged occurrence."
The appellant neither opted to make statement under Section 340(2), Cr.P.C. nor produced any evidence in his defence. After the conclusion of trial, the learned trial Court convicted the appellant as afore-stated, hence, the appeals, criminal revision and murder reference.
7. It is contended by learned counsel for the appellant that in fact the FIR was registered late in the night but through the stoppage of station diary it was made to look as if registered at 1:15 p.m; that the eye-witnesses of the occurrence failed to substantiate their presence at the spot; that the injured witness as per her own testimony had no opportunity to see the assailant; that though the prosecution canvased a specific motive, however miserably failed to prove it; that there was no previous deep rooted enmity between the parties; that keeping in view the peculiar facts and circumstances of the case penalty of death is a harsh punishment and alternate sentence of imprisonment for life can meet the ends of justice. With these submissions, learned counsel urged that the conviction awarded to the appellant be converted into imprisonment for life under Section 302 (b), PPC.
8. On the other hand, learned law officer assisted by learned counsel for the complainant vehemently argued that the case is emerging from a crime report which was registered with promptitude; that the appellant is the only person assigned the role of taking the lives of two innocent persons and causing injuries to Tasleem Bibi through fire-arms; that the eye-witnesses were not only having previous enmity with the appellant but were also inmates of the same house where this occurrence took place; that the ocular account is in absolute conformity with the medical evidence; that the corroboration, if any can well be sought from the noticeable absconsion of the appellant as well as from the positive report of PFSA, according to which the crime empties secured from the spot matched with the pistol recovered from the appellant; that since the appellant resorted to extreme brutality, hence the conviction awarded to him needs not to be disturbed. It was, thus prayed that while dismissing the appellant's appeal, his death sentence be upheld.
9. Arguments heard. Record perused.
"Such conduct on the part of the driver in fact could be cited in support of the prosecution's case as the FIR had been lodged by the driver straightway without even consulting anybody belonging to the victims' family. This aspect of the case ruled out any deliberation taking place before lodging of the FIR and the same argumented its credibility rather than weakening its reliability."
"It is worth mentioning that being inmates of the house they were natural witnesses and cannot be termed as interested witnesses having no animus and rancour about the petitioner."
If any further reference in this regard is needed that can be made
to the case of Zulfiqar Ahmad and another v. The State (2011 SCMR 492).
The theory of substitution, even otherwise is destined to be discarded when seen in the context that one victim of this murderous assault, namely, Tasleem Bibi (PW.9) lived alive and appeared in the dock to tell the tale of brutality displayed by the appellant. The testimony of an eye-witness in homicide case attains credibility on multiple factors and the most important out of them is his claim of having received some grievous injuries during the incident. We have also made an in-depth scrutiny of medical evidence furnished during trial. So far as, Tasleem Kausar (PW.9) is concerned, she was provided medical treatment by Dr. Bushra Tahir (PW.12). It is noticed that bullet made ingress into the mouth of Bushra Tahir from left side and made exit from right side of the neck, while causing multiple fragment fractures of mandible. This injury, by no stretch, can be termed as minor or self-inflicted in nature. We have also taken note of the fact that autopsy of Zubaida Bibi was conducted by Dr. Nageen Sobia (PW.11) on the same day and without any unnecessary delay. Even from the meticulous perusal of record, we have not come across any anomaly between medical and ocular evidence, thus it can safely be concluded that medical evidence is in line with prosecution case.
13. As per prosecution case, Muhammad Nadeem (appellant) committed the crime with two pistols, which he was carrying in each of his hands. Muhammad Nawaz (since died) made a last ditch effort to save his life and tried to apprehend Muhammad Nadeem (appellant) and during this attempt one of the pistols was dropped at the crime scene. This pistol along with a crime empty secured from the spot was forwarded to PFSA and both of them vide report (Exh.PKK) were found wedded with each other.
"It is recognized principle of criminal administration of justice that when an accused remains absconding after commission of the offence an adverse inference is drawn against him to the effect that because has committed an offence, therefore, to hamper the process of investigation of the case he absconded himself because if an accused considers himself to be innocent he instead of defying the law would surrender himself before the law enforcing agencies or the judicial authorities."
15. In support of the motive set up by the prosecution in FIR (Exh.PJ/1), Mst. Rukhsaana Kausar (PW.8), Tasleem Bibi (PW.9) and Farzana Bibi (PW.10) appeared in the dock. It will not be out of context to mention here the relevant excerpt of the examination-in-chief of Mst. Rukhsana Kausar (PW.8), which is as under:
"The motive behind this occurrence was that Tasleem as married with Mohammad Jamil son of Mamon Ishaaq and she was divorced by her husband. Mohammad Ishaaq father in law (susar) of Tasleem Bibi shifted his residence from Chak No. 105/RB and started residing in chak No. 118/JB with his sister Mst. Zubaida Bibi where Tasleem Bibi also shifted. Ishaaq transferred 8½ acres of agriculture land in the name of Tasleem Bibi who sold out the same two days prior to the occurrence. Nadeem accused who is son of Jaith of Tasleem and real grandson of Ishaaq had grudge upon the sale of land of Tasleem Bibi."
All the afore-mentioned three eye-witnesses were cross-examined on the motive part of the prosecution case but in this regard the defence remained unable to break their credibility. Although the fact of transfer of agricultural land by Ishaaq (deceased) could not be proved through documentary evidence yet this fact loses its significance because the appellant during his examination under Section 342, Cr.P.C. when confronted with the motive part, he failed to offer any satisfactory explanation. Even otherwise, the absence or failure to prove motive loses significance when the murder occurrence is committed by accused/convict with blend of brutality and extreme aggression. For the foregoing reasons, we are of the view that prosecution remained successful in proving motive against the appellant.
"....... We are of the view that it was most callous and brutal murder and therefore appellant hardly deserves any leniency."
to hilt. Hence, while maintaining the conviction and sentence on all the charges Criminal Appeal No. 1474 of 2010 filed by Muhammad Nadeem (appellant) is dismissed.
18. Resultantly Murder Reference No. 490 of 2010 is answered in the AFFIRMATIVE and Death Sentence awarded to Muhammad Nadeem (appellant) IS CONFIRMED.
19. So far as, Criminal Revision No. 983 of 2010 is concerned, we have noticed that Nadeem (respondent/convict) was awarded imprisonment for life for committing 'qatl-i-amd' of Muhammad Ishaq (deceased) as his legal heirs, namely, Mst. Khurshid Bibi (widow), Mst. Anjum Bibi, Mst. Shafqat Parveen and Mst. Tabassum Bibi (daughters) compounded the offence and their statements in this regard were recorded by the learned trial Court on 26.05.2010. In this way, the approach of the learned trial Court in awarding lesser sentence while treating the said compromise as mitigating circumstance seems rational. Consequently, the instant revision petition having no merits stands dismissed.
20. As regards Criminal Appeal No. 1913 of 2010, it is noticed that all the respondents were ascribed the role of abetting Muhammad Nadeem (convict) to commit the offence. Neither during investigation nor during trial any material was brought on record to connect the respondents with the allegation of abetting their co-accused. Therefore, the learned trial Court while acquitting them took the right view which needs no interference from this Court. This appeal thus fails and is accordingly dismissed.
(A.A.K.) Appeal dismissed
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