PLJ 2024 Cr.C. (Note) 260
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ.
versus
STATE--Respondent
Crl. A. No. 174802 & M.R. No. 135 of 2018, decided on 7.6.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 337-F(iv) & 324--Qatl-e-amd--Conviction and sentence--Challenge to--Quantum of sentence--Modification in sentence--Prosecution succeeded in establishing its case against accused/appellant by producing natural and convincing ocular account which stands fully supported by medical evidence and recoveries--Conviction of accused/appellant u/S. 302(b), PPC is sustained--However, while considering quantum of sentence on this charge--Hon’ble Supreme Court of Pakistan has held that imprisonment for life is also a legal sentence in case of Section 302(b), P.P.C--Here in this case though prosecution had set out a motive that spouses were carrying some domestic differences and this formed motive part, but at same time it has come in evidence that accused/appellant and deceased had contracted love marriage eight years before occurrence and two kids were also born from their wedlock--Even if it is believed that there were some differences between two, unusual aggression shown by accused/appellant during occurrence does not reflect it a formal wife and husband dispute, rather there was something very serious which he may have been carrying since long or may have ignited at spur of moment, with result that accused/appellant forgot normal human conduct, made fire which hit head and forehead of his wife who fell down but this too did not work to cool his emotions, rather he took out Chhuri and cut throat ensuring her instantaneous death--Such hateful or desperate attitude from accused is not expected in normal course, especially when couple had history of love affiliation and affection--Thus, exact motive or reason behind such horrific attitude exhibited by accused/appellant at crime scene remains shrouded in mystery and it creates mitigation to reconsider quantum of sentence, recorded against accused/appellant
u/S. 302(b), PPC--As such, while sustaining conviction u/S. 302(b), PPC, sentence of death is altered to imprisonment for life, whereas, compensation and imprisonment in default thereof, as ordered by trial Court shall remain intact--Convictions u/S. 324, PPC and 337-F(iv), PPC, as also sentences thereunder passed by learned trial Court do not call for any interference; same therefore, stand upheld--All sentences shall run concurrently and ‘benefit of Section 382-B, Cr.P.C. is extended--The case property, if any, be disposed of in accordance with law and record of trial Court be sent back immediately--Criminal Appeal is dismissed with above modification in sentence. [Para 12] B & C
2007 SCMR 1413 and PLD 2009 SC 709.
Delay in Post-Mortem--
----When dead body was received in mortuary well within reasonable time, delay in conduct of post-mortem, may be for administrative reason or due to lack of doctor/staff, would not render case doubtful so as to ignore strong ocular evidence. [Para 10] A
2010 SCMR 1579
Ch. Naseer Kamboh and Qamar-ul-Haq Bhatti, Advocates for Appelalnt.
Mr. Waqar Abid Bhatti, Deputy Prosecutor General for State.
Syed Shabahat Hussain Tirmizi, Advocate for Complainant.
Date of hearing: 07.06.2022.
Judgment
Muhammad Amjad Rafiq, J.--Nadeem Abbas (accused/ appellant) along with Tassawar Abbas and Manzoor Fatima alias Manzoor Akhtar faced trial before the learned Additional Sessions Judge, Faisalabad in case FIR No. 480 dated 11.07.2016 under Sections 302/34, 324/34, 337-F(iv), 109, PPC registered at police station Millet Town, Faisalabad and on conclusion of trial vide judgment dated 28.02.2018 accused Tassawar Abbas and Manzoor Fatima were acquitted of the charge, whereas, Nadeem Abbas accused/appellant was convicted under Section 302(b), PPC and sentenced to death, also to pay an amount of Rs. 2,00,000/-as compensation under Section 544-A of Cr.P.C. to the legal heirs of deceased (Mst. Rida), in case of default to further undergo four months simple imprisonment. He was also convicted under Section 337-F(iv), PPC for causing injuries to Mst. Shamim Akhtar and sentenced to five years SI along with daman of Rs. 30,000/-payable to injured. In addition to the above, Nadeem Abbas accused/appellant was further convicted under Section 324, PPC and sentenced to ten years with a fine of Rs. 50,000/-, in default thereof to undergo four months SI. Benefit of Section 382-B, Cr.P.C. was extended. Criminal Appeal No. 174802 of 2018 has been filed by Nadeem Abbas against his above conviction and sentence, whereas, Murder Reference No. 135 of 2018 has been sent by the learned trial Court.
2. The prosecution case as shall be seen from the complaint (Ex.PC) made by Riaz Hussain complainant (PW-5) is that his sister Mst. Shamim Akhtar (PW-6) resides at Ali Town, Faisalabad, whose daughter Mst. Rida (deceased) aged 24 years was married with Nadeem Abbas (deceased) about 8 years back and had two kids. Because of differences between the spouses, Mst. Rida had come to the house of her mother Mst. Shamim Akhtar. On 10.07.2016, her husband Nadeem Abbas, Tassawar Abbas and Mst. Manzoor Fatima came to him for patch-up. The complainant along with them and also with Mst. Fozia Bibi and Intizar Mehndi went to the house of Mst. Shamim Akhtar and talked about compromise, but with no result, meanwhile, the accused also extended threats and went back to their house. Next day i.e. 11.07.2016 at about 12.00 (noon) the complainant, Mst. Shamim Akhtar, Mst. Rida, Mst. Fozia Bibi and Intizar Mehndi were present in the house of his sister when accused Nadeem Abbas armed with 30-bore pistol came and in their sight started firing, which hit the head of Mst. Shamim Akhtar, head and forehead of Mst. Rida, both fell on the ground. Nadeem Abbas accused/appellant) took out Chhuri from the fold of her shalwar, cut the throat of Mst. Rida and fled away. Mst. Rida succumbed to the injuries at the spot, Mst. Shamim Akhtar was taken to Allied Hospital for medical treatment. According to the complaint Nadeem Abbas caused murder of Mst. Rida and injured Mst. Shamim Akhtar with the abetment of Tassawar Abbas and Mst. Manzoor Fatima, because of domestic dispute.
3. Muhammad Asghar Inspector (PW-11) on receiving information about the occurrence reached at the spot, where, the complaint was submitted to him. He inspected the place of occurrence, drafted rough site plan, collected blood stained earth and took the same into possession, prepared injury statement and inquest report, recorded statements of witnesses under Section 161, Cr.P.C., Mst. Shamim Akhtar injured produced before him MLC (Ex.PH), last worn clothes of deceased were produced before him, which were taken into possession. On 13.07.2016 he got prepared site plan from Muhammad Nawaz Draftsman. On 20.07.2016, accused Tassawar Abbas and Manzoor Akhtar alias Fatima joined the investigation and their versions were recorded. On 22.07.2016, Nadeem Abbas accused/ appellant was arrested who disclosed and led the police party to recovery of pistol P6 and Churri P7. During investigation Tassawar Abbas and Manzoor Akhtar alias Manzoor Fatima were found innocent, and report under Section 173, Cr.P.C. was submitted in Court.
4. The accused persons were charge sheeted, to which they pleaded not guilty and claimed to be tried. During trial the prosecution examined Mst. FarzanaKausar 6565/LC (PW-1) who had escorted the dead body of Mst. Rida to mortuary; Muhammad Nawaz Draftsman (PW-2) prepared scaled site plan; Muhammad Imran 3488/HC (PW-3) is the scribe of the FIR, Ehsan-ul-Haq 930/HC (PW-4) kept the sealed parcels in safe custody and handed over the same to Muhammad Asghar SI for onwards transmission to the office of PFSA, Riaz Hussain (complainant) (PW-5), Mst. Shamim Akhtar (PW-6) and Mst. Fauzia Bibi (PW-7) furnished the ocular account, Dr. Shazia Iftikhar WCMO (PW-8) medically examined Mst. Shamim injured, Dr. Tanveer Zafar (PW-10) conducted post-mortem examination of Mst. Rida, Tanveer Hussain (PW-9) identified the dead body of Rida and Muhammad Asghar Inspector (PW-11) is the Investigating Officer. The learned ADPP tendered report of Punjab Forensic Science Agency Ex.PN, Ex.PO and Ex.PQ and closed the case for prospection. On close of prosecution case, the accused persons when examined under Section 342, Cr.P.C. denied the prosecution evidence. The accused persons opted not to appear in the witness box as required by Section 340(2), Cr.P.C. nor produced any defence and the trial ended in the terms as detailed in the opening paragraph of this judgment.
5. The learned counsel for the accused/appellant argued that though the motive was taken by the prosecution but the same could not be established; Riaz Hussain (complainant) (PW-5) and Mst. Fauzia Bibi (PW-7) are chance witnesses and further their conduct at the time of occurrence also makes their presence doubtful and that the medical evidence is not supporting the ocular account, therefore, the prosecution has not been able to establish the charge against the accused/appellant, as such, he is entitled to be acquitted.
6. The learned Deputy Prosecutor General assisted by learned counsel for the complainant opposed the above submissions. The learned counsel for the complainant contended that all the witnesses of ocular account are consistent, their statements are confidence inspiring. Added that even if the statements of two witnesses i.e. Riaz Hussain complainant and Mst. Fauzia Bibi are thrown out of consideration, the sole statement of Mst. Shamim, being the injured, is sufficient to establish the charge who was present in her house where the occurrence took place and her statement is perfectly in line with the narration of the FIR. The ocular account of occurrence is supported by recoveries, positive PFSA reports and the medical evidence.
7. We have given out anxious consideration to the arguments of learned counsel for the parties and examined the entire record.
8. According to the prosecution case the occurrence in this case took place on 11.07.2016 at 12.00 (noon) in the house of Mst. Shamim (PW-6), the matter was reported to the police and FIR was chalked out on the same day at 2.00 p.m. i.e. just within two hours. Considering that during the said unfortunate occurrence one person i.e. Mst. Rida had lost her life at the spot and Mst. Shamim (PW-6) carrying head injury was shifted to Allied Hospital, registration of FIR within two hours of the occurrence can be said to have been promptly lodged and in such a situation the element of consultation and deliberation becomes near to impossible.
9. As regards ocular account, though the learned counsel for the accused/appellant laid much emphasis on the point that Riaz Hussain complainant (PW-5) and his wife Mst. Fauzia (PW-7) are the chance witnesses, but we have noticed that their presence at the place of occurrence has been well explained as according to Riaz Hussain complainant (PW-5), on the preceding night the accused party had come to his house for settlement of the dispute between the spouses, whereupon, he along with his wife and the accused party went to the house of Mst. Shamim Akhtar for compromise efforts, which though could not materialize and hot words were also exchanged by the accused and for these reasons they were present in the house of Mst. Shamim when on the next day i.e. 11.07.2016 the occurrence took place. We have noticed that all three witnesses of ocular account ie. Riaz Hussain complainant (PW-5), Mst. Shamim (PW-6) and Mst. Fauzia Bibi (PW-7) have otherwise made consistent statements and corroborated each other on almost all important aspects of the case with regard to date, time, place of occurrence, the role played by Nadeem Abbas accused/appellant, the kind of weapon used by him and also the nature and seat of injuries sustained by Mst. Rida (deceased) and Mst. Shamim Akhtar (PW-6). They were subjected to cross-examination at considerable length but nothing damaging to the prosecution or favourable to the defence could be elicited from them. They stood firm on all aspects of the case and their testimonies could not be shattered. In such a situation, even if the statements of Riaz Hussain (PW-5) and Mst. Fauzia Bibi (PW-7) are kept aside for a moment, the statement of Mst. Shamim Bibi (PW-5) alone who was inmate of the house where the occurrence took placed and had sustained head injury during the occurrence is ample proof against the accused/appellant, who narrated the occurrence in detail.
10. In addition to the above, it is matter of record that Mst. Shamim injured (PW-6) was medically examined by Dr. Shazia Iftikhar (PW-8) on the same day i.e. 11.07.2016 at 12.45 p.m. i.e. within forty-five minutes of sustaining the injury and the doctor observed the injury as a lacerated wound bone exposed on the right temporal side, which exactly the same position what was incorporated in the FIR and also deposed by the witnesses in their statements before the Court and another most important aspect is that the doctor ruled out the possibility of fabrication of injury sustained by Mst. Shamim Akhtar (PW-6). Similarly, the post-mortem examination of Mst. Rida (deceased) was conducted on the same day at 6.00 p.m. Though the learned counsel for the accused/appellant has tried to argue that there is delay in conduct of post-mortem, but we have noticed that Farzana Kausar 6565/LC (PW-01) had escorted the dead body of Rida Bibi to the mortuary, Dr. Tanveer Zafar (PW-10) who had conducted post-mortem examination in clear words deposed that dead body was received in the dead house on 11.07.2016 at 1.50 p.m., which fact finds support from post-mortem examination report as well, wherein also the date and time of receipt of dead body in the dead house has been mentioned as 11.07.2016 at 1.50 p.m. In this view of the matter, when the dead body was received in the mortuary well within reasonable time, the delay in conduct of post-mortem, may be for administrative reason or due to the lack of the doctor/staff, would not render the case doubtful so as to ignore the strong ocular evidence, as held by the apex Court in the case “Ghulam Rasool versus The State (2010 SCMR 1579). Keeping these aspects in mind, we are least impressed with such argument advanced by the learned counsel for the accused/appellant. Otherwise, Dr. Tanveer Zafar (PW-10) while conducting post-mortem observed three injuries on the dead body, first one is firearm injury on left side of head, second on right forehead and third one an incised wound on the front of neck and she also opined that first two injuries were inflicted by firearm and the third was result of sharp edged weapon. The seat, locale and dimension of injuries as deposed by the doctor stand in line with the prosecution case set out in the FIR.
11. The crime empties recovered by Muhammad Asghar Inspector/IO (PW-11) from the spot on 11.07.2016, were transmitted to the office of Punjab Forensic Science Agency on 18.07.2016. Nadeem Abbas accused/appellant on his arrest during interrogation on 28.07.2016 disclosed and got recovered pistol P6 and Chhuri P7, these recovery proceedings were supervised by Muhammad Asghar Inspector (PW-11) and endorsed by Riaz Hussain and Intizar Mehndi PWs. The pistol as well as Chhuri were transmitted to the office of PFSA on 01.08.2016 and the PFSA report (Ex.PG) has been received in the positive, showing that the cartridges C1 to C4 were identified as having been fired in the item P1 (pistol). The PFSA report (Ex.PC) with regard to Churri is also a support to the prosecution case as it carried human blood. Similarly, positive report of pistol (recovered on the lead of accused) and cartridges (recovered from the spot) sufficiently connects the accused/appellant with the commission of the crime.
12. For what has been discussed above, this Court is convinced that the prosecution succeeded in establishing its case against the accused/appellant by producing natural and convincing ocular account which stands fully supported by medical evidence and recoveries. Consequently, the conviction of the accused/appellant under Section 302(b), PPC is sustained. However, while considering the quantum of sentence on this charge. We will like to refer the cases “Muhammad Riaz and another v. The State and another” (2007 SCMR 1413) and “Muhammad Sharif v. The State” (PLD 2009 Supreme Court 709), wherein, the Hon’ble Supreme Court of Pakistan has held that the imprisonment for life is also a legal sentence in the case of Section 302(b), P.P.C. Here in this case though the prosecution had set out a motive that spouses were carrying some domestic differences and this formed the motive part, but at the same time it has come in the evidence that Nadeem Abbas (accused/appellant) and Mst. Rida (deceased) had contracted love marriage eight years before the occurrence and two kids were also born from their wedlock. Even if it is believed that there were some differences between the two, unusual aggression shown by the accused/appellant during the occurrence does not reflect it a formal wife and husband dispute, rather there was something very serious which he may have been carrying since long or may have ignited at the spur of moment, with the result that accused/appellant forgot normal human conduct, made fire which hit the head and forehead of his wife who fell down but this too did not work to cool his emotions, rather he took out Chhuri and cut the throat ensuring her instantaneous death. Such hateful or desperate attitude from the accused is not expected in normal course, especially when the couple had the history of love affiliation and affection. Thus, the exact motive or the reason behind such horrific attitude exhibited by the accused/appellant at the crime scene remains shrouded in mystery and it creates mitigation to reconsider the quantum of sentence, recorded against the accused/appellant under Section 302(b), PPC. As such, while sustaining the conviction under Section 302(b), PPC, the sentence of death is altered to imprisonment for life, whereas, the compensation and imprisonment in default thereof, as ordered by the learned trial Court shall remain intact. Convictions under Section 324, PPC and 337-F(iv), PPC, as also the sentences thereunder passed by the learned trial Court do not call for any interference; the same therefore, stand upheld. All the sentences shall run concurrently and ‘benefit of Section 382-B, Cr.P.C. is extended. The case property, if any, be disposed of in accordance with law and the record of the learned trial Court be sent back immediately. Criminal Appeal is dismissed with above modification in sentence.
Murder Reference is answered in negative.
Sentence of death is not confirmed.
(A.A.K.) Appeal Dismissed
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