' CH. IFTIKHAR HUSSAIN, J.- Appellant Shehzada Saleemullah along with his brother Sajjad Ahmad alias Zahid was tried under section 302 read with section 34, P.P.C. In the case F.I.R.- No, 109 registered with Police Station Sadar, Sheikhupura on 19-2-1995 for the same day at about 3-30 p.m.
In furtherance of their common intention committed the Qatal-e-Amd of deceased Mst. Hanifan Bibi within the area of Ranike Minara falling within the jurisdiction of the above said police station.
2. His said brother had been murdered when some evidence was recorded in the case. The same, therefore, to his extent stood abated.
3. He, however, on the conclusion of the trial was found guilty of the charge and so was convicted under section 302(b), P.P.C. And sentenced to suffer imprisonment for life as Ta'zir and to pay fine of Rs,50,000 and in default to suffer further one year's R.I. And in case of realization of the amount of fine the half of the same to be given to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. He, however, was extended the benefit of section 382-B, Cr.P.C.
4. He feeling himself aggrieved of the impugned judgment of his conviction and sentence has assailed the same by way Of Criminal Appeal No, 1549 of 2000.
5. Complainant Sardar Muhammad has brought Criminal Revision No,775 of 2000 for enhancement in his sentence of imprisonment of life to death.
6. The notice was issued to him on the same to show-cause that as to why his sentence of imprisonment for life may not be enhanced to death, if so warranted from the facts in the evidence on the record.
7. As both these matters have arisen out of one and the same judgment in a case, hence are being disposed of by this single judgment.
8. The facts in detail have been incorporated in the impugned judgment and these are also available in the paper book, hence we would avoid to burden this judgment/record unnecessarily by repeating all those here.
9. However, the brief facts relevant for the disposal of these matters are that the said case had been registered on the statement EX PF of complainant Sardar Muhammad (P.W.7). The same is like this that:-- ' He is a cultivator. His son Amjad Farooq had made Grocery shop in the Baithak of his house. His wife Mst. Hanifan Bibi and said son often sit in that shop. On that date i.e, 19-2-1995 at about 3-30. p.m. He returned to his house from the Dera, His said son and wife as usual were sitting in the shop.
Muhammad Aslam son of Ghulam Hussain was also present there with them. He was standing close to the shop to enter his house. Muhammad Saleem aimed with .222 bore rifle and Sajjad Ali alias Zahid empty-handed son of Sultan Sikandar came there. Mst. Hanifan Bibi had bent upon the tin to take out gram pulse from the same. Muhammad Saleem fired two rifle shots on her. The same hit her on the left back side of the chest near the ribs. She fell on the cloth cushion lying there and succumbed to her injuries at the spot. He, Amjad Farooq and Muhammad Aslam did not step forward out of fear. On the report of the fires the neighboured were attracted to the spot. On seeing them the accused fled away.
' The motive behind the occurrence is that about four years ago the marriage of his brother-in-law Muhammad Yasin had taken place with Mst. Nasra, the real sister of the accused through Mst.
Hanifan Bibi deceased. Muhammad Yasin and Mst. Nasra used to quarrel due to strained relations between them. The accused had annoyance with Mst. Hanifa Bibi deceased over the same. They on account of that grudge had murdered her.
10. The appellant and his deceased brother had pleaded not guilty to the charge.
11. The prosecution against the appellant has mainly relied upon it's ocular account, medical evidence, recovery of crime-weapon .222 bore rifle P-8, crime empty P-11, the report of Forensic Science Laboratory Exh.PP, the motive and the factum of his absconscion.
12. As against the same, he in his examination under section 342, Cr.P.C. Had denied the allegation appearing against him in the prosecution evidence. He attributed the case to suspicion and enmity.
13. He produced his sister Mst. Shehzadi Nasira Kokab (DW1), Muhammad Zaman (D.W.2) and Muhammad Yamin (D;W.3) in his defence.
14. The learned trial Court relied upon the above mentioned pieces of the evidence on the record against him except the motive and rejected his said plea. It with the same has convicted and sentenced him as stated above.
15. It has been argued on his behalf that the two eye-witnesses are related inter se and to the deceased; that no independent person has supported their version; that Sardar Muhamad (P.W.7) is a chance witness because he as per his own showing had returned to his house from his Dera at the time of occurrence and so it was not safe to rely upon his testimony without any independent corroboration and which is lacking in this case; that medical evidence is not supportive of the ocular account as the fires hit to the deceased seem to have been fired from weapon of .12 bore; that rifle P-8 is licensed one and belonged to him and the recovery of the same has been planted upon him to strengthen the prosecution case; that the presence of crime-empty P-11 inside the shop makes the eye-witness account doubtful as the appellant according to the same had fired while standing outside the shop and, hence the empty should have fallen outside the same and not inside and this heavily suggests that the occurrence had not taken place as has been narrated by the eyewitness; that the reportExh. PP of the Forensic Science Laboratory contains three dates of receipt of sealed parcels while in the description of articles in the saniu two parcels, one of crime empty and the other of rifle .222 bore have been mentioned and it is, thus doubtful that what third parcel contained and this too makes the report of the Expert to be not reliable piece of evidence; that appellant's plea was sound and the same stood supported by the three independent witnesses and so the same has wrongly been rejected by the learned trial Court; and that absconscion of the appellant has also wrongly been used against him in convicting and sentencing him. In the alternate, it has been submitted that in case this Court comes to the conclusion that the appellant has committed the Qatal-e-Amd of the deceased, then the view taken by the learned trial Court in the matter of sentence to him may be endorsed.
16. As against the same, the learned State counsel assisted by the learned counsel for the complainant has supported the impugned judgment controverting the above contentions. He has submitted that the prosecution as per it's above referred pieces of evidence has brought home the guilt to him and so he has rightly been convicted and sentenced.
17. However, the learned counsel for the complainant/petitioner (in Criminal Revision No, 775 of 2000) has submitted that he very callously had committed the Qatal-e-Amd of innocent deceased lady and so he deserved capital punishment and the view adopted by the learned trial Court in awarding him lesser penalty than death is erroneous. He has submitted that the sentence of the appellant may be enhanced from imprisonment for life to death.
18. We have carefully considered the submissions made by both the sides with the help of the record.
19. The ocular account of the prosecution has been unfolded by complainant Sardar Muhammad (P.W.7) and his son Amjad Farooq (P.W. 8). They have narrated the details of occurrence consistently and on the line almost of the F.I.R. Exh. PF. There has been found no contradiction interest their statements as regards the major and material particulars of the prosecution case.
20. They no doubt are related to the deceased and inter se as well being husband and son respectively of the deceased. Their this relation with the deceased itself is not enough to throw away their testimony.
21. However, the question requiring answer is that if their presence at the spot was probable and had they witnessed the occurrence. The answer to such question is available on the record in the affirmative form. It is because of the fact that incident as per their showing had taken place inside their shop. The deceased was fired at when she was present in the shop in the Baihak of her house.
According to the evidence of (P.W.9.) Wazir Ali/Investigating Officer, her dead body was found therefrom. It may be a small grocery shop as having been opened in the Baithak of the house in the village. The complainant has stated himself to be a cultivator. It is his case right from the F.I.R.
EX PF that Amjad Farooq used to sit in the shop with his mother. Amjad Farooq has also stated so.
The women-folk in the villages normally help the earning male members of their families in their day to day pursuits to earn their livelihood. The deceased was a village lady. She, therefore, could possibly be present in the shop. Similarly the presence of her son Amjad Farooq with her at that time could also be quite probable.
22. Sardar Muhammad complainant as per his showing had returned to his house from his fields. It was middle part of the cold month of December in the days of occurrence. The incident as per his testimony had taken place at about 3-30. p.m. At such hours of the day the return of a cultivator to his house from his fields could also be quite probable and not at all abnormal. So his presence at the venue of occurrence at that time could not be doubted.
23. The incident had taken place in the shop in his house. So, he could be a natural witness of the occurrence and not chance. The contention, thus raised on behalf of the appellant in this regard is without force and the same is repelled.
24. The presence of both these eyewitnesses, therefore, at the spot at the relevant time could not be viewed with suspicion. They as said earlier are no doubt related to the deceased but they seem to have no enmity as well against the appellant or his deceased brother Sajjad Ahmad alias Zahid prior to the occurrence. They, rather, both are related to the appellant as the brother-in-law of Sardar Muhammad and maternal uncle of Amjad Farooq was married to his sister. So, they could be termed to be absolutely independent persons and not at all interested one.
25. It was a day time occurrence. The appellant was known to these eyewitnesses being related to them. So, there could be no question of any mistake with them about his identity. They, therefore, were absolutely reliable witnesses. Their testimony was confidence-inspiring and with intrinsic worth. The contention, thus raised on behalf of the appellant that no independent person has supported their version is devoid of any worth. It is also because of the fact that incident had taken place in the shop in their house. So, they could be the best persons to have deposed about the same due to having witnessed it. The non-coming forward of any other person to support their story is hardly of any adverse consequence to their testimony. Here it also be mentioned that it is common phenomenon that people do avoid to come forward in such like matter of others to run the risk of their rancour and enmity. So, the contention is repelled.
26. The medical evidence has lent full support to the ocular account. According to Dr. Muhammad Aslam Hamid (P.W.5), there were following five injuries on the dead body of the deceased:- 1- A. A fire-arm wound of entry 0.5 c.m. In diameter going deep on back of left chest, 8 c.m. From the midline in the lower part.
2- A. A fire-arm wound of entry 0.5 c.m. In diameter going deep on back of left chest lower part 2.5 c.m. From injury No, 1 and 8.5 c m, from the midline.
3- A. A fire-arm wound of exit 2.5 c.m. x 2 c.m. On the front of chest in the mid part just right of the midline, 10 c.m. On the right nipple of the breast.
4- A. A fire-arm wound of exit 2.5 c.m. x 2 c.m. On front of right chest lower part 6 c.m. From the nipple of right breast and 8 c.m. From the midline.
5- A. A fire-arm lacerated wound of exit 2 c.m. X 1.5 c.m. Just on the right nipple of right breast. It just due to secondary missle i.e a piece of wound or a piece of bullet.
' These according to him were fresh and caused by fire-arm. The death had occurred due to haemorrhage and shock leading to cardio respiratory failure as a result of injury Nos.l to 4.
According to him, these were individually and collectively the cause of her death. He has given the probable time, which elapsed between injuries and death as immediate and between death and postmortem report within 18 to 24 hours. The incident as said above had taken place at 3-30 p.m.
On 19-12-1995. The autopsy on the dead body of die deceased was held on 20-12-1995 at about 10- 15 a.m. The time of infliction of injuries to her, if may be reckoned from the autopsy, the same comes to the one given by the eyewitnesses. They have deposed that she (deceased) had died immediately on the receipt of fires to her.
27. There has been found nothing in the evidence of the doctor on the basis of which it could validly be said that it is inconsistent to the ocular testimony. However,_ it may be mentioned here that according to the eye-witnesses the deceased had received two rifle shots on her body at the hands of the appellant. The doctor had indicated five injuries on the dead body of the deceased.
Out of these two were of entry and three exit. The defence has not got it clarified from the doctor that there could not be any possibility of more than two exit wounds in the case of the deceased.
He, however, has fully supported the eye-witness account as regards the locale of her injuries and the weapon used in infliction of the same to her. So, merely on the basis of such position in the evidence of the doctor, it cannot be said that there is any contradiction inter se the same and the ocular account. It due to the same can also not be said positively that the fire shots made at her were with any weapon of .12 bore. The contentions, therefore, in this regard are repelled.
28. The evidence of recovery of crime weapon P-8 has been furnished by Rehmat Ali (P.W.-2) and Wazir Ali, Investigating Officer (P.W.9). It was appellant's own showing that his rifle was licensed one and belonged to him. There is, therefore, nothing to discard the evidence of these witnesses as regards the recovery of this weapon from him.
29. The recovery of crime empty P-11 is a further supportive circumstance to the ocular account.
According to Amjad Farooq, the same was taken into possession from inside the shop. Wazir Ali, Investigating Officer, has also deposed that he collected the same from the place of occurrence.
The place of occurrence is the shop of the deceased. The report EX PP of the Forensic Science Laboratory has established that this crime empty was fired from .222 bore rifle. The said weapon admittedly is of the appellant. These pieces of evidence, therefore, were confirmatory to the ocular account.
30. The contention that this empty could not be found from inside the shop, if the occurrence had taken place in the manner as narrated by the eyewitnesses is without force. It is in the evidence of the eyewitnesses that the appellant had come to the shop of the deceased and there he had fired at her and she on the receipt of the fires had fallen on the Cushion lying there. It is in the evidence of Amjad Farooq and Wazir Ali, Investigating Officer that bloodstained Gaddi (Cushion) was taken into possession from that shop and according to the report Exh. PO of the Chemical Examiner, the same was stained with blood. The same again is in confirmation to the veracity of the version of the eye-witnesses in that regard.
31. The contention that there had been mentioned three dates in the receipt of parcels in Exh. PP while two parcels were mentioned to have been received in the Forensic Science Laboratory, is of no much consequence because the defence if had any doubt qua the reliability or authenticity of this report, it could call the expert and got clarified from him the position of these dates. This thing, however, is not of any material bearing on the prosecution case. Due to the same, the confidence- inspiring testimony of the eye-witnesses could not be thrown away. The contention in this regard, therefore, is repelled.
32. As regards the plea of the appellant, the same has been examined in juxtaposition to the ocular account. Due to the reasons assigned for the reliability of the ocular account, the same is worth- ignoring. It is also because of the fact that D. W. 1 is the real sister of the appellant. He definitely would be interested to save his life. Muhammad Zaman (D.W.2) is also related to him being his Phuphi Zad. He too, therefore, could be interested to save his life. Muhammad Yadin (D.W.3) is resident of Sheikhupura. The incident had taken place in village Ranike Minara. It has come in the evidence that it was the month of Ramzan in the days of occurrence. The incident had taken place at about 3-30 p.m.
' The presence of appellant, thus in his village at that time in connection with AFTER could be quite probable. The defence version, therefore, was not worth the while and the same has rightly been rejected. The contention, thus raised from the appellant's side in this regard is also without force.
The same too is repelled.
33. As a consequence of the above discussion, we find that prosecution as per it's above discussed pieces of evidence on the record has succeeded in bringing home the guilt to the appellant beyond any shadow of reasonable doubt. He, therefore, was rightly convicted as mentioned above.
34. As regards the question of sentence to him, the learned trial Court has been swayed by his young age and the factum of his having lost the temper in coming "to know of the plight of his real sister in committing the Qatal-e-Amd of the deceased. This approach of it is open to no valid exception because the appellant as per his showing in his examination under section 342, Cr.P.C. Is aged about 30 years and there had been strained relations between his sister and her husband as has come in the evidence. He on the relevant day might have been under the state of grief and sorrow on coming to know of beating of his sister by her husband. He under that impulse seemingly had committed the murder of the deceased as she had go arranged the marriage between the two. The learned trial court, therefore, has rightly taken this situation as of mitigation in the matter of award of sentence to him. We, therefore, also maintain his sentence except to the extent that the entire amount of fine of Rs,50,000 shall be treated as compensation payable to the legal heirs of the deceased as required under section 544-A, Cr.P.C because the sentence of fine is not provided under section 302(b), P.P.C. We, therefore, set aside his sentence of fine and it shall be treated to have been converted into compensation as mentioned above.
35. We, with the above modification in his sentence, maintain the impugned judgment of his conviction and sentence.
36. Consequently, his appeal and the criminal revision petition fail. These are dismissed.