KHALID MEHMOOD and others vs THE STATE

' IJAZ-UL-HASSAN, J.---This Criminal Appeal bearing No,304 of 2000 with leave of the Court, is directed against the judgment dated 20-4-1999 passed by a Division Bench of the Lahore High Court, Lahore dismissing, Criminal Appeal No, 628 of 1994, filed by appellants challenging the judgment dated 22-4-1993 handed down by Special Judge, Speedy Trials, Lahore, whereby appellants were convicted and sentenced to death on three counts, under section 302(b), P.P.C.

And to, pay Rs,50,000 as fine each, or in default thereof to undergo two years' R.I. The amount of fine, on realization, was directed to be paid to legal heirs of the deceased as compensation under section 544-A, Cr.P.C.

2. The prosecution story as reflected in the F.I.R. In brief is, that on the fateful day i,e, 28-8-1991 at about 5-30 a.m. Mubarik Ali and his sons Muhammad Yousaf and Muhammad Ajmal, deceased left the village to attend the hearing in their bail matter fixed in the Court of Additional Sessions.

Judge, Nankana Sahib. Complainant Sooba, Muhammad. Hussain and Nasir, P.Ws. Were following them at a distance. Of 30/35 karms. The victims boarded the wagon at bus stop of Q.B Link Canal of Miraj Colony, at about 5-30 or 5-45 a.m. In the meanwhile, eight persons including the appellants, duly armed emerged from the nearby `khokhas'. Khalid Mehmood and his brother Abid Hussain alias Mehaba were armed with rifle and gun respectively and Zahid alias Javed Iqbal was crrying a carbine on- his person. The appellants entered in the wagon. The driv*, conductor and passengers of the wagon, came out of the wagon and ran away due to fear. The accused started tiring at the deceased, as a result of which Mubarak and Muhammad Yousaf died there and ten and Muhammad Ajmal succumbed' to the injuries in Civil. Hospital Nankana Sahib. After accomplishing the mission accused made good their escape. The motive leading to the tragedy, was stated to be previous enmity between the two groups. Leaving Muhammad Hussain to guard the dead bodies, P.W. Sooba went to Police Station Mandi Faizabad, District Sheikhupura and lodged the F.I.R. (Exh.PJ/1) which was recorded by P.W. Muhammad Yaqoob S.I.

3. The Investigating Officer on reaching the spot, took into pbssession Wagon bearing registration, No,FDL-3611 (Exh.P/12) vide memo. (Exh.PN), blood stained piece of cover of the seat and sealed the same into parcel vide. Memo. Exh.PM, two pieces of blood stained 'rubber' and blood-stained piece of plastic vide memos. (Exh.PM/1) and (Exh.PM/2), respectively. He also took into possession four empty cartridges (Exh.P.13/A/1-4) and one empty of .7 mm (Exh.P/14) from inside the wagon vide memo. (Exh.PN). He recorded the statements of P.Ws. Khalid Mehmood and Zahid alias Javed Iqbal appellants were arrested on 29-8-1991 by Muhammad Ashiq ASI Police-Station Sharqpur harif. He also got recovered .12 bore gun (Exh.P.13) from Zahid appellant on the same day along with 27 live cartridges (P.14/1-27) vide memo. (Exh.PP). He got recovered .7mm rifle P.15 along with 15 live bullets (Exh.P.16/1-15) vide memo. (Exh.P.R.) According to the report of Fire-Arm Expert (Exh.PAA), one empty cartridge matched with the gun recoverd from Zahid alias Javaid Iqbal appellant while one of the empties of 7 mm rifle matched with .7 mm rifle recovered from Khalid Mehmood appellant.

However, no weapon of offence was recovered from Abid Hussain alias Mehaba appellant.

4. Nine prosecution witnesses were examined at the trial and at conclusion of the prosecution evidence the statements of the accused were recorded under section 342, Cr.P.C. Who denied. The prosecution allegations and claimed to have been falsely implicated on account of previous enmity. The plea of alibi was also taken by them. However, neither any of the accused opted to make statement on oath in terms of section 340(2), Cr.P.C. Nor any one of them produced any evidence in defence.

5. Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, appearing on behalf of appellants, after having taken us through the prosecution evidence, statement of the accused recorded under section 342, Cr.P.C. And other material available on the record, contended that statement of C.W.

Muhammad Javed, conductor of the wagon, represent an entirely different picture, totally negating the prosecution version, which tends to suggest that material facts have been concealed and the occurrence had not taken place in the manner as alleged. The learned counsel reiterated that Sooba complainant and Nasir Ahmad P.Ws. Were closely related to the deceased therefore, their testimony should not have been accepted without corroboration from some independent and unimpeachable source which was not forthcoming; that the eye-witnesses of the occurrence had not been able to provide plausible explanation for their presence on the place of occurrence; that the medical evidence was not in accord with the eye-witness account; that the empties recovered from the spot were not immediately sent to the Fire-Arm Expert but later on sent along with crime weapons; that motive setup in the F.I.R. Has not been satisfactorily established and that the prosecution evidence qua acquitted co-accused has not been believed whereas the same set of evidence has been utilized and made basis of convictions of the appellants. Concluding the arguments, learned counsel submitted that prosecution case is full of glaring defects, legal infirmities and material irregularities. The impugned judgment has not been recorded after careful and proper consideration of the attendant relevant facts and circumstances, therefore, the same has to be reversed.

6. Syed Ali Imran, learned Deputy Prosecutor-General, Punjab, on the other hand, opposed the arguments of learned counsel for the appellants and supported the impugned judgment maintaining that findings of conviction and sentence of the appellants were recorded concurrently by the High Court as well as by the trial Court after appraisal of the evidence, warranting no interference by this Court.

7. We have heard at length the arguments of learned counsel for the parties. We have also perused the record in minute details with their, assistance.

8. The crime in question is alleged to have been taken taken place on 28-8-1991 at about 5-30 a.m.

In a Wagon near Behal Q.B. Link Canal, Mehraj Colony, Jamalpur. The matter was reported to the Police the same day at 6-00 a.m. By complainant Sooba. The distance between the site of occurrence and Police Station being 7 kilometers. Appellants Khalid Mehmood and Zahid alias Javed Iqbal were arrested on 29-8-1991 by Muhammad Ashiq ASI Police Station Sharqpur Sharif. He also got recovered .12 bore gun from Zahid appellant on the same day along with 27 live cartridges, vide memo. (Exh.PP). He got recovered 7 mm rifle P.15 along with 15 live bullets (Exh.P16/1-15) which were taken into possession vide memo. Exh.P.R. The empties recovered from the spot and the crime weapons were sent to Forensic Science Laboratory for comparison. According to the report (Exh.PAA) of the Fire-Arm Expert, one empty matched with the Gun recovered from Zahid appellant and one empty matched with .7 mm rifle recovered from Khalid Mehmood appellant.

9. There is an old enmity between the parties. It is a day time occurrence. The F.I.R. Has been lodged with promptness. All the P.Ws. And the deceased were to attend the Court of Additional Session Judge at Nankana Sahib and it was known to every body that they were to board a wagon or bus in order to reach the Court in time.

10. "Insofar as the motive is concerned, it has been vehemently argued by learned counsel for the appellants that the motive for occurrence as stated in the F.I.R. Could not be proved at the trial. We are afraid the contention of the learned counsel is without any basis. The accused in their statements recorded under section 342, Cr.P.C. Have not denied or refuted the existence of criminal litigation between the parties. There is no cavil with the proposition that even if there is no motive, murder can be committed in the absence of one as the move relates to the state of mind of a criminal. There is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If normal sentence is not be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. It is not a fit case where this Court should interfere with the imposition of the sentence by the two Courts below Waris Khan v. The State (2001 SCM R 387), Talib Hussain v.

'State (1995 SCM R 1776), State/Government of Sindh v. Sobharo (1993 SCM R 585), Mushtaq Ahmad v. Muhammad Siddique (PLD 1975 SC 160), Manzoor Ahmad v. The State (PLD 1983 SC 197), Sardar Ali v. State (1969 SCM R 542), Ahmad Nisar v. State (1977 SCM R 175), Sher Ali v. State (1980 SCM R 291), Ghulam Nazir . State (1981 SCM R 805), Sher Daraz Khan v. State (1983 SCM R 266), , Arif v. State (1984 SCM R 124), Mati-ur-Rehman v. State (1985 SCM R 489), Ahmad Khan v. State (1985 SCM R 975), Faqir Masih v. Mubarik Masih (1987 SCM R 320), Roheeda v. Khan Bahadur (1992 SCM R 1036), Muhammad Ishaque Khan v. State (PLD 1994 SC 259), Zulfiqar v. State (1995 SCM R 1668), Intizar Hussain v.

Muhammad Sarwar (1996 SCM R 872), Ghuncha Gul v. State (1971 SCM R 368) and Muhammad Nazir v. State (1985 SCM R 507).

11. From the above discussion, it is manifest that the prosecution has proved its case beyond a reasonable doubt against Khalid Mehmood and Zahid alias Javed appellants by producing at the trial ocular testimony, recovery of weapons of offence, positive report of the Fire-Arm Expert motive and medical evidence.

12. Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of. Offence has been effected from his possession. He was found innocent by different police agencies including Ch. Akhtar Hussain, DSP, CIA, Sheikhupura and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarding participation of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad P.Ws. Qua appellant Abid Hussain is not credible and trustworthy. The following observations were made by this Court in Ayub Masih v. The State (PLD 2002 SC 1048):-- "It is hereby necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to so the accused is entitled to the benefit of doubt as of right. It is .Also firmly settled that if there be an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not the imaginary or artificial. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted. In simple words it means that utmost care should be taken by the court in convicting the accused. It was held in The State v. Mushtaq Alimad, (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously in view of the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

13. In view of the above discussion, Criminal Appeal No,304 of 2009, qua Khalid Mehmood and Zahid alias Javed Iqbal appellants, is dismissed and conviction and sentences awarded to them are maintained and upheld. However, the appeal, to the extent of Abid Hussain appellant is allowed and conviction and sentence awarded to him is set aside. He shall be released forthwith if not required in any other case.

Order accordingly.

2011 SC Ma 670 [Supreme Court of Pakistan] Present: Zia Perwez, Sarmad Jalal Osma ny and Sayed Zahid Hussain, JJ GUL MUHAMMAD---Appellant versus THE STATE---Respondent Criminal Appeal No, 669 of 2006, decided on 29th May, 2009.

(On appeal from the judgment dated 19-12-2005 passed by the Lahore High Court, Lahore in Crl. A.

No, 361-J of 2000).

(a) Penal Code (XLV of 1860)--- ----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted to accused to examine entire evidence and to consider the question whether the chains of facts were linked in a manner which would suggest no other possibility except the guilt of accused. [p. 672] A

(b) Penal Code (XLV of 1860)--- ----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Appraisal of evidence---Delay in lodging of F.LR. Was suitably explained by the complainant, father of the deceased child- Complainant and accused were close relatives--Accused had nourished ill will and grudge towards the complainant as he considered the complainant responsible for separation of his wife and daughters and thus thought of teaching a lesson to him---Medical evidence had supported the last seen and other circumstantial evidence---Multiple circumstances had corroborated the involvement of accused in killing the boy, who had taken him along on a bicycle, killed him thereafter and thrown into the river---In view of Article 40 of the Qanun-e-Shahadat, 1984, the lead provided by the accused and pointation of the place where the minor was killed and recovery of dead body, were all relevant informations about which only the accused had the information--- Accused had taken life of an innocent child in a merciless and cruel manner and he deserved no leniency---Appeal was dismissed in circumstances. [pp. 673, 674, 676] B, C & D Hakim Ali v. The State 1971 SCM R 412; Sh. Muhammad Amjad v. The State PLD 2003 SC 704 and Sher Zaman v: State and others PLJ 2006 SC 931 ref.

Arshad Ali Ch. Advocate Supreme Court for Appellant. M. Aslam Sindhu, Additional P.-G. Punjab for the State. Date of hearing: 29th May, 2009.

JUDGMENT

' SAYED ZAHID HUSSAIN, J.---Gul Muhammad appellant was charge sheeted by the learned Additional Sessions Judge, Khushab under sections 364/302, P.P.C. For abduction and murder of two years old lad Shahbaz son of Allah Ditta. He pleaded not guilty and faced trial. On conclusion whereof he was convicted under section 302(b), P.P.C. And sentenced to death for Qatl-e-amd of deceased Shahbaz, he was also sentenced to fine of Rs, 100,000 and in case of default to suffer R.I.

For two years. On realization, the half of the fine was to be paid to the legal heirs of deceased. This was vide judgment dated 31-5-2000,. Criminal Appeal No, 361-J of 2000 along with Murder Reference No, 464 of 2000 came up for hearing before the learned Division Bench of the Lahore High Court Lahore on 19-12-2005 when the appeal of the convict was dismissed and death sentence was confirmed. On his Jail Petition, leave was granted by this Court on 2-8-2006, which order reads as follows:-- "The conviction and sentence of death awarded to the petitioner on the charge under section 302(b), P.P.C. By learned Additional Sessions Judge, Khushab has been maintained by the High.

Court by dismissing his appeal vide impugned judgment.

' The charge against the petitioner was that he on 14-3-1999 having kidnapped Shahbaz, a minor son of the complainant committed his murder and on 19-3-1999 led to the recovery of dead body from the western bank of river, Jhehlum at a reasonable distance from the house of the deceased.

' The learned counsel for the petitioner has contended that sole evidence, of last seen and alleged recovery of dead body at the instance of petitioner being of highly doubtful character was not sufficient to sustain the conviction and sentence on capital charge, in absence of any other evidence direct or circumstantial.

'The learned counsel for the State on the other hand opposed this petition mainly on the ground that the witnesses of last seen evidence were quite independent and reliable and that recovery of dead body on the pointation of petitioner would provide a strong corroboration to the last seen evidence.

After having heard the learned counsel for the petitioner and the State and also perused the record with their assistance, we having found force in the contention, are inclined to grant leave to consider the questions whether the chains of facts are linked A in a manner which would suggest no other possibility except the guilt of the petitioner and for proper appreciation of the above question the entire evidence is required to be examined. Leave is accordingly granted in this petition."

2. Mr. Arshad Ali Ch. Advocate Supreme Court, the learned counsel for the appellant and Mr. Muhammad Aslam Sindhu Additional Prosecutor-General. Punjab, have been heard.

3. The contention of the learned counsel for the appellant is that there was delay in lodging F.I.R.

And involvement of the appellant in the commission of offence has not been proved by convincing evidence nor the case has been proved against him beyond any shadow of doubt. According to him, the last seen evidence could not be made basis for his conviction, particularly when the recovery of the dead body at his pointation was doubtful. It has further been contended that lie was insane person, calling for at least reduction in sentence. The learned Additional Prosecutor- General Punjab, has quite vehemently controverted the contention of the learned counsel for the appellant and supported the concurrent view taken by the Courts for convicting the appellant. It is contended that the dead body was recovered on the disclosure made by the appellant from the place pointed out by him, which was identified by the father of the minor boy. .

4. The incident as reported by Allah Ditta, the father of the minor boy Shahbai, to the Police was that on 14-3-1999, the complainant along with Muhammad Aslam and Muhammad Afzal was present in his house when at Peshiwela Gul Muhammad came on a cycle. After some time, Gul Muhammad took Shahbaz aged 5 years son of the. Complainant along with him on the cycle with the pretext to purchase the cigarettes. Till evening, Gul Muhammad did not turn up and on being worried, the complainant searched for his minor child but failed. It was on 19-3-1999 that the complainant along with Bahadur Khan and Muhammad Akhtar went to the father of Gul Muhammad but the father showed his ignorance about Gul Muhammad. In the same sitting, Muhammad Sardar came there and told that at about 8 AM on 19-3-1999 Gul Muhammad met him at Jhal Ludaywali and on his asking Gul Muhammad had told that he would not return back the son of the complainant as the complainant had snatched his (Gul Muhammad's) wife and daughters. Upon this information, the complainant was going to Police Station when Qaiser Raza SI met him at old bus stand. Initially the case was registered under section 364, P.P.C. But later on section 302, P.P.C. Was added. Before the trial Court the prosecution produced twelve -witnesses. The ocular account was furnished by Allah Ditta P.W.94 father, of the boy, Muhammad Aslam P.W.10, Muhammad Sardar Muhammad Sarfraz, P.W.5' Conducted the post-mortem examination of the deceased. - Qaisar Raza Zaidi S.I.

Appeared as P,W.12, who on information received about the presence- of Gut Muhammad in.

Mauza Nomiwali, arrested him on 20-3-1999. Before him he made disclosure that after abducting Shahbaz he had murdered him by throttling and thrown him in the river -Jehlum, who then found and recovered the dead body in the "sarkandas" near the western Bank of river Jehlum in presence of the father of the deceased and sonic other persons and completed the formalities including the -preparation the site plan.

5. In the context of the ocCurrence, the testimony of Allah Ditta, the father of the deceased is of great relevance and significance in whose presence Gul Muhammad appellant his maternal nephew had come to his house and took Shahbaz with .Him on bicycle on the pretext of fetching cigarette. It was afternoon of-14-3-1999 and till evening when they did not return, lie became worried and started searching for his son. He then went to the village of Gul Muhammad, who was not found there. He thereafter had been searching around, visiting his relatives and ultimately took the Numberdar- of the village with him to the fattier of Gul Muhammad, who also showed ignorance about the whereabouts of Gul Muhammad, Muhammad Sardar P.W.11, met them there and told that he had seen. Gul Muhammad that day in the morning and on his inquiry about whereabouts. Of Shahbaz, Gul Muhamad told him that his maternal uncle Allah Ditta had deserted his wife and children, therefore he will not return his son Shahbaz to him, so that he should shed tears the whole life for his son shahbaz. It was then that he lodged Complaint with the police.. The delay in lodging of P.I.R. By the father stand explained, - who initially made efforts to find out his son and Gul Muhammad of his own: It was not unnatural nor unusual is he being a father, was more interested and 13 concerned in finding out his son than thinking of other options. Qaisar Raza P.W.12, the Investigation Officer also explains the delay in lodging of-P.I.R.

6. There is -consistency that- the disclosure about the killing of Shahbaz was made. By Gui Muhammad appellant, who led the police to the-place where from the dead body was recovered and identified by his father and others, Muhammad -Aslant P,W,10, who was present with Allah Ditta in his house when the boy was taken by Gul Muhammad on bicycle, supports the testimony of - Allah Dim -likewise Muhammad Sardar P.W.11, reiterates his talk with Gui Muhammad and later with Allah Ditta complainant. Dr. Muhammad Sarfraz P.W.5, who conducted the post-mortem examination of the deceased boy gave his observation and opinion that:-- "It was a dead body of a boy aged 5 years, lying flat on the mortuary table. Eyes and mouth were open. Eye balls were protrude out, whole of the body was swollen and putrefied smell coming out from the body. He was wearing dark brown shalwar and shirt. Skin of palm and soles of foot were wrinkled. Face was swollen, eyes were protruded out and dark blue. Rigor mortis was not present. I found following injuries on the dead body:--

(1) Multiple bruise mark on the right side front left side of neck.

(2) A contused swelling 4 cm x 4 cm on the left parietal region of the skull.

(3) Multiple bite marks on the whole legs of both sides. .......

In my opinion injury No,1 was antemortel and was due to throttling and was sufficient to cause death in ordinary course of nature due to asphisia. Injury. Nos.2 and 3 were postmortel. Injury No,2 was due to blunt weapon, injury No,3 was due to biting of acetic animals."

7. The medical examination and evidence lends support to the last seen and other circumstantial evidence produced by the prosecution. The appellant convict, and the complainant are close relations. The appellant had nourished ill will and grudge towards the complainant, the father of the boy, as he considered him responsible for separation of his wife and daughters and thus thought of teaching lesson to him. Multiple circumstances corroborate the involvement of the appellant in the killing of the boy i,e, taking of Shahbaz from the house of the complainant on bicycle, not returning of Shahbaz,, himself going into hiding, his conversation with Muhammad Sardar, after arrest discloses the manner in which Shahbaz was killed and thrown into the river Jehlum and pointation of the place and recovery of dead body of Shahbaz. All this prove beyond any shadow of doubt that it was none other than the appellant, who had taken him along on bicycle, killed him thereafter and thrown into river Jehlum. It may be observed that in view of Art. 40 of the Qanoon-e-Shahadat Order 1984, the lead provided by the appellant and pointation of the place where the minor was killed and recovery of dead body are all relevant information about which only the appellant had the information. At this juncture reference may be made to Hakim Ali v. The State (1971 SCM R 412) wherein the statement of the accused leading to recovery of incriminating articles.Was held to be "a good piece of evidence of corroboration". In the said case the accused petitioner had taken "the Investigating Officer to a field and brought out the decapitated head of the deceased, wrapped up in the loi." In Sh. Muhammad Amjad v. The State (PLD 2003 SC 704), it was observed that "the Banglow,in question was in possession of the appellant from where the dead body was recovered. It was also established by an unimpeachable evidence that recoveries of dead body, car or other articles were made on the lead, provided, by the appellant. All above pieces of evidence under Article 40 ibid are admissible and were proved by conclusive evidence. It was accordingly held that all such pieces of circumstantial evidence when combined together provided strong chain of circumstances leading to the irresistible conclusion that it was the appellant who had killed the deceased."

In Sher Zaman v. State and others (PLJ 2006 SC 931) the disclosures made by Mst. Zarlashta, which led to the recovery of dead body and many incriminating articles including the crime weapon on her pointation were taken into consideration and it was observed that "recovery of dead body and several incriminating articles on pointation of accused Mst. Zarlashta were witnessed by P.W.5 Assistant Commissioner Abdul Hamid who had also attested/verified the mushir nama of seizure of such incriminating articles. Presence of P.W.5 and attestation by him of the mushirnamas lent credibility and sanctity to the recoveries as well as to the mashirnamas of recoveries. Thus non- association of public would in the instant case not be a circumstance adverse to the prosecution."

Thus, the delay in F.I.R. Nor any other discrepancy in any of the statement of the P.Ws. Can cast any 'doubt about the commission of offence by the appellant.

8. An amazing defence was sought to be taken by him before the trial Court as if he was insane.

Such a fake and mock attempt proved futile in as much as the learned trial Court did obtain the medical opinion about his plea of insanity and the report of Dr. Imtiaz Ahmad Dogar Assistant Professor (Psychiatry), Punjab Medical College, visiting Psychologist, DHQ Hospital Faisalabad, who examined and reported about him, gave his opinion that "he was a sane person." This was duly noted by the trial Judge in his order dated 6-3-2000 where after he proceeded with his trial. On 21- 3-2000 he was read out the charge, which was explained to him, who replied that he had understood the charge but pleaded not guilty. His non response to the questions put to him under section 342, Cr.P.C. Was merely another clever move and a ruse as if he was insane. Such a plea was rightly repelled by the learned Courts. I have also gone through his petition addressed to this Court through the Superintendent Jail, Shahpur, wherein not a single word has been mentioned about his insanity rather while pleading his alleged innocence, the cause of his involvement projected by him is some political rivalry. But the evidence produced by the prosecution in bringing home the guilt does fully support and justify his involvement in the commission of offence, who has rightly been convicted for taking an innocent life of a child in a merciless and cruel manner for no fault of the minbr boy. He does not deserve any leniency.

7. In view of the above, the appeal being without merit is dismissed accordingly.