Muhammad Anwaar-ul-Haq, J.--Manzoor Ahmad alias Jhoora appellant was tried in case F.I.R.
No, 555, dated 22.05.2004, registered at Police Station Jaranwala, District Faisalabad in respect of an offence under Section 302 PPC. After conclusion of the trial, learned trial Court vide its judgment dated 22.11.2005 has convicted the appellant under Section 302(b) PPC and sentenced him to 'Death' on three counts for committing Qatl-i-Amd of Mst. Tasleem Bibi, Mst. Amina Bibi and Mst.
Shagufta Bibi (deceased ladies). He was also ordered to pay Rs, 1,00,000/- (rupees one hundred thousand only) as compensation on each count to the legal heirs of the deceased ladies under Section 544-A, Cr.P.C. and in default thereof to further undergo S.I. for six months on each count.
2. Feeling aggrieved, the appellant has filed instant appeal through jail i.e. Criminal Appeal No. 466- J of 2006, whereas learned trial Court has transmitted Murder Reference No, 81 of 2006 for confirmation or otherwise of the Death sentence of Manzoor Ahmad alias Jhoora appellant. Both these matters being integrated are being disposed of together.
3. Prosecution story in brief un-folded in /he F.I.R. (Ex. PD/1) by Zafar Ali complainant (PW-8) is that on 22.05.2004 complainant along with Muhammad Ashraf and Meraj Din, brothers-in-law (Salay) of the complainant was sitting in the room of his residential house. On the same day at about 09:00 a.m. appellant Manzoor Ahmad alias Jhoora (real brother of the complainant) armed with a rifle .7mm arrived there, asked all the inmates of the house loudly to recite KALMA and fired upon Mst.
Tasleem Bibi, who was washing the clothes near the hand pump, which fires hit on front side of her chest and legs, then the appellant made fire shots upon Mst. Amina Bibi, who was pasting clay outside the outer door, which fire landed at front side of her chest, thereafter appellant made fire of rifle upon Mst. Shagufta Bibi, when she was running towards the house of the neighbours in order to save her life, which fire landed at her right armpit and upper part of arm, she fell down on the ground and then the appellant while brandishing the rifle, fled away from the spot. The complainant and the PWs tried to manage Mst. Amina Bibi, Mst. Tasleem bibi and Mst. Shagufta Bibi but all the three ladies succumbed to the injuries at the spot.
Motive behind the occurrence as mentioned in the F.I.R. (Ex. PD/1) was that the complainant settled engagement of his daughter Mst. Tasleem Bibi with someone in Lahore but the appellant Manzoor Ahmad alias Jhoora was not happy over the said engagement and due to this grudge, he had committed this occurrence.
4. On 22.05.2004, Faiz Ahmad S.I. (PW-11), reached at the place of occurrence, recorded statement of the complainant (Ex. PD) and sent the same for registration of the same. Thereafter, he prepared injuries statement (Ex. PF, Ex. PJ and Ex. PM) regarding the dead bodies of Mst. Amina Bibi, Mst.
Tasleem Bibi and Mst. Shagufta Bibi, respectively. He also prepared inquest reports (Ex. PG, Ex. PK and Ex. PN) and then investigation of this case was entrusted to Mukhtar Ahmad A.S.I./I.O. (PW-12).
On entrustment of investigation of this case, Mukhtar Ahmad A.S.I. (PW-12) arrived at the place of occurrence on the same day i,e, 22.05.2004, he sent all the dead bodies of the deceased ladies to the hospital for post-mortem examination, recorded statements of the PWs under Section 161 Cr.P.Code, inspected the place of occurrence and sketched the rough site-plan (Ex. PU). He took blood stained earth from the places of murder of Mst. Shagufta Bibi, Mst. Tasleem Bibi and Mst.
Amina Bibi and secured the same vide recovery memos. (Ex. PA, Ex. PB and Ex. PC) respectively. On 27.05.2004, he arrested Manzoor Ahmad alias Jhoora (appellant) and on 06.06.2004, the appellant while in police custody led to the recovery of a .7mm rifle (P-11) along with license (P12) which were taken into possession by the I.O. vide recovery memo. (Ex. PT).
5. After completion of investigation, challan against the appellant was submitted before the learned trial Court, charge was framed against him to that he pleaded not guilty and claimed trial.
6. To substantiate the charge the prosecution had examined twelve witnesses in total out of which Dr. Kanwal Naeem Bari (PW-5) provided medical evidence, Faiz Ahmad, S:I. (PW-11) and Mukhtar Ahmad A.S.I (PW-12) conducted investigation of this case, whereas Zafar Ali complainant (PW-8) and Muhammad Ashraf (PW-9) have furnished the ocular account.
7. On 22.05.2004 at about 03:00 p.m. Dr. Kanwal Naeem Bari (PW-5) conducted post-mortem examination on the dead body of Mst. Amina Bibi and found as under:-- (1)A fire-arm lacerated wound of entrance (1/2) x (1/2) cm on the back of left side of chest.
Scapular region 15 cm from centre.
(2)A fire-arm wound of entrance 1(1/2) x 1 cm on left side back of chest 7(1/2) cm outward and downward from Injury No, 1.
(3)2(1/2) x (1/2) cm on left arm back side 12 cm from elbow joint.
(4)A fire-arm lacerated wound of exit 2 x 1 cm on right side of front of chest. 8 cm upward from the nipple and 7 cm from the midline.
(5) A fire-arm lacerated wound of exit 3(1/2) cm x 2 cm on left side of front of chest upper part mid clavicle region. 1 cm downward from the clavicle.
In her opinion the cause of death was injuries No, 1 to 5, causing damage to vital organs, heart and lung, leading to death in ordinary course of nature. All the injuries were ante-mortem and were caused by fire-arm. Probable time between injury and death was immediate whereas duration between death and post-mortem was about 8 to 9 hours.
On the same day at about 03:30 p.m. she conducted the post-mortem examination on the dead body of Mst. Tasleem Bibi and observed as under:--
(1) A fire-arm wound of entrance 1/2 x 1/2 cm on left side of back of chest, middle part 10 cm from axilla and 8 cm from centre.
(2)A fire-arm, wound of entrance 1/2 x 1/2 cm 3 cm upward and outward from Injury No, 1 and 14 cm from the left shoulder (left side of back of chest).
(3)A fire-arm lacerated wound of exit 6(1/2) x 3(1/2) cm on front of chest, central part of-chest in midline, 18 cm from the right nipple.
(4)A fire-arm wound of exit on right breast. 2 x 1 cm inner side of the breast, 2 x 1/2 cm from the nipple.
(5)A fire-arm lacerated wound of exit 2 x 1 cm in midline front of chest, 2 x 1/2 cm down from Injury No, 3.
(6)A fire-arm wound of entrance 1 x 1 cm on right thigh, posterior aspect 3 cm from knee joint.
(6B) A fire-arm wound of exit 3 x 2 cm on medial aspect of right thigh, 11 cm from knee joint.
(7A) A fire-arm lacerated wound of entrance 2 x 1 cm on right leg, posterior aspect 7 cm from knee joint.
(7B)A fife-arm wound of exit 3(1/2) x 1/2 cm on right leg. 9 cm from knee joint. 2(1/2) cm medial from Injury No, 7-A. In her opinion the cause of death was due to Injuries No, 1 to 5, causing damage to lung and heart and finally leading to death in ordinary course of nature. All the injuries were ante-mortem and were caused by fire-arm.
Probable time between injury and death was immediate whereas duration between death and post-mortem was about 8 to 9 hours.
On the same day at about 04:00 p.m. she conducted the post-mortem examination on the dead body of Mst. Shagufta Bibi and observed as under:-- (1-A) A fire-arm entrance 1/2 x 1/2 cm on left arm front 16 cm from shoulder joint.
(1-B) A fire-arm lacerated wound of exit 1/2 x 1/2 cm on left arm 3% cm from Injury No, 1-A.
(2-A) A fire-arm lacerated wound of entrance 1/4 x 1/4 on left side, lateral aspect of chest. Middle part 7 cm lateral from left nipple.
(2-B) A fire-arm lacerated wound of exit 4 x 1/2 cm on right/side of chest, lateral aspect 5 x 1/2 cm lateral from left nipple.
In her opinion the cause of death was due to Injuries No, 2-A and 2-B, causing damage to lung and heart and leading to death in ordinary course of nature. All the injuries were ante-mortem and were caused by fire-arm.
Probable time between injury and death was immediate whereas duration between death and post-mortem was about 8 to 9 hours.
8. The appellant was examined under Section 342 Cr. P.C. He denied the allegations and professed his innocence. While answering to question (Why this case against you and why the PWs have deposed against you?), he replied as under:-- "The PWs are related to the deceased ladies while the others are police officials. They have deposed against me to strengthen their case. In fact the deceased were of bad character ladies.
They have been murdered by the complainant along with PWs due to their stained character, I have been booked in this case falsely to make scapegoat because there were strained relations between me and the complainant prior to the occurrence."
Neither the appellant made statement u/S. 340 (2) Cr.P.C. nor did he produce any evidence in his defence. Learned trial Court vide its judgment-dated 22.11.2005 found the appellant guilty and convicted and sentenced him as mentioned above, hence, these matters before this Court.
9. Learned counsel for the appellant, in support of this appeal, contends that there are material contradictions between ocular and medical evidence because as per F.I.R. and statements of the PWs before the Court, the fires shot by the appellant hit Mst. Tasleem Bibi on her chest and legs whereas all the injuries on her chest are exit wounds and the entry wounds are on the back of her chest, similarly, the injuries received by Mst.Amina Bibi are also on the back of her chest whereas it is mentioned in the F.I.R. as well as alleged by the prosecution witnesses before the Court that she received injuries on her chest and as-far-as the injuries received by Mst. Shagufta Bibi is concerned, as per F.I.R. she received injuries on the right armpit and right arm whereas there is an injury on her arm but actually there is no injury on her armpit and is an entry wound at her chest; that it is the case of the prosecution that all the deceased received nine entry wounds but surprisingly no crime-empty was recovered from the spot and there is no explanation for non- recovery of crime-empties from the spot, in this circumstance, recovery of rifle .7 mm (P-11) carries no value; that so far as motive part as alleged in the F.I.R. is concerned, no independent witness, has been produced by the prosecution to prove the same, even otherwise story of the prosecution is highly improbable; that two eye-witnesses allegedly remained present but none of them made any attempt to catch hold of the appellant, all these circumstances make the whole prosecution story doubtful; that both the eye-witnesses are closely related and interested witness and there is no independent corroboration and their evidence cannot be accepted without some independent strong corroborative evidence.
10.On the other hand, learned Deputy Prosecutor-General opposed this appeal on the grounds that it is a daylight occurrence in which three innocent ladies were killed; that matter was promptly reported to the police with all the necessary details of the occurrence by the complainant which rules out the possibility of concoction and deliberation by the complainant/prosecution; that prosecution case has fully been proved through ocular account supported by medical of evidence and there is no material contradiction between the ocular account and medical evidence; that both the eye-witnesses are laymen and they are not expected to provide exact pictorial view of the incident and even they were not cross-examined on this aspect of the matter; that ocular account has been furnished by Zafar Ali complainant (PW-8) real brother of the appellant and Muhammad Ashraf (PW-9) brother-in-law (Sala) of the complainant, having no enmity with the appellant and substitution in such like cases is a rare phenomenon; that the doctor who conducted the post- mortem examination on the dead bodies of all the thiee deceased ladies, has not been cross- examined. Further contends that the frivolous plea taken by the appellant regarding bad character of the deceased ladies is belied by medical evidence. Lastly contends that there is no mitigating circumstance in favour of the appellant because he has killed three innocent deceased ladies in a very callous manner, hence, he does not deserve any leniency and is not entitled to any exception, hence, appeal of the appellant be dismissed and murder reference be answered in the affirmative.
11.We have heard the learned counsel for the parties at length, and have given anxious consideration to their arguments and have also scanned the record with their able assistance.
12.In this case, occurrence took place on 22.05.2004 in the daylight at about 09:00 a.m. in which three innocent women were murdered, matter was promptly reported to the police by Zafar Ali complainant (PW-8) on the same day at 10.30 a.m., whereas the distance between the Police Station and place of occurrence is about five miles and the post-mortem examinations on the dead bodies of the deceased ladies were also conducted on the same day. We have noticed that it is a promptly lodged F.I.R. with all the necessary details of this unfortunate occurrence that rules out the possibility of any concoction or deliberation on behalf of the complainant/prosecution.
13. In order to prove the ocular account prosecution has examined Zafar Ali complainant (PW-8) real brother of the appellant and Muhammad Ashraf (PW-9) brother-in-law (Sala) of the complainant, complainant is the resident of the same house where the deceased ladies were residing and occurrence took place and his presence is not disputed whereas PW-9 during his cross-examination has given plausible explanation of his presence at the spot, even otherwise, he is closely related to the complainant, therefore, his presence at the house of his brother-in-law cannot be considered as improbable or against the natural conduct and his presence at the spot is conceivable. Though, both the eye-witnesses are related to the deceased ladies yet we do not find any reason of false implication of the appellant by them in this case, even otherwise, there is no reason to doubt their testimonies because they have no enmity of any sort with the appellant.
Mere relationship of these witnesses is not sufficient to discard their testimonies especially when the complainant is real brother of the appellant. In this respect, we respectfully refer the case of Haji versus The State (2010 SCM R 650), wherein the Hon'ble Supreme Court has observed as under: "Both the ocular witnesses undoubtedly are inter se related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."
Even otherwise, substitution in such like cases where both the eye-witnesses are close relatives of the deceased ladies, is a rare phenomenon, it is impossible that real father of two deceased daughters and husband of the third deceased would let off the real culprit and shall substitute his own real brother in this case. Here, we refer the case of Khalid Saif Ullah versus The State (2008 SCM R 688) wherein Hon'ble Supreme Court of Pakistan has observed as under: "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v.
The State and others PLD 1996 SC 138".
We are of the considered view that ocular account is coherent, straightforward reliable and worth reliance and, is further corroborated by medical evidence on all material aspects.
14.As far as contention of learned counsel for the appellant that there is a contradiction between ocular account and medical evidence, we have noticed that complainant has given the description of this unfortunate occurrence in his own words but he was not cross-examined on this aspect of the matter, even otherwise it is unnatural to expect from eye-witnesses to give a photographic narration of all the fire-arm injuries to the deceased and especially it is unimaginable for anyone to describe fire-arm injuries received by three deceased during the occurrence. In our view ocular account is fully supported by medical evidence as according to the opinion of the doctor (PW-5) all the three deceased ladies died due to fire-arm injuries medical evidence is further in line with the prosecution case on other material aspects such as time of death weapon of offence etc. Place and time of occurrence is also not denied in this case.
15.Appellant has taken a specific plea while cross-examining the eye-witnesses that deceased ladies were of bad character and they have been murdered by the complainant and PWs due to their stained character and same suggestion was put to the Investigating Officer (PW12) during his cross-examination but the appellant has miserably been failed to prove the plea taken by him in any manner whatsoever. In the Post Mortem reports (Ex. PH and Ex. PL) doctor has opined that hymens of Mst. Tasleem Bibi and Mst. Shagufta Bibi were intact that further counteract the plea of appellant that deceased girls were of immoral character.
16.As regards evidence of recovery of rifle .7 mm (p-11) taken into possession by the I.O. vide recovery memo. (Ex. PT) from the appellant, we are of the view that it is of no avail to the prosecution because no crime-empty was collected by the I.O. from the spot. But even if the evidence of recovery of rifle is excluded, the prosecution story stands fully proved by the ocular account supported by medical evidence and there is sufficient material available on the record to prove prosecution case against the appellant beyond any shadow of doubt.
17.In view of the above, we are satisfied that finding of conviction and sentence of the appellant recorded by the learned trial B Court is quite in accordance with law and is based upon well recognized principles of appreciation of evidence in a criminal case.
18. As far as quantum of sentence of the appellant is concerned the learned counsel for the appellant remained unable to point out any mitigating circumstance in favour of the appellant in this case. Act of the appellant and in the manner he committed murder of three innocent ladies, is shocking and dreadful. The question of sentence in a murder case is of course a question of very vital importance and all the care and caution is required in this regard, but it is equally important aspect of this, matter that sentence of death cannot be avoided on the basis of flimsy grounds and principle of proportionality cannot be lost sight in brutal murders. Another important legal aspect while considering sentence one out of two in a case of Qatl-i-Amd is Section 382-C, Cr.P.C. We reproduce the same for ready reference: "382-C, Scandalous or false and frivolous pleas to be considered in passing sentence. In passing a sentence on an accused for any offence, a Court may take into consideration any scandalous or false and frivolous plea taken in defence by him or on his behalf."
The plea taken by the appellant in his defence is not only false but on the face of it scandalous as well and while taking into consideration Section 382-C, Cr.P.C. we are of the considered view that there is no extenuating circumstance available in favour of the appellant for extending him any benefit regarding his sentence, hence his conviction and sentence under Section 302 (b) PPC on three counts as ordered by the learned trial Court, is maintained and his Criminal Appeal No, 466-J of 2006 is, dismissed.
19. Resultantly death sentence awarded to Manzoor Ahmad alias Jhoora, appellant on three counts is CONFIRMED and murder reference (M. R. No, 81 of 2006) is answered in AFFIRMATIVE.