' ABDUS SATTAR ASGHAR. J. Appellant Muhammad Siddique along with other co-accused namely Muhammad Yaseen, Sher Muhammad and Allah Wasaya alias Wassu was tried by the learned Additional Sessions Judge, Haroonanad Camp at Fortabbas in case F.I.R. No,67 of 2007, dated 12-5- 2007 under sections 302/34/449/324, P.P.C. Police Station Marot, Tel sil Fortabbas for causing murder of Ghulam Hussain and Mst. Nasira Bibi and also for causing murderous assault upon Mst.
Irshad Bibi injured P.W. By inflicting fire-arm injuries. The learned Additional Sessions Judge vide judgment dated 11-3-2009 holding him guilty conviced the appellant Muhammad Siddique under section 302(b), P.P.C. And sentenced to death on two counts and also directed to pay an amount of Rs,50,000 on each count as compensation to the legal heirs of Ghulam Hussain and Mst. Nasira Bibi deceased, in default to suffer simple imprisonment for six months on each count. He was also convicted under section 324, P.P.C. And sentenced to undergo R.I. For seven years as Ta'zir for causing injuries to Mst. Irshad Bibi along with fine of Rs,40,000 to be paid to said Irshad Bibi if realized and in default to further undergo six months' SI. He was also convicted under section 449, P.P.C. And sentenced to R.I. For ten years as Ta'zir along with fine of Rs,15,000 and in default to further undergo S.I. For six months. By virtue of the same judgment his co-accused namely Allah Wasaya alias Wassu, Sher Muhammad and Muhammad Yasin were acquitted of the charges.
2. Muhammad Siddique convict has impugned the above noted convictions and sentences through the instant appeal, whereas the State has.Approached this Court with Murder Reference No,14 of 2009 seeking confirmation of death sentences awarded to him. We intend to dispose of both the matters together being inter-connected through this single judgment.
3. Prosecution case as unfolded by the complainant Muhammad Akram in the F.1.R. (Exh.PF) registered on the basis of his statement recorded on 12-5-2007 at 3-30 a.m., is that he is resident of Chak No,310/HR and is Zamindar; that his brothers Ghulam Hussain and Muhammad Tariq reside with his parents at Allama lqbal Colony Chak No,313/HR; that eight years back his brother Ghulam Hussain wedded Mst. Irshad Bibi daughter of Rahim Bakhsh resident of Chak No,310/HR and in her exchange his sister Mst. Nasira Bibi was wedded to Muhammad Yasin son of Rahim Bakhsh; that about 4/5 years back Mst. Irshad Bibi went to her parents due to estrangement with Ghulam Hussain. Consequently Mst. Nasira Bibi also reported to her parents; that a few days back a compromise was effected between Mst. Irshad Bibi and Ghulam Hussain with the intervention of brotherhood as a result whereof four days back Rahim Bakhsh left his. Daughter Mst. Irshad Bibi to the house of Ghulam Hussain; that today since evening time he along with his Khalu Ghulam Ali resident of Chak No,423/HR were available ' in the house of his father at Chak No,313/HR and went to sleep there at night; that at about 2-30 a.m. Muhammad Siddique (appellant) armed with rifle, and Allah Wasaya alias Wassu trespassed into the house due to his illicit relations with Mst. Irshad Bibi and attempted to awake her whereupon Ghulam Hussain woke up and raised hue and cry, consequently Muhammad Siddique fired a shot upon Ghulam Hussain; that on reporting of the fire-shots he, his brother Muhammad Tariq and Ghulam Ali also woke up and identified the accused in the light of lantern; that Ghulam Hussain in running with on took refuge behind the trolley in the courtyard, however accused Allah Wasaya dragged him by holding from legs and Muhammad Siddique flied the second shot upon Ghulam Hussain which hit him on neck; that Mst.
Irshad Bibi and Mst. Nasira Bibi attempted to rescue Ghulam Hussain whereupon Muhammad Siddique fired a shot which hit Mst. Irshad Bibi on her backside and abdomen and the other fire- shot hit on her left arm and Mst. Nasira Bibi also received fire shot; that he along with P.Ws.
Attempted to apprehend the accused who pointing firearm towards them caused threats to kill and decamped from the spot; that he along with P.Ws. Attended the injured whereas Ghulam Hussain succumbed to the injuries at the spot.
4. Before proceeding further in the matter, we may mention that in order to avoid burdening this judgment with unnecessary details we would confine ourselves only to the facts necessary for disposal of this appeal.
5. Amjad Rasheed, SI (P.W.14), scribe of the F.I.R. And first Investigating Officer of this case, deposed that after recording the F.I.R. Exh.PF on the statement of Muhammad Akram complainant he reached the spot along with police officials, inspected the place of occurrence, prepared rough sketch (Exh.PM) of the scene of occurrence and also prepared the inquest report (Exh.PE) of Ghulam Hussain (deceased) and injury statements of Mst. Nasira Bibi thee injured (later deceased) and of Mst. Irshad Bibi injured and handed over the dead-body of the deceased Ghulam Hussain to Zafar Iqbal 566/C for its transmission to the mortuary for postmortem examination and the injured were shifted to Rural Health Centre Marot for treatment. He also obtained the blood-stained earth beneath the dead-body of Ghulam Hussain and blood-stained earth pertaining to the injuries of Mst. Nasira Bibi and Mst. Irshad Bibi vide recovery memo Exh.PG. He collected three empty cartridges (P-7/1-3) from the place of occurrence which were taken into possession vide recovery memo Exh.PH and sealed into parcel and recorded the statements of the recovery witnesses under section 161, Cr.P.C. On 13-5-2007 on receipt of information regarding the death of Mst. Nasira Bibi who was admitted in B. Hospital, Bahawalpur, he went to the Hospital and brought her dead-body to RHC Marot for postmortem examination and prepared her inquest report (Exh.PK/3). On 14-5- 2007 on receipt of MLC of Mst. Irshad Bibi and Nasira Bibi he annexed the same with record. On 21- 5-2007 he recorded the statement of Mst. Irshad Bibi P.W. In B.V. Hospital Bahawalpur when she gained her senses and thereafter on 28.5.2007 upon his transfer to Police Station Saddar Haroonabad handed over the police file to Moharrir.
6. Safdar Hussain SI (P.W.13) the other Investigating Officer of this case investigated the appellant Muhammad Siddique and Allah Wasaya on 21-6-2007. During investigation Muhammad Siddique got recovered the offence weapon rifle .444-bore (P.8) along with six live cartridges (P.9/1-6) from the room of his residential house lying in an iron box, which were taken into possession vide recovery memo Exh.PI, sealed it into a parcel for onward transmission to the Forensic Science Laboratory for analysis, recorded the statements .Of Moharrir and Constable who transmitted the recovered articles to the office of Forensic Science Laboratory and Chemical Examiner. He prepared incomplete challan under section 173, Cr.P.C.
7. On submission of the challan, learned trial Court formally charge-sheeted the above named accused including the appellant on 29-11-2008 under sections 302/34/449/324, P.P.C. To which they pleaded not guilty and claimed to be tried.
8. Prosecution produced as many as 14 witnesses to prove the charges. Muhammad Akram complainant (P.W.8), Mst. Irshad Bibi injured witness (P.W.11), Ghulam Ali eye-witness (P.W.9), Dr. Muhammad Sajjad (P.W.7) and Lady Doctor Fauzia Rafique (P.W.10) are material witnesses and the other P.Ws. Are formal in nature.
9. After concluding the prosecution evidence the learned trial Court examined the appellant and other accused ui.Der section 342, Cr.P.C. The appellant pleading his innocence rejected each piece of prosecution evidence, however in reply to question "Why this case against you and why the P.
Ws. Have deposed against you" he replied as under:-- "Ghulam Hussain deceased and his wife Mst. Irshad Bibi had strained relations with each other and due to this both families nourished grudge against each other as Mst. Nasira Bib, was married to Muhammad Yaseen accused. I have no concern with both the parties as I belong to different caste/brothery and I have no motive to commit the murder of anybody. In fact it was a blind murder and nobody had witnessed the occurrence. P. Ws. Produced by the prosecution are residents of different villages which are at a distance of about 20 to 30 kilometers from the place of occurrence. Parents of Mst. Irshad Bibi wife of deceased reside in any Chak who had personal grudge against me. Receiving information about this blind occurrence, parents of Mst. Irshad Bibi finding an opportunity involved me in this case as the real culprit is not known to anybody yet.
Mst. Irshad Bibi implicated me in this case on the asking of her parents as her parents had extended threats to me prior to this occurrence that they will soon teach me a lesson. F. L R. Was lodged after due meditation and consultation which shows the mala fide onthe part of prosecution, In fact F.I.R. Was lodged much later than shown in the record as police was connived with the complainant party and the Roznamcha of police was kept blank till meditation and consultation. P. Ws. And complainant are related inter se. So they deposed against me falsely."
10. Learned counsel for the appellant argued that he is falsely implicated with malice; that he has no concern with both the parties and have no motive at all to commit the alleged double murder; that it was a blind murder; that the P.Ws. Are residents of other villages situated at considerable distance from the place of occurrence; that Mst. Irshad Bibi P.W. Resident of his village having personal grudge has falsely involved him in this case on the asking of her parents-who had extended threats to him before this occurrence ,that they would teach him a lesson; that the F.I.R.
Was lodged after consultation with due deliberations with the connivance of police at some later stage; that the P.Ws. Are not in line and corroborative to each other, rather they advanced different versions as regards the details of the occurrence while introducing different sets of accused; that the P.Ws. Being closely related to each other as well as to the deceased have deposed false; that motive alleged by the complainant is not established against the appellant; that the medical evidence is at variance to the ocular account failing to furnish any reliable corroboration; that the site-plan also fails to corroborate the complainant's version regarding implication of the appellant; that it was a dark-night occurrence; that the recoveries alleged at the spot as well as pertaining to the offence weapon are fake, fabricated and planted upon the appellant; that the report of the Forensic Science Laboratory also fails to furnish any corroboration to the ocular account; that the prosecution has not been able to prove the charges against the appellant beyond any reasonable doubt through any confidence-inspiring and reliable ocular or documentary account therefore the impugned convictions and sentences are untenable in the eye of law and liable to set aside.
11. Conversely, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant vehemently argued that the prosecution has .Established the charges against the appellant to the hilt with the help of testimonies of Mst: Irshad Bibi injured (P.W.11), Muhammad Akram complainant and eye-witness (P. W.8) and Ghulam Ali another eye-witness (P:W.9); that the testimonies of the P.Ws. Are in line and corroborative to each other with regard to the complicity of Muhammad Siddique appellant for causing murder of Ghulam Hussain and Mst. Nasira Bibi as well as murderous assault upon Mst. Irshad Bibi by effective firearm injuries; that the medical evidence as well as the recovery of, offence weapon duly matched with the empty. Cartridges found from the spot vide report of the Forensic Science Laboratory (Exh.P0) furnish sufficient independent corroboration to the reliable and confidence-inspiring ocutar account which cannot be discarded merely on the ground of close relationship of the P.Ws. With the deceased; that absence or non- establishing of the motive is not fatal to the prosecution case fully proved against the appellant with regard to his complicity resulting into his conviction; that in the absence/ of any mitigating circumstance the learned trial Court has rightly convicted the accused/appellant with capital penalty of death for causing wilful murder of Ghulam Hussain and Mst. Nasira Bibi as well as for causing murderous assault upon Mst. Irshad Bibi injured P.W.; that in the attending circumstances the appellant does not deserve any leniency in quantum of punishment and the appeal is liable to dismissal.
12. We have given patient hearing to the counsel for the parties and the learned D.P.-G. For the State.
13. Careful appraisal and comparative analysis of testimonies of Muhammad Akram complainant/eye-witness (P.W.8), Ghulam Ali eyewitness (P.W.9) and Mst. Irshad Bibi injured (P.W.11) reveals that they are in line and corroborative to each other on vital dimensions of this case with regard to complicity of Muhammad Siddique appellant as under:--
(i) Muhammad Akram complainant/eye-witness (P.W.8) is real brother of Ghulam Hussain and Mst. Nasira Bibi both deceased. Simultaneously Ghulam Ali eye-witness (P.W.9) is real Khaloo of the deceased as well as of the complainant. Admittedly Muhammad Akram complainant (P.W.8) resides at Chak No,310/HR at a distance of four kilometer from the place of occurrence.
Simultaneously Ghulam Ali eye-witness (P.W.9) resides at Chak No,423/HR at a distance of 15/20 km from the place of occurrence. The occurrence took place at Chak No,313/HR where father of the complainant along with the deceased and other family members permanently reside. Muhammad Akram complainant (P.W.8) as well as Ghulam Ali (P.W.9) .Have furnished and explained believable and plausible they had come to see Mst. Khairan Bibi ailing grandmother of reasons of their presence at the time and place of occurrence that the complainant at about Maghrib time and stayed there at night when the occurrence took place. Both the said P.Ws. Have narrated the occurrence in line to each other regarding complicity of Muhammad Siddique appellant by causing firearm injuries to Ghulam Hussain and Mst. Nasira Bibi both deceased and Mst. Irshad Bibi injured (P.W.11) supported by the medical evidence, therefore, their presence at the time and place of occurrence cannot be doubted in the circumstances of this case. Reliance be made upon Shamshad Ali v. The State (2011 SCM R 1394).
(ii)' Simultaneously Mst. Irshad Bibi injured (P.W.11) in her examination-in-chief categorically stated that Muhammad Siddiqtie appellant armed with rifle made fire-shot hitting on the left arm of Ghulam Hussain and another fire-shot hitting on the neck of Ghulam Hussain deceased. She further deposed that Muhammad Siddique appellant also made fire-shots hitting on her back and left arm and that Mst. Nasira Bibi sister of Ghulam Hussain (deceased) stepped forward to his rescue whereupon Muhammad Siddique appellant made fire-shot hitting at the neck of Mst. Nasira Bibi. She also deposed that Ghulam Hussain succumbed to the injuries at the spot whereas she along with Mst. Nasira Bibi were shifted to B.V. Hospital Bahawalpur for treatment where Mst. Nasira Bibi succumbed to the injuries and she herself remained admitted in the Hospital for about three months for treatment. This part of the statement of Mst. Irshad Bibi injured (P. W. 11) therefore furnishes sufficient corroboration to the prosecution version as set-forth by Muhammad Akram complainant (P.W.8) as well as corroborated by Ghulam Ali eye-witness (P.W.9). There is no reason at all to disbelieve Mst. Irshad Bibi injured (P.W/41.11) with regard to complicity of Muhammad Siddique appellant for commission of the offence.
(iii) Learned counsel for the appellant has laid much emphasis on his argument that it was a dark- night occurrence wherein identification of the accused was doubtful. In this regard suffices to say that Muhammad Akram complainant/eye-witness (P.W.8) and Ghulam Ali eye-witness (P.W.9) both were cross-examined by the defence on this point. Both the said witnesses have categorically stated during cross-examination that a lantern was litting in the courtyard at the time of occurrence. They have also stated that Muhammad Siddique convict/appellant was already well- known to them and they had correctly identified the accused person at the time of occurrence.
Mere fact that the lantern was not produced to the Investigating Officer during the investigation is no reason to detract the evidentiary value of the P.Ws. With regard to identification of Muhammad Siddique appellant. It is observed that the appellant Muhammad Siddique is resident of the village of Mst. Irshad Bibi injured P.W. Therefore his identification by the P.Ws. At the time of occurrence cannot be doubted at all. Reliance be made upon Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others (PLD 1992 SC 211).
14. Firearm injuries causing death of Ghulam Hussain and Mst. Nasira Bibi as well as on the person of Mst. Irshad Bibi injured (P.W.11) are fully corroborated by the medical evidence produced by the prosecution in the shape of Dr. Muhammad Sajjad (P.W.7) and Lady Doctor Fauzia Rafique (P. W.
10). Dr. Muhammad Sajjad (P.W.7) conducted the postmortem examination on the dead-body of Ghulam Hussain and found following injuries on his body:- "1 & 2 A black circular penetrating wound with inverted margins of about 1-1/2 cm in diameter on right cheek approximately two CM below and medial to right temporomanduibilar joint. Blackening and tattooing was present. Clotted blood was present within and around the wound. Another wound of about 3 x 2 cm with everted margins on the left side of neck approximately at the posterior border of posterior triangle of neck at the level of C-4 and C-5 vertebra. Clotted blood was present within and around the wound.
3. There was a circular penetrating wound of about 1-1/2 cm with inverted margins on the lateral side of left arm approximately 6 cm above to elbow joint, blackening and tattooing was present, clotted blood was present within and around the wound. There was another circular wound of about 3 cm x 2 cm with everted margins on the medial side of left arm approximately 2 cm above to elbow joint. Clotted blood was present within and around the wound.
THORAX ' All visceras of thorax were normal and healthy.
ABDOMEN ' All visceras of abdomen were normal and healthy.
MUSCLES, BONES AND JOINTS ' Injury No,1 and 2 caused fracture of C-4 and C-5 vertebra along with spinal cord at the level and meningies at that level.
' Injury No,3 caused fracture of humerus of left arm at the distil end.
REMARKS ' There were four wounds, all of which were ante-mortem and homicidal, caused by firearm. In my opinion, the death was due to neurogenic shock or haemorrhage to vital organ (spinal cord) which was sufficient to cause death in ordinary course of nature. All the injuries were antemortem and homocidal caused by firearm."
' Probable time between injuries and death was instantaneous. Probable time between death and postmortem was within eight hours."
' He also verified the postmortem report Exh. PD with pictorial diagram Exh.PD/1 recorded in his own hand bearing his seal and signatures. He also attested the inquest report prepared by the police with his signatures.
15. Lady Doctor Fauzia Rafique (P.W.10) on 12-5-2007 medically examined Mst. Nasira Bibi in injured condition and recorded the following injuries on her body vide MLC Report Exh.PJ prepared by her in her hand which bear her signatures:--
(1) There was a lacerated wound due to fire-arm injury in front of neck at mid point with inverted margins blackening and tattooing etc were present measuring 1 x lcm going back straight through the neck and an exit wound behind neck in the mid point with everted margins measuring 2.5 x 3.0 cm in size. General condition of the injured was very poor with pale face. Patron of respiration was changing. Blood pressure was lowering with indicated internal bleeding from the wound as well as external on the back of neck. First aid was provided and injured was referred to BVH Bahawalpur (COD for management and surgical intervention if any feasible). The wound was dangerous to life within 2-1/2 to 3-1/2 hours and was due to fire-arm injury.
16. On 13-5-2007 she also conducted the postmortem examination on the dead-body of Mst.
Nasira Bibi indicating the same injuries as mentioned in her MLC with the following remarks:- "REMARKS ' In my opinion death had occurred due to fire-arm injury which resulted in excessive bleedings as well as damage to vital structures like trachea and oesophagus and spinal canal containing spinal cord. Moreover, bleeding in the trachea may had resulted in trickling of blood in the air passages and ultimately their obstruction. Probable time between injury and death 24 to 30 hours and between death and postmortem 4 to 6 hours."
' She also verified the postmortem report Exh.PK, pictorial diagram Exh.PK/1, injury statement Exh.PK/2 and inquest report Exh.PK/3 prepared by the police bearing her attesting signatures.
17. On 12-5-2007 she also medically examined Mst. Irshad Bibi (P.W.11) wife of Ghulam Hussain (deceased) and recorded the following injuries:-- "(1) There was a lacerated wound in front of abdomen near epigastric area with everted margins with profused bleedings due to firearm injury. This seems to be exit wound due to firearm injury measuring 2 x 2.5 cm in diameter approximately.
(2) There was a lacerated wound due to firearm injury approximately at the middle of left forearm also due to fire-arm injury profusedly bleeding.
(3) There was a lacerated wound on back of trunks with inverted margins approximately 1 x 1 cm in size, tattooing and blackening were present. It seems to be entry wound of fire-arm injury as excessive bleeding had occurred, so patient was referred to BVH, BWP (COD) surgical unit, for management and final report will be in light of surgical notes after surgical intervention at BVH Bahawalpur.
FINAL REPORT FOR INJURY NO.1 AND 3 ' Both' due to one cartoons. After receiving the treatment notes from Surgical Ward No,III BVH Bahawalpur where exploratory laparotomy and chest intubation was done. Case of fire-arm confirmed and no bullet or pellet etc. Recovered as they had passed across the body, so declared as Jurh Jaifa.
FOR INJURY NO.2 ' As there was no bony fracture and only muscles had been turned. So declared as Jurh Ghair Jaifa Mutlahima. All the injuries were due to firearm and duration of injuries was 2-1/2 to 3-1/2 hours and these were declared as dangerous to life.
' MLC report Exh.PL is correct carbon copy of my original report which is in my hand and bears my seal and signature. I also signed injury statement prepared by the police which is Exh.PL/1."
18. Bare reading of the aforementioned medical evidence produced by the prosecution transpires that it furnishes sufficient corroboration to the ocular account advanced by the prosecution with regard to nature and location of firearm injuries caused by Muhammad Siddique appellant to Ghulam Hussain and Mst. Nasira Bibi both deceased and Mst. Irshad Bibi injured (P.W.11) as alleged by the prosecution. Despite searching cross-examination nothing material elicited in favour of the defence to detract its corroborative evidentiary value.
19. Learned counsel for the appellant has vehemently argued that presence of blackening and tattooing on the injuries of Ghulam Hussain deceased observed by Dr. Muhammad Sajjad (P.W.7) in his postmortem report falsify the prosecution version. In our considered opinion the learned counsel for the appellant is misconceived. It is noteworthy that during cross-examination upon both the eye-witnesses as well as upon the injured witness Mst. Irshad Bibi (P.W.11) defence side has miserably failed to ask any question with regard to inter se distance of the appellant/convict as well as both the deceased and the injured P.W. It is pertinent to mention that no such distance is mentioned in the site-plan. Mere fact that the Investigating Officer has not shown the inter se distance of the appellant and the injured and the deceased persons at the time of occurrence in the site-plan is not fatal to the prosecution case, otherwise fully established with the help of trustworthy ocular account corroborated by medical evidence. Reliance be placed upon Muhammad Hanif v. The State (PLD 1993 SC 895). Needless to mention that the site-plan is not a substantive piece of evidence in terms of Article 22 of the Qanun-e-Shahadat Order, 1984. Reliance be made upon the case of Mst. Shamim Akhtar Supra. Therefore this argument of the learned counsel for the appellant is devoid of any force and thus repelled.
20. Recovered crime empties (P.7/1-3) during inspection of the place of occurrence on 12-5-2007 by Amjad Rasheed SI (P.W.14) first Investigating Officer and taken into possession vide recovery memo Exh.PH duly attested by the recovery witnesses were transmitted to the Forensic Science Laboratory on 29-5-2007 by Bashir Ahmad 405/HC (P.W.4). Offence weapon rifle .44-bore (P.8) got recovered by the appellant Muhammad Siddique on 21-6-2007 was later on transmitted to the Forensic Science Laboratory by Muhammad Ashraf 1138/C (P.W.6) for comparison with the already transmitted crime empties. Report of the Forensic Science_ Laboratory Lahore dated 6-8-2007 (Exh.PO) manifests that the crime empties C/2 and C/3 had been fired from rifle .44-bore. However crime empty. C/1 reportedly found not fired from the rifle .44-bore. It is sufficiently established point of law that Expert Report of the Forensic Science Laboratory is merely a supportive piece of evidence. Therefore non-matching of one of the crime empties with the offence weapon had no fatal effect upon arraignment and complicity of the appellant already .Established to the hilt with the help of truthful and trustworthy ocular account comprising eye-witnesses including Mst. Irshad Bibi (P.W.11). Therefore, even recovery of offence weapon and crime empties bearing substantial support from the report of the Forensic Science Laboratory furnish considerable corroboration to the prosecution version.
21. Learned counsel for the appellant in his arguments has much relied upon the fact that Mst.
Irshad Bibi injured (P.W.11) had lodged a private complaint implicating her co-wife Mst. Faizan Bibi, Nawaz brother of Mst. Faizan and Mukhtar cousin of said Faizan Bibi and Muhammad Siddique (appellant) instead of Muhammad Yasin, Sher Muhammad and Allah Wasaya alias Wassu co- accused nominated by the complainant. It is noteworthy that the said private complaint was rejected outright by the trial Court. Lodging of the private complaint by Mst. Irshad Bibi injured (P.W.11) is understandable. Admittedly Muhammad Yasin co-accused (since acquitted) is real brother of Mst. Irshad. Simultaneously Allah Wasaya and Sher Muhammad co-accused (both acquitted are also related to her. It is understandable that by filing the private complaint she made an attempt to save her real brother and relatives and instead implicated her co-wife Mst. Faizan Bibi along with her real brother and cousin perhaps due to a bit natural rivalry between co-wives.
However fact remains that she did not exonerate Muhammad Siddique (appellant) as actual assailant at any stage. Substitution of co-accused by Mst Irshad Bibi (P.W. 11) in such circumstances is not fatal to her credibility regarding arraignment of Muhammad. Siddique appellant. For this reason her testimony cannot be rendered as doubtful following the golden principle of "separating the grain from the chaff". Needless to mention that doctrine of "falsus in uno falsus in omnibus" is not followed in criminal justice system being practised in our country. Reliance be made on Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758). Therefore argument of the learned counsel for the appellant is devoid of any force and repelled accordingly.
22. Another argument of learned counsel for the appellant that the P.Ws. Being inter se related are interested witnesses is also devoid of force. An 'interested witness' is one who has a motive to falsely implicate the accused due to some grudge, partisan or animosity. It is noteworthy that the defence side has not suggested any such reason of his false implication during cross-examination upon the P.Ws. Therefore, this argument of learned counsel for the appellant is also without any substance and of no avail. Reliance is made upon Ashfaq Ahmad v. The State (2007 SCM R 641).
23. It is also argued with full force by learned counsel for the appellant that motive as indicated by the complainant that Muhammad Siddique appellant had illicit relations with Mst. Irshad Bibi injured (P.W.11) and was unhappy on her return to the house of her husband Ghulam .Hussain (deceased) is not established on the record. Although Muhammad Akram complainant (P.W.8) and Ghulam Ali (P.W.9) have reiterated the above said motive in their examination-in-chief, however the same cannot be termed as concrete evidence to prove it. It is important to note that inadequacy, weakness or failure to prove the motive by the prosecution remains immaterial to extend any benefit to the murderer with regard to non-awarding of normal penalty of death or to reduce the sentence of capital punishment of death to lesser punishment especially when his arraignment has been fully established with confidence inspiring and trustworthy ocular account corroborated by medical evidence and recoveries. Therefore, this argument of the learned counsel for the appellant is also devoid of force. Reliance be made upon Mumraiz v. The State (2011 SCM R 1153).
24. Nutshell of the above discussion is that prosecution in this case has successfully brought the guilt home to the appellant Muhammad Siddique with the help of trustworthy eye-witnesses who have furnished reasonable explanation of their presence at the time and place of occurrence including injured P.W. Mst. Irshad Bibi corroborated by medical evidence and recoveries. There is no misreading or non-reading of material evidence available on record. Therefore, charges of wilful murder of Ghulam Hussain and Mst. Nasira Bibi as well as murderous assault upon Mst. Irshad Bibi injured (P.W.11) by causing fire-arm injuries are proved to the hilt against the appellant Muhammad Siddique beyond any reasonable doubt. Learned trial Court therefore has rightly convicted the appellant in the offences under sections 302(b)/324/449, P.P.C. Simultaneously in the absence of any extenuating/mitigating circumstances appellant's complicity with regard to double murder as well as murderous assault upon injured P.W. Mst. Irshad Bibi does not call for any lenient view to reduce the normal penalty of death and other sentences awarded by the learned trial Court in the circumstances of this case.
25. For the above discussion and reasons, convictions and sentences awarded to the appellant are maintained and the appeal is dismissed. Death sentences are confirmed and Murder Reference is answered in positive.
Appeal dismissed.
2013 P Cr. L .1 553 [Sindh] Before Abdul Rasool Memon and Riazat Ali Sahar, JJ MANTHAR ALI---Petitioner versus STATION HOUSE OFFICER and 3 others---Respondents Constitutional Petition No,D-666 of 2012, decided on 18th July, 2012.
(a) Criminal Procedure Code (V of 1898)--- ----Ss.154 & 157---Police Rules, 1934, Ch. XXIV, Rr.
24.4 & Constitution of Pakistan, Art. 199-Constitutional petition-- Registration of F.LR. For cross-versions- Scope-Station House Officer (SHO)/respondent conducted investigation into the incident and refused to register F.LR. For the version advanced by the complainant (petitioner) on the grounds that in respect of the same incident proposed accused party had recorded an F.LR., and complainant wanted to register a case falsely to pressurize the proposed accused party---Contentions of complainant were that opinion of SHO before lodging of F.I.R. And conducting investigation was beyond the scope of S.154, Cr.P.C.; that investigation was the function of the investigation officer and not the SHO, and that counter-version of complainant could be recorded and investigated in accordance with law-Validity-Once complainant conveyed information to the SHO regarding commission of cognizable offence, the SHO was duty bound to act in accordance with law--Proposed accused had already registered a case against the complainant party and SHO had stated that no such incident as alleged by the complainant had taken place--SHO, in such circumstances, was competent to invoke provisions of Rules 24.4 and 24.7 of Chapter XXIV of Police Rules,. 1934 and S.157(b), Cr.P.C.---Constitutional petition was allowed, SHO was directed to record statement of complainant and from statement so recorded if a cognizable offence was made out, then to record the same in terms of 5.154, Cr.P.C. [pp. 556, 557] A & B Dr. Inayatullah Khilji and 9 others v. 1st Additional District and Sessions Judge (East) Karachi and 2 others 2007 PCr.LJ 909 ref.
(b) Criminal Procedure Code (V of 1898)--- ----S. 54---Arrest of accused without warrant--Scope---"Reasonable suspicion"---Connotation-- -Word "reasonable suspicion" used in S.54, Cr.P.C., did not mean a mere vague surmise, but a bona fide belief on part of the police that an offence had been committed or was about to be committed-Such belief had to be founded on some definite averments tending to throw suspicion on the person arrested. [p. 557] C Athar Abbas Solangi for Petitioner.
Ameer Ahmed Narejo, State counsel along with SIP Sadoro Khan Lashari, S.H.O. Of Police Station Sanjar Bhatti for Respondents.
Date of hearing: 17th July, 2012.
' RIAZAT ALI SAHAR, J.---The petitioner has filed this Constitutional Petition praying therein that the S.H.O. Of Police Station Sanjar Bhatti may be directed to record the statement of the petitioner and if a cognizable offence is Made out, then the same may be incorporated in.154, Cr.P.C. Book.
2. The relevant facts giving rise to this petition are that on 22-6-2012 petitioner Manthar Ali Mugheri along with his elder brother Mumtaz and brother-in-law Muhammad Ali went to Village Gul Balm Leghari at about 5.00 p.m., to look-after the watering process of seed plantation in their land, where proposed accused Ashiq Ali, 2) Nadir Ali, 3) Zakir, 4) Sabir Ali, all sons of Muhammad Hassan, armed with rifles,. 5) Wali Muhammad son of Muhammad Ali, 6) Mashooq son of Wali Muhammad, armed with repeaters, all by caste Leghari, came there and challenged the petitioner that why they had come to the land; saying so, accused Nadir fired upon petitioner's brother Mumtaz Ali, which hit him at right side of face; proposed accused Zakir fired upon Muhammad Ali which hit him on his right leg; the other proposed accused persons also fired, which hit proposed accused Ashiq Ali, who died at the spot. Thereafter, petitioner brought the injured to Taluka Hospital, where after examining the injured was referred to CMC Hospital, Larkana. Thereafter, petitioner went to Police Station Sanjar Bhatti and approached the respondent No,1/S.H.O. Police Station Sanjar Bhatti to record his F.I.R., who refused to record the same.
3. Respondents Nos.1 and 2 filed their comments. The respondent No,1 (S.H.O. Police Station Sanjar Bhatti) in his comments stated that in respect of the same incident proposed accused Nadir Ali son of Muhammad Hassan Leghari had recorded the FJ.R. On 22-6-2012 being Crime No,20 of 2012, under sections 302, 34, P.P.C. At Police Station Sanjar Bhatti, against Muhammad Ali son of Muhammad Hassan, Mumtaz Ali son of Taj Muhammad (brother of petitioner), Majid Ali alias Rajoo son of Mumtaz Ali, Irfan Ali son of Muhammad Ali, all by caste Leghari; regarding the murder of his brother Ashiq Ali Leghari due to dispute over the land. It is further stated by the respondent No,1 in his comments that Majid Ali and Irfan Ali were arrested; so also Muhammad Ali and Mumtaz Ali in the injured condition. After investigation the accused have been challaned in the Court of law and the S.H.O has stated that accused Muhammad Ali and Mumtaz Ali received injuries in their own firing. Moreover, the respondents Nos.1 and 2 in their statements have also stated that in order to counter-blast to the case registered against present petitioner party by the proposed accused; this case is being registered falsely to pressurize the proposed accused.
4. Learned counsel for the petitioner contended that the opinion of the S.H.O before lodging report and conducting the investigation, is beyond the scope of section 154, Cr.P.C. And it is the function of the Investigating Officer, not S.H.O. He further added that the counter-version of the petitioner be recorded and investigated in accordance with law.
5. The learned State Counsel has contended that the petitioner has equally efficacious remedy before the Justice of Peace under sections 22(A) and (B), Cr.P.C. And before the Magistrate under section 156(3), Cr.P.C., or by filing Direct Complaint under section 200, Cr.P.C. He further contended that the police has investigated the matter in Crime No,20 of 2012 lodged by the proposed accused and during the investigation of said case it has come on record that Muhammad Ali and Mumtaz Ali received the injuries which are self-suffered, which come:within the ambit of section 211, P.P.C. He further added that the investigating officer had recorded his opinion in the F.I.R. Lodged by the proposed accused being Crime No,20 of 2012.
6. We have given careful consideration to the arguments advanced at bar and have perused the record.
7. No doubt, once the petitioner conveyed the information to the S.H.O regarding commission of a cognizable offence, the S.H.O was duty bound to act in accordance with the law. Still the fact remains that the proposed accused have already registered murder case against the applicant/petitioner party and S.H.O has stated in his statement that no such incident, as alleged by the petitioner, has taken place. In such situation, the S.H.O is competent to invoke the provisions of Rules 24.4 and 24.7 of Chapter XXIV of the Police Rules, 1934 and also the S.H.O can invoke the provisions of section 157(b), Cr.P.C. The provision of section 157, Cr.P.C. Provides mechanism of check and balance so that just fair and impartial investigation is conducted.
8. Apart from above, it has been observed that now-a-days some of the people used to file applications under section 22-A and B, Cr.P.C. Frequently before the Justice of .Peace and in Constitutional Petitions to counter the allegations against them in the cases already registered. It is worthwhile to mention here that while dealing with the similar point in hand and looking to the frequent filing of applications in terms of section 22-A and B, Cr.P.C., a Division Bench of this Court in a case reported as Dr. Inayatullah Khilji and 9 others v. 1st Additional District and Sessions Judge
(East) Karachi and 2 others, 2007 PCr.LJ 909 held as under:-- "7. Indeed, we are conscious of the fact that upon the conferment of powers under section 22-A(6), applications for quashment of F.I.Rs, have been multiplying and parties expect a Court to adjudicate upon the truth or otherwise of the allegations even without investigation process having been completed. Apparently, it happens on account of the apprehension of arrest that they face upon registration of the F.I.Rs, containing allegations, which may be false. We need to reiterate that truth or falsehood of the allegations could only be determined during or after investigation.
However, it needs to be made clear that though the police is required to investigate every allegation of commission of a cognizable offence, a person named as an accused cannot be arrested unless some tangible material becomes available, which can cause a reasonable suspicion of his having committed the offence."
9. In view of the above discussion and it is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, considering all the aspects of the case, as above, as well as the dictum laid down in the case of Dr. Inayatullah Khilji (supra), the S.H.O of Police Station Sanjar Bhatti is directed to record the statement of the petitioner and from the statement so recorded if a cognizable offence is made out, enter it into 154, Cr.P.C. Book and to act in accordance with law. However, it needs to be made clear that any person named as an accused may not be arrested unless reasonable suspicion exists of his having so concerned; during course of investigation; as prescribed in section 54, Cr.P.C. The words "reasonable suspicion" in section 54, Cr.P.C. Do not mean a mere vague surmise, but a bona fide belief on the part of the police officer that an offence has been committed or is about to be committed. Such belief has to be founded on some definite averments tending to throw suspicion on the person arrested; it amounts to availability of some tangible evidence with prosecution.