RAJA SHAHID MEHMOOD ABBASI, J: - Amir Shahzad, appellant was convicted for an offence under Section 302(b) PPC by the learned Sessions Judge, Attock vide judgment, dated 9th June of 2011 and was sentenced to death and to pay an amount of Rs.3,00,000/- to the heirs of deceased by way of compensation under Section 544-A Cr.P.C. or in default of payment thereof to undergo S.I. for six months. Amir Shehzad, appellant (convict) has challenged his conviction and sentence before this Court through Criminal Appeal No. 42-J of 2011 which has been heard by us alongwith Murder Reference No. 49 of 2011 seeking confirmation of the sentence of death passed against him.
We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution case as unfolded in the FIR (Ex.PA/1), registered on the statement (Ex.PA) of complainant, Mst. Humaira Bibi (PW.9), which she made before Muhammad Azram, SI (PW.11), on 12-03-2011, at 8.20 pm, near Railway Quarters, Attock is that she was married to Umar Baloach (PW.10) about four years ago and out of the wedlock one son namely Umair (deceased) was born; that presently she was living with him in Mohallah Madina Masjid, Attock City, in a rented house; that besides her husband, her father-in-law Fida Hussain, mother-in-law Mst. Zeenat Bibi and the brother of her husband namely, Amir Shahzad (convict) also resided with them; that Amir Shahzad (convict) was unmarried. She further stated that in the evening time when she taking meal, the said Amir Shehzad, appellant/accused, took alongwith her son Muhammad Umair (deceased); that after some time, due to suspicion, she accompanied by her husband went out in search of her son Umair (deceased) and that during that process, at 7.15 pm, they reached near Railway Quarters, where she heard the cries of her son, due to which they were rushed to the said place and found that Amir Shahzad, appellant/accused was slaughtering her son with the help of a Churri while making him lay on the ground; they raised hue and cry, whereupon the present appellant/accused fled away from the spot while brandishing the Churri in his hand and that she found throat of her son had been cut from left side.
Motive behind the occurrence was that Amir Shahzad, appellant/accused used to quarrel with husband of the complainant off and on and due to the said grudge, he murdered her innocent baby.
3. After receiving the information of said unfortunate occurrence, Muhammad Azram, SI/I.O (PW.11) reached at the spot where complainant Mst. Humaira Bib (PW.9) made statement Ex.PA, before him; he recorded statement of Mst. Humaira Bibi, complainant (PW.9). After recording the FIR Muhammad Azram, (PW.11) took up the investigation of this case, went to the place of occurrence, inspected the same, prepared an injury statement as well as inquest report Ex.PG/1 regarding the dead body and sent the same to mortuary for autopsy; he collected blood-stained earth from the place of occurrence, prepared rough site plan Ex.PJ thereof and recorded the statements of the witnesses. He then searched for the accused and arrested him on the same night from near Railway Station, Attock. On 14-03-2011, during interrogation, appellant/accused made disclosure and then while being in custody, led to the northwest corner of Railway Grid Station, wherefrom he got recovered Churri, P.4, lying in the "Thore" plants. The said Churri was taken into possession by the Investigating Officer vide seizure memo Ex.PE.
4. After thorough investigation report u/s 173 Cr.P.C. was submitted in the Court. At the commencement of the trial a charge under Section 302 PPC was framed by the learned trial court against the appellant/accused to which he pleaded not guilty and claimed the trial.
5. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. Mst. Humaira Bibi (PW.9), and Umar Baloach (PW.10) furnished the ocular account of the incident in question and also stated about the motive.
Post mortem examination of the death body of Muhammad Umair (deceased) was conducted by Doctor Muhammad Tanveer (PW.7). He found the following injuries on the dead body:- "1. an incised cut wound at left side of neck which was 7cm x 3cm from the left ear lobe to below the chin. Major blood vessels on left side of neck cut and muscle of the neck at left side cut".
In the opinion of the doctor the cause of death was due to massive haemorrhage because of major blood vessels of left side of the neck cut. The injury was ante-mortem and sufficient to cause death in ordinary course of nature. The probable time that elapsed between injuries and death was 15 to 20 minutes and that between death and post-mortem was about one to two hours.
Muhammad Azram, SI/I.O (PW.11) deposed about the recovery of weapon of offence from the appellant and also stated about various steps taken by him during the investigation of the case.
The remaining evidence produced by the prosecution was more or less of formal nature.
6. In this statement recorded under Section 342, Cr.P.C. Amir Shahzad, appellant/accused denied and controverted all the allegations of the fact leveled against him by the prosecution and professed his innocence. He also maintained that he had been falsely involved in this case which was in fact one of a blind murder. However, he opted not to make any statement on oath under Section 340(2), Cr.P.C. and also did not produce any witness in his defence.
7. Upon completion of the trial, the learned trial court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, convicted and sentenced him as mentioned above, hence, instant appeal before this Court.
8. Learned counsel for the appellant contends that it is an unseen occurrence and the appellant has been roped in the case on account of misplaced and misconceived suspicion; that both the witnesses gave dynamically opposite view on all salient features of the case and their statements are contrary; that one cannot be believed without excluding the other and vice-versa; that on the prosecution's own showing in the wake of strained relations, it is extremely improbable and unnatural that the child would have been handed over to the appellant to slaughter so conveniently; that the case of the prosecution and depositions made by the witnesses are speaking of their inconsistency about the normal human conduct and in order to qualify his bonds the learned counsel referred to various portions of their statements; that very fact that Mst.
Humaira Bibi (PW.9) opted to be the complainant admits a reasonable possibility that her husband was not present at the spot otherwise the male oriented exercise would have been taken by the latter and in this backdrop possibility cannot be ruled out that Mst. Humaira Bibi (PW.9) was a stage managed witness at a subsequent stage; that duration of injury and death and death and postmortem are also inconsistent set up in the case; that bottom-line stressed by learned counsel for the appellant is that the prosecution has miserably failed to bring him the charge against the appellant and he is entitled to clean acquittal. Alternatively learned counsel has argued that the sentence of the appellant is excessive and hardened as motive set up in the crime report is not established.
9. Contrarily learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and instead prayed for the confirmation of the death penalty on the ground that the conduct shown by the appellant is not only brutal but is barbaric one as he has not spared is real nephew; that the prosecution has tried to bring home the charge against the appellant of no other but his real nephew, hence, hypothetic innocence of the appellant stands excluded.
10. We have heard learned counsel for the parties and have gone through the record with their assistance. After hearing the learned counsel for the parties, we have felt no hesitation in concluding that the prosecution has indeed succeeded in proving its case against the appellant beyond reasonable doubt. The alleged unfortunate occurrence took place on 12-03-2011 at 7.15 pm whereby matter was reported to the police at 8.5 pm and the crime report was lodged at 8.20 pm, which shows that the FIR had been lodged with sufficient promptitude wherein appellant Amir Shahzad had been nominated as the sole perpetrator of the offence in question. The complainant of the case is Mst. Humaira Bibi (PW.9), who is real mother of Umair (deceased), aged two years whereas Umar Baloach, (PW.10) was not only the father of Umair Baloach (deceased) but he was also real brother of Amir Shehzad, appellant. The presence of both the eye witnesses was not unnatural or unusual. The complainant Humaira Bibi (PW.9) categorically stated that she was married to Umar Baloach (PW.10) about four years ago and presently she was putting up with him, in a rented house situated at Madina Masjid, Attock City. That besides her husband her father-in- law Fida Hussain, mother-in-law Mst. Zeenat Bibi and brother of her husband namely Amir Shahzad, appellant also resided with them. That Amir Shahzad, appellant used to quarrel with her husband off and on. She further stated that in the evening of the fateful day, when she was taking meal, the said Amir Shahzad, appellant/accused took alongwith her son Muhammad Umair (deceased), due to suspicion, she accompanied by her husband went out in search of her son Umair (deceased). At about 7.15 pm, when they reached near Railway Quarters, where she heard the cries of her son, due to which they were attracted to the place and found that Amir Shahzad, appellant/accused was slaughtering her son with the help of a Churri while making him lay on the ground. On their hue and cry, the appellant/accused fled away from the spot while brandishing the Churri in his hand and she found throat of her son had been cut from left side. As the complainant was real mother of the ill-fated child and due to the narrated act of the appellant/accused her suspicion was natural. The search of the poor lady for her son at the relevant time was not unnatural or unusual. The other eye witness of the occurrence Umar Baloach (PW.10) real father of the child also narrated on the same lines. Due to their close and sensitive relation with the appellant/accused, they were not likely to implicate the appellant falsely in a case involving the murder of their son. We have also noticed that both the eye witnesses produced by the prosecution were subjected to lengthy cross examination but nothing favourable to the appellant could be extracted. Both the said eye witnesses/parents are consistent and straight forward on all the salient details of the prosecution case. Their renditions are in consonance with medical evidence; the learned trial judge rightly placed implicit reliance thereon as every hypothesis of appellant's innocence stands excluded. In view of this state of evidence produced by the prosecution, we are confident enough to observe here that the prosecution has proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confident inspiring eye witnesses account.
11. We have also given our anxious consideration to the question of sentence to be passed against the appellant. In this context, we have noticed that the appellant had mercilessly butchered an innocent child by slaughtering his neck. We have also noticed in this regard that the deceased child was real nephew (brother's son) of the appellant. Even otherwise blood relations especially helpless parents would not direct their finger at innocents with regard to allegations because such was a rare phenomenon and in normal circumstances said theory of substitution by blood relatives at the cost of real culprits was ruled out. Reliance is placed upon case law titled Zahoor Ahmad vs. The State (2007 SCM R 1519).
We have also noticed despite blood relationships between the parties, the appellant has not so far been given by his own real brother. This shows that the desperate act of the appellant/accused gave irreparable loss to the complainant party. We have also failed to agree with the arguments of the learned counsel for the appellant that prosecution has failed to prove the motive set up in this case and there are some mitigation calling for lesser penalty. The motive in this case was stated by the complainant, who is real mother of the deceased and the other eye witness, who were in best position to state about the same due to their close relationship with the deceased and the appellant. As regards to the defence of the appellant/accused that he used to dance on wedding ceremonies with golden music dance party Marrir Chowk, Rawalpindi and the eye witnesses i.e. parents of the baby (deceased) offered him for pardon subject to his assurance to abandon his profession is a bald defence and criminal cases involving a capital charge cannot be decided on mere hypothetical possibilities which are otherwise devoid of any proof or substance. Thus, finding no mitigating circumstances in this case warranting reduction of the sentence passed against the appellant/accused by the learned trial court. The same is hereby upheld and affirmed.
12. For the foregoing reasons, Criminal Appeal No. 42-J of 2011 filed by Amir Shahzad, appellant is dismissed, his conviction for an offence under Section 302 (b) PPC is upheld and the sentence of death as well as the order of payment of compensation passed against him by the learned trial court is maintained.
13. As the sentence of death passed by the learned trial court against Amir Shahzad, appellant has been confirmed by us, therefore, Murder Reference No. 49 of 2011 is hereby answered in the affirmative.