' MALIK HAQ NAWAZ, J.---The convict/appellant stood trial on the basis of FIR No, 157/2016 under section 302, P.P.C. Registered at Police Station Airport Gilgit on 31.07.2010 on a written application of complainant Muhammad Shah.
2. The heart rendering story of this tragic incident is that on 30.07.2010 one Muhammad Shah a real brother of deceased lady (wife of appellant) lodged a report in Police Station Airport Gilgit stating therein that on 29.07.2010 at about 2100 hours, the appellant contacted him on his cell phone and informed him that his sister along with two minors is missing since after noon. On receipt of this information the complainant set out for search of his sister and the minors but all in vain. Suddenly the complainant recalled that he has seen the appellant in a land cruiser while his sister and her children were boarded in the vehicle. The complainant also enquired from the neighbours who told him that his sister has asked some medicine for prevention of vomiting as her husband was taking her and her children to Attaabad lake on a pleasure trip. The complainant further stated in the application that the appellant wanted to have a second marriage and was always teasing and inflicting violence on his sister. The complainant suspected that the accused/ appellant might have murdered her sister, her mentally retarded son Fahim aged about 06 years and one infant daughter Muskan aged about 09 months. The appellant/convict was arrested and he confessed the throwing of the victims in Gilgit River on the day of occurrence.
3. After completion of necessary investigation the accused was found involved in the case and he was sent for trial. The learned Judicial Magistrate sent the case to the Court of learned Sessions Judge Gilgit, who took the cognizance of the case on 15.09.2010. Charge of accused was framed on 03.11.2010, to which the accused pleaded not guilty and claimed trial. In order to prove the case prosecution examined 9 PWs and closed its case on 22.05.2016. The statement of accused under section 342, Cr.P.C., was recorded on 11.06.2012. However, accused did not opt to get his statement recorded under section 340(2), Cr.P.C., nor he opted to produce any defense witnesses in disproof of charges.
4. After hearing the parties the learned trial Court announced the verdict of conviction against the appellant on 30.06.2012 and awarded him life imprisonment and a fine of Rs, 3,50,0000/- (Thirty, five lac) under section 544-A, Cr.P.C., to be paid to the legal heirs of the deceased. The relevant para of the judgment is reproduced as under:- "In view of above discussion, I hold that prosecution has proved guilt of accused and I convict accused. The occurrence is of murder of three persons. Accused convicted for murder of three deceased persons and sentenced to life imprisonment for three times for murder of the three deceased of occurrence. Convict also fined for payment of Rs, 3500,000/- payable to legal heirs of deceased in case of recovery. On completion of sentenced period of three times life imprisonment, convict be questioned for payment of fined amount. And in case convict opted not to make payment of fined amount, convict to further undergo rigorous imprisonment for seven years after completion of life imprisonment for three times. The period of sentence of three times life, imprisonment to run consecutively. File after due completion be consigned to record."
5. Being aggrieved from the judgment of the learned trial Court the appellant approached this Court by filing an appeal under section 410, Cr.P.C., challenging his conviction.
6. Mr. Muhammad Umar Farooq the learned counsel for the appellant submitted at bar that the case is false and the appellant has been made a scapegoat just to fill in the blank. The learned defense counsel stated with vehemence that there are material contradictions in the statements of almost all the PWs and all these statements are full of doubts and instead of corroborating each other, these are mutually destructive. The last seen evidence also does not provide any strength to the prosecution story rather it negates whole of the prosecution version. The wife of accused per learned counsel committed suicide but her suicidal death has been turned into murder because of connivance of local police and the complainant. The learned counsel stated further that the judgment of learned trial Court is a classical example of misinterpretation of law and facts and the judgments have been passed in utter disregard of the principled governing dispensation of criminal justice. The benefit of doubts has been extended to the prosecution instead of defense.
The learned counsel mainly and repeatedly laid much stress on the statement of PW-2 Aziz Ahmad, who per learned counsel was a natural independent witness and the said witness stated that a black colour vehicle crossed the steel bridge but he could not identify the driver at the time of crossing the vehicle has been mentioned at 03:00 p.m., which negates the prosecution case from its inception. The vehicle used in commission of offence was not taken into possession, which is a major lacuna in the prosecution case and the appellant be acquitted from the charges. The learned counsel for the appellant, when asked to cite law cases, to support his contention, he stated at bar that he will shortly submit the law cases. We, waited over a period of one month but the learned defense counsel did not turn up again and shifted the burden to the Court and left the fate of his client be decided by us and we remained completely un-assisted in this regard.
7. On the other hand the learned Dy. A.-G., opposed the appeal with full force and submitted that it is not a case of any longer debate as the appellant threw his wife and two minor kids into Gilgit river on 29.07.2010, when it was raining on the fateful day and even in those days the flow of river was on its peak and it was the reason that dead bodies of deceased were not recovered. The learned Dy. A.-G., further stated that the appellant was maintaining illicit liaison with his real niece, who when called in Police Station in connection with investigation of the instant case committed suicide. Per learned Dy. A.-G., the appellant after getting rid from his wife and children wanted to go to down country with his real niece in pursuit of illicit liaison and the tickets of PIA were purchased by the appellant in his name and in the name of his niece Mst. Tasleem Akhtar and were confirmed for 12 August, 2010 which were taken into possession by the I.O. During investigation. The learned Dy.
A.-G., stated that there is complete coherence in the statements of the PWs, who are natural and independent witnesses and not a single suggestion has been put to any of the PWs which shows their biasness or any ill will to falsely implicate the appellant in the case of a capital charge as the parties are closely related and there is no reason for false implication. Further not a single question was asked from any PW that either deceased committed suicide nor this plea was raised at any stage by the appellant. The contradictions are minor in nature and may be the result of inefficiency or some dishonest investigation by the investigating officer, but the evidence on record is sufficient to bring home the guilt of the accused, he should not be acquitted merely on some technicalities if these at all exist in the case.
7(sic.) We have heard both the learned counsel of the parties and scanned the record with their able and valuable assistance. The story of the case is a heart rendering story, where three valuable lives were vanished not by any other but by own husband of deceased lady and father of two minor children. There is abundant evidence that the wife and children of appellant were living with him and as evident from the contents of FIR Ex.PW.6/A, the appellant was interested for second marriage and he was inflicting torture and physical violence upon his wife. Later on it divulged during the investigation that appellant was maintaining illicit liaison with his real niece, who was living in his house in connection with her study. The appellant was considering his wife as a hurdle in accomplishment of his desire of second marriage. The satanic designs of the appellant could not be expressed in words as real niece with whom he was maintaining extra marital relations, was within the prohibited degree and under injunction of Islam, he was not permitted to marry a daughter of her real sister but he never cared for it. The statements of PWs, Muhammad Shah, PW- 4 Mst. Zarina daughter of Sher Nadir, who are neighbours of the appellant/victim lady and PW-5 B Ali Nazar, PW-6 Muhammad Shah and PW-7 are natural witnesses and have supported each other.
The story of illicit liaison of appellant and his real niece Mst. Tasleem Akhtar finds mentioned in the final police report submitted in Court under section 173, Cr.P.C., and needless to mention here that as held in PLD 1988 Supreme Court (AUK) 148 that final police report is construed to be the prosecution case. The relevant C citation which is at page 148 is reproduced as under:-
(c) Criminal trial----First Information Report---Version in statements of the eye-witnesses is not to be considered as prosecution case---Prosecution's case at least at the initial stage is reflected in the final police report and this very report is construed to be the prosecution case for any purpose.
8. P.W.9 DSP Hafiz-ur-Rahman confirmed the recovery of PIA tickets which were recovered on the pointation of appellant and this PW further confirmed that, after arrest of present appellant when he contacted Incharge of police check post for association of Mst. Tasleem Akhtar in the investigation, he was informed that she has committed suicide and the report of her suicide dated 03.08.2010 are on judicial file, which were not challenged by the defence. Very strangely the story of illicit liaison of appellant and Mst. Tasleem Akhtar was neither challenged nor shattered and no explanation was offered by the accused as to why he purchased tickets of PIA for him and Mst.
Tasleem Akhtar. PW.4 Mst. Zarina stated in her Court statement that on the fateful day deceased lady Mst. Naik Parveen wife of appellant at about 11:00 a.m. Came to her house and asked for some medicine to prevent vomiting and told her that her husband was taking her and her children to Attaabad lake. The statement of this P.W. Which is natural and reliable was not challenged by the defence. Likewise PW-5 also deposed that the wife of appellant came to his house for obtaining some medicine as her husband was taking her and her children to Attaabad lake. Similar statement has been made by P.W.6 Muhammad Shah. All of above statements are natural, trustworthy and confidence inspiring and despite lengthy cross examination nothing could be extracted by defence in favour of the appellant.
9. A minute perusal of these statements depicts a clear picture of the tragic incident. These statements have not been shattered in any manner to reap a benefit in favour of accused. A bald assertion of the learned counsel that the victim lady committed suicide cannot come for rescue of the appellant. Under Article 121 of Qanun-e-Shahadat, 1984 accused was obliged to discharge the burden and the events regarding F missing of his wife and children and also to lay foundation regarding commission of suicide by his wife, if so. Article 121 of Qanun-eShahadat is reproduced as under:-
121. Burden of proving that case of accused comes within exception. When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Neither it was suggested to any witness and nor the accused raised this plea in his statement under section 342, Cr.P.C., or opted to examine himself under section 340(2), Cr.P.C. The principle followed by the Courts in criminal administration of justice is to evaluate the available evidence as a whole notwithstanding the facts whether prosecution will get the benefit or the accused and Court must consider the cumulative effect of total evidence while assessing its evidentiary value and pieces of evidence will not be read in isolation. The main thrust of the learned counsel, that the vehicle which was a piece of incriminatory evidence was not taken into possession by the investigation officer, which has demolished the prosecution case, does not advance the case of defense as it was a technical lapse on the part of investigating officer and technicalities should be overlooked without causing miscarriage of justice and in such like cases the approach of the Courts should be dynamic and not static and if after evaluation of evidence Court comes to the conclusion and mind of Court is clear that the accused has committed the offence, it should record the conviction though there might have been some technical lapses on the part of investigation agency. The irregularities and even the illegalities do not demolish the prosecution case. Needless to mention here that there is recession in the police investigations and the skills which were available in the past are not available in these days which though alarming but complainant cannot be penalized for just minor discrepancies committed by the I.Os. During investigation. The existence of last seen evidence, coupled with the statement of PW-7 Karimullah are sufficient incriminating pieces of evidence, which connects the appellant/convict with the commission of this barbaric and gruesome murder. We are mindful of the fact that the evidence of last seen is not sacrosanct and can easily be fabricated and the same is invariably viewed with skepticism unless it is harmonious with the facts trustfully established in the light of available evidence on record. As already discussed above Courts are required to see the cases on the basis of the entire scenario which develop in the shape of story or a version and if there is an overall coherence between the factum of forming the base of a case, then the minor discrepancies can be overlooked as they are considered of no consequences and such type of hardened criminal cannot be let loose on the society.
8. The appellant was served with a notice under sections 439(1) and 6, Cr.P.C., for enhancement of his sentence from life to death as the judgment of the trial Court was not found in conformity with the provisions of section 367(5), Cr.P.C., for imposing lesser penalty of imprisonment for life instead of death. The notice was accepted by the learned counsel for the appellant and at the time of arguments, he was also put on guard to address the Court on the quantum of sentence but the learned counsel remained consistent that in his view no case was made against the appellant, therefore, the learned counsel did not opt to address on the quantum of sentence. It has been held by the Hon'ble Supreme Court of Pakistan in PLD 1976 SC 452, that when offence of murder is proved the normal penalty of death should be awarded. The same is reproduced as under:- S. 302---[Murder casej.... Courts, responsibility of---Inhibition or hesitancy on part of trial Courts in awarding normal penalty of death---Marked tendency to find labored pretext to alter death sentence to life imprisonment---Sanctity of human life---Pros and cons of doctrine---Necessity of awarding deterrent punishment---Effect of marked propensity to avoid death penalty or to allow commutation in appeal followed by frequent remissions of sentences---Factors indirectly contributing to incidence of heinous crime---Responsibility of Courts.---[sentence].
' In an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. The impression is unavoidable that there is often a marked tendency in the High Courts to find a labored pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted FIRs, the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trials or appeals all combine to help out the murderers of whom only a small propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the ' sting of deterrence, thus indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape their share of responsibility."
9. As a sequel of above discussions we are convinced that prosecution has successfully proved its case against the appellant to the hilt and if there is any lapse on the part of investigating agency, the complainant cannot be penalized for no fault of his own. In this context a reference could be made to 2014 PCr.LJ 885 wherein it has been held:- .... Fault of prosecution or mistake of Investigating OfficerEffect-Complainant, should not suffer for the fault of prosecution or mistake of the Investigating Officer in properly noting down the facts, while in discharge of his duties and functions---If such discrepancy was allowed to supersede the direct ocular account, it would result in allowing the culprits safe passage by managing/arranging such discrepancies, which could well be claimed to be protected by prosecution to be bona fide mistake/errors."
' The evidence of last seen in the instant case is also of great importance, which also provides strong corroboration to the story of prosecution. The evidence of last seen have been furnished by PW-1 Sultan Alam, which has not been shattered by the defence nor any earthly reasons have been shown on the part of prosecution for false implication of the appellant. We sought wisdom from a judgment of Supreme Court of Pakistan reported in 1998 SCM R 2669, which is reproduced as under:-
(a) Penal Code (XLV of 1860)--- ---Ss. 302 & 364-A---Last seen evidence---Appreciation of evidence---Principles---Last seen evidence is not sufficient for establishing the guilt where it requires making conjectures to connect the accused with the crime or where there are reasonable possibilities that someone else might have committed the offence, but if the chain of the facts is such that no reasonable inference can be drawn except that the accused has committed the offence after the victim has been last seen in his company, then, in the absence of a reasonable explanation from the accused, such evidence can be relied upon for convicting him for the offence.
(b) Penal Code (XLV of 1860)- ----Ss. 302 & 364-A---Appraisal of evidence---Conviction despite technical lapses---Principles- --Approach of the Court, while appraising evidence, should be dynamic and not static---Court should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction, though there knight have been some technical lapses on the part of Investigating Agency or prosecution, provided the same have not prejudiced the accused in the fair trial.
Furthermore, in the instant case the defence could not bring anything on record, which could justify that these witnesses were either inimical or biased and falsely roped the appellant in the crime.
Almost all the witnesses have categorically named the appellant during investigation but also during course of their deposition in the trial Court, thus the stance of the defence counsel that these witnesses are interested does not hold the field.
10. For the above stated reasons the sentence of appellant is enhanced from life to death on three Counts and he shall be hanged by his neck till he is dead. The fine imposed under section 544-A, Cr.P.C., is also maintained and the amount of fine shall be recovered as an arrear of land revenue.
11. With the above observations the appeal is disposed off accordingly and Criminal Appeal No, 25/12 filed by the appellant is hereby dismissed.