' GHULAM QADIR LEGHARI, J.-- -Appellant Muhammad Ismail was tried along with Muhammad Ibrahim and Muhammad Haris (since acquitted) by - learned III Additional Sessions Judge, Karachi (Central) for offences under Sections 302/452/506-B/34, P. P.0 . Registered at Police Station_ Super Market, Karachi. Appellant was found guilty. By Judgment dated 30.04.2014 accused Muhammad Ismail was convicted under Section 302(b), P.P.C. And sentenced to death as Ta'zir. He was ordered to pay compensation of Rs,100,000/- to, be paid to the legal heirs of the deceased. In case of default in payment of compensation, he was ordered to suffer S.I. For six months. Benefit , of Section 382-B, P.P.C. Was extended. Trial Court has made Reference to this Court for confirmation of death sentence. Appellant has challenged the Judgment of the trial Court. By this Single Judgment, we intend to decide the Appeal as well as Reference made by the trial Court for confirmation of death sentence.
2. Succinctly the facts of the prosecution case as depicted from the FIR No,176 of 2011 are that on 2nd August, 2011, one SIP Shan Muhammad Khokhar of Police Station Super Market, received intimation at 1445 hours from one ASI Rasheed that Mst. Nadia has sustained fire arm injuries, caused by her husband. After entering such information in the daily diary at Serial No,20 (Exh: 3-A), proceeded to pointed place, on the way received wireless message that Mst. Nadia has succumbed to injuries in Abbasi Shaheed Hospital Karachi, the said SIP went to the Hospital and completed proceedings under Section 174, Cr.P.C. And inspected the dead body, prepared inquest report. Investigation Officer issued letter to W.M.O. For ascertaining cause of death. He recorded statement of father of deceased namely Shah Alam son of Muhammad Altaf, wherein he stated that he is resident of House No,20/8, C-1, Area, Liaquatabad, Karachi. Two years ago, he got contracted the marriage of his daughter Nadia with Muhammad Ismail son of Muhammad Ibrahim (now accused), out of said wedlock one child was born. It is alleged that the accused Muhammad Ismail used to beat her on petty matters, due to which his daughter got Khula from him through Court. Two days before the occurrence, Ismail along with Haris came to house of complainant in his absence and extended threats. It is further alleged that on 2nd August, 2011, at about 2:20 PM Muhammad Ismail, Muhammad Haris, Abdul Qudoos along with their father Muhammad Ibrahim went to his house, at that time PW-3 Muhammad Naeem Alam, Syed Nawab, daughter-in-law Razia and mother-in-law Zarina were available in the house, above named three accused were armed with weapons, entered into his house, fourth accused stood at upstairs case and while accused Muhammad Ismail after creating harassment to the family members on show of pistol, made one fire upon the head of his daughter Nadia, which hit her on right side head and she became seriously injured. The said incident was narrated to him by his son namely Naeem Alam.
Thereafter, he and his son shifted his daughter Nadia in a serious condition to Abbasi Shaheed Hospital, where she succumbed to injuries.
3. ASI Shan Muhammad inspected dead body in Abbasi Shaheed Hospital and prepared inquest report and sealed blood stained dupata/scarf of deceased in presence of mashirs. Thereafter, he handed over copy of FIR, sealed blood stained dupata/scarf to SHO Muhammad Shafiq Khan Tanoli for further investigation. Inspector Shafiq Khan Tanoli recorded statements of Naeem Alam, Syed Nawab and Mst. Razia under Section 161, Cr.P.C. He arrested accused Muhammad Ismail on 17.08.2011 and prepared such mashir nama in presence of Shah Alam and Naeem Alam. He visited the place of wardat in presence of mashirs Shah Alam and Syed Nawab and collected one empty and one live bullet from the place of wardat. Expert and he also sent blood stained dupata/scarf to Chemical Examiner for expert opinion on the conclusion of investigation. Thereafter, he submitted challan against the accused before learned Magistrate, who sent up the case to the learned Sessions Judge, Karachi (Central), where from case was transferred to IIIrd Additional Sessions Judge, Karachi Central for disposal according to law.
4. The charge was framed against all three accused vide Exh: 2, to which they pleaded not guilty and claimed trial.
5. At trial, prosecution examined ASI. Shan Muhammad (PW-1), Complainant, Shah Alam (PW-2), Naeem Alam (PW-3), Syed Nawab (PW-4) SIP Muhammad Jaffar (PW-5), Dr. Zakia (PW-6) and SIP Muhammad Jaffer was again examined, while P.W. Mst. Razia was given up by the learned D.D.P.P.
Vide statement Exh-8. Thereafter, prosecution side was closed vide statement as Exh-11.
6. The statements of accused were recorded under Section 342, Cr.P.C. Exhs. 12 to 14 respectively, wherein they denied the allegations levelled against them by the prosecution and claimed innocence and raised plea that they have been falsely implicated by the complainant party, as accused Muhammad Ismail had divorced deceased Nadia. However, neither they have examined themselves on oath under Section 340(2) Cr.P.C. Nor examined any witness in their defence.
7. Learned trial court after hearing the defence and State counsel convicted the appellant / accused and awarded him death sentence and acquitted the co-accused Muhammad Ibrahim and Mohammad Haris by extending benefit of doubt.
8. Mr. Akhtar Ali Channar , Learned counsel for the appellant/accused has contended that the Appellant is innocent and prosecution case in false . He further contented that complainant is not eye-witness of the incident, PWs namely Naeem Alam is brother of the deceased Mst. Nadia and PW Syed Nawab is brother-in-law of the deceased and they are interested witnesses. It is argued that PWs are on inimical terms with the accused as he had divorced his wife Mrs. Nadia. It is further argued that prosecution case was highly doubtful. It is contended that the trial Court had not appreciated evidence according to settled principles of law. He next contended that evidence of complainant and PWs Naeem Alam and Syed Nawab is contradictory to each other on the material points, which made the presence of eyewitnesses doubtful at the place of wardat.
Learned counsel for the appellant further contended that the accused was arrested by Inspector Shafique Khan Tanoli and had recovered unlicensed pistol from which was used in commission of offence but prosecution has failed to examine Inspector Shafique Khan Tanoli and mashir of recovery. As such it is argued that recovery of the alleged crime weapon has not been proved. He has further contended that the memo of inspection of wardat and recovery did not bear the signature of the I.O. Of the case, which creates doubt in the investigation. He further argued that on same set of evidence co-accused namely Muhammad Ibrahim and Mohammad Haris have been acquitted by trial Court and conviction of the appellant / accused on the same set of evidence is not sustainable under the law. In support of his contentions he relied upon following case law:--
(i) Haji Muhammad Ilahi and others v. Muhammad Altaf alias Tedi and others (2011 SCM R 513),
(ii) Supreme Court of Pakistan], Ajmal Khan v. The State (2012 SCM R 583)
(iii) Khizar Hayat v. The State (2011 SCM R 429 [Supreme Court of Pakistan]).
9. Conversely, Mr. Muhammad Iqbal A wan, learned A.P.G., assisted by advocate for complainant vehemently opposed the above appeal and argued that it was broad day light incident occurred in the house of Complainant. Appellant / accused fired shot injury at the head of Mst. Nadia and committed her murder in presence of PWs namely Naeem Alam and Syed Nawab, both the eye- witnesses have implicated the appellant/accused with specific role that he caused fire shot injury to the deceased and committed the murder of Nadia due to annoyance as she had obtained divorce from him through Court. Both the PWs were cross-examined by defence counsel at length but their evidence remained un-shattered. He further argued that ocular evidence is corroborated by the medical evidence. Lastly contended that appeal merits no consideration. In support of his contentions, he placed his reliance on the following case laws:--
(i) Khan alias Khani and another v. The State (2006 SCM R 1744 (c)
(ii) Wazir Gul v. The State (1975 SCM R 289).
(iii) Mushtaq alias Shaman v. The State (PLD 1995 SC 46 (E))
(iv) Miss. Najiba and another v. Sultan alias Sattar and 2 others (2001 SCM R 988)
10. We have heard learned counsel for appellant and learned A.P.G. Assisted by Advocate for Complainant and have carefully gone through the record made available before us with the assistance of learned counsel for the parties and perused the case law cited by the learned counsel for the parties.
11. The fact that the deceased namely Nadia died her unnatural death after sustaining fire shot injury is not in dispute Dr. Zakia, who conducted the postmortem of the deceased. She found following injuries on the dead body of Nadia.
1. Punctured lacerated wound of entry over right side occipital region I 1.5 cm x 1.5 cm. Margin inverted blackening positive. Double plus.
2. Puncture lacerated wound of exit 2 cm x 2 cm. Over left side lower part of zygomatic that means chick bone. Margin inverted.
' Duration of injury and death was within a few seconds. Duration of death and post mortem was within three hours back.
' In the opinion of W.M.O. Death occurred due to acute head injury leading to irreversible shock and hemorrhage and cardio respiratory failure due to fire arm injury.
12. According to the prosecution case present incident took place on 02.08.2011 in the house of the deceased Mst. Nadia. It was 02:30 p.m. Incident was witnessed by PWs Naeem Alam, Sayed Nawab, maternal grandmother and Razia, PW Naeem Alam has stated that at that time he was playing with his nephew. Accused Ismail, Haris, Ibrahim and Qudoos came in the house. Accused Ismail, Haris and Ibrahim were armed with pistols and accused Qudoos stood at staircase. As accused persons were armed with weapons, at that time PW Naeem Alam has stated that accused Ismail fired at his sister Mst. Nadia and she sustained fire arm injury at her head. He tried to apprehend accused Ismail but said accused tried to fire upon him. PWs Naeem Alam and another followed them but culprits succeeded in running away. Eyewitness Naeem Alam informed the incident to the father and took injured sister to Abbasi Shaheed Hospital. Police also arrived there. Mst. Nadia succumbed to the injuries. In his cross-examination, PW Naeem Alam has denied the suggestion that he was deposing falsely against the accused. Another eye-witness Syed Nawab deposed that incident took place on 02.08.2011 and on that day he was present at the home of complainant Shah Alam along with mother-in-law of Shah Alam namely Zarina, Razia daughter-in-law of complainant, PW Naeem Alam and Mst. Nadia, at about 2:20 p.m., accused Ismail, Ibrahim, Haris and Abdul Qudoos armed with deadly weapons forcibly entered in the house of the complainant and accused Mohammad Ismail by showing the weapons thus putting them under the fear and threat and fired upon Nadia, who received bullet injury on her head, consequently, she died, thereafter the accused persons fled away. He further deposed that on 02.08.2011 the Police inspected the place of occurrence on the pointation of complainant in his presence and secured the live bullet and one empty of 30 bore and sealed the same and prepared such memo of site inspection. In his cross-examination he has denied the suggestion that he had not seen the incident.
13. Complainant Shah Alam stated that at the time of incident he was present at his shop when his son informed him that his daughter Nadia has been murdered, while at that time Nadia was teaching the children. He went to the house and found his daughter was lying dead. He took her dead body to the hospital. Thereafter, he went to the police station and lodged FIR against accused. In his cross-examination complainant has denied the suggestion that he has falsely implicated the accused in this case.
14. ASI Shan Muhammad was examined by the prosecution as Exh: 3, who deposed that on 02.08.2011 he was posted at P.S. Super Market as SIP as duty officer and on that day at about 1445 hours he received information from ASI Rasheed that one lady namely Nadia who died by the firing of her husband namely Mohammad Ismail. He further deposed that on such information he left PS and proceeded to the place of wardat meanwhile the dead body was taken towards Abbasi Shaheed Hospital and the MLO got entry and informed that the injured lady has died, hence he went to Abbasi Shaheed Hospital and conducted proceedings under Section 174, Cr.P.C. And inspected the dead body of the deceased, thereafter be gave letter to MLO for issuance of cause of death, he recorded the statement of complainant Shah Alam under Section 154, Cr.P.C, then they returned to P.S. And the statement of the complainant under Section 154, Cr.P.C. Was incorporated into FIR and after completion of all formalities he handed over case papers and case property viz. Sealed dupata / scarf to SHO.
15. Prosecution has also examined I/O/SIP Muhammad Jaffar as Exit: 7, who has deposed that on 27.08.2011 he was posted at PS. Liaqautabad as SIP and he was handed over investigation of this crime along with complete police file and accused Muhammad Ismail was already confined in Central Prison. He dispatched empties, pistols to FSL and he had also sent/dispatched blood stained clothes sealed to Chemical examiner. He collected reports of FSL and chemical, which he produced as Exh: 7/C and 7/D respectively.
16. SIP Muhammad Jaffar has been examined as well conversant with the signature and hand writing of Inspector Shafique Khan for the reasons that Inspector was injured in a blast. He has stated that he is well conversant with the hand writing and signature of Inspector Shafiq Khan, he saw Exh 5/A, 5/B and 6/B and said that these were prepared by Inspector Shafiq Khan in his own hand writing and bear his signatures. He produced roznamcha entry No,30 dated 17.08.2011 as Exh 10/A, it is same, correct and bears signature of Inspector Shafiq Khan.
17. The first contention of the learned counsel for appellant/accused was that Complainant is father of the deceased Nadia and eye-witnesses have admitted that they are closely related to deceased and they were on inimical terms with the Appellant / accused over divorce given by appellant to his wife Nadia. The contention of the learned appellant counsel is without force as the incident had taken place in the house of the complainant at the time of incident witnesses namely Naeem Alam brother of the deceased Nadia and Syed Nawab son-in-law of Complainant were present and they had seen the incident, they are natural witnesses of the occurrence, they have given the ocular account of the occurrence, which occurred in their presence, their version is straight forward, confidence inspiring. Learned defense counsel cross-examined both eye- witnesses at length but nothing favourable to accused came on record. Mere relationship of P.Ws.
Naeem Alam and Syed Nawab with deceased Mst. Nadia is no ground to discard or disbelieve their evidence. The reliance is placed on case of Amil Shill and another v. The State reported in PLD 2004 Supreme Court 371 it is held by Hon'ble Supreme Court that trial Court was not justified to reject the eye-witness accounts furnished by the complainant and other eye-witness merely on the ground of being related inter se and interested, particularly, when the accused had failed to establish on record that the said witnesses had nourished any grudge or ill will against him and had deposed with specific motive-High Court while reversing the Judgment of acquittal passed by the trial Court had advanced cogent reason by believing the ocular testimony trustworthy which was corroborated by the medical evidence, incriminate recovery from the spot.
18. Second contention of the learned counsel for the appellant/accused was that PWs Naeem Alam and Syed Nawab Alam have contradicted each other on material points, which reflected that they were not present at the place of wardat and have not witnessed the occurrence. The contradiction highlighted by the learned appellant counsel in the statements of witnesses Naeem Alam and Syed Nawab are not so material, to destroy the intrinsic value of the evidence of witnesses. Eye- witnesses are firm on the place of incident, date and time so also manner of incident. The reliance is placed on the case of Mushtaq alias Shaman v. The State reported as PLD 1995 SC 46 (E), it is laid down by the Hon'ble Supreme Court that the variations which do not relate to the material parts of the prosecution story or the salient features of the case can be ignored. Reliance is also placed on case Khan alias Khani and another v. The State reported in 2006 SCM R 1744, (c) wherein it is held by the Hon'ble Supreme Court that minor contradictions and discrepancies between testimony of eye-witnesses and that of other prosecution witnesses in a trial do not materially affect the testimony of eyewitnesses which otherwise appeared to be true and the genuine meaning thereby the discrepancies in statements of eye-witnesses are of no importance.
19. Third contention of learned counsel for the appellant/accused is that the accused Muhammad Ismail was arrested by Inspector Shafique Khan Tanoli, who had recovered unlicensed pistol from the appellant/accused, which was allegedly used by him in the instant crime but prosecution has failed to examine Inspector Shafique Khan Tanoli as he was injured in bomb blast and mashir of recovery, hence the recovery of the alleged crime weapon has not been proved. It is a matter of record that the prosecution has failed to examine Inspector Shafique Khan Tanoli and mashir of recovery of crime weapon from the possession of accused, hence the recovery of crime weapons has not been proved against the appellant / accused by the prosecution. The contention of the learned counsel for the appellant that non-13 the recovery of crime weapon from the accused would affect the prosecution case, appears to be futile for the reasons that ocular evidence was fully corroborated by medical evidence as well as recovery of empty and live bullet, which established the happening of the incident of murder of deceased Nadia by the accused in the house of complainant so also securing the blood stained scarf of deceased Mst. Nadia. Even otherwise, non-recovery of weapons of offence by itself would not be fatal for the prosecution in view of direct evidence corroborated by medical evidence. The reliance is placed on case of Ali Imran v.The State reported in 2002 PCr.LJ 1856, wherein it is held as follows:- "It is a settled proposition of law that recovery of weapon of offence or empties is not the mandatory requirement of law but is a circumstantial piece of evidence which tends to corroborate the other pieces of evidence i,e, ocular account, motive, medical evidence and any other circumstance which may deem relevant. In the presence of direct evidence, credibility of which has withstood the test of challenge through cross-examination, the absence of this corroborative evidence would not be fatal."
20. We have carefully examined the evidence of eye-witnesses namely Naeem Alam and Syed Nawab. Both eye-witnesses have stated that on the day of incident viz. 02.08.2011 they were present in the house at that time Mst. Nadia was also present in the house, and she was teaching children of the neighboring area. At about 2:20 PM accused Ismail, Haris, Ibrahim and Quddos entered in house. Accused Ismail, Haris and Ibrahim were holding pistols and another accused Quddos was standing at stairs. Accused Muhammad Ismail fired upon Nadia and she sustained fire arm injury on her right side of head, she succumbed the injuries. The evidence of doctor shows that deceased had received fire shot over right side of her occipital region. We have minutely perused the prosecution evidence, which is based upon ocular testimony furnished by the eyewitnesses namely Naeem Alam and Syed Nawab. The evidence of eye-witnesses is straight forward and confidence inspiring they have highlighted each and every aspect of the case, presence of eye-witnesses Naeem Alain and Syed Nawab, at the place of vardat at the time of incident was natural, eye-witnesses were cross-examined by the learned defence counsel at length but their evidence remained un-shattered on material points.
21. Evidence of both the eye-witnesses, namely Naeem Alam and Nawab is quite reliable. There were the natural witnesses of the incident as incident had occurred in their house. Evidence of eye- witnesses is straightforward and confidence inspiring. Ocular evidence is corroborated by the medical evidence. Eye-witnesses have also mentioned about the motive that deceased Nadia had got divorce from Ismail, which caused him annoyance and he fired upon her. We have no reason to disbelieve such strong direct evidence against the accused Ismail.
22. To corroborate the ocular evidence, prosecution has also relied upon medical evidence, recovery of crime empties, blood stained scarf (dupata). The evidence of doctor Zakia showed that deceased Nadia sustained fire arm injury on right side of her head and she died. Mashirnama of examination of dead body and securing the blood stained scarf Ex.6/A, report of un-natural death Ex.3/C show that the deceased had sustained one fire shot injury on her head. Blood stained scarf of deceased was sent to the Chemical Examiner, the report of Chemical Examiner shows that the scarf was stained with human blood. Mashirnama of wardhat and recovery Ex.6/B reveals that one empty and one live bullet were recovered from the place of occurrence, Ballistic expert report also reveals that one empty bullet recovered from the wardhat was of 30 bore T.T. Pistol, the aforesaid pieces of circumstantial evidence, supported the prosecution case.
23. The prosecution has proved that appellant entered into the house of the complainant at that time deceased Mst. Nadia was teaching to children and the appellant/accused committed the murder of deceased Nadia by causing fire-arm injury on the right side of her head in presence of P.Ws. Naeem Alam and Syed Nawab. The act of the accused clearly reflected that he caused fire arm injury to deceased on her occipital region with intention to kill and committed her Murder. The reliance is placed on case of Wazeer Gul v. The State reported in 1975 SCM R 289 and in which it is held that two knife injuries at least one was given on the vital part of the body causing perforation of intestine and leading development of peritonitis. From the nature and seat of the injury the intention to kill would be clearly spelt out. The Hon'ble Apex Court has time and again observed that if charge of qatl-e-amd is proved against the culprit normal penalty of the death could be awarded and leniency in any case could not be shown. Reliance is placed upon the case of Miss.
Najiba and another v. Sultan alias Sattar and 2 others reported in 2001 SCM R 988, in this case, the Hon'ble Supreme Court was pleased to observe that when in the case involving in capital punishment prosecution proved its case, court is duty bound to impose deterrent punishment to make evil doers an example. Relevant observations are reproduced as under:-- "10. It is obvious from the above cited case law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the likeminded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a 'situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment have to record reasons justifying the same. In the present case so far as question of sentence is concerned, both the trial Court and the High Court have failed to record reasons for awarding lesser punishment to the respondents, who committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses, where they were killed. Till the time of disclosure of murders by the respondents themselves in their confessional statements, it was not known to anybody that they had killed three persons namely, Engineer Fahim, Mst. Kish war Kamal alias Laila and Syed Faqir and their dead bodies had been buried in the houses, which were recovered at their instance from the places specified in the confessions, in presence of the Magistrates. Keeping in view the findings of both the Courts below that the prosecution has proved its cases against the respondents beyond any shadow of doubt, they did not deserve any leniency in sentence in premeditated cruel triple murder."
24. It was a case of preplanned and premeditated murder committed by the appellant Muhammad Ismail due to strained relations. Marriage between accused and his ex-spouse in the present case was terminated through a judicial decree. Accused Muhammad Ismail still was issuing threats to her. Accused had shown extreme highhandedness by launching aggression against ex-wife and killing her by firing on vital part of the body. Plea of counsel for the appellant for reduction in the sentence merits no consideration for the reasons that in the present case, there was no circumstance warranting mitigating of his sentence of death. The case law cited by learned counsel for the appellant/accused are distinguishable from the facts of the instant case, hence the same are not applicable to this case.
25. In our considered view, and circumstances of the case disentitle the appellant/accused Muhammad Ismail son of Muhammad Ibrahim to any leniency in the sentence. Therefore, for the aforesaid reasons we maintain the conviction and confirm the death sentence awarded to the appellant/accused by trial Court.
26. For the afore said reasons appeal is without merits, same is dismissed. Death reference made by trial Court is answered in affirmative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.