SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Shahzeb alias Jooni son of Muhammad Saleem Khan Akhtar, caste Lodhi, resident of House No. 27/A, Street No. 45, Qilla Lachman Singh, Ravi Road, Lahore, appellant was involved in case FIR No. 255/2008, dated 08.04.2008, offence under section 302, P.P.C., registered with Police Station Ravi Road, Lahore. He was tried by learned Additional Sessions Judge, Lahore, under the afore-mentioned offence. The learned trial court after completion of the trial, convicted and sentenced the appellant vide judgment dated 09.05.2012 in the following terms:- Under section 302(b), P.P.C., sentenced to death as Ta'zir with direction to pay Rs.2,00,000/- as compensation to legal heirs of the deceased and in case of default in payment thereof to undergo S.I. for six months.
2. Being aggrieved by the judgment of the learned trial court, Shahzeb alias Jooni, appellant assailed his conviction and sentence through filing Crl. Appeal No.925/2012 while the learned trial court forwarded Murder Reference No.299/2012 for confirmation of sentence of death inflicted upon the convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PB/1) lodged on the complaint (Exh.PB) of Muhammad Ehsan son of Muhammad Anwar, caste Rajput (PW-2) is that the complainant is resident of Street No.45, Lachman Singh, Ravi Road, Lahore. Abdul Wadood bhanja of the complainant aged about 4 years along with his mother Mst. Shazia daughter of Muhammad Anwar, were living with the complainant. On 08.04.2008 at about 5:00 p.m. mother of Abdul Wadood sent him to take packet of shampoo from a nearby shop, who did not return for a long time. On which the complainant along with his brother Muhammad Farhan and behnvai Muhammad Zafar son of Mian Abdul Latif, caste Arain, resident of Street No.67, Nonarian, Gulshan Ravi, Lahore, who had approached there in order to see them, went in the search of Abdul Wadood.
During the course of search, they came to know that Shah Zeb alias Jooni son of Muhammad Saleem Akhtar Khan, caste Lodhi, resident of House No.27/A, Street No.45, Qilla Lachman Singh, Lahore had taken Abdul Wadood inside his house. The complainant along with other prosecution witnesses entered the house and heard the noise of weeping of the child. When they rushed towards the rooftop of the house, they saw that Shah Zeb alias Jooni had slaughtered Abdul Wadood and while holding blood stained chhuri, he stepped towards the complainant. The complainant and other PWs tried to apprehend the accused on which he extended threats of dire consequences and subsequently while brandishing chhuri succeeded in fleeing away from the scene of occurrence. Abdul Wadood had smeared with blood who succumbed to the injuries at the spot.
Motive behind the occurrence as disclosed in the crime report was that Mst. Shazia mother of Abdul Wadood was divorced by her husband, who along with her son was living in the complainant's house. Shah Zeb sent a message for marriage to Mst. Shazia, who refused to do so as it may ruin the future life of her child. This infuriated the accused against Abdul Wadood and on getting opportunity he slaughtered him.
4. On receipt of information about the occurrence, Abdul Wahab, S.I. (PW-8) along with other police officials reached the place of occurrence where the complainant made his statement, which was reduced into writing and after endorsing police karvai the same was transmitted to Police Station for registration of formal FIR. Thereafter investigation of the case was entrusted to Muhammad Aslam, Inspector (PW-11), who visited the place of occurrence and inspected the dead body. He prepared injury statement (Exh.PH), drafted inquest report (Exh.PJ) jotted down application for postmortem examination (Exh.PK) and dispatched the dead body to mortuary under the escort of Shaukat Ali HC/348 (PW-6). From the spot the Investigating Officer collected blood through cotton and took into possession vide recovery memo Exh.PC. He also prepared rough site plan of the place of occurrence (Exh.PG). After postmortem examination, last worn clothes of the deceased, Nikar (P- 1) and shirt (P-2) were produced before the Investigating Officer, which were taken into possession vide recovery memo Exh.PA. Upon the direction of the Investigating Officer and pointing out of the PWs, on 09.04.2008, Ch. Hameed-ud-Din Chishti, Draftsman (PW-7) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PD and Exh.PD/1), which was made part of the file. On 10.04.2008, the Investigating Officer arrested the appellant and obtained his physical remand. During the course of interrogation in pursuance of disclosure on 13.04.2008, the appellant led to the recovery of chhuri (P-3), which was taken into possession vide recovery memo Exh.PE. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PM).
5. During the course of investigation having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. while placing his name in column No.3, which was sent to the court of Session en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned trial court vide order dated 15.01.2009 formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced as many as twelve (12) prosecution witnesses.
6. Occular account in this case consists of the statements of Muhammad Ahsan complainant (PW- 2) and Muhammad Zafar (PW3). On presentation of complaint Muhammad Ilyas, S.I. (PW-4) had chalked out formal FIR while Ch. Hameed-ud-Din Chishti, Draftsman (PW-7) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Muhammad Aslam, Inspector (PW-11).
Dr. Muhammad Shahbaz (PW-10), on 09.04.2008, had conducted postmortem examination on the dead body of Abdul Wadood deceased and observed following injuries on his person:- "1. An open gapping incised wound of 14 x 4 cm on front and lateral aspects of neck was present 6 cm below chin, 3 m above suprasternal notch 5 cm from left ear and 4 cm from right ear.
2. A 2 x 2 cm long incised wound in left side of neck 3 cm below left ear 4 cm left to interior, midline (muscle deep incision).
3. An incised wound 2.5 x 1 cm on front of left shoulder.
4. Contused area of 4 x 4 cm on back of chest upper most part 4 cm to the left of posterior midline, 4.5 cm above the inferior angle of left scapula.
5. Spinal card was cut at the level between C-3 and C-4. There was cut mark on C-4.
6. Muscles, neck vessels of both side trachea, oesophagus and spinal card (partially) were cut. "
After conducting postmortem examination, the doctor opined as under:- "Above stated injuries were ante-mortem and caused by sharp edged weapon. The cause of death in this case was cutting of neck vessels, trachea, oesophagus and spinal card, leading to haemorrhage shock and death. Probable time between injury and death was immediate and probable time between death and postmortem was 18-22 hours."
Statements of rest of the prosecution witnesses are formal in nature.
7. Vide statement recorded on 02.06.2010 learned DDPP gave up Muhammad Farhan and Muhammad Anwar, PWs, being unnecessary.
On 23.04.2012 after tendering in evidence the report of Chemical Examiner (Exh.PN) and report of Serologist (Exh.PO), learned DDPP closed the prosecution evidence.
8. The appellant was also examined under section 342, Cr.P.C.; wherein he refuted the prosecution accusations. He opted not to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against him in the prosecution evidence. However, he opted to adduce evidence in his defence. While replying to the question qua his involvement in this case, the appellant made the following deposition:- "I am innocent and falsely implicated in this case by the prosecution. Shazia who was the real sister of the complainant had intimacy with me and she wanted to marry with me, the same was spread in whole locality but complainant and his brothers did not want the same which led the complainant and his brothers to take revenge, as any enmity they involved me in the murder of Abdul Wadood and falsely alleged roof of my parent's house as a place of occurrence and made all planted recoveries and concocted evidence just to strengthen this case. In fact this is a case of no witness (or blind murder) and gross discrepancies/contradictions are there in the evidence produced by the prosecution. Prosecution has failed to establish its case without shadow of reasonable doubt.
It is worth mentioning here that I am belonging to a respectable family, my parents were residing abroad and we four brothers were residing in the house of my parents with families having good repute in the locality. On the other hand brother of Shazia's and complainant namely Adnan were involved in criminal activities and have bad repute in the locality, complainant are trying to implicate me falsely in this case, the 10 had not conducted the investigation fairly and honestly due to which I am facing this trial for nothing and put myself on the discretion of the court with the hope of fair justice in a shape of acquittal."
9. In defence Muhammad Aurangzeb Khan made his statement as DW-1.
10.After hearing the arguments advanced by learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt, resulting into conviction of the appellant in the above stated terms.
11.At the very outset learned counsel for the appellant contended that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Contended that according to prosecution version the occurrence had taken place on 08.04.2008 at 5:00 p.m. while the matter was reported to the police after due deliberations and consultations at 6:45 p.m. Learned counsel vigorously argued that presence of the prosecution witnesses at the place of occurrence at the relevant time is highly improbable. Contended that there are glaring contradictions in the statements of the prosecution witnesses of the occular account on material aspects. Next submitted that even while appearing in the witness-box the prosecution witnesses improved upon their statements recorded under section 161, Cr.P.C. Added that both the prosecution witnesses are closely related inter se, as well as, the deceased, who made statements being interested witnesses. It was argued that medical evidence does not corroborate the prosecution case for the reason that while conducting postmortem examination the doctor had observed sand near the seat of injuries. Moreover, the postmortem examination was conducted with a delay of about 22 hours. As far as recovery of chhuri from the appellant is concerned, learned counsel contended that the same was not blood- stained. Learned counsel contended that as a matter of fact the appellant wanted to marry with Mst. Shazia, who was divorced by her ex-husband, mother of deceased. This offer of the appellant was disliked by her other family members including the complainant and due to this grudge the appellant was made scapegoat in this case. Contended that this fact was also established through defence evidence. It was finally argued that in absence of any interlinking/incriminating material available on record, the learned trial court fell in error while recording conviction/sentence against him; hence the appellant deserves his clean acquittal from the charges.
12.On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that it is a daylight occurrence, the appellant is duly named in the crime report with his specific role. He took the life of an innocent minor considering him hurdle in the way of his contracting marriage with Mst. Shazia sister of the complainant. Learned counsel submitted that the prosecution witnesses of occular account fully supported the prosecution case by giving minute details. Next submitted that they remained coherent on salient features of the prosecution version and despite lengthy cross-examination nothing adverse to the prosecution version could be brought on record. It was argued that medical evidence fully supports the prosecution case.
Contended that dead-body of minor was also recovered from the rooftop of the house of the appellant. Next submitted that after arrest of the appellant chhuri (P-1) was recovered on his pointing out, which establishes his link with the occurrence. Moreover, the prosecution witnesses had no reason to falsely substitute the appellant in place of real assailant, who was also found guilty during the course of investigation as such his name was placed in column No.3 of the report prepared under section 173, Cr.P.C. Lastly it was argued that the appellant had taken the life of minor child by slaughtering him and the prosecution established its case through straight forward, reliable and confidence inspiring evidence, therefore, the learned trial court rightly convicted and sentenced the appellant under the relevant provisions of law.
13.We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
14.There is no denial to the fact that it was a daylight occurrence, which as per prosecution version had taken place on 08.04.2008 at 5:00 p.m. within the area of Qilla Lachhman Singh, Ravi Road while the same was reported to the police at 6:45 p.m. According to contents of the crime report the appellant is duly named with specific role of slaughtering the minor from his neck, who subsequently succumbed to the injuries. Prosecution in order to establish its case had led evidence qua occular account, motive, medical evidence, recovery of chhuri, as well as, investigation and other pieces of evidence.
15.As far as occular account is concerned, the same is coming from the mouth of Muhammad Ahsan/complainant, who appeared during the course of trial as PW-2 while his statement was supported by Muhammad Zafar (PW-3). There is no denial to this fact hat Mst. Shazia sister of the complainant was divorced by her ex-husband and she along with minor Abdul Wadood was living at complainant's house situated at Qilla Lachhman Singh, Ravi Road, Lahore. It is very common in our society that if shops are situated in the nearby surroundings streets, the female of average families usually do not involve the elders to take petty articles rather minor children are asked to take such articles. Hence, on the asking of his mother, minor Abdul Wadood went to the shop, however, when he did not return home for a reasonable time, the complainant along with other prosecution witnesses started his search. As far as Muhammad Zafar (PW-3) is concerned, he is behnvai of the complainant and resident of Gulshan Ravi, Lahore. He being closely related to the complainant, his presence at the house of the complainant also seems to be natural. While appearing in the witness-box both the prosecution witnesses gave detailed pen picture of the occurrence how Abdul Wadood minor had gone to the shop of the appellant for taking packet of shampoo and subsequently on his missing, they started his search. They remained coherent on the aspect that on the receipt of information when they approached the house of the appellant they over-heard the voice of weeping of the child and when they rushed towards the rooftop, they saw that the appellant slaughtered the minor with chhuri and subsequently while extending threats of dire consequences he fled away. As far as the argument advanced by learned counsel for the appellant that the prosecution witnesses had not made an attempt to apprehend the appellant at the time of occurrence is concerned, it is a matter of human nature that in such like situation even a person of stout physique might act aversely while losing his control over the senses and finding himself stunned due to the gravity of the incident. Possibility cannot be ruled out that as the prosecution witnesses had seen a gruesome murder in their eye-view and they being closely related to the deceased could not react as the act was not against a person rather against a minor child while crossing all limits of humanity. Both the prosecution witnesses were subjected to exhaustive cross-examination; however, careful scrutiny of statements of both the prosecution witnesses of the occular account reflects that they remained unanimous qua the date, time, mode and manner of occurrence. The defence altogether failed to bring on record an iota of evidence from where it can, be gathered that the prosecution witnesses of the occular account were not present at the place of occurrence at the relevant time or their statements are nottrustworthy.
As far as relationship of the complainant and PW-3 with the deceased as raised by defence is concerned, though they are closely related to the deceased but it has been the consistent view of the superior courts of the country that mere relationship of the witness with deceased would not discard his testimony if otherwise the same is trustworthy, confidence inspiring and appealing to reason while corroborated by independent circumstances as has happened in the case in hand.
Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ijaz Ahmad v. The State (2009 SCM R 99) and Talib Hussain and others v.
The State and others (2009 SCM R 825).
16. As far as motive in this "case is concerned that is of pivotal importance and requires close scrutiny by this Court. Bare perusal of the crime report reflects that motive behind the occurrence was that Mst. Shazia mother of deceased and sister of the complainant was divorced by her ex- husband and she was living in the complainant's house. The appellant had also divorced his wife and he wanted to marry with Mst. Shazia. However, she refused to do so for the reason that it may ruin the future/life of her minor son Abdul Wadood. The appellant considering the minor hurdle in the Way of contracting marriage with Mst. Shazia, he committed his murder. Not only this fact was substantiated by the prosecution during the course of trial rather soon after his arrest, the appellant had also admitted this fact in totality while recording his first plea before this Investigating Officer. As far as admissibility of first plea of the accused is concerned, the same is relevant within the meaning of Article 27 of Qanun-e-Shahadat Order, 1984. There are series of facts brought on record in the shape of defence when read together squarely fall within the ambit of Article 19 of Qanune-Shahadat Order, 1984, which is reproduced as under for ready reference:- "19. Relevancy of facts forming part of same transaction. Facts which though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."
Wisdom is sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Shabbir Hussain alias Sukku v. The State (PLD 2003 Supreme Court 368); wherein following principle was laid down:- "---Art. 19--- Relevancy of facts formng part of same transaction---Statements, utterances and declarations in order to be admissible/relevant as "res gestae" should lie contemporaneous with the occurrence/incident in issue..."
In the Indian jurisdiction, in a landmark judgment in the case of C.N. Peters v. State reported as AIR 1959 (Allahabad) 483 and (1959 Cr.LJ 924) this question was dilated upon in the following terms:- "The appellant have a spontaneous explanation right at the moment when the crime was committed and, therefore, his first explanation amounted to res gestae within the meaning of Section 6 of the Indian Evidence Act.''
In a reported judgment in the case of Liaqat Ali and another v. The State (1998 PCr.LJ 216); following guidelines were given:- "It may also he added that the statement of an accused person immediately after the occurrence is in a way very relevant fact within the meaning of Article 27 of Qanun-e-Shahadat and as such there can be no legal bar in bringing it on record as an admissible for fact."
Another important aspect of the case which is of much importance is that the dead body of the deceased was recovered from the double storey/roof-top of the house owned by the appellant.
During the proceedings before this Court learned counsel for the appellant could not deny the presence of the dead body, which was admittedly recovered from the roof-top of the house of the appellant.
17.As far as medical evidence in this case is concerned, that has been substantiated through the statement of Dr. Muhammad Shahbaz (PW-10), who had conducted postmortem examination over the dead body of Abdul Wadood deceased. Perusal of statement of the doctor reflects that the medical evidence affirms the stamp/locale of injuries on the person of the deceased. Dimension of injuries also supports the prosecution version that the appellant had slaughtered the deceased with a sharp-edged weapon. Moreover, the duration between the death and postmortem examination as given by the doctor coincides with the time of occurrence.
During the course of arguments learned counsel for the complainant had emphasized that postmortem examination was conducted at a belated stage. However, perusal of record available on file reflects that the Investigating Officer while making his statement during the course of trial stated that on 08.04.2008, he moved an application in the S.P. Office for issuing docket and thereafter deposited the dead-body at mortuary, however, on that day postmortem examination could not be conducted, therefore, the dead body was deposited in dead-house and on the following day the autopsy was conducted. Relevant portion out of his statement is reproduced as under:- "The postmortem was not conducted on the said date, the dead body was deposited in the dead house and after returning from the hospital the case property was handed over to the Moharrir and the accused was searched. On the next day 09.04.2008 postmortem examination of the deceased was got conducted."
Hence, the delay in conducting postmortem examination in this case is not fatal to the prosecution version.
18.it is also an admitted fact that after arrest of the appellant during the course of interrogation, he made disclosure and got recovered chhuri (P-4), which itself establishes his link with the occurrence. Moreover, perusal of record, also reflects that at the time of spot inspection the Investigating Officer had secured blood through cotton from the place where Abdul Wadood had sustained injuries. The same was transmitted to the offices of Chemical Examiner and Serologist and according to respective reports of the concerned quarter (Exh.PN and Exh.P0), its origin was found of human blood, which further supplements the prosecution case.
19.Admittedly during the course of investigation the accusations levelled against the appellant in the crime report were found correct, and his name was placed in column No.3 of the report prepared under section 173, Cr.P.C. Moreover, the findings of the Investigating Officer were not challenged before any higher forum.
20.As far as defence plea advanced through the statement of DW-1 is concerned, although he is real brother of the deceased, however, admittedly he had not joined the investigation before the Investigating Officer, therefore, the same could only be termed as an afterthought story at a belated stage, which does not carry any legal sanctity. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Igbal and others v. Muhammad Akram and another (1996 SCM R 908).
21.No doubt the weapon used by the appellant is chhuri, which is as lethal as a firearm particularly when the victim is a minor. Moreover, the number, as well as, locale/seat of injuries
(neck) imprints the intent of the assailant, who had slaughtered the deceased in order to ensure his death. The normal sentence for culpable homicide amounting to murder is sentence of death.
The prosecution witnesses were not tested on the touchstone of Tazkia-tul-shahood, therefore, the learned trial court was justified to convict the appellant under section 302(b), P.P.C., and sentence him to death as Ta'zir on two counts.
22.Upshot of the above discussion is that the prosecution has substantiated its case through leading evidence by the most natural witnesses of the occurrence, who remained coherent on salient features of the prosecution version. The motive was not only proved by the prosecution rather the same was admitted by the appellant at the time of recording his first plea. The medical evidence fully substantiates the prosecution case especially the locale of injuries and time between death and postmortem examination. Recovery of chhuri also supplements the prosecution case and there is nothing on recprd to show even a glimpse in order to arrive at the conclusion that it was a case of substitution. Hence, by any stretch of imagination, the prosecution case is fully proved beyond iota of reasonable doubt and we are constrained to observe that the learned trial court was rightly justified in passing conviction against the appellant and sentencing him to death, which in the given scenario seems to be well-justified. Resultantly, Criminal Appeal No.925 of 2012 filed by Shahzeb alias Jooni/appellant is dismissed in toto, as a consequence whereof conviction and sentence inflicted by the learned trial court by means of impugned judgment dated 09:05.2012 is maintained/upheld.
23.Murder Reference No.299/2012 forwarded by the learned trial court in terms of section 374, Cr.P.C, for confirmation of sentence of death inflicted upon Shahzeb alias Joonil convict succeeds, which is answered in affirmative. Death sentence is confirmed.