Muhammad Tariq Nadeem J. Zafar Iqbal, appellant faced trial in case FIR No. 114 dated 01.06.2016, under sections 302, 34 PPC registered at Police Station Moch Tehsil and District Mianwali and after conclusion of trial, vide judgment dated 15.05.2018, the learned trial court convicted and sentenced him as under:- U/S 302 (b) PPC.
Life imprisonment along with compensation of Rs. 5,00,000/- to the legal heirs of Mst. Nusrat Bibi, deceased, under section 544-A Cr.P.C. and in default thereof to further undergo 06 months S.I.
The appellant has filed the above titled appeal against his conviction and sentence, while criminal revision has been preferred by Abdul Qayyum Khan, complainant for enhancement of sentence from life imprisonment to normal penalty of death of Zafar Iqbal, appellant. Since common questions of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.
2. The concise realities of the case, as described in wrongdoing report (Ex.PL) are that the complainant is resident of Kacha Tari Khel and is employed in Ranger police and he had come back to his house on leave. On the fateful evening of 01.06.2016 the complainant along with his wife namely Mst. Nusrat Bibi (since deceased), Muhammad Hayat and Abdul Majeed Khan PWs were present in their house at 07.15 p.m. In the meanwhile door was knocked, on which Mst. Nusrat Bibi went to the door followed by complainant as well as Muhammad Hayat and Abdul Majeed. The deceased opened the door. The complainant and supra mentioned PWs came outside the door, Muhammad Iqbal alias Zafar Iqbal armed with pistol 30 bore along with two unknown persons armed with pistols 30 bore were standing in front of door. Muha mmad Iqbal alias Zafar Iqbal accused raised a lalkara to Mst. Nusrat Bibi that he would give her a lesson for arranging 'Rishta' of her daughter Mst. Zareena Bibi agains t his will and within their view Muhammad Iqbal alias Zafar Iqbal made straight fire with pistol 30 bore on Mst. Nusrat Bibi hitting her on left side under the neck. On receipt of that injury she fell down while two unknown persons remained present at the spot while armed with pistols 30 bore. The PWs made hue and cry upon which appellant fled away from the spot towards North. The complainant, Muhammad Hayat and Abdul Majeed PWs witnessed the occurrence.
On arrangement of the vehicle, the complainant and PWs brought Mst. Nusrat Bibi to DHQ Hospital, Mianwali in injured condition for her medical treatment but as soon as they reached there she succumbed to the injury .
3. After formal investigation, a report under section 173 of The Code of Criminal Procedure, 1898 was submitted before the learned trial court.
The learned trial court after taking cognizance of the matter and fulfilling all pre-trial codal formalities, framed the charge against the appellant to which he pleaded not guilty and claimed trial. In order to prove the case against the accused, the prosecution examined as many as 14 witnesses.
The ocular account has been furnished by the complainant Abdul Qayyum (PW1 1) and Muhammad Hayat (PW12).
The investigation of this case was conducted by Muhammad Khalid, Inspector (PW13), whereas, the medical evidence was provided by Dr. Aqsa Niazi WMO (PW7). The remaining evidence produced by the prosecution was more or less formal in nature.
4. After completion of evidence on behalf of the prosecution, the statement of appellant was recorded under Section 342 of The Criminal Procedure Code, 1898 wherein he gainsaid the allegations leveled against him and professed his innocence. The appellant did not opt to appear as his own witness in terms of section 340(2) of The Criminal Procedure Code, 1898, however , he produced certain documents in his defence evidence.
5. After conclusion of trial the appellant was convicted and sentenced by the learned trial court as mentioned and detailed above, hence, the instant appeal before this Court.
6. Learned counsel for the appellant has argued that the appellant has falsely been involved in this case, presence of both eyewitnesses namely Abdul Qayyum (PW1 1) and Muhammad Hayat (PW12) at the time and place of incident is highly doubtful; that no source of light has been described in F.I.R (Exh. PL) as well as in the statements of PWs before the learned trial court, similarly the investigating officer has not taken into possession any piece of evidence in this regard; that the medical evidence is only a corroborative piece of evidence and relevant only if primary evidence, i.e. ocular account is found confidence inspiring which is very much lacking in this case; that the learned trial court has disbelieved the evidence qua motive and recovery; that while considering the case of prosecution from all angles it is replete with material contradictions and inconsistences; lastly prayed that the appellant is entitled for the benefit of doubt not as a matter of grace but as of right.
7. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposed the appeal on the grounds that the F.I.R has been lodged without any delay which is indicative of the fact that the presence of both eyewitnesses at the time and place of occurrence is quite natural and probable; that the medical evidence is synchronized with the ocular account; that complainant Abdul Qayyum (PW1 1) is husband and Muhammad Hayat (PW12) is real brothe r of the deceased; although they are related to the deceased but their presence at the time and place of occurrence is quite natural; that substitution is a rare phenomenon; that prosecution case is further corroborated by the recovery of weapon of offence; that the prosecution has fully proved the motive part of the occurrence and the same is substantiated through Exh.DD; that the prosecution has produced overwhelming and confidence inspiring evidence which is quite natural and believable; that the learned trial court has already taken lenient view and despite awarding capital punishment has convicted and sentenced him to life imprisonment; that the prosecution has successfully brought home the guilt against the appellant
8. I have anxiously considered the arguments put forth by the learned counsel for the appellant as well as learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant and scanned the record minutely .
9. I have observed that the occurrence in this case had taken place on 01.06.2 016 at 07.15 p.m, whereas the matter was reported to the police on the same day at 09.10. p.m. within 1 hour and 55 minutes of the occurrence.
So in this case the matter was reported to the police promptly and there was hardly any chance of consultations and deliberations in the intervening period. In the promptly lodged FIR the name of the appellant with his role of causing pistol shot on the neck of compla inant' s wife namely Mst. Nusrat Bibi with the intention to murder her, has been mentioned. Reliance is placed upon the case law titled as "Abdul Wasay and others vs. The State and others" ( 2021 SCMR 1059 ) and Muhammad Hayat and another vs. The State ( 2021 SCMR 92 ).
10. It has vociferously been argued by learned counsel for the appellant that there is delay of 06 hours in conducting the post-mortem examination on the dead body of the deceased. The prosecution was obliged to offer some explanation for delay in holding autopsy . The supra mentioned argument has no legal worth because in this case a fragile creature lost her life. Occu rrence took place in far-flung area and also just before sunset, therefore, time had been consumed in arranging and shifting the dead body to the hospital. In case titled as "Muhammad Asif and another vs. Mehboob Alam and others" ( 2020 SCMR 837 ), it has been held that:- "..Bare perusal of crime report which was lodged with promptitude reflect the date and time of occurrence against the specific column which is part of the form has been duly mentioned. Hence, the contention of the learned counsel for the petitioner that it is unsee n occurrence has lost its probative value hence, the same is repelled.
Another aspect of the case that the prose cution in this case was delayed by twelve to twenty four hours was taken into consideration by us. In the instant case, one person lost his life, while there were two injured persons, those were evacuated to Mayo Hospital from the place of occurrence which is at a distance of 30/40 KM. Possibility of consuming the time in transportation might lead to delay in postmortem examinat ion which was till fairly good as the doctor has opined proximately that it ranges from twelve to twenty four hours. In a country where the medical facility cum availability of paramedics for the job assigned is not any easy task, the consumption of such a time seems to be quite reasonable hence, the prosecution evidence cannot be brushed aside on this score alone to extend the benefit of doubt as claimed"
Seeking guidance from the above, I am of the view that matter has been reported at the police station without any deliberation or consultation and without wastage of time.
11. The ocular account was furnished by Abdul Qayyum Khan complainant (PW1 1) and Muhammad Hayat (PW12) inasmuch as PW1 1 is husband and PW12 is brother of the deceased, respectively . They gave the specific reasons of their presence at the place of occurren ce, as according to the prosecution story occurrence took place outside the house of the complainant. The presence of witnesses who are husband and brother of the deceased, at the place of occurrence, is neither unnatural nor improbable because they are closely related to the deceased and despite that they were seriously cross-ex amined regarding the incident; they remained consistent throughout on each and every material point and their credibility could not be shattered by the defence. Their evidence is trustworthy and confidence inspiring and could not be discarded merely on the basis of their relationship with the deceased. The PWs had no reason to let off the real culprits and involve the appellant in this case, even otherwise substitution is rare phenomenon. It is by now well settled law that substitution of real culprits especially in cases where the eye witnesses lost their kith and kin before their own eyes is rare phen omenon. Reliance is placed on the case of Sheraz Khan vs. The State (2010 SCMR 1772 ), wherein Hon'ble Supreme Court of Pakistan has held as under:- "No serious enmity whatsoever was alleged against Zaman Shah (P.W.7/complainant) and besides that being real father , the question of substitution of the real culprit with that of Sheraz Khan (appellant) does not arise which otherwise is a rare phenomenon. The statement of Zaman Shah (P.W.7/complain ant) has been corroborated by Muslim Shah (P .W.8) who is real brother of deceased."
12. So far as the contention of learned counsel for the appellant that the ocular account in this case has been furnished by related and interested witne sses is concerned, law is quite settled on the point that an interested witness is one who is interested in the conviction of an accused for some ulterior motive, but in this case, the defence could not bring on record any ulterior motive of the complainant or witnesses to falsely implicate the appellant in this case. In this regard, guidance can be sought from the case of Muhammad Aslam vs. The State (2012 SCMR 593 ), wherein it has been observed as under:- "In the present case ocular version has been furnished through the statement of P.W.6 Haq Nawaz who is real son of the deceased Muhammad Nawaz and P.W.7 Ahmad Nawaz, the other eye-witness who is cousin of the complainant. So, both the eye-witnesses are closely related with each other and with the deceased inter se but mere relationship is not sufficient to term them as interested witnesses as there was no previous enmity between the parties. Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt. Both the eye-witnesses had made consistent statements against the appellant that he came at the spot duly armed with mouser and fired at the deceased."
Similar view was also reiterated by the Hon'ble Supreme Court of Pakistan in the cases reported as Abdul Rauf vs. The State and another (2003 SCMR 522), Zakir Hussain vs. The State (2008 SCMR 222) and Zia Ullah and another vs. The State
13. As far as the arguments that medical evidence runs contrary to the prosecution version, it may be observed that medical evidence is in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case as firearm injury on the person of Mst. Nusrat Bibi deceased is reflected in her postmortem report (Ex.PM), which ultimately became the cause of his unnatural death as opined by Dr. Aqsa Niazi (PW7), who conducted autopsy on her dead body . The firearm injury observed by the doctor on the person of Mst.
Nusrat Bibi (deceased) is specifically attributed by the eye witnesses to the appellant. Furthermore, the ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injury as narrated by the eye witnesses has also fully tallied with medical evidence. It may be observed here that this witness (PW7) was also subjected to lengthy cross-examination but nothing beneficial to the appellant could be extracted from him.
14. Learned counsel for the appellant has laid much stress on the point that the occurrence took place in the darkness and the investigating officer has not taken into possession any source of light. I have noted that the occurrence took place on 01.06.2016 at 07.15 p.m. and in the month of June the darkness had not spread. Even otherwise, the investigating officer has shown the availability of electric bulb in courtyard of the house and the alleged occurrence has taken place on the main gate of the house, therefore, the availability of electric bulb is quite natural, therefore, I am of the considered view that this piece of evidence is not helpful to the appellant. Wisdom is derived from the case law reported as Muhammad Yaqoob vs. The State ( 2021 SCMR 1387 ).
15. Learned counsel for the appellant has drawn this Court' s attention to the document which was exhibited as Exh. DD before the learned trial court, which is the FIR regarding the murder of one Sher Abbas and it has been narrated in that FIR that Matee Ullah and Muhammad Farooq have murdered Sher Abbas due to the murder of Mst. Nusrat Bibi and motive of this occu rrence has been described therein that few period ago Mst. Nusrat Bibi deceased was murdered who was sister of Matee Ullah and mother-in-law of Muhammad Farooq and in the murder of Mst. Nusrat Bibi, Muhammad Iqbal and two unknown persons were the accused; Matee Ullah, etc. had suspicion that Mst. Nusrat Bibi was murdered by Sher Abbas. Learned counsel for the appellant contended that from the unknown persons, Sher Abbas was subsequently arrayed as an accused in case of murder of Mst. Nusrat Bibi and now the complainant party himself admitted this fact in Exh. DD that Sher Abbas is real culprit qua the murder of Mst. Nusrat Bibi. After going through the whole prosecution evidence as well as Exh. DD it cannot be inferred that the prosecution has anywhere stated that present appellant has not committed the murder of Mst.
Nusrat Bibi, hence, this argument advanc ed by learned counsel for the appellant has no force, therefore, I discard the same.
16. Adverting to the defence plea of Zafar Iqbal alias Muhammad Iqbal appellant, he while claiming his false implication in the present case stated in his statement recorded under section 342, Cr .P.C. which is as under:- "I am innocent. Neither I committed the said occurrence nor I was present at the time and place of occurrence.
When I knew about my involvement in this case. I myself surrendered before the court by moving pre-arrest bail in this case and joined investigation and during investigation, I.O. deferred my arrest and then I withdrew the pre- arrest bail and afterward on the asking of the complainant party , I.O. malafidely detained me in illegal custody for about two months and then an application u/s 491, Cr.P.C. was filed against the police for my recovery before the learned Sessions Judge, Mianwali and during my custody with police, I was tortured and on the order of learned Area Magistrate, I was tortured and on the order of learned Area Magistrate, I was also got medically examined and during medical examination, marks of violence were found on my body and due to this grudge of filing of application u/s 491, Cr.P.C. and to conceal my injuries caused by the police, I was falsely challaned in this case.
Actually occurrence was done in late hours of night under mysterious circums tances by unknown assailants.
Occurrence took place at late night of occurrence and then postmortem was done on next day in the morning but police malafidely had shown time of occurrence as 07.15 p.m.. Firstly FIR was lodged against one Muhammad Iqbal and two unknown assailant but afterward police in connivance with complainant party involved me in this case and till today , unknown assailants were not named by the prosecution. All the PWs are close relatives and they deposed against me falsely . No independent witness was produced by the prosecution. "
Considering above, it is concluded that the appellant has failed to prove his defence plea and learned trial court has rightly discarded his defence plea with sufficient reasons. In view of above prosecution has proved its case beyond shadow of doubt against the appellant through the evidence discussed above.
17. The prosecution case apart from ocular account also get supports from corroboratory evidence which is in the shape of recovery of blood stained last worn clothes of the deceased and blood stained earth, which were taken into possession by the investigating officer of this case and thereafter sent to PFSA. The Forensic Serology Analyst Report Exh. PN affirmed that it was stained with human blood, which proved that the deceased was kiss to dust at the place as alleged by the prosecution.
18. Insofar as the crime weapon from the accused is concerned, suffice it to say, that although in the present case during the spot inspection on 01.06.2016 two crime empties (P.4/1-2) of pistol 30 bore were collected and taken into possession vide recovery memo Exh. PK/1. The said empties were kept in the malkhana and sent to the office of Forensic Science Laboratory on 07.06.2016 but the report of Forensic Science Laboratory depicts that the empties so collected from the spot were not found to have been fired from the pistol P-6 recovered at the instance of the appellant, therefore, it was righty held by the learned trial court that the recovery of alleged pistol from the appellant has been rendered inconsequential.
19. The motive behind the occurrence was that Mst. Nusrat Bibi married her daughter namely Mst. Zareena Bibi with Muhammad Farooq (PW14) to the infuriation of the appellant. According to the complainant the appellant was interested to take rishta of his daughter for his brother namely Shahid alias Shahida but they refused because he was an addict person. I have gone throug h the prosecution evidence and found that the prosecution has failed to prove the motive part through any evidence. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and reliance in this regard can be placed on the cases reported by the Hon'ble Supreme Court of Pakistan as "Qaddan and others v. The State" (2017 SCMR 148), "Qurban Hussain Vs. The State" (2017 SCMR 880) and "Haq Nawaz v. The State" (2018 SCMR 21). In these circumstances, the learned trial court has rightly disbelieved the motive.
20. As a result of what has been discussed above, it may be safely concluded that even if this Court exclude the evidence of motive and recovery from consideration which has already been disbelieved by the learned trial court in its judgment, the prosecution has successfully proved its case against the appellant on the charge of committing murder of Mst. Nusrat Bibi deceased through confidence inspiring ocular account furnished by Abdul Qayyum Khan complainant (PW1 1) and Muhammad Hayat (PW12), which is strongly corroborate d by medical evidence that has led this Court to an irresistible conclusion that the conviction and sentence of the appellant is neither unfounded nor the same suffer from any legal infirmity and as such the learned trial court has rightly convicted and sentenced the appellant through the impugned judgment, which is maintained and upheld. Consequently , Criminal Appeal No. 220325 of 2018 is hereby dismissed .
21. As a natural corollary , criminal revision filed by Abdul Qayyum Khan, complainant for enhancement of sentence from life imprisonment to normal penalty of death is also dismissed .