SARDAR AHM ED NAEEM , J. Naeem Akhtar (appellant) along with Nazir Ahmad and Bashir Ahmad, co-accused, since acquitted was tried by the learned Additional Sessions Judge, Rahim Yar Khan in case FIR No.181/2014 dated 21.05.2014, under sections 302, 324, 337-F(iii), 337-F(v), P.P.C ., registered at Police Station Kot Samaba, District Rahimyar Khan. At the conclusion of the trial, the learned trial Court vide judgment dated 21.05.2016 acquitted Nazir Ahmad and Bashir Ahmad co- accused by extending them benefit of doubt whereas convicted Naeem Akhtar appellant as under: i. under section 302(b), P.P.C. and sentenced to death with the direction to pay Rs.2,00,000/- as compensation to the legal heirs of the deceased, Parveen Bibi under section 544-A, Cr. P. C. and in case of default to further undergo simple imprisonment for six months. ii. Under section 324, P.P.C. to ten years rigorous imprisonment iii. Under sections 337-F(v), and 337-F(iii), P.P.C. to five years and three years rigorous imprisonment on two counts with compensation of Rs.30,000/- and Rs.20,000/- on two counts as Daman amount respectively for each injury, in default thereof to further undergo imprisonment for three months and two months on two counts for each default respectively. The said compensation amount shall be given to the injured Sumaira Bibi, as envisaged under section 544- A, Cr.P.C. All the punishment for imprisonment shall run concurrently. Benefit of section 382-B, Cr.P.C. shall also be available to him.
Being aggrieved of the said judgment, the appellant filed Criminal Appeal No.280-J-2016 titled as Naeem Akhtar v. The State. Murder Reference No.39 of 2016 titled as The State v. Naeem Akhtar is also before us for confirmation or otherwise of the sentence of death awarded to the appellant.
2. The prosecution story, in brief is that on 21.05.2014 at 09:45 P.M., Naeem Akhtar appellant along with his co-accused Nazir Ahmad and Bashir Ahmad while armed with deadly weapons fired at Parveen Bibi deceased hitting on different parts of her body. The appellant also fired two successive fires hitting Sumaira Bibi on her legs and arms. Parveen Bibi died at the spot.
3. After usual investigation, challan was submitted in the Court. The learned trial court after observing all the pre-trial codal formalities, charge sheeted the appellant and his co-accused to which they pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, produced as many as eighteen witnesses during the trial. The ocular account, in this case, was furnished by Fida Hussain complainant (PW.1), Hassan Mehmood (PW.2) and Sumaira Bibi, injured (PW.9). Talib Hussain (PW.10) was witness of recovery of pistol 30-bore effected from Naeem Akhtar appellant. Muhammad Anwar Khan, S.I. (PW.12) investigated the case.
5. Asghar Ali (PW. 3) received written complaint (Exh. PA) on 21.05.2014 sent by Muhammad Anwar Khan, S.I. for registration of formal FIR. He chalked out formal FIR (Exh.PA/1) on the basis of said complaint.
6. Liaqat Ali, Constable (PW.5) was attesting witness of recovery memo (Ex.PE) whereby the Bulb, produced by the complainant before Muhammad Anwar Investigating Officer, was taken into possession. Ghulam Yaseen, Constable (PW.6) escorted the dead-body of Parveen Bibi (deceased) for post-mortem.
7. Medical evidence was furnished by Dr. Aamir Hameed, S.M.O. Sh. Zayed Hospital, Rahimyar Khan (PW.7), Lady Doctor Misbah Kanwal, WMO Sh. Zayed Hospital, Rahim Yar Khan (PW.8) and Dr. Zaheer Mustafa, Assistant Professor Radiology, Sh. Zayed Hospital, Rahim Yar Khan (PW.14). Lady Dr. Misbah Kanwal (PW.8) medically examined Sumaira Bibi injured on 21.05.2014 and found following injuries on her person: i. Entry wound. A lacerated circular wound with inverted margins measuring 2 x 2 cm on anterior surface of left shoulder joint. Muscle deep wound.
Exit Wound A lacerated wound with everted margins measuring 2 x 2.5 cm on anterior surface of left shoulder joint. Muscle deep wound. ii. Entry wound. Lacerated circular wound with inverted margins measuring 1.5 cm x 1 cm, on the left wrist joint on posterior surface of the wrist joint.
Exist wound. A lacerated rounded with everted margins measuring 2 x 2 cm on anterior surface of left wrist joint involving 5th metacarpal bone. Muscle deep wound. iii A lacerated wound on right wrist joint measuring 1.5 x 1.5 cm involving base on the right thumb on palmer surface. Muscle deep wound. iv. Entry wound. A lacerated wound with inverted margins measuring 2 x 2 cm below the left knee on anterior surface of left leg. Wound was muscle deep.
Exit wound. A lacerated wound with everted margins on lateral surface of left leg measuring 2.5 x 2 cm below knee joint muscle deep.
8. On the same day she also conducted post-mortem examination one dead-body of Parveen Bibi (deceased) d found following injuries on her person:- i. On external examination, injury No.1: A lacerated wound with inverted margins measuring 2.5 x 1 cm on occipital region of head, slightly on left side of head 1 cm from mid line and 11 cm from pinna of left ear. No burning, blackening and tattoing. According to skull x-ray done at 22;05.2014 by radiology department Sh. Zayed Hospital, Rahim Yar Khan, multiple fracture in skull bone. ii. A lacerated wound with inverted margins measuring 1 x .6 cm on posterior lateral aspect of right fore-arm. 10 cm proximal to right wrist joint. No burning, blackening and tattooing. Exit wound. A lacerated wound with evened margins measuring 3 x 1.5 cm on fronto lateral aspect of right forearm 9 cm proximal to right wrist joint. According to x-ray done at 22.05.2014 by. radiology department Sh. Zayed Hospital, Rahim Yar Khan, a displaced fracture of radius and fracture of ulna. On dissection, entry wound involving occipital wound 1 cm left to mid line. Meanings were damages or ruptured brain issue damaged extended to mandible bone. There was mandible bone fracture.
In her opinion cause of death was due to injury of skull meninges and brain tissues and hypovolemic shock. The probable time elapsed between injury and death was on the spot and between death and postmortem was within 12 hours. Exh.PH is the correct carbon copy of the postmortem.
9. Muhammad Ateeq-ur-Rehman, Patwari Halqa (PW.15) visited the spot on 19.04.2016 and prepared scaled site plan (Exh.PM and Exh.P.M/1) of the place of occurrence.
10. Manzoor Ahmad, S.I./S.H.O. (PW.17) stated that on 20.03.2016, Muhammad Ateeq-ur-Rehman Patwari Halqa produced before him scale site plan of the place of occurrence. He recorded note with red ink and placed the same on file. He also recorded statement of the said Patwari under section 161, Cr.P.C. On 23.03.2016, Moharrar produced before him report of Punjab Forensic Science Laboratory, Lahore. He recorded statements of the PWs in this regard and prepared supplementary complete challan. Rest of the PWs are of formal nature, therefore, need not to be reproduced.
11. The learned Assistant District Public Prosecutor gave up Ghulam Haider and Shafique Ahmad PWs being unnecessary and after tendering into evidence report of Punjab Forensic Science Agency dated 01.07.2015 (Exh.PN), report of Punjab Forensic Science Agency dated 22.08.2014 (Exh.PO) and report of Punjab Forensic Science Agency dated 06.03.2015 (Exh.PQ), closed the prosecution evidence.
12. The statement of the, appellant under section 342, of The Code of Criminal Procedure, 1898, was recorded. He refuted the allegations levelled against him and professed his innocence. Responding to the question No.12 "Why this case against you and why the PWs deposed against you?", the appellant replied as under: "Due to previous enmity with the complainant, the instant case was registered against me. PW.2 Hassan Mehmood and PW.10 Talib Hussain are brothers of the complainant while PW Sumaira Bibi is in the clutches of complainant, so, they have deposed falsely against me on the instigation of the complainant."
The appellant did not appear as his own witness on oath as provided under section 340(2) of The Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him, however, produced Dr. Falak Sher Medical Officer District Jail, Rahim Yar Khan (DW.1) and Dr. Muhammad Amir Khakwani SMO Sh. Zayed Hospital, Rahim Yar Khan as DW.2.
13. The learned trial Court vide its judgment dated 21.05.2016, held the appellant guilty, convicted and sentenced him as mentioned and detailed above.
14. Learned counsel for the appellant contended that the story of the prosecution was improbable; that no independent witness was cited by the prosecution; that the injured witness also failed to justify her presence and suppressed the material facts, thus, could not be relied upon; that her statement was not recorded on the day of occurrence rather on the following day; that no bulb was taken into possession by the Investigating Officer; that the recovery of pistol .(P.4) lend no support to prosecution story; that motive in this case was not proved; that the prosecution evidence was full of contradictions/ discrepancies which makes the prosecution doubtful and a single doubt even slightest always resolved in favour of accused not as a matter of grace or concession but as of right, thus, the appellants are entitled to acquittal.
15. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed the appeal with vehemence and argued that the parties were known to each other being relative and thus there was no question of mistaken identity; that the eye/injured witnesses furnished the ocular account in a straightforward manner; that version of complainant gets full support from the medical evidence available on record; that recovery of pistol (PA) was in addition to that; that the discrepancies in the statements of the PWs hinted at by the learned counsel for the appellant do creep up with the passage of time; that the prosecution has proved its case against the appellant beyond reasonable shadow of doubt, thus, they prayed for the dismissal of above appeals.
16. Heard. Available record perused;
17. The complainant of the case, namely, Fida Hussain (PW.1) got registered the FIR against the appellants with the allegation of committing Qatl-i-Amd of his real sister, namely, Parveen. Bibi, the deceased and causing injuries to her daughter, namely, Sumaira Bibi on account of some disputes over Rishta' of her daughter. The appellant Naeem Akhtar was the husband of Parveen Bibi then living in Basti Sialan, Dan Azeem Khan within territorial limits of Police Station Kot Samaba. She was done to death in her own house by her husband, namely, Naeem Akhtar.
18. It was in the evidence that Nazir Ahmad (acquitted co-accused) instigated Naeem Akhtar to commit Qatl-i-Amd of Parveen Bibi as she refused 'Rishta' of her daughter for his son and then the co-. accused of appellant including Nazir Ahmad and Bashir Ahmad held the deceased and she was fired at by Naeem Akhtar and succumbed to those injuries at the spot. The injured, namely, Sumaira Bibi went forward to save her mother but also sustained firearm injuries on various parts of her body that, too, at the hands of Naeem Akhar. After enacting the episode, the accused- appellant managed his escape.
19. The occurrence had taken place at 09:45 p. m. in the month of May. The distance between the place of occurrence and Police Station was 9 kilometer and the FIR was registered on the same day at 11:05 p. m. which excludes the possibility of any deliberation or consultation. The appellant was nominated being the principal offender. All the injuries sustained by the deceased as well as the injured, namely, Sumaira Bibi were attributed to the appellant. He was husband of the deceased and father of the injured PW. The place of occurrence was their own house. The complainant and the other witnesses are closely related to each other. The complainant is Sala of the appellant and resident of a nearby house was sitting in the courtyard along with Hassan Mahmood and Ghulam Haider PWs. The hue and cry of the deceased/ injured attracted the PWs, who rushed towards the place of occurrence and witnessed the tragic episode. No grudge or grouse was attributed to any of the PWs for false implication of the appellant. Sumaira Bibi has got stamp of injuries on her person and deposed against her real father. The ocular account was furnished by the eye/injured witness in a straight-forward manner. The Investigating Officer secured blood-stained earth from residential room of the appellant which confirmed the place of occurrence i.e. his house. The witnesses confirmed the source of light. Even otherwise being closely related to each other there was no question of mistaken identity. They have no reason, whatsoever, to falsely implicate the appellant. The relationship of the witnesses with the deceased per-se is no ground to discard their confidence inspiring testimony. Their presence at the spot is established. The appellant pleaded false implication. He led to the recovery of 30 caliber pistol (P.4), on 24.07.2014, found wedded with the cases of cartridges secured by the Investigating Officer from the crime scene suggested by the report of Punjab Forensic Science Agency (Exh.PG). Therefore, the plea of the accused that the deceased was in the clutches of the complainant and, thus, they falsely implicated the appellant was not plausible. The prosecution case has been proved by ocular account narrated by the complainant and the eye/injured PWs. The ocular account has been further corroborated by the medical evidence as well as recovery of the weapon of offence therefore, we do not find any reason to interfere in the conviction recorded against the appellant.
20. The motive alleged by the complainant was that there was dispute regarding Rishta between the spouses. The available material on record does not suggest for whom the Rishta was demanded and if it was Rishta of Sumaira, injured PW or her elder sister, namely, Humaira. The motive has been described by the eye-witnesses i.e. the dispute of Rishta's between the deceased and the appellant as well as the acquitted co-accused. The eye-witnesses were sitting in the courtyard of their house and, thus, neither could see nor overhear that the quarrel; if any, took place between the spouses was on account of Rishtas. Sumaira Bibi PW.9 also deposed about the motive but her statement does not reflect the details of those Rishtas. Therefore, the motive alleged by the prosecution was not proved against the appellant. By now it is settled law that absence and weakness of motive is immaterial for recording the conviction or awarding lesser penalty but the motive in this case was material and not proved by the prosecution.
21. However, as far as the sentence is concerned, admittedly, the appellant fired at the deceased as well as the injured PWs inside his house. When the motive has been disbelieved then it is not clear that what actually had transpired between the parties at the spot immediately prior to the occurrence. Therefore, we feel that the death penalty awarded to Naeem Akhar (appellant) is not proper and the same is reduced to imprisonment for life, which will meet the ends of justice. The remaining sentences are maintained.
All the sentences shall run-concurrently. Benefit of section 382-B, Cr.P.C. shall also be extended to the appellant.
22. With the above modification, Criminal Appeal No.280-J of 2016 is dismissed. Murder Reference No.39 of 2016 is answered in the NEGATIVE and sentence of death passed against Naeem Akhtar appellant by the learned trial court is NOT CONFIRM ED.
The case property shall be dealt with strictly in accordance with law and the record of the learned trial court be sent down immediately.