MUHAMMAD TARIQ NADEEM, J.---Through this single judgment, we intend to dispose of Criminal Appeal No.214337 of 2018, filed by Sana Ullah, appellant against his conviction and sentence along with Murder Reference No.226 of 2018, transmitted by learned trial court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 19- 05-2018 passed by learned Additional Sessions Judge, Gujrat in case FIR No.290 dated 17-11-2014 for offences under Sections 302, 324, 337-A(i) and 337-F(ii), P.P.C. registered at Police Station Karrianwala, Gujrat, whereby at the conclusion of the trial, the learned trial court, convicted and sentenced the appellant Sana Ullah for committing the murders of Nazir Begum and Muhammad Nazir as under:-- Under section 302(b), P.P.C. Sentenced to death on two counts.
He was directed to pay Rs.3,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of Nazir Begum (deceased), or in default thereof to further undergo 03 months S.I.
He was also directed to pay Rs.3,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of Muhammad Nazir (deceased), or in default thereof to further undergo 03 months S.I.
Under section 324, P.P.C.
04 years RI with fine of Rs.50,000/- or in default thereof to further undergo 06 months S.I.
Benefit of section 382-B, Cr.P.C. was extended to him.
2. A brief history of the case narrated by Muhammad Jameel, complainant (PW.13) in FIR (Ex.PM/1), registered on his written application (Ex.PM) is that they were 03 brothers and 02 sisters, out of which one sister namely Mst. Bilqees Bibi, who was dumb was married with Sana Ullah, appellant about 03 years ago and from the wedlock, they were blessed with a son. Further stated that about 03 months back said Balqees Bibi due to some quarrel with her husband, came at the house of her parents and was residing there, however, on the day of occurrence, in the evening time, after taking dinner when Muhammad Jameel, complainant, Muhammad Idrees, their father Muhammad Nazir (deceased), mother Nazir Begum (deceased) and Mst. Bilqees Bibi were sleeping. At about 09:30 p.m., Sana Ullah, appellant armed with knife after scaling over the wall entered the house of complainant, due to sound of pedes, they awakened and in the light of electric bulb identified him as Sana Ullah, appellant. Suddenly, Sana Ullah, appellant inflicted 02 knife blows on the person of Muhammad Nazir out of which one blow landed on the abdomen and the other on his left flank.
Nazir Begum, mother of complainant and his brother Muhammad Idrees tried to rescue Muhammad Nazir and during grappling, Sana Ullah, appellant also sustained injuries, however, he (appellant) inflicted 02 knife blows at the abdomen of Nazir Begum due to which she fell down and died, then Sana Ullah inflicted knife blows on Muhammad Idrees at his left elbow little above. On hearing the screams, Mirza Taseer and Muhammad Rizwan alias Shahid Butt neighbourers from the side of roof entered the house of complainant and captured the accused Sana Ullah along with blood stained knife. Muhammad Nazir/father of complainant was shifted to the hospital for treatment but he succumbed to the injuries there.
The motive behind the occurrence was that 03 months prior to the occurrence, Mst. Bilqees Bibi sister of complainant was living with them due, to her differences and quarrel with her husband/appellant, who had suspicion that his in-laws were restraining Bilqees Bibi to settle with him.
3. After completion of investigation, report under section 173, Cr.P.C. was prepared and submitted before the learned trial court. The learned trial court after observing all codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant to which he pleaded not guilty and claimed trial.
The prosecution in order to prove its case produced as many as 16 PWs. The ocular account of the incident in issue had been provided by Mirza Taseer Baig (PW.12), Muhammad Jameel, complainant (PW.13) and Muhammad Idrees (PW.14).
Asif Akhtar Napsh, Draftsman (PW.2) prepared site plans of the place of occurrence (Ex.PC and Ex.PC/1). Sajjad Anwar, SI (PW.15) was the Investigating Officer of the case who stated about the various steps taken by him during investigation of this case.
The medical evidence was furnished by Doctor Muhammad Ansar, SMO (PW.7), Doctor Naseem Zameer (PW.8), Doctor Saad, SMO (PW.9) and Doctor Abdul Qadeer, MO (PW.11).
The remaining evidence produced by the prosecution was formal in nature. The prosecution gave up Mst. Bilqees Bibi, Muhammad Rizwan and Muhammad Ishaq, PWs being unnecessary. The prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PX.
4. After closure of prosecution evidence, statement under section 342, Cr.P.C. of the appellant was recorded in which he denied the allegations levelled against him and professed his innocence.
While answering to a question, "Why this case registered against you and why the PWs have deposed against you?, the appellant replied as under:- "As a matter of fact, I am deaf and dumb by birth but due to my poor mental condition, I have no source of income and due to this reason some differences arose between my wife and me, I am suffering from disease of fits and due to fits condition, I left my house for so many times. My brother Ehsan Ullah took me to many Darbars for "Dam Darood" and also for medical treatment he took me to Dr. Nadeem Ahmad Bhatti for mental/fits treatment. several time tried to escape from the custody of my brother. Due to my this condition, my brother submitted an application to police station Barnela for transmission to me in mental hospital. On 17.11.2014, I went to the house of my in-laws for the purpose of reconciliation with my wife but during the negotiation, I once again fell in the condition of fits/doora and 1 lost my consciousness and thereafter, I have no information that what had happened. I have no knowledge what was done or not just due to un- consciousness. 1 am innocent because nothing was happened in my consciousness. put my said version to the police during the investigation but police did not pay any heed."
The appellant did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation levelled against him, however, he produced certain documents i.e. Mark-DA and Mark-DB and also produced Muhammad Ehsan (DW.1) and Abdul Aziz (DW.2) in his defence evidence.
5. Upon conclusion of the trial, the learned trial Court vide impugned judgment dated 19-05-2018 convicted and sentenced the appellant as narrated above.
6. Learned counsel for the appellant submits that the appellant has been falsely implicated in this case by the complainant party; that eye-witnesses of the case are not only inter se related but they are also inimical towards the appellant, therefore, their evidence is not reliable without independent corroboration, which is very much lacking in this case; that the statements of PWs are infact full of discrepancies which cast serious doubt upon the prosecution case; that the injury on the person of Muhammad Idrees (PW.14) is not the stamp of his being truthful witness; that the medical evidence is in conflict with the ocular account of the prosecution; that a fake recovery of weapon of offence i.e. knife was planted against the appellant; that the prosecution has failed to prove the motive of the case; that the appellant for the last about 01 year before the occurrence was seriously suffering from ,the disease of fits and this fact was established during the trial through defence evidence and occurrence took place during the fits, he was senseless; that it is an established view of the Apex Court of the country that a single doubt in the prosecution evidence was sufficient to give the benefit of same to the accused in such like cases, whereas the case in hand is full of doubts; that the appeal in hand be accepted and the Murder Reference may be answered in the negative.
7. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the, complainant vehemently opposed the contentions raised by learned counsel for the appellant and inter alia maintained that the appellant is sole perpetrator of the offence, who is well-nominated in a promptly lodged FIR with specific role of inflicting knife blows on the bodies of Nazir Begum and Muhammad Nazir (deceased) as well as injury at Muhammad Idrees, injured (PW.14); that the role attributed by the PWs to the appellant is fully established through the medical evidence; that the presence of eye-witnesses at the place of occurrence is quite natural; that the prosecution case finds further corroboration from the recovery of weapon of offence at the pointation of the appellant; that the prosecution has proved the motive part of the occurrence and its case stood proved beyond the shadow of reasonable doubt, hence, prayed that while dismissing the appeal filed by the appellant and answering the murder reference in affirmative, his sentence of death may be confirmed.
8. We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General meticulously and also perused the record minutely with their able assistance.
9. According to the prosecution version, the occurrence in this case had taken place on 17-11-2014 at about prudent mind that close relatives will let off the real culprit of killing their near and dear one's and falsely implicate an innocent person. Reliance in this respect is placed on the esteemed judgments passed by the Hon'ble Supreme Court of Pakistan reported as "Zia Ullah and another v.
The State" (2021 SCMR 1507), "Asfandyar v. The State and others" (2021 SCMR 2009) and "Ghaffar Mahesar v. The State through P.G. Sindh and others" (2022 SCMR 1280).
We are satisfied that eye-witnesses were present at the scene of occurrence at the time of incident and their claim of having seen the tragedy, stands proved from material available on record.
11. Ocular account furnished by prosecution also import corroboration from medical evidence as the anti-mortem injuries on the person of both the deceased: attributed to the appellant are reflected in the post mortem reports. Medical evidence furnished by Doctor Naseem Zameer (PW.8), who conducted autopsy of Nazir Begum, proved post-mortem report (Ex-PF) and gave opinion that injury Nos.1 and 2 are sufficient to cause death in ordinary course of nature. Similarly, Doctor Saad (PW.9) conducted postmortem on the dead body of Muhammad Nazir (deceased), found injuries Nos.1, 2 and 3 as cause of death and proved his post-mortem report (Ex.P.J. Likewise, Doctor Muhammad Ansar (PW.7) also medically examined Muhammad Idrees, injured (PW.14) and issued his MLR (Ex.PE). We have also noticed that the statements of supra-mentioned doctors made before the learned trial court although subjected to cross-examination by the defence but nothing helpful to the defence could be extracted from them. Thus, the medical evidence provided full support to the ocular account in this case.
12. Coming to the defence plea of the 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:- "As a matter of fact, I am deaf and dumb by birth but due to my poor mental condition, I have no source of income and due to this reason some differences arose between my wife and me. I am suffering from disease of fits and due to this fits condition, I left my house for so many times. My brother Ehsan Ullah took me to many Darbars for "Dam Darood" and also for medical treatment he took me to Dr. Nadeem Ahmad Bhatti for mental/fits treatment. several time tried to escape from the custody of my brother. Due to my this condition, my brother submitted an application to police station Barnela for transmission to me in mental hospital. On 17.11.2014, I went to the house of my in-laws for the purpose of reconciliation- with my wife but during the negotiation, I once again fell in the condition of fits/doora and I lost my consciousness and thereafter, I have no information that what had happened. I have no knowledge what was done or not just due to un- consciousness. I am innocent because nothing was happened in my consciousness. I put my said version to the police during the investigation but police did not pay any heed."
The defence taken by the appellant is not appealing to a prudent mind for the reasons amongst other that the appellant failed to explain from where he has brought the knife along with him.
However, at this stage, the learned counsel for the appellant has argued that the requirement of section 361, Cr.P.C. has not been full filled by the learned trial Court for the reason, the case be remanded back to the learned trial court for a de novo trial. To meet with said arguments, it would be advantageous to go through the provisions of section 361, Cr.P.C., which are reproduced as under:- ... 361. Interpretation of evidence to accused or his pleader:- (1) Whenever any evidence is given in a language not understood by the accused, and he is present in person it shall be interpreted to him in open Court in a language understood him.
(2) If he appears by pleader and the evidence is given in a language other than the language of the Court and not understood by the pleader, it shall be interpreted to such pleader in that language..
(3) When documents are put in for the purpose of formal proof it shall be in the direction of the Court to interpret as much thereof as appears necessary."
The provisions of section 361, Cr.P.C. can be divided into three parts; One, when evidence is given in a language not understood by the accused and he is present in person it will have to be interpreted to him in open Court in a language which is understood by him. Two, when the accused is represented by a pleader and afore visualized situation arises and the pleader does not understand a language, the evidence shall have to be interpreted in of language which is understood by the pleader. Three, similarly when any documents are put in for the purpose of formal proof it will be for the Court to interpret as much thereof as is necessary, of course for the benefit of the accused.
We have noticed that though the appellant claims himself to be deaf and dumb but we are of the view that section 341, Cr.P.C. does not apply in this case because the pre-requisite of section 341, Cr.P.C. is that the accused though not insane, cannot be made to understand the proceedings and in this case the appellant was able to understand the proceedings of the case. We have further noted that at the time of framing of the charge against the appellant, a meeting was held between Ehsan Ullah elder brother of the appellant and Misbah Kausar, Headmistress, Government, Deaf and Defective Hearing School, Gujrat for the purpose to understand the stance/reply of appellant regarding the allegation levelled against him. Both the said interpreters of the appellant stated that they were in a position to submit the reply/stance of the appellant. Thereafter, the questions/query regarding the framing of charge were also put up to Sana Ullah, appellant through his interpreters Misbah Kausar, Headmistress, Government, Deaf and Defective Hearing School, Gujrat as well as his elder brother Ehsan Ullah, who communicated the questions of the court to the appellant and recorded the reply/stance of the appellant by interpreting his sings and gestures. Ultimately, the charge was framed against the appellant. Thereafter, at the time of recoding of all the prosecution witnesses, brother of the appellant namely Ehsan Ullah remained present as his interpreter on each and every date of hearing. Moreover, the statement of the appellant under section 342, Cr.P.C. was recorded in presence of Ehsan Ullah, real brother of appellant, who explained questions put to him with signs of hands and got recorded answers according to the replies of appellant, which he given with signs of hands of his brother. It will not be out of place to mention here that it was neither agitated during the proceedings of the case that the appellant is unable to understand the proceedings nor any application was filed in this regard. We have also noticed that real brother of appellant namely Ehsan Ullah was examined as DW.1, according to his statement the appellant was deaf and dumb since his childhood and being the real brother; he understands sign and gestures/symbols of appellant, however, sometimes some signs not understand by him. It is noteworthy that the supra mentioned DW.1 has never taken the stance that at the time of framing of charge against the appellant, recording of evidence and statement of appellant under section 342, Cr.P.C. that he could not convey/interpret the signs and gestures of the appellant. Moreover, the appellant was represented by two learned counsel who fully represented the appellant and cross-examined the P Ws at length. They also not filed any application during the whole trial that the appellant could not understand the evidence recorded in his presence and unable to reply the questions of the Court.
In the light of above mentioned facts, we are of the considered view that the learned trial court has fully observed and taken care of the provisions of section 361, Cr .P.C. Though the appellant claimed himself deaf and dumb but he was able to understand the proceedings through interpreter Ehsan Ullan, his real brother. Reliance is placed on the case titled as "Khushi Muhammad v. Jamat Ali and others" (PLD 1984 SC 54) wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "In this case, although the point has now been considered in this Court with reference to these provisions for the first time, yet the record is no lacking in so far as the relevant material is concerned; and, the same has also been treated as relevant regarding the provisions of section 341, Cr. P. C. Be that as it may no complaint has been made that Mahmood Shah and Mukhtar Shah accused were not made to understand the evidence through the interpreters or the questions put to them under section 342, Cr. P. C. or that in the latter case their answers did not represent what they desired to go on record. On the contrary as already noted, they not only understood the entire proceedings, of course through the instrumentality of interpretation by their own brothers, but also fully and actively participated in the proceedings and one of them also adduced defence evidence. Accordingly the learned trial Magistrate did not commit any illegality in this behalf either. The remand of the case for fresh trial thus was not justified on any ground."
Thus, we are quite confident to observe that the prosecution has proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confidence inspiring eye-witness account.
13. So far as the contention made by the learned counsel for the appellant that the appellant was suffering from a disease of fits and in this respect learned counsel for the appellant has drawn the attention of this Court towards the document Mark-DA, an application submitted before the SHO, Police Station Barnala, which was submitted by Muhammad Ehsan (DW. 1), brother of the appellant with the assertion that his brother Sana Ullah is a mentally retarded person. He met with fits oftenly.
He be got admitted in the mental hospital whereas Mark-DB is a prescription slip issued by Doctor Nadeem Ahmad Bhatti, Psychiatrist. We have noticed that both the supra mentioned documents have not been proved by the defence in accordance with law. In this way, the contention of the learned counsel for the appellant has no force that Sana Ullah, appellant was mentally retarded person at the time of occurrence.
14. The recovery of blood stained knife (P.6) at the spot, vide recovery memo (Ex.PS) stands proved to the hilt by Mirza Taseer Baig (PW.12). The parcel of knife was also deposited with Moharrer Malkhana, Police Station, Karrianwala, Gujrat, Usman Arshad, HC 1474 (PW.6), who handed over the said parcel to Nahoom Saleem 1992/C (PW.5) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore, who delivered the said parcel in the said office intact. The report of Punjab Forensic Science Agency, Lahore (Ex.PU) has unambiguously opined that human blood was identified on the knife recovered from Sana Utah, appellant, thus, the recovery of weapon of offence serves as a strong piece of corroboration to the ocular testimonies of aforesaid PWs.
15. So far as motive part of the occurrence is concerned, we have observed that firstly, Muhammad Jameel, complainant (PW.13) in his statement (Ex.PM) disclosed that the appellant committed the murder of deceased Nazir Begam and Muhammad Nazir due to the fact that 03 months prior to the occurrence, complainant's sister namely Balqees Bibi, who was wife of Sana Ullah, appellant was living with them due to her diferences and quarrel with the appellant and he had suspicion that his in-laws were restraining his wife to settle her with him. Muhammad Idrees (PW.14) also deposed in line with the statement of complainant (PW.13). Moreover, Muhammad Ehsan (DW.1) has also admitted the motive part of the prosecution in his examination-in-chief, therefore, the prosecution successfully proved motive part of the occurrence.
16. For what has been discussed above, we are of the considered view that prosecution, by producing cogent, concrete, consistent and trust worthy evidence, able to establish that appellant, Sana Ullah has committed brutal and merciless murders of two innocent persons namely Nazir Begum and Muhammad Nazir and also injured Muhamamd Idrees (PW.14), while they were present at their house. Therefore, charge under section 302(b) of Pakistan Penal Code, 1860, for Qatl-i-Amd of Nazir Begum and Muhammad Nazir as well as charge under section 324, P.P.C. for causing injuries to Muhammad Idrees, injured (PW.14) is proved against the appellant. We, therefore, uphold his conviction under Sections 302(b) and 324, P. P. C.
As regards the sentence, learned defence counsel though prayed for reduction of sentence yet has not been able to plead any mitigating circumstance for imposing the lesser penalty of life imprisonment. The accused (Sana Ullah) has committed a cruel and wanton act by the taking the lives of two innocent persons and injured Muhammad Idrees (PW.14) just to satisfy his grudge. We, therefore, see no extenuating or mitigating circumstances for altering the death sentence rather we are convinced that only the sentence of death would meet the ends of justice.
17. For the foregoing reasons, Criminal Appeal No. 214337 of 2018 filed by Sana Ullah, appellant is dismissed, his conviction for offence under Section 302(b), P.P.C. on two counts is upheld and the sentence of death as well as the order of payment of compensation passed against him by the learned trial court is maintained.
18. The remaining sentence awarded to Sana Ullah, appellant under section 324, is also maintained and upheld.
19. As the sentence of death passed by the learned trial Court against Sana Ullah, appellant has been confirmed by us, therefore, Murder Reference No. 226 of 2018 is hereby answered in the affirmative.