1. ' BASHIR A. MUJAHID, J.--- Khalid Javed son of Muhammad Rafique and Aleem Ahmad son of .
2. Abdul Karim were tried by Additional Sessions Judge, Gujranwala under section 302/34, P.P.C. In case F.I.R. No,40, dated 9-2-1993 registered at Police Station Civil Lines, Gujranwala for commission of murder of Ghazala Naveed wife of Naveed Anwar Naveed and were convicted vide impugned judgment, dated 23-1-1996 under section 302-B, P.P.C. And sentenced to death. They were further ordered to pay compensation amounting to Rs,30,000 each under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default of payment to further undergo six months' S.I. Each.
3. ' Necessary facts of the prosecution case are that F.I.R. Exh.P.O. Was lodged by Naveed Anwar Naveed P.W.15 on 9-2-1993 at 1-15 p.m. Recorded by Muhammad Asad Ullah Khan P.W.18 wherein it was alleged that the complainant was practising Advocate of Gujranwala and was elected General Secretary of the Bar. During the day break he usually comes home to take his lunch with his wife Ghazala Naveed as she used to be all alone. On the day of occurrence after Bar meeting he alongwith Matloob Ahmad Waseem and Mahmood-ul-Hasan came to his house where he has installed a new gate but for fixation of door bell and intercom he had called two electricians namely Khalid Javed Noorani and Aleem Ahmad appellants and they were busy in their work. The complainant knocked at the door and overheard the shrieks of his wife. All the four climbed over the main gate and went inside the courtyard and saw Ghazala wife of the complainant coming out of the bath-room and two unknown persons were chasing while one of them was armed with a dagger and other with Chhuri and within their view both the accused attacked the wife of the complainant and caused injuries with their respective weapons at her breast forehead, nose, chin and back. The victim in order to save herself raised her hands and also received injuries on her hands. She fell down in the courtyard after receiving the injuries. The complainant and other raised hue and cry on which both the accused ran away towards northern side by scaling over the wall alongwith their weapons. The wife of the complainant succumbed to the injuries at the spot.
4. Subsequently supplementary statement of the complainant Exh.D.B. Was recorded stating therein that on seeing. His wife being murdered due to shock and mental stress, he was not in proper state of mind and sense had, therefore, instead of mentioning Khalid and Aleem as murderers of his wife had mentioned them as eye-witnesses of the occurrence. He also stated that he had forgotten to mention the names of eye-witnesses Muhammad Saleem and Muhammad Zubair. It was further stated that he had old terms and acquaintance with the accused/appellants and on the day of occurrence at 11-30 a.m. They came to the complainant's house for their work. Ghazala deceased had informed Zulfiqar Ali clerk of the complainant on telephone about their arrival. She was all alone in the house when the complainant during the break came home to take his lunch alongwith Matloob Ahmad Waseem and Mahmood-ul-Hasan. Muhammad Saleem Butt and Muhammad Zubair also came there and stopped in the street. The complainant alongwith these witnesses by climbing over the main gate went inside the house and saw Khalid Javed armed with Chhuri and Aleem Ahmad armed with dagger were inflicting injuries on the wife of the petitioner with their respective weapons on different parts of her body.
5. ' After registration of the case Muhammad Asad Ullah Khan P.W.18 arrived at the place of occurrence, took the dead body into possession and prepared inquest report Exh.P.N. And injury statement Exh.P.P. And despatched the dead body for post-mortem examination. He also collected the blood-stained earth from the place of occurrence vide memo. Exh.P.H. He took into possession the tools of electrician etc. Vide memo. Exh.P.J.
6. ' The post-mortem examination on the dead body of Ghazala Naveed was conducted by Dr. Farrukh Hussain Mirza on 10-2-1993 who found the following injuries on her dead body:--
(1) Incised wound 1.5 x 0.4 c.m. x scalp deep on right side of forehead, 5 c.m. Above right eyebrow and 1 c.m. Within hear line. Both angles were found acute.
(2) Incised wound 2 x 0.5 c.m. x going deep situated vertical on left side of the nose, cutting and piercing through the bones underneath, both angles acute.
(3) Incised wound 1.5 x 0.3 c.m. x cartiledge deep, horizontal on the bridge of nose, 2 c.m. Above the tip of nose.
(4) Incised wound 4.5 x 0.5 c.m. x going deep, one angle acute below the jaw bone on right side, 3 c.m. From midline.
(5) Incised wound 4.5 x 0.5 c.m. x going deep, both angles acute, on right supra clavicular fossa, 5 c.m. From tip of right shoulder.
(6) Incised wound 1.5 x 1 c.m. x going deep, 1.5 c.m. Below the right nipple on right breast, one angle was acute.
(7) Incised wound 1.5 x. 1 c.m. On left breast, 1.5 .c.m. Above the left of left nipple x going deep, one angle was acute.
(8) Incised wound 3 x 1 c.m. On right side of chest lower part, 9 c.m. Below the right nipple and 12 c.m. From midline x going deep, both angles were acute.
(9) Incised wound 2.5 x 0.2 c.m. x skin deep on back of right middle finger middle phallynx.
(10) Flapped incised wound 1.5 x 1 c.m. On palmar aspect of middle phallynx of right middle finger muscle deep.
(11) Incised wound 1.5 x 0.2 c.m. x skin deep on outer aspect of left index finger, proximal phallynx.
(12) Incised wound 1 c.m. x 2 c.m. x skin deep on back of left thumb first phallynx.
(13) Abrasion 1/2 x 1/2 c.m on proximal phallynx of left middle finger.
(14) Incised wound 2 x 1 c.m. x partial muscle thickness on left buttock. 2 c.m. Above the gluteal fold and 1 c.m. From mid line, one angle was acute.
7. ' On 21-2-1993 P.W.18 arrested Khalid Javed and Aleem Ahmad accused. Khalid Javed accused while in police custody on 28-2-1993 led to the recovery of blood-stained Chhuri P.19 from his house which was taken into possession vide memo. Exh.P.K. On the same day Khalid Javed accused also led to the recovery of his clothes stained with blood, Shalwar P.20 and Shirt P.21 which were taken into possession vide memo. Exh.P.L. On 3-3-1993 Aleem Ahmad accused while in police custody led to the recovery of blood-stained dagger P.7 from his residential house and also got recovered his blood-stained clothes shirt P.8 and Shalwar P.9 which were taken into possession vide memo. Exhs.P.F. And P.G. Respectively. Aleem Ahmad accused went to make a confessional statement on which he was produced before the Ilaqa Magistrate through application by the Investigating Officer and Aleem Ahmad accused got his confessional statement recorded under section 164, Cr.P.C. Before Malik Masud Ahmad P.W.9. After recording the statement he was sent in judicial lock-up. The investigation was completed and the accused were challaned.
8. ' They denied the allegations and claimed the trial: ' During the trial prosecution examined as many as 18 witnesses to prove the guilt of the accused.
9. Naveed Anwar Naveed complainant was examined as P.W.15. He supported the prosecution case based on his supplementary statement as an eye-witness. Matloob Ahmad Waseem was examined as P.W.16. He also supported the complainant being eye-witness of the occurrence.
10. Likewise Muhammad Zubair was examined as P.W.17. He was also eye-witness of the occurrence.
11. His statement was in line with the statement of complainant P.W.15 as well as Matloob Ahmad Waseem P.W.16. Zulfiqar Ali was examined as P.W.8 who was clerk of the complainant and stated that at 11-30 a.m. On the day of occurrence he received telephonic call from the deceased wife of the complainant informing him that Khalid Javed and Aleem Ahmad accused had arrived at the house to install intercom set and electric bell. Malik Masud Ahmad M.I.C. Was examined as P.W.9 who had recorded confessional statement of the accused Aleem Ahmad under section 164, Cr.P.C.
12. He stated that the accused was dehand-cuffed and his statement was recorded after observing due formalities and after recording the statement the accused was sent in judicial lock-up.
13. Muhammad Saeed P.W. 10 was the recovery witness of dagger which was got recovered by Aleem Ahmad and clothes of accused, he was wearing at the time of commission of crime. Abdul Ghafoor was examined as P.W.11 as witness of Wajtakkar. He saw both the appellants armed with their respective weapons escaped by scaling over the wall of the house of the complainant after the commission of murder. Likewise Khalid Pervaiz P.W.12 also stated that he had seen them when they fled away from the house of the complainant after commission of crime. Sahibzada Muhammad Saleem was examined as P.W.13. He attested the recovery of articles taken into possession from the place of occurrence by the police. He also attested the recovery memo. Exh.P.K. Whereby accused Muhammad Khalid got recovered Chhuri P.19 and his blood-stained clothes. Towards the end of trial the accused were examined under section 342, Cr.P.C. They denied the charge and claimed their innocence. Muhammad Khalid accused also placed on record written statement Exh.P.F.
14. Muhammad Aleem accused submitted his written statement Exh.D.E. He also produced in defence copy of the Writ Petition bearing No,29995 of 1993 Exh.D.C. And order Exh.D.C./1. Attested copy of Criminal Miscellaneous No,118/H of 1993 Exh.D.D. And order Exh.D.D./1 was also produced. Regarding confessional statement Aleem Ahmad accused stated that the same was got recorded under coercion.
15. ' Dr. Ehsan Ellahi was examined as D.W.1 who on 23-2-1993 at 1 p.m. While he was posted as Senior Medical Officer in the office of Surgeon Medico-Legal Punjab, Lahore has examined Khalid Javed and found the following injuries on his person:--
(1) Healing contusion in an area 18 x 12 c.m. On outer upper and mid left upper arm.
(2) Healing contusion 6 x 1 c.m. On front mid left forearm.
(3) Healing contusion 4 x 1 c.m. On outer right shoulder.
(4) Multiple scabbed abrasion with healing contusion in an area of 12 x 12 c.m. On right buttock.
(5) Multiple healing contusion in an area of 16 x 16 c.m. On left buttock.
(6) Scabbed abrasion 5.5 x 1.5 c.m. On an outer upper left thigh.
(7) Multiple scabbed abrasion 2.5 x 2 c.m. On front of upper left knee.
(8) Scabbed abrasion 1 x 1 c.m. On outer lower left knee.
(9) Scabbed abrasion contusion in an area 4 x 2 c.m. On front lower left leg.
(10) Multiple healing contusion in area 12 x 7 c.m. On back upper right leg.
16. ' On the same day he also examined Aleem Ahmad accused and found the following injury on his person.
17. ' Multiple contusion in an area 13 x 10 c.m. On left buttock.
18. ' The trial culminated into conviction of the accused as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No,100 of 1996 while the trial Court has sent up Murder Reference No,259 of 1996 for confirmation of death sentence. Both the matters are being decided by this judgment.
19. ' Learned counsel for the appellants has argued that the appellants were not arrayed as accused in the F.I.R. Rather they were eye-witnesses of the occurrence. The supplementary statement was recorded after due deliberation and consultation as the complainant was practising Advocate and under the pressure of the local Bar, the police in order to show its efficiency implicated the appellants falsely in the instant case. It has been pointed out by the learned counsel that in the inquest report all the facts narrated in the F.I.R. Have been incorporated and finds mention of supplementary statement towards its end clearly shows that it was inserted subsequently and was not available at the time when the papers including the inquest report was sent to the doctor when dead body was despatched for post-mortem examination. The accused had filed writ petition showing their apprehension for false implication alleging that their clothes have also been taken into possession for planting false recovery, that the accused were physically tortured by the local police and were kept in illegal confinement but their arrest was shown on 21-3-1993; that physical torture on them has been proved by the evidence of Dr. Ehsan Elahi D.W.1; that the confessional statement of Aleem Ahmad accused cannot be relied upon as the same was recorded against his wishes and he was forced to sign it that at the time of recording the F.I.R. Wherein both the appellants were shown as eye-witnesses of the occurrence, P.W.16, Matloob Ahmad Waseem was also present at the police station with the complainant and he could get the statement corrected by nominating the appellants as accused but he did not take any step in this regard. Thereafter, his statement as an eye-witness implicating the present appellant as accused is not trustworthy. The prosecution case is doubtful and the conviction is not sustainable under the law.
20. ' Conversely the appeal has been opposed by the complainant and the learned State Counsel who have supported the impugned judgment.
21. ' Heard. Record perused.
22. ' First of all we would like to discuss the ocular account which consists of the statement of Naveed Anwar Naveed complainant P.W.15. He had supported the prosecution case as narrated by him in the F.I.R. Read with his supplementary statement. Recording of supplementary statement has been explained by him particularly when he was cross-examined by defence counsel. The supplementary statement was brought on record not by the prosecution but by the defence through Exh.D.B., therefore, it can be read and considered alongwith the F.I.R. Furthermore, F.I.R. Is not a substantive piece of evidence. Its basic purpose is to set the law in motion. Even if the accused are not nominated in the F.I.R., the prosecution evidence cannot be discarded on this score. Regarding the objection of the learned counsel for the appellant by making reference to the supplementary statement after closing the narration of the F.I.R. In the inquest report, is devoid of force. No illegality has been committed by giving the contents of the F.I.R. In the inquest report and attaching the supplementary statement with it. Dr. Farrukh Hussain Mirza P.W.14 while cross- examined has explained that the words stated by the defence counsel making reference to the supplementary statement are not overlaping the cross-lines. We feel satisfied that the complainant on seeing his young wife murdered, naturally was under grave stress and pressure.
23. He could not he expected to know about the minute details written in the F.I.R. And on coming to know he rightly got those corrected through his supplementary statement without any loss of time.
24. His statement has been fully corroborated by Matloob Ahmad Waseem P.W.16. The prosecution story has been clarified that at 11-30 a.m. Zulfiqar Ali P.W.12 clerk of the complainant received telephonic call from the deceased intimating him about the arrival of both the accused at home for work and they were allowed to undertake the job for about 1-30 hours and thereafter just before the arrival of the complainant they were taking tea when they tried to overpower the deceased inside the house to satisfy their lust, and on failing, they committed this heinous crime. This fact has also been proved by the confessional statement under section 164, Cr.P.C. Of Aleem Ahmad accused on the last date of his remand and thereafter he was sent in judicial lock-up.
25. The ocular account has been fully corroborated by the medical evidence. The injuries attributed to both the accused have been found on the dead body. The prosecution case has been further corroborated by Muhammad Saeed P.W.10 and Abdul Ghafoor P.W.11 who are the witnesses of Wajtakkar. They had seen both the appellants armed with weapons of offence soon after the occurrence and they forthwith narrated this fact to the complainant giving all details. Their evidence cannot be discarded as they are independent and trustful witnesses.
26. ' The most important evidence of the prosecution case is recovery of articles/tools belonging to both the accused from the place of occurrence, which were taken into possession by the police and also the recovery of blood-stained clothes of the accused and weapons of offence. The recovery memos. Are also attested by independent and impartial witnesses.
27. ' An other important aspect of the case is that both the accused have admitted their presence at the spot in their statements under section 342, Cr.P.C. And also through defence plea while cross- examining the P.Ws. By both the accused stating that they were forced by the complainant and the police to become prosecution witnesses to depose falsely against unknown assailants and on their refusal they have been arrayed as accused in the instant case, their plea itself supports the prosecution version. The accused have also admitted their acquittance and previous relations with the complainant. We do not believe that the complainant who is educated person and having standing of 12/13 years at the Bar would falsely implicate the appellants and substitute Them after letting off the real culprits. The argument of the learned counsel that under the pressure of local Bar the police involved the present appellants falsely, is devoid of any force as the police may be under some pressure but there was no compulsion for the complainant to involve the innocent persons.
28. The confessional statement of Aleem Ahmad is another important piece of evidence to implicate both the accused in the commission of crime. It is settled law that confessional statement can be based for recording conviction although, subsequently retracted, if it was found genuine and corroborated by other evidence as is in the instant case. On the last date of their physical remand both the accused were produced before .The Ilaqa Magistrate, Malik Masud Ahmad P.W.9. If the confessional statement was to be extorted under coercion and by force then why it was not recorded and got signed by both the accused. Khalid Javed accused opted not to make any statement on which he was sent to judicial lock-up but only Aleem Ahmad opted to make the said statement and after observing all the legal formalities, the learned Magistrate recorded his statement under section 164, Cr.P.C. And this statement corroborates the total prosecution case.
29. Aleem Ahmad accused gave all the details and the manner in which both the accused committed the murder. We do not agree with the contentions of the learned counsel for the appellants this statement was the result of any duress or confusion.
30. ' Learned counsel for the appellants has also argued that the accused were taken into custody prior to showing their formal arrest and were caused physical torture and writ petition and habeas petition was also filed on their behalf in the High Court but this arguments has also no force as in the habeas petition bailiff was deputed even general search was made but the accused were not found in the custody of the police. The Constitutional petition was also dismissed. The alleged injuries on the person of the accused do not prove the allegation of physical torture by the police as they never complained to the Magistrate when they were produced before him for physical remand. Even if it is believed true it is unfortunate that in our society third degree method is adopted by the police during the investigation which has been always deprecated by the superior Courts and we also do not approve the same and it is not agreed to discard the entire prosecution evidence.
31. ' Aleem Ahmad accused in his confessional statement has clearly stated that he has remained in physical custody for the last 12/13 days which co inside with the prosecution version that they were arrested on 21-3-1993 and not before.
32. ' Although the complainant has argued the case himself before this Court and we observe that he was a bit emotional which was of course natural but above all the sentiments after detailed scrutiny of the prosecution evidence on record, we are convinced that the prosecution has established its case against both the appellants beyond any shadow of doubt and do not find any reason to interfere in the conviction recorded against them or the sentence awarded by the trial Court.
33. Resultantly the appeal is dismissed. The conviction and sentence H against the appellants is maintained. The death sentence of Khalid Javed and Aleem Ahmad is confirmed.
34. ' The Murder Reference is answered in affirmative.