TANVIR BASHIR ANSARI, J.----Two accused persons namely Muhammad Feroze and his son Ghulam Raza were tried under sections 302/34/460, P.P.C. By the learned Additional Sessions Judge, Chakwal for the murder of Mst. Tasleem Akhtar. The learned trial Judge vide his judgment dated 4-6-1997 acquitted Ghulam Raza of the charge while Muhammad Feroze appellant was convicted as under:-- Under section 302(b), P.P.C.
He was sentenced to death and a compensation of Rs.1,00,000 to be paid to the legal heirs of the deceased and in default thereof, the amount would be a liability against a person and property of the appellant.
Under section 460. P.P.C.
He was sentenced to 10 years' R.I. This sentence shall take place only, if the death penalty on the charge of murder is not confirmed and in such a situation, sentence of imprisonment would be subject to the benefit of section 382-B, Cr.P.C.
2. The appellant has filed Criminal Appeal No.83 of 1997 against his conviction and sentence whereas the complainant has filed Criminal Appeal No. 109 of 1997 against the acquittal of the respondent Ghulam Raza. The learned trial Judge has sent a reference to this Court for the confirmation of death sentence of the appellant. We propose to dispose of all the matters by this judgment.
3. The prosecution case as disclosed by Muhammad Riaz complainant P.W.5, in brief is that he was married to Mst. Tasleem Akhtar deceased 2-1/2 months before her murder. On the night between 20/21-7-1996 Muhammad Riaz and his were Mst. Tasleem Akhtar slept in the courtyard of their house located in village Mattan Khurd, District Chakwal. Upon drizzling Muhammad Riaz were up at about 1-00 a.m. And saw Muhammad Feroze armed with a gun and his son Ghulam Raza empty- handed in the courtyard of the house. Ghulam Raza threw a challenge that the complainant would be given the taste for having quarrelled with his sister Mst. Sakina. In the meantime, Muhammad Feroze fired while placing his gun on the left side of the breast of Mst. Tasleem Akhtar and she died at the spot. On hue and cry, his brother Safdar and Taj Muhammad reached the spot and witnessed the occurrence.
4. Motive for the occurrence was that one month before, Mst. Tasleem Akhtar deceased and Mst.
Sakina daughter of Muhammad Feroze quarrelled with each other on account of some dispute which arose while fetching water from the village water tap. Muhammad Feroze smashed the pitchers of Mst. Tasleem Akhtar and in retaliation, Muhammad Riaz broke the pitchers of Mst.
Sakina on the following day. With the intervention of Ghulam Mustafa, a brother of Muhammad Feroze, the dispute was patched up but Muhammad Feroze bore grudge.
5. The accused were charge-sheeted under sections 302/34/460, P.P.C. They pleaded not guilty and claimed trial.
6. The prosecution produced as many as 12 witnesses to prove its case. The important prosecution witnesses are Mansoor Ahmad S.-I./P.W.11 who conducted the investigation in the case, Mulazim Hussain S.-I./P.W.12 who arrested the appellant on 7-8-1996 and recovered gun P.7 from him, Muhammad Sharif Draftsman P.W.10 who prepared the site plan and Lady Doctor Azhar Azra P.W.4 who conducted the post-mortem examination of the deceased. The eye-witness account has been rendered by Muhammad Riaz complainant/husband of the deceased who appeared as P.W.5 and Taj Muhammad P.W.6. The evidence of motive has been supported by Mst. Razia Bibi P.W.8. The recovery of gun effected by the Investigating Officer/P.W.12 was attested by Ikhlas Khan P.W.7. The other witnesses of the prosecution were by and large formal in nature.
7. The accused persons were examined under section 342, Cr.P.C. And they refuted the allegations put to them. In an answer to a question as to why this case against him, Muhammad Feroze appellant stated that:-- "Khizar Hayat brother-in-law of the complainant is inimical towards me. He is S.-I. And is/was attached with Chakwal Police. In July, 1992. I was falsely involved in a case of attempted murder vide F.I.R. No. 67 dated 7-7-1992 at Police Station Kallar Kahar wherein I faced trial and was acquitted of the charge. Aforesaid Khizar Hayat has supported Ghous Muhammad complainant of that case and is inimical towards me ever since. Mst. Tasleem Akhtar who is closely related to Khizar Hayat was done to death in mysterious circumstances. Reasons of her murder were not disclosed for the sake of family honour. I and my son have been used as scapegoats to hush up the case of Mst. Tasleem Akhtar and for that reason all the P.Ws. Who are close and related inter se have joined hands to make false depositions against me and my son."
Muhammad Feroze got examined Raja Pervez Akhtar, S.D.O., WAPDA in his defence as D.W.1. The eye-witnesses claimed that they identified the accused persons in the electric light and in order to rebut his version, the S.D.O. Was got examined who deposed that there is no power connection in the name of Muhammad Riaz complainant or his neighbour Sada Khan.
8. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellant as indicated above.
9. The learned counsel for the appellant h. I assailed the judgment mainly on the following grounds:--
(a) That the ocular evidence is inconsistent with the medical evidence. He made reference to the following contents of the F. I. R.:-- and compared it with the statement of Lady Dr. Azhar Azra P.W.4 who deposed as under:--
(1) An entry lacerated wound shape wound 0.7 c.m. In dia with inverted margins surrounded by blackening of the skin on the back of left side of chest 4 c.m. From midline and 18 c.m. Below the level of shoulder. Corresponding mark was present on Kameez also.
(2) A lacerated wound of exit 7 c.m. x 3.5 c.m. On the left breast just below the nipple wound was at the same level as the wound of entry."
The learned counsel contended that whereas, according to the evidence of witness account, the shot was fired at the deceased was upon the left side of her breast (front side), the medical evidence is to the contrary when it states that the entry wound was on the back of the left side of chest and the wound on the left breast was exit wound. Reference in this respect was further made to the statement of Investigating Officer/P.W.11 which is to the following effect:- "In the injury statement and the inquest report I mentioned only one injury which was above the left breast."
(b) That the ocular account is unbelievable and discrepant which implies that the professed eye- witnesses were not present at the spot and had not witnessed the occurrence.
The learned counsel mainly alluded to the evidence of Taj Muhammad P.W.6 read in context of site plan Exh.PA. Pointing to the alleged vantage point No.3 from which this P.W. Claims to have seen the occurrence, it was urged that it was impossible either to see the occurrence or identify the accused from the distance of 60 feet in the darkness of the night particularly when the said site plan suggests that the accused was allegedly physically placed between the deceased and the place from where the occurrence is said to have been witnessed. According to him, as per the prosecution version, the accused must also be having his back in the direction where P.W.6 was present.
(c) that there was no light from the electric bulb at the spot as alleged by the prosecution. It is contended that Exh.PH was prepared on 28-7-1996 and although, point No.6 has been shown to be the location of the electric bulb, it is not credible as firstly the site plan was prepared after a long delay of almost 7 days and secondly as the site plan suggests that the bulb was fixed inside the room. He also made reference to the statement of Raja Pervez Akhtar D. W.1 who is a S. D. O. WAPDA, Kallar Kahar Sub-Division who stated that there was no formal electricity connection 'to the house in question;
(d) that the evidence of recovery was not creditworthy. It was contended that gun P.7 was a licensed gun and belonged to the appellant; that the recovery of the crime empty at the spot was irrelevant, as there was no evidence of re-loading the gun; that the recovery of empty of 12 bore gun (Exh.PE) was made on 21-7-1996 but was sent through D.W.1 to the Forensic Science Laboratory on 10-8-1996. This according to the learned counsel would not give any credibility to the recovery evidence:
(e) that there was inordinate delay in registering of the F.I.R. According to him, the occurrence took place at 1-00 a.m. Between the night 20/21-7-1996 and the F.I.R. Was lodged after delay of almost 7 hours when the Police Station was situated at a distance of 16 miles from the place of occurrence, which was connected by a metalled road and was otherwise accessible through vehicular traffic.
Upon the effect of delay, the learned counsel for the appellant relied upon the case of Mehmood Ahmad and 3 others v. The State and another 1995 SCM R 127 to contend that unexplained delay is fatal to the prosecution case; and
(f) that there was no credible evidence of motive. The evidence of Mst. Razia Bibi recorded as P.W.8 was very weak to prove the motive.
10. The learned counsel for the complainant and State have refuted the contentions raised by the learned counsel for the appellant. It is vehemently asserted that this was a case of a cold-blooded murder of a young girl and that there were no mitigating circumstances for taking a lenient view of the sentence. According to the learned counsel for the complainant and the State, the prosecution had produced convincing evidence whereby the guilt of the appellant has been proved beyond any shadow of doubt.
11. We have heard the learned counsel for the parties and have perused the recur extensively.
12. F.I.R. No.88 of 1996 was lodge upon the complaint of Muhammad Riaz P.W.5 who is admittedly the husband of the deceased. The prosecution case as disclosed in the F.I.R. Is clear and unambiguous. The occurrence took place at 1-00 a.m. In the night. P.W.5 was a natural witness of the occurrence who had alleged to have seen both the accused and the occurrence at a very close range. Even the seat of injury and the manner of the offence has been given in sufficient detail. The motive for the occurrence has also been stated without wavering.
13. We are not unmindful of the fact that the place of occurrence is situated at a distance of 16 miles from Police Station Kallar Kahar. Without disputing the fact whether or not village Mattan Khurd is connected with the police station in question with a metalled road, we do not find anything on the record to suggest that any vehicular traffic was available at that time of the night or if so when it was made available at the first time.
14. The ocular account has been rendered by P.W.5 Muhammad Riaz who is also the complainant of the case as well as Muhammad Taj P.W.6. We have examined the statement of P.Ws. It is a case where Mst. Tasleem Akhtar deceased who was married to the complainant about 2-1/2 months before the occurrence was shot at a very close range and killed at the spot at 1-00 a.m. In the night.
The complainant witnessed the occurrence himself and recognized the appellant in the light of the electric bulb which was present in the courtyard. His eye-witness account in his statement as P.W.5 is to the following effect:-- "Muhammad Feroze accused fired at Mst. Tasleem Akhtar hitting her on the left side of back of her chest."
15. The medical evidence comprises of the statement of Lady Dr. Azhar Azra Woman Medical Officer, DHQ Hospital, Chakwal who appeared as P.W.4 She conducted the autopsy on the dead body of Mst. Tasleem Akhtar. Although, her report has been reproduced hereinbefore, it may not be a futile exercise to refer to it again for ready reference:--
(1) An entry lacerated round shape wound 0.7 c.m. In dia with inverted margins surrounded by blackening of the skin on the back of left side of chest 4 c.m. From midline and 18 c.m. Below the level of shoulder. Corresponding mark was present on Kameez also.
(2) A lacerated wound of exit 7 c.m. x 3.5 c.m. On the left breast just below the nipple wound was at the same level as the wound of entry."
It is apparent from the ocular account as well as the medical evidence that the nature, number and the seat of injury correspond with each other. The minor deviation as to whether the single shot at the close range was fired at the back of the chest or on the front side in our view, would not be a much consequence in the circumstances of the case. Admittedly it was a case of single shot fired by directly aiming on the deceased from a close range. This has been confirmed by the blackening of the skin at the venue of the entry wound.
16. Even if we keep out of consideration the statement of Taj Muhammad P.W.6, there is sufficient direct and corroborative evidence whereby the charge against the appellant stood squarely proved.
We therefore, find no inconsistency between the ocular and the medical evidence on the record and repel this contention of the learned counsel for the appellant.
17. We have been referred to a site plan Exh.PK which is part of the police file and which shows that the said site plan was prepared on 21-7-1996. According to this site plan, an electric bulb is shown at point No.6. Unfortunately, this Exhs.PK was not made part of the printed paper book. A comparison of Exh.PH and Exh.PK would show that while the former is said to have been made on 28-7-1996, the later was promptly made on 21-7-1996. Whether or not it was a legal electricity connection as has been suggested by the learned counsel for the appellant who relied upon the statement of D.W.1, shall have no bearing of the outcome of this case as long as the existence of the electric bulb at the site is established.
18. Before appreciating the other contention of the learned counsel for the appellant with respect to the recovery and motive evidence, it is necessary to examine the investigation conducted in the case by Manzoor Ahmad, S.-I./P.W.11 and Mulazim Hussain, S.-I./P.W.12. On 21-7-1996 at 7-55 a.m.
Manzoor Ahmad, S.-I./P.W.I1 recorded the statement Exh.PC of the complainant Muhammad Riaz P.
W. And he forwarded the same for registration of the formal F.I.R. Exh.PC/1 and thereafter Muhammad Ashraf Moharrir P.W.9 drew up the F.I.R. Manzoor Ahmad, S.-I. Reached the spot at about 8-45 a.m. And recorded. Supplementary statement of the complainant. Thereafter, he prepared the injury statement Exh.PI and inquest report Exh.PJ and then despatched the dead body to the mortuary for autopsy under the escort of Muhammad Munir, Head Constable P.W.3. He inspected the site and prepared rough sketch Exh.PK thereof. He also collected blood-stained earth from there and took into a sealed parcel vide memo. Exh.PD. An empty cartridge P.4 lying at the spot was also secured and sealed into a sealed parcel vide memo. Exh.PE. Blood-stained cot P.5 and blood-stained bed-sheet P.6 were also taken into possession vide memo. Exh.PF. Muhammad Safdar and Taj Muhammad attested these memos on 22-7-1996, Muhammad Sharif Draftsman P.W.10 prepared the site plan in triplicate Exh.PH, Exh.PH/1 and Exh.PH/2. The S.-I./P.W.11 handed over the case property to the Moharrir intact. On 22-7-1996 the investigation was entrusted to Mulazim Hussain, S.-I. P.W.12. On 7-8-1996, he arrested Muhammad Feroze while Ghulam Raza was apprehended on 11-8-1996. On 11-8-1996, Muhammad Feroze led to the recovery of his licensed gun P.7 alongwith his licence from his residential house which was taken into possession and sealed into a parcel vide memo. Exh.PG attested by Ikhlas Hussain P.W.7 and Muhammad Ramzan. He handed over the case property to the Moharrir and then placed the file before Manzoor Ahmed, S.-I.
After completion of the necessary formalities, the accused were challaned.
19. Mulazim Hussain, S.-I. P.W.12 corroborated P.W.11 with respect to the arrest of the appellant and the recovery of gun P.7 alongwith its licence from the residential house of the appellant in village Mattan Khurd. According to this witness, he took the gun into his possession alongwith its licence, sealed the gun into a parcel vide memo. Exh.PG which was attested by Ikhlas Hussain P.W.7 and Muhammad Ramzan. He also prepared the site plan Exh.PG/1 of the place of the gun.
20. The recovery of the empty was made on 21-7-1996 by P.W.11. However, once the appellant was arrested on 7-8-1996 and recovery of the gun P.7 was made from him, the crime empty and the gun were sent to the Forensic Science Laboratory on 11-8-1996. The report of Forensic Science Laboratory is on the record as Exh.PN. According to this report, the crime empty of .12 bore gun was compared with the test empties prepared from 11 bore gun recovered from the appellant and it was found that the crime empty has been fired from the said gun. There is nothing on the record to discredit the said report.
21. In view of the above, we do not find any substance in the submissions of the learned counsel for the appellant whereby the evidence of recovery was challenged. This aspect of the arrest of the appellant, recovery and the empty of the gun has been discussed at some length by the learned trial Judge.
22. The learned counsel for the appellant has not been able to point out any mala fides of the Investigating Officers who had effected the recovery of gun from him. The licensed gun of the appellant was recovered at his own instance after the collection of the crime empty. As already observed, the crime empty matched with the test empty prepared by the licensed gun of the accused. In this view of the matter, we are not overly impressed by the submissions of the learned counsel for the appellant.
23. We have also examined the allegation of motive and its proof on the record. The motive alleged in the F.I.R., its nature in the background as explained is a ring of credibility. This was corroborated through the statement of P.W.5 complainant as well as Mst. Razia Bibi P.W.8. The evidence of motive as given by the said witnesses has not been shaken in the cross-examination.
24. From the examination of the ocular evidence, medical evidence, evidence of recovery and the evidence of motive, we are satisfied that the learned trial Judge has drawn correct inference from the material available on the record. The learned counsel for the appellant has not been able to point out any perversity in the said judgment.
25. We have given our anxious thought to the alternative submission of the learned counsel for the appellant that as it was only a case of a single shot occurrence without even the allegation of repetition of tire, the appellant was entitled to a lesser punishment. The reliance in this respect was placed upon the case of Muhammad Yasin and 2 others v. The State 2002 SCM R 391. Although, in the instant case, only a single shot was fired, but what cannot be lost sight of is that the appellant had tired the salutary shot from point blank range at the vital part of the body of the deceased knowing fully well that the salutary shot was sufficient to cause the death in the ordinary course of nature. The present case is distinguishable and we are not inclined to award any lesser sentence.
26. As a result of the above discussion there is no merit in Criminal Appeal No. 83 of 1997 which is hereby dismissed.
27. As discussed hereinbefore, it is the case of the prosecution itself that at the time of occurrence, it was only Muhammad Feroze accused who was armed with gun and that Ghulam Raza respondent No.1 was empty---handed. The only role attributed to Ghulam Raza co-accused is of raising Lalkara. Muhammad Feroze who is the father of the respondent had caused the fatal fire- arm injury by shooting at the deceased at point blank range by even touching the body of the deceased with his gun. It does not transpire from the circumstances that even the Lalkara attributed to respondent No. 1 was of a commanding nature as admittedly the respondent was a son of the principal accused only.
28. In this view of the matter, no case has been made out in Criminal Appeal No.109 of 1997 for interference to the impugned judgment of the learned trial Court. Resultantly, there is no merit in this criminal appeal which is hereby dismissed.
The Murder Reference is answered in the affirmative.