PLJ 2004 FSC 81
[Appellate Jurisdiction]
Present: ch. ejaz yousaf, C. J., dr. fida muhammad khan and
saeeb-ur-rehman farrukh, JJ. MUHAMMAD JAVAID and others-Appellants
versus STATE and others-Respondents
Jail Crl. Appeal No. 89/1 of 2000, Crl. Appeal No. 86/1 of 2000 and Cr. Murder Reference No. 2/1 of 2002, decided on 26.1.2004.
(i) Criminal Procedure Code, 1898 (V of 1898)--
—S. 161-Pakistan Penal Code, 1860 (XLV of 1860), S. 302-Offence of Zina
(Enforcement of Hudood)
Ordinance, 1979, S. 11-Appeal to FSC against
acquittal of co-accused~Held: There is
nothing on record to show that co-
accused shared common intention with accused in committing murder of
deceased-According to prosecution witnesses he was stated to be present
on occurrence and was also heard ultering 'lalkara'
to inmates but this
fact is mentioned neither in F.I.R.
nor in statement by complainant Mst.
Robina u/S. 161 Cr.P.C.~He was
gained. double presumption of
innocence and we do not find
sufficient material to set aside his acquittal-
Appeal dismissed. [P. 92] H, I, J, K & M
(ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
—S. 11-Abduction with intention to commit Zz'rca-Offence of-Appeal against acquittal of-Held: Commission of Zina was alleged on 25/26.5.97 whereas medical report conducted on 26.5.1997 showed that her sexual intercourse was performed two/three days prior to her examination exact date of commission" of zina, becomes doubtful and benefit of doubt naturally goes to accused especially her statement was not corroborated _ by any other piece of evidence-Appeal dismissed. [P. 91 & 92] G & M
(iii)
—S. 302(b)-Murder-Offence of~Conviction of-Appeal against-Apprec-
iation of evidence-No independent witness all PWs are interested and
relevant-Ground of-Held: An occurrence taking place inside a house,
surrounded
by walls, inmates of house could be witnesses and they also
might be relative interse-Mere
relationship of a witness with deceased by
itself may not be a sufficient ground to
discredit his testimony
particularly when he has no motive
to falsely involved an innocent person
as an accused or substitute real
accused in a case where ruthless murder
of a very close relative has taken
place-Held further: Statements of
PWs have been subjected to lengthy
cross-examination but defence had
failed to discredit the same hence their version cannot be set aside
merely
on ground of interest relationship-Conviction
is maintained-Appeal
dismissed. [Pp. 90 & 92] B, C, D & L
(iv)
—S. 302(b)~Offence of murd,er--Criminal murder reference-Confirmation
of—Held: Brutal murder caused by fire shot from
carbine aimed at vital
organs of deceased who had come forward only
to rescue her daughter
leaves no room for any extenuating
ground-Tragic murder was then
followed by series of offences
including abduction and in view of these
.circumstances-No option but to
maintain death sentence awarded to
accused and confirm murder reference. [Pp. 91 & 92] F & N
(v) Recovery of empty--
—Offence of Murder-Appeal against conviction-Dismissal of-Grounds-
Non-recovery of an empty from
spot, in circumstances when people had
gathered there, was not at all fatal to use of prosecution, in view of ocular
account support by inquest and post-mortem
report-Moreover non
observing of burning sign on dead body was also immaterial as distance
between accused and deceased cannot be exactly as stated by PWs who
were seeing occurrence from some distance in
a highly horrified
situation-Held: Statements of PWs
find full corroboration from post
mortem report of deceased-Appeal
allowed. [P. 91] E
(vi) Related Witness--
—Previous enmities-No independent evidence-PWs were bearing grudge
against
accused on account of previous enmities, initiated in between
them on
allegation of abduction, murder and counter cases-Statements
of PWs
could not be considered sufficient for bringing home guilt of
accused-No
independent evidence had come forward to corroborate
statement. [P. 89] A
Malik Abdul Haq, Advocate for Appellant (in J.Cr. Appeal No. 89/1 of 2000).
Sardar Muhammad Ishaque, Advocate for Appellant (in Cr. Appeal No. 86/1-2000).
Muhammad Sharif Janjua, Advocate for State. Dates of hearing: 12.1.2004 and 26.1.2004.
judgment
Dr. Fida Muhammad Khan, J.--These are two connected appeals; one filed from Jail by Muhammad Javaid son of Muhammad Afsar against his conviction, recorded by learned Additional Sessions Judge, Rawalpindi on 18.4.2000, whereby he has convicted him under Section 302(b) PPC and sentenced him to death with fine of Rs. 100,000/-, or six months R.I. in default, with the direction that the amount of fine, if recovered, be paid to the legal heirs of deceased. He has further convicted him under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and awarded him life imprisonment with fine of Rs. 20.000/-, or in default of payment of fine further one year imprisonment, Thi benefit of Section 382-B Cr.P.C. has been granted to him,
2. The other appeal has
been preferred by Mst. Robina Kausar
wherein
she has prayed that Javaid accused, who is acquitted from the
charge
under Section 10 of the Ordinance, be also convicted under Section 10
of the
Ordinance. It has been prayed further that the other acquitted
respondents/co-accused namely
Kausar Mehmood son of Muhammad Afsar,
Muhammad Razzaq son of Lai Hussain and
Muhammad Suleman son of
Muhammad Yousaf, be also convicted
and sentenced. The Murder Reference
No. 2/1/2002 also made for confirmation. Since all these matters arise
out of
one and the same judgment, therefore, we are
disposing them of by this
single judgment.
3. Briefly stated the case of prosecution as revealed
in Fard Biyan
(Ex.PH), recorded on the statement of
Mst. Robina Kausar, on 25.5.1997 at
5.30 p.m, is to the effect, that on
the same day at about 3.00 p.m, she was
present alongwith her sister Mst. Pukhraj
and Mst. Shahnaz Bibi in her
house. In the meanwhile the accused Muhammad Javaid who was carrying a
rifle on his left shoulder and was holding a
carbine in his right hand entered
there. The court-yard of her house as
well as of the house of her maternal
grand-mother, Jannat Bibi, is one and
the same. Soon after his arrival in the
house, Muhammad Javaid accused
threatened to kill all of them and fired
shot from his Carbine whereupon the
complainant and her sisters got
scared, ran inside the house and
closed the door. She alongwith her sisters
saw through the window of their house
that accused Javaid entered the
house of Mst. Jannat Bibi and
caught hold of her maternal aunt Shahnaz,
aged 25/26 years, and dragged her out
of the house towards the street.
Thereupon the complainant and her
sister went out and raised hue and cry
which attracted many persons but nobody could come forward as the
accused Javaid was armed with Carbine
and also considered a rogue in the
ullage. However her grand maternal
mother^Jannat Bibi, arrived from the
court-yard of house of Muhammad Azram
side "and tried to rescue her said
daughter. Thereupon Javaid accused
threatened to kill her in case she
advanced any
further. Mst. Jannat
Bibi, however, stepped
forward
whereupon said Muhammad Javaid fired
from his carbine which hit Jannat
Bibi in front of her shoulder and,
after felling down, she died on the spot.
Muhammad Javaid accused caught hold of
Mst. Shahnaz and forcibly
abducted her at weapon point for
commission of zina and marriage. She
alleged that the reason for his
grievance was the fact that earlier, about 2%
years before, accused Javaid had abducted her younger sister Mst. Shahnaz
Bibi, and a case in that respect had
been registered against him. Accused
Javaid, who was facing trial, had
been granted bail, 5/6 months before and
had therefore, come
to his house.
She alleged that
they had left
aforementioned Muhammad Azram with the dead
body and had come with
her maternal uncle Iftikhar Mehmood, who had reached there, to report the
matter to police, Ex.PH was
thereafter sent and incorporated into formal
FIR at police station, Kallar Saidan,
District Rawalpindi. Subsequently the
appellant/accused was arrested
alongwith acquitted co-accused/respondents
and ehallansd to face trial, They
wire formally charged on 29.8.1899 but
they did not plead guilty to the charge and claimed trial. On conclusion of trial, while acquitting the "co-accused, only the appellant/accused was convicted and sentenced as mentioned hereinabove.
4. At the trial, the
prosecution examined twenty witnesses in all. PW-1 is Farhat Yasmin, Lady Constable.
On 26.5.1997 she took Mst. Shahnaz Bibi to
"She was well oriented in time and space.
On general examination, she was unmarried. Her last menstruating period was about eight days back. Her secondary sex characters were well developed. No marks of violence seen on the body except her private parts.
As per vaginal examination, both labia minora were freshly torn, bleeding, hymen torn within two to three days, vagina admitted two fingers tightly.
PER VAGINAL FINDINGS
Urtus normal size. OS closed, fornix clear."
She took two blood-stained vaginal swabs, sealed and sent them for semen analysis to Chemical Examiner. She opined that she was subjected to sexual intercourse. Report of the Chemical Examiner (Ex.PS), on the vaginal swabs, reveals that the same were stained with semen. PW-6 is Qamaruddin. On 28.5.1997 he visited the place of occurrence as per direction of the police and obtained rough notes of the place of occurrence, on the pointation of PWs. On 4.6.1997, he prepared the scale site-plans (Ex.PD) and (Ex.D/1) which bears his signatures. PW-7 is Dr. Muhammad Shafiq, Medical Officer. On.26.5.1997, at 11.45 a.m., he conducted post-mortem
examination on the dead-body ofMst. Jannat Bibi which was brought to him by' Mazhar Hussain, Constable and which was identified by Muhammad Iftikhar and Muhammad Aztam. On its examination he found it to be dead body of an old woman, aged 55 years, eyes and mouth closed, rigor morits and post-mortem staining were present. He found the injuries on dead body and made observation and opinion as under:-
"1. Big lacerated wound of entry of fire-arm 14 x 8 cm extending from tip of left shoulder joint to upper part of left chest, 11 cm above left nipple and 5 cm from supra sternal notch. Skin was totally torn. Muscle exposed which were blackish and burning at the edges of skin at some part was also present.
2. Wound of exit of fire-arm 1 x 1 cm at posterior part of left shoulder joint 7 cm from tip of shoulder. Edges were everted and lacerated.
ON DISSECTION.
Left lung was damaged and filled with blood due to fracture of second rib. Brachial vessels and brachial plexes was damaged. Fracture upper and of left numerous.
Stomach was containing partially digested food and was healthy Vertebrae and spinalcord was not opened. Rest of organs were found healthy.
OPINION
In my opinion deceased died due to Injury Nos. 1 & 2 caused by fire-arm weapon anti-mortem in nature. It caused damage to vital organ like lung and brachial vessels leading to hemorrhage shock and death. This type of injuries are sufficient to cause death in normal course of life. Time between injury and death was about half to one hour. Time between death and post-mortem was about twenty to twenty four hours. Dead body after postmortem and stitching alongwith last worn clothes and police papers handed over to Mazhar Hussain, C/3836. Ex.PE is the correct carbon copy of original post-mortem report which is in my hand and bears my signature. Ex.PE/1 is pictorial diagram of injuries which bears my signature. I also signed inquest report Ex.PF and injury statement Ex.PG."
PW-8 is Ansar Javed, Constable. On 12.7.1997 he delivered a sealed parcel, containing Carbine, handed over to him by Liaqat Ali, ASI, to the office of Forensic Science Laboratory which he delivered there intact on the following day. PW-9 is Mst. Robina Kausar. She is the complainant and grand daughter of the deceased Mst. Jannat Bibi. She reiterated her, statement as mentioned hereinabove. PW-10 is Mst. Shahnaz, daughter of Gulzar. She is the abductee. She deposed in the following words:
"It was 25.5.1997 the time was 3.00 p.m. I was present alone in my house while Mst. Robina, Shahnaz and Pukhraj were present in
their own house in the courtyard. Javed accused went to the courtyard of the house of Robina Kosar etc. and he held a threat to Robina, Pukhraj and Shahnaz, that he would not spare them alive. The accused Javed was carrying in his right hand carbine and on his left shoulder rifle. He fired in the air. Thereafter he came to our house. He pushed the door of our house, which was opened. He asked me to go alongwith him. On my refusal he dragged me out of the house by catching me from my arm. While he was taking me towards the street I was raising alarm. My three nieces followed us while raising alarm. When we reached near the house of Azram, meanwhile my mother Jannat Bibi came there. She stopped Javed from taking me, who in return held a threat to her. Razzaq accused was also present there at that time. Razzaq told my mother that no body would come to help us that day and he was armed with rifle. My mother tried to get me released. Javed inflicted a fire shot of carbine on the left shoulder of my mother. My mother got injured and fell down there. Javed accused then forcibly dragged me via Nullas and "kassies" to the Qilla Darbar. Short of Qilla Darbar brother of Javed accused namely Kosar met Javed near another Darbar situated in our village Rajjam. I was taken by Javed accused to Qilla Darbar where at about midnight Suleman, Razzaq and Kosar accused persons came there. Kosar accused was armed with hatchet, Razaaq and Suleman accused persons were armed with rifles. They talked with one another and Javed enquired from the remaining accused persons stated above as to whether my brother Arshad had come to the village or not. Javed accused also demanded from them the ammunition and the money. The accused persons then assured him that eveiy thing will be provided to him and asked him first to commit zina upon me. They also told him that they would guard us. Javed accused then shut down my mouth and committed zina with me and the remaining accused persons remained on guard. The lights reached the place, Razzaq, Suleman and Kosar accused persons then ran away. Javed took me to aside. Javed accused then took me from the same way, to which he had come and was giving me threats that he would either marry me or would sell me out. The accused Javed then started urinating and asked me not to go any where, at the Darbar near our houses. I came from there to my house. The doors of the houses of my relatives were locked. I then went on the roof of our kacha house where I concealed myself and lay down. My sister Imtiaz then came there and I narrated her all the story while weeping. I then came to know that my mother had expired due to the injuries sustained by her. At about 5.00 a.m. police came to our house. Police recorded my statement. I was got medically examined. I also recorded my statement with the Magistrate.
2/2% years prior to the occurrence of murder, accused Javed had abducted my sister's daughter Mst. Shahnaz. The said case was registered and is stijl pending in which accused was released on bail 5/6 months prior to this occurrence and due to this he committed the present occurrence. All the above mentioned accused persons are present today in Court."
PW 11 is Mst. Shahnaz Bibi, daughter of
Muhammad Aslam. She is the sister
of complainant and eye-witness of the occurrence. She made statement on oath
wherein she supported the version made by the complainant. PW-12 is Muhammad Boota, Constable. He is marginal
witness to the recovery memo (Ex.PJ)
whereby Gun P.4 and Licence P. 5 were taken into possession as per pointation made by the accused Suleman.
PW-13 is Muhammad Saeed. He is
witness to the recovery memo. (Ex.PK) whereby blood-stained earth was taken in
his presence, on 25.5.1997, and duly sealed. PW-14 is Arshad Mehmood. He is
witness to the recovery memo (Ex.PL) whereby Carbine P. 6 recovered at the instance of appellant/accused Javed, on 8.7.1997, was secured. He also witnessed the
recovery of recovery memo (Ex.M)
whereby Rifle P. 7 was recovered at the instance of appellant/accused
Javed and secured. PW-15 is Dr. Tahir Rizvi. On 2.7.1997 he' medically examined the appellant/accused Javed
and found him quite capable to perform
sexual act. PW^16 is Muhammad Bashir, ASI. On 26.5.1997 he kept sealed
parcels containing blood-stained earth and a sealed envelope containing swabs
in safe custody in malkhana. On 28.5.1997 he handed over the sealed envelop to Abdul Majeed, Constable and on
3.6.1997 he handed over the sealed parcel to Muhammad Afzal, Constable
for onward transmission to the office of Chemical Examiner. PW-17 is Abdul
Ghafoor, ASI. On 25.5.1997 he registered
formal FIR (Ex.PH/1) on the basis of complaint prepared by Gulzar Akbar,
SI. PW-18 is Gulzar Akbar, SI. On 25.5.1997
while posted at police station, Kallar Saidan he received information about the occurrence and was going
toward the place of occurrence when
he met Mst. Robina Kosar alongwith Iftikhar Ahmad in village
Sahote Bangial. He recorded her statement (Ex.PH) and dispatched it to police station for registration of the FIR. He
visited the place of occurrence,
prepared inquest report of the dead-body (Ex.PF) and injury statement (Ex.PG). He dispatched the dead-body of
deceased for postmortem examination
to Kahuta. He recorded statements of witnesses and prepared inspection
note. He collected blood-stained earth from the place of occurrence, sealed
into a parcel and secured it vide recovery memo (Ex.PK). He launched search of the accused and, in the
process, recovered Shahnaz Bibi on the
following day from her house and thereafter took her from Kahuta for medical examination to
investigation Suleman accused produced .12-bore gun P.4 and
Licence P.5 from his house in Mauza Sangni
which he secured vide recovery memo (Ex.PJ). Thereafter he arrested the appellant/accused Javed and got recovered carbine P. 6, on his pointatiOn, which
secured by him vide recovery memo
(Ex.PL). He also recovered .7 mm rifle P. 7, with ten live cartridges P. 8/1-10, on the pointation of the
appellant/accused, and secured them vide recovery memo (Ex.PM).
He handed over the case property to Muharrir of police station and recorded statements of the recovery witnesses. He
then got the appellant/accused Javed
confined to judicial lock-up. He also prepared rough site-plan of the place
(Ex.PO) where zina was stated to have been committed with the abductee. He also prepared
site-plan (Ex.PJ/1), (Ex.PM/1) and
(Ex.PL/1) being places of recoveries respectively of .12-bore gun, .7 mm rifle
and Carbine. PW-19 is Liaqat Ali, ASI. On 8.7.1997 he kept sealed parcel containing carbine in safe custody of
malkhana and on 12.7.1997 handed over the same to Ansar Javed,
Constable for onward transmission to the
office of Forensic Science Laboratory,
5. The appellant/accused made statement under Section 342
Cr.P.C. wherein he denied the allegations and pleaded innocence. In
reply to
Question No. 2 regarding the charge he made
statement in the following
words:
"The charge against me is incorrect. In fact Haji Amanat asked me to kill a person and at my refusal he falsely implicated me in the present case."
He denied the recovery of Carbine as well as rifle with bullets from his possession and stated that it did not belong to him. In response to Question No. 16 put to him as "why this case against you and why the PWs have deposed against you?", he made the statement in the following words:
"Due to relationship with the deceased, the PWs deposed against me falsely. Due to dispute regarding my engagement with Mst. Shahnaz this false case had been made against me
He declined to produce evidence in his defence or make his own statement on oath under Section 340(2) Cr.P.C. in disproof of allegations made against him.
6. We have heard learned counsel for the parties and
have perused
the record with their assistance.
Malik Abdul Haq, learned counsel for
appellant/accused Muhammad Javed
submitted that the case of prosecution
mainly stands on the evidence of PW-9, PW-10 and PW-11 but they all are
interested and -related witnesses who
were bearing grudge against the
appellant/accused on account of
previous enmities, initiated in between
them on the allegation of
abduction, murder and counter cases. The
statement of these PWs, he contended,
cannot be considered sufficient for
bringing home guilt of the appellant/accused. He further submitted that no
independent evidence has come forward to corroborate the statements of aforementioned PWs and it may not be safe to base conviction on the evidence deposed to by these'PWs. The Learned counsel also submitted that the fi-re shot was allegedly made by the carbine from a distance of about 2% feet, but neither the crime empty was recovered from the place of occurrence nor .burning signs were observed on the dead body during the post-mortem examination. Moreover, he submitted further that, dead body was seen lying on a cot which made the prosecution story doubtful. Learned counsel for the complainant, Mr. Sardar Ishaque, while fully supporting the case of prosecution against the appellant/accused Muhammad Javed, pressed his appeal to the extent of respondent/accused Razzaq also and contended that he was present at the time of murder of Mst. Jannat Bibi in the house, was armed with rifle, raised lalkara and extended threats. Since, he further submitted, he was not resident of that locality, he had no business to be there except the common intention of abetting the appellant/accused Javed in .the commission of offence and according to the evidence he also went alongwith him. Explaining further, the learned counsel vehemently contended that common intention could develop even on the spur of moment. Regarding some lapses in the FIR, the learned counsel submitted that the grousom occurrence of tragic murder of Mst. Jannat Bibi had then highly harassed the complainant party and they could not be naturally, expected to give all the details. Learned counsel for the complainant, summing up his arguments, submitted that this is a case of prompt FIR which was witnessed by inmates of the house who could alone witness the occurrence as it took inside the premises of the house where they were living. They have made detailed depositions, duly corroborated by the MLR and have stood the test of lengthy cross-examination. Regarding the commission of zina, learned counsel submitted that expert opinion is required for corroboration as a rule of prudence only. Learned counsel vehemently ruled out possibility of any mitigating circumstances whatsoever to entitle the accused to lesser punishment.
7. We have given our anxious consideration to the points raised-by the learned counsel for the appellant. So far as the evidence of PW-9 Robina Kausar, complainant, PW-10 Mst. Shahnaz, abductee and PW-11 Mst. Shahnaz, sister of complainant are concerned, they are natural witnesses of the occurrence. Admittedly they were present in their house, when the occurrence took place therein. It will be appreciated that for an occurrence taking place inside a house which is surrounded by walls, the inmates of the house could be the witnesses and they also might be relative inter se. As such mere relationship of a witness with deceased by itself may not be a sufficient ground to discredit his or her testimony particularly when he. or she has no motive to falsely involve an innocent person as an accused or substitute the real accused in a case where truthless murder of a very close relative has taken place. It is however necessary for safe administration of justice that statement of such witnesses have to be thoroughly scrutinised to see as to whether their evidence was reasonable, probable or plausible and
contained intrinsic worth that could be relied upon. In the instant case the statements made by the above-mentioned PWs are consistent in material particulars and inspire confidence. Their statements have been subjected to lengthy cross-examination but the-defence has failed to bring any material whatsoever to falsify or discredit their testimonies. The PWs despite cross-examination have remained unshaken and there is no reason whatsoever to disbelieve their unrebutted and trust-worthy testimony. Their versions being reliable and worthy of credence cannot be brushed aside merely on the ground of inter se relationship. These eye-witnesses have categorically given details of the occurrence which show that the appellant/accused Javed, alongwith others, had entered the house of complainant and was seen holding a carbine in his hand and carrying a rifle on his shoulder. Soon after his entrance in the house he shouted 'lalkara' to the inmates of the house that he would not leave them alive and had also fired shot from his carbine. Thereafter the witnesses saw him going into the Courtyard of Mst. Jannat Bibi where he caught hold of Shahnaz (PW-10) from her arm, dragged her out and took her towards the street. Mst. Shahnaz (PW-10) raised alarm but the accused did not let her free. In the meanwhile the PWs saw Mst. Jannat Bibi coming over there and trying to stop Javed from taking away Mst. Shahnaz whereupon he threatened her that if she went forward he would kill her. However Mst. Jannat Bibi advanced to rescue her daughter Mst. Shahnaz and thereupon Javed accused released a fire from his carbine which hit Mst. Jannat Bibi on her left shoulder and she fell down, succumbed to the injury on the spot and died. In the meanwhile Javed accused took away Mst. Shahnaz. The statement of PW-9 and PW-11 are consistent to that extent. Rest of the details were narrated by Mst. Shahnaz, abductee herself. She alleged that the accused forcibly dragged her via nullah and kassis towards Qilla Darbar. On the way Kausar, brother of Javed accused met him and she was taken to Qilla Darbar where at about mid-night the acquitted co-accused Suleman, Razzaq and Kasuar reached. They were armed. After getting assurance from the acquitted co-accused to guard them, Javed accused forcibly committed zina-bil-jabr with her, after shutting down her mouth. Thereafter Javed accused took her away from the same way and extended threats to her that he would either marry or would sell her out. However, getting an opportunity when the accused Javed was urinating, she went to her house. Since at that time doors of the house of her relative were locked, she went on the roof of her kacha house and concealed herself and, when her sister Imtiaz came there, she narrated the entire story to her while weeping. As far as statements of these PWs in respect of Mst. Jannat Bibi, deceased is concerned that finds full corroboration from the statement of PW-7 Dr. Muhammad Shafiq who conducted post-mortem examination on her dead-body and found big lacerated wound of entry of fire-arm 14x8 cm extending from tip of left shoulder joint to upper part of left chest, 11 cm above left nipple and 5 cm from supra sternal notch and a wound of exit of fire-arm 1 x 1 cm at posterior part of left shoulder joint 7 cm from tip of shoulder; He has opined that due to these injuries, caused by fire-arm, anti-
mortem in nature; death was caused as it had damaged the vital organs like lungs and brachial vessels leading to haemorrhage shock. We may point out that non-recovery of an empty from the spot, in circumstances when people had gathered there, is not at all fatal to the case of prosecution, in view of the E. ocular account supported by the inquest and post-mortem report. Moreover non-observing the burning sign or charring of the body is also immaterial as the distance between the accused and the deceased cannot be exactly the same as stated by the PWs who were seeing the occurrence from some distance in a highly horrified situation which ultimately took the life of their grand-mother. The dead-body was afterwards seen lying on the cot but that was only a natural phenomena as out of respect the dead body was lifted from the earth. In this view of the matter we have found that the prosecution has established its case against the appellant/accused to the hilt.
8. It is also
pertinent to mention that the
prosecution has
successfully established the motive
part working behind the occurrence. It is
on record that about 2M years prior to this occurrence, the appellant/accused
Javed had abducted Mst. Shahnaz
Bibi, daughter of Muhammad Aslam, and
FIR was lodged against him
accordingly. On account of this he was feeling
revengeful and, it was during this period
of his release on bail in that case
that, he entered the house of
deceased and ultimately murdered Mst. Jannat
Bibi while she intercepted to stop him
from abducting Mst. Shahnaz Bibi. It
is also worth-mentioning that the
instant case is based on an FIR promptly
lodged soon after the occurrence.
There is also nothing to even indicate that
the appellant/accused was either
substituted for the actual offender or was
mis-identified, as it
was a broad-day-light occurrence and
the B
appellant/accused was well known to the whole
family. Although he was
accompanied by the
other accused but the
single shot injury which
culminated in fatal consequences has
been attributed directly only to him
and there is no possibility of participation of any other co-accused in the murder of Mst. Jannat Bibi.
9. We have also seriously considered the facts
whether there is any
mitigating circumstance, according to
law, but have failed to find out any
reason whatsoever for awarding the
appellant/accused lesser punishment
other than the normal penalty of death. The brutal murder caused by fire
shot from the carbine aimed at the
vital organs of the deceased who had
come
forward only to rescue
her daughter leaves no
room for any
extenuating ground. The tragic murder
was then followed by series of
offences including the abduction and
in view of these circumstances we have
no
other option but to maintain the
death sentence awarded to the
appellant/accused and confirm the
murder reference.
f 10. As far as the charge of zina-bil-jabr with the abductee, Mst. Shahnaz, by the appellant/accused is concerned, we find that report in respect of its commission is not specific as mentioned by the prosecution and !
|
G |
the same is somewhat doubtful. The lady Dr. Qanaat Sultana, (PW. 5) who examined her on 26.5.1997 has given a positive report but, according to her, the sexual intercourse was performed two/three days prior to her
examination. Since the occurrence took place on 25/26.5.1997, as alleged by Mst. Shahnaz, the exact date of commission of zina, becomes doubtful and the benefit naturally goes to the appellant/accused and especially so when statement of Mst. Shahnaz is not corroborated by any other piece of evidence.
11. So
far as acquittal of Muhammad Razzaq, respondent/accused is
concerned, there is nothing on record to
show that he shared common
intention with accused Muhammad Javed
in causing murder of Mst. Jannat
Bibi, deceased who was shot dead alone by the later. According to the prosecution the appellant/accused Muhammad Razzaq, armed with rifle, is stated to be present there at the time and place of occurrence and was also heard uttering 'lalkara' to the inmates. However this fact is mentioned neither in the FIR nor in the statement of PW Mst. Robina, under Section 161 Cr.P.C. It is also mentioned nowhere in the evidence that he was present at the time of the murder of Mst. Jannat Bibi. The other eye-witness namely Mst. Shahnaz Bibi and Mst. Pukhraj also did not mention his presence over there at that time. The statement of Mst. Shahnaz, daughter of Muhammad Gulzar under Section 164 Cr.P.C., made before the Magistrate is also not brought on record. It is noticeable that Muhammad Razzaq, respondent, has gained double presumption of innocence and the evidence brought on record is not of the quality to lead us to the only conclusion of his guilt. Taking into account the cumulative effect of what is stated above, we do not find sufficient material to set aside his acquittal and record his conviction.
12. Consequently for the
reasons stated above, we dismiss the appeal filed by Muhammad
Javed son of Muhammad Afsar and maintain his
convictions and
sentences as recorded by
Additional Sessions Judge,
13. The Murder Reference No. 2/1 of 2002
is answered in
affirmative.
(F.M.) Appeal dismissed.