PLJ 2022 Cr.C. 285 (DB)
[Lahore High Court, Lahore]
Present: Sayyed
Mazahar Ali Akbar Naqvi and
Ch. Abdul Aziz, JJ.
MUHAMMAD
NADEEM--Appellant
versus
STATE
and another--Respondents
Crl. A.
No. 1474, 1913, Crl. Rev. No. 983 and M.R No. 490 of 2010, heard on 30.1.2020.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 449, 324, 337-A, 337-F & 302(b)--Conviction and
sentence--Challenge to--Qatl-e-amd--Case revolves around an occurrence having
taken place during which two persons, aged about 80 years and aged about 60
years lost their lives, whereas aged about 32 years got injured--For this
bloodbath, appellant was held solely responsible--Scrutiny of record, Court
have not come across any convincing material which may cast even a remote doubt
about acclaimed time of imparting information of crime to police--Tale of
occurrence mentioned in promptly registered FIR on one hand attains credibility
and on other hand rules out possibility of fabrication--She was residing in a
different vicinity but on fateful night had come to see her mother and
sisters--PW.9 & PW.10 were inmates of house wherein crime in question
occurred--Since nothing as such is available on record from which it may even
remotely insinuate that PW.9 & PW.10 should have been present at sope other
place in accordance with their ordinary pursuit of life, hence by no stretch
their presence at spot can be doubted--Though three persons fell prey to
murderous assault of appellant and multiple fire-arm injuries were caused to
them but even then eye-witnesses opted against spreading a wider net for
implication of other family members of appellant in case--This aspect demonstrates
strongly credibility of eye-witnesses and their testimony is weighed by the
Court favourably--Narrators of ocular account put forth detail of occurrence,
which inspires confidence--All of them remained consistent while narrating time
and manner of occurrence, identity of perpetrators and weapons with which he
was armed--No discrepancy of some material nature is discernible from
deposition of eye-witnesses--Even otherwise, it appears wholly illogical that
eye-witnesses will let actual culprit go scot-free and to substitute him with
appellant as sole culprit of this gory incident--Hon'ble Supreme Court of
Pakistan in case reported as Khizar Hayat v. The State (2011 SCMR 429)
while dealing with case of a single accused observed as under:
"In addition to
it, it is a case of single accused, who has fired upon deceased Ghulam Ghous,
therefore, substitution of a culprit is not f possible besides it is a rare
phenomenon where a witness whose close relative has been murdered would
substitute accused with an innocent person thereby allowing actual accused to
go scot-free."
In this context, reference can usefully
be made to case of Sharafat Ali v. The State (2000 SCJ 50) wherein
Hon'ble Supreme Court of Pakistan held as follows:
".......it was most
callous and brutal murder and therefore appellant hardly deserves any
leniency."
For what has been discussed above, prosecution has been successful in
proving its case against appellant for committing 'qatl-i-amd' of two innocent
persons and injuring a lady to hilt.
[Pp.
292, 293, 294 & 296] A, B, D, E, F, H & I
PLD 2019 SC 261, 2007 SCMR 324, 2011 SCMR 492,
2011 SCMR 429 & 2000 SCJ 50.
Homicide cases--
----Ocular
account--In cases of homicide, intrinsic worth of ocular account is scrutinized
on multiple grounds, foremost out of them is justification put forth by a
witness for his presence at spot.
[P.
293] C
2007 SCMR 324.
Conviction--
----No doubt conviction cannot be
awarded on basis of absconsion alone--Since appellant failed to satisfactorily address
his absconsion, hence, same can be used as corroboration for confidence
inspiring evidence of PWs. [P. 295] G
Mr. Muhammad Ahsan Bhoon,
Advocate for Appellant.
Malik Muhammad Aslam,
Advocate for Complainant.
Mr. Munir Ahmad Sial, Deputy
Prosecutor General for State.
Date of hearing: 30.1.2020.
Judgment
Ch.
Abdul Aziz, J.--Muhammad Nadeem (appellant) along with three other
co-accused, namely, Muhammad Naeem, Muhammad Jamil and Mushtaq Ahmad, involved
in case FIR No. 349/2006 dated 08.04.2006 registered under Sections
302,324,452,34 & 109, PPC at Police Station Chak Jhumra, Faisalabad, was
tried by learned Additional Sessions Judge, Faisalabad. The learned trial Court
in terms of judgment dated 31.05.2010 while acquitting others proceeded to convict
and sentence Muhammad Nadeem (appellant) in the following terms:-
"(i).Under
Section 449, PPC to suffer rigorous imprisonment for five years with
fine of Rs. 10,000/- and in default whereof to further undergo six months SI.
(ii).Under
Scction 324, PPC to suffer rigorous imprisonment for five years with
fine of Rs. 10,000/- and in default whereof to further undergo six months SI.
(iii).Under
Section 337-A(iii), PPC to suffer rigorous imprisonment for five years
with Arsh Daman to 10 % of the Diyat.
(iv).Under
Section 337-F(iii), PPC to suffer rigorous imprisonment for one year
with Daman-of Rs. 5,000/-.
(v).
Under Section 302 (b), PPC to suffer life imprisonment for committing
'qatl-i-amd' of his grandfather Muhammad Ishaq. He was also directed to pay Rs.
100,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of
the deceased and in default whereof to further undergo SI for six months.
(vi).
Under Section 302 (b), PPC to suffer death sentence for committing
qatl-i-amd of Mst. Zubaida Bibi. He was also directed to pay Rs.
100,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of
the deceased and in default whereof to further undergo SI for six months.
All
the sentences of imprisonment were ordered to run concurrently and benefit of
Section 382-B, Cr.P.C. was also extended to the appellant.
Challenging his conviction and
sentence, Muhammad Nadeem (appellant) filed Criminal Appeal No. 1474 of
2010, whereas Rukhsana Kausar complainant filed Criminal Appeal
No. 1913 of 2010 (against the acquittal of respondents Muhammad Naeem,
Muhammad Jameel and Mushtaq Ahmad) & Criminal Revision No. 983 of
2010 (for the conversion of sentence of life imprisonment awarded to
respondent Muhammad Nadeem into that of death sentence for committing 'qatl-i-amd'
of Muhammad Ishaq). Likewise, the trial Court sent reference under Section 374
Cr.P.C. which was numbered as Murder Reference No. 490 of 2010 for the
confirmation or otherwise of death sentence awarded to Muhammad Nadeem
(convict). All these matters are being disposed of through this single
judgment.
2. Concisely stated the facts of prosecution case as unveiled
by complainant Rukhsana Kausar (PW.8) in FIR (Exh.PJ/1) are to the effect that
on 08.04.2006 at about 12:00 p.m. she along with her sisters Tasleem Kausar alias
Bawi (PW.9), Farzana Kausar (PW.10), Muqaddas Bibi (given up PW), mother
Zubaida Bibi (deceased), real brother Muhammad Nawaz and maternal uncle
Muhammad" Ishaq (deceased) was present in the house in Chak No. 118/JB;
that suddenly Muhammad Nadeem (appellant) trespassed into the house of her
parents, took out two pistols .30 bore from the fold of his shalwar in his
hands and exhorted that nobody would be spared; that he made first fire shot
which hit at the mouth of Mst. Tasleem Bibi, whereas the second shot hit
on the head of Muhammad Ishaq; that Mst. Zubaida Bibi tried to
intervene, whereupon Nadeem (appellant) made two fire shots which hit Mst. Zubaida
Bibi at her chest and temporal region and she succumbed to the injuries at the spot;
that the complainant, her sisters Farzana Kausar, Muqaddas Bibi saved their
lives while hiding behind the door; that Muhammad Nawaz tried to apprehend
Muhammad Nadeem (appellant) and during scuffle one pistol from the hand of
Muhammad Nadeem fell down and the accused managed his escape while brandishing
second pistol in his hand on a motorcycle; that Muhammad Nawaz took Tasleem and
Muhammad Ishaq to Allied Hospital, Faisalabad for treatment. Motive behind the
occurrence was that Tasleem Bibi was married with Muhammad Jamil son of
Muhammad Ishaq about 10-years back but was divorced, whereafter Muhammad Ishaq
shifted his residence in the house of parents of complainant. Muhammad Ishaq
also got transferred 8½ acres
agricultural land in the name of Tasleem Bibi which was sold out by her about
two days prior to the occurrence. Muhammad Nadeem being grandson of Muhammad
Ishaq had grudge about sale of land. Allegedly, Muhammad Nadeem (appellant)
committed the afore-mentioned crime upon the instigation of his co-accused
Muhammad Jamil, Muhammad Naeem and Mushtaq Ahmad.
3. The law was set into motion on the statement/Fard Bian
(Exh.PJ) of Mst. Rukhsana Kausar (PW.8) which she made before Khalid SI
(PW.17) during his visit to the crime scene. He sent Fard Bian (Exh.PJ) to the
police station through Muhammad Aslam 4486/C for the registration of formal
FIR. He prepared injury statement (Exh.PR), inquest report (Exh.PS) of Zubaida
Bibi (deceased) and sent her dead body to the mortuary under the escort of
Faqir Hussain 3337/C for the purpose of autopsy. From the spot, he took into
possession blood of Mst. Zubaida and Muhammad Ishaq through cotton and
pistol .30 bore along with an empty shell of same caliber through memos Exh.PK,
Exh.PL, Exh.PM & Exh.PN respectively. On 17.04.2006 Muhammad Ishaq
(injured) died and Muhammad Khalid SI prepared his inquest report (Exh.PAA) and
application for conducting postmortem examination (Exh.PZ).
Thereafter, the file of this case was entrusted to Sabir Ali
ASI (PW.18), who on 30.04.2006 arrested co-accused of the appellant, namely,
Muhammad Naeem and Muhammad Jamil. He on 03.05.2006 obtained warrants of arrest
of accused Muhammad Nadeem and Mushtaq as well as their proclamations through
applications (Exh.PDD & Exh.PEE) on subsequent date. He recorded the
statements of witnesses under Section 161, Cr.P.C. and got submitted report
under Section 173, Cr.P.C.
Muhammad Nadeem (appellant), who was proclaimed offender was
ultimately arrested by Javaid Ali Inspector (PW.19) on 31.01.2007. During
investigation conducted by Muhammad Akram Shah SI (late), Nadeem (appellant)
made disclosure on 10.02.2007 and in pursuance thereof led to the recovery of
pistol .30 bore which was taken into possession vide memo. Exh.PH.
4. Prosecution in order to prove its case against the appellant
produced as many as twenty two PWs, out of them, Rukhsana Bibi (PW.8),
Tasleem Bibi (PW.9) and Mst. Farzana Kausar
(PW.10) narrated the ocular account, Dr. Nageen Sobia (PW.11),
Dr. Bushra Tahir (PW.12), Dr. Khalid Rafique (PW.13),
Dr. Khalid Mehmood Naz (PW.14), Dr. Profcssor Tariq Ahmad
(PW.15), Dr. Altaf Pervez Qasim (PW.16) and Dr.
Jamil Ahmad (PW.22) furnished the medical evidence and Khalid SI
(PW.17), Sabir Ali ASI (PW.18) and Javaid Ali
Inspector (PW.19) are the Investigating Officers of the case. The
remaining PWs more or less were formal in nature.
5. Dr. Nageen Sobia (PW.11) on 08.04.2006 conducted the autopsy
of Zubaida Bibi and noted the following injuries:
1. An
entry wound 1 cm x 1 cm was present on the left side of neck middle part with
blackening of the margin and inversion of the margin.
2. An exit wound 2½
cm x 2½ cm with everted margin on the frontal part of the head with fracture of
frontal and both parietal bones. Brain matter was coming out of the head.
3. An entry wound 1
cm x 1 cm with margin blackened and inverted was present on the outer aspect of
left arm upper part.
4. An exit wound 1 ½
cm x 1 ½ cm with everted margin was present on the left shoulder.
The doctor gave the following opinion:-
"In this case the cause of death was trauma to the brain
matter and fractures of the skull bone caused by injury No. 1 which was ante
mortem and was sufficient to cause the death in ordinary course of nature. The
time between injury and death within seconds, and the time between death and
postmortem was 6 to 12 hours."
Dr. Bushra Tahir on 08.04.2006 conducted the medico legal
examination of Mst. Tasleem Kausar and noted the following injuries:-
(1) A lacerated wound
of entry 1 cm x 1 cm on the front of upper lip at left side.
(2) A lacerated wound
of exit of 2 ½ x 2 ½ cm on right side of neck at its lower part.
Dr. Khalid Rafique (PW.13) on 08.04.2006 at about 12:45 p.m.
did the medical examination of Muhammad Ishaq (when he was injured) and noted
the following injuries:-
1. Lacerated wound
complex of fire-arm (gutter shape) 4 x 1 cm on top of left side of head
outer/middle part x DNP. The wound was bright red and bleeding. The anterior
border was abraded. The wound was directed towards back (sagittal plan). The
condition of the patient was serious and patient was drowsy. The injury was
kept under observation for the opinion of surgeon/radiologist. The injury was
fresh at that time and was caused by fire-arm weapon.
Dr. Altaf Pervez Qasim (PW.16) on
17.04.2006 at about 6:15 p.m. conducted the postmortem examination of Muhammad
Ishaq (deceased) and observed the following injuries:-
(1). A healed wound
measuring 13 cm, with marks of 11 stitches, over the left parietal area of
head, extending from 05 cm above the left eyebrow, upto the left side of back
of head at 07 cm above the mastoid process of left ear. (Injury No. 1 of MLC
No. 758/06 dated 10.4.2006).
The doctor gave the following opinion:
"The death in
this case occurred due to injury No. 1 of MLC No. 758/06 dated 10.4.2006 and
its complications, leading to "Extensive Bain Damage" which was ante
mortem, inflicted by fire-arm and sufficient to cause the death in ordinary
course of nature. Probable time between injury and death was about nine days
(As per hospital record) whereas interval between death and postmortem
examination was 45 minutes (according to hospital record)."
6. Learned trial Court also examined the appellant under
Section 342, Cr.P.C. who in response to question "why this case is registered
against you", replied as under:-
"I have been
involved in this case falsely in order to grab the property of my grandfather.
The alleged motive is also false and fabricated."
Similarly, in response to question
"why the witnesses have deposed against you", the appellant took the
following stance:
"It
is a false case, the PWs did not see the occurrence. They have deposed falsely
being close relative of the deceased. The alleged witnesses were procured and
to become witness arranged falsely to depose the false prosecution story. They
could not substantiate their version. The alleged recoveries are also false and
fake. I have been involved in this case falsely in order to grab the property
of my grandfather. The alleged motive is also false and fabricated. None had
seen the alleged occurrence."
The appellant neither
opted to make statement under Section 340(2), Cr.P.C. nor produced any evidence
in his defence. After the conclusion of trial, the learned trial Court
convicted the appellant as afore-stated, hence, the appeals, criminal revision
and murder reference.
7. It is contended by learned counsel for the appellant that in
fact the FIR was registered late in the night but through the stoppage of
station diary it was made to look as if registered at 1:15 p.m; that the
eye-witnesses of the occurrence failed to substantiate their presence at the
spot; that the injured witness as per her own testimony had no opportunity to
see the assailant; that though the prosecution canvased a specific motive,
however miserably failed to prove it; that there was no previous deep rooted
enmity between the parties; that keeping in view the peculiar facts and
circumstances of the case penalty of death is a harsh punishment and alternate
sentence of imprisonment for life can meet the ends of justice. With these
submissions, learned counsel urged that the conviction awarded to the appellant
be converted into imprisonment for life under Section 302 (b), PPC.
8. On the other hand, learned law officer assisted by learned
counsel for the complainant vehemently argued that the case is emerging from a
crime report which was registered with promptitude; that the appellant is the
only person assigned the role of taking the lives of two innocent persons and
causing injuries to Tasleem Bibi through fire-arms; that the eye-witnesses were
not only having previous enmity with the appellant but were also inmates of the
same house where this occurrence took place; that the ocular account is in
absolute conformity with the medical evidence; that the corroboration, if any
can well be sought from the noticeable absconsion of the appellant as well as
from the positive report of PFSA, according to which the crime empties secured
from the spot matched with the pistol recovered from the appellant; that since
the appellant resorted to extreme brutality, hence the conviction awarded to
him needs not to be disturbed. It was, thus prayed that while dismissing the
appellant's appeal, his death sentence be upheld.
9. Arguments heard. Record perused.
10.
A wade through the record reveals that the case revolves around an occurrence
having taken place on 08.04.2006 at about 12:00 Noon during which two persons,
namely, Muhammad Ishaq aged about 80 years and Zubaida Bibi aged about 60 years
lost their lives, whereas Tasleem Bibi aged about 32 years got injured. For
this bloodbath, Muhammad Nadeem (appellant) was held solely responsible. As per
accusations, Muhammad Nadeem went berserk on a property dispute and pounced
upon the victims with a frightening ferocity while having pistols in both
hands. The law regarding the incident was set into motion without afflux of
time within 45-minutes through oral statement (Exh.PJ) of Rukhsana Bibi (PW.8)
made before Muhammad Khalid SI (PW.17) upon his arrival at the crime scene Even
after making an in-depth scrutiny of record, we have not come across any
convincing material which may cast even a remote doubt about the acclaimed time
of imparting information of crime to the police. The tale of occurrence
mentioned in promptly registered FIR on one hand attains credibility and on
other hand rules out the possibility of fabrication. Reference in this regard
can be made to the case reported as Khadija Siddiqui and another v. Shah
Hussain and another (PLD 2019 Supreme Court 261) wherein the Hon'ble
Supreme Court of Pakistan observed as under:
"Such conduct on
the part of the driver in fact could be cited in support of the prosecution's
case as the FIR had been lodged by the driver straightway without even
consulting anybody belonging to the victims' family. This aspect of the case
ruled out any deliberation taking place before lodging of the FIR and the same
argumented its credibility rather than weakening its reliability."
11.
The detail of saga was narrated by three ladies, namely, Rukhsana Bibi, Tasleem
Bibi and Farzana Bibi (PW.8 to PW.10). Though Muhammad Nawaz who was brother of
the above-referred female eye-witnesses did not appear before the trial Court
but due to reasons beyond his control as he died natural death during trial. As
per admitted facts the perpetrator Muhammad Nadeem was no stranger for the
eye-witnesses, thus there was no question of any mistaken identification. Out
of the afore-mentioned eye-witnesses, Tasleem Bibi (PW.9) is found by us to be
in receipt of grievous fire-arm injuries, stated to have been caused during the
incident by none other than Muhammad Nadeem (appellant). Zubaida Bibi
(deceased) took her last breath at the crime scene, however Muhammad Ishaq
(deceased) was taken to hospital in uninjured condition but the medical
treatment could not save him from the clutches of death and he died on
17.04.2016, even without gaining senses. In the same stretch, it is observed
that Tasleem Bibi (PW.9) and Muhammad Ishaq (deceased) reached Allied Hospital,
Faisalabad within 45-minutes of the incident. Such speedy shifting of victims
to hospital reflects positively upon the acclaimed presence of eye-witnesses at
the spot. In cases of homicide, the intrinsic worth of ocular account is
scrutinized on multiple grounds, the foremost out of them is the justification
put forth by a witness for his presence at the spot. In the instant case, it is
observed that the house, wherein the fateful incident occurred, was belonging
to Zubaida Bibi (deceased) who was living there along with Tasleem Bibi and
Farzana Bibi (PW.9 & PW.10). So far as, Rukhsana Bibi (PW.8) is concerned,
though she was residing in a different vicinity but on the fateful night had
come to see her mother and sisters. In the foregoing circumstances, it emerges
that Tasleem Bibi and Farzana Bibi (PW.9 & PW.10) were the inmates of the
house wherein the crime in question occurred. Since nothing as such is
available on record from which it may even remotely insinuate that Tasleem Bibi
and Farzana Bibi (PW.9 & PW.10) should have been present at some other
place in accordance with their ordinary pursuit of life, hence by no stretch
their presence at the spot can be doubted. In this respect, reference can be
made to the case reported as Muhammad Javaid v. The State (2007 SCMR
324) wherein the Hon'ble Supreme Court of Pakistan held as under:
"It is worth
mentioning that being inmates of the house they were natural witnesses and
cannot be termed as interested witnesses having no animus and rancour about the
petitioner."
If any further reference in this regard
is needed that can be made
to the case of Zulfiqar Ahmad and another v. The State (2011 SCMR 492).
12.
We have taken note of the fact that though three persons fell prey to the
murderous assault of Muhammad Nadeem and multiple fire-arm injuries were caused
to them but even then the eye-witnesses opted against spreading a wider net for
implication of other family members of Muhammad Nadeem in the case. This aspect
demonstrates strongly the credibility of the eye-witnesses and their testimony
is weighed by us favourably. The narrators of ocular account put forth the
detail of occurrence, which inspires confidence. All of them remained
consistent while narrating the time and manner of occurrence, the identity of the
perpetrators and the weapons with which he was armed. No discrepancy of some
material nature is discernible from the deposition of eye-witnesses. Even
otherwise, it appears wholly illogical that the eye-witnesses will let the
actual culprit go scot-free and to substitute him with Muhammad Nadeem
(appellant) as sole culprit of this gory incident. The Hon'ble Supreme Court of
Pakistan in case reported as Khizar Hayat v. The State (2011 SCMR 429)
while dealing with the case of a single accused observed as under:
"In
addition to it, it is a case of single accused, who has fired upon the deceased
Ghulam Ghous, therefore, substitution of a culprit is not possible besides it
is a rare phenomenon where a witness whose close relative has been murdered
would substitute the accused with an innocent person thereby allowing the
actual accused to go scot-free."
The theory of substitution, even
otherwise is destined to be discarded when seen in the context that one victim
of this murderous assault, namely, Tasleem Bibi (PW.9) lived alive and appeared
in the dock to tell the tale of brutality displayed by the appellant. The
testimony of an eye-witness in homicide case attains credibility on multiple
factors and the most important out of them is his claim of having received some
grievous injuries during the incident. We have also made an in-depth scrutiny
of medical evidence furnished during trial. So far as, Tasleem Kausar (PW.9) is
concerned, she was provided medical treatment by Dr. Bushra Tahir (PW.12). It
is noticed that bullet made ingress into the mouth of Bushra Tahir from left
side and made exit from right side of the neck, while causing multiple fragment
fractures of mandible. This injury, by no stretch, can be termed as minor or
self-inflicted in nature. We have also taken note of the fact that autopsy of
Zubaida Bibi was conducted by Dr. Nageen Sobia (PW.11) on the same day and
without any unnecessary delay. Even from the meticulous perusal of record, we
have not come across any anomaly between medical and ocular evidence, thus it
can safely be concluded that medical evidence is in line with prosecution case.
13. As per prosecution case, Muhammad Nadeem (appellant)
committed the crime with two pistols, which he was carrying in each of his
hands. Muhammad Nawaz (since died) made a last ditch effort to save his life
and tried to apprehend Muhammad Nadeem (appellant) and during this attempt one
of the pistols was dropped at the crime scene. This pistol along with a crime
empty secured from the spot was forwarded to PFSA and both of them vide report
(Exh.PKK) were found wedded with each other.
14.
After absconsion of almost 10-months, the appellant was arrested by Javaid Ali
Inspector (PW.9) on 31.01.2007. This aspect of the matter further reveals that
the case of the appellant is of noticeable absconsion. During his examination
under Section 342, Cr.P.C. the appellant was duly confronted with this
absconsion for which he had no answer to offer. No doubt the conviction cannot
be awarded on the basis of absconsion alone. Since the appellant failed to
satisfactorily address his absconsion, hence, the same can be used as
corroboration for confidence inspiring evidence of Rukhsana Bibi (PW.8),
Tasleem Bibi (PW.9) and Farzana Bibi (PW.10). While holding so, reliance can be
placed to the case of Mst. Mumtaz Begum v. Ghulam Farid and another
(2003 SCMR 647) wherein the Hon'ble Supreme Court of Pakistan observed as
under:
"It is recognized
principle of criminal administration of justice that when an accused remains
absconding after commission of the offence an adverse inference is drawn
against him to the effect that because has committed an offence, therefore, to
hamper the process of investigation of the case he absconded himself because if
an accused considers himself to be innocent he instead of defying the law would
surrender himself before the law enforcing agencies or the judicial
authorities."
15. In support of the motive set up by the prosecution in FIR
(Exh.PJ/1), Mst. Rukhsaana Kausar (PW.8), Tasleem Bibi (PW.9) and Farzana
Bibi (PW.10) appeared in the dock. It will not be out of context to mention
here the relevant excerpt of the examination-in-chief of Mst. Rukhsana
Kausar (PW.8), which is as under:
"The motive
behind this occurrence was that Tasleem as married with Mohammad Jamil son of
Mamon Ishaaq and she was divorced by her husband. Mohammad Ishaaq father in law
(susar) of Tasleem Bibi shifted his residence from Chak No. 105/RB and started
residing in chak No. 118/JB with his sister Mst. Zubaida Bibi where
Tasleem Bibi also shifted. Ishaaq transferred 8½ acres of agriculture land in
the name of Tasleem Bibi who sold out the same two days prior to the
occurrence. Nadeem accused who is son of Jaith of Tasleem and real grandson of
Ishaaq had grudge upon the sale of land of Tasleem Bibi."
All the afore-mentioned three
eye-witnesses were cross-examined on the motive part of the prosecution case
but in this regard the defence remained unable to break their credibility.
Although the fact of transfer of agricultural land by Ishaaq (deceased) could
not be proved through documentary evidence yet this fact loses its significance
because the appellant during his examination under Section 342, Cr.P.C. when
confronted with the motive part, he failed to offer any satisfactory explanation.
Even otherwise, the absence or failure to prove motive loses significance when
the murder occurrence is committed by accused/convict with blend of brutality
and extreme aggression. For the foregoing reasons, we are of the view that
prosecution remained successful in proving motive against the appellant.
16.
We have paid keen heed to the prayer of learned counsel for the appellant for
the lesser sentence but found no extenuating circumstance from the record. The
sentence of a person can only be reduced on the basis of acknowledged
mitigating circumstances and not due to artificial extenuating circumstance.
Even otherwise, the request of the appellant amounts to extending mercy to
merciless. He committed the cold blooded and brutal murder of two innocent
persons. The act of the appellant is found to be bereft of any humanly conduct
and he deserves no leniency. In this context, reference can usefully be made to
the case of Sharafat Ali v. The State (2000 SCJ 50) wherein the Hon'ble
Supreme Court of Pakistan held as follows:
"....... We are
of the view that it was most callous and brutal murder and therefore appellant
hardly deserves any leniency."
17.
For what has been discussed above, the prosecution has been successful in
proving its case against the appellant for committing the 'qatl-i-amd' of two
innocent persons and injuring a lady