Muhammad Aslam vs State

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

Criminal Appeal No. 216 of 2011 (Muhammad Aslam. V. The State etc.) (M.R. NO. 28 of 2011)

Date of hearing: 23.09.2014 Appellants by: Mr. Muhammad Sharif Bhatti, Advocate Complainant by: Hasina Bibi, complainant in person.

State by: Ch. Asghar Ali Gill, DPG

Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 216 of 2011 filed by Muhammad Aslam and Murder Reference No.28 of 2011 sent by the learned trial court for confirmation of the death sentence of appellant Muhammad Aslam or otherwise as both matters have arisen out of the same judgment dated 20.05.2011 passed by learned Additional Sessions Judge, Liaquatpur District Rahimyar Khan according to which the present appellant was convicted and sentenced as under:- “(i) Muhammad Aslam was convicted under section 302(b) PPC and sentenced to death for committing Qatl-i-Amd of Durr Mohammad deceased along-with compensation Rs.1,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.C and in default thereof six months S.I.

He was also convicted under section 324 PPC and sentenced to ten years R.I alongwith fine of Rs.50,000/- and in default thereof further undergo three months S.I.

He was also convicted under section 337- F(v) PPC and sentenced to five years R.I alongwith fine of Rs.5,000/- to the injured as Daman.

All the sentences awarded to the appellant were ordered to run concurrently. Benefit of section 382-B Cr.P.C was also extended to the present appellant in case FIR No. 313 dated 28.06.2010 under sections 302, 324, 337-F(v) PPC police station, Shedani Sharif Tehsil Liaquatpur District Rahimyar Khan.

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2.The facts of the case has been stated by Mst. Hasina complainant/PW-3 in her statement before the learned trial court and same statement is hereby reproduced for narration of the facts: - “About nine years ago at about 10:30 am there was an engagement/Nikkah ceremony of my son Muhammad Nadeem. I alongwith Durr Muhammad, Muhammad Saleem, Jameel, Nadeem, Rab Nawaz and Ghulam Hussain was sitting under trees of Shareen and Keekar at the Dera of Saeed Ahmed. Meanwhile, Muhammad Aslam accused came there armed with double barrel gun. He raised lalkara that he would teach a lesson for engagement/Nikkah of Nadeem and made fire with gun which hit on the left shoulder of Durr Muhammad. He again made another fire with the said gun which hit on the right shoulder of Muhammad Saleem. Durr Muhammad succumbed to the injuries at the spot. Muhammad Saleem was injured seriously and he was taken to hospital by Nadeem and Shahid in a bad condition. We tried to arrest the accused but the fled away. Motive behind the occurrence is that hand of one Mst. Nasreen who was demanded by Muhammad Aslam accused for his son Azhar was engaged with my son Nadeem”.

3.After registration of the case, investigation started and on completion of the investigation report under section 173 Cr.P.C was submitted in the trial court.

4.Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 11.01.2011 against present appellant Muhammad Aslam under section 302, 324, 337-F(v) PPC to which he pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Dr. Ghulam Shabbir M.O PW-1, Nazir Ahmed ASI PW-2, Mst. Hasina PW-3, Muhammad Saleem PW-4, Rab Nawaz PW-5, Shair Ali PW-6, Mumtaz Ahmad SI PW-7, Zahoor Ahmad PW-8 whereas PWs namely Muhammad Nadeem, Ghulam Hussain, Maulvi Saeed, Allah Bakhsh and Ch. ashraf were given up by the prosecution being unnecessary and tendered in evidence medical report Ex.PA. injury plan Ex.PB, postmortem report Ex.PC, inquest report Ex.PD, application to M.O Ex.PE, statement of Mst.

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Hasina Mai Ex.PF, FIR Ex.PF/1, recovery memo of blood stained earth Ex.PG, recovery memo of empty cartridge Ex.PH, recovery memo of Gun 12-bore Ex.PI, recovery memo of last worn clothes of the deceased Ex.PK, site plan Ex.PL, report of Chemical Examiner Ex.PM, report of Serologist Ex.PN and closed the prosecution evidence.

6.Medical evidence was furnished by Dr. Ghulam Shabbir Medical Officer PW-1, who stated that on 28.06.2010 at 04:00 p.m he conducted postmortem examination on the dead body of Durr Muhammad deceased and observed as under:- “External appearance.

It was a dead body of male wearing Kamiz and Shalwar of Sky blue colour with bleeding Roomal of light gr4een colour. Rigor Mortis and post mortem staining partially present. Following injuries were found on the body of deceased.

Injury A lacerated wound measuring about 1-1/2 cm x 1-1/2 cm x bone deep at posterior- lateral side of left shoulder, just below neck of Humerus bone, wound was oval in shape. Margins were inverted, blackening was present around the wound, wound was bone deep and no exit wound was present.

Cranium and spinal cord.

No abnormality was detected.

Thorax There was fracture of ribs and remaining viscerae were normal and healthy.

Abdomen.

There was fracture of ribs in the diaphragm. Stomach contained gastric juices. Small and large intestine contained fecal matter. There was 50 cc urine in the bladder. All the viscerae in the abdomen were healthy.

Muscles, bones and joints.

There was firearm injury at posterior lateral side of left shoulder bone deep. There was fracture of ribs. No dislocation was seen.

Opinion The cause of death in this case is shock and hemorrhage due to external as well as internal blood loss due to fire-arm injury”.

7.On the other hand, statement of present appellant was recorded under section 342 Cr.P.C who refuted the allegations so leveled against him and has not opted to

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appear as a witness under section 340(2) Cr.P.C and also did not produce the defence evidence and in reply to questions No. 9 & 10 “why this case against you and why the PWs deposed against you?” the appellant Muhammad Aslam replied as under:- “I have been falsely implicated in this case due to mere suspicion of the complainant side. It came to my knowledge that under the joy of marriage ceremony firing was being made and due to fire made by some unknown person the deceased was hit and later on succumbed to the injuries. The complainant side was unaware of the assailants by whose fire the accused was killed and Muhammad Saleem was injured, so they merely on the basis of previous suspicion and grudge regarding Rishta has involved me in this case falsely.

All the private PWs are relatives inter-se, therefore, they have deposed falsely against me”.

8.After conclusion of the trial, learned trial court convicted the present appellant Muhammad Aslam with above stated sentences through judgment dated 20.05.2011. Hence this appeal.

9.Learned counsel for the appellant contended that:-

(i)the judgment of the trial court dated 20.05.2011 is against law and facts on the file and is liable to be set-aside.

(ii)that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellant on the basis of surmises and conjectures;

(iii)it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;

(iv)lastly submitted that appeal may be accepted and the judgement of the trial court dated 20.05.2011 may kindly be set aside and appellant may be acquitted.

10.On the other hand, learned DPG has vehemently opposed the appeal whereas complainant Mst. Hasina

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wife of the Durr Muhammad deceased present in court owned the arguments advanced by the learned DPG who submitted that: -

(i)prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.

11.We have heard the learned counsel for the parties and perused the record.

12.The detail of prosecution case as mentioned in FIR Ex.PF/1 recorded on the statement Ex.PF of Mst. Hasina Mai complainant (PW-3) widow of Durr Muhammad (deceased) has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

13.According to FIR Ex.PF/1 occurrence took place on 28.6.2010 at 10:30 a.m whereas FIR was registered on the same day at 11:25 a.m within one hour which excludes the doubt of deliberation and consultation for false involvement of Muhammad Aslam present appellant.

14.Mst. Hasina Mai complainant PW-3 widow of Durr Muhammad deceased stated in her statement Ex.PF upon which FIR Ex.PF/1 was registered as under: -

15.Muhammad Saleem PW-4 is real son of Dur Muhammad deceased. Place of occurrence is the Dera of Saeed Ahmed (not cited as PW) where Mst. Hasina Mai PW-3 and Muhammad Saleem PW-4 were present there in ceremony of engagement of Muhammad Nadeem real son of Mst. Hasina complainant with Mst. Nasreen daughter of Saeed Ahmed where occurrence took place.

16.In view of the above, the presence of Mst. Hasina Mai complainant PW-3 and Muhammad Saleem PW-4

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(eye witnesses of the occurrence) at the time of occurrence at the place of occurrence cannot be considered as unnatural or improbable. Both the above mentioned eye witnesses were cross-examined at length but their evidence could not shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. Their evidence is trust worthy and straight forward. It is a day light occurrence and there is no question of mis-identity of accused.

17.There is another aspect of the case that the complainant Mst. Hasina Mai PW-3 is widow of Durr Muhammad deceased. It is a case of single accused. It is highly improbable that she would let off the real culprits and will falsely implicate the present appellant Muhammad Aslam for the murder of her husband. Substitution in such like cases is a rare phenomena.

18.The medical evidence was furnished by Dr. Ghulam Shabbir PW-1 who at the time of postmortem examination observed one lacerated wound measuring about 2-1/2 cm x 2-1/2 cm x bone deep at posterior- lateral side of left shoulder, just below neck of Humerus bone with inverted margins alongwith blackening around the wound. Dr. Ghulam Shabbir PW-1 further stated that cause of death in this case was shock and hemorrhage due to external as well as internal blood loss due to fire-arm injury. Both the eye witnesses stated that present appellant had made one fire upon deceased Durr Muhammad hitting on his left shoulder.

19.In view of the above, medical evidence has supported the ocular account. Further Muhammad Saleem PW-4 was also injured and medical officer Dr. Ghulam Shabbir PW-1 observed following two fire arm injuries on his person: -

(i)five lacerated wound scattered over right shoulder measuring about 1 cm x 1 cm x muscle deep, margins of wound were inverted and blackening was present around the wound.

Wounds were oval in shape.

(ii)One lacerate wound measuring about 1-1/2 cm x 1 cm x bone deep at back side of right shoulder joint at

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scapular area. Margins of wound were evert5ed, wound was oval in shape”.

20.Medical evidence in this way has also supported the version of Muhammad Saleem PW-4 (eye witness).

21.We are, therefore, of the view that medical evidence furnished by Dr. Ghulam Shabbir PW-1 has fully supported the above mentioned ocular account furnished by Mst. Hasina Mai PW-3 and Muhammad Saleem PW-4.

22.It is settled law that mere relationship of a witness with the deceased would not make the witness unworthy of reliance if his testimony is corroborate by the independent evidence of circumstance appearing on record.

23.In the instant case, ocular account was furnished by Mst. Hasina Mai PW-3 complainant (widow of Durr Muhammad deceased) and Muhammad Saleem injured PW-4 real son of Durr Muhammad deceased. Though, both these witnesses are closely related inter-se as well as with Durr Muhammad deceased but mere relationship would not make the witenss unworthy of reliance. Both these witnesses have reasonable explained their presence at the spot at the time of occurrence and they remained unshaken despite being subjected to lengthy cross-examination and they not only corroborated each other but also remained consistent on all material particulars of the prosecution case as discussed earlier. Reliance is palced on case titled Hasil Khan Vs. The State etc. (NLR 2013 Criminal 21).

24.So far as motive is concerned, Mst. Hasina Mai complainant PW-3 widow of Durr Muhammad deceased stated in her statement Ex.PF upon which FIR Ex.PF/1 was recorded as under: -

25.In view of the above, place of occurrence is the Dera of Saeed Ahmed depicted from rough site plan

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Ex.PL of the occurrence prepared by Mumtaz Ahmed SI/I.O of this case PW-7 on the pointation of PWs Mst. Hasina Mai and Muhammad Saleem stated above (eye witnesses).

26.Saeed Ahmed is father of Mst. Nasreen Bibi stated above. Admittedly, neither Mst. Nasreen Bibi nor her father Saeed Ahmed who according to the prosecution had refused to give hand of Nasreen Bibi to Azhar son of Muhammad Aslam present appellant appeared as a prosecution witenss to support the motive story of the prosecution.

27.It is not understandable that why Muhammad Aslam present appellant had murdered Durr Muhammad in presence of Saeed Ahmed who had refused to give hand of her daughter Mst. Nasreen Bibi to Azhar son of Muhammad Aslam present appellant. Likewise, Muhammad Nadeem was not the target of Muhammad Aslam present appellant at the time of occurrence, although, he was present at the time of occurrence who had contracted Nikkah with Mst. Nasreen Bibi daughter of Saeed Ahmed stated above and above stated Muhammad Nadeem also has not appeared as a prosecution witenss to support the motive story of the prosecution.

28.In view of the above, prosecution has failed to prove motive story. It is concluded that prosecution could not prove motive in the instant case.

29.Mere recovery of the gun 12-bore P-3 in absence of positive report of FSL is inconsequential.

30.Although, we have disbelieved motive set-up by the prosecution and did not consider recovery of 12-bore gun P-3 as corroborative evidence but if the prosecution evidence qua the motive and recovery is excluded from consideration even then there is sufficient incriminating evidence available on the record to prove the prosecution case against the appellant.

31.As discussed earlier, the prosecution case was proved against the appellant through the evidence of eye witnesses namely Mst. Hasina Mai complainant PW-3 and Muhammad Saleem injured PW-4. The said

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eye witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. Their evidence is quite natural, trust-worthy and confidence inspiring which has been fully supported by the medical evidence furnished by Ghulam Shabbir PW-1.

32.In view of the above, it is our confirmed view that prosecution has proved its case against Muhammad Aslam present appellant beyond any shadow of doubt.

33.Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of Muhammad Aslam present appellant. Firstly, we have not considered recovery of 12-bore gun as corroborative evidence in this case in absence of positive report of FSL. Secondly, it is a case of single fire shot and there is no allegation of repetition of any fire arm injury against the appellant upon Durr Muhammad deceased. Thirdly, we have disbelieved prosecution evidence qua the motive due to the reason noted in the preceding para of this judgement. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence, which resulted into present unfortunate incident. Therefore, in our view, the death sentence awarded to Muhammad Aslam appellant is quite harsh.

34.It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case of Meer Muhammad alias Meero Vs. The State (2009 SCMR 1188) wherein the Hon’ble Supreme Court of Pakistan has held as under: - “it will not be out of place to emphasize that in criminal cases the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.

35.Further reliance is placed on Zafar Iqbal and others v. The State (2014 SCMR 1227) in which

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Hon’ble Supreme Court of Pakistan has observed at page 1235 & 1238 as under: - “the question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain’s two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery” “All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants could not be made liable to the maximum punishment provided under section 302(b) PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of section 382-B Cr.P.C, this appeal is partially allowed in the above terms”.

36.For the foregoing reasons, the conviction of Muhammad Aslam appellant under section 302(b) PPC awarded by the leaned trial court through impugned judgement dated 20.05.2011 is maintained but his sentence is altered from death to imprisonment for life. The compensation awarded by trial court and sentence

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in default thereof is maintained and upheld. The benefit of section 382-B Cr.P.C is also given to the appellant.

37.The conviction and sentence of Muhammad Aslam appellant recorded by the trial court under section 324 and 337-F(v) PPC is maintained. Consequently, with the above said modification in the sentence of Muhammad Aslam present appellant, Criminal Appeal No. 216 of 2011 filed by Muhammad Aslam present appellant is hereby dismissed. Murder Reference No.28 of 2011 is answered in NEGATIVE and death sentence of Muhammad Aslam present appellant is NOT CONFIRMED.

(Altaf Ibrahim Qureshi) (Sadaqat Ali Khan) Judge Judge

APPROVED FOR REPORTING

Irfan