The State vs Muhammad Arshad

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.16 of 2019 (The State Vs. Muhammad Arshad )

Criminal Appeal No. 440 –J of 2019 (Muhammad Arshad Vs. The State.)

JUDGMENT

Date of hearing: 15.11.2021.

Appellant by: Syed Zeeshan Haider, Advocate.

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Syed Jamil Anwar Shah, Advocate.

SADIQ MAHMUD KHURRAM, J. – Muhammad Arshad son of Azeem Bakhsh (convict) was tried along with Khursheed Ahmad, Abid, Azeem Bakhsh and Mst. Naseem Bibi (all since acquitted) by the learned Additional Sessions Judge, Liaquatpur in case FIR No. 479 of 2018 dated 11.12.2018 registered at Police Station City Liaquatpur, District Rahim Yar Khan in respect of offences under sections 302, 337-L(2), 34 and 109 PPC for committing the Qatl-i-Amd of Munazza Bibi daughter of Jan Muhammad (deceased). The learned trial court vide judgment dated 15.07.2019, convicted Muhammad Arshad son of Azeem Bakhsh (convict) and sentenced him as infra:

Muhammad Arshad son of Azeem Bakhsh:-

i)Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Munazza Bibi daughter of Jan

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Muhammad (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

ii)Rigorous Imprisonment for two years under section 337- F-(ii) PPC and directed to pay Daman of Rs. 20,000/- to the injured namely Mst Hajran Bibi (PW-15) and to remain in jail till the payment of the said amount of Daman and his imprisonment in lieu of failure to pay Daman was to be treated as simple.

The convict namely Muhammad Arshad son of Azeem Bakhsh was also extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.

Khursheed Ahmad, Abid, Azeem Bakhsh and Mst. Naseem Bibi, the co-accused of the convict were, however, acquitted by the learned trial court

2.Feeling aggrieved, Muhammad Arshad son of Azeem Bakhsh (convict) lodged Criminal appeal No.440-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.16 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Arshad son of Azeem Bakhsh. We intend to dispose of the Criminal Appeal No. 440-J of 2019 and Murder Reference No.16 of 2019 through this single judgment.

3.Precisely the necessary facts of the prosecution case, as narrated by Junaid Iqbal (PW-1), the complainant of the FIR, are as under:- “Stated that Munaza deceased was my sister. Name of her husband was Ahmad Din, About 2/3 years ago Ahmad Din had divorced my said sister. My sister was a private maid servant. She had seven children i.e two sons and five daughters. Arshad accused present in police custody nursed a grudge against my sister of getting divorce. However, my sister clarified to him that his brother Ahmad Din had himself divorced her. On 11.12.2018 at 02:30 P.M I along with Jamshed Iqbal and Nizam Din was present in the house of my sister. Arshad and Naseem accused were also sitting there. Arshad taunted my sister of illegal relations with Khursheed accused. Naseem Bibi

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accused was also present there at that time. In the meanwhile Arshad accused gave blows with Razor on nose, ear, neck, chest and wrist of right hand of my sister, whereas Naseem Bibi accused kept on catching hold of my sister. Naseem Bibi accused gave me a push. Hajran Minor was also given a Razor blow by Arshad accused on her finger. Khursheed accused also happened to come there. The occurrence took place at the instigation of Azeem Bakhsh and Abid Baloch accused. We took away Mst. Munaza Bibi to THQ Hospital Liaquatpur where she succumbed to her injures. The police also reached THQ Hospital Liaquatpur. I moved application Ex.P.A. to the Police in the THQ Hospital Liaquatpur which bears my signature Ex.P.A/1.”

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 30.03.2019, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case, got statements of as many as fifteen witnesses recorded. The ocular account of the case was furnished by Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15). Taj Muhammad, Patwari (PW-3) prepared the scaled site plan of the place of occurrence (Exh.PG/1-2). Muhammad Naeem Nasir 448/HC (PW-4) stated that on 11.12.2018 Abdul Rasheed, SI (PW-11) handed over to him seven sealed parcels and on 13.12.2018, Abdul Rasheed, SI (PW-11) handed over to him one sealed parcel said to contain an Ustra and on 19.12.2018 he handed over all the sealed parcels to Khalid Mehmood, ASI (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Haris Faheem, (PW-5) stated that on 11.12.2018 he prepared six sealed parcels of the various swabs taken by him from the dead body and prepared his report (Exh.PH). Shabbir Ahmad, SI (PW-6) stated that on 11.12.2018, Junaid Iqbal (PW-1), presented to him the written application (Exh.PA) at the THQ

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Hospital Liaquatpur for the registration of the F.I.R. Khalid Mehmood, S.I.

(PW-7) stated that on 19.12.2018, Muhammad Naeem Nasir (PW-4) handed over to him six sealed parcels of crime scene unit Bahawalpur, one sealed parcel of blood stained cotton and one sealed parcel of weapon of offence for onward transmission to Punjab Forensic Science Agency, Lahore, which he on 20.12.2018 delivered the said sealed parcels to the said Laboratory.

Muhammad Rizwan 1949/C (PW-9) stated that on 11.12.2018 post mortem examination of the dead body of the deceased was conducted by the Woman Medical Officer and she handed over to him the last worn clothes of the deceased. Shahid Mehmood, ASI (PW-10) stated that on 11.12.2018 he recorded the formal F.I.R (Exh.PA/3). Abdul Rasheed, SI (PW-11) investigated the case from 11.12.2018 till 26.12.2018, arrested the appellant in this case on 13.12.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Aneela Ambar (PW-8) examined, who on 11.12.2018 was posted as Woman Medical Officer at the THQ hospital, Liaquatpur and on the same day conducted the post mortem examination of the dead body of the deceased namely Munazza Bibi daughter of Jan Muhammad. Dr. Aneela Ambar (PW-8) on conducting the post mortem examination of the dead body of the deceased namely Munazza Bibi daughter of Jan Muhammad observed as under:-

“EXAMINATION OF NECK.

Multiple incised wounds 03 measuring approximately, larger one is 20x6 cm, 16x2cm and 10x1.5cm, involving skin facial muclès, (sic) major vessels of neck (carotid, arteries and veins) Trahea (sic), which are cut situated in front and mid of neck at the level of hyoid bone. Hoyid (sic) bone was cut. No mark of ligature seen around the neck on spare skin. Clotted blood present.

DESCRIPTION OF INJURIES.

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Injury No.1: A small incised wound measuring approximately, 2.5x1.5cm at the Ala of nose. Clotted blood present.

Injury No.2: As described above in the examination of neck.

Injury No.3: Incised wounds measuring (I) 5x2cm on right side and (II) 3x1cmc (sic) on left side of face. Both are skin deep. Clotted blood present.

Injury No.4: (I) An incised wound measuring 6x2cm in middle region and palmor aspect of right hand, which is muscle deep. (II) Multiple small incised wounds on interior and posterior aspect of right forearm. Clotted blood present.

Injury No.5: Multiple incised wound on anterior aspect of left upper arm and forearm. Both are skin deep. Clotted blood present.

Injury No.6: An incised wound measuring 10x5cm at C4,C5 level, not exposing the under lying bone at the back of neck near the left ear. Clotted blood present.

Injury No.7: An incised wound measuring 08x4cmm not exposing the under lying bone at back of head on occipital bone. Clotted blood present.

After conducting the autopsy, I am of the opinion that the death of the deceased occurred due to accumulative effect of injury No.1,2,3,4,5,6, and 7 particularly injury No.2 causing injury to major blood vessels leading to severe blood loss/ Hypovolemic shock, which was sufficient to cause death in ordinary course of nature. All injuries are ante-mortem and caused by sharp edged weapon.”

The prosecution also got Dr. Hina Rasheed (PW-12) examined, who on 16.12.2018 was posted as Woman Medical Officer at the THQ hospital, Liaquatpur and on the same day medically examined the injured namely Hajran Bibi (PW-15) and observed as under:-

“Injury No.1.

Mark of injury 1X0.5cm on tip of right little finger. Muscle deep. No swelling, no bruise, no restriction of movement. Injury is in process of healing. Patient came five days after fight and treated previously. No oozing of blood.

The injury was kept under observation for examination. There was no possibility of fabrication. Probable duration of Injury was five days before.”

7.On 15.06.2019, the learned Assistant District Public Prosecutor gave up prosecution witness namely Nizam Din as being unnecessary. On

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01.07.2019, the learned Assistant District Public Prosecutor gave up prosecution witness namely Hanifan Akbar 715/LC as being unnecessary. On 09.07.2019, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PT).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Arshad son of Azeem Bakhsh under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Arshad son of Azeem Bakhsh opted not to get himself examined under section 340(2) Cr.P.C and did not adduce any evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Liaquatpur, convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were not worthy of any reliance. The learned counsel for the appellant submitted that the learned trial court, while disbelieving the same evidence, had acquitted Khursheed Ahmad, Abid, Azeem Bakhsh and Mst.

Naseem Bibi, the co-accused of the appellant and the conviction awarded to the appellant on the basis of same evidence was not justified. The learned counsel for the appellant also argued that the recoveries were full of

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procedural defects, of no legal worth and value and result of fake proceedings.

The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.

The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the Ustra (P-7) and the report of Punjab Forensic Science Agency, Lahore (Exh.PT) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of appeal.

12.We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial.

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13.The whole prosecution case revolves around the statements of Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15). These witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were related to each other and the deceased. Their relationship with the deceased is also on record. The deceased namely Mst. Munazza Bibi was the sister of Junaid Iqbal (PW-1), aunt of Jamshed Iqbal (PW-2) and the mother of Hajiran Bibi (PW-15). All the three prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) explained their presence at the place of occurrence categorically. We have noted that all the prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) in a very natural and forthright manner, narrated the occurrence and gave each and every detail of the same.

More importantly the occurrence took place inside the house where the three prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were residing at the time of occurrence. The presence of the prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) inside the house where they were residing at the time of occurrence cannot be doubted and was but natural. The defence could not prove that the said witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were not present at the place of occurrence, at the time of occurrence, inside the house which was the place of occurrence rather the presence of Junaid Iqbal (PW-1), and Hajiran Bibi (PW-15) was even admitted by the appellant. During the course of cross- examination Jamshed Iqbal (PW-2), in order to the questions put to him by the learned counsel for the appellant answered as under:-

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“I had been residing together in the house of Monaza. It is correct that I am married man. I have a son. My wife was residing with her mother at the time of occurrence. My In-laws were residing in Lawnwala. My wife was residing in the house of in-laws 3, 4 months before the occurrence. It is correct that I was residing for the last four months in the house of Monaza before the occurrence. It is incorrect to suggest that Monaza Bibi was my paternal cousin.

Volunteered she was my paternal aunt.

The second major daughter of Monaza was named as Hajira. It is correct that Monaza Bibi was residing in a rented house. ” (emphasis supplied)

Similarly, Junaid Iqbal (PW-1), also stated as under:- “ My nephew was residing with me in the house of my sister. ” Hajiran Bibi (PW-15) during cross-examination stated as under:- “We had been residing in the rented house for the last one year/ one and half year”

In this manner, it was brought on record that all the three prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were residing at the place of occurrence and therefore their presence at the place of occurrence, at the time of occurrence, could not be even doubted. The occurrence took place at around 2.30 p.m on 11.12.2018 and at that time the presence of the prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) at the place of occurrence was established. During the course of investigation, Abdul Rasheed, SI (PW-11), the Investigating Officer of the case, also collected the blood stained cotton from the place of occurrence and took the same into possession through recovery memo (Exh.PC). The report of the Punjab

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Forensic Science Agency, Lahore (Exh.PT) establishes that the said blood taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site plan of the place of occurrence (Exh.PO) as prepared by Abdul Rasheed, SI (PW-11), the Investigating Officer of the case, and the scaled site plan of the place of occurrence (Exh.PG) as prepared by Taj Muhammad, Patwari (PW-3). A perusal of both the site plans (Exh.PO and Exh.PG) reveals that the occurrence took place inside the house where the three prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-

15)were residing along with the deceased. As the occurrence had taken place within the house where Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were residing with the deceased prior to the occurrence, hence their witnessing the same cannot be put to the question in absence of any circumstance necessitating raising of any doubt over the presence of the prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15). As mentioned above, the presence of Jamshed Iqbal (PW-2) at the place of occurrence, was even admitted by the appellant.

Reference is made to the judgment in the case titled as Abid Ali v. The State (2017 SCMR 662) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The occurrence in this case had taken place early in the morning in the month of May at a time when the day had already broken. The appellant was not only an immediate neighbour of Fateh Bibi complainant (PW10) but he was also related to the complainant party as the complainant was the appellant's aunt. Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the complainant in her house at that time was nothing but natural and expected.”

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Reference is made to the judgment in the case titled as Nadeem Raamzan v.

The State (2018 SCMR 149) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The said eye-witnesses were inmates of the house wherein the occurrence had taken place and, thus, were nothing but natural witnesses.”

Reference is made to the judgment in the case titled as Muhammad Ikram and another v. The State (2011 SCMR 1133) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“Aqeel Shahzad (complainant) and her sister Mst. Saima were natural witnesses as the occurrence took place inside the house where they were residing.”

Furthermore, in the incident in issue, the weapon had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the present appellant who was known to all of them. We have scrutinized the evidence of the prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements. There is no evidence on record that the said witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were motivated by any enmity to depose against the appellant.

As mentioned above, all the witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were closely related to the deceased and no reason existed prior to the occurrence which could have interested Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) to get the appellant involved in this occurrence falsely and let-off the real accused.

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All the three prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) were subjected to cross-examination but the defence failed to make cracks in their depositions and the genuineness of their statements has been proved. Moreover during the cross- examination the sequence of the occurrence was brought on record and all the three witnesses remained consistent. It was also explained by the witnesses that as the appellant was armed and acing desperately therefore they were unable to stop him. Jamshed Iqbal (PW-2) during cross- examination explained as under:-

“I did not tried to cause any injury to Arshad as he was armed with razor and there was danger to our life.”

Hence, in view of the above facts, the prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) by no stretch of imagination, can be declared as chance witnesses. The learned counsel for the appellant has vehemently argued that at the time of the post mortem examination, the eyes of the dead body of Munazza Bibi (deceased) were opened, therefore, it proved that the witnesses were not present there.

During the cross-examination, this aspect of the case was also got explained and Jamshed Iqbal (PW-2) explained that they tried to close the eyes of the deceased but the same could not be. Jamshed Iqbal (PW-2) during cross- examination stated as under:-

“ We tried to close her eyes but the same were not closed by us.”

At the time of the preparation of the inquest report (Exh.PK) the name of Jamshed Iqbal (PW-2) was mentioned in the column No.4 as well as at page 4 of the said inquest report (Exh.PK) as being the person present near the

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dead body. It was also noted in the inquest report (Exh.PK) that at the time of preparation of the same the blood of the deceased was found to be in a fluid condition, clearly establishing the fact that the said inquest report (Exh.PK) was prepared with promptitude. Furthermore, the presence of the witness namely Hajiran Bibi (PW-15) at the place of occurrence cannot be doubted as she had a stamp of injury on her body. The prosecution got Dr.

Hina Rasheed (PW-12) examined, who on 16.12.2018 medically examined the injured namely Hajiran Bibi (PW-15) and observed an injury of the dimension of 1 cm x 0.5 cm on tip of her right little finger, which was muscle deep. Dr. Hina Rasheed (PW-12) further noted that there was no possibility of fabrication of the said injury and the same had been caused to Hajiran Bibi (PW-15) five days before her examination by Dr. Hina Rasheed (PW-12) i.e on 11.12.2018. The said observations and the opinion of Dr.

Hina Rasheed (PW-12) provide further corroboration of the ocular account as furnished by the prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15). The august Supreme Court of Pakistan in the case of Khadim Hussain vs. The State (P L D 2010 Supreme Court 669) has held as under:-

“We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17.”

Reliance is also placed on the case of “KHADIJA SIDDIQUI and another Vs. SHAH HUSSAIN and another” (P L D 2019 Supreme Court 261)

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wherein the august Supreme Court of Pakistan observed that implicit reliance could be placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye-witness namely Sofia Siddiqui of that case. The presence of the witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-

2)and Hajiran Bibi (PW-15) at the place of occurrence, at the time of occurrence, stands proved beyond a shadow of doubt. Moreover, there is no such material available on record which would indicate substitution of the appellant in the case with the real culprits. Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of “Irshad Ahmad and others v. The State and others” (PLD 1996 SC 138).

The appellant namely Muhammad Arshad has not been able to establish any animosity of the complainant or the police for his false involvement in the case. Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) in a forthright manner, held the appellant namely Muhammad Arshad responsible for the murder of Mst. Munazza Bibi (deceased).

14.As mentioned above, the occurrence in question had admittedly taken place in broad daylight at 2.30 p.m. and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. As it was a broad daylight occurrence and because of the fact that the appellant was known to all the three witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15), the question of his misidentification

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does not arise. We have also appreciated the fact that the occurrence in this case took place at about 2.30 pm on 11.12.2018 and was reported by the complainant namely Junaid Iqbal (PW-1), to the police with remarkable promptitude. Junaid Iqbal (PW-1), submitted his written application (Exh.P.A.) to Bashir Ahmad, SI (PW-6) at 3.10 p.m. inside the THQ hospital Liaquatpur on the same day. On the basis of the written application (Exh.PA) of the complainant namely Junaid Iqbal (PW-1), the formal F.I.R.

(Exh.P.A/3) was registered at 3.40 p.m by Shahid Mehmood, ASI (PW-10) at the Police Station. Thus, it is apparent that the written application (Exh.PA) of the complainant namely Junaid Iqbal (PW-1), was got submitted with noteworthy swiftness, especially when Junaid Iqbal (PW-1), the complainant of the case, had suffered the trauma of the death his sister at the hands of the appellant, the tragic brother of the former husband of Mst.

Munazza Bibi (deceased). Junaid Iqbal (PW-1), not only named the appellant, but also mentioned each and every minor as well as material fact of the incident in his written application (Exh.PA), which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. The salient features of the occurrence have been elaborately explained in the written application (Exh.PA). The promptitude in reporting the matter to the police also corroborates the case of the prosecution as against the appellant. This remarkable promptitude in reporting the matter to the police establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as “Muhammad Waris v. The State” (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

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“The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death.”

Reliance is also placed on the case of MUHAMMAD ARSHAD Versus The State (2020 S C M R 2025) wherein it has been held as under:- “There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society.”

Reliance is also placed on the case of Noor Sultan and others Versus The State (2021 S C M R 176) wherein it has been held as under:- “The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution.”

Reliance is also placed on the case of “Shaheen Ijaz Alias Babu Versus The State” (2021 S C M R 500) wherein it has been held as under:- “ ..........petitioner's nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation.”’

Reference is also made to the judgment in the case titled as “Muhammad Aslam v. The State” (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“F.I.R. in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt.”

During the course of the trial it was proved that the written application (Exh.PA) of Junaid Iqbal (PW-1), upon the basis of which the formal F.I.R

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(Exh.PA/3) was registered, was a genuine document and was made spontaneously, naturally and contained the true facts, devoid of any manipulation.

15.The medical evidence produced by the prosecution in the case, proves that the deceased namely Mst. Munazza Bibi had received the fatal injuries on the vital parts of her body and she succumbed to the said injuries caused by the appellant. The medical evidence fully supports the ocular account.

According to Dr. Aneela Ambar (PW-8) , who conducted the post mortem examination of the dead body of the deceased namely Munazza Bibi daughter of Jan Muhammad, she observed three incised wounds , measuring approximately 20 cm x 6 cm, 16 cm x 2cm and 10 cm x1.5cm, on the neck, with carotid arteries and veins, Trachea and Hyoid bone cut and observed another incised wound measuring approximately 2.5 cm x 1.5 cm present on the nose and observed two other incised wounds measuring 5 cm x 2 cm and 3 cm x 1 cm present on the both sides of the face and observed another incised wound measuring 6 cm x 2 cm present on the palmer aspect of the right hand and observed multiple incised wounds on the right forearm and also observed multiple incised wounds present on the left upper arm and forearm and observed an incised wound measuring 10 cm x 5 cm present at C4, C5 level, at the back of neck near the left ear and observed an incised wound measuring 08 cm x 4 cm present at back of head of the dead body of the deceased . Dr. Aneela Ambar (PW-8) also opined that the deceased died due to the fact that she had suffered massive, deep cuts on her face, neck region and other parts of the body which were sufficient in ordinary course of life to cause death. The appellant has been saddled with the responsibility

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of causing the said fatal injuries to the deceased namely Mst. Munazza Bibi.

In this manner the ocular account is fully verified by the medical evidence available on record. In view of the above discussion, it is ascertained and proved that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd of Mst. Munazza Bibi (deceased).

16.So far as the contention raised by the learned counsel for the appellant that the learned trial court while disbelieving the same evidence has acquitted Khursheed Ahmad, Abid, Azeem Bakhsh and Mst. Naseem Bibi and the conviction awarded to the appellant on the basis of same evidence is not justified, is concerned, we have observed that the learned trial court has rightly acquitted the said co-accused of the appellant. The prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) did not assign any role to Khursheed Ahmad, Abid, Azeem Bakhsh and Mst. Naseem Bibi, the co-accused of the appellant, since acquitted, of causing any injury on the person of the deceased namely Munazza Bibi (deceased). The prosecution did not allege any motive of committing the occurrence as against Khursheed Ahmad, Abid, Azeem Bakhsh and Mst. Naseem Bibi, the co-accused of the appellant, since acquitted, during the course of the trial. Moreover, we, keeping in view the prevailing social trend that innocent people of the family or friends of the main culprit are implicated falsely to incapacitate them to pursue the case of the actual culprit, are of the opinion that Khursheed Ahmad, Abid, Azeem Bakhsh and Mst. Naseem Bibi (since acquitted), the co-accused of the appellant, indeed had a case distinguishable from the appellant namely Muhammad Arshad.

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17.Regarding the recovery of the Ustra (P-7) from the appellant namely Muhammad Arshad son of Azeem Bakhsh, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Ustra (P-7) from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:-

“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Furthermore, the recovery of Ustra (P-7) was shown to have been made on 20.12.2018 from the place of occurrence. According to the prosecution case itself Abdul Rasheed, SI (PW-11), the Investigating Officer of the case, visited the place of occurrence on 11.12.2018 and remained present at the said place for a considerable time, however did not observe the presence of the said Ustra (P-7) at the place of occurrence. It was stated by the witnesses that after the occurrence the accused fled away from the spot while carrying the weapon with him, hence the recovery of the same from the same house cannot be believed. Another aspect regarding the recovery of the Ustra (P-7) from the appellant is that the occurrence took place on 11.12.2018, whereas the Ustra (P-7) was sent to the office of Punjab Forensic Science Agency, Lahore, on 20.12.2018 and was analyzed on 01.02.2019. During such a long period the blood available on the Ustra (P-7), if any, would have disintegrated. It is not possible to believe that the blood available on the

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Ustra (P-7) had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of “Faisal Mehmood Vs. The State” (2016 SCMR 2138) has held as under:-

“The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”

Therefore, the recovery of the Ustra (P-7) from the appellant does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the Ustra (P-7) is not proved and the same cannot be used as a circumstance against the appellant. With regard to the recovery of motorcycle (P-8) from the appellant it is observed that Junaid Iqbal (PW-1), himself admitted that he had not seen the appellant arrive at the place of occurrence on the said motorcycle (P-8) or using the motorcycle (P-8) to flee away from the place of occurrence. Junaid Iqbal (PW-1), during cross-examination admitted as under:-

“It is correct that I have not mentioned in Exh.PA about the motorcycle of the accused.”

In this manner, the recovery of the motorcycle (P-8) from the possession of the appellant does not offer any corroboration of the prosecution evidence.

18.The motive of the occurrence, as mentioned by the prosecution witness namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) was that the appellant namely Muhammad Arshad harboured a

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grudge against the deceased for obtaining divorce from his brother. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. The former husband of Munazza Bibi (deceased) was never examined as a witness during the trial nor appeared during the investigation of the case. It was also not brought on record as to when the divorce between Munazza Bibi (deceased) and her husband had happened. No evidence was led to prove as to since when the deceased was residing separately from her husband and what were the grounds which had resulted in divorce to Munazza Bibi (deceased). None of the three prosecution witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15) could explain as to why the appellant was so aggrieved of the divorce between his brother and Munazza Bibi (deceased).

Jamshed Iqbal (PW-2) during cross-examination admitted as under:- “Monaza was divorced 3, 4, 5 years before the occurrence by Ahmad Din. After her divorce Arshad and Naseem accused had been visiting the house of Monaza. They used to visit her house after one month, six months, one or two days.It is correct that Arshad and Naseem had no annoyance with Munazza.”(emphasis supplied)

Furthermore, during the course of investigation the Investigating Officer of the case did not collect any evidence so as to establish that there was any grievance developing in the heart of the appellant as against the deceased which motivated him to act in the manner in which he did . Junaid Iqbal (PW-1), during cross-examination admitted as under:- “ The police did not inquire from us about the previous dispute.”

The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have

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committed the Qatl-i-Amd of the deceased namely Munazza Bibi. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of “Muhammad Asif v. The State” (2008 SCMR 1001) as under:

“Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side.”

So, this leads us to the conclusion that the prosecution remained unable to prove the motive as alleged.

19.We have disbelieved the evidence of prosecution qua the motive and recovery of the Ustra (P-7) in this case. However, if the evidence of motive and recovery of the Ustra (P-7) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Arshad son of Azeem Bakhsh to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Junaid Iqbal (PW-1), Jamshed Iqbal (PW-2) and Hajiran Bibi (PW-15). The said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Aneela Ambar (PW-8), therefore, we hold that the prosecution has proved its case against the appellant namely Muhammad Arshad son of Azeem Bakhsh beyond the shadow of any doubt.

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20.Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of the appellant namely Muhammad Arshad son of Azeem Bakhsh, firstly, the evidence of recovery of the Ustra (P-7) from the possession of the appellant namely Muhammad Arshad son of Azeem Bakhsh has been disbelieved by us for the reason mentioned in Para No.17 of this judgment, secondly the prosecution had alleged a specific motive in this case but failed to prove the same. It is well recognized principle by now that the question of quantum of sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard we respectfully refer the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein august Supreme Court 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 parts 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."

The august Supreme Court of Pakistan has held in the case of “Ansar Ahmad Khan Barki v. The State and another” (1993 SCMR 1660), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Muhammad Arshad son of Azeem Bakhsh, in the peculiar circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. 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 and elicited such a colossal retort from the appellant, which had resulted into the death of the deceased namely Mst. Munazza Bibi, therefore, in our view the death sentence

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awarded to the appellant is quite castigatory. It has been held in number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of “Ahmad Nawaz and another v. The State” (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:-

"10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl- i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".

The august Supreme Court of Pakistan has held in the case of “Mst. NAZIA ANWAR v. The State and others” (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under :- “In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.”

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We are also fortified in our view in this regard by the cases of “Nawab Ali v.

The State” (2019 SCMR 2009), “Muhammad Akram alias Akrai v. The State” (2019 SCMR 610), “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165), “Muhammad Mumtaz v. The State and another” (2012 SCMR 267), “Muhammad Imran alias Asif v. The State” (2013 SCMR 782), “Sabir Hussain alias Sabri v. The State” (2013 SCMR 1554), “Zeeshan Afzal alias Shani and another v. The State and another” (2013 SCMR 1602), “Naveed alias Needu and others v. The State and others” (2014 SCMR 1464), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Muhammad Asif v. Muhammad Akhtar and others” (2016 SCMR 2035), “Qaddan and others v. The State” (2017 SCMR 148) and “Ghulam Murtaza v. The State” (2021 S C M R 149).

21.In the light of above discussion, the conviction of the appellant namely Muhammad Arshad son of Azeem Bakhsh, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Muhammad Arshad son of Azeem Bakhsh under section 302(b) P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof are maintained and upheld. The other sentences awarded to the appellant namely Muhammad Arshad son of Azeem Bakhsh under section 337 F(ii) PPC are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Arshad son of Azeem Bakhsh. All the sentences of the appellant namely Muhammad Arshad son of Azeem Bakhsh are ordered to run

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concurrently. Consequently, with the above said modification in the sentence awarded to the appellant namely Muhammad Arshad son of Azeem Bakhsh under section 302 (b) PPC, Criminal Appeal No.440-J of 2019, is hereby dismissed.

22.Murder Reference No. 16 of 2019 is answered in Negative and the death sentence awarded to Muhammad Arshad son of Azeem Bakhsh, is Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel/*

Approved for Reporting

JUDGE JUDGE