Full Judgment Text & Judicial Ruling

2025 P Cr. L J 1125 [Islamabad] Before Aamer Farooq and Mohsin Akhtar Kayani, JJ Shakeel Ahmed Qureshi---Appellant Versus The State and others---Respondents Criminal Appeal No. 141 and Criminal Revision No. 68 of 2015, decided on 29th November, 2018.* (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for committing murder of the husband of complainant during robbery---Appellant was duly identified by the complainant as he was previous driver of the complainant and his services were rehired two days prior to the alleged occurrence and he was given servant quarter to live in complainant's house ---On fateful day, when the deceased, aged about 84 years, opened the kitchen door at 5.30 am, the appellant and co-accused while armed with pistol entered into the bedroom of the complainant and her husband and landed pistol blows on the head of the deceased in the presence of the complainant and when the deceased got injured, he fell down on the floor---Appellant also landed pistol blows upon the complainant and thereafter tied up both the complainant and her deceased husband with nylon ropes and put pieces of cloth in their mouth, which were taken into possession by the Investigating Officer on the day of occurrence---Complainant also stated that the appellant along with his accomplice forcefully removed 12 gold bangles and two cuffs they also took out one lac rupees from bedroom cupboard along with four prize bonds each worth of Rs. 25,000/- and one hundred British pounds and fled away---Details of injuries given by Medico-Legal Officer fully corroborated the testimony of eye-witness/complainant---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of any doubt---However, due to mitigating circumstances, sentence under S.411, P.P.C was set-aside, whereas the sentence under S.392 P.P.C was enhanced to 10 years and the sentence of life imprisonment under S.302(b) P.P.C was maintained---Criminal appeal was partly allowed. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Recovery of robbed property---Reliance---Accused were charged for committing murder of the husband of complainant during robbery---During the investigation, father of the appellant made appearance and produced one cuff, two bangles, two prize bonds worth Rs. 25,000/- each, which were taken into possession by the Investigating Officer through recovery memo---Said articles were identified by the complainant in the police station through identification memo and in that regard her statement was also recorded by the Investigating Officer---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of any doubt---However, due to mitigating circumstances, sentence under S.411, P.P.C was set-aside, whereas the sentence under S.392 P.P.C was enhanced to 10 years and sentence of life imprisonment under S.302(b) P.P.C was maintained---Criminal appeal was partly allowed. (c) Criminal trial--- ----Conviction---Scope---To establish an accusation, it is not the quantity but quality of the evidence, which gets preference for the purpose of conviction. Amrood Khan v. The State 2002 SCMR 1568; Rahim Shah v. The State and another 2004 PCr.LJ 1129; Arab Gul v. Mir Shah Baz and another 2004 PCr.LJ 1138 and Masood Khan v. The State 2018 MLD 1672 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Defence plea of not being present of place of occurrence not proved---Scope---Accused were charged for committing murder of the husband of complainant during robbery---Allegedly, appellant was not present at the scene of occurrence and he was substituted in the case---In his statement recorded under S.342, Cr.P.C, the appellant denied his presence in the servant quarter of the complainant whereas the appellant was duly identified by the complainant and his credentials were fully known to her, therefore, question of substitution of the appellant did not arise as the appellant had failed to prove the same---Substitution of an accused is a rare phenomenon and one who alleges substitution must lay down the foundation for it---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of any doubt---However, due to mitigating circumstances, sentence under S.411 P.P.C was set-aside, whereas the sentence under S.392, P.P.C, was enhanced to 10 years and the sentence of life imprisonment under S.302(b), P.P.C was maintained---Criminal appeal was partly allowed. Muhammad Tariq and others v. The State 2000 PCr.LJ 47 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Accused were charged for committing murder of the husband of complainant during robbery---In the present case, the stolen articles were produced by father of the appellant---Conviction and sentence awarded to the appellant under S.411, P.P.C could not be maintained as S.411 P.P.C required that a person who retained any stolen property should be charged with the said offence, whereas in this case, the stolen articles were produced by father of the appellant, and no such fact had been proved on record that the said articles were in possession of the appellant---Therefore, conviction and sentence under S.411, P.P.C awarded to the appellant was against the law---Moreover, non-production of one of the relatives of complainant as a witness, who was telephonically informed by the complainant about the alleged occurrence at the first instance, constituted a mitigating circumstance---On the other hand, the requirement of S.392, P.P.C. had to be seen in the light of the statement recorded by complainant, who was put under fear of instant death and she was also injured and wrongly detained, therefore, all the ingredients of robbery mentioned in S.392 P.P.C were present in the case---Hence, sentence of three years imprisonment awarded to the appellant under S.392 P.P.C was on the lesser side, therefore the same was enhanced to 10 years---Sentence of life imprisonment under S.302(b), P.P.C was maintained---Criminal appeal was partly allowed. Zia-ur-Rehman for Appellant (in Criminal Appeal No. 141 of 2015). Sadaqat Ali Jahangir, State Counsel for the Respondent No. 1. (in Criminal Appeal No. 141 of 2015). Ch. Abdul Rehman Hur Bajwa for Respondent No. 2 (in Criminal Appeal No. 141 of 2015). Ch. Abdul Rehman Hur Bajwa for Petitioner (in Criminal Revision No. 68 of 2015). Zia-ur-Rehman for Respondent No. 1 (in Criminal Revision No. 68 of 2015). Sadaqat Ali Jahangir, State Counsel for the Respondent No. 2 (in Criminal Revision No. 68 of 2015). Date of hearing: 5th November, 2018. Judgment Mohsin Akhtar Kayani, J.---Through this single judgment, we intend to decided above titled criminal appeal and criminal revision as the same have been filed against the same judgment. 2. Through appeal, the appellant has assailed the judgment dated 30.06.2015, passed by learned Additional Sessions Judge (VIII) West-Islamabad, whereby the appellant was convicted in case FIR No. 173, dated 14.04.2013, under sections 302, 392, 354, 411, 34, P.P.C., P.S Kohsar, Islamabad and sentenced as under: (a) Under Section 302(b)/34 of life imprisonment with fine of Rs. 1,00,000/-, and in default of payment of the same, the appellant to further undergo three months S.I; (b) Under section 392/34 P.P.C. for three years R.I with fine of Rs.10,000/- and in default of payment of the same, the appellant to further undergo one month S.I; and, (c) Snder Section 411/34 P.P.C. for two years imprisonment with fine of Rs. 10,000/-and in default of payment of the same, the appellant to further undergo one month S.I. All the sentences shall run concurrently. The amount of fine of Rs.100,000/- under section 302 (b) P.P.C., if recovered shall be paid to the legal heirs of the deceased as per section 544 Cr.P.C. Benefit of section 382-B, Cr.P.C is also extended to the appellant. 3. Through the criminal revision, the petitioner/complainant has prayed for enhancement of the sentence awarded to the appellant through impugned judgment dated 30.06.2015. 4. Brief facts are that case FIR No.173, dated 14.04.2013, under sections 302, 392, 354, 411, 34, P.P.C., P.S Kohsar, Islamabad/ Exh.P.B was registered against the appellant and an unknown person on the complaint/Exh.P.A of complainant/Roshan Ara Begum/P.W.3, wherein she alleged that she was residing with her husband at House No.28-A, Street No. 18, Sector F-7/2, Islamabad and two days ago they hired Shakeel Ahmed Qureshi son of Muhammad Farooq Qureshi, resident of Sir Bagla, Post Office Hattian Bala Azad District Muzaffrabad as driver, who had already worked with them as driver and he was living in servant quarter, whereas on 14.04.2013, she and her husband Anwar ud Din were sleeping in their bedroom and at about 5:30 am, her husband opened the kitchen door, whereafter their driver Shakeel Ahmed Qureshi along with a young man entered into their bedroom. Shakeel Ahmed Qureshi, who was holding a pestle (Langri Danda) after entering into the bedroom along with the co-accused caught hold her husband and started hitting him and when she reached near the accused, they also started hitting her. Shakeel Ahmed Qureshi landed pestle blows on the head of her husband, who got seriously injured and fell down on floor on getting unconscious, whereafter both the accused tied up the complainant and her husband with rope and also put cloth in their mouth. At the time of occurrence, the complainant was wearing 12 gold bangles and two cuffs, which they forcefully removed and they also took cash amounting to Rs.1,00,000/-, four prize bonds each worth of Rs.25,000/-, one hundred British pounds from Almirah of bedroom and fled away. After hectic efforts, she untied herself and telephonically informed her relative Iftikhar, who came there and when they checked her husband, he had died. 5. After registration of the FIR and investigation, the challan was sent up before the Court for trial, whereafter the learned Trial Court convicted and sentenced the appellant through impugned judgment dated 30.06.2015. 6. Learned counsel for the appellant contended that learned Trial Court has not appreciated the evidence in its true perspective; that findings of learned Trial Court are based on surmises and conjectures; that the prosecution miserably failed to prove the case against the appellant but despite that the appellant has been convicted and sentenced; that impugned judgment, conviction and sentence are against the law and facts of the case. 7. Conversely, learned counsel for complainant and learned State counsel contended that the prosecution proved its case beyond any shadow of doubt; that impugned judgment to the extent of quantum of sentence is result of mis-reading and non-reading of evidence; that learned Trial Court must have awarded capital punishment to the appellant on the basis of available cogent evidence. 8. We have heard the arguments and gone through the record. 9. The entire prosecution case is based upon statement of complainant/Mst. Roshan Ara Begum/P. W.3, who lodged the complaint Exh.P.A., which is reproduced as under:- 10. The above referred complaint was converted into FIR No.173, dated 14.04.2013, under sections 302, 392, 354, 34, P.P.C., P.S Kohsar, Islamabad/Exh.P.B. 11. Dr. Muhammad Farrukh Kamal, Deputy Director/Medicolegal Officer, PIMS, Islamabad appeared as P.W.4, who conducted post mortem of the deceased. Anwar ud Din. Examination-in-chief of P.W.4 is reproduced as under:- "That on 14.04.2013 at about 12:15 p.m I conducted the post mortem of Anwar ud Din son of Ikhlas ud Din aged 84 years male brought by Naveed Ahmed A.S.I. and Iftikhar Ahmed S.1. of Police Station Kohsar, Islamabad and was identified by Mian Shahid Ahmed son of Mian Faqeer Ahmed and Mian Javed Ahmed son of Mian Faqeer Ahmed. External Examination. An old man height 5 feet 11 inches wearing gray color clothes eye and mouth closed. Hair and moustache white not shaved. Injuries. i. Lacerated wound 11x2 cm, parieto occipital region, bone deep, on scalp. ii. Bruised lower lip 6x2 cm. iii. Bruised upper lip 3x2 cm. iv. Bruised chin 4x3 cm. v. Bruised of nose of right side 1x1 cm. Rigor mortis and levedity in initial stages. Internal Examination. Scalp ruptured and damaged. Brain contused. Lips bruised, both lungs were congested. Stomach empty, yellow green contents present in small intestines, fecal matter present in large intestine. All other organs were healthy and intact. Specimens No.1 liver, spleen, kidney, No.2 stomach, small intestine with contents were sent to chemical examiner and No.3 heard, No.4 lungs were sent to pathologist. Opinion. In my opinion final opinion would be established after the chemical and pathological examination reports. However, deceased sustained head injury which caused rupture and damages of scalp, contusion of brain, smothering which caused death cannot be ruled out. All injuries were ante-mortem in naure. Time between injury and death. 1-2 minute or few minutes (5-10 approximately) Time between death and postmortem. 6-8 hours (approximately) Postmortem report Exh.PE along with two diagrams is in my handwriting and bears my signatures. Postmortem application as Exh.P.F and inquest report Exh.P.G bears my signature. 12. Dr. Shazia Suleman, C.M.O PIMS Hospital, Islamabad/P.W13 examined injured complainant Mst. Roshan Ara. Her examination-in-chief is reproduced as under:- "On 14.04.2013 I was posted as C.M.O PIMS Islamabad on that day, I examined Mst. Roshan Ara brought by lady constable. On examination I found following injuries on her body. Injuries. i Swelling with Bluish discoloration on both eyes with sub-conjuntival hemorrhages, bilaterally. The patient complained that she was tried to be strangulated. ii. Loosening of teeth. iii. Bruises with superficial laceration on both forearms. iv. Chest pain. I prepared her medical sheet Exh.P.BB which is in my handwriting and bears my seal and signature and I referred the patient to IMLO and OMFS. 13. After registration of the FIR, P.W.12 Iftikhar Ahmad/I.O. prepared inquest report/Exh.P.G, filed application for post mortem/Exh.P.F. Anwar ur Din deceased and also prepared injury sheet of the complainant as Exh.P.Y and sent her to PIMS Hospital. The crime scene was inspected by the I.O, who prepared rough site plan/Exh.P.2, collected blood from the carpet vide memo Exh.P.M and collected incriminating articles from the spot i.e. Danda/P.16, copy of the CNIC of appellant/P.17, eight pieces of Nylon rope/P.18 to P.23, Phuldar Chadar/P.24 vide recovery memo Exh.P.N and recorded statement of P. Ws under section 161, Cr.P.C. The dead body was identified by Mian Shahid and Mian Javed/relatives of the deceased through memo of identification Exh.P.K. The last worn clothes of the deceased i.e. Qameez/P.25 and Shalwar/P.26 were taken into possession vide recovery memo Exh.P.O. The post mortem report/Exh.P.E was collected by the I.O from the hospital, where after the I.O got issued proclamation of appellant from the Court and on 21.06.2013, he took over ten photographs/snaps/P.1 to P.10 vide recovery memo Exh.P.C and arrested the appellant on 04.07.2013, whereas during the course of investigation, father of the appellant appeared in the police station on 13.07.2013 and handed over the shopping bag of white colour containing one gold cuff, two bangles and two prize bonds of Rs.25,000/- each, which were taken into possession vide recovery memo Exh.P.S. The gold cuff was recovered as P.11, bangles as P.12 and P.13, and prize bonds as P.14 and P.15, which were handed over to the Moherar Malkhana for safe custody. He further stated that on 14.07.2013 complainant/Roshan Ara/ P.W.3 appeared in police station and duly identified Kara/P.11, bangles/P.12 and 13 and prize bonds/P.14 and P.15 snatched from her by the appellant and co-accused since P.O.. 14. The star witness of the case is complainant/Roshan Ara, who narrated the entire story while appearing as P.W.3 before the Court, wherein she stated that she along with her husband were residing at house No.28-A, Street No.18, F-7/2, Islamabad and on 14.04.2013, in the early morning hours at about 5:30 am, when her husband opened kitchen door, the appellant (duly identified in the Court by her) along with another unknown person entered into their bedroom. She also stated that they hired the appellant as driver and he was given accommodation in servant quarter and on the day of occurrence, when the appellant entered in their bedroom, he was holding a pestle in his hand and he landed pestle blows on the head of her husband, who got injured and fell down on the floor. She further stated that when she reached near her husband, the appellant also started hitting her with the same pestle and the appellant and his accomplice tied up her and her husband with a rope and put a piece of cloth in their mouth and forcefully removed all the golden articles i.e. 12 gold bangles, two gold cuffs and cash amount of Rs.1,00,000/- from bedroom cupboard. She, further stated that the appellant also took four prize bonds each worth of Rs.25,000/- and one thousand British pounds (in complaint one hundred pound is mentioned), where-after the appellant and his co-accused fled away from the scene and after hectic efforts, she untied herself and informed her relative Iftikhar on phone about the alleged occurrence and when he checked her husband, who by that time had been succumbed to injuries. She further stated that Iftikhar informed the police, whereafter the police officials reached at the spot after some time and the I.O. recorded her statement Exh.P.A and the dead body of the deceased was taken to the hospital. PW.3 was called in police station on 14.07.2013, where she identified two gold bangles, one gold cuff, and two prize bonds, which were snatched by the appellant on the day of occurrence. She further stated that the I.O prepared identification memo Exh.PD regarding the articles, which she identified. 15. During the course of cross-examination of P.W.3 Mst. Roshan Ara Begum/complainant, P.W.4 Dr. Muhammad Farrukh Kamal/MLO, and P.W.13 Dr. Shazia Suleman/C.M.O., they have admitted the following facts: i. Appellant Shakeel Ahmed Qureshi was working as driver with the complainant. ii. Two days prior to the occurrence i.e. on 12.04.2013, the appellant was hired again for the second time on his repeated calls for hiring him as Driver. iii. Copy of the ID card of the appellant was given to the police by the complainant. iv. At the time of occurrence, the deceased was 84/85 years old and had difficulty in hearing, and the complainant is about 69 years old as of now. v. Deceased's sons Ejaz Anwar, Ayaz Anwar and daughter Saira are still in Lahore, who were born from Mst. Saima i.e. first wife of the deceased. vi. Complainant/P.W.3 is second wife of the deceased and the house was in the name of the deceased. vii. The deceased was retired Major from Pakistan Army. viii. One Iftikhar is brother in law of the complainant. ix. On the day of occurrence, the deceased opened kitchen door at 5:30 am and the complainant/P.W.3 offered her Fajar prayer at 5:00 a.m. x. The complainant did not know as to how unknown persons made entry into the house. xi. House of Iftikhar is at a distance of 10 minutes from the place of occurrence and the complainant called him on telephone after one hour of the occurrence. xii. The police reached at the place of occurrence at about 8:30 a.m. xiii. The complainant never put off jewelry from her hands till time of the occurrence. xiv. A security guard was appointed in the street, who was on duty at the time of occurrence, however, he was not associated by the I.O. in the investigation. xv. The complainant acknowledged that upper portion of the house/alleged place of occurrence is rented and a lady tenant was living alone in upper portion, who was working in NGO. xvi. P.W.3 reached at the police station at 10:15 a.m. xvii. The complainant saw one gold cuff and two bangles in the police station and she did not inquire about remaining 10 bangles, one hundred British pounds and two prize bonds. xviii. All the 12 bangles were of the same design. xix. Learned defence counsel asked the complainant to wear the bangles, which she wore and the same were as per size of her hand and easily slipped into her wrist and this fact was duly noted by learned Trial Court. xx. Co-accused was not known to the complainant. xxi. Dr. Muhammad Farrukh Kamal/P.W.4 conducted post mortem and referred five injuries upon the dead body of the deceased and declared that scalp was ruptured and damaged and brain was contused. xxii. Smothering cannot be ruled out as cause of death. xiii. Dr. Shazia Suleman/P.W.13 conducted examination of the complainant and three injuries were found on her body while observing swelling with bluish discoloration on both eyes with sub-conjunctival hemorrhages, bilaterally, loosening of teeth, bruises with superficial laceration on both forearms. xxiv. No mark of strangulation or ropes ligature on the body of the complainant was found by P.W.13. 16. From the above referred evidence brought by the prosecution on record, we are of the view that the appellant was duly identified by the complainant/Roshan Ara Begum wife of the deceased as the appellant was previous driver of the complainant and his services were rehired two days prior to the alleged occurrence and he was given servant quarter to live in house No.28-A, street No.18, F-7/2, Islamabad and on 14.04.2013, when the deceased/husband of the complainant, aged about 84 years, opened the kitchen door at 5:30 am, where-after the appellant and co-accused while armed with Pestle/P.16 entered into the bedroom of the complainant and her husband and landed pestle blows on the head of the deceased in presence of the complainant and when the deceased got injured, he fell down on floor. The appellant also landed pestle blows upon the complainant and thereafter tied up both the complainant and her deceased husband with Nylon ropes/P.18 to P.23 and put pieces of cloth Phuldar Chadar/P.24 in their mouth, which were taken into possession by the I.O on the day of occurrence vide recovery memo Exh.P.N. Complainant/P.W.3 also stated that the appellant along with his accomplice forcefully removed 12 gold bangles and two cuffs as well as they also took out one lac rupees from bedroom cupboard along with four prize bonds each worth of Rs.25,000/- and one hundred British pounds and fled away. Thereafter the complainant untied herself with hectic efforts and called Iftikhar, her brother-in-law, who came at the place of occurrence and called the police, where-after FIR/Exh.P.B was registered on the complaint/Exh.P.A. The I.O took into possession the ropes, the cloth used to mum the complainant and her deceased husband as well as Pestle/P.16 used in the crime. The deceased ex-Major was done to death by the appellant through pestle blows as narrated by the complainant/P.W.3, whereas lacerated wound of 11x2 cm, parieto occipital region, bone deepwas visible on scalp and rest of the injuries were bruises. The said details of injuries given by P.W.4 fully corroborate the testimony of eye-witness/complainant. In opinion of the doctor/P.W.4, scalp was ruptured and damaged, whereas brain was contused and the doctor did not rule out cause of death due to smothering on the basis of Chadar/P.24 used by the appellant to mum the complainant and deceased and as a result of the same, the deceased died in the house. The appellant was arrested by the I.O/P.W.12/Iftikhar Ahmed Inspector on 04.07.2013, when his pre-arrest bail application was dismissed. 17. During the investigation, father of the appellant put appearance on 13.07.2013 and produced one Cuff/P.11, two bangles P.12 and P.13, two prize bonds/P.14 and P.15 of worth Rs.25,000/- each, which were taken into possession by the I.O. through recovery memo Exh.P.S and the same were identified by the complainant in the police station on 14.07.2013 through identification memo Exh.P.I…

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