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Petitioner: MUHAMMAD TAHIR VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: MUHAMMAD TAHIR vs The STATE Case No.: Criminal Appeal No.867 and Murder Reference No.317 of 2008 Date of Judgment:2013-03-08 Reported As: 2014 YLR 15 Result: Ordered accordingly
Judgment ' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No. 867 of 2008 filed by Muhammad Tahir appellant against his conviction and sentence, and Murder Reference No. 317 of 2008, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Tahir appellant, as both these matters have arisen out of the same judgment dated 30-6-2008, rendered by the learned Additional Sessions Judge, Sheikhupura, in case F.I.R. No. 240 dated 24-6-2007, offence under sections 302/34, P.P.C., Police Station City Farooqabad District Sheikhupura, whereby, Muhammad Tahir, appellant was convicted under section 302(b) of P.P.C. For committing the murder of his wife Mst. Aasma Bibi (deceased) and sentenced to death with a direction to pay the compensation amount of Rs.50,000 (Rupees fifty thousand only) to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. And in default, thereof, to suffer imprisonment for six months' S.I. However, through the same judgment, Sodagir co-accused of the appellant was acquitted of the charge by the learned trial court while extending benefit of doubt to him. 2. Brief facts of the case, as disclosed by Naeem Abbas, complainant (P.W.7) in his complaint (Exh.PB/1) on the basis whereof, the formal F.I.R. (Exh.PB) was recorded are that he (complainant) was resident of Mohallah Jehangir Abad, Police Station A-Division, Sheikhupura and was a labourer by profession. The marriage of Mst. Aasma Bibi (deceased) aged about 20 years, real sister of complainant was solemnized with Muhammad Tahir (appellant) 9/10 months prior to the occurrence. She Was pregnant of five months. The relations between the spouses remained strained and they used to quarrel with each other due to matrimonial disputes. A few days earlier to the occurrence Mst. Aasma Bibi (deceased) after quarrelling with her husband, came, to the house of complainant Muhammad Tahir (appellant), husband of Mst. Aasma Bibi (deceased) and
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his brother Sodagir (acquitted accused) came to the house of complainant and after effecting compromise, they took along Mst. Aasma Bibi (deceased) to their house and Sodagir Ali (acquitted accused) gave assurance that the spouses will not quarrel in future. On 23-6-2007, at evening time, Mst. Aasma Bibi (deceased) told the complainant, on telephone that her husband, Muhammad Tahir (appellant) and Sodagir (acquitted accused) were quarrelling with her since morning, they had beaten her and were also extending threats to kill her. Mst. Aasma Bibi (deceased), therefore, called the complainant to her house at Farooq Abad. The complainant, his brother Jamil (given up P.W.) and Nazir Ahmad (P.W.8), thereupon, reached the house of Mst. Aasma Bibi (deceased) at the time of 'Isha' prayer, for the purpose of effecting compromise between the spouses. It is also mentioned in the F.I.R. (Ex.PB) that whole of the night passed during this process, but the compromise could not be effected. At 4-30 a.m. (night) Sodagir (acquitted accused) raised a lalkara and asked Muhammad Tahir (appellant) to make fire if they (complainant party) don't agree with them, whereupon, Muhammad Tahir (appellant) made' a fire shot with his pistol 30 bore which hit Mst. Aasma Bibi (deceased) on the right side of her buttock and then he made second fire shot hitting on her left side of the chest. Then Muhammad Tahir (appellant) made third fire shot hitting on the backside of head near the ear of Mst. Aasma Bibi (deceased). Muhammad Tahir (appellant) extended threats to the complainant and P.Ws. That if anyone would come forward, he will be done to death. Sodagir (acquitted accused) then took pistol from Muhammad Tahir (appellant) and pointed the same towards the P.Ws. And he asked Muhammad Tahir (appellant) to flee away from the place of occurrence and he will himself cope with the P.Ws. Mst. Aasma Bibi succumbed to the injuries at the spot. It was further alleged that Muhammad Tahir (appellant) in consultation with Sodagir Ali (acquitted accused) has committed the murder of Mst. Aasma Bibi. 3. The appellant was arrested on 20-7-2007 by Nasrullah Khan, Inspector (P.W.10). He (appellant) while in police custody, after making disclosure, got recovered pistol .30 bore (P-5) along with five live bullets (P-6/1-5), which were taken into possession vide recovery memo Ex-PD. After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 25-9-2007, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution produced ten witnesses, during the trial. Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8) are the witnesses of ocular account while Naeem Abbas complainant (P.W.7) is also the witness of recovery of pistol .30 bore (P.5) from the possession of the appellant. ' The medical evidence was furnished by Lady Dr. Marryam Aftab Khan (P.W.9) who on 24-6-2007 at 4-25 p.m. Conducted the postmortem examination on the dead body of Mst. Asma Bibi (deceased). ' Nasrullah Khan, Inspector/S.H.O. (P. W.10) is the Investigating Officer of the case. ' Tanvir Hussain (P.W.1), Zulfiqar Ali (P.W.2), Muhammad Ramzan (P.W.3), Abdul Hameed, S.I. (P.W.4), Muhammad Siddique (P.W.5) and Muhammad Riaz, Draftsman (P.W.6) are the formal witnesses. ' The prosecution also produced documentary evidence in the shape of memo of possession of last worn clothes of the deceased, Ex. PA, copy of F.I.R. (Exh.PB), application for registration of case (Ex. PB/l), scaled site plan in duplicate of the place of occurrence, Ex. PC and Ex. PC/1, recovery memo of pistol 30 bore (P.5) along with five live bullets P-6/1-5, (Ex. PD), rough site plan of the place of recovery Ex. PD/1, memo of possession of blood-stained earth from the place of occurrence, Ex. PE, recovery memo of three crime empties from the spot Ex. PF, copy of postmortem report of Mst. Aasma Bibi, deceased, Ex. PG, pictorial diagram Ex. PG/1, Inquest report of the deceased Ex. PH, application for conducting postmortem examination on the dead body of Mst. Aasma Bibi
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deceased Ex. PJ, Injury statement of Mst. Aasma Bibi deceased (Ex. PK), rough site plan of the place of occurrence, Ex. PL, report of Chemical Examiner, Ex. PM, report of Serologist Ex. PN, report of Forensic Science Laboratory, Ex. PO and closed its evidence. 5. The statement of the appellant under section 342 Cr.P.C. Was recorded by the learned trial court. He refuted the allegations levelled against him and professed his innocence. While answering to question "Why this case against you and why the P. Ws. Deposed against you?" the appellant replied as under:-- "I committed this murder on the pretext of honour. P. Ws. Deposed falsely. None of them was present at the spot and witnessed the occurrence. I alone committed this murder. None else instigated, abeted or participated with me to accomplish this offence. Name of my brother Sodagir All was falsely mentioned in the F.I.R. " ' The appellant opted to make statement on oath, under section 340(2), Cr.P.C., however, he did not produce any evidence in his defence. He (appellant) in his statement on oath recorded under section 340 (2), Cr.P.C., took this plea that he committed the murder of his wife Mst. Aasma Bibi (deceased) on account of honour (ghairat). He further deposed that on 23-1-2007, he went to the house of his in-laws where he saw his wife Mst. Aasma Bibi (deceased) in an objectionable condition with her 'Behnoi' Nazir as they both were busy in sexual act at that time. It was further deposed by the appellant that he controlled himself at that time, however, on the night of occurrence, i.e. On 24-6-2007 at about 3-00 a.m. (night), he was present in his room alongwith his wife when he inquired from her about her illicit relations with her `Behnoi' Nazir, whereupon Mst. Aasma Bibi (deceased) confessed her illicit relationship with Nazeer. The appellant further deposed that when his wife Mst. Aasma Bibi (deceased) confessed about her illicit relations, he could not control himself, thus, he fired at Mst. Aasma Bibi (deceased) who succumbed to the injuries. 6. The learned trial Court vide judgment dated 30-6-2008, found Muha ad Tahir appellant guilty and convi ted and sentenced him as mentioned and tailed above. 7. Learned counsel for the appellant, port of this appeal, contends that a false case has been registered against pellant: that both the eye-witnesses mittedly chance witnesses and they of been able to prove their presence place of occurrence, at the relevant that Naeem Abbas complainant ) is real brother of Mst. Aasma Bibi ed) while Nazir Ahmad (P.W.-8) is i' of the complainant and as such f them are close relatives of the d, who are inter se related and are ed witnesses and as such their e requires strong and independent ration which is very much lacking case; that the alleged recovery of 30 bore P-5 has been planted against appellant in order to strengthen the tion case; that the motive as alleged prosecution, has not been proved in se, as no specific reason of the onial disputes has been disclosed by s.; that version of the appellant in cumstance is more probable and ing which has been rejected by the trial court without any valid reason; counsel for the appellant has also ed that at least it is not the case, of punishment because the appellant itted the murder of Mst. Aasma eceased) his wife on account of 'ghairat', therefore, lenient view may be taken in this case; that the death sentence awarded to the appellant is not sustainable while- keeping in view the provisions of sections 306, 307 and 308 P.P.C. Because the appellant being husband of Mst. Aasma Bibi deceased is also her legal heir; that the prosecution has miserably failed to prove its case against the appellant; thus, this appeal be accepted. In support of his contentions, learned counsel for the appellant has placed reliance on the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others, (PLD 1994 Supreme Court 885). 8. On the other hand, learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that F.I.R. In the present case was promptly lodged as incident took place on 24-6-2007 at 4-30 a.m., whereas, the matter was reported by Naeem Abbas complainant (P.W.7) through complaint (Ex. PB/l), on the 'basis whereof,
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formal F.I.R. (Ex. PB) was chalked out by Abdul Hameed, S.I. (P.W.4) on the same day at 5-55 a.m. That specific role of firing at Mst. Aasma Bibi deceased has been attributed to the appellant; that the eyewitnesses have no reason to falsely, implicate the appellant in the present case; that there was no reason for substitution of the appellant by the eye-witnesses as there was no serious enmity existing between them and the appellant; that medical evidence substantially supports the ocular account furnished by the eye-witnesses. Of the occurrence; that recovery of pistol .30 bore (P.5) has also been effected from the possession of the appellant which further corroborates the prosecution case; that the motive as alleged by the prosecution has also been proved in this case; that the plea taken by the appellant is an afterthought and he has not produced any witness in support of his plea; that as the appellant has caused three firearm injuries on the person of the deceased, therefore, he does not deserve any leniency in respect of his sentence; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. 9. We have heard the arguments of learned counsel for the appellant, the-learned Deputy Prosecutor-General assistet by the learned counsel for the complainant and have also gone through the record wit! Their able assistance. 10. It would not be out of place to mention here that it is a case of two versions, i.e. One put forth by the prosecution in, the form of ocular account furnished by Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8), whereas, the other has been brought on the record through the statements of Muhammad Tahir (appellant), recorded under section 342 and 340(2), Cr.P.C. And suggestions put to the prosecution-witnesses during their cross-examination. 11. It has been settled now by the Hon'ble Supreme Court of Pakistan through number of judgments that it is the prosecution which is required to prove its case against the accused person beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not?. In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:-- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342 Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/ excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr. P. C,. Is exculpatory, then he must be acquitted if the statement under section. 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors farming belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step
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further to find out whether or not there is yet a reasonable possibility of defence A plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly." ' The above mentioned view has been reiterated by the August Supreme Court of Pakistan in the case reported as Amin All and another v. The State (2011 SCM R 323). Therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution. 12. The occurrence in this case took place on 24-6-2007 at 4-30 a.m. In the house of Muhammad Tahir appellant situated in the area of 'Mohallah Shamus Abad, Farooqabad falling within the territorial jurisdiction of Police Station City Farooqabad District Sheikhupara, whereas the matter was reported by the complainant Naeem Abbas (P.W.7) through complaint Ex. PB/1, on the basis whereof, formal F.I.R. (Ex. PB) was chalked out by Abdul Haineed, S.I. (P.W.4) on the same day at 5- 55 a.m. The distance between the place of occurrence and police station is 2 kilometers. Considering the time of incident, the place of occurrence and its distance from the police station, we are of the view that there was no delay in B reporting the matter to the police. 13. The ocular account of the prosecution was furnished by the complainant Naeem Abbas (P.W.7) and Nazir Ahmad (P.W.8). The examination-inchief of Naeem Abbas complainant (P.W.7) recorded by the learned trial Court on 3-11-2007 is reproduced hereunder for ready reference:-- "9-I0 months before the present occurrence the marriage of my sister was solemnized with Tahir accused. He used to beat my sister Alma. She had come to our house due to altercation, few days before the occurrence. Tahir and Sodagar came to our house after , some days; Sodagar expressed that he was responsible for the peaceful union of the spouses and no beating shall take place in future. He took responsibility of the matter. They thus took my sister with them. On the same day i.e. 23-6-2007 in the evening, my sister Asma rang me up and told that Sodagar and Tahir accused were extending threats to kill her and beating her. I, my brother Jamul and Nazir son of Rehmat All reached the house of Asma at Esha Prayer time. We advised Sodagar and Tahir accused throughout the night. At about 4-30 a.m. Sodagar asked Tahir accused to murder Asma. Tahir brought out a pistol from the drawar and hit fire shot to my sister Asma on the right side of buttock, second fire shot hitting on the left of her chest. Tahir hit the third fire shot on the back of left ear of Asma. Asma succumbed to the injuries at the spot. I, Nazir and my brother Jamil had witnessed the occurrence. Sodaghar accused then took pistol from Tahir and pointed the same towards us. He arranged the fleeing away of Tahir accused. I went to police station City Farooqabad and moved written application for registration of case Ex. PB/I which bears my thumb impression. Lateron I had joined the investigation. Tahir accused in custody made disclosure and led to the recovery of pistol .30 bore P-5 with magazine containing 5 rounds which were taken into possession by 1.0. Vide recovery memo Exh. PD attested by me and Aslam." ' The statement of other eye-witness namely, Nazir Ahmad (P.W.8) is also on the same lines. The occurrence took place in the house of Muhammad Tahir appellant who is husband of Mst. Aasma Bibi deceased. Naeem Abbas complainant is real brother of Mst. Asma Bibi deceased whereas Nazir Ahmad (P .W.8) is brother-in-law of the deceased. Both the above mentioned eyewitnesses have plausibly explained their presence at the spot at the relevant time by stating that the appellant used to beat his wife Mst. Asma Bibi (deceased) and due to the altercation which took place some days prior to the occurrence, Mst. Asma Bibi (deceased) came back to the house of complainant, however, few days prior to the occurrence, Muhammad Tahir appellant alongwith nis brother Sodagar (acquitted accused) came to the house of complainant and took his wife (Mst. Aasma Bibi deceased) back to his house with the assurance that he will not beat the deceased in future. One day prior to the occurrence, i.e. On 23-6-2007 Mst. Aasma Bibi (deceased) rang up her
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brother Naeem Abbas complainant (P.W.7) and told him that Muhammad Tahir appellant and his brother Sodagar (acquitted accused) have beaten her and had also extended threats to kill her. On this information complainant (Naeem Abbas P.W.7) along with his brother namely Jamil (given up P.W.) and brother-in-law Nazir Ahmad (P.W.8) went to the house of the appellant at the time of 'Esha Prayer'. They tried to pacify the matter throughout the night which pr6ved to be in vain and at about 4-30 a.m. The appellant brought out pistol from the drawar and made three successive fire shots at Mst. Aasma Bibi deceased which landed on her buttock, left side of chest and on her head near left ear. 14. It is a common observation that whenever altercation takes place between spouses, their near relatives try to intervene and patch up the matter. Therefore, in the above circumstances, presence of Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8) in the house of their sister/sister- in-law, at the time of occurrence is neither unnatural nor improbable. The complainant Naeem Abbas (P.W.7) is real brother of hist. Asma Bibi (deceased) and it is.Highly improbable that he will falsely implicate the appellant and would let off the real culprit_ Substitution in such-like cases is a rare phenomenon. Although the eye-witnesses, namely, Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8) are closely related to the deceased but their evidence cannot be discarded outrightly on account of their relationship with the deceased provided the same is confidence- inspiring and straight forwarding. We may refer here the case of Haji v. The State (2010 SCM R 650), wherein the Hon'ble Supreme Court of Pakistan has observed as under:-- "Both the ocular witnesses undoubtedly are inter se related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would sot be a reason to discard their evidence which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident." ' The above mentioned 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 straightforward and confidence-inspiring. 5. The medical evidence of the prosecution was furnished by Lady Dr. Marryam Aftab Khan, (P.W.9). She, on 24-6-2007 at 4-25 p.m. Conducted postmortem examination on the dead body of Mst. Aasma Bibi (deceased) and found the following injuries on her person:-- "(1) Wound of entry, fire arm wound of entry 2 x 2 cm on the right side of the skull (vault) which made an exit wound 3 x 3 cm on the left side of the head 3 inches above the left ear. (2) Fire arm wound of entry on the front of the left side, chest 0.5 x 0.2 cm, three inches below the left nipple, which made an exit wound on the right side of the back at the right lumber region of size 3 x 3 cm. (3) Fire arm wound of entry 1.3 x 1.3 cm left side on the left buttock making an exit 2 x 2 cm on the inner aspect of the left thigh." ' In her opinion, all the injuries were ante-mortem, caused by fire-arm weapon and death occurred due to severe shock, haemorrhage, injury to the vital organ leading to cardiorespiratory failure. All injuries collectively and Injuries Nos. 1 and 2 individually were sufficient to cause death. The probable duration between injuries and death was immediate whereas, between death and postmortem was within 24 hours. The aforementioned, medical evidence has fully supported the ocular account furnished by Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8). The ocular account about the seat of injuries, the kind of weapon used during the occurrence and the
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time of incident as narrated by the eye-witnesses of the occurrence, has fully tallied with the afore- D referred medical evidence. 16. The motive of the occurrence, as per prosecution case was that the appellant used to quarrel with his wife Mst. Aasma Bibi (deceased) and on the night of occurrence the complainant party tried to pacify the appellant, but he became infuriated and committed the murder of Mst. Aasma Bibi (deceased). The evidence of above mentioned motive was, produced by the prosecution through the Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8). Both the abovementioned eye-witnesses remained consistent regarding the motive part of the prosecution case. They were cross-examined at length but nothing favourable to the appellant could be brought on record. In his statement recorded under section 340(2), Cr.P.C. The appellant has admitted, though in a different manner, about his quarrels and strained relationship with his wife Mst.…
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