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Petitioner: MAZHAR HUSSAIN VS Respondent: StateHonorable Justice KAZIM ALI MALIKBarrister Salman Safdar
2008 Y L R 2359
2008 Y L R 2359
[Lahore]
Before Muhammad Akram Qureshi and Kazim Ali Malik, JJ
MAZHAR HUSSAIN---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.16-J of 2003, Criminal Appeal No.1275 of 2002 and Murder Reference No.500 of 2002, heard on 3rd June, 2008.
(a) Penal Code (XLV of 1860)---
----Ss.302(b)/34 & 302(c)/34---Appreciation of evidence---Grave and sudden provocation---Sentence, reduction in---Occurrence was an un-witnessed one in which three persons had suffered death at dead of night inside the house. of acquitted accused---Eye-witnesses were neither present at the spot at the relevant time, nor they had witnessed the occurrence---Prosecution had introduced false version about the murders before the investigating agency as well as at the trial---Prosecution case having been disbelieved, defence version put forward by the accused had remained in the field, which had to be accepted in toto without any scrutiny and analysis---Defence version had also received support from the prosecution evidence e.g., dead bodies of the deceased found in compromising condition by the accused, were lying naked on one cot and their Shalwars were lying nearby---Accused had rightly asserted that he had lost self -control on seeing his unmarried 20 years old sister in a compromising position with the husband of his real maternal aunt---Third deceased had herself invited trouble when she unsuccessfully attempted to save the life of her immoral son---Killing of the said third deceased thus would not fall under S. 302 (b), P.P.C. and accused was acquitted of that charge---Accused had killed the three deceased persons in the manner disclosed by him in his statement under S. 342, Cr. P. C. and he was convicted under S.302(c), P.P.C. on three counts---Sentence awarded to accused by Trial Court did not commensurate with the peculiar circumstances of the case---Accused had no other option but to kill the deceased persons under grave and sudden provocation---Sentence of 20 years' R.I. of accused was reduced to five years' R.I. on three counts with the direction to run concurrently with benefit of S. 382-B, Cr. P. C. --Deceased was immoral of worst degree as he had developed illicit intimacy with the unmarried young daughter of his sister-in- law---Mother of the said deceased had contributed towards her own killing by physically intervening to save the life of her immoral and characterless son---Legal heirs of the deceased persons, therefore, were not entitled to any compensation and direction of Trial Court in this regard was set aside---Appeal was disposed of accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302 (b)/34 & 302 (c) /34---Apprecia tion. of evidence---Defence plea--- Principle---Such is a absolute legal principle subject to no exception that after dismissing and disbelieving the prosecution case, the defence plea is to be accepted in toto without scrutiny and analysis.
Barrister Salman Safdar for Appellant.
M.M. Alam Deputy Prosecutor-General for the State.
Date of hearing: 3rd June, 2008.
ORDER
KAZIM ALI MALIK, J.--Murder Reference No.500 of 2002, Criminal Appeal No.1275 of 2002 and Criminal Appeal No.16-J of 2003 have arisen out of the judgment dated 20-6-2002 passed by the learned Sessions Judge, Toba Tek Singh in a case F.I.R. No.362, dated 28-2-2000 of Police Station Rajhana and we find it convenient to dispose of all these interconnected matters by this single judgment.
2. Lal Din and Allah Bukhsh, son of Muhammad Bukhsh, Mazhar Abbas, Azhar Abbas, sons of aforesaid Lal Din and Mst. Beebo, wife of afore-mentioned Allah Bukhsh, caste Kumhar, residents of Chak No.256 G.B. District Toba Tek Singh were challaned to the Court of Session in the above said case to stand trial on the charge of murder. Before inception of trial, Mst. Beebo, accused died and trial to her extent stood abated. Mst. Tasleem Kauser, (20/22) daughter of Lal Din appellant, Muhammad Ashraf, (40/42) husband of maternal aunt of Mst. Tasleem Kauser and Mst. Sahiban, (55/60) mother of aforementioned Muhammad Ashraf suffered death in this happening on the night between 27/28-8-2000 inside a room of the house of Allah Bukhsh, accused and his wife Mst. Beebo (since dead) located within the area of village Phaloor, six miles away from Police Station Rajhana, District Toba Tek Singh and was reported to the police station on 28-8-2000 at 7-15 a.m. by Muhammad Aslam, complainant, P.W.8, resident of Chak No.124 SB, District Sargodha.
3. On conclusion of trial, Mazhar Abbas, Azhar Abbas and their father Lal Din, appellants were convicted under section 302(c), read with section 34, P.P.C. on two counts for having committed Qatl-i-Amd of Muhammad Ashraf and Mst. Tasleem Kauser under grave and sudden provocation and each one of them was sentenced to 20 years rigorous imprisonment on two counts with a direction to pay Rs.30,000 compensation to the legal heirs of Muhammad Ashraf, deceased. They were also convicted under section 302(b) read with section 34 of the P.P.C., for having committed Qatl-i-Amd of Mst. Sahiban Bibi. Mazhar Abbas, appellant was sentenced to death whereas his father Lal Din and brother Azhar Abbas, appellants were sentenced to imprisonment for life each and with a direction to pay Rs.30,000 compensation to the legal heirs of Mst. Sahiban Bibi deceased. The substantive sentence of imprisonment on two counts was ordered to run concur rently with the benefit of section 382-B, Cr.P.C. However, Allah Bakhsh, accused was acquitted of the charge.
4. The prosecution case set up in the F.I.R. Exh. P. G. in brief, is that Muhammad Ashraf (40/42) resident of Chak No.124 SB, District Sargodha was brother-in-law of Lal Din, appellant being husband of a real sister of his wife. On 26-8-2000 Mazhar Abbas, appellant, a real sister's son of the wife of Muhammad Ashraf, deceased reached house of the later located in Chak No.124 SB, District Sargodha and informed him about serious ailment of his mother Mst. Sakina. Upon receiving the above-said information, Muhammad Aslam, complainant, Muhammad Ashraf, deceased, his mother Mst. Sahiban and Sher Muhammad, (given up P.W.) along with Mazhar Abbas, appellant left for village Phaloor, District Toba Tek Singh and reached there in the evening. They inquired about the health of Mst. Sakina Bibi, took evening meal with her and then slept in the house of Allah Bakhsh (acquitted accused) situated close to the house of Lal Din, appellant. At about 12-15 a.m. Lal Din, appellant armed with .12 bore carbine Mazhar Abbas, appellant having repeater gun .12 bore, Azhar Abbas, appellant possessed with .12 bore gun, Allah Bakhsh (acquitted accused) and Mst. Beebo (since dead) came there while dragging Mst. Tasleem Kauser (daughter of Lal Din and sister of Mazhar Abbas and Azhar Abbas, appellants). All the above-named accused persons pushed Mst. Tasleem Kauser inside a room. Thereafter Mazhar Abbas and Azhar Abbas, appellants caught hold of Muhammad Ashraf, deceased and took him inside the room. Allah Bukhsh (acquitted accused) and his wife Mst. Beebo (since dead) removed Shalwars of Mst. Talseem Kauser and Muhammad Ashraf forcibly. Mazhar Abbas, appellant fired with his gun striking Muhammad Ashraf on his face followed by a fire shot by Lal Din, appellant which landed on the back of hand of Muhammad Ashraf, upon which he fell down on the cot. Azhar Abbas, appellant fired hitting his sister Mst. Talseem Kauser on her head. Subsequent to this, all the above-named accused persons caught hold of Mst. Sahiban who was present there and had been raising alarm since inception of the occurrence. They removed her to the courtyard of the house, where Mazhar Abbas, appellant fired hitting her face followed by a shot fired by Azhar Abbas appellant, which landed on her head. The P.Ws. unsuccessfully chased the assailants and also raised alarm, which attracted Mushtaq Ahmad and Muhammad Amin, P.Ws. who also witnessed the occurrence. Motive for the occurrence was that the accused persons cast doubt of illicit intimacy of Muhammad Ashraf, deceased with Mst. Tasleem Kauser, deceased.
5. On 29-8-2000, Dr. Ghazala Shaheen, P.W.13 conducted post-mortem examination on the dead body of Mst. Tasleem Kauser, (20/22) unmarried daughter of Lal Din (appellant) and observed a fire-arm grazing wound 13 c.m. x 11 c.m. extending from central part of the forehead to the frontal part of the head with fracture of frontal bone with laceration of the brain matter. On dissection scalp and skull were found injured. Membrane and brain were also injured. The cause of death was haemorrhage and neurogenic shock due to injury to the brain. The above-said injury was sufficient to cause death in the ordinary course of nature, which was ante-mortem and by fire-arm. Probable time, which elapsed between the injury and death, was immediate and between death and post-mortem examination was between 30/40 hours. The post-mortem examiner also took vaginal swabs of the examinee for analysis. The P.W. recorded post-mortem report Exh.P.M. in this regard.
On the same day, P.W.13 made autopsy on the dead body of Mst. Sahiban Bibi and found a fire-arm entry wound 2 c.m. in diameter on the left side of head 6 c.m. away from the left ear making an exit wound of 10 c.m. x 8 c.m. on the right side of face extending from mouth angle to right ear lobule with fracture of right mendible, right manillary bone, of anterior crinal fossa of skull, left parietal bone with laceration of brain matter. Blackening was present around the entry wound. The post-mortem examination opined that Mst. Sahiban died of haemorrhage and neurogenic shock due to severe bleeding and damage to the brain. The above-said injury was ante-mortem by fire-arm and sufficient to cause death in the ordinary course of nature. Probable time, which elapsed between injury and death was immediate and between death and post-mortem examination was 30 to 40 hours. The doctor confirmed that Mst. Sahiban suffered death by violence.
6. On the same day, Dr. Raja Nasr Iqbal, P.W.14 conducted post-mortem examination on the dead body of Muhammad Ashraf, clad in shirt only with mouth and eyes closed. The post-mortem examiner noted the following injuries on the dead body.
(i) Fire-arm entrance wound 4 in number each measuring 1 c.m. x 1 c.m. in an area 16 c.m. x 5 c.m. on left side of face with blackening and inverted margins.
(ii) An exit wound 3 c.m. x 2 c.m. on right side of head 3 c.m. above the right ear.
(iii) An exit wound 3 c.m. x 2 c.m. on right side of head 2.5 c.m. above injury No.2.
(iv) A fire-arm entrance wound 2 c.m. x 2 c.m. on palmer side of right hand with exit wound 22 c.m. x 4 c.m. on dorsal side of right hand cutting the blood vessels and tenders.
On dissection, skull was fractured and brain matter was damaged making an exit wound on the right side of the head 3 c.m. above the right ear. The post-mortem examiner found two pellets; one from the left mendible bone and the other from brain matter which were sealed. The P.W. recorded his report Exh.P.T. and found that Injury No.1 had caused damage to the brain resulting in death of Muhammad Ashraf. The injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem by fire-arm. Time between injuries and death was immediate and between death and post-mortem examination was 24 to 36 hours.
7. Javaid Ali, Sub-Inspector, P. W.16 recorded F.I.R., Exh. P. G. on 28-8-2000 at 7-15 a. m. about the occurrence which took place on the preceding night at 12-15 a.m. Thereafter he reached the spot (house of Allah Bakhsh, acquitted accused) and examined the dead bodies of Mst. Tasleem Kauser and Muhammad Ashraf lying naked on a cot and that of Mst. Sahiban. He prepared injury statements and inquest reports Exh.P.O., P.R. and P.U. & Exh.P.N., P.S. and P.V. respectively about the above-said bodies and dispatched the same to the dead house for post-mortem examination. On asking of the Investigating Officer, Shahid Nadeem, photographer, P.W.2 snapped the naked dead bodies and produced photographs (P.7 to P.10), which were taken into possession by the investigator under memo. Exh. P. D. Blood-stained earth from the place of murder had been secured and sealed by means of memo. Exh.P.L. Three crime empties (P.25 to P.27) were taken into possession from the place of murder of Mst. Tasleem Kauser and Muhammad Ashraf under memo. Exh.P.K. while two crime empties (P.23 and P.24) lying out of the room, were seized vide memo. Exh. P. K. Blood-stained cot with blood-stained bed sheet on which Mst. Talseem Kauser and Muhammad Ashraf were killed and three pairs of shoes (P.15 to P.22) of the deceased persons were taken into possession by the investigator vide memo. Exh.P.J. The Investigating Officer found Shalwar of Mst. Tasleem Kauser, deceased (P.13) and that of Muhammad Ashraf, deceased (P.14) lying near the cot, which were secured through memo. Exh. P.I. After post-mortem examination, the escorting constable Khalid Hussain, P.W. produced the last worn clothes of the three deceased persons, sealed phial said to contain vaginal swabs of Mst. Tasleem Kauser deceased and a sealed phial said to contain pellets which were taken into possession vide memo. Exh. P. A. and Exh. P. B. The Investigating Officer arrested the accused persons and challaned them to Court after required completion of investigation.
8. At the commencement of trial, the challaned accused were charged under section 148, P.P.C. for having formed an unlawful assembly, which resulted in violence and under section 302 read with section 149, P.P.C. on three counts for having committed Qatl-i-Amd of Mst. Tasleem Kauser, Muhammad Ashraf and Mst. Sahiban in prosecution of the common object of that unlawful assembly. The challaned accused denied and dismissed the charge and claimed trial.
9. The prosecution examined 16 P.Ws. in all in support of the charge out of whom Muhammad Aslam, complainant, P.W.8 is brother-in-law of Muhammad Ashraf, deceased being husband of his sister. He lodged the F.I.R. at 7-15 a. m. on 28-8-2000 about the occurrence which took place on the preceding night at 12-15 a. m. claiming to be an eye-witness. Mushtaq Ahmad, P.W.9 also claimed to have witnessed the occurrence. Khadim Hussain resident of Chak No.124 SB, District Sargodha entered the witness-box as P.W.10 and deposed about the motive. He attested the recovery memos. by means of which Shaiwars of Muhammad Ashraf and Mst. Tasleem Kauser, deceased were seized. He also attested the recovery memo. in respect of the crime empties. Zafar Abbas, P.W.11 deposed that his father Muhammad Ashraf, deceased and his grand mother, Mst. Sahiban left or Phaloor with Mazhar Abbas, appellant on 27-8-2000 after receiving an information that his mother Mst. Sakina had fallen ill. He further deposed that later on he received telephonic message from Muhammad Aslam, complainant that his father and grandmother had been murdered. Muhammad Amin, P.W.12 is a co-villager of the accused persons. He made his statement before the police on 30-8-2000 about the occurrence, which took place on the night between 27/28-8-2008. He claimed that on 27-8-2000 he along with Hafeez-ur-Rahman (given up P.W.) reached the house of his friend Lal Din (appellant) to see his ailing wife and overheard that Lal Din had been asking his sons, Mazhar Abbas, Azhar Abbas, his brother Allah Bakhsh and his wife Mst. Beebo to kill the guests who had come from Sargodha along with his (Lal Din's) daughter Mst. Tasleem Kauser. The P.W. further deposed that he remained with Lal Din and his wife for 5/10 minutes, inquired about her health and then returned home. Saeed Akhtar, S.H.O., P.W.15 also partly investigated this case. On 20-9-2000. Mazhar Abbas, appellant led to the recovery of repeater gun .12 bore (P.11) along with its license (P.12) which were taken into possession vide memo. Exh. P. H.
10. Excepting Mazhar Abbas, rest of the accused persons denied their presence at the spot at relevant time and their participation in the occurrence. However, Mazhar Abbas, appellant came forward with specific counter-version. In an answer to a question Mazhar Abbas, appellant put forward his defence version as under:--
"I am innocent. The case against me as alleged by the prosecution is false and fabricated one. Factual position is that I am serving Army man and was on annual leave on the day of occurrence. Muhammad Ashraf, deceased was my real Khalu. His daughter Mst. Aasia was engaged to me whereas in exchange, my real sister Mst. Tasleem Kauser, deceased was engaged to his son Zafar Abbas (P.W.11).
On the fateful night, I had returned from Sahiwal District Sargodha where I had gone to see my cousin, Ghulam Rasool. Reaching home, I found none of my family members present except Mst. Khatoon Bibi, my paternal grandmother. On query she told me that my father Lal Khan, brother Azhar Abbas, uncle Allah Bakhsh and mother Mst. Sakina had taken my aunt Mst. Beebo co-accused since dead to Toba Tek Singh for treatment, as she being the chronic patient of cancer had suddenly became seriously ill. She further told that Muhammad Ashraf and his mother Mst. Sahiban, both deceased had come in connection with fixing the date of our marriages, and were present in the house of my co-accused Allah Bakhsh. I proceeded to house of Allah Bakhsh to see them. I heard music on tape-recorder and found the light on inside the room. The door was closed but not bolted as the operative part of the bolt was not in proper order. I opened the door and found both Muhammad Ashraf and Mst. Tasleem Kauser, deceased committing Zina with each other. The shameful scene caused me grave and sudden provocation. I lost my self-control and it prompted me to use my licensed repeater .12 bore gun, which I was carrying with me. Under the impulse of Ghairat and family honour, I could not restrain myself from ruthlessly firing at them resulting in the instantaneous death. Four close shots had hit Muhammad Ashraf, one on his right hand and other on left side of his face. One shot had hit Mst. Tasleem Kauser, deceased on her forehead upwards to her head. In the meantime, I do not know that how and when Mst. Sahiban had suddenly come in between and lay herself on Muhammad Ashraf, deceased. A fire incidentally hit her too on right side of her face resulting her instantaneous death. I left all the three dead bodies laying on one and the same cot inside the room, which subsequently the police with mala fide intention managed to shift the dead body of Mst. Sahiban to the courtyard just to change the venue of occurrence to her extent. Immediately after the occurrence, I, at my own, along with the crime weapon i.e. my repeater .12 bore gun and its license proceeded to Police Station Rajana where I surrendered myself before the law. I disclosed the actual whole story as stated above to the Sub-Inspector (Investigating Officer) who instantly arrested and put me in the lock up and took my gun and license thereof in his possession. However, the Investigating `Officer with mala fide intention and just to prove his efficiency showed me in police papers as to have been arrested after a few days. The fake recovery of my gun and licence thereof was allegedly shown to have been effected after further delay on 10/12 days. In the morning, Lai Khan along with Allah Bakhsh and Azhar Abbas, co-accused appeared in the police station as asked the Sub-Inspector (Investigating Officer) to register a case, who arrested them also and put them in the same lock-up.
I honestly and voluntarily admit that I am all alone responsible for the incident. I acted only in defence of my family honour, under grave and sudden provocation and due to my Ghairat. My co-accused Lal Khan, Azhar Abbas, Allah Bakhsh and Mst. Beebo, since dead, were not present on the spot at the time of occurrence and none of them had participated in the occurrence in any manner whatsoever.
The present case is totally false fabricated and concocted by the prosecution in connivance with the Investigating Officer who registered and investigated the case malafidely and dishonestly under the influence and pressure of the complainant party, which had full practical and effective support of PAF officials and local adversaries of our family. None of the P.Ws. were present at the spot at the time of occurrence, nor anyone of them witnessed the occurrence. It was an un-witnessed occurrence and P.Ws. being planted ones, have falsely deposed against me and my co-accused as being interested as well as inimical towards me and my family."
11. This is a case of version and counter-version. We, therefore, proceed to examine the counter claims in the light of available evidence by placing them in juxtaposition.
Muhammad Aslam, complainant, P.W.8 deposed that on 26-8-2000 Mazhar Abbas, appellant reached Chak No.124 SB, District Sargodha and took him besides Muhammad Ashraf, deceased and his mother Mst. Sahiban deceased, to village Phaloor, District Toba Tek Singh deceitfully on the pretext that his mother had fallen ill. The P.W. further claimed that on the night between 27-/28-8-2000 he along with the above-named deceased persons slept in the house of Allah Bukhsh (acquitted accused) when the appellants came there while dragging Mst. Tasleem Kauser and that within his view, the Shalwar of Mst. Tasleem Kauser and that of Muhammad Ashraf were removed and they both were pushed inside a room where they were killed. It was the prosecution case supported by the P.Ws. that after killing Muhammad Ashraf and Mst. Tasleem Kauser inside the room the appellants came out and murdered Mst. Sahiban in the courtyard.
On the other hand Mazhar Abbas, appellant put forward his defence version to the effect that on the fateful night he found his unmarried sister, Mst. Tasleem Kauser missing; that he reached the house of his uncle Allah Bakhsh in search of her and found Mst. Tasleem Kauser and Muhammad Ashraf in compromising position inside the room upon which he lost self-control and killed both of them under grave and sudden provocation. The appellant further explained that Mst. Sahiban physically intervened in order to save her son Muhammad Ashraf when she was also hit.
12. The learned counsel for the appellants contended that Muhammad Aslam, P.W.8 and Mushtaq Ahmad, P.W.9 were not present at the spot at relevant time nor they witnessed the occurrence and that the Investigating Officer introduced them as the eye-witnesses dishonestly. The learned counsel supported his argument with reference to cross-examination on the two witnesses coupled with attending circumstances of the case. On the other hand the learned Law Officer supported the impugned conviction and sentence with the plea that Muhammad Aslam, P.W.8 was not inimical towards the appellants being closely related to both the sides and that Mushtaq Ahmad, P.W.9 being co-villager of the appellants, his presence at the spot at relevant time should not be doubted.
13. Now we propose to scrutinize, examine and analyse the evidence on record in order to arrive at the truth. We take up motive part of the case first. Muhammad Aslam, complainant alleged in the F.I.R. (Exh.P.G.) and also deposed at trial that the appellants cast doubt of illicit intimacy of Muhammad Ashraf, deceased with Mst. Tasleem Kauser, deceased and that they abused Muhammad Ashraf, deceased 2/3 times before the occurrence and also extended life threats. Here we would say 1-hat the motive set up in the F.I.R. and adopted by the complainant at trial has demolished his claim to the effect that one day before the occurrence Muhammad Ashraf, deceased had accompanied Mazhar Abbas, appellant to the residential village of the latter in order to see his ailing mother. Had Mazhar Abbas, appellant doubted illicit intimacy of his unmarried sister Mst. Talseem Kauser, deceased with Muhammad Ashraf, deceased and had he extended life threats to him 2/3 times before the occurrence, the deceased would not have chosen to accompany him in the alleged manner. Similarly, Mazhar Abbas, appellant was not expected and supposed in the normal course of events to extend invitation to the paramour of his sister. We are, therefore, of the view that the motive part of the case is not believable.
14. Admittedly, the mother of Mazhar Abbas, appellant and the wife of Muhammad Ashraf, deceased are real sisters. Muhammad Aslam, complainant is brother-in-law of Muhammad Ashraf deceased being the husband of his sister. The complainant and Muhammad Ashraf, deceased were residents of Chak No.124 SB, District Sargodha. Muhammad Aslam, complainant attempted to justify his presence at the spot located within the area of village Phaloor, District Toba Tek Singh by saying that he along with Muhammad Ashraf, deceased and his mother, Mst. Sahiban accompanied Mazhar Abbas, appellant to village Phaloor in response to…
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