Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: RASHID MUKHTAR VS Respondent: The STATE and others
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: RASHID MUKHTAR vs The STATE and others Case No.: Criminal Appeal No.159 of 2016 Date of Judgment:2017-05-23 Reported As: 2017 YLR 1925 Result: Appeal allowed
JUDGMENT
JUDGMENT MOHSIN AKHTAR KAYANI, J.--Through this criminal appeal the appellant has assailed the judgment dated 27.07.2016 passed by learned Additional Sessions Judge-IV (West), Islamabad, whereby the appellant has been convicted and sentenced under section 302(b), P.P.C. to undergo imprisonment for life as Tazir with direction to pay an amount of Rs.200,000/- as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. The appellant has also been convicted and sentenced under section 324, P.P.C. to five years (RI) with fine of Rs.30,000/- in case FIR No.212/2014 dated 03.08.2014, under sections 302/337-A(i) P.P.C., Police Station Golra Sharif, Islamabad. Benefit of Section 382-B, Cr.P.C. is given to the accused/appellant. All the sentences shall run concurrently. 2. Brief facts of the instant case are that the complainant, Najam Iqbal/respondent No.2, got lodged a criminal complaint on 03.08.2014 against the appellant, Rashid Mukhtar, with the following allegations:- {{URDU TEXT}} After submission of the aforementioned complaint, FIR No.212/2014 dated 03.08.2014, under section 302/337-A(i), P.P.C., Police Station Golra Sharif, Islamabad (Exh.PA) was registered. The Investigation Officer after completion of investigation submitted report under section 173, Cr.P.C. against the appellant, whereupon the learned Trial Court framed the charge and after completion of entire evidence the appellant Rashid Mukhtar got recorded his statement under section 342, Cr.P.C. and has also appeared as witness in his own defence under section 340(2), Cr.P.C. whereafter the learned Trial Court convicted the appellant and awarded life imprisonment under section 302(b), P.P.C. and also awarded five years (RI) imprison-ment with fine of Rs.30,000/- under section 324, P.P.C. for causing injuries to Sania Najam. Hence, instant criminal appeal.
---
## Page 2
3. Learned counsel for appellant contends that the impugned judgment is absolutely illegal, unlawful, unjust, improper and against the law; that the learned Trial Court has not applied its judicial mind while passing the impugned judgment and the defence evidence has not been appreciated in its true perspective; that there is no motive on the part of appellant is available on record to murder the deceased and there are serious contradictions in this case; that it is a case of two versions where the motive referred by the prosecution has not been established; that even the recovery is not credible, therefore, the sentence awarded to appellant is contrary to law. 4. Conversely, learned counsel for the complainant as well as the learned Standing Counsel argued that the prosecution has proved the case against the appellant as he has admitted his presence at the scene of occurrence and all the witnesses are natural witnesses, who have given ocular account, which is in line with medical evidence and there is not an iota of discrepancy among the statement of PWs and learned Trial Court has rightly convicted the appellant in accordance with law. 5. Arguments heard, record perused. 6. From the perusal of record it has been observed that FIR No.212/2014 dated 03.08.2014, under section 302/337-A(i), P.P.C., Police Station Golra Sharif, Islamabad was registered on the complaint (Exh.PB) of Najam Iqbal, PW-2, whereas the complaint reveals that appellant, son-in-law of complainant, came to the house of complainant along with his wife and daughter Izza Rashid, aged 5 months, and both husband and wife were quarreling with each other and the accused allegedly referred the reasons of coming to the complainant's house- that he had a clash with his family due to Sania Najam, the daughter of complainant, and on this score he extended threats of killing both, Sania and minor daughter Izza, and all of a sudden he picked a knife "Churn" and attacked Sania, on which Sania made hue and cry and called her family members, whereupon complainant along with his wife and son Bilal Najam, immediately came to the room and witnessed that appellant was attacking Sania on her chest, but she has only received injury on her left hand while defending herself, whereafter appellant immediately got hold of minor Izza from her legs and banged her head against a carpeted floor, resultantly the minor became unconscious, whereafter complainant and his son grabbed the minor Izza from accused and took her to a nearby private hospital and thereafter went to PIMS Hospital for a medical treatment though the minor Izza Rashid in the meantime succumbed to injuries, hence the criminal case has been lodged. 7. The prosecution has produced nine witnesses in the trial of appellant. As per statement of PW-1, Ghulam Abbas (ASI), on the date of occurrence i.e. 03.08.2014, he was serving as Moharrar in Police Station GoIra Sharif and he chalked out the FIR Exh.PA., however it has been observed from the chalked out the FIR Exh.PA., however it has been observed from the cross-examinationthat statement of said witness under section 161, Cr.P.C. has not been recorded by the Investigation Officer and he has not joined the investigation in the instant case. 8. PW-2, complainant, Najam Iqbal son of Abdul Karim, aged 65 years, is a retired civil servant, resident of House ,No.47, Street No.786, Sector G-13/4, Islamabad, who narrated the entire incident con the basis of his own complaint (Exh.PB), whereby he specifically alleged the role of appellant of killing Izza Rashid by way of banging her head on a carpeted floor and also referred the Churn i attack by the appellant upon Sania Najam. 9. The prosecution has produced Bilal Najam as PW-3, son of complainant in the trial, whereby he alleged that his sister Sania Najam and minor Izza were present in a room of our house on 03.08.2014 at around 8:00 pm, when the appellant started shouting and threatened Sania Najam that he would not spare her and minor Izza, because of them he has left his parents. PW-3 along with his father and mother, rushed to the said room and upon entrance they witnessed that appellant while holding Churn i in his hand tried to attack Sania Najam, whereupon, she in defence,
---
## Page 3
received injury on her left hand. Thereafter appellant lifted the minor Izza deceased from her legs and banged her head against a carpeted floor, Izza got unconscious, whereafter PW-3 snatched minor Izza from the appellant and took her to a nearby hospital, where doctors declared the minor as dead. 10.PW-4, Sania Najam, wife of appellant, stated that appellant on 03.08.2014 quarreled with his parents and left his own house along with her and minor Izza and came to complainant's house. She further stated in her evidence that appellant started quarreling with her on the ground that due to her, he has left his house and quarreled with his parents. PW-4 stated in her evidence that the appellant while picking up a fruit cutting Churn i from a dressing table aimed at her chest and attacked her and she in her defence got injury on her left hand, whereafter, her father and brother entered in the roam, whereupon appellant dropped the Churni and picked up minor Izza, who was lying on the bed and banged her head with force against a carpeted floor, whereafter her father and brother snatched minor Izza from appellant's hand, minor Izza was unconscious, so they took her to a nearby hospital, where doctors declared the minor Izza dead. 11.Besides the above PWs, Ahsan Ullah (Police constable) appeared as PW-5 and got recorded his statement before the Court that he has witnessed the arrest of appellant and during the physical search, got recovered photocopy of NIC (Ex.P1-2), original and photocopy of driving license (Exhs.P3 and P4), wallet (Exh.P5), one currency note of denomination of Rs.1000/- (Exh.P6) and one currency note of denomination of Rs.500/- (Exh.P7) and recovery memo was prepared with his signature (Exh.PW-5/A), however he stated that the accused while in police custody on 07.08.2014 led to his house, i.e., House No.42, Street No.85, Sector G-13/1, Islamabad, where he got recovered Churni (Exh.P8) from a kitchen and the same was taken into possession vide recovery memo (Exh.PW-5/B) and signed the recovery memo. He further stated that consequent to postmortem of deceased, the doctor handed over Kurta (Exh.P9) and Nikkar (Exh.P10) as the last worn clothes of the deceased and the same were taken into possession vide recovery memo (Exh.PW-5/C). 12.The prosecution further produced Aamir Shahzad (Draftsman) as PW-7, who has prepared the site plan (Exh.PW-7/1) which is produced on the record. 13.Finally, Muhammad Idrees, Sub-Inspector of Police Station GoIra Sharif appeared as PW-9 and narrated all the facts of the previous statements recorded by PWs and after completion of investigation, he submitted a final report under section 173, Cr.P.C. wherein the appellant has been declared as accused. During the course of cross-examination, he has admitted before the Court that at the time of recovery of Exh.P8 (Churn) he along with the appellant visited the house whereupon the appellant got recovered the Churn i from kitchen, PW-9 answered a specific question regarding the incident in the following manner:- "It is correct that, as per statement of the accused baby Izza had fallen down during scuffle between him, Najam lqbal and Bilal Najam PWs. As per statement of the accused, Mst. Sania Najam and her mother had tried to snatch baby lzza from him. After the statement of the accused, no other eye-witness had appeared before me to make statement. It is correct that there is no rebuttal of the statement of the accused except the statements of the eye-witnesses." The Investigation Officer has also witnessed the recovery of the Churn i on 07.08.2014 and the Churn i is of common pattern which is easily available in the market. 14.The appellant has got recorded his statement under section 342, Cr.P.C. whereas the prosecution/complainant asked particular questions in order to prove the reasons of motive. Question No.3 has been asked by the prosecution from appellant, regarding quarrel with his parents and shifting to his in-laws house along with his wife and minor daughter, which has properly been answered. It appears that it is a case of two versions, in order to confirm the said fact, the appellant got recorded his statement under section 340(2) Cr.P.C., while stating therein that:-
---
## Page 4
"On 03.08.2014, 1 was present in the house of the complainant Mst. Sania Najam PW, who was then my wife, started quarreling with me. Baby Izza deceased, at that time, was with Mst. Sania Najam, PW. The parents of Mst. Sania Najam PW started scuffled with me, and as a result, baby Izza deceased fell down from the hands of Mst. Sania Najam, PW. Baby Izza died later on. I did not kill her. I am innocent. I had great love for baby Izza deceased. It is a false case against me just to save their own skin." The appellant has also been cross-examined but he never agitated the matter before the local police as well as before any authorities, therefore, at this stage appreciation of oral evidence has to be seen in the light of judgment passed by the learned Trial Court. 15. In order to prove the charge of murder it is necessary to peruse the evidence and to prove certain factors, however in order to understand the proposition, it is necessary to first discuss the ocular account, medical evidence for motive and recovery and finally the law. I have gone through the evidence and it is very much evident that PW-4 Sania Najam along with appellant and minor Izza Rashid, aged 5 months, came to the house of PW-2 Najam Iqbal (father), as per the contents of the FIR (Exh.PA) it has specifically been referred that:-- {{URDU TEXT}} This statement referred in Exh.PB and Exh.PA clearly demonstrates the motive part of the entire prosecution case, however I have meticulously perused every statement of the nine witnesses, but I could not find any evidence available on record through which the factor referred above has been proved independently. I have considered the above mentioned statement as a motive part for this case, however complainant (PW-2), Bilal Najam (PW-3) and Sania Najam (PW-4) have not proved the said motive through an independent source, although all three witnesses have categorically stated that this is the reason and notice of the entire case. All three witnesses are related and interested witnesses in this matter as Najam Iqbal/complainant is the father of Bilal Najam and Sania Najam, where Bilal Najam claimed to be an eye-witness and Sania Najam allegedly claimed that she is an injured witness of the attack by appellant (husband), received injury on her left hand palm. All three witnesses narrated the entire incident of (Exh.PA) and (Exh.PB) in their evidence, but they have not referred any reason as to why Sania Najam PW-4 had frequent fight with accused/appellant. Najam Iqbal PW-2 has stated before the Court that he saw the accused "holding in his right hand a Churn i for cutting fruits" tried assaulting my daughter with the said Churn, the Churn i blow was aimed at her chest, however she with her right hand held the Churn i blow, the accused could not succeed in inflicting injuries on her chest and she received injury on her left hand. 16. However, during the course of cross-examination of the said witness, it has been observed from record that Exh.PB has been co fronted to the witness regarding non-availability of the word/object fruit cutter Churn, and "fruit cutter" has not been mentioned and only word "Churn" is available. However, during the cross-examination the defence counsel has put a question which is a part of defence, the same is reproduced as under:- "It is incorrect to suggest that I and my son Bilal Najam who had assaulted the accused with a Churn. It is incorrect to suggest that it was during the scuffle that baby Izza had fallen down when she was being held by my daughter." The above mentioned suggestion has been referred as defence of the appellant on record. 17.PW-3 Bilal Najam is also an eye-witness and claims that he witnessed appellant assaulting his sister with Churni and eventually her left hand got injured. However, he stated that the appellant while holding baby Izza deceased from her legs, lifted her from bed and banged her head against a carpeted floor, thereafter he and his father snatched baby Izza from accused and rushed to a nearby hospital, where doctors categorically stated that minor Izza has succumbed to injuries. Bilal Najam has not been cross-examined with particular reference to question, however Sania Najam
---
## Page 5
herself put appearance as PW-4 and during the course of cross-examination she admitted that: "It is correct that the accused loved baby Izza." This shows the nature and affection of father/appellant with minor daughter. 18.PW-5 Ahsan Ullah (Constable) was performing his duties in Islamabad Police and he categorically stated before the Court that he witnessed the arrest of the appellant as well as the witness of recovery and his name has also been referred in the recovery memo. But during the course of cross-examination he stated that:- "We arrived at the house of the accused at about 12:30 p.m. Nobody was present in the house. The main gate was open." The above referred statement clearly - demonstrates that the family of accused was not available and they left their house open, especially if the said factor is seen while keeping the conduct of different law enforcement agencies in mind, it appears that it is not possible rather it is humanly impossible that any person who owns a house leave it open especially when the owner/resident intends to go out, therefore, such conduct is not believable and does not seem to be true. During the course of cross-examination, PW-5 also admitted that such kind of Churn i is easily available in market and Investigation Officer has not associated any person from the locality, at the time of recovery of Churn, by the accused. 19.Dr. Muhammad Naseer, Principal and Head of Department Forensic Medicines, PIMS, Islamabad appeared as PW-6, who examined the dead body of Izza Rashid, aged 5 months, and stated the reason of the injury: "On palpation, right temporal, right perital and both occipital bones were fractured. There was no other visible injury noted." However, during the course of cross-examination, PW-6 admitted the fact that:- "I cannot say if the deceased had fallen on the ground or her head was banged down on the floor." Though, such kind of evidence has been discarded. PW-6 has further been asked a specific question regarding using of word "forceful" on which he stated that:- "It is correct to suggest that word "forcefully" mentioned in my medical post-mortem report is mentioned by me on the basis of information given by police and except that I had no other basis or reasons to mention such word in the report." i)r. Muhammad Naseer PW-6 while answering the question replied the following as of final opinion:- "It is correct to suggest that the injury received by the deceased may be caused by falling on the floor herself." 20.Aamir Shahzad (Draftsman) appeared as PW-7, who has no formal contract with Islamabad Police Department to render his services being a Draftsman, he is not approved or authorized by government, he is not a Forensic Expert and has no qualification to work as Draftsman specially in murder cases or in police investigation and he is not an eyewitness, therefore, there is no need to discuss the testimony of PW-7. 21.Dr. Niaz Ali, on the application of complainant, has been summoned through Court, got recorded his statement as PW-8 and stated that he medically examined Sania Najam for her wound on her left hand palm and referred her for Plastic Surgery Consultation (Exh.PW-8/A), however during the course of cross-examination he admitted that:-- "It is correct to suggest that I did not form any opinion regarding the nature of the injury." 22.Lastly, Investigation Officer tendered his evidence, whereby he has confirmed the entire stance of prosecution at the initial level and submitted his final report under section 173, Cr.P.C. However, in order to verify the contents, it is necessary to corroborate the testimony of Investigation Officer with the eyewitnesses' account. The Investigation Officer PW-9 has stated that he arrested
---
## Page 6
the appellant and also got recovered the knife (Exh.P8) on 07.08.2014 from the kitchen of appellant's house. The knife was placed in shelf of the kitchen and it was taken in possession vide recovery memo Exh.PW5/B. The Investigation Officer was cross-examined at length, where upon he admitted that he has not cleared the contradiction between PWs in his entire investigation nor he made any further investigation for the clarity of contradictions. He has not interrogated Sania Najam in the hospital as she was not in her state of mind. He also admits that he had not collected any incriminating articles from the place of occurrence. He further admitted that during the recovery of the crime weapon (Exh.P8), house of the accused was already opened, therefore, police entered into the house and searched the same; Police had not met any of the family members in the said premises as it was all vacant. However, during the course of cross-examination, the Investigation Officer has admitted that the Churn is of a common pattern and easily available in market. 23.The above referred PWs, in order to achieve the conviction of the appellant, have recorded their statements, however it has been observed that:-- (i) Najam lqbal is the father of Sania Najam and father-in-law of the appellant and has given the stance of the entire incident in Exh.PB. (ii)Najam Iqbal, Bilal Najam and Sania Najam are allegedly witnesses of the incident, however all three are interested witnesses. (iii)House No.47, Street No.786, Sector G-13/4, Islamabad is the place of incident and admitted by both the parties. (iv)All three eye-witnesses have denied the suggestion that during the scuffle baby Izza deceased fell down from the hands of Sania Najam PW and due to the said fall, she died. (v)Churn i (Exh.P8) is a fruit cutting knife, which was allegedly used by the appellant, however the recovery memo (Exh.PW5/B), reveals otherwise as the size of the Churn i (Exh.P8) is much bigger than of a normal fruit cutting knife. (vi)The Churn i (Exh.P8), on the pointation of appellant was recovered on 07.08.2014 from the kitchen of House No.42, Street No.85, Sector G-13/1, Islamabad, however, the said house and its gate was opened and no one was available at the time of recovery of the said Churn. (vii)It is admitted that the Churni recovered from the House No.42, Street No.85, Sector G-13/1, Islamabad is of common pattern and usually available in every house. (viii)It has also been referred in the testimony of PW-4 Sania Najam that appellant threw down the Churn i and picked up baby Izza, which means that the Churn i was thrown and there is no evidence of any of the witness nor it is the case of the prosecution that appellant grabbed the Churn i again and left the place. (ix)All three PWs, i.e., PW-2, l'W-3 and PW-4 stated in their evidence that appellant picked up baby Izza from her legs and banged her head with force on a carpeted floor, whereafter PW-2 and PW-3 snatched baby Izza from the appellant. The said portion of the evidence seems to be unreasonable as if the appellant banged the head of the baby Izza on floor, then he has to leave baby Izza on the floor and there is no need to snatch Izza from the hands of appellant by PW-2 and PW-3. (x)It has been observed from the evidence of Dr. Muhammad Naseer PW-6 that injuries received by the deceased may be caused by falling on the floor herself and nature of injury does not suggest that it was inflicted upon the deceased or Izza deceased has received injury due to falling on the ground. (xi)Whereas, Dr. Niaz Ali, PW-8 has not form any opinion regarding nature of injury of Sania Najam PW-4 even there is no MLR available on record and the document referred as Exh.PW8/A (outdoor ticket) bears no details regarding the size of the injury or treatment. (xii) The Investigation Officer PW-9 Muhammad Idrees (Sub-Inspector) and recovery witness PW- 5 Ahsan Ullah (Constable), who have arrested the appellant and witnessed the recovery, stated
---
## Page 7
that the house from where the recovery has been made was vacant and no one was living in the said house and Churri (Exh.P8) on the pointation of appellant has been recovered from kitchen. All the above referred evidence is to be seen in juxtaposition with the testimony of the appellant who himself recorded his statement under section 342, Cr.P.C. and has also appeared as defence witness in his own defence and got recorded his statement under section 340(2) Cr.P.C, the same is hereby reproduced as under:- "On 03.08.2014, I was present in the house of the complainant Mst. Sania Najam PW, who was then my wife, started quarreling with me. Baby Izza deceased, at that time, was with Mst. Sania Najam, PW. The parents of Mst. Sania Najam PW started scuffled with me, and as a result, baby Izza deceased fell down from the hands of Mst. Sania Najam, PW. Baby Izza died later on. I did not kill her. I am innocent. I had great love for baby Izza deceased. It is a false case against me just to save their own skin." However, his statement if seen in context of other eye-witnesses' account, i.e. PW-2, PW-3 and PW- 4, it seems that at the place of occurrence, presence of the witnesses and accused/appellant as well as the baby Izza is admitted; the scuffle between parents and Sania Najam is admitted and the only disputed point is as to whether baby Izza died due to fall on the floor or her head was banged against a carpeted floor. Moreover, the prosecution in the entire evidence has never produced the carpet to justify their stance, even the star witness Sania Najam PW-4 who claims that she had received a Churn i blow on her left hand explained the incident with the following words: "He while picking up fruit cutting Churri from dressing table aimed Churri blow at my chest, I saved myself by holding the Churri by my right hand. I was slightly injured on my left hand." The above referred portion of the testimony seems to be unnatural as if Sania Najam holds the Churri with her right hand, how she got injured or received injury on her left hand? That portion of the statement is silent and even Sania Najam has not explained the injury as it seems irrational that if one holds the Churri with right hand and receives injury on the left hand. Even if this statement is seen in the light of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.