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Petitioner: SAEED GUL VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Syed Ibne Ali, Mian Muhammad Ajmal Title: SAEED GUL vs THE STATE Case No.: Criminal Appeal No.56 and Criminal Revision No.48 of 1990 Date of Judgment:1991-11-26 Reported As: PLD 1992 Peshawar 40 Result: Appeal dismissed
JUDGMENT
JUDGMENT SYED IBNE ALI, J. --Saeed Gul appellant was tried on a charge under section 302, P.P.C., found guilty of murdering his wife Mst. Tahira on 9-4-1988 in his house sentenced to life imprisonment and a fine of Rs.10,000 or in default to suffer further two yeas' R.I. Vide order of the learned Additional Sessions Judge, Peshawar dated 11-7-1990. 2. The convict-appellant has challenged his conviction and sentence by this appeal. The father of the deceased Sardar Gul petitioner has also prayed for enhancement of the sentence in Cr.R. Petition No.48 of 1990. We propose to dispose of both by this single judgment. 3. The prosecution story, according to the F.I.R. Lodged on 9-4-1988 at P.S. Hashtnagri by Mst. Malika stepmother of the convict-appellant, is that, Haji Nasir Ahmad maternal-uncle of the appellant after performance of `Umra' had returned. She in the company of the appellant, his deceased wife and his brother-in-law Nadir Khan P.W.6 went in a car to the house of Haji Nasir Ahmad. They spent night there. On the following day, they returned home at Sikandarpura. Nadir Khan wanted to take his deceased sister Mst. Tahira to his village Cheena Tarnab, Charsadda. The appellant declined to allow her. An altercation ensued between the husband and wife. The complainant was then in latrine in the upper storey of the house. She heard the report of fire shots. On coming down she found Mst. Tahira lying murdered. The appellant and Nadir Khan were missing. 4. The dead body of the deceased was removed to the mortuary for P.M. Examination under the escort of Zolan Khan F.C. Where the Lady Doctor Mst. Tahira conducted autopsy on it and found the following injuries on external examination:-- "(1)Fire-arm entry wound on left side of temporal area of skull 1/4" x 1/4", 1" behind the left ear and 4" from outer angle of the left eye.
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(2)Fire-arm exit wound 12" x 1/2" on the right side of the skull 3-1/2" above the right ear and 4" from the midline. (3)Fire-arm entry wound 1/4" x 1/4" on the left side of the front of the chest 2-1/2" from the midline 1/2" below the left clavical (charring present). (4)Fire-arm entry wound `on the left side of the front of chest 1/4" x 1/4", 2" from the midline and 2" below the lateral angle of line. (5)Fire-arm exit wound 1/2" x 1/2" on the back of midline 5" below the vertebrae prominence. (6)Fire-arm exit wound 1/2" x 1/2" on the back 2" to lateral of back line 2" below the interior angle of scapula." On internal examination the Doctor found the following injuries:-- "Left lung, brain and chest wall injured besides first rib. Stomach was empty and healthy. Bladder also empty." Death in her opinion was due to trauma to brain and lung. 5. Jehangir Khan S.H.O. (P.W.8) P.S. Hashtnagri was returning from the Court of Magistrate. On reaching Sikandarpura, he learnt about . The occurrence. He went to the spot. Mst. Malika made a report to him to the above effect. The S.H.O. Recorded the report in the form of Murasila Ex.P.A/1, on the basis of which F.I.R. Ex.PA. Was registered at the Police Station. The S.H.O. Prepared the injury- sheet and inquest report of the dead hndy Ex.P.M.!l and Ex.P.M./2 and sent the dead body under the escort of F.C. To the mortuary for post-mortem examination. He, thereafter, prepared the site plan Ex.P.B. The 1.0. Took into possession blood-stained cotton from the spot and sealed the same into parcel vide recovery memo Ex.P.C./1 in the presence of marginal witnesses. The witness also took into possession three live rounds of .38 bore Ex.P.5, one spent bullet Ex.P.C. And sealed the same into a separate parcel vide recovery memo Ex.P.C./2. Zolan Khan F.C. Brought blood-stained clothes of the deceased consisting of a shirt EX.P.1, having corresponding cut marks and charring marks, one Shalwar Ex.P.2, Dopatta Ex.P.3, one brassiere Ex.P.4 brought from the mortuary after the post- mortem examination. He sealed all these articles into parcel vide recovery memo Ex P.C. The 1.0. Received information about the arrest of the appellant in Sohawa (Punjab). On 12-4-1988 he formally arrested the appellant in Police Station Sohawa and brought him the same day to P.S. Hashtnagri. The 1.0. Recorded the statement of Munsif Khan under section 161, Cr.P.C. The appellant was willing to confess his guilt, therefore, he produced him vide application EX.P.K. Before Magiorate where his confessional statement Ex.P.K./1 was recorded. Thereafter the appellant was sent to the judicial lock--up. Ex.P.K/2 was procured from Section Officer Home and Tribal Affairs Department, which proves that .38 bore revolver was entered in a licence in the name of the appellant. The 1.0. Also produced F.I.R. (EX.P.A/2) which was to the effect that the appellant was on hunger strike in the mental hospital when he was taken before mental specialist vide application Ex.P.K/3. The appellant was referred to Emergency Department of Lady Reading Hospital, Peshawar and the report in this respect was obtained vide application Ex.P.K/3. The appellant was examined by Dr. Khalid Mufti Psychiatrist and his opinion is Ex.P.K/4. The 1.0. Recorded the statement of prosecution witnesses under section 161, Cr.P.C. Ex.P.L. Is the report about the blood-stained cotton and Ex.P.L./l is the report of the Chemical Examiner about the blood-stained cotton taken from the spot. According to the Chemical Examiner these two articles were stained with human blood. He finally submitted challan in Court. 6. The prosecution produced as many as ten witnesses in support of its case. The appellant denied the charge against him and claimed trial. 7. Mst. Malika is the complainant who was examined as P.W.5. She admitted that the deceased was her daughter-in-law, being the wife of the appellant. She also admitted that the appellant was her stepson and was living with her in her house situate at Sikandarpura Peshawar City. While narrating the story she stated that on the day of occurrence she was present in upper storey of her house
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and when she came down, she found Mst. Tahira deceased lying dead on the ground. When the police arrived, she lodged the report. According to her she did not charge anybody for the murder. Her thumb impression was obtained on the report. First she stated that. She remembered that she thumb impressed on white paper. Again stated that she did not remember, whether it was blank paper or there was writing it which she thumb impressed. She also stated that she was in the upper storey when she heard the report of a fire shot, came down and found Mst. Tahira lying dead and nobody else was present with her at that time. 8. On the request of the learned, A,P.P. She was declared hostile as she had given facts in a twisted form in the Court and had partly resiled from the F.I.R. And was withholding material facts from the Court, which she had stated in the F.I.R. The witness was cross-examined by A.P.P. And also by the defence counsel. In cross-examination by the A.P.P. She stated that it was correctly recorded in her report that there had been haggling between the deceased and the appellant. She further stated that it was correctly recorded in her report that when she came down after hearing the report of a fireshot Saeed Gul (appellant) and Nadir (P.W.) were not there, while the deceased was lying in her room. She further stated that it was incorrectly recorded in her report that Saeed Gul had murdered his wife on that account. She stated that she might have thumb impressed the report Ex.P.A/1. 9. In the cross-examination by defence counsel she stated that before occurrence Nadir Ali (P.W.) was not present in her house. She further stated that the occurrence might have taken place at about 7/8 a.m. And the Police had arrived at the spot at about 1.00 p.m.; that the police had inspected the spot in her presence; that even at that time Nadir Ali P.W. Was not present. 10. Nadir Ali (P.W.6) stated in Court that the deceased Mst. Tahira was his sister, who was married to appellant Saeed Gul and was having two issues from him. He stated that the deceased was residing with her husband, (appellant) and P.W. Malika (complainant) in their house at Sikandarpura. He stated that few days prior to the occurrence they had shifted to their new house, therefore, on the day of occurrence he was asked by his mother to go to the house of his sister Mst. Tahira and invite the appellant and the deceased to the house for staying with them for a few days. According to this witness he took the car of his uncle and drove it to the house of appellant Saeed Gul. The appellant was present in his house while his sister Mst. Tahira and Mst. Malika P.W. Had gone to the house of Haji Nasir Ahmad who had come from `Umra' in those days. The witness and Saeed Gul appellant went after them and brought the deceased, P.W. Malika and children back to the house of the appellant, where this witness disclosed the purpose of his visit to the house i.e. He invited them to his new house. The invitation was accepted by Saeed Gul though the appellant was not happy over visit of his sister to her parents' house. The witness stated that both the husband and wife and their children sat in the car, driven by the witness and started for village Cheena. According to the witness on their way the appellant started abusing the deceased, with the result that from Radio Station Peshawar, the witness returned the car towards Sikandarpura as he did not want that the appellant and the deceased should go to his house in such unhappy mood. On their return to the house of the appellant, he and his sister, Tahira were sitting in the room while the appellant went to bedroom and shortly returned to the room where they were sitting having a pistol in his hand and abruptly fired at the deceased and as a result she was hit and expired there and then. This witness tried to overpower the appellant but he was threatened with dire consequences if he proceeded further towards the appellant. As the witness was empty handed, therefore, he did not follow the appellant. The witness then went to the house of his uncle in Charsadda and then to his village Cheena to inform his parents. From village Cheena the witness accompanied by his parents came to Peshawar and on reaching the house of the appellant they learnt that the dead body of the deceased was taken for post-mortem examination and that Mst. Malika had already lodged the report to the S.H.O. He charged the appellant for the murder of his sister Mst. Tahira. The witness in the cross-examination admitted that he is a School Teacher in
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Primary School in village Cheena and his age is 22 years. He admitted in the cross-examination that after the murder of the deceased he did not go to the P.S. For lodging the report nor took the dead body of the deceased to the Hospital for treatment but he straight went to his village to inform his parents and was back at the spot at 4.30 p.m. 11. After the close of the prosecution case the appellant was examined under section 342, Cr.P.C. Who denied the charge of murder levelled against him. He stated that he did not make any confessional statement. Rather he stated that he was tortured by the Police during custody and they obtained his signature on some white paper. He further stated that Nadir Ali his brother-in -- law and his father-in-law have falsely charged him in order to grab his landed and residential property through his children who have been taken in custody by them. He further stated that at the time of occurrence he was not present at Peshawar but on the day of the occurrence at 6/7 a.m. He left for Rawalpindi where he had applied for getting a copy from the Taxation Department regarding the Tax of his property situate in Rawalpindi. No produced the attested copy of the said P.T.1 obtained from the Taxation Department at 12.00 noon on 9-4-1988, which ,s Ex.D.W.1/1. He stated that he was falsely charged in the case and he did not wish to be examined on Oath in defence of his case The appellant produced Zahir Sarfaraz Clerk Excise and Taxation Department Rawalpindi who appeared as D.W.1. He produced the original record pertaining to property S.T/B-1315 in the name of Karam Elahi situate in Satellite Town, Rawalpindi, which pertains to an application submitted by Saeed Gul appellant on 9-4-1988 for getting copy of P.T.I. For the year 1989/90. This application is No.285/9-4-1988 which bears the signature of the appellant. The second copy is EX.D.W.1/2, which is attested copy issued by the office on 9-4-1988 for which the appellant applied vide application EX.D.W.1/1. Both the copies were issued to the appellant on 9-4-1988 through Shafiq Khan on 24-1---1990. 12. After the close of the evidence of the prosecution and defence and after hearing the arguments of the learned prosecutor and the learned defence counsel the learned Additional Sessions Judge, Peshawar believed the ocular evidence given by Nadar Ali P.W., the confession made by the appellant before a Magistrate, the medical evidence and the disappearance of the appellant from the spot soon after the occurrence who was arrested from Punjab and on the basis of the above evidence the accused was convicted and sentenced under the charge of murder to life imprisonment. The learned trial Court gave le-zser punishment of imprisonment for life on the ground that motive has not been disclosed by the prosecution with full confidence and this fact is shrouded in mystery, therefore, a lenient view was taken and normal penalty as provided under section 302. P.P.C. Was not imposed. 13. We have heard learned counsel for the appellant, learned Assistant Advocate-General, assisted by Mr. Muhammad Aman Khan Advocate for the complainant in revision petition and have perused the record. The learned counsel for the appellant submitted that it is unwitnessed occurrence and the appellant has been involved in the case falsely by Nadir Ali P.W. And his father in order to grab the landed and built up property of the appellant through two minor children of the appellant. He submitted that according to the F.I.R. Mst. Malika (P.W.5) heard the report of fireshots while she was in the upper storey of the building and she came down and found the deceased lying dead in the room. He submitted that neither the appellant nor Nadir Ali P.W. Were present on the spot. The learned counsel further submitted that Mst. Malika in her Court statement did not charge her stepson for the murder of her daughter-in-law (wife of the appellant). The learned counsel submitted that according to P.W. Malika she did not see Nadir Ali in the house even prior to the occurrence. The learned counsel vehemently argued that Nadir Ali (P.W.6) who is the brother of the deceased if at all he was present at the spot at the time of occurrence, then why did he not go to the Police Station to lodge the report or why did he not take the deceased who was his real sister to the Hospital for treatment after the occurrence. He submitted that it was inconceivable to leave
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his sister in pool of blood and he should rush to Charsadda and then to his village Cheena to inform his uncle and parents and then return to the scene of occurrence at 4.30 p.m. According to him, all this shows that it was an unwitnessed occurrence, as per statement of Mst. Malika, and that Nadir Ali P.W. Was a made up witness as is apparent from the circumstances of the case and conduct of Nadir Ali in the case. 14. He further submitted that so far as the confessional statement of the appellant is concerned, it is retracted and no conviction can be based on a retracted confession without independent corroboration, which is not available in the case. He further submitted that no motive has been proved by the prosecution in order to show that why the deceased should kill his wife who was the mother of two minor children. The learned counsel submitted that keeping in view the above facts into consideration, it is a case of no evidence and the appellant has been involved for the sake of property through the minors and he is entitled to acquittal. 15. On the other hand the learned Assistant Advocate-General submitted that the appellant is directly charged in the F.I.R. By his stepmother with whom he had no enmity. He further submitted that Nadir Ali is no doubt the brother of the deceased but he has no enmity whatsoever with the appellant, therefore, his statement cannot be easily brushed aside. He further submitted that P.W. Nadir Ali was a young boy of 22 years of age and as he had come from village Cheena to the house of the appellant in order to invite them to their new house, therefore, after the sad incident his first reaction to the episode was that he rushed to Charsadda in order to inform his uncle and then went to Cheena in order to inform his parents. Town Charsadda is 20 miles away from Peshawar and village Cheena is further 7 miles away (from Charsadda, therefore, after informing his uncle and parents, he returned to the house of the appellant but found that the dead body had already been removed to the mortuary for P.M. Examination and the report was also lodged. He submitted that presence of P.W. Nadir Ali was natural on the spot at the time of occurrence. He also submitted that it was also proved from the statement of Mst. Malika (P.W.5) that on hearing the fireshots, she came downstairs, found the deceased lying murdered and both the appellant and Nadir Ali were missing. The learned Assistant Advocate-General submitted that the presence of Nadir Ali is also proved from the confessional statement of the appellant. He submitted that no doubt the retracted confession cannot by itself be made the basis of conviction and some sort of corroboration is required as a rule of prudence, but in this case, the conviction is based on a retracted confession which is corroborated by the statement of P.Ws. Nadir Ali, Mst. Malika, medical evidence and the absence of the appellant from the scene of occurrence till he was arrested in Sohawa (Punjab) on 12-4-1988. He submitted that there is no chance for false implication in the case and the prosecution has been able to prove its case against the appellant beyond any shadow of doubt. He urged that the appeal be dismissed and the punishment be enhanced to that of death sentence. 16. The learned counsel for the complainant submitted that it was brutal murder. The appellant on mere suspicion fired three shots one after the other and killed his innocent wife. He submitted that the learned trial Court did not give any sound reasons for awarding lesser punishment as provided under section 302, P.P.C. On the ground that no motive was proved by the prosecution. The learned counsel for the complainant submitted that whatever the motive was that was in the mind of the appellant alone, and he is responsible for the tragedy. He submitted that there are number of cases wherein motive has not been proved yet the Courts have awarded capital punishment for the charge of murder. He submitted that the sentence be enhanced to that of death. 17. After considering the arguments of the learned counsel for the defence and prosecution and after perusal of the evidence it is clear that the appellant being the husband of the deceased was directly charged by his step--mother Mst. Malika (P.W.5) for the murder of Mst. Tahira in his own house. Mst. Malika appeared as a witness, though she tried to conceal certain material facts from
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the Court, but when she was declared hostile and the parties were allowed to cross-examine her, she stated in cross-examination "it is correctly recorded in my F.I.R. That on that day we all came to Sikandarpura back in the same car". She further admitted in her cross-examination by the A.P.P. As follows:-- "It is correctly recorded in my report that when I came down after hearing the report of a fireshot, Saeed Gul and Nadir were not there while the deceased was lying in her room---------------I might have thumb impressed the report Ex.P.A/1." 18. Though a witness declared hostile does not remain the witness for the prosecution or defence but still taking his/her overall statement into account, the facts favourable to the prosecution can be taken into consideration. From the statement of Mst. Malika it is quite clear that the deceased was killed by the appellant in his own house and that when she came downstairs after hearing the report of a fireshot, Saeed Gul and Nadir were not there while the deceased was lying dead in her room, which means that before the occurrence both of them were present. Even Nadir Ali P.W. Was present. He appeared as P.W. He is the brother-in-law of the appellant and has given a straightforward story and full explanation for his presence in the house of the appellant and his testimony could not be shattered by the defence through a lengthy cross examination. He has no motive to falsely implicate the appellant. To say that he wanted to grab the property of the appellant is no ground for discarding his testimony because after all the property would go to the minor children if the appellant is removed from the scene and not to Nadir Ali P.W. Nadir Ali has given full explanation for not going to the Police Station to lodge the report or for taking his sister to the Hospital after the occurrence. We know that the deceased after being fired at was killed there and then as stated by Mst. Malika P.W. As well as by Nadir Ali, therefore there was no reason for Nadir Ali P.W. To take her to the Hospital for treatment. The second reason is that he chased the appellant but being empty handed he did not achieve the object of catching hold of the appellant and it was natural for him to first inform his family members who were in Charsadda and Cheena village. Keeping in view the gruesome murder 'which was committed by his own brother-in-law and after seeing his sister lying murdered in a pool of blood, his conduct in the circumstances was not at all unnatural. We are, therefore, of the firm view that Nadir Ali was a natural witness and he narrated the story in a straightforward manner which in no circumstance can be disbelieved. 19. The confessional statement though retracted is voluntary and is corroborated by the statements of P.W.5 Mst. Malika and P.W.6 Nadir Ali. The presence of Nadir Ali P.W. Has also been admitted by the appellant in his confessional statement at the time of occurrence in the house of the appellant. It is further corroborated by medical evidence because according to the confessional statement he fired with his pistol and from the spot three live rounds of .38 bore pistol Ex.P.5 and a spent bullet Ex.P.6 were recovered which would show that the deceased was killed by shots fired from a pistol. The entrance wounds and the exit wounds as narrated by the doctor also appear to have been caused from pistol and there is no other explanation given by the doctor that these were not caused by a pistol. 20. The retracted confession is further corroborated by the conduct of the appellant soon after the occurrence which can be taken into consideration under the Qanun-e-Shahadat,1984. He left his wife the mother of two children in a pool of blood and ran from his house spending one night in Khajori (T.T.) and then went to Punjab in order to establish alibi for himself. He was arrested after three days of the occurrence and he did not make any effort to trace out the real culprit if at all he was falsely implicated. This conduct of the appellant would go a long way to prove that he had a guilty conscience, therefore, he rushed to Punjab and tried to create alibi for himself in order to show that he was not present in his house at the time of the occurrence and did not kill his wife but he utterly failed to prove his alibi.
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21. The motive in such like cases will be present in the mind of the husband. Therefore, it was only mentioned in the confessional statement which was to the effect that four years back he got married to Mst. Tahira and two issues were born from the wedlock; that he suspected that his wife had illicit relations with somebody as she often used Co throw the refuse of the children through the window and used to peep outside. This is the only clue which we got from the confessional statement but he has not disclosed the person with whom the deceased had illicit relations. He had as per suspicion. Without verifying this fact he killed his wife for no fault of her leaving the two children without the care of the mother. Even the absence of motive will not prove that the case of the prosecution is false or capital punishment…
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