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Petitioner: TAHIR MEHMOOD and another VS Respondent: STATE
Court Name: Federal Shariat Court Judge(s): Rizwan Ali Dodani, Shahzado Sheikh Title: TAHIR MEHMOOD and another vs STATE Case No.: Crl. Appeal No, 232/L of 2005 and Jail Crl. A. No, 118/I of 2007 Date of Judgment:2011-09-15 Reported As: PLJ 2012 FSC 94 Result: Appeals dismissed
JUDGMENT
JUDGMENT Shahzado Shaikh, J.--Appellant Tahir Mehmood through Criminal Appeal No, 232/L/2005 and appellant Sajid Ali alias Sajjad Ali Munna through Jail Criminal Appeal No, 118/1/2007 have challenged the judgment dated 31.03.2005 delivered by the learned Additional Sessions Judge, Jhang, whereby they were convicted and sentenced as under:-- {{TABLE}} Tahir Mehmood appellant: Conviction Sentence (i) under Section 302(b) of the Pakistan Penal Codelife imprisonment with direction to pay Rs, 50,000/- as compensation under Section 544-A of the Code of Criminal Procedure to the legal heirs of M st. Ferhat Bibi deceased or in default thereof to further undergo six months simple imprisonment. (ii) under Section 392 of the Pakistan Penal Codefour years rigorous imprisonment with fine of Rs, 5,000/- or in default
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thereof to further undergo two months simple imprisonment. Saiid Ali alias Saijad Ali Munna appellant: (i) under Section 302(b) of the Pakistan Penal Codelife imprisonment with direction to pay Rs, 50,000/- as compensation under Section 544-A of the Code of Criminal Procedure to the legal heirs of M st. Ferhat Bibi deceased or in default thereof to further undergo six months simple imprisonment. (ii) under Section 392 of the Pakistan Penal Codefour years rigorous imprisonment with fine of Rs, 5,000/- or in default thereof to further undergo two months simple imprisonment. {{TABLE}} Both the sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure. However the learned trial Court acquitted accused Muhammad Akram by giving him benefit of doubt. Both the above-mentioned criminal appeals are being disposed of by this single judgment as they arise out of one and the same judgment and crime report. It may be pointed out here that Ghulam Muhammad PW.9, the complainant, had filed Criminal Appeal No, 171/L/2005 against acquittal of Muhammad Akram accused as well as Criminal Revision No, 59/L/2005 for enhancement of sentences awarded to the appellants which were dismissed on 15.09.2008 for lack of prosecution. 2. The prosecution case in brief is that complainant Ghulam Muhammad PW.9 submitted complaint Ex.PH before the Station House Officer, Police Station Kotwali, District Jhang, wherein it was stated that about 18 years ago his sister Mst. Ferhat Bibi was married with Afsar Ali Khan and they were living happily. The step brothers and step mother of Afsar Ali Khan used to tease Mst. Ferhat Bibi and she often made complaints about Tahir Mehmood to the complainant who (Tahir Mehmood) used to extort money from her by extending threats. On 16.04.2003 the complainant alongwith Yar Muhammad went to Ahmad Hassan at Model Town Burewala from where they made programme to go to Faisalabad. However on the insistence of the complainant they (all the three) proceeded to Jhang as the complainant wanted to see his sister, on the way. At about 5.00 p.m. they reached the house of complainant's sister situated in Mohallah Sultanwala, Jhang, where many people had gathered outside and inside the house. They came to know that Mst. Ferhat Bibi and her maid Mst. Hajran Bibi were murdered at noon time and their dead bodies were taken to the hospital. The complainant suspected Tahir Mehmood for this occurrence. They went to hospital where Tahir Mehmood and Muhammad Akram met them. On query Tahir Mehmood while weeping stated that Afsar Ali went to his duty early in the morning while his daughters went to school. He and his friend Sajjad Ali needed money and on finding Mst. Ferhat Bibi alone, he alongwith Sajjad Ali, armed with daggers, entered the house while his brother Akram remained on guard outside. He demanded money from Mst. Ferhat Bibi and on her refusal he snatched her gold ornaments. She
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made resistance and caught him upon which he gave repeated dagger blows to her. In the meanwhile Mst. Hajran, maid, who was present in the kitchen, raised alarm. Sajjad Ali alias Munna caught Mst. Hajran and injured her by giving dagger blows. Both the ladies died at the spot. Sajjad Ali put `dupatta' around the neck of Mst. Ferhat Bibi and tied her with the cot. They went out of the house and bolted the door. Then Tahir Mehmood, without informing Afsar Ali about the occurrence, laid oral information to the police which was recorded by Muhammad Sharif Sub Inspector PW.13 as Ex.PJ on 16.04.2003 wherein it was stated that at about 7.30 a.m. his brother Afsar Ali went to Shorkot on his duty while his daughters went to school and he went to Kuchery on his job. Mst. Ferhat Bibi and maid Mst. Hajran were alone in the house. At about 2.00 p.m. he returned home from Kuchery and found that 'door of the house of Afsar Ali was opened and many people gathered there. He entered the house of Afsar Ali and saw that Mst. Ferhat and Mst. Hajran Bibi were lying dead and house hold articles were scattered in the house. He further stated in the complaint that some unknown persons had murdered Mst. Ferhat Bibi and Mst. Hajran Bibi by giving them dagger blows. This complaint Ex.PJ was registered as FIR No, 164/03 Ex.PJ/1. 3. Investigation ensued as a consequence of registration of crime report. Muhammad Shard Sub- Inspector PW.13 undertook the investigation. He recorded complaint Ex.PJ on the statement of Tahir Mehmood accused at People Chowk where he was present on patrol duty and forwarded the same to Police Station through Bashir Ahmad 'constable for registration of the case. He reached at the spot, inspected the place of occurrence, prepared injury statement Ex.PF and inquest report Ex.PD of Mst. Ferhat Bibi as well as injury statement Ex.PF/1 and inquest report Ex.PG of Mst. Hajran. He sent the dead bodies to DHQ Hospital, Jhang for post-mortem examination through Khadim Hussain constable. Ghulam Muhammad complainant submitted an application Ex.PH before him. He recorded statements of Ahmad Hassan and Yar Muhammad under Section 161 of the Code of Criminal Procedure. He inspected the place of occurrence on the pointation of Ghulam Muhammad, Yar Muhammad and Ahmad Hassan and prepared site plan Ex.PT. He collected the blood stained earth from both the places of dead bodies, prepared two different sealed parcels, took the same into possession through memo. Ex.PL and Ex.PN and recorded statements of Ahmad Hassan and Yar Muhammad PWs in this regard. After post:mortem examination of the dead bodies Khadim Hussain constable handed over to him post-mortem reports of both the deceased alongwith last worn clothes of Mst. Ferhat Bibi shirt P.13, shalwar P.14, dopatta P.15 and last worn clothes of Mst. Hajran Bibi shirt P. 16, white dopatta P. 17, blood stained shalwar P. 18 and two sealed vials which he took into possession through memo. Ex.PK. He recorded statement of Khadim Hussain constable. On 17.04.2003 he recorded supplementary statement of Ghulam Muhammad complainant and also recorded statements of PWs under Section 161 of the Code of Criminal Procedure. On 18.04.2003 he recorded statements of Mst. Saddaf Afser and Sana Afsar daughter of Mst. Ferhat Bibi deceased. He got prepared scaled site plan of the place of occurrence Ex.PA and Ex.PA/1 through Sofi Muhammad Asif Munawar, Draftsman. He arrested accused Sajid Ali on 22.04.2003 while Tahir Mehmood and Muhammad Akram accused were arrested on 23.04.2003. On 26.04.2003 during investigation Sajid Ali accused got recovered dagger P. 19 from a petti lying in a room of his house and Rs 1500/- from underneath the petti. He also got recovered gold ornaments khanti P.1, koka P.2, pair of ear rings P.3/1-2. one tikka P.4 which were taken into possession through recovery memo. Ex.PN and statements of Ahmad Hassan and Yar Muhammad PWs were recorded in this respect. Accused Tahir Mehmood got recovered dagger P.20 from beneath the trunks, which was taken into possession through recovery memo. Ex.PR. He also got recovered four gold bangles P.5/1-4, two golden rings P.6/1-2, locket P.7, one pair of ear rings P.8/1-2 and cash amount of Rs, 1500/- which were taken into possession through recovery memo. Ex.PQ. He also got recovered clothes from beneath the stairs shirt P.26, blood stained shalwar P.27, which were taken into possession through recovery memo. Ex.PS. Sajid Ali accused got recovered ornaments and cash
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amount which were taken into possession through recovery memo. Ex.PO. He also got recovered his blood stained clothes from the roof of his house i,e, shalwar P.22, string P.21, shirt P.20 which were taken into possession through recovery memo. Ex.PP. On 28.04.2003 Abdul Hafeez and Afsar Ali identified the ornaments P.1 to P.8 and their statements were recorded under Section 161 of the Code of Criminal Procedure. After completion of the investigation the Station House Officer submitted report under Section 173 of the Code of Criminal Procedure before the Court on 20.05.2003 requiring the accused to face trial. 4. The learned trial Court framed charges against the accused on 09.10.2003 firstly under Section 395 of the Pakistan Penal Code, secondly under Section 302/34 for committing murder of Mst. Ferhat Bibi, thirdly under Section 302/34 for committing murder of Mst. Hajran Bibi and fourthly under Section 17 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979. The accused did not plead guilty and claimed trial. 5. The prosecution produced thirteen witnesses in order to prove its case. The gist of the deposition of the witnesses is as follows:-- (i) PW.1 Muhammad Munawar Asif Draftsman stated that On 19.04.2003 he alongwith the Investigating Officer and PWs inspected the spot, took rough notes on the pointation of the PWs and prepared site plan in the scale of 1" equal to 20 feet. After completion site plan Ex.PA and Ex.PA/1 he handed over the same to the Investigating Officer on 26.04.2003. (ii) PW.2 Haq Nawaz constable had deposited two sealed parcels of blood stained daggers and two sealed parcels of blood stained shalwar and shirt in the office of the Chemical Examiner, Lahore on 05.05.2003 which were handed over to him by Muhammad Akram Moharrar on 04.05.2003. (iii) PW.3 Lady Dr. Misbah ul Qamar had conducted postmortem examination on the dead body of Mst. Ferhat Bibi on 16.04.2003. Her observations are as follows: "It was dead body of a healthy lady aged about 40 years, lying on post-mortem table, with eyes and mouth closed. Claded in three clothes printing Qameez, Ferozi shalwar and Dopatta. (clothes were blood stained). Rigor mortis present, post-mortem staining present. 1. An incised wound V shape 5 cm x 5 cm x cavity deep present on upper part of left side of abdomen 40 CM. to the left of mid line. 2. An incised wound 8 cm x 5 cm x cavity deep present on left side of abdomen, 3 cm to the left of umblic gut is coming through this wound. 3. An incised wound 2 cm x 1 cm x muscle deep present in the centre of abdomen 2 cm above Injury No, 2. 4. An incised wound 6 cm x 3 cm x cavity deep present on left side of abdomen 11 cm on the left of Injury No, 2, gut is coming out through this wound. 5. An incised wound 4 cm x 3 cm x cavity deep present on right side of abdomen. 6. An incised wound 5 cm x 1 cm x muscle deep present on front of medial side of lower part of right forearm. Corresponding cuts were present on the clothes. Scalp, Skull and vertebrae. Scalp and skull intact and healthy. Vertebrae not opened. Membranes and brain: Intact and healthy and spinal cord not opened. Thorax: Thorax walls and all the viscras were intact and healthy. Heart intact and healthy and all the chambers were empty. Abdomen: Walls, injuries already mentioned. Peritoneum injured and abdominal cavity was full of blood. Stomach, injured, contains about 3/4 Ounces of semi digested food. Small intestines injured at many places, containing digested juices and gases. Large intestines injured at many places containing gases and fecal matter. Liver injured. Organs of generation internal and external, intact
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and healthy non-gravid uterus. Three vaginal swabs were taken, sealed and sent to the Office of Chemical Examiner, Lahore for semen detection and Serological test. All other abdominal viscras were intact and healthy. Opinion: Death in this case is caused by Injuries, 1, 2, 4 and 5. Leading to severe shock and haemorrhage due to injury to liver, stomach, small intestines and large intestine, which is sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature and caused by sharp edged weapon. Probable time that elapsed between injuries and death was immediate and between death and P.M. Examination was within 12 hours. After the P.M. Examination I handed over to the police, the well stitched dead body, carbon copy of P.M.Report, Police papers, a sealed vial, a sealed envelope alongwith last worn clothes of the deceased. Ex:PB is the correct carbon copy of P.M.Report, which is in my hand and signed by me. I also endorse injury statement Ex:PC and inquest report Ex:PD and sketch of injuries Ex:PB/1, and Ex:PB/2 which are also in my hand and signed by me." The Lady Doctor also conducted P.M.Examination of the dead body of Mst. Hajran and observed as follows: "It was the dead body of a lady aged about 45/46 years, lying on P.M.table with eyes and mouth closed. Claded in brown printed Qameez, Ferozi shalwar, Dopatta. Clothes were blood stained. Rigor mortis was present and P.M.staining was present. The following injuries were noted on her person:-- 1. An incised wound 12cm x 2cm x muscle deep present on front of left side of neck. 2. An incised wound 5cm x 1cm x muscle deep present on front of lower part of neck, 2cm below Injury No, 1. 3. An incised wound 6cm x 2m x cavity deep (between 5th and 6th ribs) present on left breast 2cm above left nipple. 4. An incised wound 4 cm x 2 cm x muscle deep present on right breast 2 cm above right nipple. 5. An incised wound 4cm x 1cm x muscle deep present on right side of upper part of abdomen. 6. An incised wound 6cm x 3cm x muscle deep present on upper part of right side of abdomen 4cm from the Injury No, 5. 7. An incised wound 5 cm x 2 cm x cavity deep present on upper part of left of abdomen 02 cm to the left of mid line. 8. An incised wound 3cm x 1 cm x cavity deep present on left side of abdomen, 6cm from the Injury No .7. 9. An incised wound 3cm x 1 cm x muscle deep present on lower abdomen. 10.An incised wound 4cm x 2 cm x muscle deep present on upper part of left arm and extending through and through the medial side of upper arm. 11.An incised wound 3cm x 1 cm x muscle deep present on left forearm upper part. 12.An incised wound 6cm x 2 cm x muscle deep present on upper part of front of right forearm. 13.An incised wound 4cm x 2 cm x muscle deep present on front of upper of left thigh. 14.An incised wound 5cm x 2cm x muscle deep present on left side upper and inner part. 15.An incised wound 9cm x 2cm x bone exposed present on front of left leg. 16.An incised wound 3cm x 1cm x bone exposed present in the middle of back, (corresponding cuts were present on the clothes). Scalp, skull and Vertebra) Scalp and skull intact and healthy. Vertebrae not opened. Membranes and brain: intact and healthy. Spinal cord not opened. Thorax: Injuries to walls and ribs already mentioned. Pleaura injured, chest cavity contained blood. Left lung
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injured. Heart intact and healthy and both chambers empty. Other thorax viscaras were intact and healthy. Abdomen; Injuries to abdominal walls were already mentioned. Skin of front of the abdomen burnt. (injured and peritonial cavity was full of blood). Stomach injured and contained about 2 Ounces of about semi digested food. Small intestines injured at many places containing digested juices and gases. Large intestines injured at many places containing gases and feacal matters. Liver injured, spleen injured, both kidneys, bladder, pancreas and diaphragm were intact and healthy. Organs of generation external and internal were intact and healthy. Non-gravid uterus. Three vaginal swabs were taken and handed over to Police for sending to Chemical Examiner, Punjab, Lahore, for semen detection and Serologist test. Opinion: Death in this case was caused by Injury No, 3, 7 and 8 leading to severe shock and haemorrhage due to injury to left lung, liver, stomach, spleen, small intestines and large intestines. Which is sufficient to cause death in an ordinary course of nature. All the injuries were ante-mortem in nature and caused by sharp edged weapon. Probable time that elapsed between injuries and death was immediate and between death and P.M.Examination was within 12 hours. After the P.M. Examination a well stitched dead body, carbon copy of P.M. Report, police papers, a sealed vial, a sealed envelope alongwith last worn clothes of the deceased were handed over to police. Ex.PE is the correct carbon copy of my P.M.Report, which is in my hand and signed by me. Sketch of injuries Ex:PE/1 and Ex.PE/2 are also in my hand and signed by me. I also endorsed injury statement Ex.PF and inquest report Ex.PG." (iv)PW.4 Ejaz ul Hassan constable had delivered two sealed parcels containing blood stained earth of Mst. Ferhat Bibi and Mst. Hajran Bibi, two sealed vials and two sealed envelops in the office of the Chemical Examiner, Lahore on 23.04.2003 which were handed over to him by Muhammad Akram Moharrer on 22.04.2003. (v)PW.5 Muhammad Jamil stated that Ghulam Muhammad complainant and Ahmad Hassan rang him up from Burewala and told him that they had got to Faisalabad via Jhang and they would take lunch with him at Jhang. He took his wife to bazaar for purchasing house hold articles and after leaving his wife in the bazaar he went to the house of Afsar Ali Khan in Mohallah Sultan Wala where Muhammad Akram accused was present in front of the house of Afsar Ali Khan. He inquired from Muhammad Akram accused about Ghulam Muhammad and Ahmad. Hassan who told that they had come there. (vi)PW.6 Afsar Ali, husband of Mst. Ferhat Bibi deceased, stated that on the day of occurrence he was on his duty at Shorkot. Riaz Gujjar ASI PS Shorkot City informed him about the murder of his wife and maid servant Mst. Hajran Bibi. He came to his house and found many people gathered there. He got recorded his statement before the police at his house wherein it was stated that murder of his wife and maid servant was committed by his step brothers Tahir Mehmood and Akram accused with the consultation of their mother. Sajid Ali accusedi, friend of Tahir Mehmood arid Akram accused, was also involved in the murder of his wife and maid servant. He, on checking his house, found gold ornaments i,e, four bangles, two rings, one tikka, koka, two set of ear rings, one locket, one kenthi and cash Rs, 4200/- missing. The witness had identified the dead body of Mst. Ferhat Bibi at the time of post-mortem examination. He identified the stolen property before the police on 28.04.2003. (vii) PW.7 Sana Afsar daughter of Mst. Ferhat deceased sated that she alongwith her sister returned home from school at abut 1.30 p.m.. The outer door of her house was chained from outside. After opening the door she alongwith her sister went inside the house and found that her mother Mst. Ferhat Bibi and maid Mst. Hajran. Bibi were lying murdered. The chains of the boxes were broken.
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On their alarm the women of the vicinity gathered. The witnesses further stated that three days prior to the occurrence her step-uncle Tahir Mehmood and Muhammad Akram at the instance of thei r mother Mst. Ferozan had taken oath on Holy Quran to finish the family of Mst. Ferhat Bibi. Their residential house was in the name of Mst. Ferhat Bibi and the accused wanted to get transferred the said house in their names forcibly, and for this purpose they had beaten her mother. In absence of her father both the accused used to snatch money from her mother after beating her. Accused Muhammad Akram, Tahir Mehmood and Sajid Ali after lootimg the ornaments and the currency notes murdered her mother and maid servant Mst. Hajran Bibi. (viii) PW.8 Zafar Icibal had identified the dead body of Mst. Hajran Bibi in the mortuary before the WMO at the time of her post-mortem examination. (ix)Ghulam Muhammad complainant appeared as PW.9 and endorsed the contents of his complaint Ex.PH. (x)PW.10 Mu. ha mmad Akram Moharrar had formally drafted FIR, Ex.PJ/1 on receipt of complaint Ex.PJ. On 16.04.2003 he received a sealed parcel containing blood stained earth as well as two sealed parcels containing vaginal swabs alongwith two envelopes for onward transmission to the office of the Chemical Examiner, Lahore. On 22.04.2003 he handed over the above said four sealed parcels alongwith envelopes to Ejaz ul Hassan constable for deposit in the office of Chemical Examiner. On 26.04.2003 the Investigating Officer also handed over to him the parcel of blood stained clothes of the accused Sajid Ali and other blood stained parcel of clothes of Tahir Mehmood accused for safe custody in the Malkhana. On 04.05.2003 he handed over the above said sealed parcels to Haq Nawaz constable for depositing in the office of the Chemical Examiner, Lahore. (xi)PW.11 Khadim Hussain constable stated that on 16.04.2003 the Investigating Officer had handed over to him dead bodies of Mst. Ferhat Bibi and Mst. Hajran Bibi alongwith relevant police papers for autopsy. He produced both the dead bodies alongwith police papers before the WMO for P.M. Examination. After the autopsy the lady doctor handed over to him blood stained last worn clothes of Mst. Ferhat Bibi i,e, shirt P.13, shalwar P. 14, dopatta P. 15 and a sealed vial. She also handed over to him the last worn blood stained clothes of Mst. Hajran Bibi i,e, shirt P. 16, dopatta P. 17 and shalwar P. 18 alongwith a sealed vial. He produced the above said articles before the Investigating Officer who took the same into possession through memo. Ex.PK. The witness attested the memo. Ex.PK and his statement was recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure. (xii) PW.12 Yar Muhammad supported the version of complainant Ghulam Muhammad PW.9. (xiii) PW.13 Muhammad Sharif Sub-Inspector had undertaken the investigation, the details have already been mentioned in paragraph 3 of this judgment. 6. The prosecution after tendering in evidence repots of Chemical Examiner Ex.PP of Mst. Ferhat Bibi, Ex.PQ of Mst. Hajran Bibi, Ex.PR regarding crime weapons, Qameez and Shalwar, Ex.PS regarding blood stained earth of Mst. Ferhat Bibi and Mst. Hajran Bibi, and report of Serologist regarding blood stained earth Ex.PT, closed its evidence on 03.01.2005. Thereafter the learned trial Court recorded statements of the accused under Section 342 of the Code of Criminal Procedure on 03.03.2005. The accused denied the allegations levelled against them and claimed their innocence. In reply to question "Why this case against you and why the PWs have deposed against you?" appellant Tahir Mehmood stated as under:-- "In fact there was a dispute between Afser Ali who was our step brother and ourselves. Family of complainant Ghulam Muhammad was also inimical towards us. The house purchased by Mst: Ferhat Bibi was purchased with the money of Afser Ali and it was in the name of Mst: Ferhat Bibi. Afser Ali wanted to get back his house and there had been quarrel in between the spouses. Mst: Ferhat Bibi had given birth to three daughters and she was not in a position to give birth any other
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child. Afser All wanted a son and for this purpose he wanted to have second marriage, to which Mst: Ferhat Bibi did not agree. This was also a cause of grudge. Afser Ali with the help of some one got committed murder of his wife Mst. Ferhat Bibi and maid servant Mst. Hajran Bibi after administering tranquilizer, and thereafter with the help of his relatives got me falsely implicated in this case." 7. Accused Muhammad Akram endorsed the reply of his brother Tahir Mehmood. Accused Sajid Ali alias Sajjad Ali Munna in reply to above-mentioned question stated as under:-- "In fact I am resident of same street where the occurrence had taken place. My inmates of the house including me had gone to attend the marriage ceremony and my house was locked. Afser All PW pressurized me to become a witness in this case and to depose as he desired against my co-accused Tahir Mehmood and Muhammad Akram and on my refusal he became' angry and involved me falsely in this case. All the PWs are related inter-se and with Afser All PW and they deposed against me at the instance of Afser Ali PW. In fact no recovery was…
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