Full Judgment Text & Judicial Ruling

2007 P Cr

2007 P Cr. L J 1833

[Quetta]

Before Mehta Kailash Nath Kohli and Muhammad Nadir Khan, JJ

GHULAM RASOOL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.83 of 2006 and Murder Reference No.20 of 2006, decided on 16th April, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Accused was convicted and sentenced for committing murder of one female and one male---Accused was sentenced to suffer life imprisonment for murder of female and for murder of male he was sentenced to death---No direct evidence was available to implicate accused in the case of murder of female---Trial Court, however, had relied on circumstantial and indirect evidence while convicting him for imprisonment of life---No circumstantial evidence was available on record to connect accused with .murder of female except that dead-body of said deceased was taken to hospital where her vaginal swabs were taken by Staff/Nurse---Report of swabs were not found to be contaminated with semen of male deceased---Assistant Advocate-General had conceded that no evidence was on record to .connect accused with commission of murder of female deceased---Entire record did not connect accused, either directly or indirectly with the said crime---Statements of two prosecution witnesses were recorded regarding murder of male deceased---Supplementary statement was stated to have been given wherein accused was introduced as one of the persons who caught hold of male deceased, while blows of and were caused by absconding accused---Complainant/prosecution witness had received information at his home having registered F.I.R. on the basis of information given by another prosecution witness---Statement of yet another prosecution witness had shown that he was resident of another town---Another prosecution witness was also resident of other town---Prosecution, in circumstances, had failed to establish the guilt of accused beyond shadow of doubt relating to murder of both deceased---Extending benefit of doubt to accused, impugned order of the -Trial Court, was directed to be set aside and accused was acquitted of the charge; he was set at liberty and Murder Reference was answered in negative.

Khalid Javed and another v. The State 2003 SCMR 1419 and Muhammad Rafique Kamboh and another v. The State 1993 PCr.LJ 1403 ref.

Mujeeb Ahmed Hashmi and Noorullah Kakar for Appellant.

Abdul Raheem Mengel, Asstt. A.-G. for the State.

Date of hearing: 5th April, 2007.

JUDGMENT

MEHTA KAILASH NATH KOHLI, J.--- This appeal is directed against judgment, dated 18th December, 2006 passed by Additional Sessions Judge-I, Sibi in Session Case No.31 of 2001, whereby appellant Ghulam Rasool son of Haji Abdul Khaliq alias Azizullah caste Buhar, resident of Bhag has been convicted under section 302(b), P.P.C. and sentenced to death, he was further directed to pay Rs.1,00,000 as compensation to legal heirs of deceased Muhammad Aslam, in default whereof to further undergo S.I. for two years. Appellant was further convicted under section 302(b), P.P.C. for committing murder of Mst. Marvi and sentenced to suffer life imprisonment with payment of Rs. 1,00,000 payable to legal heirs of deceased Mst. Marvi as compensation, in default of payment thereof to further undergo S.I. for two years. Murder Reference (S) 20 of 2006 has sent by the trial Court for confirmation of sentence of death awarded to the appellant. This judgment shall dispose of both these criminal appeal and murder reference.

Facts of the case, in brief, are that on 10th March, 2001, an F.I.R. No.15 of 2001 under section 324/302, Qisas and Diyat Ordinance read with section 34, P.P.C. was registered by Police Station Dhadar, District Sibi on the report of complainant Ghulam Hussain son of Sanhran Khan, caste Jobar, resident of Rind Ali stating therein that he along with his brother Hazoor Bakhsh and. family is residing on the abovesaid address. It was further stated that on .account of some work he had gone to Dera Allah Yar and on '.the eventful day at 11-30 a.m. he came back to his house in the meantime, his nephew namely Muhammad Shareef came there and informed him that in the house of Muhammad Siddique son of Hazoor Bakhsh resident of Bhag, who was presently residing at Raisani Mohalla Rind Ali, his cousin Muhammad Aslam son of Hazoor Bakhsh and wife of Muhammad Siddique namely Mst. Marvi were. lying in .pool of blood, on said information he along with Muhammad Shareef and Shakal Khan son of Afzal, reached at the house of Muhammad Siddique and: saw Muhammad Aslam and Mst. Marvi lying in pool of blood and no one was present in the said house, in the meanwhile inhabitants of the Mohalla reached on the spot. On enquiry mother of Muhammad Aslam informed that about two/three hours ago Muhammad Siddique son of Hazoor Bakhsh came to dairy farm and asked Muhammad Aslam that one Muhammad Alam was present in his house and took him to his house on the pretext of doing some urgent work. Motive behind the incident was alleged that on the allegations of Siah Kari, Muhammad Aslam and Mst. Marvi were attacked upon and injured with blows of axe by Muhammad Siddique and Muhammad Aslam and killed them. Consequently, appellant was arrested and after completion of investigation challan was submitted in the Court of competent jurisdiction and appellant was remanded to judicial lock-up: Learned Additional Sessions Judge, Sibi took cognizance in the matter and on 21st .November, 2001 framed charge to which the appellant pleaded not guilty and claimed trial.

The prosecution to substantiate accusation against appellant, produced following evidence.

P.W.1 Ghulam Hussain is the complainant, who has appeared in witness-box and reiterated the contents of F.I.R. (Exh.P.1/A). He has further .deposed that as per Balochi Ahwal, it transpired that actual culprits were Ghulam Rasool, Majeed, Siddique and Alam, who in connivance of each other had committed the murder, as such; he made supplementary statement in the police station.

In cross-examination, he stated that at 11-00/11-30 a.m. he received information of murder of Muhammad Aslam within ten minutes, he reached on the spot from where he along with police officials shifted injured Muhammad Aslam to Civil Hospital Dhadar, and at 2-00 p.m.

Muhammad Aslam was referred to Civil Hospital, Quetta, he had not accompanied the deceased to Quetta, while Muhammad Shareef, Muhammad Ashraf, brother of deceased namely Sona Khan and other persons were accompanying the deceased, further stated that on the next day he had gone to Quetta. It was stated that on seventh day of the incident i.e. 17th March, Muhammad Aslam died, and he was buried in Rind Ali. He has stated that in the F.LR. (Exh.P.1/A) it was not mentioned that Muhammad Aslam was killed, voluntarily stated that Muhammad Aslam was shown as seriously injured. He has further stated that Mst. Marvi was wife of accused Muhammad Siddique, who was murdered on the same day, further stated that Muhammad Aslam was murdered in the house of accused Muhammad Siddique. He has stated that after ten/twelve days of the incident, Habibullah son of Muhammad Ibraheem and Dad Muhammad son of Qadir Bakhsh, residents of Sibi, while giving Balochi Ahwal, informed him about involvement of present accused. He was admitted that his supplementary statement was recorded on 27th March, 2001. It was admitted that his supplementary statement does not contain names of Habibullah and Dad Muhammad He showed his ignorance that a case regarding murder of Muhammad Aslam was registered on the day of incident. He has admitted that he had not produced Habibullah and Dad Muhammad for recording their statements under section 161, Cr.P.C., however, stated that after two months of the incident he had informed police about said persons, and the police had summoned them and their statements were recorded on 3rd- June, 2001. It was stated that Habibullah is his maternal-cousin, while Dad Muhammad is maternal-cousin of his mother, both of them came for Faciha of Muhammad Aslam after 10/15 days of the incident. It was further stated that deceased Muhammad Aslam and accused Muhammad Siddique are not inter se relatives. It was also stated that Muhammad Siddique had called Muhammad Aslam to his house on the .pretext of doing electric work. He has denied the suggestion that after fleeing of accused Muhammad Siddique, present accused being his relative has been falsely involved in the present case.

P.W.2 Habibullah son of Muhammad Ibraheem appeared and deposed. that about one year and three months ago, he along with Dadullah went from Sibi to the dairy farm of Muhammad Aslam at Dhadar, where Muhammad Aslam after grazing his cows was coming back. He further deposed that at 10-00 a.m. Muhammad Siddique came there and asked Muhammad Aslam to go with him at his house for doing electric work and Muhammad Aslam while going with Muhammad Siddique told them that he will come back within ten minutes. Witness stated that they waited for long but Muhammad Aslam did not return, after half an hour he and Dadullah went to the house of Muhammad Siddique, there. was hue and cry of womenfolk in his house, they saw that a woman was .lying dead and her blood was lying clot, on going ahead they saw that Muhammad Aslam was caught hold by Muhammad Siddique, Ghulam Rasool and Majeed, while Aslam was inflicting him axe blows, in result whereof he became seriously injured and fell down and the accused persons namely. Muhammad Siddique and Muhammad Alam having boarded on two motorcycles fled away from the scene, while remaining two persons went on foot. He has stated that they had informed Muhammad Shareef about the incident and returned back to Sibi. He had identified present accused to be the same.

In cross-examination he denied that deceased Muhammad Aslam was his maternal-cousin, voluntarily stated that he was his relative. He has stated that in their present police had reached and their statements were also recorded by the police. He has stated that deceased lady-was wife of Muhammad Siddique. He denied that on the allegations of Siah Kari, Muhammad Siddique killed his wife and Muhammad Aslam. He denied that after absconding of Muhammad Siddique, he, and Dad Muhammad were nominated as witnesses just to falsely involve the present accused. He denied that he and Dad Muhammad were not present on the spot nor they had witnessed the incident. He denied that at the instance of complainant of the case, on 3rd June, 2001, police had recorded his statement. He had stated that Muhammad Aslam succumbed to injuries on the spot, voluntarily stated that he fell down and after six/seven days he died in Quetta. He admitted that dead body of lady and injured Muhammad Aslam lying in the house of Muhammad Siddique. He stated that present accused is paternal-cousin of absconding accused Muhammad Siddique. It was stated that he had informed Muhammad Shareef, Muhammad Shareef informed complainant Ghulam Hussain; who after ten/twelve minutes reached on the spot.

P.W.3 Khalida Parveen, Staff Nurse appeared and stated that on 10th March, 2001; she was posted in Civil Hospital Dhadar, at 3-00 p.m. dead body of Mst. Marvi was brought to hospital for examination. She further deposed that by the order of doctor Lal Muhammad, Medical Officer, she had conducted examination of dead body and obtained three vaginal swabs and kept the same in three bottles, which were handed over to the Medical Officer. In cross-examination, she admitted that she has no authority to examine a dead body.

P. W.4 Doctor Lal Muhammad appeared and stated that on 10th March, 2001, he was posted as Medical Officer, Civil Hospital, Dhadar; at 1-00 p.m. injured. Muhammad Aslam son of Hazoor Bakhsh was brought by S.H.O. Dhadar with history of assault. He had examined the injured and found following injuries on his person:--

"Injuries

(i) Incised wound on the occipital region length 4 inch depth. Bone (fracture) the skull bone and width 1/2 inch.

(2) Incised wound on the right side of head near the right ear length 5 inch, depth the skull bone and width 1/2 inch.

(3) Incised wound on the left side of the head near left ear length 6 inch width 1/2 inch depth upto bone.

(4) Incised wound on the neck front side length 4 inch.

(25 Incised wound in-between the chest in front (between both breast) length 4 inch.

Nature of injuries:???????????????????? grievous, fresh.

Weapon used:????????????????????????? sharp-edged

Treatment;??????????????????????????????? Stitching and dressing. "

After providing medical treatment, injured was referred to Sandeman Provincial Hospital, Quetta and in this regard he had issued medical certificate (Exh.P.4/A) bearing his signature.

He has further deposed that on the same day at 3-00 p.m. dead body of Mst. Marvi was brought for medical examination to which he examined and opined as under:--

"Injuries

(1) Incised wound on the occipital region 4 inch in length, 1/2 inch width and depth upto bone.

(2) Incised wound on the backside of the skull length 6 inch, width 1/2 inch and depth upto bone.

(3) Incised wound on the left patella 3 inch in length.

Result. Death occurred 6 hours before bringing to hospital.

Internal examination. Conducted through Khalida Parveen Staff. Nurse of the hospital, which were sent to FSC Laboratory, Karachi."

After medical examination, he issued, medical. certificate of Mst. Marvi as Exh. P.4/B. He had also .produced copy of FSL report as Exh.P.4/C.

In cross-examination, he stated that vaginal swabs were handed over to S.H.O. for sending the same to FSL who refused to send .the same, as such; on 12th March, 2001 the witness sent the same and on 31st July,. 2001 report of Chemical. Examination (Exh.P.4/C) was accordingly received by Civil Hospital, Dhadar. The said report does not confirm Siah Kari as no semen of deceased Aslam were found in semen of Mst. Marvi and vice-versa. He has denied the suggestion that he has no authority to send any sample for examination to FSL, Karachi.

P. W. 5 Shakal Khan, shopkeeper, appeared and deposed that on 10th March, 2001, he was present in his auto shop at Dhadar; at 10-30 a.m. Ghulam Hussain came to his shop and informed him that Muhammad Aslam was murdered, as such; he reached on the spot where people were gathered and an axe was lying in 'front of the door. He further deposed that on enquiry from the people present there, he was informed that dead body of Muhammad Aslam was shifted to some other place.' This witness was not cross-examined by the defence counsel.

P.W.6 Muhammad Shareef, shopkeeper appeared and deposed that on 10th March, 2001, he was present in his shop at Rind Ali, co-accused Muhammad Alam and Muhammad Siddique boarded on motorcycle came to his shop and told him that they had murdered Muhammad Aslam and wife of Muhammad Siddique, the dead bodies whereof were lying in his house and asked him to collect the same. Whereas further deposed that he informed his uncle Ghulam Hussain, while in his way, Dad Muhammad and Habibullah also met him who also informed him about murder of Muhammad Aslam.

In cross-examination, he stated that at 10-30 a.m. he alone was present in his shop where accused persons came. He stated that deceased Muhammad Aslam' was his paternal-cousin. He has stated that within four/five minutes, of the information, he closed his shop and went to his uncle's house and informed him about the incident. He stated that his statement under section 161, Cr. P. C. was recorded in the police station, wherein he had stated in his way. Dad Muhammad and Habibullah met him and informed about murder of deceased Muhammad Aslam (confronted, no so record). He denied that on the day of incident accused Muhammad Alam and Muhammad Siddique had not come to his shop and informed about the commission of offence.

P.W.7 Dad Muhammad son of Haji Qadir Bakhsh appeared and made similar statement as that of P.W.2 Haibullah. It has been stated that on 10th March, 2001 he was sitting along with Aslam in dairy farm, while Habibullah was with them. Further stated that Siddique came and informed that there is a fault in his electricity, which is not in order and requested to do the repair. Muhammad Aslam went with him saying that he will be back within ten minutes. He stated having waited long but Aslam did not return, thus; they went to the house of Siddique, where womenfolk and children were gathered and there was hue and cry. It was further stated that he saw that accused Ghulam Rasool, Majeed and Muhammad Siddique had caught hold of Muhammad Aslam, while Alam was given axe blows on his head, further stated that they had also seen one lady lying dead. He stated that thereafter he informed Shareef that in the house of Alam, three persons were beating Aslam and then, he returned back to Sibi.

In cross-examination, he stated that deceased Muhammad Aslam was his relative. It was stated that deceased was not employee of WAPDA. He stated that he and Habibullah together had gone to Dhadar. He stated that in connection of some work, he had gone to Aslam. It was stated that Aslam was only doing business of dairy/milk. He stated that at 10-00/10-15 a.m. he went to Aslam. He further stated that son of complainant was sitting with them in dairy farm, voluntarily stated that he was sitting outside the dairy farm. It was stated that the place of incident was situated at a distance of 100 yards from dairy farm. He showed his ignorance that deceased Mst. Marvi was wife of Muhammad Siddique. It was admitted that the place of incident was covered with boundary wall having gate; .many people were gathered at the place of incident. He stated that he is not relative of accused persons, nor he had visiting terms with them. He showed his ignorance that on account of Siah Kari, Muhammad Siddique had killed his wife and Muhammad Aslam. He showed his ignorance that on account of absconsion of accused Muhammad Siddique, present appellant was involved in the case. He stated that after two/three months of the incident his statement was recorded by police. It was stated that soon after the incident, he along with Habibullah left Dhadar for Sibi. He denied that neither he had gone to Dhadar nor he had seen the incident. He denied that he was not eye-witness of the incident, as such, after two/three months of the incident he was named as witness. He stated that he is permanently residing in Sibi. He denied that being relative of complainant, he has made false statement.

P.W.8 Abdul Qadir constable appeared and deposed that on 10th March, 2001, he was posted in Police Station Dhadar. On the report of complainant of the case, F.I.R. was registered and thereafter, D.S.P. and S.H.O. along with other police officials proceeded to the place of incident, where S.H.O. inspected the site and one dead body of a lady was found on the spot. He further deposed that blood-stained earth was taken into possession and the dead bodies of lady and man were shifted to hospital for the purpose of post-mortem. He has also deposed that one axe, ring of lady, one pair of sandles, one pair of ear-rings and blood stained clothes of injured Muhammad Aslam were taken into possession. He had produced site inspection memo. (Exh. P.8/A), recovery memo. of blood-stained earth of deceased lady (Exh. P.8/B), whereby blood-stained earth of lady (Article P.2) along with sample of seal (Article P.3) were sealed in parcel (Article 1). He had also produced recovery memo. (Exh.P.8/C) through which blood-stained earth of injured Muhammad Aslam (Article P.5) along with sample of seal (Article P.6) were sealed in parcel (Article P.4); recovery memo. of crime weapon i.e. axe (Exh. P.8/D) along with sealed parcel (Article P.7) containing axe (Article P.8) and sample of seal (Article P.9) were produced recovery memo. (Exh.P.8/E) along with sealed parcel (Article P.10) containing two pair of sandles (Article P.11) were produced. This witness further produced recovery memo. (Exh. P.8/F) whereby blood-stained clothes of lady (Article P.13) along with sample of seal (Article P.14) were recovered and sealed in parcel (Article P.12), as well as, recovery memo. (Exh. P.8/G) whereby jewels (Article P.16) and sample of seal (Article P.17) were taken into possession and were sealed in parcel (Article P.15), blood-stained clothes of Muhammad Aslam (Article P.19) along with sample of seal (Article P.20) were taken into possession vide recovery memo. (Exh.P.8/H) and sealed parcel (Article P.18) was prepared. He had identified his signatures on the produced exhibits as well as, the articles so produced by him.

In cross-examination, he stated that about 1-00 p.m. they proceeded to the place of incident and reached there at 2-00 p.m. On their arrival at the place of incident, they shifted the dead bodies to hospital where only post-mortem of lady was made, and thereafter they again visited the place of incident. He has stated that blood-stained clothes of lady were taken into possession in Hospital and on bringing her dead body back to her house, her ornaments were taken into possession by the police, however, he did not remember that who had produced said ornaments to police. He admitted that he had not made any identification mark on the recovered articles. He denied that the recovered axe was not stained with blood. It was admitted that edge of axe was sharp and the same did not bear blood-stains. It was stated that, the parcels are prepared on the spot. He has denied that he has made false statement and further denied that the produced articles were produced by complainant of the case in police station.

P.W.9 Doctor Amin Mengal is the head of Medico-Legal Department and Police Surgeon, Sandeman Provincial Hospital, Quetta, who stated that on 10th March, 2001, injured Muhammad Aslam was referred by Medical Officer, Dhadar to Sandeman Provincial Hospital, Quetta. for medical treatment, injured was attended by Doctor Zulfiqar Khoso, who after examination opined in the following terms:--

Injuries

(1) An already dressed and stitched wound was present on the skull.

(2) An already stitched wound present on the chest.

(3) The patient was unconscious, pale and jerking.

X-Ray Skull. Multiple fracture of posterior cranium vault.

It was stated that initially injured was examined and provided medical aid by Medical Officer, Dhadar. It was further stated that injured was admitted into Neuro Surgery Ward, where he expired on 17th March, 2001 in this regard MLC (Exh.P.9/A) was accordingly issued bearing his signatures.????????

In cross-examination, he denied the suggestion that the had not examined the injured. He admitted that he had not produced the relevant record. It was admitted that according to .medical certificate Issued by Medical Officer Dhadar, injuries caused to injured were of hammer .and knife. He denied that injured Muhammad Aslam was notbrought to Casualty Department, Quetta for medical treatment,

P.W.10 Doctor Zulfiqar Khoso, Medical Officer, appeared and deposed that on 10th March, 2001, he 'was posted as Medical Officer, Sandeman Provincial Hospital, Quetta. He had examined injured deceased Muhammad Aslam, who was referred by Medical Officer. Dhadar on 10th March, 2001 at, 5-15 p.m. After conducting medical examination, he had issued medical certificate (Exh.P.9/A).

P.W.11 Zameer Hussain, Sub-Inspector is .the first Investigating Officer, who after registration of case along with. S.D.P.O. and Tehsildar Dhadar proceeded to the place of incident, where in a room Mst. Marvi was dead. He has further stated that from the spot, one axe, sandles of Muhammad Siddique were taken into possession. He had prepared site inspection map (Exit.P.-11/A) and statements of witnesses were recorded. It was stated that Muhammad Siddique and Muhammad Alam were nominated by complainant in the F.I.R. while Ghulam Rasool and. Abdul Majeed were named as accused after recording supplementary statement of complainant (Exh.P.11/B). It was further stated that dead body of Mst. Marvi was handed over to her relatives, while deceased Muhammad Aslam was injured, who was referred to Quetta. He had also taken into possession blood-stained clothes of deceased Marvi and on 29th March, 2001, investigation of the case was handed over to Munir Ahmed, Sub-Inspector. This witness was thoroughly cross-examined, but nothing favourable to appellant was extracted from his statement.

P. W.12 Munir Ahmed Gondal, Sub-Inspector is the second Investigating. Officer, he deposed that on 1st April, 2001, he was posted as S.H.O. Police Station Dhadar and investigation of the case was handed over to him. He stated that on 12th April, 2001, medical certificate of deceased. Mst. Marvi was obtained from Civil Hospital, Dhadar end on 15th May, 2001, present appellant was arrested and after completion of investigation on 25th May, 2001, appellant was…

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