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Petitioner: SHAUKAT ALI VS Respondent: The STATE through Prosecutor-General Punjab and another
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Ch. Abdul Aziz Title: SHAUKAT ALI vs The STATE through Prosecutor-General Punjab and another Case No.: Criminal Appeal No. 484 and Murder Reference No. 126 of 2012 Date of Judgment:2016-11-28 Reported As: 2017 P Cr. L J 1221 Result: Sentence reduced
JUDGMENT
JUDGMENT CH. ABDUL AZIZ, J.---This single judgment shall dispose of Criminal Appeal No. 484 of 2012 filed by Shaukat Ali son of Bilal Baig (against his conviction) and Murder Reference No. 126 of 2012 sent by the learned Sessions Judge, Kasur, for confirmation or otherwise of death sentence awarded to the appellant. Vide judgment dated 09.02.2012, the learned trial court convicted and sentenced the appellant as under:- "Convicted under section 302(b), P.P.C. and sentenced to death on two counts. He was also ordered to pay an amount of Rs.1,00,000/-on two counts as compensation under section 544-A of Cr.P.C., in default whereof he was ordered to undergo six months' S.I. The compensation, if received was ordered to be paid to the legal heirs of the deceased Asif Javed and Surriya Bibi." 2. The instant Murder Reference and connected appeal are arising out of case FIR No.31 dated 12.02,2011 registered under sections 302, 34, P.P.C. at Police Station Ganda Singhwala, District Kasur. The FIR, was registered on the report of real mother of Asif Javed (deceased) namely Mst. Naziran Bibi (PW.8) through written application (Exh.PD). The facts as can be culled from the complaint (Exh.PD) and FIR (Exh.PD/1) are as under:- "I am resident of Mauza Sheikhpura Kohna. My husband Mirza Muhammad Sadiq son of Roshan often remains sick. We are earning our livelihood through labour. Few months ago, my son Asif Javed contracted love marriage with Mst. Surriya Bibi daughter of Bilal. Her brother Shaukat son of Bilal (appellant) was not happy over the marriage of Surriya Bibi and used to give threats of killing her because of which there were strained relations between Asif Javed and Shaukat Ali. Few days prior to the occurrence, Shaukat Ali came to my house and requested to patch up the matter between him and his sister Surriya Bibi and Asif but I did not agree. On 11.02.2011 at about 9:00 p.m.
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Shaukat Ali came to my house and during conversation requested to his elder sister Safia Bibi, who was wife of my elder son Niamat Ali, that Surriya Bibi and Asif be sent with him, he would take them to his mother for resolving the dispute, Asif would be pardoned from his mother and in this way compromise will be effected. Surriya Bibi and Asif along with Shaukat Ali accused proceeded to the house of mother of Suriya Bibi in order to beg pardon. In the way near the house of "Mian Lal in the Pacca Street suddenly Shaukat pointed pistol towards them (Asif and Surriya Bibi). Meanwhile, towards left side in the vacant plot, Sadiq and Muhammad Boota accused were already standing, captured Surriya Bibi and Asif Javed. Shaukat Ali started firing with his pistol which hit on different parts of bodies of my son and daughter in law who fell on the ground being seriously injured. On hearing voice of the fire shots Muhammad Ramzan son of Allah Ditta and Nazir Ahmad son of Muhammad Anwar attracted to the spot. The occurrence was witnessed by me, Muhammad Ramzan and Nazir Ahmad. Asif and Surriya Bibi succumbed to the injuries at the spot. The motive behind the occurrence was that accused Shaukat Ali etc. had committed the murder of Asif Javed and Surriya Bibi because they had contracted love marriage". 3.In pursuance of information furnished by the complainant Mst. Naziran Bibi (PW.8), Mansab Ali SI (PW-10) drafted formal FIR (Exh.PD/1). Subsequent thereto, Mansab Ali SI proceeded to the crime scene for the purposes of investigation and conducted the spot inspection and from there he secured six empties of .30 bore pistol vide recovery memo (Exh.PF). He also secured blood-stained earth from two places vide recovery memos (Exh.PE and Exh.PH) respectively. Similarly, after having done other formalities, the dead bodies of the deceased namely Asif Javed and Surriya Bibi were forwarded to hospital for the purposes of postmortem examination. During the course of investigation, appellant Shaukat Ali was arrested on 07.03.2011, whereafter, in police custody he made a disclosure and led to the recovery of pistol, which was taken into possession by Investigating Officer vide recovery memo Exh.PI. For the purposes of getting the expert opinion, the crime empties and the pistol were forwarded to Forensic Science Laboratory on 28.02.2011 and 12.03.2011, respectively. These tasks were assigned to Muhammad Aslam 708-C (PW-4). After the conclusion of investigation, the report under section 173, Cr.P.C. was submitted in the trial court, where on 21.04.2011, the appellant along with his co-accused Muhammad Sadiq son of Bilal and Muhammad Boota son of Abdul Aziz (since acquitted) were charged under sections 302, 34, P.P.C. to which they pleaded not guilty and claimed trial. 4.In order to bring home the guilt of the appellant and his two co-accused (since acquitted), the prosecution mainly relied upon ocular account, medical evidence, motive-and the recovery of .30 bore pistol. In addition, the reports of Chemical Examiner (Exh.PM and Exh.PN), report of Serologist (Exh.PO) and the report of FSL (Exh.PQ) were also tendered in evidence under section 510, Cr.P.C. 5.The evidence of ocular account was furnished by complainant Naziran Bibi (PW.8) and Nazir Ahmed (PW.9). Naziran Bibi (PW.8) when appeared before the trial court, she deposed as under (reproduced in verbatim):- "My son Asif Javed contracted love marriage with Mst. Suriya Bibi sister of accused Shaukat. Shaukat accused used to extend threats to my son. 5/7 days before the murder, accused Shaukat came to me in my house and requested me to patch up the matter with his sister and her husband. I did not agree to the request. On the day of murder accused Shaukat again came in my house and met her elder sister namely Safia Bibi who is wife of my elder son namely Niamat and requested them to send both Suriya and Asif to her mother for resolving the matter. Then he took his sister and Asif along with and when they reached near the house of Mian Lal, where Boota and Sadiq accused emerged. Both Sadiq and Boota caught hold of both the persons whereas Shaukat accused fired on both of them. I, Nazir and Ramzan witnessed the occurrence. Thereafter accused persons made good their escape and we reached on the dead body and raised the alarm. Where we went to police station and gave an application Ex.P-D. I thumb marked the application. On that
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application police lodged a formal FIR." Nazir Ahmed, while appearing as PW-9 supported the version of the complainant (PW-8). 6. The medical evidence was furnished by Dr. Hafeezullah Mamon (PW-5) and Dr. Muneeza Taseer (PW-6). Dr. Hafeezullah Mamon (PW.5) on 12.02.2011 at 4:00 p.m., conducted the postmortem examination on the dead body of Asif (deceased) and observed following injuries:- 1-AEntry wound, a lacerated wound 1 x 1 cm at left side of back of his skull, 11 cm from left ear tragus. Blackening was present, margins were inverted. 1-BExit wound, a lacerated wound 1-1/2 x 1 cm at the outer side of right eyebrow, margins were everted. 2-AEntry wound, a lacerated wound 1 x 1 cm at left side of chest middle part, 7 cm from left nipple, 12 cm left axilla, blackening was present, margins were inverted, 2-BExit wound, a lacerated wound 1-1/2 cm x 1-1/2 cm at right side of chest, 10 cm from right nipple, 12 cm from right axilla, margins were everted, 3-A. Entry wound a lacerated wound 1 x 1 cm at left side of abdomen, 2 cm from left anterior superior iliac spine, 12 cm from umbilicus, blackening was present, margins were inverted, 3-B. Exit wound, a lacerated wound 1-1/2 cm x 1 at right lumber region 7 cm from midline back side, exit wound. According to the opinion of the doctor, the deceased died due to excessive haemorrhage and shock caused by injuries to both lungs, liver, intestine which was sufficient to cause death in ordinary course of nature and that all the injuries were ante-mortem in nature and caused by firearm. The probable time between injury and death was immediate and between death and postmortem was within 12-24 hours approximately. Dr. Muneeza Taseer (PW-6) on 12.02.2011 at 1:30 p.m., conducted the postmortem examination on the dead body of Surriya Bibi (deceased) and noted the following injuries:- 1-AEntry wound 0.5 x 0.5 cm on the right side of neck, blackening around the wound margins present. 1-BAn exit wound 1 x 1 cm on the back left side, 8 cm,from the top of shoulder, 2-AAn entry wound 0.5 x 0.5 cm on the left breast, .14 cm below left clavicle, blackening around the wound margins present, 2-BAn exit wound 1 x 1 cm on the right side of back, 6 cm from midline. 3-AAn entry wound, 0.5 x 0.5 cm on the left arm near elbow joint blackening around the margins present, 3-BAn exit wound 1 x 1 cm on the left arm near elbow joint, 3-A and .3-B are 4 cm apart. 4-AAn entry wound, 0.5 x 0.5 cm on the outer part of left leg, 8 cm from knee. Blackening present. 4-BAn exit wound 1 x 1 cm above knee on the anterior of left leg. 5-AAn entry wound 0.5 x 0.5 cm on the outer part of left leg, blackening around wound margins present. 5-BAn exit wound 1 x 1 cm on the inner part of lower leg below knee joint. 6. An incised wound 4 x 1 cm on the forehead and frontal part of skull right side, bone exposed. According to the doctor, the cause of death in this case was due to excessive haemorrhage and shock due to injuries to vital organs, heart, right lung which is sufficient to cause death in ordinary course of nature; all injuries were ante-mortem and were caused by firearm except injury No.6 which is caused by sharp edged weapon and that the probable time between injury and death was within few minutes and between death and postmortem was about 12-24 hours. 7.The recovery of the pistol .30 bore was witnessed by Nazir Ahmed (PW-9), who deposed precisely that after 24/25 days of the occurrence, Shaukat Ali (appellant) while on physical remand, made a disclosure and led to the recovery of pistol .30 bore (Exh.P1), which was taken into possession vide
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recovery memo Exh.PI. 8.Learned trial court examined appellant, Shaukat Ali under section 342, Cr.P.C. In response to question No 2, the appellant replied as under (reproduced in verbatim):- "It is incorrect. No love marriage was contracted between Asif and Surriya Bibi deceased, in fact, Mst. Naziran Bibi demanded the hands of Mst. Surriya Bibi for marriage with her son namely Asif from me as Mst. Naziran Bibi complainant was my relative. Therefore, I promised to ponder over the proposal and to consult the same with my elders but meanwhile, without waiting our answer Asif deceased with the connivance with the Mst. Naziran Bibi abducted my sister Mst. Surriya Bibi. Both Asif and Surriya ran away from the village and their whereabouts were not traceable. Before few days of the present incident, the family members of Mst. Naziran Bibi and our elder joined their heads together and on the request of the, parents of Asif deceased a compromise was effected to the effect that Mst. Surriya Bibi was to be returned to her parents and after a few days, the parents of Surriya Bibi after making arrangement for dowry articles, on receiving the Baarat make Rukhsati of Surriya Bibi with Asif deceased and on this compromise Asif deceased brought Surriya Bibi in the village. The story of threats is totally baseless so far as the remaining part of question regarding my arrival in the house of Mst. Naziran Bibi and making contact with my elder sister namely Saffiya Bibi is concerned. The story is totally false and concocted. I never went to the house of Mst. Naziran Bibi and met with my elder sister namely Saffiya Bibi on the alleged day of occurrence. It is also incorrect that I took Asif and Surriya from the house of Mst. Naziran Bibi for bringing them to my mother for resolving the matter. Rather it is unnatural. No real relation of Asif in the stated circumstances would allow Asif and Mst. Surriya Bibi to alone accompany me for resolving the matter in their house. The remaining story is all false and concocted one neither Mst. Naziran Bibi nor the witnesses produced by the prosecution were present at the spot. So far as, the story of catching hold of both the deceased is concerned, it is all false. According to the post mortem of both the deceased both the deceased persons were having multiple entry and exit wounds on their person. Had they been caught by any other person as stated by the PWs, they would have sustained bullet injuries themselves. None of the alleged PWs are resident of the street where the alleged occurrence have been stated to have occurred. The natural witnesses have been shut by the prosecution. What to speak of producing the real witnesses, none of them were joined in the investigation in order to bring out the real facts". Similarly in response to question "why this case against you and why PWs deposed against you", the appellant replied as under:- "Ramzan PW is married with Mst. Aasia Bibi daughter of Mst. Naziran Bibi complainant. Whereas Nazir PW is real son of the Dever of Mst. Naziran Bibi namely Muhammad Anwar. Thus all the three alleged PWs are not only related inter se but they are also inimical towards me. The I.O. while conniving with the complainant party conducted preliminary investigation at the spot and while suppressing the real facts fabricated a false story. None of the alleged PWs resides near the alleged place of occurrence. They were .also not present at the time of actual happening. Both Asif and Surriya Bibi came in the village in consequences of the result of compromise and according to the compromise, Mst. Surriya Bibi was to be restored to her parents and after making arrangement for dowry articles after some time with the mutual consent of the parties Rukhsati was to be effected. But as both the deceased were having contacts on mobile phones to contact each other on the night of 11.2.2011, Asif deceased late night came in my house and I saw both Asif and Surriya in compromising position when Asif was having no shirt or Buniyan on his person. On seeing them, I rebuked them at this Asif pulled out his pistol P-7 and tried to make fire on me. A scuffle started between me and Asif and we came in the street at some distance. I was apprehending danger to my live even at that time and in the scuffle, I became successful in getting the hold on the pistol P- 7. Mst. Surriya Bibi deceased my sister also tried to help Asif deceased in the process and I while
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due to Ghariat grave and sudden provocation and in order to save my life, I made direct firing on Asif and Surriya Bibi. Had I not acted so by overpowering me deceased Asif would have murdered me. Muhammad Saleem Baig our neighbourer was the first person who came there and in his presence, I while saying that I am going to the police station went straight to the PS where the I.O. Mansab Ali was present. I apprised him regarding the real facts and also produced pistol P-7 which I snatched from Asif deceased. None of the eye witnesses were present and my co-accused Sadiq and Boota also were ignorant regarding the happening on the night of 11.2.2011. They have been involved in this false case due to relation with me. I am innocent and I am bearing the agony of this protracted trial since 11.2.2011". 9. The appellant also opted to appear as a witness in his own defence and while appearing as DW- 1 deposed as under:- "My father died 10/12 years before whereas my mother is alive. We are three brothers and five sisters. Saffiya Bibi my sister is married with Niamat son of Mirza Sadiq Baig and Naziran Bibi complainant three years ago. Surriya Bibi deceased was younger than Mst. Saffiya Bibi my sister. Naziran Bibi complainant demanded the hands of Mst. Surriya Bibi in marriage with Asif deceased from me. I replied that after consultation with the other relative, I shall reply the said proposal. After a few days, Mst. Naziran Bibi got my sister Surriya Bibi (deceased) abducted through Asif deceased for six months we were not knowing their whereabouts. Due to the relationship and family honour none of us got registered case of abduction against Asif deceased. Thereafter Mst. Naziran Bibi floated proposal for compromise and a Punchayet was convened and it was decided that the couple should return to the village and on their return Mst. Surriya Bibi will be handed over to us and after making preparation for her dowry articles her Rukhsati would be done by us and on the return of the couple Mst. Surriya Bibi was returned to us few days before the. occurrence. On 11.2.2011, at about 9:00/10:00 p.m. when I woke up to make urine, I heard some noise from the adjoining room and I went to that room and saw Mst. Surriya Bibi and Asif in objectionable condition. After seeing them, in objectionable condition I flared up and started abusing them. He brought out a pistol and pointed it towards me. On gathering courage, I started grappling with him and during the scuffle, we came in the street. Meanwhile, Mst. Surriya Bibi also chased us in order to help Asif deceased. I succeeded in snatching the pistol from Asif deceased and fired on both Asif and Surriya Bibi. Had I not done so, Asif would have killed me. I fired on Surriya Bibi and Asif in order to save myself and due to "Ghairat". At that time Sadiq and Boota co-accused were not present. Naziran Bibi, Ramzan and Nazir were not present. Mirza Saleem Baig was the first person, who was neighbourer and who came there. I apprised him regarding the occurrence and thereafter, I went to P.S. Ganda Singh Wala and appeared before Mansab SI. I apprised him regarding the true facts and also produced the santched pistol from Asif deceased. Mansab SI was connived with the complainant party and he instead of recording my statement called Mst. Naziran Bibi fabricated false story and got me challaned in this false case. I am innocent". Mirza Saleem Baig (DW-2), who is stated to be a resident of the same street, where this unfortunate occurrence took place, corroborated the defence version of the appellant. 10. After the conclusion of trial, the learned trial court convicted and sentenced the appellant Shaukat Ali, as afore-stated and proceeded to acquit Muhammad Sadiq and Muhammad Boota, hence the instant appeal and Murder Reference. 11. The learned counsel for the appellant contended that:- i.the occurrence took place at 09:00 p.m., whereas the matter was reported to police at 02:15 a.m. and this delay in lodging the FIR remained unexplained; ii.the ocular account was furnished by PW8 and PW-9, who are chance witnesses; iii. in the motive remained unproved, which itself is a mitigating circumstance; iv.the prosecution, has not come forward with the true facts and the FIR was got registered while
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concealing the real circumstances; v.the prosecution opted not to challenge the acquittal of Muhammad Sadiq and Muhammad Boota, hence, the evidence, which is disbelieved to their extent can be of no help to maintain the conviction of the appellant. 12. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently controverted the arguments advanced by the learned counsel for the appellant and submitted that:- i. the instant case is of a promptly lodged FIR, wherein the specific role is assigned to the appellant; ii. though three persons were nominated in FIR, but the appellant was the only person, who was attributed the role of causing injuries on the bodies of the two deceased; iii. the case of the prosecution is supported and corroborated by the medical evidence as well as from the recovery of .30-bore pistol, coupled with the positive report of FSL. 13.Arguments heard and record perused with the able assistance of the learned counsel for the parties. 14.The case of they prosecution, so to speak primarily, hinges upon the ocular account furnished by Naziran Bibi (PW. 8) and Nazir Ahmed (PW.9) and the medical evidence furnished by Dr. Hafeezullah Mamon (PW-5), lady Dr. Muneeza Taseer (PW-6) and the recovery of pistol witnessed by Shaukat Ali (PW-7). The prosecution sought corroboration from the motive and the report of Forensic Science Laboratory (Exh.PQ). 15.The motive as set up by the prosecution was stated to be the love marriage of Mst. Surriya Bibi deceased (sister of the appellant) with Asif Javed deceased, which was contracted contrary to the wishes of the appellant. During the course of trial, the prosecution brought no evidence on record to prove the marriage of Surriya Bibi and Asif Javaid. Though the prosecution produced evidence at liberty but surprisingly neither the Nikahnama of the unfortunate couple was ever brought on record nor any witness of the Nikah was produced. Similarly, the date and place of Nikah or the name of the Nikahkhawan was also not brought on record. If at all, the motive as set up by the prosecution was having some shred of truth, it could very easily be proved on the basis of above mentioned evidence. Saffiya Bibi, real sister of deceased Surriya Bibi and the appellant was married with the elder brother of deceased Asif Javed namely Niamat. There is an admission on the part of PW-8 that Sarriya Bibi is still alive and also living with her (complainant) but she was not produced as a witness in order to prove the motive. The importance of Saffia Bibi can well be gauged from the fact that even according to the statement of Naziran Bibi (PW-8) on the eventful night, the ill-fated couple left the house in the company of the appellant with her blessing. The husband of the complainant namely Muhammad Sadiq and her son Niamat (husband of Saffia Bibi), who were also residing in the same house, were also not produced either during the course of investigation or at trial stage. Admittedly these witnesses were having cordial relations with the complainant and were residing in the same house and in this context their presence could easily be secured by the complainant. Moreso, the marriage of the deceased-couple could also easily be proved through Nikah Nama and Nikahkhawan but no such effort was made by the prosecution neither at the stage of investigation nor during the trial. From this failure the only inference which can be drawn by this Court is in consonance with Article 129, illustration (g) of Qanun-e-Shahadat Order 1984, which reads as under:- 129. <b>Court may presume existence of certain facts.</b> The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case. <b>Illustrations</b> The court may presume:
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(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The Hon'ble Supreme Court of 'Pakistan in the case of Muhammad Rafique and others v. State and others (2010 SCM R 385) held as under:- "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution". 16. The failure to establish motive as set out in FIR is a factor, which goes against the prosecution. The prosecution, though is not obliged to prove the motive in each and every case, however, once the motive is setup then it must be established. The guidance in this respect can be sought from the judgment of the Hon'ble Supreme Court of Pakistan reported as Noor Muhammad v. The State and another (2010 SCM R 97):- "Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence". In the case of Muhammad Bux v. Abdul Aziz and others (2010 SCM R 1959), the Hon'ble Supreme Court of Pakistan observed as under:- "In this case, motive is an important fact, which has not only been alleged in the FIR but the evidence has been led. The said motive has not been relied upon by the trial Court and the High Court as the prosecution failed to prove the same. In such a situation, the Court should be very careful in accepting prosecution story and the evidence of such witnesses who not only gave evidence on motive and incident should be accepted with great caution." 17. A wade through the testimony of Naziran Bibi reflects that she being the resident of vicinity and in normal circumstances can be…
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