Full Judgment Text & Judicial Ruling

2011 Y L R 1871 [Lahore] Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ MUHAMMAD SIDDIQUE---Appellant Versus THE STATE---Respondent

Criminal Appeal No. 1734 of 2000, heard on 8th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 346---Qatl-e-amd, attempt to commit qatl-e-amd, wrongful confinement in secret---Appreciation of evidence---Accused persons allegedly committed qatl-e-amd of the deceased complainant and her husband by locking in and torching the room they were asleep by digging a hole into the roof top of the room and throwing down kerosene oil and burning pieces of cloth through that hole---Deceased complainant had nominated the accused and his acquitted co-accused in her statement recorded in hospital and incorporated into F.I.R., but doubt remained as to the ability of the deceased to see the accused persons through hole in ceiling after they had been set on fire---Digging carried out by the accused could produce noise alarming the eye-witnesses asleep on a nearby roof---Question remained as to why eye-witness produced by the prosecution did not act promptly to break open the lock before fire burnt the deceased alive---Prosecution alleged that the accused harboured grudge against the deceased, his real brother, for a gift of land made by their father in favour of the deceased but no documentary evidence was produced regarding said gift to establish the allegation---Statement of the solitary prosecution witness was not corroborated by testimony of two other eye-witnesses which were withheld and given up by prosecution---Medical officer was not produced as witness to establish that the deceased complainant was fit for recording statement, neither the statement of the Investigating Officer revealed that he obtained the opinion of Medical Officer in this regard---Trial Court did not appreciate the evidence properly---Statements of the complainant and the eye-witness were highly dubious and contradictory---Motive attributed to the commission of offence could not be believed---Recovery of the rifle was inconsequential for the case of prosecution as no fire-arm injuries were found on the bodies of the deceased---Trial Court acquitted two co-accused charged with the same offences without distinguishing their case from that of the accused/appellant---Impugned judgment suffered from non-reading and misreading of evidence---Conviction and sentence awarded to the accused was set aside and he was acquitted of the charges---Death sentence was not confirmed, murder reference was answered in the negative. Rao Abdul Jabbar Khan for Appellant. Ahsan Rasool Chattah, D.P.-G. for the State. Date of hearing: 8th April, 2010.

JUDGMENT

SHAHID HAMEED DAR, J.---This criminal appeal is directed against the judgment dated 14-11-2000 passed by learned Additional Sessions Judge/Special Judge Suppression of Terrorist Activities, Kasur, whereby, the appellant was found guilty under section 302(b), P.P.C. and was convicted/sentenced to death, with payment of compensation of Rs.50,000 on each count to legal heirs of Muhammad Haneef deceased and Mst. Salma Bibi deceased. He was also found guilty under section 346, P.P.C. and sentenced to 7 years' R.I and fine in the sum of Rs.25,000, in case of default, one year's S.I. and was convicted/sentenced under section 324, P.P.C. as well, with seven years' R.I and fine in the sum of Rs.25,000 on each count and in default payment of fine, to undergo one year's S.I. while his co-accused Muhammad Sharif and Mst. Maryyum Bibi were extended the benefit of doubt and acquitted from the aforementioned charges. 3. As benefit of section 382(b), Cr.P.C. was not extended to the appellant/convict, hence, it does not find mention in the impugned judgment. 4. Briefly stated, the facts of the case, as mentioned in the complaint Exh.PF, are that Mst. Salma Bibi, her husband Muhammad Haneef and their children Waqas and Amaar slept in a room of their residential house at the night between 5/6 July, 1996. Mst. Salman Bibi and others got up on hearing the sound of fall of some tile bricks and earth inside the room from the roof top, at about 12-30 a.m. they had hardly awoken when kerosene oil and some burning clothes fell in the room through a hole in the roof, due to which, the room caught fire, they raised hue and cry and attempted to open the door which was bolted from outside; in the meanwhile, the accused made two fire shots through the same hole. The report of firing with shrieks of Mst. Salma etc. her maternal cousin (Mamonzad) Muhammad Latif and her brother Muhammad Aslam broke open the lock and opened the door of the room but her husband and children had been badly burnt; Muhammad Aslam, and Muhammad Latif witnessed, Muhammad Sharif, Muhammad Siddique and Mst. Maryan Bibi setting the room ablaze from the roof top and firing inside the room; on arrival of the co-villagers at the spot, the accused ran away, who were also accompanied by an unknown person. The motive behind the occurrence was that father-in-law of Mst. Maryam Bibi, namely, Ibrahim had transferred one acre of agricultural land in the name of husband of the complainant due to which Sharif and Siddique etc. usually quarreled with husband of Mst. Salma Bibi and due to this grudge they committed the occurrence with intent to commit murder; Muhammad Haneef, the husband of Mst. Salman Bibi complainant died due to burns in the Hospital at Lahore. 5. Mst. Salma Bibi also died of the burns, 3/4 days after the occurrence but her statement/complaint Exh.PF was recorded by Muhammad Rafique Khan A.S.-I., P.W.11 at Mayo Hospital, Lahore, before her death, on 6-7-1996. 6. Muhammad Siddique appellant was arrested on 29-7-1996 by Muhammad Sharif S.-I./S.H.O., P.W.9 who on his disclosure lead to the recovery of rifle P-14 with 12 live bullets P-15/1-12 on 3-8-1996 which were taken into possession vide recovery memo. Exh.PE. After conclusion of investigation, report under section 173, Cr.P.C. was submitted for trial of the appellant/convict. 7. On commencement of the trial, the accused/appellant was indicted, he pleaded not guilty to the charge and claimed trial, whereafter, the prosecution was ordered to produce its witnesses/evidence. 8. In order to substantiate their accusations against the accused, they produced following witnesses. 9. Muhammad Ikram F.C No.325, as P.W.1 who deposited the sealed parcel of rifle in the office of Forensic Science Laboratory, Lahore on 20-8-1996. 10. P.W.2 Muhammad Jamil A.S.-I. was posted as Moharrer on 3-8-1996 who was handed over a sealed parcel said to contain rifle, he kept it in Malkhana of the Police Station intact and handed the said parcel to Muhammad Ikram constable, P.W.1 for transmission to the office of Forensic Science Laboratory, Lahore. 11. P.W.3, Muhammad Akram, 857/HC was Moharrer at Police Station Khudian on 6-7-1996, who received a complaint Exh.P.W.3/1 sent by Muhammad Rafique A.S.-I., P.W.1, correctly recorded formal F.I.R. Exh.P.W.3/2 without any addition or omission. 12. P.W.4, Muhammad Nusrullah, the draftsman prepared the site plan in the scale of 1 inch equal to 20 ft, Exh.PA and Exh.PA/1. 13. P.W.5 Ghulam Shabbir HC was handed over the deadbody of Muhammad Haneef for its postmortem examination, escorted the same to DHQ, Hospital, Kasur along with Liaqat Ali, 696/C. After postmortem examination of the deadbody, the Doctor handed over to him last worn clothes of the deceased Shalwar P-1, which was taken into possession by the I.O. vide recovery memo. Exh.PC. He also got postmortem examination conducted of the dead body of Mst. Salman Bibi on 11-7-1996 and after postmortem examination of the dead body last worn clothes of the deceased Shalwar P-2, Dopatta P-3 were handed over to him which were taken into possession by the Investigating Officer vide recovery memo. Exh.PC. 14. P.W.6 Muhammad Ashiq deposed that the I.O. visited the place of occurrence and took into possession one empty gallon P-4, a half filled gallon with kerosene oil P-5, burnt pieces of clothes of Mst. Salman Bibi P-6, burnt pieces of bed P-7, one Khurpa P-8, one lock P-9, four pieces of tiles P-10/1-4, one match P-11, one brick P-12 and two empties of rifle .7 M.M P13/1-2, vide recovery memo. Exh.PD, attested by him and other P.W. 15. P.W.7 Muhammad Aslam deposed about the details of occurrence, claiming himself to be an eye-witness and stated that he had witnessed Siddique accused armed with rifle, Sharif accused having a gallon in his hand and a Khurpa and Maryyum Bibi being possession of clothes and one unknown person at about 12-30 a.m. (midnight), who, set on fire the room wherein Haneef and his wife were sleeping along with their children by making a hole in the roof of the room; he further deposed that the room was locked from outside which was broken open by him along with other Haneef, Mst. Salman Bibi and their children were brought out of the burning room and by that time Haneef, his wife Salma and their children had been burnt to 3rd degree who, were shifted to DHQ, Hospital, Kasur, where the Medical Officer Dr. Abdul Rauf, P.W.13 referred them to Mayo Hospital, Lahore, they were shifted there and admitted as indoor patients; he further deposed that his brother-in-law Haneef succumbed to the burns/injuries at Mayo Hospital, Lahore and 3/4 days thereafter, Mst. Salma also succumbed to the injuries. He identified both the dead bodies at the time of the autopsy; he deposed about the motive in line with one, mentioned by Mst. Salman Bibi deceased. 16. P.W.8 Basheer Ahmad deposed that accused/convict Siddique made a disclosure qua the weapon of offence being in police custody, on 3-8-1996 and led to the recovery of a rifle P-14 and 12 live bullets P-15/1-12 from a sugarcane field which were taken into possession by the I.O. vide a recovery memo. Exh.PE. 17. P.W.9 Muhammad Sharif S.-I./ S.H.O., arrested Muhammad Siddique accused/appellant and his co-accused Mst. Maryam on 29-7-1996. He got physical remand of Muhammad Siddique appellant and recovered the aforementioned rifle and live bullets on his disclosure on 29-7-1996. He concluded the investigation in this case and submitted challan/report under section 173, Cr.P.C. for trial of the accused. 18. P.W.10 Nazeer Ahmad, 492/HC, Moharrer deposed that he handed over the sealed parcel containing empties to Muhammad Ameen 1089/C, P.W.12 for transmission to the office of Forensic Science Laboratory on 23-7-1996 intact. 19. P.W.11 Muhammad Rafique Khan A.S.-I. is the first Investigating Officer of this case who recorded the statement of Mst.Salman Bibi (deceased) in injured condition at Mayo Hospital, on 6-7-1996 which is Exh.P.W.3/1/Exh.PF, read it over to her, which was marked by Mst. Salman Bibi with her right big toe as her both hands including thumbs were badly burnt and got F.I.R. recorded on the basis of this statement; he prepared the inquest report Exh.PG qua Haneef deceased and after handing over his dead body to Ghulam Shabbir 249/HC and Liaqat Ali 696 HC for postmortem examination, reached the place of occurrence, inspected the spot, recorded the statements of the persons gathered there, took into possession two crime empties P-13/1-2 and other aforementioned articles through recovery memo. Exh.PD, secured last worn clothes Shalwar P-1 of Haneef deceased vide recovery memo. Exh.PB, prepared the inquest report Exh.PH of Mst. Salman Bibi deceased on 10-7-1996, sent her dead body to the mortuary for postmortem examination which was so done on 11-7-1996 and after the postmortem examination of her deadbody, the Investigating Officer took into possession her last worn clothes Shalwar P-2, Dopatta P-3 through recovery memo. Exh.PC; he got prepared the scaled site plan Exh.PA and Exh.PA/1 at the hand of the draftsman Muhammad Nusrullah, P.W.4, thereafter the investigation was entrusted to Muhammad Sharif S.-I., P.W.9. 20. P.W.12 Muhammad Ameen 1089/C transmitted the sealed parcel of crime empties, in the office of Forensic Science Laboratory, on 23-7-1996. His statement was not followed by any cross-examination. 21. Learned ADA closed the prosecution evidence on 19-10-2000 after tendering in evidence report of Forensic Science Laboratory Exh.PR. 22. At the end of prosecution evidence, the appellant was examined under section 342, Cr.P.C, wherein he denied all the charges against him and contended that the deceased Muhammad Haneef was a kerosene oil dealer who used to have the same in small container in a room of his house where he along with others slept on the fateful night; he further contended that deceased Muhammad Haneef was a habitual smoker who threw a butt of the cigarette lying on the bed which on contact, with kerosene oil caught fire and within no time, the flaming fire reduced everything, present in the room, to ashes and caused bad burns on the bodies of the deceased etc. He further contends that father of Haneef deceased refused to lodge a false report, as he was aware of the real incident. He further contends that he was employee in a Garment Factory at Hanjarwal, Lahore and on the day of occurrence he was present at the place of his job; that Muhammad Latif and Sharif eye-witnesses refused to support the false prosecution version so they have not been produced by the prosecution at trial; that Muhammad Aslam, the only alleged eye-witness, produced by the prosecution is the real brother of Mst. Salma deceased who deposed falsely to cause them ruination. 23. The appellant did not opt to give statement on oath nor produced any witness in defence. 24. On conclusion of the trial the learned Special Judge Suppression of Terrorist Activities court, Kasur found the appellant guilty and convicted/sentenced him in the aforementioned terms. 25. The learned Special Judge of S.T.A., Kasur has forwarded Capital sentence Reference No. 1-T of 2000 for confirmation of conviction and sentence of death awarded to accused Muhammad Siddique and we intend to decide both S.T.A. Reference No.1-T/2000 and Criminal Appeal No.1734 of 2000 through this single judgment. 26. The learned counsel for the appellant has vehemently contended that the prosecution could not produce any evidence to substantiate their charges against the appellant and yet, the learned trial Court through its impugned judgment, has awarded capital punishment to the appellant without any just cause and rational arguments; that the alleged dying declaration, as contained in complaint Exh.PF cannot be given any weight or read against the appellant, as, the requirements of law qua recording dying declaration have not been fulfilled nor it bore any certificate from the Medical Officer of Mayo Hospital, Lahore, endorsing the authenticity of the statement, allegedly made by Mst. Salma Bibi deceased; that the version contained in the alleged dying declaration is preposterous and does not fit in attending circumstances of the case; that Mst. Salma Bibi deceased, her husband and two minor children were not in a position to see as to who was standing on the roof top, causing the hole in the ceiling, showering kerosene oil through the hole and dropping lit clothes and match box inside the room where both the deceased were asleep; that the alleged presence of the eye-witnesses Muhammad P.W.7 at the place of occurrence at the relevant time cannot be believed as he is the resident of village Dhings Shah which is at a distance of 2/2-1/2 k.m from village Rodhy (the village of occurrence) and he happens to be a chance witness who failed to disclose the purpose of his visit to the house of his real sister Mst. Salma Bibi, on the day of occurrence; that the conduct of Muhammad Aslam, P.W.7 during the course of occurrence reflects upon the sanctity of his testimony as he claims to have witnessed the appellant and his co-accused digging the roof of the room with a Khurpa, making a hole in it, sprinkling kerosene oil through a hole, dropping burning clothes inside the room through a hole, setting the room ablaze and causing the bodies of Mst. Salman bibi and her husband burnt yet, he, instead of raising alarm, silently watched prolonged act of the accused including the appellant and only after no probability of the life of Salma Bibi and her husband was left he along with others broke open the lock of the room to save the burning bodies; that the F.I.R./dying declaration does not inspire confidence at all nor it does establish the identity of the real perpetrators of the crime; that the appellant has not committed any offence at all and he has been dispatched to death cell by the learned trial Court through the impugned judgment which suffers from non-reading and misreading of the evidence. 27. Learned Deputy Prosecutor-General has supported the impugned judgment and contends that in her dying declaration Mst. Salman Bibi deceased had categorically nominated the appellant to have committed a gruesome and callous act by torching the room wherein both deceased along with their children were sleeping; that the rifle .7 MM recovered at the instance of the accused/appellant was found matched with two crime empties, vide Forensic Science Laboratory report Exh.PR; that the impugned judgment does not suffer from any element of capriciousness, arbitrariness or foolishness of the argument. 28. We have carefully considered the contentions put forth by both the parties' learned counsels. According to the prosecution case, deceased Mst. Salman Bibi recorded her statement Exh.PF before Muhammad Rafique Khan A.S.-I., P.W.11 on 6-7-1996 when she was admitted in the Mayo Hospital, Lahore as injured patient and nominated the appellant as well as his acquitted co-accused to have committed the occurrence but the fact remains that she, her husband or her children, having slept inside the room were not in a position to see through a dug out hole in the roof top as to who was there on the roof around the said hole, as her husband, her children and she herself had caught fire. 29. According to the complaint Exh.PF, the real brother of the complainant, Muhammad Aslam, P.W.7, her maternal cousin Muhammad Latif, had witnessed Muhammad Sharif, Muhammad Siddique appellant and Mst. Maryan Bibi digging a hole in the roof of the room and setting the said room on fire by sprinkling oil and dropping lit clothes inside the room through the said hole. The inimical act of the accused must have lasted for quite some time. To dig a hole in the roof by means of a Khurpa could not be done within a minute or two as the accused did not have with them any mechanical device to hasten their crime, without causing any noise. The manual act done either by the accused or by any other person could have caused alarm to Muhammad Aslam, P.W.7 and his companion Muhammad Latif who slept on a nearby roof but strange enough, they failed to notice the sound of repeated hurling of Khurpa in the roof, by the accused nor they could notice the presence of the persons standing on the roof top, waiting for a hole to appear, to do the rest. 30. There are two possibilities about the presence of a hole in the roof of the room of occurrence, one, that it had been done by the accused much earlier then the night of the occurrence, or it was dug at the time of occurrence; if the hole had been caused in the roof much earlier then, it must have been noticed by the deceased at the time, they went to their bed. 31. It is a fact of common observance that while lying supine the eyes are always upwards and if any tampering had been done, with a through and through hole, in the roof, it could at escape the vision of the person lying underneath the roof. If Muhammad Haneef, Mst. Salman Bibi and their two children had gone to their beds in the room of the occurrence and they did not make any complaint or they did not leave that room it indicates that every thing was normal and there was no hole in the roof at that time which, had surely been dug after they slept. 32. A question arises what would Muhammad Aslam, P.W.7 and other P.Ws. wait for till everything stood gutted and the bodies of the deceased and that of the children were badly burnt, before they decided to broke open the door? 33. The deceased Muhammad Haneef and the appellant are real brothers inter se, who lived in two separate houses but, adjacent to each other. The alleged motive relates to transfer of one acre of agricultural land to Muhammad Haneef deceased by his father Ibrahim which according to Muhammad Aslam, P.W.7 was a bone of contention between the two brothers. No mutation or transfer deed has been submitted by the prosecution during the trial to establish the fact of transfer of the suit land in the name of Muhammad Haneef deceased. Muhammad Aslam, P.W.7, however, has admitted in cross-examination that Ibraheem, father of the appellant had gifted one acre of land to Muhammad Haneef with the consent of the accused/appellant. It being so, the factum of grudge to the appellant is hardly believable. No documentary evidence has been led by the prosecution to fortify the allegation which could show that the two brothers had heart burning or bias against each other or that some enmity existed between them which allegedly culminated in the unfortunate incident. 34. Naturally, Muhammad Ibraheem, the father of the deceased has been shown by the prosecution to have greater love and affection for his son Muhammad Haneef deceased because of the aforementioned gift of one acre of land to him. He was the resident of the same house and there could not be any other person than him to be more knowledgeable about the real facts of the occurrence. Had there been any substance in the allegations levelled in the F.I.R. or in the testimony of Muhammad Aslam P.W.7 Muhammad Ibraheem, was the best prosecution witness in the attending circumstances of the case to prove the allegation against the appellant/accused. Muhammad Aslam P.W.7 took the dead body of Muhammad Haneef deceased to his village instead of letting it be buried in village Rodhy, the village of occurrence, gives rise to a strong suspicious as to the credentials of the said P.W. It appears to have been done against the wishes of the father of the deceased as he did not opt to be a witness of the story, and masterminded by P.W.7 who at the best, as discussed earlier, is a chance witness, whose statement has to be analyzed and scanned with utmost care and caution. The best corroboration to his statement would have been the deposition of the other alleged eye-witnesses Muhammad Sharif and Muhammad Latif but both of them were withheld by the prosecution and were given up as having been won over by the accused without any proof in this regard. The solitary statement of P.W.7 does not stand corroborated by the statement of any other alleged eye-witness though, Muhammad Latif P.W. was real maternal cousin of the deceased and a resident of the same village like that of Muhammad Aslam P.W. 35. According to the Medical Officer Dr.Abdul Rauf, P.W.13, he medically examined Mst. Salman Bibi deceased (in injured condition) found that her face, part of skull front of chest, abdomen, chest back, almost 45% of the body was burnt with kerosene oil including her both hands, that is why the police proceedings recorded on Exh.PF indicate that the statement of Mst. Salman Exh.PF was got marked by her right big toe instead of her right thumb. Statement of the Investigating Officer Muhammad Rafique A.S.-I., P.W.11 does not contain the fact that he obtained opinion of the Medical Officer qua the fitness of Mst. Salman Bibi, if she was at all fit to make statement or not. The police proceeding recorded on Exh.PF, however, indicate this fact. No Medical Officer has been produced by the prosecution as a witness to the aforementioned crucial fact to establish that Mst. Salman Bibi was physically fit enough to make statement shown as Exh.PF. Even, the application referred to by Muhammad Rafique Khan, A.S.-I., P.W.11 in police proceedings recorded on Exh.PF, has not been tendered in prosecution evidence. So, serious doubt exists about recording of statement of Mst. Salma Bibi deceased, by Muhammad Rafique Khan, A.S.-I., P.W.11 which cannot be termed as a dying declaration. 36. The recovery of rifle .7 MM P-14 with live bullets P15/1-12 has not been used to cause injuries on the bodies of the deceased as none of the two dead bodies bear any fire arm injury. The report of Forensic Science Laboratory Exh.PR indicates that the crime empties were received by the said office on 23-7-1996 and rifle .7 MM was deposited in the said office on 20-8-1996. The date of recovery of crime empties P-13/1-2 has been mentioned as 6-7-1996 and that of recovery of rifle 7.MM P-14 as 3-8-1996 by Muhammad Sharif S.-I., P.W.9. It indicates that the crime empties were dispatched to the office of Forensic Science Laboratory after 17 days of its recovery and rifle, P-14 was sent again after 17 days of its recovery on 20-8-1996. No explanation has…

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