Full Judgment Text & Judicial Ruling

2022 Y L R Note 185 [Islamabad] Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ MUHAMMAD WALAYAT and another---Appellants Versus The STATE---Respondent Jail Appeals Nos. 207, 201 and Murder Reference No. 3 of 2020, decided on 17th March, 2022. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused were charged for committing murder of brother, sister and sister-in-law of the complainant by firing and causing injuries to his mother---Record showed that the incident took place into two parts: In the first part, it was alleged that the accused party made firing in the courtyard of complainant's house from their roof, though no one was injured in that portion of occurrence, even no sign of firing was confirmed from courtyard by the Investigating Officer, even not a single fire empty from the rooftop of accused person's house was recovered; in the second part of the occurrence, deceased brother of complainant received fire-arm injuries outside the house, who was not present in the first part of the occurrence---Detailed cross-examination of the defence on eye-witnesses had not achieved any fruitful result in their favour to dispel the consistency of events narrated by the eye-witnesses, though two of the witnesses had not seen the receiving of injuries by deceased brother of complainant---Record showed non-introduction of the motive by the complainant, rather it was introduced by the accused person, however no witness or evidence had ever been brought on record as to why such a murderous assault had taken place, whereby three persons were done to death while one was injured---Detailed cross-examination of eye-witnesses by the accused persons revealed that all the eye-witnesses acknowledged that they had no enmity with accused persons on any account prior to the said occurrence, but the defence side time and again introduced certain defence in the cross-examination of eye-witnesses---Recoveries of weapon of offence were fully established against the accused side---Fire empties were sent to expert prior to recoveries of weapons of offence, which had been found matched through the report---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, however, due to some mitigating factors, death sentence was converted into life imprisonment. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of brother, sister and sister-in-law of the complainant by firing and causing injuries to his mother---Medical evidence showed that all the three deceased died due to fire-arm injuries made through 12-bore shot gun and 30-bore pistol, allegedly used by the two accused---Even two of the eye-witnesses had not seen the occurrence to the extent of first part of incident in which deceased brother of complainant received the fire-arm injuries but the complainant version could not be discarded in presence of the available evidence, though certain discrepancies had been noted in shape of improvements made in the account of prosecution evidence---Said evidence did not remotely suggest the falsity of the incident narrated in the case by the witnesses, whereby three persons were done to death on kacharasta in front of their house---Autopsy reports of two deceased persons prepared by Medical Officers suggested one commonality that both deceased received the fire-arm injuries on chest---Even pellets were recovered, as such, the Medical Officers had also referred blackening and charring marks in the autopsy reports---Both the Medical Officers had been cross-examined at length, but nothing fruitful had been achieved by the accused persons, per se, the blackening and charring marks could only be seen when the weapon was discharged from close range---Both the deceased received firearm injuries from close range by accused, which was in line with the evidence of eye-witnesses and same could not be discarded---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, however, due to some mitigating factors, death sentence was converted into life imprisonment. Muhammad Tufail v. The State PLD 2002 SC 786; Nooro alias Noor Muhammad Sehar v. The State 2018 PCr.LJ Note 52 and Mir Muhammad and others v. The State 1971 PCr.LJ 1108 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Site plan---Scope---Accused were charged for committing murder of brother, sister and sister-in-law of the complainant by firing and also caused injuries to his mother---Defence objected that the distance mentioned in site plan did not correspond with the distance as mentioned in medical evidence---Site plan is prepared after the incident on the recalling of facts by any of the eye-witnesses or by the complainant, as the case may be, which might have created certain discrepancies as it was very difficult to suggest in such type of incident, in which events had been changed on a spur of moment---When both of the families and a number of people were fighting in open area, therefore, Court had to take the commonality of facts narrated by the eye-witnesses in their statements---Eye-witnesses remained consistent, even the eye-witnesses had not been cross-examined with particularity by the defence witness, which was otherwise suggestive of the fact that incident had been acknowledged and admitted in the case---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, however, due to some mitigating factors, death sentence was converted into life imprisonment. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Scope---Accused were charged for committing murder of brother, sister and sister-in-law of the complainant by firing and causing injuries to his mother---Accused had been attributed to death of three persons separately on two counts and one count, respectively, which was in line with the medical evidence---Some consultation and deliberation had also been suggested in the evidence of prosecution, but it would not affect the entire prosecution case as the event took place before the sunset---All accused persons and eye-witnesses were known to each other, therefore, there was no probability of mistaken identity---Murderous assault had been attributed to the accused persons, who had been found guilty of offence, where the prosecution proved their case beyond any shadow of doubt---Certain mitigating factors existed, which persuaded to disagree with the portion of death sentence---No motive in the case was available and even till date no one had come up with any justifiable reason as to why what ignited the situation, which resulted into death of three persons---Such aspect revealed that something very important was missing and without the same capital sentence could not be awarded---Forensic Science Agency Report revealed that three top bullets recovered from body of a deceased were pellets of smooth bore, which had not been explained by the witnesses, therefore, the death sentence could not be awarded rather the rule of abundant caution was to be applied---Appeal against conviction was dismissed, however the death sentence awarded to the accused was converted into life imprisonment. Basharat Ullah Khan, Raja Aamir Shahzad and Shuja Ullah Gondal for Appellants. Ishtiaq Ahmed, State Counsel for Respondent. Ms. Qurat-ul-Ain Ayesha for the Complainant. Date of hearing: 14th February, 2022. JUDGMENT MOHSIN AKHTAR KAYANI, J.---Through this single judgment, we intend to decide the captioned jail appeals and murder reference arising out of judgment dated 20.11.2020, passed by learned Additional Sessions Judge-II/ Judge MCTC (East), Islamabad, in case FIR No.23, dated 20.03.2015, under sections 302/324/34, P.P.C., Police Station Nilore, Islamabad, whereby the appellants Walayat Hussain and Chanzeb have been sentenced to death under section 302(b), P.P.C. along with compensation of Rs.300,000/-, in failure whereof, they shall suffer further imprisonment for six (06) months, however benefit of section 382-B, Cr.P.C. has been extended to the appellants. 2. Brief and consolidated facts are that Safeer Ahmed (complainant) submitted a complaint for registration of a criminal case against the appellants alleging that on 20.03.2015, at about 05:00 p.m., when he was present in his house along with Mst. Fareeda Bibi (sister), Jahangir Ahmed (brother-in-law), Mst. Raqeeba Bibi (mother) as well as with Munir Ahmed and Muhammad Jaangir (brothers), appellant Chanzeb while armed with .30 bore pistol as well as his father Walayat Hussain (appellant), armed with 12 bore rifle and Muhammad Ashraf armed with hatchet, appeared on their rooftop, whereby the latter raised lalkara to complainant's brother Muhammad Jahangir to come out in order to teach him a lesson for suporting Mst. Arnina Bibi, whereafter both the appellants started indiscriminate firing, as a result whereof the complainant and his family members tried to save themselves by hiding behind the walls, per se.. such firing attracted complainant's another brother, Amjad, who was working as a laborer in vicinity, rushed towards the house, whereupon appellant Chanzeb using his .30 bore pistol made fire shots on Amjad, hitting him on his chest, as such, the appellant Chanzeb also made fire shot on complainant's sister-in-law, Mst. Farhat Jabeen, hitting her on her left side chest, whereas appellant Walayat Hussain made fire shot on complainant's sister, Mst. Farida Bibi, hitting her on her leg and another fire shot on complainant's mother, Mst. Raqeeba Bibi, hitting her on her left foot, whereafter the accused persons fled away from the scene while making aerial firing. The injured persons were taken to hospital, but complainant's brother Amjad, sister Mst. Fareeda Bibi and sister-in-law Mst. Farhat Jabeen succumbed to injuries. The said complaint was converted into aforesaid FIR No.23/2015, whereafter the accused persons were arrested and formally. charged to which they pleaded not guilty and claimed trial. After recording of pro and contra evidence, the learned trial Court vide impugned judgment sentenced the appellants to death as Ta'zir. Hence, the captioned appeals and murder reference. 3. Learned counsel for respective appellants contended that there is a delay in lodging of the FIR as the occurrence had allegedly taken place at about 05:00 p.m., whereas the FIR has been registered at about 9:00 p.m., which manifests consultation and deliberation in involving the appellants in the instant case; that neither any empty has been recovered from rooftop from where the appellants had allegedly made fire shots, nor any bullet on any part of the walls of complainant's house has been proved by the prosecution; that there are material contradictions and discrepancies in the statements of prosecution witnesses, even in the statement of complainant, who stated that he had handed over the complaint to police in police station, whereas the Investigating Officer acknowledged that he had received the complaint in hospital, even otherwise, all the prosecution witnesses are blood relatives and inimical to the appellants; that the medical evidence is not in line with the prosecution story, even the medical evidence as well as the forensic evidence are in contradiction with the ocular account; that neither any detail regarding the motive is given nor Mst. Amina Bibi appeared during the investigation or before the learned trial Court in support of the motive; that the case as established by the prosecution is full of dents and doubts, benefit of which always goes in favour of accused persons, but the learned trial Court ignoring all such lacunas passed the impugned judgment in a hasty manner, which is not sustainable as per available record. 4. Conversely, learned State Counsel as well as learned counsel for complainant in support of the impugned judgment contended that the complainant having lost three (03) members of the family could not rush towards police station for registration of FIR, rather the natural course demands that the loved ones be saved and treated; that five eye-witnesses, including one injured witness appeared before the Court and deposed in line with the prosecution story, who otherwise remained consistent in their testimonies, as such, the eye-witnesses could not be considered interested witness due to their relationship with the deceased persons, per se, the defence has not denied the occurrence in unequivocal terms, rather tried to puzzle the prosecution witnesses in order to create dents in the prosecution case; that the empties coupled with the led bullets and pallets recovered from the dead bodies have matched with the weapons recovered from the appellants; the learned trial Court has rightly appreciated the overall circumstances of the case and sentenced the appellants in accordance with Law. 5. Arguments heard, record perused. 6. Perusal of record reveals that complaint Exh.PA was filed by PW-1 Muhammad Safeer (complainant) to the S.H.O. alleging that on 20.03.2015, his sister Mst. Fareeda Bibi and brother-in-law Jahangir Ahmad came to his house where he along with his other brother Muhammad Jahangir and Munir Ahmad as well as his sister-in-law Mst. Farhat Jabeen and mother Mst. Raqeeba Bibi were sitting in their home, as such, all of a sudden Muhammad Ashraf (acquitted accused) while armed with a hatchet, Chanzeb (appellant) while armed with .30 bore pistol and Walayat Hussain (appellant) while armed with 12 bore shot gun having magazine, appeared at the rooftop in a manner that Muhammad Ashraf raised Lalkara to complainant's brother Muhammad Jahangir to come out as we have to teach a lesson for supporting Mst. Amina Bibi, as a result whereof Walayat Hussain and Chanzeb appellants started firing at their house, whereas the complainant's brother took shelter towards the house. The complainant's brother i.e. Amjad (deceased) after hearing the firing came towards the house as he was working in a nearby street, on whom Chanzeb (appellant) with his .30 bore pistol made a straight fire upon him hitting him on his chest, as such when the complainant party learnt about Amjad's injury, they clamored while running towards Amjad in order to save him, but Chanzeb (appellant) made another fire shot on complainant's sister-in-law i.e. Mst. Farhat Jabeen hitting her on upper side of chest, whereas Walayat Hussain (appellant) fired from his gun on complainant's sister Mst. Fareeda Bibi hitting her leg followed by another fire shot on complainant's mother Mst. Raqeeba Bibi hitting her on right foot. After the incident, the complainant and others took the injured to the Polyclinic Hospital in cot, but complainant's brother Amjad, sister-in-law Mst. Farhat Jabeen and sister Mst. Fareeda Bibi succumbed to injuries. 7. The statement recorded by the complainant has further been supported by PW-2 Muhammad Jahangir, who is husband of Mst. Farhat Jabeen as he narrated the same story as referred in Exh.PA. Similarly, PW-3 Munir Ahmad (complainant's brother), who also claims to be an eye-witness and narrated a similar stance, as such, the stance of PW-4 Jahangir Ahmad, who is husband of Mst. Fareeda Bibi, is also in line with the principal allegations of the complainant, while the last witness i.e. Mst. Raqeeba Bibi (mother) appeared as PW-5 and gave the same details. The five eye-witnesses' account spells out some minor contradictions in their testimonies, whereas on minute scanning of record, following admitted facts emerges in this case: i) PW-1 to PW-5 are family members, who were present at the place of occurrence, whereas the incident took place outside the house as per site plan Exh.PR. ii) All three accused persons, Chanzeb, Walayat Hussain and Muhammad Ashraf are also relatives of complainant party and they are neighbours. iii) As per complaint, the firing was made from rooftop in courtyard of complainant's house by the accused party at the first instance, from where no crime empty was recovered as per PW.18 Investigating Officer. (iv) Deceased Amjad was not at home, who otherwise rushed towards his house from a neighboring street after hearing the firing. v) Chanzeb (appellant) allegedly made three (03) fire shots with his .30 bore pistol upon the deceased Amjad in a close range having no exit wounds i.e. first on the front of right, chest on third intercostals space with slight blackening and charring marks, second on left arm lateral aspect with slight blackening and charring marks and third on 5 c.m. below axilla left side with slight blackening and charring mark. All three pellets were recovered from the dead body and handed over to the police by the doctor. vi) Chanzeb (appellant) also made fire shot with his .30 bore pistol on Mst. Farhat Jabeen (wife of Muhammad Jahangir), which landed on right side of chest below axilla with slight blackening and charring marks having no exit wound. The deceased Mst. Farhat Jabeen also received a bruise mark on left lumber aspect. The pellet was also recovered from her dead body, which was handed over to the police. vii) Complainant's sister Mst. Fareeda Bibi also received 12 bore shot gun injuries at the hands of Walayat (appellant) on (i) posterior aspect of mid thigh on right leg, (ii) on posterior aspect of mid thigh on left leg, (iii) on lateral aspect of right calf with no blackening, (iv) on medial aspect of right ankle with no blackening and (v) bruise with entry wound over the medial aspect of right leg. viii) PW-5 Mst. Raqeeba Bibi (mother) also received firearm injuries at the hands of Walayat Hussain (appellant) on left foot, but no MLR to her extent is available. ix) Muhammad Ashraf (acquitted accused) while armed with hatchet has only been attributed with the role of Lalkara. x) Muhammad Aslam (S.H.O.) has recovered four firearm empties of .30 bore pistols and nine 12 bore shot gun cartridges from place of occurrence having been collected from two different locations in presence of witnesses through memo Exh.PZD on same day of occurrence. xi) No motive has been set up by the prosecution, though the complaint reveals that Ashraf (acquitted accused) raised lalkara that Jahangir come out as we have to teach a lesson for supporting Amina Bibi. xii) No evidence to the extent of Amina Bibi or a dispute to her extent has been brought on record by either party or by the Investigating Officer. xiii) PW-18 Muhammad Aslam Kalyar acknowledged that four firearm empties of .30 bore pistols and nine 12 bore shot gun cartridges were recovered from the place of occurrence. xiv) The Investigating Officer has not seen firing marks on the house of complainant. xv) Nothing has been recovered from accused Muhammad Ashraf (acquitted accused) in this case. xvi) Investigating Officer reached Polyclinic Hospital on 20.03.2015, at about 8 p.m., when all injured persons were dead, except Mst. Raqeeba Bibi, who sustained minor injuries. xvii) MLR of Mst. Raqeeba Bibi was not prepared on 20.03.2015 by the MLO. xviii) Invesgating Officer did not mention or note the number of wounds in column No.10 of the three inquest reports. xix) A written complain was received in hospital from the complainant at 8:30 p.m. xx) Six eye-witnesses were present in hospital before the Investigating Officer, who recorded their statements under section 161, Cr.P.C. xxi) As per Investigating Officer, Muhammad Jahangir son of Boota PW made dishonest improvement against the role of accused Chanzeb. xxii) On 23.03.2015, Muhammad Ashraf (acquitted accused) was arrested. xxiii) On 30.05.2015, appellants Walayat Hussain and Chanzeb were arrested. xxiv) On 02.06.2015, .30 bore pistol (Exh..P10) and 12 bore shot gun (Exh.P11) were recovered from old house of Chanzeb appellant situated in Chirah on his pointation vide recovery memo Exh.PZE. xxv) All fire empties were sent on FSL on 14.05.2015 for examination. xxvi) FIR under Section 13/20/65 of the Arms Ordinance was registered. xxvii) On 02.06.2015, appellant Walayat Hussain made disclosure and led the police party for recovery of .30 bore pistol Exh.P12 and 12 bore shot gun Exh.P13 from his house, which were taken into custody through recovery memo Exh.PG. xxviii) PW-14 Malik Amir Shahzad/ Draftsman prepared the scale site plan (Exh.PR) on the pointation of complainant and in presence of Muhamnrad Aslam Kalyar/ Investigating Officer. xxix) On 25.06.2015, PW-12 Muhammad Riasat (Moharrar Malkhana) received two sealed parcels of two pistols and two rifles from Muhammad Aslam/ Investigating Officer to keep the same in Malkhana, which were handed over to Naveed/Constable for onward transmission to Punjab Forensic Science Laboratory, Lahore, on the same day. xxx) On 14.05.2015, PW-10 Muhammad Naveed (Constable) received three (03) parcels containing goli sikka having been stamped by CMO Polyclinic Hospital, empty of 12 bore shot gun as well as of .30 bore pistol along with road certificate for onward transmission to F-10 Laboratory Islamabad, which were deposited on same day. xxxi) PW-7 Umar Hayat/ASI, duty officer of Police Station Nilore received the formal complaint from Imran/Constable, drafted by the Investigating Officer, which was registered and converted into FIR No.23, dated 20.03.2015, under sections 302/324/34, P.P.C., Police Station Nilore, Islamabad, at about 8:55 p.m. xxxii) Dead bodies were taken to the home on the next morning by PW-1 Muhammad Safeer (complainant) from hospital. xxxiii) PW-1 complainant/eye-witness acknowledged that Amina Bibi is his niece and Muhammad Ashraf is his uncle. The houses of complainant's brother Muhammad Jaharigir and his uncle Muhammad Ashraf (acquitted accused) are adjacent, whereas the house of complainant is at some distance. Same is the case with the house of Muhammad Ashraf. xxxiv) PW-1 complainant acknow-ledged that no dispute ever arose or existed amongst Muhammad Ashraf (acquitted accused) or his biradari/fraternity, who is the oldest in his biradari/fraternity. xxxv) Not a single question has been asked from PW-1 complainant qua the incident. xvi) Houses of all four brothers of complainant are in same line. House of appellants Chanzeb and Walayat Hussain is on western side of complainant's house. xxxvii) PW-1 complainant acknow-ledged that complaint (Exh.PA) for registration of FIR was given by him on 20.03.201.5, at about 4/5 p.m. in Police Station Nilore. xxxviii) PW-1 complainant had not seen Amjad (deceased) coming towards the place of incident and his presence was notified by the people from outside that he was coming from his workplace towards his house. xxxix) PW-2 Muhammad Jahangir i.e. second eye-witness of the case, received the last worn clothes of deceased Amjad, Mst. Fareeda Bibi and Mst. Farhat Jabeen. xl) The first part of incident had taken place in the house of PW-2 Muhammad Jahangir and as per his stance the accused persons made fire shot from their roof. xli) PW-2 Muhammad Jahangir acknowledged that they had no enmity with Muhammad Ashraf (acquitted accused) and all family members, including his brother and sisters, were present along with his mother on the day of incident in the house. xlii) PW-2 Muhammad Jahangir acknowledged that he had not seen when Amjad (deceased) was hit from fire of accused persons, as such, he came out of house after hearing the firing where he found Amjad in injured condition. xliii) PW-2 Muhammad Jahangir further acknowledged that bullet marks on their walls were seen by the police. xliv) PW-3 Munir Ahmad i.e. another eye-witness and real brother of deceased, who has introduced two blows of pistol butt on head of Mst. Farhat Jabeen at the hands of Chanzeb (appellant), which is not in the medical evidence. xlv) PW-3 Munir Ahmad divided the incident into two parts i.e. first part is firing from the roof and second in the street after 10 minutes. xlvi) PW-3 Munir Ahmad also acknowledged that they have no enmity with accused persons. xlvii) PW-4 Jahangir Ahmad i.e. complainant's brother-in-law, also acknowledged that he had no enmity with accused Walayat Hussain, Chanzeb or Muhammad Ashraf prior to the incident. xlviii) PW-5 Mst. Raqeeba Bibi i.e. mother of complainant and deceased, acknowledged that she lives with the complainant. Walayat Hussain (appellant) is real nephew of her husband. xlix) PW-5 Mst. Raqeeba Bibi also narrated the firing of Walavat…

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