Full Judgment Text & Judicial Ruling

2018 Y L R 1115 [Islamabad] Before Athar Minallah and Mohsin Akhtar Kayani, JJ MUHAMMAD SAEED and another---Appellants Versus The STATE and another---Respondents Criminal Appeal No.154 of 2015, Jail Appeal No.153 of 2015, Criminal Revision No.23 of 2016 and Murder Reference No.14 of 2015, decided on 19th June, 2017. (a) Criminal Procedure Code (V of 1898)--- ----Ss. 161 & 540---Examination of witness by police---Scope---Witness, whose statement had not been recorded by the Investigating Officer, would not be considered as worthy of credence, but the court was empowered to record the testimony of any person, whether his statement under S. 161, Cr.P.C. or 164, Cr.P.C. was recorded or not. [Case-law referred]. (b) Penal Code (XLV of 1860)--- ----S. 302---Qatl-i-amd---Appreciation of evidence--- Recovery of weapon of offence--- Reliance--- Scope--- Record showed that on the disclosure of accused, Churri, weapon of offence, was recovered---Place of recovery was an open place and hundreds of people passed through the same---Official witness of recovery admitted that, weapon of offence was not mentioned as bloodstained in the memo of recovery---Investigating Officer had not asked anyone to be a witness in the recovery proceedings---Admittedly, witness had not mentioned the alleged churri as bloodstained in his statement under S. 161, Cr.P.C.---Recovery was disbelieved in circumstances. [Case-law referred]. (c) Penal Code (XLV of 1860)--- ----S. 302---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---Mother of the deceased stated the motive to be that accused wanted to marry the deceased while she got married to the witness, but the alleged motive had not been proved independently by the witness---Husband of deceased though had stated that deceased told him that accused wanted to marry her but her brother and mother refused the said proposal---Said facts did not constitute a valid motive in such a manner, especially when it could not be corroborated through independent source that accused had approached the deceased for marriage---Sole statement of mother of deceased in that regard without independent corroboration could not be of any help to the prosecution case---Motive in the circumstances had not been proved by the prosecution. (d) Penal Code (XLV of 1860)--- ----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account supported by medical evidence---Accused was charged for the murder of sister of complainant through Churri blows---No motive had been mentioned by the complainant against the accused in the FIR---Ocular account was furnished by complainant and the mother of the deceased---Facts remained that there was inconsistency between the FIR and statement of complainant---Complaint showed that the mother and sister of deceased came out after the complainant, but as per statement of mother of deceased, complainant emerged on the scene after the mother---Said inconsistency showed that the complainant had improved his statement from FIR, whereas he had only seen the accused in the street from his back, therefore, his statement to the extent of being wajtakar could be given consideration at that stage---Ocular account given by the mother of the deceased had gone un-rebutted---Accused had himself asked a specific question regarding the alleged occurrence from the mother of the deceased and in response to said question she narrated the actual event---Record showed that accused was nominated at the very first instance, even the FIR was promptly lodged---Statements of complainant and mother of the deceased proved to be consistent in that regard that deceased stated that accused had stabbed her---Statements of said witnesses were further confirmed through independent---Evidence of taxi driver, who had brought the injured lady in his taxi to the hospital---Circumstances and facts of the case had proved that the dying declaration of deceased with regards to details of injury, name and description of the accused had not been denied rather the entire cumulative facts demonstrated that the last words of deceased were based upon truth and nothing was concealed thereon---Statement of mother of deceased, who had seen the actual occurrence with her own eyes, corroborated the occurrence---Testimony of Medical Officer, who at first instance medically examined the deceased, showed that the time of death was 5.15 a.m. which occurred in Operation Theater during her treatment---Said facts had proved that deceased was brought to the hospital alive and it could safely be concluded that, approximately two hours of time was passed from incident till death, therefore, it could firmly be concluded that deceased had stated some facts about the alleged occurrence to her mother and brother in presence of witness/taxi driver, who were natural witnesses of the alleged crime---Prosecution, had not been able to prove motive and recovery of the crime weapon, which were mitigating circumstances for reduction of sentence---Sentence was reduced from death to imprisonment for life in circumstances. [Case-law referred]. (e) Criminal trial--- ----Witness---Minor contradictions in the statements of witnesses---Effect---Some discrepancies had been observed from the statement of witnesses, even otherwise all prosecution witnesses were admittedly uneducated, who were not aware of technical details of the case and minor contradictions were natural in their evidence, which stood ignored. [Case-law referred]. (f) Penal Code (XLV of 1860)--- ----S. 302---Qatl-i-amd---Appreciation of evidence---Testimony of closely related witnesses---Reliance---Record showed that mother and brother of the deceased had given evidence against the accused---Effect---Mother and brother had blood relation with deceased, as such, they could be termed as interested witnesses---Fact remained that said witnesses had not given any inimical statement against the accused nor referred any enmity with the accused---Status of being interested witnesses or inimical witnesses in such a situation was proved and for that reason, their statements could be taken as credible as the same were duly corroborated through independent witness/taxi driver. (g) Qanun-e-Shahadat (10 of 1984)--- ----Arts.132 & 133---Cross-examination---Scope---Facts, which had not been cross-examined, would be considered to have been admitted. (h) Penal Code (XLV of 1860)--- ----S. 302---Qatl-i-amd---Appreciation of evidence--- Substitution--- Principle---Substitution of single accused was a rare phenomenon, when the FIR had promptly been lodged and the statement of complainant had been considered to the extent that he had seen the accused from back in the street light, while running from the place of scene---Accused, in circumstances, was the one who committed the alleged crime. Sabah Moh-ud-Din Khan for Appellants. Talat Mahmood Zaidi for the Complainant. Yasir Barkat Ch. for the State. Date of hearing: 16th May, 2017. JUDGMENT MOHSIN AKHTAR KAYANI, J.---This common judgment will dispose of Criminal Appeal No.154/2015 (Muhammad Saeed v. The State), Jail Appeal No.153/2015 (Muhammad Saeed v. The State), Murder Reference No.14/2015 (The State v. Muhammad Saeed) and Criminal Revision No.23/2016 (Waqar Ali v. Muhammad Saeed Khan, etc.) 2. The appellant through Criminal Appeal No.154/2015 and Jail Appeal No.153/2015, has assailed the judgment dated 05.09.2015 passed by learned Additional Sessions Judge-VII (West), Islamabad, whereby the learned Trial Court convicted the appellant under section 302, P.P.C. in FIR No.175, dated 23.10.2013, Police Station Secretariat, Islamabad and awarded death penalty with Rs.100,000 as compensation under section 544, Cr.P.C., failing which the appellant is to undergo 6 months simple imprisonment, whereas complainant, Waqar Ali, also filed Criminal Revision No.23/2016 against the judgment dated 05.09.2015 passed by learned Additional Sessions Judge-VII (West), Islamabad, for the enhancement of compensation up to Rs.1 million only, while Murder Reference No.14/2015 sent by learned Trial Court and seeking confirmation of death penalty awarded to the appellant or otherwise. 3. Brief facts of the case as referred by complainant Waqar Ali in his complaint (Exh.D2), are as under:--

4. After the submission of abovementioned complaint, the police registered FIR No.175 dated 23.10.2013, under section 302, P.P.C., Police Station Secretariat, Islamabad, referred as Exh.PD. Subsequently, the Investigation Officer arrested the nominated accused, Muhammad Saeed Khan and recovered the weapon of offence, Churri, whereafter the Investigation Officer completed the investigation and submitted Challan under section 173, Cr.P.C. against the appellant before the competent Court. The learned Trial Court after completion of evidence and on the basis of statement recorded under section 342, Cr.P.C., convicted appellant under section 302(b), P.P.C. and awarded him death sentence along with compensation of Rs.100,000/- under section 544, Cr.P.C., failing which appellant has to further undergo 06 months SI. Hence, this criminal appeal and murder reference. 5. Learned counsel for appellant contended that, appellant was not arrested on spot, even the prosecution has not alleged any motive and the complainant Waqar Ali is not the eye-witness of the alleged incident; that there are material contradictions in the testimonies of the eye-witnesses and charge of murder has not been proved; that the recovery upon the appellant is fake and planted one while the statemnt of PW-8 Shujat Bibi has not been corroborated through her other family members i.e. Mst. Rubina Bibi and Mst. Rozina Bibi, who were not examined by the Trial Court as they were not produced by the prosecution in the trial; that PW-13 Waqat Ali Khan stated during his statement that when he came out of his room, he saw Nagina Bibi in injured condition who was telling her mother and sister that Saeed (appellant), injured her, although this fact has not been proved independently; that record shows, deceased was taken to hospital and the injury statement is silent qua the appellant; that the inquest report and application (Exh.PB) shows that FIR got lodged after the postmortem; that there is no eye-witness of the case and the recovery of weapon of offence is doubtful as the Churri was not found stained with blood and the presence of deceased in courtyard with her mobile at odd hours of the night, makes the case suspicious. Finally, learned counsel for appellant argued that the impugned judgment has been passed without observing the mandatory provisions of section 367, Cr.P.C. 6. Conversely, learned counsel for the complainant contended that, instant murder case has been fully corroborated by the prosecution, even the eye-witnesses have completely corroborated the conduct of the appellant by all means and the deceased had plainly described the role of appellant in her dying declaration, which was confirmed by the complainant, mother Shujat Bibi, as well as neighbor/taxi driver, PW-10 Muhammad Akram, who carried the deceased in injured condition to the hospital. Learned counsel for the complainant as well as State, have opposed the instant Criminal Appeal mainly on the ground that there is no delay in lodging of the instant FIR and appellant is directly nominated in the same at the first instance, therefore, the punishment of death sentence has rightly been awarded to Muhammad Saeed Khan, accused/appellant. Lastly, learned counsel for the complainant further contended that the learned Trial Court while passing the order of compensation in term of section 544, Cr.P.C., has taken a lenient view, therefore, amount of compensation may be enhanced. 7. We have heard the arguments and gone through the record with valuable assistance of learned counsel for the parties. 8. It has been observed from the perusal of record, that complainant PW-13 Waqat Ali Khan lodged the complaint Exh.D2 and alleged therein that, on 23.10.2013 at 3:30 a.m., when he was sleeping at his home situated in Naryal, all of a sudden he heard hue and cry of her sister, Nagina Bibi (deceased), when he tried to open the door of the room, it was not opened, thereafter, he forcefully pushed the door on which it got opened and saw his sister Nagina Bibi in an injured condition who time and again was referring that she got injured by the Churri blows caused by Muhammad Saeed Khan and meanwhile other sister Rubina and mother Shujat Bibi, came out of room. The complainant PW-13 Wagar Ali Khan further alleged in the complaint that, he ran after Muhammad Saeed but he succeeded in escape towards Quaid-e-Azam University, where after complainant took her sister out of his house and boarded her in taxi brought by PW-10 Muhammad Akram/ Taxi Driver, in which they reached to Polyclinic Hospital, where Nagina Bibi succumbed to injuries. 9. PW-5, Doctor Tanveer Afsar Malik, C.M.O., on 23.10.2013 at 04:15 a.m., conducted initial examination of deceased Nagina Bibi wife of Sabir Khan, caste Pathan, resident of Nareel Dhakhi, Malpur, Islamabad, aged about 33 years, who was brought by her family members, in pursuance thereof, MLC (Exh.PE) was prepared, wherein it was opined that:-- "History of stab wound semi-pubic region about 6 cm in length more than one finger deep i.e. more than 10 cm deep. Patient presented in state of shock. She was pulse less, BP less, two white cannulas are passed and hemotel infusion was started immediate blood grouping and cross match was done and patient was immediately shifted to operation threater, thread pulsation in the operation theater. Patient gone critical condition cross match blood was attached and middle lue abdominal exploration was done. Pesop, there was a deep stab wound, massive, pelure hemdone and right vessels injured and bladder injured. CPR was started. Injection atropae of adrenal was gone. Antra cardiac adrenal was given and CPR contended for bomuule. Patient did not recover and there was no cardial actual seen Pupils were belatedly dilated. ECG was done which shows straight line and death was declared at 05 am on 23.10.2013. Date of admission 23.10.2013 at 04:15 am death 23.10.2013 at 05:50 am in operation theater." However, during the course of cross-examination, PW-5 admitted that injury sheet of Nagina Bibi, prepared by PW-2 Shahid Zaman, ASI, was produced before him after the medical examination and he did not sign it at that time. He further admitted that, it was mentioned in the injury sheet that, the then injured Nagina Bibi was stabbed by an unknown person. 10. The prosecution produced Dr. Sabina Akhtar as PW-6 who, along with PW-5 Dr. Tanvir Afsar Malik, CMO, conducted the autopsy of deceased Nagina Sabir, and prepared postmortem report (Exh.PG/1-6), and formed opinion that:-- "External Appearance A young lady of good physique wearing phuldar brown color qameez, shalwar red color bra black color soaked with blood, eyes and mouth closed. Body is in initial state of rigor mortos. There is slight postmortem lividity underneath arm and on the back of the chest on external postmortem examination there is sharp edge stab wound on the supra pubic region area already stitched by the surgical department unit one wound is about 18-20 cm long tidally already stitched, post abdominal exploration. On dissection of abdomen injury of right iliac vessel and bladder see. - Thorax External----Health, - Abdomen External---Bladder, right iliac vessel. Other organs healthy ruptured. Opinion In my opinion deceased sustained stabs wound on the abdomen which resulted in primary internal hemorrhagic which leads to hemorrhagic shock and later on death. All injuries are ante-mortem in nature and sufficient to cause death in ordinary course of life. Time elapsed between injury and death variable 1 hour and 35 minutes approximately, whereas time elapsed between death and postmortem about 4 hours and 10 minutes approximately." 11. PW-4 Maqsood Ahmad, SI, lodged FIR No.175/2013, dated 23.10.2013 under section 302, P.P.C., Police Station Secretariat, Islamabad (Exh.PD) on the complaint (Exh.D2). The said criminal case was investigated by PW-12 Abdul Ghafoor, S.I. and PW-11 Yasin Ali Khan S.I., who had submitted the final Challan under section 173, Cr.P.C. to the concerned Court and declared the appellant as accused in the case. 12. The learned Trial Court has framed the charge under section 302, P.P.C. on 24.04.2014, where after prosecution has produced PW-5 Dr. Tanveer Afsar Malik, CMO, PW-6 Dr. Sabina Akhtar, MLO, who had examined the deceased during her treatment and conducted postmortem. The prosecution further produced two recovery witnesses, PW-1 Muhammad Adil, Constable, and PW-9 Sabir Ullah, private witness, and also produced PW-8 Mst. Shujaat Bibi, mother of deceased, PW-10 Muhammad Akram/Taxi Driver and PW-13 Waqar Ali Khan/complainant in order to prove the case against the appellant. 13. The Investigation Officers, during the course of investigation, have prepared/produced the recovery memo of Churri (Exh.PA), medical report of Nagina Bibi (Exh.PE), inquest report (Exh.PF), Postmortem Report (Exh.PG), Memo of possession of Parchajaat of deceased (Exh.PH), Memo of identification of death body (Exh.PI), Memo of possession of photographs of deceased at place of occurrence (Exh.PN), Memo of possession of bloodstained earth (Exh.PN), Photographs (Exh.P7-14), Scaled site plan (Exh.PC), and unscaled site plan (Exh.PP/2), Forensic Science Lab Reports (Exh.PU) and (Exh.PV). 14. From the read-through of the statement got recorded by PW-13 Waqar Ali Khan, it has been observed that he, on 23.10.2013 at about 3:30 am, was sleeping in his room when he heard the noise of her deceased sister, whereupon when he tried to open the door of his room, it did not open on the first attempt while on the second attempt, the door got opened and noticed her sister Nagina Bibi lying on a floor in injured condition, who was shrieking to his mother and sister that accused Muhammad Saeed Khan (facing trial) caused a knife blow to her. Nagina Bibi narrated the same incident to complainant with addition to that, accused ran away in the street, on which PW-13 Waqar Ali Khan with unsuccessful attempt chased the accused but he fled away towards Quaid-e-Azam University. Afterward PW-13 raised hue and cry, whereupon PW-10 Muhammad Akram/Taxi Driver brought his taxi and took the injured and complainant along with his mother and sister to Polyclinic Hospital. 15. PW-13 further stated before the Court that, the injured was reciting "Kalma" and stating again and again that she has been stabbed by accused Saeed Khan facing trial and the same stance has also been taken by his mother PW-8 Shujat Bibi and younger sister Rubina Bibi. He further stated before the Court that when they reached the emergency ward of the hospital, they met with one police official, who prepared a document, whereafter her treatment was started. PW-13 stated before the Court that a person had written an application which was handed over to the police for lodging of an FIR, whereby he identified his signature as (Exh.D/3) on the application (Exh.D/2). He also identified the dead body of his sister through identification memo (Exh.PI), signed the receipt for receiving dead body (Exh.PJ) and also received the last worn clothes, i.e. (Shalwar Red Color (Exh.P2), Printed Shirt (Exh.P3), Brazier (Exh.P4), One Mobile (Exh.P5) along with SIMs (Exh.P6/1-2)), whereby the Investigation Officer prepared the recovery memo (Exh.PH). He further stated that, Investigation Officer took the bloodstained earth and prepared a sealed parcel in his presence through recovery memo (Exh.PN). 16. During the course of cross-examination, PW-13 admitted that, he has not written the complaint by himself, rather he narrated the incident to a person who had written the complaint (Exh.D2). He further confirmed that his mother Shujat Bibi and Rubina Bibi told him that they have seen the accused while stabbing the deceased, however, he had not mentioned this fact in the complaint due to his illiteracy. He further admitted that there was no police official available in the hospital and that he was asked by an elder person in the hospital to write an application for registration of case. PW-13 also admitted that after receiving of his application, police examined his sister whereafter she was taken into Operation Theater. 17. PW-13 admitted the fact that his mother and younger sister came out of their room prior to him at the time of incident. However this fact could not be mentioned in the complaint as the application was not read before him, even the application was not read over to him by the police. He further confirmed during the cross-examination that, the total time consumed in the incident, coming out from the room and chasing the accused as well as coming back to the house, was about 4 to 5 minutes, however it took 45 minutes to reach the hospital, though it was Fajar time when they reached to the hospital. PW-13 admitted during the course of cross-examination that when he came out from his room, he found his sister sitting alongside the wall in injured condition and at that time, two light bulbs were switched on but these facts have never been mentioned in the complaint. The most important thing, which he admitted before the Court that: "I had not seen the accused facing trial in my house, however I have seen him in the street while he was running." 18. The next important witness in the trial is PW-8 Mst. Shujat Bibi, mother of deceased, who stated before the Court that, first husband of deceased Nagina Bibi, died in a road accident and as a result whereof Nagina Bibi had received a plot measuring 03 Marlas as compensation, whereupon Nagina constructed a house and they all started living there along with her. She further stated before the Court that, on 23.10.2013, she along with her daughter Rubina, were sleeping in separate room while Nagina deceased, along with her 4 kids and Rozina with her 1 kid, were sleeping in another room, and Wagar Ali Khan/complainant, was sleeping in third room. She further stated that she heard a sound of a door and voice of Nagina, whereupon she and her daughter Rubina, woke up and immediately open the door, where they observed that:-- "Our neighbor, Muhammad Saeed son of Muhammad Rafique resident of Laryal, Islamabad was hitting my daughter Nagina with a knife. Saeed on seeing us ran away." 19. PW-8 Shujat Bibi further stated before the Court that after the incident, Waqar Ali Khan/complainant opened door of his room door and came out. She further stated that Nagina deceased kept saying that Saeed stabbed her and ran away, thereafter, they took Nagina to hospital with Muhammad Akram/taxi driver and that on her way to hospital, Nagina time and again said that "Saeed has killed her and she was reciting Kalma". PW-8 further stated in her evidence that she, Rubina and Rozina, have seen the occurrence with their own eyes, as Saeed wanted to marry Nagina deceased while she got married to PW-9 Sabir Ullah. 20. From the perusal of evidence of PW-8 Shujat Bibi, two factors have been referred on record that:-- "We saw that our neighbor Muhammad Saeed son of Muhammad Rafique R/o Laryal, Islamabad was hitting my daughter Nagina with knife." and that, "Nagina was saying again and again that Saeed has hit her. On her way, Nagina was reciting "Kalma" and was saying that Saeed has killed her." Whereas PW-8 has defined the motive of the said incident as:-- "Saeed wanted to marry her while she got married with Sabir Ullah." However, during the course of cross-examination, learned counsel for accused Saeed Khan asked a particular question regarding the alleged incident of stabbing, whereby PW-8 categorically stated that:-- "I have seen the accused facing trial while committing the stabbing of my daughter and my son, the complainant has also seen him, therefore, we charged him. Two light bulbs were on in the courtyard of our house when I came out." It has further been referred on record that:-- "When I came out, my daughter was standing in injured condition who was given support by me and was laid down on the floor." The above referred specific questions and answers, give rise to a situation that PW-8 Shujat Bibi is an eye-witness of the entire incident as alleged in the FIR. The only reference of contradiction is whether the other witness, PW-13 Waqar Ali Khan/ complainant, came out and seen the occurrence with his own eyes or not? However, it is evident from record that PW-8 seen the incident with her own eye, even she in her own words stated before the Court that the actual stabbing has been seen by her, which was done by accused Saeed and in this regard, she has also disclosed the reason of motive in her testimony, hence eye-witness account is based upon true facts and believable. The defence side has…

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