Full Judgment Text & Judicial Ruling

2023 Y L R 1537 [Lahore (Bahawalpur Bench)] Before Sadiq Mahmud Khurram and Safdar Saleem Shahid, JJ MUHAMMAD AYAZ---Appellant Versus The STATE---Respondent Criminal Appeal No. 138-J and Murder Reference No. 6 of 2019, heard on 30th November, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Natural witnesses---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Motive behind the occurrence was that the deceased won prize of Rs. 20, which he demanded form the accused but he murdered him---Ocular account of the incident had been furnished by two eye-witnesses including complainant--- Cross-examination conducted upon the said prosecution witnesses clearly established the fact that they were attracted to the place of occurrence when the deceased did not return from the shop of the accused even after ten minutes and immediately arrived at the place of occurrence as they were residents of the same area, close to the place of occurrence and witnessed the same---Said prosecution witnesses also explained that they were standing just near to the place of occurrence, at a distance of about 100 feet, talking with each other and thereafter reached at the place of occurrence---Place of occurrence was the shop of the accused, which shop had been constructed within the premises of the house of the accused---Complainant was the next door neighbor of the accused whereas the other witness was the resident of the same area, therefore, their arrival at the place of occurrence, at the time of occurrence was natural---Said witnesses, proved themselves to be truthful witnesses and implicit reliance could be placed upon their statements---No evidence was on record to show that the said witnesses were motivated by any enmity to depose against the accused---Complainant was the father of deceased, whereas other eye-witness was not related in any manner either to the deceased or complainant and no reason existed prior to the occurrence which could have made eye-witnesses interested to get the accused involved in the occurrence falsely and let off the real accused---Both the prosecution witnesses were subjected to cross-examination but the defence failed to make cracks in their deposition and the genuineness of their statements had been proved---Moreover during the cross-examination the sequence of the occurrence was brought on record and both the prosecution witnesses remained consistent---Hence, in view of the said facts, the prosecution witnesses by no stretch of imagination could be declared as not being present at the place of occurrence--- Even interested witnesses would not normally allow real culprits for the murder of their relative let off by involving innocent persons---In that context, the accused remained unable to establish any animosity of the complainant or the police for his false involvement in the case---Occurrence in question had admittedly taken place in broad daylight at about 02.30 p.m., inside the shop of the accused and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved---As it was a broad daylight occurrence and because of the fact that the accused was known to both the prosecution witnesses, the question of his misidentification did not arise---Furthermore, the accused was also arrested on the day of occurrence from his own house---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. Zakir Hussain v. The State 2008 SCMR 222; Muhammad Aslam v. The State 2012 SCMR 593; Abid Ali v. The State 2017 SCMR 662 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Promptly lodged FIR---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Record showed that the occurrence in the case took place at about 02.30 pm on 12.09.2017 and was reported by the complainant to the police with promptitude through his written application to Police Official at 3.30 p.m. on the same day---On the basis of the written application of the complainant, the formal FIR was registered at 04.20 p.m. by Police Official at the Police Station---Thus, it was apparent that the written application of the complainant was submitted with noteworthy swiftness, especially when the complainant of the case had suffered the trauma of the death of his young son, aged about ten years, at the hands of the accused---Complainant not only named the accused, but also mentioned each and every minor as well as material fact of the incident in his written application, which of course excluded the possibility of deliberation or consultation regarding false implication of the accused in the case---Salient features of the occurrence had been elaborately explained in the written application---Promptitude in reporting the matter to the police also corroborated the case of the prosecution as against the accused---Such promptitudeness in reporting the matter to the police established the presence of the witnesses at the place of occurrence at the time of occurrence and supported their narrative---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. Muhammad Waris v. The State 2008 SCMR 784; Muhammad Arshad v. The State 2020 SCMR 2025; Noor Sultan and others v. The State 2021 SCMR 176; Shaheen Ijaz alias Babu v. The State 2021 SCMR 500 and Muhammad Aslam v. The State 2012 SCMR 593 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Medical evidence---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Medical evidence produced by the prosecution in the case proved that the deceased had received the fatal injuries on the vital parts of his body and he succumbed to the said injuries caused by the accused---Medical evidence fully supported the ocular account---During the course of cross-examination, the role of the accused brought on record further cemented the truthfulness of the statements of the prosecution witnesses---As per medical evidence, it has been ascertained and proved that the intent of the accused was to cause death and that he was guilty of Qat-i-amd of deceased---Accused, after the occurrence, attempted to commit suicide in view of the prosecution witnesses and the said act of the accused was also proved and corroborated by the statement of Medical Officer---Accused while getting his statement recorded at the time of framing of charge made a blunt admission that he had attempted to take his own life after realizing what he had done---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Recovery of weapon of offence on the instance of accused---Inconsequential---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Recovery of the Knife from the accused, could not be relied upon as the knife which had been used by the accused to cause the death of the deceased, though taken into possession by the Investigating Officer of the case, however, was never produced before the Trial Court---Investigating Officer stated that a sealed parcel of the knife was prepared and handed over to Police Official and similar was the statement of said Police Official---However, according to the statement of recovery witness, two different knives were recovered---Said recovery witness also stated that the churri recovered from the accused had a yellow coloured handle---Contrary to the said statement, according to the report of Forensic Science Agency, the knife analyzed by Forensic Science Agency had an orange coloured handle---In that manner, it was not clear as to out of the two knives used by the accused during the occurrence, which knife was produced before the Trial Court and exhibited as an article and which knife was analyzed by the Forensic Science Agency---Moreover, it was noted that one of the knives was also sent to the office of Forensic Science Agency for the analysis of the finger prints and according to the report of Forensic Science Agency, the knife was processed for the development of latent prints, however no latent print was developed, therefore, no comparison was conducted with the finger and palm print of the accused---Thus, the recovery of the knife did not further the case of prosecution in any manner---In view of the said facts, the alleged recovery of the knife was not proved and the same could not be used as a circumstance against the accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence--- Motive not proved---Effect---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Motive of the occurrence, as mentioned in the written application of complainant, was that the deceased had won a prize of Rs.20/- which when demanded by the deceased from the accused, the accused committed the occurrence---Motive as alleged could not be proved---Both the eye-witnesses while appearing before the Trial Court did not mention the said motive of the occurrence and made no statements with regard to the motive before the Trial Court---Furthermore, no documentary evidence was brought on record to establish that the deceased had won a prize of Rs. 20/- and the accused, on demanding the said prize, committed the murder of the deceased due to the said reason---During the course of investigation, the Investigating Officer of the case did not collect any evidence in support of the motive of the occurrence as mentioned in the written application---Prosecution witnesses failed to provide evidence to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the accused to have commit the qatl-i-amd of the deceased---No independent witness was produced by the prosecution to prove the motive as alleged---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. Muhammad Asif v. The State 2008 SCMR 1001 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Motive not proved---Recovery of weapon in-consequential---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Record showed that the evidence of recovery of the knives from the possession of the accused had been disbelieved---Prosecution had alleged a specific motive in the case but failed to prove the same---Question of quantum of sentence required utmost attention and thoughtfulness on the parts of the Courts---Moreover, it was not determinable in the case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the accused, which had resulted into the death of the deceased---Thus, the death sentence awarded to the accused was quite castigatory---Notproving of motive might be considered a mitigating circumstance in favour of the accused---Hence, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660; Ahmad Nawaz and another v. The State 2011 SCMR 593; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Nawab Ali v. The State 2019 SCMR 2009; Muhammad Akram alias Akrai v. The State 2019 SCMR 610; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035; Qaddan and others v. The State 2017 SCMR 148 and Ghulam Murtaza v. The State 2021 SCMR 149 rel. Farooq Haider Malik for Appellant. Ch. Asghar Ali Gill, Deputy Prosecutor General for the State. Asif Usmani for the Complainant. Date of hearing: 30th November, 2021. JUDGMENT SADIQ MAHMUD KHURRAM, J.---Muhammad Ayaz son of Muhammad Akram (convict) was tried by the learned Additional Sessions Judge, Ahmed Pur East in case FIR No. 287 of 2017 dated 12.09.2017 registered at Police Station City Ahmed Pur East, District Bahawalpur in respect of offences under sections 302 and 325, P.P.C. for committing the Qatl-i-Amd of Muhammad Bilal son of Muhammad Tariq (deceased). The learned trial court vide judgment dated 06.03.2019, convicted Muhammad Ayaz son of Muhammad Akram (convict) and sentenced him as infra: Muhammad Ayaz son of Muhammad Akram:- i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Bilal son of Muhammad Tariq (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default whereof, the convict was directed to undergo further six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous Imprisonment for one year under section 325, P.P.C. and directed to pay fine of Rs.25000/- and in default of payment of fine to further undergo simple imprisonment of three months. 2. Feeling aggrieved, Muhammad Ayaz son of Muhammad Akram (convict) lodged the Criminal Appeal No.138-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.06 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ayaz son of Muhammad Akram. We intend to dispose of the Criminal Appeal No. 138-J of 2019 and Murder Reference No.06 of 2019 through this single judgment. 3. Precisely the necessary facts of the prosecution case, as narrated by Muhammad Tariq (PW-1), the complainant of the FIR, are as under:- "On 12.09.2017 at 02:30 Pm, I returned home from my shop while Muhammad Aslam and Muhammad Fayyaz PWs were standing in the street. I gave money to Muhammad Bilal to buy some articles from the shop of Muhammad Ayyaz, accused present in the court. My son Bilal did not return. I along with Muhammad Aslam and Muhammad Fayyaz went to the shop of Muhammadd Ayyaz and when we reached there, I saw that accused Ayyaz had given repeated knife blows on the left, right and front of neck and abdomen and other parts of the body of my son. I along with PWs tried to stop the accused who threatened us that if any one came near him, he would be done to death. Meanwhile, accused Ayyaz gave knife blow on his (Ayaz) neck and after becoming injured he fled away inside of his shop from back door. I attended my injured son who succumbed to the injuries at the spot. The motive was that Rs:20/- prize was won by my son which he demanded from the accused who had murdered him. After some time the police reached the spot and inspected the dead body and 1 submitted the application (Ex.P.A) which contains my signatures as (Ex.P.A/1) upon which the FIR of this case was registered. The dead body was then shifted to the hospital where autopsy was conducted. After post mortem examination, the deed body of my son was handed over to me, vide receipt (Ex.P.B). On 12.09.2017 the dead body of my son was buried." 4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused was sent to face trial. The learned trial court framed the charge against the accused on 30.11.2017, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case, got statements of as many as eleven witnesses recorded. The ocular account of the case was furnished by Muhammad Tariq (PW-1) and Muhammad Fayyaz (PW-2). Muhammad Naeem Ahmad (PW-3) stated that on 12.09.2017, the Investigating Officer of the case took into possession the blood stained cotton from the place of occurrence, pair of sandals (P-3 and P-4) of the deceased , arrested the appellant from his house and took into possession Churri (P-5) present in the hand of the appellant. Saeed Ahmad 163/HC (PW-4) stated that on 12.09.2017 he escorted the dead body of the deceased to the hospital and also received the last worn clothes of the deceased from the Medical Officer. Dr. Muhammad Asim Shareef (PW-7) stated that on 17.09.2017 he examined the appellant, observed an injury present on the right clavicle of the appellant and issued the Medico Legal Examination Certificate (Exh.PQ). Zulfigar Ali, ASI (PW-8) stated that on 12.09.2017 he recorded the formal FIR (Exh.PR). Muhammad Nadeem Akhtar (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PS). Muhammad Arif 985/HC (PW-11) stated that on 12.09.2017, Ghulam Mustafa, SI (PW-10) handed over to him one sealed parcel said to contain the blood stained cotton and seven envelopes and on 18.09.2017 he handed over all the sealed parcels and envelopes to Ghulam Mustafa, SI (PW-10) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Shabbir, SI (PW-5) investigated the case from 12.09.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Ghulam Mustafa, SI (PW-10) investigated the case from 12.09.2017 till 07.11.2018, arrested the appellant in this case on 12.09.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Abdul Jabbar Bhatti (PW-6) examined, who on 12.09.2017 was posted as Medical Officer at the THQ Hospital, Ahmed Pur East and on the same conducted the post mortem examination of the dead body of the deceased. Dr. Abdul Jabbar Bhatti (PW-6) after conducting the post mortem examination of the dead body of the deceased namely Muhammad Bilal son of Muhammad Tariq observed and opined as under:- "Injury No.1 An incised wound measured 23 x 05 cm cutting muscles carotid artery, veins trachea and esophagus reached to cervical vertebra in noted. Advised X-ray. Injury No.2 Two incised wound measuring 10x 5 cm, 18x 5 cm both cutting muscles carotid artery veins and trachea on right side of neck, Advise X-ray. Injury No. 3 A wound measured 7 cm x 3.8 cm anterior side of neck adjacent to Hyoid bone, superiorly cutting right laterally trachea is noted. Advised X-ray. Injury No. 4 Same as injury No. 1. Injury Nos.5 and 6 An incised would (sic) measuring 4 cm x 1.5 cm x exposed bone dorso lateral side of left elbow joint and other would measured 5 cm x 2 cm x bone deep at dorsum of left hand is noted. Injury No. 7 An incised wound measured 9 cm x 4.5 blow left costal margin with ruptured cavity from which intestine protruded/coming out Injury Nos. 8, 9 and 10 Two incised would (sic) (i) 2 cm x 1 cm x skin deep on dorsum of right index finger, (ii) 1.8 cm x 1 cm skin deep on dorsum of right middle finger is noted and (iii) 1.5 x 8 cm x skin deep on dorsum of right little finger is also noted. Injury No.11 An incised wound measuring 15 cm x 1 cm x-skin deep on left lumber region of back is noted. Injury No. 12 An incised wound measuring 8 cm x 1 cm x skin deep on upper lateral quadrant of left buttock is noted: Advised X ray pelvic AP view. ------------------ FINAL OPINION; After complete internal and external body examination all of the wounds are by sharp object. Ante mortem and homicidal in nature and injury Nos. 1 and 2 are main cause of death These injuries cutting beck muscle, carotid arteries, veins, trachea and esophagus and all the contents till cervical vertebra These injures are enough to cause death in general course of life." 7. On 25.02.2019, the learned Assistant District Public Prosecutor gave up prosecution witnesses namely Muhammad Aslam and Muhammad Ashiq as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PU) and the report of Punjab Forensic Science Agency, Lahore (Exh.PV). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Ayaz son of Muhammad Akram under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Ayaz son of Muhammad Akram opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Ahmed Pur East, convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Muhammad Tariq (PW-1) and Muhammad Fayyaz (PW-2) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Tariq (PW-1) and Muhammad Fayyaz (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the weapon and the reports of Punjab Forensic Science Agency, Lahore (Exh.PU and Exh.PV) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Muhammad Tariq (PW-1) and…

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