PLJ 2010 Cr.C. (Lahore) 752 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Kh. Muhammad Sharif, CJ and Kh. Imtiaz Ahmed, J.
KAZIM HUSSAIN SHAH--Appellant
versus
STATE--Respondent
Crl. Appeal No. 470 of 2005 & M.R. No. 784 of 2005, heard on 8.4.2010.
Benefit of doubt--
----Principle--Benefit of doubt, if arise and the Court is convinced, is given to accused and not to prosecution. [P. 760] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against appellant by trial Court--Challenge to--Two occurrence--Crime empties were recovered--Positive report of Forensic Science Laboratory--Recovery was also effected--Held: Court had rightly stated in his impugned judgment that man can tell a lie but not the documents--If the recovery was already effected--Positive report of Forensic Science Laboratory was hereby thrown out of the record being not accepted by High Court--On the same set of evidence two co-accused have been acquitted by trial Court, they were found to be innocent by the police, no recovery was effected from them and against them appeal against acquittal had been filed by complainant--There was no strong and independent corroboration against the present appellant to maintain the conviction on a capital charge--There were four deceased persons in this case but Court cannot hang an innocent person when the case was not proved against him, so, while granting the same benefit--Appeal accepted--Conviction and sentence set aside. [Pp. 760 & 761] A, B & D
Qazi Muhammad Amin, Advocate for Appellant.
Ch. Muhammad Akhtar Khan, Advocate for Complainant.
Sh. Muhammad Munir, DPG for State.
Date of hearing: 8.4.2010.
Judgment
Kh. Muhammad Sharif, CJ.--This judgment will dispose of Criminal Appeal No. 470 of 2005 filed by Kazim Hussain Shah, appellant, who was convicted by learned Addl. Sessions Judge, Chakwal vide his judgment dated 19.11.2005 as under:--
Under Section 302(b) PPC, for committing Qatl-i-amd of Ghulam Sakeena and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 302(b) PPC, for committing Qatl-i-amd of Misbah Batool and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 302(b) PPC, for committing Qatl-i-amd of Khadim Hussain and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 302(b) Cr.P.C. for committing Qatl-i-amd of Bareen Fatima and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 459 PPC, and sentenced to undergo Ten years RI.
Murder Reference No. 784 of 2005 for confirmation or otherwise of death sentence of Kazim Hussain Shah appellant and Crl. Appeal Nos.455 & 475 of 2005 filed by Kazim Hussain Shah against the acquittal of Hamid Hussain Shah & Mulazim Hussain Shah respondents and Crl. Revision No. 208 of 2005 filed by Kazim Hussain Shah complainant/PW-15 against Kazim Hussain Shah appellant/respondent for the enhancement of amount of compensation shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Kazim Hussain complainant (PW-15) are that he is resident of Shahpur Saidan and make labouring of mines in village. As per routine, in the morning for the purpose of labouring when he reached near village, he was stopped by Mulazim Hussain Shah son of Muhammad Hussain Shah who stated that the dispute which is in existence, that would be finished till tomorrow. In the evening after labouring, he came to house. In the night, at about 10.30 p.m. on hearing of noise of fire shots, he reached to the house of Chachazad Moazzam Shah where Kazim Hussain Shah son of Mulazim Hussain Shah while raising pistol, Hamid Ali Shah armed with pistol and Mulazim Hussain Shah armed with danda while running came out from house of chachazad, by entering there he saw, Mst. Ghulam Sakina and Misbah Batool lying in a cot in pool of blood. A voice came from the mouth of Ghulam Sakina that cruel had killed, killed. Mst. Misbah Batool had already died whereas Mst. Ghulam Sakina took her last breath in his presence. In the meanwhile after hearing noise of fire shots from house of his brother Nazar Hussain, he reached there from where Kazim Hussain son of Mulazam Hussain armed with pistol while firing was coming out. He entered there and saw that his brother Khadim Hussain and "Bhabhi" Mst. Bareen Fatima due to fire shots were lying dead. Mst. Rubina `bhateeji' while weeping told him that Kazim Hussain Shah by making fire shots with his pistol on her chacha Khadim Hussain Shah, mother Mst. Bareen Fatima had killed them. In the meantime Fazal Hussain Shah s/o Ghulam Shah and Azhar Hussain Shah s/o Adalat Hussain Shah while witnessing the occurrence also arrived at the spot and other males and females of village also attracted there.
Motive behind the occurrence was that father of his Chachazad Moazzam Shah was murdered in 1970. Murderer party had now developed relations and visiting terms with Kazim Hussain Shah etc, which was annoyed by his Chachazad Moazzam Shah who had stopped his wife and children to go to her parents house. Accused were having grudge because of which today by getting chance and making firing they had murdered Mst. Ghulam Sakeena, Mst. Misbah Khatoon, Mst. Bareen Fatima and Khadim Hussain Shah his brother.
3. The investigation of the case was taken over by Muhammad Akbar Abbas, Inspector/IO PW.18, who sent the complaint for registration of case to the police station. He reached at the spot, prepared injuries statement of Mst. Ghulam Sakina Ex.PU, her inquest report Ex.PV, injuries statement of Mst. Misbah Batool Ex.PW, her inquest report Ex.PX and sent both the dead bodies to DHQ Hospital Chakwal for post-mortem examination. Thereafter, he inspected the place of occurrence and took into possession blood stained piece of quilt after cutting it from cot of Mst. Ghulam Sakina vide memo. Ex.PL, took into possession blood stained piece of pillow of Mst. Misbah Batool vide memo. Ex.PM, took into possession four empties of 30-bore pistol P-18/1-4 vide memo. Ex.PN and prepared rough site-plan of the place of occurrence Ex.PY. Thereafter, he went to second place of occurrence and prepared injuries statement of Bareen Fatima Ex.PZ, her inquest report Ex.PAA, injuries statement of Khadim Hussain Ex.PBB and his inquest report Ex.PCC and sent both the dead bodies to the mortuary for post-mortem examination. He secured blood stained earth vide memo. Ex.PO and Ex.PB, took into possession an empty magazine P-20 vide memo. Ex.PR, also secured five empties of 30-bore pistol P-19/1-5 vide memo. Ex.PQ, took into possession blood stained danda P-21 vide memo. Ex.PS, prepared rough site-plan of the place of occurrence Ex.PDD. On 9.1.2005, he arrested Kazim Shah accused and on 17.1.2005 Kazim Shah accused got recovered pistol 30-bore P-22 along with three bullets P-23/1-3 and magazine P-24, which were taken into possession vide memo. Ex.PT, thereafter, the investigation of this case was entrusted to Abdur Rasheed, Inspector PW-19 who on 20.2.2005 arrested Mulazim Shah and Hamid Shah, found both of them to be innocent and placed their names in Column No. 2 of the challan. However, after completion of formal investigation, the accused were sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced nineteen witnesses in all, thereafter, learned SPP after tendering in evidence reports of chemical Examiner Ex.PEE and Forensic Science Laboratory Ex.PFF closed the prosecution evidence. Then the statements of the accused u/S. 342 Cr.P.C. were recorded in which they pleaded innocence. However, after conclusion of trial, Kazim Hussain accused was convicted and sentenced as mentioned above whereas Mulazim Hussain Shah accused and Hamid Hussain Shah accused (juvenile offender and tried separately) were acquitted by the learned trial Court.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.C and other relevant material available on record, learned counsel for appellant submits that FIR was recorded at the spot; that learned trial Court had declared complaint Ex.PI, which is a basis of prosecution story, a forged document, which was written subsequently and not at that time; that learned trial Court had disbelieved Syed Kazim Hussain Shah PW-15 complainant of complaint Ex.PI; that though the learned trial Court had disbelieved the motive introduced by the complainant in the FIR but itself had introduced the motive by stating that sister of Kazim Hussain Shah appellant namely, Mubeen Fatima, who was married to Moazzam Shah PW-14, was deserted by him and on this reason the instant occurrence had been committed by the appellant. He further submits that motive, which was introduced by the learned trial Judge, was never put to the appellant in his statement recorded u/S. 342 Cr.P.C and in this regard, the law of the land is that when the incriminating evidence, which is on the file, is not put to the accused in his statement recorded u/S. 342 Cr.P.C. then, it cannot be used against him. Learned counsel further submits that learned trial Court had also disbelieved the recovery from the appellant dated 17.01.2005. Adds that prosecution document Ex.DF available at page 186 of the paper book, which was written by District Police Officer, Chakwal to the Commanding Officer, 19-Engineering, 82 Company Sector G-13, F.W.O, Islamabad, shows that appellant had been arrested and recovery has been effected from him on 09.01.2005, then there was no question of recovery from the appellant on 17.01.2005. He further submits that Khalid Mehmood H.C No. 2109 PW.8 stated that he had recorded the formal FIR on 09.01.2005 and on the same day inspector handed over to him four sealed parcels of blood stained earth while Mujahid Iqbal L.H.C 654 PW.3 stated before the learned trial Court that he was handed over two parcels of empties on the same day i.e 09.01.2005 and one parcel of pistol on 17.01.2005 by the Investigator and if Khalid Mehmood H.C No. 2109 was available and he was actual Moharrir, then, there was no need on the part of Inspector/IO, namely, Muhammad Akbar Abbas Shah PW.18 to hand over the parcels of crime empties and pistol to Mujahid Iqbal LHC PW.3. Learned counsel further submits that even Register No. 19 where the entries regarding the deposit of recoveries were made, that was seen by the learned trial Court but the appellant was not given any right to cross-examine the said witness, who had brought the same and furthermore, the person, who had made the entries in the said register, was never summoned and even the same was not put to the appellant in his statement recorded u/S. 342 Cr.P.C being incriminating evidence against him and this act of the learned trial Court shows that he had acted in a prejudice manner against the appellant; that Syed Kazim Hussain Shah PW.15 and Babar Ali PW.17 eye-witnesses have been disbelieved whereas Mst. Rubina Kazmi PW.16 has been believed partly by the learned trial Court and her statement has been contradicted by the post-mortem report; that she is child of impressionable age and she has been disbelieved qua two co-accused, namely, Mulazim Hussain Shah and Hamid Hussain Shah, who are father and brother of the appellant, how can she be believed against the appellant; that there is no independent and strong corroboration against the appellant to maintain his conviction on a capital charge and in fact prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. On the other hand, learned Deputy Prosecution General assisted by learned counsel for the complainant submits that motive set up in the FIR by the complainant is proved; that motive behind the occurrence was that Latif Shah father of Moazzam Shah PW.14 was murdered in the year 1970 and the present appellant developed strong relations with the accused of that murder case, which was disliked by Moazzam Shah and his other family members, who forbade the appellant not to visit the house of murderer of father of Moazzam Shah and thereafter, Mubeen Fatima sister of the appellant was divorced by Moazzam Shah after keeping the children with him and entered into second marriage, which was not accepted by the appellant; that enmity of the appellant was not only against Moazzam Shah but also against his other male and female members of the family. Learned counsel further submits that there was no necessity on the part of Rubina Kazmi PW.16 to leave the actual culprits and to falsely implicate the appellant; that she is the most natural witness being inmate of the house; that ocular account in this case is corroborated with the motive given in the FIR; that Bashir Hussain Shah PW.12 was witness of recovery and in his presence from two places recovery of empties was effected and the said empties matched with the pistol recovered at the instance of the appellant; that first version of the appellant before the learned trial Court at the time of his arrest was not the case of the prosecution so there was no question to put the same to the appellant in his statement recorded u/S. 342 Cr.P.C; that as far as, perusal and mentioning of Register No. 19 by the learned trial Court, is concerned, that was done by the learned trial Judge in order to reach at a just conclusion in this case. Reliance is placed upon Syed Ali Bepari's case as reported in PLD 1962 S.C 502. He further submits that it was the appellant, who had committed four murder in this case; that judgment passed by learned trial Court should be up held as he has rightly convicted and sentenced the appellant after reaching at the just conclusion so the appeal filed by him is liable to be dismissed.
7. We have heard the arguments advanced by learned counsel for the parties and have also gone through the record very minutely with their able assistance. Occurrence in this case had taken place on 08.01.2005 at 10.30 p.m. within the revenue estate of Shahpur Syedan at a distance of six miles away from Police Station Dohman while the matter was reported to the police on 09.01.2005 at 2.15 p.m. by Kazim Hussain Shah complainant through complaint Ex.PI and the formal FIR was recorded on the same day at 3.00 p.m. by Khalid Mehmood M.H.C. There are four deceased in this case, namely, Mst. Ghulam Sakina (60 years), Mst. Misbah Batool (7-years), Mst. Bareen Fatima (30-years) and Khadim Hussain Shah (39-years). Mst. Ghulam Sakina and Mst. Bareen Fatima deceased are mother and sister of Moazzam Shah PW whereas Mst. Misbah Batool deceased is daughter of Mst. Bareen Fatima deceased and Khadim Hussain deceased is first cousin of Moazzam Shah PW and brother of Syed Kazim Hussain Shah Complainant. Mst. Rubina Kazmi PW.16 and Babar Ali PW.17 are daughter and son of Mst. Bareen Fatima deceased respectively. Along with the appellant his father Mulazim Hussain Shah was tried while his brother Hamid Hussain Shah, who was juvenile offender, was tried separately by the learned trial Court in this case but father and brother of the appellant were acquitted and against their acquittal complainant had also filed two separates appeals, which are also fixed for today.
Muhammad Akbar Abbas, Inspector/I.O. PW.18 after reaching at the first place of occurrence, prepared injuries statement of Mst. Ghulam Sakina Ex.PU, her inquest report Ex.PV, injuries statement of Mst. Misbah Batool Ex.PW, her inquest report Ex.PX, took into possession blood stained piece of quilt after cutting it from cot of Mst. Ghulam Sakina vide memo. Ex.PL, blood stained piece of pillow of Mst. Misbah Batool vide memo. Ex.PM, four empties of 30-bore pistol P-18/1-4 vide memo. Ex.PN and prepared rough site-plan of the place of occurrence Ex.PY. Thereafter he went to second place of occurrence, prepared injuries statement of Mst. Bareen Fatima Ex.PZ, her inquest report Ex.PAA, injuries statement of Khadim Hussain Ex.PBB and his inquest report Ex.PCC, secured blood stained earth vide memo. Ex.PO and Ex.PD, took into possession an empty magazine P-20 vide memo. Ex.PR, also secured five empties of 30-bore pistol P-19/1-5 vide memo. Ex.PQ, blood stained danda P-21 vide memo. Ex.PS and prepared rough site-plan of the place of occurrence Ex.PDD.
Dr. Shakeel Ahmed PW.6 conducted post-mortem examination on the dead body of Khadim Hussain Shah deceased on 09.01.2005 at about 11.20 a.m and found one firearm injury on his person. The probable time between injury and death was 15 minutes to one hour and between death and post-mortem was 12 to 24 hours. Lady Doctor Tasleem Akhtar PW.7 on 09.01.2005 at about 2.00 p.m. conducted post-mortem examination on the dead body of Mst. Ghulam Sakeena deceased and found four injuries on her person. The probable time between injuries and death was immediate and between death and post-mortem was 12 to 18 hours, then she conducted post-mortem examination on the dead body of Mst. Bareen Fatima at about 2.30 p.m. the same day and found five injuries on her person. The probable time between injuries and death was immediate and between death and post-mortem was 12 to 18 hours, thereafter, she conducted post-mortem examination on the dead body of Mst. Misbah Batool at about 3.00 p.m. the same day and found six injuries on her person. The probable time between injuries and death was immediate and between death and post-mortem was 12 to 18 hours.
Learned counsel for the appellant after having gone through different portions of the impugned judgment stated that motive had been disbelieved by the learned trial Court. For the just decision of this case, the motive given by the complainant in the FIR is reproduced below:--
"Motive behind the occurrence was that father of his Chachazad Moazzam Shah was murdered in 1970. Murderer party had now developed relations and visiting terms with Kazim Hussain Shah etc., which was annoyed by his Chachazad Moazzam Shah who had stopped his wife and children to go to her parents house. Accused were having grudge because of which today by getting chance and making firing they had murdered Mst. Ghulam Sakeena, Mst. Misbah Khatoon, Mst. Bareen Fatima and Khadim Hussain Shah his brother. After the occurrence accused fled away from the spot."
After having gone through the above said motive, we are of the view that learned trial Court has rightly rejected the motive given by the prosecution for the reasons that murder of father of Mozzam Shah PW took place in the year 1970 in which four accused persons were named, two had died whereas two were alive and one of them was living in Lahore and the other was living in Kohat. Mst. Mubeen Fatima sister of the appellant was married to Moazzam Shah PW.14, who was residing at Peshawar and naturally used to visit his village. As we have mentioned above that family of Kazim Hussain Shah appellant had developed relations and visiting terms with the murderer party of father of Moazzam Shah, which annoyed Moazzam Shah, who had stopped his wife and children to go to her parents house and many a time family of Moazzam Shah reprimanded the appellant and asked him not to visit the house of murderer of father of Moazzam Shah and ultimately sister of the appellant, namely, Mubeen Fatima was divorced by Moazzam Shah after retaining her children with him and then he entered into second marriage without the permission of his first wife Mst. Mubeen Fatima.
There are two occurrences in this case. In the first occurrence Mst. Ghulam Sakeena and Mst. Misbah Batool were murdered and in the second occurrence Bareen Fatima and Khadim Hussain were murdered. Syed Kazim Hussain Shah complainant is not an eye-witness in both the occurrences and the only eye-witness in this case was Babar Ali PW.17, who has been disbelieved by the learned trial Court and rightly so. Moreover, occurrence in this case took place on 09.01.2005 while the statement of Babar Ali eye-witness was recorded on 13.1.2005 so there is four days delay in recording his statement, which casts doubt on the prosecution case.
Now we are left with only one eye-witness, namely, Mst. Rubina Kazmi PW.16, who is daughter of Mst. Bareen Fatima deceased and in her house not only Mst. Bareen Fatima was murdered but Khadim Hussain was murdered as well, who was brother of husband of Mst. Bareen Fatima and having his own house so we are unable to understand that why he was living with Mst. Bareen Fatima in her house. The learned trial Judge has partly believed and partly disbelieved the statement of Mst. Rubina Kazmi who had categorically stated in her statement that 10/12 danda blows were given on the head of Mst. Bareen Fatima but there is not a single blunt weapon injury on her person whereas all the injuries on the persons of Mst. Bareen Fatima and Khadim Hussain are with firearm. Had she been present at the spot and witnessed the occurrence with her own eyes, she could not have been made such a mistake by attributing Danda blows on the person of Mst. Bareen Fatima deceased by the appellant so due to these reasons we are not going to believe her statement. It was the month of January when there was severe cold in whole of the country, we have gone through the FIR and statements of the eye-witnesses, no natural or un-natural light has been mentioned in the FIR by the complainant and the eye-witnesses in their statements recorded by the learned trial Court. Moreover, first target of the appellant in this case should have been Moazzam Shah PW, who had divorced his sister after retaining her children and not the present four deceased persons because it has not come on record that Moazzam Shah PW never visited his house.
The other important aspect of the case is recovery. It is correct that four crime empties were recovered from the spot by the investigator and those were matched according to positive report of Forensic Science Laboratory with the pistol recovered at the instance of the appellant but there is very important document on the file i.e Ex.DF at page 186 of the paper book, which was written by District Police Officer, Chakwal to the Commanding Officer, 19-Engineering, 82 Company Sector G-13, F.W.O, Islamabad, which is re-produced below for the just decision of this case.
"MEMORANDUM:
08.01.2005, accused Kazim Hussain Shah s/o Mulazim Hussain Shah armed with pistol, along with his co-accused committed the murder of four innocent persons, namely, Mst. Ghulam Sakeena, (2) Misbah Batool, (3) Mst. Bareen Fatima and (4) Khadim Hussain. Case FIR No. 10 dated 09.01.2005 u/S. 302/452/34 PPC P.S Dhuman, has been registered, accused Kazim Hussain Shah has been arrested and the weapon of offence (pistol) has been recovered from the accused, who is presently serving under your administrative control in 19 Engineering Core, FWO G-13, Center, Islamabad. A telephonic intimation in this regard has been given to Sub: Akhtar Ali on your office, through Telephone No. 051-2113484. Copy of FIR is attached herewith for ready reference, please."
The above said quotation shows that recovery was already effected from the appellant on 09.01.2005 and the learned trial Court had rightly stated in his impugned judgment that man can tell a lie but not the documents. If the recovery was already effected from the appellant on 09.01.2005, then, there was no question of recovery from him on 17.01.2005 so the positive report of Forensic Science Laboratory is hereby thrown out of the record being not accepted by this Court. On the same set of evidence two co-accused have been acquitted by the learned trial Court, they were found to be innocent by the police, no recovery was effected from them and against them appeal against acquittal had been filed by the complainant. There is no strong and independent corroboration against the present appellant to maintain the conviction on a capital charge. It is a settled law that benefit of doubt if arise and the learned Judge is convinced, is given to the accused and not to the prosecution. We are mindful of the fact that there are four deceased persons in this case but we cannot hang an innocent person when the case is not proved against him so while granting the same benefit, we accept this appeal filed by the appellant, set-aside his conviction and sentence recorded against him by the learned trial Court and acquit him of the charge. The death sentence is NOT confirmed and Murder Reference is replied in NEGATIVE. He is in Jail and shall be released forthwith if not required to be detained in any other case.
For the reasons mentioned above Criminal Appeal Nos.455 & 475 of 2005 filed by Kazim Hussain Shah complainant against the acquittal of Hamid Hussain Shah & Mulazim Hussain Shah respondents and Crl. Revision No. 208 of 2005 filed by Kazim Hussain Shah complainant against Kazim Hussain Shah appellant/respondent for the enhancement of amount of compensation are dismissed.
(A.S.) Appeal accepted.
[Rawalpindi Bench Rawalpindi]
Present: Kh. Muhammad Sharif, CJ and Kh. Imtiaz Ahmed, J.
KAZIM HUSSAIN SHAH--Appellant
versus
STATE--Respondent
Crl. Appeal No. 470 of 2005 & M.R. No. 784 of 2005, heard on 8.4.2010.
Benefit of doubt--
----Principle--Benefit of doubt, if arise and the Court is convinced, is given to accused and not to prosecution. [P. 760] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against appellant by trial Court--Challenge to--Two occurrence--Crime empties were recovered--Positive report of Forensic Science Laboratory--Recovery was also effected--Held: Court had rightly stated in his impugned judgment that man can tell a lie but not the documents--If the recovery was already effected--Positive report of Forensic Science Laboratory was hereby thrown out of the record being not accepted by High Court--On the same set of evidence two co-accused have been acquitted by trial Court, they were found to be innocent by the police, no recovery was effected from them and against them appeal against acquittal had been filed by complainant--There was no strong and independent corroboration against the present appellant to maintain the conviction on a capital charge--There were four deceased persons in this case but Court cannot hang an innocent person when the case was not proved against him, so, while granting the same benefit--Appeal accepted--Conviction and sentence set aside. [Pp. 760 & 761] A, B & D
Qazi Muhammad Amin, Advocate for Appellant.
Ch. Muhammad Akhtar Khan, Advocate for Complainant.
Sh. Muhammad Munir, DPG for State.
Date of hearing: 8.4.2010.
Judgment
Kh. Muhammad Sharif, CJ.--This judgment will dispose of Criminal Appeal No. 470 of 2005 filed by Kazim Hussain Shah, appellant, who was convicted by learned Addl. Sessions Judge, Chakwal vide his judgment dated 19.11.2005 as under:--
Under Section 302(b) PPC, for committing Qatl-i-amd of Ghulam Sakeena and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 302(b) PPC, for committing Qatl-i-amd of Misbah Batool and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 302(b) PPC, for committing Qatl-i-amd of Khadim Hussain and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 302(b) Cr.P.C. for committing Qatl-i-amd of Bareen Fatima and sentenced to death and to pay Rs. 100,000/- as compensation and in default thereof, six months SI.
Under Section 459 PPC, and sentenced to undergo Ten years RI.
Murder Reference No. 784 of 2005 for confirmation or otherwise of death sentence of Kazim Hussain Shah appellant and Crl. Appeal Nos.455 & 475 of 2005 filed by Kazim Hussain Shah against the acquittal of Hamid Hussain Shah & Mulazim Hussain Shah respondents and Crl. Revision No. 208 of 2005 filed by Kazim Hussain Shah complainant/PW-15 against Kazim Hussain Shah appellant/respondent for the enhancement of amount of compensation shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Kazim Hussain complainant (PW-15) are that he is resident of Shahpur Saidan and make labouring of mines in village. As per routine, in the morning for the purpose of labouring when he reached near village, he was stopped by Mulazim Hussain Shah son of Muhammad Hussain Shah who stated that the dispute which is in existence, that would be finished till tomorrow. In the evening after labouring, he came to house. In the night, at about 10.30 p.m. on hearing of noise of fire shots, he reached to the house of Chachazad Moazzam Shah where Kazim Hussain Shah son of Mulazim Hussain Shah while raising pistol, Hamid Ali Shah armed with pistol and Mulazim Hussain Shah armed with danda while running came out from house of chachazad, by entering there he saw, Mst. Ghulam Sakina and Misbah Batool lying in a cot in pool of blood. A voice came from the mouth of Ghulam Sakina that cruel had killed, killed. Mst. Misbah Batool had already died whereas Mst. Ghulam Sakina took her last breath in his presence. In the meanwhile after hearing noise of fire shots from house of his brother Nazar Hussain, he reached there from where Kazim Hussain son of Mulazam Hussain armed with pistol while firing was coming out. He entered there and saw that his brother Khadim Hussain and "Bhabhi" Mst. Bareen Fatima due to fire shots were lying dead. Mst. Rubina `bhateeji' while weeping told him that Kazim Hussain Shah by making fire shots with his pistol on her chacha Khadim Hussain Shah, mother Mst. Bareen Fatima had killed them. In the meantime Fazal Hussain Shah s/o Ghulam Shah and Azhar Hussain Shah s/o Adalat Hussain Shah while witnessing the occurrence also arrived at the spot and other males and females of village also attracted there.
Motive behind the occurrence was that father of his Chachazad Moazzam Shah was murdered in 1970. Murderer party had now developed relations and visiting terms with Kazim Hussain Shah etc, which was annoyed by his Chachazad Moazzam Shah who had stopped his wife and children to go to her parents house. Accused were having grudge because of which today by getting chance and making firing they had murdered Mst. Ghulam Sakeena, Mst. Misbah Khatoon, Mst. Bareen Fatima and Khadim Hussain Shah his brother.
3. The investigation of the case was taken over by Muhammad Akbar Abbas, Inspector/IO PW.18, who sent the complaint for registration of case to the police station. He reached at the spot, prepared injuries statement of Mst. Ghulam Sakina Ex.PU, her inquest report Ex.PV, injuries statement of Mst. Misbah Batool Ex.PW, her inquest report Ex.PX and sent both the dead bodies to DHQ Hospital Chakwal for post-mortem examination. Thereafter, he inspected the place of occurrence and took into possession blood stained piece of quilt after cutting it from cot of Mst. Ghulam Sakina vide memo. Ex.PL, took into possession blood stained piece of pillow of Mst. Misbah Batool vide memo. Ex.PM, took into possession four empties of 30-bore pistol P-18/1-4 vide memo. Ex.PN and prepared rough site-plan of the place of occurrence Ex.PY. Thereafter, he went to second place of occurrence and prepared injuries statement of Bareen Fatima Ex.PZ, her inquest report Ex.PAA, injuries statement of Khadim Hussain Ex.PBB and his inquest report Ex.PCC and sent both the dead bodies to the mortuary for post-mortem examination. He secured blood stained earth vide memo. Ex.PO and Ex.PB, took into possession an empty magazine P-20 vide memo. Ex.PR, also secured five empties of 30-bore pistol P-19/1-5 vide memo. Ex.PQ, took into possession blood stained danda P-21 vide memo. Ex.PS, prepared rough site-plan of the place of occurrence Ex.PDD. On 9.1.2005, he arrested Kazim Shah accused and on 17.1.2005 Kazim Shah accused got recovered pistol 30-bore P-22 along with three bullets P-23/1-3 and magazine P-24, which were taken into possession vide memo. Ex.PT, thereafter, the investigation of this case was entrusted to Abdur Rasheed, Inspector PW-19 who on 20.2.2005 arrested Mulazim Shah and Hamid Shah, found both of them to be innocent and placed their names in Column No. 2 of the challan. However, after completion of formal investigation, the accused were sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced nineteen witnesses in all, thereafter, learned SPP after tendering in evidence reports of chemical Examiner Ex.PEE and Forensic Science Laboratory Ex.PFF closed the prosecution evidence. Then the statements of the accused u/S. 342 Cr.P.C. were recorded in which they pleaded innocence. However, after conclusion of trial, Kazim Hussain accused was convicted and sentenced as mentioned above whereas Mulazim Hussain Shah accused and Hamid Hussain Shah accused (juvenile offender and tried separately) were acquitted by the learned trial Court.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.C and other relevant material available on record, learned counsel for appellant submits that FIR was recorded at the spot; that learned trial Court had declared complaint Ex.PI, which is a basis of prosecution story, a forged document, which was written subsequently and not at that time; that learned trial Court had disbelieved Syed Kazim Hussain Shah PW-15 complainant of complaint Ex.PI; that though the learned trial Court had disbelieved the motive introduced by the complainant in the FIR but itself had introduced the motive by stating that sister of Kazim Hussain Shah appellant namely, Mubeen Fatima, who was married to Moazzam Shah PW-14, was deserted by him and on this reason the instant occurrence had been committed by the appellant. He further submits that motive, which was introduced by the learned trial Judge, was never put to the appellant in his statement recorded u/S. 342 Cr.P.C and in this regard, the law of the land is that when the incriminating evidence, which is on the file, is not put to the accused in his statement recorded u/S. 342 Cr.P.C. then, it cannot be used against him. Learned counsel further submits that learned trial Court had also disbelieved the recovery from the appellant dated 17.01.2005. Adds that prosecution document Ex.DF available at page 186 of the paper book, which was written by District Police Officer, Chakwal to the Commanding Officer, 19-Engineering, 82 Company Sector G-13, F.W.O, Islamabad, shows that appellant had been arrested and recovery has been effected from him on 09.01.2005, then there was no question of recovery from the appellant on 17.01.2005. He further submits that Khalid Mehmood H.C No. 2109 PW.8 stated that he had recorded the formal FIR on 09.01.2005 and on the same day inspector handed over to him four sealed parcels of blood stained earth while Mujahid Iqbal L.H.C 654 PW.3 stated before the learned trial Court that he was handed over two parcels of empties on the same day i.e 09.01.2005 and one parcel of pistol on 17.01.2005 by the Investigator and if Khalid Mehmood H.C No. 2109 was available and he was actual Moharrir, then, there was no need on the part of Inspector/IO, namely, Muhammad Akbar Abbas Shah PW.18 to hand over the parcels of crime empties and pistol to Mujahid Iqbal LHC PW.3. Learned counsel further submits that even Register No. 19 where the entries regarding the deposit of recoveries were made, that was seen by the learned trial Court but the appellant was not given any right to cross-examine the said witness, who had brought the same and furthermore, the person, who had made the entries in the said register, was never summoned and even the same was not put to the appellant in his statement recorded u/S. 342 Cr.P.C being incriminating evidence against him and this act of the learned trial Court shows that he had acted in a prejudice manner against the appellant; that Syed Kazim Hussain Shah PW.15 and Babar Ali PW.17 eye-witnesses have been disbelieved whereas Mst. Rubina Kazmi PW.16 has been believed partly by the learned trial Court and her statement has been contradicted by the post-mortem report; that she is child of impressionable age and she has been disbelieved qua two co-accused, namely, Mulazim Hussain Shah and Hamid Hussain Shah, who are father and brother of the appellant, how can she be believed against the appellant; that there is no independent and strong corroboration against the appellant to maintain his conviction on a capital charge and in fact prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. On the other hand, learned Deputy Prosecution General assisted by learned counsel for the complainant submits that motive set up in the FIR by the complainant is proved; that motive behind the occurrence was that Latif Shah father of Moazzam Shah PW.14 was murdered in the year 1970 and the present appellant developed strong relations with the accused of that murder case, which was disliked by Moazzam Shah and his other family members, who forbade the appellant not to visit the house of murderer of father of Moazzam Shah and thereafter, Mubeen Fatima sister of the appellant was divorced by Moazzam Shah after keeping the children with him and entered into second marriage, which was not accepted by the appellant; that enmity of the appellant was not only against Moazzam Shah but also against his other male and female members of the family. Learned counsel further submits that there was no necessity on the part of Rubina Kazmi PW.16 to leave the actual culprits and to falsely implicate the appellant; that she is the most natural witness being inmate of the house; that ocular account in this case is corroborated with the motive given in the FIR; that Bashir Hussain Shah PW.12 was witness of recovery and in his presence from two places recovery of empties was effected and the said empties matched with the pistol recovered at the instance of the appellant; that first version of the appellant before the learned trial Court at the time of his arrest was not the case of the prosecution so there was no question to put the same to the appellant in his statement recorded u/S. 342 Cr.P.C; that as far as, perusal and mentioning of Register No. 19 by the learned trial Court, is concerned, that was done by the learned trial Judge in order to reach at a just conclusion in this case. Reliance is placed upon Syed Ali Bepari's case as reported in PLD 1962 S.C 502. He further submits that it was the appellant, who had committed four murder in this case; that judgment passed by learned trial Court should be up held as he has rightly convicted and sentenced the appellant after reaching at the just conclusion so the appeal filed by him is liable to be dismissed.
7. We have heard the arguments advanced by learned counsel for the parties and have also gone through the record very minutely with their able assistance. Occurrence in this case had taken place on 08.01.2005 at 10.30 p.m. within the revenue estate of Shahpur Syedan at a distance of six miles away from Police Station Dohman while the matter was reported to the police on 09.01.2005 at 2.15 p.m. by Kazim Hussain Shah complainant through complaint Ex.PI and the formal FIR was recorded on the same day at 3.00 p.m. by Khalid Mehmood M.H.C. There are four deceased in this case, namely, Mst. Ghulam Sakina (60 years), Mst. Misbah Batool (7-years), Mst. Bareen Fatima (30-years) and Khadim Hussain Shah (39-years). Mst. Ghulam Sakina and Mst. Bareen Fatima deceased are mother and sister of Moazzam Shah PW whereas Mst. Misbah Batool deceased is daughter of Mst. Bareen Fatima deceased and Khadim Hussain deceased is first cousin of Moazzam Shah PW and brother of Syed Kazim Hussain Shah Complainant. Mst. Rubina Kazmi PW.16 and Babar Ali PW.17 are daughter and son of Mst. Bareen Fatima deceased respectively. Along with the appellant his father Mulazim Hussain Shah was tried while his brother Hamid Hussain Shah, who was juvenile offender, was tried separately by the learned trial Court in this case but father and brother of the appellant were acquitted and against their acquittal complainant had also filed two separates appeals, which are also fixed for today.
Muhammad Akbar Abbas, Inspector/I.O. PW.18 after reaching at the first place of occurrence, prepared injuries statement of Mst. Ghulam Sakina Ex.PU, her inquest report Ex.PV, injuries statement of Mst. Misbah Batool Ex.PW, her inquest report Ex.PX, took into possession blood stained piece of quilt after cutting it from cot of Mst. Ghulam Sakina vide memo. Ex.PL, blood stained piece of pillow of Mst. Misbah Batool vide memo. Ex.PM, four empties of 30-bore pistol P-18/1-4 vide memo. Ex.PN and prepared rough site-plan of the place of occurrence Ex.PY. Thereafter he went to second place of occurrence, prepared injuries statement of Mst. Bareen Fatima Ex.PZ, her inquest report Ex.PAA, injuries statement of Khadim Hussain Ex.PBB and his inquest report Ex.PCC, secured blood stained earth vide memo. Ex.PO and Ex.PD, took into possession an empty magazine P-20 vide memo. Ex.PR, also secured five empties of 30-bore pistol P-19/1-5 vide memo. Ex.PQ, blood stained danda P-21 vide memo. Ex.PS and prepared rough site-plan of the place of occurrence Ex.PDD.
Dr. Shakeel Ahmed PW.6 conducted post-mortem examination on the dead body of Khadim Hussain Shah deceased on 09.01.2005 at about 11.20 a.m and found one firearm injury on his person. The probable time between injury and death was 15 minutes to one hour and between death and post-mortem was 12 to 24 hours. Lady Doctor Tasleem Akhtar PW.7 on 09.01.2005 at about 2.00 p.m. conducted post-mortem examination on the dead body of Mst. Ghulam Sakeena deceased and found four injuries on her person. The probable time between injuries and death was immediate and between death and post-mortem was 12 to 18 hours, then she conducted post-mortem examination on the dead body of Mst. Bareen Fatima at about 2.30 p.m. the same day and found five injuries on her person. The probable time between injuries and death was immediate and between death and post-mortem was 12 to 18 hours, thereafter, she conducted post-mortem examination on the dead body of Mst. Misbah Batool at about 3.00 p.m. the same day and found six injuries on her person. The probable time between injuries and death was immediate and between death and post-mortem was 12 to 18 hours.
Learned counsel for the appellant after having gone through different portions of the impugned judgment stated that motive had been disbelieved by the learned trial Court. For the just decision of this case, the motive given by the complainant in the FIR is reproduced below:--
"Motive behind the occurrence was that father of his Chachazad Moazzam Shah was murdered in 1970. Murderer party had now developed relations and visiting terms with Kazim Hussain Shah etc., which was annoyed by his Chachazad Moazzam Shah who had stopped his wife and children to go to her parents house. Accused were having grudge because of which today by getting chance and making firing they had murdered Mst. Ghulam Sakeena, Mst. Misbah Khatoon, Mst. Bareen Fatima and Khadim Hussain Shah his brother. After the occurrence accused fled away from the spot."
After having gone through the above said motive, we are of the view that learned trial Court has rightly rejected the motive given by the prosecution for the reasons that murder of father of Mozzam Shah PW took place in the year 1970 in which four accused persons were named, two had died whereas two were alive and one of them was living in Lahore and the other was living in Kohat. Mst. Mubeen Fatima sister of the appellant was married to Moazzam Shah PW.14, who was residing at Peshawar and naturally used to visit his village. As we have mentioned above that family of Kazim Hussain Shah appellant had developed relations and visiting terms with the murderer party of father of Moazzam Shah, which annoyed Moazzam Shah, who had stopped his wife and children to go to her parents house and many a time family of Moazzam Shah reprimanded the appellant and asked him not to visit the house of murderer of father of Moazzam Shah and ultimately sister of the appellant, namely, Mubeen Fatima was divorced by Moazzam Shah after retaining her children with him and then he entered into second marriage without the permission of his first wife Mst. Mubeen Fatima.
There are two occurrences in this case. In the first occurrence Mst. Ghulam Sakeena and Mst. Misbah Batool were murdered and in the second occurrence Bareen Fatima and Khadim Hussain were murdered. Syed Kazim Hussain Shah complainant is not an eye-witness in both the occurrences and the only eye-witness in this case was Babar Ali PW.17, who has been disbelieved by the learned trial Court and rightly so. Moreover, occurrence in this case took place on 09.01.2005 while the statement of Babar Ali eye-witness was recorded on 13.1.2005 so there is four days delay in recording his statement, which casts doubt on the prosecution case.
Now we are left with only one eye-witness, namely, Mst. Rubina Kazmi PW.16, who is daughter of Mst. Bareen Fatima deceased and in her house not only Mst. Bareen Fatima was murdered but Khadim Hussain was murdered as well, who was brother of husband of Mst. Bareen Fatima and having his own house so we are unable to understand that why he was living with Mst. Bareen Fatima in her house. The learned trial Judge has partly believed and partly disbelieved the statement of Mst. Rubina Kazmi who had categorically stated in her statement that 10/12 danda blows were given on the head of Mst. Bareen Fatima but there is not a single blunt weapon injury on her person whereas all the injuries on the persons of Mst. Bareen Fatima and Khadim Hussain are with firearm. Had she been present at the spot and witnessed the occurrence with her own eyes, she could not have been made such a mistake by attributing Danda blows on the person of Mst. Bareen Fatima deceased by the appellant so due to these reasons we are not going to believe her statement. It was the month of January when there was severe cold in whole of the country, we have gone through the FIR and statements of the eye-witnesses, no natural or un-natural light has been mentioned in the FIR by the complainant and the eye-witnesses in their statements recorded by the learned trial Court. Moreover, first target of the appellant in this case should have been Moazzam Shah PW, who had divorced his sister after retaining her children and not the present four deceased persons because it has not come on record that Moazzam Shah PW never visited his house.
The other important aspect of the case is recovery. It is correct that four crime empties were recovered from the spot by the investigator and those were matched according to positive report of Forensic Science Laboratory with the pistol recovered at the instance of the appellant but there is very important document on the file i.e Ex.DF at page 186 of the paper book, which was written by District Police Officer, Chakwal to the Commanding Officer, 19-Engineering, 82 Company Sector G-13, F.W.O, Islamabad, which is re-produced below for the just decision of this case.
"MEMORANDUM:
08.01.2005, accused Kazim Hussain Shah s/o Mulazim Hussain Shah armed with pistol, along with his co-accused committed the murder of four innocent persons, namely, Mst. Ghulam Sakeena, (2) Misbah Batool, (3) Mst. Bareen Fatima and (4) Khadim Hussain. Case FIR No. 10 dated 09.01.2005 u/S. 302/452/34 PPC P.S Dhuman, has been registered, accused Kazim Hussain Shah has been arrested and the weapon of offence (pistol) has been recovered from the accused, who is presently serving under your administrative control in 19 Engineering Core, FWO G-13, Center, Islamabad. A telephonic intimation in this regard has been given to Sub: Akhtar Ali on your office, through Telephone No. 051-2113484. Copy of FIR is attached herewith for ready reference, please."
The above said quotation shows that recovery was already effected from the appellant on 09.01.2005 and the learned trial Court had rightly stated in his impugned judgment that man can tell a lie but not the documents. If the recovery was already effected from the appellant on 09.01.2005, then, there was no question of recovery from him on 17.01.2005 so the positive report of Forensic Science Laboratory is hereby thrown out of the record being not accepted by this Court. On the same set of evidence two co-accused have been acquitted by the learned trial Court, they were found to be innocent by the police, no recovery was effected from them and against them appeal against acquittal had been filed by the complainant. There is no strong and independent corroboration against the present appellant to maintain the conviction on a capital charge. It is a settled law that benefit of doubt if arise and the learned Judge is convinced, is given to the accused and not to the prosecution. We are mindful of the fact that there are four deceased persons in this case but we cannot hang an innocent person when the case is not proved against him so while granting the same benefit, we accept this appeal filed by the appellant, set-aside his conviction and sentence recorded against him by the learned trial Court and acquit him of the charge. The death sentence is NOT confirmed and Murder Reference is replied in NEGATIVE. He is in Jail and shall be released forthwith if not required to be detained in any other case.
For the reasons mentioned above Criminal Appeal Nos.455 & 475 of 2005 filed by Kazim Hussain Shah complainant against the acquittal of Hamid Hussain Shah & Mulazim Hussain Shah respondents and Crl. Revision No. 208 of 2005 filed by Kazim Hussain Shah complainant against Kazim Hussain Shah appellant/respondent for the enhancement of amount of compensation are dismissed.
(A.S.) Appeal accepted.
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