PLJ 2024 Cr.C. (Note) 219
[Lahore High Court, Lahore]
Present: Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ.
SHAUKAT HAYAT alias FATEH MUHAMMAD--Appellant
versus
STATE--Respondents
Crl. A. No. 126-J & M.R No. 104 of 2009, heard on 25.3.2013.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--“Medical evidence is exactly in line with ocular account”--Ocular account--Motive--Divorce--Sufficient incriminating evidence--Medical evidence--Benefit of doubt--Sentence altered--It is case of complainant that appellant inflicted two churri blows on deceased, hitting him on left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank--(PW.3) who conducted post mortem examination on dead body of deceased in post mortem examination report--The motive behind occurrence as alleged in FIR was that deceased had divorced Mst. Parveen maternal cousin of appellant and because of said grudge appellant committed murder of deceased by inflicting churri blows whereas complainant (PW.4) has stated in her cross-examination that wife of deceased had four brothers--She further stated that brothers of complainant and appellant never complained of showed anger over fact of divorce prior to occurrence--In circumstances there was no reason for appellant to commit murder of deceased because of this motive--There is sufficient incriminating evidence on record in form of straightforward and confidence inspiring ocular acount furnished by complainant (PW.4) and (PW.5), fully supported by medical evidence furnished (PW.3), even if evidence motive and recovery of Churri (P.2) at instance of appellant are excluded from consideration to maintain conviction of appellant under Section 302 (b), PPC awarded by trial Court, which is accordingly maintained--Held: It is well recognized principle of law that accused is entitled for benefit of any doubt as an extenuating circumstance, while deciding question of sentence--While maintaining conviction under Section 302(b), PPC, we alter sentence of appellant from punishment of death to imprisonment for life--The amount of compensation and sentence of imprisonment in default thereof as ordered by trial Court is maintained.
[Para 12, 14, 15, 16 & 17] A, B, C, D & E
2009 SCMR 1188.
Mr. Abid Hussain, Advocate/Defence Counsel appointed at State for Appellant.
Mr. Arshad Mahmood, Deputy Prosecutor General for State.
Mr. Imtiaz Hussain Khan Baloch, Advocate for Complainant.
Date of hearing: 25.3.2013.
Judgment
Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No. 126-J of 2009 titled as “Shaukat Hayat alias Fateh Muhammad versus The State” and Murder Reference No. 104 of 2009 titled as “State versus Shaukat Hayat alias Fateh Muhammad” as both these matters have arisen out of the same case i.e. FIR No. 374/2008 dated 13.06.2008, offence under Section 302, PPC, registered at Police Station Satellite Town, District Sargodha.
2. Shaukat Hayat alias Fateh Muhammad (appellant) was tried by the learned Additional Sessions Judge Sargodha in the above mentioned case. He was convicted vide judgment dated 23.02.2009, under Section 302(b), PPC and sentenced to death. He was also directed to pay Rs. 1,00,000/-(rupees one lac only) as compensation to the legal heirs of Muhammad Shahbaz (deceased) and in default whereof to undergo simple imprisonment for further six months. The learned trial Court has sent Murder Reference No. 104 of 2009 for confirmation or otherwise of the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (conviet) as required under Section 374, Code of Criminal Procedure.
3. Precisely, facts of the case, as contained in P.I.R. (Exh.PE/1), registered on the basis of statement (Exh.PE) made by Mst. Nasreen Akhtar (PW.4), are that complainant’s side consisted of four sisters and one brother namely Shahbaz aged about 24/25 years. Three sisters including complainant were married in Faisalabad whereas fourth sister namely Mst. Naseem was married in Lahore. 5/6 years prior to occurrence, Muhammad Shahbaz brother of the complainant was married to Mst. Parveen daughter of Khushi Muhammad, caste Kamboh, resident of Chak No. 115 Southern, situated within the jurisdiction of Police Station Ata Shaheed and out of the said wedlock a daughter namely Kiran aged 4% years and a son namely Mustafa aged about 3½ years were born who were alive. About three years before the occurrence, Muhammad Shahbaz brother of the complainant due to strained relations divorced his wife Mst. Parveen Bibi and his in-laws filed a suit for recovery of dowry articles in Civil Court, Sargodha which was pending adjudication. ¾ days prior to the occurrence, complainant had come to see her parents at Street No. 14 Jinah Colony, Sargodha. Complainant was a matriculate. On 13.06.2008 at 10:30 p.m. Shaukat son of Ferozdin, caste Kamboh, resident of Chak No. 88 Southern, situated within the jurisdiction of Police Station Saddar Sargodha, maternal cousin (mamoonzad) of complainant came as a guest. After serving him supper complainant and her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim son of Rehmat Ali and brother Shahbaz were chatting with Shaukat while laying on the cots and a bulb was on in the Courtyard. At about 2:30 am. (night) all of a sudden Shaukat Ali (appellant) got out a churri from his folding (dab) of shalwar and raised a lalkara to Shahbaz that he would teach a lesson for divorcing his maternal cousin (khalazad) namely Mst. Parveen and inflicted two churri blows to Shahbaz brother of the complainant while he was laying on the cot, hitting him on the left side of chest and thereafter gave churri blows one after another on left biceps, left armpit and left flank. Shahbaz fell down from the cot while writhing. Shaukat (appellant) while brandishing churri fled away from the spot. When complainant and his mother attended Muhammad Shahbaz he had succumbed to the injuries at the spot. Motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat and because of said grudge he (appellant) committed the murder of Shahbaz by inflicting churri blows. The occurrence was witnessed by Mst. Hameedan Bibi and Ibrahim besides the complainant. Complainant was about to proceed to Police Station to report the matter but in the meantime Manzoor Hussain S.I (PW.9) reached at the spot.
4. Manzoor Hussain SI/SHO (PW.9) was posted as Incharge Police Post Lari Adda of Police Station Satellite Town, Sargodha. On 13.06.2008 after receiving information about the occurrence he reached at the spot and recorded the statement (Exh.PE) of Mst. Nasreen Akhtar and sent the same to Police Station for registration of FIR. Thereafter he inspected the dead body of Muhammad Shahbaz (deceased) and prepared injury statement (Exh.PC), inquest report (Exh.PD). He secured blood stained earth from the place of occurrence vide memo. (Exh.PH). He also took into possession blood stained cot (P.3) from the spot vide memo. (Exh.PG) and last worn clothes of the deceased viz shalwar (P.1) vide recovery memo. (Exh.PK). He also got prepared scaled site-plan (Exh.PA and Exh.PA/1) by Muhammad Saleem Draftsman (PW.2). He arrested Shaukat Hayat (appellant) on 29.06.2008 and obtained his physical remand. On 03.07.2008 appellant allegedly got recovered churri (P.2) vide recovery memo. (Exh.PF). Thereafter he got prepared the challan and submitted the same in the Court of competent jurisdiction.
5. The appellant was summoned by the learned Additional Sessions Judge Sargodha to face the trial. Copies of the documents, as required under Section 265-C, Code of Criminal Procedure, were provided to him and formal charge under Sections 302, PPC was framed against him on 05.01.2009 to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as nine witnesses, in all. Ocular account was furnished by Mst. Nasreen Akhtar complainant (P.W.4) and Mst. Hameeda Bibi (PW.5). Medical evidence was furnished by Dr Muhammad Iqbal (P.W.3). Mst. Nasreen Akhtar (PW.4) and Sagheer Ahmad (PW.6) witnessed the alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF). Manzoor Hussain SI/SHO (PW.9) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned DDPP gave up PWs namely Ibrahim, Munawar Khan, Shahnawaz S.I, Muhammad Saleem being unnecessary and PW Ijaz Ahmad being on medical leave and closed the prosecution case on 18.02.2009 after tendering in evidence the report of Chemical Examiner (Exh.PL) and that of Serologist (Exh.PM). Statement of the appellant was recorded under Section 342, Code of Criminal Procedure on 20.02.2009 wherein he refuted all the allegations of prosecution. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Shaukat Hayat alias Fateh Muhammad (appellant) replied as under:
“I was on very good terms with the deceased and his parents. I have been involved in this case because it was a blind murder in the first place and I was roped in as accused by the complainant since I always considered her to be a negative character and I always spoke against her openly in biradari gatherings.”
The appellant did not appear as his own witness as provided under Section 340(2) Code of Criminal Procedure nor did he produce any evidence in his defence.
6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference.
7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of two hours in reporting the matter to the Police without there being any plausible explanation whereas distance between the Police Station and the place of occurrence was just two furlongs, which casts serious doubts about the presence of witnesses of ocular account at the spot, that both the witnesses of the ocular account i.e. Mst. Nasreen Akhtar (PW.4) and Mst. Hameeda Bibi (PW.5) are interested witnesses as they are closely related inter se as well as to the deceased; that presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is highly improbable and unnatural as she was the resident of Street No. 4 Chamanzar Colony, Faisalabad whereas the occurrence took place at Jinah Colony Sargodha; that in the FIR complainant has stated that she came to the house of her parents ¾ days prior to occurrence, whereas while appearing before the learned trial Court she changed her version by stating that she had come to the house of her mother Mst. Hamida Bibi about seven days prior to the occurrence; that motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross-examination that Mst. Parveen Bibi wife of the deceased had four brothers and that in the circumstances, there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased), that the alleged recovery of Churri (P.2) at the instance of appellant is immaterial as there is no report of Chemical Examiner or Serologist regarding churri (P.2) on the record; that the case of prosecution is of doubtful nature and the appellant is entitled to acquittal.
8. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant, opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the matter to the police if the circumstances of the case such as the time of occurrence are taken into consideration as the occurrence took place at night time and no male member except Ibrahim maternal grandfather of the complainant being infirm and old was present in the house; that presence of Mst. Hameeda Bibi (PW.5) at spot is established from the fact that she was resident of the same house where this incident took place, therefore, her presence in her own house at the odd hours of night was quite natural. So far as presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is concerned, learned counsel contends that the said witness stated in the FIR that she had come to the house of her parents ¾ days prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is the custom of our society that after the marriage the daughters pay frequent visits to the house of their parents; that both these witnesses have no enmity against the appellant for his false implication in this case; that though both the witnesses of the ocular account are related inter se as well as to the deceased but at the same time they are also related to the appellant as well; that even otherwise substitution in such like cases is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits; that the motive has also been proved; that the medical evidence is exactly in line with the ocular account; that the prosecution case is further corroborated by the recovery of churri (P.2) which was taken into possession through recovery memo. (Exh.PF); that there is no mitigating circumstance in this case, therefore, the appellant does not deserve any leniency even in the quantum of sentence,
9. We have heard learned counsel for the appellant, learned counsel for the complainant as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.
10. This unfortunate incident, wherein Muhammad Shahbaz brother of the complainant, was done to death, as per FIR (Exh.PE/1) took place on 13.06.2008 at 2:30 a.m. (night) in the area of Jinah Colony situated within the jurisdiction of Police Station Satellite Town, District Sargodha and the matter was reported to the Police by Mst. areen Akhtar (PW.4) at 4:30 a.m. (night) i.e. after two hours of the occurrence. It is mentioned in the FIR that only women folk along with Ibrahim maternal grandfather of complainant (who was infirm being of advanced age) were present in the house at the time of occurrence. Considering all the circumstances of the case, especially the time of occurrence coupled with the social status of the complainant side we are of the view that there was no conscious or deliberate delay in reporting the matter to the Police.
11. The ocular account was furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5). The presence of Mst. Hameeda Bibi (PW.5) at the spot is established from the fact that she was resident of the same house where this incident took place, whereas Mst. Nasreen Akhtar complainant (PW.4) had come to the house of her parents prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is instinctive nature for a daughter to visit her parents house after marriage. We further noted that there was no enmity between the parties to prompt the complainant or the other witness of the ocular account to falsely depose against the appellant. Even otherwise substitution in such like case is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits. The argument of learned counsel for the appellant that Mst. Nasreen Akhtar has changed her version while appearing before the learned trial Court by stating that she had come to the house of her mother seven days prior to the occurrence does not hold much water as the said change in version does not amount to improvement rather at the most it is just a discrepancy which might have crept into the record by afflux of time.
12. It is the case of the complainant that Shaukat Hayat alias, Fateh Muhammad (appellant) inflicted two churri blows on Muhammad Shahbaz (deceased), hitting him on the left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank. Dr Muhammad Iqbal (PW.3) who conducted post mortem examination on the dead body of Muhammad Shahbaz (deceased) in the post mortem examination report (Exh.PB) noted the following injuries:
1. A incised wound 4 cm x 2 cm on middle part of front of left chest inner side 6 cm from left nipple 3 cm from midline.
2. Incised wound 5 cm x 2½ cm on front of lower part of middle of left chest 5 em below left nipple and 4 cm from midline.
3. Incised wound 8½ cm x 5 cm on front of inner and lower part of left arm, 4 cm above left elbow.
4. Incised wound 1½ x 1 cm on left axilla.
5. Incised wound 5 x 3 cm on the back of left upper region.
Therefore, we are of the view that medical evidence is exactly in line with the ocular account.
13. So far as alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF) is concerned the same is immaterial as no report regarding churri (P.2) either by the Chemical Examiner or of Serologist is available on record.
14. The motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross examination that Mst. Parveen Bibi wife of the deceased had four brothers. She further stated that brothers of Mst. Parveen Bibi and the appellant never complained of showed anger over the fact of divorce prior to the occurrence. In the circumstances there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased) because of this motive. Therefore the motive alleged by the prosecution does not appeal to common sense and we are of the view that prosecution has failed to prove the motive part of the occurrence.
15. There is sufficient incriminating evidence on the record in the form of straightforward and confidence inspiring ocular acount furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5), fully supported by the medical evidence furnished by Dr. Muhammad Iqbal (PW.3), even if the evidence motive and recovery of Churri (P.2) at the instance of appellant are excluded from consideration to maintain the conviction of Shaukat Hayat alias Fateh Muhammad appellant under Section 302 (b), PPC awarded by the learned trial Court, which is accordingly maintained.
16. However, we have noted that it is not a case of capital punishment for the following reasons:-
(a) Recovery of Churri (P.2) is not helpful for the prosecution because of the reasons as elaborated in para 13 above.
(b) Motive has not been believed by us as discussed in para 14 above.
(c) The circumstances suggest that there was no serious or deep rooted enmity between the parties and the occurrence took place at the spur of moment as it is the case of prosecution that on 13.06.2008 at 10:30 p.m. appellant came in the house of complainant and soon after his arrival he was served meal. Thereafter complainant, her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim and Muhammad Shahbaz (deceased) remained busy in chatting with Shaukat Hayat alias Fateh Muhammad (appellant) till 2:30 a.m. Something else happened prior to the occurrence which has not been brought on record.
Moreover, by now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon’ble Supreme Court of Pakistan in the case of “Mir Muhammad alias Miro versus The State” (2009 SCMR 1188 wherein at page 1191, the Hon’ble Supreme Court of Pakistan has emphasized as under:-
“9. It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.”
17. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Shaukat Hayat alias Fateh Muhammad (appellant) from punishment of death to imprisonment for life. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial Court is maintained. Appellant is also extended the benefit of Section 382-B, Code of Criminal Procedure. With the above modification in the quantum of sentence Criminal Appeal No. 126-J of 2009 is dismissed.
18. Murder Reference No. 104 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
