MUHAMMAD RAFIQUE Versus State
SARDAR MUHAMMAD SHAMIM KHAN, J .---The appellant Muhammad Rafique son of Abdul Rehman was tried in case F.I.R. No.123 of 2005 dated 5-8-2005, for the offences under sections 364, 302 and 201 of P.P.C., registered at Police Station Saddar, Multan. Mr. Muhammad Aslam, learned Addl. Sessions Judge, Multan, vide his judgment dated 30-11-2006 convicted the appellant under section 302(b) of P.P.C. and sentenced him to Death. The convict/ appellant was directed to pay compensation of Rs.5,00,000 to the legal heirs of the deceased Shaukat as required under section 544-A of Cr.P.C. and in default thereof he was to undergo S.I. for a period of Six Months. The appellant/convict was also convicted under section 201 of P.P.C. and sentenced to undergo R.I. for Five Years with a fine of Rs.50,000 in default whereof to undergo S.I. for Six Months.
2. Criminal Appeal No.626 of 2006 filed by Muhammad Rafique, appellant against his conviction and sentence, while Murder Reference No.719 of 2006 for confirmation or otherwise of the death sentences of the appellant, shall be decided through this single judgment.
3. Brief facts of the prosecution case are that the complainant Fazal Karim, father of the deceased Shaukat aged 30/32 years, reported the matter to police that he was an employ in Seven Up Factory and after factory hours used to work in Fruit Market, Sooraj Miani. His son also used to work in the said fruit market along with Rafique as co-sharer. On 3-8-2005 at about '10-30 p.m. they closed their business and went towards RAJ GHAT, where they used to live in a house. When they both reached at UBL Chowk, Sooraj Miani, they met with Mulazim Hussain and Shaukat, who asked them where they were going, they replied that they were going to RAJ GHAT. Rafique accused had a shopper in his hand. When son of the complainant did not return to his business for one day, he naturally got worried and started his search but could not find him. His son used to keep sufficient amount with him, so, complainant was of considered belief that his son might had been abducted by the accused Rafique for the purpose of extortion of money and murder. On 5-8-2005 the accused Rafique was apprehended by the police in presence of P.Ws. Mulazim Hussain and Shaukat Hussain, who in custody, disclosed that he had committed the murder of Shaukat by acid and Chhuri on 3-8-2005 and had buried the dead body in a pit in his house situated at RAJ GHAT. On his pointation and leading, the dead body of the deceased was got recovered from the pointed place and consequently sections 302 and 201 of P.P.C. were added in the F.I.R.
4. After completion of investigation, challan was prepared and submitted before the learned trial court for trial. Charge against the accused was framed to which, he pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined as many as Ten (10) P.Ws.
P.W.1 Ghulam Shabbir HC; chalked out the formal F.I.R. Exh.PA/1 on the basis of written application submitted by the complainant Ex.A.
P.W.2. Muhammad Nasir, identified the dead body of the deceased Shaukat at the time of, its autopsy and testified the recovery memo Exh.PC pertaining to KHAKHI cloth in which the dead body was wrapped.
P.W.3. Mulazim Hussain had seen the deceased in company of the accused Muhammad Rafique on 3-8-2005 at 10-30 p.m. at UBL Chowk, Sooraj Miani, Multan. He also testified the recoveries i.e. recovery memo. Exh.PD regarding recovery of three currency notes Exh.P-1/1-3, recovery memo. Exh.PE pertaining to recovery of dead body, recovery memo. Exh.PF regarding blood-stained Chadar Exh.P3, Gadda Exh.P4, Shopper Exh.P-5, recovery memo Exh.PG regarding ash of shoes, clothes of the deceased and accused, pillow and Ban of cot, recovery memo of Exh.PH in respect of Jug of steel Exh.P-6, recovery Exh.PJ in respect of Chhuri Exh. P-7 and Kassi Exh.P-8.
P.W.4. Fazal Khan father of the deceased submitted application before the police for registration of case against the accused. He also testified the recovery memos mentioned above in the statement of PW-3.
P.W.5. Dr. Mushtaq Ahmad Ch., conducted autopsy of dead body of the deceased on 5-8-2005 at 5-30 p.m. and prepared the post mortem report Exh.PK and also signed the inquest report Exh.PN. He observed following injuries on the person of the deceased.
Injury No.1 A lacerated wound 3 cm X 1 cm on the left side of forehead, 6 cm above the left eyebrow. There was depressed fracture of frontal bone.
Injury No.2 A lacerated wound on the right parietal area of skull 9 cm above the right ear and 14 cm from the right eyebrow. There was depressed fracture of underlying bone.
Injury No.3 A lacerated wound 3 cm X 2 cm skin deep on front of right thigh 14cm below the iliaocrest.
The doctor opined that all the injuries were anti-mortem in nature and were inflicted by heavy blunt weapon with small striking surface. Injuries Nos.1 and 2 individually and, all injuries collectively sufficient to cause the death of a person in the ordinary course of nature. He opined that time between injury and death was immediate whereas time between death and postmortem was one to two days.
P.W.6. Anwar 169/HC/Moharrar had received from Abdul Majeed, I.O., the last worn clothes of the deceased, a sealed tin, sealed envelope, a sealed parcel of Chhuri and a Kassi for the safe custody in Malkahana. Sealed parcels of tin, envelope and Chhuri were handed over by him to one Abid Mehmood 1284/C for onward transmission to the office of Chemical Examiner, Lahore.
P.W.7. Pervez Akhtar 2482/C took the dead body of Shaukat, deceased for its autopsy to the mortuary along with two P.Ws. for its identification. After post mortem examination the medical officer handed over him a piece of cloth of Khaki colour, a sealed tin and a sealed envelope which were produced by him before the I.O., who took the same into possession vide recovery memo Exh.PC.
P.W.8. Muhammad Sarfraz, Draftsman prepared the scaled site plan Ex.PP, PP/1 and PP/2 along with the drawings and marginal notes in the scale of 1" = 15 feet.
P.W.9. Abid Mehmood 1284/C transmitted a sealed parcel of tin, a sealed parcel of envelope and a sealed parcel of Churri to the office of Chemical Examiner, Lahore.
P.W.10. Abdul Majeed, S.-I./ Investigating Officer conducted investigation of this case, appre?hended the accused on 5-8-2005, got effected recoveries mentioned above, prepared recovery memos mentioned above, inquest report, recorded the statement of witnesses under section 161 of Cr.P.C. and after finding the accused guilty of the offence, prepared the report , under section 173 of Cr.P.C.
5. The Deputy District Attorney, on the direction of the complainant, gave up Ameer Muhammad and Shaukat Hussain P.Ws. being unnecessary and tendered in evidence the reports of Chemical Examiner Exh.PS and of Serologist Exh.PT and closed the prosecution case.
6. After recording the prosecution evidence, the appellant was examined under section 342 of Cr.P.C. wherein entire case of prosecution had been put to him. He denied the allegations. In reply to the question that why this case against you and why the P.Ws. had deposed against you, appellant replied as under:--
It was an unseen and unwitnessed occurrence. The complainant and the deceased etc., injured Sajjad Hussain son of Muhammad Nawaz, Caste Sial r/o Mouza Rampur near Darbar Sakhi Sultan Ali Akbar, Sooraj Miani, Multan and his sister. In this regard F.I.R. No.9 of 2004 dated 14-1-2004 under sections 337-F(ii), 337-A(i), 452, 354 and 34 P.P.C. was registered at Police Station Saddar, Multan. Copy of F.I.R. is Exh.DA. The deceased and Sajjad Hussain etc., were inimical to each other. Sajjad Hussain threatened Shaukat, deceased for dire consequences before the alleged occurrence. The enmity also came in investigation. I was unaware about' the alleged occurrence. The local police arrested me from my house situated at Dhoorkot and detained me in police lock up. At there it came to my knowledge. I am innocent. Complainant party had entered into compromise with real accused namely Sajjad Hussain and others. Complainant party also demanded huge amount from me for releasing in the case. After this, local police involved me in this case with mala fide in connivance with complainant just to show Karwai.
P. Ws. are the father and uncle of the deceased. Other P. Ws. are Government officials and having natural interest against me to prove the prosecution case just to show their efficiency to their superiors.
7. The appellant did not opt to appear as his own witness under section 340(2) of Cr.P.C. However, in defence evidence the appellant produced copy of F.I.R. No.9 of 2004 dated 14-1-2004 as Exh.DA.
8. After conclusion of the trial aforesaid sentence and conviction was recorded by the learned trial court.
9. The appellant has challenged the validity of impugned judgment through the instant appeal.
10. Learned counsel for the appellant submits that this was an unseen occurrence and appellant had been roped in this case falsely on the basis of circumstantial evidence; that last seen evidence against the appellant was furnished by Mulazim Hussain, P.W.3, who was real uncle of the deceased and Fazal Karim, P.W.4, who was father of the deceased; that last seen evidence furnished by Fazal Karim, P.W.4 was not believable as it was contrary to version taken by him in the F.I.R.; that last seen evidence furnished by P.W.3 is also not believable as it was not furnished by any independent witness; that prosecution did not prove the motive part of prosecution story as according to the complainant deceased was murdered as deceased used to keep sufficient money with him and that appellant abducted him to extort money from the deceased; that dead body of the deceased was not recovered at the pointation of the appellant rather the same was planted against him; that according to the evidence the dead body was recovered. from a house of the appellant which was surrounded by four walls of about four feet height and it was not possible for the appellant to burry the dead body of the deceased in a house whose walls were of aforementioned height, as at the time of its burial one could see from outside of the house; that post mortem examination was conducted with the delay of seven hours which casts serious doubt regarding prosecution story; that appellant did not commit the murder of the deceased rather complainant and deceased injured one Sajjad Hussain and others and in this regard case F.I.R. No.09 of 2004 dated 14-1-2004 for the offence under sections 337-F(ii), 337-A(i), 452, 354 and 34, P.P.C. was registered against them at Police Station Saddar. Deceased and Sajjad Hussain etc., were inimical to each other and Sajjad Hussain threatened Shaukat Abbas, deceased for dire consequences prior to the alleged occurrence; and that, complainant party had entered into compromise with real accused Sajjad Hussain and others and has falsely involved him in this case, so he has prayed for acquittal of the appellant/ accused.
11. Learned D.P.-G. and learned counsel for the complainant have contended that prosecution has proved its case beyond reasonable doubt against the appellant through circumstantial evidence; that although last seen evidence has been produced by Mulazim Hussain, P.W.3, who is real uncle of the deceased and Fazal Karim, P.W.4 who is father of the deceased but mere relationship with the deceased is not a valid ground to discard their evidence as they had no enmity against the appellant to falsely implicate him in this case; that immediately after the registration of F.I.R. appellant took the 1.0. and P.Ws. to his house and got recovered the dead body from there which is best evidence against the appellant connecting him with the commission of offence; that this dead body was wrapped in a blood-stained GADDA and a Shopper, which were also taken into possession by the police; that appellant/ accused also got recovered the Jug from his residential house; that the recovery of Churri and Kassi from his residential house is also a corroborative piece of evidence against him; that medical evidence is also in conformity with the last seen evidence of the prosecution, so, it has been prayed that the appeal of the appellant is liable to be dismissed.
12. We have heard the arguments advanced by the learned counsel for parties and perused the record with care.
13. This is a case of circumstantial evidence and prosecution has placed reliance on the last seen evidence, evidence of recoveries and medical evidence. In order to prove last seen evidence prosecution produced Mulazim Hussain, P.W.3 and Fazal Karim, P.W.4. Mulazim Hussain, P.W.3 stated that on 3-8-2005 at about 10-30 p.m. he and Shaukat Hussain were present at UBL Chowk, Sooraj Miani. At that time Muhammad Rafique, appellant and Shaukat Abbas, deceased met them there. Mulazim Hussain inquired from the appellant that where they were going at that time. Appellant replied to both P.Ws. that he and Shaukat Abbas (deceased) were going to RAJ GHAT. At that time Muhammad Rafique, appellant was having a shopper in his hand. Although Fazal Karim, P.W.4 has also deposed regarding the last seen evidence on the same lines as deposed by Mulazim Hussain, P.W.3 and stated that at the relevant time he also saw his son Shaukat Abbas with the appellant but same fact was not mentioned by him in his application Exh.PA submitted before the police and this portion of his evidence was confronted with his previous statement, so, evidence of Fazal Karim, P.W.4 cannot be believed to the extent of last seen evidence So far as evidence of Mulazim Hussain, P.W.3 is concerned, he not only saw the deceased Shaukat Abbas in company of the appellant but he inquired from the appellant that where they were going at that time and appellant replied to him that he and Shaukat Abbas were going to RAJ GHAT. Mulazim Hussain, P.W.3 met with the deceased and appellant on 3-8-2005 at d0-30 p.m. whereas post 'mortem examination on the dead body of the deceased was conducted on 5-8-2005 and according to the evidence of doctor time between death and post mortem examination was one to two days, so, the medical evidence also corroborates the last seen evidence furnished by Mulazim Hussain, P.W.3. The dead body of the deceased was recovered from a house which was at a distance of 200/300 yards from UBL Chowk where deceased was lastly seen in company of appellant by Mulazim Hussain, P.W.3.
14. The contention of learned counsel for the appellant that last seen evidence was furnished by real uncle of the deceased therefore it should not be believed, is without any substance. The evidence of Mulazim Hussain cannot be discarded simply on the ground of his relationship with the deceased as he had no enmity or malice against the appellant to falsely involve him in this case. We have no reason to doubt that Mulazim Hussain has not seen the deceased with the appellant at relevant time. On the other hand intrinsic worth of his evidence leads us to believe that he was speaking the truth.
15. Another important aspect of this case was that immediately after the registration of F.I.R. the appellant was arrested by Abdul Majeed, S.-I./P.W.10. and according to the evidence of Abdul Majeed, S.-I., at the time of arrest of accused/ appellant he found some injuries on his wrist, back of palm and fingers. The I.O. got the appellant medically examined through doctor on 6-8-2005. Although the doctor was not produced to prove medical certificate, however, the medico-legal certificate of the accused was placed on the record as Exh.PR. The perusal of the medico-legal report of the appellant reveals that doctor observed chemical burns on his hand etc. Keeping in view the duration of these injuries it can safely be presumed that these were suffered by the appellant at the time of murder of the deceased. The medico-legal examination of the appellant corroborates the evidence of Mulazim Hussain, P.W.3 and Fazal Karim, P.W.4, who observed some burns on the dead body of the deceased at the time of its recovery.
16. Immediately after his arrest Muhammad Rafique, appellant in the presence of the P.Ws. disclosed before the I.O. that he committed the murder of Shaukat Abbas and thereafter buried his dead body in the courtyard of his house and he showed his willingness that he was ready to get recovered the dead body of Shaukat Abbas, deceased which was buried by him in his house. After this disclosure the appellant was formally arrested in this case by the I.O. and appellant took I.O., other police officials, P.W.3 Mulazim Hussain and Fazal Karim, P.W.4 to his house situated in Mohallah RAJ GHAT and he dug out the earth and got recovered the dead body of Shaukat Abbas, deceased. The dead body of the deceased recovered on the pointation of appellant was taken into possession vide memo. Exh.PF attested by Fazal Karim, Mulazim Hussain and Shaukat Hussain, given up P.W. Police also took into possession CHADAR P-3, blood-stained GADDDA P-4, Shopper P-5 and heir of the deceased vide memo Exh.PF attested by Fazal Karim and Mulazim Hussain, P.Ws.
17. The recovery of dead body at the pointation of appellant from his house is a strong evidence against him connecting him with the commission of offence. In order to prove this important piece of evidence prosecution produced Mulazim Hussain, p.W.3 and Fazal Karim, P.W.4. Although both these P.Ws are close relative of the deceased but they had got no enmity to falsely involve the appellant. According to prosecution evidence the appellant was arrested immediately after the registration of F.I.R. and thereafter he immediately made disclosure regarding the recovery of dead body from his house and got the same recovered after digging the earth, cannot be disbelieved in any manner. The evidence of Mulazim Hussain, P.W.3 and Fazal Karim, P.W.4 is consistent on all material points regarding the recovery of dead body. Both these P.Ws were cross-examined by the defence at length but nothing could be elicited by the defence to shake their credit. The evidence of Investigating Officer P.W.10 is also consistent and we are not persuaded to agree that appellant had been falsely implicated 'and recovery had not taken place at his instance. The element of fabrication of evidence is absent otherwise the evidence of eye-witness account could have been fabricated. The appellant did not explain that how dead body was buried in his house. It was not even suggested to the P.Ws. that dead body of the deceased was not recovered at the pointation of die appellant from his house. In view of the matter we have no doubt in our mind that dead body was got recovered at the instance of appellant from his house.
18. The contention of learned counsel for the appellant that this murder was committed by Sajjad Hussain and others, who had enmity with Shaukat Abbas, deceased is not believable as keeping in view the evidence of Fazal Karim, P.W.4 the defense itself during cross-examination brought it on record that a compromise was effected between Sajjad Hussain, deceased, his father and others and all the accused persons were acquitted.
19. Another incriminating evidence of the prosecution was recovery of CHHURI P-7 and KASSI P-8 at the pointation of appellant on 14-8-2005 from the same house from where the dead body was recovered. According to prosecution case CHHURI P-7 was weapon of offence whereas KASSI P-8 was used by the appellant for burying the dead body of the deceased.
20. As the appellant, on 5-8-2005, got recovered dead body from his house, had CHHURRI P-7 and KASSI P-8 available in the same house, police must have recovered the same on the said date i.e. 5-8-2005 but recovery of CHHURRI and KASSI 9-days after the recovery of dead body, from the same house, is not believable in any manner. Even otherwise recoveries of CHHURRI and KASSI in this case are not a corroborative piece of evidence against the appellant as keeping in view the evidence of doctor, the deceased received injuries with heavy blunt weapon.
21. There was no motive of the occurrence in this case. The complainant simply had a considered belief that as his son used to keep sufficient amount with him so he might had been abducted for extortion of money. This motive was not directly levelled against the appellant. It was just an apprehension in the mind of the father regarding his son whose whereabouts were not known to him. The contention of learned counsel for the appellant that the motive was put forth by prosecution but it was not proved, is totally based on wrong assumption as prosecution never alleged any motive against the appellant. Motive in such like cases is always in the mind of the accused.
22. For what has been discussed above, we have no hesitation in holding that prosecution has proved its case beyond reasonable doubt by last seen evidence, recovery of dead body of the deceased at the pointation of the appellant from his house, corroborated by medicated evidence. Therefore, Criminal Appeal No.626 of 2006 filed by appellant having no force is hereby dismissed. His conviction and sentence is maintained. The sentence of death is confirmed.
Murder Reference is answered in Affirmative
Death sentence is confirmed.
N.H.Q./M-847/L ???????????????????????????????????????????????????????????????????????????????? Appeal dismissed