IMRAN MEHMOOD Versus State
MOHAMMAD IBRAHIM KHAN, J.--- Impugned herein is the judgment of learned Sessions Judge Haripur dated 22.10.2012 whereby the accused-appellant, after having been found guilty for committing the murder of deceased Ghulam Murtaza and Ghulam Kibriya (both real brothers), was convicted and sentenced to death with a fine of Rs.2,00,000/-, payable to the legal heirs of each of the deceased as compensation under Section 544-A Cr.P.C.
2. To sum things up stated facts leading to the pressing appeal are that the complainant (Mst. Umaira Jabeen) while reporting the crime in the Casualty Ward of DHQ Hospital Haripur alleged that she was married to the accused-appellant some three (03) years back and after spending one year, due to strained relations, her husband gave her oral divorce and shunted her out from his house, thus, she was residing at her parents' house, situated at Hassan Abdal. However, on the fateful day at 17:30 hours, consequent upon obtaining a decree from the Family Court regarding dowry articles, she along with her mother (Mst. Naseem Bibi) and both the deceased namely, Ghulam Murtaza and Ghulam Kibriya (father and uncle respectively) including two bailiffs of the court, went to the house of the accused-appellant for taking the dowry articles, where besides the accused-appellant, his brother Ashiq and Mst. Asmat Sultan Gohar, his mother were also present. During the course of loading household dowry articles in the vehicle, Ashiq and Mst. Asmat Sultan Gohar, brother and mother of the accused-appellant, raised Lalkara to him to kill them, whereupon the accused-appellant started firing with his pistol upon the complainant party, as a result her father was hit on his chest and her uncle sustained firearm injuries on his neck and head, thus both fell on the ground and died on the spot, whereas she and her mother escaped unhurt, hence the FIR ibid.
3. After completion of the investigation, challan was submitted against the accused-appellant and his two acquitted co-accused before the learned trial Judge, who were formally charge sheeted, to which they pleaded not guilty and claimed trial. However, in order to prove its case at the trial the prosecution examined as many as thirteen (13) witnesses in all.
4. After the conclusion of trial, the co-accused who have been attributed the role of Lalkara were acquitted while the accused-appellant was convicted and sentenced in that event, hence the present appeal.
5. The learned counsel for the accused-appellant vehemently contended that the impugned judgment of the learned trial court is in total disregard to the facts and circumstances of the case and is based on the misappreciation and non-appreciation of evidence; that the confessional statement of the accused-appellant was neither voluntary nor true as is the result of third degree method exercised by the police which cannot be relied upon at any cost; that there were independent witnesses of the Mohallah, who had seen the occurrence but they were not examined to corroborate the evidence of inimical and biased witnesses; that the learned trial court has not appraised the evidence in its true perspective and based conviction without going in depth into the prosecution case, thus the impugned judgment craves reversal, modification and rational conversion of death sentence into life imprisonment.
6. On the other hand, the learned Additional Advocate General assisted by the learned counsel for the complainant strongly opposed the contentions of learned counsel for the accused-appellant and argued that the accused-appellant has committed gruesome murder of his two uncles with his pistol which was recovered from his direct possession at the time of arrest; that the recovery of four (04) empties of 30-bore pistol coupled with the forensic science laboratory report further support the prosecution version; that the occurrence took place on 23.12.2010 and the accused-appellant was arrested on the same very day along with weapon of offence, whereafter he made judicial confession before the concerned Magistrate on 27.12.2010 wherein he narrated his allegory as alleged by the prosecution. Thus he is very much involved in the case and deserves no leniency, therefore, the judgment of the learned trial court is well in accordance with law and needs no interference by this court.
7. We have heard learned counsel for the parties as well as the learned Additional Advocate General and have carefully gone through the record with their valuable assistance.
8. In support of the arguments advanced before this court, learned counsel for the accused-appellant relied on PLD 1994 Peshawar 102 (Muhammad Riaz v. The State) 1985 SCMR 838 (Tofail Masih v. The State), 1985 SCMR 843 (Muhammad Akram v. The State), 1982 SCMR 447 (Javed Iqbal v. The State), 1999 SCMR 406 (Muhammad Ikram v. The State), 1992 SCMR 357 (Khudayar v. The State) and 1993 SCMR 1660 (Ansar Ahmad Khan Barki v. The State) while learned counsel for the complainant placed reliance on 1995 MLD 535 (State v. Qaisar), 1995 MLD 544 (Parvez v. The State), PLD 1974 SC 65 (Muhammad Rafiq v. The State), PLD 1980 Peshawar 92 (Mian Jan v. The State), 2007 SCMR 782 (Ghulam Qadir v. The State), PLD 2006 Peshawar 05 (Arif v. The State), 2007 SCMR 641 (Ashfaq Ahmad v. The State), 2010 SCMR 868 (Asad Mehmood v. Akhlaq Ahmad), 1997 SCMR 89 (Muhammad Ahmad v. The State), 2007 SCMR 1519 (Zahoor Ahmad v. The State), 1999 SCMR 2444 (Taj Ali Khan v. The State), 1993 SCMR 155 (Ziaullah v. The State), 2004 SCMR 845 (Khizar Hayat v. Imtiaz Ali Shah), 2001 SCMR 73 (Muhammad Ashraf v. The State), PLD 2007 SC 249 (Dr. Javed Akhtar v. The State), 2005 SCMR 427 (Syed Hamid Mukhtar Shah v. Muhammad Azam), 2005 SCMR 1958 (Noor Muhammad v. The State), 1999 SCMR 2438 (Asghar Baig v. The State), 2006 SCMR 577 (Muhammad Tashfeen v. The State), 1998 PCr.LJ 216 (Liaqat Ali v. The State), 1999 SCMR 1981 (Muhammad Tofail v. The State) and 1999 SCMR 1418 (Mir Hassan v. The State). The theme behind referring to all these authorities by the learned counsel for the parties, learned counsel for the defence has mainly prayed for conversion of the conviction and sentence from the extreme penalty of death to adoption into life, while learned counsel for the complainant repelling the prayer has come up with maintaining the finding in the judgment for the ultimate conviction and sentence of death.
9. Perusal of the record would transpire that the accused-appellant is charged for commission of the offence which took place in presence of the four (04) eye-witnesses, out of whom two were independent one i.e. bailiffs of the court by the names of Munsif and Sharif who were present on the spot at the time of occurrence for the execution of the decree of the learned Family Court passed in favour of the complainant.
10. The record further depicts that the occurrence supervened on 23.12.2010 at 17:30 hours whereas the report was lodged in the Casualty Ward of DHQ Hospital Haripur at 18:25 hours and the accused-appellant was arrested on the same very day at 21:30 hours along with weapon of offence which fact has not even been denied by the accused-appellant with any defence.
11. After arrest of the accused-appellant, though he remained in police custody for three (03) days but on 27.10.2010 he volunteered to record his confessional statement. Thus he was produced before the learned Judicial Magistrate where he did so by narrating the same parable, as asserted by the complainant in her first information report.
12. The contention of learned counsel for the accused-appellant that the confession of the accused-appellant is neither voluntary nor true rather is the result of third degree method exercised by the police, is of no help to him as the learned Judicial Magistrate, who appeared in the witness box as PW-3 deposed that on 27.12.2010 the police produced not only the accused-appellant but his co-accused namely, Ashiq, who too, were questioned regarding recording their confessional statements. Out of them, only the accused-appellant volunteered to record his confessional statement while his co-accused denied to plead their guilt, whereafter handcuffs of the accused-appellant was removed and the police were ousted from the court premises along with APP and Naib Court. The accused-appellant was given sufficient time to think over the matter, who was told that he was not bound to make any confession rather he was satisfied that he would not be given again in the hands of police but even then the accused-appellant volunteered to record his confessional statement. Thus, after adopting all legal and codal formalities the needful was lawfully done. After recording confessional statement the learned Magistrate issued proper certificate Ex. PW-3/4.
13. It is also discernible from the face of record that both the parties are closely related inter-se, as the deceased were real maternal uncles of the accused-appellant and the motive for the crime has also been mentioned not only in the FIR but also in the confessional statement recorded by the accused-appellant. There is no question of mis-identity or exaggeration because the motive has properly been explained by both the parties.
14. Moreover if for the sake of arguments, we exclude the testimony of the complainant on the ground of being highly interested witness, otherwise too there are two other independent witnesses namely Munsif and Sharif (Bailiffs of the court of learned Senior Civil Judge Haripur), who appeared in the witness box as PW-8 and PW-9 respectively. They were present on the spot at the time of occurrence consequent to the execution of decree granted by the learned Family Court in favour of the complainant regarding dowry articles. Both of them fully supported the version of the prosecution despite the fact that they were confronted with searching and taxing cross-examination but nothing could be extracted from their lips beneficial to the accused-appellant.
15. According to the medico-legal report deceased Ghulam Murtaza had sustained a firearm injury on the right side of his chest measuring 1/2 cm x 1/2 cm whereas deceased Ghulam Kibriya had sustained firearm injuries not only on his neck interiorly below chin measuring 1/2cm x 1/2cm but also on the top of vault measuring 1cm x 1 cm. Similarly according to the first information report the complainant too, had mentioned the abovementioned injuries on the deceased. Thus taking in juxtaposition the medico-legal report and first information report, both are very much in line and cannot be refuted and as such proved the charge against the accused-appellant without any shadow of doubt.
16. Apart from the above, the investigating agency had recovered four (04) empties of 30-bore pistol from the spot and because the accused-appellant was arrested within a couple of hours along with weapon of offence thus both the empties and pistol were sent to Forensic Science Laboratory for analysis, report whereof was received not only in affirmative but with remarks that the pistol was giving the smell of fresh discharge.
17. By all lawful considerations we now go one on one with the quantum of sentence in the light of the mitigating circumstances, if at all they exist. We have searched for the evidence whether in fact the commission of the murder of two innocent persons who were the maternal uncles of the accused-appellant when committing such gruesome murders on two counts there are reasons to believe that he was under immediate command of Ashiq Mehmood and Mst. Asmat Sultana and at their instance caused the Qatl-e-Amd of two deceased. When the charge was perused, it transpires that under second head the learned Sessions Judge Haripur charged the accused-appellant Imran Mehmood that he had committed Qatl-e-Amd of two persons under the command of accused Ashiq Mehmood and Mst. Asmat Sultana. The charge by itself suggests that when there is command of the elders for commission of Qatl-e-Amd, the penalty may be life imprisonment under the mitigating circumstances but this boon is revoked when accused Imran Mehmood recorded his statement under Section 342 Cr.P.C, who vide his answer to the question No.1 himself marked his presence on the spot along with his mother at the time of occurrence. The second question is of much significance whether there existed any mitigating circumstances for conversion of the death penalty into life imprisonment. In this respect, the prosecution has specifically in the light of the evidence asked him whether Mst. Asmat Bibi and Ashiq Mehmood had raised Lalkara and asked him to kill the complainant party and that he on the instigation of both the accused in furtherance of their common intention attempted at the lives of two persons thereby caused Qatl-e-Amd of Ghulam Murtaza and Ghulam Kibriya. Answering this question he came out in denial that no Lalkara was given to him by his mother. Such being the case, the circumstances do not call for taking a lenient view in the present appeal.
18. Judged and considered from all angles, we are of the considered opinion that the prosecution has succeeded in making out a case against the accused-appellant without any shadow of doubt and as such the learned trial Court has rightly convicted and sentenced the accused-appellant. Fitly, this appeal being bereft of any merit stand dismissed.
The Murder Reference sent by the learned trial Judge is answered in the affirmative.
JK/122/P Appeal dismissed.