GHULAM MUHAMMAD Versus THE STATE through Police Station, Skardu

1. RAJA JALAL-UD-DIN, C.J.--- This criminal appeal has been preferred against the judgment/order of the Additional Sessions Judge Skardu dated 31-3-2010 whereby the convict/appellant has been sentenced to life imprisonment under section 302-B and to pay an amount of Rs. 5,00,000 (Rupees five lac) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.

2. The complainant has also preferred a criminal revision petition for enhancement of the sentence. We intend to dispose of both the appeal and criminal revision petition through this single judgment.

3. The background of the case is the outcome of the F.I.R. No.35 of 2009 of Police Station Skardu lodged by Engineer Ghulam Abbas wherein it is disclosed that on 16-7-2009 at about quarter to six the convict/appellant Ghulam Muhammad came near the house of the complainant on his vehicle and picked the deceased Ghulam Hussain on the pretext of some business with him. At about 10 p.m. it was informed that convict Ghulam Muhammad has murdered deceased Ghulam Hussain and the dead body is lying at hospital brought by the same convict. The motive as given in the F.I.R. relates to a money transaction between the parties which resulted in the murder of the deceased. After lodging of the F.I.R. the investigation of the case started. Autopsy of the dead body was performed and medical evidence gathered. Witnesses of the locality and who had witnessed the deceased and the convict in the vehicle were recorded. The different formalities connected with the commission of the crime were gathered. Recoveries of the weapon of offence were taken into possession after the arrest of the convict/appellant. After the completion of the investigation challan was put up for trial.

4. Counsel for the convict/appellant agitates that there is not a single eye-witness of the occurrence who can connect the petitioner for the commission of the offence. The only statements which the prosecution has compiled consisting of circumstantial evidence of a very flimsy nature whereby the convict has been sentenced to life imprisonment. The blood-stained vehicle as well as the recovery of the pellet from within the vehicle are all fabricated and cannot be formed the basis of conviction in such a case. It is also pleaded that the convict/appellant in his statement recorded under section 342, Cr.P.C. where the convict has taken the plea that the deceased had received the fatal bullet injury from his own pistol which was being used to fire at the convict/appellant. It is pleaded in his statement recorded under section 342, Cr.P.C. that the weapon of offence used in the commission of offence as alleged belong to the deceased himself and there is no proof regarding the title of the pistol belonging to the convict/appellant. In such circumstances, the version relied upon by the defence has to be taken in toto and if the version of the convict is accepted then it is a clear cut case of acquittal as there is no other evidence against the convict. His statement recorded under section 342, Cr.P.C. has totally to be accepted or discarded as a whole.

5. On the other hand Deputy Advocate-General assisted by Malik Haq Nawaz, Advocate for complainant plead that the convict/appellant was entitled to receive the full dose of capital punishment as there are no mitigating circumstances whereby the .convict can be benefited with a lesser sentence. It is evident from record that the convict/appellant had come to the house of the deceased with a pure motive in the daylight hours. The reliable witnesses have deposed that the convict/appellant had picked up the deceased from his house in his own vehicle and went about to different places. All the witnesses who are examined in Court have confirmed the presence of the deceased in the vehicle of the convict/appellant and there is no chance of mistaken identity. It is beyond any shadow of doubt and un-rebutted that the deceased has received the fire-shot in the vehicle of the convict/appellant. The blood stained vehicle has also been examined and proved that the occurrence had taken place in the vehicle of the convict/appellant. The deceased was taken by the convict/appellant to the hospital and the same fact is also not rebutted by the defence. The recovery of weapon of offence coupled by the motive established has been proved beyond any shadow of doubt hence the convict/appellant rightly deserves the penalty of death. In support of his contentions counsel for complainant referred 1998 PCr.LJ (Lahore) 216, 1999 SCMR 1772 SC, 2000 MLD 208 (Lahore), 2001 SCMR 290 (SC), 2004 YLR 1924 (SC) AJ&K, 2005 MLD 389 (Karachi), 2008 YLR 508 (Shariat Court AJ&K).

6. We have carefully gone through the record and perused the evidence. We feel that it is an open and shut case. The prosecution has adduced witnesses who are very natural in their narration of the circumstances of the case who have not improved on their statements recorded under section 161, Cr.P.C. The statement of the F.I.R. lodger who is the real brother of the deceased has given a very factual and natural narration wherein he has named the convict/appellant and his presence near his house at about 5-45 p.m. on 16-7-2009. Whereafter learning about the occurrence the F.I.R. was lodged. He has disclosed the motive of the case. The fact regarding the motive as well as the accompanying of the deceased from the place of occurrence in broad -day-light has not been shattered by the defence. The other witness Shakoor Ali states that he had served the deceased and the convict/appellant at Sadpara Lake and the presence of both the accused and the deceased as cited by the said witness has not been strongly contested. One Fida Ali (P.W.4) has disclosed that he had heard a fire cracker near the house of Monshi Akbar Khan and by the street light he recognized the convict/appellant Ghulam Muhammad drive his vehicle and also saw legs dangling out of the vehicle. The vehicle stopped and the dangling leg was taken in and the door of the vehicle closed. This identification was possible due to the street light. The said piece of evidence has also not been rebutted. The other witness Muhammad Hussain has narrated the statement of P.W. Fida Ali witnessed by him in similar circumstances and also found a chapal which later on was proved to be that of the deceased. The said statement has not been shattered in any way by the defence. The (P.W. 6) Liaqat Ali is witness to the blood stained cloths of the convict/appellant which were taken into possession. The statement of (P.W. 10) is of significant nature wherein the vehicle (Land Cruiser) was recovered on the pointation of the convict/appellant from within which the plastic chapal of the deceased coupled with the blood stains as well as the slug of the bullet fired was recovered. The .30 bore pistol along with the recovered cartridges were recovered on the pointation of the convict/appellant were taken into custody as evidence. The said witness is also an independent person who has supported the prosecution case to the hilt and his statement has not been rebutted in any way. The other witness Basharat Hussain (P.W. 11) is the witness of chapal of the right foot belonging to the deceased which had dropped on the way has been produced in Court who supports the prosecution version. The I.O. has been examined who has narrated the facts of the investigation in a natural manner and nothing of the sought which can give rise to a mitigating circumstance has been gathered from him. At the end of the trial the convict/appellant has been examined under section 342, Cr.P.C. The recovered empty shell as well as the .30 bore pistol was sent to the Forensic Laboratory which has been judged as positive and to have been fired from the same pistol.

7. Now examining his statement under section 342, Cr.P.C. the convict/appellant has taken the plea that when they reached adjacent to the plot of Mr. Shah Jahan the deceased asked the vehicle to be stopped to attend to a call of nature and likewise the deceased got down and came back with a pistol from the plot. On their way the deceased asked for return of cheque of Rs. 4,90,000 and the stamp paper as he had already paid Rs. 4,65,000 and Rs.25,000 to be paid but the deceased demanded for Rs. 5,00,000. Suddenly the deceased took out his pistol and was about to use it but it went of and hit the deceased himself. From there the injured was rushed towards the hospital by the convict/appellant.

8. The statement of the convict/appellant recorded under section 342, Cr.P.C. is also minutely perused wherein he has taken the plea that the deceased had procured the weapon of offence from a road side plot and had tried to use the same on the convict and the fatal bullet hit the deceased during the scuffle resulting in the death of the deceased. The said statement regarding the procuring of the weapon of offence and the attempt to use it on the convict by the deceased seems to be a far fetched story. The defence is of the version that the statement of the convict/appellant under section 342, Cr.P.C. should be taken in toto or rejected wholly without placing any reliance on any part of the statement. In this regard the counsel for the convict/appellant has also relied upon 2001 SCMR 290 SC.

9. The case-law is also perused but the circumstances of the same are different from the case in hand. In the present instance there is material evidence regarding the motive for the offense, the company of the deceased and the convict established at different places of the road as well as the convict/appellant going to the house of the deceased and from there taking him in his vehicle coupled with other circumstances. If the statement of the convict is rejected as a whole then also the convict cannot be exonerated from the offense neither any mitigating circumstance for deserving a lesser punishment.

10. A point raised by the counsel for the convict is that the deceased was brought to the hospital proving that the convict had no intention of the commission of the offense and the dead body could have been thrown away somewhere on the road in the pitch of the night. We feel that after the commission of the offense the convict has realized the gravity of the situation and dumped the dead body in the hospital and ran away. If the dead body at all had been dumped on the road without being brought to the hospital, the matter of the murder would not have been relaxed in favour of the convict in the presence of the material available on record.

11. We would like to discuss the matter regarding reliance placed on the statement of an accused or discarding the statement as a whole. There may be a circumstance where to rely upon or discard a portion of the statement can arise and the fate of the case would rest on that balance.

12. We are of the opinion that it is very much possible that an accused has told the whole truth in his statement recorded under section 342, Cr.P.C. which may be at par or in continuation of the circumstances of the cases other gathered material of the investigation. The other situation can be that the accused has concocted the facts in a manner whereby he presumably wants to derive benefit in the case. The third category of statements comprise of material which consists of half truth and not the whole truth introducing a bit of contortion in his own favour. Therefore, as it is the duty of the Courts to separate grain from chaff and find the truth from the rubble. It would also be safe to believe a portion of the story as related by the convict to be true and to discard the untruth in the light of the material placed on record.

13. The believing of part of the statement of an accused, recorded under section 342, Cr.P.C. and the disbelieving of the portion of the statement of the accused should be based on the gathered material on file and the circumstances of each case. The binding down of the Courts to take a statement of an accused as a whole or to discard it totally would seem unfair. It is the duty of the Courts to get down to the bottom of every issue in the manner which is confidence inspiring keeping in view the circumstances of the case as well as depending on the mentality and peculiar circumstances of the area. The temperament in certain areas of Gilgit-Baltistan differs from each other as well as the approach to an issue. The case pertains to Baltistan and we feel that the major portion of the statement of the convict is a true narration while the conclusive stand taken by the convict is disregarded.

14. In the instant case we feel that the greater portion of the statement of the convict recorded under section 342, Cr.P.C. is exactly as supported by the witness and at the crucial time of the commission of the offense, an untrue sentence has been introduced wherein it is alleged that the pistol went of during the scuffle between the convict and the deceased. Irrespective of the discussion regarding the statement of the convict under section 342, Cr.P.C. we feel that the murder of the deceased was unnecessary and uncalled for as it pertained to a transaction of money between the parties. The murder can be termed as gruesome. The murder is premeditated where the convict has preplanned by procuring a deadly weapon of offense and murdering the deceased on the way.

15. The crux of the matter is that there is a straight un rebutted case of premeditated murder present on record against the convict. We feel that the convict has been dealt leniently by the trial Court and no mitigating circumstances exist where lesser punishment can be called for.

16. Consequently, we find no substance in Criminal Appeal No.3 of 2010 filed by the Convict/appellant, which is hereby dismissed while Criminal Review Petition No. 6 of 2010 filed by Ghulam Abbas complainant is accepted. The convict/appellant is sentenced under section 302(b) of P.P.C. and enhanced the conviction awarded to him from life imprisonment to death sentence for commission of murder of deceased. The appellant namely Ghulam Muhammad son of Haji Rahmat be hanged from his neck till his death. The fine imposed on him by the trial Court is upheld and payable to legal heirs of deceased. Copy of this judgment/order be supplied to appellant without costs.

17. H.B.T./103/Glt. Sentence enhanced.