Shakeel Ahmed Qureshi Versus State
Mohsin Akhtar Kayani, J .--- Through this single judgment, we intend to decided above titled criminal appeal and criminal revision as the same have been filed against the same judgment.
2. Through appeal, the appellant has assailed the judgment dated 30.06.2015, passed by learned Additional Sessions Judge (VIII) West-Islamabad, whereby the appellant was convicted in case FIR No. 173, dated 14.04.2013, under sections 302, 392, 354, 411, 34, P.P.C., P.S Kohsar, Islamabad and sentenced as under:
(a) Under Section 302(b)/34 of life imprisonment with fine of Rs. 1,00,000/-, and in default of payment of the same, the appellant to further undergo three months S.I;
(b) Under section 392/34 P.P.C. for three years R.I with fine of Rs.10,000/- and in default of payment of the same, the appellant to further undergo one month S.I; and,
(c) Snder Section 411/34 P.P.C. for two years imprisonment with fine of Rs. 10,000/-and in default of payment of the same, the appellant to further undergo one month S.I.
All the sentences shall run concurrently. The amount of fine of Rs.100,000/- under section 302 (b) P.P.C., if recovered shall be paid to the legal heirs of the deceased as per section 544 Cr.P.C. Benefit of section 382-B, Cr.P.C is also extended to the appellant.
3. Through the criminal revision, the petitioner/complainant has prayed for enhancement of the sentence awarded to the appellant through impugned judgment dated 30.06.2015.
4. Brief facts are that case FIR No.173, dated 14.04.2013, under sections 302, 392, 354, 411, 34, P.P.C., P.S Kohsar, Islamabad/ Exh.P.B was registered against the appellant and an unknown person on the complaint/Exh.P.A of complainant/Roshan Ara Begum/P.W.3, wherein she alleged that she was residing with her husband at House No.28-A, Street No. 18, Sector F-7/2, Islamabad and two days ago they hired Shakeel Ahmed Qureshi son of Muhammad Farooq Qureshi, resident of Sir Bagla, Post Office Hattian Bala Azad District Muzaffrabad as driver, who had already worked with them as driver and he was living in servant quarter, whereas on 14.04.2013, she and her husband Anwar ud Din were sleeping in their bedroom and at about 5:30 am, her husband opened the kitchen door, whereafter their driver Shakeel Ahmed Qureshi along with a young man entered into their bedroom. Shakeel Ahmed Qureshi, who was holding a pestle (Langri Danda) after entering into the bedroom along with the co-accused caught hold her husband and started hitting him and when she reached near the accused, they also started hitting her. Shakeel Ahmed Qureshi landed pestle blows on the head of her husband, who got seriously injured and fell down on floor on getting unconscious, whereafter both the accused tied up the complainant and her husband with rope and also put cloth in their mouth. At the time of occurrence, the complainant was wearing 12 gold bangles and two cuffs, which they forcefully removed and they also took cash amounting to Rs.1,00,000/-, four prize bonds each worth of Rs.25,000/-, one hundred British pounds from Almirah of bedroom and fled away. After hectic efforts, she untied herself and telephonically informed her relative Iftikhar, who came there and when they checked her husband, he had died.
5. After registration of the FIR and investigation, the challan was sent up before the Court for trial, whereafter the learned Trial Court convicted and sentenced the appellant through impugned judgment dated 30.06.2015.
6. Learned counsel for the appellant contended that learned Trial Court has not appreciated the evidence in its true perspective; that findings of learned Trial Court are based on surmises and conjectures; that the prosecution miserably failed to prove the case against the appellant but despite that the appellant has been convicted and sentenced; that impugned judgment, conviction and sentence are against the law and facts of the case.
7. Conversely, learned counsel for complainant and learned State counsel contended that the prosecution proved its case beyond any shadow of doubt; that impugned judgment to the extent of quantum of sentence is result of mis-reading and non-reading of evidence; that learned Trial Court must have awarded capital punishment to the appellant on the basis of available cogent evidence.
8. We have heard the arguments and gone through the record.
9. The entire prosecution case is based upon statement of complainant/Mst. Roshan Ara Begum/P. W.3, who lodged the complaint Exh.P.A., which is reproduced as under:-
10. The above referred complaint was converted into FIR No.173, dated 14.04.2013, under sections 302, 392, 354, 34, P.P.C., P.S Kohsar, Islamabad/Exh.P.B.
11. Dr. Muhammad Farrukh Kamal, Deputy Director/Medicolegal Officer, PIMS, Islamabad appeared as P.W.4, who conducted post mortem of the deceased. Anwar ud Din. Examination-in-chief of P.W.4 is reproduced as under:-
"That on 14.04.2013 at about 12:15 p.m I conducted the post mortem of Anwar ud Din son of Ikhlas ud Din aged 84 years male brought by Naveed Ahmed A.S.I. and Iftikhar Ahmed S.1. of Police Station Kohsar, Islamabad and was identified by Mian Shahid Ahmed son of Mian Faqeer Ahmed and Mian Javed Ahmed son of Mian Faqeer Ahmed.
External Examination.
An old man height 5 feet 11 inches wearing gray color clothes eye and mouth closed. Hair and moustache white not shaved.
Injuries. i. Lacerated wound 11x2 cm, parieto occipital region, bone deep, on scalp. ii. Bruised lower lip 6x2 cm. iii. Bruised upper lip 3x2 cm. iv. Bruised chin 4x3 cm. v. Bruised of nose of right side 1x1 cm.
Rigor mortis and levedity in initial stages.
Internal Examination.
Scalp ruptured and damaged. Brain contused. Lips bruised, both lungs were congested. Stomach empty, yellow green contents present in small intestines, fecal matter present in large intestine. All other organs were healthy and intact. Specimens No.1 liver, spleen, kidney, No.2 stomach, small intestine with contents were sent to chemical examiner and No.3 heard, No.4 lungs were sent to pathologist.
Opinion.
In my opinion final opinion would be established after the chemical and pathological examination reports. However, deceased sustained head injury which caused rupture and damages of scalp, contusion of brain, smothering which caused death cannot be ruled out. All injuries were ante-mortem in naure.
Time between injury and death.
1-2 minute or few minutes (5-10 approximately)
Time between death and postmortem.
6-8 hours (approximately)
Postmortem report Exh.PE along with two diagrams is in my handwriting and bears my signatures. Postmortem application as Exh.P.F and inquest report Exh.P.G bears my signature.
12. Dr. Shazia Suleman, C.M.O PIMS Hospital, Islamabad/P.W13 examined injured complainant Mst. Roshan Ara. Her examination-in-chief is reproduced as under:-
"On 14.04.2013 I was posted as C.M.O PIMS Islamabad on that day, I examined Mst. Roshan Ara brought by lady constable. On examination I found following injuries on her body. Injuries. i Swelling with Bluish discoloration on both eyes with sub-conjuntival hemorrhages, bilaterally. The patient complained that she was tried to be strangulated. ii. Loosening of teeth. iii. Bruises with superficial laceration on both forearms. iv. Chest pain.
I prepared her medical sheet Exh.P.BB which is in my handwriting and bears my seal and signature and I referred the patient to IMLO and OMFS.
13. After registration of the FIR, P.W.12 Iftikhar Ahmad/I.O. prepared inquest report/Exh.P.G, filed application for post mortem/Exh.P.F. Anwar ur Din deceased and also prepared injury sheet of the complainant as Exh.P.Y and sent her to PIMS Hospital. The crime scene was inspected by the I.O, who prepared rough site plan/Exh.P.2, collected blood from the carpet vide memo Exh.P.M and collected incriminating articles from the spot i.e. Danda/P.16, copy of the CNIC of appellant/P.17, eight pieces of Nylon rope/P.18 to P.23, Phuldar Chadar/P.24 vide recovery memo Exh.P.N and recorded statement of P. Ws under section 161, Cr.P.C. The dead body was identified by Mian Shahid and Mian Javed/relatives of the deceased through memo of identification Exh.P.K. The last worn clothes of the deceased i.e. Qameez/P.25 and Shalwar/P.26 were taken into possession vide recovery memo Exh.P.O. The post mortem report/Exh.P.E was collected by the I.O from the hospital, where after the I.O got issued proclamation of appellant from the Court and on 21.06.2013, he took over ten photographs/snaps/P.1 to P.10 vide recovery memo Exh.P.C and arrested the appellant on 04.07.2013, whereas during the course of investigation, father of the appellant appeared in the police station on 13.07.2013 and handed over the shopping bag of white colour containing one gold cuff, two bangles and two prize bonds of Rs.25,000/- each, which were taken into possession vide recovery memo Exh.P.S. The gold cuff was recovered as P.11, bangles as P.12 and P.13, and prize bonds as P.14 and P.15, which were handed over to the Moherar Malkhana for safe custody. He further stated that on 14.07.2013 complainant/Roshan Ara/ P.W.3 appeared in police station and duly identified Kara/P.11, bangles/P.12 and 13 and prize bonds/P.14 and P.15 snatched from her by the appellant and co-accused since P.O..
14. The star witness of the case is complainant/Roshan Ara, who narrated the entire story while appearing as P.W.3 before the Court, wherein she stated that she along with her husband were residing at house No.28-A, Street No.18, F-7/2, Islamabad and on 14.04.2013, in the early morning hours at about 5:30 am, when her husband opened kitchen door, the appellant (duly identified in the Court by her) along with another unknown person entered into their bedroom. She also stated that they hired the appellant as driver and he was given accommodation in servant quarter and on the day of occurrence, when the appellant entered in their bedroom, he was holding a pestle in his hand and he landed pestle blows on the head of her husband, who got injured and fell down on the floor. She further stated that when she reached near her husband, the appellant also started hitting her with the same pestle and the appellant and his accomplice tied up her and her husband with a rope and put a piece of cloth in their mouth and forcefully removed all the golden articles i.e. 12 gold bangles, two gold cuffs and cash amount of Rs.1,00,000/- from bedroom cupboard. She, further stated that the appellant also took four prize bonds each worth of Rs.25,000/- and one thousand British pounds (in complaint one hundred pound is mentioned), where-after the appellant and his co-accused fled away from the scene and after hectic efforts, she untied herself and informed her relative Iftikhar on phone about the alleged occurrence and when he checked her husband, who by that time had been succumbed to injuries. She further stated that Iftikhar informed the police, whereafter the police officials reached at the spot after some time and the I.O. recorded her statement Exh.P.A and the dead body of the deceased was taken to the hospital. PW.3 was called in police station on 14.07.2013, where she identified two gold bangles, one gold cuff, and two prize bonds, which were snatched by the appellant on the day of occurrence. She further stated that the I.O prepared identification memo Exh.PD regarding the articles, which she identified.
15. During the course of cross-examination of P.W.3 Mst. Roshan Ara Begum/complainant, P.W.4 Dr. Muhammad Farrukh Kamal/MLO, and P.W.13 Dr. Shazia Suleman/C.M.O., they have admitted the following facts: i. Appellant Shakeel Ahmed Qureshi was working as driver with the complainant. ii. Two days prior to the occurrence i.e. on 12.04.2013, the appellant was hired again for the second time on his repeated calls for hiring him as Driver. iii. Copy of the ID card of the appellant was given to the police by the complainant. iv. At the time of occurrence, the deceased was 84/85 years old and had difficulty in hearing, and the complainant is about 69 years old as of now. v. Deceased's sons Ejaz Anwar, Ayaz Anwar and daughter Saira are still in Lahore, who were born from Mst. Saima i.e. first wife of the deceased. vi. Complainant/P.W.3 is second wife of the deceased and the house was in the name of the deceased. vii. The deceased was retired Major from Pakistan Army. viii. One Iftikhar is brother in law of the complainant. ix. On the day of occurrence, the deceased opened kitchen door at 5:30 am and the complainant/P.W.3 offered her Fajar prayer at 5:00 a.m. x. The complainant did not know as to how unknown persons made entry into the house. xi. House of Iftikhar is at a distance of 10 minutes from the place of occurrence and the complainant called him on telephone after one hour of the occurrence. xii. The police reached at the place of occurrence at about 8:30 a.m. xiii. The complainant never put off jewelry from her hands till time of the occurrence. xiv. A security guard was appointed in the street, who was on duty at the time of occurrence, however, he was not associated by the I.O. in the investigation. xv. The complainant acknowledged that upper portion of the house/alleged place of occurrence is rented and a lady tenant was living alone in upper portion, who was working in NGO. xvi. P.W.3 reached at the police station at 10:15 a.m. xvii. The complainant saw one gold cuff and two bangles in the police station and she did not inquire about remaining 10 bangles, one hundred British pounds and two prize bonds. xviii. All the 12 bangles were of the same design. xix. Learned defence counsel asked the complainant to wear the bangles, which she wore and the same were as per size of her hand and easily slipped into her wrist and this fact was duly noted by learned Trial Court. xx. Co-accused was not known to the complainant. xxi. Dr. Muhammad Farrukh Kamal/P.W.4 conducted post mortem and referred five injuries upon the dead body of the deceased and declared that scalp was ruptured and damaged and brain was contused. xxii. Smothering cannot be ruled out as cause of death. xiii. Dr. Shazia Suleman/P.W.13 conducted examination of the complainant and three injuries were found on her body while observing swelling with bluish discoloration on both eyes with sub-conjunctival hemorrhages, bilaterally, loosening of teeth, bruises with superficial laceration on both forearms. xxiv. No mark of strangulation or ropes ligature on the body of the complainant was found by P.W.13.
16. From the above referred evidence brought by the prosecution on record, we are of the view that the appellant was duly identified by the complainant/Roshan Ara Begum wife of the deceased as the appellant was previous driver of the complainant and his services were rehired two days prior to the alleged occurrence and he was given servant quarter to live in house No.28-A, street No.18, F-7/2, Islamabad and on 14.04.2013, when the deceased/husband of the complainant, aged about 84 years, opened the kitchen door at 5:30 am, where-after the appellant and co-accused while armed with Pestle/P.16 entered into the bedroom of the complainant and her husband and landed pestle blows on the head of the deceased in presence of the complainant and when the deceased got injured, he fell down on floor. The appellant also landed pestle blows upon the complainant and thereafter tied up both the complainant and her deceased husband with Nylon ropes/P.18 to P.23 and put pieces of cloth Phuldar Chadar/P.24 in their mouth, which were taken into possession by the I.O on the day of occurrence vide recovery memo Exh.P.N. Complainant/P.W.3 also stated that the appellant along with his accomplice forcefully removed 12 gold bangles and two cuffs as well as they also took out one lac rupees from bedroom cupboard along with four prize bonds each worth of Rs.25,000/- and one hundred British pounds and fled away. Thereafter the complainant untied herself with hectic efforts and called Iftikhar, her brother-in-law, who came at the place of occurrence and called the police, where-after FIR/Exh.P.B was registered on the complaint/Exh.P.A. The I.O took into possession the ropes, the cloth used to mum the complainant and her deceased husband as well as Pestle/P.16 used in the crime. The deceased ex-Major was done to death by the appellant through pestle blows as narrated by the complainant/P.W.3, whereas lacerated wound of 11x2 cm, parieto occipital region, bone deepwas visible on scalp and rest of the injuries were bruises. The said details of injuries given by P.W.4 fully corroborate the testimony of eye-witness/complainant. In opinion of the doctor/P.W.4, scalp was ruptured and damaged, whereas brain was contused and the doctor did not rule out cause of death due to smothering on the basis of Chadar/P.24 used by the appellant to mum the complainant and deceased and as a result of the same, the deceased died in the house. The appellant was arrested by the I.O/P.W.12/Iftikhar Ahmed Inspector on 04.07.2013, when his pre-arrest bail application was dismissed.
17. During the investigation, father of the appellant put appearance on 13.07.2013 and produced one Cuff/P.11, two bangles P.12 and P.13, two prize bonds/P.14 and P.15 of worth Rs.25,000/- each, which were taken into possession by the I.O. through recovery memo Exh.P.S and the same were identified by the complainant in the police station on 14.07.2013 through identification memo Exh.P.I and in this regard her statement was also recorded by the I.O.
18. The appellant while recording his statement under section 342, Cr.P.C denied the occurrence as narrated and did not explain his perspective except that he gave copy of his ID card to the complainant being driver while answering question No.21.
19. Keeping in view the above background and the defence taken by the appellant, we are of the view that the appellant was known to the complainant/P.W.3, who is injured prosecution witness (wife of deceased) and she was fully aware of the particulars of the appellant on the basis of his job description as the appellant was residing in the servant quarter of the same house and was fully aware that the deceased Anwar ud Din, aged 84 years, is living with the complainant in this house, whereas the real sons and daughter of the deceased were living in Lahore as the complainant was second wife of the deceased. The medical evidence fully corroborates testimony of complainant/P. W.3 and learned counsel for the appellant has failed to point out a single dent in the prosecution evidence, which is consistent qua the identification, nature of the injuries, locale of the injuries and details of the gold articles as well as prize bonds snatched during the course of occurrence by the appellant and co-accused. Although, there is no formal discovery as well as recovery from the appellant in this case and surprisingly, father of the appellant produced one Kara/P.11, two bangles/P.12 and P.13 and two prize bonds/P.14 and P.15 in the police station, therefore, question relating to recovery is not material in this case rather it is the consistency of version of the complainant, which could not be shattered by single doubt during the course of cross-examination and statement of 1.O/P.W.12 is fully corroborated with the version of the complainant. The alleged witness Iftikhar, who was called by the complainant at the crime scene, did not appear before the Court to further corroborate testimony of the complainant but in our humble view, to establish accusation, it is not the quantity but quality of the evidence, which gets preference for the purpose of conviction. Reliance is placed upon 2002 SCMR 1568 (Amrood Khan v.. The State), 2004 PCr.LJ 1129 [Peshawar] (Rahim Shah v.. The State and another), 2004 PCr.LJ 1138 [Peshawar] (Arab Gul v.. Mir Shah Baz and another), and 2018 MLD 1672 [Peshawar] (D.I. Khan Bench)) (Masood Khan v.. The State).
20. Even otherwise, the ocular evidence is always considered to be the principal and direct evidence and if the same is corroborated by medical evidence, then it is sufficient to record conviction, whereas the other constituent/factors like recovery of bloodstained earth, bloodstained clothes, report of chemical examiner, and report of serologist are also deemed to be corroborative pieces of evidence. Reliance is placed upon 2018 PCr.LJ 1297 [Balochistan] (Salahuddin and another v.. The State). The ocular account should be given preference and it is not necessary to link the same with the recovery, especially when father of the appellant himself produced the snatched articles. Learned counsel for the appellant has taken specific stance before this Court that the appellant was not present at the scene of occurrence and he was substituted in this case. Learned counsel for the appellant has referred answer to question No.2 of statement of the appellant under section 342, Cr.P.C, whereby the appellant denied his presence in the servant quarter of the complainant as well as deceased in House No.28-A, Street No.18, Sector F-7/2 Islamabad, whereas the appellant was duly identified by the complainant and his credentials were fully known to her, therefore, question of substitution of the appellant does not arise as the appellant has failed to prove the same. It is trite law that substitution of an accused is rare phenomenon and one who alleged substitution must lay foundation for it. Reliance is placed upon 2000 PCr.LJ 47 [Lahore] (Muhammad Tariq and others v.. The State).
21. The medical evidence as well as ocular evidence is inter-linked and the learned Trial Court has rightly appreciated the evidence. The appellant has failed to raise substantial question in his support and he has not been able to render any valid reason for his non-involvement in the case. The complainant/injured witness duly identified him with specific role of causing grievous injuries to the deceased with pestle, which resulted into rupturing of the scalp and was sufficient to cause death in ordinary course of nature, whereas the appellant used Phuldar Chadar to mum the complainant as well as deceased and as a result whereof, the deceased died.
22. Keeping in view the above background and law referred above, we are of the view that the prosecution has positively proved its case against the appellant as P.W. 3 Mst. Roshan Ara Begum/ injured witness remained consistent in her stance, who identified the appellant being her servant and has also given the complete picture of the alleged incident of murder by attributing specific role to the appellant in which the appellant landed pestle blows upon the deceased and there is no dispute qua the identity of the appellant, who murdered the deceased and injured the complainant in order to snatch the jewelry as well as cash and prize bonds. Hence, we are in full agreement with the findings of the learned Trial Court passed in the impugned judgment, whereby the appellant has been convicted under section 302(b) P.P.C. and sentenced to life imprisonment along with fine but as the stolen articles were produced by father of the appellant, the conviction and sentence awarded to the appellant under section 411 P.P.C. could not be maintained as section 411 P.P.C. requires that a person, who retains any stolen property, should be charged with the said offence, whereas in this case, the stolen articles were produced by father of the appellant, and no such fact has been proved on record that the said articles were in possession of the appellant, therefore, conviction and sentence under section 411 P.P.C. awarded to the appellant is against the law. On the other hand, the requirement of Section 392 P.P.C. has to be seen in the light of the statement recorded by PW-3 Mst. Roshan Ara Begum/complainant, who was put under fear of instant death as well as she was also injured and wrongly detained, therefore, all the ingredients of robbery mentioned in section 392 P.P.C. are present in this case, hence, sentence awarded to the appellant under section 392 P.P.C. to undergo three (03) years rigorous imprisonment and fine of Rs 10,000/- is on a lesser side, therefore, we hereby enhance sentence of the appellant under section 392 P.P.C. up to 10 years Rigorous Imprisonment with fine of Rs.100,000/- and in case of default in payment of the fine, the appellant Shakeel Ahmad Qureshi shall further undergo three (03) months Simple Imprisonment.
23. While considering the above background and quantification of sentence, the captioned Crl. Appeal No.141/2015 (Shakeel Ahmad Qureshi v. The State) is PARTLY ALLOWED and conviction and sentence awarded to the appellant under section 411 P.P.C. is SET ASIDE. The captioned Crl. Revision No.68/2015 (Mst. Roshan Ara Begum v. Shakeel Ahmad Qureshi, etc.) is also PARTLY ALLOWED and sentence awarded to the appellant under section 392 P.P.C. (three years Rigorous Imprisonment with fine of Rs.10,000/-) is enhanced to 10 years Rigorous Imprisonment with fine of Rs.100,000/-, whereas conviction and sentence of life imprisonment under section 302(b) P.P.C. is MAINTAINED as mitigating circumstances are visible on record due to non-disclosure of stolen property, which was produced by the father of appellant and due to non-production of one of the relative of complainant i.e. Iftikhar as a witness, who was telephonically informed by the complainant about the alleged occurrence at the first instance.
JK/28/Isl. Order accordingly.
* Received in 2025.