SIBTAIN HUSSAIN SHAH Versus THE STATE M.B. Zaman , Yasmeen Sehgal
MUHAMMAD MUNIR KHAN, J .‑‑This Criminal Appeal No. 647 of 1984 and the connected Murder Reference No. 18 of 1985 arise from the judgment of the learned Additional Sessions Judge, Sargodha, whereby he on 10‑11‑1984 while acquitting Mulazim Hussain Shah co‑accused, convicted Sibtain Hussain Shah (22) for the murder of Khadim Hussain Shah and sentenced him to death and a fine of Rs.5,000 in default whereof, two years' R.I. with the direction that the fine if recovered be paid to the legal heirs of deceased.
2. The occurrence took place on 12‑3‑1983 at 1‑30 p.m. in a street near the house of the parties situated in village Tarki at a distance of four miles from Police Station Bhaira, District Sargodha.
3. F.I.R. is statement P.C. of Jalal Shah P.W. 8 the sister's husband of the deceased, recorded by Muhammad Iqbal A.S.I. P.W. 12 at Adda Ali Pur Saidan orl the same day at 4‑15 p. m. Formal F.I.R. Exh.P.C./1 was drawn up at Police Station Bhaira by Manzoor Ahmad, Moharrir Head Constable, P.W. 3 on the same day at 4‑40 p. m.
4. Mulazim Hussain Shah, acquitted accused is paternal‑uncle of Sibtain Hussain Shah appellant Jalal Shah P.W. 8 is husband of the sister of Syed Haider Shah deceased. Riaz Shah P.W. 9 is son of sister of the deceased. Mst. Sakina was the wife of the deceased. The appellant and the deceased lived in the same village and are neighbourer.
5. The background of the murder of Khadim Hussain Shah was that 16/17 years before the present occurrence, Haider Shah, father of the appellant and Mst. Sakina, wife of Khadim Hussain Shah deceased were killed by Walayat Hussain Shah, Hadi Hussain Shah and Sajjad Hussain Shah the close relative of Khadim Hussain Shah deceased on account of illicit relations. To take revenge of the murder of his father, the appellant has allegedly killed Khadim Hussain Shah.
6. As for the main occurrence, it has been stated that at fateful time, Jalal Shah P. W. 8 was going from the shop of one Muhammad to the mosque of village to offer prayer. Khadim Hussain Shah deceased was ahead of him. When the deceased reached near the house of the appellant, the appellant and Mulazim Hussain Shah, acquitted accused came out of their house. Sibtain Hussain Shah appellant was carrying gun and Mulazim Hussain Shah was empty handed. Mulazim Hussain Shah raised Lalkara instigating the appellant to fire at Khadim Hussain Shah ‑in order to avenge the murder of his father. The appellant fired shot hitting on the back of the chest of Khadim Hussain Shah, who fell down and succumbed to the injuries on the spot. The occurrence was seen by Riaz Hussain Shah P.W.9 and Afzal Mirza (not produced). The appellant and his co‑accused made good their escape.
7. On 13‑3‑1983 at 10‑00 a.m. Dr. Mumtaz‑ Ahmad conducted post‑mortem examination on the dead body of Khadim Hussain Shah and found following injuries:‑
(1) One fire‑arm wound, wound of entrance within inverted burnt edges and blackening around it 5 c.m. x 5 c.m. x going into chest cavity on front and upper part of left chest 5? c.m. above left nipple 15 c. m . below top of left shoulder and 8 c.m. away (outward) from mid sternal line.
(2) Wound of exit 6 openings (exit) with everted edges each 3/4 c.m. x 3/4 c.m. in an area of 7 c.m. x 6 c.m. on back of right chest 14 c.m. below the top of right shoulder, 12 c.m. away from right posterior axillary line and 9 c.m. from middle line back. One pellet was removed from the edge of one of the exit wounds and was sealed in the bottle.
(3) A fire‑arm wound, wound of entrance 6 openings with inverted edges each 1 c.m. x 1 c.m. in an area of 7? c.m. x 6 c.m. x going into lower part of back of chest, 10? c.m. below injury No. 2 and 10 c.m. away from midline (back).
(4) Wound of exit 6 openings with everted edges each 1? c.m. in an area of 9 c.m. x 6 c.m. on front and right side of abdomen 7? c.m. below right nipple and 9 c.m. obliquely above from umbilicus. "
In his opinion, death occurred due to shock and haemorrhage under Injuries Nos. 1 and 3 which were sufficient to cause death in the ordinary course‑of nature. The injuries were caused by fire‑arm. The death was immediate and the time between the post‑mortem examination and the death was within 24 hours.
8. On 19‑3‑1983, Muhammad Pervez Iqbal S.I. P.W. 10 arrested Sibtain Hussain Shah appellant. On 27‑3‑1983 the appellant led to the recovery of gun P.7 from his Kotha which was taken into possession vide memo. P.G. attested by Nawab Shah P.W.7 and Fateh Khan (not produced). The recovery was effected by Muhammad Pervez Iqbal S.I. P.W.
10. On 12‑3‑1983, two crime empties Exhs.P.5 and P.6 were recovered from the place of occurrence by Muhammad Iqbal A.S.I. and were taken into possession vide memo. P.F. attested by Sikandar Khan P.W.6 and Muhammad Iqbal A.S.I. P.W.12.
On 17‑3‑1983 Muhammad Ismail foot constable P.W.2 carried crime empties to the Forensic Science Laboratory where the same were deposited in tact. On 2‑4‑1983, gun Ex.P.7 was carried and delivered in tact by the same constable in the office of Forensic Science Laboratory. Report Exh.P.N. of the Forensic Science Laboratory, reveals that the crime empties P:.5 and P.6 were fired from gun P.7.
9. To prove its case, the prosecution produced 12 witnesses. Jalal Shah P.W.8, Riaz Hussain Shah P.W.9 have given the ocular account of the occurrence. They claim to have heard Mulazim Hussain Shah‑acquitted accused raising Lalkara and seen the appellant firing 2 shots, one from close and the other from distance, hitting the deceased resulting in his death. Jalal Shah P.W.8 has also deposed about the motive of crime. Sikandar Khan P.W.6 and Muhammad Iqbal A.S.I. P.W.12 have supported the recovery of crime empties Exhs.P.5 and P.6 from the spot. Nawab Shah P.W. 7 and Muhammad Pervez Iqbal, S.I. P.W.10 stated that the appellant had got recovered gun Ex.P.7 from his house. Dr. Mumtaz Ahmad P.W.11 has proved the post‑mortem examination report. The rest of evidence is more or less of formal nature.
10. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances'. He raised the plea of, false implication on account of enmity. He did not produce any evidence in defence.
11. The learned trial Court extended benefit of doubt to Mulazim Hussain Shah co‑accused and while believing motive, ocular testimony and the recovery of gun from the appellants has convicted and sentenced him as stated above.
12. Learned counsel for the appellant contended that the two eye‑witnesses are closely related to the deceased that they were not present on the spot and had not seen the occurrence; that their evidence does not fit in with the circumstances appearing in the case; that the alleged motive being a double‑edged weapon could also be a reason for the false implication of the appellant on account of enmity or suspicion and that the recovery of gun after 8 days of the arrest of the appellant is highly doubtful. In the alternative, the learned counsel for the appellant requested for lesser penalty on the grounds: firstly that the appellant had killed the deceased to take revenge of the murder of his father and secondly, that he might have acted under the influence of his paternal‑uncle Mulazim Hussain Shah, acquitted accused. Learned counsel relied on cases State v. Banaras and others P L D 1976 Pesh. 80, Mehr Muhammad and another v. The State 1970 S C M R 688 and Qadeer Muhammad v. The State N L R Criminal Lah. 463. Learned counsel for the State has supported the judgment of the trial Court.
13. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements made by the appellant and his co‑accused under section 342, Cr.P.C. and the circumstances appearing in the case, with care. We have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that it is a case of promptly lodged F.I.R. which contains the name of the appellant, the weapon carried and used by him in the occurrence and the names of the eye‑witnesses. There is nothing in evidence to show that statement Exh.P.C. was not recorded at the time and place as it purports. It seems to us that the statement Exh.P.C. (F.I.R.) is a genuine document, which can safely be used to corroborate the statement of its maker.
14. Taking up the ocular testimony we find that Jalal Shah P.W.8 and Riaz Hussain Shah P.W.9 had no votive to involve the appellant falsely in the case. The statements made by them cannot be discarded on account of their relationship with the deceased. They have given plausible cause of their presence at the time and place of occurrence. The appellant was previously known to them. It was a day light occurrence, so there is no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offender. The medical evidence shows that out of two fire‑arms wounds found on the deceased, one was fired from close and other from some distance. So, the medical evidence is in conformity with the ocular evidence. The statements made by the two witnesses are in consonance with probabilities and materially fit in with the other evidence and surrounding circumstances. Their statements do not suffer from infirmities such as material contradictions, major discrepancies on' dishonest improvements. Since Mulazim Hussain Shah co‑accused had not caused any injury to the deceased and only Lalkara had been attributed to him, he was given benefit of doubt, therefore, his! acquittal does not damage the integrity and veracity of the two, eye‑witnesses. It seems to us that Jalal Shah P.W. 8 and Riaz Hussaini Shah P.W.9 are wholly dependable witnesses and they can be relied; upon for convicting the appellant without corroboration. In case, the rule of prudence insists for some corroboration that is also available in the shape of reliable recovery of gun Ex.P.7 from the appellant. Sikandar Khan P.W.6 and Nawab Shah P.W.7, the witnesses of recovery of crime empties and gun from the appellant, respectively, are quite reliable witnesses. They are not related to the deceased. Sikandar Khan P.W. had no enmity whatsoever with the appellant...Nawab Shah P .W. had also no direct animous against the appellant. They have given reasonable explanation of their presence at the places of recovery of crime empties and gun. They have successfully faced the test of cross‑examination. We do not see any legal infirmity in their evidence.
Since the crime empties Exhs.P.5 and P.6 were delivered in the Office of Forensic Science Laboratory prior to the recovery of gun Ex.P.7 from the appellant, therefore, positive report P. N. of Examiners of fire‑arms, F.S. Laboratory, Lahore is a strong circumstance which undoubtedly connects the appellant with fire‑arm injuries found on the dead body of the deceased. Furthermore, in view of the motive which has been proved by Jalal Shah P.W.8 who has already been found to be a reliable witness, the appellant was the person likely to do away with the deceased. For all these reasons, we are convinced that the learned trial Court has rightly convicted the appellant for the murder of Khadim Hussain Shah deceased.
15. This brings us to the question of sentence. We have considered this question with utmost care on our part. We feel that in the peculiar circumstances of this case, private revenge and influence of paternal‑uncle can hardly be regarded as mitigating/extenuating circumstance for lesser penalty in favour of the appellant; in that, Haider Shah father of the appellant was not killed by the deceased; that he alongwith Mst. Sakina, wife of Khadim Hussain Shah deceased were killed on account of their illicit relations by Walayat Hussain Shah and 2 others; that Walayat Hussain Shah and 2 others were convicted and sentenced to 4 years' R.I. under section 304‑I, P.P.C. for the murder of the father of the appellant and Mst. Sakina Bibi wife of Khadim Hussain Shah deceased. The Honourable Supreme Court in case Abdul Ghaffar v. The State 1973 S C M R 39, Mehr Muhammad and another v. The State 1970 S C M R 688, Ali Khan v. The State P L D 1980 SC 109 and Ajjun Shah v. The State P L D 1967 SC 185 has held that private revenge is not a mitigating circumstance for awarding lesser penalty. We do not see any peculiar feature in the present case which may require lesser penalty in the ends of justice. The father of the appellant was killed by persons other than Khadim Hussain Shah deceased of this case on account of his illicit relations with the wife of the present deceased and that, too, 16 years before the present occurrence, therefore, the appellant had no justification, whatsoever, to kill the deceased who was not the killer of his father. Sibtain Hussain Shah appellant was above 20 years of age at the time of occurrence. He was a man of mature mind. The learned trial Court for good reasons was of the view that there were reasons to doubt that Mulazim Hussain Shah was in fact present or had raised Lalkara exhorting the appellant to take the revenge of the murder of his father. In these circumstances, the question of giving benefit of the influence of the elder in the matter of sentence does not arise. The case‑law cited by the learned counsel is not applicable to the facts and circumstances of the case.
The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellant under section 302, P.P.C. for the murder of Khadim Hussain Shah, the appeal is dismissed in toto and the sentence of death is confirmed.
S.G.D./S‑158/L ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.