HABIB ULLAH Versus State

SH. NAJAM UL HASAN, J.-- - Habib Ullah, appellant was tried by the learned Additional Sessions Judge Taunsa Camp at D.G. Khan in case F.I.R. No.6 dated 22-5-2007 under section 302/324, P.P.C. registered at Police Station Mubarki, Distt. D.G. Khan for committing Qatl-e-amd of his real brother Rehmat Ullah and for murderous assault on the other brother Muhammad Khan. The learned trial Court vide judgment dated 22-9-2008 convicted the appellant under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay compensation of Rs.50,000 under section 544-A, Cr.P.C. to legal heirs of Rehmat Ullah deceased or in default of payment to undergo six months S.I. The appellant was also convicted under section 324, P.P.C. and sentenced to suffer ten years' S.I. and also to pay fine of Rs.20,000 and in case of default in payment of fine to further undergo S.I. for three months for murderous assault upon Muhammad Khan P.W.

2. Feeling aggrieved of the above conviction and sentences Habib Ullah convict has filed Criminal Appeal No.266 of 2008 whereas the State has approached this Court by way of Murder Reference No.63 of 2008 seeking confirmation of sentence of death awarded to the convict by the learned trial court. Both these inter-related matters are being disposed of together through this single judgment.

3. Place of occurrence in this case is house belonging to the parties where all the four brothers i.e. the complainant, the deceased, the injured P.W. and even the appellant were present along with their mother and families whereas their fifth brother Meera Khan also lived close to the house where the occurrence took place on 22-5-2007 at about 10-00 a.m. In the occurrence Rehmat Ullah met his death whereas Muhammad Khan received serious injuries as a result of firing made by their real brother Habib Ullah, appellant and the matter was reported to the police by their fourth real brother Muhammad Usman complaint, P.W.1 by way of F.I.R. Exh.P.A.

4. Narrating the occurrence in the F.I.R. the complainant stated that on the fateful day and time he along with his brothers Habib Ullah (appellant), Muhammad Khan (injured) and Rehmat Ullah (deceased) were present in their house on account of distribution of property left by their late father and during that course the appellant started using foul language with the mother over an iron box for which he was admonished by Muhammad Khan (injured) but the appellant took it ill and fired a shot hitting his buttock as a result of which he was injured. However, he ran towards the room. In the meantime Rehmat Ullah tried to prevent him but the appellant fired a shot hitting Rehmat Ullah as a result of which he succumbed to the injury at the spot. Thereafter the complainant tried to stop the appellant and he was also fired at but he luckily escaped. It was further alleged in the F.I.R. that thereafter the appellant went towards the room in which Muhammad Khan had hid himself and started firing standing by the widow as a result of which Muhammad Khan received further injuries. In the meantime a lot of persons from the locality gathered and the appellant went away.

5. After the occurrence Muhammad Usman (P.W.1) reached at Police Station Mubarki and lodged F.I.R. (Exh.PA) with Muhammad Jan, Naib Dafedar (P.W.6). After registration of the case the investigator (P.W.6) reached at the place of occurrence, took the dead body into possession and prepared its injury statement (Exh.PJ). He also prepared injury statement (Exh.PK) of Muhammad Khan injured. He took into possession last worn clothes of the deceased bearing Qameez (P.4) and Shalwar (P.5) (blood-stained) vide memo Exh.PD. The investigator collected blood-stained earth from the place of occurrence vide memo Exh.PC. He also collected five empties (P.1/1-5) and two live cartridges (P.2/1-2) vide memo Exh.PB and Exh.PB/1 respectively and also prepared rough site plan of the place of occurrence. The memos regarding recoveries from the spot were duly attested by Muhammad Usman and Saman Khan, P.Ws. and the investigator recorded statements of these witnesses in this regard. On 22-5-2007 he handed over three sealed parcels containing empties, live cartridges and blood-stained earth to Ghulam Akber Sawar for onward transmission to the concerned offices. The accused was arrested and he got recovered rifle. After investigation he was found involved in the case as such challaned to Court to face trial.

6. It may be mentioned at this very juncture that in this case post mortem examination of the deceased was not conducted. It has come on record that the place of occurrence is situated in hilly area at a distance of about 150 kilometers from the city of D.G. Khan and no metalled road leads to the city from the place of occurrence. Even Muhammad Khan injured who was seriously injured by firearm could reach the hospital by way of some private vehicle at about 4-00 p.m. in spite of the fact that the occurrence had taken place at 10-00 a.m. It appears that these hurdles prevented the family from taking the dead body to the mortuary for post mortem. Even otherwise it has been held by superior courts that mere absence of post mortem examination does not spoil the case of prosecution if other attending circumstances so warrant.

7. Dr. Farhaj Shemail, (P.W.3) medically examined Muhammad Khan injured on 22-5-2007 at 4-05 p.m. and found following injuries on his person:--

(1) Entry wound 3cm x 2cm on lateral side of lower right arm going deep into the muscle.

(2) Entry wound 3.5 cm x 2 cm on lateral side of right arm superior to injury No.1. On examination cavity of wound had small wooden pieces and particles and a metallic foreign body which was removed and sealed.

(3) A kissing injury 1.5 cm x 0.5 cm in size on dorsal surface of left ring finger.

(4) Entry wound .05 cm on dorsal surface of left little finger going into small muscles of left little finger.

(5) Exit wound 1 cm in dia on the palmer surface of left little finger.

(6) Kissing injury 2.5 cm x 1 cm on lateral side of right thigh. Injury was skin deep.

Corresponding cut on shalwar was present. The doctor opined that the injuries were caused by firearm weapon. Probable duration of injuries was within four to eight hours.

8. At commencement of trial charge was framed against the appellant to which he pleaded not guilty and claimed trial. In order to prove its case against the appellant the prosecution produced seven witnesses at trial out of which Muhammad Usman, complainant and Muhammad Akram, P.Ws.1 and 2 gave ocular account of the occurrence. Dr. Farhaj Shemail, P.W.3 provided medical evidence. Muhammad Jan Naib Dafedar, P.W.6 proved his investigation. Rest of the witnesses were formal in nature.

9. At the close of prosecution evidence, the appellant was examined under section 342, Cr.P.C. He dismissed and denied each piece of prosecution evidence. To a question as to why the case was registered against him and why the P.Ws. made statements to involve him, he replied as under:--

"P.Ws. are interested and had common interest. No independent P.Ws. have been examined just to save the skin of injured witness because Muhammad Khan and Usman quarrelled with Rehmat Ullah. Even the widow of deceased is not in the calendar of witnesses. On the day of occurrence P.Ws. and deceased were quarrelling over the money share of deceased, at the spur of moment, Muhammad Khan injured fired at the deceased with his rifle which hit upon the head of deceased and in defence deceased fired at injured P.W. with his .12 bore gun which hit the injured and Usman made second fire with his rifle which hit on the back of deceased. That time, all other family members were at home, but I.O. did not record the version of the widow of deceased only to grab the share amount of mine and deceased."

The appellant did not produce evidence in his defence. He, however, appeared in his own defence under section 340(2), Cr.P.C. At conclusion of trial the appellant was convicted and sentenced as noted above.

10. Learned counsel for the appellant states that the occurrence in this case was result of sudden flair-up/fight. Learned counsel further submits that mother of the appellant was also present at the spot. Likewise wife of Rehmat Ullah, deceased was also present at the place of occurrence but both these ladies were not produced at trial. Learned counsel further states that mother of the appellant/deceased was present even during examination of the witnesses but still she never appeared in the court because the prosecution has concealed true facts so in such circumstances, the case becomes doubtful. It is further contended that although place of occurrence was surrounded by other houses of the locality and even according to the prosecution, a lot of people had gathered at the spot, yet no independent witness has been produced and keeping in view there was dispute of property false involvement of appellant cannot be ruled out. It is contended that motive mentioned in the F.I.R. was later on changed. In the F.I.R. motive was stated that the dispute arose between the parties over an iron box as property was distributed amongst the brothers but while appearing in the court another motive was introduced. Learned counsel states that in order to prove death of a person post mortem report is basic document but there is no post mortem report of the deceased and even inquest report was not prepared by the police and as such the appellant cannot be convicted under section 302, P.P.C. as there is no proof of murder of the deceased. Learned counsel further contended that so far as injuries on the person of Muhammad Khan are concerned, there are contradictions in Medico-Legal Report. Learned counsel vehemently contended that no specific description of weapon of offence was given in the F.I.R. It was not disclosed in the F.I.R. or at trial as to what kind of weapon was used. Even the investigator did not disclose as to empties of which kind of weapon were recovered from the spot. Learned counsel further contended that allegedly five empties of .303 bore were recovered from the spot on the day of occurrence but the same were retained by the police for a long time and sent to the Firearm Expert on 12-7-2007 and such a delay has not been explained. He also contended that allegedly a rifle was recovered from the appellant on 22-6-2007 but there is no evidence to indicate that the same was sent to the Firearm Expert and in absence of such evidence and its positive report, the recovery of weapon has no value. Learned counsel further contended that version of the appellant was that in fact the deceased and injured exchanged firing and ultimately the appellant was involved so that the matter of murder is concealed and even the property of the appellant could be taken. Further contends that only one empty had matched with the rifle recovered from the appellant whereas other four empties did not match with the rifle of the appellant which show that there was at least one other weapon used during the occurrence but the prosecution kept mum about said weapon as such the whole prosecution case is doubtful and contention of the appellant that firing was exchanged with the deceased and injured resulting into death of Rehmat Ullah deceased, has got weight. Lastly, it is contended that even according to the prosecution case, the occurrence started at the spur of moment and as such the matter regarding the mens rea is lacking. It is contended that the appellant appeared in the court as his own witness and made a statement under oath in which he has taken a specific stance that during firing between the deceased and the injured, the deceased died whereas the injured received firearm injuries and later on the appellant was involved. It is also contended that in absence of cogent evidence available on the record on behalf of the prosecution, the only evidence left is that of the appellant which seems to be more reasonable and should be accepted in toto.

11. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant states that this is a case in which real brother of the appellant appeared as P.W.1 and made statement against the appellant. It has been brought on record through cross-examination that there was no enmity between the parties; that mother of the deceased was also available and it is not presumed that she will let of real culprits and would involved his innocent son. Further states that the witnesses are absolutely natural. Muhammad Khan is an injured witness. His presence at the spot is established. Further contended that even if the recovery in this case is not taken into consideration, even then sufficient evidence in the form of ocular account has come on record. Learned Law Officer states that motive mentioned in the F.I.R. was in existence whereas the other motive was also available and the same was also explained by the witnesses while appearing in the court. Further contended that the appellant acted in a brutal manner, he took all the steps to kill the injured and also the complainant besides the deceased but it was their good luck that they survived. Learned Law officer contended that firearm injuries on the person of the injured P.W. coupled with the recovery of crime empties from the spot establishes the fact that the appellant was armed with firearm and that first version of the appellant was not brought on the record and in such circumstances, the prosecution has established his case beyond any reasonable doubt. With regard to the post mortem examination it is contended that absence of post mortem examination is not so fatal that the accused should be let off even if other circumstances fully corroborate the prosecution case.

12. We have heard learned counsel for the parties and have also gone through the record.

13. This is a case in which the appellant statedly murdered his own brother Rehmat Ullah and the occurrence took place in the house where they along with other brothers, their families and even their mother were present. The occurrence took place at 10 a.m. in the month of May i.e. in the broadday-light. The matter was reported at 12-30 p.m. at the police station which was at a distance of 11/12 kilometers from the place of occurrence which falls in the area Board Military Police of Police Station Mubariki and was not an ordinary police station and was in deserted area. In the same occurrence Muhammad Khan, P.W.2 was also injured and he received certain firearm injuries at the hands of the appellant. He was medically examined after six hours of the occurrence and the doctor observed firearm injuries on his person. He made statement to the Investigating Officer and fully implicated the appellant as the person who killed the deceased in his presence and gave him fire-arm injuries. So this is a case in which the accused, the injured, the deceased and even the complainant are all brothers inter se and admittedly they were present at the place of occurrence. The complainant appeared as P.W.1 whereas the injured appeared as P.W.2 and they brought on record ocular account of the occurrence. The accused himself appeared as D.W.1 and made a statement on oath and admitted that the deceased died because of fire arm injury but he attributed this fire shot to Muhammad Khan, P.W.2 so this is a case which is based on two versions one brought on record through the complainant and the injured and the other which has come on record through the accused who appeared as D.W.1 but in both the versions it is admitted that the deceased died at the spot because of injury caused by rifle. No post mortem report is available on the file but the injured was medically examined and medical record is available on record and the doctor who conducted medical examination appeared in Court and supported the same. Contention of the learned counsel that in absence of post mortem report the whole case falls on ground does not have any force in the given circumstances of the case. Just after the occurrence the matter was reported at the police station in which it was stated that the appellant fired at the deceased and the injured and the deceased had died at the spot after receiving firearm injury. The Investigating Officer Muhammad Jan Naib Dafedar of Police Station appeared as P.W.6 and categorically stated that the dead body was having firearm injuries. There was entry wound on right side of back of the chest which made its exit on the right front of the deceased. It has also come on record through P.Ws.1 and 2 that the dead body was burried in the evening before Maghrab prayer. The record indicates that hospital was at such a distance that even the injured reached there after six hours although he was taken on a Daala and keeping in view the area where the occurrence has taken place it is usual practice that post mortem are not conducted. However, death of the deceased at the relevant time is admitted by both the sides. It has been established during trial and even during evidence of the accused as D.W.1 that the deceased died after receiving fire-arm injury so the cause and time of death and even death of the deceased is admitted by both the sides. So absence of post mortem report is itself not sufficient to discard the whole case. In arriving at this conclusion we are also fortified by the full Bench judgment of the apex Court reported as Abdul Rehman v. The State (1998 SCMR 1778) that if prosecution proves through convincing evidence that death was immediate, proximate and direct cause of injuries sustained without there being any element of negligence or other intervention non-performance of post mortem would not be fatal to its case. Relevant portion of the judgment is as under:--

"15. It may be seen that case-law relied upon by learned counsel for parties has been discussed above. We have thoroughly compared ad scrutinized the ratio decidendi in afore-quoted reported judgments and relevant law. We cannot subscribe to the observations which may suggest that failure to conduct post-mortem would demolish the prosecution case. Obviously there would be numerous situations when post mortem may not even be conducted. In various parts of the country on account of long-standing customs and established traditions tribesmen do not allow post mortem of the deceased. Thus, keeping in view all the relevant factors and law, we are persuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injuries sustained without being any element of negligence or other intervention, the non-performance of post mortem would not be fatal."

It has also been held that medical evidence only provides corroboration to the ocular account and provides support to the other circumstances and the same can completely be ignored by the learned trial Court if other substantive evidence is available on record. Similarly in case reported as Bashir Ahmad v. The State (2004 PCr.LJ 1326) it has been held that medical evidence/post mortem of deceased is made for limited purpose only to corroborate and support the substantive or circumstantial evidence and failure to conduct post mortem examination of the deceased does not allow to disbelieve that deceased had died an unnatural death. So in the peculiar circumstances of the present case non-availability of post mortem report cannot be considered as fatal to the prosecution case.

14. Coming to the ocular account complainant is real brother of the appellant. His presence at the place of occurrence is established from other circumstances and same was even admitted by the appellant himself in his statement which he made on oath while appearing as D.W.1. He has provided ocular account of the occurrence in which he fully implicated the appellant with specific role of firing at the deceased and also injurying Muhammad Khan, P.W. Similarly Muhammad Khan, P.W.2 is also real brother of the appellant. He was seriously injured in the occurrence and was having multiple fire-arm injuries. He was medically examined immediately after the occurrence and he fully corroborated the statement made by the complainant by implicating the appellant. The fatal injury caused with rifle was specifically assigned to the appellant. During evidence it has come on record that there was another brother of the appellant, namely, Meera Khan who also reached the place of occurrence immediately after the occurrence. There is another circumstance of the case. It has come on record right from the very beginning that mother of the appellant was also present at the place of occurrence at relevant time. During cross-examination as D.W.1 the appellant admitted that she was present even in the Court. This shows that she was hotly pursuing case of death of her one son at the hands of another. Needless to mention here that no mother in the whole universe would like to falsely involve her own son if he is innocent in place of her other accused son if he has murdered the third one in cold-blood. It is significant to note that she neither entered into compromise nor has forgiven the appellant. This is a very strong circumstance which goes against the appellant. There was no enmity or illwill between the complainant and the injured/deceased on one hand and the appellant on the other. So in absence of any animosity it cannot be said that the witnesses were interested or inimical toward the appellant. Thus we see that the ocular account is worth reliance coming from independent natural witnesses. No defence witness was produced by the appellant. The stance taken by the appellant that he has been involved just to grab his property is not substantiated from any other circumstance or evidence. It was admitted that the deceased was married man and his wife was also present at the place of occurrence. So she was the one who will also be inheriting the property of the deceased and it is not understandable as to why she would let off Muhammad Khan, injured if he had murdered her husband and would involve the appellant, so the stance taken by the appellant does not appeal to reason why would the whole family including the mother would involve the appellant and leave the real culprit especially when the injured who was admittedly present at the place of occurrence and received firearm injury during the occurrence has fully implicated the appellant. Even otherwise description of injuries mentioned in Exh.PJ, the injury statement of deceased prepared by the investigator at the spot, clearly indicates that after receiving such through and through injury on the chest the deceased would not have been in a position to cause any injury to any one or to lift his weapon so the version of the accused in this regard is not reliable.

15. At trial it was admitted by P.W.2 and even by the appellant that even earlier the appellant fired at the deceased but the matter was patched up with the intervention of other brothers. It has also been admitted that the appellant was involved in the murder case in the year 1995 but was let off on account of compromise and after payment of huge amount. All these things put together make it crystal clear that the appellant fired at the deceased in consequence of which he died and he is the one who at the same time fired at the injured who received fire-arm injury.

16. Five crime empties along with two live bullets of 303 were recovered by the investigator from the spot. They were statedly received in the office of firearm expert on 12-7-2007 along with rifle. However, it has not come on record as to how it reached the said office. Even otherwise date of sending the crime empties is not established from the evidence. So the report of Firearm Expert in this case is not worth reliance. It is well-settled that chain between time of recovery of crime empty till the date receiving the same in the office of forensic science laboratory is to be established and any break in chain will make report of fire-arm expert absolutely useless. So the recovery in this case is not helpful to the prosecution.

17. So this is a case which has been proved by the prosecution through ocular account coupled with medical evidence and motive. We could not find any lacuna in prosecution evidence which could show that the occurrence was not committed by the appellant or that he has been falsely involved. So we hold accordingly.

18. Now we come to the point of sentence. It is admitted that all the brothers i.e. the injured, the deceased the complainant and even the appellant were present at the place of occurrence and the matter was being settled in presence of their mother and suddenly the matter got flared up as the appellant insulted the mother and on the intervention of the deceased and the injured the occurrence took place which resulted into death of one brother and injuries on the other brother. There was no premeditation or ill-will between the parties and such a circumstance can be considered as mitigation while awarding sentence. It has been held by the apex Court in Muhammad Arshad and 2 others v. The State (PLD 1996 SC 122) that in absence of background of previous enmity or deep-rooted hostility between accused and the deceased and only minor altercation resulting into unfortunate occurrence and the act of single fire by the accused at the deceased are facts which cumulatively makes out a case for mitigation of sentence. Section 302(b), P.P.C. has provided two kinds of punishments i.e. death or life imprisonment and it is always left to the discretion of Court to award sentence keeping in view circumstances of the case. We find that in the present case there was no previous motive. The parties were living together amicably and there was no premeditation for the occurrence. The appellant fired only one shot at the deceased and did not repeat the same and the occurrence took place at the spur of moment. Therefore, we think that in the given circumstances, sentence of life imprisonment will meet the ends of justice.

19. In view of what has been noticed and discussed above we do not find any force in Criminal Appeal No.266 of 2008 which is consequently, dismissed and conviction of the appellant awarded by the learned trial Court under section 302(b), P.P.C. and under section 324, P.P.C. is upheld. However, sentence of death awarded to the appellant under section 302(b), P.P.C. is converted into imprisonment for life. Benefit of section 382-B, Cr.P.C. is also granted to the appellant. It is however directed that both the sentences shall run concurrently.

20. Since there are extenuating circumstances in this case, not calling for confirmation of death sentence, as such Murder Reference No.63 of 2008 is answered in negative.

NHQ/H-20/L Sentence reduced.