MUMRAIZ Versus State
RAJA SHAHID MEHMOOD ABBASI, J.--- Through this Criminal Appeal under section 410, Cr.P.C. Mumraiz, appellant has called in question judgment dated 22nd of June, 2010 handed down by learned Additional Sessions Judge, Attock wherein the appellant was convicted under section 302(b), P.P.C. for causing the death of his real brother Farman Elahi and was sentenced to undergo imprisonment for life. He was also ordered to pay compensation of Rs.1,00,000/- to the legal heirs of deceased under section 544-A, Cr.P.C. or in default in payment thereof to further undergo imprisonment for six months.
The appellant has challenged this conviction and sentence before this Court through the instant appeal.
2. According to the prosecution story set forth in the FIR, Ex.PB wherein the complainant Fuqraj Bibi, PW.9 was maintained that she was married with Farman Elahi (deceased) about 13/14 years ago; from their wedlock two sons and two daughters took birth; Farman Elahi used to maintain them after labouring; on 16-12-2009 at about 9.45 a.m. after taking breakfast Farman Elahi went to the plot of one Farrukh to tether his buffalo in sundial, after a short while, she/complainant and her brother Imran, PW.10 also followed the Farman Elahi deceased and when they reached near plot, they saw Mumraiz abusing Farman Elahi, deceased. They/complainant etc. tried to get Farman Elahi understand but he did not listen them; Mumraiz brought out a pistol from his dub, made a fire shot that hit on back of her husband, who fell down on the ground and thereafter made more fire shots, which hit on different parts of the body of Farman Elahi (deceased). On their hue and cry Habib-ur-Rehman and Kaneez Fatima (not produced) also attracted at the spot Mumraiz, appellant while brandishing pistol in his hand decamped from scene of crime. Farman Elahi, in injured condition was being taken to civil hospital, however, on the way, he succumbed to the injuries.
Motive behind the occurrence was dispute over property.
3. The investigation in this case was conducted by Muhammad Nawaz, PW.11, who prepared the inquest report Ex.PF, prepared rough site plan Ex.PJ, on 20-12-2009 arrested the appellant Mumraiz; on 23-12-2009 recovered pistol P3 from Mumraiz through recovery memo Ex.PG, prepared the injury statement of Farman Elahi deceased, recorded the statement of prosecution witnesses under section 161, Cr.P.C. and found the appellant guilty and submitted report under section 173, Cr.P.C. before the learned trial court. Charge was framed against the appellant on 01-04-2010 to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examined as many as 11 witnesses before the learned trial court. The ocular account in this case has been furnished by Fuqraj Bibi PW.9 and Imran PW.10. Aurengzaib, PW.7 appeared as recovery witness of pistol, Ex.PG effected from appellant Mumraiz. Muhammad Nawaz, SI/Investigating Officer, who appeared before the learned trial court as PW.15 who investigated the case in hand and stated about various steps taken during the investigation of this case. He summoned Bashir Ahmad Awan, draftsman PW.4, who on the instruction of I.O and PWs took rough note and prepared scaled site plan in duplicate Ex.PD and Ex.PC/1.
The medical evidence in this case was furnished by Doctor Kashif Azad, PW.5, who on 16-12-2009 conducted the post mortem examination on the dead body of deceased Farman Elahi and following injuries were noted on the dead body:-
1. An entry wound 1 cm x 1 cm on the right side of chest, posteriorly 5 cm away from vertebral column. The wound was having inverted edges. No blackening or tattooing seen on the wounds.
2. An exist wound 2 cm x 3 cm on the right side of the chest 14 cm below right nipple. The wound has everted edges.
3. An entry wound 1 cm x 1 cm on lower back just adjacent to the right side of vertebral column. The wound had inverted edges.
4. An exist wound 4 cm x 3 cm in the region right iliacfossa 19 cm lateral to umbilicus. The wound has everted edges.
5. An entry wound 1 cm x 1 cm on right lateral aspect of chest 18 cm below the base of axilla. The wound has inverted margins. No blackening or tattooing seen around the wound.
6. An exist wound 1.5 x 1.5 cm on right suppra clavicular region having everted margins and blood oozing out of the wound.
7. An entry wound 1 x 1.5 cm on left thigh anterior aspect of wound having inverted margins and present on the mid of thigh.
8. An exist wound 3 cm x 4 cm on the outer part of left thigh 10 cm below on anterior superior iliac supine wound having everted margins.
All the injuries were caused by firearm weapon.
According to the opinion of doctor, the cause of death was due to excessive bleeding both internal and external as a result of injuries Nos.1 to 6 in hypo-volumic shock. All the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. The probable time that elapsed between injuries and death was immediate whereas between death and postmortem examination was about two hours. The post mortem report Ex.PD and its pictorial sketch Ex.PD/1, were in his hand and bears his signatures.
Rest of the prosecution evidence are almost formal in nature.
5. In his statement recorded under section 342, Cr.P.C. the appellant denied all the allegations leveled against him by the complainant and professed this innocence. He did not make statement on oath under section 340(2), Cr.P.C. However, in his defence evidence he produced Tameena Bibi wife of Sher Bahadur as DW.1, who had narrated the facts with reference to dispute over a house between two sides. Documents were also brought on record. In response to a question that "why this case against you and why the PWs deposed against you" Mumraiz appellant/accused replied as under:-
"Deceased was a person of quarrelsome nature. Large number of people were annoyed with him because of his behavior so he has earned many grievances. He was done to death by certain unknown persons. Deceased and Irfan PW who are my real brothers used to torture physically my mother because of dispute of property. I was always a hurdle in their way to do this unjustified act. Our mother was residing with me for the last two years prior to occurrence and I was the only one who used to maintain and look after her. Few days earlier to this occurrence, deceased and Irfan PW tried to set on fire our mother by sprinkling kerosene oil. Our mother to save her life had gone to the house of my sister. Thereafter deceased and Irfan PW had given injuries with churri and danda to our mother. I and my mother then reported this matter to police but police only conducted proceedings under sections 107/151, Cr.P.C. My mother then filed a petition under section 22-A, Cr.P.C. against deceased and Irfan. As Fuqraj and Irfan got serious grudge against me because of my above behavior so when they did not find any clue about murder of deceased, they having connivance with police after due deliberations and consultations with padding opted to involve me in this case by introducing a false story. I am innocent."
6. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, convicted and sentenced him as mentioned above. Hence, this appeal before this Court.
7. Learned counsel for the appellant Mumraiz contends that the judgment dated 22nd of June, 2010 passed by learned ASJ, Attock is result of misreading and, non-reading of evidence recorded during trial. There is delay in registration of case, which shows deliberation and consultation over the matter by the complainant party; that motive in the case has not been proved because no independent witness has been brought on the record to prove motive; that PW.10, who is brother of the complainant is a chance witness and could not furnish plausible reasons to be present at the place of occurrence as he is resident of village Saleem Khan, which is at a distance of 12/13 kilometers from the place of occurrence; that the complainant had not seen the occurrence herself, therefore, her evidence is nothing but a pack of lies; that PW.9 Fuqraj Bibi and PW.10, Imran are interested witnesses and are not trustworthy or reliable witnesses because in their cross-examination they have made glaring improvement, which creates serious doubts in the prosecution story; that eye-witnesses Habib ur Rehman and Kaneez Fatima were given up by the prosecution without any explanation which create serious dent in the prosecution case; no independent person from the locality was produced by the complainant in this case before the trial court to prove the case. The prosecution has miserably failed to prove the case against the appellant and it is golden principle of criminal jurisprudence that benefit of doubt, if any, has to be given to the appellant not as matter of grace but as a matter of right.
8. On the other hand, the learned DDPP assisted by complainant's counsel submits that appellant is nominated in the FIR with specific role of causing firearm shots on the person of the deceased; that the appellant/accused is real brother of the deceased, therefore, there is no ill-will or malice on the part of the complainant to falsely implicate him in the case; that as the accused is real brother of deceased, therefore, there is no mis-identity on behalf of the prosecution. The prosecution has successfully proved its case against the appellant in shape of ocular account duly corroborated by medical evidence, motive and well supported by the recovery of weapon of offence. The prosecution has proved the guilt of appellant to the hilt, hence, the appeal should be dismissed.
9. I have heard the learned counsel for the appellant the learned counsel for the complainant and learned DDPP for State and have also perused the record of this case with great care and caution. It has been observed by this case that according to the complaint Ex.PB/1 lodged by Fuqraj Bibi PW.9 wife of the deceased, the occurrence in this case has taken place on 16-12-2009 at 9.45 p.m. The deceased was immediately shifted to the THQ, Hospital, Hazro, upon receipt of information Muhammad Nawaz, SI, PW.11 reached said THQ, Hospital, Hazro where Mst. Fuqraj Bibi, PW.9 (complainant) got recorded her statement Ex.PB/1 at 11.00 am. Said statement of Mst. Fuqraj Bibi, PW.9 was sent to the police station through Ghulam Rasool, constable for recording the FIR and Ghareeb Nawaz, ASI/Moharrer, PW.3 recorded formal FIR Ex.PB and FIR was lodged at 11.15 am. In this way, I have no hesitation to observe that FIR was lodged promptly without any deliberations or consultations by the complainant.
10. To prove the case against the appellant, the prosecution examined Fuqraj Bibi, complainant, PW.9 and Imran, PW.10. Both are eye-witness of the occurrence and had sufficiently explained the mode and manner of the occurrence, place of occurrence, locale of injuries sustained by the deceased and kind of weapon used by the appellant during the occurrence. Both the eye-witnesses Fuqraj Bibi, complainant, PW.9 and Imran, PW.10 categorically made statements before the trial court that it was only the appellant who caused firearm injuries on different parts of the deceased which proved fatal and left no room for his survival. The appellant was real brother of the deceased and previously well known to each other, therefore, there is no mis-identity or false implication of the appellant in the case. It was only the appellant, who is responsible for committing the Qatl-e-amd of deceased on the dispute of house. Imran, PW.10 is real brother of complainant Fuqraj Bibi, PW.9 and his presence at the place of occurrence is beyond any doubt as plausible explanation has been furnished by PW.9 for the presence of his brother Imran, PW.10 at the place of the occurrence at relevant time. Both the witnesses were subjected to lengthy cross-examination by the defence but both of them remained consistent on each and every material aspect and successfully gave replies to all the questions put to them by the defence. The defence has also seriously criticized that it was not the appellant who had committed the murder of the deceased and deceased was a person of quarrelsome nature due to which large number of people were annoyed with him because of his behavior so he has earned many grievances, he was done to death by certain unknown persons. In this context, I shall observe here that PW.9 Fuqraj Bibi is wife of the deceased whereas the appellant/accused is real brother of the deceased. Fuqraj Bibi, appeared before the trial court as PW.9 and she had attributed fire shots to the appellant on different parts of body of deceased. The defence remained unable to shatter the evidence of abovesaid witness. So far as the defence witness DW.l, Tehmeena Bibi is concerned, she, being real mother of deceased and appellant explained her family issue and supported appellant and stated that she had forgiven appellant in the name of Almighty Allah but her statement is not relevant to fact and circumstances in a sense that she never claimed herself to be the eye-witness of the occurrence and appellant had no concern with the offence of Qatl-e -amd. Furthermore, she did not nominate any other person as actual culprit, therefore, she is not needed to be discussed her any more detail. Even otherwise, substitution is a rear phenomenon in our society, especially in this case it is observed with great caution that why complainant Fuqraj Bibi, PW.9 would spare actual culprit and involve real brother of deceased in the case without any justification. The defence remained unable to shatter the evidence of abovesaid witnesses. Thus, this Court has left with no option but to believe the statement of PW.9, Fuqraj Bibi, who is wife of deceased. Even otherwise, as mentioned above, this witness had been cross-examined by the defence at length but the defence remained unable to establish that if the deceased was done to death by certain unknown persons. It is worthwhile to mention here that it is settled principle of law that when accused took particular stance then onus always shifts on the accused to prove it but in this case the defence has not proved any material evidence to prove or substantiate this stance. Thus, I am confident enough to observe here that the prosecution has proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confidence inspiring eye-witness account.
11. Medical evidence in this case was furnished by Doctor Kashif Azad, PW.5, who had conducted the post mortem examination of deceased. While appearing before the trial court he has categorically stated as under:-
"According to my opinion the deceased died as result of excessive bleeding both, internal and external as a result of injuries Nos.1 to 6 resulting in hupo-volumic shock. All the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature."
Thus, the medical evidence by any stretch of imagination is absolutely in line with ocular account. In the backdrop of such a situation, I have noticed that statement of doctor made before the trial court although subjected to cross-examination by the defence but nothing helpful to the defence could be extracted from the same. Post mortem examination, fully corroborates the ocular account regarding nature of injuries, weapon of offence used by the appellant and locale injuries sustained by the deceased. Thus, the medical evidence has provided full support to the ocular account in this case.
12. During the investigation of this case, the appellant has led to the recovery of pistol, P3, which had been taken into possession by the Investigating Officer, Muhammad Nawaz, PW.11, vide recovery memo Ex.PG. Aurengzaib, PW.7 appeared before the learned trial court as a witness of recovery. Though, the report of Forensic Science Laboratory Ex.PL shows that empties C1 to C3 were fired from the recovered pistol but it is observed that the said empties, recovered from the place of occurrence were handed over to Naveed Ahmad, Constable, PW.2 on 20-02-2009 and it was the date when the accused was arrested. In this view of the matter, the recovery of empties becomes doubtful and even otherwise the recovery of pistol was shown from an iron box which was lying open without having any lock, so, it was not in exclusive knowledge and possession of appellant, therefore, the recovery effected from the appellant is inconsequential but it is observed that the recoveries are not the substantial piece of evidence. It is only a corroborated piece of evidence but even if recoveries are disbelieved that would have no baring on the fate of case if the case is otherwise proved on the basis of ocular account, medical and motive then conviction and the sentence can be imposed.
13. So far as motive set up by the prosecution in this case is concerned, the same is proved from the evidence adduced by Fuqraj Bibi, PW.9 and Imran, PW.10, who have categorically stated that due to dispute of a house accused committed the murder of Farman Elahi deceased. I have carefully perused the evidence available in this case and have come to the conclusion that the prosecution has successfully proved the motive against the appellant.
14. Now, adverting to the quantum of sentence passed against the appellant in this context, I may observe here that it is well recognize principle by now that accused is entitled for the benefit of an extenuating circumstance while deciding his quantum of sentence. Admittedly, the real mother of the deceased, being his legal heirs has forgiven the appellant/accused and recovery is also not believed. Furthermore, complainant, Fuqraj Bibi, PW.9 admitted during cross-examination that prior to their arrival at the place of occurrence what happened between accused and deceased i.e. not in their knowledge. All these aforementioned facts, are taken as mitigating circumstances in favour of the appellant, thus due to this fact the learned trial court was justified for not awarding capital sentence of death to the appellant. I too have no option to differ with the conclusion arrived at by the trial court. I would like to place reliance in this regard upon the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188). In another judgment reported as Ansar Ahmad Khan Barqi v. The State and another, (1993 SCMR 1660). The honourable Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring home the charge of accused for award of normal penalty of death. I have also fortified my view qua the quantum of sentence by the case reported as Sherafat Ali Khan v. The State, (2010 SCMR 1205), wherein the honourable Supreme Court has observed as under:-
"In Muhammad Riaz and another v. The State (2007 SCMR 1413), while considering 'the penalty for an act of commission of qatl-e-amd it was observed "No doubt, normal penalty for an action of commission of qatl-e-amd provided under the law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigating of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502).
15. In view of all above, I am of the considered view that the learned trial court has rightly convicted and sentence the appellant Mumraiz, under section 302(b), P.P.C. and awarded him life imprisonment. I do not find any good reason to differ with the judgment passed by the trial court, which is based upon proper appreciation of evidence available on the record and in accordance with the principles of appreciation of evidence set down by honourable Supreme Court of Pakistan in this regard. I, therefore, uphold the conviction and sentenced passed against the appellant Mumraiz vide impugned judgment dated 22nd of June 2010. Resultantly, the appeal filed by the appellant Mumraiz having no merit is dismissed.
SL/M-55/L Appeal dismissed.