MUHAMMAD IMRAN ALI Versus State

ABDUL SAMI KHAN, J.--- Through this Appeal under section 410, Cr.P.C. Muhammad Imran Ali appellant has called in question the judgment dated 30.10.2014 handed down by the learned Sessions Judge, Jhelum through which he has convicted the appellant under section 302(b), P.P.C. for committing Qatl-i-amd of Mst. Shahida Bibi deceased and was sentenced to undergo life imprisonment. He was also ordered to pay Rs. 500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased or in case of default of payment of compensation to further undergo simple imprisonment for six months. The appellant has filed the instant appeal against his conviction and sentence before this Court.

2. According to the prosecution story set forth in the FIR the complainant is resident of Chak Qazi. His daughter Mst. Shahida Bibi was married with Muhammad Imran 10/11 years before the occurrence. His daughter had two kids and she was pregnant. One month prior to the occurrence his son-in-law Muhammad Imran and his brother Muhammad Irfan shifted their families at Jhelum Kharala and started residing there. The son-in-law of the complainant had owed an amount of Rs. 20,000/- from him. On the fateful day the complainant and his son Muhammad Younas came to the house of Muhammad Imran son-in-law of the complainant and his daughter Mst. Shahida Bibi demanded her husband to return the owed amount to the complainant upon which both of them quarreled with each other. At about 4.15 p.m. the son-in-law of the complainant while armed with pistol .30 bore started abusing his wife Mst. Shahida Bibi and he made straight fire at her which landed on right side of her neck. The second fire made by Muhammad Imran hit Mst. Shahida Bibi at upper part of her right arm. Upon receiving fires Mst. Shahida Bibi fell on the ground and Mst. Zoobia wife of Muhammad Irfan step forward whereupon Muhammad Imran made fire which hit Mst. Zoobia on the right side of her head. The son of the complainant Muhammad Younis raised hue and cry due to which Muhammad Imran escaped from the scene of crime while making aerial firing. Mst. Shahida Bibi succumbed to her injuries and died at the spot whereas Mst. Zoobia was serious injured. The motive set up by the complainant in the FIR is that Muhammad Imran, son-in-law of the complainant owed an amount of Rs. 20,000/-and Mst. Shahida Bibi her daughter scolded her husband to return back lent money to the complainant upon which Muhammad Imran committed murder of his wife and caused firearm injury to Mst. Zoobia Bibi. It is stated by the complainant that beside him the occurrence was also witnessed by his son Muhammad Younis Upon statement of complaint (Ex. PF) formal FIR No. 458/13, dated 29.09.2013 was registered at Police Station Sadar, Jhelum in respect of offences under sections 302/324, P.P.C. After finding the appellant to be involved in this case the investigating officer submitted report under section 173, Cr.P.C. Charge was framed against the appellant on 06.01.2014 to which he pleaded not guilt and claimed trial.

3. To substantiate its version at the trial, the prosecution produced as many as eleven prosecution witnesses before the learned trial court. The ocular account was furnished by Muhammad Yousaf, complainant (PW7) and his statement has got support from the statements of Muhammad Younis (PW8). Muhammad Ashfaq, SI (PW11) is the investigating officer of the instant criminal case who has stated about various steps taken by him during the investigation of this case. The medical evidence has been furnished by Lady Dr. Tayyaba Farooq (PW4) who conducted post-mortem examination on the deadbody of Mst. Shahida Bibi deceased and also examined Mst. Zoobia Bibi. Tasawar Hussain, ASI (PW4) is scriber of FIR. Rest of the evidence produced by the prosecution is formal in nature.

4. The appellant in his statement recorded under section 342, Cr.P.C. professed his innocence and pleaded his false implication in the case. He did not opt to record his statement under section 340(2), Cr.P.C. in disproof of allegations leveled against him by the prosecution. However, he intended to produce defence evidence. Mst. Zoobia Bibi, injured victim of this case appeared before the learned trial court as CW1 and she did not support the prosecution case.

5. At the end of the trial, after evaluating the entire evidence and appreciating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment.

6. Learned counsel for the appellant contends that the prosecution has failed to prove the guilt of the appellant beyond any shadow of reasonable doubt so appellant deserves clean acquittal. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant states that the prosecution has proved the guilt of the appellant to the hilt.

7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.

8. The occurrence in this case took place at 4.15 p.m. on 29.09.2013 and the same has been reported to the police on the same day at 6.05 p.m. whereas the FIR has been chalked out at 6.30 a.m. Taking into consideration the facts of the case I may observe here that FIR in this case has been lodged without consultations and deliberations over the matter. Although the post-mortem examination was conducted on deadbody in this case at 11.20 pm with a delay of almost 7 hours yet the fact remains that the deadbody had been received in the hospital at 11.09 p.m. and police paper have been received in this case at 10.50 p.m. and thereafter the doctor was enable to conduct post mortem examination on deadbody. All these facts clearly show that there is no fatal delay in conducting post-mortem examination. Hence, the delay of 7 hours in conducting post mortem examination is not fatal to prosecution case.

9. To prove the allegations set forth in the FIR by the complainant the prosecution keeps in its folder two eye-witnesses out of whom the complainant appeared in the witness box as (PW8) and his statement has got full support from the statements of Muhammad Younis (PW8). I have observed that the appellant is duly named in the FIR and specific role of making fire-shots on Mst. Shahida Bibi deceased which landed at her neck and upper part of her arm are attributed to him therein. It is a case where the appellant has committed murder of his own wife in his own house in presence of eye-witnesses. The presence of the appellant in his own house at relevant time is natural especially when his in-laws came to see him. Both the eye-witnesses, i.e. Muhammad Yousaf, complainant (PW8) and Muhammad Younas (PW7) visited the house of the deceased, thus, their presence at the time of occurrence is natural. Both the eyewitnesses have narrated all the facts and circumstances under which Mst. Shahida Bibi deceased had been done to death by the appellant who is sole culprit in this case. Even otherwise both the above mentioned eye-witnesses had unambiguously stated that it was the appellant who has hurled abuses to the deceased and thereafter made two successive fires at her with the intention to commit her murder in their presence. A careful glance of Post-mortem Examination Report (Ex. PB) also shows that in the column of persons who have taken the deadbody to the hospital the names of Muhammad Yousaf and father (both the eye-witnesses) have been written which fact makes it clear that at the time of occurrence both the eye-witnesses were present at the spot at relevant time otherwise it was not possible for them to shift the deadbody to hospital in short span of time. Both the eye-witnesses had sufficiently explained the mode and manner as well as each and every segment of the occurrence. Both the eye-witnesses had remained consistent on each and every material point in spite of having undergone an exhaustive and lengthy cross-examination by the defence. More over nothing has been extracted during cross-examination from their mouths which would suggest that they have falsely deposed against the appellant or they were not present at the spot at the time of occurrence. Their evidence has extended adequate confidence to the learned trial court to be believed upon them and I have also acknowledged the quality of their truthfulness after analyzing their evidence with great care and caution.

10. Admittedly Muhammad Yousaf, complainant (PW8) is real father of the deceased and Muhammad Younas (PW7) is real brother of the deceased so it is not expected from such close kith and kin that they would allow the real culprit to go scot-free and falsely involved the appellant in a case of this nature especially in absence of any previous illwill or bitterness. Even otherwise no person is expected to falsely involve his son-in-law in commission of murder of his daughter especially when the deceased had two kids out of the wedlock with the appellant. It is also admitted at all hands that parties to this case are closely related to each other, therefore, there is no chance of mistaken identity of the appellant in this case. Likewise, the intensity of close relationship of the complainant and the other eye-witness with the deceased itself demands and expects eradication of false implication of appellant in lieu of the real culprit which otherwise is a rare phenomenon, especially in such like cases. Thus, by any stretch of imagination it can be said with all degree of certainty that the defence could not shatter or smash the credibility and quality of the evidence adduced by these two eyewitnesses before the learned trial court. So the trustworthy evidence adduced by these witnesses has motivated this Court to put a credible reliance upon the same and believed it as unequivocal.

11. Learned counsel for the appellant has tried to prove absence of the eye-witnesses from the place of occurrence at relevant time by referring mobile data (Ex. DA/1-10) and admission made by Muhammad Younas (PW7) in his cross-examination wherein he has stated that mobile phone set of his father was not with him at the place of occurrence rather the same was in his house at Qazi Chak Jatlan, Tehsil and District Mirpur, AJ&K. In this context I may observe here that mobile telephone data is a secondary type of evidence which cannot be given weight over direct evidence. If the father of PW7 and deceased had no mobile set with him at the time of occurrence that trivial fact does not by itself is sufficient to prove that they were not present at the place of occurrence or to acquit the appellant from charge. It is nowhere else came in evidence that the eye-witnesses have come to the place of occurrence to stay more than one day so that they keep mobile set with them rather both the eye-witnesses have categorically stated that they just visited to the house of the appellant to take owed money back from him.

12. In his statement under section 342, Cr.P.C. the appellant had introduced a new story to the effect that as he had contracted love-marriage with the deceased, therefore, the eye-witnesses have no visiting terms with him and they were not present at the scene of crime at relevant time. In this context I have visited the statement made by the appellant before the learned trial court and found that the appellant himself stated that he was not present at his house and how he can say that the eyewitnesses were not present at the scene of crime at the relevant time especially in the circumstances when he has not disclosed name of anybody else from whom he gathered such information. Thus, I am of the view that such defence has been introduced by the appellant at belated stage which is of course an afterthought story under legal advise otherwise it does not appeal to a prudent mind that the eye-witnesses who were not present at the spot as argued by learned defence counsel would give exhaustive answers to the questions put to them during lengthy cross-examination conducted upon them. The stance introduced by the defence does not appeal to a prudent mind and the same is not sufficient to disprove the criminal culpability of the appellant at the spot who had made repeated fires at his own wife. Mst. Zobia Bibi, injured victim had also got recorded her statement before the learned trial court as CW1 wherein she had not supported the case of prosecution. In her statement she has categorically stated that neither the appellant nor the eye-witnesses were present at the scene of crime at relevant time. However, in her cross-examination she herself had admitted her close relationship with appellant party and that is why she had sworn an affidavit at the time of post-arrest bail of the appellant before learned trial court. A perusal of cross-examination conducted upon her shows that various confrontations have been made to her which suggest that she re-tract from her previous statement got recorded to the investigating officer during investigation of this case. The manner in which she has given answers to the questions put to her during cross-examination clearly shows that under the influence of her close relationship with the appellant party she supported the appellant especially in the circumstances when CW1 was given up by prosecution being won over by accused. Law is also settled on the point that token of receipt of injury on the person of injured victim CW1 does not give clean chit to her that she is speaking the whole truth. It is her own statement that after receiving fire-shot she became unconscious, thus, she was not in a position to say anything about the occurrence. Thus, the defence plea taken by the appellant in his statement under section 342, Cr.P.C. and statement adduced by Mst. Zobia Bibi as CW1 are hereby disbelieved.

13. The medical evidence in this case had been furnished by Lady Dr. Tayyaba Farooq (PW4) who had categorically explained the nature of injuries, the weapon used for commission of injuries the locale of injury on the person of deceased inasmuch as the time between the injury and death and the death and post-mortem examination of the deadbody. She had undergone cross-examination by the defence but nothing favourable to defence has been extracted from her mouth. Although the doctor in her cross-examination had stated that injuries Nos. 1 and 2 cannot be sustained by the victim/deceased if the assailant is face to face with her yet the fact remains that it is not hard and fast rule rather it is just an opinion which is opined by the doctor on the basis of supposition and that supposition cannot be given preference over direct evidence adduced by the eye-witnesses. Even otherwise law is quite settled on the point that the face is not a stagnant part of body. The deceased might have moved her head to escape from the fire-shot made by the appellant on fateful day. Reliance in this regard can be made on the case reported as 2011 SCMR 429. Thus, I have come to the definite conclusion that the medical evidence in this case is in line with the ocular account and the same has provided full support to the same.

14. The appellant was arrested in this case on 06.10.2013 and a pistol .30 bore (P-5) has been recovered from him which has been taken into possession by the investigating officer vide recovery memo Ex. PK along with two live bullets (P6/1-2). During spot inspection the investigating officer has also collected three crime-empties of pistol .30 bore (P1/1-3) which have been taken into possession vide recovery memo Ex PJ. The crime empties were sent to the Office of Forensic Science Laboratory on 03.10.2013 whereas the appellant was arrested in this case on 06.10.2013, the pistol 30 bore was sent to the Office of Forensic Science Laboratory on 08.10.2013 and report in this regard is positive. Both the eye-witnesses are also recovery witnesses who during their statements before the learned trial court has stated all the necessary steps taken by the investigating officer during recovery proceedings. Thus, the recovery effected from the appellant provide full corroboration to the ocular account in this case.

15. The motive set up by the prosecution in the FIR is that the eye-witnesses visited the house of the appellant to take back Rs. 20000/- which amount was owned by the appellant from Muhammad Yousaf, complainant (PW8) and when the deceased wife of the appellant reprimanded him on this issue a quarrel took place between them and in consequences the appellant had made two successive fire-shots upon her and committed her murder. During their statements both the eye-witnesses have also deposed about the motive and sufficiently explained that why the appellant owed money and on demand of return how he has committed murder of his wife in presence of eye-witnesses. Instead of lengthy cross-examination nothing has been extracted from the mouth of witnesses namely Muhammad Yousaf, complainant (PW7) and Muhammad Younas (PW8) which could suggest another reasons except the reason introduced by the complainant in the FIR. Thus, motive in this case has been proved and the same provide full corroboration to the ocular account.

16. For what has been discussed above, an irresistible conclusion of the above discussion is that the prosecution has proved its case against the appellant without any reasonable shadow of doubt. The appellant has rightly been awarded life imprisonment as the occurrence took place at the spur of moment without premeditation. Therefore, Criminal Appeal No. 66 of 2014 is dismissed and the sentence of life imprisonment under section 302(b), P.P.C. along with compensation of Rs. 500,000/- under section 544-A, Cr.P.C. or in default of payment of compensation simple imprisonment for six months passed against Muhammad Imran Ali appellant vide judgment dated 30.10.2014 is hereby upheld and maintained. Benefit of section 382-B, Cr.P.C. is extended in favour of the appellant.

JK/M-124/L Appeal dismissed.