MUHAMMAD ALI Versus State
MALIK SHAHZAD AHMAD KHAN, ACJ.--- This judgment shall dispose of Criminal Appeal No. 80303 of 2021 titled 'Muhammad Ali v. The State and another', Criminal Appeal No. 80309 of 2021 titled 'Faisal Murad v. The State and another' filed by the appellants, namely, Muhammad Ali and Faisal Murad, against their convictions and sentences, as well as, Criminal Revision No. 8232 of 2022 titled 'Mst. Hameedan Bibi v. The State and 2 others' filed by Mst. Hameedan Bibi complainant for enhancement of the sentences of Muhammad Ali and Faisal Murad appellants, as all these matters have arisen out of the same impugned judgment dated 07.12.2021, passed by learned Additional Sessions Judge, Lahore. The appellants were tried in case FIR No. 1259 dated 20.08.2019 registered at P.S. Mughalpura District Lahore offences under sections 302/34 of P.P.C., by the learned Additional Sessions Judge, Lahore and after conclusion of trial, vide judgment dated 07.12.2021, the learned trial Court has convicted and sentenced the appellants as under:-
Under sections 316/34 of P.P.C. to rigorous imprisonment for 05 years to each appellant with the direction to pay compensation of Rs. 300,000/- each as envisaged under section 544-A of Cr.P.C., to the legal heirs of Madad Ali and in default thereof, to further undergo S.I for 06 months each. The appellants were also directed to pay the Diyar amount of Rs. 42,61,205/- to the legal heirs of Madad Ali deceased and in default thereof they were directed to remain in jail till payment of the amount of Diyati and in that case, they were further directed to be treated as if sentenced to simple imprisonment.
The benefit of section 382-B of Cr.P.C. was also extended to the appellants.
2. Brief facts of the case as given by the complainant Mst. Hameedan Bibi (PW-1), in her complaint (Exh.PA), on the basis of which the formal FIR (Exh.PD) was chalked out, are that her (complainant's) daughter, namely, Mst. Amna (PW-3) was married with Faisal Murad (appellant) in the year 2013 however, their relationship remained strained, continuously. On 19.08.2019, the complainant party received information that Faisal Murad (appellant) had beaten her (complainant's) daughter upon which she (complainant) along with respectables of the area, namely, Muhammad Akram Mithu (given up PW), Latif Thekaydar (PW-2), her sons, namely, Khurram Shahzad (given up PW), Faisal Imtiaz (given up PW) and her husband, namely, Madad Ali (deceased) went to the house of Faisal Murad (appellant) situated at Daras Baray Mian near Christian Graveyard, Lahore. On 19.08.2019 at about 09:00 p.m., the complainant party reached in the said house and, as soon as, they (complainant party) reached there, the accused party attacked them and started beating Madad Ali (deceased) and sons of the complainant. Madad Ali (deceased) fell down on the ground due to the beating of the accused party who was immediately shifted to the Shalimar Hospital, Lahore, where he was given medical treatment and referred to the Punjab Institute of Cardiology, Lahore but he died there at 08:45 (a.m.). The complainant further stated that her husband died due to the beating of Faisal Murad (appellant), Muhammad Ali (appellant), Shaukat Mehmood and Ali (co-accused not challaned/tried) hence, the abovementioned FIR.
3. The appellants were arrested in this case by the police and after completion of investigation the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants on 19.10.2020, to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced twelve witnesses, whereas, Dr. Muhammad Waqar (CW-1) was examined as a Court witness. Prosecution also produced documentary evidence in the shape of Exh.PA to Ex.PP. Dr. Muhammad Waqar (CW-1),produced in his documentary evidence his notes Exh.CA and slip Exh.CB, whereby he referred Madad Ali deceased to the Punjab Institute of Cardiology, Lahore. The statements of the appellants under section 342, Cr.P.C, were recorded, wherein they refuted the allegations leveled against them and professed their innocence.
4. The learned trial Court vide its judgment dated 07.12.2021 found the appellants guilty to the extent of offence under sections 316/34 of P.P.C. instead of offences under sections 302/34 of P.P.C. and convicted and sentenced them as mentioned and detailed above.
5. It is contended by learned counsel for the appellants that the appellants are absolutely innocent and they have falsely been implicated in this case by the complainant party being in league with the local police; that in fact, Madad Ali (deceased) was a heart patient and he died natural death due to heart attack but the complainant party malafidely involved the appellants in this case due to the family rifts between the parties; that the prosecution eye-witnesses were not residents of the area where the occurrence took place and as such they are chance witnesses therefore, they are not worthy of reliance; that the occurrence was unseen and in fact the prosecution witnesses were not present at the spot at the relevant time; that there is no allegation against the appellants that they used any weapon to commit the murder of Madad Ali (deceased) which further supports the stance of the appellants that in fact, 1st Madad Ali deceased died natural death due to the heart attack; that even the 1st Medical Officer, namely, Muhammad Waqar (CW-1) did not notice any injury on the body of Madad Ali (deceased); that no motive against the appellants could be proved by the prosecution; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt therefore, the appeals filed by both the appellants may be accepted and they may be acquitted from the charges.
6. On the other hand, it is contended by learned Additional Prosecutor General assisted by learned counsel for the complainant that the prosecution has proved its case against the appellants beyond the shadow of any doubt therefore, they were rightly convicted and sentenced by the learned trial Court; that ocular testimony of the prosecution's eye-witnesses is in line with each other and there is no material contradiction in their evidence; that Madad Ali (deceased) died due to the severe torture inflicted by the appellants and this fact is supported by the medical evidence produced by the prosecution through Dr. Tooba Rani (PW-10) who stated that four chest ribs of the deceased were found to be fractured and there was severe internal bleeding under injury No.1 on the chest; that motive of the prosecution case regarding the matrimonial dispute of Faisal Murad (appellant) with his wife Mst. Amina Faisal (PW-3) has also been proved in this case by the prosecution through reliable evidence of the prosecution witnesses; that there is no substance in the appeals filed by the appellants therefore, the same may be dismissed. Insofar as Criminal Revision No. 8232 of 2022 is concerned, learned counsel for the complainant contends that the appellants intentionally committed the murder of Madad Ali (deceased) and it was a pre-planned occurrence; that there was no mitigating circumstance in favour of the appellants therefore, the appellants may be convicted and awarded the punishment of death under section 302(b), P.P.C.
7. Arguments heard. Record perused.
8. The prosecution story as set forth in the complaint (Exh.PA), on the basis of which the formal FIR (Exh.PD) was chalked out, has already been reproduced in para No. 2 of this judgment therefore, there is no need to repeat the same.
9. In order to prove its case, the prosecution produced three eye-witnesses, namely, Mst. Hameeda Madad Ali complainant (PW-1), Muhammad Latif (PW-2) and Mst. Amina Faisal (PW-3). They supported the prosecution story while stating that on 19.08.2019 at 09:00 p.m., Madad Ali (deceased) was given severe beating by the appellants and due to the aforementioned beating, Madad Ali later on died on the next morning. Mst. Hameedan Madad Ali complainant (PW-l) is wife, whereas, Mst. Amina Faisal (PW-3) is daughter of Madad Ali (deceased) therefore, substitution in such like cases is a rare phenomenon because it is not expected from the wife and daughter of the deceased that they would let off the real culprits and involve innocent persons in the murder case of their close kith and kin. It is further noteworthy that Mst. Amina Faisal (PW-3) was wife of Faisal Murad (appellant) and the occurrence took place in her house therefore, she was natural eye-witness of the occurrence being inmate of the house where the occurrence took place. Insofar as the evidence of Mst. Hameedan Madad Ali complainant (PW-1) and Muhammad Latif (PW-2) is concerned, I have noted that both the abovementioned witnesses are residents of the same city (Lahore), where the occurrence took place. They explained their presence at the spot at the time of occurrence by stating that on the day of occurrence, they received information that daughter of the complainant, namely, Amina Faisal (PW-3) was physically tortured by her husband, namely, Faisal Murad (appellant) whereupon, husband of the complainant, namely, Madad Ali (deceased) along with Mst. Hameedan Madad Ali complainant, his sons and Muhammad Latif (PW-2) reached the house of Faisal Murad appellant (place of occurrence) and in their presence, the appellants attacked upon Madad Ali (deceased) and committed the occurrence. Presence of Mst. Hameedan complainant (PW-1) in the house of her daughter, which was situated in the same city, cannot be termed as unnatural or improbable. Likewise, Muhammad Latif (PW-2) has also plausibly explained the reason of his presence at the spot at the relevant time by stating that on the day of occurrence, he was asked by Madad Ali (deceased) for help as his daughter Mst. Amina Faisal (PW-3) was tortured by her husband, whereupon, he accompanied Madad Ali (deceased) to the house of occurrence. Muhammad Latif (PW-2) is also the resident of same city, where the occurrence took place. Moreover, it is not expected from Mst. Hameedan Madad Ali complainant (PW-1), who was mother-in-law of Faisal Murad (appellant), as well as, from Mst. Amina Faisal (PW-3) who was wife of Faisal Murad (appellant) that they would falsely implicate Faisald Murad (appellant) and his brother, namely, Muhammad Ali (appellant) in this case, who were closely related to them. It has also been brought on the record during the cross-examination of Mst. Amina Faisal (PW-3) that she had three children from the wedlock of Faisal Murad (appellant) and as such, there was no reason with the abovementioned prosecution witnesses to depose falsely against both the appellants. All the aforementioned eye-witnesses were cross-examined at length but their evidence could not be shaken. They remained consistent on all material aspects of the case. Their evidence is confidence inspiring and trustworthy.
10. Medical evidence of the prosecution was furnished by Dr. Tooba Rani (PW-10). She stated that on 20.08.2019 at 05:00 p.m., she conducted autopsy on the dead body of Madad Ali (deceased) and found the following injury on his body:-
INJURY No.1:
1. Punctate Petechieal Hemorrhages were present front of chest more marked on left side, 4 cm left of left nipple at 9'O Clock position in area 12 x 10 cm extending up to midline.
On Exploration: Underlying soft tissues were extensively bruised, left 2nd 4th 5th 6th ribs were fractured, body of sternum was fractured, 2"d, 3rd and 4th ribs were fractured extensive Petechiea were present on both lungs. Lungs were intensely congested and massive hemorrhage was present in side chest cavity.
According to her opinion, the abovementioned injury was ante-mortem in nature and caused by blunt means. The cause of death was blunt trauma to the chest under injury No.1 causing damage to the vital organs of body and chest i.e., heart and both lungs leading to profused hemorrhage and shock. It is true that Dr. Muhammad Waqar (CW-1) initially examined Madad Ali (deceased) in injured condition on the day of occurrence i.e. on 19.08.2019 and he stated during his cross-examination that he did not notice any mark of-violence or injury on the body of Madad Ali (deceased) but at the same time, he also stated that since there was no bed available in I.C.U. of Shalamar Hospital, Lahore, where he was posted at the relevant time, therefore, he referred Madad Ali (deceased) to the Punjab Institute of Cardiology, Lahore. He further stated that BP and pulse of Madad Ali (deceased) was less and he was in gasping condition. The said Medical Officer only produced in evidence notes taken at the time of treatment of Madad Ali (deceased) as (Exh.CA) and his reference slip of Madad Ali (deceased) to the Punjab Institute of Cardiology as (Exh.CB) but he did not produce any medico legal certificate of Madad Ali (deceased) which shows that he did not conduct any medico legal examination of Madad Ali (deceased) at the time of his arrival in the abovementioned hospital. It is therefore, evident that keeping in view the serious condition of Madad Ali deceased (the then injured) and due to non-availability of bed in the Intensive Care Unit (I.C.U) of the abovementioned hospital, Dr. Muhammad Waqar (CW-1) referred Madad Ali (deceased) to the Punjab Institute of Cardiology, Lahore, without conducting his medico legal examination, therefore, abovementioned statement of Dr. Muhammad Waqar (CW-1) during his cross-examination regarding the non-mentioning of any injury in his notes or reference slip (Exh.CA and Exh.CB) is of no avail to the appellants. Moreover, prosecution has produced medical evidence through Dr. Tooba Rani (PW-10) who categorically stated that there was injury No. 1 on the chest of Madad Ali (deceased) which was ante-mortem in nature and four ribs of the chest of the deceased under the said injury were found to be fractured which caused petechiea and intensive/massive bleeding to both lungs. Evidence of abovementioned Medical Officer could not be shaken by the learned defence counsel during cross-examination. I am therefore, of the view that ocular evidence furnished by Mst. Hamdean Madad Ali (PW-1), Muhammad Latif (PW-2) and Mst. Amina Faisal (PW-3) has fully been supported by the medical evidence furnished by the prosecution through Dr. Tooba Rani (PW-10).
11. Insofar as the motive of the prosecution case is concerned, I have noted that although it was mentioned in the contents of the FIR that daughter of the complainant, namely, Mst. Amina Faisal (PW-3) was married with Faisal Murad (appellant) in the year 2013 and their relationship remained strained after the marriage and even on the day of occurrence, Faisal Murad (appellant) gave beating to his wife, namely, Mst. Amina Faisal (PW-3) and on receiving the said information, Madad Ali (deceased) and the PWs went to the house of Faisal Murad (appellant) where the occurrence took place but I have noted that no reason of the strained relationship between Faisal Murad (appellant) and his wife, namely, Mst. Amina Faisal (PW-3) has been brought on the record. Even it is not mentioned in the contents of the FIR that as to why Faisal Murad (appellant) physically tortured Mst. Amina Faisal (PW-3) on the day of occurrence. No medico legal report of Mst. Amina Faisal (PW-3) has been produced in the evidence to support the alleged motive of the prosecution. Although Mst. Amina Faisal (PW-3) stated in her examination-in-chief recorded by the learned trial Court that her husband (Faisal Murad appellant) tortured her on the day of occurrence i.e. on 19.08.2019 and asked her to bring an amount of Rs.50,000/- or more from her parents whereupon, she informed her parents regarding the abovementioned demand of Faisal Murad (appellant) but no such allegation has been levelled in the contents of the FIR that Faisal Murad (appellant) demanded any money from the daughter of the complainant, namely, Mst. Amina Faisal (PW-3) or from her parents. Mother of Mst. Amina Faisal, namely, Mst. Hameedan Madad Ali complainant appeared in the witness box as (PW-1) and even in her statement recorded by the learned trial Court, she did not utter a single word that Faisal Murad (appellant) demanded any money from her daughter, namely, Mst. Amina Faisal (PW-3) or he (appellant) demanded any money from her (complainant/PW-1). She did not state that she was conveyed by her daughter, namely, Mst. Amina Faisal (PW 3) regarding the abovementioned demand by Faisal Murad (appellant). I am therefore, of the view that statement made by Mst. Amina Faisal (PW-3) regarding the abovementioned alleged motive is result of an after-thought and neither any specific motive was alleged in the FIR nor the same has been proved by the prosecution.
12. It is further noteworthy that there is no allegation by any prosecution witness that the appellants used any weapon during the occurrence, consequently, no weapon has been recovered from the possession of any of the appellants.
13. I have disbelieved the prosecution evidence qua the motive of the occurrence due to the reasons mentioned in para No. 11 above, however, if the prosecution evidence qua the motive is excluded from consideration, even then sufficient incriminating evidence is available on the record to prove the prosecution case against the appellants. As discussed earlier, the prosecution case has been proved against the appellants through the reliable and confidence inspiring evidence of eye-witnesses, namely, Mst. Hameedan Madad Ali complainant (PW-1), Muhammad Latif (PW-2) and Mst. Amina Faisal (PW 3). They stood the test of lengthy cross-examination but their evidence could not be shaken regarding the role played by the appellants during the occurrence. They corroborated each other on all material aspects of the case. The ocular account of the prosecution as given by Mst. Hameedan Madad Ali complainant (PW-1), Muhammad Latif (PW-2) and Mst. Amina Faisal (PW 3) about the role of the appellants during the occurrence is fully supported by the medical evidence furnished by Dr. Tooba Rani (PW-10), as well as, postmortem report of Madad Ali (deceased) (Exh.PM). I am therefore, of the view that the prosecution has proved its case against the appellants beyond the shadow of any doubt.
14. Now coming to the question of convictions and sentences awarded to the appellants by the learned trial Court for offences under sections 316/34, P.P.C. instead of offences under sections 302/34, P.P.C. and Criminal Revision No. 8232 of 2022, filed by Mst. Hameedan Bibi complainant for conviction of the appellants under section 302, P.P.C. and enhancement of their sentences is concerned, I have noted that there was no previous enmity between the parties. As mentioned earlier, no specific motive was alleged in the contents of the FIR and no motive could be proved against the appellants by the prosecution. It is evident from the perusal of the contents of the FIR and statements of the prosecution eye-witnesses before the learned trial Court that the occurrence took place at the spur of moment without any premeditation, when Madad Ali (deceased) and the complainant party reached in the house of the appellants as they were statedly informed on the day of occurrence regarding the alleged quarrel which took place between Faisal Murad (appellant) and his wife, namely, Mst. Amina Faisal (PW-3). It is further noteworthy that Mst. Amina Faisal (PW-3) was married with Faisal Murad (appellant) in the year 2013, whereas, the occurrence took place in the year 2019 and as such, Mst. Amina Faisal (PW-3) was living with Faisal Murad (appellant) in his house from the date of her marriage till the date of occurrence. As mentioned earlier, Mst. Amina Faisal (PW-3) stated during her cross-examination that she had three children from her marriage with Faisal Murad (appellant). It is therefore, clear that there was no serious ill will or bitterness between the appellants and the deceased and the incident had erupted all of a sudden without any premeditation whatsoever. Admittedly, no weapon was used by the appellants during the occurrence. The role of merely giving beating to Madad Ali (deceased) was assigned to both the appellants and there is nothing on the record to show that the appellants took any undue advantage at the time of occurrence or they acted in a brutal or cruel manner. Under the abovementioned circumstances, provisions of exception 4 contained in erstwhile provision of section 300 of P.P.C. are fully attracted in this case. The Hon'ble Supreme Court of Pakistan in the case of 'Ali Muhammad v. Ali Muhammad and another' (PLD 1996 SC 274) has held that cases falling in the exceptions contained in the erstwhile provisions of section 300 of P.P.C. now attract the provisions of section 302(c) of P.P.C. While reiterating the same views, the Hon'ble Supreme Court of Pakistan in the case of 'Azmat Ullah v. The State' (2014 SCMR 1178), has observed as under:-
"4. ---- Leave to appeal had been granted in this case to consider as to whether the circumstances of this case attract the provisions of section 302(b), P.P.C. or of section 302(c) P.P.C. A bare perusal of the FIR, the statements made by the eye-witnesses before the learned trial Court and the findings recorded by the learned courts below clearly shows that there was no background of any or bitterness between the appellant and his deceased brother and that the incident in issue had erupted all of a sudden without any premeditation whatsoever. The medical evidence shows that the deceased had received one blow of a chhurri on his chest whereas another blow was received by him on the outer aspect of his left upper arm. The doctor conducting the post-mortem of the deadbody had categorically observed that both the injuries found on the deadbody of the deceased could be a result of one blow of chhurri. These -factors of the case squarely attract Exception 4 contained in the erstwhile provisions of section 300, P.P.C. It has already been held by this Court in the case of 'Ali Muhammad v. Ali Muhammad and another' (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300, P.P.C. now, attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in a brutal or unusual manner. In these circumstances Exception 4 contained in the erstwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c), P.P.C.
5. Keeping in view the facts and circumstances of the case this appeal is partly allowed, the conviction of the appellant for an offence under section 302(b), P.P.C. is converted into that for an offence under section 302(c), P.P.C........."
15. Keeping in view all the aforementioned facts, I have come to this irresistible conclusion that the case in hand squarely falls under sections 302(c)/34 of P.P.C. and the learned trial Court has rightly convicted and sentenced both the appellants for the abovementioned offences. Under the circumstances, prayer of the complainant for enhancement of the sentences of the appellants and consequently their conviction for the offences under sections 302(b)/34 of P.P.C. cannot be entertained. The findings of the learned trial Court do not call for any interference by this Court. Consequently, Criminal Appeal No. 80303 of 2021 titled 'Muhammad Ali v. The State and another' and Criminal Appeal No. 80309 of 2021 titled 'Faisal Murad v. The State and another' are dismissed and convictions and sentences of Muhammad Ali and Faisal Murad appellants, recorded by the learned trial Court are upheld and maintained. Criminal Revision Petition No. 8232 of 2022 titled 'Mst. Hameedan Bibi v. The State and 02 others', filed by Mst. Hamdeean Bibi complainant for enhancement of convictions and sentences of the appellants is also dismissed.
JK/M-136/L Appeals dismissed.