Imdad Hussain Versus State
Asjad Javaid Ghural, J .--- Through the afore-titled criminal appeals under Section 410 Cr.P.C., appellants Imdad Hussain and Ghulam Qasim have challenged the vires of judgment dated 26.04.2022 passed by the learned Addl. Sessions Judge, Rajanpur in private complaint titled Anwar Mai v. Imdad Hussain , under sections 302 and 34 P.P.C, relating to case FIR No.241/2018, dated 13.07.2018, under sections 302 and 34 P.P.C registered at Police Station, Kot Mithan, whereby they were convicted and sentenced as under:- i) Appellant Imdad Hussain;
Under Section 302 (b) P.P.C
Death along with compensation amount of Rs.2,00,000/- to be paid to the legal heirs of deceased Mst. Zubaida Bibi and in default thereof to further undergo simple imprisonment for six months. ii) Appellant Ghulam Qasim;
Under Section 302/109 P.P.C
Imprisonment for life and to pay compensation of Rs.200,000/- to the legal heirs of deceased Mst. Zubaida Bibi as required under section 544-A Cr.P.C. and in default thereof to further undergo simple imprisonment for six months.
Benefit of Section 382-B Cr.P.C. was extended to the convict Ghulam Qasim.
2. Murder Reference No.30 of 2022 sent up by the trial Court for confirmation or otherwise of death sentence of appellant Imdad Hussain will also be decided through this common judgment.
3. Initially, Abdul Sattar (CW-10) got lodged formal FIR (Ex.CA/1) alleging therein that he contracted Court marriage with Mst. Zubaida Bibi (deceased) and out of said wedlock one child Muhammad Ayyan, aged about five months was born. 5/6 days prior to the occurrence, his mother in law, accompanying by Imdad Hussain, Ghulam Qasim and Zafar Hussain came in his house and took the deceased with them deceitfully and forcibly. On the fateful day at about 12.30 (noon), he along with eye-witnesses went to Basti Ghulam Qasim Gatt in search of his wife, when he heard the voice of firing from the house of Ghulam Qasim. After a while, appellants along with co-accused Zafar Hussain (since acquitted) and an unknown accused came outside the house and told him that they by declaring Mst. Zubaida Bibi as Kali, committed her murder.
After few months of the occurrence, Mst. Anwar Mai claiming herself to be the eye-witness of the occurrence filed private complaint (Ex.PA). In the private complaint besides above three nominated accused of FIR, she also involved Mukhtiar and Ghulam Hassan (since acquitted) in the commission of crime. She assigned the role of causing fire shot to appellant Imdad Hussain and abetment to the rest of four accused. Bone of contention i.e. love marriage of the deceased with the complainant of the State case remained the same.
4. Earlier, the Trial Court vide judgment dated 11.10.2019 acquitted co-accused Ghulam Hassan and Mukhtiar, whereas, convicted and sentenced the appellants in the same manner as enumerated above but besides them, it also awarded life imprisonment to co-accused Zafar Hussain. Conviction and sentence of the appellants and their co-accused were challenged and this Court vide judgment 21.03.2022 remanded the matter to the trial Court for re-writing of the judgment, in accordance with the material available on record.
In the post remand proceedings the Trial Court vide impugned judgment dated 08.04.2022 acquitted co-accused Ghulam Hassan, Mukhtiar and Zafar Hussain, whereas, convicted and sentenced the appellants as stated above.
5. We have heard the learned counsel for the appellants, learned Law Officer appearing on behalf of the State assisted by learned counsel for the complainant and gone through the record.
6. In this unfortunate incident a young girl and mother of an infant boy of just five months has been brutally murdered. Her sin set out in the crime report (Ex.CA/1), lodged by her husband Abdul Sattar, (CW-10) as well as in the private complaint (Ex.PA) filed by Mst. Anwar Mai (PW-1)/real mother, was that she entered into a love marriage. The notorious act of honour killing is a severe violation of human rights and grave societal menace that undermines the rule of law. The deceased lady, being sui juris, was fully competent to enter into marriage with a person of her own choice and no prohibition in this regard was laid down by our religion or the law of land. Wiping out such a person, on the pretext that he/she has brought shame or dishonor upon the family or community is violative of his/her fundamental rights of life, liberty and security enshrined in the Constitution of Islamic Republic of Pakistan, 1973. In case reported as Muhammad Akram Khan v. The State (PLD 2001 SC 96) , the apex Court has observed as under:-
Legally and morally speaking, no body has any right nor can anybody be allowed to take law in his own hands to take the life of any body in the name of Ghairat . Niether the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution.
Even the factum that the deceased was murdered on account of her love marriage was admitted by the appellants, in their statements recorded under section 342 Cr.P.C. Thus, the motive that the deceased was brutally murdered on account of honour killing has been fully proved and now the question which requires determination is that whether the appellants were responsible for such murder or not?
7. In order to prove the charge against the appellants, Mst. Anwar Mai (PW-1)/mother of deceased, by appearing in the dock in the Court room reiterated the contents of private complaint (Ex.PA). She in categorical terms raised accusing finger towards the appellants for motivating her to took the deceased lady to their house for the sake of her safety and protection. They assured her that they will not cause any harm to the deceased lady, thus, she being a widow, for the safety of the deceased lady, took her to the house of appellant Ghulam Qasim. On the fateful day, at about 12.30 p.m. appellant Imdad Hussain, while armed with pistol 30-bore along with appellant Ghulam Qasim, co-accused Ghulam Hassan and Zafar Hussain (since acquitted) came there and raised Lalkara to teach a lesson to the deceased lady for disgracing their honour. Appellant Imdad Hussain made fire shots with his pistol, which landed on different parts of the body of deceased lady. She was cross-examined at length but she remained firm and consistent in her stance and the defence despite hectic efforts remained fail to shake her testimony on material points.
Learned counsel for the appellants laid much emphasis that had this witness was present at the venue of occurrence at the relevant time, her name would have been cited as an eye-witness in the promptly lodged crime report, as such her presence at the venue of occurrence was doubtful and no reliance can be placed upon her testimony. We are not impressed with this submission. Merely for the reason that the name of a particular person is not mentioned in the crime report as a witness does not necessarily mean that such person had not seen the occurrence. It is evincing from the record that there was trust deficit between the parties and husband of the deceased/complainant of FIR case, have not visiting terms with his in-laws. Even, prior to the sad demise of his wife, he filed an application under section 491 Cr.P.C. (Ex.DB) claiming therein that mother of the deceased lady along with others forcibly abducted her from his house, therefore, there might be a trust deficit between the husband and mother of deceased, which prompted her husband to report the matter to the police without citing the mother as eye-witness of the occurrence, as a result whereof formal FIR (Ex.CA/A) was registered. In the said FIR, husband of the deceased lady narrated a very straightforward story and does not claim himself to be the eye-witness of the occurrence, therefore, it would not be possible for him to narrate the names of eye-witnesses, who had seen the occurrence with their own eyes. Therefore, if at latter stage, mother of the deceased lady, stepped forward with the assertion that she knew who committed the murder of deceased, it was not unusual. Even the presence of the complainant (PW-1) at the venue of occurrence was admitted by the Investigating Officer (CW- 7), who during cross-examination deposed that Point No.2 was recorded on the pointation of mother of Zubaida Bibi. It is thus manifestly clear that at the time of first visit of the Investigating Officer, not only the complainant (PW-1) was present but she also pointed out the place where the appellants committed the murder of deceased.
Learned counsel further emphasized that statement of this witness under section 161 Cr.P.C. was recorded at a belated stage, which reduces its value to NIL, as such no reliance can be placed upon such a statement. This submission is also repelled for the reasons, that recording the statement of a relevant person/ witness is the duty of the Investigating Officer. As has been observed supra the Investigating Officer conceded presence of this witness at the time of his first visit of place of occurrence and he also prepared site plan on her instructions, therefore, it was incumbent upon him to record the statement of such important witness. It is a matter of record that this witness was running from pillar to post for recording her statement and finally she succeeded in bringing on record her stance in the shape of statement under section 161 Cr.P.C. by the intervention of the Ex Officio Justice of Peace (Ex.DA/3) but the said statement was also not recorded in actual terms which persuaded her to file private complaint. Even otherwise, if for the sake of arguments, we presume that no statement of this witness under section 161 Cr.P.C. is available on record even then the same is not helpful to the defence, as the trial was conducted in the private complaint filed by her. A proper procedure for recording of prosecution evidence, after framing of charge has been laid down in Section 265-F of Cr.P.C. Nowhere in the said section a prohibition has been contained that the Court is bound only to record the testimony of a person, whose statement under section 161 Cr.P.C. was recorded by the police. Subsection (2) of Section 265-F of Cr.P.C reads as under:-
(2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
Here in the instant case, presence of this witness at the time of occurrence is an admitted fact, therefore, none else is more aware of the facts than the said witness and her testimony cannot be excluded merely for the reasons that the Investigating Officer due to negligence or with mala fide intention did not record her statement under section 161 Cr.P.C. Reliance is places on case reported as Sajid Mehmood v. The State (2022 SCMR 1882), wherein it has been laid down as under:-
The very purpose of Section 265-F is to ensure the concept of a fair trial and to achieve this purpose equal opportunity has been given to both the accused and the prosecution for summoning the evidence. There is nowhere mentioned in this Section that only those witnesses could be examined whose statements under section 161, Cr.P.C. have been recorded. Under this provision of law i.e. section 265-F the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses. On the other hand, section 540, Cr.P.C. empowers the Trial Court to summon a material witness even if his name did not appear in the column of witnesses provided his evidence is deemed essential for the just and proper decision of the case. In the present case, although the statement of Zameer Hussain (PW-11) under section 161, Cr.P.C. could not be recorded by the Police yet the fact remains that he was named as an eye-witness in the very FIR and was fully acquainted with the facts and the circumstances of the case.
8. Great emphasis was laid by the learned counsels for the defence that acclaimed eye-witness, Munir Hussain (PW-2), being the chance witness could not establish his presence at the venue of occurrence at the relevant time, which created dent in the prosecution s story but we are not impressed with this submission. No doubt this witness was running a tea stall at Katchehry road near hospital of Dr. Hafeez Ahmdani near P.S. City Rajanpur and he could not furnish any plausible explanation qua his presence at the venue of occurrence during working hours, thus, his testimony being the chance witness cannot be relied upon but this fact alone does not render the prosecution story unworthy of credence for more than one reasons. Firstly, admittedly, the incident has taken place inside the house of appellant Ghulam Qasim, where the presence of independent male eye-witness was impossible. Secondly , in the matter of appreciation of the evidence it is not the number of witnesses rather quality of evidence is important. There is no requirement under the law that a particular number of witnesses are necessary to prove/disprove a fact. It is time honoured principle that evidence must be weighed not counted. Complainant/ (PW-1) was the real mother of the deceased lady, whose claim was that she took the deceased lady to appellant s house for her safety and security and her presence at the venue of occurrence at the relevant time has also been established on record. She while appearing in the witness box categorically raised accusing finger towards the appellants to be responsible for committing murder of deceased lady. She faced the test of cross-examination with confidence. Her sole statement in the facts and circumstances of the case is sufficient to bring home guilt against the appellants.
9. Main emphasis of the arguments of learned defence counsels was that appellants were not close relatives of the deceased lady, as such in the presence of real brothers, paternal and maternal uncles of deceased lady, there was no reason for them to commit her murder on account of Ghairat. This argument has no force. Admittedly, appellant Imdad Hussain was paternal cousin of deceased lady. Record is indicative of the fact that he was inimical towards the deceased lady from the very day when she contracted Court marriage. No doubt FIR No.150/17, under section 365-B, registered at P.S. City Rajanpur (Ex.DA) qua abduction of deceased lady by Abdul Sattar (CW-10) was got lodged by Ghulam Raza, brother of the deceased lady but bare perusal of the same shows that said Ghulam Raza was minor at that time and not only CNIC number of appellant Imdad Hussain as guardian of said complainant was find mentioned but he also claimed himself to be the eye-witness of the occurrence. From this fact, it can safely be gathered that appellant Imdad Hussain was annoyed with the Court marriage of deceased lady and in order to teach her lesson, he got lodged fake crime report against her husband, which was subsequently cancelled upon the statement of deceased lady. A person who could get register a fake crime report against the husband of deceased lady qua her abduction can also be expected to take the life of such lady, in particular, when the plan of involving husband of deceased lady in fake criminal case was got foiled by her. No doubt appellant Ghulam Qasim has no blood relation with the deceased lady but he belongs to the same community. There is no cavil to the proposition that honour killing is a brutal and deep rooted cultural practice which is not always committed by immediate family members of the victim. In many cases, the act can be carried out by elders of the tribe or community who believe that they are upholding traditional values or protecting collective honour of the group. These elders often hold significant influence and authority. Here in the instant case, influence of appellant Ghulam Qasim can be gathered from the fact that upon his asking the complainant took the deceased lady to his house for the sake of her protection. Therefore, no benefit can be extended this appellant merely for the reason that he has no blood relation with the deceased.
10. Dr. Sobia Sadaf (CW-4) held autopsy on the dead body of deceased Zubaida Bibi on 13.07.2018 and observed sixteen fire arm injuries including exit wounds on her person. According to her opinion injury No.1 caused damage to Trachea leading to respiratory distress, whereas, injury No.2 caused damaged to arch aorta leading to hemorrhage shock and both these injuries are sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was 20-30 minutes, whereas between death and post mortem examination, it was about 5-6 hours.
The nature of injuries, kind of weapon used for causing these injuries and the duration between injuries and death as well as death and post mortem examination, was exactly in consonance with the ocular account and as such, the medical evidence lends full support to the ocular account.
11. Appellant Imdad Hussain was arrested on 20.07.2018 and during investigation he led to the recovery of pistol 30-bore (P-6), which was sent to the office of Punjab Forensic Science Agency (PFSA) for comparison with the cartridge cases (C1 and C2) secured from the spot. No doubt according to the report of said office (Ex.PN), crime empties secured from the spot were found to be fired from the pistol got recovered by the said appellant but during cross-examination the Investigating Officer (CW-7) deposed that He was on physical remand when I collected crime empties from Muharrir and conveyed them to PFSA. The report of said office (Ex.PN) is also indicative of the fact that the crime empties were received by him on 27.07.2018 i.e. subsequent to the arrest of appellant, as such the same cannot be safely connected with him. Reliance is placed on cases reported as Muhammad Amin v. The State and another (2019 SCMR 2057) and Asad Rehmat v. The State and others (2019 SCMR 1156). In the latter citation, it has been laid down by the Apex Court that Though the casings tallied with the gun, however, these were dispatched on a date subsequent to appellant s arrest and thus this piece of evidence also lost its significance.
12. Finally, learned counsel for appellant Ghulam Qasim in an attempt to distinguish the case of his client with appellant Imdad Hussain, argued that no overt act qua causing of any fire arm injury to the deceased lady was attributed to him and his role was confined only to the extent of abetting the principal accused for which the prosecution has miserably failed to produce any significance evidence, as such he is required to be given the benefit of doubt, as has been done by the Trial Court, while acquitting co-accused Mukhtiar, Ghulam Hassan and Zafar Hussain. We are not in agreement with this submission. It is an admitted fact that incident of honour killing has taken place inside the house of appellant Ghulam Qasim. No doubt according to prosecution s claim, he did not cause any injury to the deceased but happening of incident in his house alone is sufficient to believe that he not only conspired with the principal accused but also provided him full aid in accomplishing his task, as without his active assistance, it was not possible for the principal accused to enter into his house and commit the murder of innocent soul. This appellant was so influential person in the community that on his asking, complainant took his young girl in his house for shelter. The deceased lady was done to death on account of so-called honour killing. Bringing the deceased lady in his house shows that this appellant was master mind of entire incident. His role in instigating, encouraging and authorizing the principal accused for committing the murder of deceased lady makes him direct participant in the murder, even if he did not personally inflict any harm to the victim. In many traditional and tribal settings, such influential persons wield more weight than the law itself. When such persons use this power to sanction violence in the name of socalled honour they become moral and legal architects of crime. Allowing them to escape accountability merely because they did not personally commit the act would be a grave miscarriage of justice. It would also send a dangerous message that those in position of influence can orchestrate heinous crimes without consequences. In order to tackle the menace of honour killing, it is essential that all individuals involved in the planning, encouragement or execution are held accountable. We are convinced that the prosecution has successfully established that this appellant acted as abettor, helper and facilitator in the commission of offence.
So far as acquittal of co-accused Mukhtiar, Ghulam Hassan and Zafar Hussain is concerned, suffice it to say that appellants Mukhtair and Ghulam Hassan were not named in the crime report and were subsequently introduced at a belated stage, whereas, appellant Zafar Hussain though nominated in the crime report yet neither he has any nexus with the house in which the offence was committed nor the prosecution was able to bring on record any evidence qua his abetment in the commission of crime, as such role of acquitted co-accused was entirely distinct from appellant Ghulam Hassan, in whose house the murder on account of honour killing was happened, as such no premium can be extended to him on this score.
13. From above discussion, we have entertained no manner of doubt in our mind that the prosecution has successfully proved the charge of homicidal death of the deceased at the hands of the appellant Imdad Hussain and charge of facilitation and abetment for said crime at the hands of appellant Ghulam Hassan, as such conclusion arrived at by the trial Court qua the conviction of both the appellants under Sections 302(b) and 109 P.P.C is unexceptionable.
14. So far as quantum of sentence awarded to appellant Imdad Hussain is concerned, we have taken note of some mitigating factors. Firstly, recovery of weapon of offence from the appellant remained inconsequential. Secondly , three of his co-accused have been acquitted of the charge. It is well settled that no special circumstance is required to consider mitigation for converting the sentence of death into imprisonment for life rather an iota of single instance is sufficient to justify lesser sentence. Reliance is placed on case reported as Dilawar Hussain v. The State (2013 SCMR 1582) wherein it has been laid down as under:-
It has neither been mandate of law nor the dictates of this Court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence.
It is also settled principle of law that when a case qualifies the awarding of both sentences of imprisonment for life and that of the death, the proper course for the Courts, as a matter of caution, is to give preference to the lesser sentence. Reference may be made to case titled Ghulam Mohyud-Din alias Haji Babu and others v. The State (2014 SCMR 1034) wherein it has been observed at page 1044 as:-
In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence.
15. In view of what has been discussed above, captioned appeals are dismissed and convictions of both appellants in offence under Sections 302(b) and 109 P.P.C are maintained, however sentence of capital punishment awarded to appellant Imdad Hussain is converted into imprisonment for life . The amount of compensation and sentence in lieu thereof shall remain intact. Both the appellants is given benefit of Section 382-B Cr.P.C. Appellant Ghulam Qasim is on bail, he shall be taken into custody for serving out his remaining period of sentence. His surety and bail bonds are discharged from liability. Case property, if any shall be dealt with in accordance with law.
16. Murder Reference No.30 of 2022 is answered in the NEGATIVE and the Death Sentence awarded to appellant Imdad Hussain is not confirmed .
JK/I-18/L Sentence reduced.