2000 M L D 766
[Peshawar]
Before Qazi Muhammad Farooq, C. J. and Malik Hamid Saeed, J
AMIR KHAN‑‑‑Appellant
versus
THE STATE and another‑‑‑Respondents
Criminal Appeal No. 337 andMurder Reference No. 36 of 1998, decided on 16th December 1999.
Penal Code (XLV of 1860)‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Plea taken by accused in his defence was an afterthought and not at all worth reliance as the same was not advanced at the investigation stage‑‑‑Clothes,Chappals and bottle recovered from the spot at the instance of accused were found by the Chemical Examiner to have been burnt with sulphuric acid‑‑‑Accusedhad also led to the recovery of the bottle of acid from the bushes‑‑‑Deceasedgirl was proved to have been burnt with acid and the statement of the LadyDoctor, though positive on the point of thermal injury, yet creating doubt with regard to the substance of burning, could not be made basis for discarding the whole confidence-inspiring eye‑witness account and other circumstantial evidence in the case‑‑‑Confessional statement made by accused before Magistrate was fully in line with the oral and other circumstantial evidence on record and was voluntary and genuine and the mere fact of its having been made by the accused after 5/6 days of his arrest could not make it doubtful‑‑‑Motive for the occurrence stood proved‑‑‑Conviction and sentence of death awarded to accused by Trial Court were confirmed in circumstances.
Abdur Rehman v. The State 1998SCMR 1778 and Muhammad Karim v. The State PLD 1976 Pesh. 135 ref.
Mohibullah Kakakhel for appellant. Ishtiaq Ibrahim Khan, A.A.‑G. for the State.
Muhammad Arif Khan and AbdulFayyaz Khan for the Complainant.
Date of hearing: 8th December 1999.
JUDGMENT
MALIK HAMID SAEED, J.‑‑‑AmirKhan son of Nasir Gul, resident of Nauthia Jadid, Peshawar, appellant, was charged vide case F.I.R. No.918 dated 3‑9‑1994 Police Station WestCantt., for committing ‘Qatl‑e Amd’ of Shabana (deceased) by throwing acid on her body with the help of his co‑accused Farid (absconder). A charge under section 302/34, P.P.C. was framed against the appellant and the third co‑accused Mst. Maqbool Jan (Now acquitted) by the learned Additional Sessions Judge, Peshawar. On conclusion of the trial, the learned trial Court found the accused‑appellant guilty of the charge, convicted him under section 302, P.P.C., and was awarded the death penalty with Rs.100,000. In case of recovery of the amount, half of the same was ordered to be paid to the heirs of deceased Mst. Shabana or in default of payment, the appellant should suffer two years S.I.
2. Brief facts as given by SaminJan, the complainant (P.W.11) in his report are to the effect that on 3‑9‑1994he along with his wife Mst. Mehreen and daughter Mst. Shabana was proceeding from their house to the house of Shah Zairian butcher. At 6‑30 p.m., they came across accused Amir Khan son of Nasir Khan along with his other companion who was an Afghan refugee. They were having bottles in their hands containing acid. They sprinkled the acid on Shabana, aged about 15/ 16 years. As a result, her body was burnt. Shabana was brought to the house, they tried to give her medical treatment but she succumbed to her injuries. The dead body was left in the house and the report was made in the Police Post.
The motive for the occurrence was disclosed that accused Amir Khan was interested in the marriage with the deceased. The report so made by the complainant was reduced into writing by Bahadur Khan, S.I., whereafter he visited the house of the complainant and prepared the injury sheet, Exh.PD and inquest report, Exh.PD/1 of the deceased and sent the dead body to the mortuary.
3. P.W.9 Dr.Shahida Naveed, on 4‑9‑1994at 8:00 a.m., conducted the post‑mortem examination on the dead body of Shabana and found the following:‑‑
“A ligature mark. A young girl about 16 years, average built having a thermal injury. Whole clothes are burnt except a small piece of Shalwar and brassier. A small portion of plastic chappal is also burnt.
P.M. lividity and rigor mortis is fully developed. No external violence or bruise, except vesication of Rt leg, kerosine oil smell coming from clothes. Thermal (burn). Injury whole body sparing head both axilla, pubic, sole, area of brassier and was singing of hair are present, face burn and flash, the vital reaction is present(sign. of anter‑mortem burn) Blackening of chest and abdomen present.”
In the opinion of the doctor, the deceased died due to shock resulting from the whole body burn. The time between death and post‑mortem was 10 to 15 hours.
4. Bahadur Khan, S. I. (P.W.11)after dispatching the dead body to the mortuary, visited the place of occurrence and prepared the site‑plan, Exh.PB. After the post‑more examination, the doctor had sent a piece of burnt shalwar (P1), one brassier(P2), a pair of Chapple (P.3) which were burnt, and the same were packed and sealed by the Investigating Officer vide recovery memo. Exh.PR. He also arrested accused Amir Khan on 3‑9‑1994. He also raided the house, of Farid Khan, accused, whose name was disclosed to Bahadur Khan but the said accused was not available. During the course of interrogation, accused AmirKhan disclosed that after throwing the acid on the deceased Shabana, he had thrown an empty bottle in, the vicinity of the occurrence. He pointed out the place where he had thrown the said bottle and the Investigating Officer recovered the same through plantation memo., Exh.PR/1. This P.W. also produced the accused before the Magistrate for recording his confessional statement. He also sent the sealed bottle to the vide application, Exh.PE; to the chemical examiner along with a piece of shalwar, brassieres, and chappals of the deceased and received the report of the Chemical Examiner, PE/1.
5. At the trial the prosecutionproduced 11 witnesses out of which Samin Jan (P.W.7) and Mst. Mehreen (P.W.8)are the eye‑witnesses. P.W.7 Samin Jan in his statement has stated that the deceased Shabana was his real daughter and on the day of occurrence he along with his wife Mst. Mehreen and deceased Shabana were going to the house of a butcher Shah Zaman, situated in Nouthia Qadeem, Mohallah Shah Sarwar. When they reached the place of occurrence, he was ahead of the deceased Shabana while his wife was following his daughter Mst. Shabana. The accused Amir Khan and another person whose name later on disclosed as Faird Khan appeared. Both the accused were holding the bottle of acid and threw the acid on his daughter Shahbana and the accused decamped from the spot. His daughter was burnt with the acid. He rushed his daughter towards his house. After some time she died due to the injuries. Then he went to the police station where he lodged the report against the accused. It was further disclosed in the statement that accused Amir Khan prior to the occurrence wanted the hand of his deceased daughter for the purpose of marriage but they had refused the same.P.W. 8 Mst. Mehreen in her statement before the Court almost stated the same facts as narrated by P.W.3.
6. The appellant recorded his statement under section 342, Cr.P.C. wherein he denied the charge against him and also produced in his defense D.W.1‑Alif Gul, D.W.3 Gulab Klan, D.W.3Shafiq Ahmad, D.W.4 Miss Rabia, D.W.5 Muhammad Iqbal, and D.W.6 Zahir Gul.
7. We have heard the learned counsel for the parties and have also perused the record of the case.
8. As is evident from the above narration of facts, there are forthcoming two versions of the occurrence; the one set by the prosecution and the other advanced by the defense side.According to the version of the prosecution, the deceased Shabana was done to death by the accused /appellant with the help of his co‑accused Farid by throwing acid on her body. The prosecution in this respect has placed reliance on the two witnesses of the occurrence, the recovery of the bottle of acid at the instance and plantation of the accused‑appellant from the place of occurrence; the confessional statement of the accused‑appellant, and the medical report coupled with the opinion of the Forensic Science Laboratory. The accused-appellant in his defense has produced six witnesses namely Alif Gul(P.W.1), Gulab Khan (D.W.2), Shafiq Ahmad (D.W.3), Miss Rabia (D.W.4), Muhammad Iqbal (D.W.5), and Zahir Gul (D.W.6) for the purpose of proving three facts;i.e, that the deceased Shabana had committed suicide by pouring kerosene oil on her body; that the deceased was not the daughter of complainant Samin Jam(P.W.7) and Mst. Mehreen (P.W.8), but was the daughter of one Sandal and Shamim; and that the deceased before her death was hospitalized for medical treatment. In support of the plea of committing suicide by Shabana, the defense side relied on the statement of Dr. Shahida Naveed (P. W.9) who in her post‑more report has stated that kerosine oil smell was coming from the clothes of the deceased at the time of examination of her dead body.
9. The defense witnesses namelyAlif Gul (D.W 1), Gulab Khan (D.W.2), and Zahir Gul (D.W.6) have stated in their statements that the complainant P.W.7 and Mst. Mehreen (P.W.8) is not the real parents of the deceased. D. W.5 Muhammad. Iqbal has stated about the fact that he had taken Shabana in an injured condition to the hospital in his Suzuki vain. Shafiq Ahmad (D.W.3) has stated in his statement that he is school going boy and on the day of occurrence when he came back from the School, the deceasedShabana called him from his house from the wall of her house to bring kerosine oil of Rs.5 in a bottle and he, therefore, brought the same for her D.W.4 MissRabia has disclosed in her statement that she was playing in the street when she was called by deceased Shabana to accompany her to the house of her grandfather. She along with another girl and her 4f accompanied the deceased. The deceased was having a plastic shopping, bag in which there was a ‘donga’ containing kerosene oil and a matchbox. According to her, they went to the graveyard where the deceased poured the kerosene oil on her body and lit a match. When the clothes of the deceased caught fire, they ran away from the spot.
10. So far as the doubt created by the defense side in the parentage of the deceased is concerned, the same is not reliable for the reasons that neither any documentary proof has been brought on record in this regard nor it has been shown as to what was the relations between the real parents of the deceased and the so‑called claimed parents, nor it has been shown that what was the other enmity between the eye‑witnesses (parents of the deceased) and the accused‑appellant which prompted them to claim parentage of the deceased for the purpose of charging the accused‑appellant. This plea is obviously an after-thought, otherwise the same could have been advanced at the time of investigation of the case if the deceased was really the child of some other parents. It also does not appeal to common sense as to for what gain/purpose the complainant and his wife posed themselves to be parents of the deceased when it is common in our society that in such‑like cases even one cannot dare to become a witness of the prosecution, then how some strangers, having no apparent or proved malafide against the accused-appellant chosen to take on their shoulders the responsibility of lodging the report, of associating themselves with the investigation of the case and then attending the Court for giving evidence. All this shows the influence of the accused party in the area that not only they played with the life of a young girl in a very brutal manner by throwing acid on her person but even after her death, they tried to play another game with the sacred relations between the deceased and the complainant. As stated above,this plea of the defense side is not at all worth reliance and if for the sake of arguments it .is presumed to be so, then too, the question before us is the intrinsic value and veracity of the eye‑witness account furnished by the two eye‑witnesses of the occurrence and not the question of determining the real parentage of the deceased. In that case, the case against the accused‑appellant becomes more strengthens when two eye‑witnesses, not related to the deceased and not inimical towards the accused‑appellant in any manner, have deposed against him in a very straight and truthful manner having the support of other circumstantial evidence. The learned trial Court has already answered this question thoroughly in the impugned judgment in a proper manner keeping in view of the facts. and circumstances of the case.
11. Similarly, the deposition ofD.W. Muhammad Iqbal is also having no force. According to him, the deceased injured condition was taken to the hospital, but the record of the case does not support this assertion of the defense witness. The Investigating Officer(P. W.1 I) in his statement has stated that after recording the report of the complainant Samin Jan, he accompanied him to the spot where he prepared the thesite‑plan, Exh.PB, injury‑sheet of the deceased, Exh.PD, and inquest report, Exh.PD/1, and sent the dead body of the deceased to the mortuary. If according to the version of the defense side, she, in injured condition, was taken to the hospital, then there would have been some record of admission in the hospital, which the accused‑appellant, like producing six defense witnesses on different points, could easily procure from the hospital but the defense has failed to do so and it can, therefore, safely be concluded that the deceased was never taken to the hospital in injured condition. The complainant in his report has stated that:‑‑
The observations made by Dr. Shahida Naveed in her cross‑examination that the deceased might had been hospitalized as she had made up vacation on the right leg with sticking plastic, may be the result of that treatment which according to the complainant was provided to the deceased at home when she was brought to the house from the place of occurrence, otherwise, there is no evidence that the deceased was hospitalized before her death.
12. The testimony of the remaining two children defense-witnesses on the point that the deceased committed suicide by pouring kerosene oil on her body coupled with the observations of the doctor (P.W. 9) that kerosine oil smell was coming from the clothes of the deceased is also not having sufficient corroboration from the record and credibility for so many reasons. According to D.W.3, he brought kerosene oil for the deceased from the Bazar in a bottle, but according to the statement of D.W.4, Rabia, the deceased was having kerosine oil in a ‘ donga’.Moreover, in presence of the deposition in the cross‑examination of Rabiathat, “the mother of Amir Khan approached to my mother as on the direction of my mother that today I have to appear in court for giving a statement, I have come to this Court”, and that of Shafiq Ahmad (D.W.3) that, “I was told by my father that today I have to depose in Court today and my father was told by the accused”, and keeping in view the tender age of the two witnesses, it cannot be said with certainty that they have disclosed the true facts without any instigation.
13. The pictorial prepared by the doctor reveals that the front portion of the body of the deceased was burnt whereas the hair was not burnt. Similarly, the entire back area had remained undamaged from burning. If it is presumed that the burning caused to the body of the deceased was the result of kerosine oil, then the question arises as to why the back of the deceased did not burn and why the heir of the deceased remained unaffected from the flames which in the such‑like situation should be from downward to upward and in that case there should have been no possibility that the hair of the deceased should remain intact. The clothes, chappals, and the bottle recovered from the spot at the instance of the accused‑appellant were sent to the Forensic Science Laboratory, Peshawar for opinion, and the opinion of the Chemical Examiner is that the clothes were burnt with sulphuric acid. Itis even in the statement of the accused‑appellant that the deceased committed suicide by throwing acid on her. The accused‑appellant after his arrest led the police party to the place where he after throwing acid onShabana deceased had thrown‑ the bottle of acid in the bushes of the graveyard. This recovery memo. has been witnessed. by two witnesses and one of them namely, Shaukat Ali appeared at the trial as P.W.4 and affirmed the recovery of the bottle of acid at the plantation of the accused-appellant. the following words:‑‑
“In my presence, the accused being in custody led the police party to the place and pointed the same where he threw acid on Mst. Shabana and thereafter threw the bottle in the bushes near the tree of the graveyard. ”
The Investigating Officer has said nothing about the fact that the kerosine oil smell was also ‘coming from the clothes of the deceased when the injury- sheet/inquest report prepared. In these circumstances, the concession made by Dr. Shahida Naveed to the extent of coming smell of kerosene oil from the clothes of the deceased is, therefore, liable to be ignored keeping in view the direct oral and other circumstantial evidence available on file. The august Supreme Court of Pakistan in a judgment reported as “Abdur Rehman v. The State” (1998 SCMR 1778) has observed, as under:‑‑
“We may notice that medical evidence merely provides corroboration or support substantive or circumstantial evidence. It cannot be deemed sufficient for proving accusations against the person charged for an offense. Acceptability of medical evidence obviously depends upon grounds or cogency of reasonings on which the opinion report is based. Certainly, the Courts seized of jurisdiction are competent to ignore medical opinion for lack of satisfactory explanation, and may place reliance on the ocular version or other circumstantial evidence when found it considerably convincing.”
We are, therefore, of the view that in this case, the prosecution has successfully proved that the deceased was burnt with acid and the statement of P.W.9 Dr. Shahida Naveed, though positive the point of thermal injury yet creating doubt with regard to the substance of burning, cannot be made the basis for discarding the whole confidence inspiring‑witness account and other strong circumstantial evidence in the case.
14. The accused‑appellant after his arrest in the case made a confessional statement before the Magistratewherein he has admitted his guilt. The learned counsel for the appellant argued that the confessional statement was the result of inducement and threat of the police, as it was made after about 5/6 days of the arrest of the accused‑appellant and the same has been retracted by the appellant. The argument is without any force. It is not the sole criterion for adjudging the confessional statement that if an accused has remained in police custody for some days, the confessional statement would definitely be the result of duress and threat. The confessional statement is always placed in juxtaposition with other evidence on record and if it is in line with the oral as well as circumstantial evidence, then its evidentiary value becomes strengthen against the accused. In this case, too the confessional statement of the appellant is fully in line with the oral and other circumstantial evidence on record and the mere fact that it was made after 5/6 days of the arrest of the accused‑appellant, its genuineness can not be doubted. The Magistrate before whom the accused‑appellant confessed his guilt, when appeared at the trial, has stated that all the necessary legal questions and other legal formalities were fully complied with before recording of the statement of the accused‑appellant and after satisfying himself about the fact that the accused‑appellant is ready to make a voluntary confessional statement, then he recorded the same. In the case of Muhammad Karim v. The State reported in PLD 1976 Peshawar 135, the Hon’bleJudges have observed as under:‑‑
“The onus of proving that a confession is irrelevant by reason of its not being voluntary is on the accused person. The mere fact that a confession has been retracted does not necessarily show that the confession was the result of some improper inducement, threat, or promise. The extent and nature of the corroboration required before a Court can act upon and accept a retracted confession depend upon the circumstances peculiar to each case. No hard and fast rule can be laid down as to what will constitute sufficient corroboration of a retracted confession. However, it is an accepted rule of Law that such corroboration must be on some material particulars, connecting the accused with the offense.”
It has been further held in the said judgment that:‑‑
“The mere fact that the accused remained in police custody for 5 days before he made confession, could not raise a presumption that the confession was made by inducement, threat, or promise. ”
The learned trial Court has, therefore, correctly held that the confessional statement has been made voluntarily and is genuine.
15. The motive in the case also stands proved. The complainant has stated that the accused‑appellant was interested in the hands of deceased Shabana, but they had refused on which he was annoyed. The accused‑appellant himself in his statement has admitted that he had sent the offer for marriage of the deceased but her parents had refused.
16 Keeping in view the above discussion, we are of the view that the prosecution has successfully proved its case against the accused‑appellant beyond any shadow of reasonable doubt, and the learned trial Judge has rightly awarded the penalty of death to the accused‑appellant in the circumstances of the case. The impugned judgment of the learned trial Judge is, therefore, upheld and the appeal in hand is hereby dismissed.
The Murder Reference No.36 of 1998sent by the learned trial Court for confirmation or otherwise of the death sentence, in view of the dismissal of the appeal, stands confirmed and is, therefore, answered in the positive,
N.H.Q./11/P 4
Appeal dismissed.