Stereo. HCIDA-38 Judgment Sheet IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT Criminal Appeal No.2769 of 2010 (Liagat Ali versus The State) and Murder Reference No.639 of 2010 (The State versus Liaqat Ali) JUDGMENT Date of hearing 15.01.2015 Mr. Saqib Jillani, Advocate/Defence Counsel at Appellant by the State expenses State by Mirza Abid Majeed, Deputy Prosecutor General Complainant by | Nemo Syed Shahbaz Ali Rizvi, J. This judgment shall dispose of Criminal Appeal No.2769 of 2010 titled as Liagat Ali versus The State filed by Liagat Ali (appellant) against his conviction and sentence and Murder Reference No.639 of 2010 titled as The State versus Liagat Ali transmitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Liagat Ali (appellant), as both these matters have arisen out of the same judgment dated 23.11.2010 passed by the learned Addl. Sessions Judge, Pindi Bhattian District Hafizabad in case FIR No.676 dated 18.07.2009, offence under Section 302 PPC, Section 13 of the Arms Ordinance, 1965 registered at Police Station Pindi Bhattian District Hafizabad whereby, the appellant was convicted under Section 302(b) PPC and sentenced to death with the direction to pay Rs.300,000/- as compensation to the legal heirs of the deceased Mst. Najma Bibi, aseee Criminal Appeal No,2769 of 2010 2 ‘Murder Reference No.639 of 2010 envisaged under Section S44-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo simple imprisonment for six months. 2. Brief facts of the case, as disclosed by Mst. Nargis Bibi, complainant (PW-6), in her statement (Exh-PD) on the basis of which formal FIR (Fxh-PA) was registered, are that she was resident of Mauza Dera Mana Dakhli Kot Nakka where she was residing with her husband and in-laws. Her sister Mst. Najma Bibi (deceased) was married with Liagat Ali (appellant) about six months ago and from beginning, their relations were strained. Two days ago, Mst. Najma Bibi (deceased) came back from her parent’s house at Karachi and the dispute between the spouses remained present. On 18.07.2009 at about 06.30 p.m, she along with her father-in-law Shaukat Ali (given up PW) and Akbar Ali (DW-1), her paternal cousin (Tayazad) was sitting in the house. A quarrel took place between Mst. Najma Bibi (deceased) and Liagat Ali (appellant), upon which, Liagat Ali (appellant) went inside the house and brought -12 bore double barrel gun of his father and in their view made two fire shots at Mst. Najma Bibi. One fire shot hit on front side of the chest and second fire hit close to tight shoulder of Mst. Najma Bibi who fell on the cot and succumbed to the injuries. Liagat Ali (appellant) threw the gun at the spot and fled away by scaling over the wall. The motive behind the occurrence, as disclosed by the complainant in her statement (Exh-PD), was dispute between the spouses. 3. Liagat Ali (appellant) was arrested in this case on 30.07.2009 by Sarfraz Yousaf, SI (PW-8). 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Criminal Appeal No.2769 of 2010 3 Murder Reference No.639 of 2010 appellant on 16.12.2009, to which he pleaded not guilty and claimed trial. 4. Im order to prove its case, the prosecution produced as many as eight witnesses, during the trial. Mst. Nargis Bibi, complainant (PW- 6) furnished the ocular account. The medical evidence was furnished by Dr. Aqsa Zaman (PW- 7) who, on 19.07.2009 at 02.30 a.m, conducted the post mortem examination on the dead body of Mst. Najma Bibi and found the following injuries on her body: - “1. An irregular wound measuring 4 x 2.5 om at front of chest at his left half 10 cm above nipples and 2 cm lateral to mid line. Margins were inverted. Blackening vas present. 2. Another firearm wound of entry at right arm 10 cm beiow shoulder joint measuring 2 x 1 con. Margins inverted. Blackening was present. It was at dorsal aspect of tight arm. 3. Firearm wound of exit at back right half of chest measuring 1 x %4 cm, Margins were averted at the thoracic region of chest.” In her opinion, injury No.1 was the cause of death as it was sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was instantaneously and between death and post mortem about 6/7 hours. Sarfraz. Yousaf, SI (PW-8) is the Investigating Officer of this case and Masood Ahmad Bhatti, Draftsman (PW-5) prepared scaled site plan (Exh-PC) of the occurrence whereas, rest of the witnesses are formal in nature. 5. Learned Assistant District Public Prosecutor gave up Tariq PW whereas, Shaukat Ali and Akbar PWs were given up being won over by the appellant and after tendering in evidence report of ChemicalCriminal Appeal No.2769 of 2010 4 Murder Reference No.639 of 2010 Examiner (Exh-PM), repott of Serologist (Exh-PN) and that of Forensic Science Laboratory (Exh-PO), closed the case for prosecution. 6. The statement of the appellant, under Section 342 of the Code of Criminal Procedure, was recorded on 15.03.2010. He refuted the allegations levelled against him and professed his innocence. While answering to a question that “Why the PWs deposed against you?”, the appellant replied as under:~ “The complainant of this case was inimical towards me prior to this occurrence. It was an accidental case but the complainant due to her previous enmity with me involved me in this félse case due to this reason other PWs did not support her version and refused to appear in the court against me. The other PWs were given up by the prosecution due to very reason. I am innocent in this case” 7. The appellant did not opt to give evidence on oath as provided under Section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him, however, he produced Akar Ali (DW-1) in his defence. 8. The learned trial court vide its judgment dated 23.11.2010, found the appellant guilty, convicted and sentenced him as mentioned and detailed above. 9. Leamed counsel for the appellant in support of thiis apptal contends that the appellant has falsely been implicated in this case; that the complainant has noi disclosed the true facts in the FIR; that in fact Mt. Najma Bibi (deceased) attempted to commit suicide and the appellant tried to snatch gun ftom her but the gun went off during scufile and the fire hit the deceased; that the prosecution has produced only Mst. Nargis Bibi, complainant to furnish the ocular account whereas, rest of the witnesses were given up; that Mst. Nargis Bibi has improved her statement; that it appears from the pictorial diagramNe Criminal Appeal No.2769 of 2010 5 Murder Reference No.639 of 2010 (Exh-PE/2) that the injuries were result of one fire shot; that nothing was recovered from the appellant; that report of the Forensic Science Laboratory regarding the gun is only to the extent of its being in working order; that motive has not been proved by the prosecution; that this appeal may be accepted, Murder Reference be answered in the negative and the appellant may be acquitted of the charge levelled against him. 10. On the other hand, learned Deputy Prosecutor General opposes this appeal on the grounds that the appellant is nominated in the FIR with specific role of causing two firearm injuries on the person of Mst. Najma Bibi (deceased); that it is the prerogative of the prosecution to produce as many witnesses as it thinks fit and it is the quality and not the quantity of evidence which weighs with the Court; that the prosecution case is fully corroborated by the medical evidence; that the prosecution case is also corroborated by the evidence of recovery of gun, report of the Forensic Science Laboratory and the motive; that the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt; that this appeal may be dismissed and the Murder Reference may graciously be answered in affirmative. 11. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and also scanned the record with their able assistance. 12. We have noticed that the occurrence of this case took place: at 06.30 p.m, the matter was reported to the police at 08.00 p.m. and the FIR was registered at 08.40 p.m. while the distance between the pléce of occurrence and the police station is five miles. Considering the place of occurrence, time of occurrence, the status of the parties and relation of the appellant with the complainant, we are of the view that the matter was reported without any deliberate or conscious delay.————reEeEeeeerr Criminal Appeal No.2769 of 2010 6 Murder Reference No.639 of 2010 13, To substantiate its case, through the direct evidence, the prosecution produced only Mst. Nargis Bibi, complainant (PW-6) to furnish the ocular account. In the circumstances, the question before us is whether conviction on a capital charge can be maintained on solitary statement of Mst. Nargis Bibi, complainant (PW.6). Here we are guided by the dictum of law laid down by the Hon’ble Supreme Court of Pakistan in the case reported as Muhammad Mansha v. The State (2001 SCMR 199) wherein, at page 204, it was enunciated as under:- “6. ...The question as formulated hereinabove as to whether conviction could have been awarded on the basis of solitary statement of a witness has been examined at first instance in the light of Article 17 of the Qanun-e-Shahadat Order, 1984, (section 134 of the Evidence Act, 1872). The said Article is reproduced hereinbelow for ready reference: “17. Competence and number of witnesses.—-(1)' The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. (2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law (2) in matters pertaining to financial or future obligations, if reduced to writing, the instrament shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b) inal other matters, the Court may accept, or act ‘on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant.” 7. _ A bare perusal would reveal that the languaje as employed in the said Article 17(1)(b) is free from any ambiguity and no scholarly interpretation is required. ‘The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness “it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon—— ‘Criminal Appeal No.2769 of 2010 7 Murder Reference No.639 of 2010 occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature ‘were to insist upon plurality witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be cither accepted or rejected. If such a testimony is found by the Court to be entizely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact”. (Principles and Digest of the Law of Evidence by M. Monir, page 1458).” We are further fortified by another judgment passed by the Hon'ble ‘Supreme Court of Pakistan in the case of Niaz-ud-Din and another v. The State and another (2011 SCMR 725) wherein, the Hon'ble Supreme Court was pleased to observe as under: - “11, ...There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that “even in a murder case conviction can be based on the testimony of a sirigle witness, if the Court is satisfied that he is reliable.” The reason. being that it is the quality of evidence and not the quantity which matters...” So, having guidance from the above esteemed judgments, we are of the view that it is the quality of the evidence that weighs with the Courts, not the quantity and the perusal of the statement of the solitary eyewitness reveals that Mst. Nargis Bibi, complainant (PW.6) was ding in the same house where this incident took place and her presence in her own house is quite natural and believable. She is “Bhabhi’, ‘Sali’ and paternal cousin (Phophizad) of the appellant and had no enmity against the appellant for his false implication in such a heinous offence. Even no such specific enmity or motive has beenCriminal Appeal No.2769 of 2010 8 ‘Murder Reference No.639 of 2010 pointed out by the defence against Mst. Nargis Bibi, coniplainiant (PW-6). Even at the time of trial she had been living with her husband Asif Ali who is brother of Liagat Ali (appellant). Had the complainant falsely involved Liagat Ali (appellant) in this case, Asif Ali, husband of the complainant and brother of the appellant, would not have been living with her afterwards. She, not only got registered FIR but iilso appeared before the learned trial court to depose against Liaqat Ali (appellant) and this fact fairly shows that the prosecution story narrated in the FIR by the complainant Mst. Nargis Bibi is genuine. She has furnished a straightforward ocular account of the unfortunate incident and during the cross examination the defence could not derive anything beneficial to the appellant as she remained firm, confident and stuck to her stance taken by her in her statement recorded under Section 154 of the Code of Criminal Procedure, 1398 without noticeable deviation. We have also noticed with concern that during her cross examination the defence has mysteriously avoided to cross examine her qua the actual occurrence of quarrel between the spouses and causing of firearm injuries by the appellant to her deceased wife which to our mind confirms the guilt of the appellant and the truthfulness of the testimony of Mst. Nargis Bibi (PW-6). Keeping in view the relationship of two given up (being won over) eyewitnesses with the appellant, we are of the view that their non- appearance to support the, prosecution story is not sufficient to discredit the testimony of Mst. Nargis Bibi, complainant (PW-6). In the light of peculiar circumstances of this case, no question of mis- identification, false implication or substitution arises. In this view of the matter, we are of the view that the statement of Mst. Nargis Bibi (PW.6) is worthy of credence, confidence inspiring, credible and has rightly been considered so by the learned trial court. The prosecution case against the appellant also finds corroboration from the medical evidence as the ante mortem injuries,Ne Criminal Appeal No.2769 of 2010 9 Murder Reference No.639 of 2010 ‘on the person of Mst. Najma Bibi (deceased), attributed to the appellant by the eyewitness are reflected in the postmortem report of deceased Mst. Najma Bibi (Exh-PE) which became the cause of her unnatural death as opined by the Medical Officer Dr. Aqsa Zaraan (PW-7). 14. As regards the motive behind the occurrence, it was the case of the prosecution that the relations between the spouses were strained and a quarrel took place between them. Mst. Nargis Bibi, complainant (PW-6), in the FIR, deposed that the spouses were having strained relations and on the day of occurrence, they again quarreled. Even ‘Akbar Ali (DW-1) produced by the appellant in his defence elso confirmed the factum of quarrel between the appellant and the deceased. In this view of the matter, we are of the view that the motive has been proved by the prosecution. 15. Nothing was recovered from the appellant during the course of investigation. It is the case of the prosecution in the FIR that the appellant after throwing the gun fled away from the spot by scaling over the wall. Even the report of the Forensic Science Laboratory regarding the said gun is only to the extent of its being in working order. We are, therefore, of the view that the alleged recovery of 12 bore double barrel gua at the instance of the appellant is inconsequential to the prosecution case. 16. Now coming to the statement of Akbar Ali (DW-1), we' have noticed that his statement was recorded under Section 161 of the Code of Criminal Procedure, 1898 by the Investigating Officer Sariraz Yousaf, S.J. (PW-8) which was in line with the version of the complainant narrated in the FIR. He, during his cross examination bas admitted that he never joined the investigation to rebut the same nor moved any application against the Investigating Officer to higheraaa Criminal Appeal No.2769 af 2010 10 Murder Reference No.639 of 2010. authorities of the police. The relevant part, during his cross examination, is reproduced as under: - “\..The occurrence of this case has taken place about 8 4 months ago but till todate I have not appeared before any agency/forum in order to being on record the true facts of the case, Volunteered, the complainant party did not take me to appear before any agency/forum to make statement, Even the accused did not contact to appear before any forum in order to make statement in this regard. Today I have been brought by the accused party...” We have noticed that Akbar Ali (DW-1) resiled from his previous statement made by him under Section 161 of the Code of Criminal Procedure, 1898. He also admitted during his cross examination that he was brought by the accused party. Though, in a different mariner the presence of the appellant at the crime scene, quarrel between the spouses has been admitted by Akbar Ali (DW-1). Moreover, the defence taken by the appellant during cross examination of the complainant Mst. Nargis Bibi (PW-6) by putting suggestion to her and the story narrated by the defence witness are discrepant which further renders the defence version doubtful. Relevant part of the cross examination of Mst. Nargis Bibi, complainant (PW-6) reads as under:- 4_.Tt is incorrect that the gun was lying there which was triggered out accidentally due to which deceased sustained and died...” But Akbar Ali (DW-1), in his examination-in-chief, has stated that the deceased picked the gun from the room and was asking that she will kill herself whereupon, the appellant tried to snatch the gui from her but the gun went off accidentally. In this view of the matter, the defence taken by the appellant is hereby discarded. 17. After considering all the pros and cons of the case, we are of the opinion that even if we keep the evidence of recovery out of consideration, the prosecution remained successful to prove its caseCriminal Appeal No.2769 of 2010 u Murder Reference No.639 of 2010 against Liagat Ali (appellant) beyond any shadow of reasonable doubt through the consistent and coherent ocular account of the occurrence against the appellant furnished by the eyewitness Mst. Nargis Bibi, complainant (PW-6) which is strongly corroborated by the medical evidence and the evidence of motive. we have come to a imanimous and irresistible conclusion that the learned trial court has rightly convicted him but as regards the quantum of sentence, we have noted following extenuating circumstances in his favour. Firstly; we have held the evidence of recovery of crime weapon .12 bore double barrel gun as inconsequential. Secondly; we have noted that the appellant committed the murder of his wife under the impulse during the quatre! swith her that started in presence of the elder family members and there seems no premeditation by the appellant to commit such a heinous offence. So, we are of the humble view that whatever was done by the appellant, was the result of irritation, created in his mind during the quarrel between spouses that can be taken as mitigating/extenuating circumstance, as is held by the Hon’ble Supreme Court of Pakistan in case of Muhanad Ances versus The State (2002 SCMR 1068) wherein, the Hon'ble Supreme Court was pleased to observe as under:- “2, It is also the case of the prosecution that the petitioner's sister was married to the complainant. The petitioner had a grievance that his sister was being maltreated on account of which a Punchait was called and it was during the proceedings of the Punchait that at the spur of moment some events happened on account of which this incident took place. 3. Keeping in view these circumstances, we find that it is eminently a fit case for reduction of sentence.” ‘Therefore, in our view the death sentence awarded to the appellant Liagat Ali is harsh in the peculiar circumstances of this case, and the alternative sentence of imprisonment for life to the appellant Liagatavai" ‘Criminal Appeal No.2769 of 2010 12 Marder Reference No.639 of 2010 shall meet the ends of justice. In this regard, we are fortified by a recent case of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034) wherein, the Hon’ble Suprente Court of Pakistan has held that 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 circumstance to adopt alternative course by awarding life imprisonment instead of death sentence. 18. In the light of above discussion, the conviction of Liagat Ali (appellant) under Section 302(b) PPC awarded to him by the learaed trial court is maintained, however, his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon him and imprisonment in default thereof is also maintained. He is, however, awarded the benefit of Section 382-B of the Code of Criminal Procedure. 19. Consequently with the above modification in the quantum of sentence of Liaqat Ali (appellant), Criminal Appeal No.2769 of 2010 is hereby dismissed. 20. Murder Reference No.639 of 2010 is answered in the NEGATIVE and the sentence of death of Liagat Ali (convict) is NOT CONFIRMED. (Sayyed Miata Ait AKiayNaqvi) (Syed Shahbaz Ali Rizvi) Judge Judge APPROVED FOR REPORTING: ‘ Hidge Iulige