2013 P Cr.

L J 864

[Peshawar]

Before Mazhar Alam Khan Miankhel and Assadullah Khan Chamkani, JJ.

REHMAT ZEB---Appellant

Versus

The STATE and others---Respondents

J. Cr. A. No.89 and Murder Reference No.5 of 2012, decided on 5th December, 2012.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b) & 84---Qatl-e-amd, act of a person of unsound mind---Appreciation of evidence---

Death sentence, confirmation of---Belated plea of insanity---Pre-planned occurrence---Promptly
lodged F.I.R.---Medical evidence corroborating ocular account---No probability of
misidentification or false implication---Recovery of weapon and its empties---Deliberate
abscondence by accused with guilty mind---Effect---Accused allegedly fired at and killed his
brother and wife as he suspected them of having illicit relations---Trial Court sentenced accused
to death under S.302(b), P.P.C.---Contention on behalf of accused was that he was mentally
unstable, and that he committed the offence as a result of sudden and grave provocation---
Validity---Contention regarding mental condition of accused was neither raised at the time of
framing of charge nor at the time of recording of his statement under S.342, Cr.P.C.---No
application was submitted by accused in Trial Court to verify his mental condition by way of
constitution of a Medical Board, and even to date no proof was brought on record regarding
mental condition of accused---Plea of insanity raised by accused at belated stage could not be
considered---Record showed that accused entered the house and found his brother sleeping,
while his wife was offering her prayers, so there was no reason for accused to act on basis of
grave and sudden provocation---Present offence was a pre-planned incident---Report of
occurrence was lodged within two hours of the occurrence---Place of occurrence was a far-flung
area at a distance of 24 to 25 kilometers from the police station with no appropriate transport
facility, therefore, delay in lodging F.I.R. was of no significance---Witnesses were also not cross-
examined on the point of delay in lodging F.I.R. and no suggestion was put to them regarding
deliberation and consultation---Presence of two of the prosecution witnesses at the place of
occurrence seemed to be natural as they were inmates of the house, wherein occurrence took
place---Statements of prosecution witnesses were consistent on material points and veracity of
their evidence could not be shaken during their cross-examination---Medical evidence showed
that injuries on deceased were fire-arm injuries, therefore, medical evidence supported ocular
account---Accused was brother-in-law of the complainant/eye-witness, while another eye-
witness was his niece, therefore, accused was known to both of them and there was no chance of
misidentification---Although two prosecution witnesses were closely related to the deceased and
to the accused, and might have been interested witnesses but their testimony got ample support
from another prosecution witness, who was father of both deceased and accused---Recovery of
empties from place of occurrence coupled with recovery of weapon of offence from the house of
accused, corroborated testimony of prosecution witnesses---Blood stained earth was also secured
from the place of occurrence by the investigating officer---Nothing was brought on record to
establish that accused was falsely implicated---Cause of death was apparent, therefore non-
conducting of post-mortem of deceased at the request of his legal heirs, was of no consequence
and not fatal to the prosecution case---Immediate abscondence of accused after the occurrence
and his non-participation in the funeral ceremony of his deceased brother and wife, tantamount
to deliberate abscondence with guilty mind and was another circumstance which
established culpability of the accused---Sentence of death imposed by Trail Court was
proportionate to the gravity of the offence---Appeal filed by accused was dismissed and death
sentence awarded to him by the Trial Court was confirmed.

Sharafat Ali v. The State 1999 SCMR 329 ref.

(b) Criminal trial---

----Interested witness---Scope---One who had an animosity for charging accused falsely was
interested witness.

(c) Criminal trial---

----Witness related to deceased---Reliance on testimony of such witness---Scope---Mere

relationship of a witness to the deceased was not enough to discard his testimony because such a
witness was not necessarily an 'interested witness' in the true sense of the said term.

(d) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Cause of death, determination of---Non-conducting of post-mortem

report---Effect---When cause of death was apparent, then non-conducting of post-mortem
examination was not fatal to the prosecution case.

Sardar Zulfiqar for Appellant.

Muhammad Javed, D.A.-G. for the State.

Date of hearing: 5th December, 2012.

JUDGMENT
 ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 24-
4-2012 passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Lower, Chakdara,
whereby Rehmat Zaib son of Muhammad Razaq was convicted and sentenced under section
302(b), P.P.C. to death (on two counts) and also fine to Rs.5,00,000 (five lac rupees) as
compensation under section 544-A, Cr.P.C. to be paid to the legal heirs of each deceased. The
compensation was ordered to be recoverable as arrears of land revenue.

2. Rehmat Zeb filed Jail Criminal Appeal No. 89 of 2012 against his conviction and the
learned trial Court has sent Murder Reference No.5 of 2012 for confirmation of the death
sentence awarded to the accused-appellant Rehmat Zeb.

3. We intend to dispose of the Criminal Appeal No.89 of 2012 and Murder Reference No.5
of 2012, through this single judgment.

4. Mash Bibi (P.W.3) lodged a report to police that on 26-3-2007 her husband Bahadar Zeb
was sleeping in the courtyard of his house while her sister-in-law Mst. Zenab Bibi was offering
Isha prayer whereas she was present in the veranda of her house. At 19.45 hours her brother-in-
law, namely Rehmat Zeb entered into the house duly armed with pistol and went near to her
husband and said that why he looked to his wife with evil eyes and at once made two fire shots at
him, subsequently, he entered into the room and also made two fire shots at Mst. Zenab with the
intention to kill them, as a result of which both of them died on the spot. The occurrence was
stated to be witnessed by her daughter Mst. Lubna while motive was stated to be of "zun"
woman. Report of the complainant was recorded in shape of Murasilla Exh.PA/I and sent it to
Police Station, Oach, and on the basis of which case vide F.I.R. No.560 under sections 302,
P.P.C. was registered at Police Station, Oach, on 26-3-2007.

5. Fazal Mabood, P.W.6, after recording report of the complainant, prepared injury sheets
and inquest reports of both the deceased and dispatched it to hospital. Investigation of the case
was entrusted to Tahir Shah SI P.W.14, who proceeded to the spot and prepared the site plan
Exh.PB, recovered blood-stained earth, Sarhana having corresponding cut mark, three bullets
and a spent bullet, two empties of .30 bore, bulb 100 volt and prayer mat and took the same vide
recovery memos Exh.P.W.8/1 to Exh.P.W.8/5. He took into possession blood-stained garments
of both the deceased and also sent the recovered articles to FSL. Since the accused was avoiding
his lawful arrest, therefore, he obtained warrant under section 204, Cr.P.C. and notices under
section 87, Cr.P.C. and after completion of necessary investigation, handed over the case file to
SHO Muhammad Naeem Khan P.W.1, who further submitted complete challan under section
512, Cr.P.C., subsequently, the convict-appellant was declared as proclaimed offender by the
trial Court.

6. On 15-4-2011 convict-appellant was arrested and supplementary challan against him was
submitted. The learned trial Court after compliance of the legal formalities, framed the formal
charge to which he did not plead guilty and claimed trial.

7. Prosecution in order to prove its cases, examined the witnesses, thereafter, the statement
of the accused under section 342, Cr.P.C. was recorded by the trial Court. The convict-accused
pleaded his innocence, however, did not produce defence evidence nor appeared as his own
witness in terms of section 340(2), Cr.P.C. Learned trial Court, after hearing the arguments of the
parties, convicted and sentenced the accused-appellant, as stated above.
8. Learned counsel for the appellant argued that the accused-appellant is mentally upset but
this aspect of the case has not been considered by the trial Court and at present the accused-
appellant is suffering from mental disease. He further argued that the appellant was charged in a
delayed F.I.R. after due consultations and deliberations. He further contended that the eye-
witnesses being closely related to the deceased and also inimical towards the appellant, therefore,
the conviction of the appellant could not be maintained on their evidence. He submitted that
independent corroboration of the eye-witnesses account is not forthcoming. He contended that
the recovery of pistol as weapon of offence and empties of .30 bore from the spot are planted
one. He submitted that the medical evidence is also not supporting the ocular evidence. He
submitted that the prosecution also did not prove the motive as alleged in the F.I.R. and there is
no evidence of preplanning. He submitted that the only thing in the account of convict-appellant
is his abscondence but the same has been explained and even otherwise absconsion alone is not
sufficient to base his conviction, therefore, he deserves for acquittal. The learned counsel lastly
argued that if the motive advanced by the prosecution is accepted then the trial Court was
required to have treated the same as the mitigating circumstance, keeping in view the facts and
circumstances of the case because inference can be drawn that the offence was committed as a
result of sudden and grave provocation.

9. On the other hand learned AAG appearing on behalf of the State argued that throughout
the trial the accused-appellant has not taken the plea of mental disorder, therefore, at this stage,
he cannot plead the same with further submission that no evidence has been produced in support
of his such plea. He next argued that the appellant is the single accused charged directly in the
F.I.R. by name and that the ocular account is corroborated by the medical evidence, recoveries
from the spot, motive, absconsion and positive FSL result. He further argued that the appellant is
charged by name in the F.I.R., being brother-in-law of the complainant, was known to the
eyewitnesses and there is no question of misidentification or a false charge and the appellant was
rightly convicted and sentenced. He lastly argued that when the prosecution proved its case
through reliable and trustworthy evidence beyond any doubt inadequacy or weakness of motive
or where motive was alleged but not proved, would become immaterial and would not adversely
affect prosecution case and normal penalty of death can be imposed on the assailant if there were
no mitigating or extenuating circumstances for lesser penalty.

10. We have considered the arguments raised by learned counsel for the parties and have
gone through the entire record with their valuable assistance.

11. At the very outset and for the first time the learned defence counsel draw our attention to
the plea of mental disorder of the appellant raised by him in the grounds of appeal. We have
thoroughly and carefully gone through the material available on record. It is evident from the
record that the appellant neither at the time of framing of charge nor at the time of recording his
statement under section 342, Cr.P.C. uttered a single word regarding his mental disease, if any,
nor brought into the notice of trial Court by submitting an application to verify the same by way
of constitution of Medical Board rather at the time of framing of charge denied the charges
levelled against him and opted to face the trial, meaning thereby, throughout the trial he was in
complete senses. Till today, he has not brought it on record any proof regarding his mental
disorder; therefore, his plea at this belated stage cannot be considered.

12. The perusal of record would show that the report of the occurrence was lodged by Mash
Bibi Complainant (P.W.3) within about two hours of the occurrence. The place of occurrence is
situated in a far-flung area at a distance of 24/25 kilometers from the police station with no better
transport facility, therefore, delay in lodging of the report, in such circumstances, was of no
significance and that too, when the witnesses were not cross examined on the point of such delay
nor any suggestion was put to them regarding deliberations and consultations. Statements of
Mash Bibi complainant (P.W.3), and Mst. Lubna (P.W.4) are consistent on material points. The
presence of P.W.3, P.W.4 seems to be natural one being inmates of the house and their presence
on the spot cannot be doubted as occurrence took place inside the house. They deposed the
ocular testimony and supported the prosecution version. Despite that they were subjected to cross
examinations but nothing material could be brought out nor any doubt could be created in
their evidence. They stood firm and their veracity could not be shaken. The name of the
eye-witness and role of accused-appellant for firing at both the deceased have been mentioned
in the first report, which lend support from the medical evidence furnished by Dr. Sana
Ullah P.W.7 and Dr. Mujib ur Rehman P.W.14. Nothing was extracted from their mouths to
create doubt regarding their presence on the spot and even a suggestion was not put to them
regarding their presence on the spot.

12(sic). We have perused the medical reports, injury sheets and inquest reports of both the
deceased, which show that the injuries on the dead bodies of the deceased were of fire-arm. The
injuries on the persons of deceased were attributed to have been caused at the hands of
accused-appellant; therefore, medical evidence also supports the ocular account.

13. The appellant was the brother-in-law of the complainant, while Mst. Lubna P.W.4 is his
niece, therefore, the appellant was known to them, so there is no question of misidentification.

14. Learned defence counsel submitted that now it has been settled that Courts in a case
involving capital punishment will not base conviction of an accused solely on the testimony of
interested witness unless such evidence finds corroboration by some independent and
unimpeachable piece of evidence or circumstance in the case but in the present case all the eye-
witnesses are closely related to the deceased and their presence on the spot is not natural,
therefore, there is possibility of false implication of the accused with consultation and
deliberation, but his this submission is not convincing one because the same has since long been
discarded by the apex Court. It is settled proposition of law by now that interested witness is the
one who has an animosity for false charge. Mere relationship of a witness to the deceased is not
enough to discard his testimony because such a witness is necessarily not an interested witness in
the true sense of the term. In the instant case, we find that, no doubt, Mash Bibi P.W.3 and Mst.
Lubna P.W.4 were closely related to the deceased as well as to the appellant and may be they
were somehow interested witnesses but their testimony lends ample support from the statement
of Muhammad Razaq P.W.13, who is father of the deceased Bahadar Zeb as well as accused-
appellant. Recovery of empties of .30 bore from the spot further corroborate the testimony of the
two eye-witnesses coupled with the recovery of .30 bore pistol as weapon of offence from the
house of accused at his pointation. The apex Court in number of cases has held that statement of
a witness cannot be disbelieved solely on the plea that he is related to the deceased. An interested
witness is a person who has a motive to falsely implicate a person. Viewing the testimony of
these eye-witnesses in the light of aforesaid criteria, we do not find their testimony as tainted or
they had any motive to falsely implicate the appellant nor any enmity worth the name has been
brought on record to show that they were implicating the appellant-convict in this case falsely. In
this context reference may be made to Sharafat Ali v. The State, 1999 SCMR 329.

Certainly no plausible reason has been established by the defence to indicate why the
complainant and eye-witness would substitute the appellant by leaving real culprits. The
testimony of eye-witnesses is natural and convincing one and their statements find ample
corroboration from other evidence, hence, in our view, they were rightly believed by the trial
Court.

15. The Investigating Officer P.W.14 also secured blood-stained earth, spent bullet and
empties of 30 bore from the crime spot. Though, internal examinations of the dead bodies were
not conducted but when the cause of death is apparent then non-conducting of post-mortem
examinations is not fatal to the prosecution case. In Malakand and Kohistan Area, internal
examination of the dead body is not conducted on the request of the legal heirs of the deceased
because of their old tradition. In such a situation, non-conduct of post mortem is of no
consequence, hence, not fatal to the prosecution case.

16. Learned defence counsel pointed out some discrepancies in the statements of prosecution
witnesses but the same being minor in nature are of no consequences because no one can
remember the minute details nor photographic view can be given in such state of fear and
striking situation, most particularly, when statements of witnesses were recorded after lapse of
sufficient time as the occurrence took place on 26-3-2007 while statements of P.Ws. recorded in
year 2011.

17. The unexplained disappearance of the appellant from the ordinary place of residence
immediately after the occurrence knowingly that he was being charged for the murder of his wife
and real brother, particularly, his non-participation in their funeral ceremony, would tantamount
to deliberate absconsion with guilty mind, therefore, it would be another circumstance to
establish the culpability of the appellant and we are fully agreed with the opinion expressed by
the trial Court.

17(sic). The prosecution fully established the guilt of convict-appellant Rehmat Zeb, who is
singly charged for firing at both the deceased. There is no possible reason to believe that the
complainant party would let-free the real culprits and involve the present appellant because
substitution in place of the real culprits, in any case, is very rare phenomenon, which is also not
borne out from the record. In the facts and circumstances of the case, learned trial Court has
rightly convicted the appellant.

18. The last argument of learned counsel for appellant that the trial Court was required to
have awarded lesser penalty keeping in view the motive advanced by the prosecution that the
appellant was suspecting the deceased Bahadar Zeb to have illicit relation with his wife is not
convincing one because the primary sentence for the offence of murder provided in section
302(b), P.P.C. is death, however, the lesser sentence for life imprisonment may be awarded only
if there exists some mitigating or extenuating circumstances. In the instant case, it has been
established on record that the convict-appellant entered into the house duly armed with pistol and
found both the deceased as usual as his brother was sleeping while his wife was offering "isha"
prayer, so, there was no reason for grave or sudden provocation because the convict did not see
both the deceased in a situation which could have prompted him to kill them. It has also been
proved on record that incident was pre-planned because the appellant when entered into the
house acted brutally and fired repeatedly at both the deceased at different places. P.W.3 and
P.W.4 being inmates of the house were natural witnesses. They have given straightforward and
consistent versions of the occurrence supported by the medical evidence recovery of
incriminating articles and considerable absconsion of appellant, so, all this shows that the
appellant had acted in a callous and cruel manner while taking the lives of his brother and wife,
particularly, when one was sleeping while the other was offering "isha" prayer, therefore, the
case of appellant does not fall under the category of sudden or grave provocation. Besides the
above, the appellant had not taken the plea of grave or sudden provocation in his statement
recorded under section 342, Cr.P.C. and flatly denied the allegation.

Considering the case from all angles, we are of the considered opinion that normal
penalty of death sentence imposed by the trial Court was proportionate to the gravity of
the offence. The appeal filed by the appellant Rehmat Zeb being meritless is dismissed
and the murder reference is answered in positive and death sentence is, thus, confirmed.
MWA/5/P Appeal dismissed.