Judgment Sheet
IN THE LAHORE HIGH COURT, RAWALPINDI BENCH,
RAWALPINDI
JUDICIAL DEPARTMENT
Murder Reference No. 57 of 2011
(The State VS. Farhat Abbas Shah)
Crl. Appeal No. 52-J of 2011
(Farhat Abbas Shah VS. The State)
JUDGMENT
Date of hearing:
19-02-2016.
Appellant by:
Raja Ghaneem Aabir Khan & Raja
Amanat Ali Khan, Advocates
Mirza Muhammad Usman, Deputy
Prosecutor General with Saeed, SI.
State by:
Complainant by:
Nemo.
RAJA SHAHID MEHMOOD ABBASI, J: - Farhat
Abbas Shah, appellant was convicted for an offence under
Section 302(b) PPC by the learned Additional Sessions Judge,
Gujar Khan, vide judgment, dated 23rd of Julay, 2011 and was
sentenced to death and to pay an amount of Rs.1,00,000/- to the
heirs of deceased by way of compensation under Section 544-A
Cr.P.C. or in default of payment thereof to undergo S.I. for six
months. Farhat Hussain Shah, appellant (convict) has
challenged his conviction and sentence before this Court
through Criminal Appeal No. 52-J of 2011 which has been
M.R.No. 57 of 2011
Crl.Appeal.No.52-J of 2011
heard by us alongwith Murder Reference No. 57 of 2011
seeking confirmation of the sentence of death passed against
him. We propose to decide both these matters together through
the present consolidated judgment.
2.
The prosecution case as unfolded in the FIR (Ex.PG/1),
registered on the statement (Ex.PG) of the then complainant,
Salma Bibi (deceased) which she made before Anwar Javed, SI
(PW.10), wherein she stated that 10/12 years ago Farhat Abbas
Shah was known to her at Sialkot and lateron they contracted
marriage and out of the wedlock a daughter namely Gulshan
Bibi was born. Presently, she was residing with her husband in
street No.1 Paracha Colony, Rawalpindi in a rented house. She
was diabetic patient etc. and her husband asked her that they
would go to their native town i.e. Dogran Kalan, District
Sialkot, as in these days it was hard to live in Rawalpindi as
earing of livelihood has become hardened at Rawalpindi; her
husband was running a taxi car belonging to one Butt, who was
also resident of same vicinity; that at about 10.00 am when they
reached at G.T. road near Bhai Khan her husband poured the
kerosene oil upon her and set her ablaze after throwing her
outside the vehicle and attempted to murder her.
3.
After thorough investigation report u/s 173 Cr.P.C. was
submitted in the Court. At the commencement of the trial a
charge under Section 302 PPC was framed by the learned trial
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Crl.Appeal.No.52-J of 2011
court against the appellant/accused to which he pleaded not
guilty and claimed the trial.
4.
During the trial the prosecution produced as many as ten
witnesses in support of its case against the appellant. Zaheer
Hussain, SI (PW.2) is the witness of shifting the burnt lady in
hospital, who stated that the injured lady told him about her
name, address and that her husband thrown her out of car,
sprinkle oil upon her, put her on fire, threw her on the road and
fled away.
5.
Initially, the deceased Salma Bibi was examined by
Doctor Farhat Naveed, WMO, THQ, Hospital Gujar Khan
(PW.4) on 06-06-2009 at 9.00 am and observed as under:“The injured was brought by police in
conscious, oriented condition. She was
vitally stable.
Burn Areas
Face, skull, upper and lower limbs,
front of chest, back of chest and abdomen.
Emergency treatment was given and injured
was referred to RGH, Rawalpindi. Said
injured deposed to me that she was put on
fire by her husband. I endorsed the
deposition of the injured. The injured was
not identifiable from the marks of
identification as more than 90 % body had
been burnt.”
6.
Furthermore, Doctor Sadia Wahid (PW.1), who on 11-
06-2009 at 11.30 pm conducted the post mortem examination
on the dead body of deceased Salma Bibi and observed as
under:-
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Crl.Appeal.No.52-J of 2011
“A fresh dead body of young female
covered with white sheet, e’ eyes closed and
mouth was semi closed. Burns involving
following arrears of the body were as under:
Face, front of chest, abdomen, upper
limbs and lower limbs whole back and
perineal area. Rigor motes fully developed,
postmortem staining were present on back,
foot tired with piece of cloths.
Cranium & Thorax
All the organs were normal.
Abdomen
Bladder was containing few cc of
urine, uterus was normal size and nonpregnant. Stomach was empty, other organs
were normal.
Opinion
The cause of death was burns
involving head and neck, front and back of
chest, abdomen, both upper and lower
limbs, front and back of perennial area
leading to damage vital organs and
hypovolemic more than 90% burns which
was sufficiently fatal to cause death in
ordinary course of nature.
The probable time between injury and
death was about 5 to 7 days, whereas
between death and postmortem was about to
4 to 8 hours. Postmortem report Ex.PA and
pictorial diagrams Ex.PA/1 and Ex.PA/2 are
in my hand writing and bear my signature. I
handed over the correct carbon copy of
postmortem report to Yasir Ali 6447/C. I
also attested the said application for
postmortem Ex.PB and inquest report
Ex.PC.”
7.
Muhammad Sarfraz SI/I.O (PW.9) is the investigating
officer of this case. Furrukh Shehzad, Halqa Patwari (PW.3)
prepared site plan Ex.PT of the place of occurrence, whereas
rest of the prosecution witnesses are formal in nature.
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Crl.Appeal.No.52-J of 2011
8.
In this statement recorded under Section 342, Cr.P.C.
Farhat Abbas Shah, appellant/accused denied and controverted
all the allegations of the fact leveled against him by the
prosecution and professed his innocence. He also maintained
that he had been falsely involved in this case. All the PWs are
police officials. However, he opted to make statement on oath
under Section 340(2), Cr.P.C. and also produced birth
certificate of Gulshan Fatima Ex.DA in his defence.
9.
Upon completion of the trial, the learned trial court found
the case against the appellant to have been proved beyond any
reasonable doubt and, thus, convicted and sentenced him as
mentioned above, hence, instant appeal before this Court.
10.
Learned counsel for the appellant contends that it is an
unseen occurrence and the appellant has been roped in the case
on account of misplaced and misconceived suspicion; that the
present appellant/accused has not set ablaze his wife as the
marriage of the couple was of love marriage; that she
committed suicide and there is no evidence against the
appellant/accused that he put on fire his one wife; that in this
regard MLR Ex.PE is quite evident that the deceased lady did
not mention about the culprit but the lady doctor after cutting
wrote down that it was the husband who committed the
occurrence; that nothing was recovered from the appellant and
instant recovery of bottle is fake and planted one; that both the
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Crl.Appeal.No.52-J of 2011
witnesses gave dynamically opposite view on all salient
features of the case and their statements are contrary; that
bottom-line stressed by learned counsel for the appellant is that
the prosecution has miserably failed to bring him the charge
against the appellant and he is entitled to clean acquittal.
11.
Contrarily learned Law Officer has defended the
impugned judgment and instead prayed for the confirmation of
the death penalty on the ground that the conduct shown by the
appellant is not only brutal but is barbaric one as he has not
spared his real wife; hence, hypothetic innocence of the
appellant stands excluded.
12.
We have heard learned counsel for the parties and have
gone through the record with their assistance. After hearing the
learned counsel for the parties, we have felt no hesitation in
concluding that the prosecution has indeed succeeded in
proving its case against the appellant beyond reasonable doubt.
The mainstay of the prosecution is dying declaration Ex.PG,
which she got recorded in presence of lady Doctor Farhat
Naveed (PW.4), who also signed her statement. It is
prosecution’s case from the day one that the deceased tied
matrimonial knot with the appellant 10/12 years before this
incident. Although, the appellant in his statement when he
appeared in the witness box in disproof of charge against him,
took a position that she went out of the vehicle of her own
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Crl.Appeal.No.52-J of 2011
7
when the appellant/accused went out to fetch juice for her
daughter, when she made her homicidal death, nonetheless, the
plea taken at a belated stage and found inconsistence both by
the investigation as well as evidence furnished by the PWs; it is
certainly calculated to get absolve from the responsibility to
explain as to what befell upon the deceased who lived in
matrimonial with the appellant. The statement of Zaheer
Hussain, SI, (PW.2), who found the deceased in burnt and
naked condition, took her to THQ, Gujar Khan on official
vehicle
further
falsify
the
defence
taken
by
the
appellant/accused. Now adverting to the dying declaration
Ex.PG when seen, in conjunction with medical evidence, the
dying declaration Ex.PG found ample corroboration. Receipt of
burn injuries is confirmed by an independent medical officer
and treating thereof coincide with the time of occurrence given
in the FIR. Subsequently, conduct of the appellant to abandon
his wife in those agonizing moments is a circumstance, which
is pointed on him. The dying declaration can sustain capital
charge successfully in case it is found bring true and in line
with other pieces of evidence. Law does not require any
particular quantum of evidence to derive home the charge; a
solitary piece of evidence free from taint and within the ambit
of probability can sustain the charge and so is the case in hand.
The statement of deceased Salma Bibi, which amounts to her
M.R.No. 57 of 2011
Crl.Appeal.No.52-J of 2011
dying declaration; she cannot be called as witness to
affirm/testify her statement. Under Article 46 (1) of Qanoon-eShahadat Order, 1984 such statement/dying declaration of
deceased can be admitted to help the courts of justice to arrive
at correct finding of fact. The learned trial Judge placed implicit
reliance thereto. The deceased, soon after she was set ablaze
was brought to the hospital; she was medically examined on
06-06-2009 at about 9.00 am when the medical officer namely
Doctor Farhat Naveed, WMO, THW, Hospital, Gujar Khan
(PW.4) found her conscious, oriented condition and as such
being capable of making a conscious statement; she shared the
details of calamity which befell upon her at the hands of no
other than better half, with the medical officer. She was noted
to have 90 percent burnt injuries on her person involving
almost every vital organ on her body taken from any angle. She
face to face with the God and in that event she pointed her
finger exclusively on the appellant, in her rendition before the
Anwar Javed, Investigating Officer, (PW.10), she was brief
straightforward and to the point. The statement of deceased
Mst. Salma Bibi, that she was set on fire by sprinkling kerosene
oil is corroborated by recovery of an empty bottle of patrol
(P.2) got recovered by the appellant, she was brief,
straightforward and to the point. The manner in which the
statement Ex.PG was recorded is couched in a language which
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is natural and trustful. Law does not provide any specified
forum before whom such declaration is required to be made; it
depends on the circumstances of each case how a departing
person divulge details of the incident behind his imminent
death. The Medical Officer, who appeared before the court, was
also grilled with embracing a lengthy cross examination
remained straightforward and defence has not been able, even
obliquely to bring on record even a single circumstance, which
may discredit the veracity of deposition of Doctor Farhat
Naveed, WMO, THW, Hospital, Gujar Khan PW.4 rather to
impact negative dying declaration.
13.
Learned counsel for the appellant does not contest the
conviction of appellant, however, seeks death sentence of
appellant into imprisonment for life on the ground that no crime
or reason has been cited in dying declaration and thus makes
out a case to visit the appellant with alternate punishment of
imprisonment for life. Notwithstanding, the plea raised by the
learned counsel for the appellant, we have gone through the
evidence with the assistance of learned law officer.
14.
So far as motive is concerned, it was stated by Salma
Bibi, deceased herself, who was in good condition to state
about the same due to her close relationship with the appellant.
The appellant himself made statement which itself discloses
that everything was not well between the spouses and as such
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Crl.Appeal.No.52-J of 2011
there is no occasion for the learned counsel for the appellant to
argue that there was no motive. As regard the stance of the
appellant that she had not nominated him in this case, suffice it
to observe that a criminal case involving a capital charge
cannot be decided on mere hypothetical possibilities which are
otherwise devoid of any proof or substance, thus, finding no
extenuating circumstance in this case warranting reduction of
the sentence passed against the appellant by the learned trial
court and the same is hereby upheld and affirmed.
15.
For what has been discussed above, we are of the
considered view that prosecution, by producing cogent,
concrete, consistent and trust worthy evidence, able to establish
that appellant, Farhat Abbas Shah, has committed brutal and
merciless murder of his wife. Therefore, head of charge u/s
302(b) of Pakistan Penal Code, 1860, for Qatl-e-Amd of
Salama Bibi (deceased) is proved against the appellant.
16.
For the foregoing reasons, Criminal Appeal No. 52-J
of 2011 filed by Farhat Abbas Shah, appellant is dismissed, his
conviction for an offence under Section 302 (b) PPC is upheld
and the sentence of death as well as the order of payment of
compensation passed against him by the learned trial court is
maintained.
17.
As the sentence of death passed by the learned trial court
against Farhat Abbas Shah, appellant has been confirmed by
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11
us, therefore, Murder Reference No. 57 of 2011 is hereby
answered in the affirmative.
(Qazi Muhammad Amin Ahmad) (Raja Shahid Mehmood Abbasi)
Judge
Judge
Approved for reporting.
Judge
Anjum Abbas
Judge