' DOST MUHAMMAD KHAN, J.--- This appeal calls into question the judgment, dated 15-1-2002 given by Additional Sessions Judge, Lahor, District Swabi wherein the appellant after having been found guilty for offence under section 302(b), P.P.C. Was convicted and sentenced to life imprisonment, however, benefit of section 382-B, Cr.P.C. Was extended to him.
2. The prosecution case in brief is that the appellant on 14-9-1999 at about 21-45 hours himself reported the instant crime wherein he alleged that the deceased Mst. Zuhra his wife was killed by acquitted accused Abdullah in his presence by firing at her with pistol and while having been challenged by the appellant he also fired at him causing him an injury on his shoulder. Motive for the crime shown in the F.I.R. Is that deceased was divorced by the appellant but the couple decided to remarry and in view of the Islamic Injunctions intervening marriage (URDU TEXT) between acquitted accused Abdullah and the deceased was arranged/solemnized with the object that he would divorce her and she would remarry the appellant but the acquitted accused refused to release her from marital bond.
3. The local police true to its traditional method of investigation adopted the same line and did not care to investigate the crime from other angles too.
' On 15-11-1999, P.W.9 Mst. Raziya, sister of deceased, complained to S.P Swabi wherein she charged the appellant for the murder and fabrication of the present story levelling false charge against Abdullah, the acquitted accused, but with no result. The said P.W. Then filed complaint with the Incharge Army Monitoring Cell who in turn sent it to the local S.H.O. For needful whereafter her statement and statement of the mother of the deceased both were recorded under section 164, Cr.P.C. And as a result of such investigation the appellant was also arrayed as co-accused with Abdullah and Amanullah.
4. At the trial Mst. Raziya P.W.9 besides supporting her complaint and giving reasons for involvement of the appellant also disclosed that the deceased in her life time has lodged report with the local police to proceed under section 107/151, Cr.P.C. Against the appellant and his said two brothers because she was apprehending threat to her life at their hands. She also disclosed that from the first day she was running from pillar to post charging the appellant for the instant crime but nobody gave attention to her loud cries.
5. The entire case of the prosecution set up at the trial is based on the following items of evidence:-
(i) The F.I.R. Lodged by the appellant and admitted by him at the trial.
(ii) The testimony of the lady doctor categorically refuting that the injury on the deceased was caused with fire-arm but was caused with sharp weapon.
(iii) That the injury on the appellant is self-inflicted because doctor has found blackening marks around the entry wound and being a superficial one.
(iv) The report/complaint lodged by the deceased with the police in her life time against the appellant and co-accused.
(v) Motive for the crime which lay more with the appellant.
' The appellant has squarely admitted the report made by him. He has also admitted that he and the deceased alone were present inside the house when the crime was committed, therefore, his presence on the spot stood admitted by him requires no further proof.
' The plea of the appellant which is consistent one is that the acquitted co-accused Abdullah fired at the deceased with pistol but the lady doctor confirmed at the trial and for strong and valid reasons that the deceased has sustained lacerated wound of a size of 2-1/2 inch x 2/3 inch on right side of head at supero posterial right ear. Time between injury and death has been shown 2 to 4 hours which seems the most probable one keeping in view the nature and seat of injury thus this opinion of the expert based on personal observation has completely dislodged the plea of the appellant about the weapon used in the crime.
' Again the lady doctor opinion about the time duration was 2 to 4 hours has proved the fact that the appellant consumed this much of time in fabricating the story and managing the self-inflicted injury on his person because the dead body was taken to the police station which fact/circumstances speaks volume about his such abnormal conduct.
' The next testimony is that of Dr. Inamullah P.W.4 who has found blackening around the entry wound on the person of the appellant. The distance shown in the site plan between him and the acquitted accused is 3 full paces which comes to about 10 to 11 feet thus he is further falsified by such evidence of the doctor because blackening range in case of pistol is within 6 to 9 inches.
' Mst. Raziya P.W.9 deposed at trial that the deceased some time before the occurrence has lodged report with the police because she was fearing threat to her life at the hands of the appellant and his brothers, named above, and has asked for proceeding against them under section 107/151, Cr.P.C. This portion of the testimony has neither been challenged in any manner nor has been subjected to cross-examination, therefore, this being a legal piece of strong circumstantial evidence connecting the neck of the appellant with the crime stood admitted on record.
' In view of clear admission of the appellant that at the time of the instant occurrence he alone was with the deceased inside the crime house and once on the facts and evidence on record the involvement of the acquitted accused Abdullah is excluded then in view of the settled principle of law and justice the appellant was required to have explained by giving evidence that it was not he himself but somebody else who committed the instant crime but the appellant when was asked under section 342, Cr.P.C. To give evidence on oath or lead defence evidence to discharge burden so shifted to him, he refused.
' The next piece of evidence is that of motive which is very strong in view of the facts of the instant crime. It is the case of the appellant that the deceased was retained by acquitted accused in marital bond despite understanding reached at between the parties that she would be released by the co-accused after spending a night but the appellant was betrayed by the co-accused and the deceased, therefore, in view of such disclosure and admitted facts the motive exclusively lay with the appellant to commit the crime. In view of the above facts there is strong probability that the deceased after entering into wedlock albeit temporarily with acquitted accused might have decided to continue with him and that would have served an additional inducing cause for the appellant in killing the deceased. He has managed to kill two birds with one shot by killing the deceased and because of a false charge he has made crude G attempt to send the acquitted accused to gallows. The time spent by the appellant in between 2 to 4 hours in not shifting the deceased then injured to hospital and not reporting the matter promptly is another strong circumstance reflecting upon his conduct as discussed above.
' We are mindful of the well-entrenched principle of law and justice that to record conviction for a murder charge, circumstantial evidence must be of a high value and degree and it must be so inter-linked to connect the neck of the accused with the commission of the crime and it shall of course must be incompatible with the innocence of an accused.
' However, keeping in view the peculiar features of the instant crime which has taken place inside the house of the appellant and he has not denied his presence rather has come out with another version which was proved at the trial to be a false one, therefore, the combined effect of the entire evidence is that it was appellant and nobody else in committing the murder.
' In the case of Shah Wali and another v. The State PLD 1993 SC 32, the apex Court in dealing with the principle of burden of proof and the defence plea held "that under the view set up of law accused is not allowed to tell a lie but he should assist the Court". The conviction of accused in the said case was endorsed and maintained because he failed to explain the evidence led against him connecting with the offence nor he gave true account about his presence with the co- accused.
' Before closing this judgment, we feel constrained to hold that the deceased in the instant case a poor and defenceless lady was made a I rolling stone between the two brothers for no fault or sin on her part. Per evidence on record she was having no shelter anywhere therefore, despite of hostile and cruel treatment given to her she while attributing it to her fate thus decided to stay in the house of the appellant where she was murdered in a cruel manner after she was subjected to enter into intervening marriage (URDU TEXT) with the acquitted accused most probably against her consent and wishes. Again without having any contribution in the dispute between the two brothers over her, she fell victim and was done to death by the appellant. This murder, therefore, is one of the first degree and the appellant was not entitled to any mercy or lenient treatment as extended to him by the learned trial Court, however, the State has not filed revision petition for enhancement of the sentence, therefore, we do not deem it proper to suo motu enhance the same.
' We are also of the view that the Investigating Agency in the instant crime during the course of investigation has played a highly deplorable role and deliberately did not collect further and better evidence, therefore, its conduct is not above board.
' For the above reasons this appeal being without legal merit accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.