This judgment shall dispose Criminal Appeal No, 68/1998 filed by Abdul Sattar against his conviction and sentence and Criminal Revision No 77/1998 filed by the complainant for enhancement of sentence as both these matters arise out of common judgment dated 27.1.1998 passed by learned Addl: Sessions Judge, Vehari whereby the appellant was convicted under Section 302 PPC and sentenced to life imprisonment with a direction to pay Rs, 20,000/- as compensation to the legal heirs of the deceased and in default of payment thereof to further undergo RI for one year. However, Muhammad Anwar and Ahmad Yar co-accused were acquitted of the charge.
2. The occurrence in the present case took place on 22.11.1994 at about 9:00 a.m. in Killa No, 17 of Square No, 44, Chak No, 56/KB, 11 K.M. away from Police Station Luddan, District Vehari, which was reported by Bashir Ahman PW-7 husband of Mst. Razia Bibi on the same day at about 10:00 a.m. through FIR (Ex. P-11) recorded by Malik Mansab Khan, Inspector/SHO-PW-10 at P.S. Luddan.
3. Brief facts narrated in the FIR are that Mst. Razia Bibi was complainant's "Phophizad", who was married with Ghulam Joiya about 5/6 years ago but "Rukhsati" had not yet taken place. Mst. Razia Bibi being not happy with this Nikah filed a suit for dissolution of marriage, which was decided in her favour. Thereafter, she contracted marriage with the complainant against the wishes of her parents and out of the said wedlock one son Ghulam Yasin was born. Abdul Sattar and Muhammad Anwar were the step brothers of Mst. Razia Bibi, who had been compelling her to get divorce from the complainant but she did not agree to the same. On the day of occurrence at about 9:00 am his wife Mst. Razia Bibi alongwith his mother Mst. Sabiran Bibi was picking cotton at the place of occurrence. The complainant and his father were also going to the same filed and when they reached in Killa No, 5 of Square No, 44, Abdul Sattar armed with rifle 12 bore and Anwar acquitted accused empty handed appeared from Southern side. Muhammad Anwar accused remained present at a distance of two acres whereas Abdul Sattar appellant came in Killa No, 17 of Square No, 44 and asked Mst. Razia Bibi that as he had contracted marriage with Bashir Ahmad against his wishes, he would not let her alive. Thereupon, Muhammad Anwar raised a Lalkara and asked Abdur Sattar to kill Mst. Razia Bibi. The complainant and his father ran towards Mst. Razia Bibi who also rushed towards them. In the meanwhile, Abdul Sattar accused opened the fire at Mst.
Razia Bibi which hit on the back side of her right shouldet. She fell down and died at the spot. The complainant and his father tried to catch hold of Abdul Sattar, who threatened to kill them and ran away. The occurrence had allegedly taken place on the abetment of Ahmad Yar (acquitted accused) and it was witnessed by the complainant, his father, mother and maternal uncle Fareed.
4. After recording of statement under Section 154 Cr.P.C. Malik Mansab Khan, Investigating Officer went to the spot, prepared the injury statement as well as inquest report and then sent the deadbody to mortuary through Zulfiqar PW-4 and also collected blood stained earth through recovery memo (Exh. PE) from the spot. On 10.12.1994 Abdul Sattar appellant was arrested and on 14.12.1994 he under police custody led to the recovery of 12 bore pistol-P6, which was taken into possession vide memo Exh. PJ. After close of investigation report under Section 173 Cr.P.C. was submitted in the Court
5. Charge was framed against appellant and acquitted accused who denied the same and prosecution in order to prove their guilt produced as many as 10 witnesses: Ocular account was furnished by PW-7 Bashir Ahmad, PW-8 Muhammad Hussain and PW-9 Ghulam Fareed while PW- 10 Malik. Mansab Khan, Inspector/SHO had conducted the investigation and PW-1 Dr. Muhammad Hussain Sajid, Medical Officer had performed the post-mortem examination of the deceased.
However, the remaining witnesses are of formal nature. The appellant Abdul Sattar in his statement recorded under Section 342 Cr.P.C. denied the prosecution case and to a question that "why this case is against you", he replied as under:-- "Mst. Razia Bibi was murdered in mysterious circumstances during a night in the field.. She was the wife of Ghulam Joiya and it was against him that the lady was forced to file a suit for dissolution of her marriage which was not offensive for me and the same if any could be offended by Ghulam Joiya by inimical towards the complainant side as my father divorced Mst. Zaiban the sister of Muhammad Hussain PW which was offensive for them and because of the same they implicated me and my brother and brother in law in this false case where the recoveries have been planted against me."
None of the accused produced any witness in defence nor made statement under Section 340(2)
Cr.P.C. After hearing both the parties, the learned Sessions Judge while relying upon the prosecution evidence has passed the impugned judgment of conviction against the appellant, hence this appeal.
6. Learned counsel for the appellant contends that recording to PW-1 Dr. Muhammad Hussain Sajid rigor mortis was present and the occurrence according to medical evidence had taken place in the dark hours of night at about 2/3:00 a.m thus the ocular account was in contradiction with the medical evidence and all the three witnesses had made improvements on material points. It is further contended that in the FIR complainant PW-7 Bashir Ahmad stated that appellant was armed with rifle but at the trial he made improvement while stating that he was armed with pistol only to bring the case in line with the medical evidence. It is also contended .that none of the eye- witnesses were present at the spot were as PW-7 had admitted that after marriage Mst. Razia was living with thp complainant and the accused were on visiting terms with them but no quarrel had taken place between them during said period. It is further contended that the appellant was falsely implicated in the present case only due to suspicion and in fact it was a blind murder committed during night. It is also contended that the vaginal swabs of deceased taken at the time of post- mortem examination were found stained with semen by the chemical examiner and the taking place of alleged occurrence in the night hours supports that the deceased might have illicit liaison with anybody. It is further contended that the recovery of weapon of offence was effected from the appellant in violation of Section 103 Cr.P.C. and the recovery witnesses were closely related to the complainant, hence the recovery is not worthy of reliance. It is lastly contended that the prosecution has failed to above the case against the appellant beyond any shadow of doubt and he is liable to acquitted.
7. On the other hand, learned counsel appearing on behalf of the State assisted by learned counsel for the complainant opposes this appel on the ground that the occurrence had taken place at about 9:00 a.m on 22.11.1994 and the matter was reported to the police on the same day at about 10:00 a.m. without causing any delay in lodging the FIR; that there was no time left with the complainant for consultation with others for false implication of the appellant in the present case; that the witnesses were not inimical towards the appellant and there was no chance of his. false implication; that the empty recovered from the place of occurrence had matched with the weapon of offence later on got recovered by the appellant, hence, the report of F.S.L. provided sufficient corroboration to the ocular account furnished by PWs-7 to 9, who even otherwise remained consistent on material points and were trustworthy.
8. I have heard the learned counsel for the parties and also perused the evidence on record as well as impugned judgment of conviction with due care and caution. PW-7 Bashir Ahmad complainant was husband of the deceased, who was his Phophizad, Muhammad Hussain PW-8 is father of Bashir Ahmad and PW-9 Ghulam Fareed is real uncle of complainant, hence, the aforesaid three witnesses were closely related inter se and the appellant was also closely related to the as the father of appellant contracted second marriage with Mst. Zaiban real sister of complainant's father who had left her husbands house and used to live with Muhammad Hussain and Ghulam Fareed.
Mst. Razia, deceased was born out of the wedlock of Mst. Zeban and Muhammad Yar. It has also come in the evidence that the deceased used to live with her mother. But any how she was given in marriage to Ghulam Joya by her father and Rukhsati had not taken place. Thereafter the deceased came to the house of complainant where her mother was residing and she filed a suit for dissolution of marriage against said Ghulam: Subsequently after getting divorce she contracted marriage with PW-.7 Bashir Ahmad. All the three eye-witnesses are not found interested witnesses as they had no previous enmity or grudge to falsely implicate the appellant in the present case as the appellant is son of brother-in-law of complainant's father and there was no occasion to substitute him in place of real culprits by these eye-witnesses.
9. All the three eye-witnesses were residents of the same locality and they succeeded in proving their presence at the time of occurrence. Even otherwise, the occurrence was not per chance and the matter was reported to the police immediately within one hour of the occurrence. Hence, no time was left with the prosecution for consultation and deliberation to falsely implicate the appellant in the present case. It makes no difference whether the appellant was alleged to be armed with rifle in the FIR and at the trial he was stated to armed with pistol as he was the only accused who had fired at the deceased. Moreover, if the FIR was lodged after consultation and preliminary investigation such type of contradiction was not likely to occur in the present case.
Moreover, the complainant being illiterate person cannot be expected to know difference between rifle and pistol. Only due' to this reason the ocular account cannot be disbelieved, which even otherwise is found consistent on material points and trustworthy. As these witnesses are found independent witnesses, the minor contradictions in their statements will not be sufficient to discard their evidence as they remained consistent on material points regarding the time, place and the manner in which the alleged occurrence had taken place. The possibility of occurring of such type minor discrepamcoes due to passage of time cannot be ruled out as the concurrence had taken place on 22.11.1994 and the statements were recorded after about three years, i,e, on 13.12.1997.
10.The statement of Dr. Muhammad Hussain Sajid PW-1 cannot be declared in contradiction with the ocular account only due to reason that the doctor had found post-mortem staining and rigor mortis during post-mortem examination of deceased on her body, which could be found even if the occurrence had taken place at 9:00 am as according to the statement of the doctor during cross examination the post-mortem staining appears after two hours of the death while rigor mortis starts developing after six hours of death and in the present case the post-mortem examination was conducted after six hours of the occurrence at 3:00 p.m. The opinion of the doctor cannot be preferred over the statements of eye-witnesses, who claimed to have seen the occurrence and succeeded in establishing their presence at the spot. Admittedly the vaginal swa bs taken at the time of post-mortem examination of deceased by the doctor according to the report of chemical examiner were found stained with seven, but it does not lend any support to the defence as she was a married lady and the semen can stained in the vagina for one to two weeks.
Even otherwise no evidence has been brought on the record that she was of bad character and was murdered being seen in compromising condition with any person. Moreover, mere not taking into possession the cloth used by the deceased for keeping the plucked cotton at the time of occurrence is not sufficient to discard the prosecution version as the I.O. might have not given any importance to the same. After, his rest the appellant got effected recovery of pistol, which was witnessed by PW-9 Ghulam Fareed who is resident of the same locality and PW-10 Malik Mansab Khan, I.0 also supported the same. The said recovery was effected on 14.12.1994 while empty was sent to the office of Forensic Science Laboratory on 28.11.1994. However, the pistol recovered from the appellant was sent to the office of Forensic Science Laboratory on 18.12.1994 and the report of the Forensic Science Laboratory is positive. Hence, it provides independent corroboration to the ocular account.
11. For the foregoing discussion, I am satisfied that the prosecution succeeded in bringing home guild to the appellant beyond any shadow of doubt. Mere acquittal of co-accused is not sufficient to exonerate the appellant as they were not ascribed any specific role, whereas the appellant failed to bring on record any reason for his false' implication in the present case by letting off the real culprit. The occurrence in the present case had taken place in broad daylight and the appellant was previously known to the eye-witnesses. Hence, there was no question of misidentity.
In such circumstances, the conviction of the appellant u/S. 302(b) PPC is maintained. He was sentenced to life imprisonment. I do not find any reason for enhancement of the same as I am of the view that the prosecution failed to established motive because Mst. Razia after getting divorce from Ghulam Joyia had contrasted marriage with the complainant more than three years prior to the occurrence and one son was born during this period. Even she had been visiting the house of the appellant and her father during this period, but no untowards incident had taken place during this period. What had happened immediately before the occurrence resulting into commission of the same has not come on record. Therefore, the sentence of the appellant awarded by the learned trial Court is also maintained. However, the sentence of fine of Rs, 20,000/- awarded by the learned trial Court is converted to compensation payable to the legal heirs of the deceased under Section 544-A Cr.P.C. and in default of payment thereof the appellant shall further undergo SI for six months. He shall also be given the benefit of Section 382-B Cr.P.C. With these modification the impugned judgment of conviction and sentence is maintained. Both Crl. Appeal No, 68/98 filed by the appellant against his conviction and sentence and Crl. Revision No, 77/98 filed for enhancement of his sentence are dismissed. The appellant is presently on bail as operation of his sentence was suspended during the pendency of this appeal and the learned Sessions Judge, Vehari shall issue process be ensure sending of the appellant to jail for serving out the remaining sentence.