This criminal appeal is directed against the Judgment dated 14.10.1999 passed by the learned sessions Judge, Okara, whereby, he convicted the appellant under Section 316 PPC and sentenced to imprisonment for 14 years in case FIR No, 214 dated 8.9.1997 registered under Section 302 PPC at Police Station Sathghra.
2. The Investigating Officer after completion of investigation submitted the challan before the learned trial Court. Charge was framed. He pleaded not guilty and claimed trial. The prosecution produced nine witnesses to prove its case. The appellant produced one witness in his defence. He did not make 'statement as required under Section 340(2) Cr.P.C.
3. Dr. Yasmin Ashfaq conducted the post-mortem examination of the deceased and found various injuries on her person. In her opinion death was caused due to asphyxia caused by strangulation.
4. Learned counsel for the appellant contends that the evidence has not been appreciated by the learned trial Court in its true perspective and the judgment is not in accordance With the safe principle of administration of criminal justice.
5. On the other hand, learned counsel for the State supported the judgment of the learned trial Court.
6. I have heard the arguments of the learned counsel for the parties and perused the evidence available on record.
7. Mst. Balqees Bibi, deceased, was the wife of complainant Ghulam Mustafa. She was aged about 35 years. The occurrence took place allegedly at about 6. p.m. on 8.9.1997. The complainant proceeded to lodge report and on his way to the Police Station met Abdul Hamid S.I. at Chowk Jaboka and made a statement which was reduced into writing at 9.30 p.m. and was sent for formal registration of FIR, which was registered at 10.05 p.m.
8. The complaint narrated the occurrence in the FIR in the following words: The accused is his younger brother. He is married. His family is living with his in-laws. He is heroin addict. On the day of occurrence at 6.00 p.m. his wife was present in the house all alone. His brother Tariq, came home and demanded an amount of Rs, 200/300 from his wife to purchase heroin. His wife refused which infuriated the accused who made his wife fell down on the cot and while sitting on his chest pressed her throat with his both hands. In the meanwhile Abdul Rashid PW.2 father of the complainant and his brother Arif came there through the door of baithak and saw in the adjoining room. Tariq appellant strangulating Mst. Balqees Bibi deceased. Seeing them Tariq appellant ran away leaving Mst. Balqees Bibi. When they examined Mst. &Nees Bibi had expired. He went to lodge the report leaving the deadbody to be guarded by PW.2 and Muhammad Arif, given up.
9. The above narration indicates that the complainant was not present at the time of occurrence.
He stated that his father and brother entered through the baithak and saw the accused strangulating Mst. Balqees Bibi. Had he been present and seen the occurrence he would have mentioned his presence and made efforts to stop the accused.
10. PW.2 in his statement in Court introduced the motive for the commission of the crime by stating that threats were issued by the appellant to take the life of the deceased prior to the occurrence in case, she ever refused to arrange the amount demanded by him. Also introduced the fact of trying to pour water in the mouth of the deceased and that he was attracted on hue and cry. In cross- examination he was confronted with his statement Ex. PA which did not contain the fact of pouring water in the mouth of Mst. Balqees Bibi deceased' and hearing of hue and cry. He stated that his father and brother Arif were standing in the Bazar at the time of occurrence. He claims himself to be sitting in the baithak alone. The sound caused by fall of the deceased on the cot attracted him.
He ad mated that the conversation between deceased and the accused in respect of .deniand and refusal of the amount to purchase narcotic was not heard by him. He also conceded that no marks of resistance were present on the deadbody of the deceased. PW.2 Abdul Rashid the other eye-witness is the father to the complainant. He stated that on the day of occurrence he was sitting with the complainant and Arif in the Baithak. When they entered the room, they found the appellant strangulating the deceased. On seeing them, he fled away. In cross-examination, he stated that at the time of occurrence Mustafa PW/complainant, had gone to his land. However, in the next line, he stated that while, he was still in the baithak. Mustafa came there and together they went to room of their own, without hearing any hue and cry. He stated That appellant escaped from the same door through, which they entered. Muhammad Arif an Advocate, by Profession, brother of the complainant has not been produced and given up as unnecessary.
11.The occurrence was 'reported with a considerable delay. The Investigating officer stated they after recording the statement of the complainant at Chowk Jaboke, reached at the place of occurrence within 15/20 minutes. It means that the complainant, even if started after half an hour of the occurrence should have lodged the report by or before 7:00 p.m. Delay speaks volume against him D.W.1. Mst. lqbal mother of the deceased stated that deceased's daughters Namra and Maiyam informed her of the occurrence. She rushed to the place of occurrence and found Tariq appellant, alone, present there. No other inmate of the house was there. Deadbody was lying on the cot. Since death took place in the house of Ghulam Mustafa complainant, therefore they were held liable. Complainant eventually disclosed commission of murder by appellant, she stated that 2/4 houses fall in between her house and that of the deceased. She was informed of the incident very late.
12.Statement of DW.1 is of very vital importance. She stated presence of Tariq in the housewith the deadbody in the absence of any other inmates of the house. This negates the. version of the complainant, that he left his father and brother to guard the deadbody. Even non-presence of Arif and Rashid at the time of arrival of DW.1, and presence of Tariq, alone, cause dent in prosecution story.. It is against the normal human behaviour that a murderer will be present at the place of occurrence after having made escape from the scene of occurrence. Arif who is a practicing advocate has not gone to the police station for lodging the FIR. Had he been present would have definitely accompanied the complainant to the police station.
13. DW.1. stated that deceased died in the house of Mustafa, therefore, liability was fixed on the family of Ghulam Mustafa, and ultimately, they held the appellant responsible. This means the complainant did pot accuse the appellant in the first instance. After consultation and deliberation responsibility was fixed on him. This speaks presence of Tariq with the deadbody.
14.Ghulam Mustafa's presence at the time of occurrence is doubtful. PW.2 was stated to be standing in the Bazar. Hue and cry attracted complainant, allegedly but he negates the same in his evidence. Both the PWS have admittedly not heard the conversation, alleged to have taken place between the deceased and the appellant.
15.Whether the appellant strangulated deceased? Statement of PW.3 lady doctor Yasmin Ashfaq who conducted post-mortem examination is relevant. She stated that deceased was aged about 35 years. She noticed 5 injuries on her deadbody. Injury No, 1 is a bluish contusion 11 cm x 2 cm over front of neck from right to left. Two parallel contusions lying horizontally on back of neck right side 6x 2 cm each as noticed under Injury No,
5. Me admitted that in case of strangulation resistance is normally offered and deceased in case of hard surface must have received contusion on hands, legs and hack but no injury of the nature was noticed. Thickness of finger of hands cannot be (1/2) cm. Normally finger size in thickness was 'mentioned 1.5 to 2 cm. This shows that strangulation of the deceased had not taken place the way prosecution asserted. Either she was made helpless to offer resistance, in any manner, or was taken by surprise while sleeping. Observation of the Medical Officer about Injury No, 1 also indicates that deceased was strangulated by some soft material. The daughters of the deceased were grown up. Their absence from the home is significant. When the incident came to their knowledge. Whey the parents of the deceased were not informed. No evidence is available. The prosecution has failed to prove its case beyond reasonable doubt.
For what has been discussed above, the appeal is allowed, the judgment of the learned trial Court is set-aside. The appellant is acquitted of the charge by extending him benefit of doubt. He be released forthwith, if not required in any other case.