1. Abdul Majeed-appellant was sent up to face trial in case F.I.R. No, 135, registered at Police Station Saddar Chishtian, on 19-6-2000 for therein under Section 302, P.P.C. for causing the murder of Mst.
2. Z.ilran Bibi. Vide judgment dated 30-7-2001 Haji Mian Muhammad Akram Baitu, learned Sessions Judge, Bahawalnagar convicted the appellant for offence under Section 302, P.P.C. and sentenced him to imprisonment for life. He was also directed to pay Rs, 30,000 as compensation to the legal heirs of the deceased. In default of payment thereof he was to suffer S. I. for six months. Benefit of Section 382-B, Cr.P.C. was given to him. Through this appeal he has challenged his conviction and sentence.
3. 2.Muhammad Riaz-complainant has filed Criminal Revision No, 171 of 2001 seeking enhancement of the sentence inflicted upon the appellant. I propose to decide both these matters through this single judgment.
4. 3.F.I.R. No, 135 Exh.P.C./1 was registered at Police Station Saddar Chishtian on 19-6-2000 at 4-30 a.m. by Abdul Sattar, S.-I. P.W.10 for offence under Section 302, P.P.C. on the written application Exh.P.C. of Muhammad Riaz P.W.3, husband of the deceased.
5. 4.According to prosecution case the complainant lived in Chak No, 43/Fateh and worked as tractor driver belonging to Abdul Sattar resident of Vehari-86 Adda. He kept the tractor with him in use to transport wheat after collecting the same from nearby villages at Godown, Chishtian every day. He used to spend night at his house. He was married with Mst. Zafran-deceased 8/9 years prior to the occurrence. Out of the wedlock one son and two daughters were born. Abdul Majeed appellant being a neighbour used to visit the house of the Complainant. During visits he developed illicit relations with the wife of the complainant. Due to suspicion the complainant stopped Abdul Majeed-appellant from visiting his house. The latter felt aggrieved and nourished grudge in his heart. On the fateful night the complainant alongwith his family members was sleeping in the compound of his house. An electric bulb posted near the out wall was on. At about 2.00 a.m., during night, the complainant woke up due to alarm raised by his wife. He saw that Abdul Majeed was causing injuries with a dagger to the deceased. On the alarm raised by the complainant Muhammad Bashir P.W.4 nephew of the complainant and Mushtaq Ahmad uncle of the complainant reached the spot. The complainant and the P.Ws. tried to apprehend the appellant who succeeded in making good his escape by scaling over the wall. Mst. Zafran, who had received injuries on her chest, arms and legs, died on the spot.
6. 5.After registration of case Abdul Sattar, S.-I. reached. the spot, prepared the injury statement, inquest report and sent the dead body to the mortuary for the purpose of post-mortem examination. He also collected blood-stained earth from the spot and secured it vide memo.
7. Exh.P.D. prepared by him and attested by Muhammad Bashir P.W.4 and Mushtaq who was not produced during trial.
8. 6.The appellant was arrested on 30-6-2000 by P.W.10. While in custody on 3-7-2000, the appellant led to the recovery of dagger P.I from his residential room which was taken into possession vide memo. Exh.P.E. prepared by P.W.10 and attested by the witnesses mentioned above.
9. 7.During trial the prosecution produced ten witnesses in support of its case. P.W.3 and P.W.4 furnished the ocular account. Their statements are in accordance with the story given in the F.I.R.
10. P.W.3 also stated about the motive behind the occurrence while P.W.4 in addition to the ocular account stated about the recoveries effected from the spot and at the instance of the appellant.
11. 8.Dr. Shaista Parveen P.W.-1 conducted the post-mortem examination on the dead. body of Mst.
12. Zafran who at the time of her death was 30/32 years. She observed eight injuries on the person of the deceased. All the injuries were caused by a sharp-edged weapon. According to doctor's opinion the deceased lost her life due to Injury No, 1 which was on the abdomen. The witness further stated that vaginal swa bs were taken, sealed and handed over to the police for onward transmission to the Chemical Examiner.
13. 9.Khalil Ahmad, Tracer, P.W.2 stated that he had prepared site plan Exh.P.B. on the instructions of the P.Ws. Abdul Sattar, S.-I. P.W.10 stated about registration and investigation of the case. Rest of the witnesses are formal in nature and need not be discussed. The prosecution closed its case after placing on record the reports of the Chemical Examiner and Serologist Exhs.P.K. and P.K./1.
14. According to the reports the dagger and the earth were stained with human blood.
15. 10.In his statement under Section 342, Cr.P.C. the appellant claimed to be innocent and stated that he has been roped in a false case on the basis of a dispute over fixing of a door between him and Muhammad Bashir P.W.4. He further stated that on the night of occurrence he remained at the Dera of Asghar Ali and that according to his information Nazir brother of Bashir P.W. had committed the murder. Neither the appellant appeared in his defence under Section 340(2), Cr.P.C. nor he produced any defence witness during trial.
16. 11.The learned counsel for the appellant has argued that the prosecution case was replete with doubts and raised the following points:- (i)That according to post-mortem report the deceased received eight injuries but no corresponding holes were found on the clothes worn by the deceased; (ii)That the complainant and the P.Ws. who were three adult members, neither they intervened nor apprehended the appellant who was a young boy of 19 years at the time of occurrence; (iii)That the F.I.R. was recorded after the occurrence and preliminary investigation as is evident from the fact that the case F.I.R. number was not mentioned in the inquest report; (iv)That both the witnesses mentioned in the F.I.R. were closely related to the complainant and were in fact witnesses of choice and were not natural witnesses; and (v)That the petitioner has no motive whatsoever to cause the death of Mst. Zafran Bibi who according to F.I.R. was in love with him.
17. 12.Conversely the learned counsel for the complainant has argued that the matter was reported to the police with promptitude which rules out the element of fabrication; that Bashir Ahmad being a neighbour was a natural witness and could not be termed as chance witness; that mere relationship of the witnesses with the complainant would not be enough to discard their evidence as they had no ill-will or enmity against the appellant; that the witnesses did try to apprehend the appellant but he made good his escape as he was armed with a dagger and that the statements of eyewitnesses are supported by the medical evidence as well as that of recovery of dagger at the instance of the appellant. The learned counsel has lastly argued that the appellant had taken the life of an innocent person and thus, deserves the normal penalty of death.
18. 13.I have heard the learned counsel for the parties and have scanned the entire record of the case.
19. 14.At the time of occurrence the appellant was a young boy of 19/20 years while the deceased Mst. Zafran was aged about 30/32 years. According to the complainant himself they had developed intimacy with each other and for that reason the complainant had stopped the appellant from visiting the house. It was never mentioned in the F.I.R. which was registered on the basis of written application of the complainant that the deceased had ever stopped the appellant from visiting the house or that the deceased had promised that she would not continue her relationship with the appellant. hi this background, the appellant had no reason to take the life of the deceased, neither there was any reason for the appellant to nourish any grudge against the deceased so as to take her life rather it would be the complainant who must have felt very annoyed with the behaviour of his unfaithful wife and that of the appellant. The occurrence took place in the mid of the night. According to evidence the deceased was sleeping at a distance of five Karms 25 feet from the cot of her husband. Perusal of the site plans reveals that there was an opening in front of the cot of the deceased on the northern side. This opening was without any door. The electric bulb mentioned in the IF.I.R. was not shown in either of the site plans prepared by the Investigating Officer and the tracer. The eye-witnesses also did not state that any electric bulb was on. These circumstances, in the background of illicit relationship of the deceased and the appellant, are very relevant as the appellant could easily slip into the house of the complainant during dark of the night from the opening which existed in front of the cot of the deceased, on the northern side. It is also noteworthy that the deceased received eight injuries caused by a sharp-edged weapon on various parts of her body including chest, abdomen and legs. In case the deceased had been wearing clothes at the time of occurrence then there must have been corresponding holes on the clothes worn by the deceased. I have minutely perused the relevant column of the inquest report and have gone through the statement of the doctor. Neither it is mentioned in the inquest report that the clothes contained the holes nor the doctor has stated that the clothes were perforated. The prosecution has miserably tailed to explain as to why the clothes did not contain any hole. The logical deduction in the above noted circumstances would be that at the time of occurrence the deceased was not wearing any clothes and it was after the death of the deceased that her body was covered with the clothes by the inmates of the house. Furthermore, according to prosecution case the appellant who was a boy of 19 years had been causing injuries to the deceased in the presence of the complainant, his nephew and his uncle. In normal circumstances, these three adults would have taken positive steps to save the life of the deceased. They could grapple with the assailant, cause injury to him with some stick or Kassi which are normally present in the village houses or at least could throw a brick or pelt a stone on the appellant. On the contrary in the instant case according to F.I.R. they tried to apprehend the appellant after the occurrence who succeeded in running away. In addition to above noted facts I would like to mention another significant circumstance that according to unchallenged statement of the doctor vaginal swabs were taken, sealed and handed over to the police but the same were never sent for chemical analysis. In view of the above noted circumstances of the case the possibility cannot be ruled out that on the fateful night the appellant visited the wife of the complainant who woke up and took life of the deceased in flurry of rage and insult. This is supported by the medical evidence as the assailant caused eight injuries on the body of the deceased. The large number of injuries reflects the venom, grief and anger of the assailant.
20. The fact that the accused/appellant did not take this plea would not benefit the prosecution in any manner as it is settled principle of law that the burden of proof lies on the prosecution from first to last and does not shift to the accused irrespective as to whether the accused took a defence plea or not or that the defence plea was found to be false or was not proved.
15. The prosecution has also failed to prove the factum of the recovery of dagger at the instance of the appellant through reliable evidence, firstly, no independent person was produced to support the recovery evidence, secondly, the recovery was effected from a house which was occupied not only by the appellant alone but also by other family members and thirdly that the occurrence took place on 19-6-2000 while the appellant was arrested on 30-6-2000 after 12 days. A prudent mind would not keep the blood-stained weapon in his house for such a long period rather he would like to get rid of it or at least wash it.
21. 16.The upshot of the whole discussion is that in my opinion the prosecution case is not free from doubt. Thus, while extending benefit of doubt to the appellant I allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges and would be released forthwith if not required in any other case.
22. 17.As the appeal has been allowed the revision has become infructuous and is disposed of as such.