Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 184 of 2001 filed by Ali Sher and Criminal Appeal No, 324 of 2001 filed by Mst. Bashiran, appellants. They both were convicted and sentenced vide judgment dated 28.2.2001 rendered by learned Additional Sessions Judge, Sahiwal as under: Ali Sher Death and to pay rupees one lac as compensation, in default six months RI under Section 302(b) PPC and 14 years RI and to pay Diyat to the tune of Rs, 3,36,930/- with the benefit of Section 382-B, Cr.P.C. under Section 308 PPC.
Mst.
BashiranMurder Reference No, 221 of 2001 for confirmation or otherwise of death sentence of Ali Sher, appellant alongwith Criminal Appeal No, 304 of 2001 filed by complainant against acquittal of M st.
Bashiran under Section 302(b) PPC shall also be dealt with through this single judgment.
2. Occurrence in this case had taken place at 11/12 p.m. in between the night of 15th/16th January 2000 within the revenue estate of Chak No, 135/9-L which is at a distance of 5 kilometers from Police Station Ghalla Mandi, District Sahiwal while the matter was reported to the Police in the Police Station on 16.1.2000 at 6.30 a.m. by Mahmood Ahmad and formal FIR Ex. PE was recorded by Inspector Muhammad Akram.
3. Brief facts of the case as disclosed in the FIR by Mahmood Ali, complainant, are that Muhammad Ali, his real brother was residing for the last 10/11 months in Chak No, 139/9-L in a rented house. Mst.
Bashiran Bibi, wife of Muhammad Ali was not enjoying good repute and the relations between the spouses were strained. On 15.1.2000 at about 10 p.m., Muhammad Ali (deceased) summoned his brother, the complainant, through his maternal nephew Muhammad. Yousaf to sort out some issues. On the same night at about 11/12 p.m., the complainant alongwith Shabbir Ahmad, his real brother and Qasim Ali, his nephew, reached in the house of Muhammad Ali. When the complainant alongwith two others reached in the house of Muhammad Ali they found the outer gate of the house opened, they entered into the house and in the light of electric bulb witnessed that Ali Sher accused while sitting on the cot of Muhammad Ali deceased, was pressing with this knee the chest and tying the rope around neck of Muhammad Ali. It was further alleged in the FIR that Mst.
Bashiran wife of Muhammad Ali was putting a cloth in the mouth of Muhammad Ali while Ghulam Ali had gripped his both legs. The victim. Muhammad Ali was crying with pain and sooner the complainant and the PWs entered into the room, both the accused Ali Sher and Mst. Bashiran left Muhammad Ali, the accused Ali Sher pulled out a dagger and extended threats of dire consequences.
The motive alleged was that Ali Sher accused wanted to many with Mst. Shazia, the niece of the complainant, but Muhammad Ali was not agreeable to this marriage. To track aside Muhammad Ali, all the accused committed the murder of deceased.
4. Inspector Muhammad Akbar PW.4 took over the investigation. He after registration of the formal FIR, went to the spot; took into possession the cot, dohar/khais, quilt and nylon string vide memos.
Ex. PF and Ex. PG, Maqbool Ahmad SI (PW.9) also partly investigated the case inasmuch as he arrested Ali Sher, Ghulam Ali and Mst. Bashiran accused on 21.10.2001. While on physical remand, Ali Sher accused got recovered dagger P.8 which was secured vide memo Ex. PK. After completion of all formal investigation, all the three accused were sent to face the trial.
5. At the trial, prosecution in order to prove its case produced nine witnesses in all. They eye- witnesses account was furnished by Mahmood Ahmad and Qasim (PWs. 5 and 6) both real brother and nephew of the deceased respectively. Dr. Shafi-ur-Rehman PV conducted postmortem examination on the dead body of the deceased. The accused in their statements under Section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, Ghulam Ali accused was acquitted while Ali Sher and Bashiran accused were convicted and sentenced as stated above.
6. Learned counsel for Ali Sher appellant submits that according to case of the prosecution, the occurrence took place in between the night of 15th/16th January 2000, that is, 11/12 p.m., the eye- witnesses are not resident of place of occurrence rather hail to a chak which is 8/9 kilometers away from the place of occurrence, so their presence at such odd hours of the night was unnatural rather they are cooked up witnesses. Elaborating this argument, learned counsel submits that a dispute was going on between Mst. Bashiran and the deceased on one side and Mahmood Ali, the complainant on the other side, so there was no occasion for the deceased to have summoned Mahmood, the complainant at his house. Further submits that the doctor (PW.3) who had conducted postmortem examination on the dead body of deceased had given the duration between death and the postmortem as 18 hours which also falsifies the presence of the eye- witnesses at the spot because before their arrival at the place of occurrence, the deceased had already been done to death. Adds that apart from the fact that the eye-witnesses were not present at the spot, they are interested and inimical towards the appellant so no reliance can be placed on their testimony to maintain conviction on a charge of capital punishment.
While coming to motive part of the case, learned counsel submits that it was alleged by the complainant in the FIR that Ali Sher wanted to marry with Mst. Shazia the daughter of deceased, this was not liked by the deceased so in order to track aside Muhammad Ali, husband of Mst.
Bashiran, he was done to death by both the accused in consultation with each other as Mst.
Bashiran was also willing to marry her daughter with Ali Sher. According to learned counsel, the prosecution has miserably failed to prove the motive in as much as Mst. Shazia the only daughter of the deceased was already married with one Muhammad Faiz on 4.12.1999 while the occurrence of murder of Muhammad Ali, the father of Mst. Shazia had taken place in June, 2000 so there was no question of Ali Sher appellant for marrying with Mst. Shazia. Further submits that the complainant before the trial Court introduced another motive by stating that there were illicit relations between Ali Sher and Mst. Bashiran, both accused.
Learned counsel next submits that the story set up in the FIR is most unnatural in as much as at odd hours of the night it was improbable that main gate of the house was opened, electric bulb was on and even when the complainant and the PWs, boarded from the rickshaw, the accused were not afraid and allowed the eye-witnesses to witness the occurrence.
Explaining the reason for false implication of Ali Sher, appellant, learned counsel submits that Ghulam Ali had a grievance against the complainant party and Ali Sher being close friend of Ghulam Ali was falsely implicated in this case but due to acquittal of said Ghulam Ali, the prosecution story becomes doubtful.
It is also submitted though in a lighter vein that there were no marks of resistance on the body of the deceased which also negates the story alleged by the prosecution.
Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
7. Learned counsel for Mst. Bashiran appellant submits that she is lady of 34/35 years age and at such advance stage of age, the question of illicit relations is a rare phenomenon. Further submits that relations between Mahmood complainants on one side and deceased and Mst. Bashiran accused on the other side were strained so in order to debar her from inheritance of the deceased, she was also roped in.
8. Learned counsel for the State assisted by learned counsel for the complainant submits that it is admitted on record that Mst. Bashiran was a lady of easy virtue and the occurrence of murder of her husband having taken place in her house, she could not give any satisfactory explanation in this regard. Further submits that no litigation was pending between the deceased and the complainant, the litigation, if any was, between one Fauji and the complainant party. Further submits that both the eye-witnesses though are closely related to the deceased but had no animus against both the appellants. Adds that plea of alibi was neither taken by Ali Sher appellant before the Investigating Officer nor it was his first version at the time of arrest. Lastly submits that neither the bride nor the bridegroom or the Nikah Khawan or witnesses of the said nikah having been produced before the trial Court, Ex. DA, the nikah nama is a waste paper and does not carry any evidentiary value. Elaborating his argument, learned counsel submits that Muhammad Faiz, the alleged husband of Mst. Shazia is related to Mst. Bashiran but he too was not produced. Both the learned counsel support the judgment of the trial Court qua Ali Sher appellant and prays for conviction of Mst. Bashiran under Section 302(b) PPC instead of 308 PPC.
9. We have heard learned counsel for the parties at length and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 11/12 p.m. in between the night of 15th/16th January 2000 and the matter was reported to the Police in Police Station at 6.30 a.m. on 16.1.2000. In all, three accused, namely, Ali Sher. Mst. Bashiran and Ghulam Ali were named in the FIR. Ghulam Ali accused was acquitted by the trial Court while Mst. Bashiran was convicted under Section 308 PPC and sentenced to 14 years RI. Against acquittal of Ghulam Ali and Mst. Bashiran, complainant filed Criminal Appeal No, 304 of 2001. The said appeal was heard by a Division Bench of this Court of which one of us (Muhammad Farrukh Mahmud, J.) was a member and vide the order dated 10.5.2001, appeal to the extent of Ali Sher and Ghulam Ali was dismissed while notice was issued against Mst. Bashiran.
In the FIR, three persons namely Mahmood Ahmad, Shabbir Ahmad, both brothers inter se and Qasim Ali, nephew of Mahmood Ahmad were introduced as eye-witnesses. Shabbir Ahmad was given up. Mahmood and Qasim appeared before the trial Court as PWs. 5 and 6. Both these PWs had fully implicated the appellants. They had no animus whatsoever against both the convicts. The ligation, if any had come to an end even much prior to the occurrence. There was thus no occasion for the eye-witnesses to have falsely deposed against appellants at the cost of leaving the actual culprits responsible for the murder of their blood relation. There is no denying the fact that the occurrence had taken place in the house of Mst. Bashiran. She has failed to bring on record any cogent reasons for her false implication. The role of Mst. Bashiran for having put a cloth in the mouth of the deceased is dully corroborated from the medical evidence. There are multiple abrasions on the mouth of the deceased.
According to case of the prosecution, the deceased was done to death by strangulation. The doctor (PW.3) who conducted postmortem examination on the dead body of the deceased found four injuries on the person of deceased including ligature mark and multiple abrasions on front middle part of the neck. The cause of death given by the doctor was asphyxia and shock. So, the ocular account is fully corroborated by medical evidence.
An objection was raised by learned counsel for Ali Sher appellant that according to case of the prosecution, the eye-witnesses went to the house of deceased in a rickshaw and it is unnatural that on hearing the noise of a rickshaw, the accused would have left the door of the house opened.
This submission has no force for the reason that the defence itself while cross-examining Mahmood Ahmad PW.5 brought on record that the rickshaw was stopped on the road and not in front of the main gate of the house of deceased and that the house of deceased is at a distance of one acre from the main road.
A perusal of Column No, 16 of the inquest report ex. PG shows that the deceased was very week and slim. It has also come on record that for the last three years he was sitting in the home idle through had earlier been labouring as a mason. So, a person with such physique cannot be expected to have resisted when two persons were there to murder him by sitting on his chest and putting a cloth in, his mouth.
It was the case of prosecution that when the eye-witnesses tried to apprehend Ali Sher, accused he took out the dagger-and threatened them of dire consequences. The said dagger was recovered on the pointation of the appellant.
To shatter the motive set up by the prosecution in the FIR that Ali sher wanted to marry with the daughter of Muhammad Ali deceased to which said Muhammad All was not agreeable while Mst.
Bashiran was a consenting party to that marriage and was siding Ali Sher, learned counsel has drawn our attention to Ex. DA, nikah nama between Mst. Shahnaz and Muhammad Faiz. It is noteworthy that in the nikah nama the name of the bride is written as Shahnaz and not Shazia but name of . father is Muhammad Ali. This document has no evidentiary value because neither the groom nor the bride groom who too was related to Mst. Bashiran nor any of the witness of the nikah or the nikah khawan was produced.
Apart from the fact that whether the prosecution has failed to prove motive or not, the law is now set at rest by the Hon'ble apex Court in the case of Waris Khan vs. The State (2001 S.C.M.R. 387) wherein it has been ruled that where the eye-witness account was worthy of credence, unimpeachable, confidence inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute a mitigating circumstance.
For the above resume, we can safely hold that Muhammad Ali deceased was done to death by both Ali Sher and Mst. Bashiran in consultation with each other. Mst. Bashiran is already under notice as to why she be not convicted under Section 302(b) PPC. We have respectfully gone through the order dated 10.5.2001 passed in Criminal Appeal No, 304 of 2001 as also the precedent cases cited in the said order such as 1999 SCM R 2203 and 2652. There is and there can be no cavil with the proposition of law laid down in supra cases by the Hon'ble apex Court that it a case of tazir, conviction can be only under Section 302 and not under Section 306 PPC.
Resultantly, Criminal Appeal No, 184 of 2001 by Ali Sher appellant is dismissed. The conviction and sentence recorded against him by the trial Court vide the impugned judgment is maintained in toto. The death sentence is confirmed and Murder Reference is answered in the Affirmative.
Criminal Appeal No, 324 of 2001 filed by Mst. Bashiran is disposed of in terms that her conviction under Section 308 PPC is converted into one under Section 302(b) PPC and she is sentenced to undergo Imprisonment for life with further direction to pay Rs, 50,000/- as compensation, in default six months SI. The benefit of Section 382-B, Cr.P.C. is granted to her. She is on bail and shall be taken into custody to serve out his sentence.