' IJAZ AHMAD CHAUDHRY, J.--- We propose to decide Murder Reference No,551 of 2001 sent by the learned trial Court for confirmation of death sentence against Ghazanfar Ali appellant and Criminal Appeal No,284 of 2001 filed by Ghazanfar Ali appellant against his conviction and sentence who was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 6-2- 2001 handed down by the learned Additional Sessions Judge, Gujrat camp at Kharian and was sentenced to death and to pay a sum of Rs,1,00,000 to the heirs of Mst. Rukhsana Kausar deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo six months' S.I. Together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Mian Khan complainant (P.W.5) was resident of Fateh Bhand and was a cultivator. About two months prior to the occurrence dated 13- 5-2000.
' Mst. Rukhsana Kausar deceased, his daughter was married to Ghazanfar Ali appellant, his nieces and their house was near to the house of the coniplainant. On the night of occurrence; Maqsood Ahmad (P.W.6) and Rafaqat Ali (not produced) had come to his house as guests. At about Sehriwela after hearing the hue and cry , they reached in the house of Ghazanfar Ali appellant and saw in the room in the light of electric bulb that Ghazanfar Ali appellant strangulated Mst.
Rukhsana by way of encircling her neck with a rope and Mst. Rukhsana died then and there.
3. The motive behind the occurrence was alleged to be that the deceased had gone to see her Khala Sardar Begum resident of village Nur Jamal for about one month and the appellant was having the grudge that why she had gone there without the permission of the appellant, hence, he had committed the Qatl-i-Amd of Mst. Rukhsana.
4. The above-said occurrence was reported by Mian Khan (P.W.5) father of the deceased and father-in-law of the appellant to Asif Hanif, Inspector/S.H.O. (P.W.9), by making his statement (Exh.P.C.) on the basis of which F.I.R. No,207 (Exh.P.G./1) dated 13-5-2000 was reduced into writing at 9-15 a.m. By Basharat Ahmad H.C. No,258 (P.W.4), under section 302, P.P.C. At Police Station Dinga District Gujrat.
5. The investigation of this case was conducted by Asif Hanif, Inspector/S.H.O. (P.W.9), who after receipt of information of the above-said occurrence visited the place of occurrence, prepared the injury statement (Exh.P.G.), Inquest Report (Exh.P.G.(?) of Mst. Rukhsana Kausar deceased and also sent the dead body of the deceased to mortuary under the escort of Umar Hayat F.C. (P.W.1) for autopsy. On 17-5-2000 he arrested Ghazanfar Ali appellant who while in custody led to the recovery of a rope (P.4) which was taken into possession by him vide recovery memo. (Exh.P.B.). He also got prepared the site plan (Exh.P.D.) of the place of occurrence from Gulzar Ahmad Draftsman (P.W.7). Upon completion of the other formalities the investigation of this case was finalized and a challan was submitted in the Court.
6. At the commencement of the trial the learned trial Court framed a charge against the appellant to which he pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced ten witnesses in support of its case against the appellant. Mian Khan complainant (P.W.5) and Maqsood Ahmad (P.W.6) furnished the ocular account of the incident in question and Mian Khan complainant (P.W.5) also deposed about the motive. P.W.3 Fazal Dad identified the dead body of Mst. Rukhsana Kausar deceased at the time of post-mortem examination in ABS Hospital, Gujrat. The medical evidence was provided by Lady Dr. Shumaila Munir (P.W.10) who conducted the post-mortem examination on the dead body of Mst.
Rukhsana Kausar deceased. While Asif Hanif, Inspector/S.H.O. (P.W.9) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution more or less formal in nature.
8. In this statement recorded under section 342, Cr.P.C. Ghazanfar Ali appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. However, while answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him the appellant stated as follows:-- "The witnesses are inter se related and inimical towards me. I was having the enmity in the village and some of my enemy in the dark hour of the night managed to commit the murder of my wife and I have been made a scapegoat in this case. I am quite innocent. None of the eye-witnesses had seen this occurrence and my wife was done to death by throttling when she was laying on the cot in the night. On the night of occurrence, I was sleeping in my Dera from where I was taken into custody by the police due to suspicion."
' Neither the appellant opted to make statement on oath under section 340(2), Cr.P.C. Nor he produced any witness in his defence.
9. At the conclusion of the trial the learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
10. The learned counsel for the appellant contends that complainant Mian Khan (P.W.5) and Maqsood Ahmed (P.W.6), eye-witnesses were not present at the spot and had not witnessed the occurrence; that according to P.W.3 Fazal Dad, the complainant had reached the spot after his arrival there, which means that the complainant had not seen the occurrence, that P.W.1 Umar Hayat, constable has admitted the statement of the complainant was recorded at the spot by Investigating Officer, that P.W.5 Mian Khan complainant has categorically stated that F.I.R. Was lodged after the investigation and this fact has also been admitted by P.W.5 in his statement during the cross-examination which shows that the F.I.R. Was recorded after preliminary investigation with due deliberation and it has got no legal sanctity; that it was night occurrence and P.W.6 Maqsood Ahmad was resident of 5/6 miles away from the place of occurrence, who had not sufficiently explained his presence at the spot, but dishonest improvement was made by P.W.6 Maqsood Ahmad at the trial to show his presence at the spot while stating that he had come to the house of the complainant to purchase a buffalo and on this point he was duly confronted with his previous statement thus it is not safe to rely upon his statement and the learned trial Court has wrongly believed him; that the medical evidence is in contradiction with the ocular account as P.W.10 Lady Doctor Shumaila Munir had admitted that there was ligature mark on the back of the neck of the deceased; that nothing has been recovered from the appellant and recovery of rope has been disbelieved; that motive has also not been believed and thus, the prosecution has miserably failed to prove the case against the appellant beyond any shadow of doubt that in alternate it is the case of the prosecution itself that the deceased had gone to the house of Maqsood Ahmad (P.W.6) and remained there for about one month against the wishes of her husband-appellant and the appellant was falsely implicated in the present case as he had been supporting one Anwar who had abducted Mst. Naziran sister of Maqsood Ahmad (P.W.6), no weapon had been used and the occurrence had also taken place in the house of the appellant where the deceased was living happily hence, it is a fit case for lesser punishment by considering the same as mitigating circumstance for reduction of sentence because it had not come on the record that what had happened immediately before the occurrence might have taken place at the spur of moment under the heat of passion.
11. On the contrary, learned counsel for the State opposes this appeal on the ground that the prosecution has been able to prove the case against the appellant beyond any shadow of doubt and conviction and sentence passed against the appellant may be maintained. It is further contended that concessional statement made by P.W.3 Fazal Dad during cross-examination who only had identified the dead body at the time of post-mortem examination, that the complainant had reached the place of occurrence after his arrival cannot be taken into consideration to disbelieve the prosecution story as no such statement was made by him during the investigation of the case it is also contended that the witnesses had no grudge or enmity to falsely implicate the appellant in the present case.
12. We have heard the learned counsel for the parties and also perused the record with due care and caution.
13. The occurrence in the present case had taken place at Sehri Wela/3-00 a.m. And Mian Khan complainant (P.W.5) had got recorded his statement before the police without any inordinate delay, on the basis of which F.I.R. Was lodged on the same day at 9-15 a.m. At the police station in which name of the appellant as well as the manner in which the occurrence had taken place had been duly mentioned. The prosecution in order to prove the guilt of the appellant had produced the ocular account in the shape of the statements of Mian Khan (P.W.5) and Maqsood Ahmad (P.W.6).
P.W.5 Mian Khan is not only close relative of the deceased but also the close relative of the appellant being father-in-law of the appellant who is also brother's son of the complainant. It was alleged that the marriage of Mst. Rukhsana Kausar was contracted with the appellant about two months ago/before the incident and allegedly there was no or grudge or enmity between Mian Khan complainant (P.W.5) and the appellant to falsely implicate him in the present case if the appellant had not committed the offence. Mian Khan complainant (P.W.5) is resident of the same village. It has come on the record that only one house intervenes between the house of the complainant and the place where the occurrence had taken place and the remaining family members of the appellant were also residing in the same house. On hearing hue and cry from their house, the complainant (P.W.5) had reached the spot. Presence of P.W.5 Mian Khan complainant at the time of occurrence even during the odd hours of the night cannot be ruled out as he was resident of the same locality and possibility of hearing hue and cry during night time when there was all around pin drop silence cannot be ruled out.
14. Maqsood Ahmad P.W.6 admittedly was resident of village Nur Jamal which is 5 miles away from the place of occurrence as it has been admitted by P.W.5 Mian Khan and according to him Maqsood Ahmed (P.W.6) and Rafaqat P.Ws. Are residents of village Nur Jamal which is at a distance of about 1-1/2 mile from the place of occurrence, but in the statement recorded under section 161, Cr.P.C. Maqsood Ahmad P.W.6 had not given any reason for visiting the complainant during odd hours of the night. P.W.6 Maqsood Ahmad, however, tried to show his presence at the spot while explaining that he had come to purchase a buffalo, but he was confronted with his previous statement on this point. As such we are satisfied that he has not been able to give any reasonable explanation for his presence at the spot. However, even if statement of P.W.6 is not relied upon, the prosecution is left with the evidence of P.W.5 Mian Khan, who being natural witness can be relied upon.
15. The contention of learned counsel for the appellant that P.W.3 Fazal Dad has stated that the complainant had come to the place of occurrence after his arrival at the spot is of no avail as P.W.3 Fazal Dad was the witness who had only identified the dead body of Mst. Rukhsana Kausar deceased at the time of post-mortem examination before the doctor. The concessional statement made by him during cross-examination to a question put by the defence cannot be taken into consideration as no such statement was made by him before the police during the investigation.
Even otherwise Mian Khan (P.W.5) has been able to prove his presence at the spot.
16. It has also been contended by the learned counsel for the appellant that Lady Dr. Shumaila Munir (P.W.10) has admitted during the cross-examination that there was no ligature mark on the back of the neck of the deceased. We have perused the diagram prepared by her and noticed that she had pointed out that there were ligature marks even on the back of the neck and this aspect is verified after perusal of the diagram attached with the post-mortem examination report. It has been specifically stated by P.W.5 Mian Khan that the deceased was lying at the cot and she was pressed upon from the front side. We do not find any contradiction in the ocular account and the medical evidence. Even otherwise, medical evidence supports the ocular account.
17. Motive has also been proved as Mian Khan complainant (P.W.5) has stated that the deceased was married to the appellant two months prior to the occurrence and for one month she had gone to the house of her "Khala" namely Mst. Sardar Begum wife of Maqsood Ahmad and this annoyed the appellant. He had not been questioned on this point during the cross-examination. Moreover, this fact has been established even through the statement of Maqsood Ahmad (P.W.6), who is husband of Mst. Sardar Begum "Khala" of the deceased. Both P.W.5 Mian Khan and P.W.6 Maqsood Ahmad are relied upon regarding the motive set up by the prosecution which could be cause of annoyance for the appellant resulting into death of the deceased during the odd hours of the night in the house of the appellant.
19(sic). Even otherwise, the complainant had no previous grudge, ill-will or enmity to falsely involve the appellant in the present case when two months earlier he himself had given the hand of his daughter Mst. Rukhsana Kausar deceased to the appellant. He was subjected to lengthy cross- examination but nothing has been brought on the record to show that the complainant had any reason to falsely implicate the appellant in the present case. Mian Khan Complainant (P.W.5) is the natural witness and he has been able to establish his presence at the spot. We find that his presence at the spot and seeing of occurrence has been established beyond any shadow of doubt. Hence, his statement alone is sufficient to connect the appellant with the commission of the crime. Even otherwise the occurrence had taken place at 3-00 a.m. In the house of the appellant and dead body was found lying inside the house where presence of the appellant along with the deceased and other family members was not at all doubtful, which is strong circumstance against the appellant. The appellant has failed to controvert through any cogent piece of evidence that the occurrence had not taken place in the manner narrated by the prosecution, but he has simply stated that at the time of occurrence he was sleeping separately from his wife in the Dera and she was done to death by someone else. The appellant neither appeared in his defence under section 340(2), Cr.P.C. Nor adduced any evidence to exonerate him from the commission of the crime. The other family member relating to him have also not been produced by the appellant to explain the circumstances in which the deceased was murdered in his house even in the presence of his parents, brothers and their wives. The quality and not quantity of evidence is required to prove the charge against the accused. We are satisfied that the prosecution has been able to prove the case against the appellant beyond any shadow of doubt through the statement of P.W.5 Mian Khan and other circumstances and the medical evidence also supports the prosecution story. We find that the conviction has been passed by the learned trial Court on cogent reasons and we do not find any reason for interference therewith.
20. So far as quantum of sentence is concerned, we find that the deceased was young lady aged about 18/19 years', who was married to the appellant only two months earlier to the occurrence and father of the deceased had transferred the whole property in her name. The appellant has failed to show any mitigating circumstances for reduction of his sentence. On the other hand the appellant had done her to death on a petty matter of visiting the house of her maternal-aunt.
21. For what has been discussed above, Criminal Appeal No,284 of 2001 filed by the appellant having no merit is dismissed and death sentence awarded to the appellant by the learned trial Court is maintained along the compensation and in case the appellant fails to pay the compensation he will further undergo S.I. For six months.
22. Consequently, Murder Reference No,551 of 2001 sent by the learned trial Court for confirmation of death sentence of Ghazanfar Ali convict-appellant is replied in affirmative and death sentence is confirmed.