' SYED SAKHI HUSSAIN BUKHARI, J.---Mst. Zeba and Mst. Shamim have filed this appeal against the judgment dated 3-7-2003 passed by learned Additional Sessions Judge, Bhalwal whereby they were convicted under section 302(b), P.P.C. And sentenced to suffer imprisonment for life and to pay Rs,50,000 each as compensation to-16gal heirs of deceased. They were also convicted under section 201, P.P.C. And sentenced to suffer 7 years' R.I and to pay Rs,10,000 each as fine and in default whereof to undergo six months R.I. Each in case No,148 of 2002, dated 17-7-2002 under sections 302, 201 and 34, P.P.C. Registered at Police Station Lakasain District Sargodha.
2. The prosecution story as appearing from the testimony of Muhammad Bashir, complainant (P.W.5) is that accused Mst. Zeba is his "Bhawaj" and accused Shamim is his niece. Mst. Zeba is widow of Muhammad Nawaz, deceased. About eleven months back he had gone to Behk Lurka to see his brother Muhammad Nawaz, deceased and enquired about him from the accused and they replied that Muhammad Nawaz had gone to village Hujjan. Then he went to Hujjan to see his borther but he was not present there and he returned to Behk Lurka again on the same day along with his brother Shana and Muhammad Aslam P.Ws. They learnt that Muhammad Nawaz had been murdered by the accused and they informed the police about his murder. They took the police to Behk Lurka in the house of accused and earlier to that his statement (Exh.PC) was recorded by the police at Police Station which was read over to him and he signed the same in token of its correctness. Mst. Zeba, widow and Mst. Shamim, daughter of deceased confessed that they had murdered Muhammad Nawaz. They also admitted that they had buried the dead body of Muhammad Nawaz in the courtyard. On their pointation, the dead body of Muhammad Nawaz was dug out. He identified the dead body of Muhammad Nawaz, which was clad in 'dhoti' and shirt and the same were blood-stained.
' The cause of the occurrence is that both the accused Zeba and Shamim were of bad character having illicit relations with Mithoo son of Muhammad, Muslim Sheikh. Muhammad Nawaz, deceased had , knowledge of their illicit relations and had reprimanded them and due to this reason both the accused to get rid of Muhammad Nawaz committed him murder. He along with dead body went to RHC Midh Ranjah. On the following day, police reached the place of occurrence and collected bloodstained earth which was made into a sealed parcel vide memo Exh.PB attested by him and Shana, P.W. On 18-7-2002 in presence of P.Ws. On the pointation of accused, I.O.
Recovered 'Toka' P.3 lying in a room (cattle shed) which was taken into possession vide memo.
Exh.PE, attested buy him and Shana P.W. And his statement was recorded in this regard. On his statement case was registered against the accused.
' P.W.8 Azhar Abbas S.I. Is the I.O. In this case. On 17-7-2002 Muhammad Bashir complainant appeared before him and made statement, Exh.PC which was read over and explained to him and he thumb marked it in token of its correctness. On 18-7-2002, he visited the spot and prepared site plan of the place of occurrence Ehx.PJ. He prepared injury statement Exh.PG and inquest report Exh.PH. The I.O. Collected blood-stained earth from the courtyard of the house of Muhammad Nawaz, deceased and made into a sealed parcel vide memo. Exh.PD. He handed over the dead body to Muhammad Akram, Constable for postmortem examination. After P.M. Examination Muhammad Akram, Constable produced before him blood-stained last worn clothes of deceased 'Chadar' and shirt and he took the same into possession vide memo. Exh.PB Mst. Zeba and Mst.
Shamim were arrested and on their pointation weapon of offence Toka P.3 was recovered from 'Kacha Kotha' belonging to deceased and taken into possession vide memo. Exh.PE. He recorded statements of P.Ws. The I.O. Handed over case property to 'Moharrir' of Police Station. On 20-7-2002 Muhammad Hafeez, draftsman took rough notes and prepared site plans Exh.PA and Exh.PA/1. The marginal notes in red ink are in his hand and hear his signatures. The I.O. Recorded statements of Shahid Atta, Constable and Abdul Razzaq Moharrir Head Constable on 29-7-2002 and after completion of investigation challaned the accused.
2. The accused appeared before trial Court and charge under sections 302 and 201/34, P.P.C. Was framed against them to which they pleaded not guilty and claimed trial whereupon prosecution evidence was recorded.
3. The prosecution examined 8 witnesses in all to prove its case. P.W.1, Muhammad Hafeez Khan, draftsman prepared site plans Exh.PA and Exh.PA/1. P.W.2 Abdul Razzaq, "Moharrir" stated that on 18- 7-2002 the I.O. Handed over to him one sealed parcel said to contain bloodstained earth which he kept in 'Malkhana' and on 28-7-2002 he handed over the same to Shahid Atta for onward transmission to the office of Chemical Examiner. P.W.3, Muhammad Akram escorted the dead body of Muhammad Nawaz to mortuary for autopsy. After P.M. Examination M.O. Handed over to him last worn clothes of deceased and he produced the same before I.O. Who took into possession vide memo. Exh.PE. P.W.4, Shahid Atta, Constable stated that on 28-7-2002 Abdul Razzaq, 'Moharrir' handed over to him sealed parcel said to contain blood-stained earth for onward transmission to the office of Chemical Examiner, which he delivered there in the said office intact. P.W.5 Muhammad Bashir is the complainant in this case and what he stated in his examination-in-chief has already been noticed above. During cross-examination he stated that Muhammad Nawaz, deceased was his real brother, He had four sons and four daughters. He could not tell the date of occurrence when deceased was killed. He denied that he asked the hand of Shamim accused from Zeba accused but she refused. He also denied that Shana, P.W. Is resident of Mandi Baha-ud-Din.
The police did not arrest Mithoo during investigation of this case. He denied that deceased was murdered by Mithoo and accused have been falsely implicated in this case. He stated that 'Toka' was recovered from the residential 'Kotha' of Muhammad Nawaz deceased. He denied that he had made false statement due to ulterior motive. P.W.6, Shan Muhammad alias Shana also made similar statement. P.W.7, Dr. Waqar Hameed conducted P.M. Examination on the bead body of Muhammad Nawaz, deceased and observed following injuries:-- ' External Injuries.
(1) An incised wound (dirty) on right side of scalp, moggorts were shattered all over it. It was ten c.m. Above right ear, size 25 c.m. x 12 c.m. Skull bone was fractured. Dura matter shattered all over it.
(2) An incised wound on frontal bone (force-head) 10 c.m. x 5 c.m. Dura matter was coming out of it. Skull bone was fractured.
(3) Multiple abrasion on back of right hand in area of 10 x 6 c.m.
(4) An incised wound on palmer surface left hand, size 3 c.m. x 2 c.m., bone was not exposed.
' Opinion.
' In his opinion, the death in this case occurred due to Injuries Nos.1 and 2, damaging vital structure of skull cavity leading to massive hemorrage, shock and death, sufficient to cause death in ordinary course of nature. All injuries were ante mortem and were homicidal in nature. All injuries were inflicted with sharp-edged weapon. Time that elapsed between injuries and death was within five minutes and that between death and post-mortem examination was within two days.
' P.W.8, Azhar Abbas , S.-I./ S.H.O. Is I.O. In this case and what he stated in examination-in-chief has already been noticed above. During cross-examination he stated that Mithoo was not made to join investigation to verify the motive of this occurrence because he was not available in his house and had gone to Karachi. The dead body of deceased was dug out before his arrival at the house of Muhammad Nawaz deceased. He denied that no recovery was made from the accused at their instance. After the statements of aforesaid P.Ws. Learned DDA tendered in evidence report of Chemical Examiner, Exh.PK and that of Serologist, Exh.PL and closed the prosecution case.
Thereafter accused were examined under section 342, Cr.P.C. Wherein they denied the allegations levelled against them by the prosecution and pleaded their innocence. The accused stated that they have been involved in this case due to enmity and ulterior motive. However, they did not produce any defence evidence. After hearing the parties, learned trial Court convicted and sentenced the appellants as mentioned above. Hence this appeal.
4. I have heard the arguments and perused the record.
5. The case of prosecution is that appellants (Zeba and Shamim) gave 'Toka' blows on the person of Muhammad Nawaz deceased and killed him. Mst. Zeba is widow whereas Mst. Shamim, appellant is daughter of deceased. In F.I.R. (Exh.PC) Muhammad Bashir, complainant has mentioned that Mst. Zeba, appellant had illicit relations with Mithoo son of Muhammad Muslim Sheikh and Muhammad Nawaz, deceased had knowledge of the same and he used to reprimand appellants and due to this grudge they killed him (Muhammad Nawaz. However while appearing as P.W.5, he (Muhammad Bashir, complainant) stated in examinationin-chief that both the accused (Mst. Zeba and Mst. Shamim) had illicit relations with Mithoo son of Muhammad Muslim Sheikh. P.W.6, Shan Muhammad alias Shana (complainant's brother) also stated that Mst. Zeba and Mst. Shamim had illicit relations with Mithoo son of Muhammad Muslim Sheikh. So it is clear that P.W.5 and P.W.6 have made material improvement in their previous statements. This departure from original version appears to be indicative of a desire to see that the daughter too does not remain unpunished. She thus becomes entitled to receive benefit of doubt.
6. The prosecution case is that accused killed Muhammad Nawaz, deceased with a 'Toka'.
According to statement of Dr. Waqar Hameed (P.W.7) the injuries on the person of deceased were with sharp-edged weapon. It too shows that injuries were caused with one weapon. So prosecution case to the extent of Mst. Shamim, appellant is not free from doubt. Even otherwise Mst. Zeba is mother of Shamim, therefore, Mst. Zeba had to explain as to why dead body was recovered from her courtyard. In these circumstances I find that prosecution has failed to prove its case against Mst. Shamim, appellant beyond any shadow of doubt. As such this appeal is accepted to the extent of Mst. Shamim and she is acquitted of the charge B preferred against her by the prosecution. She is in jail and shall be released forthwith if not required in any other case.
7. As regards case against Mst. Zeba, prosecution has proved its case against her. The motive as alleged by the prosecution is that she (Mst. Zeba, appellant) had illicit relations with Mithoo son of Muhammad Muslim Sheikh and deceased reprimanded her and due to this reason she killed him.
The prosecution examined two witnesses (P.W.5 and P.W.6) who are consistent in their statements that Mst. Zeba had illicit relation with Mithoo. Their statements are convincing and confidence- inspiring. So motive stands proved beyond any shadow of doubt.
8. According to statements of P.W.5 and P.W.6, Mst. Zeba confessed that she had killed her husband (Muhammad Nawaz, deceased) and on her pointation dead body was also recovered from her courtyard. The statements of P.W.5 and P.W.6 are convincing and confidence-inspiring and there is nothing on record to disbelieve the same. They had no enmity with the appellant. The appellant has failed to explain as to why they have deposed against her. The medical evidence too supports prosecution version. Moreover dead body was also recovered on her pointation and police took into possession 'Toka' from her house.
9. As regards defence plea the same does not sound to be natural and plausible. The case of appellant is that she has been involved in this case due to enmity and ulterior motive. However, she has not produced any evidence in support of her case. Even otherwise defence version is afterthought and baseless. As such defence version cannot be believed and the same is accordingly rejected.
10. For what has been discussed above I am of the considered opinion that prosecution has proved its case against Mst. Zeba, appellant beyond any shadow of doubt and learned trial Court has rightly convicted and sentenced her. There is no justification to set aside impugned judgment to the extent of Mst. Zeba, appellant. So appeal to the extent of Mst. Zeba has no force and the same is accordingly dismissed.