' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeal has been directed against the order of District Court of Criminal Jurisdiction, Sudhnooti Palandri dated 13-5-2006 whereby appellant Mst. Kousar Perveen was convicted and awarded life imprisonment under section 302, A.P.C. While Muhammad Shabir was acquitted of the charge.
2. Brief facts leading to the background of the appeal are that a case under section 302, A.P.C. Was registered at Police Station, Pallandari on the complaint of Muhammad Raees. It was reported that the complainant was a resident of Gahl Palandri. Thirteen years back his sister married to Muhammad Kabir son of Muhammad Latif resident of Daran Challar. They had a son and daughter.
Muhammad Kabir contracted second marriage seven years before the occurrence with Mst.
Kousar Parveen, due to which an unpleasantness was prevailing between Mst. Robina and him. On 29-3-2006 at 8-00 p.m. The complainant came to know that his sister died. Upon this he came there and inquired about the matter. He was told by the family members that on night falling between 28/29/3-2006 a vampire killed her. At 3-00 p.m. Some ladies told the complainant that they saw a mark of violence caused by rope on the neck of the deceased. Due to suspicious circumstances he reported the matter to the police.
3. On the above mentioned information the police started proceedings under section 174, Cr.P.C.
And the dead body was taken to hospital for post-mortem. The doctor who conducted autopsy opined that the death occurred due to strangulation. Upon this a case under section 302, A.P.C.
Was registered at Police Station Palandri. During investigation the convict appellant and her brother Muhammad Shabir were arrested by the police. After completion of the investigation the challan under sections 302/322, A.P.C. Was submitted before District Court of Criminal Jurisdiction, Sudhnooti/Palandri. The accused persons were proceeded under law, resultantly Mst. Kousar Perveen was convicted and sentenced life imprisonment while Muhammad Shabir was acquitted of the charge through the impugned judgment. Hence the above titled appeal.
4. Learned counsel for the appellant argued that the occurrence was not witnessed by anybody. In fact Mst. Robina was not murdered. The complainant concocted a story against the accused persons due to the second marriage and roped them in false case. According to the learned counsel the prosecution case was that the occurrence took place at dark hour in the house of the accused and the victim. Mst. Maryam Bibi daughter and Waseem Raees nephew of the deceased were present there. During trial they were examined by the prosecution but failed to prove the allegations. Their statements indicate that they did not witness the occurrence. Even otherwise the presence of Waseem Raees at the place of occurrence at relevant time was doubtful as he was not an inmate of the house and was residing at a walking distance f more than one hour. Recovery of incriminating articles such as a piece of rope, a scarf and strip of Ativon tablets was also highly doubtful and was of no help to the prosecution case. He further argued that no independent corroborative material in support of the prosecution story was brought on record. Circumstantial evidence was not worth-consideration. The prosecution story being improbable was not reliable.
The trial Court failed to appreciate the evidence on record in a judicial fashion, therefore, the impugned judgment being incorrect and against law may be set aside and by accepting the appeal the convict be acquitted of the charge.
5. On the other hand, it was argued that the convict appellant hatched a conspiracy to kill Mst.
Robina. The allegation was proved during trial through the statements of inmates of the house and the same was corroborated by recovery of the incriminating articles. According to the learned counsel though nobody saw the convict while killing Mst. Robina but in light of the circumstances it stands established that she was murdered by the convict appellant. Each and every link of the circumstantial evidence was proved during trial. The Court below appreciated the material in accordance with law and arrived at a correct decision thus, the impugned judgment needs no interference, therefore, the appeal filed by the convict may be dismissed.
6. Learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. The prosecution story as it appears from the record that Mst. Robina was married to Muhammad Kabir. They had son and a daughter. Later on Muhammad Kabir contracted second marriage with Mst. Kousar Perveen. All of them were living in the house where the occurrence took place. On 28-3- 2006 the convict and the deceased went to the house of P.W. Waseem Raees where Mst. Kousar Perveen told P.W. Mst. Riyasat Jan, that some Vampire attached with Robina, shall kill her in 2/3 days. At about 4-00 p.m. They left the house of Waseem Races and forced him to come along with them. At about 5-00 p.m. They reached back to their home. In the evening Mst. Kousar Perveen prepared meal. P.Ws. Waseem Raees, Maryam and the deceased ate it while the convict did not.
Afterwards Kousar Perveen prepared tea but did not take herself while the P.Ws. And the deceased started feeling drowsy after taking it and went to sleep. P.W. Waseem Raees and convict were on one cot while Robina and Maryam on the other. At about 10-00 p.m. P.W. Waseem Raees woke up and heard whispers and also heard a cry of Robina. He saw that instead of Kousar Perveen Maryam was lying with her. In the meantime Kousar Perveen asked P.W. Waseem Raees to keep quite and told that there is something which may kill him. Upon this he went to sleep. At about 00- 00 hour he again awoke and heard two more cries of Robina. The victim asked Kousar Perveen that what is-happening and was answered that something is killing Mst. Robina while she is doing "Masaj" to her. It was dark and the P.W. Was scared so he again went to sleep. At about 3-00 a.m.
Kousar Perveen awaked him and told that Robina had died. A mark of violence bluish in colour was noticed by the witness at the neck of the deceased.
9. In support of the above mentioned story a strip of ativon tablets sold by P.W. Sarfraz to.
Muhammad Shabir accused, piece of rope and a scarf allegedly recovered at the instance of the accused appellant were brought on record. The story was relied upon by the trial Court while convicting the appellant.
10. It may be stated that P.W. Waseem Races was nephew of the deceased. His house was at walking distance of more than one hour from the place of occurrence. As per his statement victim and the convict came to his home on 28-3-2006 at about 11-00 a.m. They stayed for sometime. The convict told his mother Mst. Riyasat Jan that a Vampire attached with Robina would kill her in 2/3 days. At 4-00 p.m. They left for home, forced Waseem Raees to come with them and reached back at 5-00 p.m.
11. I am unable to understand that if the convict appellant was aiming to commit the offence then why she forced the witness to come and spend night with them. It may be added here that a careful consideration of the statement of Waseem Raees shows that he did not see the convict while committing the offence however, heard cries of his aunt at 10-00 p.m. And 00-00 hours, At 3- 00 a.m. He was awaked by the appellant and was told that his aunt had died. As per deposition he saw a mark of violence at the neck of the deceased, left the place early in the morning and after reaching home told his mother about the occurrence.
12. It is important to note that as per deposition of the complainant on 29-3-2006 he was in Palandri. At 8-00 a.m. He came to know about the death of his sister and came at the place of occurrence at 10-00 a.m. Where his cousin Manwar Jan told that the victim was murdered by strangulation and story regarding Vampire was false and fabricated. This clearly shows that on 29- 3-2006 at 10-00 a.m. The complainant was informed about the unnatural death of his sister whereas perusal of police diary Exh.P.C. Shows that he made the application Exh.P.A. For registration of the case before S.H.O. Police Station Palandri at 7-20 a.m. Wherein it was particularly mentioned that a mark of violence caused by rope was found at the neck of the deceased. Thus, it becomes clear that the story regarding knowledge about commission of the offence deposed by him was not correct.
13. The prosecution case was that the victim and P.Ws. Waseem 'Raees and Maryam Bibi were given Ativon tablets before the occurrence. In support of the allegations Mst. Maryam was examined who deposed that she saw the convict putting some white powder in tea but it was not supported by post-mortem report Exh.P.R. Or through any other circumstance thus, her statement was of no help to the prosecution case, therefore, merits no consideration.
14. It was alleged by the prosecution that Muhammad Shabir and Mst. Kousar Perveen hatched a conspiracy. He brought her Ativon tablets to give Robina in absence of Muhammad Kabir as he was aiming to commit Zina with her. The tablets were purchased from the shop of P.W. Sarfraz Hussain Shah two months prior to the occurrence. During trial this portion of the prosecution, story was not proved and resultantly Muhammad Shabir was acquitted of the charge.
15. The recovery of rope, scarf and strip of Ativon tablets allegedly used for commission of the offence lends no support to the prosecution case. According to the Exh.P.J. And Exh.P.T. The same were seized on 7-4-2006 at instance of the convict appellant but no evidence to prove that these were used in the occurrence was brought on record. According to the statement of P.W. Dr. Zahoor Ahmad some blunt weapon was used to kill the deceased. Though the possibility of use of rope for commission of the offence was not ruled out but no definite opinion about the weapon was given by him.
16. Another point which needs consideration that autopsy was conducted on 30-3-2006 and post- mortem report Exh.P.R. Was handed over to the police on 2-4-2006 upon which a case vide F.I.R.
No,61 of 2006 was registered at Police Station Palandri on the same day at 5-15 p.m. No reasonable explanation regarding delay in preparation of the D post-mortem report and lodging the F.I.R. Was brought on record. It may be added further that according to the statements of P.Ws. Naseem Mehmood, S.H.O. Police Station Palandri and Abdul Qadoos, S.-I., Muhammad Kabir husband of the deceased, Muhammad Rashid and some others were also interrogated by the police while the convict appellant was arrested on 5-4-2006. The above mentioned facts create serious doubt in truthfulness of the account given by the prosecution, particularly in light of the statement of Waseem Raees who claimed presence at the place of occurrence at relevant time.
17. It is interesting to note that Muhammad Kabir and his family was leading a happy life. They were living together. A single incident indicating any unpleasantness between them was not brought on record by the complainant or the prosecution witnesses. During pendency of the appeal husband of the deceased appeared before the Court and extended pardon to the convict. He also recorded his statement to this effect.
18. In light of the facts listed above, I am of the view that while convicting the appellant the trial Court failed to appreciate that the alleged motive was not proved. Origin of fight and manner of occurrence were shrouded in mystery. The prosecution story being highly doubtful was not worth- relying. In this view of the matter, the appeal filed by the convict is accepted and she is acquitted of the charge.