' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,461/J of 2003 filed by Muhammad Sharif, appellant, who was convicted and sentenced by learned Sessions Judge, Gujranwala vide his impugned judgment, dated 6-10-2003 to undergo 14 years' R.I. Under section 308., P.P.C. With further direction to pay Rs,2,80,000 (on each count) as Diyat to the legal heirs of both the deceased excluding himself with the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as disclosed by complainant, are that the complainant was married with accused Muhammad Sharif and out of this wedlock three sons and four daughters were born out.
On 26-11-2002 her daughters Mst. Fakhra aged about 13/14 years and Mst. Tasleem aged about 7/8 years were present with her. Altaf Hussain and Ghulam Rasool being closely related to the complainant visited her house as guests. They were sleeping in a room adjoining to the outer gate.
The complainant and her younger daughter Mst. Tasleem went asleep in a room. Her husband Muhammad Sharif and another daughter Mst. Fakhra were sleeping in the adjacent room. At about 10-00 p.m. The complainant heard a noise of her younger daughter Mst. Tasleem. She woke up and saw that limbs of her daughter Mst. Tasleem were tied with a rope while her husband Muhammad Sharif was strangulating Mst. Tasleem with rope. Her mouth was also gagged. She was hovering between life and death. The complainant raised an alarm. Whereupon Ghulam Rasool and Altaf Hussain also attracted to the room. Mst. Tasleem Bibi breathed her last there and then. On suspicion, the other room was also unbolted where Mst. Fakhra Bibi was lying dead. Her hands and feet were found tied with rope and her mouth was also gagged. The people of the Mohallah also gathered at the spot. Muhammad Sharif fled away while extending threats of dire consequences.
Motive behind the occurrence was that Muhammad Sharif oftenly used to quarrel with the complainant and her daughters.
3. Munir Hussain. S.-I./P.W.7 took over the investigation of this case. He inspected the place of occurrence, prepared inquest reports Exh.P.H. And Exh.P.K. And injury statements Exh.P.H./1 and Exh.P.K./1 respectively of Mst. Fakhra and Mst. Tasleem Bibi. On 13-12-2002 he arrested the accused and after completion of investigation he sent the accused to face the trial.
4. Prosecution in order to prove its case produced as many as seven prosecution witnesses.
Learned D.A. After tendering in evidence reports of Chemical Examiner Exh.P.M. And Exh.P.N. Closed the case of prosecution. Statement of the accused under section 342, Cr.P.C. Was recorded in which he pleaded his innocence. Learned trial Court after hearing both the parties convicted and sentenced the accused-appellant as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that appellant has been falsely implicated, that complainant had made dishonest improvements before the learned trial Court during the trial, that prosecution had failed to prove the motive against the appellant, that appellant had denied his presence at the spot, that Altaf P.W., who was an eye-witness and also witness of motive, was given up by the prosecution, that F.I.R. Was recorded after due deliberation and consultation, that signatures of the doctor on the post-mortem report is dated 12-12-2002, that time between injury and death is 10 minutes, that complainant was not present at the spot, that she is a cooked up witness, that reputation of Mst.
Haleema complainant was not above board and she had eloped with Ghulam Rasool P.W.5, that presence of Ghulam Rasool P.W.5 was doubtful, that he is resident of adjacent street but according to him he left the house of the complainant, which is illogical one and that prosecution failed to prove its case against the appellant beyond any shadow of doubt.
6. Learned A.P.G. Submits that Mst. Haleema complainant is the most natural witness and she has given the evidence against her husband and that there is no question of false implication of the appellant. He supports the judgment of the learned trial Court.
7. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place in the house of Mst.
Haleema complainant on 26-11-2002 at 10-00 p.m. While the matter was reported to the police on the same day at 10-40 p.m. And the formal F.I.R. Was recorded at 11-00 p.m., the distance between place of occurrence and police station was 2 Kms., so it was a case of promptly lodged F.I.R. There are two deceased, namely, Tasleem Bibi aged about 7/8 years and Fakhra Bibi aged about 13/14 years. Both the deceased are daughters of the complainant and appellant. Appellant was arrested in this case on 13-12-2002. From the spot, rope and clothes with which the legs of both A the deceased were tied and the clothes, which were given in the mouth of both the deceased, were taken into possession. Mst. Haleema Bibi being inmates of the house is most natural witness in this case. There was no reason of false implication of the appellant. There is no question of substitution because substitution is a rare phenomenon. I have gone through the answer of the appellant in his statement recorded under section 342, Cr.P.C. In reply to question why this case against you, which is most unnatural and illogical. Ocular account in this case is fully corroborated by medical evidence.
After having heard learned counsel for the parties and going through the record I am of the considered opinion that prosecution has been successful in proving its case against the appellant beyond any shadow of doubt. Resultantly, the appeal filed by the appellant is dismissed. The conviction and sentence recorded against the appellant by the learned trial Court is maintained in toto.
' Before parting with this judgment, I may observe here that learned trial Court was wrong in convicting the appellant under section 308, P.P.C. Because that section is not applicable in this case. Unfortunately, neither the State nor the complainant has come forward to file an appeal against acquittal against the appellant under section 302(b), P.P.C. And this Court has no jurisdiction to do that so I am constrained not to interfere in the sentence of the appellant.