' IJAZ AHMAD CHAUDHRY, J.--- Muhammad Arif appellant was convicted for an offence under section 302(b), P.P.C. Read with section 7(a) of the Anti-Terrorism Act, 1997, vide judgment dated 17- 1-2003 rendered by the learned Judge Anti-Terrorism Court-I, Gujranwala and was sentenced to imprisonment for life for committing the intentional murder of his wife Mst. Rukhsana Rani deceased with direction to pay a sum of Rs,2,00,000 to the heirs of Mst. Rukhsana Rani deceased.
However, through the same judgment, co-accused namely Saeed Akhtar, Nisar Hussain and Khalid Mehmood were acquitted for the charge by extending the benefit of doubt to them. Muhammad Arif appellant has challenged his conviction and sentence before Muhammad Arif this Court through Criminal Appeal No,171-J of 2003 while Criminal Revision No,1062 of 2004 has been filed by Muhammad Younus Bhatti, complainant against Muhammad Arif appellant for enhancement of sentence and we propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. (Exh.PG) got lodged by Muhammad Younus Bhatti complainant (P.W.5) was that Mst. Rukhsana Rani daughter of the complainant was married with Muhammad Arif appellant 17 years ago. His attitude was not cordial towards her and he had been compelling her to bring money from her parents and brothers. The appellant had also restrained her to see her relatives. He used to beat her and also made her life miserable. Arif appellant in connivance with his brothers namely Khalid, Saeed and Nasir alias Shera on 21-6-2002, murdered his daughter Mst. Rukhsana Rani and thereafter buried her at 3-30 a.m. Without informing the parents of the deceased. On the following day they informed the complainant at Sialkot on telephone that they had killed Mst. Rukhsana according to their wishes and now he would do whatever he liked and they would also not even spare the complainant and his son. In fact few days before the occurrence Arif appellant had asked the complainant to arrange for 20 tolas gold on credit, but he refused. Thereafter, the appellant along with the co-accused told the complainant and his son Jamil in Ghakkar Mandi that Mst. Rukhsana Rani was a lady of bad character. The complainant and his son asked them to divorce her if she was a lady of bad character. The appellant told them with one voice that they would provide them her dead body. All the four accused had murdered his daughter Mst. Rukhsana Rani due to the non-fulfilment of demand for arranging gold on credit and on refusal of payment of money every month 4/5 days prior to the occurrence the accused has also summoned Muhammad Siddique from Lahore in their house who also saw the accused committing violence on Rukhsana Rani deceased in a barren room in the darkness. He also asked the accused to divorce her and send her to the house of her parents if she was not a lady of good character. The accused told him that they would fire at her or would cut her nose, hair and ear and would provide her dead-body. Arif appellant and others had murdered his daughter by giving her electric shocks, poison or by violence. On this application first of all a rapt was entered and after exhumation and the postmortem examination on the dead body of the deceased, a case was registered accordingly.
3. The investigation of this case was conducted by Muhammad Azam, S.-I. (P.W.9) and Muhammad Yousaf, S.-I. (P.W.10) and during the investigation, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, a rough site-plan of the place of occurrence was prepared, a formal site-plan of the place of occurrence was got prepared, the appellant and his co-accused were arrested recovery of Danda (P.1) and a pair of scissors (P.2) from the appellant's possession was effected and after completion of the investigation a challan was submitted.
4. At the commencement of the trial the learned trial Court framed a charge on 11-10-2002 under sections 302/ 34/201/109, P.P.C. Read with section 7(a) of the Anti-Terrorism Act, 1997 against the appellant and the co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as ten witnesses in support of its case. The ocular account of the incident in question was furnished by Muhammad Younas, complainant (P.W.5), Muhammad Jamil Bhatti (P.W.6), Amin Iqbal (P.W.7) and Siddique. Ahmed (P.W.8). The medical evidence was provided by Lady Dr. Nabeela Shahid, (P.W.4) while Muhammad Azam, S.-I.
(P.W.9) and Muhammad Yousaf, S.-L (P.W.10) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C., the appellant along with the accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However to a question that "Why this case against you and why P.Ws. Have deposed against you?" Muhammad Arif appellant replied in the following terms:-- ' "I have been falsely roped in this case due to dispute with my in-laws and I had informed them about the developing of the illicit relation with Hakeem Ejaz in the village one month prior to this occurrence. My wife Rukhsana Rani died due to high grade temperature. She was attended by Dr. Liaqat medical physician available in the village. The allegation of torture being the cause of death of the deceased is absolutely incorrect and concocted one My brothers reside in Ghakkhar and they had very casual visit to my house. They have no concern with my matrimonial life. The whole prosecution story is based upon concoction and result of afterthought".
' They, however, opted not to make statements on oath under section 340(2), Cr.P.C. But they produced Dr. Liaqat Ali, as D.W.1 and Muhammad Ashraf as D.W.2 in their defence.
7. Upon conclusion of the trial the learned trial Court acquitted the appellant's three co-accused but after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt it convicted and sentenced the appellant as mentioned and detailed above.
Hence the present appeal and revision petition before this Court.
8. The learned counsel for the appellant contends that there was no direct evidence against the appellant; that in-laws of the deceased were informed about the death and funeral ceremony of the deceased, who were waited for till 3-00 a,m., but in spite of that they did not turn up; that the death had occurred in the month of June and the dead body could not be kept for indefinite period due to summer season; that the prosecution had miserably failed , to prove the case against the appellant beyond any shadow of doubt; that it was a case of no evidence and the doctor had not given the definite opinion about the cause of the death; that the medical evidence did not fully support the prosecution case; that acquittal of the co-accused of the appellant by the learned trial Court had created a serious dent in the prosecution's case towards the involvement of the appellant as well; that the evidence produced in this case by the prosecution had been disbelieved by the learned trial Court to the extent of the acquitted co-accused of the appellant and, thus, the same could not be believed by the learned trial Court against the appellant in the absence of any independent corroboration. It has, thus been canvassed by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt entitling him to acquittal by this Court.
9. On the contrary, learned counsel for the complainant and the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, the convictions and sentences of the appellant recorder by the learned trial Court do not warrant any interference by this Court as the witnesses were independent and natural, who had no previous enmity, or grudge to falsely implicate him in the present case by letting off the real culprit; that the deceased was murdered in the house of the appellant and she was buried without informing the parents and other relatives that opinion of the doctor was that hyoid bone was fractured and she had met an unnatural death; that onus was heavily upon the appellant and to dislodge the same, the appellant had neither produced any witness nor entered appearance in the witness-box for making his statement under section 340(2), Cr.P.C. That the learned trial Court had not given any reason for not awarding death sentence to the appellant. Hence appeal filed by the appellant is liable to be dismissed and the revision petition filed by the complainant may be allowed and the imprisonment for life may be enhanced to a death sentence.
10. We have heard the leaned counsel for the parties at length and also gone through the record of this case with due; care and caution.
11. From the perusal of the evidence produced by the prosecution it is established on the record that daughter of the complainant namely Mst. Rukhsana Rani was married with Muhammad Arif appellant about 17 years before the incident. She had died on 21-6-2002 and she was buried at 3- 00 a.m. In the night between 21/22 June, 2002, but in the burial ceremony of Mst. Rukhsana Rani deceased, her parents and other relatives were not joined. On the other hand the appellant was present in the house at the time of her death, which had occurred in mysterious circumstances.
Later on the application moved by the complainant the dead body was disinterred. Lady Dr. Nabeela Shahid, (P.W.4) had conducted the postmortem examination on the dead body of the deceased on the orders of learned Sessions Judge and after exhumation of the dead body on 3-7- 2002. She had given the definite opinion that hyoid of the deceased was fractured and there were missing of some portions of the upper lip- and the noise of the deceased. The doctor had given the definite opinion that death was due to the violence. After perusal of the statement of the Lady Dr. Nabeela (P.W.4) we are satisfied that death of the deceased was not natural and somewhat wrong had been played with the deceased resulting in her death.
12. When it has been established that the deceased had been living in the company of the appellant in his house, who met with unnatural death and as she was buried without joining the parents and other relatives of the deceased in the funeral, then the onus was heavily shifted upon the appellant under Article 121 of the Qanun-e- Shahadat Order, 1984 to explain the circumstances under which the deceased had met with her death. The appellant in his statement recorded under section 342, Cr.P.C. Claimed that the deceased had developed illicit liaison with one Hakeem Ejaz.
So the version of the prosecution witnesses namely Muhammad Younas (P.W.5) and Muhammad Jamil Bhatti (P.W.6), father and brother of the deceased, respectively find corroboration from the stand taken by the appellant itself that the appellant had strained relations to some extent with his wife i.e,, the deceased. The doctor P.W.4 opined that "xxx it is type of as phyxial death because hyoid bone was fractured, so it due to violence." On the other hand the appellant claimed that the death of his deceased wife was natural, but he failed to produce any sufficient evidence in support of his version and dislodge the opinion of the doctor. Even the ladies who had given last 'Qhusal' to the deceased were not produced in the trial Court that there was no mark of violence on the dead body. As such we are not in agreement with the learned counsel for the appellant that missing of tip of nose and small portion of upper lip of the deceased as observed by the doctor (P.W.4) was due to eating by maggots as no such question was put to the doctor during the cross- examination. On the other hand the doctor (P.W.4) specifically opined that it was result of violence.
We are also shocked to note that the doctor during the post-mortem examination on the dead body observed that the hair on the skull were trimmed and the size was about 1 to 2 inches. The appellant also failed to explain that how the hair of his deceased wife were cut. It also leads to draw an inference that some violence had been given to the deceased lady before her death. The appellant being the husband and resident of the same house was a person, who has to be held responsible for the unnatural death of his wife, unless he proves otherwise. In the present case even the appellant had not offered to make statement on oath under section. 340(2), Cr.P.C. To explain the circumstances in which the death had occurred and put him to cross-examination by the other party to test the veracity of his version that his deceased wife had died natural death and her parents had intentionally avoided to join the funeral, which even otherwise had taken place in suspicious circumstances in the night at 3-00 a.m., without any justification. We are unable to agree with the arguments advanced by the learned counsel that the parents had intentionally not attended the funeral due to enmity with the appellant as they had no such grudge with the deceased, who was their daughter and in our society the parents and the other close relatives use to come from far-flung area to lastly see the face of the dead body. The burial of dead body of the deceased is also a strong circumstance to draw an inference that the death was not natural and the appellant was afraid that his offence might have not come into light and that is why the parents of the deceased were informed after burial of their daughter, otherwise we do not find any justification for their non-joining the funeral of their daughter.
13. Muhammad Arif appellant, however, produced two witnesses in his defence. Dr. Liaqat Ali (D.W.l) was not a qualified doctor, who only stated that few days before the incident the deceased had suffered fever and he was summoned for providing her medicine. However, on the next day son of the appellant had come to him and informed that she had died. He did not observe any mark of violence on her body. He also stated that two weeks ago, he was summoned by the appellant and the deceased had an injury on her head whereupon the bandage was made. After perusal of his statement, it is found that he was told that she had struck her head with the shade by the appellant. This D.W. Had not stated that the deceased herself had told him that her head had struck with, the shade and had received the said injury. So statement of D.W.l Dr. Liaqat Ali, could be a concoction and afterthought and no importance can be given to his statement. Even otherwise, the deceased had not died in his presence and he only stated that one day earlier the deceased had suffered with fever. His statement is of no avail to the appellant as he had not witnessed that what ' had happened with the deceased on the day of her death and only' son of the appellant had informed him about the death of the deceased.
14. Similarly, Muhammad Ashraf appeared as D.W. 2, who claimed to have close relations with the appellant and used to visit his house. He only stated that the time for burial of the deceased was fixed at 11-00 p.m., but the parents of the deceased did not come and she was buried at 3-00 a.m.
In the presence of 40 people. During the examination-in-chief he did not claim that he had informed the parents of the deceased for attending the funeral ceremony of their daughter and his statement in this regard is based on hearsay evidence that the appellant had told him that the parents of the deceased were informed. So his statement is inadmissible in evidence regarding supplying' of information to the parents of the deceased to attend the funeral ceremony. D.W.2 also did not explain that under what circumstances the deceased had died and he did not claim that he was present at the time of her death. As such statement of D.W.2 is also not sufficient to exonerate the appellant from the charge of murder of his wife. However, it has been established from the statement of D.W.2 that the deceased was buried at 3-00 a.m. In the night between 21/22nd June, 2002 without joining the parents and other relatives of the deceased in the said funeral ceremony. Even out of the children of the spouses, who could be the natural witnesses, no one was produced during the trial to prove that their mother had died natural death.
15. In view of above discussion we have no hesitation in holding that the prosecution had been able to bring home guilt to the appellant beyond any shadow of doubt for committing the murder of Mst. Rukhsana Rani deceased. Resultantly, this Criminal Appeal being devoid of any merit is dismissed and impugned judgment of conviction and sentence is maintained.
16. As far as Criminal Revision No, 1062 of 2004 filed by Muhammad Younus complainant seeking enhancement of sentence awarded to Muhammad Arif appellant is concerned, it has remained shrouded in mystery that what had happened immediately before the incident resulting into the death of the deceased due to the violence and nothing was brought on the record by the prosecution to show that under what circumstances the occurrence had taken place. Admittedly, both the appellant and the deceased had been living as spouses for the last 17/18 years and four children were bom. The possibility of commission of the occurrence at the spur of moment cannot be ruled out. We are satisfied that the sentence of imprisonment for life awarded by the learned trial Court in the peculiar circumstances of the present case will meet the ends of justice. This criminal revision being devoid of any merit is dismissed.