Syed Shabbar Raza Rizvi, J.--Appellant Zia alias Ahmi son of Maqbool Ahmad filed the instant criminal appeal from the judgment of the learned trial Court. He was tried by the learned Sessions Judge, Pakpattan Sharif in F.I.R No 310, dated 29.9.1999, under Sections 302, 452 PPC, registered at P.S. Malkahans for committing murder of Mst. Shahnaz Bibi. After conclusion of the trial, the appellant was convicted and sentenced to death u/S. 302(b) PPC. He was directed to pay fine of Rs, 30,000/- to the legal heirs of the deceased u/S. 544-A Cr.P.C., failing which to further undergo six months SI. He was also convicted under Section 449 PPC and sentenced to 10 years RI with a fine of Rs, 20,000/-failing which to further undergo two years RI. The trial Court also submitted Murder Reference No, 167/2001 for confirmation of death sentence of the appellant. This judgment would decide both, the Criminal Appeal No, 151 of 2001 and Murder Reference No, 167/2001.
2. The prosecution case set up as per FIR Ex. PA is that Muhammad Mansha son of Sher Muhammad reported to Muhammad Aman, SI on 29.9.1999 at 10 a.m. (day) vide Rapt No, 8 that he was resident of Chhota Sardol and barber by profession. He further stated that Zia alias Ahmi son of Maqbool.
Ahmad (appellant) used to visit his house, whom the complainant forbade as he had bad intention regarding his wife, Mst. Shahnaz. A day prior to the occurrence i,e, 28.9.1999, when the complainant was not present in his house, the appellant came to his house. His wife, Mst. Shahnaz did not allow him to enter into the house. On which he went away while extending threats of murder to her. On the day of occurrence, at 8 a.m., when the complainant alongwith his brothers, Rehmat Ali, Hashim Ali and father Sher Muhammad were present in the house; the main gate was opened and his wife was washing pots at tap. Suddenly, through main gate, appellant armed with 7MM rifle broke into his house and fired four consecutive shots at Mst. Shahnaz which hit at her chest, right shoulder and left arm. Mst. Shahnaz died at the spot after receiving the fire shots. The complainant and others tried to catch the appellant who fled away alongwith rifle while extending threats to them.
3. Muhammad Aman, SI after registration of the F.I.R Ex. PA proceeded to the place of occurrence and inspected the dead body of Mst. Shahnaz. He prepared the injury statement of the deceased vide memo Ex.PG and inquest report vide memo Ex.PH. Thereafter, he handed over the dead body to Muhammad Inam, Constable for post mortem examination. Then he prepared the rough site- plan of the place of occurrence through memo Ex.PJ. He secured the blood-stained earth from the place of occurrence through memo Ex.PC. Thereafter, he recorded the statements of the PWs under Section 161 Cr.P.C. He collected four empties from the place of occurrence which were taken into possession through memo Ex.PD. After post mortem examination, Muhammad Inam, Constable produced before him last worn clothes of the deceased, a sealed Jar and a sealed envelope which he took into possession through memo Ex.PD. On 19.10.1999, the appellant was arrested and on 23.10.1999 while in police custody he led to the recovery of rifle 7MM P5 from his house, which was taken into possession through memo Ex.PF. Thereafter, the Investigating Officer recorded the statements of the PWs under Section 161 Cr.P.C., completed the investigation and submitted the challan.
4. The trial Court framed the charge on 14.11.2000 which was denied by the accused and he claimed trial. During the trial, the prosecution examined as many as 10 witnesses to prove the guilt of the accused.
5. The medical evidence was furnished by Dr. Afsheen Fatima, PW8, who on 29.9.1999 at 4.30 p.m. conducted the post mortem examination on the dead body of Mst. Shahnaz and found the following injuries:--
1. A lacerated wound 8 x 5 cm x bone deep on the left forearm on interior aspect 5 cm above the wrist joint. There was compound fracture of underline bone. The margins were smoked.
2. A lacerated wound x (1/2) cm on the left arm in the middle part on medial side. It was muscle deep with black margins.
3. A lacerated wound of 4 x 3 cm on the left chest corresponding the level with Injury No, 2.
4. A lacerated wound 3 x 1 cm on the upper outer quadrant of the right breast with smoked margins.
5. A lacerated wound 8 x 4 cm on the upper outer part of right arm exposing the bone. There was fracture of neck of humors and scapulae and the middle part of the clavicle. It was a compound fracture.
6. A lacerated wound 2 x 2 cm in the middle of the chest. It was muscle deep slightly towards left side of the chest.
7. A lacerated wound 2x1 cm on the back of chest going deep in the mid point.
8. There was fracture of 5th to 9th articulation of costospinal junctions on the left side.
9. A lacerated wound 2 x 2 cm on the right chest 3 cm from midline. There was fracture of 8th and 9th ribs on the right lateral side.
"In the opinion of the doctor, the injuries were caused by fire-arm and were anti mortem in nature.
These injuries were sufficient to cause death in ordinary course of nature and were fatal collectively. Duration between injuries and death was within few minutes, whereas between death and post mortem was within 6 to 12 hours.
6. The ocular account was furnished by complainant Muhammad Mansha, PW3 and Rehmat Ali, PW5 who were eyewitnesses of the occurrence. They supported the prosecution story as narrated in Ex.PA. Sikandar Hayat, HC was examined as PW1. He kept the sealed parcels of blood-stained earth and empty bullets in police malkhana in safe custody. Thereafter he handed over the same on 12.10.1999 to Matloob Ahmad, Constable for their onward transmission to the office of Chemical Examiner and Forensic Science Laboratory. PW2 Muhammad Inam, Constable escorted the dead body of Mst. Shahnaz for post mortem examination. He also produced before the I.O. last worn clothes of the deceased. PW4 Farooq Ahmad Bhatti Draftsman on 5.10.1999 prepared the site-plan of the place of occurrence Ex.PB and its duplicates Ex.PB/1 and Ex.PB/2. PW6 Matloob Ahmad, Constable delivered the sealed parcels of blood-stained earth and empties to the office of Chemical Examiner and Forensic Science Laboratory respectively. On 17.10.1999, two sealed parcels of tin and envelop received from Falak Sher, MHC delivered by him to the office of Chemical Examiner, Multan. PW9 Muhammad Falak Sher handed over a sealed parcel and a sealed envelope to Matloob Hussain, Constable for onward transmission to the office of Chemical Examiner. On 16.11:1999 he handed over another sealed parcel of rifle to Imam Bakhsh, HC for its transmission to the office of Forensic Science Laboratory. PW10 Imam Bakhsh, HC on 17.11.1999 delivered the sealed parcel of rifle to the office of Forensic Science Laboratory.
7. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Ex.PL, Serologist Ex.PM and that of Forensic Science Laboratory Ex.PN.
8. After close of the prosecution evidence, the statement of the appellant was recorded under Section 342 Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to Question No, 8, "why this case against you and why the PWs deposed against you", the appellant answered as under:-- "Mansha complainant is my Mueen. Myself and my family members get our hair and beard cut and shave from him. Myself and my family members visited his house for the aforementioned purpose off and on. I used to stay. at my cattle shed during the night time and used to bring the rifle from my home situated in the village Abadi of Sardool Khurd daily. I used to return to my house with rifle every morning and visited the house of the complainant to get shaved. On the day of occurrence I as usual visited the house of the complainant in order to get myself shaved. I kept the rifle outside the house of the complainant and his brother Hasham started shaving of my beard. In the meanwhile Mansha complainant came out of his house, picked up my rifle and started firing at his wife Mst. Shahnaz deceased, because he suspected her to be a lady of easy virtues and having illicit relations with different persons, who visited his house for immoral purpose. The PWs are closely related interse and are inimical towards me. I have been falsely involved in this case.
9. The trial concluded into conviction and sentence of the appellant as mentioned above.
10. We have heard the learned counsel for the appellant and the learned Deputy Prosecutor General, Punjab on behalf of the prosecution and also consulted the available record.
11. Prosecution ocular account is in form of statements of PW-3 and PW-5. PW-3 Muhammad Mansha is husband of deceased, Mst. Shahnaz, therefore, his presence at the scene of occurrence, which is his own home, seems natural, particularly, the time of occurrence is 8.00 a.m. (Morning) and at this time normally the family members are together. Moreover, PW-3 is a village barber and at this time normally receives co-villagers for hair-cut and shave. According to PW-3 the appellant used to visit his house for hair-cut etc. but during his visits he started looking at his wife with an evil eye for which he was admonished by him. One day prior to the occurrence, the appellant had gone to complainant's house in his absence and tried to take liberty with the deceased, Mst.
Shahnaz, who showed her annoyance and did not allow appellant to enter the house. Annoyance of deceased frustrated and provoked the appellant, thus, he extended threats to the deceased.
Therefore, on the eventful day, i,e, 29.09.1999, at 8.00 a.m. while the main door of the house was opened and the deceased was washing utensils at the hand-pump; the appellant while armed with 7mm rifle, entered the house and fired four shots from the rifle aiming at the deceased. The fires hit on her chest, right shoulder, left fore-arm and left arm. On receiving the fire shots, the deceased, Mst. Shahnaz fell on the ground and succumbed to injuries. PW-3 and other witnesses, present at the scence of occurrence, tried to catch the accused, however, on his raising commanding Lalkara that if any one went near to him would meet the same fate, succeeded to flee away while brandishing his rifle in the air. PW-3 left his father Sher Muhammad, Rehmat Ali PW- 5 and Hasham PW with the dead body and himself went to the Police Station. PW7 recorded his statement EX.PA. A similar account is given by PW-5. The narrations of PW-3 and PW-5 are identical on all material points, thus, there is no point to repeat the statement of PW-5.
12.In the cross-examination PW-3 further explained the occurrence as well as his position in the village. According to him, he was a "KAMI" (Barber) of village Sardool. He was married to deceased, Mst. Shahnaz and had one son and a daughter from the wedlock. Both were having a normal matrimonial life even after the occurrence he is still-working in the village as a village barber. PW- 3's brother Rehmat Ali is also working as barber of village Sardool Khurd. It was suggested to PW-3 during the course of cross-examination that the deceased had illicit relations with Nazir, Shafiq and Yaqoob Lahori, which was vehemently refuted by him. Moreover, there is no evidence on record produced by the defence in support of the above allegation or contention. Instead PW-3 and PW-5 remained consistent in their stance that the appellant had made lustful overtures towards the deceased and when failed in his effort, committed the occurrence.
13. Other witnesses also corroborated the ocular account. PW-7 Muhammad Arran SI recorded the complaint of PW-3 on 29.09.1999 Ex.PA, thereafter he visited the place of occurrence. He completed the procedure required under the law and rules i,e, the preparation of injury statement, Ex.PG and inquest report Ex.PH, etc. He handed over the dead body of the deceased Mst. Shahnaz to Muhammad Inam Constable for its autopsy. He also prepared rough site-plan Ex-PJ and recorded the statements of the eye-witnesses under Section 161 Cr.P.C. He also collected blood-stained earth from the place of occurrence and made it into a sealed parcel and took the same into possession vide recovery memo Ex.PC. He also secured 4 empties of the bullets. P4/1-4 from the spot, made them into a sealed parcel and took these into possession vide memo Ex.PD. On the same day Muhammad Inam Constable produced before him the last worn clothes of deceased, Mst. Shahnaz i.e, Shirt P1, Shalwar P2, and Dopatta P3, along with one sealed Jar and a sealed envelope. PW-7 took all the above mentioned articles into possession vide recovery memo Ex.PE. He got made scaled site-plan Ex.PB, Ex.PB/1, Ex.PB/2 from the draftsman. On 19.10.1999 he arrested the present appellant and obtained his physical remand. On 23.10.1999 the appellant got recovered in custody rifle P5 from inside his house which was taken into possession vide recovery memo Ex.PF. The recovery memo of site-plan of the place of recovery Ex.PF/1 was also made and a sketch of the rifle Ex.PF/2 was also prepared. The said articles were deposited with the Moharrar for their onward transmission to the Forensic Science Laboratory. He completed the investigation and got the accused/appellant challaned. During the course of investigation PW-7 found allegation levelled against the deceased by the defence false. According to his investigation the deceased enjoyed good reputation in the village.
14.The ocular, account also gets corroboration from the recoveries of weapon of offence, recoveries of empties from the place of occurrence, last worn clothes and blood-stained earth. The reports of Chemical Examiner, Serologist and Forensic Science Laboratory are also supportive of prosecution evidence.
15.PW-4 prepared site-plan Ex.PB which confirms the place of occurrence as stated by PW-3 & PW-5. It is important to observe that the appellant himself did not dispute death of the deceased; place of occurrence, and time of occurrence. He even did not dispute the presence of PW-3 and use of his 7mm rifle as weapon of offence. However, he gave a different version of the occurrence, thus, it is required to place both versions in juxta position and to hold which one is probable?
According to the appellant the deceased had illicit relations with 4/5 men, names of whom have already been mentioned. According to him on the fateful day when he came .to the house of PW-3 for shave, he (appellant) kept his rifle outside the house of the complainant/PW-3 and his brother Hashim started shaving his beard. In the meanwhile the complainant Mansha PW-3 came out of house, picked up the rifle and started firing at the deceased as he suspected her maintaining illicit relations with different persons.
16.We cannot believe the above story for several cogent reasons. For example, there was no reason for the appellant to leave his rifle outside the house of the complainant. He did not mention with whom he left the rifle outside the house. It is unnatural to believe that he would leave the rifle in the street unattended. Fire-arms are not left unattended like that. There was no bar for him to keep his rifle beside him while the was having shave. If the complainant had to kill the deceased for the reasons offered by the appellant why would he do that in the presence of other people, particularly, the appellant? Could not he do it during the night when none of them were present?
Likewise there is no mention of any sudden provocation which might have forced the complainant to kill his wife. Moreover, nothing has been produced on record before us or during the course of investigation to prove that the deceased was a lady of easy virtues and the complainant had a sour relationship with her. On the contrary, the record shows that the complainant and the deceased were having a normal family life with two children. As noted above the complainant belongs to a "KAMI" Bradery (Barber) of the village and the appellant belongs to land-owners Bradery, "BODLAS". Had the complainant involved the appellant falsely in this case, the BODLAS would have thrown him out of the village. But the record does not suggest that.
17.For the foregoing reasons, defence version is not probable or believable. On the other hand, the prosecution version, for the reasons enumerated in the preceding paras is probable and trustworthy. Thus, we agree with the conclusion of the learned trial Court. Resultantly, we dismiss Cr1. Appeal No, 151 of 2001.
18.In view of the above, Murder Reference No 167 of 2001 is answered in the affirmative.