' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muzahar Hussain, Sarfraz Hussain, Gulzar Hussain all sons of Bootey Khan and Bootey Khan son of Niaz Ahmed, appellants were involved in case F.I.R. No,27 of 2004, dated 19-3-2004, offence under sections 302, 34, P.P.C.; registered at Police Station Farid Nagar, District Pakpattan Sharif. Later on Wali Muhammad complainant also filed private complaint against the accused persons. The learned trial court preferred to decide the complaint case and vide judgment dated 14-5-2005 convicted the appellants under sections 302, 436, 34, P.P.C., and sentenced them to imprisonment for life on three counts each as Tazir for committing the murder of Mst. Shehnaz Bibi sister of the complainant and/Maryam Bibi (minor), niece of the complainant with a direction to pay Rs,1,00,000 each as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. And in default whereof to further undergo six months' S.I.
Each. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants. As Bootey Khan appellant had died after filing of appeal, therefore, the instant appeal as well as criminal revision filed by the complainant have abated to his extent.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellants impugned the same through filing Criminal Appeal No,951 of 2005; whereas the complainant filed Criminal Revision No,567 of 2005 for enhancement of sentence inflicted upon the appellants from imprisonment of life to death sentence. As both the matters are arising out of the same therefore, I intend to dispose of the same through this single judgment.
3. Initially case F.I.R. No, 27 of 2004, dated 19-3-2004, offence under sections 302, 34, P.P.C., was lodged in Police Station Fareed Nagar, Pakpattan Sharif and police submitted the cancellation report. Aggrieved by the findings of police, the complainant filed private complaint.
4. Brief facts of the prosecution case are that the complainant is resident of Basti Ghous Nagar, Pakpattan Sharif and is a school teacher. The accused persons are residents of Mohalla Fareed Nagar, Pakpattan Sharif. Accused Muzahir Hussain is brother-in-law of the complainant whereas Sarfraz and Gulzar accused persons are brothers of accused Muzahir. Hussain and Bootay Khan accused is father of rest of the accused. That sister of the complainant namely Mst. Shehnaz Bibi deceased was married with Muzahir Hussain accused about 7 years ago before the occurrence and out of this wedlock three children namely (1) Mst. Sonia Bibi aged about 5 years, (2) Mst.
Maryam Bibi aged about 3 years and (3) Abid Hussain aged about 4 years were born out. That there was constant dispute between the accused and sister of the complainant because Muzahir Hussain accused was addict to liquor and was also a womanizer and the sister of the complainant forbade Muzahir Hussain accused, her husband, from his evil habits and all the accused persons after giving beatings to Mst. Shehnaz Bibi, used to expel her out of their house off and on. Accused persons had been extending threats to sister of complainant to set her at fire and sister of complainant came back to the house of her brother/complainant. The dispute was settled many times before the occurrence due to intervention of respectable of family and sister of the complainant was sent back to the house of accused. On 19-3-2004, at about 5-30 p.m., the complainant along with . Muhammad Ashraf and Javed Icibal went to see her sister at Mohallah Fareed Nagar and complainant saw that all the accused were coming out from the house of deceased sister of complainant hurriedly and house of sister of the complainant had been set on fire. The complainant found that the door of room in the house was bolted from outside and complainant heard that his sister Mst. Shehnaz Bibi was raising alarm that all the accused had set her on fire. The complainant could not reach near the room because the fire was fierce. On raising hue and cry by the complainant and the P.Ws., the people of the locality gathered there. Someone made telephone call to the Firebridge, which arrived at the spot after 15/20 minutes and the members of Firebrigade extinguished the fire within 10/15 minutes and complainant entered the room and complainant found that his sister Mst. Shehnaz Bibi and niece Maryam Bibi were burnt to death. The complainant nominated the accused persons for the murder of his sister and niece and it was further mentioned that the house-hold articles worth of Rs,50,000 were also burnt.
Accordingly the F.I.R. Was lodged. The police inspected the spot. The neighbourers and inhabitants of Mohalla verified the occurrence. The police reduced into writing the statement of the complainant, however, did not read over to him. That some days prior to the occurrence, all the accused persons went to the dera of Rana Muhammad Boota when Bashir Ahmad and Muhammad Hussain were also sitting with Rana Muhammad Boota. The accused persons asked them to make clear to Mst. Shehnaz Bibi that if she did not change her habit of defaming the accused persons, she will have to face dire consequences. This fact was brought into the notice of the police but police did not record the version of complainant because police was already in connivance with the accused party and the police also did not record the statement produced by the complainant. That the police in connivance of the accused persons and giving this occurrence of intentional murder the colour of suicide. Hence, this private complaint.
5. Muhammad Sarwar, S.-I, Investigating Officer, (C.W.1) was , present at Ketchry Road Mohalla Farid Nagar, Pakpattan when Wali Muhammad complainant met him who got recorded his statement (Exh.PI), the same was explained and read over to him who signed the same, which was sent to the police station for the registration of formal F.I.R. The Investigating Officer inspected the place of occurrence, prepared rough site plan (Exh.CW-2/A), prepared injury statement of Mst. Shahnaz Bibi deceased (Exh.PB), inquest report (Exh.PC) and prepared injury statement of Maryam Bibi (Exh.PE) and her inquest report (Exh.PF). Thereafter, the Investigating Officer got escorted the dead bodies to mortuary through Ghulam Hussain 503/C. The Investigating Officer took into possession a dari (P-1), can-plastic (P-2) through recovery memo Exh.PK and Exh.PL respectively. Cot (P-3)-, quilt (p- 4) bed-sheet (P-5) and ashes (P-6) were taken into possession through recovery memo Exh.PM.
The Investigating Officer also took into possession cot (P-7) and human hair (P-8) from the place of occurrence vide recovery memo Exh.PN. The Investigating Officer also recorded the statements of prosecution witnesses under section 161, Cr.P.C. On the pointing out of P.Ws. And on the direction of Investigating Officer Muhammad Farooq Bhatti draftsman prepared scaled site plan (Exh.CW2/B). On the directions of DPO, Pakpattan, Ghulam Qasim Niazi DSP Headquarters (C.W.3) conducted the investigation in this case and concluded that the facts of the occurrence as alleged in the F.I.R. Were not correct and also found that Mst. Shehnaz Bibi deceased committed suicide being depressed due to her longstanding ailment suffering from Hepatitis-C as well as financial worries and that she was not set on fire by the appellants. Accordingly the cancellation report was submitted in the competent Court.
6. The appellants were charge-sheeted by the learned trial court to which they pleaded not guilty and claimed trial. Evidence adduced by the prosecution was recorded. Ocular account in this case had been furnished through Wali Muhammad complainant (P.W.3) and Javed Iqbal (P.W.4), Muhammad Sarwar, S.-I., (C.W.2) and Ghulam Qasim Niazi D.S.P., Headquarters, Pakpattan (C.W.3) are the Investigating Officers of the case.
5. Lady Dr. Shamim Akhtar SWMO, DHQ, Hospital, Pakpattan (P.W.1) had conducted the postmortem examination on the dead body of Mst. Shehnaz Bibi deceased and observed as under:- "(1) Neck tissue dissection hyoid intact.
(2) Cranium and Spinal Cord scalp, skull and vertebrae Scalp already mentioned skull and vertebrae NAD. Memberances, brain and spinal cord were congested.
(3) Thorax Walls ribs and cartilages healthy, Plora, right lung left lung congested. Larynx and trachea congested and having black sooty pariicles. Both chambers of heart were full of blood.
Blood vessels NAD.
(4) Abdomen. Walls mouth, pharynx Oesophagus already mentioned. Peritoneum and Kidneys and Bladder congested. Diaphragm ancreas and small and large intestines were healthy. Liver and splean were pale. Organs of generation were healthy. Stomach healthy and contained little amount of food.
' After conducting the postmortem examination, the doctor arrived at the following conclusion:- "In, my opinion the cause of death in this case was shock and suffocation due to burn which was ante-mortem in nature and sufficient to cause death in ordinary course of nature. The burn was by fire.
' Probable time that elapsed between injury and death was within 10 minutes and the time between death and postmortem was within 12 hours.
' P.W.1 also conducted the postmortem examination on the dead body of Maryam and observed as under:--
(1) On dissection of neck hyoid bone was intact.
(2) Cranium and Spinal Cord Scalp skull and vertebrae already mentioned. Membrane, brain and spinal cord were congested.
(3) Thorax, walls ribs and cartilages already mentioned. Plurae, larynx and tracheae, right and left lungs were congested. Both chambers of heart were full of blood. Blood vessels NAD
(4) Abdomen Walls, mouth, pharynx and esophagus already mentioned. Peritoneum, Diaphragm, Pancreas, small and large intestines were NAD and Organs of generations are NAD. Stomach contained small quantity of semi digested food present. Liver was pale. Spleen and kidneys were congested. Bladder was empty."
' Statements of rest of the witnesses are formal in nature.
7.. Vide separate statement, the complainant gave up Muhammad Ashraf son of Munshi Khan P.W.
Being unnecessary. Similarly on 18- 11-2004, the complainant also gave up Bashir Ahmed son of Muhammad Ashiq, Muhammad Hussain son of Muhammad Siddique and Anwar Butt P.Ws. On account of being unnecessary. On 23-5-2008, the learned counsel for the complainant after tendering in evidence report of Chemical Examiner (Exh.PH), report of Forensic Science Laboratory (Exh.PJ) and report of Serologist (Exh.PK), closed the prosecution evidence.
8. The appellants were examined under section 342, Cr.P.C.; wherein they opted not to appear under section 340(2), Cr.P.C. As witnesses of their own to disprove the allegations levelled against them. Except Muzahir Hussain the other accused persons also opted not to produce defence evidence. In response to question why this case against him and why the P.Ws. Deposed against him, Muzahir Hussain appellant made following deposition:- "As the actual accused is Adil Nisar he was of minor age at the time of alleged occurrence. In consultation with the P.Ws. The complainant involved me my father Nisar Ahmad and my uncle Muhammad Jameel. P.Ws. Are inter se related and interested, inimical and biased, they have deposed falsely at the behest of the complainant as it was unseen occurrence. Unfortunately, they lodged false , F.I.R. Against me and my other co- accused and when it became clear that this occurrence was committed by Adil Nisar only these P.Ws. And the complainant became adamant that if they concede the investigation conclusion and findings there case would be destroyed."
' Rest of the accused persons adopted the statement of Muzahir Hussain accused/appellant.
9. The appellants after tendering in evidence copy of F.I.R. No,164 registered under section 18 Offence of Zina (Enforcement of Huddod) Ordinance VII of 1979 (Exh.DA), copy of bail petition (Exh.DB) and copy of F.I.R. No, 194 of 2004 registered under section 354, P.P.C., Police Station Shakargarh (Exh.DE), closed the defence evidence.
10. After hearing the arguments advanced by the learned counsel appearing on behalf of both sides, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt against the appellants, resulting into their conviction in the above terms.
11. Learned counsel for the appellants contends that in this case occurrence had taken place on 19- 3-2004 at 5-30 p.m, which was unseen as Mst. Shehnaz Bibi while sprinkling kerosene oil over her body as well as on her minor daughters Sonia and Maryam set them on fire. Luckily Sania succeeded to climb over the roof of her house, however, the other daughter could not do. It is contended that Mst. Shehnaz Bibi had committed suicide, however, the complainant tried to give it colour of intentional murder. It has come in evidence adduced by the DWs that Mst. Shehnaz Bibi after getting purchased kerosene oil from bazaar through Muhammad Ameer (D.W.2) had sprinkled over her body as well as on her daughters and then put on fire. Moreover, Mehr Din (D.W.1), who is next door neighbourer to the deceased had also deposed that Sania (survived daughter of the deceased) whose dress was also smeared with kerosene oil while climbing over the roof of their house had raised hue and cry that Mst. Shehnaz Bibi had put herself on fire. It is also contended that even otherwise the complainant and other witnesses were residing at a distance of 5-Km. From the place of occurrence and no plausible reason for their coming to the place of occurrence has come on record. Learned counsel further stated that as a matter of fact Mst. Shehnaz Bibi was chronic patient of Tuberculosis and Hepatitis-C, for which she remained under constant treatment and Muzahir Hussain appellant had also sold all his agricultural land in order to meet with the expenditure of the treatment, which fact was also supplemented during the course of investigation, as both the Investigating Officers had reached at the right conclusion that it was a suicide occurrence and the appellants were not involved in this case. It is also argued that the appellants had taken the same plea in their statements recorded under section 342, Cr.P.C, which also appeals to prudent mind. In the end it is argued by learned counsel for the appellants that due to being chronic patient and under the pressure of financial constraints, Mst. Shehnaz Bibi committed suicide and also put her daughter Maryam on fire, therefore, the appellants are entitled to their acquittal.
12. As against above, learned D.P.-G. Assisted by learned counsel for the complainant has vehemently opposed the contentions raised by learned counsel for the appellants. It is contended that in this case the accused/appellants took the lives of two innocent persons in a brutal manner and they are also named in the F.I.R. As well as in the complaint case. The statements of prosecution witnesses of the occular account fully involve the appellants with the commission of crime. It is also argued that the plea taken by defence regarding suicide occurrence was not substantiated during the course of trial, therefore, they are not entitled to any leniency rather their sentence is liable to be enhanced and they are entitled to full dose provided for the offence i.e, death sentence. It is also argued that the prosecution version is also supplemented by the medical evidence, which fully connects the accused/appellants with the commission of offence. It is also submitted that police being in league with the accused persons, did not investigate the case properly and also did not record the statements of the witnesses produced by the complainant who had supplemented the version of the complainant.
13. I have given my anxious consideration to the arguments, advanced by learned counsel for the appellants, learned counsel for the complainant as well as learned D.P.-G and gone through the record with their able assistance.
14. There is no denial to the fact that Mst. Shehnaz Bibi deceased was a chronic patient of Tuberculosis and Hepatitis-C and was under treatment for so many years prior to the occurrence, which is even admitted by the prosecution. So far as the statements of prosecution witnesses of the ocular account are concerned, admittedly they were residents of another village 5-Km away from the place of occurrence and they could not establish their presence at the relevant time. The statements of the prosecution witnesses are not trustworthy for so many reasons especially in the presence of stance taken by the defence that neither the appellants nor the prosecution witnesses were present at the relevant time and they were informed about the occurrence by the neighbourers and co-villagers who had attracted to the spot, when the Firebrigade had extinguished the fire, could not be rebutted by the prosecution witnesses. Moreover, they can only be termed as chance witnesses. The appellants had taken the plea that Mst. Shehnaz Bibi being chronic patient was under treatment and Muzahir Hussain appellant had also sold his agricultural land as well as buffaloes belonging to him to meet with the expenditure occurred on the treatment of Mst. Shehnaz Bibi, P.W.3 when put this plea of the defence, he did not deny the same rather showed his ignorance. Moreover, this stance of the defence was found correct during the course of investigation. As both the Investigating Officers came to only one conclusion that it was suicide committed by Mst. Shehnaz Bibi and the appellants had no concern with the occurrence. The prosecution failed to rebut this stance through substantiating cogent and confidence-inspiring evidence.
15. As far as credibility of defence witnesses is concerned, admittedly both the defence witnesses produced by the appellants were next door neighbourers of the appellants as well as of the deceased who remained consistent that Mst. Shehnaz Bibi herself got purchased kerosene oil from the bazaar through Muhammad Amir (D.W.2) and after few minutes they heard hue and cry raised by Sania, the survived daughter of Mst. Shehnaz Bibi that her mother had put herself on fire while sprinkling over kerosene oil upon her body as well as on Maryam and Sania, however, she luckily succeeded to climb over the roof. The witnesses also remained consistent that dress worn by Sonia also smeared kerosene oil. Both the defence witnesses were subjected to lengthy cross- examination but the prosecution could not shatter their testimony and failed to create any dent qua their deposition favouring the prosecution case.
16. If seen from every angle the stance taken by the appellants seems to be plausible, whereas, on the other hand, story adduced by the prosecution is full of flaws and doubts. It is established principle of law that benefit of every doubt shall go in favour of the accused! Appellants.
17. From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to substantiate its case against the appellants. Resultantly Criminal Appeal No,951 of 2005 is accepted in toto. The sentence of life imprisonment inflicted upon the appellants by the learned Additional Sessions Judge, Pakpattan Sharif vide his judgment dated 14-5-2005 is set aside as a consequence whereof Muzahir Hussain, Sarfraz Hussain and Gulzar Hussain appellants are ordered to be released forthwith if not required in any other case.
18. So far as Criminal Revision No,567 of 2005 filed by Wali Muhammad complainant for enhancement of sentence of the appellants from imprisonment for life to death sentence is concerned, for the afore stated reasons, the same is devoid of any force, which is accordingly dismissed.