MAZHAR IQBAL SIDHU, J. --This judgment will dispose of above-captioned criminal appeals filed by Abdul Rasheed as well as above captioned Murder Reference for confirmation of his death sentence or otherwise being emanated from same impugned judgment, who was convicted and sentenced by learned Additional Sessions Judge, Bahawalpur in case vide F.I.R. No. 213, dated 30.42008 under Sections 302(b), P.P.C. Registered at Police Station Khairpur Tamewali, District Bahawalpur vide impugned judgment dated 31.12.2008. Following conviction and sentence was imposed on the appellant:- ABDUR RASHEED APPELLANT: Death sentence under Section 302(b), P.P.C. As Tazir and to pay Rs. 50,000/- as compensation to the legal heirs of deceased Mst. Hasina Bibi under Section 544- A of Cr.P.C. Or in default thereof to further undergo S.I. For a period of six months.
2. The facts in brief! As disclosed by complainant Ahmad Din (PW-4) in F.I.R. (Ex.PH) are that he is resident of Basti Azhar Abad Mauza Israni. About four years ago, his daughter Mst. Hasina Bibi (deceased) was married with Abdur Rasheed alias Sheeda appellant, who was addict, sold the ornaments and the dowry articles of Mst. Hasina Bibi due to which the relations between the spouses became strained. About VA years before the murder Mst. Hasina Bibi (deceased) left the house of appellant and came to her parents house at Mauza Israni after quarrelling with Abdur Rasheed appellant. On 30.4.2008 the complainant alongwith his family went to the field for cutting the wheat crop, leaving behind Mst. Hasina Bibi in the house for cooking: At about 09.00 a.m. The complainant came to his house in order to fetch water when he reached near his house, he heard outcry of Mst. Hasina Bibi coming from his house whereupon the complainant, his neighbours Zafar Iqbal and Peer Bakhsh also came out from their houses and they all rushed towards the house of the complainant and saw that Abdur Rasheed appellant was causing injuries to Mst. Hasina Bibi (deceased) with Toki, who raised Lalkara and by extending threats of dire consequences to them, fled away from the spot. They attended Mst. Hasina Bibi who was lying there in pool of blood. They took her in a car to the Civil Hospital, Khairpur Tamewali but she succumbed to the injuries on the way. Hence the case.
3. After receipt of information about the occurrence, Ghulam Murtaza S.I./I.I. (PW.8) took up the investigation of this case. He prepared injury statement Ex.PC of Mst. Hasina Bibi deceased. He also prepared inquest report Ex.PB. He handed over the dead-body of Mst. Hasina Bibi deceased to Nasir, Constable for post-mortem examination upon it. Thereafter, he reached the place of occurrence and prepared visual site plan of place of occurrence Ex.PJ. He also secured blood- stained earth from the spot, made it into a sealed parcel and took into possession vide memo.
Ex.PF which was attested by the PWs. He recorded statements of the PWs under Section 161, Cr.P.C.
Then he came back to Police Station Khairpur Tamewali where Constable Nasir Iqbal No. 826/C produced before him last worn clothes of deceased Mst. Hasina Bibi i. e. Qamiz P-1, Shalwar P-2, and Dupatta P-3 all stained with blood which he took into possession vide memo. Ex.PE attested by the PWs. He recorded statements of the PWs under Section 161, Cr.P.C. On 5.5.2008 he arrested appellant Abdur Rasheed. On 7.5.2008 appellant while in police custody after the disclosure, led to the recovery of weapon of offence Toki P-4, from his residential room lying under the bedding (sister) on the cot, the same was made into a sealed parcel and took into possession vide memo Ex.PG, attested by the PWs. He prepared visual site plan of the place of recovery of Toki Ex.PK, also signed by him. He recorded the statements of the PWs under Section 161 Cr.P.C. Then he came back to the Police Station and handed over the case property to the Moharrir. On 12.5.2008 he got prepared scaled site plan Ex.PL and Ex.PL/1 from Mehboob Ahmad PW on which marginal notes with red ink were in his hand and bore his signature. He recorded statement of Mahboob Ahmad under Section 161, Cr.P.G. After completing the investigation, he handed over the file of this case to the S.H.O. Who submitted the challan against the appellant to face the trial.
3. Learned Trial Court after observing all the pretrial codal formalities, indicted the appellant to which he did not plead guilty and claimed trial. Thereafter, the prosecution was asked to lead evidence in order to prove its case.
4. At the trial, prosecution, in order to prove its case produced 10 witnesses in all.
The medical evidence was adduced through the statement of Lady Dr. Shahida Fatima (PW.3) who conducted post-mortem examination on the dead-body of Mst. Hasina Mai on 30.4.2008 at 10.15 a.m. And observed as under:- INJURIES:
(i) A sharp-edge wound measuring 11 cm x VA cm on the left side of the neck, going upwards and behind the left year in oblique direction, injuring the skin subcutaneous tissues, muscles, vessels on the left side of the neck, exposing the underlying bone.
(ii) A sharp-edge wound measuring 07 cm x 02 cm on the back of middle of neck injuring the skin, sub cutaneous tissues, muscles and exposing the underlying vertebrae.
(iii) A sharp-edge wound measuring 6 1/2 cm on the back in the meddle in oblique direction just below the neck fracturing the underlying thorasic vertebrae (second), also injuring the spinal cord.
(iv) An abrasion measuring 6 cm on the back of left fore-arm above the wrist joint and also an abrasion on the meddle side of the fore arm.
(Remarks)
In her opinion, the injuries were caused by the sharp- edge weapon which injured this major blood vessels on the left side of the neck, also vertebral column and spinal cord on the body in turn caused severe haemorrhage and shock were sufficient to cause death within few minutes in ordinary course of life. All the injuries were ante mortem in nature. Probable time that elapsed between the injuries and the death was within 15 minutes and between the death and the post- mortem was within 02 to 04 hours. Ex.PA is the correct carbon copy of her original post-mortem report which bore her signature. Ex.PA/1 and Ex.PA/II are the diagrams, which bore her signature.
Ex.PB inquest report and Ex.PC injury statement also bore her signatures.
After the post-mortem examination, dead-body alongwith last worn clothes and post-mortem report alongwith police papers, two sealed bottles and two sealed envelops were handed over to Nasir Iqbal No. 826/C by the said doctor.
Learned D.P.P. Renounced PWs namely Mukhtiar Hussain and Muhammad Bashir as being unnecessary, thereafter; he by tendering in evidence reports of Serologist Ex.PP & Ex.PQ closed the prosecution case. Then the statement of the appellant was recorded under Section 342, Cr.P.C.
Wherein he negated the charge and professed his innocence and declined to make statement under Section 340(2), Cr.P.C. As defence evidence. However, after conclusion of the trial, appellant was convicted and sentenced as mentioned above by the learned Trial Court.
5. In support of this appeal, learned counsel for the appellant has argued that the appellant has been involved falsely in this case because of family disputes and in fact nobody saw the incident as the occurrence took place in the house of the complainant. It has further been argued that the deceased who was wife of the appellant was in fact not a woman of good character and on the day of occurrence she was seen in an objectionable position by the complainant, her father who picked up Toki from his house and committed her murder, after due deliberation and consultation, appellant has falsely been involved in this case. Learned counsel for the appellant has further argued that the recovery of Toki has been falsely planted upon the appellant in order to strengthen the prosecution case and it has been lastly prayed for the acquittal of the appellant.
6. Learned D.P.G. Has opposed the appeal on the ground that appellant has been nominated in the F.I.R. He is the sole perpetrator of the commission of the murder of Mst. Hasina Bibi his wife and it is absolutely not a case Of substitution. It has further been argued that the appellant has failed to establish, prosecution case to be doubtful and also failed to establish his innocence in this case. He has lastly argued that plea put forth by the appellant that deceased was murdered by her own father does not appeal to reasons, therefore, in such-like cases exemplary punishment is required to be imposed upon the culprits and it has been prayed for the dismissal of appeal.
7. We have heard pro and contra arguments of the Respective learned counsel and have also gone through the record. Occurrence took place in this case on 30.4.2008 at about 09.00 a.m. In the house of the complainant Ahmad Din, examined as PW-4 and in an injured condition deceased Mst. Hasina Bibi was taken to Civil Hospital, Khairpur where she succumbed to her injuries. On reaching of police at Civil Hospital, Khairpur: Tamwali, there an application Ex.PO was presented by the complainant for registration of the case at 10.20 a m., the same was sent to the Police Station through Asghar Ali, Constable by Ghulam Murtaza, s.I PW-8 and the formal F.I.R. Was recorded by Taufeeque Hassan, s.I. PW-7 at 10.35 a.m. The distance between the place of occurrence and the police station is about 141/4 K.M. In these sequence of the facts we have inferred the conclusion that the F.I.R. Has been lodged by the complainant without any loss of time, therefore, the same is taken as a valued document in the prosecution case. So far as motive of this case is concerned it is never denied by the defence during the cross-examination that Mst. Hasina Bibi was not deserted by the appellant on the ground that he being addicted sold out dowry articles of the deceased ultimately she started living in the house of her parents i.e. The complainant but one thing has been found by us there is nothing on the record that the appellant ever involved in any case of narcotic. Therefore, the motive in this case has appeared not to be so strong but somewhat is weak in the circumstances of the case in the light of the prosecution evidence. It's prosecution own case that the deceased was all alone in the house of occurrence where allegedly appellant came and started causing injuries with Toki on the body of the deceased who raised pandemonium attracted to the PWs, on seeing them the appellant left the place of occurrence alongwith Toki. Deceased being injured was carried to Hospital where she succumbed to the injuries. Although the natural conduct and behaviour of the PWs has to be taken into consideration which they have observed during the commission of crime towards the same whether the PWs in the circumstances of the case attempted to rescue the deceased or tried to catch hold of the culprit but it is not always taken into consideration that whenever PW does not do so as mentioned above implying that PWs not present or he did not see the occurrence. It differs from man to man. Despite the fact PWs did not try to apprehend the appellant but it does not mean that they did not see the occurrence. It has also been found from the file that the complainant party had no enmity in the vicinity where the occurrence had taken place, to observe that some other might have committed the occurrence, therefore, we believe the statements of the eye-witnesses in this case and the version put forth by the appellant during the trial and in his statement recorded under Section 342, Cr.P.C.
While answering to a question why this case was against you and why the PWs have deposed against you it does not appeal to reasons that at the time of occurrence she was found in an objectionable position with a man whereupon father of the deceased i.e. Abdur Rasheed alias Sheeda, PW had committed her murder by causing Toki blows on the deceased, therefore, the same is annulled and is disbelieved. So far as recovery of the Toki is concerned, appellant was arrested in this case on 5.5.2008 and when he was in police custody on 7.5.2008, got recovered Toki PI by his own pointing out the place. The same was taken into possession vide memo. EX.PG and was sent in sealed parcel to the office of the Chemical Examiner, Lahore. As per report of the Chemical Examiner Ex.PN and Serologist Ex.PQ human blood was found to be present on it. The same piece of evidence corroborates the prosecution version. One fact which has persuaded us with reference to the quantum of sentence may be imposed upon the appellant, i.e. On the day of occurrence complainant and his enmates went to the fields before the occurrence for harvesting the wheat crop whereas the deceased Mst. Hasina Bibi was all alone present in the house of occurrence busy in preparing food for the complainant and house in order to fetch water at about 9.00 a.m. And while reaching near his house, heard outcry, he alongwith PW Zafar Iqbal examined as PW-5 and Mukhtar Hussain (not produced) entered in the house and saw the appellant causing injuries on Mst. Hasina Bibi with Toki. How much time, earlier after leaving the house by the complainant and his family members the appellant came there. What happened immediate before the occurrence and before causing the injuries in between the deceased as well as the appellant or what were the factors upon which the appellant started causing injuries to the deceased remain shrouded in mystery to the effect that whether inception of the occurrence was made by the appellant or hoodoo was invited by the deceased, therefore, this factor alone has persuaded us to refrain from sustaining the capital punishment of the appellant. Hence, in these circumstances we have come to the conclusion that prosecution has fully proved its case against the appellant but in view of the circumstance mentioned above while dismissing the appeal of the appellant commuted his sentence of death to imprisonment for life. Appellant is directed to have benefit of the period of incarceration, which has so far been undergone by him, and the Jail Authorities are directed to count the said period towards his substantive sentence as envisaged under Section 382-B, Cr.P.C. The amount of compensation shall remain the same including the quantum of sentence in payment of its default.
8. With this modification, the instant appeal is dismissed. However, the answer of Murder Reference replied in the negative.
9. As far as Criminal Appeal No. 14-J of 2009 filed through Superintendent Jail is concerned, the same has become redundant and is disposed of accordingly.
9: Case property shall be disposed of in accordance with law but after the afflux of period of appeal, if. Any. The record of the Trial Court shall be remitted immediately. Sentence reduced.