' SHAHID HAMEED DAR, J.---The appellant Muhammad Munir has been convicted by the learned Addl. Sessions Judge, Jhelum vide judgment dated 31-3-2007, on a charge of murder of Mst.
Munawar Bibi. The appellant was sentenced as under:-- ' Under section 302(b), P.P.C.
' Death with order to pay Rs,1,00,000 as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C, in default thereof to undergo six months' S.I.
2. The convict has filed Criminal Appeal No,216 of 2007 against his conviction/sentence, besides, there is a usual reference under section 374, Cr.P.C. For the confirmation of the sentence of death, transmitted by the learned trial Court. This judgment will dispose of the above said appeal and the reference.
3. The crime is said to have been committed at 11-00 a.m on 27-5-2006, in the area of village Mianibala, situated within the jurisdiction of Police Station, Sohawa, District Jhelum, which is at a distance of 7 kilometers from the place of the incident.
4. The facts culminating in this incident were that Muhammad Aslam complainant (P.W.6) resided in village Sargaddhan along with his brothers and sisters; his sister Mst. Munawwar Bibi (deceased) was married with Muhammad Munir (appellant), a resident of Changhar Mohallah Barker Road, Gujjar Khan; three daughters and two sons had been born out of the said wedlock; Mst. Munawwar Bibi, due to estrangement of relationship with her husband, had been living with the complainant for one year as she had been kicked out of his house by the appellant; she used to sell pottery to feed her children; the complainant also sold the earthenware by moving from place to place who along with his maternal cousin (mamoonzad) Akbar Ali, P.W.5 reached Mianibala at about 11-00 a.m on 27-5-2006 while selling the clay pots where they found Muhammad Munir (appellant) quarreling with his wife Munawwar Bibi who, within their view, pulled out a chhuri from the fold of his Shalwar and clubbed it into her abdomen as a result of which, she fell onto the ground; Muhammad Munir fled away, brandishing his weapon; the complainant and Akbar. Ali shifted Munawwar Bibi in injured condition to Civil Hospital where she succumbed to the injuries.
5. The immediate motive of the occurrence pertained to the familial differences between the appellant and the deceased lady.
6. According to Noor Muhammad Inspector/Investigating Officer P.W.8, he along with fellow police officials, on learning about the incident, reached THQ Hospital Sohawa where Muhammad Aslam complainant (P.W.6) appeared before him at 1-30 p.m on 27-5-2006 and got recorded his complaint Exh.PE qua the above said incident. He after recording the statement, Exh.PE, sent the same to the Police Station Sohawa for registration of formal F.I.R. (Exh.PE/1.). Thereafter, he examined the dead body of the deceased lying in the mortuary prepared the injury statement Exh.PB, inquest report Exh.PB/1 and handed over the dead-body of the deceased lady to Azmat Ullah 581/C P.W.9 for postmortem examination. He then, left for the place of occurrence, inspected it, collected blood-stained earth therefrom vide memo Exh.PD and prepared visual site plan of the spot. He took into possession last worn blood stained clothes of the deceased vide memo Exh.PG.
He got prepared the site plan in duplicate Exh.PC and Exh.PC/1 by Akhtar Naqqash, draftsman, P.W.2 in the scale of 1 inch equal to 20 feet. He arrested the appellant-accused on 5-6-2006 who, pursuant to his disclosure, led to the recovery of chhurri P-1 on 7-6-2006 vide memo of recovery Exh.PF, attested by Muhammad Aslam (P.W.6) and Muhammad Gulzar P.W. (not produced). The I.O.
Completed the investigation and challaned the accused on 13-6-2006.
7. The dead-body of Mst. Munawwar Bibi deceased was shifted to DHQ Hospital Jhelum, where Dr. Mahjabeen Asjad D.M.S. P.W.1 conducted its postmortem examination at 1-30 a.m on 28-5-2006, vide postmortem examination report Exh.PA (pictorial diagrams Exh.PA/1 and Exh.PA/2) and found following injury on the dead-body:- ' A large wound on anterior abdominal wall with gut protruding out of the wound.
' The cause of death, as recorded by the Medical Officer, was due to haemorrhage and shock caused by the above said injury which had badly damaged the abdominal wall, the intestines, diaphragm, stomach, liver and the left kidney. The above said injury was ante mortem and caused by a sharp-edged weapon.
' The probable time, elapsed between injury and death was worked out by the Medical Officer as 'instantaneous' and between death and post-mortem examination within 24 hours.
8. In his statement under section 342 Cr.P.C., the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence, while responding to the question, as to why this case against him and why the P.Ws had deposed against him, in the following words:- "The complainant has personal grudge with me and due to that reason he has falsely involved me in this case. I have two minor sons and three minor daughters. The P.Ws are relative of the complainant and they have deposed against me at the asking of the complainant."
' No evidence was called in defence by the appellant.
9. Muhammad Aslam complainant P.W.6 is the real brother of the deceased. Akbar Ali, P.W.5 is the real maternal cousin of Muhammad Aslam complainant. Obviously these P.Ws. Are the close relations of the deceased.
10. Muhammad Aslam complainant, P.W.6 submits in his testimony that he along with his sister Mst.
Munawwar Bibi (deceased) went to village Mianibala to sell pottery. She entered Abadi Deh whereas, he visited the adjoining areas to sell his clay pots and in this process he came across Akbar Ali P.W.5 who too had the same means of living. Both of them decided to see Munawwar Bibi and reached near the shrine of Miran Shah where they witnessed Muhammad Munir, appellant, engaged in a brawl with Munawwar Bibi, who, all at once pulled out a chhuri from the fold of his shalwar and stabbed her on the abdomen due to which she was flattened to the ground in a bad injured condition. The assailant/appellant took to his heels, brandishing his weapon. The unfortunate lady was shifted to the hospital but en-route, she succumbed to the injuries. The motive qua the occurrence was that Munir Ahmad appellant was the husband of Munawwar Bibi, deceased, who treated her inhumanly so she having deserted him, was putting up with her brother Muhammad Aslam complainant, P.W.6, for almost a year prior to the occurrence. The appellant- accused committed the murder of his wife due to family feud. To the similar effect, is the evidence of Akbar Ali, P.W.S.
11. The learned Additional Sessions Judge, Jhelum examined the evidence of the prosecution witnesses and found their testimonies reliable and creditworthy as to the incident and took the view that they had witnessed the occurrence being present at the relevant time.
12. We have examined the eye-witness account with required degree of care and caution.
13. So far as the main story of the occurrence goes the evidence of P.W.5 and P.W.6 is consistent and of uniform character. There is nothing in their cross-examination to show as to why their evidence should be discarded nor any particular reason has been shown on the record as to why the witnesses of ocular account would render false evidence against the appellant. The alleged occurrence took place at about 11-00 a.m on 27-5-2006 at a place, in the proximity of the shrine of Miran Shah situated in village Mianibala where, Muhammad Munir appellant was found wrangling with his wife Mst. Munawwar Bibi, who due to maltreatment of her husband, had to leave his house about a year earlier than the day of the occurrence and she ever-since, had been residing along with her children in the same house where her brother Muhammad Aslam, complainant resided.
She instead of sitting idle, adopted the same means, like that of her brother, to earn livelihood for her children. She would carry the earthen pottery every day and move through different villages to sell her commodities to the villagers and this is how she was bringing up her children. Her brother Muhammad Aslam, P.W.6 and her maternal cousin. Akbar Ali P.W.5 also earned their bread and butter the same way. There is nothing unusual when it is contended by P.W.5 and P.W.6, the witnesses of ocular account that they met each other in the area of village Mianibala where Mst.
Munawwar Bibi deceased was also present for selling her wares. Muhammad Munir appellant- accused was obviously well aware of the business of his deserted wife so it was not difficult for him to find her out in any of the villages, she moved through, in her daily routine. The appellant did not treat the ill-fated lady humanly nor he showed any signs in the last one year, prior to the occurrence, that he had mended himself or that he was prepared to take his wife and children to his house. Instead, he chased her like a blood hound, being armed with a lethal weapon and disposed her of callously on the day of the occurrence. The way he clubbed his sharp edged weapon in the abdomen of the poor lady, shows his predetermined mind, as the force used by him for infliction of the terminal injury on the body of the deceased, damaged a number of internal viscerae, including stomach, intestines, liver and left kidney etc.
14. The presence of Muhammad Aslam P.W.6 and that of Akbar Ali P.W.5 at the place of occurrence, at the relevant time stands proven and they have established themselves to be the natural eyewitnesses of the occurrence. They had every purpose to be present at the place of occurrence when Muhammad Munir appellant committed the damned act. Why would the witnesses of ocular account substitute the appellant-accused for some other accused and the argument raised by the learned counsel for the appellant in this context is absolutely unfounded and A baseless. The substitution of an accused is a rare phenomena as it does not appeal to reason as to why one would let the actual assailant get scot-free to falsely implicate an innocent person. There has not been an iota of evidence that there was an element of grudge, grouse or enmity between the appellant and the witnesses of ocular account.
15. The contention of the appellant that he had two minor sons and three minor daughters looks queer as the children had been living with the deceased lady who being their mother had been running from pillar to post to feed them, as is evident from complaint Exh.PE wherein this fact has been categorically mentioned by Muhammad Aslam complainant. The appellant-accused strangely, did not utter even a single word in his statement under section 342 Cr.P.C., as to who had committed the murder of his wife and recorded an evasive answer without any element of rationality.
16. The cross-examination by the defence, on both the P. Ws. Could not shatter the intrinsic value of their testimonies and both of them confidently recorded their statements by corroborating each other on almost every material aspect of the case. We do not find any material discrepancy or contradiction or dishonest improvement in the eyewitness account. The line of cross-examination adopted by the defence appears to be wavering, indecisive and unfocused, while grilling P.W.5 and P.W.6.
17. The motive alleged in this case stands more than proven as no other rivalry or hostility existed between the appellant and the deceased except that of the familial dispute. The appellant failed to furnish any explanation in his statement under section 342 Cr.P.C. In respect of his being negligent and oppressor to his wife. The matter was reported to the police with utmost promptitude by the complainant P.W.6 at 1-30 p.m at THQ, Hospital Sohawa where Noor Muhammad Inspector (formerly an S.I.), P.W.8 recorded the complaint Exh.PE. The evidence of recovery of a blood stained chhuri P-1 got recovered by the appellant on 7-6-2006 through recovery memo Exh.PF, supported by positive reports of Chemical Examiner, Exh.PK and that of the Serologist Exh.PK/1 is also a strong corroboratory circumstance to the prosecution's case. The medical evidence, rendered by Dr.Mahjabeen Asjad, D.M.S, DHQ Hospital, Jhelum who performed autopsy on the dead body of the deceased at 1-30 a.m on 28-5-2006 vide postmortem examination report Exh.PA, with pictorial diagrams Exh.PA/1 and Exh.PA/2, lends complete corroboration to the ocular account. In the circumstances we confirm the conviction of the appellant, as recorded by the learned trial Court.
18. Learned counsel for the appellant has seriously challenged the conviction of the appellant but at the same moment has stoutly urged for the reduction of the sentence of Muhammad Munir appellant. He argued that the prosecution had setup a specific motive in aforementioned terms but badly failed to establish the same through any cogent or plausible evidence. Adds that the non-establishment of motive would give rise to an extenuating circumstance in favour of the appellant and the failure on the part of the prosecution, in this regard, shall cause him face its consequences. Besides, learned counsel has also argued that the appellant-accused is the father of five minor children and the sentence of the capital punishment would be harsh and excessive as the children of the deceased lady would be left unattended and not to be taken care of if the sentence of the appellant is not commuted to a lesser penalty. We are afraid that both the objections raised by learned counsel for the appellant are superfluous and untenable as the motive, set up by the prosecution, stands more than proven for the reasons recorded hereinbefore.
So far as the latter plea of the appellant that his children would be left alone is again without any merit and substance. In the lifetime of Mst. Munawwar Bibi deceased he hardly cared for his minor children and the deceased lady bore the brunt of the hardships of life alone and roamed into the streets of different villages to feed her minor children. The appellant has not hinted at even a singular circumstance whereby he could prove that he had been looking after his minor children or he had been providing them the maintenance in any manner. The plea of being the father of the surviving children was always available to the appellant, in the lifetime of his better half but having brutally murdered her, he has lost this very argument and thus cannot be extended any premium thereof. We do not find any mitigation or extenuation in favour of the appellant-accused, hence, his plea for reduction in the sentence of capital punishment is repelled and rejected.
19. In this view of the matter and in the circumstances mentioned hereinbefore we uphold and confirm the conviction and sentence of the appellant accused as recorded by the learned trial Court in the impugned judgment. Resultantly, the appeal (Criminal Appeal No,216 of 2007) filed by Muhammad Munir appellant is dismissed.
20. The Murder Reference No,353 of 2007 is answered in the affirmative.