JUDGMENT CH. MUHAMMAD TARIQ, J.---This single judgment shall dispose of Criminal Appeal No. 442 of 2006 filed by Muhammad Shakeel, appellant-convict against his conviction and sentence as well as the Criminal Revision No.54 of 2007 filed by Shoukat Ali for enhancement of compensation as these arise out of one and the same judgment dated 1-12-2006 passed by Rana Nisar Ahmad Khan, learned Additional Sessions Judge Rawalpindi who convicted Muhammad Shakeel appellant under section 302(b), P.P.C. And sentenced him to death with direction to pay compensation of Rs.300,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in default of payment of compensation, to furthy undergo six months' R.I. Vide the Sant.
Judgment, the appellant was also convicted under section 325, P.P.C. And sentem. a to one year S.I.
2. The learned trial court has sent a Murder Reference No.12 of 2007 for confirmation of death sentence or otherwise of the appellant, which will also be answered through this judgment.
3. The facts as contained in F.I.R. No.75, dated 22-2-2006 (Exh.PA) registered at 9-40 p.m. On the complaint of Mazhar Mahmood, Manager Alhamra Hotel Murree are that on 20-2-2006, Muhammad Shakeel accused along with his were, Mst. Sobia, reached Alhamra Hotel at 10-00 p.m.
And Room No.512 was given to them after entering their particulars in the guest entry register at Serial No.670. On 22-2-2006, at about 2-30 p.m. Muhammad Shakeel accursed along with his were, Mst. Sobia came back to the hotel after outing and in his presence, Shakeel accused told the waiter Wajid that they will vacate their room at about 6-00 p.m. At about 7-00 p.m. When he inquired from waiter Wajid as to whether Room No.512 has been checked out or not, Wajid waiter replied in negative. Then he asked. Him to inquire from Room No.512. Wajid P.W. Went to Room No.512 and on his return, Wajid told lim that he has knocked at the door but none is responding from inside the said room. Then he along with Wajid P.W. Knocked the door of aforementioned room, but no response received from inside. Feeling concerned, he called the police P.P. Bazar Murree. Thereafter, he, Raja Khalil Nazim U.C. Ghora Gali, who is also president of hotel union, police and Wajid P.W.
Knocked the door of Room No.512 but none responded. Then police in their presence broken the lock' of the door and entered in the room where he saw the dead body of Mst. Sobia lying on the bed. The dead body was smeared with blood and stains of blood were present on the wall by the bed and right wrist of Mst. Sobia having cut mark injury. There was also radish mark on the left side of neck of Mst. Sobia while Muhammad Shakeel accused was lying semi-conscious on the sofa set, there was an injury on the left wrist of the accused, blood was lying on the carpet underneath his hand and blood-stained chhuri was lying near his hand.
4. After completion of investigation, the police submitted report under section 173, Cr.P.C. In the learned trial court, copies of challan as required under section 265-C, Cr.P.C. Were supplied to the accused, the charge was framed against the appellant-accused who denied the same and professed innocence. In order to prove its case, the prosecution produced as many as 13 witnesses and reports of Chemical Examiner and Serologist.
5. During the trial, Muhammad Yousaf S.-UP.W.13 deposed on oath that on 22-2-2006 at about 7-30 p.m. He received information and when he reached Alhamra Hotel Murree, he saw that Raja Khalil Nazim UC. Murree, Mazhar Mahmood Manager, Alhamra hotel and other employees of Alhamra Hotel were present outside Room No.512. In their presence, he broke open lock of Room No.512 and entered in the room. Dead body of Mst. Sobia smeared with blood was lying on the bed and accused was lying in semi-conscious condition on the sofa set and his left wrist was injured while chhuri was lying on the carpet near him. He recorded the statement of Mazhar Mahmood on the basis of which the formal F.I.R. Was recorded at Police Station. He prepared injury statement of the accused and sent him to Civil Hospital, Murree for medical treatment in escort of Nasir Mahmood 3878/C. Thereafter he drafted injury statement Exh-PL, inquest report Exh.PK and sent the dead body of Mst. Sobia for post-mortem examination in escort of Muhammad Zafar 2286/C. Then he inspected place of occurrence and during the spot inspection, he took into possession blood stained chhuri P-1, blood-stained piece of carpet P-2, blood-stained piece of gadda P-3, quilt P-4, two pillows P-5/1-2, one bed sheet P-6, one ladies chaddar P-7 (all blood-stained) and also secured articles vide P-22-46. He further deposed that due to non- availability of lady doctor, the autopsy could not be held on 22-2-2006. On his return to Police Station, he handed over above mentioned articles to moharrar malikana for safe custody. He further deposed that on 23-2-2006, Muhammad Zafar constable handed over to him one sealed parcel, one sealed bottle, one sealed envelop, last worn blood-stained clothes of deceased viz shalwar P-9, shirt P-10, breezier P-11, three golden tops P-12/1-3, two artificial tops P-12/1-2, one amulet P-14 along with post mortem report, which he took into possession vide recovery memo Exh.PM/2. Dead body of deceased was handed over to her legal heirs vide receipt Exh.PL. He further deposed that he searched the body of the accused and recovered U-Phone card, sunny plaster P-47, bunch of keys P-48, visiting card of Alhamra Hotel P-49 and Rs.120 P-15 which he took into possession vide -recovery memo. Exh. PG and then he sent the accused to hospital for medical treatment. On 28-2-2006, he got prepared scaled site plan Exh.PM. On 1-3-2006 when Shakeel accused was discharged from the hospital, the I.O. Arrested the accused Shakeel and during interrogation, he led to recovery of his shalwar P-15, kameez P-16 and bunyan P-17 (all blood-stained), which the accused was wearing at the time of the occurrence. These recoveries were secured by I.O. Vide memo Exh. PB. During the investigation, the I.O. Found the accused Shakeel guilty.
6. Ashiq Ali 2542/C appeared as P.W.4 and deposed on' oath that he went to Alhamra Hotel along with Muhammad Yousaf S.-I./P.W.13 on the day of occurrence. In his statement, he reiterated the statement of Muhammad Yousaf, S.-I./P.W.13.
7. Dr. Sadia Naeem WMO/P.W.5 conducted the autopsy on 23-2-2006 and found following injuries on the person of the deceased Mst. Sobia:-- "There was a six cm bone deep cut on anterior aspect of right wrist involving all the muscles major vessels and tendons of the wrist. There are multiple scratch 'marks on the left wrist and left forearm.
Hyoid bone is intact.
In scalp, skull and vertebrae membranes, brain and spinal card, no abnormality seen..
In thorax walls, ribs and cartilages, pleurae, larynx and tracheae, right lung, left lung, pericardium and heart, no abnormality seen. In blood vessels, the blood vessels of right writ were completely cut by the injury.
On opening the abdomen, all the organs were found healthy and normal, Uterus was. Retroverted, nully porous size, not containing any pregnancy or feotus."
The doctor opined that the death in this case has occurred due to Injury No.1 causing haemorrhage. According to her, the probable time between injury and death was more than one hour.
8. The accused Shakeel was also medically examined by Dr. Shuja Nawaz M.O./P.W.12 who found following injuries on his person: "Incised wound measuring 5 cm on medial to lateral aspect of wrist joint region with venous cut and bleeding. There was also tenderness and cut with muscle deep wound. The injury was caused with incised and sharp edged weapon."
9. Thereafter, the accused was examined under section 342, Cr.P.C. Who denied all the allegations levelled against him and while replying to question "why this case against you and why the P.Ws.
Have deposed against you", he stated as under:-- "Mst. Sobia deceased was not only my were but also my love and choice. However, despite lapse of more than one year, we were issueless. Despite medical treatment, for which I spent lot of money, she was not able to conceive and give birth to a baby. Even the doctors had declared that we cannot have any child, I therefore, had been asking her to happily agree to my second marriage but she did not agree.
Even when we were in Murree, we had detailed discussion on the subject.
On the day of the alleged occurrence, we discussed about my second marriage but the deceased was not prepared to give her consent whereupon I told her that in that case, I will have to divorce her. Upon this, the deceased picked up a chhuri, which was for cutting fruits and was lying on a table and out of frustration caused an injury on her wrist. Apprehending that the deceased might not cause more injuries on her person, I scuffled with her in order to snatch the churri from her and, in the process, I also received chhuri Injury on my wrist. I however, succeeded in snatching the chhuri. Both of us started bleeding profusely. I sat on the nearby sofa and immediately thereafter, started feeling dizzy and became semiconscious when the police came in the room, I was still semiconscious. I exclaimed as to what my were had done. I was then told by the police that my were had already expired. On arrival, the police immediately sent me for medical treatment. I later learnt that a false case under section 302, P.P.C. Was registered against me and also a case for attempt to commit suicide has been registered. My were was also my first maternal cousin. I could not even think of taking her life. Had I any such intention, I would have caused more injuries and those too, on her vital-parts. Had I any such intention, there was nothing preventing me to fell her down a hill by giving her a push. I have been involved for the murder only because I alone was with my were in the room and therefore declared responsible for her death, Even otherwise if I wanted to get rid of my were, there was nothing preventing me to divorce my were."
10. The other P.Ws. Being formal in nature need not to be discussed here.
11. After culmination of the trial, the learned trial court convicted and sentenced the appellant- convict Muhammad Shakeel as mentioned above.
12. Learned counsel for the appellant-defence contends that it is a case of suicide deceased Sobia Bibi and the accused Muhammad Shakeel were married about 1-1/2 years before the occurrence a period of one year and six months had lapsed since their marriage but despite treatment, they were issueless, so as a result of depression they decided to finish their lives. Learned counsel for the appellant-defence has commenced his argument from the perusal of Exh. PA which is a copy of F.I.R. In which it has been stated that when the door of the room was broken, Mst Sobia was lying dead on the bed smeared with blood while the accused Muhammad Shakeel was sitting on a sofa in semi-conscious position with an incised cut on his left wrist. Learned counsel has further argued that the judgment of the trial court is based on probabilities and despite the fact that all the P.Ws.
Have stated that the accused Muhammad Shakeel was in semi-conscious position but the learned trial court has ignored this evidence and has awarded capital punishment to the accused just on the basis of surmises and conjectures and without discussing the prosecution as well as the defence evidence. In this respect; learned counsel has pointed out the statement of P.W.4, P.W.8 and P.W.10. He has further contended that the alleged recovery is a fake recovery because there is no evidence in this behalf that the accused was having bag of blood-stained clothes which he had thrown in nallah passing on the southern side of the hotel where the couple had stayed. He further argued that the alleged occurrence had taken place between 2-30 p.m. To 7 p.m. And to approach the room where the couple was staying, there was reception which had to pass through to approach the said room but there is no evidence that during the time between 2-30 p.m. To 7 p.m., the accused person passed through the reception to go outside the hotel or to re-approach his room after coming from outside the hotel. He further contends that the prosecution cannot take any benefit of the alleged recoveries. He points out that there was no window on the southern side of the room where the occurrence took place from where the accused might have thrown the bloodstained clothes in nallah, therefore, it is all pre-planned by the police. Learned counsel has further contended that all other rooms were occupied and in case the accused would have attacked on his were, who was a young lady of 30 years, she could have made hue and cry to attract the people but there is no such evidence that she made hue and cry. Learned' counsel contends that no one had witnessed the occurrence and it was upon the prosecution to prove his case by cogent circumstantial evidence but the prosecution has failed to prove his case beyond any shadow of doubt, therefore, the appeal be allowed, the accused be acquitted of the charge and criminal revision be dismissed.
13. On the other hand, learned Additional Prosecutor-General Punjab assisted by learned counsel for the complainant has argued that it is the pre-planned murder, and accused after committing the murder of his were. Mst. Sobia caused an injury on his left wrist which is caused by friendly hand just to give it a shape of suicide. He points out that despite the fact that the accused has his on cell number but at the time of booking the room, the accused gave cell number of the father of the deceased Sobia, which proves mala fide on the part of the accused. He has relied on the statement of P.W.11, a waiter in the hotel who deposed that when he saw the accused, his clothes were not stained with blood. He has emphasized more on the recovery of blood-stained clothes of the accused which were recovered on the pointation of accused person and has prayed that the appeal be dismissed and capital punishment awarded to the appellant be confirmed.
14. We have anxiously considered the arguments advanced by the learned counsel for the parties as well as the learned Additional Prosecutor-General and have also gone through the evidence as well as the impugned judgment.
15. According ta the F.I.R. (Exh. PA) registered at 7-00 p.m. On 22-2-2006, the accused asked the hotel management that the couple will leave the room at 2-30 p.m. But thereafter when they did not turn up at the reception to return the key or to inform the management about the check-out, they first knocked the door repeatedly and when they did not find any response, the hotel management informed the police and got opened the door in presence of the police and Khalid Ahmed, Nazim, U.C. Ghora Gali Murree and found that Mst. Sobia was lying dead on the bed while accused was sitting on a sofa in a semi-conscious condition. This aspect has further strengthened by the statement of P.W.4 Ashiq Ali Constable of Police Station Murree who on oath in his examination-in chief states that the accused present in court was not in full senses. Again P.W.8 Muhammad Zafar Constable, deposed before the learned trial court in his examination-in-chief that Muhammad Shakeel accused was lying in injured condition on a sofa set. P.W.10 Mazhar Mahmood is the Manager of Al-Hamra Hotel Murree where the couple was stayed. While appearing as prosecution witness, he again states in his examination-in-chief that Muhammad Shakeel accused was lying in semi-conscious condition ol the sofa set and there was an injury oil the left wrist of the accused Shakeel and the blood was lying on the carpet underneath his hand. P.W.11, Wajid Ali, a waiter in the hotel, deposed that Muhammad Shakeel accused present in the court was lying in semiconscious condition on the sofa set and there was an injury on the left wrist of the accused. All the prosecution witnesses confirmed that the dead body smeared in blood was lying on the bed and the accused was on the sofa set in semi-conscious condition having an injury on his left wrist. From where the blood was oozing. Exh. On is a copy of register of hotel which shows that accused Shakeel and Mst. Sobia were living in Room No.512 and all other rooms in the hotel were fully occupied by the visitors. The contention of the prosecution that the accused has killed his were Mst. Sobia and as a result of scuffle, the accused has also suffered an injury is unbelievable, because the deceased Mst. Sobia was a young healthy lady of 30 years who could well resist the accused in case of attack on her. According to the medico-legal report neither the deceased nor the accused had received any other injury on their person nor there was any hue and cry. The deceased was lying on the bed and the bed-sheet was blooded with her blood and there was no wrinkle even on the bed sheet. Similarly, a trolley was standing near the bed where the deceased was lying. There were no sprinkles of blood around the wall or on the floor which could prove that there was a quarrel or. The deceased made a struggle for her rescue. The circumstances show that for the reason best known to the couple, they agreed to finish their lives and according to the planning, both of them simply cut their veins so that they be died without any torture. The case of the prosecution about the recovery of bloodstained clothes on the pointation of the accused is misconceived. It is fully established from the record that the room in which the couple was staying, had no window on the western side where the nallah flows, as such, the deceased was not in a position to throw the bag comprising blood-stained clothes in the nallah. It is also established from the record that while leaving the hotel, the accused used to pass through the reception but there is no evidence that on the day of occurrence, the accused person between 2-30 p.m. Till the time the door was broken passed through the reception and went out of the hotel or again during this period entered in the hotel while passing through the reception. The inquest report prepared by the Investigating Officer is again doubtful in the light of the statement of P. W. 5 Dr. Sadia Naeem who conducted the autopsy of the deceased Sobia. The relevant portion is as under:-- "It is correct that my signature on Exh.PK are affixed on the last page of inquest report which before my signatures was blank space."
16. The statement of P.W.5 Dr. Sadia Naeem confirms that the I.O. Completed the inquest report according to his on choice, after the autopsy of the deceased Mst. Sobia. Further, the prosecution has failed to take finger-print on the chhuri. P.W.5 Dr. Sadia Naeem states that the probable time between the injury and the death is more than one hour. If it is believed that it is not a case of suicide, then the deceased Mst. Sobia could have raised huge and cry and there would have been her struggle attracting other people to the place of occurrence, which does not exists in the present case.
17. The outcome of the above discussion is that it is a case of suicide where both the spouse decided to kill themselves for the reasons best known to them, wherein the husband (appellant) luckily survived but the were met to death. In the circumstances, Criminal Appeal No.442 of 2006 filed by the appellant Muhammad Shakeel is ACCEPTED, the impugned judgment dated 1-1-1-2006 passed by the learned Additional Sessions Judge, Rawalpindi is set aside and the appellant is acquitted of the charge. Capital Sentence Reference No.12 of 2007 is answered in. NEGATIVE. The appellant who is in jail will be released forthwith if not required in any other case.
18. The. Criminal Revision No.54 of 2007 filed by the complainant Shoukat Ali for enhancement of compensation is DISMISSED..