JUDGMENT IJAZ AHMED CHAUDHRY, J.--Sarmad Mehmood Ahmad son of Hidayat Shah was tried by the learned Additional Sessions Judge, Jhang, in case F.I.R. No.58 dated 1-3-2006, registered under section 302/201, P.P.C. At Police Station 18-Hazari Teshil and District Jhang for the murder of his were Mst. Zubaida Bibi, who vide his judgment dated 23-6-2007 convicted him under section 302(b), P.P.C. And sentenced him to death with direction to pay Rs. 2,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Recoverable as arrears of land revenue.
He was also convicted under section 201, P.P.C. And sentence to seven years' R.I. With a fine of Rs.50,000 in default whereof to further undergo six months' S.I. The appellant has challenged his conviction by filing Criminal Appeal No.1115 of 2007 whereas the learned trial Court has sent Murder Reference No.379 of 2007. Both these maters are being disposed of through this single judgment.
2. Briefly the prosecution, case is that Taj Muhammad complainant (P.W.8) on 1-3-2006 at about 8- 00 a.m. Got recorded his statement Ex. PA on the basis of which F.I.R. Exh.PA/1 was registered on the same day at about 9-30 a.m. Alleging therein that he is resident of Mianwali and labourer by profession. His sister Mst. Zubaida Bibi (deceased) was married two and a half years ago with the accused who was posted as SMO at RHC Kot Shakar. Sarmad Mehmood Ahmad had already two wives, namely, Mst. Faheem Bibi and Mst. Anees Bibi who are also alive. From Mst. Anees Bibi he has one son and a daughter who are alive while from Mst. Faheem Bibi there is no issue. Mst. Anees Bibi was residing in the adjacent residential quarter along with her children while sister of complainant Mst. Zubaida Bibi was residing along with Dr. Sarmad Mahmood accused in a separate Government residence. In the previous evening the complainant along with Muhammad Javed son of Muhammad Chandoo Khan resident of House No.5-3 Superintendents Quarters Canal Colony Sargodha, his brother-in-law and Mst. Khadija Bibi his mother came to see his sister Mst. Zubaida Bibi at RHC Kot Shakar. In the evening time after having meal and conversation, he along with Muhammad Javed his brother-in-law and Mst. Khadija Bibi his mother slept on the cots in the courtyard of the residence while Mst. Zubaida Bibi his sister and Dr. Sarmad Mahmood his brother- in-law slept in a bed room. At about 6-30 a.m. Suddenly they heard shrieks from inside the room which awoke all of them. Window of the residential room of his sister was open from which all of them peeped in and in their view Dr. Sarmad Mahmood accused made a fire shot with .12 bore gun on his sister Mst. Zubaida Bibi who was lying on the bed and pellets landed on the different parts of her body resulting into her immediate death. Thereafter the accused with a Toka chopped of her two legs from knee joint. They rushed towards the other door but that was also bolted from inside.
Dr. Sarmad accused dragged her sister towards the kitchen and in their view put her on the stove along with blood-stained clothes, mattress, bed sheet and dead body of Zubaida Bibi was put on fire. They tried to save her and to apprehend the accused who came out from the kitchen towards them and pointed .12 bore gun towards them and raised lalkara that if anybody will come near, he shall be done to death. Due to the fear of life they did not come near to him and in this view Mst.
Zubaida had burnt. The accused decamped from the spot along with rifle. On their hue and cry from the neighborhood several male and female came at the spot and while entering through the door and spraying the water extinguished the fire. The motive for the occurrence is that few days before the occurrence Mst. Zubaida had demanded Rs.15000 from the accused for participation in a nikah ceremony which was refused by the accused and in the morning hot words were exchanged between husband and were on the aforesaid issue and due to this grudge accused committed the murder of Mst. Zubaida Bibi and while chopping of her legs tried to cause disappearance of evidence to screen the offence and also set on fire dead body of Mst. Zubaida Bibi and bed sheet etc.
3. After usual investigation report under section 173, Cr.P.C. Was submitted by the police before the learned trial Court finding the accused guilty where he was charge-sheeted to which he did not plead guilty and the prosecution in order of prove its case and bring home guilt of the accused appellant produced as many as 11 witnesses out of whom Ali Raza A.S.-I. (P.W.1) recorded formal F.I.R. Exh.PA/1 on the basis of complaint Ehx.P.A. Ghulam Akbar A.S.-I. (P.W.2) deposed about the safe custody of four sealed parcels containing blood-stained earth, burnt hairs, crime empty and ashes, one sealed parcel of .12 bore gun and one sealed parcel of Toka in the malikana of the Police Station. Dr. Zubaida Akhtar P.W.3 conducted postmortem examination on the dead body of the deceased and found two fire-arm injuries (one entrance and one exit wound) on the person of the deceased and also found that left and right legs of the deceased were amputated at knee joint by multiple cuts. According to the doctor death was caused due to hemorrhage and shock and injury to vital organ resulting from Injury Nos.1-A, 2 and 3 which were sufficient to cause death in the ordinary course of nature and were ante mortem in nature. Injury No. 1 was caused by firearm weapon and Injuries Nos.2 and 3 by sharp-edged weapon. The time between injuries and death was immediate and between death and post mortem examination was within 24 hours. She proved post mortem report Exh.PB and also endorsed Exh.PC and Ex.PD which are injury statement and inquest report. Jan Muhammad Draftsman P.W.5 prepared site plans of the place of occurrence Exh.PF and Exh.PF/1 Muhammad Hayat P.W.6 witnessed the recovery of blood-stained earth vide memo Exh.PB, empty cartridge of .12 bore gun, burnt hair of Zubaida, ashes, bed, gas stove and cylinder vide separate recovery memos Exh. PM, Exh.PJ, Exh . PK, Exh. PL Exh.PN.
Muhammad Suleman P.W.7 is another witness of the aforesaid recovery memos. Taj Muhammad complainant appeared as P.W.8 and reiterated the contents of the F.I.R. Whereas his statement was corroborated by Muhammad Javed P.W.9. Ahsan Nawaz S.-I. Appeared as P.W.10 and deposed that on 1-3-2006 on receipt of information about the occurrence visited the place of occurrence at RHC Kot Shakar where Zameer-ul-Hassan constable produced before him documents whereafter he started investigation and inspected the spot, recorded statements of P. Ws under section 161 Cr.P.C., prepared injury statement Exh.PC, inquest report Exh.PD and dispatched the dead body of the deceased to DHQ Hospital Jhang for postmortem examination through Manzoor Amad constable.
He then prepared rough site plan of the place of occurrence Exh.PP, took into possession crime empty of .12 bore gun vide memo Exh.PH, burnt hair of deceased vide memo Exh.PJ, ashes vide memo Exh.PK, blood-stained earth vide memo Exh.PG from the place of occurrence, one gas cylinder vide memo Exh.PN and chadar vide memo Exh.PE which was produced before him by Manzoor Ahmad constable after postmortem examination. On 3-3-2006 he got prepared site plan Exh.PF and Exh.PF/I from Jan Muhammad Draftsman. He arrested the accused on 5-3-2006 who during interrogation and custody got recovered .12 bore gun and license which was taken into his possession vide memo Exh.PL. He also took into his possession blood-stained toka vide memo Exh.PM. Falaksher S.-I. Appeared as P.W.11 and deposed that on 1-3-2006 he after receiving information of the occurrence went to the place of occurrence along with other police officials where Taj Muhammad complainant got recorded his statement Exh.PA before him and after recording preliminary proceedings he dispatched the statement of the complainant through Zameer-ul-Hassan constable to the police station for registration of the F.I.R. The learned ADPP after tendering in evidence reports of the Chemical Examiner Exh.PR and Exh.PS and that of the Forensic Science Laboratory Exh.PT closed the prosecution evidence.
4. After conclusion of the prosecution evidence accused was examined by the learned trial Court under section 342, Cr.P.C. Wherein he denied all the incriminating material brought on record by the prosecution against him and also alleged therein that he is innocent. Occurrence is unwitnessed, medical evidence is inconsistent with the prosecution evidence. Complainant and the P. Ws. Have involved him falsely in the case with connivance of police. He did not opt to appear as his on witness under section 340(2), Cr.P.C. But he produced Imran son of Yaqoob R.I DW-1 and Sher Muhammad DW-2 in support of his plea of alibi. After conclusion of the trial the learned trial Court convicted and sentenced the appellant as stated above.
5. Learned counsel for the appellant contends that the F.I.R. Has been recorded after preliminary inquiry, due deliberations and consultations, witnesses were not present at the spot and they were summoned from the places of their residence and a false story has been cooked up; that the presence of the witnesses at the spot is doubtful for the reason that they could not make any effort to save the life of the deceased; that there are contradictions in the statements of the witnesses on material points, as such, the ocular account is doubtful; that the medical evidence also does not support the ocular account as according to the F.I.R. The deceased had received fire shot and the pellets spread in the body but there is only one entry wound on the person of the deceased; that the post mortem has been conducted after 24 hours and if F.I.R. Was recorded with promptitude the post mortem could have been conducted within 2/3 hours; that the recovery is not believable as the appellant was arrested on 5-3-2006, he got recovered gun on 7-3-2006 and the empty was also sent to the Forensic Science Laboratory on the said date; that the motive has also not been proved and the prosecution has miserably failed to bring home guilt of the appellant; that the learned trial Court has failed to appreciate the plea of alibi of the appellant which is fully supported by DW-1 and DW-2 and in such circumstances the appellant deserves acquittal.
6. Learned Additional Prosecutor-General for the State while supporting the impugned judgment contends that the F.I.R. Was promptly recorded immediately after the occurrence; that there was no motive to falsely implicate the appellant in the case; that the witnesses are independent who have been succeeded to bring home guilt of the appellant; that the accused committed the murder of his on were in brutal, callous and gruesome manner, as such, he does not deserve any leniency.
7. We have heard the learned counsel for the parties and also perused the record. According to the prosecution the incident took place at 6-30 a.m. In the house of the appellant, statement of the complainant Exh.PA was recorded by Falaksher Sub-Inspector P.W.11 at the place of occurrence on 1-3-2006 at 8-00 a.m., as such, the F.I.R. With recorded with promptitude and no inordinate delay was caused. We are not much impressed by the argument of the learned counsel for the appellant that the post mortem was conducted with 24 hours delay for the reason that the deceased was a woman and her post-mortem could only be conducted by a lady doctor. The lady doctor appeared before the Court as P.W.3 and during cross-examination it was not suggested to her that she was available in the hospital and even prior to conduct of the post mortem examination and in spite of her availability in the hospital post mortem has been conducted with delay. Even otherwise, neither the police officer nor the doctor had been suggested that the post mortem was conducted with delay due to the non-preparation of the inquest report and registration of the F.I.R. In such circumstances there is nothing on record which could suggest that the F.I.R. Was not recorded at the given time.
8. The ocular account was furnished by two eye-witnesses, namely, Taj Muhammad P.W.8 and Muhammad Javed P.W.9. Taj Muhammad complainant is brother of the deceased while Muhammad Javed is brother-in-law of the complainant and the deceased and it is also an admitted fact that both the eye-witnesses are not the residents of the vicinity where the occurrence took place. Taj Muhammad complainant is resident of Kachi Abadi near Police Line Tehsil and District Mianwali which is 180 kilometers away from the place of incident i.e. RHC Kot Shakar District Jhang while Muhammad Javed P.W.9 is resident of House No.S-3 Superintendent Quarters Canal Colony Sargodha which is also a far away place from the place of occurrence.
Although as claimed by the defence that both the eye- witnesses are chance witnesses and no reliance can be placed on their testimonies in order to convict a person on a capital charge but this would be of no help to the defence as the presence of the eye-witnesses at the time and place of occurrence appears to be natural for the reason that they could not have reached the place of occurrence after having information about the said incident from their places of residence within a shortest span of time because the occurrence took place at 6-30 a.m. And according to the F.I.R.
The matter was reported by Taj Muhammad P.W.8 at 8-00 a.m. Through Exh.PA to Falak Sher S.-I. /Incharge Chowki Kot Shakar who had reached there after receiving information of the occurrence.
The tenor of the statements of both the eye-witnesses reveals that despite lengthy cross- examination by the defence they remained consistent in their statements on each and every material point like time, place and the manner in which the occurrence took place. Their statements also find support and corroboration from the medical evidence which has been fully proved on record through the statement of Dr. Zubaida Akhtar P.W.3.
The main stress laid by the learned counsel for the appellant that if the eyewitnesses were present at the spot at the time of incident they could have tried to save the life of the deceased by breaking the door of the room in which the episode of incident was being displayed is negated by the statements of both the eye-witnesses who have rendered their explanations in their statements that they could not go inside due to fear of life as threatened by the appellant who had not only a Toka in his hand but he was also possessing .12 bore gun and as the appellant was committing murder of his were in a desperate manner, therefore, it was not possible for the witnesses to take the risk of their lives by intervening at that time when the deceased had already received the fire-shot . And had died. The explanation rendered by both the witnesses in that regard appears to be reasonable as the manner in which the appellant had acted must have caused apprehension to the eyewitnesses of their lives and that is why they did not take the risk of their lives. There is no cavil to the proposition that we while dealing with criminal cases daily discard the statements of chance witnesses but in the present case our conscious in view of some surrounding circumstances of the case is satisfied that the witnesses had no 'motive, or grudge to falsely E implicate the appellant in the commission of the offence and the complainant party as per admission in the cross-examination of Taj Muhammad complainant had some enemies and history of criminal cases and they could have easily entangled their those enemies by ascribing any role out of the roles ascribed to the appellant but they did C not do the same which clearly demonstrates that both the eye-witnesses had spoken the truth. There is another factor of the case which can be taken into consideration for establishing guilt of the appellant and that is that if the eye-witnesses were not sure about the callousness of the appellant in the present case as the real culprit and the only accused they would have opted to involve their enemies by attributing specific injuries to at least three persons and also other persons for putting the dead-body of the deceased on fire but they had not involved any of their enemies and had only held the appellant responsible for the murder of the deceased and had attributed all the injuries as also burning process of the deceased to the appellant, as such, we cannot ignore this important factor which clearly suggest that both the eye-witnesses had no second opinion about the involvement of any other person in the present case and also about the non-involvement of the appellant in the instant case.
It is the case of the appellant himself as depicted from the answer of question No.4 of his statement under section 342, Cr.P.C. That he along with his were had participated the nikah ceremony of Taj Muhammad on 25-2-2006 and thereafter he came back to his house at Kot Shakar while Zubaida Bibi his were was with her parents at Mianwali and she came back to Kot Shakar later on so it is an admitted fact that the deceased and the appellant had cordial relations and there was no ill will between them but we are of the considered view that in the presence of such a cordial relations of the appellant with his were and his in-laws, the eyewitnesses who are close relatives of the deceased would not dare to involve the appellant falsely if he had not committed the murder of his were.
9. As far as the plea of alibi raised by the appellant during the trial is concerned, suffice it to observe that the same has no bearing at all as it is an admitted fact that the appellant had contracted fourth marriage with the deceased Mst. Zubaida Bibi who was aged 22/23 years, his other two wives were also residing in the same vicinity and his parents were also residing in the adjacent quarter, incident took placed early in the morning and the presence of the appellant at the spot with the deceased who F was his last were having married few months earlier is established but in order to deceive the court and in order to damage the circumstances of his presence at the spot appellant did not raise the plea of alibi when he was arrested on 7-3-2006 and also failed to explain that why did he not surrender before the police for some days if he was an innocent person. He raised the plea of alibi that he had gone to DHO Office Jhang in connection with monthly and Polio meeting and also to pursue his transfer bill in District Accounts Office, Jhang as well as to receive the salary. He stayed during the night at Hamza Hotel, Jhang and on the following morning he received message from RHC Kot Shakar about the murder of his were Zubaida. In order to establish his plea of alibi the appellant produced Imran DW-1 who stated that he was serving in Hamra Hotel, Jhang where in a room Dr. Sarmad Mehmood stayed vide entry dated 28-2-2006 and departed therefrom vide Entry No.41 dated 1-3-2006. The copy of the said register (Exh.DB) shows that some tampering has been made in the said register, in order to G show the entry of the appellant on the said night at Hamza Hotel, Jhang wherefrom it can be looked from a naked eye that figure "27" has been converted into figure "28". Even otherwise, said page shows that after entry dated 23-2-2006 the entry dated 25-2-2006 has been made and then again the entry dated 24-2-2006 has been shown. We find that some interpolation has been made in order to enter the name of the appellant in the said Hotel register. This has been done by the appellant and possibility of fabrication of this evidence cannot be ruled out in order to destroy the circumstance which is very important and establishes presence of the deceased at the spot, as such, the same cannot be ignored. The appellant also produced Sher Muhammad Store Keeper DHO Office, Jhang as DW-2 and produced attendance register Exh.DC which was meant for attendance of participants of the meeting RHCs. The evidence of this witness is also of no help to the appellant as the said witness during cross-examination admitted that all the entries on page No.2 are written on lines but the entry of attendance of Dr. Sarmad is written in between the lines and the register is meant for the attendance from 8-00 a.m. To 3-00 p.m. And in such an eventuality no implicit reliance can be placed on such type of evidence which appears to be self- created. In such circumstances, the story of the plea of alibi raised by the appellant appears to be concocted one and after thought for the reason that a person having his on car would not like to stay in a hotel when his house is situated at two hours drive and such a person would prefer to spend night with his newly-wedded were rather staying in a hotel without any reason because as per statement of DW-2 the appellant was free at 3-00 p.m. After attending the meeting and such a plea which the appellant badly failed to prove cannot be given preference over ocular account furnished by the eye-witnesses which is fully corroborated by the other evidence. Even otherwise, the conduct of the appellant throughout remained dubious. His were was assassinated in his house but neither he tried to lodge the F.I.R. Regarding murder of his were nor he explained before the police functionaries the manner in which his were was murdered. Instead doing all this, ne managed to escape himself from the process of law on the very first day and had been trying to create false story of alibi to save his skin which clearly suggest his involvement in the murder of his were.
10. As far as the recovery of gun is concerned, empty had been recovered from spot on the day of incident on 1-3-2006 which was sent to the Forensic Science Laboratory on 7-3-2006, appellant was arrested on 7-3-2006 on which date recovery of gun was effected from the Almirah of the room of the house of the appellant. The main contention of the learned counsel for the appellant is that according to the prosecution story gun was taken away by the appellant at the time of the incident with him but there is no evidence that the appellant returned to his village. Even otherwise, we do not find it safe to rely on the aforesaid recovery for the reasons stated above.
11. As far as motive of the incident is concerned, we find that the prosecution has not been able to prove the motive as three days before the incident the marriage ceremony of brother of were of the appellant had been attended by him along with his were. Even otherwise, motive alleged was not sufficient to commit the murder in such a barbaric manner. The motive is always hidden in the mind of the accused which some times comes to the knowledge of the witnesses final the manner of commission of the offence by the accused and some times it does not reflect. We find that there was some hidden motive which did not come to the knowledge of the witnesses who were not residents of the same village and the possibility of commission of the offence in such a manner due to family honour cannot be ruled out but non-proving of the motive is not fatal to the prosecution case and no adverse inference can be drawn against the prosecution when otherwise the whole the prosecution evidence leads towards, the involvement of the accused in the commission of the offence.
12. As far as the defence plea raised by the appellant that the some dacoits must have entered and they might have committed the murder of the deceased is concerned, the appellant at the time of his arrest on 7-3-2006 had not raised the said plea and the plea which was raised by him had not been brought specifically by the appellant on record during the cross-examination on the Investigating Officer for ulterior motive. On the other hand, no such plea was suggested to the witnesses. Even otherwise, if any dacoity had been committed and the deceased was fired at on the vital part which injury as per doctor was sufficient to cause her death the dacoits would not have taken the risk of cutting the legs of the deceased and also burning the dead body which might had consumed some time coupled with the fact that nothing had been taken away from the house so the plea raised by the appellant is after thought and we do not find any weight in it. In such circumstances, we find that that the prosecution has successfully been able to bring home guilt of the accused-appellant beyond any shadow of doubt through reliable and inspiring confidence evidence of the witnesses, as such, we are of the considered view that the learned trial Court has rightly convicted the appellant which we hereby maintain.
13. Considering the question of quantum of sentence we are also of the considered view that although the motive has not been proved against the appellant but from the manner in which the appellant had acted we have no doubt in our mind that the appellant had committed a barbaric act in a gruesome manner by not only firing on the vital part of the body of the deceased but also cut both legs and also burnt her body we do not find any extraordinary circumstance for reduction in the sentence imposed upon the appellant by the learned trial Court and the appellant does not deserve any leniency, hence the sentence and conviction of the appellant is hereby maintained.
14. For what has been discussed above, we find no force in the appeal filed by the appellant which is hereby dismissed, sentence of death awarded to the appellant by the learned trial Court is maintained and the murder reference is answered in the affirmative.