' SHAHID- ANWAR BAJWA, J.---The appellants were tried for an offence under section 302/34, P.P.C.
And vide judgment dated 18-8-2009 were convicted, and sentenced to death. They were also ordered to pay jointly compensation of Rs,100,000 to the heirs of deceased. In case of default, they were ordered to suffer imprisonment for three months. This Criminal Appeal has been filed to challenge the judgment dated 18-8-2009 and Criminal Reference has been submitted by the trial Court under section 374, Cr.P.C.
2. F.I.R No,9 of 2002 was recorded at Police Station, Pano Akil, on 12-1-2002 at 10 a.m. For an incident alleged to have taken place at 4 a.m. Complainant was one Rahmatullah. He stated that Mst.
Sughran aged 20 years was his daughter and was married with appellant No,1. A day before the incident Ali Hassan son of the complainant went to the house of his sister and stayed there for the night. At about 4 a.m. Ali Hassan raised cries and came running to the house of the complainant and is alleged to have disclosed that he slept in the house of his sister as his brother-in-law was not available in the house. Appellants Nos.1 and 2 along with absconding accused, their third brother Qadan came in the house and disclosed to their family members that due to dispute over land they had murdered Mumtaz Kalhoro. Upon hearing this Mst.Sughran became agitated and asked them as to why they had murdered Mumtaz Kalhoro who was her first cousin. Upon hearing this all the three accused persons stated that Mst.Sughran was supporting their enemy and therefore they would murder her and they caught hold of Mst.Sughran and tried to murder her and seeing this Ali Hassan had come running to his father. Upon hearing this the complainant, his son Ali Hassan and brother of complainant Ali Raza rushed to the house of appellant No,1 and stated that they saw that three accused were in courtyard of the house and had pinned Mst.Sughran: Qadan, absconding accused, was holding her arms, appellant No,2 had tied her legs and appellant No,1 was strangulating Mst.Sughran with a rope. Complainant and his two companions gave 'hakals' to them upon which all the three accused persons escaped through the door to the western side. Complainant saw signs of rope on neck of Mst. Sughran and a rope was also lying there and Mst.Sughran had expired.
3. At the trial, charge was framed on 2-6-3003. Prosecution produced complainant Rahmatullah as P.W.1, son Ali Hassan as P.W.2, Medical Officer Dr.Shabana Rubina as P.W.3. Mashir of arrest Ali Murtaza as P.W.4, I.O. Shaaban Ali as P.W.5, brother of complainant Ali Raza as P.W.6 and mashir of inspection of place of vardat Bashir Ahmed as P.W.7. Thereafter statements of two accused persons were recorded. They stated that actually Mst.Sughran had committed suicide. They further stated that they had been involved due to enmity over murder of Murtaza Kalhoro and a matrimonial dispute.
4. Mr, A.R. Faruq Pirzada, learned counsel for the appellants, made the following submissions:--
(a) The place of vardat is surrounded by about 40 houses and there is no independent witness or even an independent mashir.
(b) Ali Hassan, brother of the deceased was 27 years old when evidence was recorded in 2006 and therefore was 23 years old when the alleged incident took place, according to F.I.R. All the three culprits were unarmed and even then brother Ali Hassan did not try to prevent commission of the crime and to save his sister.
(c) The F.I.R. Reveals that case of the prosecution is that Ali Hassan went from the house of his sister to the house of his father, collected his father and uncle and came back to the house of his sister and all this time the accused persons practically remained frozen in their poses over the crime.
(d) Ali Hassan was as much a cousin of Mumtaz Kalhoro and should have felt equally offended like his sister. He showed no such signs.
(e) Ali Hassan is a chance witness and the motive is artificial one because Mumtaz was also cousin of the present appellants.
(f) Postmortem report says that time between death and start of postmortem was about 7 to 8 hours . Postmortem started at 10 a.m. And therefore the incident should have occurred between 2 and 3 a.m. But F.I.R. Says that it occurred at 4 a.m. Moreover, postmortem report states that time between injury and death is 4 to 5 minutes but F.I.R. Says that death was immediate.
(g) A reading of the postmortem report reveals that there was no sign of any other injury. If Mst.
Sughran had been murdered as alleged in the F.I.R., she should have resisted, however, there is nothing of this kind or any abrasion found on her body.
(h) According to mashirnama of inspection of place of vardat, the ' place was inspected at 11-40 a.m. And dead body was still there and thereafter it was brought to hospital. Hospital was at a distance of 14 kilometer or so and it was stated that dead body was brought to the hospital at 10 a.m. It was brought by a police constable Abdul Waheed. All these facts put together do not make a coherent story.
5. Learned counsel relied upon Shah Bakhsh v. State (1990 SCM R 158), Daniel Boyd v. State (1992 SCM R 196), Wazir Muhammad v. State (1992 SCM R 1134), Tariq Pervez v. State (1995 SCM R 1345), Muhammad Ilyas v. State (1997 SCM R 25), Muhammad Aslam Khan v. State (1999 SCM R 172), Muhammad Aslam v. Muhammad Rashid (2002 SCMR 1794), Khalid Javed v. State (2003 SCM R 1419), Jan Alam v. State (2004 PCr.LJ 68), Abdul Khanan v. State (2004 PCr.LJ 92) and Muhammad Saleem v. State (2010 SCM R 374).
6. Mr. Shyam Lal, learned Assistant Prosecutor-General stated that at the time of incident Ali Hassan was 22 years old and was therefore not a fully matured person. He submitted that there was no enmity between any of the witnesses and the accused persons and therefore they cannot be said to be interested witnesses. If Mst.Sughran had committed suicide, the appellants should have themselves approached the police in the first place. Doctor might have written wrong time for start of postmortem. This is not a reason sufficient to create doubt and there is no contradiction between medical and ocular evidence.
6. We have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar.
7. It was contended by Mr. Pirzada that there is discordance between medical evidence and ocular evidence. His first contention was four folds. Firstly, the postmortem report says that time between death and start of postmortem was 7 to 8 hours: Postmortem started at 10 a.m. And therefore incident could have occurred between 2 a.m. And 3 a.m. And not at 4 a.m. As alleged in the F.I.R.
Secondly, he submitted that postmortem report stated the time between injury and death as 4 to 5 minutes whereas F.I.R. Stated that death was instantaneous, Thirdly, there was no sign of any injury on the body and if the deceased was murdered, the way it has been alleged, she should have resisted and thus there should have been other injuries. Fourthly, mashirnama of inspection of place of vardat states that inspection was conducted at 11-40 a.m. And dead body was still there and thereafter it was brought to the hospital by a police constable and postmortem report states that postmortem was started at 10 a.m. Learned counsel relied upon Muhammad Saleem's case (supra). The conflict between ocular and medical evidence noticed in this case was that ocular stated that 6 or 7 blows on the head of deceased were given and medical report stated that there was only one injury. In Shah Bakhsh's case (supra), the conflict between ocular and medical evidence was in respect of nature of firearm injury. In Muhammad Aslam Khan's case (supra), recovery of wads in the body during postmortem created doubt regarding distance from which the shots were fired. In the present case the doubt, it is canvassed by the learned counsel for the appellants, is created because there is difference between the time stated in the mashirnama and the time stated in the F.I.R. And the time stated in the postmortem report. As far as time stated in the F.I.R. And time stated in the postmortem is concerned, the difference is of one hour and in rural localities no one can expect people to be very accurate in describing time at which a particular incident took place. Therefore, fact that the postmortem report says that there was 7 to 8 hours gap between death and beginning of the postmortem does not create any doubt regarding the death. As we will discuss below, there was no dispute that the deceased died because of strangulation.
8. Second discordance, according to the learned counsel, was that the witnesses stated that death was instantaneous and the postmortem report stated that there was 4 to 5 minutes difference between injury and death. Now death in this case was caused by strangulation. Strangulation is not like a hatchet blow. The mark of strangulation comes on the skin and actum of strangulation is in choking supply of blood to the brain and air to the lungs. Whatever be the amount of pressure applied during strangulation there would inevitable be a time lig between the moment rope comes in contact with the skin and the moment death occurs. Moreover the witness is clear that when they reached there, the act was almost complete, therefore, we do not see any conflict between the ocular and medical evidence on this score.
9. The third aspect of conflict between ocular and medical evidence, according to the learned counsel, was that there was no sign of any injury on the body of Mst.Sughran and learned counsel contended that if she was killed the way it was described in the F.I.R., she must have struggled and therefore there must have been some bruises on her body. Prosecution story, is that one man pinned her arms and other pinned her legs. In the presence of, two strong persons practically nailing the arms and legs where could the bruises come from, therefore, contention of the learned counsel on this score is also without substance.
10. Last contention of the learned counsel regarding conflict between ocular and medical evidence was that mashirnama of vardat stated that dead body was still there at 11-40 a.m and medical report says that postmortem started at 10 a.m. Indeed this is so. However, this does not affect the fundamental of the case. Moreover, police is known for its "efficiency" .
11. Next contention of the learned counsel was that the place of vardat was surrounded by about 40 houses and there is no independent B witness or even independent mashir. The incident occurred at 4 a.m. In the quiet of the night and inside the four walls of a house and it is not expected that the other villagers will be awake and watching for such an incident to occur. As far as mashir of arrest and mashirnama of inspection of place of vardat are concerned, their evidence is merely corroborative in nature.
12. It was next contended by the learned counsel for the appellants that Ali Hassan was a Youngman of 23 years and when three persons, according to him, were going to commit an offence of murder of his sister, he should have resisted rather than running back to his father and bringing him. Contention of learned Assistant Prosecutor General was that a person of 22 years is not a fully mature person. Human beings, as they are, act differently in a situation of panic. There is no uniform rule that everyone of a given age will act in the same identical way. The prosecution story is that Ali Hassan woke up when his brother-in-law and two brothers of his brother-in-law came there. They spoke to their wife about the murder, the deceased protested and on this they stated that they are going to murder her. It is at that time that Ali Hassan thought it more appropriate to bring his father who was not living much far away. Such an action on the part of Ali Hassan cannot be said to be an unnatural reaction. One does not have to be a fully grown mature or not so mature a person and only then such a reaction should be expected from him.
13. Mr. Pirzada next contended that Ali Hassan went from the house of his sister to the house of his father, collected his father, came back the same way and still the accused persons were not yet done with their job and this creates doubt. Learned counsel relied upon Daniel Boyd's case (supra).
This was a case where bank robbery was alleged and it was held that the Identification of the accused created doubt. Learned counsel next relied upon Jan Alam's case (supra). The Court observed that venue of the occurrence was doubtful because nor was empty recovered from the spot nor bloodstained earth was taken into possession from the place of occurrence. In Muhammad Ilyas's case (supra) doubt was created regarding presence of accused at the place of vardat because firstly the witness was not found credible and secondly the I.O. Did not mention name of any of the witnesses in the inquest report. In Tariq Pervez's case (supra) the witness stated that two parcels of sample were taken and sent to Chemical Examiner and the Chemical Examiner stated that he only received one parcel and this was held to have created doubt.
14. All the case-law is clearly distinguishable. If evidence of the doctor and the postmortem report is read carefully, it reveals that the postmortem report has stated that the time between injury and death was 4 to 5 minutes that means that strangulation started and death occurred and the time between start of strangulation and death was 4 to 5 minutes. Ali Hassan stated that he rushed to the house of his father when strangulation started and complainant and his brother and the witnesses stated that when they reached there, they saw their daughter being strangulated and on seeing these persons, the accused ran away. It is these 4 to 5 minutes which took Ali Hassan to go to his father's house and to bring his father back. Therefore, this aspect perfectly matches the ocular evidence with the medical evidence.
15. Next contention of the learned counsel for the appellants was that Ali Hassan was as much a cousin of Mumtaz and should have felt equally offended by death of Mumtaz. This contention of the learned counsel is not of much relevance. It is not universal truth that two siblings would feel equally for another relative and here was a situation where one was a female and other was a male and females are known to be much more sensitive.
16. Last contention of Mr. Pirzada was that Ali Hassan is a chance witness because the place of occurrence was not his house. He relied upon Khalid Javed's case (supra). Facts of the reported case were that a practicing lawyer lodged an F.I.R. Relating to an incident of murder of his wife.
According to F.I.R., when the complainant along with P.W. Matoob Ahmed Waseem reached the outer gate of his house, he witnessed appellant Khalid Javed and one Aleem Ahmed being electricians busy in installing door inter-corn and bell on the main gate. He knocked at the door and in the meanwhile heard shrieks from inside the house. He climbed over the gate and jumped in the courtyard of the house and saw his wife corning out from the bathroom towards courtyard.
Two unknown persons were following her. Both were armed with various type of arms. They stabbed her and the assailants ran away along with their weapons. On the same day, the complainant recorded further statement under section 154, Cr.P.C. And he submitted that due to confusion instead of naming Khalid Javed and Aleem Ahmed as culprits, he named them as witnesses. The complainant had stated in the F.I.R. That he reached his house along with one Matloob Ahmed. It is the presence of Matloob Ahmed which was considered a chance presence and therefore not reliable. In Muhammad Aslam's case (supra) the complainant and witnesses were not residents of the area where the offence took place. In the present case Ali Hassan is brother of the deceased. It is not unnatural to expect that a brother will visit the house of his sister.
When he visited house of his sister, husband of his sister or any other male member was not present in the house. It is not unnatural for a brother to stay with his sister when she is alone in her house. Therefore, presence of Ali Hassan in the house of his sister cannot be said to be unnatural or implausible. Moreover, when one's sister has been murdered, it is, of course, the brother and father of the deceased who would be the first persons to rush to the place where they believe that the crime is being committed. Therefore, none of the witnesses can be said to be an unnatural or a chance witness.
17. Contention of the appellants in their statements under section 342, Cr.P.C. Was that the deceased had committed suicide. This is not believable for many reasons but primarily for two.
Firstly, if the deceased committed a suicide, there must have been some way in which she strangulated herself. She did not hang herself and medical evidence is clear that she was strangulated with a rope. Secondly, if she committed a suicide, the appellant No,1 should have been the first person to report the incident to police. He chose not to do so and in fact absconded for four days as he was arrested on 28-1-2002. P.W.4 Ali Murtaza deposed in this regard and no question whatsoever was put to him except that the mashirs were provided by the complainant party and were residing at a distance of one kilometer from the place where the accused were arrested. No question was asked regarding bona fides of the mashirs or even a suggestion that the accused was not arrested as stated .By the mashirs. Therefore, if the wife had committed suicide, the appellant No,1 should have been the first person to approach the police in this regard. He did not do so. Therefore, the story by the appellant that the deceased committed suicide is belied by the ocular evidence as well as by the medical evidence.
18. This brings us to the question of sentence.
' It is a case where a woman has been murdered by her husband and her brothers-in-law. Those who were required by law, by tradition and even by religion to provide protection, chose to extinguish flame of a life: guards become poachers.
19. Result of the above discussion is that this appeal is dismissed. Sentence of death is confirmed.