' ABDUL RASOOL MEMON, J.---Muhammad Aslam, the appellant has been convicted for Qatl-i-amd of his wife Mst. Naheed and sentenced to death under section 302(b), P.P.C. While his brothers Muhammad Ashraf and Mansoor are convicted under section 201, P.P.C. And sentences to undergo R.I. For 5 years and further to pay fine Rs,5,000 each and in default thereto undergo S.I. For 6 months each. However, benefit of section 382(b), Cr.P.C. Is extended to appellants Nos. 2 and 3 by the impugned judgment dated 13-10-2008 recorded by Mr. Sultan Muhammad Awan, IIIrd Additional District and Sessions Judge Karachi, South. As such the appellants have preferred an appeal against their conviction and simultaneously, the learned trial Court has also sent a murder reference for confirmation or otherwise of the death sentence awarded to appellant Muhammad Aslam, to this court which is also before us. The same shall also be answered through this judgment while deciding appeal in hand viz. No,207 of 2008.
2. The prosecution case as depicted in the F.I.R. (Exb.6/1), lodged by Faqir Muhammad Sammo, P.W.1 (Exb. 6) on 9-6-2003 at 5.30 hours with Police Station Kalri is that his daughter Mst. Naheed was married with Muhammad Aslam (appellant herein) who is police constable. About 4 months prior to recording F.I.R. His daughter Naheed gave birth to baby Tania. He (complainant) used to financially help the appellant Muhammad Aslam whose demands were increased after the birth of baby; that 2/3 days prior to recording of F.I.R. His daughter Naheed came at his house and disclosed, that her husband at the instance of his brother Ashraf alias Billa, Mansoor alias Gulabi and their mother Mst. Haleema Bai is demanding further amount from her and they have also beaten her. She was not ready to go back but being a father he made her to realize and left her at her husband's house at. Flat No,5/A Fifth Floor, Agha Suleman Arcade, Street No,15, Behar Colony, Karachi, On 9-6-2008 at about 12.15 p.m. His son-in-law Aslam intimated him on telephone that he was adamant and failed to remove his financial constraints, therefore, he has killed his daughter Mst. Naheed and her dead body is available at his flat. Upon receiving intimation whereof, he along with his son Zulfiqar Ali Sanuno, neighbours Nazir and Imran reached at the flat which was locked, breaking the lock, they entered in the bedroom and found dead body of deceased Naheed lying supine on the floor while the blood-stained clothes of Aslam were also lying on the place of wardat, as such, her dead body was removed to Civil Hospital, Karachi.
3. S.I.P. Shabbir Satti of Police Station Kalri reached at Civil Hospital and examined the dead body lying in mortuary in presence of P.W.3 Zulfiqar and prepared the Means of inspection of the dead body (Exh.91,k) and inquest report (Exh.9/B). Then he came to place of wardat, prepared the Memo of Wardat and seized the bloodstain clothes of accused Muhammad Aslam, piece of carpet, one cover of pillow (Exh.6). Accused Muhammad Ashraf and Mansoor were arrested vide Memo Exh.
9. D-E.
4. Autopsy of the dead body was conducted by Dr. Yasmin Qamar (P.W.9) on 9-6-2000 which was identified by A.S.-I. Zulfiqar, the brother of the deceased. On general appearance the dead body was female aged about 22 years with decomposed condition. Rigor mortars passed away. On external examination the following injuries were found:--
(1) Abraded contusion 3. c.m. Into 1.5 c.m. Left side of fore-head.
(2) Abraded contusion 3 c.m into 3 c.m. Over left temporomandibular. Joint depressed area bleeding from left ear and nose.
5. On internal examination, the doctor was of the opinion that on opening of skull clotted blood was present on temporal region, fracture of left temporal wound. Partially maxillary wound fracture.
Fracture of midcranial fossa, brain matter and mengies are damaged on corresponding side of the injury. Multiple clot present in cranial cavity clots of blood present under the skin of neck and arterial of upper chest. Liver spleen and kidneys were normal. In view of the external as well as internal examination the doctor was of the opinion that the death was occurred due to acute head injury resulting from hard and blunt substance. Time in between the injury and death instantaneously. Time between death and post mortem was about 24/36 hours.. The post mortem report is available on record as Exb.9/C.
6. Per prosecution the appellant Muhammad Aslam after commission of the alleged offence absconded away and on 14-6-2000 he surrendered before the police and was produced before the Judicial Magistrate Court No, VI, Karachi South (Mr. Mehmoob Ali Dayo) who recorded the confessional statement of the appellant and he deposed that accused appellant Muhammad Aslam was produced before him on 22-6-2000 and he having satisfied him.About the willingness of the appellant to make confession, hence he recorded his confessional statement (Exh.16/B) wherein he (appellant) confessed his guilt which reads as under:-- {{URDU TEXT}} ' Seal and Signature of Mehboob Ali Dayo, Judicial Magistrate Vlth Karachi South Sd/- Muhammad Aslam
7. Per prosecution case, during the course of investigation, on the pointation of the appellant Aslam recovered the pistol used in the commission of offence from the house of his mother Mst. Halima Bai, (Exh.13/A) mother of the appellant was also arrested in this crime and after completion, the investigation report under section 173 was presented.
8. During the trial prosecution out of 18 witnesses examined 11 comprising of complainant Faqir Muhammad (father of deceased Nahid). He had seen the dead body of his daughter Nahid in her flat and has deposed regarding motive. He lodged the F.I.R. P.W.2 Abdul Nasir, is son of the complainant Faqir Muhammad and brother of the deceased. He was also present on the place of wardat with his father. P.W.3 Zulfiqar Ali is brother of the deceased. He is sub-Inspector of the police and all along was accompanied with the investigation officer Shabbir Satti and acted as mashir of memos mentioned above. Ghulam Muhammad P.W. 4 Exh. 11, he is one of the friend of accused Muhammad Aslam and stated that on 14-6-2000 at 5.00 p.m. Accused appeared at police station and admitted his guilt before the police. P.W.5 Usman states that he found the accused on 7-6- 2008 at about 6.45 p.m. With his baby in a puzzle and confused condition. Thereafter he came in knowledge about this incident. He has also acted as Mashir of recovery of pistol (Exh.B/A), P.W.6 Muhammad Faisal states that appellant Aslam surrendered before the S.H.O. In his presence at Police Station Kalri who arrested him. P.W.7 Magistrate Mehboob Ali Dayo recorded the confession of the appellant Aslam. P.W.8 Muhammad Ramzan is City Surveyor had prepared the sketch of the wardat while P.W.9 is Dr. Yasmin Qamar whose evidence is reproduced hereinabove. Muhammad Anwar A.S.-I. Has been examined as P.W, 10 who being well conversant with the signature of S.I.
Shabbir Satti has produced documents being handwriting and signatures of the A.S.-I. Shabbir Satti whose whereabouts were not known after retirement from service. P.W. 11 Dr. Fazal Ellahi, Chemical Examiner who has stated that "Dopatta" of deceased Nahid and bloodstained pillow cover, shalwar kameez of appellant Aslam were stained with human blood and he place such report at Exh. 24/A.
9. The statement of accused Aslam under section 342, Cr.P.C. Was recorded as Exh. 26 who has denied the allegation of the prosecution and retracted the confession and has stated that his family members were booked at police station and maltreated. He further states that he is innocent and has been falsely implicated while statements of co-accused Ashraf and Mansoor have been recorded as Exh. 27 and 28. They have also denied the allegations of the prosecution and have also claimed their innocence. Neither they have examined themselves on oath nor led any evidence in defence.
10. Learned Additional Sessions Judge on overall assessment of evidence concluded that the prosecution was successful in proving guilt of the appellants. In reaching such conclusion the Learned Judge accepted the ocular version furnished by P.W. Faqir Muhammad, Nasir and Zulfiqar and corroboration by confession of the accused appellant Muhammad Aslam, recovery of pistol on his pointation, disappearance with his child from the flat after the day of incident and found appellant Aslam guilty of Qatl-i-amd of his deceased wife Naheed while appellant Muhammad Ashraf and Mansoor were found guilty of causing disappearance of evidence of Qatl-i-amd of deceased.
11. The trial court convicted the appellants and sentenced them as stated above by Judgment dated 13-10-2008 which is impugned in the present appeal.
12. We have heard Mr. Mehmood A. Qureshi, learned counsel for the appellants Muhammad Aslam, Ashraf and Mansoor and Mr. A.Q. Halepota, Advocate for the complainant and Mrs. Akhtar Rehana, Additional Prosecutor.
13. Learned counsel for the appellant has contended that Faqir Muhammad (P.W.1), Abdul Nasir (P.W.2), and Zulfiqar Ali (P.W.3) are father and brothers of the deceased, therefore, it would not be safe to rely upon their Testimony without independent ' corroboration; that on the point of motive their evidence is weak, untrustworthy and does not inspire confidence. For confession he states that Mst. Halima Bibi, the mother of the appellant Muhammad Aslam was arrested and after his arrest he remained in police custody, therefore, the said confession is neither voluntarily nor true and is not admissible in evidence. The licensed pistol of the appellant Aslam has been foisted upon him and no any recovery effected from him on his pointaiton.
14. Learned counsel alternately argued that even if confession is treated as voluntarily, then circumstances under which the occurrence took place would lead an inference that the appellant being a young man might have felt highly offended over conduct of the deceased for her demand of divorce which provoked the appellant Aslam and while he loosing self-control caused injuries to his wife. Such fact entitled the accused leniency in matter of sentence and ends of justice would be made if his sentence of death is converted into life imprisonment.
15. So far as for appellant Ashraf and Mansoor, he contends that though after serving sentence awarded to them under section 201, P.P.C. They have been released but the conviction and sentence awarded to them is not sustainable for the reasons that no evidence regarding participation of the appellant in commission of offence or their intention to cause disappearance of evidence in order to screen offender from the legal punishment has been brought on record, therefore, they deserves their acquittal. In support of his contention he has placed reliance on the cases of Asif Mehmood v. The State (2005 SCM R 515), Muhammad Fazil v. The State (2006 SCM R 1432), The State v. Muhammad Rafiq (2004 Supreme Court 39), Zeeshan Afzal alias Shani and another v. The State (2013 SCM R 1602), Hasil Khan v. The State (2012 SCM R 1936), Muhammad Ikram alias Billa and another v. The State (1999 SCM R 406), Arshad Hussain Shah v. The State 1989 ALD 220(2), Charagh Din and others v. The State (1987 SCM R 101).
16. Mrs. Akhtar Rehana, Additional Prosecutor General has supported the impugned judgment.
However, on the point of reduction of sentence, she has supported the version of counsel for the appellant Muhammad Aslam and submitted that sentence of life imprisonment would be sufficient to meet the ends of justice.
17. Mr. A.Q. Halepota on behalf of complainant has contended that evidence against the appellant Muhammad Aslam is consisted of his judicial confession coupled with production of licensed pistol by him and recovery of dead body of his deceased wife from the flat where he lived with her. The motive for commission of offence relating to demand of money from his father-in-law has been established by the prosecution. All these factors suggest that accused is guilty of the alleged offence and does not deserve any leniency. The prosecution has fully proved the case of Qatl-i- amd of deceased Naheed allegedly made by appellant Muhammad Aslam while co-accused Ashraf and, Mansoor have joined hands of accused Aslam in order to cause disappearance of evidence of offence of Qatl-i-amd, therefore, the judgment of the trial Court is in accordance with law and does not require any interference by this Court. In support of his contention he has placed reliance on the case of Muhammad Akram v. The State (2003 SCM R 855), Shaukat All v. The State (2003 YLR 184), 1999 SCMR 1199 and Saeed Akhtar's case (2000 SCM R 383).
18. We have given our patient hearing to the respective contention of learned counsel for the parties and have also perused the record of the case carefully.
19. The prosecution case is based on confession of appellant Aslam, recovery of licensed pistol, disappearance of the appellant Aslam from place of wardat and motive.
20. So far as the contention of learned counsel that the judicial confession was extracted from appellant Muhammad Aslam by arresting his mother, so also he was in police custody for 09 days, therefore, inference could be drawn that the confessional statement (retracted) of the appellant Muhammad Aslam was due to above pressure is concerned, it would be seen as to whether or not there is any substance in such contention, we have minutely gone through the relevant record. No doubt the appellant was arrested on 14-6-2000 and during police remand he was produced before the Magistrate on 22-6-2000. And appellant Muhammad Aslam in course of statement under section 342, Cr.P.C. Has also complained that his mother was arrested by the police but the record does not indicate that any coercive method was applied by the police. The Judicial Magistrate Mehboob Ahmed Dayo, P.W. 7 who had recorded the confessional statement in question at trial has confirmed that before recording confessional statement in question he had not only observed all the legal formalities but having satisfied himself that it was being made by the appellant voluntarily and he recorded the same. In the course of his evidence he (Magistrate) has categorically denied the suggestion that since mother of the accused was in police custody, as such accused was under pressure to make confessional statement. However, he has further stated that the confessional statement of accused had been recorded after giving three hours time to him for reflection. He has denied the suggestion that confession was not truthful or voluntary. The record indicates that each and every answer recorded in the confessional statement was authenticated by the accused/appellant by putting his signatures, therefore, in the absence of any evidence to the contrary presumption would be towards its truthfulness. The contention therefore, has no force. Reliance can be placed on PLD 2007 SC 202 and 2003 SCM R 855.
21. Adverting to the contention of learned counsel for the appellants in respect of relationship of the witnesses with the deceased, admittedly the father and brothers of the deceased. It is not understandable that why complainant Faqir Muhammad Sammo (father) would involve his son- in-law in the murder of his daughter by leaving the real culprit. The appellant Muhammad Aslam was admittedly residing at flat No,5-A, 5th floor, Agha Suleman Arcade with the deceased. The appellant has neither denied the presence on the fateful day at his flat with the deceased nor offered any explanation that how and in what circumstances Mst. Nahid sustained injuries with hard and blunt substance on her temporal region of her body. The bare denial of the appellant in his statement of knowledge of occurrence and not offering any explanation that how Mst. Naheed sustained injuries and died is strong corroborative circumstance to prove the guilt of the appellant.
As per medical evidence, the deceased sustained injuries with hard blunt substance (weapon) and recovery of pistol on the pointation of the appellant Muhammad Aslam after his arrest and the positive report of the Chemical Examiner that clothes and the pillow recovered from the house of the accused were stained with human blood provide strong corroborative evidence to ocular account furnished by the witnesses.
22. The motive behind the occurrence as disclosed in the F.I.R. Was that complainant used to financially help to the appellant Muhammad Aslam after marriage and 2/3 days prior to lodging of the F.I.R. His daughter Naheed came to his house and disclosed that her husband Muhammad Aslam on the instance of his brothers Muhammad Ashraf, Mansoor and mother Halima is demanding further amount/money from the complainant and in this regard they have beaten her.
She was not ready to go back but being father, he made her to realize and then left her at husband's house. On this point P.W. Nasir who is son of the complainant is silent regarding arrival of deceased at their house 2/3 days prior to lodging of the F.I.R. While P.W. Zulfiqar has stated that two days prior she had come to their house and made complaint against Aslam and thereafter Aslam, Ashraf and Mansoor have given her severe beating and that she was saying that if returned back to the house of her in-laws, she would be murdered but even then due to brothery system, they returned her back to the house of her in-laws. He has not stated that she was turned down by the accused for bring money from her parents. The complainant in his evidence has tried to improve his motive by stating that Flat No,5-A, Agha Suleman Arcade was purchased by him and was given to appellant Muhammad Aslam being his son-in-law but in cross-examination he has admitted that the flat No,5-A is in the name of accused Muhammad Aslam but he had purchased the same by obtaining money from him. In such circumstances the motive as. Discussed above in the F.I.R.
Was weak and seems to be unbelievable for the reason that had there been danger to deceased's life at the hands of accused appellant Muhammad Aslam in case of failure of bringing money, she would never be opted to move back for the house of said appellant. Even otherwise what happened immediately at wardat and the manner in which the incident has taken place has not been witnessed by any of the person, therefore, we are of the view that C motive as set up in F.I.R. Is not proved.
23. The analysis of evidence would lead to no other result except holding that the appellant Muhammad Aslam is guilty of the charge of committing Qatl-i-amd of the deceased. The prosecution has proved the case against the appellant Muhammad Aslam for causing death of deceased Naheed and we do not find any improbability or illegality in the judgment to that extent.
24. However, so far as the quantum of sentence is concerned, the motive as alleged in the F.I.R. Was not successfully proved as discussed above, therefore, where motive alleged by the prosecution had not been successfully proved it might be considered as a mitigating circumstance qua quantum of sentence. In this respect reliance could be placed on a case of Zeeshan Afzal alias Shani and Hasil Khan (supra).
25. Similarly in the case of Jehanzeb v. The State (2003 SCM R 98), the honourable Supreme Court altered the sentence of death of the convict to life imprisonment by observing that where motive alleged by the prosecution has not satisfactorily proved, this may be considered as a mitigating circumstance qua quantum of sentence.
26. For what has been discussed above, the appeal of the appellant Muhammad Aslam is partly allowed and sentence of death awarded to him is converted into life imprisonment and so also Rs,50,000 are awarded compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. And in default of payment of compensation, he will further undergo S.I. For six months. Benefit of section 382-B also be extended to him. Accordingly with above modification in the impugned judgment to the extent of appellant Muhammad Aslam, his appeal is dismissed.
Resultantly murder confirmation reference is replied in negative.
27. Now reverting to the case of appellants Ashraf and Mansoor, regarding their participation in causing evidence of commission of this offence to disappear and intention in order to screen offender from legal punishment, the only evidence against them is of P.W. Faqir Muhammad that they were seen in the flat of the appellant Aslam at her flat while leaving deceased at appellant Aslam's flat though this fact is not mentioned in the F.I.R. Nor any other piece of evidence is available on record either in the evidence of P.W. Nasir or P.W. Zulfiqar. It is worthwhile to mention that in order to constitute an office under section 201, P.P.C. Three ingredients must be proved, viz:--
(a) knowledge of the accused that the offence had been committed; (b) participation of the accused in causing evidence of the commission of the offence to disappear and (c) the intention of the accused to cause the disappearance of evidence in order to screen the offender from legal punishment. However, on evaluation of prosecution evidence so far brought on record we are of the view that none of the ingredients have been proved by the prosecution for sustaining charge under section 201, P.P.C. Against the appellants namely Muhammad Ashraf and Mansoor. In result their appeal is accepted and the conviction and sentence awarded to appellants Ashraf and Mansoor is hereby set aside.