Through this jail appeal, Mazhar Nawaz appellant has challenged the vires of judgment dated 29.04.2011 passed by the learned Sessions Judge, Lodhran in case FIR No, 327 dated .22.07.2010 in respect of an offences under Sections 302, 338, PPC, registered at Police Station Saddar Lodhran whereby he was convicted and sentenced as under:-- "Under Section 302(b), PPC"
Rigorous Imprisonment for life as Ta'zir and to pay the compensation of Rs, 2,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
2. Brief facts of the case, as narrated in the FIR (Ex.PB) by Muhammad Jafar Aslam, the complainant alleging therein that he was a resident of Multan City. He had three sisters, out of them, Mst.
Shabana Aslam was married with Mazhar Nawaz, the appellant where Mst. Riffat Aslam (PW-5) was married with Asghar Nawaz (real brother of the appellant). On 22.07.2010, the complainant along- with his maternal uncle Muhammad Ramzan went to Mouza Sikandar Wala to see his sister. At about 12:30 p.m. in their view, appellant Mazhar Nawaz called his sister Mst. Shabana Aslam on some pretext and took her to the rear side of a room, after a while they heard the shrieks of Mst.
Shabana Aslam, he along-with his maternal uncle and his sister Mst. Riffat Aslam rushed towards the place of occurrence and witnessed that Mazhar Nawaz appellant was holding an axe in his hand whereas his sister Mst. Shabana Aslam was running in the room to rescue her. Within their sight, appellant inflicted axe blows' on her abdomen and different parts of her body. They stepped forward to apprehend the appellant, who threatened to kill them, if stepped forward and fled away from the place of occurrence. Mst. Shabana Aslam succumbed to the injuries at the spot. The complainant, his uncle Muhammad Ramzan and his sister Mst. Riffat Aslam had witnessed the occurrence. Motive behind the occurrence was that deceased Mst. Shabana Aslam had inherited a valuable plot measuring 05-marlas in Multan City and the appellant intended to sell and usurp the amount.
On refusal, he committed the murder of his wife Mst. Shabana Aslarn (complainant's sister).
3. After police investigation, report under Section 173, Cr.P.C. was submitted before the trial Court, who after completion of codal formalities, framed the charge against the appellant to which he pleaded not guilty and claimed trial.
4. To prove the charge against the appellant, prosecution produced ten witnesses and also tendered documentary evidence.
PW-4 Jafar Hussain is the complainant and eye-witness of the occurrence, who deposed the same story as narrated in his complaint Ex.PB.
Mst. Riffat Aslam (PW-5) also deposed in line with the statement of PW-4, being inmates and eye- witness of the occurrence.
PW-7 Lady Doctor Asma Irfan, conducted the post-mortem examination on the dead body of deceased. Mst. Shabana Aslam and found following injuries:-- "Injury No. 1 A very large incised wound of 15 c.m. x 2 c.m. on the right side of the head beginning just behind the right ear, extending to the top of head and fracture of bone and brain material coming Out of the wound.
Injury No. 2 A linear incised wound of 7 c.m. x 2 c.m. x bone exposed just about 2.5 c.m. way from left ear; on her head.
Injury No. 3 Incised wound of 9 c.m. x 3 c.m. x bone exposed and fractured on the back of head 3 c.m. away from Injury No. 2, posteriorly brain material coming out of fractured skull bone.
Injury No. 4 An incised wound of 5 c.m. x 2 c.m. x mid of neck muscle deep.
Injury No. 5 An incised wound of 4.5 c.m. x 1.5 c.m. at mid of chest muscle deep.
Injury No. 6 A linear incised wound 4 c.m. x 1.5 c.m. on mid of the abdomen peritoneum deep, on abdomen.
Injury No. 7 Another linear incised wound of 4 c.m x 1.2 c.m. just blow Injury No. 6 x peritoneum deep, on abdomen.
Injury No. 8 An incised wound of 3 c.m. x 1.3 c.m. just below Injury No. 7 x peritoneum deep. On her abdomen.
REMARKS BY THE MEDICAL OFFICER/OPINION.
After thorough external and internal examination of the dead body Medico-legal Officer is of opinion that cause of death in this case was Injury No, 1 and 3. These two injuries caused by scarp edged weapon were sufficient to produce cardiogenic, neurogenic shock that led to her death. All the injuries were anti-mortem in nature. Her fetus was also dead in her uterus."
PW-10 Muhammad Afzal S.I./Investigating Officer, had conducted the investigation of the case.
He recorded statements of eye-witnesses under Section 161, Cr.P.C., escorted the dead body to the mortuary for autopsy and prepared rough site plan Ex.PG. On 08.08.2010 he arrested the appellant and on 11.08.2010, at the instance of appellant, recovered blood-stained axe (P-4) from his residential room and secured the same through recovery memo. Ex.PD. Rest of the prosecution witnesses, more or less are formal in nature.
5. After rlosure of prosecution evidence, the appellant had been examined under Section 342, Cr.P.C., he denied the charge levelled against him and professed his innocence, however he neither opted to appear under Section 340(2), Cr.P.C. nor produced any witness in his defence to disprove the allegation levelled against him.
6. The trial Court after hearing learned counsel for the parties, found the appellant guilty of the charge and sentenced him supra. Feeling aggrieved, the appellant has preferred instant appeal against his conviction.
7. Learned counsel for the appellant has contended that it was a blind murder, committed by someone else, in the room situated at rear side of appellant's house and the prosecution witnesses, shown to be present at the place of occurrence, were planted; that both the alleged eye-witnesses are not only closely related inter-se but also real brother and sister of the deceased; that the recovery of the blood stained axe is not proved as both the witnesses PW-4 (complainant) & PW-11 (Investigating Officer) are not in unison with regard to the factum of recovery and arrest of the appellant; that motive set-up by the prosecution is not proved, as PW-4 admits that the plot inherited to deceased Mst. Shabana Aslam was in his possession and he had constructed a house on her plot. Learned counsel further adds that it does not appeal to a prudent mind that in the presence of three prosecution witnesses, the appellant committed the murder of his wife Mst.
Shabana Aslam and inflicted eight injuries on her body; that the number of injuries on the body of deceased creates serious doubt with regard to the presence of the witnesses at the spot; that non- production of Muhammad Ramzan, an eye-witnesses of the occurrence, cast serious doubt as had he been present at the time and place of occurrence, he would have produced by the prosecution.
Lastly, it was prayed that the benefit of doubt, even slightest, should go in favour of the appellant.
8. Learned Deputy Prosecutor General appearing for the State has vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that the appellant, is nominated in the FIR with the specific role of causing injury on the person of the deceased; that it was a broad day light occurrence, which had taken place in appellant's own house and the question of his misidentification does not arise at all; that deceased Mst. Shabana Aslam, was wife of the appellant; that Mst. Riffat Aslam (PW-5) and complainant (PW-4) were natural witnesses; that Mst. Riffat Aslam, who was wife of real brother of appellant and being inmate of the house, has rightly been relied upon by the trial Court; that the motive behind the occurrence, as mentioned in the FIR, was a dispute of a 05- marlas plot, situated in City Multan and was inherited by father of deceased Mst. Shabana Aslam, which was in the possession of Muhammad Jafar Aslam (complainant) and the said fact with respect to the motive has been proved through cogent and reliable evidence made by PW-4 & PW-5; that the recovery of weapon of offence has already been effected and proved through report of Chemical Examiner as well as that of the Serologist; that the appellant has committed a heinous and barbaric act causing murder of his wife Mst. Shabana Aslam, who was pregnant with fetus of six months. Lastly, he submitted that the conviction and sentence of the appellant awarded by the trial Court is liable to be maintained being justified and well-reasoned on the basis of evidence produced by the prosecution.
9. I have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and have perused the record with their able assistance.
10. The ocular account in this case was furnished by Muhammad Jafar Aslam (PW-4) and Mst.
Riffat Aslam (PW-5). Muhammad Jafar Aslam while appearing in the witness-box as PW-4 had deposed that he along-with his maternal uncle Muhammad Ramzan went to see his sister in her village whereas Mst. Riffat Aslam (PW-5) wife of Asghar Nawaz was already present there (being inmate of the house). In their presence, Mst. Shabana Aslam was called for by the appellant for some pretext, after a while, they heard shrieks of her sister from rear room of the house. He along- with his maternal uncle and sister Mst. Riffat Aslam rushed to the place of occurrence and saw that the appellant was holding an axe in his hand and Mst. Shabana Aslam was trying to rescue herself.
In their view, appellant Mazhar Nawaz murdered Mst. Shabana Aslam and threatened the witnesses that if they step forward to apprehend him, he would not spare them and fled away from the place of occurrence. The witnesses attended Mst. Shabana Aslam, who had succumbed the injuries at the spot. Mst. Riffat Aslam appeared as PW-5 and deposed in line with Muhammad Jafar Aslam (PW-4) on all material particulars. She was residing in the house where this occurrence had taken place and her presence at the time and place of occurrence of Mst. Riffat Aslam conjointly with deceased Mst. Shabana Aslam cannot be doubted. She had corroborated each and every limb of the evidence adduced by Muhammad Jafar Aslam (PW-4) against the appellant. The appellant is real brother of husband of Mst. Riffat Aslam (PW-5) and the marriage is still intact.
Though both the witnesses were closely related to the deceased but they were not inimical to the,appellant and cannot be termed as interested witnesses, which fact alone cannot be taken as a tool to disbelieve their deposition. They being closely related to the appellant as well as the deceased would be the last persons to substitute the appellant with the real culprits.
11. There is nothing on record to show any previously enmity or some other facts to show that appellant was involved by the complainant in this case with any nefarious design. The appellant is nominated in promptitude FIR with specific role of causing injuries on the person of Mst. Shabana Aslam (deceased), which excludes all the deliberation, consultation and fabrication to falsely involve him in instant case. This is a case of single accused and in such like cases substitution is a real phenomenon. The ocular account furnished by both the PWs (PW-4 & PW-5) is quite natural, consistent and in line with each other. After lengthy cross-examination, the defence could not extract any favourable rather both the eye-witnesses stood affirm to the test of cross-examination.
The natural presence of both the eye-witnesses at the place of occurrence was rightly relied upon by the trial Court. Even for the sake of defence version, presence of Muhammad Jafar Aslam, the complainant at the place of occurrence is to be disbelieved, even then how the presence of Mst.
Riffat Aslam (PW-5 ) at the place of occurrence at the relevant time could be denied. I fence, I am convinced to hold that both the PWs (PW-4 & PW-5) were present at the place of occurrence being natural witnesses, as such their testimony inspires confidence and is reliable to maintain conviction against the appellant.
12. Motive behind the occurrence was that Mst. Shabana Aslam (deceased) had inherited plot measuring 05-marlas at City Multan and the appellant was intending to sale out the plot and usurp the sale proceed. In this regard, Mst. Riffat Aslam (PW-5) had deposed that the appellant had been compelling his wife to sell the plot and receive the sale amount but his wife/the deceased declined to sell the plot. PW-4 had stated that Mst. Shabana Aslam, the deceased told him that her husband was compelling her to sell the plot. He further deposed that the plot was inherited by her father. The said plot was in his possession. He was living there after constructing the house consisting of 17-marlas. He explained that both her sisters Ms/. Shabana Aslam (deceased) and Mst. Riffat Aslam (PW-5) have 05- marlas plot each, which was in his possession at that time. The ownership of the plot measuring 05-mar/a is not disputed one. The plots were inherited by her father and was situated at City Multan but so far as compelling attitude of the appellant towards his wife Mst. Shabana Aslam (deceased) is concerned, both the PWs have deposed that they were informed by their sister with regard to the demand of the appellant to usurp the amount of said plot in case of sale, on which, she resisted and ultimately the appellant committed the murder of his wife. No other motive has been brought on record by the Investigating Officer or the appellant in his statement recorded Under Section 342, Cr.P.C., in rebuttal. The only object/motive, in field was a dispute over the sale of plot (bone of contention) between the spouses hence, motive as alleged by the prosecution has been successfully proved.
13. To the extent of medical evidence, it has been observed that Dr. Asma Irfan, who conducted post-mortem examination on the dead body of Mst. Shabana Aslam (deceased) appeared as PW- 7 and noted eight injuries on her dead body. All the injuries were incised wounds caused by sharp edged weapon. Injuries No, 1 & 3 were mentioned being the cause of death. The time between injury and death has been noted immediately and between death and postmortem was five hours, which exactly supports the oral version of the prosecution. The kind of weapon used by the appellant and the duration between death and post-mortem also lends support to the ocular account.
14. The recovery of axe, at the instance of the appellant from a room of his residential house on 11.08.2010, is not believable. PW-4 has deposed that the appellant was arrested on 22.07.2010 and the blood stained axe was recovered at the same time whereas PW-10 Muhammad Afzal S.I./Investigating Officer had shown the arrest of the appellant on 08.08.2010 and during physical remand, the recovery of axe had been shown to be effected on 11.08.2010. There is contradiction in depositions of both' PWs (PW-4 and PW-10), despite positive report of the office of Chemical Examiner and Serologist lends no support to the recovery made by the Investigating Officer at the instance of the appellant hence, the same does not inspires confidence.
15. Learned counsel for the appellant maintained his stress upon the veracity of the eye- witnesses unbelievable being interested and closely related to the deceased. The close relationship of the witnesses with the deceased has no bearing to discard their testimony, if they are not inimical or interested to falsely implicate the appellant, who was also closely related to them. In this regard, I seek guidance from the case reported as case titled "Sheraz Tufail vs. the State" (2007 SCM R 518) wherein at page 523 it has been held as under:-- "It is also a settled law that mere relationship is not sufficient to discard the statement of the interested witnesses as law laid down by this Court is Roshin's case PLD 1977 SC 557."
Likewise, in another case titled as "Khair Muhammad and anotker versus State" (PLJ 2007 SC 226) at page No, 229 same proposition has been discussed. The relevant portion is reproduced hereunder for ready reference: "The contention of the learned counsel that witnesses being closely related to the deceased, were interested and not reliable, was without any substance as mere relationship is not sufficient to hold a witness interested or discard his evidence and in the present case the accused were also closely related to the witnesses, therefore, there would be no chance of false implication or substitution."
16. If the recovery of weapon of offence from the appellant is not proved, the same can be taken as a mitigation circumstance being supportive piece of evidence but it alone cannot be made basis to brush aside whole of the trustworthy evidence produced by the prosecution. The evidence available on record is sufficient to convict the appellant for an offence committed by him. So far as the quantum of sentence is concerned, it has straightaway been observed that as the recovery of crime weapon from the appellant could not be proved by the prosecution, therefore, the same can be taken as a mitigating circumstance to determine the quantum of sentence and the trial Court has rightly circumvented to pass capital sentence against the appellant.
17. In the afore-noted facts and circumstances of the case, I am of the considered view that it was the callous and barbaric act of the appellant to commit the murder of his wife, a pregnant lady, in his house and has rightly been convicted by the trial Court. After examining the evidence available on record, neither I find infirmity and illegality in the impugned judgment nor the same suffers from any misreading or non-reading of the evidence on record. The appeal in hand is without any merit, the same stands dismissed.