Saleh Khan appellant has preferred this appeal against the judgment dated 12.9.2017 handed down by learned Additional Sessions Judge, Fateh Jang, Attack in case FIR No. 95 dated 17.3:2017, registered under Section 302 PPC, at Police Station Fateh Jang, whereby he was convicted under Section 302(b) PPC and sentenced to imprisonment for life with direction to pay compensation under Section 544-A, Cr.P.C. to the tune of Rs.200,000/- to the legal heirs of deceased, in default thereof to further undergo 06 months S.I. The benefit of Section 382-B, Cr.P.C. was, however , extended in his favour .
2. The prosecution story set forth in complaint (Ex.PN) got recorded by Noor Janan complainant (PW10) is that the complainant was a mason, residing in a rented house at Fateh Jang alongwith his family , two sons were serving abroad, one son aged 12 years was student,; whereby two daughters were married and one was unmarried. His daughter Hayat Mina (deceased) was married with Saleh Khan accused, resident of Umer Khel, Frontier Region, District Khurram Agency , who was temporarily residing at College More, Mohallah Farooq-e-Azam, Fateh Jang.
The accused had his own house but had no earning due to which he used to quarrel with his wife/deceased and also used to bring customers to sell his house, but his wife/deceased used to admonish him. Consequently she was ousted from the house on different occasions and finally on 16.03.2017 during night accused tried to expel his wife from his house but she refused and informed the complainant. On 17.03.3017 at about 7:30 a.m. complainant alongwith his wife namely Noor Sahib Jan went to the house of their daughter in Mohallah Farooq-e-Azam to settle the matter between the spouses but the accused flared up and started to use filthy language against his wife/complainant's daughter , who also admonished the accused, upon which the accused pulled out pistol from the fold of his trouser and made straight fire shot on Hayat Mina, which landed on the left side of her head, consequently she fell down on the cot. Accused took to his heels and also threatened the PWs of dire consequence. Hence, the crime report.
3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Court, wherein, after observing legal formalities as provided in the Criminal Procedure Code, 1898, learned trial Court framed charge against the 'appellant, to which he pleaded not guilty and claimed trial. The prosecution, in order to prove its case against the appellant, examined eleven witnesses before learned trial Court, out of whom Noor Janan, complainant (PW10) and Noor Sahib Jan (PW1 1) have furnished ocular evidence. Lehrasib Ali S.I. (PW8) and Anjum Sohail S.I.
(PW9), being the investigating officers of the case, stated about various steps taken by them during the course of investigation. The medical evidence was furnished by lady Dr. Saima Noor (PW3), who conducted; postmortem examination on the dead body of Hayat Mina deceased and observed as under On Examination: The following injuries were found:-
1. A fire-arm lacerated wound measuring 1 cm x 1.5 cm, present 2 cm, above left ear with ingoing margins, blackening present at surrounding of the injury . It was entry wound.
2. A fire-arm lacerated wound present on right side of the neck 2 cm below the lob of right ear with outgoing margins measuring 1.5 cm x 1.5 cm.
The doctor (PW3) opined that the deceased died due to severe head injuries No. 1 and 2, which damaged vital centers in brain and developed cardiop ulmonary arrest and death. The time between injury and death was immediate whereas between death and postmortem examination was three to four hours.
The remaining prosecution witnesses, more or less, are formal The prosecution gave up Said Muhammad Jan, Muhammad Umer and Rizwan Raza 720/C, PWs being unnecessary and closed its evidence after tendering in evidence the reports of Punjab Forensic Science Agency (Ex.PO and Ex.PP).
4. After completion of prosecution evidenc e, learned trial Court went on to record the statement under Section 342, Cr.P.C. of the appellant wherein he refuted the allegations leveled by the prosecution against him and professed his innocence. He neither opted to make statement on oath as provided under Section 340(2), Cr.P.C. nor produced any witness to disprove the allegations leveled by the prosecution against him. While answering the question that "why this case against him and why the PWs have deposed against him?" Saleh Khan appellant stated as under: "The instant case is result of suicide and complainant party got registered a false case against me to grab the house, of my family . They demanded the said house against my acquittal. PWs are from complainant's family and the other are from police department. They deposed against me just to strengthen the false case of prosecution.
5. Upon culmination of trial, learned trial Court found the case against Saleh Khan appellant to have been proved beyond any reasonable doubt, thus, convicted and sentenced him as mentioned and detailed in Paragraph No. 1 above, hence, the instant appeal before this Court.
6. Learned counsel for the appellant contends that judgment dated 12.09.2017 passed by learned Additional Sessions Judge, Fateh Jang, Attock is result of non-reading and misreading of evidence; that factual and legal aspects of the case have not been appreciated in its true perspective, which resulted in grave miscarriage of justice; that there are material contradictions in the statements of the prosecution witnesses, even otherwise, they could not furnish any plausible explanatio n to be present at the scene of occurrence at the relevant time; that the prosecution witnesses made crude improvements on material aspects pf the case making them highly doubtful. It is further contended that the prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence which aspect of the matter went unnoticed causing serious prejudice against the appellant. It was also contended that from the medical evidence and other circumstances, it was clear cut a case of suicide but said aspect of the case was not properly appreciated by learned trial Court. Moreover , the oral version of the prosecution witnesses has not been examined thoroughly; that it is pointed that motive as mentioned in the FIR could not be established besides that no investigation whatsoever was conducted to determine its genuineness; that the recovery of crime weapon is planted one and the motive alleged against the appellant is not proved by the prosecution; that the. prosecution has failed to prove its case beyond shadow of doubt. Lastly it has been submitted that all the legal heirs of the deceased, except one minor son, have forgiven the appellant in the name of Almighty Allah and have no objection on his acquittal, so this appeal maybe accepted, conviction and sentence of the appellant may be set aside and he may be acquitted of the charge.
7. On the other hand, learned District Public Prosecutor contends that the appellant is specifically named in FIR with specific role of causing injuries to the deceased; that the ocular account has been proved beyond shadow of doubt and in spite of lengthy cross-examination, the eye-witnesses remained consistent on all material points; that the role attributed to the appellant is borne out from medical history of decea sed and medical evidence has provided full corroboration to the ocular account furnished by witnesses; that the prosecution case is further strengthened by the recovery of crime weapon as well as positive report of the Punjab Forensic Science Agency according to which the weapon recovered from the appellant was the same which he had used to murder his own, better half; that mere weakness of motive part of the prosecution's case cannot be made basis to grant acquittal to the accused and at the most it can be considered to determine quantum Of senten ce, benefit of which has already been extended in favour of the accused while not awarding him the normal punishment of death; that the prosecution has proved its case against the appellant to the hilt, hence, his appeal may be dismissed and the conviction and sentence may be upheld.
8. I have given anxious consideration to the arguments advanced by learned counsel for the appellant and learned District Public Prosecutor and have examined the available record with their able assistance.
9. I have straightaway observed that it was a case of promptly lodged FIR (Ex.PD) as the incident in issue was reported by Noor Janan complainant (PW-10) to the police within short span of two hours and twenty minutes which excluded the element of deliberatio n or consultation on the part of the complainant. I have further observed, that Saleh Khan appellant is duly named in FIR (Ex.PD) as the sole perpetrator of the offence in question with specific allegation that he had murdered, none else but his own better half in his own house in a brutal and ruthless manner .
10. In order to prove above allegations against the appellant, the prosecution has examined Noor Janan complainant (PW-10) and Mst. Noor Sahib Jan (PW-11), who happened to be the parents of the deceased and they were present in the house of their daughter in order to resolve the dispute between the husband and wife as the appellant Saleh Khan wanted to dispose of the house where he alongwith his family was residing. Due to their close and sensitive relationship with the deceased, they were not likely , to let off the actual perpetrator by implicating the appellant falsely in a case involving the murder of their beloved daughter . Even otherwise, it is well settled law that substitution of real culprits especially in cases where the eye-witnesses lost their kith and kin before their own eyes is rare phenomenon. Reliance is placed on the case 'of Sheraz Khan us. The State (2010 SCMR 1772 ). So far as the contention of learned counsel for the appellant that the eye-witness account has been furnished by related and interested witne sses is concerned, it is well settled by now that an interested witness' is one who is interested in the conviction of, an accused for some ulterior motive, but the defence could not bring on record any ulterior motive of the complainant or the witnesses to falsely implicate the appellant in this case and when the defence failed to attribute any malice on the prosecution witnesses, they are considered as reliable witnesses. Guidance can be sought from the case of "Muhammad Aslam us. The State" (2012 SCMR 593).
Furthermore, both the eye-witnesses have unambiguously explained that it was daylight occurrence, which had taken place in the house of their daughter/deceased as well as the appellant, so their presence at the spot in the house of their daughter/deceased at the 'relevant time was neither unnatural nor unusual. Despite grueling cross- examination by 1 the defence regarding the main incident, both the eye-witnesses remained consistent throughout on each and every material point and their credibility could not be shattered.
So far as discrepancy pointed out by learned counsel for the appellant in the statement of Mst. Noor Sahib Jan (PW-11) is Concerned, it is worthwhile to mention here that being an old and illitera te lady of remote area, it cannot be expected from Mst. Noor Sahib Jan (PW-11) to give rationale answer of each and every question put by the defence during cross-examination on her. Even otherwise, law; does not permit the Court to pick and choose one sentence from the whole evidence and base its decision while reading only that sentence in favour of the appellant in isolation to the remaining evidence available on record. However relying on the contention of learned counsel for the appellant, if the testimony of Mst. Noor Sahib Jan (PW-11) is taken out of consideration, even then the statement of Noor Janan (PW-10) being trustworthy and confidence inspiring is enough to connect the appellant with the commission of crime.
11. Apart from the steadfast and trustworthy eye-witness account, there is yet another circumstance that the deceased being wife of the appellant was his vulnerable dependent and she had met an unnatural death in the house of the appellant, therefore, the appellant was under legal obligation to narrate the circumstance in which such unnatural death of his own better half had occurred and in the absence of any plausible explanation, he is liable to be held fully responsible for homicidal death of the deceased especially when the recovery of dead body had also found ample corroboration from the other circumstances of the case like medical evidence and recovery of weapon of of fence.
12. As far as the arguments that medical evidence runs contrary to the prosecution version, it may be observed that medical evidence is in complete harmony with the ocular testimony and no conflict could be pointed out to createdent in the prosecution case as the anti-mortem injuries on the person of Mst. Hayat Mina deceased are reflected in her postmortem report (Ex.P C), which became the cause of her unnatural death. Postmortem report (Ex.PC) reflects that the injury present 2cm above left ear of the deceased, which went through and through and made its exit from right side of her neck, was caused by fire-arm weapon and according to the eye-witnesses of the incident, the said injury was caused by the appellant. Furthermore, the ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injury as narrated by the eye-witnesses has also folly tallied with medical evidence.
13. As far as the recovery of pistol .30 bore (P5) from the appellant is concerned, I have noted that during spot inspection on 17.03.2017, one crime empty was taken into possession by the investigating officer from the place of occurrence, which was subsequently received in the office of Punjab Forensic Science Agency on 20.03.2017. The appellant was arrested by the investigating officer on 05.04.2017 and he made disclosure and got recovered the weapon of offence pistol .30 bore (P15) on 9.4.2017, which was subsequently sent to the Punjab Forensic Science Agency on 14.04.2017. According to the report of the Punjab Forensic Science Agency available on record as Ex.PP , the weapon of offence recovered on the pointation of the appellant matched with the crime empty collected by the investigating officer from the place of occurrence, so the positive report (Ex.PP) has further strengthened the prosecution case against the appellant.
14. Insofar as the motive is concerned, I have observed that the prosecution has set up a specific motive, according to which the appellant wanted to sell out his house but the deceased had been admonishing and quarreling with him. Though the eye-wi tnesses have stated about the motive part of prosecution's case, but admittedly the house which was allegedly intended to be sold by the appellant was not in his exclusive ownership and could have not been sold out by him; alone, therefore, I am of the view that the motive introduced by the eye- witnesses was not the actual reason behind the incident and what was the nature of disputes which prompted the appellant to take such extreme steps remained shrouded in mystery .
15. As far as the contention of the learned counsel for the appellant that the legal heirs of Mst. Hayat Mina deceased, except her minor son, have forgiven the appellant in the name; of Almighty Allah and have no objection on his acquittal is concerned, it is well settled by now that in order to effect a compromise in case of ta'zir, it must be complete in all respects, otherwise it cannot be considered for the purpose of acquittal. Reliance is placed upon "Muhammad Amin vs. The State" (2016 SCMR 116), wherein the Hon'ble Supreme Court of Pakistan has been pleased to hold that partial compromise may not have any bearing upon conviction of an accused person in a case of Ta'zir but it may have, in the circumstances of a given case,' some relevance to the question of sentence in such a case . In the present case, the appellant has already been awarded alternate sentence of imprisonment for life by learned trial Court keeping in view the facts and circumstances of the case, so the contention of learned counsel for the appellant in respect of incomplete compromise does not bear any significance over the fate of the case.
16. After evaluating the case from all angles, I have come to the irresistible conclusion that though the prosecution could not prove motive part of the incident against the appellant, yet sufficient incriminating evidence is available on record to convict him on the charge of murder of his own wife Mst. Hayat Mina deceased. The trustworthy and confidence inspiring eye-witness account is strongly; supported by the medical evidence as well as the recovery of weapon of offence (P5) and the positive report (Ex.PP) of the Punjab Forensic Science Agency , therefore, I have sufficient reasons to hold that the prosecution has proved its case against the appe llant beyond the shadow of any doubt and as such the judgment recorded by learned trial Court is neither unfounded nor does it suffer from any legal infirmity .
17. In the light of above discussion, the conviction and sentence awarded by learn ed trial Court to the appellant on the charge under Section 302(b), PPC is maintained and upheld and the benefit of Section 382-B, Cr.P.C. shall also be available to him. Consequently , Criminal Appeal No.240 of 2018 is hereby dismissed.