Mst. Farah Naz alias Nazi (17) was tried by the Additional Sessions Judge, Rawalpindi, for the murder of Muhammad Mushtaq her dance. On 17th March, 1980 she was convicted under section 301, P. P.
C. And sentenced to, imprisonment for life with a fine of Rs. 10,000 in default to undergo six months'
R. I. Further. The convict's appeal and the revision filed by Fazal Elahi, father of the deceased, for enhancement of sentence, are before me.
2. Mushtaq deceased's father and Mst. Farah Naz appellant's father were old friends ; as such the deceased and the appellant were engaged to be married. But the appellant, her sisters and brothers were not in favour of the match. Therefore, in order to get rid of her fiance, the appellant planned to murder him. According to the prosecution, on 22nd June, 1978, the appellant went to Mushtaq's hotel and from there the two went away in deceased's Suzuki Van. On reaching Shakarparian Hills situated in Islamabad, they parked the van at West View Point parking site. Abdul Ghafoor Constable, Imtiaz Hussain, Murid Hussain Shah, Constable, Shaukat Ali, Supervisor, C. D. A.
And Muhammad Iqbal gardener were present at Shakarparian Hills in connection with their respective duties. At about 4.30 p. m. They heard the report of a tire-arm and ran towards the Suzuki van, they saw the appellant firing three shots at Mushtaq with the revolver which they snatched from her. She was apprehended. Mushtaq fell dead there and then, Msr. Farrah Naz dis-- closed to them the aforementioned motive for the crime. Leaving others with the dead body, Abdul Ghafoor Constable went to make a report covering a distance of three miles, he reached Aabpara Police Station and made the F. I. R. Exh. P. J. At 5-15 p. m. To P. W. 10 Arshad Hussain , S I/S. H. O. After recording the same, the S. 1. Went to the place of occur--rence, inspected the spot and arrested the accused. P. W. 8 Imtiaz Hussain Constable produced revolver (P-1) before the S. I. Who took out from its chamber four empties (P. 2/1-4) and two live cartridges (P. 3/1-2). These were made into a sealed parcel through memo. Exh. P. D. Attested by P. W. 6 Shaukat Ali and Muhammad Iqbal (given up having been won over). On deceased's search the S. I. Took into possession driving licence (P. 4), currency notes and coins (P. 5), two cassettes (P. 6 and P. 7) and a cassette cover (P. b) through memo. Exh. P. E. Attested by P. W. 6 Shaukat Ali and Muhammad Sadiq A.S.-I. (given up as unnecessary). After collecting the blood-stained earth from the spot, he sent the dead body for its post-mortem examination. From the appellant he took into possession one wrist-watch (P. 16), a bunch of keys (P. 17) and currency notes of the value of Rs. 10,000 and two bags. The white bag (P.
9) contained one coloured handkerchief (P. 14), one nail cutter (P. 12), coins of the value of Rs. 5 and box (P. 13) containing 17 cassettes (P. 13/1-17), The brown bag (P. 10) contained three bunians (P. 23 to P. 25), three under wears (P. 26 to P. 28), two pairs of white socks (P. 30-31) one azar--band (P.
29), three flappers and three bushirts (P. 15/1-6). The two bags and the cassettes were taken into possession through memo. Exh. P. H. Attested by P. W. 6 Shaukat Ali and Muhammad Sadiq A.S.-I.
(given up). The Suzuki van No. R. I. D. 6862 was taken into possession through memo. Exh. P. C.
Attested by the same aforesaid witnesses. The same day the S. 1. Deposited the sealed parcels in the malkhana with P. W. 2 Abdur Rauf Moharrir.
3. On 23rd June, 1978 P. W. 5, Dr. Mubarak Ali Shah, Medical Officer, D. H. Q. Hospital, Rawalpindi, held the autopsy on the dead body of Mushtaq aged about 22 years and found the following injuries on it :---
(1) Lacerated punched in wound of entry 0.3 cm x 0.3 c.m. On upper lateral part of left thigh. Dried blood was sticking to the wound margins.
(2) Lacerated punched in wound of entry 0.3 c. m. x 0.2 c. m. On left lateral part of lower abdomen.
The wound was - at 5" and 2 o'clock position from umbilicus Dried blood was sticking to its margins.
(3) lacerated punched wound of exit 0.5 c.m. x 0.5 c.m. On .Right lateral part of upper-chest. The wound was at 4------ and 8 o'clock position from right nipple. Dried blood was sticking to the margins of wound.
(4) Lacerated punched in wound of entry 0.3 c.m. x 0.3 c.m, on right mid-chest back near the mid- line, dried blood was sticking to the wound margins."
Under injury No. 1 the bullet was embedded in the left thigh quar--dricep lemoris muscle. Under wound No. 2 the bullet passed through the peritoneum loops of intestine, left lobe of liver, the dome of diaphragm, the right lung and causing a fracture of the 7th rib it came out through the exit wound No. 3. Injury No. 4 was a wound of entry caused by a bullet that passed through left ventricle of the heart and was found embedded in the left lung.
In doctor's opinion the deceased died of shock and haemorrhage caused by the injuries which were individually sufficient to cause death in the ordinary course of nature.
4. The two lead bullets recovered from the dead body contained in the sealed foil (Exh. P. 22) were handed over to the Investigating Officer. The same day he took them into possession vide memo.
Exh. P. K. Attested by P. W. 8 Imtiaz Hussain Shah Constable besides the S. I. The revolver, the crime empties and the lead bullets were sent to the fire-arm expert for his opinion. On 28th September, 1979 through Exh. D. F. The Expert gave a negative opinion about the four crime empties. About the two lead bullets, he could form no opinion for want of data. It may be mentioned here that P. W. 3 Muhammad Ramzan Constable in all received three pracels on 26th June, 1978 from the Moharrir, the one which related to blood-stained earth was delivered by him at the office of Chemical Examiner. At the Forensic Science Laboratory an objection was raised about the sealed parcels, the details of the objection are not known. However, these parcels were brought back to Police Station Aabpara and finally delivered at the laboratory on 1st July, 1978.
5. P. W. 9 Tariq Parvaiz, A. S. P. Islamabad verified the investiga--tion. On 30th June, 1978 he took into possession cassette (P. 1) which was produced before him by P. W. 4 Fazal Elahi brother of the deceased. Haji Muhammad Afzal (not produced) father of the deceased was also present at that time. The cassette, P. l was the recording of the conversation between Mst. Farrah Naz and Mushtaq deceased which the deceased had recorded. P. W. 4 Fazal Elahi had prepared its transcript, Exh. P.
C. The A. S. P. Also recorded the statement of Muhammad Afzal and his son Fazal Elahi. After completing the investigation the appellant was sent up for trial.
6. At the trial Mst. Farrah Naz denied guilt and said that she was betrothed to Mushtaq deceased.
She claimed to be happy with the engage--ment and added that Mushtaq was not of a feeble mind. Further, according to her, deceased's father owed Rs. 2,50,000 to her father and brothers ; for this reason they had changed their mind about her engage--ment and wanted to back out of the commitment, but she claimed to have remained firm about .It. She denied having had telephonic conversation with, Mushtaq and also denied having demanded Rs. 7,000 from him. According to her, she never telephoned the deceased. Her alleged conver--sation with the deceased on the telephone was tape-recorded which was played to her in Court. But according to her, it was not her voice. She also denied the recovery of the pistol from her and said that it was planted on her. She, however, admitted her presence at the place of occurrence and her arrest later the same day from there. About the other articles recovered from her hand-bags and her person, she said that as she had planned to elope with the deceased and to marry him, therefore, she carried them. Explaining the case against her, she made the following statement :- I and Mushtaq had planned to run away----We had made arrangements. That is why 1 had taken with me my clothes, other articles and the money. We had gone to Shakar Parian to make future plans. We had gone there separately as per programme. We were talking to each other when somebody fired at us. I was saved and remained unhurt while Mushtaq got injured and was killed.
None of the P.-Ws. Was at the spot at that time. Later on a constable came who is not a witness in this case and I narrated the story to him and he called the local police there. I was coerced to implicate falsely but I did not do so hence I was arrested and challaned. I do not know how to handle a revolver.
All through even relatives of the deceased Mushtaq have maintained that somebody else, i.e. My brothers had killed Mushtaq. They even submitted applications to the authorities saying that 1 was not the culprit in this case. I am innocent."
7. Relying on the evidence of eye-witnesses and the apprehension of the appellant at the spot, trial Court came to the conclusion that the pro--secution has satisfactorily proved its case against her.
8. Criticising the findings of the trial Court, learned counsel for the appellant contended that the motive as alleged by the prosecution has not been proved. P. W. 4 Fazal Elahi, brother of the deceased, had said that the sisters and brothers of Msc. Farrah Naz were opposed to the marriage because Mushtaq was considered by them to be not of sound mind. This witness did not mention whether Mst. Farrah Naz also thought so and was opposed to her marriage with the deceased. On the contrary in her state--ment at the trial she said that she had approved of the match and was even prepared to elope with him which fact was supported by the articles recovered from her possession and that she would not carry Rs. 10,000 with her if she had just gone on an outing to Shakarparian. On the basis of these circumstances, learned counsel contended that the appellant wanted to run away with the deceased and had not planned to kill him. It was next contended that according to the prosecution, the- only source of information about the motive, as alleged in the F.
I. R. Was her own admission that she wanted to get rid of her fiance. True, prosecution has not produced any witness to show that the appellant also wanted to get rid of the deceased. In my view this is not one of those cases where the prosecution has alleged a particular motive as such.
In the F. I. R. The informant only stated what the appellant herself told him and the same was supported by the other two eye-witnesses. May be the appellant, desired to elope and something happened between them which enraged her to kill him. It may be pointed out here that, there being not much material about the motive, therefore, it was one of the reasons which weighed with the trial Court for not awarding the capital sentence in this case.
9. The sole question for determination in this appeal would be whether the eye-witnesses could be relied upon. Criticising the evidence learned counsel for the appellant contended that the medical evidence made it clear that the deceased suffered three wounds of entry, therefore, in all three shots were fired at him, but according to the eye-witnesses, in all four shots were tired at the deceased. They heard the report of the first shot and saw the deceased staggering, thereafter he was fired at thrice and hit. It may be mentioned here that although the eye-witnesses did state that the deceased staggered when they first saw him after hearing the report of the first shot, yet this would not mean the first shot hit him. The witnesses did not qualify staggering. Had the first shot hit the deceas--ed, then the witnesses would have noticed the injury and seen blood oozing out of it, but in this regard there was nothing of the kind in their evidence. In all probability the appellant missed the first shot and in a state of shock the deceased staggered. In this view of the matter. I am not inclined to hold that the medical evidence was in conflict with the ocular testimony. In this context it was also argued that injury No. 2 was the wound of entrance in the abdomen and injury No. 3 near the shoulder was its wound of exit. The upward direction of the bullet would show that the victim was at a higher level from the assailant but, according to the eye-witnesses, the deceased was standing in front of the appellant. This again to my mind, would not be a material contradiction because Shakarparian is a hilly area. In his attempt to escape the deceased might have gone up the higher level or may be that after having been hit he toppled and his body posture changed and the bullet of the next shot went straight in the abdomen and came out from near the shoulder after striking the 7th rib. Under these circumstances, the submission that the deceased was at a higher level was not something material.
10. Learned counsel vehemently argued that if the circumstances of the case belie the evidence of the eye-witnesses then it would be unsafe to rely upon their testimony simply because they were disinterested witnesses and had no motive to involve the accused. I have already considered the submission with regard to the medical evidence and the ocular testimony. The next piece of evidence which has to be considered in the light of the aforementioned submission is the report of the fire-arm expert Exh. D. E. It was contended that the revolver and the four crime empties were sent to the fire-arm expert. Since the negative report (Exh. D. F.) did not suit the prosecution, therefore, it was withheld but the defence confronted the Investigating Officer with it. This revealed that the empties did not match with the revolver and for want of data no opinion about the bullets extracted from the body could be given. Relying on the fire-arm expert's report, learned counsel argued that the revolver said to have been snatched away from the appellant was, in fact, not the weapon of crime in this case. I have considered this aspect of the case as well. No doubt, now the fire-arm expert's report like the Chemical Examiner's is admitted in evidence under the special rules of evidence. Suffice it to say that the fire-arm expert's report Exh. D. F. Is dated 29th August, 1978, i.e. Two months after the weapon has been received by the expert. Moreover the report is not accompanied by expert's detailed examination and reasons on the basis of which he formed the opinion. It may also be added here that the parcels of the revolver, bullets and the empties were at one stage brought back by the constable on the objection raised by the Forensic Science Laboratory and they were again sent back but the precise objection is also not known. On the other hand the eye-witnesses who appeared in Court were subjected to lengthy cross-examination but there was nothing to indicate that any one of them bad any motive or was falsely trying to make believe his presence at the spot. Their presence at Shakarparian was nothing unusual or unnatural.
They were on duty there. They have fully corroborated each other. No doubt P. W. 7 Abdul Ghafoor and P. W. 8 Imtiaz are policemen, but they are like any other witness. They have no reason to become false witnesses of the occurrence. Moreover, their evi--dence is fully corroborated by P. W.
6 Shaukat Ali who is Supervisor in the C. D. A. He is also a disinterested witness, and had no motive against the appellant.
11. Learned counsel for the appellant referred to a photostat copy of an application marked Exh. C.
By the trial Court, alleged to have been sent by the brother and father of the deceased to the Chief Martial Law Administrator. P. W. 4 Fazal Flahi brother of the deceased was confronted with it, but he was not certain whether it bore his signatures. He, however, denied having made this application. In this application it has been mentioned that it was a pre-planned murder and that the brothers of the appellant were the real culprits in this case. It may be straightaway mentioned here that this is a photostat copy, the defence did not arrange for the production of its original. However, learned counsel for the appellant argued that since P. W. Fazal Elahi had said that signatures on the application might be his, therefore, an inference can be drawn that he was purposely denying his signatures. I have considered the matter. Assuming that such an application was made, the question would then be whether this apple--cation created enough doubt to throw away the testimony of the eye-witnesses. I am of the view that it will not affect the value of the ocular testimony because, may be that in their anxiety to rope in some male members of the family of the appellant, the relations of the deceased made an attempt by making such applications. Moreover B there is nothing in this application to show that the relations of the deceased had completely exonerated the appellant. It may be mentioned here that the narration from this application referred to by the learned counsel starts with the assertion that it was a pre-planned murder. I am therefore, of the opinion that even if the application is read in evidence it would not shake the credibility of the three disinterested eye-witnesses who narrated what they saw and one of them made a prompt report to the police.
12. In the end it may be mentioned that reference to the conver--sation contained in the cassette (P-1) of which Exh. P, C. Is the trans--cript, will not be necessary in this case. According to the brother of the deceased, appellant's father had complained to the deceased's father that his son had been ringing up the appellant. Though the two were engaged to be married, yet in the oriental culture to which they belonged it is normally expected that the by and the girl should have no contact whatsoever- before "Rukhsati". Through cassette P. I. The deceased's family wanted to prove that, in fact it was Mst. Farah Naz who always took the initiative to ring up Mushtaq. Be that as it may, this did not materially affect the case of either side. I have already concluded that the motive story was one of the week points of the prosecution case the benefit of which has already been extended to the appellant by way of a lesser penalty. What actually transpired between the appellant and her fiance just before the occurrence is not known. Had there been a third person near about and had been invol--ved in the occurrence, then the three eye-witnesses would not have substituted the appellant for him. The defence has not been able to crack the reliability of eye-witnesses. I am, therefore, satisfied with the guilt of the appellant. Dismissing her appeal, I direct that the benefit of section 382-B, Cr. P. C. Be extended to her, and the period that she remained in custody during the trial, shall be excluded from the remaining period of her sentence.