Appellants above named, being aggrieved by judgment dated 8th July, 1982, of the learned V111th Additional Sessions Judge, Karachi, in Sessions Case No. 510 of 1980, by which appellants have been convicted under section 304/34, P. P. C. And sentenced to suffer imprisonment for life and to pay fine of Rs. 3,000 each, and have further been convicted under section 323/34, P. P. C. And sentenced to suffer R. I. For 3 months, have preferred the above appeal on the following facts and grounds:- Briefly the case of the prosecution as disclosed in F. I. R. Exh. 17 lodged on 14-5-1980 at Police Station Chakiwara, Karachi by Muhammad Younus, the father of deceased Mst. Rahima wife of appellant Siddique is that his two daughters namely Rahima deceased and Soghra were given in marriage about one year ago to the two sons of appellant Hassan. Soghra was married to appellant Abdul Sattar, while Rahima deceased was married to appellant Muhammad Siddique. They were living near Ghafoor Hotel on Maiwa Shah Road in a Gall. It is stated in the report, that appellants used to maltreat his two daughters and he was not allowed to meet them in the house of the appellants.
Regarding the incident he has alleged, that on 13-5-1980 at about 11-00 a.m., while he was out of his house on job, he was informed by one Noor Muhammad living in his compound, that his daughter Rahima had been killed by her husband and his another daughter Soghra was also beaten by Muhammad Siddique and appellant Hassan, who is injured. He was further told, that the deceased was about to be taken for her burial in graveyard. On receipt of this information, he reached their house and saw that deceased Rahima was being taken to the graveyard. He further alleged in the report, that appellant Hassan did not permit him to see the face of the deceased Rahima, who was buried and also he did not permit him to meet his daughter Soghra. On this report the police registered a case under section 342, P. P. C.
The above report was taken down by P. W. 12 Fazal Dad A. S. L, who has deposed, that Muhammad Younus complainant appeared at P. S. On 14-5-1980 in the night at 01-20 hours and lodged his report Exh.
17. He registered the case and sent the copy of the F.1. R. To S. I. P. Ayub for investigation and did nothing further in this case.
As deposed to by P. W. 15 Muhammad Ayub S. 1. P. On receipt of the copy of F. I. R. Exh. 17 for investigation, he proceeded with complainant Younus to the house of appellant Hassan. From the house of appellant Hassan he recovered P. W. Mst. Soghra and prepared such memo. Recovery, which is Exh. 19 and bears signature of Younus and Suleman. He brought Mst. Sughra to the police station and recorded her statement under section 161, Cr. P. C. He found injuries on her person, so he referred her to the hospital for examination on the following morning. He produced the medical certificate which is Exh.
32. He also produced site plan of the place of occurrence, which he had prepared on his first visit of the Vardat and it is Exh.
33. This site plan shows that the house of appellant Hassan consists of two rooms, one veranda, a courtyard and bath room. He had also prepared memo. Of incident on that very night, which is Exh. 19.
On 14-5-1980 as stated by Investigating Officer Muhammad Ayoob, he moved an application to the Deputy Commissioner South, Karachi, for examination of dead body of deceased Mst. Rahima from graveyard of Maiwa Shah. He produced a letter to the D. C. South, which is Exh.
34. He also produced the sanction order as Exh. 35, in which Magistrate Mr. Amir Ali Behan was directed to supervise the proceedings. The police surgeon was also directed by D. C. South, to conduct the post-mortem of the deceased, at the graveyard. Accordingly on 15-5-1980 he along with complainant Younus, Police Surgeon Qaiser Rasool his assistants and Magistrate proceeded to Maiwa Shah Graveyard and on the pointation of complainant, the grave of Mst. Rahima was opened at 10-00 a. m. And on identification of the complainant the dead body was brought out and post-mortem was conducted on the spot. He proved the memo. Of pointation of grave, which is Exh. 10, which bears his signature of the Mashirs and the signature of the Magistrate. After the grave was dug out, he prepared a memo. Of the dead body of Rahima, which is Exh. 20, which bears his signature, the Mashirs, and that of Magistrate. He also prepared the Inquest Report of the dead-body, which is Exh.
21. According to him after the post-mortem was over, the dead body was again buried.
On 15-5-1980, he arrested appellant Sattar, Siddique, Hassan, and Hsi. Amna vide memo. Of arrest Exh.
18. He recorded statement of Mst. Hajra, Mst. Mariam, Mst. Hawa Bai, Suleman, Ghani and Dawood. He also recorded statement of Essa, Ishaque, Latif, Kassim, and other neighbours of the appellant, whose names he does not remember. On 18-5-80 he produced Mst. Sughra before a Magistrate, alongwith appellant who were under arrest and got her statement under section 164, Cr. P. C. Recorded. Again on 19-5-1980, he produced P. W. Mariam and Hajra before the Magistrate and in the presence of four appellants, their 164, Cr. P. C. Statements were recorded. After completing the investigation he submitted a challan against all the appellants showing Mst. Sakina as absconder, who later on got her bail before arrest from the Court.
At the trial, the prosecution in support of its case examined P. W. 1 Mst. Sughra, P. W. 2 Mst. Hajra, P.
W. 3 Mst. Mariam, P. W. 4 Mohabat Khan, Mashir P. W. 5 Police Surgeon Qaiser Rasool, P. W. 6 Muhammad Younus., P. W. 7 Noor Muhammad, P. W. 8 Suleman, P. W. 9 Mst. Hawa Bai, P. W. 10, Dawood, P. W. 11 Usman Ghani, P. W. 12 A. S. I. Fazal Dad, P. W. 13 Abdul Ghafoor, P. W. 14 Muhammad Saleem, and P. W. 15 Muhammad Ayub S. I. P., the Investigating Officer and further Ghulam Husain P.
W. 16, Dr. Abdul Majeed P. W. 17 and P.
1. Khawaja Nisar as P. W.
18. The side of the prosecution was closed vide statement of A. P. Exh.
41. Appellant Abdul Sattar Mst. Amna and Mst. Sakina have totally denied the allegation of the prosecution. Appellant Hassan in his statement under section 342, Cr.
P. C. Denied the allegation of beating to the deceased and also the allegation, that he bad suppressed the death of Rahima from her parents. In his further statement he stated as under: ---I was present in house at the time of incident. I found that deceased and her husband Siddique were quarrelling when be entered house at 10-00 p. m. My son was beating deceased with a hand fan. I separated them and both went in their room at that time, when Siddique was quarrelling with deceased, Mst. Sughra also intervened, who sustained some simple injuries on her person. After they were separated. I went upstairs, while deceased and Mst. Sughra went in their respective rooms. Siddique also went upstairs. Early in the morning when we got up, we found Mst. Rahima lying dead in her room. I am innocent.--- Appellant Muhammad Siddique the husband of deceased Rahima, after denying the allegation of the prosecution in his further statement has stated as under:- ---On the night of incident I returned home after my job at about 10-30 p. m., I was very much tired.
I asked for meals from my wife deceased Rahima. But the deceased and her sister Mst. Sughra started quarrelling and fighting with me. I had a hand fan in my band and I gave beating with it.
The sister of deceased also quarrelled with me so she might have sustained simple injuries on her.
My father Hussain came at that moment and separated us. The two sisters then went in their respective rooms, while I went with my father on upstair and slept there. Early in the morning when I got up, I found Rahima lying dead. I am innocent.--- The appellants had not examined any witness in their defence.
The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Sakina convicted and sentenced the appellants above named, as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
The learned Advocate for the appellants in support of the above appeal submitted as under:- (a)That the P. W. 1 Mst. Sughra is the only alleged eye-witness of the incident in question and on account of the constrained relations between this P. W. And appellants, her statement required independent corro--boration, which is not at all available in the present case. and as such on this ground alone the appellants are liable to be acquitted.
(b) That evidence of the rest of the prosecution witnesses also cannot be accepted without independent corroboration as they are closely related to the complainant.
(c) That the prosecution failed to establish the motive and as such the great doubt is thrown on the prosecution version.
(d) That the prosecution has led no evidence so as to attract the provi--sions of section 34 and consequently such appellants will be responsible for his own overt act, if any.
(e) That at the most prosecution has established case against the appellant Siddique for having given injuries to the deceased, but in view of the medical evidence on record, the offence if any, committed by appellant Siddiq would fall under section 323, P. P. C. Only and not under section 302, P. P. C. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1975 SC 351; PLD 1980 Kar. 288 ; 1979 P Cr. L J 1067 and 1974 P Cr. L J 567.
The learned Advocate appearing for the State on the other hand sub--mitted, that the prosecution has established its case beyond reasonable doubt under the provisions of section 302/34, P. P. C.
Against all the appellants in question, in view of the statement of P. W. Mst. Sughra, which has been corroborated by medical evidence as well as by other prosecution witnesses.
I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and the impugned judgment as well as the cases cited by the learned Advocate for the appellants.
P. W. 1 Mst. Sughra is the only eye-witness of the incident in question, in view of her unpleasant relationship with the appellants, which is obvious from her statement; prudence requires that her statement should not be acted upon, without independent corroboration. I further find, that prosecu--tion has led no evidence before the learned trial Court, which could have attracted the provisions of section 34, P. P. C. In respect of incident in--- question. Keeping in view these conclusions of mine and in the absence of any independent evidence on record, that appellants Muhammad Hassan, Abdus Sattar and Mst. Amina took part in the beating of the deceased, in my opinion prosecution has failed to establish its case against these appellants beyond reasonable doubt.
As far as appellant Muhammad Siddiq, the husband of the deceased is concerned, the statement of P. W. 1 Mst. Sughra, that this appellant gave injuries to the deceased is also borne out from the statement of this appellant under section 342, Cr. P. C. In which he has admitted, that he did give beating to her, but by fan. This appellant also admitted having given simple injuries to P. W. Mst.
Sughra, which establishes her presence at the time of inci--dent. In view of this the only question which requires consideration is, whether the offence committed by this appellant Muhammad Siddiq falls under sec--tion 302, P. P. C. Or under section 323, P. P. C. As urged by the learned.
Advocate for the appellants. In this connection the evidence of the Medical Officer and the post- mortem report clearly shows that the injuries received by the deceased were as a result of hard and blunt weapon and that death was due to cardio-respiratory failure, as a result of throttling and multiple injuries on head and neck. P. W. 1 Mst. Sughra does not allege, that the appellant Muhammad Siddiq tried to throttle her and consequently keeping in view the statement of P. W.
Qaiser Rasool the police surgeon, that the injuries I to 9 could have been caused by light stripe and injuries 10 to 27 could have been caused by whipping and/or by fail and further that none of the injury by itself were sufficient to cause death and the fact that this witness has further deposed, that contusions were also not of powerful and forceful nature nor there was any fracture and that thriode bone was not fractured, which shows that sufficient force was not used to completely throttle the deceased, the question of appellant having any intention to B murder the deceased in my opinion does not arise. Since however the death did occur as a result of cumulative effect of all injuries, the offence, committed by the appellant .In my opinion would fall under section 304(11), P. P.
C.
Therefore I allow the above appeal as far as appellant Muhammad Hassan, Abdus Sattar and Mst.
Amina are concerned, and set aside their convictions and sentences awarded to them and acquit them by giving them benefit of doubt and discharge the bail bonds executed by appellant Mst.
Amina and direct that appellants Muhammad Hassan and Abdus Sattar be released forthwith, if they are not required in any other case. As far as the appellant Muhammad Siddiq is concerned, I dismiss the above appeal However, I alter his conviction from section 302, P. P. C. To section 304(11),1 P. P. C. And consequently set aside sentences of life imprisonment awarded to him and sentence him to suffer R. I. For 5 years and impose a fine of Rs. 3,000, and in default to suffer further R. I. For 3 months and also convict him under section 323, P. P. C. In respect of simple injuries caused to P. W. 1 Mst. Sughra and sentence him to suffer R. I. For 3 months, while setting aside his conviction under section 342, P. P. C. By giving him benefit of doubt in respect of alleged wrongful confinement of the deceased, and or Mst. Sughra. All substantive sentences to run concurrently.
I further direct that benefits of the provisions of section 382-B, Cr. P. C., in respect of period of detention of appellant Muhammad Siddiq, as under--trial prisoner be given to him towards his substantive sentences in addition to all other remissions to which the appellant may be entitled in accordance with rules.