' F.I.R. (Exh.PA.) was registered at Police Station Haveli, District Okara on 26-10-1984 at 8 a.m. By Aswa r All Shah, Inspector/S.H.O. (P.W.10) on the statement of Mst. Kararti Elahi (P.W.2) under section 302/109/34, P.P.C..
1. According to the F.I.R. Mst. Sakhian, daughter of the complainant was married to Yasin. She was pregnant. The complainant had brought her to her house for delivery of child. Mst. Sakhian had illicit relations with Muhammad Rafiq, a co-villager prior to her marriage. In fact, the complainant had married her on account of that. But Muhammad Rafiq used to hanker after her even after that.
A day before the occurrence, he came up to the door of the complainant along with Muhammad Khan, Subah Sadiq and Muhammad Arif and asked Mst. Sakhian sternly as to why does not she elope with him. Whereupon Mst. Sakhian abused him. Muhammad Siddique son of the complainant beseeched Muhammad Rafiq etc. Whereupon Muhammad Rafiq went away throwing challenge that he will see her.
' During the night of occurrence, the complainant was sleeping in the courtyard alongwith Nazir Ahmad, her son, Muhammad Siddique, her stepson and Mst. Sakhian. A burning lantern hanging with the Shisham tree had lightened the courtyard. Muhammad Rafiq entered the courtyard at Sargiwela armed with a pistol. He put off the quilt from Mst. Sakhian, whereupon she raised a noise, as a result of which the complainant and her sons Nazir Ahmad and Muhamamd Siddique woke up. Muhammad Rafiq told Mst. Sakhian that he will teach her a lesson for not going with him and fired a shot at her, which struck her on the upper part of right eye. When the complainant and her sons made a noise, he threatened them with dire consequences and fired another shot hitting Mst.
Sakhian on the right side of the nipple as a result of which she died. Muhammad Rafiq ran away along with the pistol. At that time the complainant saw Muhammad Khan and Subah Sadiq standing inside the door. They also ran away along with Muhammad Rafiq. They were identified in the light of the lantern. It is mentioned towards the end of the F.I.R. That Mst. Sakhian was murderd in conspiracy with and at the instance of Muhammad Arif son of Ghulam Muhammad and it was he who had supplied pistol to Muhammad Rafiq.
2. The Inspector/S.H.O. After recording the F.I.R. Proceeded to the spot. He dispatched the dead body for post-mortem examination after preparing necessary papers. He collected blood-stained earth from there. Blood-stained cot, along with Gadda, Khes, Chadar and pillow were also taken into possession. Muhammad Khan was arrested by him on 29-10-1984. Rafiq was arrested on 711-1984.
Subah Sadiq was arrested on 15-11-1984.
' Muhammad Rafiq led to the recovery of pistol (P.11) from underneath a Kicker tree on 20-11-1984, which was taken into possession vide memo. Exh.P.F. The challan was put to Court after completion of investigaiton.
3. Statements of ten P.Ws. Were recorded at the trial by the Sessions Judge. The learned trial Judge vide judgment, dated 4-5-1986, convicted Muhammad Rafiq under section 302, P.P.C.. And sentenced him to death, plus to pay a fine of Rs,10,000 in default whereof to undergo R.I. For six months.
' The three co-accused of Muhammad Rafiq had been acquitted during trial under section 265-K, Cr.P.C.
4. The convict has filed appeal. The learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.
5. Dr. Muhammad Fakhar Ali, who had performed autopsy on the dead body of Mst. Sakhian at 3-30 p.m. On 26-10-1984, appeared as P.W.9. He had noted the following injuries on her body:-
(1) Lacerated wound, 4 x 4 c.m. x going deep into the cranial cavity on the right eyebrow. Tatooing was present around the wound.
(2) Lacerated wound 2 x 2 c.m. Going deep into the chest cavity on the upper part of right chest.
Tatooing was present around the wound.
(3) Lacerated wound 1/2 c.m. x 1/2 c.m. x skin deep on the tip of left index finger. Tatooing was present around the wound.
(4) Tatooing was present on the middle and distal phalynx of left middle forger.
' During dissection, nine pellets were removed from the body. Two pieces of wads were removed from the chest cavity while two pieces of wads were removed from cranial cavity. The frontal bone was found fractured. The brain matter was found torn badly.
' According to his opinion, injuries Nos. 1 and 2 were sufficient to cause death individually and collectively in the ordinary course of nature while injuries 3 and 4 were declared simple. All the injuries were opined to have been caused by a fire-arm. Time between death and injuries was opined to be immediate while between death and post-mortem was opined to be within 12 hours.
' The doctor had noted that uterus contained foetus of about seven months' duration. The bladder was found empty.
' During cross-examination, he stated that the shots would have been fired from one to three feet.
6. Mst. Karam Elahi complainant while appearing as P.W.2 repeated the facts given by her in the F.I.R. She, however, did not name Muhammad Khan, Subah Sadiq and Muhammad Arif in any context, i,e, of either having accompanied the appellant at the time of incident, which took place during day time or of having accompanied him at the time of occurrence or of Arif having instigated the offence in any manner. During cross-examination, she stated that the appellant had developed illicit intimacy with the deceased prior to her marriage and used to visit their house after every two/three days in spite of their forbidding him. While answering another question she explained that Mst. Sakhian was not showing willingness to develop illicit intimacy with the accused but he was insisting. She stated. That Muhammad Rafiq never went to see Mst. Sakhian in the house of her husband. She stated that her step-son Siddique was married, had six children and was living in a separate house, but had slept in her house on night of occurrence. In answer to another question, she stated that she had taken the lantern to the police station and had produced the same before the Inspector at the police station. She denied the suggestion that her son Nazir had murdered the deceased on account of her insistence to continue illicit relations with the appellant. She accepted the suggestion that the case was registered after investigation at the spot.
' Nazir Ahmad while appearing as P.W.3 corroborated the statement made by Mst. Karam Elahi at the trial. During cross-examination, he also admitted that the case was registered after investigation at the spot. He added that the S.H.O. Wanted them to satisfy him that it was Rafiq who had committed the murder. He did not accept the suggestion that the S.H.O. Had taken him to the police station. He contradicted his mother with regard to the lantern having been taken by her to the police station. According to him the lantern, was taken into possession by the police from the spot. He stated that 20/25 persons had reached the spot soon after the occurrence was over. He denied the suggestion that he had murdered his sister due to her persistent bad character and had falsely implicated the appellant.
' Sardar Khan (P.W.5) deposed about the recovery of pistol (P.11) at the instance of the appellant, which has been corroborated by Aswa r Ali Shah, Inspector (P.W.10).
' The Inspector while giving the accounts of registration of case, arrest of the accused and the investigation conducted by him denied the suggestion during cross-examination that he had registered the case after preliminary investigation or that he had planted the pistol on the appellant. He also denied the suggestion that the deceased was murdered by her brothers due to her illicit connections with the accused. He stated that he had mentioned the presence of lantern in column No,23 of the inquest report. He admitted that he had not seen any perforation by pellets either in the quilt used by the deceased or the shirt worn by her.
' The statements of the other witnesses are more or less of a formal nature.
7. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
8. Learned counsel for the appellant after taking us through the evidence criticised the impugned judgment and contended that both the eye-witnesses are interested for being related, that they have made contradictory statements and do not appear to have made correct depositions and as such their testimonies do not inspire confidence; that although they had named three other persons also as accused but at the trial they omitted their names for their own benefit; that the F.I.R. Was lodged after preliminary investigations and as such no weight can be given to the same having been lodged at 8 a.m.; that since no empty was recovered from the spot, the recovery of pistol at the instance of the appellant is of no corroborative value; that the story of appellant's intention to abduct the deceased appears to be unbelievable, in view of the fact that even according to the complainants he was continually having unhindered access to the deceased for illicit intimacy.
9. Learned counsel for the State defended the judgment of the trial Court and contended that the eye-witnesses being inmates of the house are natural witnesses and that they had no enmity to involve the appellant falsely.
10. The presence of both the eye-witnesses in the courtyard, where the occurrence took place, cannot be doubted for any reason. They were inmates of the house and so their claim of having slept in the courtyard during the night of occurrence cannot be rejected for any reasons. The whole question, requiring consideration is, whether their statements inspire confidence or not and whether there is any reason to hold that they might have involved the appellant falsely?
11. It is not a case where the complainants have come with a version that they suspected illicit intimacy of the appellant with the deceased. Herein is a case where the complainants clearly stated that they had full knowledge about the illicit intimacy of the accused with the deceased prior to her marriage. In fact. Mst. Karam Elahi stated during cross-examination that he used to visit their house as well. She stated, that they had married her (deceased) only in order to send her away from the house so that illicit relationship is discontinued. The witnesses, in fact, showed their utter helplessness in the matter of illicit liaison of the deceased with the appellant. It cannot, therefore, be imagined that suddenly the brothers of the deceased made up their minds to murder her after her marriage and involve the appellant. If they had any such guts, they would not have incurred expenditure in marrying her. Moreover, their target in that case would firstly have been the appellant than their own sister, as it was the appellant who used to adamantly visit their house in spite of objections.
12. The criticism of the learned counsel about the testimonies of the two eye-witnesses is mainly directed on account of their having omitted the names of the co-accused of the appellant, who were charged in the F.I.R. To have accompanied the appellant for commission of offence and on account of the discrepant statements made by them, and also for the reason that they had in a way conceded that the F.I.R. Was lodged after preliminary investigations.
13. We have applied our minds to these aspects. The omission of the names of the persons mentioned in the F.I.R. At the trial does not demerit the case against the appellant in any manner. It was never the case of the complainants that those persons had done anything or even facilitated the murder. Their absolution, therefore, cannot lessen the credibility of the ocular account.
14. The statements made by the eye-witnesses that the F.I.R. Was recorded after preliminary investigations also do not advance the case of the appellant. Firstly, for the reason, that this suggestion was denied by the Inspector/S.H.O. C and secondly, for the reason that the witnesses never stated that the case was registered after consultations and mechanizations or at the suggestion of anyone else. All that can be inferred from their statements is that the Inspector might have inquired from them vigorously about the position they were taking against I the appellant before the registration of the case.
15. The contradiction between the statements of two eye-witnesses about lantern having been taken into possesison by the Inspector at the spot or at the police station on production by P.W.2, in our view, does not make the case of the prosecution doubtful warranting disbelief of the ocular account.
16. The other point raised by the learned counsel for the appellant was that neither the shirt nor the brassier of the deceased was found perforated in spite of the fact that she was found to have suffered one injury on the right nipple. Learned counsel while pointing out this fact wanted us to believe that the deceased might have been caused injuries at some other place in some other manner and then placed on the cot.
17. We regret to say that we do not find any weight in this farfetched idea. The injuries suffered by the deceased show that the death must have been instantaneous and she would have bled profusely. If she had been done to death in any other part of the courtyard, the blood fallen on the ground would have been noted, if not by the police, by the persons who had come to the place immediately after the occurrence. The other aspect of the matter is that in that case, bedding pieces of clothes lying on the cot, where the dead body of the deceased was found, could not have been stained with so much blood. Still another aspect is that if the contention of the learned counsel for the appellant has got to be granted that there must have been perforation in the shirt and the brassier then the brassier and the shirt would have been also perforated, if she had been caused injuries at another place unless of course she had been struck down after stripping her of the brassier and shirt, which we cannot even imagine.
' Yet the other point is that on examination of diagram of the injuries, it is apparent that the injury was on the uppermost part of the nipple, which possibly could have been naked because of the looseness of the brassier and the shirt. In this view of the matter, this contention of the learned counsel also does not advance the case of the appellant in any manner.
18. Apart from all what has been discussed above, the other thing which we have noticed in this case is that except the fact of the appellant having cultivated illicit liaison with the deceased, the complainants had no other enmity with him. They had been bearing that for a long time. The only step they took in this regard was that they married the deceased in another village. Neither they confronted the appellant by way of aggression, nor did they make complaint against him to the authorities or the Punchayat even. In these circumstances. We do not think that the complainants would have concocted a false story to involve the appellant. No suggestion whatsoever was made during trial that any third party or person could have any interest in doing away with the deceased.
19. For all the reasons noted above, we do not find any merit in this appeal. The same is dismissed and the sentence of death is confirmed.