SH. MUHAMMAD ZUBAIR, J.--- Abdul Hamid (23) and his brother Ijaz (38) were tried under section 302/34, P.P.C. For the murder of Mst. Naureen Shaheen alias Pinky daughter of Muhammad Yaqoob complainant. The learned Sessions Judge, Gujranwala, who tried them, acquitted Ijaz of the charge, but convicted Abdul Hamid under section 302, P.P.C. And sentenced him to suffer death plus fine of Rs.20,000 or in default two years' R.I. This is vide judgment dated 20-4-1988. It was further ordered that in case, the sentence of death was not confirmed, the convict should pay Rs.5,000 as compensation to the legal heirs of the deceased or in lieu thereof to undergo R.I. For six months.
2. The convict has filed the present appeal, viz. Criminal Appeal No.428 of 1988 and the learned trial Judge has referred the case to this Court under section 374, Cr.P.C. For confirmation of death sentence. The complainant has filed Criminal Revision No.496 of 1988 for enhancement of compensation. We propose to dispose of the three matters by this single judgment.
3. The prosecution case, as disclosed by Muhammad Yaqoob complainant in the F.I.R:, is that he has four sons and three daughters. Two of his daughters are married, while the third, namely, Naureen Shaheen alias Pinky, the deceased in this case, is still virgin. It is stated that preceding evening of the occurrence, Ijaz accused accompanied by his were Robina, came to his house and asked the hand of his daughter, Mst. Naureen Shaheen for his brother Abdul Hamid. The complainant did not accede to his demand on account of family circumstances. It is alleged that while leaving Ijaz threatened the complainant, that this refusal on the part of the complainant would not bring a good result.
On the day of occurrence, at about 2-00 a.m., the door of the house was knocker. It was Schri time and the inmates of the house were awakened. It is alleged that Hamid Ali was also present in the house alongwith his family members. Mst. Naureen Shahecen deceased is alleged to have unbolted the door on the asking of the complainant. She saw that Abdul Hamid and Ijaz were present at the door. Abdul Hamid was armed with a Chhuri. He attacked Mst. Naureen Shaheen, and caused two Chhuri blows which landed on her chest. She retreated to the courtyard and fell down on the there should of the dinning hall, where she paid the debt of nature. Before the witnesses could apprehend the culprits, they succeeded in running away from the spot. Besides the complainant, the occurrence was witnessed by his son Muhammad Shuaib (P.W.6),, his son-in- law (P.W.7) and Hamid Ali (given up P.W.). This version of the case was taken down by Muhammad Saleem, Inspector, at 2-30 a.m. In Chowk Khiali Gate, Gujranwala, where he was on patrol duty.
Formal F.I.R. Exh.P.B./1 was recorded at the police station by Ghulam Hussain M.H.C. (P.W.10) at 2-50 a.m. On 17-5-1986. The said Inspector died one year before the commencement of trial so he could not be produced as a witness.
4. The investigation in this case was partly conducted by Muhammad Rafiq A.S.I. (P.W.11). He went to the spot, prepared the injury statement Exh. P.G., and inquest report Exh. P.H., and sent the dead body to the mortuary for post-mortem examination.
5. Post-mortem examination on the dead body of Mst. Naureen was conducted by Dr. Haji Ata-ul- Mustafa Chatha (P.W.1) on 17-5-1986, who found the following injuries thereon:
(1) An incised wound 7 c.m. x 3 c.m. Going deep on the front of top of left shoulder.
(2) An incised wound 2 c.m. x 1 c.m. Or, back of left upper arm upper part.
(3) An incised stabbed wound 3-1/2 c.m. x 3 c.m. x going deep in left breast, 3 c.m. From left nipple.
(4) An incised wound 2-1 /2 c.m. x 1 c.m. On right breast, 10 c.m. Away from right nipple.
(5) An incised wound 2 c.m. Perforating 3-1/2 c.m. x 3 c.m. On back of left elbow joint.
(6) An incised wound 2 c.m. x 1/2 c.m. x muscle deep just distal to the left wrist joint on the palmer surface.
(7) An incised wound 1-1/2 c.m. x 1/2 c.m. In the base of left little finger onpalmer surface.
Death in the opinion of the doctor occurred due to haemorrhage and shock as a result of injury No.3, which was sufficient to cause death in the ordinary cause of nature. The injuries were ante- mortem caused by sharp-edged weapon.
5. From the record, it appears that the appellant was arrested on 17-5-1986, and he got recovered Chhuri P.3, which according to the report of the Serologist was stained with human blood. It also appears that at the time of arrest, the appellant was injured and under the orders of the Magistrate he was got medically examined. According to the evidence of Dr. Haji Ata-ul-Mustafa Chatha (P.W.1), the appellant had 12 injuries on his person. Except injury No.11, which was of sharp-edged weapon, the remaining injuries were with blunt weapon and were simple, in nature. After completing legal formalities the police submitted the challan in the Court.
6. The appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations and made a detailed statement. It reads as under: "I have been made a victim of fabricated evidence by P.Ws. In active connivance with the police. I refute the allegations made against me. The prosecution is guilty of wilful suppression of actual facts. The true facts are that the deceased Naurin Shaheen alias Pinki was madly in love with me, and had vowed to marry me at all costs. We were on amorous visits with each other's house and had blessings of our elders including P.W. Yaqoob in solemnization of our marriage. P.W. Zaheer is the son-in-law of P.W. Yaqoob. Zulfiqar is his younger brother who is the chief culprit of this gristle tragedy. Zaheer P.W. Had asked for the hand of deceased for Zulfiqar but the deceased had refused to marry him whereupon Zulfiqar had become a jilted lover and had started considering me stumbling block and was on the look out for an occasion to eliminate me from his way. Zaheer P.W. Had poisoned P.W. Yaqoob against us who had adopted hostile attitude towards us. Deceased had been subjected to physical and mental torture by P.W. Yaqoob to force her to marry Zulfiqar preceding the eventful time but she remained adamant and did not yield. Finding an opportunity she left the house of her parents and came to my house and showed me the injuries of violence on her person at her back. She also entreated me to marry her, failing which she would commit suicide under the railway train. Finding myself in difficult situation I pacified her and persuaded her to refrain from taking such an extreme step because that would bring humiliations to both the parties. I sent for the parents of the deceased to take her back but I was intimated on behalf of the mother of the deceased to arrange her restoration during night hours at her house. Accordingly without apprehending any mischief I alongwith the deceased went to the house of P.W. Yaqoob and knocked at the door of drawing room at about 10/11 p.m. P.W. Shoab appeared with a stick in his hand. The moment we stepped in the drawing room, he closed the door and assaulted me with stick. Meanwhile Zulfiqar younger brother of P.W. Zaheer appeared at the scene from inside the house with a double-edged sharp weapon in his hand and assaulted me. Seeing my life in danger the deceased stood in front of me and despite repeated threats by Zulfiqar and P.W. Shoab to get aside, she did not budge an inch. This infuriated the frustrated lover Zulfiqar who gave fatal injuries to the deceased. Some inhabitants had collected at the spot who rescued me and I came to my house. In the morning I was arrested by the police and told the police the actual facts and had asked them to medically examine my injuries. Police had shown reluctance whereupon my medical examination was ordered by Mr. Muhammad Bakhsh, Magistrate on an application moved on my behalf through a counsel on 22-5-1986 on which date I had been produced before the Magistrate by the police. None else was present at the spot and nothing incriminating had been recovered from me."
7. The appellant also appeared as his own witness under section 340(2), Cr.P.C. And stuck to his statement under section 342, Cr.P.C. No evidence was produced in defence.
8. Relying on the ocular evidence furnished by Muhammad Yaqoob (P.W.5) fortified by the medical evidence and the recovery of Chhuri P.3, the trial Court convicted and sentenced the appellant as indicated above.
9. We have heard the learned counsel for the parties and have perused the record carefully with their able assistance.
10. The learned counsel for the appellant has raised the following contentions:
(a) that the F.I.R. In this case has been recorded after preliminary investigation, hence no reliance can be placed on this dubious document. The learned counsel in this connection has referred to the statement of Muhammad Rafique (P.W.11), wherein he admitted that he was present in his house, when Khalifa Aslam Councillor informed him about the occurrence. Then he went to the spot at 2=30 a.m.
(b) that it is a case of two versions. One version,, has been given by the prosecution whereas the other version has been advanced by the defence. The prosecution version is being supported by the close relations of the deceased and is contrary to the medical evidence. The defence version is more natural and probable and is being borne out by the material placed on the record.
(c) that Zulfiqar, the other suitor of the deceased, killed her in frustration at 11-00 p.m. After causing injuries to the ,appellant, when he went there alongwith the deceased after prevailing upon her that she should join her parents and the appellant would marry her with their consent.
10-A. The learned State counsel adopted those reasons which prevailed with the learned trial Judge, while passing the order under appeal. The learned complainant's counsel vehemently contended that the defence version is highly improbable, afterthought and contrary to the record, hence it should be rejected. The sentence of death be confirmed. Compensation under section 544-A, Cr.P.C. Be awarded to the legal heirs of the deceased.
11. We find no force in the submission of the learned defence counsel that the F.I.R. Was recorded after deliberation as there is no material on the record to substantiate this plea, except the bare statement of Muhammad Rafique (P.W.11) which is by itself contrary to the documentary evidence.
12. The cardinal principle of law for the assessment of the evidence in, the case of two versions is that both the versions are put in the juxtaposition, then on the basis of the record, the Court has to find out, which version is more probable, natural and nearer to the truth, of course subject to this condition, the burden of the proof always remains upon the prosecution.
13. The. Defence version that the deceased had gone to the house of the appellant on account of love affairs and maltreatment by the parents does not get any support from the circumstantial or other evidence brought on the record. The presence of Muhammad Yaqoob complainant (P.W.5), father of the deceased, cannot be doubted being inmate of the house, hence, we find no legal justification to discard his truthful and confidence inspiring evidence. According to the appellant, he all alone went to the house of the parents of the deceased at 10/11 p.m. To return the deceased, after persuading her, that she .Should join her parents, then the appellant would marry her with the consent of her parents. The falsehood of the version is exposed, if examined critically, no paramour would go to the house of his beloved all alone, in the circumstances mentioned above. Normally, he would take his mother or some elder female member of his family alongwith him to established his bona fide intention, while going to the house of his beloved. The time chosen by the appellant, that is 11-00 p.m. By itself, is against the natural human behaviour and is against the prevalent norms of our society. No paramour would be welcome as a visitor at such odd hours of the night in the house of the beloved. The time of death as mentioned in the F.I.R. Finds corroboration from the medical evidence, as the stomach,, was found healthy and empty by the doctor.
The learned defence counsel next contended that as the prosecution has failed to give any reasonable explanation, how the appellant received the injuries at the time of the occurrence, hence the defence version is nearer to the truth and probable.
13. We have considered these submissions carefully. We find no force in it, because from the conduct of the appellant and the medical evidence, it appears, these injuries are self-suffered. The appellant was arrested on 22-5-1985, whereas occurrence took between the night of 17/18th of May, 1985. If the appellant had received the injuries at the hands of the complainant party as claimed by him, then in all probability appellant would have himself appeared before the police to support his defence version. On the contrary, the appellant disappeared from the scene of occurrence, which shows his means tea and involvement in the crime. The doctor categorically admitted, the injuries found on the person of the appellant were not inflicted on the date of occurrence. The nature and locale of injuries lead to only one inference, that these are self- suffered, just to put a false defence in this case.
The plea of the appellant for substitution is on the face of it, preposterous and ludicrous, normally, no father would let of the real culprit without any rhyme or reason and instead make an innocent man scapegoat. Even if the statement of the appellant is accepted on its face value, still, Zulfiqar would not have such a strong motive to murder the deceased.
From the evidence brought on the record, it has been proved beyond reasonable doubt, that the appellant out of frustration, murdered the young girl, when she refused to cope with him. The appeal is; therefore, dismissed.
There is no mitigating circumstance in favour of the appellant, thus the sentence of death imposed upon the appellant is confirmed. The sentence of fine and compensation awarded to the heirs of the deceased is maintained.
14. For the foregoing reasons, we find no force in the Criminal Revision, which is at motion stage, hence dismissed in limine.