KHALID PAUL KHAWAJA, J.---- By this judgment we propose to dispose of Murder Reference No.107 of 1988 and Criminal Appeal No. 445 of 1958 which arise out of the judgment, dated 3-5-1988 whereby the learned Additional Sessions Judge, Lahore, convicted Abdul Wahad appellant (35) under section .302; P.P:C:, for having murdered his were Mst. Sakina Bibi (35/36) and sentenced him to death and a fine of Rs.10,000 or in default thereof to undergo two years' R.I. He was also convicted under section 324, P.P.C. For having caused injury to his mother-in-law Mst. Bashiran Bibi and sentenced to undergo three years' R.I. Under section 544-A, Cr.P.C. He was ordered to pay Rs.10,000 to the heirs of Mst Sakina Bibi deceased as compensation or in default thereof to undergo 6 months R.I 2: The occurrence took place on 19-4-1987 at 9-30 a.m in the house of Rehmat Ullah P.W.9 the father of the deceased, situate in Rajput Street, Quaid-e-Millat Colony, Lahore. The matter- was reported to the police through statement Exh..P.B. By Rehmatullah aforesaid which was recorded bySub-Inspector Altaf Hussain P.W.14 at Police Post Rakh Chandara on the same day at 10-30 a.m.
On the basis of which at 11 a.m. Formal F.I.R. EXh.P.B./1 was drawn up by Sub-Inspector Muhammad Siddique P.W.2 at Police Station Green Town.
3.The prosecution case as disclosed its the F.I.R., is that complainant Rehmatullah P.W.9 lives in Quaid-e-Millat Colony, Lahore along with his were Mst. Bashiran Bibi P.W.10. About 11/12 years before the occurrence, his daughters Mst Sakina Bibi deceased was married to Abdul Wahad appellant.
Out of the wedlock they had' children The appellant was addicted to Charas and did not do anything to earn livelihood. The deceased used to ask him to refrain from smoking; Charas and also or urged him to, do some work, on which the appellant used to beat her and turn her out of his house. About 15 days prior to the occurrence the appellant turned the deceased out of his house alongwith her children after giving her a beating. She came to "the" house of her father. On the t fateful day at 9-30 a.m. The appellant came to the house of- the complainant. He had a Kulhara and a big saw with him tohis house but she refused. The appellant was infuriated. He pushed the deceased who fell down, where after, he started inflicting kullzara blows which landed on her chest, abdomen flank and thingh. When Mst. Bashiran Bibi P.W, tried ,to rescue her daughter the complainant inflicted a Kulhara blow on her also which caused an injury on her right elbow. Due to infirmity the complainant could not intervene. However, when he raised alarm the appellant started running away alongwith the Kulhara In the meanwhile Naik Muhammad P.W.7 came there and snatched away the Kulhara from the appellant. The latter however, succeeded in running away.
The deceased succumbed to her injuries at the spot. Leaving Mst. Bashiran Bibi and Majid Ahmad P.Ws. At the place of occurrence to guard the dead body the complainant proceeded to the police station to lodge the report, when on his way he met Sub-inspector Altaf Hussain, Incharge Police Post Rakh Chandara.
4. After recording the statement Exh. P.B. Of the complainant, Sub---Inspector Altaf Hussain P.W.14 proceeded to the place of occurrence and on reaching there prepared the injury statement of the deceased Exh. P.G. And inquest report Exh. P.H. He also prepared the injury statement Exh. P.I. Of Mst.
Bashiran Bibi P.W. And took blood-stained earth into possession and sealed it into a parcel vide memo. Exh.P.E. Naik Muhammad P.W. Produced blood--stained Kulhara P.4 which he took into possession and sealed into a parcel vide memo. Exh. P.D. On 20-4-1987 he arrested the appellant and took into possession his blood-stained Chadar Exh. P.1, which he was wearing at that time, and sealed it into a parcel vide memo. Exh. P.C. After the completion of the investigation the appellant was challaned.
5. On 20-4-1987 at 12-45 p.m. Dr. Amar Ali Chaudhry (P.W.5) performed post-mortem examination on the dead body of Mst. Sakina Bibi deceased aged about 35/36 years. He found the following injuries on the dead body:-- (1)A lacerated wound measuring 27 x 6 c.m. Vertical in direction on the right side of chest 4 c.m.
Below neck, 2 c.m. To the right of mid-line with thoracic visceras exposed.
(2)A lacerated wound measuring 28 x 5 c.m. Vertical in direction on the left side of chest and abdomen, 5 c.m. Below neck, 6 c.m. From the mid-line, abdominal and thoracic visceras were exposed.
(3)A lacerated wound 21 x 9 c.m. On abdomen in the mid-line with the lower limit of the wound extending up to right thigh with intestines and uterus exposed.
(4)A lacerated wound 5 x 1.5 c.m. Obliquely direction, 8 c.m. Below right nipple on right side of chest, skin deep.
(5)A lacerated wound 15 x 4 c.m. Horizontal in direction on the right buttock, muscle deep.
On dissection the doctor made the following observations: "All the costal cartilages below second on the right side were cut. All the costal cartilages below first on the left side were cut. Both the pleura were cut. Both the lungs were lacerated. Right ventricle of the heart was cut. Peritoneum, diaphragm, small intestine and liver were also cut.
Uterus, on dissection revealed an embryo of approximately 8 to 10 weeks of age. Rest of the organs were healthy.
6. On 19-4-1987 at about 4 p.m. Dr. Imran Mirza P.W.13 medically examined Mst. Bashiran Bibi P.W.
And found the following injury on her person:-- (1)A lacerated wound 3 x .5 c.m. Bone deep on back right elbow with swelling 6 x 3 c.m.
The injury was kept under observation but was declared simple subsequently. Exh. P.F. Is the carbon copy of the medico-legal report.
7. The appellant was formally charged under sections 302 and 324, P.P.C. He pleaded not guilty.
8. The prosecution examined 14 witnesses in support of their case including the two eye-witnesses namely Rehmatullah P.W.9 and Mst. Bashiran Bibi P.W.10.
9. In his statement under section 342, Cr.P.C. The appellant denied having caused the death of his were and maintained that he was not present at the time and place of occurrence. He also denied that Naik Muhammad P.W. Had snatched away blood-stained Kulhara P.4 from him soon after the occurrence. Replying to the question as to why he had been involved in the present case and why the P.Ws. Had deposed against him he stated:-- "I have been implicated in this case falsely by my in-laws. I was not present at the spot. My were Mst. Sakina Bibi deceased was not of good character and I restrained her from coming to the house of her parents but she would come again after struggling with me. I learnt after my arrest that some unknown persons came to the house of my in-laws, insisted upon her to accompany her and on her refusal murdered her."
10. He opted to make a statement on oath under section 340, Cr.P.C. Which is almost identical to his statement under section 342, Cr.P.C. He also examined his minor daughter Mst. Hajran aged about 10/11 years as a defence witness. The latter, as D.W.2 stated that her mother Mst. Sakina deceased had not been murdered by the appellant but had been murdered by an unknown person who had visited the house of her maternal-grandmother and had compelled the deceased to accompany him and when she refused to do so she was done to death.
11. Relying on the prosecution evidence and disbelieving the defence plea the learned trial Court convicted and sentenced the appellant as indicated above. Feeling aggrieved the appellant has lodged an appeal while the trial Court has submitted the case under section 374, Cr.P.C. For the confirmation of his death sentence. We propose to dispose of both these matters by this judgment.
12. We have heard the learned counsel for the appellant and that of the r State. We have also gone through the record with their help.
13. Learned counsel for the appellant has maintained that the prosecution had failed to establish the guilt of the appellant beyond reasonable doubt and therefore, he was entitled to acquittal. In support of his assertion he has raised the following contentions:-- (1)The prosecution evidence on the subject of motive being highly discrepant and contradictory is not worthy of reliance.
(2)There is no evidence on record, worth the name, to establish that the weapon of offence Kulhara P.4 had been recovered from the appellant.
(3)The recovery of blood-stained Chadar of the appellant Exh.P.1 was highly doubtful and thus unworthy of credence.
(4)The ocular evidence consists of the statements of two highly interested witnesses whose testimony could not be relied upon without independent corroboration and in view of the absence of any such corroboration the same was liable to be discarded.
(5)Lastly, the defence version was more plausible and natural and therefore, should have been relied upon especially when it was supported by the testimony of Mst. Hajran D.W.2 the minor daughter of the deceased.
14. On the other hand the learned counsel for the State defended the impugned order and maintained that there was ample evidence on record to justify the conviction of the appellant and sentence imposed on him.
15. Rehmat Ullah complainant P.W.9 had stated in the F.I.R. That the dispute between the appellant and his deceased were was that the former was a Charas addict who did nothing to earn livelihood and when the latter asked him to refrain from smoking Charas and do some work, he used to beat her and turn her out of his house. According to the F.I.R. It was on account of this dispute that the deceased had been thrown out of the appellant's house about a fortnight prior to the occurrence. During the trial however, the complainant did not stick to this version and maintained that the only dispute between the appellant and his were was over some golden ear- rings which her in-laws had given her at the time of marriage but had taken them away subsequently. He categorically stated that there was no other dispute between the spouses. Mst.
Bashiran Bibi P.W.10 has also not supported the version of motive as contained in the F.I.R. She asserted that the motive for the crime was that the appellant used to beat his were as and when she asked him to provide maintenance to her and her children. It is thus manifestly clear that the prosecution evidence on the subject of motive is contradictory and discrepant. Obviously it is not safe to place any reliance on such evidence.
16. As regards the recovery of blood-stained Kulhara Exh.P.4 not a single witness has supported the prosecution case and that is why the learned trial Court has not believed this recovery. We also share the view of the learned trial Court in this regard. Even otherwise, there is no evidence on record to establish that the Kulhara in question was stained with human blood and therefore, its recovery is of no consequence.
17. As regards the recovery of blood-stained Chadar Exh.P.1 the prosecution's case is that the appellant was wearing it at the time of his arrest on 20-4-1987 and the Investigating Officer had removed it from his person and taken into possession vide memo. Exh. P.C. Sub-Inspector, Altaf Hussain P.W.14 the Investigating Officer has made a statement in support of this version. Inayat Ullah P.W.3 an attesting witness of the recovery memo. Exh. P.C. States that the Chadar was recovered from the place of occurrence. He does not say that it was removed from the person of the appellant. In fact he makes no mention of the presence of the appellant at the time of the said recovery. The statements of the two witnesses are irreconcilable in so far as according to the Investigating Officer the recovery of the Chadar in question and the arrest of the appellant were simultaneously effected in the house of the appellant situated in village Kahna Nau whereas according to Inayat Ullah P.W. The recovery was effected from the place of occurrence i.e. In the house of Rehmat Ullah complainant situated in Quaid-e-Millat Colony, Lahore. This serious contradiction renders the recovery highly doubtful and we are not persuaded to believe it.
18. This brings us to the ocular evidence, which consists of the statements of the parents of Mst.
Sakina Bibi deceased. It is true that the eye-witnesses are closely related to the deceased but there is nothing on record to establish that they had any previous enmity with their son-in-law i.e. The appellant or had any motive to involve him in a false case. Their testimony could not, therefore, be discarded merely on the ground that they were related to the deceased. This relationship would also not bring them into the category of interested witnesses.
19. Admittedly, the occurrence took place in the house of Rehmat Ullah P.W.9. He and his were Mst.
Bashiran P.W.10 being inmates of the said house, therefore, were the most natural witnesses. The occurrence took place at about 9-30 a.m. Both the witnesses being persons of advanced ages were expected to be present in the house at that time of the day. We, therefore, have no doubt in our minds that they were present at the spot when the occurrence took place.
20. Additionally, medical evidence on the record, namely, the medico-legal report Exh. P.F., proves beyond a shadow of doubt that Mst. Bashiran P.W. Had sustained an injury on her right elbow during the occurrence. It was never suggested to Dr. Imran Mirza P.W.13, who medically examined the said witness, that the said injury was self-inflicted. We, therefore, have no hesitation to hold that Mst. Bashiran Bibi had witnessed the occurrence from a very close range.
21. Both the eye-witnesses have unanimously stated that on the day of occurrence Abdul Wahad appellant had visited their house and killed his were Mst. Sakina deceased by inflicting injuries on her with a Kulhara. During cross---examination of the said witnesses the learned defence counsel succeeded in extracting some discrepancies but we are not inclined to give much importance to these, firstly because they are of minor nature and secondly they have occurred in the statements of witnesses who are not only old and infirm but are also illiterate. Such witnesses are not expected to give a photographic account of an incident, which took place about a year ago. The discrepancies appearing in the statements of the eye-witnesses therefore are natural and we do not share the view of the learned counsel for the appellant that the ocular evidence was liable to be discarded on account of these discrepancies. As already pointed out the eye--witnesses had no motive to falsely implicate their son-in-law. The occurrence took place in broad daylight and therefore, there was no possibility of any mistaken identity. Being a case of single accused the question of substitution also did not arise. In these circumstances we are not persuaded to agree with the contention raised by the learned counsel for the appellant that the ocular evidence was unworthy of credence. On the other hand we are of the view that the said witnesses had actually seen the occurrence and had given a true account of it.
22. As regards the defence version it neither rings true nor appears to be probable. Learned counsel for the appellant had no satisfactory answer to the question as to why the parents of the deceased would falsely implicate their son---in-law in a murder case when actually the killer of their daughter was some one else. The statement of Mst. Hajran D.W.2 the minor daughter of the appellant does not appear to be of much value. At the time of her statement in the trial Court she was living with the elder brother of the appellant and being a minor, therefore, was prone to succumb to the pressure of her uncle, who was strenuously trying to save his brother from the gallows. Her statement is not sufficient to dislodge the testimony of the eye-witnesses. Learned counsel for the appellant has tried to take advantage of the statements of Majid Ahmad Khan P.W.6 and Naik Muhammad P.W.7 to urge that the defence version had the support of the prosecution witnesses. The said witnesses were essentially the witnesses of the recovery of the blood-stained Kulhara Exh.P.4 but had not supported the prosecution case and were declared hostile. They were cross---examined by the learned prosecutor also. In their cross-examination by the learned defence counsel they conceded that it was a general impression that Mst. Sakina deceased who had a general reputation of being a loose character woman had been done to death by some unknown person. Such hostile witnesses have never been considered to be worthy of any trust especially when they were not the actual eye-witnesses of the occurrence. They had resiled from their previous statements and had tried to help the appellant. We, therefore, have no intention to give any weight to their concessional statements. Finding ourselves in agreement with the learned trial Court we hold that the defence version does not deserve to be acted upon. ,
23. From the above discussion we are convinced that on the day of occurrence Abdul Wahad appellant had visited the house of Rehmat Ullah P.W.9 where his were had come after having a quarrel with him. He inflicted injuries on her with a Kulhara and thereby caused her death. There, however, is no convincing evidence on record as to what transpired between the deceased and the appellant immediately before the infliction of injuries. It might be that the deceased had misbehaved with the appellant. In these circumstances the appellant deserved lesser penalty.
Finding him guilty of the murder of his were Mst. Sakina deceased we, therefore, convert the death sentence awarded to him into life imprisonment. The sentence of fine is upheld. The appeal is accepted to the extent of the modification of sentence. The death sentence is not confirmed.
Murder Reference is answered accordingly.