MUHAMMAD AMIR MALIK, J.--- Appellant Zakir Hussain is the son of Nazar Muhammad from the womb of Mst. Fatima acquitted co-accused. Bali is a step-brother of Zakir Hussain appellant. Mst.
Hussain Bibi is the sister of Nazar Muhammad and mother of Mazhar Hussain complainant (P.W.3)
Zafar Hussain (P.W.4) and Mst. Parveen (the deceased) of the case. This Parveen was married to abovementioned Bati. They had three daughters, the elder being Mst. Zarnageen (P.W.5) aged about 16 years.
2. Mst. Parveen was murdered in the area of their village Parianwali at about 10-00 a.m. On 13-4- 1986 at a distance of 2 miles from the police station over there. Mazhar Hussain complainant (P.W.3) lodged the F.I.R. (Exh.P.B.) at the police station at 10-45 a.m. And was recorded by Ch. Muhammad Tufail Hayat, S.I. (P.W.10).
3. The case as disclosed in the F.I.R. Was that Mst. Parveen was married to Bad 20/25 years before the occurrence and had three daughters. Their mother Mst. Hussain Bibi had inherited some land in the village, which was in possession of Zakir Hussain appellant etc. She wanted to give the land to her daughter Parveen. Zakir etc. Used to dispute with Parveen over it. The complainant alongwith his brother Zafar Hussain (P.Ws. 3 and 4) and Muhammad Asghar (given up P.W.) reached the village of occurrence in the evening of 12-4-1986 and at night asked the appellant and his mother Mst.
Fatima accused about the land who refused to vacate its possession. When pressed, they threatened that they would not leave Mst. Parveen in a position to get the land. The version proceeds that at the fateful time the deceased alongwith her daughter Zarnageen were returning from the fields with fodder, the complainant Zafar, P.W. And Asghar (given up) were going towards her Dera and when she reached near the wheat field of Sadiq the appellant armed with a rifle emerged from the field and fired at the deceased from behind hitting her in the head. She fell down. The complainant and the witnesses ran towards the spot, the appellant fired a second shot in the air and ran away towards North. Parveen expired at the spot. It was alleged that the murder was committed with the conspiracy of Mst. Fatima Bibi co-accused.
4. Dr. Nazir Ahmad Anwar (P.W.9) performed the autopsy on the dead body on the very day of occurrence at 5-00 p.m. He observed the following injuries:-- (1)A fire-arm wound of inlet 1-1/4 c.m. x 1-1/4 c.m. Over the back of left pinna, going into the base of skull towards the right side of the face.
(2)A fire-arm wound of exit 8 c.m. x 7 c.m. Over the right side of the face. A black spot near injury No.1 1 c.m. x 1/2 c.m. And another over the left upper arm in an area of 5 c.m. x 5 c.m. Were present.
The injuries were the result of fire-arm, ante-mortem and sufficient to result in death in the ordinary course of nature. Death was immediate and time between the death and post-mortem was given by the doctor to be 6 to 9 hours.
The stomach was containing about 3 ounces of fluid material, the intestines contained gases and faecal matter, bladder contained about one ounce of urine and uterus contained full term male baby. Two vaginal swa bs were also taken by the doctor and handed over to the police. These were sent to the Chemical Examiner in due course and have been reported, vide (Exh. P.K.) to be semen stained.
5. Tufail Hayat, S.I. (P.W.10) investigated the case. On reaching the spot he prepared inquest report (Exh. P.G.) and injury statement (Exh. P.H.) and sent the dead body for post-mortem examination.
He recovered blood-stained earth from the spot vide memo. (Exh. P.C.) and sealed into a parcel. He prepared rough site plan without scale (Exh. P.J.I. He arrested Mst. Fatima accused on 16-4-1980.
The appellant was arrested by Muzaffar Hussain on 19-4-1986. The appellant got recovered 7 mm rifle on 26-4-1986 while under investigation with Tufail Hayat S.I. And was secured vide memo.
(Exh.P.A.).
6. The appellant at the close of the trial asserted innocence and pleaded that Mazhar Hussain complainant, the brother-in-law of his brother Bati was inimical to him, so alongwith Mst.
Zarnageen and Zafar Hussain, P.W. Had implicated him and his mother, so that Bati could succeed to whole of the property of the family.
7. At the trial Mazhar Hussain complainant, his brother Zafar Hussain and Mst. Zarnageen (P.Ws.3, 4 and 5) gave the ocular account of the occurrence, the former two also deposed about the motive.
Dr. Nazir Ahmad Anwar (P.W.9) provided medical evidence. The recovery of rifle (Exh. P.1) at the instance of the appellant was stated to by Ijaz Ahmad and Tufail Hayat S.I. (P.Ws. 2 and 10). Relying upon the evidence thus provided by the prosecution, the charge was concluded against the appellant while his co-accused Mst. Fatima was acquitted. The appellant was convicted under section 302, P.P.C. And sentenced to suffer death and a fine of Rs.10,000 to be paid to the heirs of Mst. Parveen (deceased) as compensation or in default thereof one year's R.I., by Additional Sessions Judge, Gujrat vide his judgment, dated 27-1-1988.
8. The matter is before us on reference under section 374, Cr.P.C. For the confirmation of the death sentence. The convict has also appealed. It is proposed to dispose of the reference and the appeal by a single judgment.
9. Learned counsel for the appellant contended that Mazhar Hussain and Zafar Hussain were not present at the spot. Due to enmity they had prevailed upon Mst. Zarnageen as well and have implicated the appellant falsely. Learned counsel for the State, on the other hand, pointed out that the witnesses were independent and disinterested, the parties were closely related, previous to the occurrence, there was no enmity of any sort between the parties except that the mother of the deceased wanted her land to be given to her which was in possession of Zakir appellant and its possession was not being vacated. After hearing the learned counsel and going through the record we do not find any force in the contention raised by the learned counsel for the appellant.
10. The parties are closely related. Mazhar Hussain and Zafar Hussain P.Ws. Have in unequivocal terms stated that their mother inherited property in village Parianwali which she wanted to pass on to her daughter Parveen (deceased). It was in possession of Zakir appellant. This was not liked by the appellant and when they had come to talk over the matter there was point blank refusal by the appellant and his mother. Their credit has not been shaken in cross-examination in this respect.
The motive part of the story is more than proved. The occurrence took place in broad daylight and on the path leading to the village. Mazhar Hussain and Zafar Hussain P.Ws. Have deposed that they were going to the Dera while Mst. Zarnageen has informed that she was accompanying her mother Parveen to the village. All the three supported the version in the F.I.R. That the appellant near the wheat field of Sadiq suddenly emerged fired at the deceased from behind hitting her in the head who fell down and died at the spot. Even if we accept the argument built up by the learned counsel for the appellant that Mazhar Hussain complainant and Zafar Hussain P.W. Were not present, they being from a different village, we have no doubt of any sort as to the presence of Mst. Zarnageen with her mother. She is the most natural and independent witness. The defence suggested to the witnesses in cross---examination is that the deceased was a woman of easy virtue. She was having affair with Faiz Ahmad son of Muhammad Hussain of the village who was a bad character and Bati, her husband found her in compromising position and so finished her. Bati, as per the statements of the witnesses was employed at Karachi. He was cited as a witness and was given up as having been won over. The presence of the vaginal swabs is also indicative of the fact that Bati was present in the village and thus explains the presence of the semen in the vaginal swabs. It is also clear from the medical evidence that the deceased was having a full term baby. Had she been carrying on in the village so much so that she had conceived and the conception having matured in a full term baby, the family would not have accepted her and particularly her husband and she must have been turned out of the house. We are not inclined to accept the version that she was done to death due to bad character or was seen in a compromising position with somebody and finished by Bati himself. If the mother of the appellant could have been involved by the complainant in the case there was no reason why Bati himself could not have been implicated in one way or the other by the complainant in the case. Bati being the brother of the appellant, he could have been produced to say that the deceased was of bad character or he at least suspected her character not to be above board. The eye-witness account, particular that furnished by Mst. Zarnageen coupled with the motive part of the' story is sufficient to say that the charge is brought home to the appellant.
11. The result is that the appeal failed and is hereby dismissed. There are no extenuating circumstances in favour of the appellant. We would, therefore, confirm the death sentence. The Reference is accepted.