KHALIL-UR-REHMAN RAMDAY, J: -- One Muhammad Yousaf was tried by a learned Additional Sessions Judge at Bhalwal for the murder of his wife Mst. Parveen deceased. Through a judgment dated 5-12-1989 of the said learned trial Court, the said Muhammad Yousaf was found guilty of the charge; was convicted under section 302, P.P.C. And was sentenced to suffer death and to pay a fine of Rs.20,000 or to undergo three years' R.I. In default of payment of the said fine. The entire amount of fine was directed to be paid to the heirs of the deceased.
2. Murder Reference No280 of 1989 seeks confirmation of the said sentence of death whereas, Muhammad Yousaf convict impugns the said conviction and sentences recorded against him through Criminal Appeal No.902 of 1989.
3. Both these matters are being disposed of together through this single judgment.
4. Through F.I.R. No.142 originally registered at Police Station Miani of District Sargodha for the alleged commission of an offence punishable under section 364, P.P.C., it had been stated by one Noor Muhammad that about five years earlier, he had married his daughter Mst. Parveen to one Muhammad Yousaf who, however, turned out to be a ruthless and merciless person and who frequently beat up his said daughter as a result of which, the said Mst. Parveen returned to his house and stayed with him for about two years. He had further reported that about six months prior to the occurrence, his said daughter returned to her husband Muhammad Yousaf on account of the intervention of the respectables of the village.
5. The complainant had alleged that on 24-9-1987, the went to the house of Muhammad Yousaf to meet his daughter but found that she was not present there. On his inquiry, Muhammad Yousaf informed him that Mst. Parveen had left his house on 11-9-1987 on the pretext of going to the complainant's house and that the said Yousaf did not know anything about Mst. Parveen beyond it.
6. The complainant had further claimed that he informed Muhammad Yousaf that Mst. Parveen had not reached his house at which, Yousaf accused threatened him against reporting the matter to the police.
7. Noor Muhammad complainant had further stated that he 'returned home and on his inquiries, Siddique and Manzoor P.Ws. Informed him that they had seen Mst. Parveen deceased and Yousaf accused near PAKHOWALI Railway Station on 11-9-1987 at about DOPHERWAILA when the said Yousaf was taking Mst. Parveen deceased towards CHAK PIR SHAH.
8. During the course of investigation, Shah Nawaz S.I./S.H.O. (P.W.10) arrested Yousaf accused on 26-9-1987 whereafter, the said accused led the Investigating Officer to the graveyard of Chak Pir Shah from where, on the pointation of the said accused, the dead body of Mst. Parveen deceased was recovered after digging a ditch. The dead body was found clad in a SHALWAR and a SHIRT while a DOPATTA was tied around her neck. The dead body was further found to be covered with a BURQA. A brickbat stained with blood was also found near the place where the said dead body was found lying buried.
9. On the discovery of the dead body of Mst. Parveen deceased, an offence punishable under section 302, P.P.C. Was also added to the above--mentioned F.I.R.
10. When confronted with the prosecution case, at the trial, Muhammad Yousaf appellant pleaded innocence. He attributed his false involvement in the murder of his wife to his strained relations with his father-in-law i.e. The father of the deceased and claimed that during the days of the occurrence in question, Mst. Parveen deceased was living with her father and while on her way from her father's house, she was caught by five persons who molested her and even committed ZINA with her and who on account of fear of the police, buried her when, she had become unconscious.
11. The suggestions put to Noor Muhammad complainant during his cross-examination were that while living in the complainant's house Mst. Parveen had had some quarrel with him as a result of which, she left the complainant's house and was going towards the railway station when she was abducted by five persons who had molested her and had thereafter buried her.
12. The post-mortem examination of the dead body of the deceased, held by Dr. Rafique (P.W.1), revealed a fracture on the temporal region of her head and strangulation marks around her neck with a DOPATTA tightly tied around the neck. No bruises, scratches or any other marks of violence of whatever kind were found by the doctor on the person of the deceased.
13. In the circumstances, the claim of Yousaf appellant that Mst. Parveen deceased had been molested and raped and buried thereafter becomes a wild claim without any basis or foundation whatsoever. Thus, the explanation of the death of the deceased specifically offered by the appellant is not a reasonable and acceptable explanation. The same is, therefore, rejected.
14. In any case, no justifiable reason exists on record which could have motivated the complainant to plant his deceased daughter in the house of the appellant if she was living with the complainant and to falsely substitute the appellant for (he actual culprits who had abducted and molested his deceased daughter to death.
15. The testimony offered by Noor Muhammad complainant and Muhammad Siddique (P.W.9) who had last seen the deceased in the company of Yousaf appellant inspires confidence and nothing exists on record which could persuade us to disbelieve the same.
16. Similar is the position of the discovery of the dead body on the pointation of Yousaf appellant which is a very important piece of evidence anti in the absence of which, it would not have been possible for the Investigating Officer to have discovered the dead body which lay buried in a graveyard.
17. The conduct of Yousaf appellant after the occurrence in question as decipherable from the record is another circumstance pointing towards his guilt. After being informed at least thirteen days after Mst. Parveen had left his house that she had not reached her parental home, the appellant took no steps and showed no anxiety to trace out the whereabouts of the deceased till, of course, he was arrested and had led to the recovery of the dead body.
18. It has been held in The State v. Manzoor Ahmad PLD 1966 SC 664 as also by this Court in Afzaal Shah's case 1991 P Cr. L J 113 that circumstantial evidence was a lawful guide in the administration - of criminal justice and circumstances established beyond reasonable doubt could furnish a basis for a decision, better than any other kind of evidence. It was further held in these judgments that if some inculpatory circumstances stood proved on record and if the same were found incompatible with the total innocence of the accused or were incapable of any explanation upon any reasonable hypothesis other than the guilt of the accused, then such circumstances could form a valid foundation .For the conviction of the person accused of the said charge.
19. In the present case, it stands proved on record that the relations between Yousaf appellant and his wife Mst. Parveen deceased had remained strained; that having stayed in her father's house for about two years, she had returned to her husband's house a few months prior to the occurrence; that the explanation offered by the appellant about the death of the deceased was not reasonable and thus unacceptable and that the conduct of the appellant after the occurrence was also dubious.
20. In the circumstances, we find that the death of Mst. Parveen deceased is not explainable on any hypothesis other than the guilt of Yousaf appellant, as alleged by the prosecution.
21. Consequently, we find that no exception can be taken to a finding of his guilt as recorded by the learned trial Court and his conviction under section 302, P.P.C. Is, therefore, maintained:
22. Since nothing exists on record to indicate what had actually transpired immediately before the deceased was done to death, we find it unsafe to confirm the sentence of death awarded to Yousaf appellant.
23. The said sentence of death is, therefore, altered to a sentence of imprisonment for life and with this alteration in the quantum of sentence, the judgment of the learned trial Court, under examination, is maintained.
24. Yousaf, appellant shall, however, be entitled to the benefit of the provisions of section 382-B, Cr.P.C.
25. Murder Reference No.280 of 1989 and Criminal Appeal No.902 of 1989 are disposed of in the above terms.
26. Death sentence is NOT CONFIRMED N.H.Q./M-268/L