MIAN GHULAM AHMAD, J-. Mr. Riaz-ul-Hassan Alvi, Addl. Sessions Judge, Sargodha, on 14-11-90, convicted Habib Ullah u/s 302 PPC, and sentenced him to undergo life imprisonment and to pay a fine of Rs. 10,000/-, and in default to Suffer rigorous imprisonment for a further period of two years.
He was also ordered to pay Rs.25,000/- as compensation to the legal heirs of the deceased u/s 544-A Cr.P.C. The convict has come up in appeal to this Court; and Mastooran Bibi complainant has filed a revision petition for enhancement of sentence, from life imprisonment to death penalty.
The appeal and the revision are being disposed of by this judgment.
2.. The alleged incident occurred on the night between 10/11-11-88 (at 2 a.m.), and it was reported to the police at 8.15 a.m., in the morning. Mohammad Anees Inspector/SHO, P.S. Sahiwal, District Sargodha, recorded the FIR Ex.PD, on the statement of Mastooran Bibi, whose daughter Mst. Zahida Parveen Akhtar had allegedly been shot dead by her husband, Habib Ullah, who happened to be her first cousin, being 'bhatija' of Mastooran's husband, Mohammad Rafiq, who had died a year after his daughter's marriage with Habib Ullah. In a mill at Karachi, Habib Ullah was employed, and with him were living there, in the residential quarter, his wife Zahida Parveen and her mother Mastooran Bibi. Habib Ullah had taken them there, about a year before the occurrence. About 2 months before Zahida Parveen's murder, her husband had quarrelled with her, whereupon she alongwith her mother, and minor daughter, aged 3-4 years, had left the house of Habib Ullah and come over to Jehanian Shah and started putting up in her mother's house, in Islamabad Colony. At about midnight, when they were asleep inside, there was a knock at the door. It was opened by Mastooran Bibi, when the person at the door shouted that he was Habib Ullah, having come from Karachi. He entered the house; and there was an altercation, as he was bitter over his wife and mother-in-law having left his house at Karachi without his permission. He took out revolver and fired at his wife hitting her in the chest. On hearing firing reports, Mohammad Yaqub and Mohammad Nawaz, neighbourer came there and tried to intervene, but Habib Ullah fired a second shot, and Parveen Akhtar received the injury in his right flank. She had a fall on the ground; and Habib Ullah made good his escape, alongwith the revolver, on holding out a threat that who so ever tried to come near him would be similarly dealt with. Zahida Parveen died at the spot. FIR, as already said, was lodged at P.S. Sahiwal by Mastooran Bibi, in the morning on 11-11-88. Investigation was conducted and all requisite steps needed for finalization of the investigation were taken, and the persons who remained associated with the process of investigation have all appeared as PWs in trial. I need not narrate the details and discuss the role played by different persons, the same- being part of the record of investigation, which was undertaken by Allah Bakhsh ASI PW.8, Mohammad Aslam ASI PW. Ll, and Mohammad Anees SHO, PW.10.
3. The accused has pleaded innocence, alleging that he had falsely been involved in the case at the instance of his enemy, Mohammad Yaqub, P.W. According to him, some unknown person had murdered his wife at Jehanian Shah, while he was at the relevant time living and employed at Karachi, in a cotton mill there. He did not produce any evidence in defence. The prosecution, in order to fasten the guilt on him, examined as many as 11 witnesses in regular trial. Initially, owing to non-availability of the accused, he "was declared an absconder, and the statements of the PWs were recorded in his absence, as envisaged by section 512 Cr. Pfc. After his arrest, complete challan was submitted against the accused, and the PWs were reexamined and cross examined in his presence;
4. Learned defence counsel has drawn the attention of this court to the fact that the learned trial court itself is of the view that the evidence led by the prosecution docs not establish the motive for the occurrence and the recovery of the crime weapon has also not been relied upon. So far as ocular evidence is concerned, Mastooran Bibi complainant, according to the learned trial judge, has given certain amount of concession to the accused. The learned counsel goes on to urge that the ocular evidence is in conflict with the medical testimony and there is a background for false implication of the accused in this case and he therefore eminently deserves acquittal.
5. It seems that because of her illiteracy Mastooran Bibi has slipped, to some extent here and there but I do not find anything material her testimony that may be taken to be in the nature of what according to the learned trial Judge is a latitude, extended by her to the accused, her son-in-law.
She has not resiled from her statement, earlier made before the police, in form of first information about the incident.
6. The learned trial court has failed to realize that motive for the occurrence is the one, which even the accused has himself put to the PWs in cross- examining them. In the FIR it has been said that Habib Ullah accused had a suspicion in his mind that his wife Zahida Parveen Akhtar had developed illicit relations with one Zafar Iqbal s/o Mohammad Nawaz. That is why he had decided to take his wife, alongwith her mother, to Karachi. When without his knowledge and concurrence, they left his house at Karachi and came over to Jehanian Shah, he felt very bitter about it, and what agitated his mind was that his wife had come over to Jahanian Shah, to have renewed liaison with her paramour, Zafar Iqbal, and in so doing she had the blessings of her mother, Mastooran Bibi, who too had not been enjoying a good reputation morality-wise. It has been put to the PWs by the accused that Zahida Parveen had once eloped with Zafar Iqbal, although they have spurned the suggestion. What else was required to establish the motive for the tragic occurrence?
7. In the FIR there is mention of revolver, which the accused had made use of, in murdering his wife.
PWs.8 to 11 have however made mention of a pistol; but this would not make much of difference, as PWs 8 and, 11, being police officers, are aware of the exact nature and the make of the fire-arm,, whereas Mastooran Bibi, being an un-educated lady, was not expected to have been conversant with the same; and if she had described the crime weapon as a revolver in the FIR, it would not recoil adversely on her version, as incorporated in the FIR. It is however true that pistol P.9 recovered from the courtyard of the house of Habib Ullah's brother, Abdul Aziz, situate at Jahanian Shah, seized by the police vide memo Ex.PE, attested by Allah Bakhsh ASI PW.8 and Mohammad Aslam ASI PW. LI, had not been submitted to scrutiny of as fire-arms expert, in order to find out if it was the same weapon that had been used by the accused in the occurrence. It is to be pointed out that no empty had been picked up from the spot by the investigating officer, Mohammad Anees Inspector PW.10, and as such there was no occasion for matching the fire-arm, claimed to have been recovered by the police at the instance of the accused, with the crime empties, as in the instant case there were none. Recovery of pistol therefore would be of no consequence.
8. Dr. Qalab-e-Hassah Sherazi PW.9, who had performed the postmortem examination of the deceased, on^ 11-11-88, and recorded the report Ex.PF, had listed three fire-arm injuries, all entrance wounds, on the body of the deceased, whereas according to the alleged eye-witnesses the accused had fired twice at her. He gave the opinion that the injuries were the result of three bullets although no lead of bullet and no pellet was recovered from the body, at the time of autopsy. The I.O. Mohammad Anees Inspector PW.10 had also made mention of three injuries in the injury statement and the inquest report, which he had prepared on examining the dead body. It was night time (2 a.m ), when the occurrence took place under cover of dark. Those present could not with precision see and say, if the assailant had fired twice or thrice at the victim. Right side of the chest had been hit and the three injuries all were borne in close proximity to one another. I would not agree that there is any material discrepancy between the two accounts, ocular and medical.
9. Mohammad Nawaz, an eye-witness of the occurrence has been given 'up as being un- necessary, and Mst. Mastooran complainant has been examined as PW 7, the other eye-witness Mohammad Yaqub having been produced as PW.6. Learned counsel for the appellant has hinted at certain inconsistencies in their statements. According to Mohammad Yaqub PW.6, it is pointed out, Zahida Parveen had received the second injury, while she was in the lane. What Mohammad Yaqub PW.6 however deposes is that he, alongwith his family members, living close by, had reached the lane, in front of the house of the complainant. There they saw that Zahida P. Arveen had a fall on the ground. That did not necessarily mean that she also was in the street, at that time.
She might well have fallen, on the floor of the courtyard of her house. That is what her mother Mastooran as PW.7 has deposed. On the hue and cry raised by the victim of crime, as also by her mother, as stated by Mst. Mastooran PW.7, two other persons, Ihaitu Musalli and Malang had also been attracted to the spot. It is pointed out that their names do not find mention in the statement of Mohammad Yaqub PW.6 and further that the said names also do not figure in the FIR. Even Mohammad Yaqub however has said that he had reached the venue of occurrence with several others; and obviously so many persons living in the neighbourhood might have been alerted, and hearing the sound of fire-shots and screams of the ladies, they must also have arrived at the scene. There was nothing un-natural or improbable about it. Mst. Mastooran says, on being cross- examined, that Khaitu and Malang had also seen the incident and further that she had given their names, while lodging the FIR. All those who had seen the incident however need not have been mentioned in the FIR, nor could all of them be examined in the course of trial as witnesses. There is nothing on record to suggest that Mohammad Yaqub had any relationship with the deceased or any animosity towards the accused. There is no reason why Mastooran Bibi complainant and Mohammad Yaqub PWs testimony be discarded. He is however cousin of Zafar Iqbal son of Mohammad Nawaz, Nawaz being his paternal uncle. It has been suggested to Mastooran Bibi that she had lodged a false case against the accused at the instance of Mohammad Yaqub.
Mastooran admits that he had accompanied her to the police station, alter the occurrence, and further that he also used to give her company in coming to the court on different dates of hearing.
She being a lady could not obviously pursue the case, and in capacity of a person, who was aware of everything that had happened, it was natural on the part of the complainant to ask him to be with her. There was nobling objectionable about it. If she says that Mohammad Yaqub had made the statement before the 'thanadar', and she had only thumb-marked it. That would not render the FIR narrative to be doubtful in nature or inadmissible in evidence. Law Courts arc supposed to be realistic in approach to the issues before them and should slop looking at and judging events not in record with and not in the context of their natural course. Who does not- know that when a woman is a complainant in a criminal case, she is accompanied, more often than not. By some male member, and would seldom pick up courage about to approach the police. The officer would render her statement into formal FIR, on hearing her, and on, of course, making further enquiry from her about material aspects of the incident, necessary to constitute FIR in proper form. That does not amount to undertaking a preliminary investigation. Mohammad Yaqub was also an eye- witness of the occurrence, and he might also have rendered support to Mastooran Bibi complainant, while she was making her statement before the police, particularly when she was suppose)! To be extremely grief- striken, following brutal murder of her daughter, by a person no less than her son- in-law.
10. If somebody present around had asked as to who he was, and the assailant had answered that he was Habib Ullah, that again should not sound to be an un-natural or abnormal aspect of the matter. It is submitted by the learned counsel for the appellant that it would have been foolish on the part of the assailant to disclose his identity, when he had chosen that odd hour of the night, for making the murderous assault. I would not entirely agree. He-had come all the way from Karachi to Jehanian Shah, in some train, and had reached the house of his mother-in-law at about midnight. Consciously he might not have deferred his arrival to midnight. He must have been smouldering with the awareness of his wife having illicit liaison with her paramour, Zafar Iqbal, and he had come only to do away with her and punish her for her infidelity. In such a situation, he was expected to shout or announce that he was husband of the lady, who had gone astray, and had come to wreak vengeance. If some one, out of those, who had gathered at the spot, had asked from the assailant as to who he was, it was also not un-natural, as in state of sudden surprise and extreme consternation and horror, some body could well utter these words.
11. There is another very important circumstance, which would serve to indict the accused un- mistakably. He remained an absconder for about 13 months. The occurrence is dated 11-11-88 and he was arrested on 29-12-89. He says that he was employee of a mill at Karachi and had remained absolutely unaware of the incident. This is just not believable. How could he remain in complete dark, over that long period, about his wife, who alongwith her small daughter had suddenly left him.
If she had come to Jehanian Shah, with permission of her husband, he was supposed to have remained in touch with her and inquisitive about her welfare. If, on the contrary, she had left him without his approval and against his wishes, he was supposed to have been acutely annoyed over her departure. In that event too, he could not be completely forgetful, respecting his wife and her whereabouts. Evidence on record indicates that proceedings had been taken by the prosecution u/s 87/88 Cr.P.C., and the accused had duly been declared to be a proclaimed offender. Long after the occurrence, when he happened to be at Jehanian Shah, and police got a clue about his arrival, he was intercepted and arrested at the bus stand by Mohammad Aslam ASI PW.11 and other officials, on 29-12-89.
12. These being the facts and circumstances of the case, I have no doubt in my mind about involvement of the appellant in the case. The deceased lady met her death at the hands of her husband, Habib Ullah accused, and the evidence on record connects him with the commission of crime, to the satisfaction of the court. Conviction and sentence passed against him by the learned trial court are maintained; and the appeal having no merit is hereby dismissed. Parallel revision petition No.231) of PW1, having been filed by Mastooran Bibi complainant, with a[1] prayer for enhancement of sentence, and conversion of life imprisonment (awarded to the accused by the trial court) into death penalty, also stands dismissed, in view of the above discussion.