' The appellant was convicted by the Additional Sessions Judge, Lahore under section 302, P.P.C.
And was sentenced to imprisonment for life as Tazeer and to pay an amount of Rs,25,000 as compensation to the legal heirs of the deceased. In default of payment the appellant was ordered to undergo further R.I. For six months. She was given benefit under section 382-B, Cr.P.C.
2. The appellant was arrested on 28-2-1993 in case F.I.R. No,404/92,. Registered at Police Station Shad Bagh, Lahore on 24-12-1992 under section 302, P.P.C. On the basis of statement of Muhammad Akbar son of Abdul Karim, as recorded by Hidayat Ali, Inspector/S.H.O. The case of the prosecution as narrated by Muhammad Akbar complainant was that they were three brothers. His brother Muhammad Ashraf was residing in the ground floor of the house. On the upper floor, P.W.
Muhammad Akbar and his parents were putting up. His third brother was living separately in a house situated in Chowk Shad Bagh near Sher Shah Road. His wife was admitted in Fatima Memorial Hospital and his mother was attending on her. Muhammad Ashraf, his brother, had divorced Mst. Zahida, his first wife, some 15/16 years earlier. She had given birth to a daughter named Saima who was being brought up by grand-parents. Some 12/13 years earlier, Muhammad Ashraf had contracted second marriage with Mst. Kausar who had given birth to two sons and two daughters. At 7-00 a.m. That day Muhammad Ashraf, an employee of Sui Gas and posted at Gujranwala, had gone out of the house to the place of his duty. At about 8-00 a.m. He was about to go to his saw-machine, when his niece, Mst. Hina aged about 11/12 years, requested him to take her along as she was to take tuition. He left Mst. Hina, at the house of the uncle and went to his saw- machine. At about 11-00 a.m. a boy from his Mohallah told him that thieves had entered their house and on hearing the same he immediately reached the house where a number of persons from the locality had gathered. He was informed by them that there were thieves in our house and his niece Ms. Saima had been injured by those thieves. On inquiry from his sister-in-law, he was informed that at about 10-30 a.m. When she was asleep in a room, she heard a loud cry of Ms. Saima yelling out Baji. She looked out of the window and saw two boys, one of whom was clad in Shalwar Kameez and the other was wearing pant and shirt. She could not see their faces and that she opened the window with opening in the lane, and raised alarm. The persons of the locality gathered. Abdul Hamid and Asif Iqbal who had descended from the roof of the upper storey had entered and seen Mst. Saima in the bed of the room breathing her last who was removed to the Doctor. After some time the dead body of Saima was brought back. The residents of the locality who had immediately arrived at raising of the noise by his sister-in-law, informed him that they had not seen any person escaping from the house either through the lane or over the roof.
3. After recording of the statement of Muhammad Akbar, Exh.P.E. Hidayat Ali, Inspector/S.H.O.
Despatched the same for formal registration. He inspected the spot and prepared the inquest report Exh.P.F., rough site plan Exh.P.G., took into possession Chadar P.5, another Chadar P.6 and a pair of lady shoes P.7/1-2 vide memo. Exh.P.F. He despatched the dead body to the mortuary for post-mortem examination and started for search of the accused. On the following day, the last- worn clothes of the deceased, Shalwar Qameez, P.1/1-2, Shameez P.2, Woollen Jarsi P.3 and Brazier P.4 were produced before him and secured vide memo. Exh.PA.
4. Mst. Kausar Parvin, appellant was summoned on 26-12-1992 at the police station for interrogation and was allowed to accompany her husband after interrogation. She was again called on 27-12- 1992 for further interrogation. He was transferred on the same day to the police lines. He had recorded the statements of the P.Ws. Under section 161, Cr.P.C.
5. Riaz Mahmood, Inspector, who succeeded P.W.13 as S.H.O., took up the investigation and visited the spot. He got site plan Exh.P.D. And Exh.P.D./1 prepared through Abdul Raheem Kazmi, Draftsman, P.W.6 and gave his notes in red ink thereon and signed the same.
6. The investigation was subsequently transferred to Shafqat Ahmad, D.S.P. P.W.9, who deputed Muhammad Siddique, S.I./Staff Officer to investigate the case. The investigation was conducted by Muhammad Siddique S.I./S.O. He recorded the statement of the P.Ws. D.S.P. Verified the investigation and submitted his report and directed the local police to arrest the appellant and challan her.
7. At trial the appellant was charged under section 302, P.P.C. On 8-12-1993, which was put to her.
She denied the charge and claimed trial.
8. The prosecution produced Zulfiqar Ali, Constable P.W.2 who had escorted dead body of Mst.
Saima to the mortuary. He was handed over the last-worn clothes of the deceased by the doctor which he produced before the Investigating Officer on 25-12-1992 and were secured vide memo.
Exh.PA. Maqbool Hassan, A.S.I., P.W.11 recorded the formal F.I.R. Exh.P.E./1 on receipt of Farde Bian Exh.P.E. Muhammad Siddique S.I. P.W.12 was Staff Officer of D.S.P., Ichhra Circle who investigated the case. The case was transferred to the said D.S.P. Under the orders of superior officer. The D.S.P.
Directed him to investigate the case. On 9-2-1993, the complainant Muhammad Akbar and his two brothers, his mother and other P.Ws. Appeared before him and got their statements recorded under section 161, Cr.P.C. The D.S.P. Verified the proceedings and visited the place of occurrence. On 21-2-1993 Muhammad Rafique and Muhammad Ayub P.Ws. Appeared before him, made statements which were recorded under section 161, Cr.P.C. The D.S.P. Thereafter ordered the local police to arrest the accused and challan her. Riaz Ali Shah, S.I./S.H.O. P.W.14 arrested the appellant under the directions of the D.S.P. On 28-2-1993. He prepared his report under section 173, Cr.P.C. And submitted the same.
9. Abdul Rahim Kazmi, P.W.6 was draftsman. He prepared the site plan Exhs.P.D. And P.D./1 in the scale of 10 feet to one inch. He had inspected the spot on 26-12-1992 and had prepared the site plan under the instructions of the police and pointation of the witnesses. He handed over the site plan, in duplicate to the police. Doctor Maqbool Ahmad P.W.5 conducted postmortem on the dead body of Mst. Saima on 25-12-1992 and had found the following injuries on her person:--
(1) 11.0 x 1.3 c.m. Linear, band shaped bruise, the two margins of which were running parallel to each other, on lower end of left forearm, well marked on posterior aspect, 3 c.m. Above left wrist joint, 22 c.m. Below left elbow-joint.
(2) 1.5 x 0.1 c.m. Abrasion on left side of neck, 6 c.m. From midline of neck, 5 c.m. Below left ear lobe.
(3) 2.5 x 0.5 c.m. Bruise on left side of chin.
(4) 3.5 x 2 c.m. Bruise on right side of neck, 5 c.m. From mid line, 6 c.m. Below right ear lobe.
(5) 1 x 0.6 c.m. Bruise on the tip of nose. ' and on dissection found that hyode bone was intact and healthy. All other organs were found healthy. About 200 grams of semi-digested food was present in the stomach, urinary bladder was healthy and empty, uterus was healthy and non-gravid. Hymen was healthy and intact. He was of the opinion that all the injuries were ante-mortem and were caused by blunt means. The death was due to interference at the level of neck leading to asphyxia. He sent viscera to Chemical Examiner, Punjab, who sent his report directly to S.H.O. Of the said police station. He gave his final opinion Exh.P.B./1 on the report of the Chemical Examiner Exh.P.B. The copy of post-mortem report was Exh.P.C. And the diagrams of injuries were Exhs.P.C./1 and P.C./2 which were in his hand and were signed by him. The dead body was identified by Abdul Hamid P.W. And Muhammad Latif P.W.
10. Muhammad Ayub P.W.1 was the witness of extra-judicial confession which was allegedly made by appellant to him and to Muhammad Rafique. Abdul Hameed P.W.3 had identified the dead body of Saima deceased at the time of post-mortem examination. He stated that on the day of occurrence, he was present in his house at about 10-30 a.m. When his younger daughter rushed in from outside and informed him that thieves had entered/trespassed into the house of aunti Khurshid. When he came out in the street, he saw 30/35 persons having assembled. He saw the appellant standing in the door of his house raising alarm that thieves have entered the house in the upper storey. She was directed to come out in the street lest any harm was caused to her. She had replied that the door was locked from inside and she was not in possession of the key. He and Umar (not produced) climbed over the roof of mosque through its stairs and also took two cricket bats with them. The Imam of the mosque, who was present on the roof of the mosque, stated that no thief had passed from that side. The residents of the house in the back of the mosque informed them similarly. They both climbed over the roof of the house of Muhammad Ashraf. Through the door of the staircase they went down to the place where the occurrence had taken place. They saw the appellant alongwith Asif and two other labourers in the room. They were asking to check Mst.
Saima. They tried to administer water but failed as she was unconscious. They raised her head and saw the Dupatta of uniform around her neck. He untied the Dupatta and again made an attempt to pour water into the mouth of Mst. Saima. The appellant desired that Mst. Saima be taken to Doctor.
He picked up Mst. Saima and appellant followed them. Asif got main door opened. Latif P.W. Came into the house from inside. They both took Saima to the doctor who declared her dead and they brought the dead body back to the house of Muhammad Ashraf. He identified the dead body of the deceased at the time of post-mortem. Muhammad Latif, P.W.4 stated that he arrived at the spot after hearing alarm "thieve," "thieve". As Akbar and Ashraf P.Ws. Were sons of his sister, he came there and was informed by the appellant, that there were thieves in the upper storey. The door was closed from inside and he chained the same from outside. He stated that the appellant gave different number of persons at different times and subsequently gave number of thieves as two when she was required to open the door. She told him to come from over the roof. He asked Abdul Hamid and Asif to scale over the roof into the house. Asif came down and after confirming his identity he allowed him to go outside. When he entered the house, he saw Abdul Hamid coming down stairs with Saima on his shoulders. He supported her body and took her, alongwith two other women, to a doctor in a car. Before she was taken to the doctor she was made to lie in' a room on the ground floor. The doctor declared Mst. Saima as dead and they brought the dead body back in the house. Some body exclaimed that Mst. Saima was breathing and on hearing the same appellant fainted. They took Saima to another doctor. When they came back, every body stated that Saima had died. On hearing the same the appellant got up and stated that she had stated earlier that Mst. Saima expired even prior to 8-00 a.m. They had not seen any body coming out/going in the house. He was marginal witness to recovery memo. Exh.PA.
11. Abdul Hamid P.W.3 and Muhammad Latif P.W.4 were examined earlier under section 161, Cr.P.C.
On 24-12-1992 and on 25-12-1992, but the story as detailed in the Court was not narrated by them earlier to 9-2-1993. They were cross-examined in detail. They contradicted each other on very material point such as the looking of the door from inside, refusal of the appellant to open the door on the pretext that she had no key and also to the extent that P.W.3 stated that he had seen Muhammad Asif P.W. Going upward when they were bringing down the dead body of Mst. Saima, whereas P.W.4 states that he had in fact, directed P.W.3 and one Asif, not produced, to climb over the roof and enter the house. He does not mention the name of Umar who was named as his companion by Abdul Hamid P.W.3 and rather does not mention the name of Asif as a person who had accompanied him in scaling over the roof. The statements to that effect were first made on 9- 2-1993 whereas they were associated with the investigation since 24-12-1992. These witnesses made very material improvements in the story of the prosecution after six weeks of the occurrence.
Their statements do not inspire confidence and I have no hesitation in disbelieving them.
12. I am left with the evidence of extra-judicial confession coming from Muhammad Ayub, P.W.1 and the circumstances as coming in the evidence of Muhammad Ashraf, the father of the deceased and husband of the appellant, and Muhammad Akbar, P.W.8 the first informant.
13. Muhammad Ayub P.W.1 stated that on 19-2-1993, he was present in his house after offering Juma prayer. Muhammad Rafique P.W. Was also present there, when at about 3-30 p.m. The appellant came to them alone and started weeping. On inquiry as to why she was weeping, the appellant confessed that she had committed a blunder and that Qatal of Mst. Saima had been committed by her. When asked as to why she did so, she explained that Mst. Saima was 16/17 years of age and after about two years she was to be married and all expenses of her marriage were to be borne by her husband and that her children were to be left with no money and that on the day of occurrence Mst. Saima was alone in the house 'and her grandmother was not present. She (appellant) strangulated her by means of her Dupatta. Saima fell on the bed and she thought Saima had died.
She came down and started making noise of "thief', "thief' and that she had come to them that as the other family members had confidence in them, they would help her in getting pardon from her husband and that she had been concealing this fact for some time but then her conscience was pricking. The other witness of confession, allegedly made by the appellant, was given up on the same day that P.W.1 was examined. Muhammad Ayub, was the sister's husband of Muhammad Ashraf P.W., whereas Muhammad Rafiq was uncle of the wife of P.W.1 and P.Ws.7 and 8. Both the witnesses, of whom one was given up were very closely related to the father of the deceased. They reported the matter of confession before them, to the police on the same evening, and their statements were recorded but Muhammad Siddique S.I. P.W.12, had stated that Muhammad Ayub and Muhammad Rafiq P.Ws. Had appeared before him on 21-2-1993 when their statements under section 161, Cr.P.C. Were recorded. Muhammad Ayub P.W. Was suggested that they had not gone to the police on 19-2-1993 neither their statements were recorded that day and that in fact his statement was recorded on 21-9-1993. He refuted the suggestion. He admitted that arrangements for engagement of Mst. Saima with Anjum, his son, a patient of Polio was under negotiation in those days but had not been finalised. Muhammad Ayub P.W.1 was contradicted by Muhammad Siddiq S.I./P.W.12 on very material points. There was no corroboration, available on the file of the case, of the statement of Muhammad Ayub P.W.1.
14. Abdul Hamid and Muhammad Latif P.Ws. Made their statement incriminating the appellant, as an accused of murder of Mst. Saima on 9-2-1993. The same having been recorded by Investigating Officer, there was no plausible reason for Investigating Officer to delay the arrest of the appellant except that some more evidence was to be fabricated and I believe that Muhammad Ayub P.W.1, and Muhammad Rafiq given up P.W. Agreed to depose falsely against the appellant, thereafter, being close relatives of Muhammad Ashraf P.W.7. The appellant could not have gone to these two witnesses to confess her guilt. She could have relieved herself from the pricking of her conscience by talking to her own relatives or to some other influential person who could have helped her. She was already suspected by Investigating agency of being an accused person and the evidence had already been collected and she was admittedly associated with the investigation, time and again.
Muhammad Ashraf P.W.7 had admitted that the appellant was in the custody of police since after the registration of F.I.R. And as such I disbelieve Muhammad Ayub P.W.1. No confession was made to him and Muhammad Rafiq.
15. Muhammad Akbar P.W.8 was the uncle of the deceased. He made material improvements over his previous statement. Muhammad Ashraf P.W.7 was the husband of the appellant and father of Mst. Saima who was his daughter from his earlier wife. He admitted that in connection with the non-tracing of culprits the people of the locality had taken out a procession. He also admitted that the police had taken him and the appellant into their custody to evade such processions. He further admitted that appellant was kept in custody by police whereas he was released. This fact alone is sufficient for me to assume that the appellant was in custody of the police since after the incident. The pressure of the public, though, was being exerted upon the police to trace out the real culprits but it resulted in the appellant being made a scapegoat and her in-laws fell prey to the version of the police that it was in fact the appellant who was the culprit and they became willing witnesses of fabricated story. The P.W.8 was throughout associated with the investigation but earlier had never even suspected the appellant.
16. In the first information report, the appellant was named as a witness to the fact that two young boys were seen by her, running out of the house. Medical evidence has proved that the deceased was a chaste girl. The probability of two young boys having entered and attempted to criminally assault a chaste girl, her resistance and thereupon the fear of their identity having been disclosed, the possibility that they did away with her cannot be ruled out. The prosecution did not produce Imam of the mosque and the residents of the house in the rear of the house of appellant to prove otherwise.
17. The appellant had no injuries on her person which could have been caused by a young girl while resisting strangulation by the appellant. Self-preservation is instinct of all living beings and Mst.
Saima deceased could be no exception. She must have resisted the assailants whosoever, he/she might have been and such resistance must have caused some abrasions on the person of the assailants, on the hands, arms and face. The appellant was associated in the investigation, was suspected as a culprit from 25-12-1992. In the given circumstances, the Investigating Officer was duty bound to get her medically examined in order to ascertain any injury on her person, which could be an important corroborative piece of evidence. P.W.7 was the husband of the appellant who continued living with her. Even he had not seen any mark/injury on the person of the appellant, at least he has not stated so.
17-A. Prosecution tried to make out a case of dubious conduct of the appellant. However, the statement of P.Ws. 3, 4, 7 and 8 were contradictory and self-destructive. The motive as alleged suffered from contradictions. Once the motive was alleged it must have been proved. Hatred was alleged and then the demand of the hand of the deceased by the appellant for her brother are self-exclusive. Motive ascribed by P.W.1 was entirely different and rather foolish. I hold that the witnesses were not creditworthy if put to close scrutiny. Reliance is placed on Habib Ullah v. The State PLD 1969 SC 127. The evidence of Dr. Maqbool Ahmad P.W.5 contradicted the whole story of the prosecution, that death was caused by strangulation through Duptta by appellant.
18. I am afraid it would be absolutely unsafe to believe the version of the prosecution which was full of contradictions and infirmities. The prosecution thus failed to prove its case beyond all reasonable doubt and conviction cannot be maintained in the light of my findings as above.
19. Consequently the benefit of doubt is extended to the appellant. The conviction of appellant Mst.
Kausar Parveen wife of Muhammad Ashraf under section 302, P.P.C. Is set aside and she is acquitted. The appellant be released forthwith, if not required in any other case. Articles P.1 to P.6 and P.7/1-2 shall be handed over to Muhammad Ashraf P.W.7, the father and legal heir of the deceased, if claimed. Otherwise the said articles shall be destroyed after the limitation of revision/appeal.