' MUHAMMAD ISLAM BHATTI, J.--- This Criminal Appeal No,73 of 1992 and connected Murder Reference No,9 of 1993 arise from the judgment of learned Additional Sessions Judge, Bahawalpur, dated 31-8-1992 whereby he convicted Abdul Razzaq (35) son of Nazir Masih a Nau Muslim resident of Chak No,12/BC under section 302(b), Criminal Law Amendment (Qisas and Diyat) Ordinance, 1991 and sentenced him to suffer death as Tazir.
2. The prosecution case, briefly stated, is that on 15-11-1991 Syed Azhar Hussain Shah, S.I. (P.W.5) while posted at Police Station Civil Lines, Bahawalpur was present at Saddar Pulli in connection with usual patrol in his beat when Mst. Hamidan Bibi wife of Ghaman, caste Christian, complainant in this case, (P.W.3) met him and got her statement Exh.P.C. Recorded, which' reads as under:-- "I have my residence at Bhatta No,2. I have four daughters who are all married. About seven years back, I married my daughter Nighat Parveen with Abdul Razzaq son of Nazir Masih, a Nau Muslim resident of Chak No,12/BC. Out of this wedlock, they have two sons named Faraz aged six years and Farhan aged three years. My son-in-law Abdul Razzaq is employed as a Dealer in Malik Corporation in Fauji Basti and has his temporary residence in the Chobara of the said Malik Corporation. Nighat Perveen lives with me at Bhatta No,2 along with her children. She wanted to join some service but Abdul Razzaq did not agree. Both of them were, therefore, not happy with each other on this account. Yesterday, Abdul Razzaq came to my house Shaam Wela (in the evening). While going back, he took along with him his son Faraz, to the Chobara where he lived. Today, Nighat Perveen went to Abdul Razzaq at the said Chobara in order to bring Faraz back. As she did not turn up up to Asar Wela, I along with my daughter Mst. Rifaat wife of Palous Gill and my son-in-law Palous reached Malik Corporation, Fauji Basti. We heard the noise and the hue and cry raised from the said Chobara. We rushed to the Chobara and saw Abdul Razzaq sitting on the chest of my daughter Nighat Perveen with a cloth around her neck which he was holding in both of his hands and was twisting/winding the same with full force. He was also exclaiming that he would not leave her alive. On seeing us, he immediately left Nighat Perveen and fled away. We immediately attended to Nighat who had already expired. Abdul Razzaq had murdered Nighat without there being any good reason. I was on my way to police station for lodging a report, after leaving my daughter Rifaat and Palous Gill to keep guard over the dead body when I have met you."
3. After recording this statement, Syed Azhar Hussain Shah read it over to Mst. Hamidan Bibi 'who thumb-marked the same in token of its correctness. He then forwarded this complaint Exh.P.C.
Through Muhammad Yaqoob F.C. To the police station for recording of formal F.I.R. Exh.P.C./1 is the copy of the formal F.I.R.
4. This S.I. Then visited the spot and prepared inquest report Exh.P.D. And injury statement of the deceased Nighat Perveen Exh.P.F. And then handed over the dead body of the deceased to Muhammad Iqbal (P.W.2) for escorting the same to the mortuary.
5. It was on the following day i,e, 16-11-1991 at about 10-00 a.m. That Dr. Muhammad Anwar, C.M.O.
B.V. Hospital, Bahawalpur (P.W.6) performed post-mortem examination on the dead body of Nighat Perveen. According to this Doctor, her Dopatta was stained with blood and tightly wrapped around the neck. After removing Dopant, he found ligature mark around the neck and another incised wound on the left angle of the mouth measuring 1-1/2" x 1/2". On dissection of the neck he found that ecchymosis was present under the skin on the ligature area. Hyoid bone was fractured in middle. Post-mortem staining were present on the back of the dead body. All other organs were healthy and normal and no abnormality was detected.
6. After doing the external and internal post-mortem examination, the doctor formed the opinion that the cause of death was asphyxia. All the injuries were ante-mortem in nature. The time between death and post-mortem was within 24 hours and the time between injury and death within five minutes.
7. The post-mortem examination being over, he handed over the dead body and last worn clothes of the deceased to the police. Exh.P.H. Is the correct carbon copy of his post-mortem report which is in his hand and bears his signatures.
8. Muhammad Iqbal P.W.2 had accompanied the Investigating Officer to the place of occurrence and had escorted the dead body to the mortuary. Shalwar P.1, Qameez P.2 and Dopatta P.3, the last worn clothes of the deceased were handed over to him by the doctor and he produced the same before the Investigating Officer who took them into his possession vide memo. Exh.P.B. In the presence of Palous Gill (P.W.4) and Jalal.
9. Riyasat Ali T.W.1 had on the asking of the Investigating Officer on 17-11-1991 prepared site plan Exh.P.A. And Exh.P.A./1 on the pointation of the P.Ws.
10. The accused was arrested on 16-11-1991 and after completion of investigation, P.W.5 handed over the file to the S.H.O. Who drafted report under section 173, Cr.P.C. And submitted the challan in Court.
11. It was on 14-7-1992 that Abdul Razzaq accused was charged under section 302 of Qisas and Diyat Ordinance by the learned Additional Sessions Judge, Bahawalpur on the allegation that on 15-11-1991 at about Asar Wela on the Chobara of Malik Corporation Fauji Basti, within the jurisdiction of Police Station Civil Lines, he committed the murder of his wife Nighat Perveen daughter of the complainant. He pleaded not guilty to the charge and faced trial.
12. It was then that the prosecution produced Riyasat Ali, Patwari (P.W.1), Muhammad Iqbal (P.W.2), Mst. Hamida Bibi complainant (P.W.3), Palous Gill (P.W.4), Syed Azhar Hussain Shah, Sub-Inspector (P.W.5) and Dr. Muhammad Anwar (P.W.6) to establish the guilt of the accused. Mst. Rifaat Perveen, Nazir Gill and Jalal Masih were given up as unnecessary. The prosecution then closed their case on 24-8-1992. It was on 25-8-1992 that the statement of the accused was recorded under section 342, Cr.P.C.
13. To give a resume of the prosecution evidence, Riyasat Ali, Patwari (P.W.1) had prepared the site plan while Muhammad Iqbal (P.W.2) had escorted the dead body to the mortuary and had produced the last worn clothes of the deceased handed over to him by the Doctor before the Investigating Officer, as mentioned above.
14. Mst. Hamidan Bibi complainant entered the witness-box to give the eye-witness account of the occurrence. After claiming that Mst. Nighat Perveen was her daughter and was married with Abdul Razzaq accused about seven years back and two sons were born from their wedlock, she deposed that Abdul Razzaq along with his children resided with her. He was employed at Malik Corporation.
She then claimed that Abdul Razzaq had his ordinary abode at Malik Corporation in one room in the upper story. One day prior to the occurrence, Abdul Razzaq took along with him his son. On the next day, her daughter Nighat Perveen went to Malik Corporation in order to bring her son back. Till evening, she did not turn up. In the meantime, her daughter Rifaat and her son-in-law Palous came to her house. He asked them to inquire about her daughter Nighat Perveen. They accompanied her to Malik Corporation at Asar Wela. When they reached there, noise was coming from the Chobara.
They went to Chobara where Abdul Razzaq accused was sitting on the chest of her daughter and was strangulating her with her Dopant. After seeing them, he left her daughter Nighat Perveen and went away. They tried to attend to Nighat Perveen but she had expired. She then left her daughter Rifaat and her son-in-law Palous near the dead body and went to lodge a report at the police station. According to her, Inspector met her on the way near Saddar Pulli where he recorded her statement Exh.P.C. It was read over to her and she thumb-marked the same in token of its correctness.
15. She also explained motive behind the occurrence. She claimed that her daughter Nighat Perveen was a mid-wife and she wanted to serve in some hospital but her son-in-law Abdul Razzaq accused, husband of the deceased, was against her service. So they often quarreled with each other and it was for this very reason that he committed the intentional murder of her daughter Nighat Perveen.
16. The prosecution produced Palous Gill P.W.4 to corroborate the version of the complainant as another eye-witness of the occurrence. According to him, on the day of occurrence he alongwith his wife Mst. Rifaat went to the house of his mother-in-law Hamidan Bibi. They found her worried. He inquired from her the reason for her disturbance. She disclosed that Mst. Nighat Perveen had gone to Abdul Razzaq at Malik Corporation in the morning, in order to bring her child back and had not turned up. He, therefore, alongwith his wife and mother-in-law went to Malik Corporation on a motor rickshaw. It was Ishaa prayer time when they alighted from the rickshaw. They heard the noise and were attracted to the spot in the Chobara of Malik Corporation where they saw accused Abdul Razzaq sitting on the chest of Nighat Perveen and strangulating her with her Dopatta. After seeing them Abdul Razzaq left Nighat Perveen and ran away. They tried to attend to Nighat Perveen but she had expired. Her mother-in-law left them near the dead body and herself went to the police station to lodge the report. He added that. Police reached the spot and the dead body was taken into possession by the police. He identified the dead body before the police as also before the doctor at the time of post-mortem examination. He signed the inquest report Exh.P.D. And also the recovery memo. Exh.P.B. Regarding last worn clothes of the deceased and receipt Exh.P.E.
Regarding delivery of dead body to Mst. Hamidan Bibi. He went on to depose that there remained a dispute between the deceased and the accused because Nighat Perveen deceased wanted to join service as mid-wife but the accused was against it and it was for this very reason that he committed her murder.
17. The case of the accused is of total denial. In reply to the question if he has anything else to say, he made the following statement:- "My father and mother were Christian. I was also a Christian. I and my mother embraced Islam and my mother contracted marriage with Muhammad Bakhsh who is a Muslim. The Christian folk became inimical towards us. Mst. Nighat Perveen deceased was previously married with Tariq Masih and she embraced Islam and contracted marriage with me with her free will and consent, without permission of her parents. Due to this marriage, the complainant party was annoyed and became inimical towards us. They pressurized us to become Christian. On our refusal, they threatened us that they would kill us. One week before the registration of this case, Mst. Nighat Perveen deceased went to visit her sister Mst. Rifaat but did not return. The complainant party registered this false case against me and involved me due to their personal grudge. I am innocent and did not commit any offence."
' He did not like to produce defense or make any statement under section 340(2), Cr.P.C. Claiming that the prosecution had not succeeded in proving their case against him.
18. It was on the basis of this evidence that the learned Additional Sessions Judge, Bahawalpur came to the conclusion that the prosecution had succeeded in proving on record, beyond any shadow of doubt that Abdul Razzaq accused had committed Qatl-i-Amd of Nighat Perveen, his wife. He, therefore, convicted him under section 302(b), Criminal Law Amendment (Qisas and Diyat) Ordinance, 1991 and sentenced him to death as Tazir having regard to the facts and circumstances of the case.
19. We have very carefully gone through the evidence on record and have also heard the learned counsel for the parties. We have, however, formed an opinion that the prosecution evidence does not inspire confidence and was not at all sufficient to record conviction. The learned Additional Sessions Judge has no doubt addressed himself to all the possible objections raised by the defence to the prosecution evidence but his reasoning is not convincing enough for sending the accused to gallows. A careful and minute appraisal of the evidence has led us to hold that the prosecution has failed to establish motive, that both the so-called eye-witnesses of the occurrence cannot, by any stretch of imagination, be termed as natural witnesses and that the version of the complainant and her son-in-law does not fit in with the medical evidence. In fact, it appears that the F.I.R. Was recorded after preliminary investigation and the complainant and her son-in-law were prompted to become the eye-witnesses of the occurrence by perhaps the Investigating Officer.
20. The S.I. Who recorded the statement of the complainant claims that he was present at Saddar Pulli in connection with his beat and he was already in possession of his investigation bag. He, therefore, recorded the statement of the complainant at the spot where she met him. Muhammad Iqbal P.W.2 was accompanying this S.I. On patrol duty since morning and according to him, the S.I.
Was not having his investigation bag with him at that time. Be that as it may, but one thing is very clear from what has been deposed by Syed Azhar Hussain Shah, S:I. (P.W.5) that the Police Station Baghdad-ul-Jadeed is on the eastern side of the place of occurrence just nearby. He intentionally avoided to say that the place of occurrence was visible from the outer gate of Police Station Baghdad-ul-Jadeed. He also deposed that there was a link road on the southern side of the building where occurrence had taken place which led towards the Police Station Baghdad-ul- Jadeed. There was as such no occasion for the complainant to meet this S.I. At Saddar Pulli. It has been observed in more than one judicial pronouncements that when an S.I. Meets a complainant accidentally on his/her way to the police station, the ordinary presumption is that the F.I.R. Was drawn up at the spot. It is interesting to note that the complainant had herself admitted this fact in so many words in her cross-examination. According to her, the police recorded their statements including her own statement and the statements of her daughter Mst. Rifaat and son-in-law Palouse at the spot. The impression is, therefore, unavoidable that the F.I.R. Was recorded at the spot after deliberations and as held in Allah Bakhsh v. The State 1969 PCr.LJ 1204 the whole investigation from the recording of the F.I.R. Till its finalization becomes doubtful on this account.
Thus, the edifice built upon such an. F.I.R. And the testimony of the witnesses, who as per their own showing chanced upon the scene of occurrence as if the accused was waiting for them to arrive, falls to the ground and renders the entire prosecution case totally unbelievable, even for a person of very ordinary prudence.
21. The evidence regarding motive is not only weak but also unconvincing. According to both the complainant and her son-in-law, Mst. Nighat Perveen was a mid-wife and she wanted to serve as such but Abdul Razzaq accused was against it. The complainant has claimed that they often quarreled with each other on this account and it was for this very reason that he committed the intentional murder of her daughter. This piece of evidence, even if it be believed, is not at all sufficient to establish motive. Had there been any bad blood between the spouses, there was no occasion for the accused to and his family to live with his mother-in-law. Again Mst. Nighat Perveen would not have allowed her son to accompany the accused to the Chobara where he lived. He obviously did not take the child in anger and after picking up any quarrel with his wife. Had it been so and had the prosecution claimed that it was in such circumstances that Nighat Perveen had gone to the temporary residence of her husband for bringing the child back, there could have been some possibility for the accused to have done away with the deceased in the manner claimed by the prosecution. It is settled law that it is not necessary for the prosecution to set up motive but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account.
22. The complainant (P.W.3) and her son-in-law (P.W.4) have not at all been able to make a cogent, consistent and convincing account of the occurrence. We doubt very much if they could happen to be available at the scene of occurrence at the crucial moment when the accused was allegedly sitting on the chest of his wife Nighat Perveen with a cloth around her neck and twisting the same by both of his hands with full force, and that too by chance. In fact, both of them have made an inconsistent account which has rendered their evidence of extremely doubtful import. In the first instance, Mst. Hamidan (P.W.3) claimed that Nighat Perveen did not turn up till evening and it was in the meantime that her daughter Rifaat and her son-in-law Palous came to her house and she asked them to inquire about her daughter Nighat Perveen. She then perhaps forgot about evening and deposed that they accompanied her and they went to Malik Corporation at Asar Wela. In her cross-examination, she deposed that the place of occurrence is on the eastern side of Bahawalpur city while Bhatta No,2, where she lives, is situate on its western side. She could not tell the exact distance in-between the two claiming that she was illiterate but added that it took them about 15 to 20 minutes to reach there. Palous Gill (P.W.4) also failed, to give any good reasons for him and his wife to visit the house of his mother-in-law, when they found her worried but claimed that it was at about Isha prayer time that they got down from- the rickshaw. In his cross- examination, he deposed that the distance in-between the place of occurrence and the house of his mother-in-law is about 8/9 kilometers. We doubt very much if this distance could be covered within 15 to 20 minutes on a rickshaw and if all what they have both deposed in this behalf is read and considered together, it cannot be believed that they were available at the scene of occurrence at Asar Wela and that the statement of the complainant could be recorded at 5-50 p.m. As per Rapat No,18, as claimed by the prosecution.
23. Both the P.Ws. Are unanimous in claiming that the moment they reached upstairs they saw the accused committing the murder of the deceased. According to Riyasat Ali (P.W.1), the staircase is about 3 feet in width and there is no other passage to come down from the roof, except these stairs. The gallery where the occurrence took place might also be 2/3 feet in width as per the statement of the complainant. It is highly unbelievable, rather unimaginable that the accused could flee away from the same stairs and all the three of them i,e, the complainant, her daughter Mst. Rifaat only one step behind her and Palous Gill one or two steps behind her daughter, could not catch hold of the accused. It is also most unnatural for Palous Gill to state that he did not try to apprehend the accused because as per his version, after seeing them he immediately ran away.
Earlier he had claimed that he was at a distance of about 2/3 feet from the deceased when he saw the occurrence for the first time. The distance in-between the place where the deceased was lying and where the stairs ended, as per his version, might be 2/3 feet. The stairs were on his back. Had it been so, there was no possibility at all for the accused to run away. Palous. Gill is 34 years of age and there is no evidence to suggest that he is not an able bodied person. He, his wife and the complainant could easily overpower the accused. They failed to do so obviously because they had not seen the occurrence and they were not present at the time when Mst. Nighat Perveen was murdered.
24. It is also noteworthy that no mention whatsoever has been made of the child whom the accused had allegedly taken away to his Chobara, a day earlier. The investigation in this case was not carried out with care nor have both these witnesses and the Investigating Officer been cross- examined on this point and no effort has been made to find out as to where was the child at the time of occurrence. We cannot help observing that the child would have been the most natural_ and the failure of the prosecution to make any mention of him in their entire evidence gives rise to a strong presumption that all the story is concocted one and might have been fabricated in order to provide a plausible justification for the visit of the complainant and her son-in-law to the Chobara and then become the natural witnesses of the occurrence.
25. There is another factor for disbelieving the version of the complainant. She is obviously not a truthful witness. She denied any knowledge regarding Abdul Razzaq and his mother having embraced Islam. She positively turned down the suggestion that her daughter Nighat Perveen had also embraced Islam when she married Abdul Razzaq accused. She also turned down the suggestion that she and her Biradari (her own people) felt annoyed with Mst. Nighat Perveen because she had married the accused against their wishes and they wanted to kill her because she had left their religion and embraced Islam. Palous Gill, however, admitted in his cross- examination that the mother of Abdul Razzaq accused had embraced Islam and had contracted a second marriage, that Abdul Razzaq had also embraced Islam and was residing with his mother and that Nighat Perveen who was previously married, left Christianity, embraced Islam and contracted second marriage with Abdul Razzaq with her own sweet will. It follows that Mst.
Hamidan Bibi complainant willfully withheld the true fags in order to avoid to give any impression that there might be some ring of truth in the claim of the defense that they were all annoyed on Nighat Perveen's marriage with Abdul Razzaq.
26. The evidence regarding the accused living at the Chobara, which is alleged to be the scene of occurrence, is also lacking. Palous Gill first stated that the accused was living with his mother. Msr.
Hamidan Bibi, on the other hand, claimed that he lived with her, along with his family. Palous, however, stated in his cross-examination that he was residing with the complainant along with his wife and children and that he went to the Chobara of Malik Corporation only 2/3 days prior to the occurrence. How then could he turn down the suggestion that he was not having his ordinary abode in the Chobara. It is really shocking to note that the learned Additional Sessions Judge also proceeded on the premises that the accused was having his ordinary abode on the Chobara. He, therefore, observed that in this situation, the onus shifted upon the accused to explain how the occurrence took place on his residential Chobara. A reference to the statement of the accused, however, reveals that he turned down the suggestion that he was serving in Malik Corporation or that he had his ordinary abode in the upper story (Chobara). It was incumbent on the Investigating Officer to .Collect and record independent evidence in this behalf which he failed to do. The observation of the learned trial Court that in this situation the onus shifted upon the accused to explain how the occurrence took place on his residential Chobara, therefore, was obviously the result of misreading and non-appreciation of the evidence. The prosecution has always to stand on its own legs and to establish the guilt of the accused beyond any doubt through cogent and convincing evidence and the failure of the accused to explain as to how the occurrence took place at the Chobara when he claimed that he did not live there, would not go against him. If the Court believes the prosecution evidence as a whole and is not G prepared to exclude the same from consideration, it will not straightway convict the accused but will review the entire evidence including the circumstances appearing in the case. The learned trial Court obviously failed to appreciate the I H evidence in a proper and legal way.
27. .Similarly, the observation of the learned Additional Sessions Judge that no doubt P.W.3 and P.W.4 are the close relatives of the deceased Mst. Nighat Perveen but at the same time the accused is also their close relative, is totally uncalled for. Mst. Hamidan Mai is obviously the mother of the deceased and Palous Gill P.W.4 happens to be the husband of her real sister Mst. Rifaat. The accused who is said to have done away with Mst. Nighat Perveen, the only link between him and the P.Ws., cannot be termed as their close relative. In this situation, when both the star witnesses of the prosecution happen to be closely related to the deceased, exceptionally strong corroboration of their evidence was necessary which could almost be by itself sufficient to establish the guilt of the accused. It is a settled principle of law that where the witness is interested, his deposition has to be scrutinized and tested carefully and cautiously and cannot be accepted unless the same is corroborated by such unimpeachable independent evidence which by itself may be sufficient to r6cord conviction. Wasiullah v. Mirza Ali and others PLD 1963 SC 25 and Ameer Bakhsh v. The State 1990 PCr.LJ 1765 can be referred to with advantage in this regard.
28. For all what has been discussed above, we come to the conclusion that the prosecution has very badly failed to establish the guilt of the accused beyond reasonable doubt. He is, therefore, entitled to acquittal.
29. Before parting with the judgment, we would like to observe, though it shall be mere academic yet significant to note that in such cases where it is established that Qatl-i-Amd had been committed by the husband, of his wife leaving behind two sons who are alive, the Court had no lawful authority/ jurisdiction/power whatsoever to convict the accused under section 302, P.P.C. Or impose penalty of death on him as has been held in Khalil-uz-Zaman v. Supreme Appellate Court, Lahore PLD 1994 SC 885. We feel obliged to reproduce the following observations of the Honourable Supreme Court which are extremely relevant in such cases and provide guidelines:-- "It was apparent on the face of record that Wali (daughter) of the deceased was direct descendant of the offender. Language of sections 306 and 308, P.P.C. Was plain enough to show that Qatl-iAmd committed by the accused was not liable to Qisas and Qatl-i-Amd not liable to Qisas was specifically punishable under section 308, P.P.C. Only. So, the accused could be convicted under section 308, P.P.C. And not under section 302, P.P.C. To death as Qisas or Tazir. Had the Courts taken the notice of three sections of the Pakistan Penal Code i,e, section 306, section 307 and section 308, they would not have sentenced the accused to death under section 302, P.P.C. The error committed by the Courts in convicting the accused under section 302, P.P.C. And sentencing him to death, was so serious that had the accused eventually been hanged to death, it would have amounted to murder through judicial process. Pleas of good faith/bona fide/ignorance of law/incompetency are not available in such like cases."
30. With these observations, we accept the appeal and acquit the appellant giving him the benefit of doubt. He is in jail. He be set at liberty forthwith if not required in any other case.
31. Murder Reference No,9 of 1993 is answered in the negative, the deathlike sentence is NOT confirmed.