RIAZ HUSSAIN, J.---Iftikhar Ahmad son of Ghulam Farid was tried by Additional Sessions Judge, Sahiwal, for the murder of his wife Mst. Rakhshanda Jabeen. Learned Additional Sessions Judge, Sahiwal, vide his judgment dated 11-5-1992 convicted and sentenced him to death and a fine of Rs.30,000 out of which half of the amount if paid was to be given to the legal heirs of the deceased Mst. Rakhshanda Jabeen or in default to further undergo rigorous imprisonment for two yeas.
2. The convict has filed the present Appeal No.132 of 1992 whereas learned Additional Sessions Judge, Sahiwal, has referred the case under section 374, Cr.P.C.. For the confirmation of the death sentence vide murder reference No.197 of 1992. We propose to dispose of both the matters by this judgment.
3. The prosecution story in brief as narrated in the F.I.R. Lodged by Muhammad Rafique P.W.4 was to the effect that his sister Mst. Rakhshanda Jabeen married accused Iftikhar Ahmad 7/8 years prior to the occurrence. From this wedlock 4 children were born who were alive. About one year prior to the occurrence the spouses fell off for the reason that the appellant was hell-bent to have consent of the deceased to contract another marriage but his efforts did not fructify. About 7/8 days prior to the occurrence Mst. Rakhshanda Jabeen deceased left the house of her husband and came to the house of the complainant, his brother. On 12-1-1990 at about 10/11 a.m. Appellant approached the complainant Muhammad Rafique and requested him to permit the deceased to accompany him. He gave an assurance that he will not contract another marriage. The complainant consulted her sister who first refused but thereafter agreed on the condition that the complainant will accompany her lest she might be killed by the appellant. The appellant came to his house situated in Chak No.73/5-L with his wife as well as with the complainant. The spouses after taking meals slept in a room whereas the complainant slept under a Chapper which was adjacent to it. At about 2/3 a.m. On the same night the cries of the deceased attracted him and other prosecution witnesses. When he pushed the door of the room which was bolted from inside, it tumbled down and he saw that the appellant inflicted a Sota blow on the head of his wife who fell on the cot and he then gave her 4 or 5 blows more. Muhammad Saleem and Muhammad Ishaq P. Ws. Who had in the meantime reached there, also witnessed the occurrence. They tried to rescue Mst. Rakhshanda Jabeen but they could not do so as the appellant issued threats to them. The appellant decamped from the scene of occurrence. Mst. Rakhshanda Jabeen succumbed to the injuries thereat.
4. Muhammad Ibrahim, Inspector P.W.10 recorded the F.I.R. Exh.P.C. At the instance of Muhammad Rafique P. W.4. He reached the spot, prepared the injury statement Exh. P.H. And inquest report Exh.
P.1. He despatched the dead body for autopsy. He secured blood-stained earth vide recovery memo. Exh. P.D. And blood-stained cot P.5, Pillow P.6, blood-stained mattress P.7, blood-stained quilt P.8, lantern P. 9 which were taken into possession vide recovery memo. Exh. P.D. He got site plan prepared from Mirza Ashfaq Beg. He arrested the appellant Iftikhar Ahmad on 19-1-1990 who in custody led to the recovery of blood-stained Sota P.10 and her blood--stained clothes P.11 and P.12 which were secured vide recovery memo. Exh.P.F.
5. Dr. Muhammad Sadiq Saleem P.W.9 conducted the post-mortem examination on the dead body of Mst. Rakhshanda Jabeen and found the following injuries:--
(1) A lacerated wound 6 c.m. x 2 c.m. x bone fractured on the right side of head 8 c.m. Above the right ear.
(2) A lacerated wound 6 c.m. x 2 c.m. x bone fractured on the right side of the head 2 c.m. Below injury No. 1.
(3) A lacerated wound 6 c.m. x 2 c.m. x bone fractured on the right side of head 3 c.m. Below and inner to injury No.2.
(4) A lacerated wound 7 c.m. x 3 c.m. x brain out on the left side of forhead 6 c.m. Above the left eyebrow.
(5) A lacerated wound 8 c.m. x 3 c.m. x bone fractured on the right side of forehead 5 c.m above the right eyebrow.
(6) A lacerated wound 3 c.m. x 1 c.m. x muscle deep on the right side of face above the upper lip.
(7) A lacerated wound 6 c.m. x 1 c.m. x muscle deep above and around the right ear.
6. To prove the case, prosecution examined as many as 10 witnesses. P.W.3 Alam Sher escorted the dead body of Mst. Rakhshanda Jabeen to the mortuary. P.W.1 Mirza Ashfaq Beg, Draftsman, prepared the site plan Exh.P.A. And Exh.P.A./1 at the instance of the police. P.W.4 and P.W.5 furnished the ocular evidence. P.W.6 attested the recovery memo. Of blood--stained earth. He also attested the recovery of cot P.5, Pillow P.6, blood-stained mattress P.7, blood-stained quilt P.8 and lantern P.9 secured vide recovery memo. Exh.P.E. Pistle P.10, the blood-stained clothes of the appellant P.11 and P.12 were secured vide recovery memo. Exh.P.F.
7. The appellant when examined traversed the prosecution's allegations in other entirety and professed that he was at Faisalabad on the fateful night. He did not elect to make a statement under section 340(2), Cr.P.C. He did not produce any evidence in his defence.
8. Learned counsel for the appellant submitted that the prosecution story lacked credibility for the following reasons:----- First, There was no occasion for the complainant to accompany her sister Mst. Rakhshanda Jabeen when the appellant had successful\ assured P.W.4 that he will not contract another marriage.
Second, It did not stand to reason that the appellant in the extreme colt? Weather opted to sleep under a Chapper having no four walls.
Third, Although the place of occurrence was thickly populated but none living in the close proximity reached there.
Fourth, It was not believable that the appellant succeeded to flee away through the solitary door of the room where P.W.4 and P.W.5 and Ismaeel (not produced) were present.
Fifth, The recovery of articles P.5 and P.10 was doubtful as it was witnessed by P.W.6 Ihsanul Haq who was resident of Chak No.97/6-R which was at a distance of 25 miles from the place of occurrence.
Sixth, That the prosecution failed to prove the motive set up by it.
9. Learned State counsel controverted the arguments of the learned counsel for the appellant and supported the judgment of the learned trial Court.
10. We have thoroughly examined the evidence on the file and heard the learned counsel at length.
11. Muhammad Saleem P.W.5 was resident of Chak No.97/6-R. He had visited Ismaeel who was the close relative of his wife. It was pertinent to note that Ismaeel lived in Chak No.60/5-L which was at a distance of 1-1/2 miles even from the place of occurrence. It was stated by P.W.4 that Muhammad Saleem and Ismaeel came to the spot within 2 or 3 minutes after the door fell down. Even if it was assumed that Muhammad Saleem P.W.5, was preterit in the house of Ismaeel (not produced) it was doubtful that he witnessed the occurrence to the exclusion of the presence of the vicinity. His evidence therefore, shall not be taken into consideration.
12. We are inclined to hold that the prosecution has failed to prove the recoveries since .The respectables of the locality were not associated with, although they were present at the relevant time. We, therefore, disbelieve the recovery of articles witnessed by P.-W.5.
13. It was not unusual for the villagers to sleep under a Chapper in an extreme cold weather. It was a matter of common observation that they often sleep in an open place near the pen in order to take care of their cattle. In this case it looked that there was no other accommodation available for P.W.4 at that time and he, therefore, was obliged to sleep therein.
14. The appellant successfully escaped from the place of occurrence as he was armed with a Sota whereas the prosecution witnesses were not equipped with any weapon coupled with the fact that the appellant issued threats that if any one came nearer he will be done away with. It was, therefore, natural for the witnesses not to put up any resistance.
15. However, we are of the opinion that Muhammad Saleem P.W.5 rendered satisfactory explanation about his presence at the scene of occurrence. He had made a clean statement of the fact and, therefore, he proved to be a truthful witness. He did not have any animus with the appellant. The more he was cross-examined the clearer emerged the picture. He furnished an honest detail about the differences which cropped up between the spouses. Under these circumstances, we are also of the firm opinion that the motive set up by the prosecution stands fully established.
16. The portion of the statement of P.W.4 that the deceased agreed to join the appellant if P.W.4 accompanied her, when assured by the appellant that he will not contract another marriage, was not seriously disputed during the cross---examination. The solitary evidence under these circumstances was sufficient to hold the appellant guilty for the murder of his wife Mst.
Rakhshanda Jabeen. There was nothing on the record to suggest that he substituted the present appellant for the real culprit especially when he was closely related to the appellant and did not harbour any hostility with him. In this context reliance can be placed upon the instructive observations made in the following judgments:--
(i) Mali v. The State 1969 SCM R 76: "Learned counsel's contention that it would be unsafe to rely on the evidence of a solitary witness is, in our view, untenable, for a conviction can be based on the evidence of even a single witness if his testimony is acceptable. The testimony of Falak Sher has been accepted by all the Courts below and we see no reason to differ from their conclusions. He had ample opportunity to see the petitioner and to single him out as the robber armed with 'a gun. This as a special circumstance which fixed his identity."
(ii) Shah Wali v. The Crown 1971 SCM R 273: "Nothing, however, depends on the large or the small number of witnesses, if they are found to be reliable. Ghulam Sarwar, P.W.28, appears to be a straightforward, consistent and trustworthy witness and we can see no reason, why he should be disbelieved. We are unable to disagree with the conclusion arrived at by the High Court which is the final Court of facts in such matter. We dismiss the appeal."
(iii) Allah Bakhsh v. Shammi and others PLD 1980 SC 225: "A perusal of the facts of the case, however, shows that the solitary witness sought to be relied upon by the prosecution was a person who had not given any details of the crime in the F.I.R. Made by him, and his ocular account was contradicted by the medical evidence, and there was also doubt as to whether he was, in fact, able to see the assailants from a distance of 200 paces from the scene of murder. In these circumstances, it was held that the High Court appeared to have acted rightly, in accordance with correct principles governing the safe dispensation of criminal justice, in refusing to place reliance on the solitary testimony of one witness. It is clear to us that the conclusion reached in this case is confined to its own peculiar facts and does not purport to lay down any general proposition. The general principle, on the other hand, is that ever. In a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence and not on its quantity."
17. Respectfully following the law enunciated in the above judgments we feell inclined to observe that the solitary statement of P.W.4 was sufficient, to hold the convict, responsible for causing the murder of his wife Mst. Rakhshandu Jabeen. It will be pertinent to note that the appellant did not produce any evidence to substantiate his contention that he was at Faisalabad on the fateful night.
18. We are inclined to hold that even if the testimony of P.W.4 was excluded from consideration, there was a trail of tell-tale circumstantial evidence detailed above which did not admit of any other hypothesis than that of guilt of the appellant.
19. Mst. Rakhshanda Jabeen was found in the room where the spouses slept on the fateful night. It was not believable that some one else scaled the walls of the house, murdered her by entering the room where she was sleeping and then successfully escaped from the scene of occurrence. There was also no evidence that the deceased or his family was having some animosity with some one else. It was also intriguing that the inmates of the house did not report the matter to the police and sat back unruffled. It is regretfully observed that in our country the life-line of women-folk is still in the hands of their husbands or the male members of their family.
20. From the resume of the above facts it could be safely concluded that the prosecution has been able to prove the case against the appellant beyond any reasonable doubt. Now comes the question of sentence. The spouses retired after taking the meals: What immediately preceded the occurrence shall remain in mystery for the reason that even P.W.4 who was an eye-witness was not aware of it as was evident from his statement and the appellant, therefore, deserves leniency.
21. For the reasons stated above, we dismiss the appeal with the modification in the sentence.
Instead of death sentence we award the lesser penalty to the appellant who shall now suffer life imprisonment. Sentence off Cine and the direction as to the compensation are maintained. Death sentence is not confirmed. Reference is answered accordingly.