' ASIF SAEED KHAN KHOSA, J.---Abdul Rashid alias Teddy appellant is a lady-killer but of a different kind. Instead of softly winning over a lady by his amorous and masculine charms he brutally killed her with a Chhurri! He was, thus, convicted by the learned Sessions Judge, Vehari vide judgment, dated 29-11-1995 for an offence under section 302(b), P.P.C,, and was sentenced to death and to pay a sum of Rs,20,000 by way of compensation under section 544-A, Cr.P.C. To the heirs of Mst.
Shamim alias Sheema deceased or in default of payment thereof to undergo R.I. For six months. He has challenged his conviction and sentence before this Court through Criminal Appeal No,336 of 1995. We have heard his appeal along with Murder Reference No,37 of 1996 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.1.R. Was that Sardar complainant was a resident, of Chak No,107/WB, situated within the area of Police Station Mitroo, District Vehari. At about 10-00 a.m. On 9-9-1993 the complainant and his brother's daughter Mst. Shamim alias Sheema were proceeding to the complainant's lands for the purposes of collecting grass therefrom. When they reached a Katcha road near the tube-well of one Sher Muhammad Mahar, suddenly Abdul Rashid alias Teddi armed with a Churri, emerged there from a cotton crop and raised a Lalkara that Mst. Shamim alias Sheema would be punished for not marrying him: He then gave a Churri blow to Mst. Shamim alias Sheema which landed at the left side of her front chest. Upon receipt of that injury Mst.
Shamim alias Sheema fell down. He then gave repeated Chhurri blows to the fallen Mst. Shamim alias Sheema hitting her left flank, left side of her back, right side of neck and right arm. Hue and cry raised by the complainant and Mst. Shamim alias Sheema attracted Shoaib and Qasim P.Ws. To the spot who also witnessed the occurrence. When the complainant and the P.Ws. Tried to intervene and catch hold of him they were also threatened by Abdul Rashid alias Teddi who then managed to flee from the place of occurrence brandishing his Chhurri. After a short while Mst.
Shamim alias Sheema succumbed to her injuries at the spot. The motive set up in the F.I.R., was that Abdul Rashid alias Teddi appellant wanted to marry Mst. Shamim alias Sheema deceased which offer was spurned and turned down by the complainant's family and Mst. Shamim alias Sheema herself. It was statedly on account of that grievance that Abdul Rashid alias Teddi had committed the murder of Mst. Shamim alias Sheema.
3. Leaving the dead body of Mst. Shamim alias Sheema in the care of Shoaib and. Qasim P. Ws. The complainant proceeded to report the matter to the local police. He went to Police Station Mitroo, District Vehari and lodged F.I.R. No,228 which was recorded by Muhammad Ameer, Inspector/ S.H.O., (P.W.8) at 1-00 p.m. On the same day for an offence under section 302, P.P.C.
4. After recording the statement of the complainant Muhammad Ameer, Inspector/ S.H.O., (P.W.8) took up the investigation of this case, proceeded to the place of occurrence, prepared injury statement and inquest report qua the dead body of Mst. Shamim alias Sheema and sent the dead body to mortuary for autopsy. He then inspected the place of occurrence, prepared a rough site- plan thereof, took into possession bloodstained earth therefrom and recorded the statements of witnesses.
5. Dr. Muhammad Razzaq (P.W.1) conducted post-mortem examination of the dead body of Mst.
Shamim alias Sheema on 10-9-1993 and found 9 incised wounds on the dead body which were ante-mortem and caused by a sharp-edged' weapon. The cause of death was shock and haemorrhage and injuries to heart, right carotid vessels and liver, which were vital organs of the body, due to injuries Nos,1 to 9. Injuries Nos. I, 4 and 5 were fatal and sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple in nature. In the opinion of the doctor, the death occurred instantaneously upon receipt of the injuries and the post-mortem examination was conducted within 24 hours of the death.
6. After post-mortem examination of the dead body Muhammad Amer, Inspector/ S.H.O., (P.W.8), the Investigating Officer, secured the blood-stained last-worn clothes of the deceased.
Subsequently he arrested the appellant and recovered a blood-stained Chnurri from his custody.
He then got a formal site-plan of the place of occurrence prepared by a Patwari. Thereafter, he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case.
7. At the commencement of the trial, the learned trial Court framed a charge with one head under section 302, P.P.C., against the appellant to which he pleaded not guilty and claimed a trial.
8. During the trial, the prosecution produced as many as eight witnesses in support of its case against the appellant. Sardar complainant (P.W.6) and Qasim (P.W.7) furnished the ocular account of the incident. Sardar complainant (P.W.6) also stated about the motive. Dr. Muhammad Razzaq (P.W.I) provided the medical evidence. Muhabat Ali (P.W.5) deposed about recovery of the weapon of offence effected from the appellant. Muhammad Ameer, Inspector/S.H.O., (P.W.8) stated about various steps taken.By him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In his statement recorded under section 342, Cr.P.C., the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him, Abdul Rashid alias Teddi appellant had stated as follows: "The prosecution witnesses are inimical towards me. They are close relatives of the complainant.
Mst. Shamim deceased was my wife. She was married to me on 5-9-1992. My Nikah was solemnised by Moulvi Abdul Hameed in the presence of Nawab Ali Lambadar and Muhammad Hanif. The complainant party was annoyed due to this marriage. I was living in the house of Gohar Ali, the father of Mst. Shamim deceased as Ghar-damad. After my marriage, Gohar Ali had died and there was no legal heir of said Gohar Ali except his wife and Mst. Shamim deceased. Said Gohar All had sufficient amount of cash with him.,He was also having golden ornaments with him.
He had landed property. I have been involved in this case falsely due to ulterior motive as after my involvement in this case, the complainant party would be able to usurp the whole of the property of said Gohar Ali. The mother of Mst. Sharriim deceased is still alive. She wanted to bring the true facts before the police but she was restrained by the complainant party. With ulterior motive from doing so. I had no motive to murder Mst. Shamim deceased. I am a poor Orson. There is nobody in my family to pursue my case. The complainant party in connivance with the police had falsely involved me in this case. Mst. Shamim deceased was murdered at a deserted place and since it was a blind murder, the complainant party had an opportunity and involved me falsely in this zase."
' Although initially the appellant opted to make a statement on oath under section 340(2), Cr.P.C., as his own witness and also stated that he would produce evidence in his defence yet subsequently he changed his mind. He neither made any statement on oath under section 340(2), Cr.P.C., nor produced any witness in his defence. He, however, tendered documents Exh.DA to Exh.DD in his defence.
10. At the conclusion of the trial, the learned Sessions Judge, Vehari convicted and sentenced the appellant as noticed and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellant and the learned Assistant Advocate- General appearing for the State and have also gone through the record of this case with their assistance.
12. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the. Appellant beyond reasonable doubt. He has further argued that the eye-witnesses produced by the prosecution were related, interested and chance witnesses who had failed to substantiate the reason for their presence near the deceased at the time of occurrence. It has also been contended that the ocular evidence had failed to receive corroboration from any independent source inasmuch as motive set up by the prosecution remained unproved, recovery effected from the appellants was unbelievable and the medical evidence contradicted the ocular account. It has seriously been canvassed that the stand taken by the appellant in his defence was supported by documentary evidence and the same merited acceptance. In the alternative it has been argued that on account of the prosecution's failure to prove the motive set up by it the appellant did not deserve the sentence of death passed against him by the learned trial Court. As against that. The learned Assistant Advocate-General has argued that the guilt of the appellant had been. Proved to the hilt and that he had acted cruelly and brutally and, thus, did not deserve any concession in the matter of sentence.
13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt.
14. The first question that has engaged our attention is whether the appellant had any motive to kill the deceased or not. After analyzing the record of this case from various angles we have formed a considered opinion that the appellant in this case indeed entertained a motive to kill the deceased.
The prosecution's case was that the appellant wanted to marry the deceased but the complainant's family as well as the deceased herself had turned down that proposal of the appellant.. According to the prosecution, such rejection of the proposal had propelled the appellant into been against the deceased. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove that motive set up by it. We do not agree with this argument. Sardar complainant had deposed about the motive in this case and he had not been seriously cross-examined by the defence on that aspect. It was admitted by all the parties to this case that the deceased was a young girl aged about 18/19 years and the deceased's father had already died and also that Sardar complainant was a brother of the deceased's father. It was also admitted that the deceased had no brother or sister and also that the deceased's mother was old and ailing, In this factual background, keeping in view the social set-up in our villages, we are ready to believe that the complainant was looking after the deceased and was concerned with and responsible for the welfare of the deceased and her mother. It was, thus, primarily the complainant who could be approached with a marriage proposal regarding the deceased and if such a proposal and its rejection were to be proved then it was the complainant who, more than anybody else, could appropriately depose about it. Thus, the prosecution had produced the best available evidence in that regard and in the absence of any serious cross-examination of the complainant in that regard, we have felt persuaded to accept his deposition in that respect.
15. Another angle from which we have looked at the aspect of motive in this case is that even the defence evidence obliquely accepts the motive part of the prosecution's Case. The stand taken by the appellant in his statement recorded under section 342, Cr.P.C., was that the deceased had, in fact contracted Nikah with the appellant on 5-9-1992 through a registered Nikahnama (Exh.DB).
The defence had also placed on record a plaint (Exh.DC) filed by the deceased against the appellant on 22-10-1992 ;regarding jactitation of marriage. That plaint was dismissed vide order, dated 12-10-1993(Exh.DD) on account of murder of the deceased on 9-9-1993. That evidence led by the appellant clearly showed that the appellant claimed the deceased to be his wife but the deceased did not accept that claim till her death. That by itself provided motivation to the appellant to launch aggression against the deceased. Yet another angle in that respect could he that even if the deceased has contracted marriage with the appellant with her free consent on 5- 9-1992 it appeared that she had gene back to her mother and complainant within a month and a half of such marriage where after a suit for jactitation of marriage was filed on her behalf which she had not refused to pursue. That could have generated a grave sense of betrayal in the mind of the appellant motivating him to launch aggression against her. Although extremely unfortunate and abominable yet throwing of acid on such betraying females by their frustrated and angry paramours or physically assaulting them or even committing their murder is not something unheard of in our society. All these various angles available on the record of this case have convinced us that the appellant indeed nursed a motive to launch an assault on the deceased.
16. As regards the ocular account in this has, we have noticed that it was a case of a daylight occurrence and the F.I.R., had been lodged with sufficient promptitude wherein the appellant had been nominated as to sole perpetrator of the offence. It was never suggested to the eye-witnesses that they did not previously know the appellant for the purpose of his identification. Even otherwise the stand taken by the appellant in his defence regarding alleged marriage with the deceased completely excluded the possibility of lack of identification on the part of the eye-witnesses. It is settled law that substitution is a rare phenomenon in a case of single accused. Apart from bald suggestions, no solid foundation had been laid by the defence in the present case so as to impute such a substitution by the eyewitnesses.
17. It is true that the eye-witnesses, produced by the prosecution in this case were related to the deceased but mere relationship of a witness with the deceased is never sufficient by itself to discard his testimony. The eye-witnesses in the present case had no reason to falsely implicate the appellant as the sole accused who had committed a gruesome murder of their young and innocent female relative. They had seen the appellant committing the offence in question and they had made straightforward depositions about the same before the learned trial "Court. Their statements had remained completely consistent regarding the main occurrence before the police as well as before the learned trial Court. It is true that, at the time of occurrence, that said eye- witnesses were away from their homes but the presence of Qasim (P.W.7) on his land and the claim of Sardar complainant (P.W.6) about going towards his land at that time of the day were neither unusual nor unbelievable. Villagers do frequently shuttle between their homes and nearby lands throughout the day. After all their lands are their main preoccupation. Therefore, we are quite reluctant to brand the eye-witnesses produced by the prosecution in this case as proverbial chance witnesses. We have also noticed with seriousness that the defence had failed to seriously cross-examine the said .Witnesses regarding the explanations put forth by them for their presence at or near the place of occurrence at the relevant time. In this context we are also mindful of the fact that the deceased was a young girl aged about 18/19 years and it was quite natural and expected that when present outside the village at that time she must. Be accompanied by a male member of the family. In the absence of her father or brother it was the complainant who was most likely to accompany her at that time and place. This, therefore, was an `additional reason available to believe the presence of the complainant with the deceased at the time and place of occurrence. The eyewitnesses produced by the prosecution have, thus, inspired our confidence and we have found them to be worthy of reliance on a capital charge.
18. The ocular evidence in the present case had also received ample corroboration from many independent sources. As already noticed above, prompt lodging of the F.I.R. And existence of motive on the part of the appellant indeed provided strong corroboration. Recovery of blood- stained Chhurri from the custody of the appellant during the investigation was yet another corroborative factor. Muhabat Ali (P.W.5) had witnessed the said recovery and had attested the recovery memo. In that regard. It has been argued by the learned counsel for the appellant that Muhabat Ali (P.W.5) was related to the complainant and that no Lambardar or Chowkidar was associated with the said recovery so as to meet the requirements of section 103, Cr.P.C. This argument is not acceptable to us. Muhabat All (P.W.5) was a shopkeeper belonging to the village from where the recovery was effected. He surely met the standard required by section 103, Cr.P.C.
Respectability in a village is not exclusively reserved for Lambardars and Chowkidars and relationship with the complainant party does not necessarily or per se affect a witness's acceptability! No reason -has been established by the defence as to why Muhabat All (P.W.5) would falsely depose in this case. The medical evidence produced by the prosecution had also provided sufficient support to the ocular evidence. The time of occurrence, the weapon used and the locale of injuries mentioned by the eye witnesses were all confirmed by the medical evidence.
The learned counsel for the appellant has argued that the deceased had suffered more injuries than what was stated by the eye-witnesses and that brought out a contradiction between the ocular and the medical evidence. We have not been impressed by this argument. The F.I.R. Had mentioned repeated blows having been given to the deceased by the appellant. Some variation made by the eye-witnesses at the trial regarding the exact number of injuries caused to the deceased would not have the effect of destroying their credibility. After all a sound thrashing or a gruesome murder is hardly a statistical or fiscal proposition wherein audit and account is to be maintained for each and every blow given! Thus, we have found no good reason to hold that the medical evidence did not provide full support to the ocular evidence.
19. As regards the defence version put forth by the appellant in his statement recorded under section 342, Cr.P.C., suffice to observe, that the same had failed to travel beyond a verbal assertion.
Apart from the Nikahnama (Exh.D.B.) there was no other proof available to support the assertion of a Nikah between the deceased and the appellant. The effect and value of that Nikahnama had been destroyed by the defence's own documents produced. As Exh.DC and Exh.-DD which showed that the deceased herself did not own that Nikahnama till her death. The appellant had failed to make a statement on oath under section 340(2), Cr.P.C. In support of his stand. He had also failed to produce the Nikahkhwan or any witness of the said Nikahnama so as to independently establish the factum of that Nikah. Apart from that, the appellant's allegation that the complainant was himself interested in getting the deceased murdered so that he could usurp her property was based on nothing but conjectures or bald insinuations which have no place in our criminal justice system. We have, thus, felt no hesitation in out rightly rejecting the defence version in this case.
20. For the reasons mentioned above we are convinced the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt and, therefore, we are minded to uphold the appellant's conviction recorded by the learned trial Court.
21. We have also given our anxious consideration to the question of sentence to be passed against the appellant for the offence committed by him. It has already been found by us in the earlier part of this judgment that the motive set up by the prosecution stood fully established through the best evidence available. Thus, the learned counsel for the appellant is not justified in claiming reduction of sentence of the appellant on the ground of failure of the prosecution to establish the motive set up by it. We have looked far and wide for any mitigating circumstance in this case qua the sentence to be passed against the appellant but have found none. The appellant had brutally and mercilessly butchered an innocent young girl by executing a premeditated design in that regard.
The normal wages of murder is death and in the peculiar circumstances of this case, the appellant deserves no less.
22. For the foregoing reasons the appellant's conviction under section 302(b), P.P.C. Is upheld. The sentence of death passed against him and the order regarding payment of compensation by him are also maintained. However, he shall suffer six months' S.1. In case of default in payment of compensation instead of six months' R.I. Ordered by the learned trial Court.
23. For what has been above Criminal Appeal No,336 of 1995 is hereby dismissed and The appellant's conviction and sentence are upheld except to the extent of the slight modification mentioned above.
24. As the sentence of death passed by the learned trial Court against Abdul Rashid alias Teddi appellant has been confirmed by us, therefore, Murder Reference No,37 of 1996 is hereby answered in the affirmative.