IFTIKHAR AHMED CHEEMA, J.- This appeal is directed against judgment dated 6.3.1995 passed by learned Additional Sessions Judge, Gujrat whereby he convicted Muhammad Akhtar appellant under Section 302 (b), PPC and sentenced him to life imprisonment as Tazeer'. The appellant was further directed to pay a sum of Rs.50,000/- as compensation to the legal heirs of the deceased.
2. Briefly stated the prosecution case as unfolded in the F.I.R. Ex.PJ is as under:- "Mst. Kaniz Bibi deceased was the fist cousin of Abdul Ghaffar complainant (PW-6). She was married to Muhammad Sarwar, the reaL brother of Akhtar accused who started teasing her {Mst.
Kaniz Bibi deceased) in the absence as her husband Sarwar who was detained in jail during the days of occurrence. Mst. Kaniz Bibi sent a message to her cousin Abdul Ghaffar complainant to see her. Accordingly he alongwith Mst. Balqis Bibi and Liaqat Ali PWs went to the house of Mst. Kaniz Bibi towards evening and they requested Akhtar accused not to make a mischief with Mst. Kaniz Bibi who was just like a sister to him. Akhtar accused took it ill. Abdul Ghaffar, Mst. Balqis Bibi and Uaqat Ali PWs who had come to Kunjah District Gujrat from village Kaulo Tarar, Tehsil and District Hafizabad after covering a distance of about 80 kilometers spent the night in the house of Mst.
Kaniz Bibi. They were lodged in one room while Mst. Kaniz Bibi and her children slept in the adjoining room. Akhtar accused slept in a Khola (a room without roof and a door). It was the night of 5.3.1995.
At about 11.00 p.m. The complainant (Abdul Ghaffar) Mst. Balqis Bibi and Liaqat Ali PWs were alarmed by the shriek of cries emanating from the room of Mst. Kaniz Bibi. They all rushed to the spot and saw Akhtar accused giving Chhuri blows to Mst. Kaniz Bibi, in the light of an electric bulb.
On seeing the PWs, approaching the accused decamped. The deceased who had sustained injuries on her neck and left side of her chest succumbed to her injuries on the spot. Leaving Mst.
Balqis Bibi with the dead-body after the expiry of the deceased Abdul Ghaffar complainant (PW-6) and Liaqat Ali (PW-7) went out in search of a Public Call Office to intimate their relatives. In their absence Mst. Naziran Bibi accused who is real sister of Akhtar accused reached the spot and removed the last worn clothes of Mst. Kaniz Bibi deceased which were stained with blood and replaced them with new ones. She also removed the blood-stained bedding and cot etc. With a view to cause dis-appearance of evidence of murder. Abdul Ghaffar complainant reported the matter at Police Post Kunjah where his statement Ex.PJ was recorded which bears his signatures.
Muhammad Afzal Shah, ASI (PW-9) after recording the F.I.R, went to the spot and prepared injury statement Ex.PH and inquest report Ex.PG of the deceased and despatched the dead-body for autopsy under the escort of Aman Ullah, Constable. He then inspected the spot, secured bloodstained each from the place of occurrence, took it into possession vide memo Ex.PB and made it into a sealed parcel. He then recorded the statement of the PWs. He also apprehended Mst. Naziran Bibi accused on 6.3.1995 who while in police custody led to the recovery of blood stained clothes of the deceased, i.e. Shirt P-4, Shalwar P-5, Bunyan P- 6 and a bedding P-7, pillow P-8, Razai P-9 and cot P-TO from her house. All the clothes and articles were blood-stained which were taken into possession by the said ASI vide memo. Ex.PE. The said ASI apprehended Akhtar accused on 7.3.1995 who while in police custody led to the recovery of blood-stained Chhuri P-3 from his residential house which was taken into possession vide memo. Ex.PD and was made into a sealed parcel. He recorded the statements of the attesting witnesses namely Shamshad and Azmat. The said ASI got prepared the site plan Ex.PC and its copy Ex.PC/1 from Draftsman, recorded the statements of remaining witnesses, deposited sealed parcels with Moharrir Head Constable Police Station, Kunjah, completed the investigation and put in the challan against Akhtar and his sister Mst. Naziran Bibi."
3. Dr. Muhammad Akram Naeem, Medical Officer (PW-5) conducted the post-mortem examination on the dead-body of Mst. Kaniz Bibi and found the following injuries on her person: -
(1) An incised wound with clean cut inverted margins approximately 4x3 c.m. On left side of neck.
(2) An incised wound with clean cut inverted margins approximately 6x3 c.m. At upper part of left breast.
(3) An incised wound with clean cut inverted margins approximately 3x2 c.m. Just below left breast.
All the injuries were ante-mortem and caused by sharp-edged weapon. In the opinion of the Doctor the deceased died due to shock and haemorrhage caused by the aforesaid injuries which were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within few minutes and between death and post-mortem about 8 to I6 hours. Ex.PF is the correct carbon copy of the post-mortem examination report of the deceased which is in the hands of the said Doctor and bears his signature. Ex.PF/1 is the pictorial sketch of injuries which also bears his signature.
4. The accused persons denied the prosecution allegations and pleaded v false implication.
Muhammad Akhtar accused also categorically denied the recovery of blood-stained Chhuri P-3 at his instance, from his residential house. Mst. Naziran Bibi also denied the recoveries of the aforesaid clothes of the deceased alongwith bedding, pillow, Razai, cot etc. From her residential house at her instance. In answer to the most pivotal question as to why he has been implicated in this case and why the PWs have deposed against him, Akhtar accused gave the following answer:- "I have been falsely implicated in this case. True facts are that Kaniz was having a dispute relating to property with her brother Muhammad Mansha. Muhammad Mansha was inimical towards Kaniz Bibi. Murder was committed by Muhammad Mansha and others at night time. At the time of occurrence I was available in a separate house. I came to know about the occurrence on the next morning because during the days of occurrence I was seriously ill being a patient of abdomen.
Muhammad Mansha and others falsely implicated me and my sister in this case to save their skin."
The accused persons, however, led no evidence in their defence nor they opted to enter in the witness-box as DWs to make sworn statements as envisaged under Section 340 (2), Cr.P.C.
5. The prosecution produced evidence of motive, ocular evidence, medical evidence and recoveries. Abdul Ghaffar complainant (PW-6) and Uaqat Ali (PW-7) deposed about the motive part of the prosecution version and also gave the ocular account of the occurrence. Their evidence was fully supported by medical evidence and recovery of blood-stained Chhuri P-3 at the instance of accused (Akhtar). The learned Trial Jud$>e believed the prosecution story to the extent of Akhtar and held that he was the real murderer of Mst. Kaniz Bibi deceased and recorded his conviction under Section 302 (b), PPC and sentenced him to life imprisonment as 'Tazeer'. The learned Trial Judge also mulcted Akhtar accused with a compensation payable to the legal heirs of the deceased in the tune of Rs.50,000/- and by giving Mst. Naziran Bibi accused the benefit of doubt acquitted her from the said charges vide the impugned judgment dated 22.1.1995.
6. Feeling aggrieved Akhtar accused (hereinafter called the appellant) has assailed his conviction and sentence, recorded vide the impugned judgment, by filing the instant appeal and I have heard his learned counsel at length.
7. There is no doubt or dispute that Mst. Kaniz Bibi (deceased) was done to death by some person or persons and this is borne out from the statement of Dr. Muhammad Akram Naeem (PW-5).
However, the most pivotal question which falls for the determination of this Court is whether the prosecution has fully established the guilt of Akhtar accused for causing the intentional death (Qatl-e-Am) of Mst. Kaniz Bibi. In order to substantiate this charge prosecution has relied on motive,' ocular evidence, medical evidence and recovery of blood stained Chhuri and I propose to examine all these pieces of evidence in seriatim.
8. Abdul Ghaffar complainant (PW-6) and Liaqat Ali (PW-7) have made a categorical statement Mst. Kaniz Bibi (deceased) was putting up alongwith her children in the house of her husband in Kunjah Town, District Gujrat. They have also asserted that her husband Muhammad Sarwar was detained in jail in those days. During the absence of her husband she was being teased by Akhtar appellant, the real brother of her husband who was also putting up in the same house. Having no close relative to whom she could complain about her grievance, she sent to message to her relatives Abdul Ghaffar (PW-6) who is the first cousin of Mst. Kaniz Bibi and Liaqat Ali (PW-7) another relative. Unluckily the parents of Mst. Kaniz Bibi (deceased) had expired long before her murder and she had no real brother or sister and having only a step brother Muhammad Mansha with whom she had perhaps no cordial relations. She had to call in aid the assistance of Abdul Ghaffar and Liaqat Ali PWs and they came to Kunjah towards evening, met Akhtar appellant and asked him not to tease Mst. Kaniz Bibi but their intervention and reprimand served as a fan to flame the hatred of the appellant and he decided to eliminate the deceased. 'Teasing' is a relative term and the aforesaid PWs have not explained it either. Anyway, Akhtar appellant might have mal- treated the deceased or tried to cultivate illicit relations with her in the absence of her husband and being offended of her refusal he might have cultivated a grudge against her and started picking up quarrels with the deceased over trivial matters with a view to make her life miserable.
Whatever may be the real cause which actuated Akhtar appellant to tease the deceased continuously which compelled her to send a message to her relative Liaqat Ali to come to Kunjah and intervene and tell the appellant to behave and Liaqat Ali's passing on this message to Abdul Ghaffar complainant (PW-6) leads us to an irresistible conclusion that the relations between Mst.
Kaniz Bibi and Akhtar appellant were strained and the intervention of the aforesaid PW's served as a fuel to the fire. Although the appellant has categorically denied the motive part of the prosecution story but the statements of Abdul Ghaffar complainant (PW-6) and Liaqat Ali (PW-7) stand unrebutted and I am convinced that bad blood did exist between the deceased and the appellant and I need not to labour this point any further.
9. The prosecution case chiefly rests on the statement of Abdul Ghaffar complainant (PW-6) and Liaqat Ali (PW-7). Abdul Ghaffar complainant
10. Liaqat Ali (PW-7) deposed on oath that the deceased was his maternal aunt. On 5.3.1995 he alongwith Mst. Balqis Bibi PW (not produced) and Abdul Ghaffar complainant came to Kunjah to the house of Mst. Kaniz Bibi. They reached there towards evening, contacted the appellant (Akhtar) and asked him not to tease the deceased. Muhammad Sarwar, the husband of Mst. Kaniz Bibi (deceased) was in jail and Akhtar appellant was the real brother of the husband of the deceased.
The appellant got offended on the advice and intervention of the aforesaid PWs. Liaqat Ali (PW-7) further deposed that they spent the night in the house of Mst. Kaniz Bibi and after taking their evening meal they were accommodated in one room while Mst. Kaniz Bibi and her children slept in the adjoining room. The appellant also slept in the same house. At 11.00 p.m. (at night time) both the eyewitnesses namely Abdul Ghaffar and Liaqat Ali and their "companion Mst. Balqis Bibi were alarmed by shriek of cries emanating from the room of the deceased. They all ran towards the spot and saw Akhtar appellant giving Chhuri blows to Mst. Kaniz Bibi. They witnessed the occurrence in the light of an electric bulb which was on in the room. On seeing them near the spot the appellant decamped taking his Chhuri with him. The deceased succumbed to her injuries on the spot. Liaqat Ali PW further deposed that after the expiry of the deceased he and Abdul Ghaffar went out in search of a Public Call Officer/Telephone Exchange to contact their relatives. After some time when they came back they were told by Mst. Balqis Bibi that Mst. Naziran Bibi accused (since acquitted) had removed the blood-stained clothes of the deceased and replaced them with new ones.
11. Both the aforesaid PWs (Abdul Ghaffar and Liaqat Ali) were subjected to a searching cross- examination but there is nothing on the file which may tend to discredit their testimony. I have carefully examined their evidence and am satisfied that they have emerged from a lengthy and protracted cross-examination as truthful witnesses and nothing of any significance was elicited from them which would in any way detract from the massive weight of their testimony . They are of course closely related to the deceased but mere relationship is no ground to discard the evidence of a witness unless it is further shown that he was actuated with a motive or malice to falsely implicate the accused. In the instant case there was no background of enmity between the appellant and the aforesaid eye-witnesses who was their close relative. It has been suggested to them that the deceased was inimical towards her step-brother Mansha because her father had transferred some landed property in his favour and the deceased was demanding her share of land. Both the eye-witnesses have outrightly dismissed this suggestion as being false and fabricated. It was suggested to Abdul Ghaffar complainant (PW-6) that he and his companion Liaqat Ali (PW-7) consumed time from 11.00 p.m. To 9.00 a.m. In consultation. From this suggestion it is clearly spelt out that the defence has not categorically denied the presence of these PWs at the spot at the relevant time. The complainant also dismissed the suggestion that he signed the F.I.R.
Ex.PJ on the spot and not at the Police Post. At the fag end of this cross-examination it was suggested that he was not available at the place of occurrence and that on the next day*he was summoned and made a PW in this case. He also dismissed this suggestion. The appellant has taken the plea of denial simpliciter and false implicating but to my great surprise not a single question was put to both the eyewitnesses with regard to any motive or malice which prompted them to falsely implicate the appellant in this case of capital charge. It is also significant to note that Liaqat Ali (PW-7) was suggested that when they (Abdul Ghaffar and Liaqat Ali) reached the spot Akhtar appellant was running away. The witness has dismissed this suggestion by making a categorical assertion that he and his companion Abdul Ghaffar PW had seen Akhtar appellant inflicting Chhuri blows to the deceased. From the aforesaid question it is clearly spelt out that the presence of both the eye-witnesses on the spot at the relevant time was not doubted or disputed by the defence. To my mind Abdul Ghaffar and Liaqat Ali PWs have made consistent and convicting statements at the trial. They are witnesses of truth and the learned Trial Judge has rightly placed his implicit reliance on their testimony.
12. The learned counsel for the appellant has vehemently contended that F.I.R, in this case was lodged after due deliberation and consultation with a delay of about 11 hours which renders the prosecution story quite doubtful and cited an admission of Liaqat Ali PW which reads as under:- "The police officer came to the place of occurrence at night time on the day of occurrence. Details of occurrence were provided to police by Abdul Ghaffar PW. At night time I also deposed about the facts of this case."
From the above narration the learned counsel for the appellant has tried to build up a case of prior consultation and deliberations of the eye-witnesses before the registration of the case, I do not see any merit in this argument. The occurrence had taken place at 11.00 p.m. And the defence has not disputed the time and venue of occurrence. If that was so how the police got the information of the incident during the odd hours of night when they were not informed by the PWs nor any ane from the accused party passed on this information at the Police Station, Kunjah and had the police reached the spot on the night of occurrence someone would have certainly recorded the statement of the complainant and other inmates of the house. What I am able together from the above narration is that the police officer came to the place of occurrence at night time means that on the following day of die occurrence when the matter was reported at Police Station by Abdul Ghaffar complainant, ASI reached the spot. He might have visited the spot at night time with a view to apprehend the appellant or to get information from the relatives of the deceased about the whereabouts of the culprit. The words 'details of occurrence were provided to police by Abdul Ghaffar PW' does not necessarily mean that Abdul Ghaffar complainant had given the details of incident to the police on that very night. If that was so there was ho hindrance in recording his statement by the police. These answers were given in reply to stray questions but the above answers do not lead us to an irresistible conclusion that the police got the knowledge of the incident on the night of occurrence and they gathered all the necessary information from the complainant and Liaqat Ali PW on that very night before the registration of the case. This question was not put to Muhammad Afzal Shah, ASI (PW-9) during his cross-examination.
13. In our social set up when the married girls are being mal-treated or teased by their in-laws they sent for their parents and if they are dead their brothers and sisters to come to their rescue. In the instant case Mst. Balqis Bibi PW (not produced) is the real sister of the deceased who had accompanied the aforesaid eyewitnesses to Kunjah Town at the call of her sister. Liaqat Ali (PW-7) is the sister's son of the deceased Mst. Kaniz Bibi while Abdul Ghaffar is her cousin brother. In all probability when Mst. Kaniz Bibi (deceased) found herself in difficulty in the house of her husband she called in aid the assistance of her nearest kith and kin. Their arrival in the house of the deceased on the night of occurrence and their presence is not seriously doubted or disputed by the defence. They were, therefore, the natural witnesses of the occurrence. There is indeed an inordinate delay of about 11 hours in lodging the F.I.R, but the explanation given by the aforesaid eyewitnesses is plausible that they had gone out in search of a Public Call Office to contact their relatives on Telephone informing them about the death of the deceased. They were complete strangers in Kunjah Town. Even otherwise being illiterate and rustic villagers with rural back ground they were not expected to know the technicalities of law and prompt lodging of the F.I.R.
14. The learned counsel for the appellant has pointed out a few minor discrepancies but it is now well-settled that the discrepancies may occur even in the statements of most truthful witnesses particularly when they appear in the witness- box after two or three years of the occurrence. When they enter the witness-box after such a delay they cannot be expected to give the minute details of the occurrence with a scientific exactitude. However, both the eye-witnesses namely, Abdul Ghaffar and Uaqat Ali are- consistent so far as the main occurrence is concerned. The appellant being their close relative was previously known to them. They had identified him in the light of an electric bulb which was on in the room of occurrence. There was, therefore, no question of any mistake about the identity of the assailant and I see no rhyme or reason why they should trump up a false case against Akhtar (appellant) against whom they had no motive or malice whatsoever.
Their evidence has been rightly believed by the learned Trial Judge and that was sufficient to warrant the conviction of the appellant for causing the intentional death (Qatl-i-Am) of Mst. Kaniz Bibi.
15. The medical evidence lends full support to the ocular version on all material particulars and the learned counsel for the appellant has not been able to point out any conflict between them. The time between injury and death and postmortem fully correspond with that of the ocular account.
Thus medical evidence offers full corroboration, to the ocular version of the occurrence.
16. The recovery of Chhuri P-3 at the instance of Akhtar appellant stands proved through the evidence of Azmat (PW-2) and Afzal Shah (PW-9). The said Chhuri was found stained with blood and was sent to the Chemical Examiner for analysis. The report of the Chemical Examiner Ex.PL is positive. He has unambiguously opined that it was stained with human blood hence it stands established to the hilt that it was the same Chhuri with which the Akhtar appellant causedthe death of the deceased. The learned counsel for the appellant has assailed the aforesaid recovery on the solitary point that the Investigating Officer by not taking two respectables of the locality has violated the mandatory provision of Section 103, Cr.P.C, hence recovery stands not legally proved. I do not see any force in this contention. I am fully alive that superior Courts of this country have more often than not insisted that the recovery memos, should be attested by two respectables of the locality but keeping in view the public apathy and fully realising that no body is prepared to come forward and depose against the accused persons obviously to avoid bad blood, the police is constrained to bank upon police witnesses and in a case like the instant one where the deceased and her relatives belonged to village Kaulo Tarar, District Hafizabad and having no acquaintance in Kunjah Town it was hardly possible for them to procure any resident of Kunjah Town to attest the recovery memo., hence in the light of the peculiar circumstances of this case the Thanedar had no option but to ask his accompanying Constables to attest the recovery memo. The evidence of Azmat, Constable and Afzal Shah, ASI who is the Investigating Officer cannot be discarded simply because they are in uniform. They have been rightly believed by the learned Trial Judge and I also place my reliance on their testimony.
17. The defence of appellant is denial simpliciter, false implication and substitution. It is now well- settled that substitution is a rare phenomena and one who pleads substitution must lay the foundation for it. The defence version is neither spelt out from the prosecution evidence nor the appellant could establish it during the investigation or at the trial by adducing any evidence. The defence version is neither here nor there and I am convinced that it is false and after-thought which is accordingly rejected.
18. The upshot of the above discussion, therefore, is that the prosecution has fully established the guilt of Ak ar appellant for causing the intentional death (Qatl-i-Am) of Mst. Kaniz Bibi. I, therefore, uphold his conviction under Section 302 (b), PPC. There was no mitigating circumstance for awarding the lesser penalty of life imprisonment. The appellant has committed a cruel and wanton act, but since no revision for enhancement of sentence was find, I am, therefore, left with no option but to maintain his sentence of life imprisonment plus the amount of compensation in the tune of Rs.50,000/-.
19. The appeal is devoid of force which stands consequently dismissed.