' GHULAM NABI SOOMRO, J.---By a common judgment we propose to dispose of Criminal Appeal No,90 of 1992, Confirmation Case No,9 of 1992 and Criminal Revision No,1 of 1993 as they relate to one and the same judgment.
2. Appellants Muhammad Ali and Zulfiqar Ali both sons of Allandino, have assailed the judgment, dated 7-4-1992, passed by the learned Sessions Judge, Naushero Feroze, whereby they were convicted and sentenced to death under sections 302 and 34, P.P.C., were also imposed a fine of Rs,50,000 each and in default whereof to undergo R.I. For three years more. Fine, if realised, 2/3rd of the same was also ordered to be given to the heirs of the deceased lady. At the same time the learned Sessions Judge has forwarded Reference No,9 of 1992 for confirmation or otherwise of death penalty in respect of the above appellants. By above Criminal Revision the complainant has also challenged the acquittal of acquitted accused Anwar Ali.
3. Prosecution case, briefly stated, is that on 22-9-1990 at 9-30 a.m., complainant Hafiz Allah Bux lodged F.I.R. At Moro Police Station, wherein he disclosed that appellant Muhammad Ali who was related to him was married with the complainant's sister Mst. Farzana, about four months prior to the incident. Mst. Shamshad Begum, another sister of complainant was also married to co- appellant Zulfiqar Ali and in exchange the appellant's sister was given in marriage to the complainant's brother namely Abdul Rasheed.
4. It is stated that Mst. Farzana used to complain to the complainant about her husband who used to press her for arranging some money from her parents/relatives or give him the golden ornaments, she possessed at that time, as her husband Muhammad Ali (appellant) wanted to open to a shop. It is said that the complainant had informed about such pressure and maltreatment of appellant, Muhammad Ali towards his wife Mst. Farzana, to Muhammad Ali's brother appellant Zulfiqar Ali, but Zulfiqar Ali, it is stated replied that since the matter was purely between spouces as such he had no concern.
5. It was further mentioned that on the aforesaid, date at about 5-30 a.m. P.W. Abdul Rasheed went and informed the complainant that during the night he was staying in the house of the appellants when at about 5-00 a.m. He heard cries of Mst. Farzana coming from the bed room of Muhammad Ali. He and his sister Mst. Shamshad Begum rushed towards the room and saw both the appellants present inside the room and found them strangulating Mst. Farzana by the head-sheet put around her neck. The acquitted accused Anwar Ali was also said to be available and was allegedly instigating the appellants to finish Mst. Farzana. P.Ws. Abdul Rasheed and Mst. Shamshad Begum though beseeched the appellants but the appellants did not listen and consequently after killing the lady both of them went outside the room.
6. The complainant on such information proceeded to the house of his relative, Ghulam Shabbir, to apprise him of the incident but Ghulam Shabbir was not found in the house. He, therefore, waited for him and when Ghulam Shabbir came back, the complainant took him to the house of the appellants where they found Mst. Farzana lying dead. The complainant, thereafter, leaving the P.Ws. At the dead body, went to the Police Station and lodged the aforesaid F.I.R.
7. The police after registration of the F.I.R. Proceeded to the place of incident and after performing legal formalities examined prosecution witnesses, Ghulam Shabbir, Abdul Rasheed and Mst.
Shamshad Begum. Police recovered the head-sheet which was tied around the neck of the deceased besides the head-sheet and other articles smeared with blood. Both the appellants and the acquitted accused Anwar Ali were arrested and sent up on completion of investigation.
8. Charge was framed against the appellants and the acquitted accused to which they did not placed guilty and claimed trial.
9. At the trial prosecution examined complainant Hafiz Allah Bux, P.Ws. Mst. Shamshad Begum, Abdul Raseed, Mashir Muhammad Siddiq, Tapedar Ali Nawaz, Medical Officer Dr. Muhammad Ali, P.C. Alandino and Taj Muhammad, A.S.I., Investigation Officer and closed its side. Appellants and the acquitted accused in their respective statements under section 342, Cr.P.C. Denied the case of prosecution and claimed that they have been implicated falsely due to enmity over the shop.
Appellant Muhammad Ali further pleaded that deceased Mst. Farzana was not satisfied with the marriage as he was a driver and on the fateful night she committed suicide finding herself alone in the room. They did not examine themselves on oath but examined Mukhtar Ahmed in their defence.
10. The learned Trial Court framed the following points for determination:---
(1) Whether deceased Mst. Farzana died an unnatural death.
(2) Whether above named accused on 22-9-1990 at 5-00 a.m. In the house of accused Muhammad Ali, Zulfiqar and Anwar intentionally with common intention caused death of Mst.
Farzana by strangulation with head-sheet?
(3) What offence if any accused have committed?
11. On the assessm ent of evidence and after hearing the counsel for the parties the appellants were found guilty and were convicted and sentenced as above where as accused Anwar Ali was acquitted.
12. We have heard Mr. A.Q. Halepota, learned counsel for the appellants, Mr. Jalil Ahmad Hashmi, learned Assistant Advocate-General for the State, Mr. Ghulamullah Memon for the complainant/applicant in the criminal revision and Mr. Sardar Muhammad Ishaque learned counsel for respondent Anwar Ali at length, have also perused the record and proceedings.
13. Mr. A.Q. Halepota, learned counsel for the appellants submitted that there is delay of about four hours in lodging of F.I.R. For which no plausible explanation has been furnished. According to him P.W. Ghulam Shabbir to whom the complainant narrated facts and waited for him for four hours has not been examined, which goes to show that the complainant party had sufficient time for deliberations and consultations prior to lodging of F.I.R.
14. Learned counsel for the appellants, has argued that the incident as alleged occurred at about 5-00 a.m. Inside the bed room of the deceased and her husband, when at said moment of time eye-witnesses, Mst. Shamshad Begum and Abdul Rasheed could not have been present. P.W. Abdul Rasheed was residing in his own house at a distance of just a kilometre away and it hardly rings true that Abdul Rasheed did not go to his house and as wished by her sister P.W. Shamshad Begum, preferred to stay for the night in the house of the appellants after "Laada function". P.W. Mst.
Shamshad Begum likewise though sleeping in the same house in the room of her husband appellant Zulfiqar Ali would not have been able to see the occurrence of the incident. He has contended that the deceased was the sister of both these P. Ws. Who claim themselves as eye- witnesses of the occurrence. He has urged that even the complainant Hafiz Allah Bux is a brother of the deceased, Mashir P.W. Siddique and P.W. Ghulam Shabbir are the close relatives of the deceased.
15. Learned counsel has further contended that none from neighbourhood was produced as a witness at the trial, as such, there is no independent and trustworthy witness in this case. He has further attacked the evidence relating to the case property, i,e, head-sheets, bed and pillow covers, etc., presence of blood on them and their securance and sending of the same to Chemical Analyser.
' Learned counsel has urged that from the evidence on record, it is evidently clear that this property was not sent to Chemical Analyser at the same time and it is the result of manipulation and substitution and the same cannot be relied upon implicitly as an incriminating piece of evidence.
He has stressed that the police investigation is not honest. The alleged motive pertains to the appellant Muhammad Ali and has nothing to do with the appellant Zulfiqar Ali. P.W. Ghulam Shabbir, the neckmard was not examined at all.
16. Mr. A.Q. Halepota has further stressed that on the basis of the same evidence accused Anwar Ali was acquitted hence in view of such a finding I respect of accused Anwar Ali, same benefit ought to have been extended to the appellants.
17. Learned counsel has contended that the P.Ws. Being related to the deceased, their evidence would require strong corroboration from an independent, unimpeachable source. He has concluded his arguments with great stress on the point that the two eye-witnesses in the case, namely, Mst. Shamshad Begum and Abdul Rasheed could not really have been able to see the occurrence at the stated moment and they are definitely false in their claim. He, therefore, emphasized that the occurrence is an un witnessed one and the common rule that the prosecution has to prove its case beyond any shadow of doubt would apply with full force in this case as may be applicable in any other case. He has, thus, pleaded innocence of the appellants and their acquittal as a consequence thereof.
18. In support of his arguments he has referred to the following case-law: 1978 PCr.LJ 420. 1969 SCM R 629. 1971 SCM R 65. 1989 MLD 1708. 1985 SCM R 410.
19. The case of Abdul Wahab v. Jameel 6 otlnrs reported as 1971 SCM R 65, is of no avail to the case of the appellants as the above referred case relates to an appeal against the acquittal, the criterion in appeal against acquittal are quite different from that of an appeal against conviction.
The law enunciated by the Honourable Supreme Court is distinguishable. In case of Muhammad Luqtnan v. The State (1989 MLD 1708) it was held that unexplained inordinate delay in lodging the F.I.R. Leads to the conclusion that they were procured and induced to become witnesses to the occurrence. This ruling does not help the appellants as the same relates to the facts which are different from the present case. In the referred case the incident had occurred far away from the house of the deceased as well as the appellants at midnight time where the prosecution witnesses being the father and maternal uncle of the deceased, claimed to be present with the deceased at that moment of night. In the case of Saifullah v. The State (1985 SCM R 410) the two eye-with zsses, real brothers of the deceased were disbelieved on the ground that the deceased being a gate man at Railway crossing, the two eye-witnesses happened to pass by the said railway crossing when they were attracted on hearing the noise. This authority again in our humble view will not be applicable to the present case. The case of Ghulam Nabi Shah v. The Crown (1969 SCM R 629) is again not helpful to the case of the appellants on the aforesaid reasoning of facts and circumstances of this case being identical.
20. On the order hand Mr. Habib Ahmed learned Assistant Advocate-General, Sindh has vehemently controverted the contentions of the appellants counsel and argued that the prosecution witnesses are natural witnesses. Admittedly the incident has occurred in the bed room of appellant Muhammad Ali as such it was incumbent upon him to explain how the occurrence took place, which he has failed to do. He further submitted that though Defence Advocate has fully cross-examined prosecution witnesses yet he has not been able to shatter their evidence.
21. Mr. Ghulamullah Memon learned Advocate for the complainant supported the arguments of learned A.A.-G. In addition he contended that prosecution has been able to prove ocular evidence, medical evidence, circumstantial evidence and the motive. He has placed reliance on: 1993 PCr.LJ 402. 1968 PCr.LJ 1597. 1990 PCr.LJ 73. 1970 SCM R 797. 1981 SCM R 174.
' In the case of Mehmood v. The State (1993 PCr.LJ 402) it was held that the motive is not an element essential to prove the guilt of an accused in a criminal trial. It is a factor to be taken along with other circumstances attending to a case, therefore, inadequacy or otherwise of the motive hardly makes any change. In Muhammad Anwar v. The State (1968 PCr.LJ 1597), it was held that it is not delay per se in all cases which would give rise to an adverse presumption against the prosecution but delay in the particular circumstances of a case, coupled with possibilities of fabrication or exaggerations of facts by conference and consultations that would tend to militate against the prosecution.
' In the case of Mohabbat v. The State (1990PCr.LJ 73), the evidence of two police officials was believed to be truthful as both of them appeared as natural witnesses and their evidence was fully supported by the attending circumstances. The above authorities of the Hon'ble Supreme Court fully support the prosecution on all aspects.
22. Mr. Sardar Muhammad Ishaque, the learned counsel for the respondent Anwar Ali in the revision application has contended that the prosecution allegation against the respondent is only of instigation and nothing more against him is alleged. He has urged that the respondent had neither any motive for the commission of offence nor only animosity against the lady. He has contended that in such circumstances the role of instigation assigned to the respondent is false and is not supported by any substantial evidence. The learned A.A.-G. In view of the above supported the acquittal of the respondent.
23. In order to arrive at a proper conclusion, we deem it essential' to discuss the evidence in material particulars.
(a) On ocular evidence the prosecution has examined P.W. Abdul Rasheed and P.W. Mst. Shamshad Begum. Mst. Shamshad Begum is the wife of appellant Zulfiqar Ali and inmate of the same house where the incident took place. She is, therefore, a natural witness. Besides, no motive is alleged against her to implicate falsely her own husband Zulfiqar Ali and his brothers. P.W. Abdul Rasheed being brother of P.W. Mst. Shamshad Begum as also of the deceased Mst. Farzana stayed for the night of the house of the appellants on insistence of Mst. Shamshad Begum after "Laada" function was over. He is a natural witness. P.W. Abdul Rasheed is equally related to the appellants as he is the husband of the appellants' sister Mst. Gul Naz.
(b) Medical evidence consists of Dr. Muhammad Ali who opined that the deceased Mst. Farzana died an unnatural death as a result of strangulation. This evidence has not been rebutted by the defence and has gone unchallenged. There is, therefore, no dispute about unnatural death of the deceased lady. The A Medical Officer has ruled out the possibility of the deceased having committed suicide.
(e) On circumstantial evidence there is evidence on P.W. Muhammad Siddique, Mashir in the case and A.S.I. Taj Muhammad. They have fully supported the case of prosecution and as far recoveries of articles from the bed room of the appellant Muhammad Ali are concerned. It is nowhere alleged that the Mashir or the A.S.I. Were hostile against the appellants and their evidence was the result thereof. Their evidence gets further support from. Chemical Examiner's Report.
(e)On the point of motive, there is evidence of (1) complainant Hafiz Allah Bux, (2) Mst. Shamshad Begum and (3) Abdul Rasheed. The complainant has deposed that: "Mst. Farzana came to my house and complained the her husband Muhammad Ali often pressed her to arrange some money from her brothers i,e, ourselves and also asked her to give him the gold ornaments of her dowery so that he may sell the same and invest the entire amount and open a shop and on her refusal she was beaten by Muhammad Ali. On the following, day I went to Muhammad Ali and asked him to behave properly with Mst. Farzana and then I went to Zulfiqar asking him to advise his brother but he replied that it was a matter between the spouses and he had nothing to do any way. Then I complained to their elder brother Anwar Ali who advised me to complain to their father. Then I complained to their father, he replied that his sons do not obey him.
Dueto this reason Mst. Farzana was killed."
' P.W. Mst. Shamshad Begum in her deposition has stated that: "After about three months of our marriage Mst. Farzana told me that her husband was compelling her to arrange some money and her gold ornaments so that he may start a business and on her refusal she was being beaten. I advised Mst. Farzana to complain to Hafiz Allah Bux. Hafiz Allah Bux came to our house and advised Muhammad Ali to behave properly and then he complained to Zulfiqar Ali. He also complained to Ghulam Shabbir who also advised Zulfiqar to ask Muhammad Ali to mend his ways on this Muhammad Ali got annoyed as he thought he was insulted. On this account they killed Mst. Farzana."
' P.W. Abdul Rasheed has deposed as under: "One month prior to this occurrence Mst. Farzana came to our house and complained to complainant Hafiz Allah Bux that her husband was compelling her to arrange money and also obtained gold ornaments so that he may dispose them off and invest the entire money by starting a shop. My brother Allah Bux approached Muhammad Ali and advised him to mend his way and he also complained to Zulfiqar who showed his in difference and replied that it was a matter between spouses. My brother complained to Ghulam Shabbir who advised accused Muhammad Ali to behave properly. Mst. Farzana give us similar complaints many times and every time we approached Muhammad Ali to behave properly. On account of this Muhammad Ali and his brother killed Mst. Farzana."
24. Before discussing the merits of the appeal, we may observe that the Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance No,VII 1990) was promulgated on 5-9-1990 in the wake of the judgment of the Honourable Supreme Court in case of Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633). This Ordinance amended the provisions contained in Chapter XVI of the P.P.C., which relates to the offence affecting the human body, and provisions relating to Qisas and Diyat were enforced. Above Ordinance was made effective from 12th Rabi-ul-Awwal A.H. Which date fell on 2nd October, 1990. The incident of this case took place on 22-9-1990, before coming into force of the Ordinance. We do not, therefore, find any legal infirmity in the trial.
25. The ocular evidence consisting of P.Ws. Mst. Shamshad Begum and Abdul Rasheed appears to be quite natural and convincing. Their evidence cannot be disbelieved, on the sole ground that the deceased was the sister of both these prosecution witnesses. As stated above, both these P.Ws. Are related to the appellants in almost the same degree. Nobody else had the access to the bed room of the appellant except appellant Muhammad Ali himself and his deceased wife and, therefore, in such circumstances entire burden shifts upon the shoulders of appellant Muhammad Ali to prove his innocence. Defence has nowhere denied the factum of death of the deceased inside the bed room of appellant Muhammad Ali. From the case of prosecution as well as from the defence version the appellants have miserably failed to prove the above.
26. Delay in F.I.R. Has been satisfactorily explained. It is customary in rural life to inform the demard about the occurrence of incident of criminal nature. Before lodging a report with police. It was, therefore, an act of common conduct on the part of Hafiz Allah Bux to inform the nekmard Ghulam Shabbir before lodging the F.I.R. Non-examination of P.W. Ghulam Shabbir would not effect prosecution case adversely as he was neither an eye-witness nor a witness on any material point.
27. From what has been discussed above, we are of the considered view that the prosecution has successfully proved its case against the appellants. The appellants' counsel has not been able to show any misreading, non-appraisal and non-appreciation of evidence in the judgment as well as from the evidence on record.
28. So far the sentence is concerned, there seems to be strong motive against appellant Muhammad Ali for killing his wife and in the absence of any mitigating circumstances sentence of death awarded to him is maintained. Whereas in the case of Zulfiqar Ali, the motive disclosed in the case does not appear to us to be convincing as it relates to appellant Muhammad Ali alone. This in our opinion is a mitigating circumstance which favours him for taking a lenient view. Accordingly, while maintaining conviction, we reduce the sentence of appellant Zulfiqar Ali from death to imprisonment for life. The reference for confirmation of death in respect of appellant Muhammad Ali is confirmed, whereas in respect of appellant Zulfiqar Ali is declined. However, appellant Zulfiqar Ali is extended benefit of section 382-B, Cr.P.C. Towards the computation of his sentence. In view of above discussion, we do not find any force in Criminal Revision No,1 of 1993, as such the same is dismissed.
' With the above modification their appears stand dismissed.