1. ' Mst. Safia has challenged judgment dated 17-1-2001 passed by the learned Sessions Judge, T.T Singh, whereby she was convicted under section 302(b), P.P.C. For commission of murder of Hakeem Khan, her husband, and sentenced to imprisonment for life and a fine of Rs,50,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C.
2. Was, however, extended in her favour.
3. ' Briefly the facts of the prosecution case. Are that F.I.R. Exh.P.F was got registered by Tehweel Ahmad, P.W.5 with Seed Akhtar, Inspector P.W.10 on 24-5-2000 at 5-00 p.m. At the Police Station Rajhana with the allegation that he was residing in Chak No,269/GB along with his brother Hakeem Khan who was married with Mst. Safia (appellant daughter of, Chiragh Din resident of Chak No,717/GB, Police Station Peer Mahal. She was not of good character and used to quarrel with her husband for going out of house without the permission of her husband. During the night of occurrence, the complainant as usual slept on the roof of the house while his brother along with his wife Mst. Safia slept in the courtyard. At about 1-30 a.m. Ahmad Khan, P.W.6 who was sleeping on the roof of his own house adjacent to the house of the complainant and Chiragh P.W. Son of Nathay Khan was sleeping on his own roof, woke up after hearing the hue and cry of Hakeem Khan and witnessed in the courtyard where electric bulb was on and Mst. Safia appellant had a Churri and she inflicted two churri blows on the left side of abdomen of her husband. The complainant alongwith Ahmad Khan and Chiragh came down when Mst. Safia on seeing them fled away along with churri after opening the door. Hakeem Khan 'in injured condition was being taken to the hospital but he succumbed to the injuries on the way and was brought back in the house.
4. ' Muhammad Saeed. Aldnar, Inspector -P.W.10 `after registration of formal F.I.R. Exh.P.F arrived at the place of occurrence and took the dead body of Hakeem Khan. Into possession and prepared the injury statement Exh.P.B and inquest report Exh.P.C; and handed over the dead body to Muhammad Ishfaq, FC for post-mortem examination. He collected the blood-stained pieces of cotton from the place of occurrence through Exh.P.G which was attested by Ahmad Khan and Chiragh P. Ws. On the same day he took into, possession last worn clothes of the decease through memo. Exh.P.E. On 25- 5-2000 he arrested Mst. Safia, who while in police custody led to the recovery of blood-stained churri P.1 buried near the house of the deceased, which was taken into possession through memo.
5. Exh.P.K. On 26-5-2000, Mst. Safia appellant was medically examined through Lady Dr. Sajida Parveen. He completed the investigation and submitted the challan.
6. ' The trial Court framed the charge which was denied by the appellant and she claimed trial.
7. ' During the trial, the prosecution examine& as many as 10 witnesses to prove the guilt of the accused..
8. ' The medical evidence was furnished by Dr. Muhammad Mansha, P.W.1, who on 24-5-2000, at 12-30 p.m. Conducted the postmortem examination on the dead body of Hakeem Khan and found the following ' injuries on his person:-
(1) An incised wound (Stab) 3.3 x 1.2 c.m. On the left chest 4.4 d.m. Medially and inferior to the left nipple.
(2) An incised stab wound 3 X 1 c.m. On the upper Tart of abdomen 6,5 c.m. From injury No,
1. Both the injuries entered into respective cavities.
9. ' The cause of, death in this case was cardio pulmonary failure which was caused by injury to the heart which is individually sufficient to cause death in ordinary course, of nature. All the injuries were ante-mortem caused by sharp weapon. The probable duration between injuries and death was immediate while death and post-mortem was 10 hours.
10. ' Lady Dr. Sajida Parveen, P.W.7 on 26-5-2000 medically examined Mst. Safia Bibi and found the following injuries on her person:-
(1) A contusion 7 x 5 c.m. On the right side of her buttock.
11. ' Said injury was found under section 337-L(2), P.P.C. Which was caused within the duration of 24 to 36 hours.
12. ' The ocular account was furnished by Tehweel Ahmad P.W.5, who was complainant of the case. He stated that Mst. Parveen his real sister was married with Ijaz Ahmad, brother of 1VIst. Safia (appellant) in exchange of marriage of appellant with his brother Hakeem Khan (deceased).
13. Chiragh father of ' Mst. Satia was his maternal uncle relations. He supported the version of the F.I.R.
14. And narrated the motive for the occurrence. Ahrnad Khan P.W.6 supported the complainant claiming himself to be the eye-witnesses of the occurrence. He stated that he was sleeping on the roof of his own house and after hearing hue and cry he saw. The appellant inflicting churri blows on her husband. Muhammad Ashraf P.W.8 Draftsman had prepared the site, plan. Aftab Ahmad, A.S.I.
15. Had attested the recovery memo. Exh . P. K whereby the accused/appellant led to the recovery of blood-stained churri.
16. ' The, prosecution evidence was closed by tendering in eidetic report of Chemical Examiner Exh.P.M and that of Serologist Exh P. N.
17. ' The statement of 'the accused/ appellant was recorded under section 342, Cr.P.C., she denied the allegations and claimed innocence and false involvement. ' In reply to Question No,9 as to why the case against her and 'the P.Ws. Deposed against her, she replied as under:- "There was no reason to murder my husband. Tehweel Ahmad P.W. Had an evil eye upon me. He managed to murder my husband and falsely involved me this case."
18. ' The trial culminated into conviction of the appellant as mentioned above. Hence this appeal. The complainant has also filed `Criminal Revision No, 190 of: 2001 for enhancement of sentence of the appellant. Both the matters are being decided by this single judgment. Learned counsel for the appellant has argued that it was an unwitnessed night occurrence; that the conduct , of the complainant and the P.Ws. Was unnatural. Had the P.Ws. Witnessed the occurrence she could have been over-powered and apprehended by the P.Ws. At the spot; that there is contradiction in the medical evidence, and the ocular account i,e, according to Dr. Muhammad Mansha, P. W.1 who conducted the post-mortem examination the duration between injuries and the death was immediate while = the complainant Tehweel Ahmad P.W.5 and Ahmad Khan, P.W.6 stated that Hakeem Khan was being removed to hospital and he succumbed' to the injuries, in the way; that the motive alleged by the complainant has not been proved, therefore, the case against the appellant is doubtful and she be acquitted of the charge by extending benefit of doubt.
19. ' Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. Learned counsel for the complainant has argued that there was no reason for false implication of the appellant; it is a case of single accused and there was no mitigating circumstance for awarding lesser penalty, therefore, it has been prayed that the sentence of the appellant the enhanced to death.
20. ' I have considered the contentions_ raised at the bar and perused the record minutely.
21. ' It has been admitted by the complainant that the occurrence took place at about 1-30 a.m. During the night and he was sleeping on the roof of his house wherefrom on hearing hue and cry of Hakeem Khan he and P.Ws. Witnessed the occurrence. Ahmad Khan P.W.6 stated that he was sleeping on the roof of his own house which according to the complainant Tehweel Ahmad is not adjacent to his house and he woke up after herring the hue and cry. Both of them stated that they woke up after hearing the hue and cry of the deceased and they witnessed the occurrence and within their view the appellant caused both injuries to the deceased. If they had seen the appellant causing the injuries then there was no occasion for the deceased to raise hue and cry and there is no sign of resistance made by the deceased if he had woke up prior to receiving the injuries. The conduct of the eye-witnesses after occurrence is also unnatural and unbelievable. The appellant was young lady of age about 18/19 years. According to the prosecution story she was witnessed by three persons i.e Tehweel A Ahmad, complainant, Ahmad Khan P.W.6 and one Chiragh Din but they never tried to apprehend her at the spot or chased her. How she concealed the blood-stained churri near the house of the deceased, and thereafter she tied away. It has been admitted by the complainant that Chiragh Din father of the appellant was resident of Chak No,277/GB which is far of distance and it take about 11/2 hour by wagvi then how the appellant managed to reach the house of her father alone in the dark night. Neither the prosecution witnesses nor any other inhabitant of the village with whom it is alleged that they took the deceased in injured condition to the hospital tried to apprehend the accused. The Investigating Officer has also shown one cot in the site plan where the deceased was sleeping and presence of the appellant in the house of the deceased during the fateful night has not been shown/mentioned. The accused/appellant was also medically examined by. Dr. Sajkla Parveen P.W.7 who found injury on back having received within duration of 24/36 hours which has not been explained by the prosecution and the plea taken by the accused/appellant that the complainant has bad eye on her and she was also given beating by him on making a complaint to the deceased, cannot be brushed aside. The motive as alleged by the complainant has not been proved. He failed to name any person with whom the accused had illicit relations. The previous quarrel of the deceased with the accused has also not been established as the complainant himself admits that he was not witness of any such quarrel between the deceased and the appellant. The recovery of weapon of offence is highly doubtful.
22. How the accused had a chance to dig out a place and burry the weapon of offence just outside the house of the deceased and no independent witness was associated in recovery proceedings which is clear violative of section 103, Cr.P.C. Ahmad Khan P.W.6 and Tehweel Ahmad complainant P.W.5 are admittedly closely related inter se and to the deceased. No independent witness was examined from the village or associated during the investigation by the Investigation Officer. So much so, the owner of the car with whom it was alleged that the P.Ws. We're taking the deceased in injured condition was also not examined. All facts mentioned above make the case of the prosecution highly doubtful and I am convinced that it was an witnessed night occurrence and the prosecution case against the appellant is doubtful, therefore, benefit of doubt is extended in favour of the appellant and her appeal is allowed. Her conviction and sentence is set aside. She is ordered to be released forthwith if not required to be detained in any other case.
23. ' Criminal Revision filed by the complainant is dismissed.