' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Criminal Appeal No,29-J of 1999 and also Murder Reference No,49 of 1999, both arising out of judgment dated 23-12-1998, passed by the learned Additional Sessions Judge, Lahore, whereby he had convicted the accused/appellant on the charge under section 302/34, P.P.C. And had sentenced him to death under section 302(b), P.P.C. And also to payment of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. The learned trial Court also convicted the accused/appellant under section 337-A, P.P.C. For causing injuries to Zareena Bibi (P.W.3) and had sentenced him to pay Rs,5,000 as Daman and also to suffer one year's R.I. As Ta'zir. It was directed that the amount of Daman, if realized, shall be paid to Mst. Zareena Bibi complainant.
2. The case against the accused/appellant is based on F.I.R. Exh.P.B.1, which was registered on the basis of statement of Mst. Zareena Bibi Exh.P.B. And wherein she had stated that her husband Sheikh Intizar Hussain and son Aftab carried on the business of pearls and that in connection with their business they were away to Quetta. About a month and eight days ago there had taken place the marriage of Aftab, the son of the complainant and wherein Arshad alias Bhola accused who is the son of the maternal aunt (Khala) of her husband had also been invited (to attend the marriage ceremony). During this ceremony of marriage, six gold bangles of Mst. Farah, the wife of Aftab, were stolen and it was suspected that Arshad alias Bhola had stolen those gold bangles because he is a boy of bad character.. However at that time he had said that he had not committed the theft, but he nursed grudge in order to take revenge.
3. On the day of occurrence, in the evening, Shah Nawaz and Haji Muzaffar P.Ws. Came to the house of complainant as guests. In the meanwhile, Arshad alias Bhola accused/appellant came to the house of the complainant and told her that there is a Peer who gives a medicine and anyone who takes the said medicine is informed by the said Peer in his dream as to who had committed the theft. Mst. Mehmood Begum, the mother-in-law of the complainant asked Arshad alias Bhola to provide the said medicine to her also, so that they can have the knowledge about their stolen bangles. Arshad alias Bhola went out and a little later returned with five Purries (packets) of medicine and mixed the same in water and made them all to take the same. Shah Nawaz and Haji Muzaffar P.Ws. Had been watching T.V. That night till 9-00 p.m. And thereafter they went downstairs for sleeping. Arshad alias Bhola had been watching T.V. Till 11-00 p.m. She i,e, the complainant asked him to leave but he refused to do so. She got infuriated and asked him as to why he would not go. She herself went upstairs where Mst. Shaheen and her other daughter were present. Arshad alias Bhola accused followed her, drew out a Chhuri which was hanging towards right side of his trousers and gave blows with the same to the complainant, causing injuries on her neck towards front side, on her left cheek and on both of her hands. Mst. Shaheen, the daughter of the complainant aged 13/14 years moved forward to rescue her, whereupon Arshad accused gave a Chhuri blow to her hitting on her right hand. The second blow given by him hit Mst. Shaheen towards the left side of her neck below the ear and she fell down on the ground and succumbed to the injuries. On hearing the alarm raised by the complainant Shah Nawaz and Haji Muzaffar P.Ws.
Reached there and witnessed the occurrence. On seeing them, the accused Arshad Mehmood alias Bhola fled away, while waving his Chhuri. In the meanwhile Mst. Shahzadi and Abid P.Ws.
Reached there and took the complainant to the Mayo Hospital, Lahore, and got her admitted there.
In the F.I.R. It was stated by the complainant that the accused had injured her and had also committed Qatl-i-Amd of Mst. Shaheen (the daughter of the complainant).
4. The statement Exh.P.B. Of the complainant was recorded by P.W.10 Bashir Ahmad, S.-I. And on the basis of which formal F.I.R. Was registered. On the conclusion of investigation, the challan was submitted against the accused and the case was sent up for trial to the Court of Sessions.
5. The accused was formally charged by the learned Additional Sessions Judge, Lahore, on 22-11- 1994 under section 324, P.P.C. As well as under section 302, P.P.C. And to which he pleaded not guilty and the prosecution was thus asked to produce its evidence.
6. In this case the prosecution has examined as many as 14 P.Ws. Of them P.W.10 Bashir Ahmad, S.-I., on 25-8-1993, after receiving information about the occurrence had proceeded to Mayo Hospital, Lahore, where he submitted the application Exh.P.H. For recording the statement of Mst. Zareena Bibi on which the Medical Officer declared her fit for recording her statement and he had thus recorded her statement Exh.P.B. And which was sent by him to the Police Station for the registration of case. Then he i,e, P.W.10 proceeded to the place of occurrence, inspected the spot, prepared inspection notes, collected the blood-stained earth from the place of occurrence, took into possession the blood-stained bed sheets, pillow, Shalwar and shirt, prepared rough site-plan of the place of occurrence, prepared injury statement and inquest report and sent the dead body to the mortuary for the post-mortem examination. He got medically examined Mst. Zareena, complainant. He then raided the house of the accused to arrest him but did not succeed. He obtained his warrants of arrest from the Magistrate and initiated proceeding under sections 87 and 88, Cr.P.C. Against him. Thereafter he was transferred and the investigation of the case was entrusted to Imdad Ali, A.S.-I.
7. P.W.11 is Imdad Ali, A.S.-I., who had partly investigated this case. He deposed that Arshad alias Bhola was a proclaimed offender in this case and that an information was received from the Police Station City Quetta that Arshad alias Bhola accused had been arrested there. After obtaining permission from the Home Secretary, Government of Punjab, he went to Quetta on 21-6-1994 for the arrest of Arshad alias Bhola accused. He deposed that Aman Ullah, S.-I. Of Police Station City Quetta had already arrested the accused in this case and had sent him to the Judicial Lock-up at Quetta. After obtaining permission from Balochistan Government, he arrested the accused and produced him in the Court and obtained his physical remand. He brought the accused to Lahore on 27-6-1994 and produced him in the Court on 29-61994. On 2-7-1994, Arshad alias Bhola accused while in custody led to the recovery of Chhuri (P.11) which was hidden near a drain. He described the Churri (P.11) as blood-stained and rusted (Zangalood). He handed over the parcel of Chhuri to Moharrir for safe custody and for onward transmission to the Chemical Examiner. He sent the accused to Judicial Lock-up and (after completion of investigation) got him challaned.
8. The statement of Muhammad Saeed, Record-Keeper of Forensic Medicine Department, King Edward Medical College, was recorded on 23-7-1998. He deposed that Doctor Masood Ahmad Siddique was posted as Medical Officer in King Edward Medical College, Lahore, in August, 1993 and he had worked with him. He stated that he had remained posted in the said college for about three years and was well acquainted with his handwriting and signatures. He identified his handwriting and signatures on Exh.P.L., which is the copy of post-mortem report. He identified his signatures on Exh.P.J., Exh.P.K. And Exh.P.L./1 as well. He deposed that Doctor Masood Ahmad Siddique had gone to Saudi Arabia on Ex-Pakistan Leave and there was no possibility of his arrival in Pakistan in the near future.
9. P.W.9 is Dr. Nadeem Afzal Ashrafi, who on 25-8-1993 had received a patient namely Zareena Bibi, wife of Intizar. He deposed that the following injuries were found on the body of the patient:--
(1) Incised wound measuring 4 c.m. x deep going muscle deep on front of the neck.
(2) Incised wound on left side of cheek 2 c.m. To below left eye, muscle deep bleeding profusely.
(3) Contusion 2 c.m. x 1 c.m. 9th occipital region.
10. Injuries Nos.1 and 2 were declared as Shajjah-i-Khafifah. According to him the duration of injuries was approximately one hour.
11. In this case the eye-witness account of the occurrence is furnished by P.W.3 Mst. Zareena Bibi complainant and P.W.4 Shah Nawaz, both of whom deposed on the same lines as narrated in the F.I.R.
12. P.W.5 Mukhtar Ahmad is a recovery witness. He deposed about the recovery of blood-stained bed sheets, pillow, a Shalwar and a shirt and which were taken into possession by the Investigating Officer vide memo. Exh.P.D. Which was also attested by him. He further deposed that on 2-7-1994 the accused who was in police custody made a disclosure and then led to the recovery of Chhuri (P.11) in his presence which was taken into possession by the Investigating Officer vide memo.
Exh.P.E.
13. P.W.7 Aftab Sajid is also a witness of recovery of Chhuri (P.11), which was effected on the pointation of the accused. It may be mentioned here that P.W.7 is a real brother of the deceased and who stated that 4/5 days before the occurrence he had gone to Quetta and his father was also with him. On 15-10-1998 the Prosecutor gave up the remaining P.Ws. He tendered in evidence reports of Chemical Examiner as Exh.P.M. And Exh.P.O. And reports of Serologist as Exh.P.N. And Exh.P.P. And closed the case for the prosecution.
14. The statement of the accused/appellant was recorded under section 342, Cr.P.C. And wherein he denied all the incriminating circumstances. He stated that he will produce evidence in defence but he did not make statement on Oath under section 340(2), Cr.P.C.
15. In his defence the accused appellant examined D.W.1 Muhammad Saleem and D.W.2 Aziz-ur- Rehman. D.W.1 stated that on 25-8-1993, about 7-00 a.m., he had received an information on telephone about the present occurrence. He was informed that a dacoity was committed in the house of Intizar and in the course of which his daughter was also murdereu. On receiving the said information, he alongwith Shah Nawaz son of Ghulam Rasool left for Lahore alongwith other women and came to the place of occurrence at Shandra. He stated that Intizar was away to Bannu and he was informed on telephone and thereafter he i,e, Intizar Hussain came back at 9-00 p.m. And Mst.
Shaheen deceased was buried in the night. He stated-that Shah Nawaz as well as Intizar Hussain are his Bhanjas (sister's sons). He added that Arshad Mehmood accused is also his Bhanja. He further stated that the character of the accused was good. During cross-examination he stated that he did not make any statement before the police (during the investigation). He added that he was not called by the police. During cross-examination he stated that he did not know whether six gold bangles belonging to Farah, the wife of Aftab, had been stolen during the marriage ceremony.
He stated that he was told about the same by Intizar Hussain later on.
16. D.W.2 Aziz-ur-Rehman stated that on the night of occurrence he was sleeping in his house when he heard that a dacoity was committed in the house of Intizar Hussain. He rushed towards his house where there was a rush of women and he remained standing in the main gate. He heard that the daughter of Intizar Hussain had been murdered. In the meanwhile his wife also reached there. Then he went back to his house and around 2-00 a.m. In the night, his wife also came back.
On the next day, around 10/11-00 a.m., he traced Intizar Hussain from Bannu. His nephew Atta Ullah Khan informed Intizar Hussain through a goldsmith at Bannu that a dacoity had been committed in his house.
17. On the conclusion of trial, the learned Additional Sessions Judge, Lahore, convicted and sentenced the accused/appellant as aforesaid. Aggrieved of the judgment of the learned trial Court dated 23-12-1998, Arshad Mehmood accused has filed an appeal (Criminal Appeal No,29-J of 1999). The learned trial Court has also sent a reference (Murder Reference No,49 of 1999). Both these matters are being disposed of through this judgment.
18. The learned counsel for the appellant has argued that the prosecution story on which this case is based is highly improbable and that Haji Muzaffar P.W. (not examined) was in fact not present at the time of occurrence. He has argued that the alleged arrival of Haji Muzaffar and Shah Nawaz P.Ws. In the house of the complainant when her husband and son were away casts aspersion on her character. He has asserted that in fact P.W.3 Mst. Zareena Bibi was carrying on with Shah Nawaz P.W.4, and at the time of occurrence Mst. Zareena Bibi P.W.3 was seen in a compromising position with Shah Nawaz P.W. By the deceased girl and oh which the deceased had raised alarm and whereupon Shah Nawaz had given her blows with the Chhuri and which proved fatal. He has argued that Shah Nawaz had remained involved in a Hudood case. He has further argued that the injuries on the person of Mst. Zareena Bibi were described as Shajjah-i-Khafifah and the nature of those injuries was not such from which it' could be assumed that the accused wanted to kill her. He has argued that the existence of motive against the accused could not be established during the trial and it was also improbable that the complainant could ever know that the accused was nursing grudge against her and her family. He has argued that had it been so, the mother-in-law of the complainant would not have asked the accused to bring medicine from the Peer. He has argued that the accused was a close relative of the family of victim as he was the son of the sister- in-law of the complainant and it could not be expected that he would go to the extent of killing an innocent girl and that too in the presence of other inmates of the house and all of whom could identify him easily. He has argued that according to the prosecution story,' there were only two incised wounds on the person of P.W.3 Ivlst. Zareena Bibi while the third one was a contusion and which clearly indicated that the accused had never intended to kill her, even if it be assumed for a moment that it was he who had caused those injuries. He has argued that the recovery of Chhuri (P.11) on the pointation of the accused/appellant was fake and that in fact it had been planted on him to strengthen the prosecution story. He has argued that it was improbable that the Chhuri (P.11) could remain blood-stained for such a long time. He has argued that the prosecution was unable to produce any independent witness in this case and the ocular account is discrepant and the testimony of P.W.3 and P.W.4 is contradictory and is not supported by the medical evidence; that the proceedings under section 87, Cr.P.C. Were not taken in accordance with law and that parcels were sent to the office of Chemical Examiner and Serologist after inordinate delay and hence the prosecution has miserably failed to establish the charge against the accused/appellant beyond reasonable doubt and hence the conviction recorded by the learned trial Court as well as the sentence awarded to the accused/appellant is liable to be set aside.
19. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that there is sufficient eye-witness account available on record in the form of testimony of P.W.3 and P.W.4 and that there also exists on record the evidence concerning the existence of motive as the complainant and her family suspected that the accused had stolen the gold bangles during the marriage ceremony of their son as he was a man of suspicious character and the accused nursed grudge on that account. He has argued that the evidence regarding the recovery of Chhuri (P.11) coupled with the medical evidence available in this case fully corroborates the ocular account and the commission of offence under section 302, P.P.C. Was clearly proved against the accused and thus he had been rightly convicted and sentenced by the learned trial Court. He has supported the conviction of the accused for the offence under section 337-A(i), P.P.C. For causing injuries to Mst. Zareena Bibi, the complainant, at the time of occurrence.
He has argued that the judgment of the learned trial Court is fully supported by the evidence on record and hence should be upheld.
20. We have carefully considered the arguments advanced from both sides and have also gone through the record. In this case the learned counsel for the appellant has argued that in fact P.W.3 Mst. Zareena Bibi complainant was seen in objectionable condition with Shah Nawaz P.W.4, by Mst.
Shaheen (deceased) and the deceased had started crying and on account of the said reason Shah Nawaz P.W. Had killed her by giving her Chhuri blows but it is to be noted that during the cross-examination of P.W.3 Mst. Zareena Bibi, it was suggested to her by the learned defence counsel that Arshad accused and her daughter namely Aamira had fallen in love with each other and wanted to get married and she had taken ill about the said affair and hence they were not on good terms with Arshad accused. It was also suggested to her in the course of cross-examination that on the fateful night, her daughter Aamira had a program with the accused to leave her house and to get married with him and therefore she had taken key from underneath the pillow of her bed and had gone downstairs and when she i,e, P.W.3 came to know about this fact, she alongwith Mst. Shaheen deceased followed her while running and before Aamira could open the main gate they reached there. It was also suggested to her in the course of cross-examination that they started beating Arshad accused with Dandas and Sotas and also had bitten him on his shoulder. It was suggested to her that apprehending his death at their hands, Arshad accused had picked up a kitchen knife and while they were grappling with each other, the knife blows got inflicted and resultantly Mst. Shaheen expired. It was also suggested to P.W.3 that her mother-in-law Mehmooda and her daughter Samina had also joined hands in the attempt to kill Arshad accused. Now it is not understandable as to which of the three defence versions was correct; (1) the version according to which Mst. Zareena Bibi was seen in objectionable condition by the deceased; (2) the version that Mst. Aamira, the other daughter of the complainant was trying to elope with the accused; (3) the third defence version has come on record in the form of statement of D.W.2 who has stated that on the night of occurrence he had heard a noise and he had accordingly rushed towards the house of Intizar, after hearing that a dacoity had been committed in the house of Intizar Hussain. He also stated that he had traced Intizar Hussain, father of the deceased from Bannu and his nephew Atta Ullah Khan had told him that a dacoity had been committed in his house. All these defence versions are clearly inconsistent with each other. P.W.3 is mother of the deceased and also an injured P.W. It is not believable that she will make a false statement to help the actual culprit. The presence of P.W.4 in 'the house of the complainant in the absence of her husband cannot be described as improbable. It is one of the defence versions that Shah Nawaz P.W. Was present in the house of the complainant on the fateful night as he was carrying on with Mst. Zareena Bibi. It is correct that the prosecution has to prove its own case rather than taking advantage of weaknesses of defence but it is not also open to the defence to take contradictory pleas during the trial. P.W.9 Doctor Nadeem Afzal Ashrafi had medically examined Mst. Zareena P.W. And had found two incised wounds on her neck and cheek and a contusion on occipital region of her body. The injuries on her person indicate that she was present at the time of occurrence. The ocular account is clearly corroborated by the medical evidence. According to the post-mortem report Exh.P.L. Mst.
Shaheen deceased had received three injuries and that injury No,1 was on her neck whereas injuries Nos.2 and 3 were on her hands. Injury No,1 was described as sufficient to cause death in the ordinary course of nature. According to the post-mortem report, the injuries on the person of Mst.
Shaheen deceased were ante-mortem and had been caused by a sharp edged weapon. The fact that the accused/appellant had absconded after the occurrence also goes to prove that he was actually involved in this case, otherwise there had been no need for him to abscond. The statement of P.W.10 Bashir Ahmad, S.-I. And P.W.11 Imdad Ali, A.S.-I., proved the absconsion of the accused.
P.W.2 to whom were entrusted the warrants of arrest and proclamation had proved that the proclamation had been duly executed/published. P.W.11 Imdad Ali, A.S.-I., had brought the accused from Quetta to Lahore after he had been arrested there: P.W.5 Mukhtar Ahmad and P.W.7 Aftab Sajid are the recovery witnesses in whose presence the accused had led to the recovery of Chhuri (P.11) on 2-7-1994. It is very interesting to note that the defence counsel also gave the suggestion to P.W.3 that the deceased had died as a result of injuries which she had received at the hands of the accused. As such, even if the recovery of Chhuri be disbelieved, even then there is sufficient evidence on record to establish that it was the accused who had caused injuries to Mst. Shaheen deceased and which had led to her death. Admittedly the accused was a close relative of the husband of the complainant and therefore the eye-witnesse3 could not be in any doubt about his identity. The accused in his statement under section 342, Cr.P.C. Has taken the plea that he was involved in this case on account of enmity with the P.Ws. However he has not produced any evidence to establish his enmity with the P.Ws. The defence version that the murder of the deceased had taken place during the occurrence of a dacoity in the house of the complainant is clearly an afterthought. No such suggestion appears to have been put to the P.Ws. Nor the accused had taken any such plea in his statement under section 342, Cr.P.C. As such the statements of D.W.1 and D.W.2 are not consistent with the defence plea. None of the D.Ws. Has deposed that Mst.
Zareena Bibi the complainant was a woman of easy virtue or she was carrying on with Shah Nawaz P.W. The plea of self defence as was put to P.W.3 in the course of cross-examination in the form of suggestion was not taken by the accused in his statement under section 342, Cr.P.C.
21. The ocular account in this case as furnished by P.W.3 and P.W.4 is fully corroborated by the medical evidence and is further corroborated by the recovery of Chhuri (P.11) on the pointation of the accused. Although the prosecution was not able to prove the existence of motive and although it has not established beyond reasonable doubt as to what had actually happened before the occurrence, which had led to the Qatl-iAmd of, the deceased, yet it has succeeded in establishing beyond reasonable doubt that it was Arshad Mehmood alias Bhola accused who had caused injuries to the deceased as well as to Mst. Zareena Bibi P.W.3 and the injuries caused by him to Mst.
Shaheen deceased had resulted in her death. As such the conviction of the accused/appellant under section 302(b), P.P.C. For causing Qatl-i-Amd of the deceased and also under section 337- A(i), P.P.C. For causing injuries to Mst. Zareena Bibi complainant/P.W. Was clearly supported by the evidence on record and as such is upheld. But so far as the quantum of punishment for the offence under section 302(b), P.P.C. Is concerned as the prosecution was unable to establish as to what had actually happened immediately before the occurrence, lesser sentence could be awarded, in the interest of safe administration of justice. As such, while upholding the conviction of the accused/appellant for the offence under section 302(b), P.P.C., we are inclined to award him lesser punishment.
22. In view of above, we uphold the conviction . Of the accused/appellant for the offence under section 302(b), P.P.C. As well as under section 337-A(i), P.P.C. Recorded by the learned trial Court.
However the sentence of death awarded to the accused/appellant under section 302(b), P.P.C. Is converted to imprisonment for life. He will also pay an amount of Rs,50,000, as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default in payment of compensation, he will have to undergo further S.I. For six months. Both these sentences of imprisonment awarded to him in this case under section 302(b), P.P.C. And 337-A(i), P.P.C. Shall run concurrently. The accused shall also be given the benefit of section 382-B, Cr.P.C. With this modification, the appeal (Criminal Appeal No,29-J of 1999) is dismissed.
23. The sentence of death awarded to Arshad Mehmood alias Bhola accused/appellant by the learned trial Court is not confirmed.
24. Murder Reference (No,49 of 1999) is answered in the Negative.