1990 P Cr (PLP)

The appellant Ashiq Hussain alias Babu son of Mirza Khan aged 21 years and his mother Mst. Rabia Bibi wife of Mirza Khan aged about 45 years were tried by learned Sessions Judge, Gujranwala, on the charges under section 302 read with section 109 of the Pakistan Penal Code for having caused the murder of Mst. Irshad Bibi wife of Mirza Khan. Vide judgment dated 2nd of February, 19,88, the learned Sessions Judge found both the appellants guilty. The appellant Ashiq was convicted under section 302, P.P.C. and was sentenced to life imprisonment and to pay a fine of Rs.1,000 or in default to undergo R.I. for a term of one year. He was also directed to pay compensation amounting to Rs.1,000 to the legal heirs of the deceased or in default thereof, to undergo R.I. for six months. Appellant, Mst. Rabia Bibi was convicted under section 302 read with section 109, P.P.C. and was sentenced to undergo R.I. for a term of life imprisonment and to pay a fine of Rs.1,000 or in default to undergo R.I. for a term of one year. She was also directed to pay compensation amounting to Rs.1,000 under section 544-A, Cr.P.C. or in default to undergo six months' R.I. The sentences were ordered to run concurrently. The learned Sessions Judge also allowed benefit of section 382-B, Cr.P.C. to both the appellants. Aggrieved by their conviction, this criminal appeal has been filed which will be disposed of through this judgment.

2. The unfortunate occurrence resulting into the death of Mst. Irshad Bibi took place on the night between 25/20th of July, 1986 in the house of Sarja, complainant, P.W.5, in village Oilla Murad Bakhsh situated at a distance of 7 miles from Police Station Pindi Bhattian in Tehsil Hafiz Abad District Gujranwala. P.W.5 Sarja proceeded to lodge F.I.R. in the morning and at about 8-03 a.m. he came across Muhammad Idrees, Sub-Inspector, P.W.10, near the petrol pump on Jalalpur Pindi Bhattian Road. The Sub-Inspector recorded the statement of Sarja P.W.5 Exh.P.E. and the same was sent to the police station where the formal F.I.R. Exh.P.E./1 was drawn by Muhammad Azam, Moharrir Head Constable, P.W.9 at 8-15 a.m. In brief, the prosecution case as disclosed by Sarja P.W.5 complainant in his statement Exh.P.E, is that he was agriculturist by profession and his real brother Mirza Khan was serving in Pakistan Army and after his retirement, he had come back and was living in the village. Said Mirza Khan had married twice, the first wife was Rabia Bibi and out of the said wedlock, the appellant Ashiq Hussain and two daughters were born. Appellant Ashiq Hussain, son of Mirza Khan was shopkeeper and 3-1/2 years before the occurrence, Mirza Khan the brother of the complainant Sarja had married Mst. Irshad Bibi, a widow and she was also maternal-cousin of the complainant and Mirza Khan. Out of this wedlock, two daughters were born but one is alive. Before marriage, Mst. Irshad the first wife of Mirza Khan and hit son Ashiq Hussain appellant horn out of the womb of Rahia Bihi were extremely annoyed over the second marriage of Mirza Khan with Mst. Irshad Bibi deceased and according to the complainant, this was the bone of contention in their house. On 22nd of July, 1986, Mirza Khan brought Mst. Irshad Bibi from Bahawalpur to Qilla Murad Bakhsh which was resented to by the appellants Rabia Bibi and Ashiq Hussain. On 25th of July 1986, in the evening time, the complainant went to see his brother Mirza Khan, where he saw Rabia Bibi and Ashiq Hussain appellant abusing Mst. Irshad Bibi in the presence of Mirza Khan who was persuading both sides to pacify. According to the complainant, in his presence, Rabia Bibi remarked that she could not tolerate the presence of Mst. Irshad Bibi and asked his son, appellant Ashiq Hussain to kill, Mst. Irshad Bibi on account of this situation, the complainant brought Mst. Irshad Bibi to his own house where the deceased Mst. Irshad Bibi and other inmates slept in the courtyard of the house. At about mid-night, complainant and his wife after hearing some noise awoke and in the moonlight, they saw that Asniq Hussain, appellant, had entered the courtyard after scaling over the wall and in their sight he inflicted hatchet blow on the back side of the head of Mst. Irshad Bibi, and the second blow was inflicted on the chest of Mst. Irshad Bibi. Hue and cry was as raised, upon which, Dost Muhammad Lumberdar also came there and saw the occurrence. Complainant and the others tried to apprehend Ashiq Hussain appellant but while brandishing hatchet in his hand escaped from the scene of occurrence and also threatened that whosoever came near him, would meet the dire consequences and, thus on account of fear of death, they could not save Mst. Irshad Bibi deceased. The complainant further stated that Ashiq Hussain appellant had committed this murder at the instigation of his mother appellant Rabia Bibi who after this occurrence, disappeared from the house.

3. On 27th of July, 1986, P.W_1 Dr. Capt. Muhammad Arif, Medical Officer, conducted the post-mortem examination on the dead body of Mst. Irshad Bibi deceased and following injuries were noticed: (1) Incised wound 5 c.m. x 1/2 c.m. x skin deep on front chest right part, transversely placed lateral and just lateral to the upper limit of axilla, 3 c.m. below the clavical. (2) Transverse incised wound 9-1/2 c.m. x 2 c.m. x culling deep medial end of the left clavical and medial half of the right clavical, without any injury to the neck vessels and trachea in the supra sternal, notch 4 c.m. medial to the injury No.l. (3) Incised wound 12-1/2 c.m. x 3 c.m x bone cutting on the back of head right part extending behind the right car, 1-1/2 c.m. behind the right ear. The death in the opinion of the doctor had occurred due to injury No.3, which caused shock, the injury was sufficient to cause death in the ordinary course of nature. Injury No.3 was also declared grievous while injury No.1 was declared simple. All injuries were opined to have been caused with a sharp-edged weapon. (4)

4. On 30th of July, 1986, the appellant Ashiq Hussain was arrested by the investigating Officer Muhammad Idrees, S.I. P.W.10 and while in custody, the appellant led the police and got recovered blood-stained hatchet P.4 from his house which was taken into possession vide memo. Exh.P.D. attested by P.W.3 Khushi Muhammad and PWA Muhammad Mansha, F.C. besides the Investigating Officer. The blood-stained hatchet was sent to the Chemical Examiner and the Serologist and according to the report of the former, it was stained with blood while according to the report of the latter, it was stained with human blood.

5. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony of Sarja P.W.5, the real uncle of the appellant Ashiq Hussain and Mst. Nazeeran P.W.7 wife of Sarja. Another eye-witness namely Dost Muhammad named in the F.I.R. was also produced but he was declared hostile. In addition to the ocular testimony the prosecution also placed reliance upon the corroborative evidence in the form of recovery of blood-stained hatchet P.4 which was subsequently opined to contain the stains of human blood.

6. When examined under section 342, Cr.P.C. both the appellants denied the charge and stated that they had been implicated falsely due to enmity. It was further stated that Sarja P.W.5 was uncle of the appellant Ashiq Hussain and a dispute over the land belonging to the grandfather of Ashiq Hussain was pending in a Civil Court between Sarja and Ashiq Hussain. It was alto stated by the appellant Ashiq Hussain that his father Mirza Khan wanted to marry Mst. Bashiran sister of Mst. Naziran, the wife of Sarja, to which both the appellants and Mst. Irshad Bibi were opposed. No defence evidence was led.

7. With the assistance of the learned counsel for the appellants and the State, I have carefully gone through the record.

8. Learned counsel for the appellants at the very outset argued that the parties arc closely related to each other, inasmuch as, appellant Rabia Bibi and Ashiq Hussain are son and mother while complainant Sarja happens to be the uncle of Ashiq Hussain appellant and brother of Mirza Khan and Irshad Bibi deceased was the step-mother of appellant Ashiq Hussain. It was next contended that in course of trial, after the prosecution evidence had been recorded and before the announcement of judgment, both the eve-witnesses appeared in Court alongwith Mirza Khan and produced affidavits before the learned Sessions Judge which were placed on the record. In the aforesaid affidavits both the eye witnesses resiled from their statements and stated that Ashiq Hussain and Rabia Bibi were innocent. The learned Sessions Judge refused to take the affidavits into consideration and relied upon their previous statements made by both the eye witnesses and stated that this was an eye wash and an attempt to save the appellants from the rigours of law. The learned counsel thus argued that since the parties are closely related to each other and it is a pathetic case, therefore, parties have compromised and it should be taken into consideration for reducing the sentence of the appellants to one already undergone. The learned counsel for the appellants also placed reliance upon the unreported judgment delivered by the Bench of this Court in Abid Hussain v. The State Criminal Appeal No.413 of 1984. It was urged that facts of the case in Criminal Appeal No.413 of 1984 are similar in nature with the case in hand and in Criminal Appeal No.413 of 1984, the witnesses after having made their statements had resiled and this Court had held that such witnesses could not be believed to sustain the conviction on a capital charge. After anxious consideration of all the facts of the case, I am of the view, that facts in Criminal Appeal No.413 of 1984 are distinguishable to the case in hand. It was at a belated stage that these affidavits were brought on the record. The evidence of the eye-witnesses had been recorded and the statement of the appellant under section 342, Cr.P.C. had also been recorded and the case was A fixed for the arguments, then it seems, that the parties had compromised and the eye-witnesses were prevailed upon to resile from their previous statements, therefore, these affidavits were produced. In my view, the learned Sessions Judge rightly believed the eye-witnesses and discarded the affidavits because to do otherwise would amount to reduce the system of administration of justice into a farce or mockery, therefore, no weight can be attached to these affidavits, to consider the compromise, for reducing the sentence to one already undergone. As far as the compromise is concerned, this again is subject to the approval of the Court and to establish a compromise, the heirs of the deceased should come forward to state on solemn affirmation or oath that they had pardoned the culprits. In this case, none has come forward and affidavits are being relied upon to prove a compromise. In my view, this hardly amounts to a sufficient measure to satisfy the judicial conscience as to the fact of a compromise, therefore, the contention raised by the learned counsel for the, appellants is hereby repelled. Adverting to the merits of the case, the appellant Ashiq Hussain out of rancour towards the deceased, scaled over the wall of the house of Sajra P.W.5I and he had committed this dastardly act. Both Sarja P.W.5 the real uncle of the' appellant and Mst. Naziran P.W.7 were inmates of the house, where the occurrence had taken place, and, therefore, they are the natural witnesses and their testimony can hardly be disbelieved. I am not prepared to believe that a real uncle and his wife would come forward against the real nephew to involve him falsely on a capital charge. In this view of the matter, I am of the view that the prosecution has satisfactorily proved its case beyond any shadow of doubt, against appellant Ashiq Hussain. As far as the conviction of Mst. Rabia Bibi under sections 302 and 109, P.P.C. is concerned, the same cannot be sustained because the only evidence led to prove the abetment is the statement of Mirza Khan, P.W.8 and the uncorroborated testimony of Mirza Khan, P.W.8 cannot be taken into consideration to award sentence on a capital charge. In this view of the matter, I am of the view that the conviction of Mst. Rabia Bibi cannot be sustained. Accordingly, appeal to the extent of Mst. Rabia Bibi is allowed, her conviction and sentence under section 302/109, P.P.C. is set aside. She shall be released forthwith if not required in any other case. As far as appeal of Ashiq Hussain is concerned, it has no merit and the same is hereby dismissed, and his conviction and sentence is maintained. N.H.Q./A-973/L Appeal partly accepted.