1995 P Cr (PLP)

MUHAMMAD NAWAZ ABBASI, .J.

Muhammad Arshad appellant alongwith his father Sultan Ahmad and mother Mst. Fatima Bibi was tried under section 302/34, P.P.C. for the charge of committing the murder of Mst. Zahida Bibi deceased wife of Arshad and daughter of Muhammad Hussain, the first informant by the learned Additional Sessions Judge, Gujrat who vide his judgment,, dated 11-2-1991 finding Muhammad Arshad appellant guilty of the charge, convicted him under section 302, F.P.C. and, sentenced him to death with a fine of Rs.20,000 or in default of payment of fine to undergo R.I. for two years. The fine; if realised, was directed to be paid to the parents of the deceased. Sultan Ahmad and Mst. Fatima co-accused of the appellant were acquitted of the charge. Muhammad Arshad appellant through the captioned appeal has challenged his conviction and sentence.

2. Precisely the prosecution case as contained in the complaint Exh.P.B. recorded by Arshad Hussain, Inspector/S.H.O. on the statement 'of Muhammad Hussain, father of Mst. Zahida Bibi deceased on 25-12-1989 at 2-30 p.m. is as under:-- "About two years earlier the complainant got married his two daughters namely Irshad Bibi with Muhammad Akram and Mst. Zahida Bibi with Muhammad Arshad. Irshad Bibi gave birth to two j children but Mst. Zahida remained issueless for which reason she being-disliked by Arshad accused, her husband and his parents, was used to be given beatings and intended to be-divorced. Although the complainant succeeded in reconciliation between the spouses yet Muhammad Arshad accused and his parents namely Sultan Ahmad and Mst. Fatima continued maltreatment to Mst. Zahida Bibi deceased. On the fateful day at about 9 a.m. the complainant went to the house of accused in village Majra to bring Mst. Zahida, his daughter to his house in village Narowali. As soon as he entered into the courtyard he said Mst. Zahida, being caught hold of by Sultan Ahmad, her father-in-law and Mst. Fatima mother-in-law by -her arms whereas Muhammad Arshad accused was pulling her by putting a string around her neck. Mst: Irshad Bibi, another daughter of the complainant who was living in the same house alongwith his husband Muhammad Akram was beseeching the accused to spare the deceased but they s` did not listen to her. During that process of strangulation with string Mst. Zahida died. On hue and cry of the complainant and Mst. Irshad Bibi; a number of persons gathered at the spot but no one was willing to accompany the complainant to the police station with the dead body to lodge a report. Later, on the arrival of Mian Khan, Muhammad. Hussain and Abdul Khaliq, the residents of Village Narowali on receiving information about the occurrence, the complainant with their help took the dead body to the police station, and when reached at 2 p.m. near Rajbaha in the area of Village Majra, Arshad Hussain Shah, Inspector/the then S.H.O. met them who on the statement of complainant drafted the complaint Exh.P.B. and sent the same for registration of case to the' police station. The S.H.O. after despatching the complaint for registration of case prepared the injuries statement Exh.P.P. and inquest report Exh.P.D. of Mst. Zahida deceased and despatched the dead body to the mortuary for post-mortem examination through Mahmood Ahmad, Constable P.W.5 and himself proceeded to the place of occurrence in Village Majra. During the spot inspection he prepared site plan Exh.P.H. He-took into possession last-worn clothes of the deceased produced before him by Mahmood Ahmad, Constable P.W.5. vide memo. EXh.P.C..and got the site plan Exhs.P.D. and P.D./1 prepared with marginal notes. Muhammad Arshad accused after his arrest on 15-1-1990 led to the recovery of string P.1 from his residential house which was taken into possession vide memo. Exh.P.A. He after recording the statements of the P.Ws. and completing the formal investigation submitted the challan against the appellant and his co-accused under section 302/34, P.P.C.

3. Dr. Allah Rakha Dar P.W.7 conducted the post-mortem examination on the dead body of Zahida deceased on 20-12-1989 and found the following injuries on her person:-- (1) There was continuous well-defined and depressed ligature mark below the thyroid cartilage all around the neck. Its width was 0.5 c.m. There was double ligature mark with depression of left side of front of neck, 2 c.m. from the midline and 0.5 c.m. in length and 0.5 c.m. in width. There was excoriation of skin at the base of the ligature mark. (2) There was extravasation of blood in the sub-cutaneous tissues as well as adjacent muscles of neck corresponding to the ligature mark. Tracheal rings, corresponding to the ligature mark, were depressed. The doctor was of the opinion that death was due to manual strangulation with ligature (asphyxia). The marks of ligature were ante-mortem and the process of manual strangulation with ligature was sufficient to cause death in the ordinary course of nature.

4. The prosecution in addition to Dr. Allah Rakha P.W.7 who proved the medical evidence examined Muhammad Hussain P.W.3 father of Zahida Bibi deceased and Mst. Irshad Bibi wife of Muhammad Akram, real brother of Muhammad Arshad appellant as eye-witnesses of the occurrence. Mahmood Ahmad Constable P.W.5 escorted the dead body of Mst. Zahida Bibi deceased to Aziz Bhatti Shaheed Hospital, Gujrat and on 25-12-1989 to the Police Station Kunjah at a distance of five kilometres from the place where the dead body was handed over to him. Akhtar Naqqash P.W.6 prepared the site plan Exhs.P.D. and P.D./1 on the direction of police and pointation of P.Ws. Khalid Mahmood, Head Constable P.W.8 on receiving the complaint Exh.P.B. drafted the formal F.I.R. Exh.P.B./1 at 2-40 p.m. 25-12-1989. Arshad Hussain, Inspector/S.H.O. P.W.9 drafted the complaint Exh.P.B. on the basis of r statement made by Muhammad Hussain complainant at 2-30 p.m. when he was on patrol duty on the basis of which a case was registered against the accused vide F.I.R. Exh.P.B./1. He without loss of time conducted the investigation of the case and after completion of the same submitted the challan.

5. The accused in their statements under section 3-12, Cr.P.C. denied the prosecution allegations and pleaded false implication in the case. Muhammad Arshad appellant to a question why this case against him and why the P.Ws. had deposed against him answered to the following effect:-- "The deceased was of a bad character for which I had complained to her parents and as she did not desist, she was deserted by me. She met her death in her own house under the circumstances best known to the complainant party, they have falsely involved us for the offence due to enmity." He, however, neither appeared himself in the witness-box nor produced any other person in his defence.

6. The learned trial Court placing reliance on the evidence of Irshad Bibi P.W.4 an inmate of the house coupled with the evidence of motive and recovery, believing the prosecution story, found Arshad appellant guilty and convicted and sentenced him as described above.

7. Learned counsel for the appellant has contended that in view of the facts of the case and the circumstances under which the occurrence is stated to have taken place, the prosecution failed to prove it a case under section 302, P.P.C. To substantiate his arguments he submitted that the dead body having not been recovered from the house of the appellant, the possibility of death of Mst. Zahida through violence in the house of complainant cannot be ruled out. According to him the behaviour of the residents of Village Majra as stated being unimaginable, hence the story of causing death of Mst. Zahida Bibi through strangulation by the appellant in his house in the circumstance is not plausible, and appealable to mind. He vehemently contended that the distance of the place called as Rajbaha where the complaint is stated to have been recorded by Arshad Hussain, Inspector/S.H.O. P.W.9 was at a short distance from the police station, hence in the circumstances it is difficult to positively ascertain that the place of occurrence was Ike house of appellant. He seriously questioned the presence of Irshad Bibi in the house at the relevant time with the contention that he having strained relations with her husband was putting herself in the house of her father (complainant). He argued that with the exclusion of .her presence at the spot, there is no evidence direct car circumstantial to connect the appellant with the commission of offence. He lastly argued that in case the conviction under section 302, P.P.C. is maintained, the quantum of sentence is the peculiar features of the case needs consideration on the ground that it is not known what promoted the appellant immediately before the occurrence to commit the crime. According to him the disliking of the lady by the appellant for not giving birth to a child was a continuing cause and it could not be an immediate cause to take this extreme step. He submitted that the possibility of happening something serious between the spouses leading to this fateful incident cannot be ruled out. Hence it is not a case of capital punishment.

8. Learned counsel appearing on behalf of the State argued that Mst. Irshad Bibi being a natural witness to the occurrence having no animus against the appellant narrated the prosecution story 'in its natural sequence and her deposition being confidence inspiring without looking for any other corroboration is sufficient to prove the charge. He, however, has not been able to meet the reasons advanced by the learned counsel for the appellants for lesser penalty.

9. The question whether actually the incident of causing injuries to the deceased through manual strangulation as stated by Mst. Irshad Bibi and also opined by the doctor, took place in the house of the appellant in the manner as disclosed by the prosecution in the complaint lodged by Muhammad Hussain or she, as per defence version being a woman of bad character met the death in the house of the complainant. Mst, Irshad Bibi being wife of real brother of the appellant although must be interested in rehabilitation of her sister but she could not have any animus against the appellant or his parents taking the risk of disturbance of her own family life. She admittedly was enjoying a peaceful matrimonial life in the same house as wife of Muhammad Akram, therefore, before this fateful occurrence there was no question of her being inimical or hostile to her brother-in-law and in-laws. Hence she being a most natural and reliable witness, her statement even without looking for any other source of corroboration sufficiently proves the charge against the appellant. The defence has not brought any evidence on record to the effect that Mst. Irshad Bibi was leading a deserted life in the house of her parents, hence her presence at the spot at the relevant time cannot be doubted. As per deposition of Mst. Irshad Bibi, the only eye-witness in this case, she on hearing the alarm came out of her room in the courtyard and saw the deceased in the clutches of Sultan Ahmad and Mst. Fatima the co-accused of the appellant while Arshad appellant was pulling her by putting a string around her neck. The accused despite her entreating to spare her sister did not pay any heed and after fulfilling his job fled away from the spot. Her presence at the spot and this statement made by her remained unchallenged. Her statement does not indicate the immediate cause of quarrel of the appellant with the deceased. According to her statement the occurrence took place at 9 a.m. whereas she sent the message to her father at about 10 a.m. which fact proved that the complainant reached at the spot later and his statement as eye-witness has rightly been excluded from the consideration by the learned trial Court. The examination of the evidence of Irshad Bibi proved her presence and narration of the correct version of the prosecution and also the manner in which the occurrence took place. There is nothing on record to suggest that either she was not present at the house at the relevant time or she made false statement. The examination of medical evidence further reveals that death was the result of manual strangulation and that the size and nature of injury excluded the possibility of death as a result of hanging. The medical evidence fully corroborating the evidence of Mst. Irshad Bibi proved the allegation of causing death through manual strangulation. It is understandable that the relations of the deceased must not have been cordial with her husband and in -laws for their desire of child being not fulfilled. It is common in our society that an issueless woman is not given proper respect and status in the family. This was the major factor and cause of strained relations that the appellant and his parents were against the deceased but what actual prompted the appellant and his parents on the day of occurrence to go to the extent of taken the life of the deceased is not known. Therefore, the motive so far as disliking of the lady by her husband and in-laws is concerned is proved and furnished necessary B corroboration to the statement of Mst. Irshad Bibi disclosing the basic cause for trouble. The contention that the dead body was taken into custody by the S.H.O. at a reasonable distance from the house of the appellant and that no person from the village offered any help to the complainant in taking the dead body to the police station for the purpose of lodging the report created a reasonable doubt regarding the correctness of the prosecution story is unfounded. The deceased if was putting herself in the house of her father at the relevant time, it was not possible for the complainant while living in the village to stage a Drama against the appellant after killing her daughter in his house. The mere fact that the dead body was removed by the complainant from the spot is not a circumstance to draw an inference that the occurrence had not taken place 'in the house of the appellant. The defence has not produced a single witness from the village in rebuttal to the prosecution version regarding the taking place of the occurrence in the house of the appellant on the fateful day despite the fact that a number of persons gathered at the spot after the occurrence. The defence also did not produce even Muhammad Akram, real brother of the appellant to dislodge the claim of Mst. Irshad Bibi that she was living with her husband in the same house during the days of occurrence. This state of affairs removes all doubts regarding the false implication of the appellant in the case. The statement of Mst. Irshad Bibi and the medical evidence - referred to above coupled with the motive and attending circumstances, the prosecution having proved the charge against the appellant beyond doubt, the conviction of the appellant under section 302, P.P.C. being unexceptionable is not liable to be interfered with. The appellant being a young man having not fulfilled the desire of child from the wedlock developed-hatred against the poor lady who had no control in the matter to give birth to a child was made victim of the circumstances and done to death. Undoubtedly the appellant did not use any weapon and caused her death through strangulation but he acted in a cruel manner by causing death through strangulation. The injury caused to the deceased was declared sufficient to cause death in the ordinary course of nature. However, the possibility that the appellant having been encouraged by his father and mother convinced to get rid of Mst. Zahida who was no more p useful to him keeping in view the evidence of Mst. Irshad Bibi and the circumstances under which the occurrence took place, it is to be believed that the appellant because of hatred and influence of his parents took the life of his wife. We, for the foregoing reasons, while maintaining the conviction of the appellant under section 302, P.P.C. alter the sentence of the appellant from death to life imprisonment, dismiss this appeal. The death sentence is not confirmed. N.H.Q./M-1948/1, Death sentence reduced.