2009 PLP 478 (YLR)

ZAFAR IQBAL CHAUDHRY, J.--Through this appeal the appellant has challenged the impugned judgment dated 12-11-2002 passed by the learned Sessions Judge Attock whereby he convicted the appellant under section 308, P.P.C. and sentenced him to ten years' R.I. with a fine of Rs.50,000 or in default thereof to further undergo R.I. for one year. He was also directed to pay Diyat at the rate prevalent at the time of Commission of the offence to the legal heirs of the deceased Mst. Taslima Jan. The benefit under section 382-B, Cr.P.C. was also extended to him.

2. Succinctly the facts of the prosecution's case are that Mst. Rabia Bibi mother of the deceased got lodged F.I.R. No.282 dated 18-9-2002 under section 302, P.P.C. at Police Station Attock Khurd alleging therein that during the night of occurrence her husband Muhammad Khan as usual went to cattle-shed for sleeping. She along with her two sons Khizar Hayat, Mashkoor Hayat and other family members slept in the courtyard of the Haveli whereas her son-in-law Sardar Khan slept in the residential room along with his wife Mst. Taslima Jan and children. It was about 4-30 a.m. when a noise of fire came from inside the residential room upon which she along with her sons Khizar Hayat and Mashkoor Hayat went towards that side while running. Sardar Khan armed with pistol came out of the room and said that do not come near to him and then he fled away. She went inside the room and saw her daughter Mst. Taslima Jan lying on a cot smeared with blood and she was found dead. She raised hue and cry on which people of the locality attracted at the spot.

3. The motive behind the occurrence was alleged that father of Sardar Khan accused/appellant had died when he was minor and Ms mother contracted second marriage. The appellant was the real paternal nephew of her husband. They brought up him and also gave him the hand of their daughter Mst. Taslima Jan, who had a son aged eight years and a daughter aged three years. About one year ago, the appellant divorced Mst. Taslima Jan for the purpose of contracting second marriage upon which she filed a suit for maintenance against the appellant which- was decreed against him. Later on, compromise was effected between them due to intervention of a Jirga and the appellant used to live in the said Haveli along with his wife and children but still he was trying to contract second marriage and for this reason, he committed Qatl-i-Amd of her daughter Mst. Taslima Jan.

4. After the registration of the case Raja Abdur Razzaq S.H.O. (P.W.10) proceeded to the spot with police officials, Rabia Bibi and mashkoor Hayat where he inspected the dead body of Mst. Taslima Jan, prepared injury statement Exh.PH and inquest report Exh.PI of the deceased and sent the same for postmortem examination through Muhammad Boota Constable. He inspected the spot and prepared rough site-plan Exh. PJ. He also took blood from the spot with cotton and sealed into parcel and secured the same vide memo. Exh. PG. He also took into possession an empty of .30 bore pistol P.14, sealed the same in a parcel and attested both the memos. He recorded the statements of the P.Ws. and searched the accused. Muhammad Boota Constable produced last worn clothes of the deceased i.e. shirt P.8, Shalwar P.9, Dupata P.10, Chaddar P.11, Tulia P.12 and a cot P.13, all blood-stained and he took the above-said articles into possession vide memo Exh.PO, duly attested by Muhammad Boota Constable. On 24-9-2002 Mashkoor Hayat P.W. produced copy of judgment, Exh.P.15 and divorce deed P.16 and he took both these documents in possession vide memo. Exh.PK, duly attested by Mashkoor Hayat. He arrested the appellant on 25-9-2002. On 27-9-2002 the appellant made a disclosure and got recovered pistol .30 bore P.17 from the wall of stones situated near Dakhnair Ziarat `Ghanghori Mai'. On unloading the pistol, he recovered four live rounds P.18/1-4 and four rounds P.19/1-4 from an envelope. He took all the above-said articles into possession vide memo. Exh.PL after sealing the pistol into parcel. Sardar Khan and Ghulam Khan P.Ws. attested the same. He prepared rough site-plan of place of recovery Exh.PL/1. On 22-9-2002 he summoned the Draftsman Muhammad Hanif, who took notes on his asking and on the pointation of the place of occurrence. On 26-9-2002 he produced site-plan Exh.PB, PB./1 and PB/2. He recorded the statements of P.Ws. on different dates and handed over the sealed parcel of the pistol to the Moharrar along with other case property. On 25-9-2002 he searched the appellant and- recovered a purse P.1, ID card P.2, an amount of Rs.80 P-7, wrist watch P.3, a comb P.4, a mirror P.5 and a finger ring P.6, and took the same into possession vide memo. Exh.PC, duly attested by Zubair Hayat Constable and Maqbool A.S-I.

5. After the close of investigation the challan was submitted in the Court, the copies of documents as required under section 265-C, Cr.P.C. were supplied to the appellant, charge was framed against him to which he pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove its case produced as many as 10 witnesses. Thereafter the appellant was examined under section 342, Cr.P.C. who denied the allegation levelled by the prosecution and professed his innocence. To a question that "why this case is against you and why the P.Ws. have deposed against you", the appellant made the following reply:-- "Though I sent a notice of Talaq to my wife but later on compromise has been effected and I was residing with my wife happily. After notice of Talaq my mother-in-law wanted to dispossess me from the Haveli which fell to my share for being inherited to me from my grand-father. Thereafter the complainant along with his children who were residing in another Haveli which were inherited by my father-in-law/uncle and on finding the occasion I was involved in this case falsely due to above-said greed and grudge. That is why my father-in-law/father of the deceased and husband of the complainant is not supporting the prosecution case who is satisfied with my version that some unknown person had murdered my wife and I was away at Lahore at the time of occurrence and returned from Lahore on being informed on telephone about the death of my wife and reached at the time of funeral." The appellant produced Muhammad Aslam as D.W. 1 in his defence, but he did not opt to make statement on oath under section 340 (2), Cr.P.C.

7. The learned trial Court on conclusion of the trial and after hearing the learned counsel for the parties had convicted and sentenced the appellant as detailed in Para 1 ante through the impugned judgment. Hence this appeal.

8. Learned counsel for the appellant submits that the prosecution has failed to prove the case against the appellant; that the learned trial Court while misreading the evidence has illegally convicted him for the charge of murder of Mst. Taslima Jan his wife; that in the F.I.R. it was alleged that the appellant had been apprehended at the spot and locked in a room of the house while the crime pistol remained lying on the cot of the deceased but in the evidence led by Rabia Bibi P.W.8 and Khizar Hayat P.W.9 it was no where mentioned that the appellant had been apprehended at the spot and also handed over to the Investigating Officer when he reached at the spot whereas according to the statement of Raja Abdur Razzaq Inspector/S.H.O/Investigating Officer P.W.10 after reaching at the spot and taking into possession blood-stained earth, pistol and other articles he had searched for the appellant and arrested him on 25-9-2002 i.e. seven days after the occurrence which clearly shows that the prosecution version introduced in the F.I.R. and the evidence produced before the trial Court was highly doubtful and it was not safe to base the conviction of the appellant on such like evidence. According to the learned counsel for the appellant the prosecution evidence was highly doubtful and keeping in view this fact the statement of the appellant should have been accepted in toto and he is liable to be acquitted.

9. Learned Addl: Prosecutor-General on the other hand opposes this appeal and submits that Mst. Rabia Bibi P.W.8 and Khizar Hayat P.W.9 who are closely related inter se and to the appellant as well had no motive to falsely involve him in this case and on account of the minor discrepancies only pointed out by the learned defence counsel their evidence cannot be disbelieved and brushed aside. According to him the report of the Forensic Science Laboratory regarding the pistol which was recovered from the possession of the appellant was positive and this is sufficient corroborative piece of evidence to connect him with, the alleged offence; that in the absence of any enmity and on the basis of strong evidence produced by the prosecution which is consistent on all aspects the appellant is not liable for any concession because he had committed the murder of his own wife in a brutal manner without any reason. The motive was also proved in this case.

10. I have heard the learned counsel for the parties at length and also perused the evidence as well as the impugned judgment.

11. Admittedly it was a blind murder and as per evidence led by P.Ws.8 and 9 they had readied the spot on hearing the sound of fire, when the appellant was seen coming out, who admitted about hitting of fire by him to the deceased and then he was locked in the room. The said version of P.Ws. 8 and 9 is not supported by any other piece of evidence. Even the Investigating Officer who appeared as P.W.10 stated that after formal spot inspection and taking into possession empty and other articles, he had searched for the appellant and arrested him on 25-9-2002 i.e. seven days after the occurrence. This is clearly a contradiction between the statements of the eyewitnesses and the Investigating Officer. Even otherwise no question regarding apprehension of the appellant at the spot was put to the appellant in his statement under section 342, Cr.P.C. It is strange that if the appellant had been apprehended at the spot, why he was not handed over to the Investigating Officer immediately on the first visit of the spot. From this fact the entire evidence regarding the apprehension of the appellant by the eyewitnesses and his participation in the occurrence has become doubtful. It is also found that the P.Ws. were inimical towards the appellant due to his attitude and their evidence required strong corroboration by some independent piece of evidence which is lacking in this case. Hence the evidence of P.Ws. 8 and 9 is not found sufficient to connect the appellant with the alleged crime beyond any shadow of doubt.

12. So far as recovery of pistol is concerned, I have observed that according to the statements of Mst. Rabia Bibi P.W.8 and Khizar P.W.9 pistol allegedly used for the murder of Mst. Taslima Jan was found lying on the cot of the deceased but according to the investigation it was recovered from the appellant on 27-9-2002 on his pointation. As such it is proved that the recovery of weapon had been planted upon the appellant and in such like circumstances if there was any positive report from the Forensic Science Laboratory in favour of the prosecution that cannot be used as a corroborative piece of evidence.

13. For the foregoing reasons I am satisfied that the evidence led by the prosecution is not free from doubt and while relying the same the conviction and sentence, of the appellant cannot be maintained. It is settled principle of law that even the benefit of slightest doubt has to go to the accused. Hence, this appeal is accepted, impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from jail forthwith if he is not required in any other criminal case. N.H.Q./S-137/L Appeal accepte