2002 PLP 593 (YLR)

The medical evidence was furnished by Dr. Muhammad Mansha, P. W.1, who on 24-5-2000 at 12-30 p.m. conducted the post mortem 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 c.m. medially and inferior to the left nipple. (2) An incised stab wound 3 x 1 c.m. on the upper part of abdomen 6,5 c.m. from injury No.1. Both the injuries entered into respective cavities. 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. 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. Said injury was found under section 337-L(2), P.P.C. which was caused within the duration of 24 to 36 hours. 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 Mst. Safia (appellant) in exchange of marriage of appellant with his brother Hakeem Khan (deceased). Chiragh father of Mst. Safia was his maternal uncle relations. He supported the version of the F.I.R. and narrated the motive for the occurrence. Ahmad 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. had attested the recovery memo. Exh.P.K whereby the accused/appellant led to the recovery of blood-stained churri. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.M and that of Serologist Exh.P.N. 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 in this case." 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. 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 be enhanced to death. I have considered the contentions raised at the bar, and perused the record minutely. 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 hering 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 Le Tehweel 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 fled 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 1 hour by wagon 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. Sajida Parveen P.W.7 who found injury on back having received within duration of 24/36-hours which has not been cxplained 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. 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. were 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 unwitnessed night occurrence and the prosecution case against the appellant is doubtful, therefore, benefit o doubt is extended in favour of the appellan 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 arty other case. Criminal Revision filed by the complainant is dismissed. N.H.Q./S-413/L Appeal accepted.