2007 PLP 744 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.159 of 2001 filed by Abid Hussain appellant. He was convicted and sentenced by learned Additional Sessions Judge, Gujjar Khan vide judgment dated 24-3-2001 as under: Death and to pay a compensation of rupees 50,000 in default six months' S.I. under section 302(b), P.P.C. for committing the Qatl-e-Amd of Mst. Fouzia Begum. Murder Reference No.354 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.

2. Occurrence in this case had taken place at 8-15 a.m. on 7-5-1999 within the revenue estate of Bhair Ratial which is at a distance of one kilometer from Police Station Jatli while the matter was reported to the police by Abdul Hameed at the police station on the same day and formal F.I.R. Exh.PE was recorded by S.H.O. at 9-15 a.m.

3. Breifly stated the facts of the case as disclosed in the F.I.R. Exh.PE are that on the fateful day at about 8-15 a.m. Abdul Hameed (Complainant) who is a school teacher was present along with Fazal Din and Mst. Muzaffara Begum in the house to inquire about the health of their father when they heard the shrieks and rushed towards the house of Fazal Din. There they found the eastern room bolted from inside and from the bolted room, Mst. Fouzia was crying for help. The complainant and his accomplices allegedly broke opened the door and witnessed that Abid Hussain had cut the throat of Mst. Fouzia with a Churri. The witnesses tried to apprehend Abid but he decamped from the spot. The motive given in the F.I.R. was that Abid Hussain was married with Fouzia Begum but this marriage was not liked by parent's of Abid Hussain as such Abid started living in the house of his in-laws and for that reason Abid was not going to the house of his parents. According to complainant, 2/3 days prior to the occurrence, Abid Hussain asked Mst. Fouzia to go to Jhangi Phairoo along with his sister Tallat Bibi but Fouzia refused and on the day of occurrence Abid had again asked Fouzia to go to Jhangi Phairoo but on the refusal of Fouzia, Abid murdered her. Inspector Amjad Mehmood (P.W.13) took over the investigation. He after registration of the formal F.I.R. he went to the place of occurrence, took into possession the dead body of Mst. Fouzia deceased, prepared injury statement Exh. PI, inquest report Exh.PJ and sent the dead body to hospital for post-mortem examination. From the spot, the Investigator took into possession the blood-stained earth vide memo. Exh.PA, prepared the site-plan without scale Exh.PB and also got prepared the site-plan with scale from the draftsman Exh.PB/1 and thereafter he was transferred to police lies. Muhammad Bashir S.I. (P.W.9) also partially investigated the case and he arrested the accused Abid Hussain who while in custody got recovered Churri P.3 which was taken into possession vide memo. Exh.PD. After completion of all the formal investigation, the accused was sent to face the trial. At the trial prosecution in order to prove its case produced 13 witnesses in all. Mst. Muzaffara Begum and Fazal Din and Abdul Hameed P.Ws. furnished the eye-witnesses account. Lady doctor Safia Jabeen P.W.12 conducted post-mortem examination on dead body of the deceased. After closing prosecution evidence, the learned DDA tendered in evidence reports of the Chemical Examiner (Exh.PK and Exh.PM) reports of the Serologist (Exh.PL and Exh.PN) and closed the case of prosecution. The accused in his statement under section 342, Cr.P.C. pleaded false implication. On conclusion of the trial, the accused was convicted and sentenced as stated above. Learned counsel for the appellant submits that two eye-witnesses namely Mst. Muzaffara Begum and Fazal Din are closely related to the deceased in as much as Mst. Muzafara Begum is mother while Fazal Din is father of the deceased respectively. According to learned counsel, Fazal Din, P.W. father of the deceased Fouzia being a milk-seller, he should have been at the place of his business and not to be present in the house and similarly, Abdul Hameed P.W. being a school teacher, had to be present in the school and not at the house though he tried to explain before the trial Court that he had sent an application for casual leave for one day but no such document was ever produced before the trial Court. In this background, it is argued that presence of Fazal Din and Abdul Hameed P.Ws. at the place of occurrence at the relevant time was doubtful. Further submits that it has come on record that Mst. Fouzia, the deceased was earlier married with one person of Rawalpindi but the Rukhsati had not taken place and this fact was concealed by Fazal Din P.W., father of the deceased but was admitted by Mst. Muzaffara Begum, P.W., mother of the deceased. Learned counsel next submits that defence of the appellant before the trial Court was that there were illicit relations between Abdul Hameed P.W. and the deceased and said Abdul Hameed used to visit the house of Mst. Fouzia. At this stage, learned counsel submits that on the day of occurrence, in fact, both Mst. Fouzia and Abdul Hameed were found in compromising position in a room and the appellant on seeing them under grave and sudden provocation committed the murder of deceased. To substantiate his submission, learned counsel submits that site-plan has been prepared of the house of Abdul Hameed P.W. when in fact the occurrence had taken place in the house of Fazal Din. With regard to recovery of the Churri, learned counsel submits that according to case of the prosecution, it was got recovered 2-1/2 months after the occurrence underneath the pillow, as such how it could be still satined with blood and as such the reports of the Chemical Examiner and Serologist could not have been positive. Concluding his submissions, learned counsel submits that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal. Learned A.A.-G. submits that it is a case of promptly lodged F.I.R., it being a case of single accused, the question of substitution does not arise; ocular account is fully corroborated by medical evidence and that the occurrence having taken place in the house of Fazal Din and Muzaffara Begum both father and mother of the deceased respectively, they were the most natural and independent witnesses. He fully supports the judgment of the trial Court. We have heard learned counsel for the parties at length and have gone through the evidence on record with their able assistance. The case of the prosecution as set up in the F.I.R. was that at 8-15 a.m. on 7-5-1999, Abdul Hameed, complainant, who is a school-teacher, was present along with Fazal Din and Mst. Muzaffara Begum in his house to inquire about the health of his father when they heard the shrieks from the house of Fazal Din and when rushed to the house of Fazal Din, the door of eastern room was bolted from inside and Mst. Fouzia was crying for help. It was also the case of prosecution that when the door of the room was broken, Abid Hussain, (present appellant) had cut the throat of Mst. Fouzia and managed his escape along with Chhurri. The most crucial and decisive point in this case is the venue of occurrence. According to facts as narrated in the F.I.R., Mst. Fouzia was murdered in a bolted room of the house of Fazal Din but at this stage, we may reproduce here the specific points as mentioned in the site-plan -Exh.PB/1. From a bare perusal of the above urdu version of the specific points in Exh.PB/1, it is clear that the deceased was murdered in the house of Abdul Hameed, P.W., complainant and the blood-stained earth was also taken from that place. We have also tried to find out the site-plan prepared by the Investigating Officer without scale but the same was neither exhibited nor is available on judicial file though the Investigating Officer has mentioned about preparation of the same while appearing before the trial Court. Abdul Hameed P.W. being a school teacher at the relevant time ought to have been present in the school and not at home. The defence of the appellant was that the complainant Abdul Hameed P.W. had illicit relations with Met. Fouzia and he seeing the deceased and Abdul Hameed P.W., complainant in compromising position committed the murder of Fouzia his wife and suggestions to this effect were put to the P.Ws. before the trial Court. The dead body of the deceased having been found in the bolted room of house of Abdul Hameed, complainant as is evident from a perusal of the site-plan Exh.PB/1 at page 92 of the paper book and Abdul Hameed being a school teacher his presence at 8-15 a.m. on the day of occurrence in the home speaks of something else and lends support to the defence set up by the appellant though he did not take such a defence in his statement under section 342, Cr.P.C. In the case of Syed Ali Bepari (PLD 1962 SC 502), their lordships of the Honourable Supreme Court ruled that in case where the parties do not come out with the true story and in such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances. Similarly in the case of Muhammad Nawaz and another v. The State (PLD 2005 SC 40) their lordships of the apex Court observed that it is known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of whether, he has .taken any such plea or not. From the over all facts and circumstances of the case and drawing inferences therefrom on the authority of above quoted enunciation of law we are of the considered view that Fazal Din P.W. father of the deceased was not present at the spot at the time. of occurrence, he was away on his business place as he was a milk-seller by profession, it was Abdul Hameed, complainant, who at the relevant time was committing sexual intercourse with deceased Fouzia in his house and the appellant on seeing her (his wife) under grave and .sudden provocation murdered Mst. Fouzia. As a result of above, we convert the conviction of the appellant from section 302(b), P.P.C. to section 302(c). He is behind the bars since 18-7-1999 so the sentence, which he has already suffered, is treated to be sufficient to meet the ends of justice. The sentence of compensation is set aside in view of the law laid down in Mairaj Begum v. Ejaz Anwar and others (PLD 1982 SC 294) as the deceased was mainly -responsible for this tragedy. The appeal filed by the convict appellant is disposed of in the above terms. The death sentence is not confirmed and murder reference is answered in the negative. H. B.T./A-260/L Order accordingly.