2017 PLP 358 (YLRN)

MUHAMMAD TARIQ ABBASI, J.

This judgment shall decide the above captioned matters as all are outcome of single judgment dated 25.04.2011, passed by the learned Additional Sessions Judge Jaranwala, District Faisalabad, whereby in case FIR No.384 dated 07.06.2010, registered under sections 302/201/34, P.P.C., at Police Station Saddar Jaranwala District Faisalabad, Mst.Irshad Bano and Mst.Razia Bibi (hereinafter referred to as the appellants) have been convicted and sentenced as under:-- Irshad Bano appellant Under section 302(b), P.P.C. to death with compensation of Rs.7,00,000/- payable to the legal heirs of the deceased, otherwise to serve S.I. for six months. Razia Bibi appellant Under section 302(b), P.P.C. imprisonment for life and compensation of Rs.7,00,000/- payable to the legal heirs of the deceased, otherwise to serve S.I. for six months. A fine of Rs.1,00,000/- against each of the appellants was also imposed and in case of non-payment, R.I. for six months each was prescribed. It was directed that Mst.Irshad Bano appellant shall be entitled to the benefit as provided under Section 382-B Cr.P.C. Whereas Taj Muhammad and Mst.Shama Bibi (co-accused) were acquitted of the charge.

2. The precise facts as per Fard Biyan (Ex.PA) made by Iqbal Hussain (PW-1), which resulted into registration of the FIR (Ex.PA/1) were that on 07.06.2010 at about 02:00 p.m., when he (PW-1) along with Ghulam Rasool (PW-2) and Abid Hussain (given up PW), attended the house of his sister Mst. Kaneez Fatima (hereinafter referred to as the deceased), they saw that the deceased was caught hold of by Taj Muhammad (co-accused since acquitted) and Mst.Razia Bibi (appellant), whereas Mst.Irshad Bano (appellant) with her hands was pressing throat and mouth of the deceased and consequently she died then and there. The alleged motive was that Taj Muhammad (co-accused since acquitted) had contracted second marriage with the deceased and his first wife namely Mst. Irshad Bano (appellant) was annoyed and used to quarrel with the deceased.

3. The case was investigated when the appellants and their above named co-accused were found to be involved, hence challaned to the Court. Formal charge against them was framed on 17.09.2010, which was denied and trial was claimed, hence the prosecution witnesses were summoned and recorded. As many as 09 witnesses had made statements before the learned trial Court. Gist of the evidence led by the important witnesses was as under:- i) PW-1 Iqbal Hussain, was the complainant and an eye-witness of the occurrence, who supported the stance taken by him in the complaint (Ex.PA). ii) PW-2 Ghulam Rasool, another eye-witness had also supported the version of the complainant (PW-1), in all its four corners. iii) PW-6 Lady doctor Kanwal Naeem, had conducted post mortem examination of the dead body of the deceased on 07.06.2010 and prepared the report (Ex.PC), when the death due to asphyxia was found. iv) PW-9 Abdul Hameed, S.I., was the Investigating Officer, who carried on the proceedings and prepared the documents fully detailed in his statement.

4. On completion of the prosecution evidence, the appellants were examined under section 342 Cr.P.C., during which the questions arising out of the prosecution evidence, were put to them and they denied almost all such questions, while pleading their innocence and false involvement, in the case with mala fide. The question "why this case against you and why the PWs have deposed against you?" was replied by Mst. Irshad Bano appellant in the following words:-- "Kaneez Fatima deceased and my husband contracted love marriage as they were working together in Arzoo Textile Mills Ltd. The complainant and his family were not happy with this marriage, they were not on visiting terms with us, and they used to admonish and abuse Kaneez Fatima deceased. Kaneez Fatima deceased was very much disappointed with her brother and her family members. My husband used to look-after Kaneez Fatima and used to arrange treatment for her in the private Hospital. He had provided separate houses to both of wife and had provided them all the facilities of life. Kaneez Fatima and I had never disputed with each other during matrimonial life and we use to live in love and affection. From womb of Kaneez Fatima, God blessed my husband a son and he took care of Kaneez Fatima after delivery of child. Shama Bibi also looked-after Kaneez Fatima in the Hospital and took care of her. Kaneez Fatima was disappointed due to the behavior of her family members, thus she committed suicide by throating herself by neck. The family of Kaneez Fatima never looked after during her delivery and due to love marriage of Taj with Kaneez Fatima, the family of Kaneez Fatima nourished grudge and enmity against us and complainant has falsely roped me in the FIR. Complainant party has produced perjured evidence. Investigating Officer, Malik Abdul Hameed S.I., belonged to the village of the complainant and he was on friendly terms with the complainant and in connivance with the complainant, he has conducted the investigation. The occurrence took place at 08:00 a.m., and my husband immediately informed about the death of Kaneez Fatima to her family. At the time of occurrence none of the accused challan against were present there and we be awarded acquittals." The said question was answered by Mst.Razia Bibi appellant as under:- "Kaneez Fatima deceased and Taj contracted love marriage as they were working together in Arzoo Textile Mills Ltd. The complainant and his family were not happy with this marriage, they were not on visiting terms with Taj, and they used to admonish and abuse Kaneez Fatima deceased. Kaneez Fatima deceased was very much disappointed with her brother and her family members. Taj used to look-after Kaneez Fatima and used to arrange treatment for her in the private Hospital. He had provided separate houses to both of his wife and had provided them all the facilities of life. Kaneez Fatima and I had never disputed with each other during matrimonial life and we use to live in love and affection. From womb, of Kaneez Fatima, God blessed Taj a son and I took care of Kaneez Fatima after delivery of child. Shama Bibi also looked-after Kaneez Fatima in the Hospital and took care of her. Kaneez Fatima was disappointed due to the behavior of her family members, thus she committed suicide by throating herself by neck. The family of Kaneez Fatima never looked after her during her delivery and due to love marriage of Taj with Kaneez Fatima, the family of Kaneez Fatima nourished grudge and enmity against my sister and my brother-in-law and complainant has falsely roped me in the FIR being sister of Irshad Bano. Complainant party has produced perjured evidence. Investigating Officer, Malik Abdul Hameed S.I., belonged to the village of the complainant and he was on friendly terms with the complainant and in connivance with the complainant, he has conducted the investigation. The occurrence took place at 08:00 a.m., and my brother in law immediately informed about the death of Kaneez Fatima to her family. At the time of occurrence none of the accused challan against were present there and we be awarded acquittals." The appellants at that time refused to lead evidence in their defence but opted to make statements under section 340(2) Cr.P.C. Thereafter through statement dated 24.03.2011, statements under Section 340(2) Cr.P.C. were also refused. Finally the impugned judgment in the above mentioned term was passed. Consequently, the matters in hand.

5. The learned counsel for the appellants has argued that the appellants were falsely involved in the case, with mala fide; the statements of the prosecution witnesses were full of material contradictions, hence not believable; neither the complainant nor any other witness was available at the spot and they made false statements against the appellants; the charge against the appellants was not proved and established, hence they were entitled to acquittal and as such the impugned judgment towards their conviction and sentence is not acceptable under the law.

6. The learned District Public Prosecutor has vehemently opposed the appeal while supporting the impugned judgment to be well reasoned and call of the day.

7. We have heard the arguments of both the sides and have also perused the record.

8. In the complaint (Ex.PA) Iqbal Hussain complainant (PW-1) contended that when he along with Ghulam Rasool (PW-2) and Abid Hussain (given up PW) attended the spot, they saw that Taj Muhammad (co-accused since acquitted) and Mst.Razia Bibi (appellant) had caught hold of his sister Mst.Kaneez Fatima (deceased), whereas Mst.Irshad Bano (appellant) had pressed her neck and mouth, which resulted into her death. In this way, case of Taj Muhammad (co-accused since acquitted) and Mst. Razia Bibi (appellant) was the same that both had allegedly caught hold of the deceased. When Taj Muhammad, the husband of the deceased had been acquitted of the charge then Mst. Razia Bibi also deserved the same concession. The main role was attributed to Mst. Irshad Bano (appellant), who was sister of Mst.Razia Bibi (appellant), hence possibility could not be ruled out that Mst. Razia Bibi was roped in the case due to her above mentioned relationship with the main accused. In this way, the prosecution case and the charge against Mst. Razia Bibi (appellant) became doubtful. In such like situation, Mst. Razia Bibi (appellant) deserves due benefit as of right. In this regard reference may be made to the cases of "Muhammad Khan and another v. The State" (1999 SCMR 1220) and Muhammad Akram v. The State (2009 SCMR 230). The august Supreme Court of Pakistan, in the case Muhammad Khan (Supra), held as under:- "It is an axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been molded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective".

9. As about the case of Mst.Irshad Bano (appellant), it is stated that it has been established on the record that she by pressing neck and mouth of Mst.Kaneez Fatima, done her to death. During post mortem examination, death of Mst.Kaneez Fatima was found to be result of asphyxia. In this way, the stance of the prosecution that Mst.Irshad Bano (appellant) had done Mst. Kaneez Fatima to death by pressing her neck and mouth was found to be correct. The above named (PW-1) and (PW-2) have categorically deposed that it was Mst. Irshad Bano (appellant), who committed murder of Mst. Kaneez Fatima, in the above mentioned manner. The motive described by the PWs was that the deceased was second wife of Taj Muhammad (co-accused since acquitted) and Mst.Irshad Bano (appellant) was annoyed for the said marriage. The said motive could not be contradicted and as such seems plausible.

10. Although Iqbal Hussain complainant (PW-1) and Ghulam Rasool (PW-2) are closely related inter-se as well as the deceased but their no previous enmity or grudge, against Mst.Irshad Bano (appellant) could be established on the record, therefore their testimony, which otherwise is confidence inspiring could not be thrown to winds. In this regard reliance may be.placed to the case of "Haji v. The State" (2010 SCMR 650), wherein the Hon'ble Supreme Court of Pakistan has held as under:-- "Both the ocular witnesses undoubtedly are inter se related and to the deceased, but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence, which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."

11. For what has been discussed above, we have come to the conclusion that the prosecution case and the charge against Mst. Irshad Bano (appellant) has successfully been proved and established hence the findings of the learned trial Court for conviction of the above named appellant being result of correct appreciation and evaluation of the material available on the record are not open to any exception.

12. As about the quantum of sentence, which would be justified for Mst.Irshad Bano (appellant), it is stated that she is a lady and as such deserves leniency and concession in her sentence.

13. Resultantly the conviction of Mst. Irshad Bano appellant, awarded by the learned trial Court is maintained but her sentence is altered from death to imprisonment for life. The amount of compensation and imprisonment in its default, prescribed by the learned trial Court and awarded to Mst.Irshad Bano (appellant) is maintained and upheld. As offence under section 302(b), P.P.C. does not provide any fine, therefore the findings of the learned trial Court towards imposition of a fine of Rs.1,00,000/- against Mst.Irshad Bano (appellant) is unjustified, hence set-aside.

14. With the above mentioned modification in sentence, the Criminal Appeal No.190-J of 2011 to the extent of Mst.Irshad Bano is dismissed.

15. Due to the reasons mentioned above, the appeal to the extent of Mst.Razia Bibi is allowed, the impugned judgment to her extent is set aside and she is acquitted of the charge, while extending her the benefit of doubt. She, by way of suspension of her sentence is at large, hence her sureties are discharged.

16. In consequence of the above mentioned discussion, Criminal Appeal No.911 of 2011 whereby acquittal of Taj Muhammad and Mst.Shama Bibi has been challenged as well as Criminal Revision No.189 of 2015 whereby enhancement of compensation has been alleged, having no force or merit are dismissed.

17. Consequently Murder Reference No.224 of 2011 is answered in Negative and death sentence of Mst. Irashad Bano is not confirmed. HBT/I-35/L Order accordingly.