2026 PLP 737 (SCMR)

MALIK SHAHZAD AHMAD KHAN, J.

Fazal Muhammad and Mst. Yasmeen (petitioners) were tried by the learned Additional Sessions Judge/Izafi Zila Qazi Kabal, Swat, pursuant to a case registered vide FIR No.381 dated 10.09.2016, under Sections 302/34 P.P.C., at Police Station Kabal, District Swat. The learned Trial Court vide its judgment dated 27.09.2018, convicted the petitioners under Section 302(b) P.P.C. and sentenced each of them to imprisonment for life as Tazir. They were also directed to pay compensation amounting to Rs.2,00,000/- each to the legal heirs of the deceased as envisaged under section 544-A Cr.P.C and in default whereof to further undergo six (06) months simple imprisonment each. Benefit of section 382-B Cr.P.C, was also extended to the petitioners. The appeal filed by the petitioners was dismissed by the learned High Court and the convictions and sentences awarded to the petitioners by the learned trial Court were upheld and maintained.

2. Arguments heard. Record perused.

3. As per contents of the FIR, Sami Ullah complainant (PW-9), alleged that about two (02) years prior to the occurrence, the marriage of his sister namely Mst. Salma (deceased), was solemnized with Muhammad Ayaz, who was son of both the petitioners. The said Muhammad Ayaz was residing in Saudi Arabia to earn his livelihood. The relationship of his sister namely Mst. Salma (deceased), was not cordial with her in-laws. Few days prior to the occurrence, Muhammad Ayaz sent an amount of Rs.50,000/- for medical treatment of his wife Mst. Salma (deceased). The petitioners levelled the allegation of theft of the abovementioned amount against Mst. Salma (deceased), due to which the relationship between Mst. Salma (deceased), with the petitioners, who were her father-in-law and mother-in-law became worse and Mst. Salma (deceased), came to the house of the complainant. After some days, the abovementioned amount was recovered from the house of the petitioners due to which the petitioners brought back Mst. Salma (deceased), to their house. About 10/12 days prior to the occurrence, two (02) children of Mst. Salma (deceased), were born. However, Mst. Salma (deceased), was apprehending danger to her life at the hands of her in-laws. On 10.09.2016, the complainant received a phone call through which he was informed that her sister namely Mst. Salma had been murdered. On receiving the said information, the complainant along with other relatives reached at the house of the petitioners and found that the dead-body of Mst. Salma was hanging with a wooden beam in a room of the house of the petitioners. The complainant alleged that he was confident that the murder of his sister namely Mst. Salma was committed by both the petitioners. The motive behind the occurrence was domestic dispute between the petitioners and the deceased, hence the FIR of this case.

4. There is no eye-witness of the occurrence and the prosecution case hinges upon the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case.

5. First of all we take up the case of Fazal Muhammad (petitioner). There is evidence of judicial confession and other circumstantial evidence against the said petitioner. The dead-body of Mst. Salma (deceased), was recovered from a room of the house of Fazal Muhammad (petitioner). He was head of the family and living in the house, where his son's wife, Mst. Salma died an unnatural death but instead of reporting the matter to the police, he remained mum. He tried to give the colour of suicide to the death of Mst. Salma (deceased) but when the prosecution witnesses reached at the spot after the occurrence they noticed that the feet of Mst. Salma (deceased), were touching the floor of the room, where her dead-body was hanging. No table, chair or other supporting articles were present around the dead-body of Mst. Salma to show that Mst. Salma (deceased), first climbed on the said article and after pushing the said article, she committed her suicide. It was also brought on the record through the evidence of Noor Baz Khan (PW-1), that the door of the room, where the occurrence took place was open. Fazal Muhammad (petitioner), has not claimed that the said door was broken by anybody. It is further noteworthy that a "dupatta" was found around the neck of the deceased and another "dupatta" was found on the eyes of the deceased, therefore, it was rightly concluded by the learned Courts below that there was no reason with the deceased to first tie her eyes with a "dupatta" and thereafter to commit suicide. Moreover, medical characteristics of suicide were also missing in this case.

6. Fazal Muhammnad petitioner also got recorded his judicial confession before Mr. Muhammad Ayaz Khan, Judicial Magistrate (PW-10). In the said judicial confession, Fazal Muhammad (petitioner), confessed that he developed illicit relationship with Mst. Salma (deceased) and later on he committed her murder due to the fear that she might disclose the said relationship to others but at the same time, Fazal Muhammad (petitioner), has also categorically stated in his judicial confession that he never committed zina with Mst. Salma (deceased). There was no supporting evidence to prove the above-mentioned alleged motive. Neither the vaginal swabs nor the clothes of Mst. Salma (deceased), were taken and sent to the office of FSL for detection of semens and DNA test and to corroborate the said motive. Even otherwise, the deceased admittedly gave birth to two children about 10/12 days prior to her murder, therefore, it does not appeal to a prudent mind that the petitioner was having any illicit relationship with the deceased in such a medical condition and he committed her murder due to the abovementioned reason. The story narrated in the judicial confession that wife of Fazal Muhammad (petitioner) namely Mst. Yasmeen (co-convict), was also in the knowledge of illicit relationship of Fazal Muhammad (petitioner), with the deceased, who was husband of the said co-convict, also does not appeal to common sense because a wife in our society cannot tolerate the existence of such relationship of her husband with any other woman. Moreover, the complainant Sami Ullah (PW-9) or any other prosecution witness had not levelled the allegation of illicit relationship of Fazal Muhammad (petitioner), with the deceased. We are, therefore, of the view that there is no substance in the abovementioned story of the prosecution mentioned in the retracted judicial confession of Fazal Muhammad (petitioner) to the extent that the said petitioner committed murder of Mst. Salma due to the abovementioned reason. However, it was brought on the record through the evidence of Samiullah complainant (PW-9), that there were domestic disputes between Fazal Muhammad petitioner and his daughter-in-law namely Mst. Salma (deceased), on account of amount sent by the husband of the deceased from Saudi Arabia etc. It is, therefore, evident that due to the said domestic disputes, Fazal Muhammad (petitioner), committed the murder of Mst. Salma (deceased), though there is no substance in the prosecution story qua the illicit relationship of the petitioner with the deceased.

7. Keeping in view the abovementioned facts, the judicial confession of Fazal Muhammad petitioner through which he admitted that he committed the murder of Mst. Salma (deceased), medical evidence brought on the record through Dr. Sanam Shaukat (PW-5), establishing the presence of ligature mark on the neck of the deceased and the cause of death of the deceased as asphyxia, evidence of Samiullah complainant (PW-9) and Mst. Bakht Mina (PW-3), who had categorically stated that the door of the room of the occurrence was lying open and the feet of the deceased were touching the floor, the absence of any article near the dead-body like chair and table etc and conduct of the petitioner, who did not report the matter to the police immediately after an un-natural death of his daughter-in-law in his house, we are of the view that the prosecution has proved its case against Fazal Muhammad (petitioner) beyond the shadow of any doubt.

8. So far as the case of Mst. Yasmeen (petitioner), is concerned, we have noted that the said petitioner had not made any judicial confession before the Court. Even there is no evidence of any extra judicial confession, last seen or wajtakar against Mst. Yasmeen (petitioner). In the judicial confession of Fazal Muhammad (co-accused), he categorically stated that he forced Mst. Yasmeen (petitioner), who was his wife to participate in the occurrence but as mentioned earlier, there is no judicial confession or extra judicial confession of Mst. Yasmeen (petitioner) herself that she participated in the murder of Mst. Salma. Nothing incriminating was recovered from the possession or on the pointing out of Mst. Yasmeen (petitioner), therefore, we are of the view that the prosecution has failed to prove its case against Mst. Yasmeen (petitioner) beyond the shadow of doubt.

9. Consequently, this petition is converted into an appeal and partly allowed. The judgments of the trial Court and the High Court dated 27.09.2018 and 04.03.2019, respectively are set aside to the extent of Mst. Yasmeen (petitioner). She is acquitted of the charges while giving her the benefit of doubt. She shall be released from the jail forthwith unless required to be detained in any other case. Insofar as Fazal Muhammad (petitioner), is concerned, there is no substance in this petition to his extent, therefore, the same is partly dismissed and leave to the extent of Fazal Muhammad (petitioner), is refused. JK/F-22/SC Order accordingly.