1998 PLP 1568 (MLD)

6. After reaching at the spot the police prepared injury statement with regard to the dead body which is Exh.PE and inquest report Exh.PF and despatched the dead body for post-mortem examination. Thereafter, the police took into possession blood-stained earth from the spot and made it into a sealed parcel vide memo Exh.PA/1. Seven crime empties of .30 bore P.4/1-7 were also taken into possession from the spot and were made into a sealed parcel vide memo. Exh.PJ. Both the memos were attested by Allah Ditta P.W.9, Muhammad Rashid Inspector S.H.O. (P.W.12) and Haji Muhammad Shafi (not produced). Nazar Hussain appellant was arrested on 23-8-1993 by Muhammad Rashid Inspector/S.H.O. (P.W.12) while Zafar Hussain was arrested on 29-8-1993 by Ghulam Hussain A.S.I. (P.W.8). On 27-8-1993 in course of investigation Nazar Hussain accused disclosed and led the police party to his residential house from where he got recovered pistol P.3 and 10 live cartridges which were made into a sealed parcel and taken into possession vide memo. Exh. PB which was attested by Malik Muhammad Shafi P. W.4, Allah Ditta P. W.9 and Muhammad Rashid P.W.12.

7. On 31-8-1993 Zafar Hussain accused while in police custody disclosed and led to his residential house from where he got recovered rifle P. I alongwith 15 live cartridges P.2/1-15 which was taken into possession vide Memo. Exh.PA Exh.PA was attested by Muhammad Akram P.W.3, Muhammad Rashid P.W.12 and Hassan Bakhsh (not produced).

8. On 23-8-1993 Dr. Muhammad Altaf Hussain P.W.6 performed autopsy on the dead body of Mst. Allah Budhaee aged 28 years and found the following injury on her person:-- (1) A lacerated wound of fire-arm entry 3/4 c.m. diameter with inverted blacken edges. On the outer and back of left upper chest, 4 c.m. below and posterior to the posterior axillary pit. In opinion of the doctor death was the result of haemorrhage and shock caused by injury No. l which was sufficient to cause death in ordinary course of nature. Injury was ante-mortem and was caused by fire-arm. The time between injury and death was half hour and that between death and post-mortem was 18 hours. On 23-8-1993 at the time of his arrest Nazar Hussain appellant was found to carry injuries on his person and. his injury statement Exh.PM was prepared and sent for medical examination. On the same day at 5.30 p.m., he was medically examined by Dr. Abdul Khaliq P. W.14 who found the following injuries on his person:-- (1) Firearm wound 1 c.m. x 1 c.m. going deep on the left mid of the palm. This was entry wound. (2) A firearm wound 1 c.m. x 1 c.m. going deep just near the left mid palm. (3) A firearm wound 1.5 x 1.5 c.m. on the left back of the hand. This was the out-left of injury No. 1. (4) Firearm wound 1.5 x 1.2 c.m. on the base of the left index finger. This was exit wound of injury No.2. All the injuries were found to be caused with firearm and within the duration of 24 to 26 hours.

9. The sealed parcels were sent to the office of the Forensic Science Laboratory and to the chemical examiner. The report. of chemical examiner is Exh.PO while that of the serologist is Exh.PQ, stating that the blood-stained earth was found to be stained with human blood, All the seven crime empties taken from the spot are reported to be wedded with the crime weapon recovered from the accused vide report Exh.PR. After completion of the investigation the accused were sent up for trial where formal charge against them was framed and 14 P. Ws. were produced to prove the prosecution case. The break up of prosecution evidence is as such Allah Ditta P.W.9 and Muhammad Aslam P.W.10 are the eye-witnesses, Mukhtar Ahmed P.W.11 identified rifle P.1 recovered from Zafar Hussain accused to be his licensed rifle. P.W.6 and P. W.14 are doctors who have narrated about the injuries on the deceased and the accused. P.W.3, P.W.4 and P.W.9 are the witnesses who have attested the memos exhibited on file while P. W.1, P. W.2 and P. W.7 relate about the sealed parcels pertaining to this case sent to various offices. P.W.5 is the draftsman, P. W.8, P. W.12 are the Investigating Officers.

10. The accused were examined under section 342, Cr.P.C. at the close of the prosecution. Zafar Hussain has denied the prosecution allegations against him and has stated that he has been falsely involved being the brother of Nazar Hussain accused while Nazar Hussain has affirmed questions Nos.2, 3 and

4. In answer to question No. 13 he has claimed pistol Exh.P3 to be his property and to be a licensed one. While explaining his injuries, in answer to question No. 14, he has stated that Mukhtar Ahmed had fired at him in his house and lastly in answer to question No. 17 he has made the following statement:-- "On account of my relations with the deceased she wanted to alienate her land in my favour and she wanted to marry me and on account of illicit relations and her desire to marry me and to transfer the land in my favour the entire family of Mukhtar Hussain and Mukhtar Hussain himself were annoyed with me and they being in league with the police involved in this case because the family of the deceased wanted to eliminate the deceased. " None of the accused opted to appear as his own witness as required under section 340(2), Cr.P.C. None of them opted to produce any defence evidence.

11. With the assistance of the learned counsel for the appellant, the evidence and the documents appended therewith on the record have been perused and scrutinised in detail. Learned counsel for the complainant has at the very outset conceded that he is instructed not to press the 'revision petition against acquittal as far as Zafar Hussain accused is concerned. Hence the same is dismissed as not pressed. So far as the revision petition for enhancement of sentence of Nazar Hussain accused is concerned, learned counsel has argued that the evidence of motive in this case is very strong and the accused too has in answer to question No.17 also fortified the same and that the occurrence was activated only when six months earlier the deceased had refused to continue her relations with the accused and had transferred two acres of land in the name of her husband Mukhtar Hussain about a month prior to this occurrence. Thus, the petition be accepted and the sentence be enhanced to capital sentence. It is an admitted fact and open secret that the deceased was having illicit relations with Nazar Hussain convict since the last 3/4 years and if she had any inclination as narrated by the accused she could have opted to act in that manner but her conduct till her death indicates that she had no inclination and desire as stated by the accused in answer to question No.

17. The statement of the accused cannot be joined with to corroborate the prosecution evidence. It can either be accepted as a whole or rejected in toto. This statement of the accused is an attempt in frustration just to vent out his venom against the complainant party and. to further dishonour, humiliate and shred their family honour and dignity. It is ruled out of consideration. It was the bounden duty of the prosecution to prove the motive beyond reasonable doubt yet in the present case the motive appears to be shrouded in a mystery. Though Mukhtar H6ssain P.W.I 1 who is the husband of the deceased was produced to establish the ownership of rifle P.1 which was recovered from Zafar Hussain accused. But in his cross-examination, he states about his knowledge of the illicit relations of the deceased and the appellant. Further states that he had strained relations with Mst. Allah Budhaee deceased but since the last six months he was leading normal life and having cordial relations as his wife had severed relation with appellant. There is something else which acted as fuel to accelerate the occurrence but the same has beer. suppressed by both sides and it is not inferable from the present evidence on record. Thus, it can only be safely held that the motive in the present case is not established beyond reasonable doubt to warrant a capital sentence. Hence, the revision petition for enhancement of sentence filed by the complainant being devoid of force is dismissed.

12. Learned counsel for the appellant while arguing the case of the appellant for acquittal has urged that the eye-witnesses who have been produced in Court are not natural residents of the locality while that who was a natural witness has not been produced i.e. Mst. Manzooran, the sister of the complainant and mother of the deceased. That the crime empties taken from the spot were not mentioned in column No.23 of the inquest report nor the weapon has been described in column No. 12 of the inquest report. Lastly it was argued that Mukhtar Hussain husband of the deceased actually murdered her and caused injuries to the accused/appellant.

13. Allah Ditta P.W.9 is the maternal uncle of the deceased and is residing at a distance of 10/12 K.M. in Basti Sahoo while Muhammad Aslam P.W.10 nephew of the complainant and Qadir Bakhsh (not produced) cousin of Muhammad Aslam P. W.10 reside in Chak No.11 MR which is at a distance of 14/15 K.M, from the place of occurrence. Mst. Manzooran another eye-witness as not produced. Sloe is sister of the complainant and mother of the deceased. It is also on record that Ghulam Sarwar, father of Mukhtar Hussain P. W.11 was hospit;2lised 10/12 days earlier as he was a heart patient and the relatives had been inquiring about his welfare there and that because of his condition he was brought back to his house a day prior to the occurrence where P. W.9, P. W. 10, Qadir Bakhsh. Mst. Manzooran alongwith Mukhtar Hussain P. W.11 and the deceased were present. It is also in evidence that Ghulam Sarwar after some days expired, and thus, the presence of these P. Ws. on the day of occurrence for the said reasons is appealing and acceptable. Mst. Manzooran is the mother of the deceased and it has been argued that she would not have supported the prosecution version if produced in Court. The prosecutor incharge of the case is i the best person to decide and choose from a given set of evidence as to which he will produce in Court to prove the charge framed against the accused. It is the duty of the prosecutor to produce as many witnesses he thinks fit, proper and sufficient to prove the charge. It would not enhance the case of prosecution if the record be burdened with the evidence of a number of witnesses on one point. Two eye-witnesses in present case had already supported the prosecution case. It would have been a futile exercise to produce the other two witnesses unless there was something extraordinary to be proved through their evidence. Nor were they injured witnesses whose non-production would have hit the prosecution case. It is beyond comprehension that the mother if produced in Court would have gone against her own daughter's case and supported the case of the person who had murdered her daughter especially under the circumstances when there is no blood relation with the accused and it was openly known that he was having illicit relations with the deceased. The conduct and the manner in which the occurrence took place, is supported by the evidence of P.W.9 and P.W.10 it indicates that the accused committed this murder in a cold blooded pre determined manner and he fired while chasing the deceased all around the house and even fired shots at the closed door where she was taking refuge to save her life. This conduct and behaviour is a circumstance which cannot be lightly ignored. Though the deceased was hit by one bullet which proved fatal but the fact remains that seven fires were made through this weapon, out of which two fires were made by the accused on his own person to create a defence. The injuries of the accused are explained by the witnesses in the F.I.R. There is no previous enmity between the accused and the complainant party. The illicit liaison was continuing since 3/4 years, the complainant party, the husband of the deceased had learnt to live with this shamefacedly. Had they ever felt aggrieved over this liaison they would have taken steps to curb and stop it some time that far back but the facts indicate that this liaison was accepted in normal routine, and thus, nobody was bothered. Hence, the accused cannot claim any benefit from this by saying that he has been falsely implicated as the complainant party wanted to eliminate the deceased.

14. The crime empties have been found wedded with the weapon which is admittedly licensed property of the accused. In column No.12 of the inquest report it is only necessary to state as to how apparently the injuries appear to be caused i.e. firearm, weapon or torture and the detail of weapon is not required. However, non-mention of empties in column No.23 may be a callous inadvertent slip which could lead to an adverse inference had the same contradicted with the inspection note prepared soon after the inquest report which indicates and states about the presence of seven crime empties at the spot. This form of inquest report is prepared by the Investigating Officer who was in no way in the control of the complainant party hence the case of the prosecution so far as evidence of complainant party is concerned cannot be thrown out or discarded on this account when it is strong enough to prove the charge of murder against the appellant. Recovery of pistol P.3 is not supported by Malik Muhammad Shafi P.W.4 but it is supported by Allah Ditta P.W.9 and the Investigating Officer who are equally good witnesses. It is the licensed weapon of the accused. If the prosecution had any intentions to falsely plant any evidence then very easily everything could be manoeuvred but the same has not been done. The appellant has very little space to wriggle out as the ballistic expert wedded his weapon with crime empties recovered from the spot.

15. No doubt that P.W.10 has stated that all of them were aggrieved over the illicit liaison of the accused with the deceased and that Mukhtar Hussain, husband of the deceased was also aggrieved and that she had refused to alienate the remaining land in the name of Mukhtar Hussain. Mukhtar Hussain has rebutted this and stated that though he had strained relations with the deceased but six months prior to the occurrence when she severed her illicit liaison with the accused and their relations became cordial and that two acres of land was alienated by Mst. Allah Budhaee in his name a month prior to this occurrence. If the complainant party or the husband had the intention or courage to do away with Mst. Allah Budhaee for the reason narrated by the accused then there was nothing to stop them from doing so and this being known to every body that the deceased was carrying illicit relations with the accused it would have vindicated their long lost honour. Secondly the deceased being owner of 9-1/2 bighas of land out of which she transferred of her own free-will two acres in the name of her husband, and thus, under these circumstances there was no reason for the husband or the complainant party to kill Mst. Allah Budhaee when there is no evidence that she had refused to transfer the remaining land in the name of her husband. The complainant party by killing Mst. Allah Budhaee would not have gained anything. And lastly how could complainant party get hold of the licensed pistol of the accused to cause injuries prepare, crime empties and plant them on the accused as evidence while occurrence took place on 22-8-1993, the accused being arrested in the evening on 23-8-1993 and recovery of pistol being, effected on 27-8-1993. Thus, it is a case in which substitution or fabrication is not possible. The accused, in fact, committed the murder of the deceased in presence of the witnesses. Since the motive or the immediate cause is shrouded in mystery, therefore, the accused can reap the benefit to this extent. However, there is no force in all the contentions raised for acquittal. Therefore, the conviction and the sentence of the appellant is maintained on both counts. The appeal is dismissed. H.B.T./N-100/L Appeal dismissed.