2006 PLP 2352 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Muhammad Aslam and Mst. Pathani were tried by the learned Additional Sessions Judge, Toba Tek Singh, in lieu of case F.I.R. No.119 registered at Police Station, Rajana on 11-3-1999 for offences under section 302/34, P.P.C. Vide judgment, dated 17-7-2000, the learned trial Judge convicted and sentenced them as under: (i) Muhammad Aslam for offence under section 302/34, P.P.C. to death plus payment of Rs.70,000 as compensation, to the legal heirs of the deceased, in default of payment whereof to undergo R.I. for six months; (ii) Mst. Pathani for offence under section 302(b)/34, P.P.C. to imprisonment for life plus payment of Rs.25,000, as compensation to the legal heirs of the deceased, in default in payment whereof to further undergo R.I. for three months. Benefit of section 382-B, Cr.P.C. was given to her.

2. Aggrieved by his above noted conviction and sentence, the appellant has filed the instant appeal through jail, while the learned trial Court has made a reference bearing Murder Reference No.466 of 2000 seeking confirmation or otherwise of death sentence imposed upon the appellant.

3. Precisely, the facts of the case per statement of Lal Khan, complainant/P.W. (Exh.P.B.), which based the registration of formal F.I.R. (Exh.P.B./1), are that on 11-3-1999 at about 11-00 a.m., the complainant along with his wife Mst. Riaz Bibi, Mehar Ali/P.W.8 and Arif Ali was sitting in his house, when Mst. Pathani alias Nanhi/ accused came there and asked his daughter Mst. Bushra aged 13/14 years to accompany her to her house to help her in the work, whereupon Mst. Bushra accompanied her. At about 12-00 noon, on hearing the hue and cry of Mst. Bushra emanating from the house of Mst. Pathani, the complainant along with Arif Ali, Mehar Ali and Mst. Riaz Bibi rushed to the house of Mst. Pathani which was adjacent to complainant's house. The outer door of her house was opened and the sounds of alarm were emanating from the middle room of her house which was bolted from inside. They knocked at the door which was not opened. They entered the adjacent room of her house and saw from the hole of the intervening wall that Muhammad Aslam appellant and Mst. Pathani/accused had felled down Mst. Bushra on the ground. Mst. Pathani was holding her legs, while Muhammad Aslam, while wrapping her pigtail on her neck with one hand, was pressing her mouth with his other hand. Mst. Pathani raised Lalkara that Mst. Bushra he set on fire by sprinkling kerosene oil. The complainant and the P.Ws. challenged them, whereupon both the accused after opening the door decamped from the scene of occurrence. The P.Ws attended to Mst. Bushra. Blood was oozing out from her mouth and nose and she had expired. They also saw dry woods, kerosene oil and match box in the room near Mst. Bushra. They searched for Muhammad Aslam and Mst. Pathani but could not succeed.

4. The motive as alleged in the complaint was that six months prior to the occurrence, Mst. Pathani developed illicit relations with Muhammad Aslam, whereupon four months earlier Muhammad Aslam was expelled from the village. Four days prior to the occurrence, Muhammad Aslam again came to the house of Mst. Pathani and they both Muhammad Aslam and Mst. Pathani were seen by Mst. Bushra (deceased), upon which Muhammad Aslam had asked Mst. Bushra not to disclose this fact to anyone, otherwise she would be done to death. Mst. Pathani was reprimanded by the Mohallandars. Muhammad Aslam and Mst. Pathani suspected that Mst. Bushra had disclosed their meeting to the Mohallandars, so they committed her murder.

5. On 11-3-1999, when Javed Ali, S.I./ P.W.10, was present in Chak No.186/GB, Lal Khan, complainant/P.W.7, appeared before him and made his statement/Exh.P.B. which was sent to the police station for registration of formal F.I.R. Thereafter, he went to the place of occurrence, prepared the inquest report of Mst. Bushra deceased (Exh.P.F.) and sent the dead body for post-mortem examination. On spot inspection, he collected one gallon P-3 and one match P-4 and took the same into possession vide memo. Exh.P.D. He prepared rough site plan of the place of occurrence (Exh.P.H.) After post-mortem examination, he took into possession the last-worn clothes of the deceased, i.e. shirt P-1, Shalwar P-2 and Banyan P-5 through memo. Exh.P.C. He got prepared site plan Exh.PA and Exh.PA/1 of the place of occurrence from the Draftsman Muhammad Ashraf P.W.1. On 21-4-1999, he arrested Mst. Pathani co-accused. On 7-5-1999, the appellant was arrested by Muhammad Nadeem, Sub-Inspector/P.W.6. After completion of investigation, the appellant along with his co-accused Mst. Pathani was challaned to face the trial.

6. To substantiate its version at the trial, the prosecution examined ten witnesses. Ocular account was furnished by Lal Khan P.W.6 and Mehar Ali P.W.7. In addition to that both of them also stated about the motive. Lady Dr. Ghazala Shaheen/P.W.9, who conducted post-mortem examination on the dead body of the deceased, while observing four injuries on her person, opined that cause of death was asphyxia resulting from throttling which was sufficient to cause death in the ordinary course of life. All the injuries were ante-mortem and manual. Probable duration between injuries and death was immediate, while duration between death and post mortem examination was about 24 hours. Javed Ali, S.I. P.W.10 stated about the drafting, sending of the complaint/ statement of the complainant and the investigation thereafter. Muhammad Nadeem, S.I./P.W.6, stated about the arrest of the appellant. The rest of the evidence was formal in nature and need not be discussed. After tendering the report of Chemical Examiner Exh. P. G. , the prosecution closed its side. Thereafter, in his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication. Neither the appellant appeared as his own witness under section 340(2), Cr.P.C. nor did he produce any witness in his defence.

7. Learned counsel for the appellant submit that according to F.I.R., the deceased accompanied Mst. Pathani in the presence of the complainant and other P.Ws and she was not stopped; that none of the P.Ws. had bothered for one hour and it was only after hearing the noise that the P.Ws went to the house of Mst. Pathani; that though both the accused, one of whom was a woman, were empty-handed yet none of the witnesses tried to apprehend them or stop them from fleeing away; that according to F.I.R., the deceased had seen the accused together four days prior to the occurrence but nothing happened during the intervening period; that no plausible reason existed for murdering Mst. Bushra by the appellant; that no blood-stained earth was taken from the house of Mst. Pathani co-accused; that Lal Khan has suppressed certain truths like age of the victim and the character of the victim which leads to the conclusion that the occurrence did not take place in the manner as narrated by the P.Ws; that the statements of the P.Ws. relating to the age and character of the deceased stand belied by the medical evidence; that it was not believable that Mst. Pathani would collect woods, kerosene oil and a match box, so as to burn Mst. Bushra; that Muhammad Aslam, who was a well-built person, did not need any assistance of Mst. Pathani, as he could easily strangulate her; that it would be easier to strangulate a lady while she was standing if the same was to be done by the lady's pigtail (Gut). The learned counsel have submitted that in any case keeping in view the character of the deceased, the sentence was harsh and that the appellant did not deserve harsher punishment than the one imposed upon his co-accused Mst. Pathani.

8. On the other hand, learned A.A.-G., assisted by Mr. Qasim Ali Bhatti, Advocate, for the State has submitted that both the witnesses have given a very consistent account about the occurrence and their statements are supported by the medical evidence; that place of occurrence and time of occurrence have not been challenged; that even it has been admitted that the villagers did suspect illicit relationship between the two accused. They have supported, the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties and have also gone through the entire record of the case.

10. It is a case in which one of the convicts Mst. Pathani took specific plea during trial while her statement under section 342, Cr.P.C. was recorded. The appellant in answer to question No.13 stated that he endorsed the statement of his co-accused Mst. Pathani. For ready reference, the plea taken by Mst. Pathani is being reproduced hereunder: "The villagers including Lal Khan complainant and P.Ws suspected that I had illicit relations with my co-accused Muhammad Aslam. Mst. Bushra Bibi deceased was closely associated with me. She was a girl of easy virtue and did not care whether her parents liked her relations with me or not. She used to loiter hither and thither in the village in spite of having been forbidden by her parents. Her father Lal Khan strictly forbade her from visiting my house and having relations with me. At the time of occurrence it was noon time, finding an opportunity she came to me at my house. Muhammad Aslam accused was not present at my house at that time. I and Mst. Bushra Bibi deceased were gossiping when suddenly Lal Khan complainant entered the room where we were sitting. He was at warpath. He caught Mst. Bushra by her pigtail, gave her slaps and asked her that why she had come to me in spite of his reprimand. Mst. Bushra Bibi deceased retorted that what was wrong in having relations with me. Lal Khan complainant got infuriated, felled Mst. Bushra Bibi on the ground and caused her death by throttling. I being weaker vessel got terrified and ran away from my house. Later the complainant in league with P.Ws. police and the villagers concocted false story and involved me and Muhammad Aslam co-accused falsely in this case. Firstly he misled the police. P.Ws. and the villagers and then entered into conspiracy with the I.O. to get us roped in this case falsely."

11. It is settled law that in such-like situation, both versions are to be put in juxtaposition to ascertain which of the two is true or nearer to the truth. According to prosecution case, Mst. Bushra Bibi, unmarried daughter of the complainant, accompanied Mst. Pathani to help her in household chores. At about 12-00 noon, the complainant along with P.Ws. rushed to the house of Pathani after hearing the noise and alarm raised by Mst. Bushra Bibi. The complainant and the P.Ws. entered the house and saw that room was locked, so they went to the adjacent room and saw through Jhroka (existing hole) that Mst. Bushra had been felled on the ground and Muhammad Aslam had put pigtail of Mst. Bushra around her neck and was pressing her mouth with the other hand. Mst. Bushra was wriggling. The complainant and the P.Ws. challenged the accused, who succeeded in fleeing away from the spot. The complainant attended to Mst. Bushra, who had lost her life and blood was oozing out from her nose and mouth. The place of occurrence which is house of Mst. Pathani) and the time of occurrence are not disputed. It is also admitted that the villagers including the complainant ' and P.Ws. suspected illicit relationship between Mst. Pathani and Muhammad Aslam. Mst. Pathani also stated that Mst. Bushra had been felled down on the ground and the cause of her death was throttling. Lady Dr. Ghazala Shaheen P.W.9, who conducted post-mortem examination on the dead body of the deceased, also opined that the death was caused by asphyxia due to throttling and was sufficient to cause death in ordinary course of life. She further stated that all the injuries were ante mortem and were manual. So the only issue is whether Lal Khan caused the death of Mst. Bushra as claimed by Mst. Pathani or the accused had caused it. We have scanned the entire evidence with the able assistance of the learned counsel for the parties. As far as occurrence is concerned, both the P.Ws. have given a straightforward account and have corroborated each other on all material particulars. Their statements are B supported by the medical evidence and fully corroborated by the circumstances of the case, especially the death of Mst. Bushra Bibi in the house of Mst. Pathani. The learned counsel for the appellant has pointed out certain contradictions that the age of the victim was mentioned as 13/14 years in the F.I.R. and that according io doctor, Mst. Bushra Bibi was 17/18 years of age and was habitual of sexual intercourse. According to the learned counsel, Lal Khan wilfully suppressed the fact of age and the character of the deceased. As far as age is concerned, the fact remains that the deceased was a teenager and was unmarried. The second objection of the learned counsel is also devoid of any force, as the father would never know about the character of his daughter. The learned counsel has also laid much stress on the point of delay in lodging the F.I.R. The delay casts doubt on the prosecution story only when there is very strong background of ill-will and enmity between the parties or when the accused are c not known to the complainant. In the instant case, no such situation existed and even otherwise the complainant has explained the delay when he was cross-examined on the point by stating that he and the P.Ws. raised alarm and many people of the village gathered there. They left the place of occurrence 15/20 minutes after seeing the victim dead at the spot in order to search the accused and they searched the accused in the village Abadi.

12. As far as defence plea is concerned, it is neither supported by any evidence nor is drawn out of the circumstances of the case. According to defence plea, at the time of occurrence, Mst. Pathani was alone in the house along with the deceased. In that case, there was no need for the father to kill her unmarried daughter. He could do so if he had seen Aslam and his daughter together but in that event he would not have spared the other party. According to the plea itself, the deceased was simply present in the house of Mst. Pathani and was not engaged in any indecent or untoward activity, so as to provoke the real father to take life of his daughter. It is also pertinent to note that swabs were taken from the body of the deceased but the same were found not to be stained with semen. Both the accused also opted not to appear as witnesses under section 340(2), Cr.P.C. in support of the defence plea. We may mention here that after her conviction Mst. Pathani, who was duly represented by a lawyer during trial, has not challenged her conviction and sentence and has not filed any appeal.

13. In the above noted circumstances, we are of the opinion that the prosecution has successfully proved its case against the appellant. We reject the defence plea that Lal Khan took the life of his daughter.

14. Now coming to the quantum of sentence, it has been noticed by us that Mst. Bushra was found to be habitual to sexual intercourse; and that Mst. Pathani/co-accused, who was equally responsible, escaped the death sentence. No revision was filed for enhancement of sentence. We have also noticed that according to F.I.R., Mst. Pathani went to the house of the complainant while the complainant and other P.Ws. were present there. She asked Mst. Bushra to accompany her and Mst. Bushra accompanied Mst. Pathani and left the house in the presence of the complainant and other P.Ws. In the above noted circumstances, we feel it safer to reduce the sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is given to the appellant. The amount of compensation imposed by the learned trial Court is also maintained with slight modification that in default of realization or payment thereof, the appellant would suffer S.I. for six months.

15. With the above modification and reduction in sentence, this appeal is partly allowed. The death sentence is not confirmed. The Murder Reference is answered in the negative. H.B.T./M-280/L Appeal partly allowed.