2002 PLP 14 (MLD)

4. Muhammad Sadiq, S.‑I. P.W.12 after recording statement (Exh.P.A.) of Muhammad Sadiq P.W.5 sent the same to the police station for registration of formal F.I. R. and he himself arrived at the place of occurrence. He took into possession dead body of Mst. Rifat Bibi and prepared inquest report vide Exh.P.J. and injury statement Exh.P.K., and despatched dead body for post‑mortem examination. He also took into possession the blood‑stained earth from the spot vide memo. Exh.P.D. He then visited the place where Mst. Khurshid Bibi P.W.10 was injured and the place where Mst. Naseem Bibi and Shahzad were injured and sent them for their medical examination through applications Exhs.P.D., P.P. and P.Q., respectively, written to medical officer. On 23‑7‑1994, he arrested the accused/appellant who on 26‑7‑1994 while in police custody led to the recovery of blood‑stained Chhuri (Exh.P.4) which was taken into possession vide memo. Exh.P.E. He recorded statements of the prosecution witnesses, completed the investigation and challaned accused. The accused denied the allegation and claimed trial.

5. During the trial, the prosecution examined as many as 13 witnesses to prove guilt of the accused.

6. The medical evidence was furnished by Dr. Muhammad Altaf P.W.9, who on 15‑7‑1994 medically examined Shahzad P.W.8 and found three incised wounds on his person. On the same day he also medically examined Mst. Khurshid Bibi, P.W.10 and found three incised wounds on her person. He on the same day also examined Mst. Naseem Bibi P.W.7 and found one incised wound on her person. According to the opinion of the Doctor, all those injuries were caused by sharp‑edged weapon.

7. Hafeez Tahir Record Keeper District Headqaurters Hospital, Kasur appeared as P.W.13, he proved the report of post‑mortem examination Exh.P.R., of Mst. RifatBibi deceased conducted by Dr. Allah Bakhsh Mali, identified his signature with whom he had worked.

8. The ocular account was furnished by Muhammad Sadiq alias Shada, the complainant, who supported version of F.I.R. Talib Hussain brother‑in‑law of the complainant was examined as P.W.6. He also attested the recovery memo. Exh.P.E. weapon of offence got recovered by the accused. He supported the prosecution case as an eye‑witness of the occurrence. His statement is in line with the statement of the complainant. Mst. Naseem alias Sheeman wife of Talib Hussain was examined as P.W.7 and Shahzad son of Talib Hussain was examined as P.W.8. Both these witnesses were injured by the accused. They supported the prosecution story and implicated the appellant for causing them injuries. Mst. Khurshid Bibi P.W.10 was also injured in the occurrence but she was declared hostile. Likewise Muhammad Ashraf P.W.11 husband of Khurshid Bibi was also declared hostile. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh. P.S. and Exh. P.T., and that of Serologist Exhs. P.U. and P.V. The statement of the accused was also recorded under section 342, Cr.P.C. towards the end of the trial. He denied the charge and claimed his innocence and false involvement.

9. The trial culminated into the conviction of the accused/appellant as mentioned above. He has filed Criminal Appeal No.400 of 1996 against his conviction and sentence while the trial Court has sent up Murder Reference No.113 of 1996 for confirmation of the death sentence of the accused, therefore, both the matters are being decided by this single judgment.

10. Learned counsel for the appellant has argued that the occurrence of murder of Mst. Rifat Bibi was unwitnessed and the injured witnesses are not the eye‑witnesses of the occurrence. The conduct of the complainant and Talib Hussain was unnatural and not appealable to a man of prudence of mind. Had they present at the spot, they would have intervened while Mst. Rifat, was being butchered by the accused. According to the prosecution version Mst. Rifat Bibi was dragged by the accused n the house of one Allah Wasaya where she was caused injuries and her neck was cut, but no sign of dragging was noticed by the Investigating Officer and no blood was collected. The witness neither tried to apprehend/ intervene to save the life of Mst. Rifat Bibi nor to apprehend the accused, therefore, their testimony is not confidence‑inspiring. The remaining two witnesses Naseem Bibi and Shahzad have not witnessed the murder and their statements can be accepted maximum to their own extent for the injuries caused by the accused. The prosecution witnesses are closely related inter se and to the deceased and their statements have not been corroborated from any independent source. It has also been argued that Doctor who had conducted post‑mortem examination has not been intentionally examined by the prosecution and his non‑appearance before the trial Court has not been proved through the process‑server and Hafeez Tahir P.W.13 was only Record Keeper and was not in a position to identify the signatures of the doctor. Therefore, the report of the post‑mortem examination brought on record cannot be relied upon. Learned counsel has also pointed out that during the post‑mortem examination the swabs were taken into _ possession by the doctor and sealed bottle containing the semen was handed over to the Investigating Officer but the same was not sent for chemical examination. Therefore, defence plea is more probable and believable as the deceased was murdered by her real brother Ashiq on seeing her in compromising position with some unknown person; that the injured prosecution witnesses P.Ws.7, 8 and 9 were medically examined through police at 8‑45 a.m. as per their medical reports and statement Exh.P.A. was recorded at 9‑30 p.m. which shows that the case was registered after preliminary investigation. The learned counsel supplemented his arguments claiming/stating that motive was false and has not been proved and the case against the appellant is doubtful and he be acquitted by extending benefit of doubt.

11. Conversely appeal has been opposed by the learned counsel for the complainant assisted by learned counsel for the State.

12. Heard, Record perused.

13. It was a broad daylight occurrence supported by eye‑witnesses, the complainant and Talib Hussain P.W.5 and P.W.6. Their statement has been further corroborated by statements of the injured witnesses Mst. Naseem Bibi and Shahzad P.W.7 and P.W.8. They were injured in the same occurrence/transaction by the appellant. There is no possibility of mistaken identity of the accused or for his false implication and substitution. The prosecution witnesses have no previous enmity to falsely implicate the appellant by letting off the real culprits. The prosecution case has been further corroborated by the medical evidence. Naseem Bibi and Shahzad were medically examined and injuries on their persons were found by doctor within duration of one hour. According to the statement of the doctor injuries on their persons , were not self‑suffered. Hafeez Tahir, P. W.13 has proved the post‑mortem report of deceased Mst. Rifat Bibi. He stated that he had been working with the doctor who conducted post‑mortem examination.

14. After deep re‑appraisal of the evidence, we are convinced that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt and found no reason to interfere in the conviction recorded against him. However, to put the record correct, the conviction is maintained under section 302(b), P.P.C. as Tazir instead of section 302(a), P.P.C.

15. As far as sentence is concerned, the complainant was attracted to the place of occurrence on hearing hue and cry of Mst. Rifat Bibi deceased. He has not seen or overheard as to what transpired between the deceased and the accused at the spur of the moment before the said occurrence took place. Although it is settled law that weakness or the absence of the motive is no ground for awarding lesser penalty, but in the instant case the conduct of the complainant by not trying to apprehend the accused and the manner investigation was carried out and the medical examination of the injured P.Ws. before the registration of F.I.R. are the circumstances in which we consider that it is a fit case where the death sentence is to be reduced into imprisonment for life which will meet the ends of justice. Order accordingly.

16. The remaining sentences under section 324, P.P.C. are, however, maintained but all the sentences will run concurrently. The benefit of section 382‑B, Cr.P.C. will also be available to the appellant. The Criminal Appeal No.400 of 1996 is dismissed with the above modification. The death sentence against Amir Ali alias Beer appellant is not confirmed. The Murder Reference is answered in the negative. H.B.T./A‑319/L Appeal dismissed/Order accordingly.