2022 PLP 55 (YLRN)

SADAQAT ALI KHAN, J.

Appellant (Muhammad Riaz) has been tried by learned trial Court in case FIR No.196 dated 13.06.2017 offence under section 302, P.P.C. registered at Police Station Saddar Mailsi, District Vehari, and was convicted and sentenced vide judgment dated 06.11.2017 as under:-- Muhammad Riaz (appellant) Under section 302(b), P.P.C. Sentenced to DEATH as "Tazir" for committing Qatl-i-Amd of Mst. Parveen Mai (deceased) with compensation of Rs.3,00,000/- payable to legal heirs of the deceased under section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to further undergo simple imprisonment for 6-months.

2. Appellant has filed this Criminal Appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

3. Brief facts of the case have been stated by the complainant Mst. Manzooran Mai (PW-6) in her statement before learned trial Court, which is hereby reproduced as under for narration of the facts:-- Stated on oath that my daughter name was Mst. Parvecn who had married with Muhammad Riaz accused present in the court about 12/13 years before. They have three sons and two daughters. On 12-06-2017 at about 12:00 a.m. (night) Mst. Parveen Mai informed me that accused Riaz is threatening to kill her, therefore, came here and took her from there. Upon which I with my son Shahid and PW" Qaisar Abbas on motorcycle reached at the house of my daughter Mst. Parveen Mai at Basti Banjhar 5-Marlas Scheme at about 2.30 a.m. (night). We reached there and saw that children Imran, Shaban and Mst. Haseena Bibi of my daughter were sleeping on the cots while her one daughter Mst. Sonia was lying on the cot and weeping. In the meanwhile, there came noise of Mst. Parveen Mai. In the light of bulb, we saw that accused Riaz had pulled pulled a rope around the neck of my daughter. We tried to rescue her, however, the accused tightly pulled the rope and killed her and thereafter accused Riaz waved iron Churri towards us and threatened us that if any one came near to him, he will also kill him and accused fled away from there. We managed Mst. Parveen Mai and found her dead. We saw an electricity wire near the dead body of deceased Parveen Mai and there were also marks of electric current over her hands. Motive behind the occurrence was that the accused had suspicion against the character of Mst. Parveen Mai. Accused Riaz was an advance aged man and Parveen Mai was younger than him and accused had suspicion against character of Mst. Parveen Mai and there were earlier disputes between them due to said suspicion. Thereafter, the police reached at the place of occurrence upon getting knowledge of the occurrence. I recorded my statement Ex.PA to the police which was read over to me and after accepting the same as correct, I put my thumb impression which is Ex.PA/I. Accused Muhammad Riaz is my real culprit. He may be convicted and sentenced in accordance with law.

4. After hearing learned counsel for the appellant as well as learned law officers, and on perusal of record with their able assistance, we have observed as under:-- i. Mst. Parveen Mai was done to death in the house of her husband Muhammad Riaz appellant on 13.06.2017 at 4:30 a.m. (peak of Summer season), FIR was lodged on the same morning i.e. 13.06.2017 at 9:25 a.m. on the statement of her mother Mst. Manzooran Mai complainant P.W.6, who stated in her statement before the learned trial Court that on 12.06.2017 at 12:00 a.m. (night), Mst. Parveen Mai deceased informed her that Muhammad Riaz appellant was extending threat to kill her with the request to take her from her house, she along with her son Muhammad Shahid P.W.7 came there on motorcycle, at about 2:30 a.m. (night) when they reached there, saw Imran, Shaban (not P.Ws ) and Haseena Mai P.W.9 (sons and daughter of the deceased and the appellant) were sleeping on the cots whereas Soniya Mai P.W.8 was also lying on the cot and weeping. In the light of bulb, they saw the appellant pulled a rope around the neck of Mst. Parveen Mai and killed her, they also saw an electric wire near the dead body of the deceased and marks of electric shock on her hands. Muhammad Shahid P.W.7 while appearing before the learned trial Court has fully supported the evidence of Mst. Manzooran Mai. ii. Hasina Mai P.W.9, (real daughter of the deceased and the appellant) being of tendered age, was put questions to determine whether she is competent to testify or not who gave rational answers to those questions and was found competent to testify by the learned trial Court well mentioned in interim order dated 28.10.2017. She stated in her statement before the learned trial Court that during the night of occurrence, she along with her mother Mst. Parveen Mai deceased, sister Soniya Mai P.W.9, brothers Imran and Shaban (not P.Ws.) was present in her house, it was about 8:00/9:00 p.m. her father Muhammad Riaz appellant came back from his work, had a quarrel with her mother Mst. Parveen Mai deceased, then prepared tea, the appellant served tea to her, her mother Mst. Parveen Mai, Shaban and Imran (not P.W.), he had also offered tea to her sister Soniya Mai P.W.9 but she did not take tea, whereafter they went to sleep at about 11:00 p.m./12:00 a.m. (night), she gained conscious in the government hospital, Mailsi. Dr. Bilal Khalid C.W.2 stated in his statement before the learned trial Court that on 13.06.2017 at 8:00 a.m., three children were there with their maternal uncle and maternal grand-mother, one child was in a very critical condition, they had no facility of artificial ventilator, was shifted to Vehari hospital, other two children were Hasina Mai P.W.8 and Shaban (not P.W.), they were vitally stable. It was a poisoning case, there were signs and symptoms of poisoning. Both the children had dryness of mouth and eyes which were without tears and other bodily secretions. Their pupils were meiotic, BP was low, pulse was high, they were going towards the hypovolemic shock, so they were admitted and treated in paediatric ward. This medical evidence has supported the statement of Hasina Mai P.W.9. iii. Soniya Mai P.W.8 (real daughter of the deceased and appellant) aged about 7-years claims herself to be the eye-witness of the occurrence. The questions were put to her to determine whether she is competent to testify or not, had given rational answers to those questions and was declared competent to testify by the learned trial Court vide order dated 09.10.2017. She stated that at the evening of 12.06.2017, a quarrel took place between her mother Mst. Parveen Mai deceased and father Muhammad Riaz appellant, her father (appellant) prepared tea in the evening, she was not used to take tea, therefore, she did not take tea, the tea was taken by her sister Mst. Hasina P.W.9, brothers Imran, Shaban (not P.Ws.) and mother Mst. Parveen Mai deceased discussed above. After taking tea by her mother Mst. Parveen Mai, the appellant threw her into the room and peeled the wire of the pedestal fan and gave current to her mother and put rope around her neck, meanwhile, her grandmother Mst. Manzooran Mai P.W.6 and maternal uncle Muhammad Shahid P.W.7 came there and witnessed the occurrence. This witness being real daughter of the appellant and deceased was with them in the house of occurrence and is natural witness, has absolutely no ill-will or animosity to depose against her real father (Muhammad Riaz appellant) for the murder of her real mother (Mst. Parveen Mai deceased). Her presence with the deceased as well as appellant at the time of occurrence cannot be denied. She has fully implicated her real father (Muhammad Riaz appellant) in her statement. All above stated witnesses including this witness (Soniya Mai P.W.8) were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They have corroborated one another on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straight forward, trustworthy and confidence inspiring. iv. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minors and general in nature, occur in every case when witnesses (who are human being) are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution case. v. Medical evidence has been furnished by Dr. Nusrat Nawaz P.W.3 who during post-mortem examination on the dead body of the deceased observed ligature mark i.e. two to three strangulation marks of rope around the neck of the deceased, cause of death was strangulation and electric shock, therefore, medical evidence has fully supported the ocular account furnished by the above mentioned eye-witnesses. vi. Recovery of "Chhurri" on pointing out of the appellant from the tubewell room of Dera of Muhammad Akhtar Lumberdar (not P.W.) is not in exclusive possession of the appellant and is not believable, which has rightly been discarded by the learned trial Court in para 21 of the impugned judgment. vii. Motive of the occurrence stated by Mst. Manzooran Mai complainant P.W.6 before the learned trial Court is that appellant had suspicion against the character of Mst. Parveen Mai deceased but Soniya Mai P.W.8 and Hasina Mai P.W.9 did not utter even a single word in this respect, which is not believable. viii. Appellant has denied his involvement in the present occurrence in his statement recorded under section 342, Cr.P.C. He neither opted to appear under section 340(2), Cr.P.C. nor produced any oral as well as documentary evidence in his defence plea which has rightly been discarded by learned trial Court through the impugned judgment with sufficient reasons.

5. In view of above, if evidence of recovery and motive is excluded from consideration, even then prosecution has proved its case beyond shadow of doubt against appellant (Muhammad Riaz) through the evidence discussed above.

6. Coming to the quantum of sentence, we have noted some mitigating circumstances. Firstly, recovery of "Chhurri" has been disbelieved by us with the reason mentioned in sub-para (vi) of para 4 of this judgment and secondly motive has been disbelieved by us with the reasons mentioned in sub-para (vii) of para 4 of this judgment. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. (2009 SCMR 1188) "Mir Muhammad alias Miro v. The State" and (2014 SCMR 1227) "Zafar Iqbal and others v. The State".

7. Considering above, conviction of appellant (Muhammad Riaz) in offence under section 302(b), P.P.C. for committing the murder of Mst. Parveen Mai (deceased) is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default whereof awarded by learned trial Court are also maintained. Benefit of section 382-B, Cr.P.C. is extended to the appellant.

8. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal filed by the appellant (Muhammad Riaz) is hereby dismissed Murder Reference is answered in NEGATIVE and death sentence of Muhammad Riaz (appellant) is NOT CONFIRMED. JK/M-201/L Appeal dismissed.