2017 PLP 83 (YLRN)

RAJA SHAHID MEHMOOD ABBASI, J.

Mst. Nazia Anwar was convicted for an offence under section 302(b), P.P.C., by learned Additional Sessions Judge, Rawalpindi vide judgment dated 20-09-2011 and was sentenced to death and to pay an amount of Rs.1,00,000/- to the heirs of Mst. Fahmida Bibi, deceased by way of compensation under Section 544-A, Cr.P.C. on in default of payment thereof to undergo S.I. for six months. Mst. Nazia Anwar has challenged her conviction and sentence before this Court through Criminal Appeal No 372 of 2011, which has been heard by us along with Murder Reference No. 69 of 2011 seeking confirmation of the sentence of death passed against her. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution case as unfolded in the FIR (Ex.PB/1), registered on the complaint (Ex.PB) of the then complainant, Mst. Sadiqa Bibi, (PW.2) that on 12-10-2010 at 10.00 am while the complainant Mst. Sadiqa Bibi (PW.2) was present in the, courtyard with her daughter Mst. Fahmida Bibi (deceased) aged 28 years inside the room of her house, situated in Qaid-e-Azam Colony in the limits of Police Station Saddar Beroni, Rawalpindi. Mst. Nazia Anwar, the tenant of the complainant came there with her four months old suckling baby Zeeshan Imtiaz, who after putting the minor on the floor near complainant went inside the room of Mst. Fahmida Bibi where she exchanged harsh words with the daughter of the complainant and told her to bear the consequences for demanding money and inflicted repeated dagger blows on the different parts of Mst. Fahmida Bibi whereafter the accused gave last blow on the neck of the victim, who succumbed to the injuries on the spot. The accused in a bit to escape the crime scene, however, caught red handed with the weapon of offence and detained by PWs Muhammad Zahid and Muhammad Ameer, who also reached the crime scene. The motive behind the occurrence was that accused had borrowed Rs.5000/- from the deceased and on demand of that loan by the deceased accused committed Qatl-e-Amd of Mst. Fahmida Bibi.

3. After completion of investigation, the challan was prepared and submitted before the trial court. The trial court after observing codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant to which she pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution produced as many as 09 witnesses during the trial; Mst. Sadiqa Bibi (PW.2) and Muhammad Zahid (PW.3) furnished the ocular account.

5. Lady Doctor Talat Mehmooda, WMO, DHQ, Rawalpindi, (PW.7) conducted the post mortem examination on the dead body of deceased and found seventeen incised wound injuries on her body. According to her opinion deceased died due to injuries Nos.1 and 4 which are sufficient to cause death in an ordinary course of nature. All the injuries were ante mortem in nature. The time between injuries and death was immediate hours and between death and postmortem 6 to 8 hours.

6. Investigation of the case was conducted by Khizar Hayat, SI (PW.9), who narrated various steps taken by him during the investigation.

7. The prosecution after tendering Chemical Examiner Report regarding cotton Ex.PK, pieces of clothes Ex.PL, dagger Ex.PM, reports of Serologist regarding cotton Ex.PN, pieces of clothes Ex.PO and dagger Ex.PQ closed its evidence.

8. The statement of the appellant under Section 342, Cr.P.C. was recorded. She refuted the allegations leveled against her and professed her innocence. While answering the question as to why the case was registered against her and why PWs deposed against her she stated that the case was fabricated against her, and actually the witnesses were not present there who were later on procured and false case was cooked up against her. The appellant opted not to appear as her own witness under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against her by the prosecution nor opted to produce defence evidence.

9. Upon completion of the trial, the learned trial court found the case against the appellant to have been proved beyond any shadow of doubt and thus convicted and sentenced her as mentioned above. Hence, the appeal before this Court.

10. Learned counsel for the appellant contends that there is delay of more than two hours in reporting the, matter to the police; that the appellant has falsely been implicated in this case and the witnesses are interested and closely related to the deceased; that Muhammad Zahid (PW.3), who is a police official was a chance witness and he could not prove that he was away from his duty on the fateful day; that there is nothing on the record which could connect the appellant with the commission of crime; that the motive has not been proved against the appellant; that it is not comprehendible that the appellant would bring her minor child along with her and would commit such a heinous offence; that the ocular account is not in consonance with the medical evidence; that in case of death penalty the suckling baby of the appellant would certainly suffer; that the prosecution has miserably failed to prove its case against the appellant and it is golden principle of criminal jurisprudence that benefit of doubt if any has to be given to the appellant not a matter of grace but as a matter of right; that the recovery of dagger is planted one; that this appeal may be accepted, the appellant be acquitted of the charge leveled against her and murder reference be answered in negative.

11. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and inter alia, maintains that there is no deliberate and conscious delay in reporting the matter to the police; that FIR was lodged within two hours and the distance between police station and the place of occurrence is 11 kilometers; that the prosecution case is corroborated by the medical evidence; that the prosecution case is further corroborated by recovery of crime weapon supported by positive Serologist Report; that the prosecution has proved its case through cogent and confidence inspiring evidence; that presence of Mst. Sadiqa Bibi (PW.2) being inmate of the house is natural; that prosecution has fully proved its case beyond any shadow of doubt and prayed that appeal in hand may be dismissed and murder reference be answered in the affirmative.

12. We have heard learned counsel for the parties and have gone through the record with their assistance. We have noticed that the occurrence of this case took place at 10.00 am, the matter to the police at 11.30 am and FIR was registered at 12.10 am. While the distance between the place of occurrence and the police station is five miles. Considering the place of occurrence, time of occurrence and the status of the parties, we are of the view that matter was reported without any deliberate or conscious delay.

13. To substantiate its case to the direct evidence, the prosecution produced Mst. Sadiqa Bibi (PW.2), real mother of the deceased and Muhammad Zahid (PW.3). The entire case revolves around the statement of these two PWs. Mst. Sadiqa Bibi (PW.2) is the sole eye-witness of the occurrence and being inhabitant of the house is a natural witness. Her statement is corroborated by the statement of Muhammad Zahid (PW.3) who as per evidence brought on the record often happened to come to the house of the complainant, being her nephew, and when he along with Muhammad Ameer, PW reached at the main gate of the house of Mst. Sadiqa Bibi (PW.2), when Mst. Nazia Anwar, appellant after committing the murder of Mst. Fahmida Bibi was coming out of the room holding a blood stained dagger in her hand. She was stopped by them in the courtyard of the house and detained the appellant at the spot red handed, then police reached there, who arrested the accused along with dagger, P.4. Both the witnesses remained stuck to the stance taken by them on the day of occurrence in their statement recorded under sections 154 and 161 of the Code of Criminal Procedure, 1898 reportedly without any noticeable and material deviations. During the cross-examination, nothing beneficial to the appellant could be surfaced. No material discrepancies or improbabilities in their statements, the extent of role of appellant, could be hinted at by the learned counsel for the appellant during the arguments. Though, both Mst. Sadiqa Bibi (PW.2) and Muhammad Zahid (PW.3) are closely related to the deceased persons yet there presence at the scene of occurrence is very much natural. Their unswerving statements without any inconsistency inspire confidence and there is no cavil to the establish proposition that the statement of related or interested witness can be made basis conviction of the accused if the same inspire confidence as it is the intrinsic worth of the evidence that matter and not the source it emanates from. We do not find it appropriate to consider both these witnesses as interested witnesses because they were not having any reason to falsely implicate the appellant in this case. It is settled by now that mere relationship of the deceased with the witnesses is not sufficient to discredit their testimony if it is cogent and trustworthy. In this respect, we humbly referred to the case of Haji v. The State (2010 SCMR 650). As observed above, that Mst. Sadiqa Bibi (PW.2) was not only the mother of Mst. Fahmida Bibi, deceased and her presence at the house/place of occurrence at the relevant time was not unnatural or unusual. Due to her close and sensitive relationship with the appellant he was not likely to implicate the appellant falsely in a case involving the murder of her own daughter. Likewise, Muhammad Zahid (PW.3) was also closely related to deceased and he had also no reason to falsely implicate the appellant in an offence of this nature. Mst. Sadiqa Bibi (PW.2), eye-witness of the occurrence had also found ample corroboration from the motive and the evidence of recovery of blood stained dagger from the appellant's possession soon after the occurrence.

14. The medical evidence put forth by Doctor Talat Mehmooda (PW.7), who observed seven incise wounds on the person of deceased and opined that all injuries were ante mortem in nature and caused by sharp edge weapon and such type of injuries are sufficient to cause death in ordinary course of nature, had also provided full support to the ocular account.

15. We have also given our anxious consideration to the question of sentence to be passed against the appellant. We have also considered the fact that the appellant is a woman having a suckling baby but on the other hand, the deceased who is a young girl of 28 years was mercilessly butchered by the appellant on a petty dispute of Rs.5000/-. The appellant gave repeated blows on the vital part of the body of deceased including a blow on the left side of neck below the left ear, which shows her mindset and aggression. We have also failed to agree with the arguments of the learned counsel for the appellant that prosecution has failed to produce the motive set up in this case and that the occurrence in question was likely to have resulted on account of sudden flare up. The motive in this case was stated by the real mother who is complainant and eye-witness of the occurrence was certainly in an excellent position to state about the same due to the close relationship with the deceased even otherwise it is not expected from the real mother that she would let off actual culprit and raise her finger on an innocent lady. It is not possible for us to ignore in this context that Mst. Sadiqa Bibi (PW.2) had been cross-examined at length but she remained firm throughout the cross-examination. As regards the stated possibilities of sudden flare up suffice it to observe that criminal case involving a capital charge cannot be decided on mere hypothetical possibilities, which are otherwise of devoid of proof or substance. Thus, finding no extenuating circumstance in this case warranting reduction of the sentence passed against the appellant by the learned trial court. The appellant is sole perpetrated of the offence in question in which she committed culpable homicide of a young and innocent girl.

16. For the foregoing reasons, Criminal Appeal No. 372 of 2011 filed by Mst. Nazia Anwar, appellant is dismissed. Her conviction for an offence under section 302(b), P.P.C. is upheld and sentence of death as well as the payment of compensation passed against her by the trial court is maintained.

17. As the sentence of death passed against Mst. Nazia Anwar, appellant has been upheld and maintained by this Court, therefore, Murder Reference No. 69 of 2011 is answered in affirmative. HBT/N-18/L Appeal dismissed.