2009 P Cr (PLP)

SYED SHAHEEN MASUD RIZVI, J.

Peer Bakhsh alias Bagga, appellant was tried in relation to case F.I.R. No.7, dated 24-1-2005 registered with Police Station Kot Sabzal, District Rahimyar Khan and at the culmination of trial Ch. Abdul Hafeez learned Additional Sessions Judge, Sadiqabad convicted him under section 302(b) of the P.P.C. and sentenced him to life imprisonment and ordered him to pay an amount of Rs.I,00,000 as compensation under section 544 A, Cr.P.C. and in default of payment thereof the appellant was to further undergo six months' S.I. The benefit of section 382-B, Cr.P.C. was, however, extended to the appellant.

2. The appellant has challenged his aforesaid conviction and sentence through the instant appeal.

3. The prosecution case as unfolded in the written application Pxh.P.13. submitted by Rehmat Ali, P.W.3, on the basis of which formal F.I.R. Exh.P.B./1 was recorded. That the complainant was a labourer and resident of Chowk by-pass Ahmadpur Lamina. His mother was a midwife in Sanjar Pur Hospital and was married with Peer Bakhsh alias Bagga, appellant. The mother of the complainant and the appellant used to quarrel with each other. On 24-1-2005 at about noon time, the appellant took his wife (mother of the complainant) on motorcycle to Sanjar Pur Hospital in the presence of the complainant, Ghulam Ali, and Mst. Iqra Bibi, sister of the complainant and murdered her near Basti Peer The Goth by inflicting fire-arm injury upon her. The complainant along with Sharafat Ali, Ghulam Ali and Mst. Iqra Bibi saw the dead body of Mst. Shahida Parveen.

4. Motive behind the occurrence was that the complainant's mother (deceased) and the appellant often used to quarrel with each other due to strained relations.

5. After registration of F.I.R. Habibullah, S.-I. (P.W.10), went to the place of occurrence, secured blood-stained earth from the place of occurrence vide memo. Exh.P.C. and an empty P.5 vide memo. Exh. P. D. drafted rough site plan of the place of occurrence, prepared injury statement Exh.P.E./1 and inquest report Exh.P.G. of the dead body of Mst. Shahida Parveen deceased, got conducted post-mortem examination on the dead body and recorded the statements of the witnesses under section 161, Cr.P.C. On 4-2-2005 he arrested Peer Bakhsh alias Bagga, appellant and took into possession pistol P.6 and motorcycle Yamaha vide recovery memo. Exh.P.F. After completion of investigation, he submitted report under section 173, Cr.P.C.

6. Charge under section 302 of the P.P.C. was framed against the appellant, to which he pleaded not guilty and claimed trial. During the trial prosecution produced as many as ten witnesses.

7. P.W.2 Abdul Salam is stated to be an eye-witness. He deposed that he along with Nawaz Shah deals in the business of selling and buying the cattle; that he was going with Syed Nawaz Shah towards Baig Maher from Machhi Goth on motorcycle. Peer Bakhsh along with Mst. Shahida Parveen riding on motorcycle cross them near Peer The Goth and they were quarrelling at that time. After some distance they halted and saw back that Peer Bakhsh made a fire shot with his pistol which hit on the head of Mst. Shahida Parveen, who fell down from the motorcycle. They rushed towards Peer Bakhsh to apprehend him but he threatened them on pistol point to do the same with them and fled away while brandishing pistol. They saw Mst. Shahida Parveen in dead condition.

8. P.W.3 is Rehmat Ali complainant. Brief account of his statement has already been given above.

9. P.W.5 Lady Doctor Humaira Yasmeen conducted the post-mortem examination on the dead body of Mst. Shahida Parveen. She observed following injuries on her person:- "(1) A circular wound of entry with burn inverted margin x c.m. on the left side of skull. Wound is 6 c.m. above the left car. (2) A circular wound of exit with averted margin 1-1/2 x 1-1/2 c.m. on the occipital. Brain matter coming from the wound. Bone of left side (Priotal and occipital) clinically fractured." As per the opinion of the lady doctor the death was caused due to shock and haemorrhage. Injuries Nos.1 and 2 were individually and collectively sufficient to cause the death in ordinary course of nature. The injuries were ante-mortem and were caused by' fire-arm. Probable time that elapsed between the injury and death was thirty minutes and between death and post-mortem was twenty hours.

10. P.W. 10 Habibullah, S.-I. is the investigator of the case. He gave the details of the investigation which need not be repeated here as the same have already been given.

11. The prosecution tendered in evidence reports Exh.P.J., Exh. P. K. and Exh. P. L. of Chemical Examiner, Serologist and Forensic Science Laboratory respectively. P.Ws.. Ghulam Ali, Mst. Iqra Bibi, and Abdul Rasheed constable were given up as being unnecessary whereas P.W. Nawaz Shah was given up as having been won-over by the accused.

12. The appellant was examined under section 342, Cr.P.C. In his statement the appellant denied the prosecution allegations. He deposed that the complainant party was not happy on his marriage with Mst. Shahida Parveen, therefore, he was involved in the case falsely in order to exclude him from the property left by the deceased

13. On the conclusion of the trial, learned trial Court convicted and sentenced the appellant as mentioned in para. No. 1 of this judgment.

14. I have heard the learned counsel for the appellant as well as the learned Additional Prosecutor-General and have examined the record with their assistance.

15. The prosecution case mainly rests on the statement of P.W.2 Abdul Salam, who is stated to be the eye-witnesses of the occurrence. The gist of his statement is that while coining across the appellant and the deceased, he heard them quarrelling. After covering some distance he stopped and looked back and saw that the appellant had pulled out a pistol and fired at the head of the deceased, whereafter this witness came to the spot while the appellant ran away leaving the pistol at the spot; that Syed Nawaz Ali tried to apprehend him but he threatened them on pistol point and fled away. This P.W. is brother-in-law (Saala) of the complainant and is, thus, very closely related to him. He is a chance witness. There was no reason for him to stop and look back at the appellant and the deceased. Moreover, Syed Nawaz Ali was an independent witness but he was given up by the prosecution. The appellant has very specifically stated that the complainant was annoyed with the appellant as well as his mother because she had married the appellant against the wishes of her family. No independent corroboration of the said statement of P.W.2 is available on the file. Had there been strained relations between the deceased and the appellant, as stated by the prosecution, then the deceased Mst. Shahida Parveen would have never gone along with the appellant as alleged. For the safer administration of justice and as the prosecution has failed to prove its case beyond reasonable doubt against the appellant accept this appeal, set aside the impugned conviction and sentence passed on the appellant by the learned Additional Sessions Judge, Sadiqabad vide his judgment, dated 17-10 2006 and acquit the appellant of the charge. The appellant be immediately released, if not required in any other case. H.B.T./P-10/L Appeal accepted.