2000 P Cr (PLP)

ASIF SAEED KHAN KHOSA, J.

Allah Rakha appellant was convicted for an offence under section 302, P.P.C. by the learned Additional Sessions Judge, Toba Tek Singh vide judgment, dated 13-12-1992 and was sentenced to death and to pay an amount of Rs.25,000 to the heirs of Mst. Kausar Bibi deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo R.I. for six months. Allah Rakha has challenged his conviction and sentence before this Court through Criminal Appeal No.1098 of 1992 which has been heard by us alongwith Murder Reference No.472 of 1992 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution case unfolded in the F.I.R. was that Muhammad Anwar complainant was a resident of Mohallah Sharifpura, Main Bazar Street ' No.5, Faisalabad and about 14/15 years ago he had given his daughter Mst. Kausar Bibi -in marriage to his nephew Muhammad Nawaz resident of Chak No.311/J.B. situated within the area of Police Station Sadar, Gojra, District Toba Tek Singh. The complainant's daughter Mst. Kausar Bibi was blessed with five children and was living happily with her husband Muhammad Nawaz. According to the complainant his daughter had many a time. complained to him that Allah Rakha appellant, brother of Mst. Kausar Bibi's husband, used to quarrel with her and used to tease dyer besides threatening to kill her. The complainant had always provided solace to her daughter and had advised her to remain patient. In the evening of 14-6-1992 the complainant and his first cousin R Ghulam Hazoor P.W. had gone to the house of the complainant's daughter and even in their presence during the taking of meals Allah Rakha appellant had teased the complaint's daughter Mst. Kausar Bibi saying that she did not provide food to him properly and also that she did not respect him. The appellant had then left the house abusing Mst. Kausar Bibi and issuing threats to her. At about 6-00 a.m. on 15-6-1992 'the complainant and Ghulam Hazoor P.W. were sitting and chatting in the courtyard of the house of the complainant's daughter Mst. Kausar Bibi when the latter was cleaning the courtyard with a broom: The other members of the family had gone out of the house at that time. In the meantime Allah Rakha appellant entered the said house while holding a Sharp-edged Datar in his hand and raising Lalkaras that he would take revenge from Mst. Kausar Bibi- for not respecting him and for not providing him good food. The appellant then attacked Mst. Kausar Bibi and gave a number of blows with his Datar on her neck whereupon she fell down. While defending herself Mst. Kausar Bibi also received injuries on her right thumb and a finger of the hand. ,Soon thereafter Mst. Kausar Bibi succumbed to her injuries at the spot. During that occurrence Allah Rakha appellant had also been threatening the complainant and Ghulam Hazoor P.W. not to come near him. After committing the said murder the appellant left the house whereafter the complainant and Ghulam Hazoor P.W. raised hue and cry which attracted a number of residents of the village including the appellant's mother Mst. Kalsoom Bibi

3. Leaving the dead body of Mst. Kausar Bibi at the place of occurrence Muhammad Anwar complainant left for ,reporting the matter to the police. F.I.R. No.-177 was recorded at 9-00 a.m. on the same day at Police Station .Sadar, Gojra, District Toba Tek Singh for an offence under section 302, P.P.C. on the statement of Muhammad Anwar complainant which was recorded by Anwar-ul-Haq, Inspector/S.H.O. (P.W.10).

4. After recording the F.I.R. Anwar-ul-Haq, Inspector/S.H.O. (P.W.10) took up the investigation of this case, went to the place of occurrence, inspected the same, prepared an injury statement and an inquest report regarding the dead body and sent the same to mortuary for autopsy. He also collected blood-stained earth from the place of occurrence, prepared a rough site plan thereof and recorded the statements of witnesses. On the same day Allah Rakha appellant produced before him a blood-stained Datar, which was taken into possession by him.

5. Post-mortem examination of the dead body of Mst. Kausar Bibi was conducted by Dr. Muhammad Ajmal Khan (P.W.11) at 4-00 p.m. on 15-6-1992. He found six incised wounds on the dead body which were all ante-mortem and had been caused by sharp-edged weapon. In the opinion of the doctor the cause of death was shock due to haemorrhage caused by injuries Nos. l and 2 which were fatal and sufficient to. cause death in the ordinary course of nature. Probable time elapsing between injuries and death was found by the doctor to be immediate and that, between death and post-mortem examination was opined by the doctor to be about seven hours.

6. On the same day,. i.e. 15-6-1992 Anwar-ul-Haq, .Inspector (P.W.10), the Investigating Officer, received the blood-stained last-worn clothes of the deceased. Subsequently, he got a formal site plan of the place of occurrence prepared by a draftsman. On the same day i.e. 15-6-1992 Allah Rakha appellant was arrested by him. Thereafter, he completed the other formalities, concluded his investigation and submitted a challan against the appellant .

7. At the commencement of the trial a charge under section 302, P.P.C. was framed by the learned trial Court against the appellant to which he pleaded not guilty and claimed a trial.

8. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. Muhammad Anmrar complainant (P.W.8) and Ghulam Hazoor (P.W.9) furnished the ocular account of the incident in question and also stated about the motive. The medickil evidence was provided by Dr. Muhammad Ajmal Khan (P.W.11). Anwar-ul-I laq, Inspector/ S.H.O. (P.W.10) deposed about the recovery of weapon of offence from the appellant and also stated about various steps taken by him during the investigation of the case. The remaining evidence produced by the prosecution was more or less of formal nature.

9. In his statement recorded under section 342, Cr.P.C. Allah Rakha appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence.- He also maintained that he had been falsely involved in this case which was in fact one of a blind murder. However, he opted not to make any statement on oath under section 340(2), Cr.P.C. and also did not produce any witness in his defence.

10. At the conclusion of the trial the learned Additional Sessions Judge, Toba Tek Singh found Allah Rakha appellant guilty of the charge and convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected murder reference before this Court.

11. During the pendency of this appeal before this Court an application (Criminal Miscellaneous No.790/M of 1998) was submitted by the appellant claiming that he had entered into a compromise with the heirs of the deceased and, therefore, he should be acquitted on the basis of the same. However, the appellant or his learned counsel failed to substantiate that assertion either by producing the heirs of the deceased before this Court or by tendering their affidavits in support of such a compromise. The learned counsel for the complainant has categorically maintained that there has been no compromise between the parties. On account of that we had no option but to dismiss the said application based on the alleged compromise. In these circumstances we required the learned counsel for the appellant to address arguments on the merits of the case.

12. We have heard the learned counsel for the parties and have gone through the record with their assistance. At the outset the learned counsel, for the appellant has stated that he does not challenge the conviction of the appellant recorded by the learned trial Court but, according to him, there are certain features of this case which require a sympathetic consideration in the matter of sentence. In this context the learned counsel for the appellant has stated that the motive set up by the prosecution had remained unproved and, therefore, it was quite likely that the appellant had committed the murder of his sister-in-law under the impulse of grave and sudden provocation provided to him by some insolent behaviour of the deceased. As against that the learned counsel for the State and the complainant have maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and also that there were no mitigating circumstances available in this case for reducing the sentence of the appellant.

13. After hearing the learned counsel for the parties and going through the record we have felt no hesitation in concluding that the prosecution had indeed succeeded in proving its case against the appellant beyond reasonable doubt. It was daylight occurrence and the F.I.R. had been lodged with sufficient promptitude wherein the appellant had been nominated as the sole perpetrator of the offence in question. Muhammad Anwar complainant wag not only the father of Mst. Kausar Bibi deceased but he was also a maternal-uncle of the appellant. His presence at the house of his daughter at the relevant time was not unnatural or unusual. Due to his close and sensitive relationship with the appellant he was not likely to implicate the appellant falsely in a case involving the murder of his own daughter. Likewise, Ghulam Hazoor (P.W.9) was also closely related to the deceased as well as the appellant and he had also no reason to falsely implicate the appellant in an offence of this nature. We have also noticed that both the eye witnesses produced by the prosecution were not seriously cross-examined by the defence regarding the main incident. The said eye-witnesses had also found ample corroboration from the motive and the evidence of recovery of a blood stained Datar from the appellant's possession soon after the occurrence. The medical evidence had also provided full support to the ocular account. In view of this state of the evidence produced by the prosecution we feel that the learned counsel for the appellant is quite justified in not challenging the conviction of the appellant recorded by the learned trial Court,

14. We have also given our anxious consideration to the question of sentence to be passed against the appellant. In this context we have noticed that the appellant had mercilessly butchered an innocent lady present in her own house by giving repeated Datar blows to her. We have also noticed in this regard that the deceased was a sister-in-law (brother's wife) of the appellant and they were also otherwise first cousin inter se. We have taken note of the fact that despite such close relationship between the parties the appellant has not so far been forgiven by his own brother, i.e. the deceased's husband or any other heir of the deceased. This shows that the murder of the deceased by the appellant is considered to be un-forgivable even by his own blood relations- We have also failed to agree with the argument of the learned counsel for the appellant that the prosecution had failed to prove ;the motive set up in this case and that the occurrence in question was likely to have resulted on account of a sudden flare up. The motive in this case was stated by the complainant and the other eye witness who were in good position to state about the same due to their close relationship with the deceased and the appellant. It is not possible to ignore in this context that both the said witnesses had not been cross-examined at all regarding their assertion about the motive. As regards the stated possibility of a sudden flare up suffice it to observe that a criminal case involving a capital E charge cannot be decided on mere hypothetical possibilities which are otherwise devoid of any 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 same is hereby upheld and affirmed.

15. For the foregoing reasons Criminal Appeal No.1098 of 1992 filed by Allah Rakha appellant is dismissed, his conviction for an offence under ' section 302(b), P.P.C. is upheld and the sentence of death as well as the order of payment of compensation passed against him by the learned trial Court 'are maintained. It is, however, ordered that in case of his failure .to pay compensation he shall suffer S.I. for six months instead of R.I. for six months.

16. As the sentence of death passed against Allah Rakha appellant has been upheld and maintained by this Court, therefore, Murder Reference No.472 of 1992 is hereby answered in the affirmative. Death sentence is confirmed. Q.M.H./M.A.K./A-142/L Appeal dismissed.