THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Crl. Jail Appeal No.S-62 of 2015
Appellants : Tarique and Akbar, through Mr. Irfan Badar Abbasi, advocate.
Complainant : Moula Bux Mastoi, through Mr.Makhdoom Syed Tahir Abbas Shah, advocate.
Respondent : The State, through Mr. Aitbar Ali Bullo, D.P.G.
Date of hearing: 19.11.2020.
Date of decision: 03.12.2020.
J U D G M E N T .
Naimatullah Phulpoto, J- Appellants Tarique son of Akbar and Akbar son of Misri (father and son) were tried by Mr.Simkan Hussain Mughal, Additional Sessions Judge, Shahdadkot, for offences under sections 302, 34, PPC. On the conclusion of the trial vide judgment dated.09.09.2015, both the appellants were convicted under section 302,(b) PPC and sentenced to imprisonment for life as Tazir. Appellants were ordered to pay Rs.300,000/- each as compensation under section 544-A, Cr.P.C to the legal heirs of deceased Mst. Naheed, in case of default in payment thereof, appellants were ordered to suffer S.I for six months. Appellants were extended to benefit of section 382-B, Cr.P.C.
2. Brief facts of the prosecution case as disclosed in the FIR lodged by complainant Moula Bux are that two years prior to this incident marriage of daughter of the complainant Mst. Naheed, aged about 24/25 years (now deceased) had taken place with appellant Tarique Mastoi. Out of the said wedlock, a male child was born. It is alleged that house of accused Tarique Mastoi is situated adjacent to the house of the complainant. On 24.06.2011, at night time, complainant was sleeping in his house along with his family. At about 3.00 a.m., he heard cries of his daughter Mst.Naheed, coming from the house of her husband. Thereafter, he along with his wife Mst. Nazeeran and relative Younis Mastoi went running to the house of accused Tarique Mastoi. It is alleged that on the light of bulb, he saw accused Tariq armed with knife, Amir, Akbar and Abid armed with hatchets and Mst. Janat wife of appellant Akbar were dragging his daughter Mst. Naheed from her arms and legs towards the shop situated in front of the house of accused Tariq and Akbar. It is further alleged by the complainant that all the accused persons took his daughter inside the shop, then they saw from the window of shop on bulbs light that accused Tariq committed the murder of his wife (Mst. Naheed) by cutting her throat with the knife. Thereafter, all the accused ran away from the place of incident. Complainant saw his daughter was lying dead, due to odd hours of the night he remained there and in morning complainant went at Police Station Sanjar Bhatti, where he lodged the report against the accused.
FIR was recorded on 24.06.2011 at 0815 hours vide Crime No.28 of 2011 at Police Station Sanjar Bhatti, under section 302, 34, PPC.
3. Police referred dead body of Mst.Naheed to the hospital for conducting her postmortem examination and report. I.O visited the place of Wardat, collected blood stained earth and bed sheet in presence of the mashirs, prepared such mashirnama and sealed blood stained earth and bed sheet. Both appellants were arrested on 05.07.2011. During interrogation, appellant Tarique prepared to produce knife and rope used in the commission of the offence and voluntarily led police and produced the same lying on the roof of his house in presence of the mashirs. Investigation Officer recorded 161, Cr.P.C statements of the eyewitnesses. On the conclusion of the usual investigation, challan was submitted against accused Tariq and Akbar. Accused Amir was shown as absconder in the challan.
4. Trial Court framed charge against both the accused Tariq and Akbar under section 302, r/w Section 34, PPC at Ex-5. Both accused pleaded not guilty and claimed to be tried.
5. During trial, appellant Tariq sent an application through Superintendent, Central Prison, on 24.02.2014, to the trial Court, in which he pleaded guilty and stated that his father appellant Akbar was innocent in this case. Learned ADPP closed the prosecution side to the extent of accused Tariq on 07.04.2014 because accused Tarique admitted his guilt.
6. Trial Court recorded statement of the accused Tariq under section 342, Cr.P.C at Ex-11, in which he admitted that he had committed the murder of his wife Mst. Naheed, in the name of honour. In reply to the question No.5, Have you anything else to say? Accused Tariq replied as under :
"I have committed murder of deceased Mst. Naheed in the name of honour and anger and ready to bear the sentence. I pray to acquit co-accused Akbar who is my father . I have pleaded guilty to save my father from the agony of trial."
7. Trial Court despite that recorded Prosecution evidence, as the offence carried capital punishment. Prosecution examined Dr. Shakuntla (PW-1) at Ex.13, Muhammad Saffar (PW-2) at Ex-14, Irshad Ali (PW-3) at Ex-15, I.O, he produced report of the ballistic expert Ex-15.P, report of Chemical Examiner Ex-15.Q, Mst. Nazeeran(PW-06) was examined at Ex-17, Kouro Khan (PW-7), at Ex-18. Thereafter, learned ADPP closed the prosecution side vide his statement at Ex-19.
8. Statement of appellant Tariq was recorded second time at Ex-20, in which he claimed false implication in this case and raised plea that during trial he had pleaded guilty in order to get acquittal of his father. He had further stated that P.Ws have deposed against him due to matrimonial dispute. However, accused Tariq neither examined himself on oath, nor led any defence evidence. Appellant Akbar denied all the prosecution allegations, so also the recovery of the blood stained rope. Appellants did not lead any defence. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, convicted both appellants Tarique and Akbar under section 302(b), PPC and sentenced them to imprisonment for life as Tazir as stated above. Hence this jail appeal has been filed.
9. Facts of this case as well as evidence find an elaborate mentioned in the judgment of trial Court, hence the same need not to be repeated to avoid unnecessary repetition.
10. Mr. Irfan Badar Abbasi, learned advocate for the appellants mainly argued that presence of the eyewitnesses Moula Bux and Mst. Nazeeran, parents of the deceased at such odd hours of the night in the house of appellants was highly unbelievable; that prosecution has failed to examine independent witness Muhammad Younis; that all the P.Ws were closely related to the deceased; that distance between the place of incident and Police Station is 17 kilometers but the FIR was lodged with the delay of about 05 hours; that motive as set up in the FIR was quarrel between deceased and her mother-in-law over domestic affairs. It is submitted that prosecution has failed to prove the motive through some independent piece of evidence. Lastly, it is argued that the prosecution case was highly doubtful and prayed for acquittal of the appellants. In support of his contentions, he has relied upon the cases of Haji Muhammad Sadiq v. Liaquat Ali and others (2014 SCMR 1034), Muhammad Abbas v. The State (PLD 2020 Supreme Court 620), Sufyan Nawaz and another v. The State and othrs (2020 SCMR 192).
11. Mr. Aitbar Ali Bullo, learned D.P.G, argued that appellant Tariq admitted his guilt before the trial Court by moving an application but the trial Court recorded entire prosecution evidence and prosecution proved its case. Learned D.P.G further argued that ocular evidence was corroborated by the medical evidence; that houses of the eyewitnesses/parents are situated adjacent to the house of the accused Tariq as such presence of the eyewitnesses at the time of incident in the house of appellants was natural as they were attracted on the cries; learned D.P.G argued that motive was assigned against main accused Tariq. Appellant Akbar was armed with hatchet but it was not used by him; that there is no reliable evidence that appellant Akbar in furtherance of the common intention had committed murder of deceased. Learned D.P.G did not support the impugned judgment to the extent of appellant Akbar and prayed for dismissal of appeal of appellant Tariq.
12. Mr. Makhdoom Syed Tahir Abbas Shah, learned advocate for the complainant argued that both appellants in furtherance of common intention committed the murder of deceased; that motive was attributed to both accused; that there is no space to draw distinction in the role of both the accused. He has relied upon the case of Ali Khan v. The State reported as (2005 SCMR 1585). Learned advocate for the complainant prayed for dismissal of appeal filed by both the appellants.
13. From the close scrutiny of the prosecution evidence, I have come to the conclusion that prosecution case is primarily structured upon ocular account furnished by complainant Moula Bux and Mst.Nazeeran, parents of the deceased. Both eyewitnesses have clearly deposed that Mst. Naheed was married to the appellant Tariq. House of the complainant/father of the deceased is situated at the distance of ten paces from the shop of accused Tariq where murder of his daughter was committed. Incident took place on 24.06.2011 at 03:00 a.m.(night), at that time complainant was sleeping along with his wife Mst. Nazeeran and relative Muhammad Younis. They heard cries of daughter from the house of her husband. Complainant and his wife went running there and saw that accused Tariq armed with knife and accused Akbar armed with hatchet and absconding accused Amir armed with hatchet, Abid armed with hatchet and Mst. Janat were standing there. Accused persons were dragging Mst. Naheed towards the shop. Thereafter, accused Tariq cut throat of Mst. Naheed with his knife and she expired at the spot. Accused persons ran away. Mst. Nazeeran, the mother of deceased had also witnessed the incident and deposed that her daughter Mst. Naheed was married with accused Tariq, out of said wedlock she had born a child aged about 1 1/2 years. Present incident occurred on 24.06.2011 at 03:00 a.m.(night). She heard the cries of daughter from the house of her husband and went running along with complainant and Muhammad Younis. Eyewitnesses saw that accused Tariq was armed with knife and Akbar, Abid, Amir were armed with hatchets and Mst. Janat was empty handed. Accused persons dragged Mst. Naheed to the shop, where bulbs were burning. Due to fear, complainant party could not save the life of Mst. Naheed. She has further deposed that accused Tariq cut throat of Mst. Naheed with knife. Other accused had also inflicted hatchet blows to Mst. Naheed. Learned advocate for the appellant has mainly contended that there was delay in lodging of the FIR, for which no plausible explanation has been furnished. It may be observed that delay in lodging of the FIR has been explained by the complainant that he could not go to the Police Station due to the odd hours of the night and he had fear of the accused persons. Delay in lodging of the FIR would not be fatal to the case of prosecution for the reasons that appellant Tariq was the husband of the deceased. Houses of both parties were situated adjacent to each other. Bulb was also burning in the shop in front of the house of accused Tariq. Moreover, it appears that no benefit was drawn by the complainant party from lodging the FIR with delay. Ocular evidence is corroborated by the medical evidence. Lady Dr. Shakuntla had deposed that on 24.06.2011 at 11:00 a.m she conducted postmortem examination of deceased Mst. Naheed aged about 22 years. From the external as well as internal examination of the deceased, doctor was of the opinion that death of deceased occurred as a result of injuries caused by the sharp cutting substance. Death was instantaneous and time between death and postmortem examination was about eight hours. During investigation on spy information accused Tariq was arrested by ASI Irshad Ali in presence of mashirs and during interrogation prepared to produce knife used by him in the commission of the offence. Accused Tariq led the police on 06.07.2011 and produced knife and rope from his house. It was sealed by ASI in presence of the mashirs and sent to the Chemical Examiner and the report was positive. In this case accused Tariq had committed murder of his wife and incident has been witnessed by the parents of the deceased. Eyewitnesses had no motive to falsely depose against accused persons. As regards to motive for commission of offence is concerned, according to prosecution case, there was dispute over domestic matters between deceased and mother of appellant Tarique, such disputes are common in our society. Motive of such nature cannot be proved by independent evidence. As regards the plea raised by appellant in his first statement of accused recorded under section 342, Cr.P.C is concerned, Appellant/husband of deceased lady confessed that he had committed murder of his wife in the name of honour. Appellant failed to substantiate such plea at trial. Deceased was deprived of both her life and reputation. Killing was never honourable. The Holy Qur'aan and the law of Pakistan did not permit killing in the name of honour as held in the case of Muhammad Abbas v. State (PLD 2020 SC 620). No material discrepancy in the evidence of prosecution witnesses has been brought on record. Non-examination of PW Younis would not be fatal to the case of prosecution, for the reasons that prosecution had already examined two eyewitnesses, it was choice of prosecution to examine any witness in support of its case. Moreover, law does not fix any particular number of witnesses for establishing the guilt of accused.
14. As regards the contention of defence counsel that both eyewitnesses were parents of deceased lady thus, interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Both eyewitnesses who are parents of deceased were attracted on the cries of daughter and saw that accused Tariq committed murder of his wife by means of knife, corroborated by medical evidence. Eyewitnesses had no motive to falsely implicate accused Tarique in the murder of their daughter, who had left behind minor child of about two years. It would also be pertinent to mention here that related witnesses some time, particularly, in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. Reliance is placed upon the cases of Sheraz Tufail v. The State (2007 SCMR 518) and Khair Muhammad and another v. State (2007 SCMR 158). It is also the matter of record that appellant Tarique submitted an application before trial Court in which admitted the guilt that he had killed his wife and his father was innocent. Statement of accused was recorded at Ex-11, in which accused admitted that he has committed murder of his wife but his father was innocent. Trial Court recorded statement of accused Tarique but he failed to explain the murder of his wife in his house at night time. These incriminating pieces of evidence also go against accused Tarique.
15. Accordingly, I find that the prosecution has proved its case against appellant Tarique beyond reasonable doubt on the basis of unimpeachable and confidence inspiring ocular evidence corroborated by the medical evidence, recovery of knife and positive report of the Chemical Examiner. The accumulative effect of the facts and circumstances when discussed in this case is that prosecution has established case against appellant Tariq to the hilt, hence, leaving no room for interference. Consequently, the appeal is dismissed to the extent of accused Tariq and conviction and sentence passed by the learned trial Court vide judgment dated.09.09.2015 is maintained to the extent of accused Tariq.
16. However, case of appellant/accused Akbar was distinguishable. Prosecution has failed to bring on record evidence to satisfy the Court that appellant Akbar had shared common intention with main accused Tariq. According to the case of prosecution, accused/appellant Akbar was armed with hatchet which was neither used by him nor recovered from him. This fact is evident in the evidence of complainant Moula Bux (PW-5). Moreover, according to the doctor, deceased had sustained a single injury at neck. Motive was also not attributed to accused Akber. I have come to the conclusion that it would be unsafe to maintain the conviction of accused/appellant Akbar. Since no specific overt act has been attributed to appellant Akbar, his role was distinguishable from main accused Tarique. Role of accused Akbar was also not corroborated by some other independent piece of evidence, Hence, by way of abundant caution, while extending benefit of doubt, appellant Akbar is acquitted of the charge, he shall be released forthwith if not required in any other case.
16. In the view of above, appeal is disposed of in the above terms.
Judge