KHALID MAHMOOD Versus STATE Sardar Muhammad Latif Khan Khosa, Inayatullah Cheema , Rafique Butt

RASHID AZIZ KHAN, J. ‑‑Khalid Mahmood, appellant was found guilty for the murder of his wife Mst. Yasmin Nazli by Sessions Judge, Jhelum. He has been sentenced to death and a fine of Rs.10,000 or in default to undergo one year R.I. vide judgment dated 22‑5‑1985. Khalid Mahmood appellant has filed an appeal challenging his conviction and sentence. The case is also before us for the confirmation of death sentence. Both the matters will be disposed of by means of this judgment.

The prosecution story in brief is that Mst. Nazli Yasmin was married to Khalid Mahmood, appellant, but the relations between the spouses were strained because the appellant did not allow her to visit the house of her parents. The parents of the deceased had died and Mst. Yasmin Nazli being the eldest amongst her brother and sisters wanted to live in Rawalpindi with them most of the time. Two days before the occurrence, Farhat Abbas younger brother of Mst. Yasmin Nazli came to Jhelum in order to bring her to Rawalpindi Khalid Mahmood brother‑in‑law of Farhat Abbas refused to send her with him. In spite of the fact that he repeatedly requested him to allow his sister to come to Rawalpindi. On the night preceding the occurrence about Ishawela, Khalid Mahmood slapped Mst. Yasmin Nazli his wife when she insisted on going to Rawalpindi. However, the matter ended there. On 15‑9‑1984 at about 8‑15 a.m. Farhat Abbas, younger brother of Mst. yasmin Nazli was sitting in the courtyard of the house when he heard his sister and her husband exchanging hot words in the room. He also heard Khalid Mahmood shouting loudly that he would not send her. Simultaneously he heard the shrieks of his sister and thereafter there was silence. Farhat Abbas entered the room and saw Khalid Mahmood appellant had wrapped a Dupatta around the neck of his sister and was strangulating her. Nearby a broken Chhuri was also lying. Farhat Abbas, complainant, raised alarm and tried to rescue his sister but was pushed away. Khalid Mahmood also slipped away from the room. Farhat Abbas removed the Dupatta from the neck of his sister and found her dead. He also noticed some injuries on the back of the dead body caused with Chhuri.

2. F.I.R. Exh.P.F. was lodged by Farhat Abbas, P.W.6 with the Police Station Saddar, Jhelum on 15‑9‑1984 at 9‑30 a.m. It was recorded by Zafar Ali P.W.7. After the registration of the case, it was handed over to Muhammad Sarwar S.I. P.W. 8 for investigation, who reached the spot alongwith the complainant at 10‑30 a.m. He prepared the injuries statement Exh.P.G. and inquest report Exh.P.H. He found Dupatta P.6 from the Charpai of the deceased which was taken into possession vide memo Exh.P.C. A Chhuri P.7 with its broken handle was secured vide memo Exh.P.D. He despatched the dead‑body for post‑mortem examination. Khalid Mahmood appellant, was arrested on 16‑9‑1984. After due investigation he challanged the accused.

3. Post‑mortem examination on the dead body of the deceased was conducted by Dr. Zainul Abadin P.W.1. According to him, the eyes and mouth were closed, blood‑stained froth was coming out of the nostrils, rigor mortis was not present. He found 10 injuries on her person. In his opinion the death was due to asphyxia, which was caused due to injuries Nos. 1 to 5. The other injuries were superficial and three of them were caused by sharp‑edged weapon whereas two were caused with blunt weapon. Death according to him was immediate. Time between the death and post‑mortem was about 24 hours.

4. The prosecution in support of its case had produced 8 witnesses in all. The eye‑witness account has been furnished by Farhat Abbas P.W.6, younger brother of the deceased. Recovery of Dupatta P.6 and Chhuri P.7 near the dead body of the deceased was witnessed by Ch. Muhammad Sharif P.W.3, Vice‑Chairman Union Council. P.W.4 Raja Muhammad Sarwar before whom Khalid Mahmood accused is alleged to have made confessional statement was declared hostile. The case was investigated by Muhammad Sarwar S.I. P.W.8. The rest of the witnesses are of formal nature, therefore, need not be discussed here.

5. At the conclusion of the prosecution case Khalid Mahmood appellant was examined under section 342, Cr. P.C. He has denied every incriminating evidence against him. He has further stated that at the time of commission of the offence, he was not in Jhelum but had gone to Lahore. He has further stated that case against him was registered because of suspicion.

6. The learned counsel for the appellant has contended that the motive for the commission of offence has not been proved at all. He has argued that the parents of Mst. Yasmin Nazli, deceased had died many years before she was married. Therefore, in such circumstances there was no occasion for her to insist for going to Rawalpindi to live with her younger brother and sisters. It is further contended that the younger brother and sisters of the deceased were grown up people who did not need the motherly care of the deceased. It‑is also submitted that the deceased used to visit Rawalpindi frequently and the appellant never objected to it. Therefore, even if the deceased had insisted for going to Rawalpindi on the day of occurrence, it would not have been a cause for which she could be done to death.

It is contended that Farhat Abbas P.W.6 may not be relied upon as he was not present at the relevant time. It is argued that according to the evidence he came to the house of the deceased on 13‑9‑1984 and was refused by the appellant on the same day. In such circumstances, there was no occasion for him to have stayed till 15‑9‑1984. It is submitted that he being younger brother of the deceased, is an interested witness and may not be relied upon unless his statement is corroborated by some independent evidence which is not available in the present case. It is submitted that the F.I.R. in the present case was registered after deliberation and consultation. It is argued that the conduct of P.W.6 Farhat Abbas is most unnatural which suggests that he was not present at the time of occurrence. According to his own statement he heard the shrieks and went inside the room, his sister was being done to death but he neither tried to apprehend the accused nor intervened. It is contended that had the complainant been present at the spot, he certainly would have interfered. It is further submitted that occurrence did not take place at the time given by the prosecution because according to the doctor, rigor mortis were not present on the dead body which disappear after 36 hours. It is submitted that if the appellant wanted to commit the murder he would not have caused simple injuries on the deceased with Chhuri. Lastly it has been contended that an application under section 540, Cr.P.C. was moved with the request that the complainant may be recalled for further cross‑examination but was disallowed. This fact has greatly prejudiced the case of the appellant. Had he been allowed to cross‑examine the complainant, he could have proved his innocence beyond any doubt.

7. The eye‑witness account in the case has been furnished by Farhat Abbas, P.W.6. According to him he came to the house of the deceased on 13‑9‑1984 at evening time to take her to Rawalpindi. He asked the appellant to allow his wife to accompany him to Rawalpindi which was refused that very day. The next day he again requested him but failed. He also requested the father of the appellant to persuade his son, to allow his wife to visit Rawalpindi. All the efforts done by him failed. On 15‑9‑1984, while having breakfast, he heard the shrieks of his sister when he entered the room, he saw, she was being strangulated by the accused/appellant. Farhat Abbas P.W.6 has explained the reason for staying in his sister's house till 15‑9‑1984. It is in evidence that he came to his sister's house in the evening. The next day he made efforts to persuade the appellant for seeking permission for her to visit Rawalpindi. In such circumstances, we hold that it was not unnatural on his part to have stayed there when he was flatly refused by the appellant on 13th evening. We have gone through the statement of Farhat Abbas, P.W.6 and find no infirmity in it. He has not been suggested any motive for the false involvement of the appellant in the case. It is also difficult to imagine that Farhat Abbas would involve his real brother‑in‑law in the commission of murder of Mst. Yasmin Nazli without any motive. The contention of the learned counsel that the witness was not present at the spot but was called from Rawalpindi is also devoid of any force. The natural course of event in that case would have been to get a case registered and then inform the brother of the deceased which has not been done in the present case. Even otherwise, it is in evidence that police came to the spot at 10‑30 a.m. and Farhat Abbas was with them if he had been called from Rawalpindi he could not have been with the police at that time. According to Farhat Abbas, the whole incident took place within a period of 1 minutes. In such circumstances, we do not find it unnatural if he did not make any attempt to apprehend the accused at the spot. He has stated that he tried to rescue his sister from the clutches of the accused but was pushed aside and simultaneously the appellant fled away from the room. Farhat Abbas P.W.6 must have been in a shock, therefore, he did not chase the appellant or make any attempt to apprehend him is quite plausible. We hold that Farhat Abbas P.W.6 was present at the spot and is a truthful witness, therefore, rely upon his statement.

The motive in the instant case has been furnished by Farhat Abbas P.W.6. According to him Mst. Yasmin Nazli, his sister wanted to live in Rawalpindi with her younger sisters and brother. but the appellant did not allow her. He has not been suggested any other reason apart from one given by him as to why the deceased wanted to stay in Rawalpindi. It is not the case of the defence nor the appellant has said so in his statement under section 342, Cr.P.C. that there was any other reason apart from the one given by the prosecution. She being the eldest in the family naturally would have felt the motherly affection for her younger brother and sisters in the absence of their mother. The appellant was working in Saudi Arabia during the days of occurrence and had come to Pakistan on holidays. In such circumstances, he would have resisted his wife's going to Rawalpindi when he was in Pakistan only for a short period. In such circumstances, we hold that the motive is proved.

The submission of the learned counsel for the appellant that there has been delay in the registration of the case is also devoid of any force. His sole ground is that no case was registered with the police station on 14‑8‑1984 and only the present case was registered on 15‑9‑1984. His argument is that in the absence of any other case having been registered with the said Police Station on the dates given above, the time of occurrence could have been manoeuvred by the police. The learned counsel has further relied upon the statement of doctor Zainul Abedin P.W.1 who in his statement has stated that rigors mortis were not present at the time of post‑mortem examination. In cross‑examination he has stated that rigors mortis completely disappear after 36 hours of death. It is submitted that since the post‑mortem examination was conducted on 16‑9‑1984 at 8‑30 a.m., therefore, the occurrence could not take place at 8‑15 a.m. on 15‑9‑1984. The doctor has further stated that rigors mortis spread throughout the dead body after six hours of its onset. He has further stated that they start appearing after about two hours of death. There could not be any general rule with regard to the disappearing of the rigors mortis as has been discussed by John Glaster in his book titled "Medical Jurisprudence Toxicology" 8th edition at page 116. He states that period of invasion of rigors mortis can only be stated in general terms as there would be so many modifying factors. For instance, a muscularly strong person at the time of death, rigors mortis will set in late and their duration would also be longer but in the case of feeble or exhausted persons they would appear more rapidly and the duration would be shorter. Relying upon the authority, we hold that there is neither any conflict between the medical evidence and the eye‑witness account nor there is any delay in the registration of the case. The last contention of the learned counsel for the appellant is that an application under section 540, Cr. P. C . had been moved praying for the resummoning of Farhat Abbas P.W.6 for further cross‑examination. It is contended that had the said application been allowed the accused would have proved his innocence. The reason for moving such an application is that the defence alleged that Farhat Abbas P.W.6 has written a letter to his sister Mst. Yasmin Nazli on 13‑9‑1984 which the defence wanted to put to him. It is argued that if the witness had written a letter to the deceased on 13‑9‑1984 then there was no reason for him to go to Jhelum that very day. The appellant in his statement under section 342, Cr. P . C . has explained that the said letter was received by his brother who brought it to his notice "yesterday" i.e. 15‑5‑1985. It is strange that the letter is alleged to have been written on 13‑9‑1984 whereas the statement of P.W.6 was recorded on 14‑5‑1985. He was cross‑examined at length. The defence had put every suggestion to him except the said letter. In these circumstances we fail to understand why the letter was not brought to the notice of the appellant or his counsel earlier. The brother of the appellant has also not appeared as a witness to depose that he received the letter and retained it without informing any one for about a year. In such circumstances, we hold that the application moved under section 540, Cr.P.C. was rightly rejected by the trial Court.

The upshot of the discussion is that, we hold Farhat Abbas P.W.6 is a truthful witness, and was present at the spot. The prosecution has successfully proved the motive for the commission of offence. There is no contradiction between the ocular account and the medical evidence. Therefore, we hold that the involvement of the appellant in the commission of the murder of Mst. Yasmin Nazli is proved beyond doubt.

We have given serious consideration to the question of sentence and have come to the conclusion that the facts and circumstances of the case do not call for the extreme penalty of death sentence. It is in evidence as well as in the F.I.R that the deceased was adamant for living in Rawalpindi. It is also in evidence that the appellant had come on two months leave from Saudi Arabia, therefore, he certainly would have wanted his wife to stay with him for the said period. Her insisting for staying in Rawalpindi would have caused annoyance and some provocation to the appellant. It is also not clear as to what transpired between the appellant and the deceased inside the room immediately before the commission of offence. Therefore, relying upon Muhammad Din and another v. Nur Hussain and others 1985 S C M R 495 and Abdul Majid v. The State P L D 1976 Lahore 1476, the possibility of the accused /appellant having been provoked cannot be ruled out. We, therefore, convert the sentence of death to life imprisonment. The fine awarded to the appellant and further imprisonment in default thereof is maintained. The appellant shall also be given the benefit of section 382‑B, Cr.P.C. The appeal in the terms stated above is disposed of. The death sentence is not confirmed.

K . B . A . / K‑37/L Appeal partly accepted.