MUHAMMAD ASHRAF Versus THE STATE

Muhammad Ashraf (25‑30) and Muhammad Sabir (30‑31) were tried by the Additional Sessions Judge, Faisalabad, for having murdered Mst. Latifan Bibi on 15‑1‑1986 at 3‑00 a.m. in 'her house in the abadi of Chak No. 240/GB, at a distance of 3 miles from Police Station Jarranwala. Learned trial Judge convicted both of them under section 302/34, P.P.C. vide judgment dated 28‑3‑1987 and sentenced them to imprisonment for life plus to pay a fine of Rs.2,000 each in default whereof to suffer further R.I. for one year each. Both of them have also been directed to pay a sum of Rs.5,000 each as compensation to the heirs of the deceased, in default whereof to undergo R.I. for six months each.

Muhammad Sabir was also convicted under section 404, P.P.C. and sentenced to undergo R.I. for one year.

2. The convicts have filed appeal.

3. F.I.R. Exh.P.B. was registered at the Police Station on the same day at 6‑00 a.m. by Feroze Ali Khan, S.I. P.W. 6 on the statement of Mst. Mussarat Nazir P.W.2. According to F. I. R. Muhammad Ashraf appellant developed friendship with Shabbir Hussain P,W. brother of the complainant. As a result of closeness developed between them, Muhammad Ashraf appellant offered to give the hand of his sister to Shabbir Hussain P.W. and in exchange demanded the hand of the complainant for marriage with him. During this, Muhammad Ashraf appellant and the complainant got themselves photographed jointly. At the time of proposals for marriage, Muhammad Ashraf had given out himself to be a Rajput. Some time later, the complainant's family came to know that he was not a Rajput and in fact was a Machhi, whereupon Mst. Latifan Bibi deceased, mother of the complainant refused to give the hand of the complainant to Muhammad Ashraf.

Some two months before the occurrence, Muhammad Ashraf appellant came to the house of the complainant accompanied by Sabir. Muhammad Ashraf appellant pressed Mst. Latifan Bibi for the hand of the complainant but she refused and strictly told him not to visit them again. Muhammad Ashraf left the house saying that in case he was not given the hand of the complainant he will murder the complainant and her mother both.

It is stated that on the night of occurrence, the complainant was sleeping in the residential room along with sisters and brothers while Mst. Latifan Bibi, their mother, was sleeping in the Duri. She woke up on hearing shrieks of her mother at about 3‑00 a.m. She came out of the room after awakening her brothers Shabbir Hussain and Zulfiqar P.Ws. She saw Sabir appellant holding her mother from hands and Muhammad Ashraf appellant strangulating her. When the complainant went ahead Muhammad Ashraf appellant left her mother and caught the complainant from neck and pressed her. The brothers of the complainant gave a lalkara to the accused whereupon both of them brought out khanjars and told them that in case they intervened, they will be done to death. The accused then ran way. Mst. Latifan Bibi died as a result of strangulation. The complainant noted that the Koka (an ornament worn in the nose) of her mother was missing.

The complainant had suffered injuries on her face, ear and neck during the struggle with Muhammad Ashraf. Muhammad Sarwar given up P.W. and some other men and women also arrived on the spot.

4. Feroze Ali Khan, S.I. P.W.6 visited the spot after recording F.I.R. Exh.P.B. He despatched the dead body for post‑mortem examination, after preparing necessary papers.

Both the appellants were arrested by him on 17‑1‑1986. Muhammad Ashraf appellant led to the recovery of dagger P.5 from his house on 19‑1‑86, which was taken into possession vide memo Exh.P.E. On the same day Muhammad Sabir appellant led to the recovery of dagger P.6 from his house, which was taken into possession vide memo Exh.P.E. Muhammad Sabir also got recovered golden koka P.7 from his house, wrapped in handkerchief, which was taken into possession vide memo Exh.P.G. The memos were attested by Shabbir Hussain P.W.3 and given up P.W. Zulfiqar.

Photograph Exh.P.C. of Muhammad Asharf appellant with Mussarrat Nazir, produced by the complainant, was taken into possession by the S.I. vide memo Exh.P.D.

After the completion of necessary investigation, the challan was put to Court.

5. At the trial, prosecution in all examined six witnesses. Dr. Muhammad Riaz, who had performed autopsy on the dead body of Mst. Latifan Bibi on 15‑1‑1986 at 10‑00 a.m. and had medically examined the complainant also on the same day, appeared as P.W.4. He had noted following injuries on the body of the deceased:‑

(1) Multiple bruises on the front and right side of the neck in the area of 6 cm x 5 cm.

(2) A bruise 2 cm x 1 cm below right eye.

On internal examination, he found hyoid bone fractured on right side. Lungs were found congested. The blood vessels were engorged.

Death, according to his opinion had resulted due to asphyxia resulting from throttling. The time between the injuries and death was opined to be immediate while the duration between the death and post‑mortem was opined to be seven hours.

Following injuries were noted by him on the person of Mst. Mussarrat Nazir complainant:‑

(1) An abrasion 1 c.m. x .5 c.m. on right side of the nose.

(2) An abrasion 1 c.m. x .5 c.m. below right eye near the nose.

(3) An abrasion .5 c.m. x .25 c.m. on left side of the nose.

(4) Two abrasions 3 c.m. x 5 c.m. and 2.5 c.m. x 5 c.m. on front of neck.

(5) An abrasion 2.5 c.m. x .5 c.m. on back of right ear on mastoid region.

All the injuries were opined to be simple and caused within duration of eight hours.

During cross‑examination the doctor denied the suggestion that hyoid bone can be broken by a fall on hard substance.

6. The ocular account was deposed to by Mst. Mussarrat Nazir P.W.2 and Shabbir Hussain P.W.3 Mst. Mussarrat Nazir re‑narrated the facts given by her in the F.I.R.

During cross‑examination she stated that Muhammad Ashraf app211ant was living in Chak No. 240/GB for the last 6‑7 years. She expressed ignorance about Muhammad Ashraf appellant being a resident of that Chak since 1947. She stated that Muhammad Ashraf had started visiting their house after the engagement of his sister with her brother Shabbir Hussain. In answer to another question she stated that Muhammad Ashraf appellant had left her mother and caught hold of her neck as soon as she came out. She stated that the Duri where her mother was murdered, was without door. According to her photograph Exh. PC was taken at the time when the sister of Muhammad Ashraf was engaged to her brother Shabbir Hussain and she (the complainant) was engaged to Muhammad Ashraf. She conceded that Muhammad Ashraf was married prior to this occurrence. She denied the suggestion that Muhammad Ashraf appellant was involved in the case on account of his refusal to give the hand of his sister to her brother Shabbir Hussain P.W.

Shabbir Hussain P.W.3 corroborated the statement made by Mst. Mussarrat Nazir. He also stated about having witnessed the recovery of dagger P.5 at the instance of Muhammad Ashraf appellant, dagger P.6 at the instance of Muhammad Sabir appellant and that of Koka P.7 at the instance of Muhammad Sabir, and of having attested the recovery memos Exhs.P.E., P.F. and P.G. respectively.

During cross‑examination, he stated that his father was alive when their engagements had taken place but he had not played any role in the engagements. He denied the suggestion that Muhammad Ashraf appellant was married prior to his engagement with his sister Mst. Mussarrat Nazir. He denied the suggestion that they have involved the accused falsely on being offended as a result of Muhammad Ashraf having refused to marry his sister with him.

Feroze Ali Khan, S.I. P.W.6 gave the account of registration of case and the recoveries effected at the instance of both the appellants.

During cross‑examination, he denied the suggestion that respectables of the village had informed him that the character of Mst. Mussarrat Nazir complainant was not above board and that the villagers had got her transferred from the village on that account. (It may be noted here that Mst. Mussarrat Nazir complainant, at time of occurrence was serving as a teachress).

7. Both the appellants during their statements under Section 342 of the Code of Criminal Procedure denied the prosecution case as a whole and both of them denied to have led to the recoveries. Muhammad Ashraf appellant, in answer to the question, 'Have you any thing else to say', stated as follows:‑

"I am innocent. The fact of the matter is that some unknown persons strangulated Mst. Latifan to death while she was asleep or that Mst. Mussarrat Nazir P.W. strangulated her to death. I have been falsely implicated at the instance of complainant in connivance with police."

He also tendered in defence his Nikahnama Exh.D.C. and Exh.D.D. the entry of birth of his son.

8. This appeal has been filed by the appellants through jail. Nobody represents them. I, therefore, proceed to decide the appeal with the assistance of learned counsel appearing for the State.

9. Learned trial Judge did not believe the motive set up for the occurrence.

I have perused the impugned judgment and have gone through the evidence as well. I do not find any thing wrong in the assessment of the evidence done by the trial Judge with regard to motive. The reasons given for not believing the evidence of motive do not call for any interference.

10. The evidence of recoveries of daggers in this case at the instance of both the appellants is of no consequence. They were not used for inflicting injuries either to the deceased or to any of the P.Ws. Even if the recoveries of the daggers is believed, it cannot lend corroboration to the statements made by the eye‑witnesses, as there is no evidence to consider that the recovered daggers were the same which the appellants were having in their possession at the time of occurrence. The case of the prosecution, therefore, rests wholly on the ocular account furnished by the two witnesses and the medical evidence.

11. The photograph of the complainant with the appellant (Muhammad Ashraf) is certainly an evidence of the fact that both of them had something to do with each other. Although the pose is such that it cannot be visualised even that it was taken in the presence of other family members, yet connection of the two with each other stands established. Therefore, it can safely be presumed that the complainant knew and identified Muhammad Ashraf appellant before the occurrence, and the other thing which stands established from that photograph is that she had a soft corner also for Muhammad Ashraf appellant.

12. The occurrence had taken place in the house of the deceased where she was residing alongwith her daughters and sons. The presence of the complainant and Shabbir Hussain P.W., therefore, in the house, at the time of the occurrence cannot be doubted. Since it was a night occurrence, the inmates of the house could only be the natural witnesses. The presence of Mst. Mussarrat Nazir complainant at the spot also stands proved by the injuries found on her person. Except the differences that arose out of the break of engagements; the parties otherwise had no differences with each other. The cultivation of relationship and connections between the families is in a way also admitted by Muhammad Ashraf appellant. He had taken up the stance during the trial that he was involved in this case on account of his refusal to marry his sister with Shabbir Hussain P.W. No suggestion was put during the trial to any of the P.Ws. that they had any other animosity or reason to falsely involve the innocent persons. The F.I.R. in this case was lodged within three hours, of the occurrence. Obviously, it can be termed to be a prompt one. The performance of autopsy on the body of the deceased on the same day, at 10‑00 a.m. lends further support to the argument that the F.I.R. was lodged promptly, because if the F.I.R. had not been lodged promptly, the dead body of Mst. Latifan Bibi deceased could not have been sent in time for performance of the autopsy at 10‑00 a. m.

In the circumstances, there is no reason to disbelieve the presence of the eye‑witnesses at the place of occurrence, and discard their statements in toto. The case of Muhammad Sabir appellant, according to my assessment needs sifting and consideration. He did not cause injuries to any of the P.Ws. He is not related to the co‑appellant, and as such he could have no reason to join hands with him. The allegation levelled against him that he had held the deceased from her hands, when Muhammad Ashraf appellant had throttled her, seems to be superfluous. The deceased while being throttled would definitely, have moved her hands and legs. Had she been held forcibly from her hands, by Muhammad Sabir appellant or anyone else, she would have received some abrasions on the arms and hands but no such injury was found on her person. Thus, the part assigned to Sabir appellant, apart from being superfluous, also stands negatived by the medical evidence. Moreover, had he been there, he would not have stood apart like a silent spectator when the witnesses had come to intervene. In fact, that was the time, he would have acted, had he been there, by causing some harm to the prosecution witnessed. His presence, therefore, at the place of occurrence, seems to be highly doubtful. His conviction and sentence under section 302 PPC, therefore, is set aside by way of grant of benefit of doubt.

The case against Muhammad Ashraf appellant, however, stands proved. His conviction and sentence under section 302, P.P.C. is, therefore, maintained.

The conviction of Muhammad Sabir appellant under section 404 P.P.C. does not call for any interference as the golden Koka belonging to the dead person was recovered from his house, on his pointing out. There is no reason to discard the statements of the witnesses regarding the recovery of koka, effected from him. Neither the police officer nor the witness from the public was inimical to him. If the recovery of the koka was to be planted, it would have been done with Muhammad Ashraf appellant, who was the main accused.

In the circumstances his appeal seeking setting aside the conviction and sentence under section 404, P.P.C. is, dismissed.

MJ.H./M‑635/L Appeal dismissed