MUSHTAQ AHMAD Versus THE STATE Khalid Ranjha , Sarfraz Ahmad
LEHRASAP KHAN, J. ‑‑This criminal appeal (Criminal Appeal No. 101 of 1984) and the connected murder reference (Murder Reference No.198 of 1984) as also the criminal revision (Criminal Revision No.116 of 1984) seeking enhancement of fine and compensation filed by the complainant arise out of judgment dated 28‑10‑1984, passed by a learned Additional Sessions Judge, Rawalpindi, whereby he convicted the appellant Mushtaq Ahmad (25) under section 302 P.P.C. for causing the murder of Mst. Khadija Bibi deceased, his stepmother. He has been sentenced to death and a fine of Rs.10,000 or in default six months' R.I. It has further been directed that the fine, if realized, shall be paid to the heirs of the deceased. as compensation.
2. The occurrence in this case took place on 25‑5‑1982 at 9.00 a.m. in the area of village Girja, at a distance of 9 K.M. from Police Station Sadar Barooni, District Rawalpindi. The occurrence was reported at the police station on the same day at 12‑30 p.m. by Sub. (Rtd.) Sultan Mahmood P.W.5, brother of the deceased vide F.I.R. Exh.P.C. which was recorded by Muhammad Zaman S.I. (P.W.12).
3. Regarding motive it has been alleged that 2/3 days prior to this occurrence, the appellant insisted upon his stepmother Mst. Khadija Bibi deceased to arrange for his marriage. She told him that they (the deceased and her husband) had previously arranged the marriage of the appellant with his paternal‑uncle's daughter but he divorced her only a year back. Therefore, he should himself arrange for his marriage as he was an earning hand. The reply by the deceased was not liked by the appellant, and, therefore, he held out a threat of dire consequences to her.
4. As for the main occurrence, it has been stated that at the fateful time, Sultan Mahmood P.W. 5, brother of the deceased, was present in the house of the deceased. Muhammad Riaz (given up as won over), Mst. Robina P.W.6, Mst Safia Babi (given up as unnecessary) were also present in that house. The appellant Mushtaq Ahmad came there. He declared to the deceased that he would teach a lesson to her for not arranging for his marriage. Thereafter, the deceased ran towards the fields to save her life; but the appellant gave her a pursuit and at a distance of 15/16 karams he came in front of the deceased and thus prevented her from going further. He took out a Chhuri from the fold of his loin‑cloth and caused her en injury hitting on the left breast of the deceased. She fell down and started bleeding. Sultan Mahmood P.W. and others ran towards the deceased but found that she had already succumbed to the injury. The appellant had also made good his escape in the meantime.
5. Muhammad Zaman S.I. P.W.12 on the game day visited the place of occurrence along with certain other police officials. He prepared the inquest report and injury statement in respect of the deceased and sent the dead body for autopsy to the mortuary under the escort of. Ghazanfar Ali F.C. P.W. 1 and Muhammad Afzal F.C. (not produced).
6. Post‑mortem examination on the dead body of Mst. Khadija Bibi deceased was carried out by Dr. Mahmood Khan (P.W. 8), the then Medical Officer, DHQ Hospital, Rawalpindi. He noticed an incised wound, 2 cm, chest cavity deep on left side front of chest, 10 cm from left nipple at 9 O'clock position and just near the left border of middle sternum. He also found that correspondent cuts on the shirt and Bunyan (Vest) were present which were blood‑stained. The uterus was healthy and contained foetus of 21" size i.e. about 12 to 16 weeks pregnancy. Dr. Mahmood Khan opined that the deceased had died of shock and haemorrhage resulting from injury No.1 which was sufficient to cause death in the ordinary course of nature. According to him, this injury was ante‑mortem and was caused by a sharp‑edged weapon. He also opined that time between the injury and death was immediate. Exh.P.E. is the correct carbon copy of the post‑mortem report.
7. The appellant was arrested on 15‑7‑1982 by Iftikhar Ahmad S.I. S.H.O. P.W.11. On 20‑7‑1982, while in custody, the appellant got recovered blood‑stained Chhuri P.6 vide recovery memo Exh.P.F. from barren land near Chak Jalal Din from underneath a big stone. The recovery memo. has been attested by Muhammad Ashraf P.W.10 and Abdul Aziz (given up). besides Iftikhar Ahmad S.I. P.W.11.
8. At the trial P.W.5 Sultan Mahmood and P.W.6 Mst. Robina testified as eye‑witnesses to furnish the ocular account of the occurrence. They have fully supported the prosecution case as contained in the F.I.R.
9. The appellant did not plead guilty and in reply to question No.9 'why this case against you?' stated:‑
"This has been fabricated against me, because the complainant party wanted to conceal .the real facts in order to save the family from the ignominy of the illicit act of deceased as she was seen by me in an objectionable posture with a male member in early hours of morning when there was still darkness and due to grave and sudden provocation I gave a solitary Chhuri blow to the deceased which resulted into her death. The complainant party twisted true facts and introduced false version in the case."
The appellant has also examined his paternal‑uncle Muhammad Riaz D.W.1 in his defence. Muhammad Riaz has seated that on the night preceding the occurrence the appellant, this witness and Muhammad Khan, the father of the appellant, were present on the thrashing floor. At about Sehriwela they learnt that their cow was not present at the thrashing floor. Muhammad Riaz and Mushtaq Ahmad appellant went out to search the cow, while Muhammad Khan went to Rawalpindi City for purchasing some articles. Thereafter Musfitaq Ahmad and Muhammad Riaz went to their house to see that if the cow was present in the house. There they found that the deceased was not present on her bed. They heard some whispering in the room and got conscious. Mushtaq Ahmad then picked up a Chhuri and in the meanwhile some male person ran from the room. Mst. Khadija also ran for 5/6 paces but she was overcome by Mushtaq Ahmad who gave her a Chhuri blow hitting on the left side of her chest. This witness conceded that he was originally cited as prosecution witness but was later on given up as having been won over. He stated that he had not identified the male person who had run out of the room. According to this D.W. the appellant was arrested about 6/7 months after the occurrence.
10. It has been contended on behalf of the appellant that P.W.5 Sultan Mahmood being brother of the deceased and P.W.6 Mst. Robina being daughter of the deceased from the previous husband, are interested witnesses. Their testimony cannot be relied upon. They were perhaps not present at the time of occurrence. Sultan Mahmood belongs to village Dhok Lukhan. His place of business is at Tench Bhatta, Rawalpindi. He is just a chance witness. It has also been urged that he could not even give the names of the neighbours of his brother‑in‑law. Regarding Robina also it has been stated that she could not describe about the neighbours of her stepfather. She might have been brought from the village of her deceased father after the occurrence to testify as an eye‑witness.
11. We have thoroughly considered and fully analysed the objections raised on behalf of the appellant with regard to the eye‑witnesses. No doubt, both the eye‑witnesses are close relatives of the deceased, but on account of mere relationship they cannot be disbelieved. Sultan Mahmood has claimed that he had come to the house of the deceased at the fateful time to meet her and to pay her some money which she needed. It has also come on record that this witness has grown‑up son who looks after his business at Tench Bhatta and the witness joins the business after lunch. Sultan Mahmood is the person who lodged the F.I.R. at the police station at 12‑30 noon. Regarding Mst. Robina it has been stated that she was a tender aged child when her father divorced the deceased. Later on he died. Mst. Robina used to live with her mother at village Girja from her very infancy. She being a female child is not supposed to know the particulars of the neighbours of her stepfather. The statements of the two eye‑witnesses are quite consistent and ring true. 'The details of the occurrence regarding the injury caused to the deceased by the appellant are supported by the medical evidence.
12. The prosecution, of course, cannot make much capital out of the evidence relating to‑recovery, because the blood‑stained Chhuri allegedly recovered at the instance of the appellant does not appear to have been sent to the Chemical Examiner and the Serologist. It is, therefore, not connected with the offence and thus its recovery is of little consequence.
13. We have, however, noticed that the appellant was arrested on 15‑7‑1982 i.e. after about two months of the occurrence. It has been stated by Iftikhar Ahmad S.I. P.W.11 that the appellant was not traceable on the day of occurrence. This police officer, therefore, obtained his warrants of arrest Exhs.P.G. and P.H. It was reported that the appellant had joined his Unit at Quetta but the Unit intimated Rawalpindi police about the non‑availability of the appellant who was ultimately arrested on 15‑7‑1982. Thus it becomes evident that the appellant remained absconding for about couple of months and his abscondence also lends some support to the prosecution case.
14. The plea of the appellant is that he caused the death of Mst. Khadija Bibi deceased under grave and sudden provocation as he saw her in an objectionable position with a male person. The appellant as also his paternal‑uncle who has appeared as D.W.1 have not been able to tell the name and other particulars of the alleged male person. This version has also been impliedly falsified by the medical evidence. It has not been noticed at the time of post‑mortem examination that private. parts of the deceased or the clothes worn by her at the time of occurrence were in any manner stained with semen; rather it was noticed that her uterus contained a foetus which indicated that she was pregnant for about 12 to 16 weeks. There was hardly any occasion for a pregnant woman at that stage to indulge in adultery.
15. The motive as alleged by the prosecution has of course, not been substantiated. Sultan Mahmood P.W.5 who stated about motive in the F.I.R. admitted at the trial that he was not present on the day when the appellant had threatened his sister. He stated that it was his deceased sister who told him about the threat. Mst. Robina P.W.6 also failed to disclose about the alleged motive. No other witness has been examined to prove the alleged motive.
16. In the light of the above discussion we have come to the conclusion that while the murder of the deceased Mst. Khadija Bibi at the hand of Mushtaq Ahmad appellant at the fateful time has been fully established, but the prosecution allegation regarding motive has not been substantiated and thus the cause of murder is shrouded in mystery. We have also noticed that the appellant has caused a solitary injury with Chhuri to the deceased which proved to be fatal.
17. For the foregoing conclusions we uphold the conviction of the appellant under section 302, P.P.C. but alter his sentence from death to imprisonment for life while the fine imposed on him by the learned trial Court is maintained. The trial Court's direction that the fine if realised shall be paid to the heirs of the deceased as compensation is also maintained. But for the commutation of sentence from death to imprisonment for life, the appeal stands dismissed. The death sentence is not confirmed. The criminal revision is dismissed in limine.
S.G.D./M‑558/L Order accordingly.