MST. MAJEEDAN BIBI Versus THE STATE

JUSTICE RAJA AFRASIAB KHAN, MEMBER --- Mst. Majeedan Bibi (28) and her husband Imdad Ali (32) were tried by the, learned Judge Special Court for Speedy Trials, Multan under sections 364-A/34, 302/34 and 201/34, P.P.C. The learned Judge convicted Mst. Majeedan Bibi under sections 302 and 3(A-A, P.P.C. and awarded her death sentence on both counts plus a fine of Rs.15,000 or in default thereof to suffer further R.I. for one year. She was, however, not convicted under section 201, P.P.C. Imdad Ali, her co-accused was acquitted by the learned trial Judge vide judgment, dated 18-12-1991 by giving him the benefit of doubt.

2. The appellant has filed Criminal Appeal No.42/SAC of 1991 challenging her conviction and sentence while the State has filed Criminal Appeal No.52 SAC of 1991 against the acquittal of Imdad Ali. We propose to dispose of both the appeals together as they arise .out of the same judgment, stated above.

3. Shortly stated the facts are that Arshad Mahmood son of Shaukat Ali is a weaver of carpets by profession. On 2-2-1991 at about 10 a.m. his son Umair Ahsan, aged about 2 years, went out of his house. He did not return despite lapse of some time. The complainant searched for his child but he could not find him. After some time announcements were made on loudspeakers in various mosques of the locality about the disappearance of the child and despite that the complainant could not get any clue of the child. During the search of his child, Muhammad Sharif son of Muhammad Ismail and Riaz Ahmed son of Haji Abdul Qayyum disclosed to the complainant that on 2-2-1991 Umair Ahsan the missing child of the complainant, was physically lifted by the appellant, Mst. Majeedan and her husband Imdad Ali and they took him inside their house. The respectables of the Mohallah approached lmdad Ali and Mst. Majeedan Bibi but they failed to give any reasonable reply about the allegations levelled against them. The complainant, thus, expressed his strong suspicion that his son was abducted by appellant, Mst. Majeedan Bibi and her husband lmdad Ali with a view to kill him. The motive was that a day before the occurrence there was a quarrel between Arshad Mahmood and Mst. Majeedan Bibi over the fight having taken place amongst the children of the two families. Threats of serious nature were also extended by lmdad Ali to the complainant. On the statement of Arshad Mahmood, complainant, formal F.I.R. Exh.P.J. was recorded by Muhammad Bashir, S.I./S.H.O. Police Station Delhi Gate Multan on 6-2-1991 at about 7-30 p.m. Muhamad Bashir, S.I./P.W.16 conducted the investigation of the case. On 7-2-1991, he recovered the dead body of Umair Ahsan at the instance of Mst. Majeedan Bibi from the house. The dead body was concealed in an attache-case like a box. The dead body was taken into possession vide memo. Exh.P.G. On the same day, namely, 7-2-1991. Mst. Majecdan Bibi led to the recovery of blood-stained Shalwar P.11 and shirt, P.12, blood-stained shirt, P.13 and Chaddar, P.14 of Imdad Hussain. These articles were taken into possession vide memo. Exh.P.K. Tiu, dead body was sent for autopsy 'on the same day. Muhammad Ashraf, F.C. produced before the Investigating-Officer clothes of the deceased, P.1 to P.5, broken bangles, P.0/1-4 and attache-case, P.7 which were taken into possession vide memo. Exh.P.F. Mst. Majeedan Bibi also got recovered an attache-case, P.8 and a Chaddar of the bedding P.9-A, plastic bag P.10 was taken into possession vide recovery memo. Exh.P.H. Similarly, Imdad Ali led to the recovery of Chhuri P.15 on 12-2-1991 which was found blood-stained. It was taken into possession vide recovery memo. Exh.P.L. The plan of place of recovery of Chhuri Exh.P.L./1 was prepared by the Investigating Officer. The plan of recovery of clothes of both the accused was prepared as Exh.P.M. Exh.P.N. is the plan of recovery of raxine bag etc. The injury statement Exh.P.B. and the inquest report Exh.P.C. of the deceased child were prepared by the Investigating Officer.

4. Mst. Majeedan Bibi was produced before the Investigating Officer by Muhammad Ashraf, P:W.5, and Ijaz Hussain P.W.12. Similarly, Muhammad Tufail and Muhammad Yasin, P.Ws. produced Imdad Ali before the' Investigating Officer at police station. The statements of the witnesses were recorded under section 161, Cr.P.C. Report of the Chemical Examiner, Exh.P.O. about the Chhuri, clothes and other articles was positive. However, there was no report of the Serologist available on the record pertaining to nature of the blood found on the articles noted above. Dr. Muhammad Altaf Hussain, P.W.1 conducted post-mortem examination upon the dead body of Umair Ahsan on 7-2-1991 and found following injuries on his person:--

"An incised wound 14 c.m. x 2 c.m. on the front and left side of neck in transverse direction at the level of thyroid cartilage. The soft tissue alongwith thyroid cartilage was partially cut with blood vessel. There was cut mark on left side 1/8 c.m. deep on the underlying cervical vertebra. There were two paralleled cuts about 1 c.m. long on the upper edge of skin and one parallel cut about 3/4 c.m. long at the lower edge of skin."

The doctor opined that death occurred due to haemorrhage and shock as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and was caused by a sharp-edged weapon. The probable time between injury and death was immediate while the time between the death and post-mortem was about five days.

5. While making a statement under section 342, Cr.P.C. Mst. Majeedan Bibi, appellant denied the allegations levelled against her. She deposed that on 6-2-1991 an iron-box containing therein a dead body was found lying outside the house of Arshad Mahmood. She stated that two women from the family of the complainant were suspected to have killed the child. She maintained that she had falsely been implicated in the case in order to save the honour of the accused ladies of the complainant family. However, no evidence in support of her plea was led by her.

6. The conviction was registered against the appellant, Mst. Majeedan Bibi, on the basis of last seen evidence provided by Riaz Ahmad, P.W.10 and Muhammad Sharif P.W.11. The evidence regarding extra-judicial confession made by Mst. Majeedan was provided by Ijaz Hussain, P.W.12 and Muhammad Ashraf, P.W.13. The dead body was recovered in the presence of Muhammad Riaz, P.W.6 and Hussain Ahmed, P.W.7. In consequence, the learned trial Judge proceeded to convict and sentence the appellant on the basis of evidence regarding extra-judicial confession and last seen evidence and the recovery of dead body at her instance from her house.

7. Ch. Khalil-ur-Rehman, learned counsel contends with vehemence that the evidence pertaining to extra-judicial confession and last seen was a weak type of evidence and that there was no other strong circumstantial piece of evidence available on record and as such it was not possible under the law to register any conviction against the appellant. He submits that the recovery of dead body was doubtful inasmuch as recovery witnesses were chance witnesses and that they were not expected to be present at the time of abduction of the child by the appellant under the given facts and circumstances of this case. Learned counsel argues that despite announcements on loudspeakers having been made in several mosques, Muhammad Riaz and Hussain Ahmed, P.Ws. did not come forward to give information to the police about lifting of Umair Ahsan by the appellant on 2-2-1991. He, therefore, adds that the evidence of Muhammad Riaz and Hussain Ahmed shall have to be excluded from consideration. Similarly, he attacks the deposition of Ijaz Hussain, P.W.12 and Muhammad Ashraf, P.W.13 before whom extra-judicial confession was made by the lady early in the morning. He also maintains that prosecution witnesses are admittedly related to the complainant and as such their evidence cannot be accepted unless corroborated by independent evidence. According to the learned counsel, the prosecution failed to produce trustworthy and independent evidence in the case. Mr. MA. Zafar learned State counsel argues that the prosecution witnesses had no enmity whatsoever to falsely implicate the appellant in this case. He heavily relies upon the last seen evidence and the evidence pertaining to extra-judicial confession made by Mst. Majeedan Bibi before the prosecution witnesses. At any rate, he argues that recovery of the dead body was effected by the police at the pointedness of Mst. Majeedan from her house which was proved beyond any reasonable doubt.

8. We have heard the learned counsel for the parties at considerable length and have read the whole record with care. We feel convinced beyond any shadow of doubt that it was Mst. Majeedan who physically lifted Umair Ahsan on 2-2-1991 from the lane and brought the child inside her house. We believe that it was the appellant who killed the innocent child and thereafter concealed the dead body in the iron-box. Riaz Ahmad, P.W.10 deposed that Umair Ahsan was taken away by Mst. Majeedan Bibi on 2-2-1991 at 10 a.m. He further deposed that he was constructing his house at New Multan 7/8 miles away and returned to Mohallah on 6-2-1991 and disclosed about the kidnapping of the minor child by Mst. Majeedan. This evidence of Riaz Ahmed was corroborated by Muhammad Sharif, P.W.11 in material terms. Riaz Ahmed and Muhammad Sharif are undoubtedly related to Arshad Mahmood, complainant but we are persuaded to hold that they have no personal motive to implicate Mst. Majeedan Bibi falsely in the commission of crime. Their evidence inspires confidence. Apart from their evidence, it was Mst. Majeedan Bibi who in police custody led to the recovery of dead body from her house on 7-2-1991. It was in her exclusive knowledge that the dead body of missing child was lying in the iron-box in her house. Muhammad Riaz, P.W.6 and Hussain Ahmed, P.W.7 are the two witnesses in whose presence the dead body of Umair Ahsan was recovered by the police from the house of Mst. Majeedan Bibi. Muhammad Riaz, P.W.6 deposed that Mst. Majeedan Bibi led to the recovery of an iron-box which contained the dead body of Umair Ahsan. He further deposed that Mst. Majeedan opened the iron-box with a key and the neck of the child was found cut his evidence was materially corroborated by Hussain Ahmed, P.W.7. We have, therefore, no reasons to disbelieve their truthful evidence. Arshad Mahmood, P.W.9 is also an independent witness. Admittedly, he had no ill-will or enmity against Mst. Majeedan or against her husband previous to the occurrence. According to him, an incident took place a day earlier to the occurrence when there was an altercation between Arshad Mahmood and Mst. Majeedan Bibi over the fight of children in the lane. We' are inclined to believe the motive part of the prosecution story. Mst. Majeedan, appellant, while making statement in Court attempted to explain by saying that Umair Ahsan was, in fact, done to death by two ladies from the family of the complainant and that the dead body was kept in an attache-case which was placed outside the house of Arshad Mahmood, P.W.9 by some unknown person. This explanation, in our view, is not only afterthought but also highly improbable. Since it was widely known that the child was missing, no `unknown person' would have taken the risk to bring and leave the box containing the dead body in front of the house of the complainant party.

9. The result of above discussion is that the prosecution succeeded to prove its case beyond any reasonable doubt against Mst. Majeedan Bibi, 8 appellant on the basis of reliable and trustworthy evidence. We, therefore, hold that the appellant was rightly convicted by the learned Trial Judge. It is in the evidence that Adil Shahzad aged 1-3/4 is a suckling baby of Mst. Majeedan C Bibi. In that view of the matter, we alter her death sentence to life imprisonment. With this modification in the sentence, her appeal is dismissed.

10. As regards appeal against acquittal, the view taken by the learned trial Court for acquitting Imdad Ali, respondent, is not perverse or illogical in any p manner whatsoever. In circumstances, we proceed to dismiss the State appeal against his acquittal as well.

N.H.Q./25/S.A. ?????????????????????????????????????????????????????????????????????????????????? Order accordingly.