Mst. ZARINA Versus State

SADAQAT ALI KHAN, J.--- This judgment shall dispose of Criminal Appeal No. 367 of 2011 filed by Mst. Zarina Bibi etc. v. The State, and Murder Reference No.47/2010 sent by the learned trial court for confirmation or otherwise of the sentence of death awarded to appellant Muhammad Mohib Shah arising out of the same judgment dated 06.10.2010, passed by the learned Additional Sessions Judge Liaquatpur, District Rahimyar Khan, in case FIR No.110/2009 dated 15.02.2009 under section 302/34, P.P.C. Police Station Liaquatpur District Bahawalpur District Rahimyar Khan, according to which appellant Muhammad Mohib Shah was convicted and sentenced to Death under section 302(b), P.P.C. by way of Tazir. He was further directed to pay the compensation amount Rs.5,00,000/- (Rupees five Lac) under section 544-A, Cr.P.C., to the legal heirs of the deceased Hazoor Bakhsh. In case of non-payment of above said compensation amount, Mohib Shah convict was further directed to undergo S.I. for six (6) months, whereas appellant/Mst. Zarina Bibi was convicted and sentenced to Imprisonment of life under section 302(b), P.P.C. by way of Tazir for committing the murder of her husband Hazoor Bakhsh. She was further directed to pay the compensation amount Rs.5,00,000/- (rupees five lac) under section 544-A, Cr.P.C. to the legal heirs of the deceased Hazoor Bakhsh. In case of non-payment of above said compensation amount, Mst. Zarina Bibi was further directed to undergo S.I. for six (6) months. The convict Mst. Zaria Bibi was also given the benefit of section 382-B, Cr.P.C.

2. Brief facts according to complaint Ex.P.A lodged by Ghulam Rasool complainant PW-1 are that Hazoor Bakhsh deceased was his brother. His marriage was solemnized with Mst. Zarina Bibi (accused). As a result of their marriage, four children were born and they are alive. Mohib Shah accused had visiting terms to his brother. Mohib Shah developed illicit relations with his "Bhabhi" Zarina Bibi. Both of them did not like his brother.

3. On 15.02.2009 at 12/1:00 a.m. (mid-night), he was sleeping in his house. He heard a noise coming from the house of Hazoor Bakhsh, whereupon he, Ashique Hussain and Khuda Bakhsh reached there. When he reached at the residential room of Hazoor Bakhsh, he noticed that it was locked. His brother was crying. He had peeped through the door where both the accused persons were pressing the neck of Hazoor Bakhsh and thereafter they placed pillow on the mouth of Hazoor Bakhsh. When they left from the place of occurrence, they gave iron-rod blow on the head of the deceased. Electric light was on in the room. Both the accused persons wanted to solemnize their marriage, therefore, they murdered his brother Hazoor Bakhsh.

4. After registration of the case investigation was started. On 18.02.2009 Mst. Zarina Bibi accused/appellant was arrested by Subah Sadia S.I/I.O. PW-6 and on 18.02.2009 during the investigation Mst. Zarina Bibi accused/appellant got recovered pillow white in colour Ex.P-1 from her residential house which was taken into possession vide recovery memo. Ex.PB/PW-6. On 08.03.2009 Muhammad Mohib Shah appellant accused was arrested by PW-6 I.O. of this case and on 13.03.2009 Muhammad Mohib Shah accused got recovered iron rod P-2 burried in the earth near a tree which was taken into possession through recovery memo. Ex.P-C by the I.O./PW-6.

5. After completion of the investigation challan was submitted in the trial court. The learned trial court after observing legal formalities provided under Criminal Procedure Code framed the charge against both the appellants on 27.08.2009 to which they pleaded not guilty and claimed for trial. Prosecution evidence was summoned and prosecution produced Ghulam Rasool complainant PW-1 and Ashiq Hussain PW-2 on ocular account.

6. Doctor Niaz Hussain , M.O as PW-5, Subah Sadiq S.I/I.O. as PW-6, Atta Muhammad PW-3, Allah Bachaya Patwari PW-7, Aman Ullah PW-8 were examined as formal witnesses.

7. In documentary evidence prosecution produced report of Forensic Histopathologist Ex.PE, Chemical Examiner Report Ex.PF, Complaint of Ghulam Rasool, Ex.PA, FIR Ex.PA-1, Post Mortem Report Ex.PG, application to M.O. Ex.PH, Inquest report Ex.PJ, Recovery memo of pillow Ex.PB, Recovery memo of Sariya/iron rod Ex.PC, recovery of Saafa Ex.PD, Site plan Ex.PL, Site Plan Ex.PK and closed the prosecution evidence.

8. On the other hand statements of both the appellants under section 342, Cr.P.C. were recorded. Mst. Zarina Bibi in a question why the prosecution witnesses have deposed against you? she replied as under:-

"The complainant and his witnesses are inter se related and are related to the deceased also. In conspiracy with each other they have falsely involved me in this case."

Q. Why this case against you?

A. "The house/place of occurrence where I was residing with my deceased husband is in my name. The complainant in connivance with the PWs wants to get the possession of that house and when I refused, the complainant along with PWs involved me falsely in this murder case."

9. The appellant Muhammad Mohib Shah in answer to question why prosecution witnesses have deposed against you? he replied as under:-

"The complainant and his witnesses are inter se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case."

Q. Why this case against you?

A. "The complainant wants to extort some money from me and when I refused, the complainant along with PWs involved me falsely in this murder case."

10. After conclusion of the trial, the learned trial court heard the arguments from both sides and convicted the appellants with above stated sentences.

11. Hence this appeal.

12. The learned counsel for the appellants submitted that the judgment of the learned trial court is against law and facts on the file and is liable to be set aside. It is further submitted that the prosecution has failed to prove its case beyond any shadow of doubt but the learned trial court has convicted the appellants in surmises and conjectures. It is further submitted that there are major discrepancies in the statements of the prosecution witnesses, thus are not believable. It is further submitted that medical evidence is also not in line with the ocular evidence. It is further submitted that alleged recovered pillow and iron rod being not stained with blood are not corroborated piece of evidence. Lastly submitted that by accepting appeal of both the appellants the judgment of the learned trial court may be set aside and both the appellants may be acquitted.

13. On the other hand, learned DPG assisted by the learned counsel for the complainant submitted that the prosecution has proved its case beyond any shadow of doubt against the present appellants. it is submitted that the minor discrepancies in the statements of the PWs may be occurred due to lapse of time which are not fatal to the prosecution case. It is further submitted that judgment of the trial court is well-reasoning and rightly both the appellants have been convicted by the trial court and supported the judgment.

14. We have heard the learned counsel for the parties and have perused the record.

OCULAR ACCOUNT:-

15. P.W-1 Ghulam Rasool is real brother of Hazoor Bukhsh deceased. According to FIR occurrence took place on 15.02.2009 at 12:00 a.m (mid night) whereas FIR was registered on 15.02.2009 at about 2/5 p.m with the delay of about 23 hours and for this delay no plausible explanation has been given by PW-1 Ghulam Rasool complainant of the case rather he stated in the complaint Ex.PA.that he was stopped by the "Bradri" for decision but decision was not taken place. This ambiguous explanation is not acceptable rather creates doubt and was omitted by the complainant PW-1 in his statement before the trial court as Dr. Niaz Hussain PW-5 stated that at the time of post mortem deceased was wearing kaffan. PW-1 stated in his statement before the police (Ex.PA) that on the night of occurrence on hue and cry of his brother Hazoor Bukhsh deceased he reached at the residential room of the deceased, and found there Ashiq Hussain PW-2 and Khuda Bukhsh given up PW and found that the door of the room of the deceased was bolted from inside and deceased Hazoor Bakhsh was crying. Complainant PW-1 stated that he along with others, PWs Ashiq Hussain and Khuda Bukhsh saw from the window installed on the back of the room that Muhammad Mohib Shah and Zarina Bibi appellants had caught hold of Hazoor Bakhsh and were pouring some poisonous liquid into the mouth of Hazoor Bakhsh and they pressed his neck, gave iron rod on the back of his head and both the accused fled away after seeing them. Whereas while appearing before the trial court PW-1 stated that he along with Ashiq Hussain PW-1 and PW-2 Khuda Bukhsh given up. PW-2 after hearing hue and cry of Hazoor Bukhsh deceased rushed at the residential room of Hazoor Bukhsh deceased and noticed that it was bolted from inside and his brother crying. PW-1 stated that he peeped through the door and found that both the accused persons were pressing the neck of Hazoor Bukhsh and thereafter they placed pillow on the mouth of Hazoor Bukhsh deceased and gave blow of iron rod on the head of the deceased and electricity light was on in the room. The statement of PW-1 is a result of dishonest improvement and is self-contradictory and he did not state in the statement Ex.PA before the police that accused placed pillow on the mouth of Hazoor Bukhsh deceased and further electricity light was on in the room. Likewise he has not stated in Ex.PA that he along with PW-2 Ashiq Ali had peeped through the door and saw the occurrence. He stated in cross-examination that he had recorded in his statement Ex.PA that the accused persons put pillow on the mouth of his brother Hazoor Bukhsh deceased which was confronted with Ex.P-A where it was not so recorded. He stated in cross-examination that he had not mentioned in application Ex.PA that electricity bulb was on volunteered at the time of submission of copy of Ex.PA, he was upset due to the death of his brother and stated that source of light was which of electric bulb was mentioned by him in supplementary statement. He stated in cross-examination that room of Hazoor Bukhsh was locked. Confronted with Ex.PA where it was not so recorded, where it is mentioned that room was bolted from inside. He stated in statement that he had stated in Ex.PA that both accused persons have murdered his brother because they wanted to solemnize their marriage which was confronted with Ex.PA, where it was not so recorded. He stated before the trial court in cross-examination that he had stated in Ex.PA that both the accused persons poured some poisonous liquid into the mouth of his brother. He stated that he had not seen in which pot both the accused were carrying poisonous liquid because he was witnessing the occurrence through small hole. He stated that eldest daughter of deceased was not at home she had already gone to the house of her maternal-grand-mother, whereas three remaining children were at house.

16. PW-2 Ashique Hussain stated in his statement when police came to the place of occurrence Mst. Zarina Bibi produced pillow P-1 before the police which was taken into possession by the police through recovery memo Ex.PB. He stated in cross-examination that first of all accused persons poured poisonous into the mouth of Hazoor Bukhsh thereafter they tried to strangulate him and then they put pillow on his mouth. He stated in cross-examination that he had made a statement before the police that both the accused persons put pillow on the mouth of Hazoor Bakhsh which was confronted as Ex.DA where it was not so recorded. He stated that he is neighbourer of the complainant. He stated in cross-examination that first of all he witnessed the occurrence. He stated in cross-examination that he peeped through the hole of the door, however, the door was bolted from inside. He stated that although there was bolt of that door from the outside but it was not bolted from outside. Since he was upset, therefore, he had not bolted the door from out side. He stated that Muhammad Mohib Shah made good his escape from the back side of the window. He stated that they beat the accused Mst. Zarina Bibi, who was present there after the occurrence. He stated that he made a statement during the investigation that he witnessed the occurrence by peeping through the door which was confronted to him as Ex.D.A, where it was so recorded. Ex.PL is a site plan in which point No.2 was shown as window of the room, which is the place of eye witness from where they saw the occurrence, which is contradictory to the statement of the above two witnesses PW-1 and PW-2, who stated in their statements before the trial court that they had seen the occurrence from the hole of the door of the room. Ex.P1 also does not show the house of of PW-1 or PW-2 adjacent to the house of the deceased i.e. place of occurrence.

MEDICAL EVIDENCE

17. PW-5 is Dr. Niaz Hussain, M.O., T.H.Q. Hospital Liaquatpur, who while examining the dead body observed as under:-

EXTERNAL APPEARANCE

It was a dead body, middle stature, wearing Kaffan, received examine/No mark of ligature on the neck."

Injuries observed as under:-

INJURIES

"A lacerated wound 1/2 c.m x 1/1 c.m occipital region." In remarks observed as under:-

"After careful external and Internal examination of the dead body, at that time, I could not opine the cause of death because the expert reports were not available, but now the said reports are available on record. According to report Histopathologist Exh.PE vide reference No.363 F.H dated 27.04.2009, Lab No.142 of 2009 dated 23.02.2009, which is reproduced as under:-

"Histological examination of the heart sections reveals patent coronaries and unremarkable myocardium. The lung sections reveal vascular congestion and presence of RBCs inside alveoli. Histological examination of the hyoid, bone sections reveals bone. No ante mortem heamorrhages are seen."

According to report of Chemical Examiner Exh.PF vide reference No.266 PCF.H dated 02.04.2009, which is reproduced as under:-

"Poison is not detected in the above articles."

Keeping in view the above said reports, I am of the opinion that the death in this case had occurred ASPHYXIA caused by smothering, which was sufficient to cause death in ordinary course of nature. Probable time between the injury and death was 15 minutes, whereas between the death and post-mortem, it was about within 15 hours.

The post-mortem report Exh.PG is the correct carbon copy of the original report, which is in my hand and bears my signatures and seal. The diagrams showing the seat of injuries are Exh. PG/1 and Exh. PG/2 which were drawn by me and it bears my signatures and seal.

After post-mortem examination, the dead body and the last worn clothes of the deceased along with other papers were handed over to Atta Muhammad constable (PW-3). I endorsed the injury statement Exh.PH and the inquest report Exh.PJ and the same are signed by me and bear my signatures also.

18. He stated in cross-examination that it is correct that injury on the head is not cause of death. He stated that it is correct that no froth was coming from the mouth of the deceased. He stated that no bleeding was coming from the nostril as well as from both the ears. He stated that both the lungs of the deceased were healthy.

19. While considering the medical evidence and discrepancies in the statements of PW-1 and PW-2 and dishonest improvement and omissions made by the said PWs during the trial we are of the view that PW-1 and PW-2 were not present at the time of occurrence; hence their evidence is disbelieved. Medical evidence itself does not identify culprit.

RECOVERIES.

20. Recovery of iron rod P-2 being not stained with blood is inconsequential, likewise recovery of pillow P-1 being not blood stained, is not corroboratory evidence. Otherwise evidence of recovery is mere corroboratory evidence. When the basic evidence i.e. ocular account has been disbelieved, this corroboratory evidence has no value.

21. Burden of the prosecution to prove its case against the accused beyond reasonable doubt remains throughout upon it and does not shift to the accused. Eye-witness had not been able to establish their presence at the scene of occurrence and the crime had remained un witnessed in the instant case. In absence of positive evidence against the accused they could not be convicted on the presumption that since the murder of her husband had taken place in the house where spouse was living it could only be her and no other, who had murdered the deceased.

It is also held in the case titled "Abdul Majeed v. The State" (2011 SCMR 941) as under:-

"In the absence of any positive prosecution evidence, the appellant cannot be convicted on presumption that since the murder of his wife took place in his house it can only be him and no other who had murdered the deceased. The conviction and sentence of the appellant on this single circumstance cannot be sustained in law. The appeal is, therefore, allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge against him. He shall be set at liberty if not required in any other case."

22. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring the guilt of the appellant to the hilt and the learned trial court was not justified in convicting the appellants while basing upon untrust worthy and uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradictions specially unreliable story deposed by the complainant unexplained delay in lodging the crime report dishonest improvement and material omissions in their statements, contradictions in the medical and ocular account, we are of the view that the prosecution has badly failed to bring on record an iota of confidence inspiring evidence against both the appellants. As per dictates of law benefit of every doubt is to be extended in favour of the accused.

23. Resultantly salutary principle of benefit of doubt is extended in favour of the appellants. This Criminal Appeal No.367/2010 filed by Mst. Zarina Bibi daughter of Haji Muhammad widow of Hazoor Bakhsh and Muhammad Mohib Shah son of Shabbir Hussain Shah is accepted and conviction and sentence recorded by the learned trial court vide judgment dated 06.10.2010 is set aside as a consequence whereof the present appellants are ordered to be acquitted of the charges in case FIR No.810/2009 dated 15.02.2009 under section 302/34, P.P.C. Police Station Liaquatpur District Bahawalpur District Rahimyar Khan and directed to be released forthwith if not required in any other case. Murder Reference No.47/2010 sent by the learned trial court for confirmation of death sentence inflicted upon Muhammad Mohib Shah is answered in negative. Death sentence is not confirmed.

HBT/Z-17/L Appeal accepted.