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Petitioner: ABDUL SALAM And Others VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Ahmed Khan Lashari Title: ABDUL SALAM And Others vs THE STATE Case No.: Criminal Appeals Nos.28, 14 and 23 of 2000 Date of Judgment:2002-07-17 Reported As: 2003 YLR 1 Result: Order accordingly
JUDGMENT
JUDGMENT RAJA FAYYAZ AHMED, C.J.----This appeal under section 410, Cr.P.C. Has been directed against judgment, dated. 21-2-2000 passed by the learned Additional Sessions Judge-I, Quetta in Sessions Case No.32 of 1999 whereby accused Abdul Salam alongwith the co-accused have been convicted under ,section 302(b), P.P.C. And each sentenced to imprisonment for life and liable to pay compensation of Rs.50,000 each to the legal heirs of deceased Mst. Zarina under section 544-A, Cr.P.C. And in default of payment of compensation each to suffer R.I. For two years. Co-accused namely Eid Muhammad and Mst. Sakina sentenced to life imprisonment each under section 302(b), P.P.C. Have assailed the abovesaid judgment respectively in Criminal (Jail) Appeals No. 14 of 2000 and 23 of 2000; therefore, these three criminal appeals, i.e. Criminal Appeal No.28 of 2000, Criminal (Jail) Appeal Nos. 14 of 2000 and Criminal (Jail) Appeal No.23 of 2000 are disposed of by this common judgment. Appellants Eid Muhammad and Mst. Sakina were represented by Mr. Zar-e---Eman, Advocate. 2. The brief facts of the case are that pursuant to Fard-e-Bayan (ERh.P/1-A) of P.W. Gul Khan recorded by the I.P./S.H:O., Police Station Saddar, Sher Afzal Awan on 11-12-1998 at 7-30 p.m. Case Crime No.237 of 1998 was registered on the same date with Police Station under section 302/34, P.P.C. The endorsement, recorded by the Police Officer below the Fard-e-Bayan shows that pursuant to information received from Constable Yar Muhammad of M.T. Section Police Line, resident of Killi Ismail, Quetta the I.P./S.H.O., Police Station Saddar alongwith the other Police Staff reached the place of Wardat being the House of Ghouse Bakhsh son of Abdul Rahim, resident of Killi Ismail and found the charred dead body of a woman lying in the residential room of the house situated
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towards west, whose face and legs were burnt and P.W. Gul Khan, present on the spot identified the dead body being that of his were namely Zarina, whose statement as Exh.P/1-A was recorded by the Police Officer on spot which was sent to the police station alongwith Murasila for registration of the case under section 302/34, P.P.C. 3. In the Fard-e-Bayan Gul Khan (P.W.1) disclosed that he alongwith his family members is residing in a rented house in Killi Ismail, Quetta and sells kerosene oil and today on 11-12-1998 at about 4-00 p.m. He was present in his house when his were Mst. Zarina alias Razia alongwith his son namely Zahid Khan alias Babu Khan aged about 5/5-1 /2 years left the house for taking clothes, whereafter at about 4-45 p.m. His said son returned alone on which he inquired about his mother and he told to him that he alongwith his mother had gone into a house and inmates of the house sent him to the shop with a female child for taking clay applied on writing wood-board According to P.W. Gul Khan his son further disclosed to him that when he came back from the shop to their house after getting clay inmates of the house told to the child that his mother had left for Hudda, therefore, he informed to his father (P.W. Gul Khan) that he has come back to his house. P.W. Gul Khan in his Fard-e-Bayan further stated that on being asked his said son took him to the house of Ghous Bakhsh son of Abdul Rahim caste Langov, in Killi Ismail, Quetta and he explained that about 4/5 years back he also remained as tenant of Ghous Bakhsh for two months. On reaching the house of Ghous Bakhsh he knocked the door of Ghous Bakhsh, on which were of Ghous Bakhsh came on the main door and looked to be disturbed, she on being inquired by Gul Khan told to him that his were had come to their house and thereafter, left to Hudda, but on account of the lady noticed to be worried and her tone raised the suspicion, therefore, he went back to his house in order to come back with a grown-up child, who can be sent inside their house to check, and; at about 5-00 p.m. He alongwith his son Zahid came back to the house of Ghous Bakhsh, but apprehended that his son might not be allowed to enter into their house, he contacted his friend Mohyuddin, Constable B.R.P. And narrated to him these facts, who also resides in the same Killi and from there he sent back his son Zahid to his own house and alongwith Mohy--ud-Din and his daugher aged about 18 years namely Bibi, they came to the house of Ghous Bakhsh at about 7-00 p.m. And saw emitting of stroke from the house of Ghous Bakhsh, whereas; the people gathered they were putting of the quilt on fire, in the drain outside the house and; the mother of Ghous Bakhsh also outside the house was found shouting and putting of the quilt on fire, therefore, he (P.W. Gul Khan) asked to his friend Mohyuddin to see by themselves by entering into the house, but they were not permitted to enter into the house and also Mohyuddin advised him not to go into the house and in the meantime police reached there, to whom he disclosed the entire facts pertaining to the missing of his were whereupon he was permitted by the police to see the dead body, whose face was burnt/charred including legs and after inspecting, he identified the dead body to be that of his were by recognizing from fingers of the hands, toes and face marks; accordingly, he alleged that the mother and were of Ghous Bakhsh i.e. Murad Bibi and Sakina have caused the death of his were in their house by putting her on tire. 4. After registration of the F.I.R. Pursuant to Fard-e-Bayan, site inspection note and sketch of place of Wardat were prepared by the Investigating Officer, during the course whereof pieces of quilt were taken into possession besides a plastic gallon and on the same day Murad Bibi mother of Ghous Bakhsh was arrested. Appellant Abdul Salam was arrested on 19-12-1998 and a letter was also seized from him. Accused Mst. Sakina were of the accused Ghous Bakhsh was arrested on 21- 12-1998 and on the next day i.e. 22-11-1998 on her pointation one iron rod, blood-stained earth and Chappal of deceased were taken into possession and vide memo. Prepared by the Investigating Officer and on the same day another accused namely Eid Muhammad was also arrested. Accused Mst. Sakina was produced before the Judicial Magistrate on 23-12-1998 and her confessional statement under section 164, Cr.P.C. Was recorded. On 26-12-1998 Mst. Murad Bibi was discharged
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under sections 169, Cr.P.C. The letter, recovered from the accused Abdul Salam was sent to the Handwriting Expert alongwith the specimen writing of P.W. Miss Shaista, who stated to have written these letters at the instance of accused Mst. Sakina. After examination of the letter seized from accused Abdul Salam and the specimen writing sent to the Expert, positive report was received. Eventually on completion of investigation and required formalities, challan for trial of the offence was filed in Court against accused Abdul Salam. Eid Muhammad and Mst. Sakina. The learned Sessions Judge, Quetta on receipt of challan alongwith the record and papers of the case transferred the same on the file of the learned Additional Sessions Judge-I, Quetta. 5. On 3-6-1999, the learned Additional Sessions Judge-I, Quetta (hereinafter referred to as the learned trial Court) indicted the accused persons under section 302/34, P.P.C. To have committed Qatl-i-Amd of deceased Mst. Zarina, daughter of Gul Khan in furtherance of common intention by means of iron rod as well as strangulation (suffocation), to which they each did not plead guilty and the prosecution to substantiate the accusation produced ten witnesses namely Gul Khan (P. W .1), Muhammad Yasin Bajwa I. P. /Handwriting Expert, Crimes Branch, Quetta (P.W.2), Muhammad Anwar H.C./P.S. Saddar (P.W.3) Ameer Abdullah, Constable Police (P.W.4), Miss Shaista (P.W.5), Dr. Shamim Gul Mashwani, Medico Legal Officer, Civil Hospital, Quetta (P.W.6), Mr. Muhammad Ilyas, Judicial Magistrate-III, Quetta (P.W.7), Abdul Khaliq H.C./Police Station Saddar (P.W.8), Noor Muhammad A.S.-I/ Police Station Saddar (P.W.9) and Nisar Kazmi I.P./Police Station Saddar (P.W.10). 6. After close of the prosecution evidence, the accused persons were examined by the learned trial Court under section 342, Cr.P.C. Wherein they each denied the accusation as well as disputed and repudiated the incriminating pieces of evidence in toto. None of the accused opted to record statement on oath in disproof of the charge within the purview of section 340(2), Cr.P.C. And no evidence in defence was produced except accused Abdul Salam, who produced only one witness in defence namely Ashiq Hussain (D.W.1). After close of the parties' case and hearing them vide impugned judgment all the three accused persons were convicted under section 302, P.P.C. And sentenced as hereinabove mentioned. 7. Prosecution evidence: Gul Khan son of Ghulam Rasool by caste Mohmand resident of Killi Ismail, Quetta (P.W.1). Pursuant to his Fard-e-Bayan Exh.P/1-A referred to hereinabove Case Crime No.237 of 1998 under section 302/34, P.P.C. Was registered. He deposed that on 11-12-1998 at 4-00 p.m. His were Mst. Zarina alongwith his child Zahid Khan left the house for stitching of cloth, but did not come back for quite' sufficient time and at about 4-45 p.m. His son Zahid Khan returned to the house and on being asked about his mother he told to him that they had gone to the house of Mst. Sakina. Who sent him for bringing clay (mait). According to the witness his son further told to him that when he came back to the house of Sakina after getting the clay (mait) he was not allowed to enter into the house of Sakina and was told that his mother had gone to Hudda and should go back to his house. Further his son, according to the witness told to him that he thereafter for some time kept on waiting at the Chungi for his mother and ultimately came back to his own house. P.W. Gul Khan stated that he inquired from his son about the house of Sakina, who answered in affirmative, therefore, he alongwith his said son went to the house of Sakina and on reaching there he knocked the door of the house of the Sakina, on which she came out of her house and looked to be disturbed, from whom he inquired about his were, and Sakina told to him that she had come to her house but thereafter, left for Hudda, therefore, he went after his were to Hudda but was not found there and he came back to house and left the child in the house. After that, he approached to his acquaintance Mohyuddin Hawaldar in his house and narrated to him the above mentioned facts, whereafter, the witness alongwith Mohyuddin and daughter of Mohyuddin went to the house of Mst.Sakina and saw a lot of noise there with smoke and fire but they were not permitted to go inside the house and after that, he came back and alongwith his son Zahid went to the house of
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Sakina so that his son can go inside the house to see by himself as to what had happened but they were not permitted to enter into the house and police also reached there therefore, he narrated all these facts to the police and the police took him inside the house for identification of the dead body. According to the witness, he saw a charred dead body inside the house which he identified to be that of his were (Zarina) by cut of her small finger. He also explained that the dead body was also identified by him by its teeth and face and at that time Mst. Murad Bibi was crying that her daughter-in-law has been burnt. He produced his Fard-e-Bayan as Exh. P/1-A, on which he identified his signature. Muhammad Yasin Baiwa IP/Handwriting Expert Police Station Crimes Branch, Quetta (P.W.2). According to him he was posted as Handwriting Expert in the F.S.L., Quetta and on 9-1-1999 he received two documents for examination alongwith three specimen documents which he examined, out of which the specimen writings were shown to have been written by Shaista. After examining the specimen written documents and the letter. Ail written in Urdu with marker revealed that the letter on account of similarity and by characteristics was similar and tally with the specimen writings accordingly; he issued report under his signature which he produced as Exh. P/2-A. Muhammad Anwar H.C/Police Station Saddar (P.W3). According to him on 21-12-1998 in Unar-Pur Sind accused Abdul Salam produced a letter comprising of two pages from his bag to the Investigating Officer Shamsur Rehman's, S.I.P. And disclosed that these letters were got written by Sakina in the hand of Shaista. According to the witness this letter was taken into possession in his presence by the Investigating Officer vide memo. Exh. P/3-A, on which he identified his signatures as one of the Musheers. He produced the letter as Article P/ I comprising of two pages. Ameer Abdullah Constable Police Police Station Airport Quetta (P.WA). According to him for the last four years he is residing in a room situated in Killi Ismail, Quetta rented out to him by Ghous Bakhsh and on 11-12-1998 he was present in his room when he saw that accused Abdul Salam stepped into the courtyard of his room through the small window, affixed in the wall from the house of Ghous Bakhsh and went outside from the door of his courtyard. Miss Shaista daughter of Amanullah, age 14 years resident of Killi Ismail (P. W.5). The witness deposed that she is student of Class 6th in the Government Girls School, Jinnah Town and is resident of Killi Ismail. According to her for last about nine months Mst. Sakina was not having good terms with her husband and other family members and she used to visit their house, who also against her will used to take her to her house and by compelling her and on swearing letters for Abdul Salam were used to be got written from her. She also stated that accused Sakina had illicit relations with accused Abdul Salam. The witness produced the letter written in her hand as Article P/ 1. Dr. Shamim Gul Mashwani (P.W.) At the relevant time she was posted as M.L.O., Civil Hospital, Quetta and on 11-12-1998 at about 10- 30 p.m. Dead body of one Zarina were of Gul Jan, caste Mohmand, resident of Killi Ismail, Quetta was brought to her by Aziz Buzdar, S.-I., Police Station Saddar, Quetta in the Casualty Department of the Civil Hospital, Quetta for post-mortem examination and keeping in view the raised temperature of the dead body, she decided to conduct autopsy in the next morning. Accordingly; at 9-00 a.m. On 12-12-1998 she commenced with the autopsy process, the dead body was found to be extensively burnt and no ligature mark on her neck was noticed. According to the Medical Officer immediate cause of earth was the head injury suffered by the deceased and after that the dead body was burnt besides the extensive burning of the body following injuries were noted on the dead body reflected it Exh. P/6-A:--
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"(1)Lacerated wound muscle deep 7 c. m x 2 c.m. On back of head. Fresh bleeding on pressing from wound. (2)Lacerated wound 4 c.m. On lower lip, separating lower lip in two halfs. (3)Irregular cutter form wound lacerated in type on left shoulder. Probable time between Immediate due death and injuryto head injury. Probable time between More than 12 Death and post- hours. mortem. She produced the autopsy report as Exh. P/6-A. Muhammad Ilyas Judicial Magistrate-III Quetta (P.W.7). He wasb postedas Judicial Magistrate-III/FMC, Quetta and on 23-12-1998 accused Sakina, nominated in case Crime No.237 of 1998 was produced before him by the Police Staff of Police Station, Saddar for recording her confessional statement. He recorded confessional statement of accused under section 164, Cr.P.C. And was produced by him as Exh. P/1-A and the certificate appended below the confessional statement was produced as Exh. P/7-B. According to the witness he asked the Police Staff to leave his chamber and he afforded time for reflection to accused Sakina who was also informed by him that she was not bound to make confessional statement, which if made, shall be used against her and further according to the witness, he told to the accused that if she makes a confession or does not confess the guilt she will be committed to judicial lock-up. The learned Magistrate stated that after pondering and availing time she volunteered to record her statement out of her own freewill and accord, therefore, he recorded her statement under section 164, Cr.P.C. And also put the prescribed questions to her and when he was satisfied that the accused willingly wanted to make statement and is free from any kind of influence he recorded her statement, whereafter, below the statement recorded by him, he issued the requisite certificate and sealed the same into the envelope which was sent by him to the learned Sessions Judge. He produced the sealed envelope as Article P/2. On which he identified his signatures. For convenience and reference statement of the accused recorded under section 164, Cr.P.C. Is reproduced hereinbelow:-- Abdul Khaliq. H. C. Police Station Quetta (P. W.8). According to this witness on 11-12-1998 he was posted in Police Station Saddar when information was received that a house has caught tire in Killi Ismail in which a woman has been burnt; accordingly, pursuant to such information he alongwith the S.H.O. Malik Sher Afzal, Shamsur Rehman's, S.-I., Abdul Ghani, S.-I. And other police staff reached the place of incident and saw smoke emitting from a room of the house and in his presence S.-I. Shamsur Rehman's prepared site inspection report and that of Abdul Ghani, A.S.-I., he produced the same as Exh. P/8-A, on which he inscribed his signature as one of the Musheers. Also in his presence Shamsur Rehman's, A.S.I. Took into possession pieces of burnt quilt and mattress vide memo. Exh. P/8-B on which he identified his signatures as Musheer. He added that these articles were sealed into parcel, produced by him as Article P/3 and the burnt pieces of quilt and mattress were produced by him as Article P/4 and Article P/5. After that, according to the witness, Shamsur Rehman's also took into possession the burnt mat vide memo. Prepared in his presence, which too was sealed into a parcel which he produced as Article P/6 and that was produced by him as Exh. P/6-C signed by him as Musheer. A plastic gallon lying in the room with kerosene smell red in colour was also taken into possession in their presence and was sealed into Parcel No.3 and memo. Signed by the witness as one of the Musheers. Was produced by him as Exh. P/8-D and the parcel was produced as Article P/7, on which he identified his signature and the gallon was produced as Article P/ 10. After that,
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according to the witness the pieces of burnt quilt and mattress lying near to the main door of the house were taken into possession and sealed into Parcel No.4 vide memo. Prepared on spot and he produced the same as Exh.P/8-E and the burnt pieces of quilt and mattress were produced as Article P/13. Noor Muhammad A.S.I. Police Station, Quetta (P.W.9). According to him in presence of Abdul Ghani, S.-I., Police Station, Saddar on 22-12-1998 during interrogation accused Sakina made a disclosure that she can effect recovery of iron bar with which she, Eid Muhammad alias Eido and Abdul Salam killed Mst. Zarina and her Chappals and the blood, which was scratched from the floor, kept in a packing as well as wrapped in red and green colour cloth, accordingly: disclosure memo. Was prepared in his presence by the Investigating Officer, S.-I. Shamsur Rehman's, which he produced as Exh. P/9-A on which he identified his signature as a marginal witness, whereafter, pursuant to the disclosure he alongwith Shamsur Rehman's, S.-I. Abdul Ghani, S.-I. And Lady Constable under the supervision of S.H.O., Nisar Kazimi went to the house of accused Sakina, situated in Killi Ismail and the accused led them to the residential room of her house, situated towards south and an iron bar lying near to the door of the room was produced by accused Sakina to the Investigating Officer and from inside the room she also picked up a bundle and gave it to S.-I. Shamsur Rehman's which was checked in his presence and it contained in tin-pack, which contained blood--stained earth and a pair of plastic chappals. These articles were taken into possession and produced by accused Sakina were exhibited as articles by the witness. Recovery memo. By which the Investigating Officer took the articles into possession was produced by the witness as Exh. P/9-B, on which he identified his signature as one of the Musheers. Nisar Kazimi I.P./S.H.O., Police Station Saddar (P.W.10). He stated that pursuant to Fard-e---Bayan of P.W. Gul Khan, F.I.R. Was registered with Police Station Saddar. On receipt of information about the incident, according to the witness, the then S.H.O., Police Station Saddar, Abdul Ghani, A.S.-I., H.C. Abdul Khaliq, Shamsur Rehman's, S.-I. And Abdul Aziz, S.-I. Went to the place of incident where also statement of Gul Khan was recorded and investigation of the case was entrusted to S.-I. Shamsur Rehman's, who inspected the place of incident, took into possession pieces of quilt and mattress, sealed the same into Parcel No.1 and a burnt mat on which the dead body was lying was also taken into possession and sealed into a parcel. Also according to the witness the plastic gallon red in colour, was taken into possession vide memo. Prepared by the Investigating Officer, besides the burnt pieces of quilt lying near to the main door of the house were also taken into possession by the Investigating Officer and prepared sketch of place of Wardat, produced by him as Exh.P/10-A, on which he identified signature of the Investigating Officer. Statements of P. Ws. Yar Muhammad and Ameer Abdullah under section 161, Cr.P.C. Were also recorded by the Investigating Officer including the statement of H.C. Abdul Khaliq and Abdul Ghani, S.-I., and site inspection note was also prepared by the Investigating Officer, on which he identified signature of the S.-I. Shamsur Rehman's and on the same date Murad Bibi was arrested, whereas; according to the witness on 19-12-1998, the Investigating Officer arrested accused Abdul Salam from Railway Station Quetta. He stated that accused Sakina was arrested on 21-12-1998 by the Investigating Officer, who also took into possession a letter from accused Abdul Salam, whereas; Eid Muhammad was arrested by the Investigating Officer on 22-12-1998, on which date on the pointation of the accused Mst. Sakina one iron bar, blood--stained earth, pair of Chappals of deceased were taken into possession by the Investigating Officer which were sealed into separate parcels. According to him the disclosure memo. Exh. P/9-A was prepared by the Investigating Officer, on which signature of S.-I. Shamsur Rehman's was identified. He added that the Investigating Officer also produced accused Sakina before the Judicial Magistrate-III, Quetta for recording her confessional statement and on 26-12-1998 Murad Bibi was discharged under
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section 163, Cr.P.C. Accused Salam and Eid Muhammad were sent to judicial lock-up on 1-2-1999 and the Handwriting Expert Report was received by the Investigating Officer on 16-2-1999 and the medical report was received on 4-2-1999 by the Investigating Officer. After completion of investigation according to the witness record and papers of the case were handed over to him for preparation of challan. He produced the challan as Exh. P/10-B. 7. Defence Evidence Ashia Hussain son of Yar Muhammad, resident of WAPDA Colony, Jamshoro (D. W.1) He stated that accused Abdul Salam is known to him, who is employed as Munshi in the office of the Oil Tanker Union at Jamshoro. He stated that on 10-12-1998 to 18-12-1998 accused was present with him at Jamshoro. 8. The learned counsel for the appellant as well as Mr. Akhtar Zaman, learned Additional Advocate- General have been heard at length. Mr. Muhammad Aslam Chishti for appellant Abdul Salam contended that:-- A. It was an unwitnessed occurrence and as per medical evidence death was caused by head injury not attributed to accused Abdul Salam rather as per statement of accused Mst. Sakina recorded under section 164, Cr.P.C. The fatal head injury was attributed to accused Eidu and the alleged role of strangulation of the deceased lady in such statement was also assigned to accused Eidu which if be believed, contradicts the medical evidence as to the cause of death. The only evidence on which the prosecution case mainly rests is the confessional statement of accused Sakina and the same is exculpatory in nature because it was disclosed in such statement by its maker that she had no intention to kill the deceased, therefore, the…
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