Mr. Justice Shehram Sarwar Ch. in his judgment has decided the issue regarding acceptance or rejection of accused’s confessional statement in entirety under section 342 Cr.P.C. in Criminal Appeal No. 862 of 2011.
1. Mst. Amena Gulnaz alias Aimena (appellant) alongwith her co-accused namely Allah Ditta and Ijaz Hussain was tried by the learned Sessions Judge, Dera Ghazi Khan in case FIR No.966 dated 01.12.2010, offences under Sections 302 and 34 PPC, registered at Police Station Saddar District Dera Ghazi Khan for the murder of Abu Bakar (deceased), paternal nephew (bhatija) of the complainant. Vide judgment dated 14.09.2011 passed by the learned Sessions Judge, Dera Ghazi Khan, Mst. Amena Gulnaz alias Aimena (appellant) has been convicted under Section 302(c) PPC and sentenced to fourteen years simple imprisonment, with a further direction to pay Rs.1,00,000/- (rupees one lakh only) as compensation under Section 544-A, Code of Criminal Procedure to the legal heirs of the deceased and in default whereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. However, through the same judgment co-accused of the appellant namely Allah Ditta and Ijaz Hussain have been acquitted of the charge by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or by the complainant. Assailing the above conviction and sentence, Mst. Amena Gulnaz alias Aimena(appellant) has filed the appeal in hand.
2. Precisely, facts of the case, as contained in the FIR (Ex.PC/1) registered on the statement (Ex.PC) of Ghulam Yaseen, complainant (PW.5) are that he was a labourer. His brother Muhammad Shafi, who was resident of Mehtar Colony, Dera Ghazi Khan, had to go to Saudi Arabia on 02.12.2010 and the complainant along with his brother Fayyaz Ahmad and son-in-law Muhammad Bilal son of Ghulam Rasool were present in his house. On the day of occurrence i.e. 01.12.2010 at Asar wela, Muhammad Abu Bakar and Muhammad Bilal went from the house to purchase grocery and when they reached near wooden toll of Allah Ditta Patafi near Union Council Manka Road, Allah Ditta son of Ghulam Qadir, armed with sota intercepted them. He called his son Ijaz and daughter Amena Mai from the nearby house and raised lalkara to teach a lesson to Abu Bakar for insulting him. Meanwhile, the complainant and Fayyaz Ahmad reached at the spot and within their view, Mst. Amena Mai armed with pistol and her brother Ijaz emerged from the nearby quarter. Amena made straight firing at Abu Bakar, who fell down after sustaining firearm injuries. When the complainant party tried to apprehend Mst. Amena Mai in order to stop the firing, Ijaz after taking pistol from Amena Mai pointed the same on the complainant’s side and made fire which hit Abu Bakar. The complainant party got frightened and the accused considering Muhammad Abu Bakar as dead fled away alongwith pistol. The complainant party attended Muhammad Abu Bakar who was lying in injured condition, besmeared with blood. He was shifted to DHQ Hospital on the vehicle of rescue 1122. Motive behind the occurrence as alleged in the FIR was a domestic dispute of Abu Bakar with Allah Ditta and his family members and in the morning of day of occurrence, hot words were exchanged between Allah Ditta and Muhammad Abu Bakar. It was alleged that due to that grudge, Allah Ditta, his son Ijaz and daughter Amena, in consultation with each other, launched a murderous assault on Muhammad Abu Bakar and caused him injuries.
3. Initially the case was registered under Section 324 and 34 PPC and on the death of Abu Bakar (deceased), Section 302 PPC was added. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted before the learned trial court. The appellant and his co-accused namely Allah Ditta and Ijaz Hussain were summoned by the learned trial court to face the trial and after fulfillment of codal formalities, they were charged sheeted under Section 302 read with Section 34 PPC on 30.04.2011. After closeure of prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure were recorded on 10.09.2011, wherein they refuted all the allegations of the prosecution. In answer to a question as to why the case against her and why the prosecution witnesses had deposed against her, Mst. Amena Gulnaz alias Aimena (appellant) replied as under:
“On the day of occurrence, I was present in the house of my father. My brother Ijaz and his wife Kundan Mai reside with my father. Abu Bakar is the nephew of Kundan who used to visit Kundan Mai. On the day of occurrence I was alone in the house of my father when Abu Bakar came to deliver clothes to his Aunt Kundan Mai. I told him that Kundan Mai was not present in the house and I was alone in the house. Upon hearing this he gave me the clothes of his Aunt and left the house. After a short while Abu Bakar decease came back armed with pistol. He threatened me to keep silent otherwise he would kill me. Then he committed Zina with me on pistol point without my consent. I could not resist due to fear of my life. He committed Zina with me on a mattress lying on the floor. After committing Zina he put down the pistol for wearing his shalwar. When he had worn shalwar, I lifted the pistol and fearing for my life and in extreme anger because of being raped made fire shots at Abu Bakar. This false case was registered against me, my father and my brother Ijaz in order to cover up this gruesome act of Abu Bakar deceased.”
The appellant neither opted to appear as her own witness as provided under Section 340(2) Code of Criminal Procedure nor she produced any evidence in her defence. However, after conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above whereas her co-accused namely Allah Ditta and Ijaz Hussain have been acquitted of the charge. Hence this appeal.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the learned trial court has totally disbelieved the version of the prosecution in its entirety but convicted and sentenced the appellant on the sole basis of her statement recorded under Section 342, Code of Criminal Procedure wherein she admitted that Abu Bakar (deceased) committed zina with her on pistol point and after committing zina, when the deceased put down the pistol for wearing his shalwar, the appellant picked up pistol and made fire shots at the deceased because of being raped; that the learned trial court disbelieved the presence of Ghulam Yaseen complainant (PW.5) and Muhammad Bilal (PW.6) at the place of occurrence as they are not residents of the locality where the occurrence took place; that the complainant admitted during his cross examination that it takes two hours for going from his house to the house of his brother Muhammad Shafi by motor vehicle whereas Muhammad Bilal (PW.6) stated that his house is at a distance of 12/13 miles from the place of occurrence; that the complainant made dishonest improvements before the learned trial court to strengthen the prosecution case; that the motive set up by the prosecution in the FIR was a domestic dispute of Abu Bakar (deceased) with Allah Ditta and his family members and in the morning of day of occurrence, hot words were exchanged between Allah Ditta and Muhammad Abu Bakar; that the complainant while appearing before the learned trial court twisted the motive by stating that Allah Ditta accused wanted to give hand of his daughter Fauzia Bibi to Abu Bakar (deceased) but he refused and on the day of occurrence at morning time, a quarrel also took place between Abu Bakar and Allah Ditta accused.
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