1983 P Cr (PLP)

3. Raja Muhammad Azim S.

1. P. W. 12 after recording statement -Exh. P. C. prepared inquest report Exh. P. W. 12/A regarding the dead body of Muhammad Munir deceased which was lying in the Ganga Ram Hospital and sent the same for post-mortem examination. The investigation was then taken over by Malik Muhammad Ashraf, P. W. 13, S. H. O. Police Station, Mozang. He arrested appellant Muhammad Latif and Mst. Meraj Begum alias Maji (acquitted co-accused) on 23-11-1975. On the same day appellant while in police custody led to the recovery of blood-stained Chhurri P. 11 and its handle P. 12, also blood-stained lying underneath a chair from a room of his house. Both these articles were taken into possession vide Memo. Exh. P. D. He also took into possession stains of blood from the place of occurrence by soaking the same in a piece of cotton which he sealed in a tin and took the same into possession vide Memo. Exh. P. F. He also took into possession blood-stained pantaloons, P.13, blood-stained jacket P. 14 and blood-stained bushirt P. 15 by removing the same from the person of Muhammad Latif appellant at the time of his arrest vide Memo. Exh. P.E. All these memos, were attested beside the S.H.O by Mushtaq Ahmad P. W. 4 and Salah-ud-Din P. W. (not produced). Letters P. 7 and P. 8 allegedly written by Mst. Shaheen alias Shehzadi sister of Muhammad Latif appellant to Muhammad Munir deceased were produced by Muhammad Amin P. W. on 25-11-1975 before the S. H. O. P. W. 13 who took the same into possession vide Memo. Exh. P. B. The S. H. O. also took into possession photostat copy of the joint account of Mg. Shaheen alias Shehzadi sister of the accused and Muhammad Munir deceased Exh. Mark 1 and 2 vide recovery Memo. Exh. P. W. 10/A. After completion of necessary investigation the challan was submitted to Court.

4. The prosecution case briefly as narrated in the F. I. R. Exh. PC/1 is that Muhammad Munir deceased, real brother of Muhammad Shafiq complainant P. W. 3 had taken up residence in a hired baithak in Ihata Din Muhammad, Nazuli Bazar, Mozang. On the day of occurrence, complainant alongwith Mushtaq Ahmad P. W. 4 and P. Ws. Salah-ud-Din, Muhammad Amin (not produced) were sitting with the deceased in his baithak. Mst. Meraj Begum alias Maji (acquitted accused), mother of the appellant came there. The deceased on her asking want alongwith her to her house. At about 11-30 a. m. there was some noise from the side of the house of Mst. Maji. Mst. Maji was asking Muhammad Munir deceased that he will have to marry her daughter Mst. Shaheen alias Shehzadi but the deceased was refusing and demanding Rs. 8,000, which he had given to her. On this Muhammad Latif appellant son of Mst. Mehraj Begum alias Maji attacked the deceased with a chhuri and gave two injuries on the left side of the head, and 3 more injuries on the shoulder, wrist joint and back of left chest. During this Mst. Maji was exhorting her son, the appellant, "kill him, she will look after". Muhammad Munir deceased on receipt of injuries fell down. The occurrence was stated to have.been seen by Mushtaq Ahmad P. W. 4 and Salah-ud-Din, Muhammad Amin P. Ws. (not produced). It is further stated that on the intervention of the complainant, Muhammad Latif appellant ran away. Muhammad Munir deceased was removed to Ganga Ram Hospital, where he died.

5. The motive for the occurrence as stated in the F. I. R. is.that since a year before the occurrence, Muhammad Munir deceased had developed illicit relations with Mst. Shaheen alias Shabzadi daughter of Mst. Mehraj Begum alias Maji and on account of this he had been financially helping the family. Mst. Mehraj Begurn alias Maji was pressing the deceased to marry her daughter but the deceased was interested only to the extent of keeping illicit relations. It is stated that on the day of occurrence, Muhammad Munir deceased demanded the money that he had paid. Muhammad Latif appellant killed him for the reasons that be was demand ing the money and was also carrying on with his sister but refusing to marry her.

6. At the trial the prosecution in all produced 13 P. Ws. Muhammad Shafiq P. W. 3 and Mushtaq Ahmad P. W. 4 have given the eye-witness account and the evidence of motive. Mushtaq Ahmad P. W. 4 has also stated regarding recovery of blood stained chhuri P. 11 and handle P. 12 at the instance of the appellant. He has also given evidence regarding taking into possession of blood-stained clothes of the appellant, i.e. pantaloons P. 13, jacket P. 14 and bushirt P. 15 which were removed from the person of the appellant at the time of arrest by Malik Muhammad Ashraf S. H. O. P. W.

13. He has also stated that the bloodstains were collected from the spot by soaking the piece of cotton vide Memo. Exh. P. F. which he bad attested. Muhammad Nazir P. W. 5 and Muhammad Ramzan P. W. 6 have stated regarding the relations of the deceased with Mst. Shaheen alias Shehzadi. Muhammad Ramzan P. W. 6 who was a shopkeeper has also stated that he had been giving the required articles to the members of the family of Mst. Meraj Bibi alias Maji under instructions from Muhammad Munir deceased who has been paying the bills of these articles. Muhammad Bashir P. W. 10 who was Acting Manager of United Bank, Temple Road Branch stated that Muhammad Munir deceased and Mst. Shaheen alias Shehzadi had opened a joint account in his branch. He produced photostat copy of Mark of the original Form submitted by Muhammad Munir deceased and Mst. Shaheen alias Sbehzadi. He also produced photostat copy of the photographs of Mst. Shehzadi and Muhammad Munir deceased attached with the Form and photostat copies of their specimen signatures. Bashir Ahmad P. W. 11 who was running a barber shop has stated that Muhammad Munir deceased used to foot the bills of Muhammad Latif appellant for haircutting, etc.

7. The appellant denied the charge. In answer to the question, "Is it a fact that your sister namely, Mst. Shaheen alias Shehzadi developed illicit relations with Muhammad Munir deceased?" he stated:- I did not know the said fact prior to the time of the alleged occurrence. Mst. Shaheen alias Shehzadi was a school going girl of 13/14 years of age. He denied the knowledge regarding the joint account opened by the deceased aid Mst. Shaheen alias Shebzadi in the United Bank but he admitted that photographs Exh. P. 9 and P. 10 are joint photographs of Mst. Shaheen alias Shehzadi and Muhammad Munir deceased. During examination under section 342, Cr. P. C. he owned blood-stained chhuri P. 11 handle P. 12, pantaloons P. 13, Jacket P. 14 and bushirt P. 15 all blood-stained. In answer to the question "Why this case against you" he stated:- "At the alleged time of occurrence I arrived at my house from welding shop and when passed through my kitchen in the alleged room of occurrence, I found Mst. Shaheen alias Shehzadi, my sister lying on a cot and Muhammad Munir deceased fondling in a loving mode. On seeing them in, such a position. . I lost self-control and laid my hand upon a kitchen chhuri and, therefore, under the stress of grave and sudden provocation, injured Muhammad Munir deceased with the said Chhuri, but Mst. Shaheen alias Shehzadi managed to escape in the meanwhile. Mst. Meraj Begum alias Maji accused was away to bazar for purchase of domestic articles and was not present in the house at the time of occurrence. The instant case has been brought against me due to the influence of the complainant party." In answer to the question, "Do you want to say anything else," he stated:- "Just after the occurrence 1 went to the police station to lodge the F. I. R. in respect of this case. The local police arrived at the spot alongwith me. The deceased had not yet expired. He managed to be removed from the spot to Ganga Ram Hospital by the police. None of the alleged P. Ws, were present at the spot at that time or at the time of alleged occurrence. They were subsequently called at the spot at the instance of the police and are false witnesses." He also produced in defence three P. Ws. D. W. 1 is Muhammad Anwar F. C. who had been entrusted with the summons of Lady. Doctor Parveen Gohar as she was not available. He returned the summons with the report that she has gone to Iran and is not expected to come back in Pakistan, in the near future. Muhammad Aslam Sheikh record keeper of Ganga Ram Hospital has stated that he had been working with the Lady Doctor Mst. Parveen Gohar who was posted as C. M. O. in Ganga Ram Hospital and so could identify her signatures and her handwriting. He produced certificate Exh. D. W. 2/1 prepared and signed by the Lady Doctor Parveen Gohar. According to this document, Muhammad Munir son of Muhammad Din aged 33 years was received dead in C. O. D. at 12-20 p. m. on 23-11-1975. Muhammad Shafi Reader to the Court of Ch. Muhammad Yaqoob M. S. 30, D. W. 3 produced judicial file pertaining to the case State v. Shafiq, etc." under section 376/452, P. P. C. in which bail bond filed by Muhammad Amin son of Mehr Din for standing surety for Muhammad Shafiq was attached. He has stated that Muhammad Shafiq was real brother of Muhammad Amin surety. The learned counsel for he appellant has argued that the plea of grave and sudden provocation taken by the appellant is worth reliance as not only it finds support from the F. I. R. that the deceased had illicit relations with his sister but also from the fact that the deceased was murdered in a room of the house of the appellant where he had no right to go as he was certainly not related to the appellant's family. It is contended that in view of the improvements made by Shafiq P. W. 3 during his statement in Court over his statement Exh. P. C. and by the improvements made by Mushtaq P. W. 4, their evidence should be ruled out of consideration.

8. We do not think that in the context of this case where the motive for commission of occurrence is almost admitted both by the prosecution and the appellant (of course with different gravities), and in view of the fact that the appellant himself has not only made a statement that he had caused injuries with Chhuri P. 11 to the deceased as a result of which he later died and has also admitted that the S. H. O. P. W. 13 during the investigation had got removed his clothes, pantaloons P. 13, jacket P. 14 and bushirt P: 15, the discrepancies in the statements of the eye-witnesses cannot be so material so as to affect the merits off' this case. What is required in this case is to examine the prosecution case by putting the same in juxtaposition with the plea of grave and sudden provocation taken by the appellant. The defence evidence produced by the appellant is of no consequence and does not advance the case of the appellant in any manner. The appellant in his statement has not denied that the deceased Muhammad Munir had developed illicit relations with Mst. Shehzadi, nor has he denied that Mst. Shehzadi had a joint account of the deposits with Muhammad Munir deceased in United Bank, Temple Road Branch. He has only expressed lack of knowledge. Similarly he has only expressed lack of knowledge regarding letters Exhs. P. 7 and P. 8 said to have been written by Mst. Shehzadi to the deceased. Although he has specifically denied that Muhammad Munir deceased used to pay expenses of the members of his family including himself but he has admitted that joint photographs Exhs. P. 9 and P. 10 are those of his sister and Muhammad Munir deceased. The accumulative effect of the prosecution evidence regarding the existence of joint account having been opened by the deceased with the sister of the appellant, the letters written, joint photographs and the deceased was paying the expenses of the members of the family of Mst, Shehzadi including the appellant in pursuance of the illicit relationship between her and the deceased particularly in view of the fact that the appellant has not specifically denied these allegations except that of the maintenance of the family by the deceased, is that doubtlessly illicit intimacy of the sister of the appellant with the deceased was not without his knowledge. The situation clearly had developed to a degree where the deceased was having unofficial licence of coming into the house of the appellant and mixing with his sister. In view of this we do not find any force in the plea of grave and sudden provocation taken by the appellant. In view of the abundant evidence it is clear that the illicit intimacy could not have been without the knowledge of the appellant, we do not think that any case for grave and sudden provocation is made out. There is no reason to disbelieve the prosecution evidence which in its totality has proved the case beyond any reasonable doubt against the appellant of having murdered the deceased. We therefore uphold his conviction under section 302, P. P. C.

9. With regard to the sentence we have considered the arguments of the learned counsel for the appellant that it was not a case of extreme penalty for the reason that the deceased had involved himself with the sister of the appellant in such a manner and to such an extent that his refusal to marry Mst. Sbehzadi and his demand for return of money that he had been paying would have given the appellant if not provoca tion at least complete frustration. The appellant suddenly felt enraged by the refusal of the deceased to marry Mst. Shehzadi and without any premeditation or any pre-planning picked up the kitchen Chhuri and murdered the deceased. In the circumstances, we feel that a case for lesser penalty of imprisonment for life is made out in this case. We therefore, while rejecting the appeal of the appellant set aside the sen tence of death and instead sentence him to undergo imprisonment for life. The sentence of fine is however maintained. However, we direct that which of the fine, if recovered, shall be paid as compensation to the heirs of the deceased.

10. The appellant shall, however, be given the benefit of the pro visions of section 382-B of the Code of Criminal Procedure. The period of his detention during the trial shall be counted towards the sentence already undergone. Death sentence not confirmed.