2003 SCMR 219 (PLP)

FALAK SHER, J.‑‑‑Rehmat Ali appellant having reported the murder of his married daughter Mst. Kaniz Bibi aged 24/25 by his paternal cousin Muhammad Nawaz respondent culminating into his conviction and sentence under section 302(b) to death with a fine of Rs.25,000 or in default to suffer two years' R.I. by Additional Sessions Judge, Chiniot, District Jhang, discarding the defence plea of accidental firing, vide judgment dated 28‑6‑1993, however on appeal (No.522 of 1993 and Murder Reference 203 of 1993) a learned Division Bench of the Lahore High Court persuaded by the respondent's version juxta‑posing the same with the prosecution setting aside the recorded conviction and sentence opining it to be a case of accidental firing convicted him under section 322, P.P.C. directing defrayment of Diyat to the surviving legal heirs of the deceased i.e. the appellant and two minor children for her husband having already received the same and the mother having waived it vide the impugned judgment dated 25‑11‑1996 answering the Murder Reference in the negative.

2. Aggrieved whereby Criminal Petition for Leave to Appeal No.403‑L of 1996 was preferred by the appellant, wherein leave was accorded on 26‑2‑1997 for re‑appraisement of the evidence .hence the appeal.

3. Rehmat Ali appellant on 17‑4‑1991 ground 8‑30 p.m. lodged F.I.R. Exh.PA with Akhtar Ali then S.‑I. P.W.7 at Police Station Lalian, District Jhang, alleging that he is labourer by profession, has seven daughters and three sons amongst whom five elder daughters are married, Mst. Kaniz Bibi being the eldest was married 7/8 years ago having two children with advance stage of pregnancy of 7/8 months, 5/6 days prior to the incident had come to his house. On the preceding day i.e. 16‑4‑1991 Muhammad Nawaz respondent had a quarrel with Jamshid Ali Lalie's servant and thrashed him whereupon Jamshid Lali asserted that he will revenge the insult of his servant from "Machis". Being apprised of the same, he went to Jamshid Lali and pleaded that though Muhammad Nawaz is his paternal cousin but he has no concern with him and 5/6 months ago on the issue of Imam Masjid had given him beating, beseeched that he may even break his legs but do not entangle him in this event. Muhammad Nawaz respondent upon learning this went to Muhammad Mansha a cousin of the appellant and told him that he will not spare the appellant for having prompted Jamshid Lali to break his legs. At that juncture Feroz was also sitting with Mansha and both tried to dissuade him from his designs but he insisted. Muhammad Mansha came to his place of abode around evening time and narrated the incident advising him to be careful, while he was accompanied by his brother Ghulam Muhammad P.W. Around 8‑00 p.m. Muhammad Nawaz respondent approaching the appellant's house in the street hurling rebukes proclaimed that he will not spare the appellant. At which juncture appellant's daughter Mst. Kaniz Bibi deceased showed up and returned the rebukes. Attracted by hue and cry; the appellant alongwith his brother Ghulam Muhammad P.W. and Muhammad Mansha cousin respectively went out in the street and within their sight, Muhammad Nawaz respondent fired a gun shot landing at his daughter Mst. Kaniz Bibi's right eye and head as a result whereof she lost her eye with brain matter oozing out to which she collapsed on the ground and succumbed to the injuries.

4. Akhtar Ali P.W.7 after recording the F.I.R. proceeded to the spot, prepared the injury statement of the deceased Exh.PF; inquest report Exh.PG despatched the dead body with Abdul Ghafoor, Constable P.W.6 for post?mortem examination who later on tendered her last‑worn blood stained shirt EXh.P.I, Shalwar Exh.P.2 and Dopatta Exh.P.3 secured into possession vide memo. Exh.P.C, collected blood‑stained earth from the spot vide memo. Exh.P.B, attested by the appellant and Muhammad Mansha; arrested the respondent on 6‑5‑1991 who a couple of days later on 9‑5‑1991 led to the recovery of gun Exh.P.4. from his house which was taken into possession vide memo. Exh.P.D, attested by the same witnesses concerning which separate case under the Pakistan Arms Ordinance, 1965 was registered; got site plan Exh.P.H, prepared from Abid Hussain Sherazi‑Draftsman, P.W.5. In cross, examination affirming that on reaching the venue being thoroughfare around 9‑00 p.m. the respondent divulging his version stated that on learning that Jamshid Lali alongwith his companions equipped with various armory had attacked the house of his relative, he took out his gun and ran towards them enroute he met the deceased who asked him to have a turban around his neck and while she was tying up the turban his gun accidentally went off hitting the deceased which during the investigation was found to be correct.

5. The appellant P.W.2 at the trial testifying the prosecution story in cross‑examination stated that house of Muhammad Nawaz respondent was situated 2/3 Kanals away from his, he did not fire at him or Mansha, pleading ignorance as to where the deceased's husband Muhammad Yousaf made a statement as to receipt of compensation as Qisas. To the same effect his brother Ghulam Muhammad P.W.3, deposed while Muhammad Mansha, his brother Barkhurdar and his cousin Feroz were given up as won over.

6. Dr. Muhammad Sharif P. W.4 tendered the post‑mortem report Exh.P.E revealing:‑‑ "(1)????? A lacerated wound of 17 c. m. x 9 on the left side of skull. The left eye had been destroyed. The corresponding portion of skull broken into pieces. Brain matter had come out. The edges were contused and irregular. There was slight blackening on the edges. The edges were inverted on interior side. The edges were averted on back side." Stomach containing the litre of semi‑digested food, utrus enlarged and contained dead female baby of seven months old, the opined cause of death was due to injury on vital organ, i.e. brain sufficient to cause death in ordinary course of nature, anti‑mortem of fire‑arm origin, time lapse between the injury and death was immediate post‑mortem whereof was conducted within 12/24 hours in cross‑examination affirmed that the shot was fired from a close range.

7. Whereas Muhammad Nawaz respondent entering the plea of denial while recording his statement perceived by section 342, Cr.P.C. replying to question 8 gave the defence version in the following, terms:‑‑ Q.No.8.‑‑‑Why the P.Ws. have deposed against you? and why this case against you? The P. Ws. are related inter se Rehmat Ali complainant a greedy man. He wanted to have a relation in consideration of deceased. 6 am innocent in this case. The complainant had a grudge against me. The brother of Mansha P.W. had a quarrel with Jamshaid Lali and his servants and Jamshaid Lali wants to take revenge of that quarrel, therefore, they armed with. weapons and wanted to attack the houses of Machies. When I heard this fact I alongwith licensed gun came out of my house and ran to the houses where they wanted to attack. In the way, Mst. Kaniz Bibi met me and asked me that you are going to the Machines house and asked me to have a turban around your head and that she started tying my turban around my head and the gun which I wanted to put on the ground, it slipped from hands and it went off and hit the deceased accidentally. Rehmat Ali complainant abducted one lady Mst. Zenab and went to Karachi. After this the heirs of the deceased namely Muhammad Yousaf husband of deceased Mst. Naziran the complainant's wife made a statement in this Court and forgave me. The heirs of the deceased received compensation as Qisas in the Court. When Rehmat Ali heard about this fact he also wanted to grieve his palm and in this respect he asked me to give some cash payment and wanted . my daughter's hand for his son. " Opting not to depose on oath in terms of section 342 (2) ibid, examined Muhammad Riaz, a local Grosser D.W.1 and Muhammad Yousaf

13. W.2 co‑villager in support of his plea.

7. The learned trial Court juxtaposing the prosecution version with that of the defence plea discarding the latter being absurd recorded his conviction and sentence under section 302 (b), P.P.C. to death with a fine of Rs.25,000 or in default to suffer two years' R.I. vide judgment dated 28‑6.1993. However on appeal a learned Division Bench of the Lahore High Court opining in the converse setting aside the respondent's conviction and sentence under section 302 ibid, convicted him under section 32" ibid directing payment of "Diyat" to the legal heirs of the deceased i.e. father and children husband reported to have received his share and the mother having waived, answering the Murder Reference in the negative vide the impugned judgment dated 25‑11‑1996, out of which present appeal has stemmed of.

8. Wherein learned counsel for the appellant pleaded for reversing the finding for the defence plea being an utter absurdity beyond the realm of reasonability and the prosecution having proved its case beyond the realm of doubt in a promptly lodged F.I.R. by the appellant whose presence at the venue being natural who alongwith his brother being the deceased's father and paternal uncle having no motive to maliciously involve the respondent leaving the real culprit go scot free, corroboration whereto has been furnished by unimpeachable medical evidence coupled with the respondent's absconsion and the recoveries.

9. While, learned counsel appearing on behalf of the respondent submitted that being an appeal against acquittal of the capital charge, the Court should not interfere merely because another view on re‑appraisement of the evidence is possible unless the conclusion arrived at by the Court below was inconceivable by a reasonable person placing reliance on PLD 1985 SC 11 "Ghulam Sikandar and another v. Mamaraz Khan and another)" further the learned Division Bench of the High Court having ordered payment of Diyat in view of waiver of Qisas by the deceased's husband and mother verdict under section 302(b) cannot be returned and the impugned judgment is sustainable under section 311 ibid.

10. Having minutely examined the entire evidence, we are impelled to observe that the learned Division Bench of the High Court while juxtaposing the prosecution and the defence version have erred in excluding the medical evidence from consideration which completely shatters the foundation of the defence plea viz. the bullet entering from the right eye made an exit from the rare of the head smashing the brain matter, demonstrative of the fact that the shot was fired from the front holding barrel of the gun in straight, position from very close range which is borne out from the site plan and is utterly incongruous with the defence plea of accidental firing viz. slipping of the gun while the deceased was tying turban to the respondent which fell on the ground and went off, because had that been so seat of the injury ought have been at any other portion of her anatomy from chin, engulfing her protruded belly on account of advanced pregnancy, down below.

11. Conversely, the prosecution story deposed by the appellant having promptly lodged the F.I.R. at the Police Station whose testimony remained unimpeached despite searching cross‑examination fully corroborated by his brother Ghulam Muhammad P. W.2 whose evidence cannot be brushed aside merely on account of their relationship with the deceased specially visualized in the light of the fact that they were equilaterally related to the respondent as well, whose presence at the venue and time being immediate inhabitants thereof is perfectly natural, having no motive to maliciously involve him as the sole accused for the murder of their daughter, leaving the real culprit go scot free coupled with the respondent's absconcion; the medical evidence as to locale and range of the firing, proving the prosecution case against the respondent beyond the realm of doubt.

12. In view whereof the former plea urged by the learned counsel for the respondent is not attracted on the circumstances of the case.

13. Likewise the second plea has been advanced without keeping in mind that neither any formal compromise nor any material evidence as to alleged compounding of the offence has been brought on record nor the acclaimed waiver on the circumstance of the case would justify upholding the same.

14. As a necessary corollary of the aforegoing, the prosecution case stands proved beyond any shadow of doubt against the respondent of a brutal p murder of a young woman visibly carrying an advanced pregnancy with no mitigating circumstances.

15. Consequently the impugned judgment is set aside, and the respondent is convicted under section 302 ibid; however on the circumstances of the case we are of the opinion that interest of justice would be sufficiently served if instead of capital punishment imprisonment of life is E awarded in addition to fine of Rs.25,000 in default to suffer two years' R.I. defraying Rs.50,000 as compensation to legal heirs of the deceased within the contemplation of section 544‑A of the Cr.P.C. availing the benefit of section 382‑B. N.H.Q./R‑61/S??????????? Appeal accepted.