P L D 1983 Lahore 619 (PLP)

Muhammad Salim (23) and Asif Mahmood (22) were convicted under section 307/34, P. P. C. by Magistrate section 30, Lahore, on 22-12-1981. Both were sentenced to seven years R. I. and to a fine of Rs. 5,000 each, in default to undergo one year R.I. Out of the fine, if realised, a sum of Rs. 5,000 was ordered to be paid to Mst. Shabnam as compensation. The appeals of the convicts are before me.

2. Mst. Shabnam, dancing girl was carrying on with Muhammad Salim appellant, who used to visit her. Eventually, they got married but the marriage did not last long. After about a year, they separated. Mst. Shabnam reverted to her profession and came over to her mother, with a newly-born daughter. The appellant tried to bring her back, but she refused to go with him. On 21-9-1980, after mid-night, Mst. Shabnam, her mother and their companions Zahoor Hussain, Munir Hussain and Waqar Hussain were on their way to the house of Mst. Shabnam. The two accused appeared on a scooter near the shop of a petition writer. Muhammad Salim asked Mst. Shabnam to accompany him. Upon her refusal, he fired three shots at her. The two shots hit her in the abdomen and the right flank. Thereafter, both the accused made good their escape on the scooter and Mst. Shabnam was carried to the Mayo Hospital, Lahore, where she was examined by P.W. 6, Dr. Abdus Sattar Ch. who found the following injuries on her person: ; "(1) Circular injury like bullet injury with irregular margin which is blackened on right lumber region of abdomen 13 cm right to the umblicus. (2) Circular injury like bullet injury with irregular blackened margin upper lateral aspect of right thigh."

2. Upon information, P.W. 8 Shahbaz Khan, A. S.-I. reached the hospital and recorded the statement of P. W. 3 Mst. Nasim mother of the victim at 1-30 a.m. on the basis of which, formal F. I. R. Exh. P. A./1 was recorded at Police Station, Tibbi, the same night at 2-00 a.m.

3. After the registration of the case; both accused were arrested on 23-4-1980. On their search, revolver Exh. P. 1 with two live cartridges P. 2/1-2 were recovered from the person of Muhammad Salim. These were taken into possession vide memo. Exh. P. C. attested by Haji Muhammad and P. W. 5 Muhammad Tufail. A revolver was also recovered from the personal search of Asif Mahmood alias Gogi, which was taken into possession vide memo. Exh. P. D. attested by P. W. 5 Muhammad Tufail and Haji Muhammad (given up as won over). After completing the investigation, the accused were sent up for trial. .

4. During their examination under section 342, Cr. P. C., both the accused denied guilt. They ascribed the case to enmity. Muhammad Salim denied his marriage with Mst. Shabnam though he admitted that he was carrying on with her and since she lived with him, her mother and other relations turned against him and that on the night of occurrence, some unknown assailants had assaulted her and in order to get rid of the accused, they substituted him for the real assailants. Asif Mahmood took up the plea that he had been falsely roped in because of his friendship with Muhammad Salim. Both the accused produced no defence.

5. Learned counsel for the appellants contended that it was a nigh occurrence and the identification of both appellants was doubtful. I have considered this aspect of the case. During cross-examination of the witnesses it was not suggested to them whether it was dark. It is common knowledge that streets of big towns, are lit with electric light. Had it been a dark night, there would have been some suggestion. In the absence of a suggestion, there is no evidence to indicate that it was a dark night.

6. It was next contended that the eye-witnesses were interested. Undoubtedly, they are connected with the victim in one way or the other but P. Ws. Zahoor and Waqar had no axe to grind against the appellants though Mst. Shabnam and her mother bad differences with one of them. There is no doubt that Muhammad Salim appellant had come over to the place of occurrence and tried to persuade Mst. Shabnam to acompany him. The sole question for determination would be whether he acted under grave and sudden provocation. It is the prosecution case itself that Mst. Shabnam was the wife of the appellant. It is also admitted by Mst. Shabnam's mother that the appellant visited their house twice and tried to take away Mst. Shabnam but she refused to go with him. According to Mst. Shabnam, she had filed a suit for the dissolution of marriage, but there is no documentary proof to this effect. It appears that it was embarrassing for the appellant to acknowledge his marriage with a dancing girl. There are, however, circumstances appearing in the evidence of this case, which amply prove that he had married her. On the other hand, the story put up by Mst. Nasim and her daughter about the dissolution of marriage suit appears to have been put up in order to aggravate the offence. Had there been a suit pending, it would not have been difficult for both to produce a certified copy of the plaint or of the proceedings. There is ample evidence that Salim appellant married Mst. Shabnam. On the other hand, prosecution has not been able to prove whether any suit for dissolution of marriage was pending. There is no cogent reason forthcoming from the prosecution evidence as to why Mst. Shabnam had abandoned her marital home. On the other hand, it is admitted by the prosecution witnesses that Salim appellant had been going to take her home from the bazar, where the dancing girls carried out their profession. It appears that married life became too demanding for her, and perhaps she could not adjust to the changed circumstances, therefore, she reverted back to her profession, which would obviously be a matter of great disgrace, annoyance and provocation to the husband of such a woman. It is not one of those cases; where a wife has refused to live with her husband for good reasons. It is a case which has a different setting. Its facts are self-explanatory. The appellant tried his best to bring her home but on her final refusal, he shot at her. It may also be added here that he had a daughter from her, who was a suckling baby. Under these circumstances of this case, I am of the view that the offence would fall under section 308, P. P. C. I, therefore, alter the conviction o Salim appellant from section 307 to the one under section 308, P. P. C. and reduce his sentence to a period already undergone by him. The sentence o fine is also remitted.

7. In so far as Asif Mahmood appellant was concerned, according t the narration in the F. I. R., the informant did not know him, but learnt his name later on inquiry. Prosecution did not hold any identification parade for the identification of Asif. Moreover, I find that the recovery of pistol from him was also a doubtful matter because according to the Investigation Officer, its recovery memo. was only signed by him, but he did not know a to who prepared it. It was a strange statement made by the Police Officer. Normally, the recovery memos. are prepared by the Investigation Officers themselves: Moreover, I find that the weapon recovered from him was not produced at the trial. It is also noteworthy that in the F. I. R., it C was not mentioned whether Asif Mahmood had also fired while leaving, though this improvement was made by Mst. Shabnam at the trial. Except for the evidence of P. W. Waqar and Shabnam the other witnesses have no stated whether they knew Asif Mahmood. P. W. Waqar is undoubtedly associated with the family of Mst. Shabnam. Three of his own sisters war dancing girls in the same bazar and were on the visiting terms with the family of Mst. Shabnam for the last twenty-five years. I am of the view that prosecution has not satisfactorily proved the identification of Asif because no identification parade was held in this case to clinch the matter. Nevertheless, assuming that he was with Salim the night, a question would arise whether he had the knowledge that his companion was carrying a fire-arm. According to the prosecution case when Mst. Shabnam refused to accompany Salim, it was then that Salim pulled out a pistol and fired at her. There is no overt D act attributed to Asif in the F.

1. R. except his presence with Salim. Under these circumstances, I am of the view that the prosecution case against him was doubtful. He is, therefore, given the benefit of doubt and acquitted of the charge. He is discharged of the bail bonds. M. A. K. Order accordingly.