2002 PLP 3539 (YLR)

2. The occurrence took place on 31‑8‑1994 at about 12‑45 p.m. in the 'Baithak' of the house of Jamil Arshad accused situated in Street No.17, Mohallah Farid Abad within the area of Police Station New Multan. It was reported to the police by Abdul Latif (P. W.5), father of Muhammad Khalid (deceased) immediately after the occurrence.

3. According to the F.I.R., Mst. Nasim Kokab (deceased) contracted marriage against the wishes of her mother and brother Jamil Arshad accused with Muhammad Khalid (deceased) about one year prior to the occurrence but started living with her husband about five months prior to the occurrence. Jamil Arshad and his mother wanted Mst. Nasim Kokab to return to her house and assured that they would not mind if she had entered Nikah. They expressed their willingness to compromise provided Mst. Nasim Kokab was allowed to see them. In this background, Abdul Latif, complainant, (P. W.5) accompanied by Muhammad Jamil (P. W.6) and one Muhammad Shafique took his son Muhammad Khalid and Mst. Nasim Kokab to the house of the accused on the day of occurrence at about 11‑30 a.m. They were all sitting and talking together in the `Baithak' when all of a sudden Jamil Arshad accused took out a revolver of .32 bore from the fold of his Shalwar and shouted that Muhammad Khalid and Mst. Nasim Kokab would be taught a lesson for contracting marriage against his wishes. He fired several shots at Muhammad Khalid and Mst. Nasim Kokab. As a result of which, both died at the spot. The complainant and the P.Ws. ran out of the 'Baithak' in order to save themselves. Jamil Arshad accused also decamped alongwith his weapon. Abdul Latif rushed to the police station and lodged F.I.R (Exh.P.F) at 1‑40 p.m.

4. Aziz‑ur‑Rehman, inspector, after recording the F.I.R. reached the spot and prepared injuries statements and inquest reports of both the deceased (Exh.P.A/2, Exh.P.B/2. Exh.P.A/3 and Exh.P.B/3). He took into possession blood‑stained earth, pieces of bangles and blood‑stained Chaadar besides five empties of, 32 bore revolver (Exh,P.11/1‑5). After sending the dead bodies to the mortuary, he recorded the statements of the P.Ws. After the post mortem examination, he collected last worn clothes, Burqa, bangles and a sealed phial containing led from Abdul Karim, Constable (P.W.3). He arrested the accused who got recovered revolver (P.12) with two live bullets (P.13/1‑2). During the investigation of the case, he also collected Nikahnama of Mat. Nasim Kokab with Muhammad Khalid (deceased) dated 29‑7‑1993 and also the photocopies of National Identity Cards.

5. After the completion of the investigation, the accused was challaned. He was formally charge‑sheeted on 15‑6‑1995, He pleaded not guilty to the charge and claimed trial, The prosecution in order to bring home the charge against the accused produced as many as seven witnesses. The learned prosecutor tendered the reports of Forensic Science Laboratory (Exh.P.O). Chemical Examiner (Exh.P.P) and that of serologist (Exh.P.Q) before closing the prosecution side.

6. The accused in his statement under section

342. Cr.P.C. when confronted with incriminating evidence brought on record simply denied the allegation and pleaded that the P.Ws. being related inter se had deposed falsely. He did not explain as to why has he been involved in this case. He did not opt to appear as a witness under section 340 (2), Cr.P.C. in disproof of the charge. However, he produced Siraj Din (D.W.1), his next door neighbour, in his defence. The statement of Siraj Din (D.W.1) is to the effect that he was present in his house when he heard report of firing from the house of the accused, He went there and found Mst. Nasim Kokab and Muhammad Khalid (deceased) lying naked on the bed. He then went to the police station and brought the police to the place of occurrence. The police called the father of Muhammad Khalid and prepared the F.I.R. According to him, Jamil Arshad accused was not present at the spot and when the latter returned to his house in the evening he was arrested by the police.

7. Abdul Latif (P.W.5) gave the ocular account of the occurrence besides deposing about the motive of the offence. Muhammad Jamil (P.W.6) also deposed about the occurrence. He also testified the recoveries made by the Investigating Officer. Dr. Muhammad Altaf Hussain (P.W.2) proved the post‑mortem examination reports of both the deceased (Exh.P.A) and (Exh.P.B). He gave the description of five fire‑arm wounds found on the dead body of Muhammad Khalid comprising three entry wounds and two exit wounds. In his opinion, the death occurred due to haemorrhage and shock caused by injuries Nos.3 and 4, which were sufficient to cause death in the ordinary course of nature. He also gave the description of the six fire‑arm injuries found on the dead body of Mst. Nasim Kokab. In this case, also, he opined that the death occurred due to haemorrhage and shock caused by injuries Nos. 1,2,3 and 5, which were sufficient to cause death in the ordinary course of nature. The Fire Arms Expert in his report (Exh.P.O.) found that the crime empty of .32 bore marked as C. 1 had been fired from the revolver of .32 bore which was got recovered by the accused. The Expert could not give any opinion about the remaining four empties C.2 to C.5 because of the non‑availability of the identifiable data. The learned trial Court after taking into consideration the entire material brought on the record found the accused guilty vide judgment dated 7‑4‑1997 and sentenced the accused to death.

8. At the very outset, learned counsel for the appellant submitted that he would not challenge the conviction. However, he has pleaded for lesser punishment therefore, we do not consider it necessary to recapitulate the prosecution story and discuss evidence touching the guilt of the accused. Learned counsel for the appellant contended that the manner in which the appellant's sister Mst. Nasim Kokab (deceased) left the house of her parents and started living with Muhammad Khalid (deceased) secretly was a constant source of mental torture and agony to the appellant and when he saw them at the relevant time after a sufficient long period he lost his mental balance and decided to bring an end to it in order to save the family honour.

9. The learned State Counsel contended that Mst. Nasim Kokab being sui juris was competent to enter into marriage of her own accord. He submitted that the accused invited both the deceased on a false pretext after having made full preparations to kill them. In this way, the occurrence was premeditated as such the accused has rightly been awarded the capital punishment.

10. We have given serious consideration to the plea taken up by the learned defence counsel. Although, the accused has not taken up this plea in his statement under section 342, Cr.P.C. but the prosecution case itself suggests that Mst. Nasim Kokab (deceased) had contracted marriage with Muhammad Khalid (deceased) secretly more than a year prior to the occurrence and then she left the house of her parents about eight months thereafter. Such unceremonious marriages in our social set up are not approved and often not accepted even by the parents of the spouses who fell humiliated and exposed to contempt and criticism. The accused being the nearest in degree to Mst. Nasim Kokab must have remained under constant mental torture, pinching him and compelling him to take revenge. He must have felt difficult‑to face his friends, relatives and other people of his locality. A sensible man in ordinary circumstances would not kill his own sister and brother‑in- law. The mother of the accused has lost her daughter on the one hand and in case the sentence is not altered she would be losing her son also. Muhammad Khalid (deceased) also cannot be regarded as " Masoom uddum" as he was also responsible for violating our well established social norms and bring bad name not only to his own family but also to the family of the accused.

11. We, therefore, while maintaining the conviction, fell inclined to take a lenient view and alter the death sentence to imprisonment for life. He shall also pay a sum of Rs.100,000 to the legal heirs of Muhammad Khalid (deceased) as compensation under section 544‑A, Cr.P.C. which shall be recoverable as arrears of land revenue. The appellant shall be given benefit of section 382‑B, Cr.P.C. Thus the appeal filed by Jamil Arshad is partly accepted in the above terms. The murder reference is answered in negative. S.M.A.H./J‑54/L order accordingly.