1998 P Cr (PLP)

(3) An abrasion 1 c.m.. x 1/2 c.m. on left side of chest c.m. outer to left nipple. (4) A stab wound 3 c.m. x 1.5 c.m. on front of right side of chest c.m. below the right nipple. (5) An abrasion 3 c.m. x c.m. on front of right leg 10 c.m, below the right knee. On dissection he found injury No.2 intercostal muscle cut between the second and third rib. There was cut on left pleura and left lung. Left pleural cavity was full of blood. Injury No.4 intercostal muscle was cut between 5th and 6th rib. There was cut on right pleura and right lung. Right pleural cavity was full of blood. There was corresponding cuts on the sweater, shirt and vest. , In his opinion death had occurred due to injuries Nos.2 and '4 which caused damage to the both lungs and respiratory system. Both the injuries were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem type, Probable time between injuries and death; was within 20 minutes while between death and post-mortem was 21 hours.

8. The prosecution while giving up Mst. Tai Bibi , Allah Nawaz and Falak Sher P.Ws. as unnecessary, had tendered in evidence report of Chemical Examiner Exh. P.K. and that of Serologist Exh. P.L. and closed its cage.

9. The appellant in his statement under the provisions of section 342, Cr.P.C. had denied all the allegations levelled against him and claimed to be innocent by deposing that despite having been forbidden many times, under the suspicion of having an evil eye upon his daughter-in-law Mst. Haseena Mai, Ghulam Abbas deceased, on the fateful night, entered her room, and on her hue and cry, the appellant rushed to her and saw Ghulam Abbas deceased, grappling with her while having knife in his hand, in order to commit Zina-bil-Jabr. Thereupon, under sudden provocation, after snatching knife from the deceased, the appellant caused injuries to the deceased who fell down. Then, after closing the door from outside, the appellant proceeded to Police Post Dajal to apprise the police about the incident. Ghulam Muhammad, S.I., accompanied him and removed the dead body and took into possession knife lying near dead body. According to him, neither the P.Ws. nor his co-accused Nazir Ahmed were present at the time and place of occurrence and he had murdered the deceased under grave and sudden provocation. The acquitted co-accused Nazir Ahmed had also taken up the same plea in his statement recorded under the provisions of section 342, Cr.P.C. Both the accused, however, did not record their statements under the provisions of section 340(2), Cr.P.C. nor did they produce any evidence in their defence.

10. The learned trial Court, taking into consideration the facts and circumstances of the case, had convicted and sentenced the appellant, while acquitting his co-accused Nazir Ahmed, as stated above.

11. The learned counsel for the appellant and the State were heard at length and the record of the case perused with their assistance. The learned counsel for the appellant argued for his acquittal and submitted that the ocular evidence cannot be relied upon as P.W.7 Wazir has claimed to be a chance witness, but he has further admitted that he was involved in a theft case in addition to being an accused alongwith the deceased Ghulam Abbas in an abduction case and that, therefore, his testimony is of doubtful value and a conviction cannot be based thereon without corroboration by unimpeachable source which is, in any case, lacking. Further argued that the complainant Shah Jahan P.W.6, the brother of the deceased and the other eye-witness, failed to strengthen the case against the appellant as the story narrated by them is highly improbable. In this respect, pointed out that the eye-witness P.W.6 has claimed that he had appeared at the scene of occurrence, that happened to be a room in a residential house, alongwith P.W.7 Wazir and given up P.Ws. Allah Nawaz and Mst. Taj Bibi, his own mother, and has further claimed that he and other witnesses had observed the inflicting of knife blows on the chest and neck of Ghulam Abbas (deceased) while standing in the door of the said room, yet further claiming that the appellant and his acquitted co-accused had been able to run away despite he -and his other companions being larger in number and being in a position to block the passage from the door of the room. To impeach the testimony of the said P.W.6, the learned counsel further emphasised that at the dead of a winter night, the P.W. failed to explain as to how he had made entry into the house of the accused, further failing to prove that he or other P.Ws. had raised any hue and cry at the fateful moment which is very unnatural. Further submitted that the learned trial Court, being in a best position to observe the demeanour etc., of the witnesses, had itself come to the conclusion, as stated in the impugned judgment, that both the parties had failed to establish their respective versions and had further observed to the effect that the Court was of the view that something had happened between accused Haq Nawaz and the deceased Ghulam Abbas in the room of Mst. Haseena which had resulted in a quarrel that ultimately led to the death of the deceased at the hands of the appellant Haq Nawaz; and as the said conclusion, arrived at by the learned trial Court, was in line with the statement made by the appellant Haq Nawaz under the provisions of section 342 Cr.P.C. therefore, the learned counsel further argued that conviction of the appellant is liable to be set aside as the contents of his statement fully justified his right of self-defence, that extended to the right to save the honour of his daughter-in-law Mst. Haseena. To support his case, the learned counsel referred to the right of self-defence stated as "thirdly" in section 100 of P.P.C. that deals with the right of private defence of the body that extends to causing death. The exception relied upon being in respect of an assault with the intention of committing rape, argued in the alternative that, in any case, the conviction and sentence imposed under subsection (b) of section 302, P.P.C. is uncalled for. .

12. On the other hand, the learned counsel for the State argued for the maintenance of the conviction and sentence awarded to the appellant and pointed out that the punishment of imprisonment for life had been awarded to the appellant as Tazeer taking into consideration the facts and circumstances of the case.

13. The Court has carefully scrutinized the testimony of the two eye witnesses. As argued, P.W.7 Wazir was not only a chance witness but is a witness of doubtful antecedents. He has admitted to be an accused in a case of abduction alongwith the deceased Ghulam Abbas, in addition to being involved in a theft case. Neither he nor the other eye-witness, the complainant P.W.6, had explained the circumstances that led to their being present in the lane at past 11-00 p.m. on a winter night to establish their bona fides in having become chance witnesses to the alleged occurrence in question by accompanying the complainant P.W.6 and other persons to the site of occurrence, and it cannot be ignored that the prosecution, for reasons best known to it, had given up Mst. Taj Bibi, the mother of the deceased and the complainant and Allah Nawaz P.Ws. as unnecessary that had further weakened the case of the prosecution. In addition thereto the testimony of the complainant P.W.6 Shah Jahan by itself cannot be relied upon, without corroboration by an independent and reliable testimony, to hold that the case against the appellant is proved beyond reasonable doubt.

14. The upshot of the above discussion is that the prosecution evidence, brought on the record through the two eye-witnesses produced, namely, Shah Jahan P.W.6, the complainant, and Wazir P.W.7, failed to prove the charge against the appellant that leads only the statement of the appellant Haq Nawaz to deal with. The said statement of the appellant is both, inculpatory and exculpatory. Therefore, as repeatedly held by the superior Courts, such a statement has to be taken into consideration in toto. It shall be pertinent to reproduce the entire statement of the accused appellant made under the provisions of section 342, Cr.P.C. in reply to question No.8, which is as follows:-- "P.Ws. are nearer relative to deceased having enmity with me. As a matter of fact, Ghulam Abbas deceased was a bad character having an evil eye upon my daughter-in-law Mst. Hassena Mai. He used to flirt with her and used to force her for sexual intercourse. When I came to know about it, I restrained the deceased from visiting my house and desist from teasing my daughter-in-law Mst. Haseena Mai. On the fateful night, after the mid-night I heard the alarm of Mst. Haseena Mai wife of my son Wazir Hussain, I rushed to her and saw Ghulam Abbas deceased grappling with her while having knife with his hand to force Mst. Haseena Mai to surrender herself for the sexual lust. I snatched knife from Ghulam Abbas deceased and under the influence of sudden provocation to safe the modesty of my daughter-in-law I inflicted knife blow to Ghulam Abbas who sustained injuries and fell down. I closed the room from outside and went to inform police at Dajal Police Post. None of the witnesses were present at the time of occurrence. Ghulam Muhammad, S.I., accompanied me and removed the dead body and picked up knife lying near dead body. Later on, with the connivance of complainant party, the Investigating Officer cooked up a false story of present case. Nazir Ahmed my co-accused was not present at the spot. At the time of occurrence he was present at D. I. Khan who had gone there to see his brother Wazir an employee of Cotton Mills at D.

1. Khan. "

15. As is evident from the perusal of the above recorded statement of the appellant, he has confessed in unequivocal terms to have caused the death of the deceased Ghulam Abbas, but in an attempt to save the honour of his daughter-in- law Mst. Haseena Mai who was within the prohibited degree of marriage to him. His statement confirms the time/place and the type of weapon used and the nature of injuries caused to the deceased. However, under the facts and circumstances of the instant case, a complete right of self-defence in committing the admitted Qatl of the deceased by the appellant, is not made out. In this respect it is emphasized thst the appellant had failed to establish the said plea of self-defence as the best witness to that effect, his daughter-in-law Mst. Haseena Mai, who is alleged to have been the target of an unsuccessful attempt of Zina bil-Jabr, was not produced to support the said defence version; and that it is only the statement of appellant under section 342, Cr.P.C. that is the sole basis for determining as to whether or not a case of any nature is made out against him. Ii is further emphasized in that respect that now the Pakistan Penal Code has, specific provision i.e. section 303(a) that covers the nature of the offence admittedly committed by the appellant.

16. Therefore, it is hereby held that Qatl, committed by the appellant, is covered under the provision of subsection (a) of section 303 that deals with the Qatl under Ikrah-i-Tam. The said provision of Ikrah-i-Tam is defined as follows "Ikrah-i-Tam means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body o instant fear of being subjected to sodomy or Zina-bil-Jabr," The punishment for an offence Ikrah-i-Tam under the provisions of subsection (a) of section 303, P.P.C. is as follows: "under Ikrah-i-Tam shall be punished with imprisonment for a term which may extend to twenty-five years but shall not be less than ten years and the person causing Ikrah-i-Tam' shall be punished for the kind of Qatl committed as a consequence of his Ikrah-i-Tam. "

17. Pursuant to the above discussion, the conviction of the appellant Haq Nawaz is hereby converted to one under the provision of subsection (a) of section 303 i.e. Qatl under Ikrah-i-Tam. Consequently, the sentence awarded to the appellant is hereby reduced to ten years' R.I. in accordance with the said provision of section 303(a), P.P.C. The benefit of the provisions of section 382-B, Cr.P.C. is hereby extended to the appellant.

18. As the deceased had lost his life at the hands of the appellant while he had put Mst. Haseena Mai, the daughter-in-law of the appellant, in fear of Zina- bil-Jabr therefore, no compensation is awarded in the instant case under the provisions of section 544-A, Cr.P.C. N.H.Q./H-40/L. Order accordingly.