1983 PLP 1263 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑Through this petition leave is sought to appeal against the judgment and order of the Lahore High Court, Bahawalpur Bench, dated 13‑12‑1981 passed in Criminal Appeal No. 59/1980/BWP and Murder Reference 13/1980/BWP.

2. The accused /petitioner was tried by the learned Sessions Judge, Bahawalpur under section 302, P. P. C. for committing the murder of Mst. Inayat Bibi his mother‑in‑law on 6‑9‑1979 at about 9‑30 a. m. in the area of Chak No. 86/Fateh Tehsil Hasilpur, District Bahawalpur, by inflicting numerous injuries on her person with a Chhuri.

3. According to the prosecution Mst. Jannat Bibi; P. W. 7 wife of the accused /petitioner and daughter of deceased Mst. Inayat Bibi was divorced by her first husband about 3 1/2 years prior to the occurrence. After the divorce, she came to the house of her mother Mst. Inayat Bibi deceased is Gharib Mohallah, Hasilpur. After sonic time she was given in marriage to Irshad Ahmad accused/petitioner about 1J years ago on the condition, that he will remain as Khana Damad in the house of the deceased. The accused/petitioner remained in the house of Mst. Inayat Bihi deceased for some time but left her house 3/4 months prior to the occurrence and started some business in village Kabirwala, District Sahiwal. He came to the house of the deceased to take Mst. Jannat alongwith him to Kabirwala but the deceased Mst. Inayat Bibi refused to send fist. Jannat Bibi alongwith the accused/petitioner. A day prior to the occurrence he came again to the house of deceased Mst. Inayat Bibi but she insisted that he should.eithe, remain as Khana Damad or divorce Mst. Jannat Bibi who would not be allowed to accompany him. At this Irshad accused/petitioner felt aggrieve: and went away after threatening the deceased in the presence of Muhammlaf; Iqbal, a brother of Mst. Jannat Bibi.

4. Mst. Inayat Bibi deceased had made a complaint regarding tine behaviour of Irshad accused/petitioner to Ghulam Muhammad Lambardar of Chak 86/Fateh and Abdul Karim a relative of the accused. They had called the parties for a settlement. The accused/petitioner, Mst. Inavat Bibi deceased and Mst. Jannat Bibi started together for Chak 86/Fateh and when they crossed Nithal Minor at about 9‑30 a. m., the accused/petitioner asked the deceased to decide the matter there and then, after showing her a dagger which he was holding in his hand. He then started giving blows r o Mst. Inayat Bibi deceased. Mst. Inayat and Mst. Jannat raised an alarm which attracted Muhammad Faizul Haq (Faiz Shah) who was passing near the spot. He rushed towards the spot and tried to rescue the deceased. The accused ran away from the scene of occurrence. Ghulam Muhammad Chowkidar also reached there and he and Faizul Haq stayed with the dead body of Mst. Inayat Bibi while Mst. Jannat Bibi proceeded to the Police Station Hasilpur and lodged the F. I. R. Exh. P. D. Malik Qadir Bakhsh S. H. O. recorded the F. I. R. at about 11‑30 a. m.; started investigation; arrested the accused ; prepared the injury statement Exh. P. E. and sent the dead body to mortuary. He took into possession blood‑stained earth from the spot vide Memo. Exh. P. G. At the time of arrest the accused was wearing blood‑stained clothes mufler P‑7, Shalwar P‑8 and shirt P‑9 which were taken into possession vide Memo. Exh. P. K.

5. Dr. Mukhtar Naseem, P. W. 1 who conducted the post‑morte:n examination found eight, incised wounds out of which injury No. 1 was 2" x 1/3" x D. N. P. on the left chest at a distance of 6" from left nipple proved fatal causing internal injury to the left lung. All the other wounds on the left breast, chest, mandible, chin, right thigh, left leg and lower portion of right knee joint, were simple.

6. Learned counsel for the petitioner brought to our notice that these injuries could not have been caused by an assailant who had intended to kill the deceased. From the nature of these injuries it appears that these were just pricks caused in order to torture the deceased under the fear of death ; that these injuries would also show that the same could not have been inflicted by one person alone and the deceased appeared to have been thrown and held down by one person while the injuries were caused by another person. The learned counsel further contended that in the F. I. R. Mst. Jannat Bibi P. W. 7 had mentioned the name of Faizul Haq as one who had reached the spot and witnessed the occurrence but in her examination‑in‑chief at the trial she stated "I raised alarm, on which one person whose name was later on, learnt as Faiz Shah came there and he released my mother from the accused and tried to put water in, her mouth but my mother died on the spot" This had been done with the intention to conceal her connection with Faizul Haq P. W.

8. According to the defence Mst. Jannat Bibi P. W. 7 had liaison with Faizul Haq and a question had been put to Mst. Jannat Bibi. She denied the charge but at the same time, admitted that Faiz Shah (Faizul Haq) had been occasionally residing in our Mohallah but she was not sure that he was a `Pit' and that it is not correct that Faiz Shah had been visiting her house and that the deceased had restrained him from visiting the house.

7. Learned counsel also referred to the statement of Faizul Haq, P. W.

8. During cross‑examination he had denied that he had filed a suit for dissolution of marriage on behalf of Mst. Jannat Bibi against the accused/petitioner; that he wanted to get her divorced in order to marry her. The learned counsel contended that Faizul Haq murdered the deceased with the connivance of Mst. Jannat Bibi, P. W. and had admitted that he was living in Gharib Mohallah, Hasilpur and Mst. Jannat Bibi was also living there.

8. In view of the submission made by the learned counsel and the evidence on the record we feel that there was some lurking suspicion in the mind of the accused /petitioner regarding the conduct of the deceased 1B and his wife Mst. Jannat Bibi and that Faizul Haq also figured in that context. We, therefore, grant leave to consider the question of sentence awarded to the accused/petitioner and also to consider the other points raised by the learned counsel. M. Z. M. Leave granted.