1998 PLP 2082 (MLD)

(4) An incised wound 2 c.m. x a c.m. on the left side lower part of the chest and front side of chest muscle deep at its middle front of chest. (5) An incised wound 2/1-2 c.m. x I c.m. on the right side mid back of chest just below the interior angle of scapula. It was chest cavity deep puncturing the right side plura and upper lobe of right lung up to the depth of 2 1/2 c.m. deep with a wound of 2 c.m. x 1 c.m. (6) An incised wound 2/I-2 c.m. x 1 c.m. muscle deep 2 c.m. below injury No.5. (7) An incised wound 2/1-12 c.m. x I c.m. muscle deep over the right kidney area on the back of body. (8) An incised wound 2/ 1/2 c.m. x 1 c.m. muscle deep 1/2 c.m. chest cavity deep on the back and lower part of right side of chest at its middle part peneterated the chest cavity, lower part and ruptured the diaphram and its posterior and right dome of diaphram and the lower lobe of the liver. It had cut through and through with an wound of 2 c. m. x 1 c. m. (9) An incised wound 2/1-2 c.m. x 1 c.m. muscle deep on the back of body over the left kidney area. (10) An incised wound 2/1-2 c.m. x 1 c.m. muscle deep on the upper and lateral part of right thigh. (11) An incised wound 2/1-2 c.m. x 1 c.m. muscle deep on the mid back of left side of chest. (12) An incised wound 1 c.m. x 1/2 c.m. muscle deep, 2 cm. above the injury. No.

11. Consequently, the accused was convicted under section 304, Part-1, P.P.C. and sentenced him to 10 years' rigorous imprisonment and a fine of Rs.5,000 and in default in payment thereof, he was required to further undergo simple imprisonment for two years. The accused was, however, given the benefit of his confinement during trial in accordance with section 382-D, Cr. P. C.

5. Mr. Zafar Iqbal Chohan, learned counsel presenting the appellant, assailed the conviction and sentence awarded to the appellant mainly on the ground that the depositions of the eye-witnesses were not credit worthy, in particular, because of their relationship with the deceased. He also referred to various discrepancies in their statements recorded as P.W.6 and P.W.7. The recovery of Chhuri (Exh.Pl) was claimed to be fake. Learned counsel for the appellant also contended that the appellant has nowhere admitted that he had caused the death of his wife because of grave and sudden provocation or that lie had any doubts about her character. According to the learned counsel, the alleged motive was suggested by the complainant himself. During his cross examination as P.W.6 he also stated that the motive of Qatl by the appellant was got recorded by him on the suggestion of the police. The learned counsel also assailed the findings of the learned Additional Sessions Judge on the issue of motive claiming that in this connection the story of motive was created and strengthened by the learned Judge through presumptions. It was also claimed that, in fact, Mst. Ghulam Khatoon was murdered by her own brother namely, Qadir Bakhsh because of his anger about illicit relations of the deceased with Nazar Hayat. It was, therefore, urged that even if it is considered that the appellant has committed Qatl of his wife, the sentence of ten years imprisonment and fine was against the statutory provisions. In this connection, he placed reliance on Sher Ali v. State (1995 PCr.LJ 2790) and Ghulam Yasin v. State (PLD 1994 Lahore 392) -and contended that where a Qatl is committed under grave and sudden provocation the punishment under section 304, P.P.C. or under the provisions of Qisas and Diyat should not be excessive. Particularly, in the later case, the facts of which are identical to the present case, the sentence was reduced to five years. It was also held therein that since the Qatl was committed for Ghairat, the fine should have not been imposed.

6. From the evidence and perusal of record, it is clear that the facts as brought on record do not reflect the correct position. In the first instance, presence of eye-witnesses, namely Allah Bakhsh P.W.6, the brother of the deceased, P.W.7 Muhammad Sarfaz, her father and Sher Ali, the maternal uncle of the deceased at the house of Nazar Hayat at the time of occurrence clearly appears to be doubtful. Although P. W.7 Muhammad Sarfraz has claimed that he and other persons had gone to the house of Nazar Hayat to inquire about health' of his wife, no reason of his presence was given by P.W.6 Allah Bakhsh.' During his cross-examination he stated that Nazar Hayat was the only person who resided in his house. Neither Nazar Hayat nor his wife were produced as eye-witnesses to the occurrence or for the purpose of verifying the reason of the visit of P.Ws., and Sher Ali alongwith the deceased to their residence at the fateful time. During cross-examination P. W.9 Muti Ullah, S.I. the Investigation Officer, also stated that no reason was given by the witnesses and Sher Ali as to their presence in the house of Nazar Hayat at the time of occurrence. It is also' very strange that the appellant was allegedly causing injuries to the deceased none of the five persons said to be present at the spot, including her brother Allah Bakhsh (P.W.6), restrained the appellant from committing Qatl of Mst. Ghulam Khatoon or from causing injuries to their dear one. The claim of P.W.6 Allah Bakhsh that because appellant was threatening to kill whosoever came near to him no one restrained him from causing injuries to the deceased does not appear to be a natural consequence. All of them could not be so scared or coward that none of them moved to save the life of their closest relation who was being mercilessly butchered before their eyes. They were four persons and could easily overpower the appellant who was in possession of a Chhuri only. Allah Bakhsh (P.W.6) has admitted that he was a stout and strong person but then how come that he was so scared to stop the appellant from causing injuries to his real sister. P.W.6 and P.W.7 have also admitted that while they were loading the deceased on a tractor for taking her dead body to hospital their clothes were not smeared with her blood although admittedly twelve injuries were caused to the deceased and there was a profuse bleeding which according to Medical Report ultimately resulted into her death. The presence of P.W.6 Allah Bakhsh complainant also appears to be doubtful as admittedly he is a driver and daily plies a bus of Awan Transport Company between Sargodha and Rawalpindi. He has not explained as to how at 3.15 p.m. on the 29th September, 1991, he was present in the house of Nazar Hayat, Sher Ali the real maternal uncle of the deceased who is stated to be present at the spot was also not produced in evidence on the ground that he was not supporting the prosecution version.

7. The recording of F.I.R. within one hour of the occurrence also seems to be unnatural on the very face of circumstances stated therein. The police station is admittedly about 6/7 kilometres away from the place of occurrence. It was admitted by P.W.7 Sarfaz and Constable Allah Dad (P.W.5) that it took almost 1 to 2 hours to take the dead body to the hospital on a tractor. On the basis of this admission the time lag between the occurrence and prompt recording of F.I.R. appears to be impracticable. On the other hand, no explanation has been given by the Investigation Officer (P.W.9) as to when the F.I.R. was promptly recorded and the other formalities were completed by the police without any loss of time why the appellant was arrested after 13 days from the date of occurrence. The recovery of Chhuri (Exh-P1) further appears to be doubtful. After the arrest of the appellant on the 16th March, 1991, allegedly on the pointing of the appellant it was recovered from the house of appellant which was locked in a pati on 20-3-1991 by constable Muhammad Akram (P.W.4). Admittedly, the house of the appellant is situated in Abadi Deh surrounded by several houses but no independent witness was present at the time of the recovery of weapon of C offence. It is, thus clear that the provisions of law relating to recovery of Chhuri were not adhered to, resultantly, such recovery does not infuse any confidence.

8. From the above discussion, it is clear that there are several missing links which clearly cast doubt on the version of the prosecution. The alternative version given by the appellant may not be of much credence but undoubtedly the prosecution story is full of discrepancies and unnatural circumstances. The facts regarding motive are not substantiated by any evidence. In fact, the motive has been given more clamour and support by the learned Trial Court who has on the basis of presence of the deceased at the house of Nazar Hayat on the fateful day, presumed that the accused must have been greatly angered because of the presence of his wife at the house of Nazar Hayat. According to him such presence was a sufficient provocation to cause the death of his wife as it was impossible for the accused to control and compose himself. These presumptions however, do not find support from the eye-witnesses who, on the other hand, claim that the deceased was a lady of good character. In view thereof, the learned Trial Court had erred in believing the prosecution version and convicting the appellant in consequence thereto. The appellant admittedly lives at a distance from the house of Nazar Hayat. On hearing that his wife had gone to the house of Nazar and had gone there to cause her Qatl, such preparation could not be termed as sudden provocation which entitled him with conviction of lesser gravity. Hence, even on that basis the conviction of the appellant under the repealed section 304, Part-1, P.P.C. was bad in the eye of law.

9. In view thereof, much reliance cannot be placed on the prosecution evidence. Hence, giving the benefit of doubt, the conviction and sentence awarded to the petitioner by learned Additional Sessions Judge, by his order dated 11-1-1992 is set aside. The appellant, if he is not require in any other case, be released forthwith. The appeal is accepted accordingly.

10. Before parting with the judgment it must be recorded that the learned Additional Sessions Judge has convicted the appellant under section 304, Part-1, P.P.C. and sentenced him for 10 years imprisonment.. He has, however, not given any thought to the fact that on the date of commission of offence, original provisions of section 304 of the Pakistan Penal Code already stood repealed and were substituted by the provisions relating to Qisas and Diyat. Even on 11-1-1992 when he convicted the appellant and sentenced him to imprisonment, the new provisions had already come into force. The new section 304 of the Pakistan Penal Code, in fact, deals with the proof of Qatl-i-Amd liable to Qisas. In view thereof the conviction, and sentence awarded by the learned Additional Sessions Judge, Sargodha was not a legal sentence available under the existing provisions of the Pakistan Penal Code (XLV of 1860). H.B.T./M-518/L Appeal accepted.