2003 PLP 1179 (MLD)

During cross-examination, he was suggested that at the night of occurrence the accused Muhammad Zafar was sleeping on the Tharra with his gun which was given to him for security and 10-00 p.m. on the night between 24th/25th of March, 1997 the accused Muhammad Zafat had a whisp of some movement in the Baithak. Statedly the appellant found his wife Irshad Bibi with the deceased Riaz Hussain while committing Zina on which Muhammad Zafar flew into rage and because of sudden and grave provocation fired at the deceased, but he denied the suggestion. He admitted in cross-examination that the deceased Riaz Hussain was booked by the Police Station Bhawana in a case for abducting Mst. Shaheen daughter of Noor Muhammad Joyia, but volunteered that the case was found to be false, hence cancelled. Sakhawat Ali (P.W.8) son of the deceased furnished the ocular account in line with the statement of Maqsood Ahmad P.W.7. In cross -examination he was suggested that on the night of occurrence he was present in Raza Abad. He admitted that during the days of incident Zafar was their lackey. He was also suggested that Muhammad Zafar accused fired at his father in sudden and grave provocation because of commission of act of Zina. He was further suggested that Muhammad Zafar accused pleaded before the police that he killed Riaz Hussain on account of Ghairat. Haibat Khan Inspector (P.W.9) explained the investigation conducted by him and in cross-examination he admitted that on the arrest of Zafar accused his first version was that he killed Riaz Hussain on account of Ghairat. Some details in this regard were also put to him he denied each. and every aspect in this connection.

6. Dr. Muhammad Rehmatullah M.O. (P.W.1) had conducted the post-mortem examination on the dead body of Riaz Hussain. He found a round lacerated wound of 3 c.m. x 3 c.m. with inverted margins on back of neck in midline and the margins of the wound were a blackened and that it was an entry wound. In accordance with the opinion of the said doctor the cause of death was haemorrhage, shock and death was due to Injury to the vital organs, spinal cord and major blood vessles in neck by Injury No.1 which was sufficient to cause death in the ordinary course of nature, caused by fire-arm weapon. In cross-examination the above said doctor stated that the recovery of wad from the neck indicates that the fire was shot from a little distance.

7. Ghulam Dastagir, draftsman (P.W.2) who prepared the site-plan and its duplicate Exh. P.D. and Exh.P.D./1, Muhammad Iqbal Constable (P W.3) who deposited the sealed parcels in the office of Chemical Examiner, Zafar Hayat H/C (P.W.4) who drafted the formal F.I.R. Exh.P.A./1 and kept the case property in the Malkhana of police for safe custody and handed over the said sealed parcels to Muhammad Iqbal F.C. for onward transmission, Jagday Aabid F.C. (P.W.5) who escorted the dead body for post-mortem examination and who produced the last worn clothes of the deceased Chadar P.1 Ajrak P.2 (both blood-stained) alongwith the sealed phial before the Investigating Officer who took these articles into his possession vide recovery memo. Exh.P.F., are the witnesses formal in nature.

8. Muhammad Saqlain (P.W.6) identified the dead body at the time of post-mortem examination and witnessed the recovery of .12 bore gun P.4 at the instance of Zafar accused. Reports of Chemical Examiner Exh.P.L. and that of Serologist Exh.P.L./1 were also produced and the case of the prosecution was closed.

9. At the close of the prosecution case the statement of Muhammad Zafar appellant and his co-accused were recorded under section 342, Cr.P.C. They denied the allegations as levelled by the prosecution and professed about their innocence, however, when Muhammad Zafar appellant was asked, "Do you want to say anything else"? he submitted his reply which in verbatim is as under: I am innocent. I hail from a menial fraternity. During the days of incident, I was serving as lackey of the deceased. My wife Irshad was serving as a maid servant in the house of Riaz Hussain. I used to sleep as a watchman on Tharrah in front of Baithak of the deceased, whereas my wife Mst. Irshad Bib used to sleep with the family members in the house of the deceased. The sister-in-law of the deceased namely Mst. Mandan was living in Chak No.153 wherein she was married, at a distance of 7/8 miles from Chak No.

155. She was seriously ill in those days. In the afternoon prior to the time of the incident the family members of deceased had gone to Chak No. 153 to see ailing Mst. Mandan. Sakhawat Ali had gone to Raza Abad to supervise his business of milk selling and during the fateful night was in Raza Abad. Riaz Hussain was alone in his house. I as usual slept on the Tharrah outside the Baithak with my gun which had been given to me by deceased for security. My wife Mst. Irshad Bibi as usual slept inside house of the deceased. At about 10 p.m. I sensed some whispering from the Baithak. I woke up and I pushed the door of the baithak, which became upon. I saw deceased Riaz committing Zina with my wife. They were trampling the limit of God. I lost my self-control. I, in sudden and grave provocation and on Ghariat, fired at Riaz deceased at the spur of the moment. My wife Irshad Bibi ran away and lost into darkness. The P. Ws. have deposed falsely against me. They were not present at the time of the incident. I have no intimacy with Sajid Hussain. I am a minion immanent whereas Sajid Hussain belongs to a Zimindar Family. He was not present with me at the time of incident. I surrendered myself in the police station on the next following day at Deegarwaila alongwith my gun and I narrated the whole story of the police. The deceased was an influential person. Under the influence of his family, this false case has been cooked up against me. The alleged brawl between me, Sajid and deceased is also false and fabricated so as to constitute a motive. Deceased was a characterless person. He had illicit relationship with other women of the locality also."

10. While disposing of the case the learned trial Court observed that Mimi ed that the motive advanced by the prosecution could not be proved; that the presence of Maqsood P.W.1 at the spot alongwith Zulfiqar P.W. is under clouds, however, the presence of Sakhawat P.W. is natural, the medical evidence corroborates the ocular account; the defence plea is without any force however, the incident has been admitted. Since the accused was proved to he under eighteen years of age, therefore, excelled just beyond the limit of minority, hence, the provisions of sections 306 and 308, P.P.C. are not attracted and that the event which led to killing of the deceased is also somewhat sunk in mystery. Therefore, in view of these circumstances Muhammad Zafar appellant was found guilty section 302-B, P.P.C. and sentenced as mentioned above.

11. I have heard the learned counsel for the parties and have also gone through the relevant record placed before me.

12. Learned counsel for the appellant mainly argued that the prosecution has failed to prove the motive and the ocular account; that the medical evidence was in conflict with the ocular account and no corroborative piece of evidence was available, that the ocular account relied by the learned trial Court was inimical and stated by interested witnesses, whereas the defence plea advanced by the appellant to have committed the Qatl-i-Amd of Riaz Hussain on question of Ghariat was more convincing and reliable, therefore, if the statement of the appellant was to be believed as correct, at the most he could be convicted under section 302(c), P.P.C. He relied upon the cases reported in "Zahid Parvez and another v. The State, PLD 1991 Supreme Court 558; Munir Ahmad v. The State, NLR 2001 Criminal 444 and The State v. Muhammad Hanif and others, 1992 SCMR 2047 (Supreme Court of Pakistan) in support of his arguments.

13. On the other hand, the learned State counsel opposed these arguments and submitted that the judgment passed by the learned trial Court is in accordance with law, therefore, it calls for no interference.

14. The short sketch of the prosecution evidence, the defence plea and the observations recorded by the learned trial Court would show that the killing of Riaz Hussain on the question of Ghariat, came under discussion even at the stage of investigation, that is why Haibat Khan, Inspector (P.W.9) admitted in cross-examination that the first version of the appellant was that he committed the qatl of Riaz Hussain on question of Ghariat.

15. The point for examination is as to what are the circumstances on the record which favours the defence plea advanced by the appellant. The occurrence in this case took place in the third week of the (month of March) the change in the season is not such that a person would sleep in the room just having one Chaddar and one Ajrak on him. Obviously the Chaddar is used as Dhoti (waist piece) and the Ajrak (ﺭﺩﺎﭼﺭﺍﺪﻠﻮﻬﭙ) which can also be used as Dhoti or covering the body. The question worth examination is as to why he was not wearing any shirt or why any shirt was not found near his dead body. In case of availability of Chaddar and Ajrak one can believe that he was lying naked which is not possible in normal circumstances keeping in view the season in the third week of March. The learned trial Court has not discussed this aspect of the case which clearly favours the plea advanced by the appellant. Even otherwise if according to motive advanced by the prosecution, Muhammad Zafar appellant has to take the revenge, he could do so in the day light. To the contrary mere reprimanding by a master to a servant, even abusing for being negligent are not such matters which would force to kill the master particularly a person like appellant who was a lackey helper. But when the question of Ghairat is involved the servant may take action to an extreme end by killing the master and perhaps this incident took place at night time. The place of occurrence was at a distance of 18I Kilometers from the Police Station Langrana. The occurrence had taken place at 12-30 a.m. but the statement Exh.P.E. was recorded outside the police station at about 8-00 a.m. on 25-3-1998'. This delay in lodging the F.I.R. remained meaningful. Therefore, there are circumstances on the record which favour the plea of alibi advanced by the appellant. The motive advanced by the prosecution was disbelieved by the learned trial Court. The occurrence was admitted by the appellant but, in his own way. The learned trial Court should have either believed the statement in toto or disbelieved the entire statement.

16. The point for examination is that when the motive advanced by the prosecution is in mystery then why the alibi advanced by the accused should not be given importance when it finds support from the circumstances of the case. Certainly the alibi advanced by the accused supported by the circumstances on the record could be given preference.' consequently, it could be believed by the learned trial Court that the incident had taken place but on question of Ghariat, the same attracted the provisions of section 302(c), P.P.C.

17. In view of the discussion, above, the conviction passed by the learned trial Court is maintained but the appellant is sentenced to 7 years R.I. under section 302(c), P.P.C. He shall pay an amount of Rs.25,000 as compensation to the legal heirs of the deceased and in default to further undergo simple Imprisonment for six months. However, he is given the benefit of section 382-B, Cr.P.C. The appeal is disposed of accordingly. H.B.T./M-1829/L Order according.