2000 P Cr (PLP)

MUHAMMAD NAWAZ ABBASI, J.‑‑‑ The appellant namely Muhammad Iqbal son of Ghulam Hussain and his co‑accused namely Faheem Iqbal son of Muhammad Iqbal, Arshad Iqbal son of Noor Hussain and Amjad Hussain son of Khushal Khan were tried for the charge under section 302/34, P.P.C. for committing the murder of Mst. Zohra Bibi, their co‑villager by the learned Additional Sessions Judge, Chakwal who having found the appellant guilty of the charge upon conviction under section 302, P.P.C. through judgment, dated 31‑7‑1994 sentenced him to death with a fine of Rs.50,000 and in default of the payment of fine to undergo R.I. for two years with the direction that if the fine is recovered, half of the same would be paid to the legal heirs of the deceased as compensation and sent Murder Reference No.209 of 1994 to this Court under section 374, Cr.P.C. for confirmation of death sentence. The learned trial Judge, however, acquitted the co‑accused ‑of the appellant and no appeal or revision against their acquittal has been filed either by the State or by the complainant.

2. The appellant has challenged his conviction and sentence through Criminal Appeal No.95 of 1994 and the appeal alongwith the murder reference is being disposed of through this judgment.

3. Bostan Khan P.W.9 made a statement Exh.P.G. before Muhammad Qasim, Inspector/S.H.0. P.W.11 on 29‑8‑1993 at Sarai Chowk in the area of Police Station Choa Saidan Shah, District Chakwal, on the basis of which a case under section 302/34, P.P.C. was registered through F.I.R. Exh.P.G./1 on the same day at the same police station. The brief facts as contained in the said statement (Exh.P.G.) are that on 29‑8‑1993 at 11‑00 a.m. Mst. Zohra Bibi widow of Nawab Khan was cutting grass from the land of Mst. Daulat Bibi, her real sister, at a distance of about three furlongs from Village Lari Shah Nawaz when Muhammad Iqbal appellant armed with Toka and his co‑accused namely Faheem Iqbal armed with .12 bore gun. Arshad Iqbal and Amjad Hussain empty‑handed emerged at the scene. Muhammad Iqbal appellant raised Lalkara that Mst. Zohra Bibi who had abused and insulted him 3/4 days earlier over a dispute of wall would not be spare on that day. Faheem Iqbal who was armed with a gun fired at Mst. Zohra Bibi and hit on her hand whereas Muhammad Iqbal appellant caused her injuries with Toka. On hue and cry raised by Bostan Khan complainant, Abdul Qadar son of Fateh Muhammad and Zia Naeem son of Muhammad Asghar, co villagers of the accused and deceased attracted to the spot and witnessed the occurrence. Mst. Zohra Bibi succumbed to the injuries at the spot. The accused escaped from the place of occurrence. The motive behind the occurrence as narrated in the F.I.R. was that about 3/4 days earlier to the fateful occurrence, Mst. Zohra Bibi and his sister Mst. Daulat Bibi constructed a wall, which closed the path being used by Muhammad Iqbal. There was an altercation between them and in consequence thereto, Mst. Zohra Bibi and Mst. Daulat Bibi abused Muhammad Iqbal accused/appellant.

4. The S.H.O. of the police station after registration of the case proceeded to the place of occurrence and prepared injury statement Exh.P.E. and inquest. report Exh.P.F. of the deceased at the spot and dispatched the death body for post‑mortem examination to D.H.Q. Hospital, Chakwal. He collected the blood‑stained earth from the place of occurrence and made it into a sealed parcel through memo. Exh.P.L. Later he took into possession the last‑worn clothes of the deceased i.e. shirt P.2, Dhoti P.3 and Dopatta P.4 through memo. Exh.P.N. on production of the same before him by a constable namely Ali Hassan. He got prepared site plans Exh.P.A. and Exh.P.A./1 of the place of occurrence by Muhammad Ashraf.P.W. Patwari. Muhammad Iqbal appellant was arrested by Zahid Mahmood, S.‑I. on 4‑9‑1'

993. He led to the recovery of .12 bore gun P.1 from his residential house situated at Lari Shah Nawaz, which was taken into possession by the said S.‑I. through memo. Exh.P.B. The appellant on 7‑9‑1993 led to the recovery of blood‑stained Toka. P.5 and license of .12 bore gun which were taken into possession separately through memo. Exh.P.K. and Exh.P.L respectively. On completion of formal investigation, the Investigating Officer submitted the final report.

5. The prosecution in order to establish the charge produced eleven witnesses including the formal witnesses. Muhammad Ashraf Patwari P.W.1 prepared the site plans in duplicate on the pointation of the P.Ws. under the direction of the Investigating Officer. Khizar Hayat P.W.2 Head Constable is a witness of recovery of gun. Sarfraz Khan Head Constable P.W.4 being Moharrir of the police station recorded the .formal F.I.R. Exh.P.G./1. He also kept the parcels in Malkhana and further sent the same to the offices of Forensic Science Laboratory and Chemical Examiner, Punjab, Lahore, through a constable. Mst. Daulat Bibi P.W.5 has supported the motive part of the prosecution story and Muhammad Riaz P.W.6 identified the dead body of Mst. Zohra Bibi. Ali Asghar P.W.7 escorted the dead body to post mortem examination from the D.H.Q. Hospital, Chakwal, and also took the parcel of the blood‑stained earth and the weapons allegedly used in the occurrence for onward delivery to the concerned offices. Haji Abdul Qadir P.W.8 is an eye‑witness of the ,occurrence who supported the prosecution story as contained in the statement (Exh.P.G.) of Bostan Khan P.W.9 claimed his presence near the place of occurrence at the time of fateful incident. Zahid Mogfoor, S.‑I. P.W.10 got recovered gun P.1 from the residential house of the appellant. Muhammad Qasim P.W.11, Inspector/S.H.O. after having investigated the case finally challaned the accused to face the trial for the charge of murder of Mst. Zohra Bibi.

6. Dr. Munir Ahmad P.W.3, Medical Officer, D.H.Q. Hospital, Chakwal, conducted the post‑mortem examination on the dead body of Mst. Zohra Bibi on 28‑8‑1993 and found the following injuries on her person:‑‑ (1) Fire‑arm wound of entry with blackening and scorching I=1/2 x 1/2 inch oval in shape on left side of forehead just in hair margin going deep towards left and upward. (2) An incised wound irregular in shape on left side of skull adjacent to first injury measuring 5 x 3 inch. It was deep and whole skull on left side was torn to pieces and brain matter has shattered. There was no exit wound of injury No.

1. In X‑Ray of the skull, multiple fracture of skull bone alongwith three shadow of Radio‑opaque nature seen and dust was also seen. No bullet or pellet was recovered. In the opinion of the doctor, injuries Nos. l and 2 were ante‑mortem and were fatal collectively as well as individually, which were sufficient to cause death in the ordinary course of nature. Injury No. l was caused with fire‑arm whereas injury No.2 was caused with sharp‑edged. weapon. The death was instantaneous whereas the post‑mortem examination was conducted with a duration of 4‑ to 8 hours. The report of blood‑stained earth was positive. The Chemical Examiner through his report Exh.P.O. found the Toka stained with blood and the Serologist in his report expressed that it was stained with human blood.

7. The appellant in his statement under section 342, Cr.P.C. while denying the charge of murder pleaded innocence and in an answer to question No. 10, stated as under: "The P.Ws. are closely related to the deceased. They were not present at the time of occurrence and they deposed falsely tostrengthen the case of the prosecution against me. In fact, Mst. Zohra Bibi deceased is known to be a bad character woman who had a helping hand .for development of illicit relations between his wife and Jalal of Village Dara Rajgan and Wajid Hussain, Chairman of Lari Shah Nawaz. I reprimanded my wife who left my house and deserted herself. I am running a shop, which is situated at Adda Basharat, and on the day of occurrence, said Jalal and Wajid Hussain came across me there. I reprimanded them on having illicit relations with my wife. At this altercation took place in the Bazar. I took out Toka Exh. P.T. from my shop and caused injuries to Jalal Khan with the said Toka. I also chased Wajid Hussain but he escaped. Out of ' Ghariat' and in the heat of passions with the same state of mind, I went to my house from where I took my licensed gun Exh.P.1 and went to the house of my in‑laws to murder my wife. I could not find her there and thereafter I went to the house of Mst. Zohra Bibi deceased from where I learnt through her daughter that she had gone in the field for cutting grass and thus, I rushed to the place of occurrence committed the occurrence. I took gun with me alongwith Toka so that my wife and Mst. Zohra Bibi deceased could not be spared. After the occurrence, I went straightaway to Police Post Basharat and narrated the whole occurrence before the police and also produced my licensed gun Exh.P.l alongwith its licence and Toka Exh.P.5."

8. The learned counsel for the appellant contended that in the light of the plea taken by the appellant in his statement under section 342, Cr.P.C., the motive part of the story introduced by Mst. Daulat Bibi, sister of Mst. Zohra Bibi, is belied and with the exclusion of motive, it would not be a case of Qatl‑e‑Amd punishable under section 302(b), P.P.C. as Taazir. The learned counsel argued that the appellant as a result of an' altercation with the paramours of his wife, losing self‑control attacked on them and in the heat of passion in continuation of same mental state, the appellant inflicted injuries to Mst. Zohra deceased who while playing role of an agent was the source of illicit relations of Jalal Khan and Wajid Hussain with his wife and thus, the appellant was no( guilty of Qatl‑e‑Amd punishable under section 302(a) or (b), P.P.C. as Qisas or Tazir and would be liable to a penalty under, section 302(c), 'P.P.C. Learned counsel added that the prosecution story while changing the true facts introduced an artificial version through the witnesses who were not present at the spot. He, however, argued that even if the occurrence took place in the land from where the deceased was cutting grass outside the village is admitted, the presence of eye‑witnesses at the place of occurrence was highly doubtful. The learned counsel submitted that while putting the two versions in juxtaposition, the version given by the appellant appears to be mere plausible and acceptable to mind. He added that the defence version being natural and confidence inspiring would exclude the truthfulness of the prosecution story and consequently, in the light of fact that it was not a voluntary homicide instead the occurrence was the result of grave and sudden provocation, a nominal sentence under section 302(c), P.P.C. would be awarded.

9. The learned State Counsel has argued that the defence version even if is believed as such, it neither brings the case within the ambit of section 302(c), P.P.C. for the purpose of punishment nor would dislodge the prosecution version and that there is no mitigating circumstance in favour of the appellant for lessor penalty under' section 302(b), P.P.C.

10. We have heard the learned counsel for the appellant as well as the State and perused the record with their assistance. The occurrence in the present case is admitted, with a different version. with the denial of the presence of eye‑witnesses at the spot. The appellant in his statement under section 342, Cr.P.C. has admitted that his wife was deserted during the days of occurrence and on the fateful day, he had entered into an altercation, with Jalal Khan and Wajid Hussain on the basis of his suspicion of illicit relations with his wife. He stated that since Mst. Zohra Bibi deceased was playing the role of mediator between his wife and the above said persons, therefore, he decided not to spare Mst. Zohra Bibi. The motive given by the prosecution about the occurrence was that the appellant had entered into an altercation with Mst. Zohra Bibi 3/4 days prior to the occurrence over a dispute of construction of wall. Except the motive part, the prosecution story, which runs counter to the defence version, the time date, place of occurrence and the weapons used by the appellant stands established by the admission of the appellant. Therefore, the sole question left for determination is whether the eye‑witnesses were present near the place of occurrence or it was an unseen occurrence. Haji Abdul Qadeer P.W.8 being the resident of village had gone , to the place where the occurrence took place to fetch "aksan" for the treatment of buffaloes. The defence despite lengthy cross‑examination has not been able to dislodge the presence of the witnesses either in the village on the fateful day or near the place of occurrence. Admittedly, the witness did not own any land near the place of occurrence, but still he being not a stranger in the area would go to that side, therefore, it is difficult to disbelieve the presence of this witness near the place of occurrence and exclude his evidence from consideration. Bostan Khan P.W.9 stated that at the time when Mst. Zohra Bibi was cutting grass from the land of Mst. Daulat Bibi, her sister, he was also cutting grass for his cattle in the nearby field and within his sight, the accused fired at Mst. Zohra Bibi, wife of his paternal‑uncle. He states that the deceased on sustaining the injuries died at the spot. The witness denied the suggestion put to him by the defence that Mst. Zohra Bibi was caused injuries by the appellant in the manner as stated by him in his statement under section 342, Cr.P.C. .

11. The perusal of the statement of the P.Ws. would show that they without any omission or addition narrated the prosecution story as contained in the F.I.R. which stands corroborated by the medical evidence and the recovery of weapon of offence from the accused. The .prosecution case is further corroborated by the defence version. We may observe that the prosecution version is supported by the natural and ,independent witnesses, who had no enmity or malice against the appellant to make a false deposition against him in a murder case. We have not been able to find out any reason to disbelieve the eye‑witness account or doubt their credibility. Wed observe that even in the light of the defence version, the charge under section 302(b), P.P.C. stands fully established. The plea of the appellant is that he caused injuries to the deceased after entering into an altercation with the paramours of his wife who had liaison with his wife through the deceased. It is strange that the appellant had grievance against the paramours of his wife and he without any moral or legal justification on a false pretext took the life of an innocent lady. There is no evidence on record to suggest that Mst. Zohra Bibi or Mst. Daulat Bibi were playing the role of mediator as source of illicit liaison of his wife with her paramours. Such suspicion in the mind of the appellant would develop an element of revenge and would not provide a circumstance in a murder case to plead grave and sudden provocation to claim benefit of section 302(c), P.P.C. As per defence version itself the deceased was cutting grass when she was attacked by the appellant, therefore, even if the appellant had entered into an altercation with Jalal Khan and Wajid Hussain, as stated by him, there was no justification for him to take the life of the deceased. We may observe that in such circumstances the male and female who are in liaison with each other can be the target and not a third person, therefore, the excuse offered by the appellant for causing the death of Mst. Zohra Bibi being without any foundation would not be a ground to bring the case within the ambit of section 302(c), P.P.C. for the purpose of punishment. We after detail scrutiny of evidence and the defence version are of the firm view that it was an intentional murder. We, therefore, hold that the appellant being guilty under section 302(b), P.P.C. has rightly been convicted. However, while taking the matter of sentence into consideration in the light of the motive part of the prosecution story and the element of "Ghariat" pleaded by the appellant, we are of the view that the prosecution has withheld the actual reason behind the occurrence from bringing on record, therefore, the extreme penalty of death will be improper. Consequently, we while maintaining the conviction on the murder charge under section 302(b), P.P.C. alter the sentence of the appellant from death to imprisonment for life and dismiss this appeal. We, however, allow benefit of section 382‑B, Cr‑,P.C. to the appellant. The sentence of fine awarded to him by the trial Court is converted into compensation under section 544‑A, Cr.P.C. which shall be paid to the legal heirs of the deceased and in case of default in the payment of compensation, the appellant shall suffer S.I. for six months and compensation shall be recovered from him as arrears of land revenue. The murder reference is answered in the negative. The death sentence is not confirmed. ' H.B.T./M‑208/L Order accordingly.