1968 P Cr (PLP)

On opening the body he found the following injuries:‑ Thorax.‑(i) There was one incised wound between the sixth and seventh ribs which had pierced the chest, size 1" x ". Ribs and cartilages were normal. (ii) Incised wound on the left breast. (iii) Incised wound on the right breast. Left pleural space was full of blood. There was an incised wound on the lower lobe of the left lung and lung was empty. Rest thoracic organs were normal and healthy. Abdomen.‑(i) One incised wound just below the right costal margin in the right hypochondrium size 3' x ' into abdominal wall, pierced and omentum was coming out. (ii) Incised wound just below the left side of umblicus size 2" x " x 1/6". Small intestines was cut by the knife which had pierced the abdominal wall just below the umblicus. The knife which had pierced the left lung had also damaged the spleen. He opined that the injuries which the deceased had received and the haemorrhage which was caused, were sufficient to cause the death in the normal course of nature. Probable duration between death and post‑mortem was 18 to 20 hours. The death was caused almost instantaneously after the injuries. Exh. P. M. is the carbon copy of his post‑mortem report. It bears his signatures. The wounds, according to him, could be caused by knife Exh. P. 1,

4. On 4th of May 1966, Lady Doctor Sajida Sultan examin ed Mst. Shahida Parveen (P. W. 8) and found the following injuries on her person

1. Fresh wound " deep just in front of left ear. Edges of the wound are clear cut and the wound bleeding. 2. 3 clear cut wounds on front of left upper arm. No. 1 is one inch deep, one inch long and No. 2, is " long and 1/2' deep and No. 3 is " long and superficial.

3. Two superficial incised wounds linear in shape on the back of upper left arm, both two inches long.

4. Incised wound one inch long " deep on the side of the left chest. All the injuries except injury No. 4 were simple and caused by sharp‑edged weapon. Injury No. 4 was declared grievous after the report of the radiologist Exh. P. K. She identified the sign atures of Dr. Jamil Akhtar Aziz who wrote the report, the carbon copy of which is Exh. P. L. According to her, the injuries could be caused by knife Exh. P. 1.

5. The appellant accompanied Muhammad Nawaz and Pir Bakhsh of his own and he gave the blood‑stained knife Exh. P. 1 which was produced before Saeed Akhtar Baig, S. H. O. In the presence of Muhammad Nawaz (P. W. 4) and Pir Bakhsh. W. 5) and was taken into possession vide memo. Exh. P. B. on e same day.

6. The blood‑stained clothes of the appellant consisting of chola malmal Exh. P. 2, bunyan Exh. P. 3 and Chaddar Exh. P. 4 and also shoes Exhs. P. 5/1 and 2 (not blood‑stained) were taken into possession vide memo. Exh. P. C. by Saeed Akhtar Baig (P. W. 17) in the presence of the same witnesses.

7. The knife and the clothes were sent to the Chemical Examiner. Report of the Chemical Examiner, dated 17th May 1966 Exh. P. V. shows that the knife and the clothes and the other articles like the earth taken from the spot were besmeared with blood. The report of the Serologist dated 20th July 1966 Exh. P. W. reveals that the above articles were stained with human blood. They were tendered in evidence at the trial by the Public Prosecutor.

8. Before the Committing Magistrate, the appellant stated in answer to question No. 2. "Q. 2.

‑Is it correct that on 4th May 1966 at 3‑30 p.m. you armed with knife Exh. P. 1 assaulted Mst. Ghulam Fatima 1.; and injured her in her house, at which she entered an adjacent house to save herself. But you chased her in the house of Ghulam Farid and injured her with knife Exh. P. 1 and murdered her? A.‑--It is correct that on that day I came from Rahimyarkhan and my sister‑in‑law had married her daughter to a Thag‑type person. When I entered my house I saw that very person sitting with my nieces and cutting jokes. I was enraged and asked my sister‑in‑law and nieces as to who he was. But instead of giving any ‑satisfactory reply‑they quarrelled with me. Hence I was enraged and committed this act." 'He further stated that the prosecution witnesses were deposing against him on account of the party faction in the Mohalla. Ire admitted to have produced knife before one Mehar Sub‑Inspector arid also admitted the production of his blood‑stained clothes arid shoes. He however, stated that the case had been made against him in such a way so that he may be executed. Before the learned Sessions Judge, he answered to Q. No. 3 asunder:-- Q. 3.‑‑It is alleged by the prosecution that on 4th of . May 1966, at about 3‑30 p. m. you, armed with knife gave knife injuries to Mst. Ghulam Fatima in her house; that you chased her into the house of Ghulam Farid and gave further knife' injuries and killed her on the spot. What have you to say? A.--‑On the day of occurrence I came back from Rahimyar khan. I used to come to Bahawalpur after interval of a month, two or three months, in order to give monthly ration to my brother and his family. Ghaus Bakhsh my brother was provided a house by me, which is my property, after erecting a partition wall in it. On the day of occurrence I was holding the ration in my hand and, on entry into the house of my brother Ghaus Bakhsh I saw a person sitting in the house. That man was Qamar‑ud‑Din. I had not seen him before. I inquired from my sister‑in‑law and nieces as to who he was. They told me that I had no talk about that affair. When I tried to move forward my nieces caught hold of me. On taking this opportunity that person Qamar‑ud‑Din ran out of the house: followed by Mst. Ghulam Fatima. When. I was going to the room that person tried to move and I told him to sit back and I wanted to talk to him. After that person had gone out followed by Mst. Ghulam Fatima, I looked for something and found a knife lying in the window. Exh. P. 1 is the same knife. I came out and found that that person had vanished and Mst. Ghulam Fatima had gone into the house of Ghulam Farid. In sheer anger I inflicted knife injuries on Mst. Ghulam Fatima in the house of Ghulam Farid and killed her there." He, however, denied the presence of Muhammad Nawaz and Pir, Bakhsh P. Ws. at the spot and also admitted to have caused injuries to Mst. Shahida Parveen saying that 'she received injuries because she came in between him and the deceased. The production of knife was also admitted. He produced in. defence Shah Nawaz (D. W. 1) a brother of Muhammad Nawaz (P. W. 4). Abdul Majid (D. W. 2) his own brother, Hafiz Muhammad Bakhsh (D. W. 3) a shop‑keeper in the, Mohalla near the place of occurrence and Sardar Muhammad (D. W. 4) a neighbour who lived at a distance of two houses from the place of occurrence.

9. The motive for the crime is disclosed by Ghaus Bakhsh (P. W. 9), the brother of the appellant, who stated at the trial that at the time of the occurrence he was in Jhang and the appellant; who is his brother, was asking him to give one of his daughters in watta for his marriage. He and his wife, the deceased, had refused to do so. He stated that the appellant was brought up in the house from his childhood and later on he was turned out on account of this trouble. He further stated that his two daughters Mst. Zubaida and Mst. Hafiz Ata Illahi were married and other three daughters were unmarried. He, however, denied that his family was being supported by the appellant ever since he lost his arm.

10. Muhammad Nawaz (P. W: 4) in his cross‑examination admitted 'that his house was to the east of the house of the deceased and there intervened about 15/20 houses and was at the back of the lane. He also admitted that the house of Pir Bakhsh P. W. was in another lane situated at the back of the lane where the house of Ghaus Bakhsh was situated. He admitted that none of the inhabitants of the houses in the lane came at the spot. He denied that one Qamar‑ud‑Din Punjabi came out of the house of the deceased in a naked condition. He also denied that when the appellant made extra-judicial confession before him, he had told him that he had come from Rahimyar Khan on that very day and on entering the house of his brother he saw Qamar-ud‑Din sitting with all the daughters of the deceased Mst. Ghulam Fatima. He, however, admitted that when the accused killed the deceased he was furious with his emotions and had lost self control. He also admitted that ever since Ghaus Bakhsh came in village for, the last 15/20 years the appellant and his other four brothers used to help Ghaus Bakhsh and his family. Pir Bakhsh (P. W. 5) admitted at the trial that he accompanied Muhammad Nawaz " to the Police Station, where he dictated the F. I. R He is a dismissed Police Constable. Mst. Zubaida (P. W. 6) deposed that the appellant came in the house with an open knife. He abused her mother for not giving her daughter in watts for his marriage and that she was using her daughters for prostitution. She further stated that when her mother died as a result of the injuries given by the appellant he set up and said that desire of his heart had been satisfied. She admitted in cross-examination that on that day, her husband Qamar‑ud‑Din was not present in Bahawalpur. She admitted that the appellant came front Rahimyar Khan but denied the suggestion that when ho entered the house, her husband Qamar‑ud‑Din was behaving in an indecent way with her sisters in the house. She further denied that when the, appellant objected to the behaviour of Qamar‑ud-Din her mother abused the appellant. A suggestion was put to her that she was married to Qamar‑ud‑Din because she had developed illicit relations with him which she denied. However, she admitted that one of her sisters Mst. Mumtaz was abducted by some one who was sentenced to four years' R. I. She stated that none of her uncles attended her marriage. The evidence of Mst. Faizan (P. W. 7) is somewhat the same. Mst. Shahida. Parveen (P. W. 8) deposed the incident and her own injuries. Malik Wahid Bakhsh (P. W. 13), a son‑in‑law of the deceased; admitted in cross‑examination that Qamar‑ud‑Din was not present at the house when he went to the house of his father-in-law on getting information of the murder. He, however, admitted that Qamar‑ud‑Din is a controversial personality by character. Saeed Akhtar Baig S. I. (P. W. 17) investigated the case and made the relevant recoveries and admitted not to have produced some persons examined by him who have been mentioned against serial Nos. 19 to

26. One of them is, however, Abdul Majid who has been produced as D. W. 2 in the case.

11. Shah Nawaz (D. W. 1) who is a brother of Muhammad Nawaz (P. W. 4) lives in the same house of Muhammad Nawaz. He deposed that he heard alarm and came out of the house. He saw Qamar‑ud‑Din previously known to him coming out of the house in a nervous condition. He was wearing only one cheddar. Abdul Majid (D. W. 2) who is the brother of the appellant and was examined by the Investigating Officer and was with held, also admitted that Qamar‑ud‑Din son‑in‑law of Ghaus Bakhsh came running out of the house. He was all naked except that he was wearing a cheddar. The appellant was being dirtily abused by the deceased and his nieces. The appellant stated that they were so shameless that an outsider was sitting into house and all the girls had collected around him. Hafiz Muhammad Bakhsh (D. W. 3) who runs a stall at a distance of five houses from the residence of Ghaus Bakhsh stated that on the day of occurrence the appellant came from Rahimyarkhan and used to stop at his stall whenever he came there. As usual at about 3 or quarter to 3 p.m. he stopped at the stall for a minute or two. He was carrying a basket which contained certain envelopes. He was in good mood and told him that he was going to the house of his brother. He stated that the house in which Ghaus Bakhsh lives is the property of the appellant Muhammad Sadiq. Sardar Muhammad (D. W. 4) who is a neighbour living at a distance of two houses from the place of occurrence stated that when he heard the noise he saw Qamar‑ud‑Din Punjabi coming out of the house of Ghaus Bakhsh.

12. Sadar Mahmood Khan, learned counsel for the appel lant, has vehemently argued that the prosecution has purposely withheld Qamar‑ud‑Din Punjabi whose presence at the house seems quite obvious. He is a stranger in the family and assuming that even if the appellant knew that he was married in the family, he did not like his behaviour. Moreover, he was a man of controversial character and none of the brothers of Ghaus Bakhsh participated in the marriage of Mst. Zubaida with him. Something must have happened in the house which enraged the appellant to the extent that he became furious and lost his self‑control and caused the death of the deceased. The prosecu tion has purposely not produced Qamar‑ud‑Din less the truth may not come out as it was likely to tarnish the face of Qamar -ud‑Din and the plea of the appellant was likely to be established. The appellant was consistent from the very beginning in the story which he has put in Court and has not denied the occurrence. He has produced the weapon of offence and his clothes of his own accord. We see considerable force in the submissions made by the learned counsel. It is absolutely clear that something happened in the house of Ghaus Bakhsh which had infuriated the Appellant to the extent of killing the deceased with such vengeance. We are not prepared to believe that he entered the house within open knife during the day time as is stated by Mst. Zubaida. There is a contradiction between the statements of Mst. Zubaida and Wahid Bakhsh (P. W. 13) about the presence of Qamar -ud‑Din in Bahawalpur on the day of occurrence. Qamar‑ud‑Din was no doubt married in the family but against the wishes of all the brothers of Ghaus Bakhsh as none, of them participated in the marriage. He was an unwanted person and perhaps he was married in the family with Mst. Zubaida after some intrigue. The character of the family is otherwise not above board. One of the sisters Mst. Mumtaz was abducted earlier. The appellant was perhaps right when he accused the deceased that she was running her daughters for prostitution. We are of a view that Qamar‑ud‑Din was present in the house and when the trouble started he slipped away from the spot. Whatever the situation may be, whether it was that he was cutting jokes with the other girls in the house while almost half‑naked or his presence in the house infuriated the appellant otherwise as an unwanted person in the family or the deceased was the cause of not giving one of his daughters in watta for the marriage of the appellant, the real cause of the trouble has not been disclosed and the prosecution has not come with clean hands in Court. Something is purposely kept out in order to deprive the appellant of the benefit of excep tion I to section 300, P. P. C. Sardar Mahmood Khan cited Ali Muhammad v. Crown (P L D 1963 B J 17) in support of his submission that where something which has happened in the house has been purposely withheld by the prosecution, an inference can be drawn in the circumstances of the case that such incident led to the grave and sudden provocation to the appellant. In Imam Bakhsh v. The State (P L D 1961 Lah. 554) it was held that the circumstance which led to the death of a deceased at a sudden quarrel, in a domestic quarrel culminat ing in a situation which deprived the accused of all powers of self‑control, the offence in such a circumstance would be one under section 304, Part I, P. P. C. and the learned Judges altered the conviction to the one under section 304, Part I, P. P. C. and sentenced the accused to seven years' R. I.

13. We are of the opinion that in the circumstances of this case, the appellant has successfully succeeded in convincing us that he is entitled to the benefit of Exception I to section 300, P. P. C. Whatever the case may be it was a family dispute which resulted in a flare‑up in which the appellant lost his all powers of self‑control and gave a large number of injuries to the deceased. The larger number of the injuries on A the person of the deceased clearly establishes that the appellant was highly infuriated and had lost self‑control. Following the Lahore High Court authority cited above, we alter the conviction of the appellant from section 302, P. P. C. to section 304, Part I P. P. C. and reduce his sentence to seven years' R. I. We refuse to confirm the sentence of death on the appellant. While main taining his conviction and sentence under section 326, P. P. C. it is directed that both the sentences will run concurrently. Conviction altered.