1989 P Cr (PLP)

(1) A gun shot wound 15 c.m. x 2 c.m. x bone deep on the left side of head behind left ear. The margins were slightly tattooed. It was wound of entrance. (2) A gun shot wound 1.5 c.m. x 1 c.m. on lateral back side of neck 1.5 c.m away from injury No.1. The margins were inverted and slightly tattooed This was wound of entrance. (3) A gun shot wound 1.5 c.m. x 1 c.m. on the lateral and back side of injury No. 2 and 1 c.m. from injury No.1 The margins were inverted and slightly tattooed. This was also wound of entrance. (4) A gun shot wound 1.5 c.m. x 1 c.m. on the left and back side of head behind the left ear .5 c.m. from injury No.1 towards the left ear. Margins were inverted and slightly tattooed. This was a wound of entrance. (5) gum shot exit wound .5 c.m. x .4 c.m, with averted margins, on the cater side of right chest 103 c.m, from right nippy: downwards. According to his statement the cause of death was shock and haemorrhage resulting from injuries 1 to 4 which were sufficient to cause death in ordinary course of nature. Injury No. 1 alone was stated to be sufficient to cause death. Syed Kazim Hussain Gilani P.W.6 Draftsman had prepared site plan of the place of occurrence on 3rd of September, 1986. On 7th of September, 1986 accused Shahbaz was arrested while he was armed with .12 bore gun P.7 which was loaded with live cartridges. He was found in possession of another cartridge Exh.P.9 which was also taken into possession.

3. During the course of trial, prosecution apart from the formal witnesses, had examined two eye‑witnesses namely Ghulam Rasul complainant P.W.7 and Nawab Bibi P.W.8. These two witnesses had fully supported the case of the prosecution and had deposed about the incident as described earlier. In his statement under section 342, Cr.P.C. the accused did not deny the incident or having caused death of Mst. Irshad Bibi but he stated that Mst. Irshad Bibi was his fianc e and on the day of occurrence he saw one Haqnawaz entering the 'house of deceased, who bolted the door from inside. According to him he was going to the shop of Barber Muhammad Sarwar for hair cutting and was armed with a carbine which he had been used to keep for his defence as he had enmity in the village. On seeing Haqnawaz entering the house of the deceased, he (suspected foul play and climbed the roof went into the home (if the deceased where while standing at the stair he saw Mst. Irshad Bibi deceased and Haqnawaz kissing and embracing each other. He, therefore, lost self‑control and fired at the deceased. Haqnawaz succeeded in running away. According to him he acted under grave and sudden provocation. He denied that the parents of the deceased were present at the house at that time. He has produced defence in the form of Ghulam Dastgir D.W1. and also appeared as his own witness as D.W.2. The learned Sessions Judge found that the motive set up by the prosecution was not proved inasmuch as it was held by him that the accused was in fact betrothed to Mst. Irshad Bibi deceased and as such the prosecution story that the murder was committed because the accused had been refused the band of Mst. Irshad Bibi in betrothal was false. While coming to this conclusion; the learned Sessions Judge had relied upon the statement of P.W.7 a witness produced by the prosecution itself. The learned Sessions Judge also discarded the presence of the two eye‑witnesses namely Ghulam Rasul P.W.5 and his wife Mst. Nawab Bibi P.W.6 on the basis that they were not present at the spot. According to the learned Sessions Judge, if two witnesses were present, the motive with the accused was to have attacked them rather than Irshad Bibi deceased. The learned Sessions Judge also took the view that Ghulam Rasul complainant might have gone in the morning to look after his lands and Mst. Nawab Bibi to give meals to her husband. After having rejected the story of the prosecution evidence the earned Sessions Judge found that the accused while causing injuries to Mst. Irshad Bibi did not act under sudden provocation: It was found that the element of suddenness was missing as the learned Sessions Judge was of the view that the story putforth by the accused that he was going to barber's shop was false inasmuch as it was admitted by D.W.1 that there was no shop of barber in the street. Similarly, Shahbaz had failed to prove that he had any previous enmity with any other person obliging him to carry a carbine with him. According to the learned Sessions Judge the accused went to the house of his uncle to bring the carbine and then fired at Mst. Irshad Bibi. He, therefore, found him guilty of having committed murder under section 302, P.P.C. 'and sentenced him to imprisonment for life.

5. I have heard the learned counsel deputed by the State in this jail appeal and as also learned counsel for the petitioner in Criminal Revision 412 of 1987 which has been ordered to be heard alongwith jail appeal. The place of occurrence, the time of occurrence and the cause of death is not disputed m the present case. The death of Mst. Irshad Bibi at the hands of the appellant is also admitted. The only questions, therefore, are whether reliance can be placed or not on the prosecution version regarding the manner in which the death was caused and whether the learned trial Court was right in rejecting the defence‑version after having discarded the two eye‑witnesses. As for the second point, it is well‑settled that if prosecution version has been totally disbelieved and the only material left is the statement of the accused, it has to be accepted or rejected as a whole. Reverting to the first question, I do not accept the finding of the trial Court that the two eye‑witnesses viz. Ghulam Rasul and Mst. Nawab Bibi P.Ws., the father and mother of the deceased were not present at the time of occurrence. The reasons given by the learned trial Court in this respect are not convincing. The incident took place in the house where deceased was residing and her father and mother are natural witnesses. There is no contradiction pointed out in their testimony so as to make their presence doubtful. On the other hand their testimony has the ring of inherent truth. The trial Court appears to have proceeded on the conjecture that at 8‑30 morning the father of Mst. Irshad Bibi namely Ghulam Rasool might have gone to his lands and that Mst. Nawab Bibi to give meals to her husband. This finding is not supported by any evidence on the record, nor is it probable that at 8‑30 in the morning Mst. Nawab Bibi would go to give meals to her husband. Even if the presence of Ghulam Rasul P.W. was in doubt, there was no reason to hold that Mst. Nawab Bibi too was absent from the house at the time of occurrence. The mere fact that Ghulam Rasul or Mst. Nawab Bibi was not fired upon by the accused could not furnish basis for holding that they were not present at the spot. The real grouse of the appellant would be against Mst. Irshad Bibi and not her parents. The finding of the trial Court in this respect is not sustainable.

6. As regards the defence‑version I find that it has been rightly discarded by the learned Sessions Judge. If the accused saw Haqnawaz and Mst. Irshad Bibi embracing, there is no reason as to why Haqnawaz was not fired upon by the accused. This would have been his natural reaction. The explanation furnished by the accused that Haqnawaz managed to run away cannot be accepted, According to .his own case, the door was bolted from inside and he was standing on the stairs. Haqnawaz had, therefore, no easy way to escape. Similarly the reasons for carrying carbine which was unlicensed has not been established by sufficient evidence. There is no proof on the record that he had any previous enmity obliging him to carry a weapon at all times. His version that he was going to the shop of Muhammad Sarwar barber has also been rightly rejected by the learned trial Court as according to D.W. 1 there was no shop of barber towards the place where the accused was going. As regards the plea of grave and sudden provocation that too is not acceptable. If indeed the appellant saw Mst. Irshad Bibi embracing and kissing Haqnawaz, she according to his own case was his fianc e and not his wife. He could have very well refused to marry Mst. Irshad Bibi rather than killing her. However, this aspect of the matter need not be dilated upon, as I have already held that the version of the prosecution stands established by the ocular testimonies of P.Ws. 5 and

6. The appellant was, therefore, rightly convicted by the trial Court under section 302, P.P.C.

7. As for the sentence, I find that Irshad Bibi was the fianc e of Shahbaz Ahmad accused as has been admitted by P.W.9 a witness produced by the prosecution itself. Keeping in view the overall circumstances of the case, to me it appears that the parents of Mst. Irshad Bibi deceased after having betrothed her to Shahbaz were not willing to give her hand in marriage to the appellant. It was taken an insult and disgrace as is usual in our rural society to which the appellants belongs. The capital punishment of death in the circumstances of the case was, therefore, not called for and the learned trial Court rightly awarded the sentence of life imprisonment in this behalf. I was attempted to enhance the sentence of fine and compensation but I refrain from doing so as it appears that the appellant has no means as he could not even engage a counsel in the present appeal which was filed through Superintendent Jail. In this view of the matter I maintain the conviction and sentence of the appellant and dismiss the jail appeal as also the criminal revision. H.B.T./S‑352/L Appeal dismissed.