1985 P Cr (PLP)

Muhammad Nadir complainant filed Criminal Revision No 243/84 praying that Ghulam Murtaza respondent be convicted under section 302, P.P.C. This revision was not admitted but only ordered to be heard alongwith Criminal Appeal No. 666/83. As these three matters arise out of the same judgment, I propose to deal with them together.

2. The prosecution case, in brief, is that on 21‑1‑1983 at about 3.00 p.m. Muhammad Nadir (P.W. 6) alongwith Muhammad Feroze (P.W. 8), Muhammad Sadiq (given up P.W.) and Allah Wasaya deceased was returning to his house from Madni mosque after saying Jumma prayer. When they were near the house of one Gul Mahi, it is alleged that, Ghulam Murtaza accused armed with a knife suddenly came out of his house. He challenged Allah Wasaya deceased and simultaneously inflicted two knife blows on the left side of chest and left flank. On receipt of these injuries, Allah Wasaya deceased entered the house of Gul Mahi and fell on the ground. The accused ran away from the spot with his knife. Allah Wasaya died at the spot as a result of the injuries received by him. The occurrence, according to the F.I.A. was witnessed by Muhammad Nadir, Muhammad Feroze and Muhammad Sadiq P.Ws. The motive was stated to be that Ghulam Murtaza accused suspected Allah Wasaya deceased for having illicit relations with his wife Mst. Shahnaz Bibi. Leaving the dead body of Allah Wasaya at the spot under the care of Muzaffar Khan and Muhammad Ashraf (both not examined), the complainant Muhammad Nadir proceeded to Police Station Mitha Tiwana (district Khushab) about five miles from the place of occurrence but met S.I. Shamshad Ali Shah near Bus Stand. Botala. Muhammad Nadir P.W. made statement Exh. P.B. before Shamshad Ali Shah S.I. (P .W .9) at 7‑00 p.m. on the basis of which formal F.I.R. Exh. P.B/1 was recorded at 7.30 p.m. the same day by Munawar Din H.C. (P.W. 2). After registration of the case the Police undertook investigation. The appellant Ghulam hlurtaza was arrested on 24‑1‑1983 whereafter he led the Police to his house and got recovered blood‑stained knife P.7 which was taken in possession by the Investigation Officer vide memo. Exh. P.F in the presence of Muhammad Nadir (P.W. 6) and Muhammad Feroze (P.W. 8). The knife P.7 was found to be stained with human blood vide report of Chemical Examiner Exh. P.K and that of Serologist Exh. P.M. The Police collected some blood‑stained earth from an interior room of the house of Gul Mahi vide memo. Exh P.E. This earth was found to be stained with human blood vide report of the Chemical Examiner Exh. P.J and that of Serologist Exh. P.L. The dead body of Allah Wasaya (26) deceased was sent for post‑mortem examination which was conducted by Dr. Muhammad Afzal (P.W. 4) on 22‑1‑1983 at 9.00 a.m. The Medical Officer found the dead body clad in shirt, Bunyan, Sweater and Jarsi only. He noted two stab wounds on the dead body. One stab wound was 4 c.m, x 1 c.m. x chest cavity deep on the left side of chest 5 c.m. above and lateral to left nipple. The second stab wound was 2 c.m. x 1 c.m. x bone deep on the back of chest of left lower part. On disection third rib on the left front side was found fractured. Intercostal, muscles were conjested. Pleura was found injured on left front side. Middle lobe of left lung was also injured. Arch of eorta was also injured. These two injuries had been caused by a sharp‑edged weapon. Injury No. 2 was simple while injury No. 1 caused shock and haemorrhage and was sufficient to cause death in the ordinary course of nature. The time between injuries and death was within 15 minutes and between death and post‑mortem was 16 to 20 hours. After completion of the investigation, the accused was challaned.

3. The prosecution examined 9 witnesses during the trial in support of its case. P.W. 6 Muhammad Nadir, P.W. 7 Mst. Safia and P.W. 8 Muhammad Feroze were examined as eye‑witnesses. Muhammad Sadiq, another eye‑witness, was given up as unnecessary. Muhammad Nadir and Muhammad Feroze P.Ws. also testified to the recovery of blood‑stained earth from the spot and knife P.7 at the instance of the accused. P.W. 4 Dr. Muhammad Afzal furnished medical evidence. S.I. Shamshad Ali Shah (P.W. 9) investigated the case. The evidence of other witnesses was of formal nature. The accused in his statement under section 342, Cr.P.C. pleaded innocence and denied the charge. He also denied recovery of knife P.7 and attributed this case against him due to enmity. He produced no evidence in defence. The learned trial Judge disbelieved Mst. Safia (P.W. 7). He held that Muhammad Nadir (P.W. 6) and Muhammad Feroze (P.W. 8) might have witnessed the occurrence. He accepted their evidence regarding recovery of knife P.7. In view of the suggestions to the eye‑witnesses during cross‑examination, the learned trial Judge came to the conclusion that the accused was not guilty of murder but acted under grave and sudden provocation. Consequently, the conviction was recorded under section 304 (Part I), P.P.C. as stated above.

4. I have gone through the record of this case and have also heard the learned counsel for the appellant and learned counsel for the State. The learned counsel for the appellant did not address arguments on the evidence furnished by the eye‑witnesses. He supported the conclusion of the learned trial Judge that the accused acted under grave and sudden provocation. The learned counsel for the State also supported the conclusions of the learned trial Judge. I have gone through the evidence of this case. Sadiq (given up P.W.) and Muhammad Nadir (P.W. 6) are real brothers. Their sister was the wife of Allah Wasaya deceased. Even otherwise, Allah Wasaya deceased, Muhammad Feroze and Muhammad Nadir P.Ws. were cousins inter se. A cousin of Gul Mahi father of Mst. Safia P.W. was the wife of Muhammad Nadir P.W. All the eye‑witnesses are, therefore, closely related to the deceased. Muhammad Nadir (P.W. 6) and Muhammad Feroze (P.W. 8) were not residents of the locality of the place of occurrence. It was admitted by Muhammad Nadir P.W. that his house was 500 yards from the spot. He further admitted that the house of Muhammad Feroz2 was 500/600 yards to the west of the place of occurrence. It appears that in order to meet an objection that these witnesses were not from the locality, Mst. Safia P.W. was introduced as an eye‑witness in this case. This was done for another reason also because the dead body was found lying in the house of her father Gul Mahi. I have carefully examined the evidence in this case and I agree with the findings of the learned trial Judge that the accused /appellant was guilty only under section 304(1), P. P. C. My reasons for this conclusion are; firstly, it was admitted by Muhammad Nadir (P.W. 6) that it was correct that on seeing Mst. Shahnaz wife of accused and the deceased in objectionable position, Zafar had attacked the deceased who ran away and then there was a fight between Zafar and his supporters on one side and his brother Sadiq and other relations on the other side. It was further admitted by him that in that fight Iqbal and Ghulam Muhammad, two cousins of the accused, were injured on one side whereas Muzaffar, a brother‑in‑law of the deceased and his son Mazhar were injured on the side of Allah Wasaya. This admission by Muhammad Nadir (P.W. 6) clearly prove that Mst. Shahnaz, wife of the accused, was in fact having illicit relations with Allah Wasaya deceased and on an earlier occasion than the present murder, there was a fight between the two parties on that count. In the F.I.R. also it was stated that Allah Wasaya deceased was killed because of his illicit relations with Shahnaz. This means that it was not a mere suspicion but in fact the deceased was having illicit relations wth Shahnaz, wife of the appellant. Secondly, it was admitted by Mst. Safia Bibi aged 12 years that on the day of occurrence; there was a marriage ceremony in their brotherhood at a Dera outside the village Abadi. All the inmates of the house has gone to attend the said marriage ceremony at the time of occurrence and that she was all alone in the house on account of her illness at the time of occurrence. In my view even Mst. Safia Bibi was not present in the house at the time of occurrence and she also had gone to attend the marriage at a Dera outside the village alongwith other members of the family. Thirdly, the above facts indicate that Allah Wasaya deceased took Mst. Shahnaz, wife of the accused, in the house of Gul Mahi which was just in front of the house of Ghulam Murtaza accused and was having sexual intercourse with her when surprised by the accused. This view is supported by the fact that no blood‑stained earth was collected from the street where the deceased Allah Wasaya is said to have received two stab wounds on his person. No trail of blood was even found from the street to the place where the dead body was found lying by the Investigating Officer. The blood was found only from inside the room of the house of Gul Mahi. There is another circumstance in support of this view. At the time of post‑mortem examination, the Medical Officer found the dead body clad in shirt, Bunyan, Sweater and Jarsi. No loin cloth in the form of Dhoti or Shalwar etc. was found on the dead body. I have seen the Inquest Report Exh. P.H. prepared by the Investigating Officer at the spot. In column No. 7 of this report he serialized 4 clothes on the dead body which were shirt, Bunyan, sweater and Jarsi. These four clothes were given serial Nos. 1 to

4. It appears that at some latter stage, a Lungi of red colour was added in this document. This Lungi was not given any serial No. Although the Medical Officer had found only four clothes on the dead body yet Muhammad Khan F. C. produced a Lungi and a Chadar, both blood‑stained, alongwith the above‑mentioned 4 clothes which were found by the Medical Officer on the dead body. These clothes were taken in possession vide memo. Exh. P.A. There is no explanation as to where from the Chadar which was not mentioned either in the post‑mortem report or even in the Inquest Report, came in existence. Similarly, Lungi was also not mentioned by the Medical Officer in his report. These two clothes seems to have been fabricated at a latter stage. The deceased was found naked inside the room of Gul Mahi. This is a strong circumstance to hold the view that the accused acted under grave and sudden provocation and was not guilty of the charge of murder.

5. It was, however, contended by the learned counsel for the appellant that the consistent view of this Court is to award punishment in such like cases from 3 to 5 years' R.I. The learned counsel for the State opposed this contention of the learned counsel for the appellant. I have considered the question of sentence keeping in view the facts and circumstances of this case and various judgments of this Court. In Muhammad Nawaz v. The State P L D 1971 Lah. 703 the accused saw his sister returning from the house of her paramour and was killed by her brother who had fired at her from a close range. He was sentenced to suffer 5 years' R.I. by the learned trial Judge but the same was reduced to 21 years' R.I. in appeal by this Court. In another case Ehsan‑ud‑Din v. The State P L D 1983 Pesh. 7, the accused‑appellant of that case found his own father in compromising position with his wife and in the heat of passions killed both of them with gun shot. The learned trial Judge sentenced him to suffer R.I. for 3 years, which was reduced to one already undergone by the appellate Court. In another case, Ramzan v. The State 1982 P Cr. L J 1246 the deceased was killed on account of his illicit relations with wife of the accused. He was sentenced to suffer 9 years' R.I. and a fine of Rs. 2,000 by the trial Court which was reduced in appeal by this Court to 4 years' R.I. In the case of Muhammad Sharif v. The State 1983 P Cr. L J 1817 the accused saw his wife coming out from a deserted Haveli with a stranger and killed her. He was awarded imprisonment for life on that count by the trial Court which was reduced by this Court in appeal to 3 years' R.I. In view of these judgments, I am of the view that as the accused lost control on seeing the deceased naked inside the house of Gul Mahi with his wife, R.I. of 3 years only would be enough to meet the ends of justice. The appellant was also sentenced to pay a fine of Rs. 10,000 (Rs. Ten Thousand only) or in A default 2 years' R.1. It was ordered that out of the fine, if recovered, Rs.8,000 (Eight Thousand only) would be paid to the heirs of the deceased. I am not inclined to maintain the sentence of fine. The deceased was an immoral person. He was having illicit relations with Shahnaz wife of the accused. There was a fight at an earlier occasion also between the parties for that immoral act of the deceased. His heirs are, therefore, not entitled to any compensation. Reliance is placed on Maqsood Ahmad v. The State 1983 P Cr. L J 2236 for this view. The sentence of fine is accordingly set aside.

6. As a result of the above discussion the conviction of Ghulam Murtaza appellant under section 304(1), P.P.C. is maintained. However, his sentence is reduced to 3 years' R.I. only. Subject to above modification this appeal is dismissed.

7. The appellant was arrested on 24‑1‑1983. He remained in judicial lock‑up as an under trial till 21‑11‑1983. He will be given benefit of this period under section 382‑B, Cr. P. C.

8. In view of the above, Criminal Revision No. 116/84 is dismissed. Similarly, Criminal Revision No. 243/84 is dismissed in limine. M. A. K. Order accordingly.