P L D 2004 Supreme Court 339 (PLP)

MIAN MUHAMMAD AJMAL, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Multan Bench, Multan dated 31‑10‑1995, whereby Criminal Appeal No.91 of 1992 of respondent No. 1 was partly accepted, in that, his conviction was altered from section 302(b) to section 302(c), P.P.C., his sentence was modified from death to 10. years' R.I. with benefit of section 382‑B, Cr.P.C. and Murder Reference No.184 of 1992 was answered in negative.

2. Brief facts as per F.I.R. are that on 2-4‑1991 at 7‑00 a.m., Mujahid Akhtar complainant alongwith Ghulam Muhammad was passing near the house of her sister Mst. Jamila Surraya Khanum, they upon hearing noise entered the house and saw Muhammad Azam nephew of the complainant, standing in the courtyard and Abdul Hamid husband of Mst. Jamila Surraya Khanum armed with Kulhara was quarrelling with her and he then suddenly started giving blows to her hitting her head, arm and other parts of the body as a result of which she fell down and died. They tried to apprehend him but he threatened them of dire consequences. The accused threw the weapon of offence on the spot and decamped. The motive as stated was that the accused suspected his wife Mst. Jamila Surraya Khanum to be of loose moral character and on that account she was done to death. On the same day at 7‑40 a.m., a case under section 302, P.P.C. was registered against Abdul Hamid respondent No.1 who was arrested on 10‑4‑1991. The Doctor conducted the post‑mortem of the deceased on the same day and found 12 injuries on her which according to him were caused by sharp‑edged weapon except injury No.12 which was result of some blunt object. After completion of investigation challan was put in Court against the respondent. Charge was framed against him to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced 11 witnesses. The ocular account of the incident was furnished by the complainant (P.W.7) brother of the deceased, Ghulam Muhammad (P.W.9) and Muhammad Azam (P.W.10), son of the deceased. On conclusion of the prosecution evidence, the respondent was examined under section 342, Cr.P.C. wherein he denied the allegations and stated that he was falsely involved in the case on suspicion. He did not opt to be examined on oath in disproof of the charges against him under section 340(2), Cr.P.C. however, he produced Muhammad Ateeq his son D. W.1 in support of his defencc plea. The trial Court, on assessment of the evidence convicted the respondent under section 302(b), P.P.C. vide its judgment dated 28‑4‑1997 and sentenced him to death. The respondent challenged his conviction and sentence before the Lahore high Court, Multan Bench, Multan through Criminal Appeal No.91 of 1992 and the trial Court referred Murder Reference No.184 of 1992 for confirmation of his death sentence. A learned Division Bench of the High Court vide its judgment dated 31‑10‑1995 partly accepted the appeal, altered the conviction of the respondent from section 302(b) to section 302(c), P.P.C. and reduced his sentence from death to 10 years, R.I. with benefit of section 382‑B, Cr.P.C. and answered the Murder Reference in the negative. The complainant/appellant challenged the validity of the judgment of the High Court before this Court through Criminal Petition No.489‑L of 1995, wherein leave was granted on 15‑4‑1996 as under:‑‑ "Abdul Hameed respondent was convicted under section 302(b), P.P.C. and sentenced to death by a learned Additional Sessions Judge, Dera Ghazi Khan for causing the murder of his wife Mat. Jamila Surraya Khanum, the sister of the present petitioner, complainant. On appeal filed by the convict and the reference received from the trial Court, learned Judges of the Lahore High Court, Multan Bench came to the conclusion that `accused acted in the state of fury and under grave and sudden provocation'. Tri view of this finding, conviction of the respondent was altered from section 302(b), P.P.C. to section 302(c) and he was sentenced to undergo 10 years' R.I. with benefit of section 382‑B, Cr.P.C.

2. We have heard the learned counsel for the petitioner and have gone through the impugned judgment and grant leave to consider whether the learned Judges of the High Court were justified ill altering the conviction from section 302(b) to section 302(c), P. P. C."

3. We have heard the learned counsel for the appellant, respondent No. 1 in person and learned State Counsel and have gone through the record of the case. Both the trial Court as well as the learned High Court have believed the ocular account and rightly so, as the prosecution witnesses had no animus to falsely charge the appellant who is brother, in‑law of the complainant. The respondent in his statement recorded under section 342, Cr.P.C. professed innocence and false involvement ill the case on suspicion and claimed alibi stating that after taking "Sehri" he left for Dera Ghazi Khan to purchase articles for his shop. When he left the house his wife Mst. Jamila Surria Khanum was all right and during his absence somebody committed her murder. It was totally unseen occurrence and at morning time, women from the neighbourhood found that she was lying murdered. The children confined in the room were also released. The complainant party got the case registered against him on suspicion by falsely claiming to be eye‑witnesses of the occurrence. Although plea of alibi was taken by the accused but he did not appear as a witness under section 340(2), Cr.P.C. to prove his defence plea nor produced anybody in support of his plea except for his minor son Muhammad Ateeq aged 12 years who never alleged such plea during investigation before the police and deposed for the first time. Court in line with his father's version which seems to be tutored. The respondent has not at all alleged that he committed the offence under grave and sudden provocation but has taken the plea of alibi alleging that at the time of occurrence he was not present at the spot and had gone to Dera Ghazi Khan for purchasing goods for his shop. Even otherwise there is nothing on record to suggest that the appellant committed the offence under grave and sudden provocation and the plea of alibi taken by the respondent has not been proved on record. The learned Division P Bench of the High Court has thus erred in altering the conviction of the respondent from section 302(b) to section 302(c), P.P.C. and reducing his sentence from death to '10 years' R.I. on the basis of grave and sudden provocation, as such, the impugned judgment is not sustainable. The respondent has stated that he has served out 10 years of his sentence, therefore, while accepting this appeal we set aside the impugned judgment, restore his conviction under section 302(b), P.P.C. but refrain to restore death sentence as he has already served out 10 years' R.I., as such, we sentence him to life imprisonment which in our opinion would meet the ends of justice. He should be taken into custody to serve the remaining sentence. N.H.Q./M‑10/S Appeal accepted.