2006 PLP 1767 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This appeal is directed against the judgment dated 30-6-2000 passed by the learned Additional Sessions Judge, Khanewal, (in case F.I.R. No.78 registered at Police Station City, Mianchannu, on 18-2-1996 for offence under section 302, P.P.C.) whereby the appellant has been convicted and sentenced for offence under section 302(b), P.P.C. to death plus payment of rupees one lac, in default whereof to further undergo, S.I. for six months. Murder Reference No.64 of 2001, seeking confirmation or otherwise of death sentence, has also been placed before us. We propose to decide both these matters through this single judgment.

2. Briefly, the facts of the prosecution case, as narrated in the F.I.R. Exh.PF by Muhammad Abdullah, complainant/P.W.5, are that about 12 years prior to the occurrence, he had married his daughter Mst. Nasreen with Haji Zahoor Ahmad and Kashif aged 8 years and Mariya aged 1 1/4 years were born out of this wedlock. On the fateful day, he along with Azhar Hussain P.W.6 and Muhammad Aslam son of Muhammad Siddique (given up P.W.) proceeded to Chak No.130/15-L to deliver Eidi to Mst. Nasreen and when at about 3-30 p.m., they reached in the street near her house, they saw Muhammad Aslam appellant causing Toka blows to Mst. Nasreen on the back of her neck, both shoulders, both arms and both hands. They tried to apprehend Muhammad Aslam, who threatened them with dire consequences. Mst. Nasreen fell on the ground. Thereafter, Muhammad Aslam took out a pistol from the right fold of his Shalwar and fired three shots upon her. Due to fear they did not come near to the accused, who fled away from the scene of occurrence, along with the weapons. Mst. Nasreen succumbed to the injuries at the spot.

3. The motive allegedly was that 8/9 months earlier to the occurrence, Mst. Nasreen was abducted by Qaisar Shah and Muhammad Aslam Billu but due to the intervention of the respectables, she came back 1-1/2 months prior to the occurrence. On account of that grudge, Muhammad Aslam committed the murder of the deceased.

4. After registration of the F.I.R., Mazhar Abbas, S.-I./P.W.10, on 18-2-1996, went to the spot, prepared injury statement Exh.PB and inquest report Exh.PC of Mst. Nasreen and sent the dead body of the deceased for post-mortem examination. He took into possession blood-stained earth from the spot thorough memo. Exh. PH, attested by Azhar Hussain P.W.6 and one Muhammad Aslam (given up P.W.). He also took into possession three empty bullets P-7/1 to 3 from the spot through memo. Exh.PG, attested by the same witnesses. After post-mortem examination, he took into possession the last-worn blood-stained clothes of the deceased, i.e. Qameez P-1, Shalwar P.2, brassiere P.3, watch P.4 and Chadar P.5, vide memo. Exh.PD, attested by Muhammad Younus Constable P.W.3, Muhammad Saleem P.W.7 and one Muhammad Ashraf (given up P.W.). On 24-2-1996, Muhammad Aslam, accused/ appellant, was arrested and on 1-3-1996, he, while in custody, led to the recovery of Toka p.9 from a residential room of his house, which was taken into possession vide memo. Exh.PJ, attested by Ghulam Abbas P.W.8 and one Tariq Nawaz, who was not produced before the trial Court. On the same date, time and place, the appellant, while in custody, led to the recovery of .22 bore pistol P-8, which was taken into possession vide memo. Exh.PK, attested by the same witnesses. Site-plan of the place of recovery of Toka (Exh.PM) was also prepared by the I.O. After completion of investigation, the appellant was challaned to face the trial.

5. In support of its case, prosecution examined ten witnesses. Muhammad Abdullah, complainant/father of the deceased, and Azhar Hussain, son-in-law of the complainant, appeared as P.Ws.5 and 6 furnished the ocular account. They also stated about the motive behind the occurrence. Their statements are in line with the story given in the F.I.R. In addition to that, P. W.6 also stated about the recoveries effected from the spot. Dr. Sohail Aslam P.W. stated about the post-mortem examination conducted on the body of the deceased on 19-2-1996. He observed sixteen injuries on the person of the deceased. Thirteen of the injuries had been caused by sharp edged weapon, while injuries Nos.14, 15 and 16 had been caused by fire-arm. Corresponding holes were present on the Qameez and Chadar worn by the deceased. According to his opinion, the cause of death was haemorrhage and shock due to injuries Nos.1 to 13, which cut the neck region, vital vessels and trachea and Injuries Nos.14 to 16, which were caused by fire-arm weapon, and had punctured the liver, lung and heart of the deceased. He opined that Injuries Nos.5, 14 and 16 were individually fatal. According to the doctor, Mst. Nasreen lost her life immediately after receipt of injuries and her post-mortem was conducted within 17 to 20 hours. Ghulam Abbas P.W.8 stated about the recoveries of weapons effected at the instance of the appellant. Mazhar Abbas, S.I./P.W.10, stated about the registration of the case as well as investigation. The rest of the witnesses are formal in nature and need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., the appellant took specific plea of grave and sudden provocation, which is being reproduced for easy reference: "The case against myself is false and concocted, as a matter of fact I was living jointly in house of my real brother Haji Zahoor. On the day of occurrence and at the time of occurrence I suddenly came to my house for some work. I saw Mst. Nasreen alias Nasira my Bhabi in the comprising position with some unknown person. The said unknown person, on seeing me, fled away from the place of occurrence, I all of a sudden due to grave and sudden provocation and due to Ghairat gave Toka blows on the person of Nasreen Akhtar deceased and she died at the spot. I along with my Toka appear before the police of my own on the same day and narrated the whole story to the S.H.O. The witnesses are interested and closely related to the complainant. The police in connivance with the complainant party changed the actual facts and twisted the story on the asking of complainant party dishonestly. The case against me is false and concocted one." The appellant opted not to appear as a witness in his defence under section 340(2), Cr.P.C. However, he produced his brother Haji Zahoor Ahmad, husband of the deceased, in his defence as D.W.I. According to D.W.l, he was absent at the time of occurrence and received information about the murder of his wife at 3-30 p.m. Thereafter, he reached the spot and found his wife's body lying inside the house. He further stated that according to his information, his brother had surrendered at the police station. During cross-examination, he admitted that, as the occurrence had not taken place within his view, he did not know who had murdered his wife. After placing on record certified copy of plaint of suit titled Mst. Nasira Bibi v. Zahoor Ahmad and order passed by the Court as Exhs.DA and DB and order passed in Writ Petition No.5301 of 1995 as Exh.DC, the appellant closed his case.

7. After going through the entire evidence, learned counsel for the appellant has raised the following points: (i) That P.Ws.5 and 6 were chance witnesses; were related to the deceased and were not present at the time of occurrence; (ii) That the plea of grave and sudden provocation taken by the appellant was borne out from the circumstances of the case; (iii) That the recoveries of weapons were fake and planted on the appellant; and (iv) That in any case, it was a case of lesser sentence, as family honour of the appellant was involved.

8. Conversely, the learned counsel appearing on behalf of the State has submitted that it was a daylight occurrence; that ocular account was fully supported by the medical evidence as well as recoveries effected at the instance of the appellant. He has particularly referred to the report of the Forensic Science Laboratory Exh.PR, according to which the empties recovered from the spot tallied with the pistol recovered at the instant of the appellant.

9. We have heard the learned counsel for the parties at length. According to prosecution, the appellant, who is a single accused in this case, within the view of the witnesses at 3-30 p.m. on the fateful day, caused the death of Mst. Nasreen daughter of the complainant by inflicting multiple injuries on her person with Toka and by repeatedly firing at her when the deceased fell on the ground, while according to the appellant, on the fateful day, he went to his house in pursuit of some errand and saw Mst. Nasreen alias Nasira (deceased), wife of his brother, in compromising position with some unknown person, who fled away after arrival of the appellant. Thereafter, in grave and sudden provocation, he caused the death of Mst. Nasreen by giving her Toka blows. Both the versions are to be put in juxta-position, in order to find out which of the versions is true or nearer to the A truth. The prosecution case is supported by the testimony of P.Ws.5 and

6. P.W.5 is father of the deceased, while P.W.6 is son-in-law of the complainant. Granted that both of them were related to the deceased but this simple fact would not be enough to term them as interested witnesses, specially when they had no previous enmity A whatsoever with the appellant. The presence of the P.Ws. at the time of occurrence is plausible, as, according to P.Ws., they had gone to the hosue of the deceased to deliver her Eidi (Eid gift) and the occurrence took place on 28th of Ramzan. Both the witnesses have given straightforward account of the occurrence and have not tried to implicate any other person as accused in the case. They could easily do that, as during occurrence two kinds of weapons were used. The argument advanced by the learned counsel for the appellant that the witnesses, who were at a distance of 2/3 Killas from the spot, could not see the occurrence, has no substance, as there is nothing on record that there was. any obstacle between the place of occurrence and the witnesses. The statements of P.Ws. are fully supported by the medical evidence as well as by the fact that matter was reported to the police at police station within half an hour of the occurrence. In addition to that, the prosecution evidence is also corroborated by the recovery of blood-stained Toka, B which was found to be stained with human blood as per report of the Serologist Exh.PP, and the recovery of pistol, as, according to the report of Forensic Science Laboratory Exh.PR, the empties recovered from the spot tallied with the weapon recovered at the instance of the appellant.

10. Now coming to the plea taken by the appellant. It has been noticed by us that dead body, according to both the site plans, was lying in a street and the blood-stained earth was collected from there. There was no trail of blood between the house of the deceased and the place where the dead body was lying. The plea is also knocked out by the fact that according to the doctor, the dead body was clad in blood-stained Shalwar, Qameez, Brassiere and Chadar. Furthermore, corresponding holes of the injuries were present on Qameez and Chadar worn by the deceased. The fact that the deceased at the time of occurrence was fully clad in clothes is also borne out from the perusal of Column No.7 of the inquest report Exh.PC and memo. Exh, PD, whereby blood-stained shirt, Shalwar, Chadar and Brassiere along with watch were handed over to the S.H.O. after the post-mortem examination. In the circumstances, it cannot be said by any stretch of imagination that the deceased was seen in compromising position with a stranger by the appellant. In support of his plea, the appellant did not dare to appear as witness and expose himself to the cross-examination. As far as statement of D.W.1 is concerned, it is of no consequence vis-a-vis the plea taken by the appellant.

11. The upshot of the whole discussion is that in our opinion, the prosecution has proved its case against the appellant beyond doubt and we reject the plea taken by the appellant. Having come to that conclusion, we have given our considered and anxious thoughts to the quantum of sentence. In the circumstances of the case, we do not-agree with the learned counsel for the appellant that it was a case of family honour, as, according to Haji Zahoor Ahamd/D.W.1, who is brother of the appellant, he along with his wife was living happily. It is also noteworthy that according to Exh.DA, Mst. Nasira Bibi (deceased) had filed a suit seeking dissolution of marriage against her husband, Zahoor Ahmad, on 24-5-1995. However, the same was withdrawn on 18-7-1995. It clearly means that Zahoor Ahmad wanted to live with his deceased wife irrespective of her character. The appellant has acted in a very brutal and callous manner by taking the life of a twenty six years young lady. No mitigating circumstances exist in his favour. This appeal is dismissed. The death sentence is confirmed. Murder Reference is answered in the affirmative. N.H.Q./M-84/L Appeal dismissed.