1996 P Cr (PLP)

(3) Excavated wound back of left wrist 5 x 5 c.m. with under lying fracture of left ulna lower end. In the opinion of the doctor the death had occurred by gun shot projectile perforating the spleen, liver and stomach. Death had occurred within a few minutes after receipt of injury under normal course of nature. Probable time between injuries and death was within two minutes and between death and post- mortem it was 16 to 18 hours. On the same day at about 8 a.m. the same doctor did autopsy on the dead body of Ahmad Pervaiz and found the following injuries on his person:-- (1) Seven fire-arm wounds of entry on the front of left shoulder each measuring 1 x 1 c.m. (2) One fire-arm wound of entry 2 x 2 c.m. front of left shoulder. (3) One fire-arm wound of entry on the front of left chest, below left nipple. (4) Excavated fire-arm wound on the front of right arm lower part. In the opinion of the doctor the death had occurred by gun shot projectile which perforated the left lung, and the death had occurred within a few minutes. The time between the death and injuries was a few minutes and between death and post-mortem it was 16 to 18 hours.

6. During the trial the appellant pleaded not guilty to the charge and claimed the trial.

7. In order to substantiate its case the prosecution examined 9 witnesses in all including Abdul Aziz (P.W.6), and Mst. Safia Bibi (P.W.7) as the eye-witnesses. Dr. Tahir Saleem, M.O. A.B.S. Hospital Gujrat, did post- mortem examinations on both the dead bodies. Abdul Ghafoor, S.I./S.H.O. (P.W.8) and Asmat Ullah Khan Niazi, D.S.P. (P.W.9) were examined as the Investigating Officers and the remaining are the formal and recovery witnesses. The learned prosecutor after close of the prosecution evidence tendered in evidence the reports of the Chemical Examiner Exh.P.V., reports of the Technical Service Exhs.P.X. and P.Y. and report of the Serologist Exh.P.Z. to prove the origin of the blood and also that the gun recovered from the appellant was used in crime.

8. When the appellant was confronted with the prosecution evidence in his examination under section 342, Cr.P.C. he took up the plea that he had committed the murder of his sister Mst. Shabana Kausar and Ahmad Pervaiz because he had found them in a compromising position in his own house and it happened under grave and sudden provocation. He explained that he fired at his sister Mst. Shabana Kausar in his own house whereas Ahmad Pervaiz became successful to escape to whom he followed and when he was entering into the house of his uncle, he also fired at him as he had lost his self-control because of the nefarious act of both the deceased. He further explained that on the day of occurrence he and his friends, who used to remain with him as his bodyguard, were present at some distance from his house where from they saw that Ahmad Pervaiz had entered into his house in the absence of his parents. He suspected foul play and while loosing his self-control, he took the gun from his friend and went to his house. After opening the door he found that Ahmad Pervaiz and his sister Mst. Shabana Kausar were in an objectionable position which made him mad and he fired at the deceased persons, as mentioned above. However, he did not opt to appear as his own witness as required under section 340(2), Cr.P.C. and nor he produced any defence evidence.

9. It was contended by the learned counsel for the appellant that admittedly there are two different versions on record as regards the manner in which the alleged crime was committed. The appellant in his statement under section 342, Cr.P.C. has admitted the occurrence but in a manner different from what was stated by the prosecution. It was argued that there is nothing to show that the plea taken by the appellant is not reasonably possible in the given circumstances of this case, and when the prosecution evidence is read as a whole, it is proved that the appellant had acted under grave and sudden provocation but the learned trial Judge miserably failed to appreciate the case in its true perspective. It was further argued that the plea taken up by the appellant is more plausible natural and reasonable so it ought to have been accepted in view of the principle enunciated by the Supreme Court pertaining to safe dispensation of justice in a criminal case. Lastly it was argued that in view of the admitted facts on record the offence against the appellant does not fall under the purview of section 302, P.P.C. but is covered by subsection (1) of section 300, P.P.C. and falls within the ambit of section 304, P.P.C. being one of grave and sudden provocation and in view of this matter the sentence is too severe and harsh.

10. Learned counsel appearing on behalf of the State, however, conceded that from the facts and circumstances of the case the plea of the appellant is more natural and probable which should have been accepted as a whole and the appellant should have been convicted under Part I of section 304, P.P.C.

11. I have given my earnest thoughts to the arguments advanced by both the sides and have also gone through the prosecution evidence with the able assistance of the learned counsel for the appellant. Whenever the plea of self defence or that of grave and sudden provocation is advanced, the material question worth consideration is always that has the plea of accused been established by any evidence and circumstances on record or to the minimum extent is there any reasonable possibility of the existence of the plea of the accused so that the prosecution case could be doubted.

12. The learned Sessions Judge discounted the defence version and held the appellant guilty of murder. While taking up the prosecution case, he gave a finding that in view of the statements of the P.Ws. both the parties prior to the occurrence were not only on visiting terms but both were related inter se and in view of the parties being related, one could say that no foul play could be expected from Abdul Aziz (P.W.6) or from Mst. Safia Bibi (P.W.7). It being a case of single accused and there being no enmity between the parties and the occurrence having taken place on broad daylight so the prosecution case was proved to its hilt and the defence was that the appellant saw both the deceased in a compromising position and then committed their murder and both the eye witnesses gave a changed version, was not found on good reasons. He further found that if for the sake of argument it is believed that Ahmad Pervaiz had developed illicit relations with Mst. Shabana Kausar, then there is no proof of their being in a compromising position at the time of occurrence as no eye witness to this effect has been produced by the appellant except his own statement recorded under section 342, Cr.P.C. He has accepted the presence of Abdul Aziz (P.W.6) and Mst. Safia Bibi (P.W.7) in their houses or outside in the village as natural and also accepted their version that from the point they were standing they could see the appellant while firing at the deceased. The learned Sessions Judge also found that the prosecution had proved its case beyond any reasonable doubt and he did not accept the defence version on the ground that in the light of the site plan Exh.P.D., the room where Mst. Shabana Kausar was murdered had only one door towards Verandah of the house and another door towards another room situated above the room where Mst. Shabana Kausar was done to death. Had Ahmad Pervaiz been present in the Loom then there was no question that he could escape himself from the appellant, there being only one door which opens towards the Verandah. The learned Sessions Judge was of the view that the situation and circumstances shown in the above site plan force to believe that had Ahmed Pervaiz deceased been present in the house of the appellant, he was not in a position to slip away from the spot; so no one can agree that there might be illicit relations in between Mst. Shabana Kausar and Ahmed Pervaiz on the basis of the love letter P.9 as there is no direct evidence which could show that Mst. Shabana Kausar and Ahmed Pervaiz were found in compromising position by the appellant.

13. On the other hand while examining the statement of the appellant I have reached to the conclusion that that is more plausible, natural and is worth to be relied upon, for that I get support from the fact that the case of the prosecution is that the deceased was studying the book at the time of occurrence but that version appears to be artificial because if the deceased was studying the book then there must have been signs of pellets on the book which was in the hands of the deceased and also there must have been some signs of blood on the same but its examination revealed that it was so clean as if it was never in the hands of the deceased. I am of the view that the aim of introducing this book was that the deceased had not gone towards the house of the appellant and nor he had passed near his house but he was studying in the Baithak of his uncle Abdul Aziz P.W.6. This story of the prosecution cannot be believed because if the deceased had to study his book, he could study the same in his own house. Moreover, it appears from the statement of Abdul Aziz P.W.6 that the deceased had come from Rawalpindi to his village to perform Eid-ul-Azha, which was celebrated a day or two before the present occurrence. It cannot be expected that a student who came from Rawalpindi to his village for celebrating Eid, he would remain busy for studying his books.

14. Another important aspect is that Mst. Safia Bibi P.W.7 states that there was an interval of only two minutes in the noise of the first fire shot heard by her and the fire shots relating to the murder of Ahmad Pervaiz. If this portion of the statement of Mst. Safia Bibi P.W.7 is believed then certainly it would come out that just at the time of occurrence Ahmad Pervaiz deceased either came out of the house of the appellant or he just passed near to his house. Even no shoes of the deceased was found in the Baithak at the time of arrival of the appellant because there is no mention of shoes in the inquest report nor there is any mention of the book, as mentioned in the inquest report despite the fact that it was stated by Abdul Aziz P.W.6 that the deceased was wearing Hawai Chappal at that time. The absence of Hawai Chappal forced to believe that the deceased had come in the Baithak while running from any side. Another fact that highlighted by learned counsel for the appellant which makes the version of the prosecution as doubtful and that of the defence as more plausible is the medical evidence with regard to Mst. Shabana Kausar deceased. According to the Medical Officer (P.W.1) he had taken the vaginal-swabs of the deceased which were sent to the office of the Chemical Examiner and those had been found as stained with semen, as per report Exh.P.C., which speaks nothing but supports the defence plea that she had an illicit intercourse with Ahmad Pervaiz deceased immediately before her death. Love letter P.9 found by the doctor at the time of post-mortem examination of Mst. Shabana Kausar written by her to Ahmad Pervaiz which fact also supports the chain of the defence plea and the prosecution has not been able to negate this. I also find that both the Investigating Officers P.W.8 and P.W.9 have deposed that the investigations conducted by them revealed that both the murders were result of the illicit relations of both the deceased inter se and this motive was not disputed by any villagers throughout the investigation and the appellant after his arrest came up with the plea of grave and sudden provocation while disclosing that on the day of occurrence he had found both the deceased in a compromising position. Abdul Ghafoor P.W.8 further states that the plea of the appellant was even corroborated by Mst. Bibi and Khalid Pervaiz through their statements and during the whole investigation their version could not be countered by any one.

15. In my view the above facts are sufficient to hold that the appellant had found his sister and Ahmad Pervaiz in a compromising position. Learned counsel appearing on behalf of the State frankly conceded that he could not support the conclusion of the learned Sessions fudge in so far as he discounted the plea of grave and sudden provocation and convicted the appellant under section 302, P.P.C.

16. This brings me to the question as to what should be the appropriate sentence to meet the ends of justice in this case. On the one hand, I am quite cognizant of the fact that both the deceased were brutally done to death by the appellant. On the other hand, I cannot be oblivious to the fact that the deceased were caught while engaged in an act which was revolting to all sense of decency and morality, known to the society particularly the Muslim society. In the instant case it is true that there is no evidence that the deceased were engaged in the sexual intercourse when the appellant surprised them, but as discussed above, I have disbelieved the prosecution version so under the law the statement of the accused has to be accepted in its entirety. The act in which the deceased were engaged was not less obnoxious to and in principle it should not make any difference whether the victim of the crime were engaged in love making preparatory to fornication or in the actual act of fornication.

17. For the foregoing reasons, I partly accept the appeal and alter the conviction of the appellant from one under section 302, P.P.C. to that of Part III of section 304, P.P.C. and sentence him to five years' R.I. N.H.Q./M-2029/L Order accordingly.