1984 P Cr (PLP)

ABDUL WAHEED, J.

Munir Ahmad son of Shauq Muhammad, aged 50 years and his consanguine brother, namely, Barkat Naveed, aged 30 years and consanguine sister, Mst. Musarrat Ruhi, aged 32 years, were tried for the murder of Muhammad Boota alias Qamar-uz-Zaman, aged 24/25 years. While Munir Ahmad was charged under section 302, P. P. C., the other two were charged under sections 302/109, P.P.C. The learned Session Judge, Sialkot, vide his judgment, dated 17th of July, 1980, while acquitting Barkat Naveed and Mst. Musarrat Ruhi on benefit of doubt convicted Munir Ahmad under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs. 10,000 or in default to suffer R.I. for six months. It was directed that the fine, if realized, be paid to Mst. Inayat Bibi, mother of the deceased as compensation under section 544-A, Cr.P.C. Munir Ahmad has filed an appeal against his conviction and sentence. The learned trial court also has submitted a reference under section 374, Cr. P. C. for confirmation of the sentence of death. Mst. Inayat Bibi, mother of the deceased, has filed a petition for Special Leave to Appeal against the acquittal of Barkat. Naveed and Mst. Musarrat Ruhi. This judgment shall dispose of all the three matters.

2. The occurrence took place on 21st of July, 1978, at 3.00 p.m. at the Wagon Stand, Koth Loharan, about five miles away from Police Station Head Marala, District Sialkot. It was reported vide statement Exh. P. E. by Abdur Razzaq P.W. 21 who is not related to either of the parties but was running a beef shop at the place of occurrence, to A. S. I. Manzoor Hussain P.W. 29 on the same date at 3.45 p.m. at Chowk Koth Loharan, where he was present on patrol duty. On the basis of the statement Exh. P.E. a case under section 302, P. P. C. was registered at Police Station Head Marala on the same date at 4. 15 p. m. vide a formal F. I. R. Ex. P.E./1 recorded by M. H. C. Muhammad Ibrahim P. W. 5.

3. The prosecution case as set up in the F. I. R. was that on 21st of July, 1978, at 3.00 p.m. Abdur Razzaq P.W. 21 was present at his beef shop situated at the Wagon Stand, Kotli Loharan. Muhammad Siddique P.W. 18 and Manzoor Ahmad P.W. 19 were also present there. The appellant who was a resident of Zafarwal and in the days of occurrence was residing at Kotli Loharan with his consanguine sister, namely, Mst. Musarrat Ruhi, a lady health visitor and the acquitted co-accused, came there carrying a bag in his hand. A wagon was standing in front of the shop of Abdur Razzaq P.W.

21. The deceased was sitting in the wagon. The appellant also entered the wagon, dragged the deceased out of the wagon from his hair and gave a blow on his head with a toka as a result of which the deceased fell down and started bleeding from his head. The appellant inflicted on the deceased more injuries with successive blows with his toka. The appellant also chopped off the right hand of the deceased saying that he had been touching his sister with it. The deceased succumb ed to the injuries at the spot. The appellant waving his toka declared that he had killed a pig and if anybody came near, he would meet the same fate. The occurrence was seen by Muhammad Siddique P.W. 18, Manzoor Ahmad P.W. 19, Muhammad Suleman P.W. 20 and Abdur Razzaq P. W. 21 besides Muhammad Siddique Butt who was not produced. No body out of fear went near the deceased who decamped with the blood stained toka.

4. The motive for the crime allegedly was that Mst. Musarrat Ruhi, the acquitted co-accused, had secretly contracted a marriage with the deceased about four months prior to the occurrence. However, the relations between the spouses could not remain cordial. The deceased frequently visited Kotli Loharan where Mst. Musarrat Ruhi was posted as a lady health visitor for the revival of the matrimonial relations. However, the marriage was not approved of by the family of Mst. Musarrat Ruhi and she out of fear of her brothers was not responsive. The deceased gave wide publicity to his infatuation for Mst. Musarrat Ruhi even in newspapers. The appellant and Barkat Naveed, his other acquitted co-accused, were feeling incensed against him on this account and, therefore, the appellant killed the deceased with the toka.

5. A. S. I. Manzoor Hussain P.W. 29 investigated the case. After recording the statement Exh. P.E. of Abdur Razzaq P. W. 21 at Chowk Kotli Loharan, he repaired to the spot. On reaching there he prepared injury statement Exh. P.V. and inquest report Exh. P. W. in respect of the dead body and despatched the same to the mortuary for post-mortem exami nation. He collected blood-stained earth from the spot vide memo. Exh. P.H. and sealed it into a parcel. He arrested the appellant on 22nd July, 1978, removed from his person blood-stained clothes viz. shirt Exh. P. 7 and chadar Exh. P. 8 and took them into possession vide memo Exh. P.J. On 24th July, 1978, the appellant while in custody got recovered blood stained toka Exh. P.

17. The A. S. I. took it into possession vide memo. Exh. P.L. and made it into a sealed parcel. The recovery memo. Exh. P.J. was attested by F. C. Jaban Khan P.W. 10. and A. S. I. Manzoor Hussain P.W. 29 besides Malik Muhammad Yousaf (not produced). The recovery memo. Exh. P.L. was attested by Gulab Din P.W. 12 and A. S. I. Manzoor Hussain P.W. 29 besides Malik Muhammad Yousaf (given up).

6. The Chemical Examiner vide his report Exh. P.X. and the Serologist vide his report Exh. P.Y. observed that the blood-stained earth, shirt, chadar and toka recovered in this case were stained with human blood. On the completion of the investigation the appellant was challaned under section 302, P. P. C. for the murder of the deceased.

7. The challan case against the appellant came up for trial in the Court of the learned Sessions Judge, Sialkot, on 24th of February, 1980. On the same date Mst. Inayat Bibi, mother of the deceased, had filed a complaint Exh. P.R. before the Ilaqa Magistrate alleging that the acquitted co-accused had abetted the appellant to commit the murder of the deceas ed. According to her, she had been assured by the police that all the three would be challaned for the murder. The Ilaqa Magistrate sent the complaint on the same date to the learned Sessions Judge who vide his order, dated 24th February, 1980, summoned the acquitted two co-accused also and proceeded with the trial of the appellant and the acquitted two accused in the complaint case, adjourning the proceedings in the challan case sine die.

8. On 22nd of July, 1978, at 12.00 noon Dr. Abdur Rauf Saddal P. W. 1 performed autopsy on the dead body of the deceased and observed the following injuries:- "(1) Incised wound on the top right parietal bone, 16 c.m. x 1 c.m. x fracture of bone, brain matter was coming out of the wound. (2) An incised wound about 2 c.m. in front of injury No. 1, 5 c.m. x 1 c.m. x connected with injury No. 1 and the bone was fractured and brain matter was coming out of the wound. (3) An incised wound bone deep about 7 c.m. above the right ear, 6 c.m. x 1 c.m. brain matter was coming out of the wound. (4) An incised wound about 3 c.m. anterior to injury No. 3, 18 c.m. x 1 c.m. Bone was cut and the brain matter was coming out of the wound. (5) Several incised wounds starting from the top of frontal bone below to the nasal bone, all on the right side 8 c.m. x 1.5 c.m. and 4 c.m. x 1 c.m. Injury above the right eye-brow, brain matter was coming out of the fractured bones with right eye totally destroyed. (6) Five incised wounds starting from the lower range of above injuries to the lower end of right chin, 7 c.m. x 1. 5 c.m. and 3 c.m. x 1 c.m. bone was cut under each injury. (7) Incised wound 4 c.m. x 1 c.m. in between nose and lower lip on left side. (8) An incised wound on the left upper eye-brow which was cut and brain matter was coming out of it, eye was completely damaged, 4.5 c.m. x 1 c.m. x bone cut. (9) An incised wound on the left cheek 3 c.m. x 1 c.m. x bone cut. (10) An incised wound about 1 c.m. below injury No. 9, 2. 5 c.m. x 1 c.m. x bone cut. (11) An incised would on the right forearm on the anterior lateral and middle 3 c.m. x 8 m.m. x 6 mm. (12) An incised wound about 4 c. m. below injury No. 11, 1.5 c.m. x 6m m x 5m m. (13) An incised amputation complete about 1.5 c. m. below the right wrist joint, all structures were cut." In the opinion of the medical officer, the cause of death was severe shock and haemorrhage as a result of injuries Nos. 1 to 6, 8 to 10 and 13 which were grievous and dangerous to life and were sufficient to cause death in the ordinary course of nature. Injuries Nos. 7, 11 and 12 were simple in nature. All the injuries had been caused by sharp-edged weapon. The probable interval between injuries and death was within one to five minutes and between the death and the post-mortem examina tion about 21 hours. Exh. P. A. is the post-mortem examination report and Exh. P. A./ I and Exh. P. A./2 are the diagrams showing the locale of the injuries.

9. The appellant and his acquitted co-accused pleaded not guilty to the charges under section 302, P. P. C. against the appellant and 302/102, P. P. C. against the acquitted co-accused. When examined under section 342, Cr. P. C., the appellant denied that Mst. Musarrat Ruhi had contracted a marriage with the deceased. He denied the other allegations also as well as the recoveries attributed to him. He took up the following plea:- "The deceased after having forged nikahnama form proclaimed Musarrat Ruhi as his wife. He used to publicise the stories of his love and infatuation with her even in Press and frequently shadowed my sister Musarrat Ruhi who neither wanted to marry him nor to keep any connection with him. On the day of occurrence, when I was proceeding to the mosque to offer Jumma prayer, Qamar-uz- Zaman incidentally met me at Wagon Stand, Kotli Loharan. On my sight he called me out and told me that he was going to have all of us arrested. He further told me that he had learnt that Musarrat Ruhi had gone to Sialkot to attend a Departmental meet ing and that he wanted to get her arrested as well. He wanted to take her to his house as wife. He further told me that if Musarrat Ruhi refused, he would kill her as he had already lost everything in her love. He also told me that he would disfigure her face by acid and that he could not live without her. I asked him to refrain from such averments and advised him to give up shadowing Musarrat as he had already brought much disgrace to the whole of our family and tribe and, therefore, he should quietly leave that place. On this, there was an exchange of abuses between us which was over heard by a number of passersby. From this conduct of his, I got so much infuriated that I picked up a toka from the shop of Abdur Razzaq P. W., lost all sense of intellect and under the impulse of grave and sudden provocation and in stage of extreme anger attacked him and caused him numerous injuries. On arrival of the police, I myself appeared. The police had come to the spot on information by some passerby at Head Marala. The toka which has been planted on me was not the weapon used by me but I had used the. Bughda of Abdur Razzaq Qassab. The police deliberated with Manzoor. Siddiq and Suleman P. Ws. and decided that the Bughda of Abdur Razzaq should not be planted on me otherwise Abdur Razzak would be held as accused. In order to save Abdur Razzaq from this situation, he was cited as a false witness, other wise this occurrence happened at such a spur of the moment that none could see it. There was no wagon at the spot. Neither I dragged the deceased down the wagon. My so-called arrest on the second day is also fictitious. I have one real sister and one real brother while I have four consanguine sisters and another brother."

10. The acquitted co-accused also denied the prosecution case against them and adopted the plea as raised by the appellant. Mst. Musarrat Ruhi further pleaded as follows:- "The deceased had allured me to come to Rawalpindi where he had promised to procure an over sea service for me. I paid a few visits to him in this connection. Ultimately he proved to be an imposter and felt infatuated to me and wanted to have me as his wife which I refused. He had publicised his love with me every where including Press. I felt disgusted and refused to see him any more. He fabricated nikahnama Exh. P. B. and falsely claimed myself to be his wife. On the day of occurrence, I had attended a meeting at Sialkot. In the evening I came to know about this occurrence."

11. Neither the appellant nor the acquitted co-accused adduced any evidence in defence.

12. The prosecution case against the appellant rested on the ocular account as furnished by Muhammad Siddique P. W. 18, Manzoor Ahmad P. W. 19, Muhammad Suleman P. W. 20 and Abdur Razzaq P. W.

21. The occurrence took place admittedly at the Wagon Stand, Kotli Loharan. near the shop of Abdur Razzaq P. W.

21. All the eye-witnesses deposed that the deceased had taken a seat in a wagon standing at the wagon Stand when the appellant came there armed with a toka, he pulled the deceased out of the wagon and inflicted on him numerous blows with his toka. He also chopped of the hand of the deceased shouting that the pig was touching the body of his sister with that hand. They were quite disinterested and impartial witnesses. They were not ascribed any animus or malice for deposing falsely against the appellant. Their version falsi fied the plea of the appellant that he and the deceased had exchanged abuses just before the occurrence. The recovery of blood-stained toka Exh P. 17 at the instance of the appellant as supported by Gulab Din Chowkidar P. W. 12 and A. S. I. Manzoor Hussain P. W. 29 and the medical evidence provided by Dr. Abdur Rauf Saddat P. W. 1 amply corroborated the testimony of the eye-witnesses. This evidence proved beyond any shadow of doubt that the offence of the appellant amounted to murder punishable under section 302, P. P. C. The learned counsel for the appellant also has not assailed the conviction of the appellant under section 302, P. P. C. We accordingly maintain the conviction.

13. As regards the sentence, however, it has been argued by they learned counsel for the appellant that the circumstances which precipitated the commission of the crime manifestly justified the imposition of lesser penalty. This argument is not without force. It appears that Mrs. e Musarrat Ruhi, the acquitted co-accused, had contracted marriage with the deceased clandestinely but since the marriage offended against the established norms of our social life, Mst. Musarrat Ruhi either under the influence of her family members or on account of her disillusionment and disenchantment with the deceased resiled and took steps to wriggle out of the bondage. The deceased turned out to be very obstinate and availed of many measures, in Court and outside, to woo and get her back. He went to the extent of publicising in newspapers his infatuation for Mst. Musarrat Ruhi. This obviously brought ignomy to the family of Mst. Musarrat Ruhi. The deceased was approached to refrain from his embarrassing pursuit and when he declined to oblige, the appellant out of sheer exasperation killed him. 1n the circumstances, since the appellant committed the offence on the assumed notion of vindicating the family honour, the extreme penalty of death was not called for. Therefore, we alter the sentence of death to imprisonment for life. The sentence of death is not confirmed. The sentence of fine also is remitted. While computing the period of sentence, the jail authorities shall give the appellant benefit of the provisions of section 382-B, Cr. P. C.

14. With the above reduction in the quantum of sentence, this appeal is dismissed.

15. Mst. Inayat Bibi, mother of the deceased, also filed Criminal P. S. L. A. No. 81/1980 assailing the acquittal of Barkat Naveed and Mst. Musarrat Ruhi. The allegation against them was that they had instigated the appellant to kill the deceased. However, no direct evidence was adduced in support of this allegation. Attempt was made to prove the same by circumstantial evidence. The first such circumstance was a report Exh. P. C. which was lodged by the deceased at Police Post Nasirabad, Police Station Sadar, Rawalpindi Cantt., on 22nd May, 1978, i.e. two months prior to the occurrence alleging that the brother of Mst. Musarrat Ruhi had assaulted him and he apprehended danger to his life from her family members. Second circumstance was that seven or eight days before the occurrence Barkat Naveed had abused Mst. Inayat Bibi, mother of the deceased, asking her to direct the deceased, her son to divorce Mst. Musarrat Ruhi because otherwise he would be killed. Inayat Ullah P. W. 14 and Muhammad Siddique P. W. 16, residents of Zafarwal, were examined to testify to this circumstance. The third circumstance in the chain was the statement of Muhammad Hussain P. W. C 22 that eight or nine days before the occurrence Mst. Musarrat Ruhi asked him to bring the deceased to Kotli Loharan and he did so but when the deceased came to the house of 41st. Musarrat Ruhi, Barkat Naveed. Mst. Musarrat Ruhi and their sisters quarrelled with him. Three or four days afterwards he was again asked by Mst. Musarrat Ruhi to bring the deceased to Kotli Loharan but in view of the previous conduct of her family members he did not do so. All these circumstances were taken into consideration by the learned trial Court and it held for very valid reasons that charge of abetment against Barkat Naveed and Mst. Musarrat Ruhi had not been substantiated. We have heard the learned counsel for Mst. Inayat Bibi. He has not been able to assail any of the reasons which prevailed with the learned trial Court in disbelieving the charge of abetment against Barkat Naveed and Mst. Musarrat Ruhi. We, therefore, concur in the finding of the learned trial Court and finding no force in the Criminal P. S. L. A. No. 81/1980 dismiss the same in limine. M. Z. M. Sentence reduced.