2006 SC MR 1329 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.

Muhammad Hussain son of Siraj Din of Hamid Shah Colony, Depalpur, with reference to F.I.R. No.329 dated 20-7-1995 of Police Station Hujra Shah Maqeem, was tried by Additional Sessions Judge, Okara Camp Depalpur under section 302, P.P.C. for the murder of Mst. Zubaida Bibi and Mst. Khurshid Bibi and also, under section 324, P.P.C. for effective attempt at the lives of Mst. Kausar Parveen (his wife) and Muhammad Ali.

2. At the close of trial he got convicted under section 302(b), P.P.C. on two counts and sentenced to death with compensation of Rs.25,000 under section 544-A, Cr.P.C. on each count; under section 324, P.P.C. he was sentenced to , five years rigorous imprisonment with a fine of Rs.10,000 and a compensation of Rs.5,000 to the victim, Mst Kausar Parveen; under section- 337-F(i), P.P.C., sentenced to Daman of Rs.5,000 and imprisonment for six months as Tazir. Daman was to be paid to the injured, Muhammad Ali. Through this jail petition, Muhammad Hussain, convict seeks leave to appeal.

3. The petition, is time-barred by eighty-eight days. The reasons for condonation do not appear to be either true or plausible. The application also does not furnish any explanation for the delay of each and everyday. It is not a fit case where condonation be allowed in routine.

4. Merits of the case require a glance into the background under which the occurrence took place. Muhammad. Hussain and Mst. Kausar Parveen were married to each other for about five years prior to the occurrence. A few days before the occurrence, they had quarreled and the husband belaboured Mst. Kausar Parveen, whereupon, Hafiz Sultan Ahmad, the father of the lady brought her to his house.

5. On 20-7-1995, Mst. Kausar Parveen had gone to pay a visit to the house of Mst. Zubaida Bibi, her maternal-aunt. After performing Asr prayer, Hafiz Sultan Ahmad also joined them. Muhammad Hussain, convict while armed with a .30 bore pistol entered the house calling upon Mst. Kausar Parveen as to why she had left without his permission and that he would not spare her. Simultaneous therewith, he opened fire at Mst. Kausar Parveen, which landed at the abdominal area. Out of fear, she rushed inside when Muhammad Hussain fired a second shot hitting the lady on the back of shoulder. Mst. Zubaida Bibi intervened to save Mst. Kausar Parveen but Muhammad Hussain tired consecutive shots at her. Mst. Zubaida Bibi died on the spot. The inmates raised hue and cry attracting Muhammad Din to the spot who also witnessed the occurrence. Leaving Muhammad Ishaque to take care of the dead body, Hafiz Sultan Ahmad along with Muhammad Din immediately chased accused Muhammad Hussain who, in turn, straight entered the house of Hafiz Sultan Ahmad. He also opened fire at Mst. Khurshid Bibi, the mother of Mst. Kausar Parveen, who was busy cooking. Having received injuries on different parts of the body, Mst. Khurshid Bibi also died on the spot. The hue and cry attracted Muhammad All also and all the three tried to apprehend the accused but he opened fire at Muhammad Ali as well hitting him on his left thigh. The complainant party retracted due to fear and so the accused found a chance to decamp. The aforesaid narration was made by Hafiz Sultan Ahmad in his report lodged at 6-30 p.m.

6. The relationship between the parties has already become clear. It may be added that Mst. Zubaida Bibi deceased, besides being the maternal-aunt of Mst. Kausar Parveen also happened to be the wife of Muhammad Ishaque who is the real brother of the complainant, Hafiz Sultan Ahmad. Their houses are near to each other in the same vicinity. Complainant, Hafiz Sultan Ahmad, Mst. Kausar Parveen, Muhammad All and Muhammad Ishaque were examined as P.W.2, P.W.3, P.W.4 and P.W.5 respectively as eye-witnesses. In view of the relationship that they maintained and in view of the two places of occurrence, they happened to be the most natural witnesses. Out of them Mst. Kausar Parveen and Muhammad All are seriously injured bearing the marks of occurrence on their person. Their consistent deposition could not be shattered at all by the defence in the cross-examination.

7. Though, in the absence of any previous enmity, no corroboration is required yet the testimony of as many as four eye-witnesses is fully supported by the medico-legal report of Mst. Kausar Parveen and Muhammad Ali and the post-mortem reports of Mst. Zubaida Bibi and Mst. Khurshid Bibi. The blood was recovered from? their respective places. The accused remained absconder for nine days and during investigation he led to the recovery of crime pistol Exh.P.9 that matched with the empties of .30 bore recovered from the spot. The report of Forensic Science Laboratory to that effect is at page 144.

8. The aforesaid is narrated only to emphasize that the prosecution has proved its case against the convict beyond any shadow of reasonable doubt, notwithstanding the fact that the occurrence has been admitted by accused in his statement under section 342, Cr.P.C., the relevant portion whereof runs as under: "I am innocent. The prosecution has suppressed the true facts. The real facts are that Mst. Kausar Parveen P.W. had developed illicit connection with her cousin Muhammad Ali P.W. On account of this illicit intimacy she used to leave my house. Mst. Kausar Parveen P.W. wanted to get divorce from me but I was not willing to do so. In pursuance of the said illicit intimacy with Muhammad Ali P.W. she had filed a suit for dissolution of marriage against me but it was withdrawn on account of the pressure of the Punchayat, which was initiated at my instance. On the day of occurrence, Mst. Kausar Parveen P.W. left my house without my permission in order to meet her paramour Muhammad Ali. I went in search of her and reached the house or Mst. Zubaida Bibi. I saw Kausar Parveen and Muhammad Ali present inside a room in objectionable condition while they were kissing and embracing each other. Out of sudden and grave provocation as I had lost self-control I fired at Mst. Kausar Parveen and Muhammad Ali. In the meantime, Zubaida Bibi entered the house from outside on hearing the alarm and accidentally she sustained fire-arm injuries. Mst. Kausar Parveen also received fire-arm injuries. In order to save life Muhammad Ali P.W. went out of the house and chased him. Muhammad Ali entered the house of Hafiz Sultan Ahmad P.W. where my mother-in-law was present. I fired at Muhammad Ali out of sudden and grave provocation, which had been caused due to the indecent act of Mst. Kausar Parveen and Muhammad Ali P.W. and in that firing Muhammad All was injured and Mst. Khurshid Bibi also sustained fire-arm injuries accidentally. I had no intention to injure Mst. Zubaida Bibi and Khurshid Bibi or to cause their death. I had admonished Kausar Parveen after seeing her in objectionable condition with Muhammad Ali but she had replied shamelessly threatening me to carry on illicit relations with Muhammad Ali. After the occurrence I went to the police station and informed about the occurrence but the police did not record the report on my version. I had also taken the plea of grave and sudden provocation before the police as my first plea during the investigation. After the registration of this case Kausar Parveen P.W. against filed a suit for dissolution of marriage against me which was decreed in her favour because I did not want to keep as a wife such a corrupt and shameless lady. Thereafter, the whole investigation was conducted in a false and fabricated manner and the same was not conducted at the spot by the Investigating Officer himself but the same was carried out by some of his subordinate whose name he could to disclose even at the trial. All the documents of this Court prepared during the investigation of this case was not the handwriting of the Investigating Officer but was simply signed by the Investigating Officer at the police station. The whole investigation is one sided and the story was fabricated by the police in connivance with the complainant in order to falsely involve me in this false case by giving a touch of Qatl-e-Amd."

9. Reiterating the same plea, Muhammad Hussain, convict also appeared as his own witness under section 340(2), Cr.P.C. but declined to produce defence evidence. This brings us to a juncture where the occurrence is admitted but the version is changed. As a matter of abundant caution, it is to be sifted as to which version is plausible and inferable from the prosecution evidence and whether any plea favourable to the accused is available to him even if not pleaded specifically notwithstanding the fact that, in the instant case, the accused has come out with a specific plea giving a parallel story.

10. In the version of the accused, it is admitted that Mst. Kausar Parveen had left the house without his permission. That is what is mentioned in the F.I.R. that the accused asked Mst. Kausar Parveen as to why she had left the house without hip permission. The killing of two ladies and injuring Mst. Kausar Parveen and Muhammad Ali is also admitted by the accused in his statement. With regard to the veracity of the plea taken, it does not appeal to reason that, within the view of the accused, Mst. Kausar Parveen and Muhammad Ali would be kissing and embracing each other in the house of her own maternal-aunt who happened to be her uncle's wife as well. One fails to comprehend as to how the real culprits were left alive by the angry assailant while two innocent ladies were killed.

11. We have gone through the evidence, wherefrom the plea of accused is not inferable While appearing as witness under section 340(2), Cr.P.C., he admitted in the cross-examination that after about two years of his marriage, he had come to know that Mst. Kausar Parveen had developed illicit relations with Muhammad Ali. It is amazing that he tolerated such known illicit relations for more or less three years. It does not appeal to logic and reason. Had it been true, he would have either divorced his wife or have killed her along with paramour long ago. It is again amazing that despite knowledge of illicit relations, he contested her suit for dissolution of marriage and persuaded her allegedly through Punchayat to withdraw. The evidence of the prosecution juxtaposed to two statements of the accused indicate nothing but an effort of the accused to achieve some concession in the sentence, knowing very well that the prosecution case is proved otherwise. The parallel version, is introduced for the above object only. It is not sufficient and forceful enough to dislodge the unimpeached version of the eye-witnesses, especially the injured one whose injuries are admitted to have been caused by the accused.

12. The parallel story advanced by the accused being implausible, we are 'of the considered view that it cannot be brought under consideration for mitigation of sentence in a case where two murders have been committed in addition to effective attempt at the lives of two others. The petitioner had acted in a highly desperate manner justifying no leniency. There being no merit in the petition, it is hereby dismissed and leave to appeal refused. M.B.A./M-104/SC????????????????????????????????????????????????????????????????????????????? Petition dismissed.