2002 PLP 671 (YLR)

4. During the trial, prosecution produced nine witnesses in order to prove the charge against the appellant. Dr. Mussarat Latif, Medical Officer/P.W.1 conducted the post‑mortem examination on the dead body of Mst. Musarrat Bibi deceased and observed following injuries on her person:‑‑ "An incised wound situated in front on the neck above the thyroid cartilage 5 c.m. below the chin. It was 10 c.m. below to the lobe right ear and left and was 5 below the left ear lobe. The skin, face, muscles, major neck and laryn were cut." In the opinion of Doctor, death in this case was caused due to haemorrhage and shock and this injury was sufficient to cause death in the ordinary course of nature. Basharat Ali, F.C./P.W.2, took the parcels of blood‑stained knife and earth to the office of Chemical Examiner and deposited the same intact. Bashir Masih P.W.3, was present at the spot when the Investigating Officer took into possession blood‑stained earth vide recovery memo. Exh.P.D. Pervez Iqbal F.C/P.W.4, took the dead body of Mussrat Bibi to the mortuary for post‑mortem examination and after the same produced last worn clothes of the deceased before the Investigating Officer, which were taken into possession vide recovery memo. Exh.P.E. Wazarat Ali, S.I/P.W.5, entered formal F.I.R. Exh.P.F/1 at the police station on the basis of complaint, Exh.P.F. Gulzar‑Ahmad, F.C/P.W.6, witnessed the recovery of blood stained Chhuri, P.5, at the instance of the appellant. This witness also signed the recovery memo. Exh.P.G. Aurangzeb, draftsman/P.W.7, prepared scaled site‑plan, Exh. P. H and Exh. P. H/1 of the place of occurrence, Samuel Masih, P.W.8, and Shaukat Masih, P.W.9, were the eye witnesses of this occurrence who had narrated the circumstances under which the appellants committed the murder of his wife Mst. Mussarat Bibi and had supported the prosecution in verbatim. Abdul Rehman, S.I/P.W.10, conducted the formal investigation of this case. Najam‑ul‑Hassan, F.C./P.W.11 kept fine parcels case property in Maalkhana for safe custody and later on delivered the same to the constables for onward transmission to the respective offices.

5. Learned A. D. A. tendered in evidence report of Chemical Examiner, Exh.P.K, and closed the case of the prosecution.

6. After recording entire prosecution evidence, learned trial Court examined the appellant under section 342, Cr.P.C. The appellant while answering to the question "as to why this case against you and why P.Ws. have deposed against you" replied as under: "The case is false, concocted. The P.Ws. deposed falsely being relative/related to the deceased. The actual facts are that Maryam Bibi was a lady of bad character and she had illicit relations with many persons who used to visit her off and on in my absence. Prior to the occurrence, I had left my house and was residing at Jandanwala. About the character of deceased, I also complained to her brothers. Abida wife of Gulla is Nurse and of bad character lady having illicit relations with many immoral persons and she used my wife to complete her bad acts. I forbade my wife many times but she did not turn. On the day of occurrence at about 7 p. m., I came to my house. I suspected some persons present in my house. I did not knock door of my house. My children were not present at the time of occurrence. I scaled over the wall and entered my house and saw the door slightly opened. I saw in one room of my house an unknown person and my wife Maryam Bibi lying together on a cot in an objectionable condition upon which I lost my self control and suddenly provoked. I picked knife lying on the cot and gave blows with knife on the neck of deceased. The unknown person fled away. I myself appeared before the police on the very first day. The occurrence was not witnessed by P.Ws. They prevailed upon the police and made concocted and false story and falsely implicated me in this case." The appellant made no statement under section 340(2), Cr.P.C., however, produced Mst. Riffat Bibi, D.W.1, and Haroon, D.W.2 (daughter and son of the deceased respectively). The crux of the evidence of both the defence witnesses is that the prosecution witnesses who had deposed before the trial Court were not present at the time .of occurrence and both of them being major legal heirs of the deceased had forgiven the appellant (their father) in the name of Almighty Allah and also have waived their right of Qisas and Diyat.

7. Learned trial Court while keeping in view the compromise effected between the appellant and two major legal heirs of the deceased convicted and sentenced the appellant under section 308(2), P.P.C. as narrated in the earlier part of this judgment.

8. Learned counsel for the appellant at the very outset did not challenge the conviction of the appellant and had prayed for some leniency in the quantum of sentence on humanitarian ground. Conversely, learned counsel for the State half‑heartedly opposed the submissions made by the learned counsel for the appellant.

9. Heard. Record perused.

10. Not only, that the appellant has admitted his participation in this occurrence while making statement under section 342, Cr.P.C. before the trial Court, the ease of the prosecution also stands established from the statements of both the eye‑witnesses namely Samuel Masih P.W.8, and Shaukat Masih, P.W.9. The presence of both the eye witnesses in the house of the deceased being', her close relative is very natural. During cross‑examination, defence has failed to shatter the credibility of these witnesses. Similarly, there is nothing on record to show that any of them had any motive to falsely implicate the appellant in this case. The medical evidence and the recovery of blood stained Chhuri, P. W .5, at the instance of the appellant support the prosecution case. The nature, location and duration of injury as narrated by the eye‑witnesses stands affirmed by the Medical Reports. The statement of both the eye‑witnesses, inspire confidence, rings true and the same can be relied upon safely to uphold the conviction of the appellant in the circumstances of his case.

11. As far as the quantum of sentence awarded to the appellant is concerned, it is established from the statement of Samuel Masih, P.W.8, that the appellant has five children. Two of them are major whereas rest are minors. The elder daughter namely Ms. Riffat is a married woman and there is nobody else to look after the younger children of the appellant. In this view of the matter, a lenient view about the quantum of sentence is called for. Accordingly, while dismissing this appeal and maintaining the conviction of the appellants, his sentence of imprisonment is reduced to the period of ten years' rigorous imprisonment, however, the appellant shall pay Diyat amount on the same terms and conditions as fixed by the trial Court as well as get the benefit of section 382‑B, Cr.P.C. with this modification, instant criminal appeal stands disposed of. T.A.F./A‑573/L Order accordingly.