1985 PLP 20 (MLD)

Abdur Rehman son of Khushi Muhammad Mughal and Muhammad Iqbal son of Khushi Muhammad Jat, residents of Gulzar Colony, Satellite, Town, Gujranwala, were tried for the murder of Habibullah and attempt to murder Munazza Firdous and her mother Ghulam Fatima, by 0; Sessions Judge, Gujranwala.

2. The trial Judge, by judgment, dated 27-5-1981, found them guilty under sections 302-, 307 and 324 read with 34, P.P.C. They were sentenced to imprisonment for life for the capital offence. Abdur Rehman was fined Rs.5,000 and Muhammad Iqbal Rs.2,

500. In default of payment of fine they were ordered to undergo R.I. for two years and one year, respectively. Under section 307/34, Abdur Rehman was sentenced, to five years R.I. and a fine of Rs.1,000 or in default six months R.1. Muhammad Iqbal was sentenced to two years R.I. and a fine of Rs.500 or in default three month R.I. under section 324/34, P.P.C. both sentenced to six months R.I. and a fine of Its.200 each, or in default one month R.I. each. All the sentences except for non-payment of fine were to run concurrently. The convicts have appealed to this Court.

3. The occurrence in which Habibullah was done to death and Munazza Firdous and her mother Ghulam Fatima were injured took place on 22-3-1980 at 12-20-30 noon, in the area of Mauza Mahe Chatha which falls within the jurisdiction of Police Station, Wandho.

4. Case against the appellants was registered on the statement of Mst. Munazza Firdous (Exh . P . A .) made by her in Civil Hospital, Gujranwala, where she was lying injured. It was recorded by Zaka Ullah A.S.I. Police Station, Wandho.

5. Mst. Munazza Firdous deposed that 12/13 years prior to the incident she was married to one Bashir Ahmad. She had two children from him. Bashir died some time ago. Six seven months before the occurrence she married to Abdur Rehman. To begin with the spouses got on well with each other. Thereafter, Abdur Rehman who according to Munazza Firdous was of a bad character started quarrelling with her. He even used to usurp her salary. She did not like that and asked Abdur Rehman for divorce. She was told that he would rattier murder her, her mother and children but would not divorce her. .

6. When the occurrence took place Munazza Firdous was residing in Khokharki, Gujranwala. She was posted as teachers in Girls Primary School, Mahe Chatha.

7. On the day of occurrence at about 9 O'clock in the morning, she alongwith her mother Ghulam Fatima left their house in Khokharki. They were on their way to Mahe Chatha where Munazza was to hold examination for the children.

8. Both boarded a bus from Gujranwala; got down at Kamoki. Habibullah deceased who according to Munazza Firdous was her relative and was resident of Daska, noticed mother and the daughter at the bus stop. He was coming from Lahore on scooter. Habibullah stopped and enquired from them where were they going. He was told that they were on their way to Mahe Chatha. He offered lift. The two accepted it. He took them to Mahe Chatha Girls School. Munazza Firdous got busy in her work. She was the only teacher in that school.

9. A girl offered to bring milk for Habibullah. She was sent to bring milk. Habibullah stayed there for taking milk.

10. Abdur Rehman and Muhammad Iqbal came to the school. Abdur Rehman told Munazza Firdous to put on her Burqa and accompany him. He told her that he would not permit her to hold the examination. She agreed under pressure. Abdur Rehman further told Munazza that he would permit Habibullah to leave only if he would give lift to Muhammad Iqbal. This too was agreed.

11. Thereafter, Habibullah and Iqbal left on the scooter for Kamoki whereas Munazza Firdous, Ghulam Fatima and Abdur Rehman started walking. They had hardly gone three four fields from the village Abadi when Abdur Rehman asked Muhammad Iqbal to stop the scooter. Habibullah stopped the scooter. Muhammad Iqbal caught hold of him. Abdur Rehman brought out a hatchet from the nearby field and caused injury to Habibullah on the right upper arm. Habibullah fell down from the scooter. Muhammad Iqbal caught hold of Ghulam Fatima. Munazza Firdous too was attacked by Abdur Rehman. Similarly Ghulam Fatima was injured by Abdur Rehman. All three of them raised alarm. Muhammad Nasar and Ashraf turned up. They overpowered the accused. Abdur Rehnlon tried to run away alongwith Iqbal on the scooter but he fell down. Muhammad Nasar and Ashraf apprehended Abdur Rehman at the spot alongwith hatchet. Many persons gathered there. The three injured, Habibullah, Ghulam Fatima and Munazza Firdous were put on a tractor trolly which the villagers had brought there. They were taken to Civil Hospital, Eminabad. Habibullah expired on the way. The doctor was not available there. Munazza and Ghulam Fatima were then brought to Gujranwala Hospital.

12. Munazza Firdous remained in the hospital for 25 days and her mother for 1 month.

13. Mst. Ghulam Fatima corroborated the testimony of her daughter. After having deposed as to how they met Habibullah, she gave evidence with regard to the part played by the two appellants. Injuries to the three injured were attributed to Abdur Rehman whereas the role of co-accused Iqbal was that he caught hold of Habibullah and Ghulam Fatima one by one.

14. Hatchet P.5 was taken into possession vide memo. P.D. attested by Muhammad Ashraf. Muhammad Ashraf when examined deposed that it was not a hatchet but it was a Toka which was produced by Muhammad Ashiq.

15. The medical evidence in this case consists of the post-mortem report of the deceased and medico-legal reports of Munazza Firdous and Ghulam Fatima. .

16. On 23-3-1980, Dr. Nazir Ahmad, Medical Officer, D. H. Q. Hospital, Gujranwala performed post-mortem examination on the dead body of Habibullah aged between thirty-five.

17. The doctor noticed an incised wound 13 c. m. x 4 c.m. x 8 c. m. on the outer aspect of right upper arm below the shoulder 'in transverse direction. Right upper arm was cut through and through except tag of skin on inner aspect which was intact.

18. In the opinion of the doctor the cause of death was shock and haemorrhage due to the injury which was sufficient to cause death in the ordinary course of nature.

19. On 22-3-1980, Dr. Ashfaq Ahmad, Medical Officer, D.H.Q. Hospital, Gujranwala, examined Mst. Ghulam Fatima. She had four incised wounds 4 c. m. x c. m. skin deep on front of left thigh, 7 c. m. above left knee joint; 4 c.m. x 11 c.m. x 2 c.m. on outside of left knee joint; 6 c.m. x 7 c.m. bone deep on middle of front of left leg 2 c.m. x 1 c.m. x bone deep on inner side of right ankle joint. All the injuries were caused by sharp-edged weapon and were simple in nature.

20. On the same day Mst. Munazza Firdous was examined by the same doctor. She had four incised wounds, two abrasion, one contusion and a swelling. Four injuries were caused, by sharp edged weapon and the other four with blunt. All were simple in nature.

21. Abdur Rehman, in his statement under section 342, Cr.P.C. said that Muhammad Iqbal was not his friend. He was his neighbour. Abdur Rehman admitted the factum of marriage with Munazza Firdous. It was also admitted that before marrying him she was widow and had children from her first husband. Abdur Rehman denied that he was of a bad character and used to indulge in gambling etc. or other similar activities. He also denied that he ever took the salary of his wife who was asking him to divorce her. He admitted that Munazza Firdous was posted as teachress in village Mahe Chatha of Wandho Police Station.

22. Recovery of hatchet and other allegations were denied by him. However, he admitted that the police took scooter No. GA 9141 from the place of occurrence which was driven by Habibullah deceased. When questioned, "Do you want to say anything else?" he gave a detailed counter version and said that he was innocent. His version was as under:-- " ..The occurrence took place in this manner; 3-4 days prior to the occurrence, I went to village Mahe to meet Mst. Munazza Firdous because she had not returned to my house. She was not present in the school, 1 inquired from the villager.. about her and told them that she was my wife but they and to me that she was not my wife; she was wife of Habeeb Ullah deceased, who often came and stayed with her: I showed them Nikahnama and they believed my statement. I returned to my house. On the day of occurrence, I again went to Girls School Mahe to know whether Mst. Munazza had reached there or not. She had not reached the school. When I was returning I came across Mst. Ghulam Fatima P.W. at a distance of one 'bigha' from the place of occurrence. I saw a scooter parked near the place of occurrence and that created suspicion in my mind I went towards the place of occurrence and saw the deceased committing inter-course with Mst. Munazza P.W. They were without Shalwars at that time. I under grave and sudden provocation picked up a Toka lying at the Behk and with that caused injuries to the deceased and Mst. Munazza: Mst. Ghulam Fatima P.W. on hearing the hue and cry of the injured came towards the place of occurrence. I also caused her injuries with a Toka because she had consented to illicit relations of the deceased with her daughter. There were a heap of 'parali'. The deceased and Mst. Munazza were committing intercourse behind the heap of 'parali'. Green fodder and Toka with which I caused injuries, were also lying there; it was a 'behk' of some cultivator." Muhammad Iqbal appellant denied all the allegations. He said that Munazza Firdous was a woman of bad character and he used to check her being respectable resident of his Mohalla due to which he was roped in. He said that prior to the occurrence he had many altercations with Munazza. He pleaded not guilty.

24. Both the appellants did not produce any evidence in defence.

25. Learned counsel for the appellants after taking me through the evidence of the two eye-witnesses argued that there was no justification for the trial Judge to disbelieve the statement of Abdur Rehman. He wanted me to examine the prosecution case in juxtaposition with the defence story. Learned counsel submitted that the mother and daughter were injured but their injuries had been properly explained in the statement of Abdur Rehman.

26. Learned counsel further submitted that there were two other independent witnesses, namely, Nasar and Muhammad Ashraf who held seen the occurrence. The former was given up on the pretext of having been won over whereas the latter was examined to prove the recovery but he did not support the prosecution. Instead he corroborated the statement of Abdur Rehman.

27. As already observed, Mst. Munazza Firdous and her mother are injured. Their presence as such is established. Even, otherwise, the appellant Abdur Rehman admitted in his statement that he injured them.

28. After comparing the prosecution version with the statement of Abdur Rehman, I am of the view that it is more likely that the incident took place in the manner Abdur Rehman described.

29. According to the prosecution case, it was a chance meeting between Habibullah, Munazza Firdous and her mother. If this version is to be accepted then the rest of the story that Abdur Rehman had B hidden hatchet in the nearby field sounds very hollow because the prosecution did not lead any evidence to establish that Abdur Rehman and his companion were aware of the fact that Habibullah and Munazza were to meet at that particular time on that very spot. 30. 1 am, therefore, of the view that the version of Abdur Re hman is more probable especially when the injury on the person of the deceased was of such a dimension that it was more likely to be caused by a Toka than hatchet. According to Muhammad Ashraf, P.W. the weapon produced in his presence was Toka and not a hatchet.

31. For the forgoing reasons, the conviction as well as sentence o the appellants under section 302 read with 34 ' P. P. C. is not legally maintainable.

32. The only part attributed to Iqbal is of Japha. Case against him is of doubtful nature. He is given the benefit of doubt and acquitted. He is on bail. His bail bond stands cancelled.

33. The conviction of Abdur Rehman is altered from section 302 to 304, Part I, P.P.C. and the sentence reduced to ten years' R.I. The sentence of fine is maintained. That shall be paid to the legal heirs o the deceased as compensation.

34. Abdur Rehman was also convicted under section 307, P:P.C. for causing injuries to Munazza Firdous and was sentenced to five years R.I. Her injuries were simple. Hence the conviction of Abdur Rehman under section 307, P.P.C. is altered to one under section 324, P.P.C. He is sentenced to three years' R.I. The fine (Rs.1,000) is maintained which shall be paid. in full as compensation to Munazza Firdous.

35. The conviction and sentence of Abdur Rehman for causing injuries to Ghulam Fatima is maintained. The amount .of fine i.e. Rs.200 shall be paid to Ghulam Fatima.

36. The Collector concerned shall take immediate steps for realization of the amount of fine and its payment.

37. Abdur Rehman was released on bail because his appeal was not heard within the statutory period. He shall be arrested, forthwith, and sent to the prison to undergo the remaining term of his imprisonment.

38. The sentence shall run concurrently. The period of detention of Abdur Rehman shall also be deducted from the sentence awarded to him.

39. The appeal stands disposed of. M. Y. H. Order accordingly.