1988 P Cr (PLP)

MUHAMMAD SHARIF, J.‑‑ Criminal Appeal (Special Court) No. 12‑1988/BWP, Criminal Appeal (Special Court) No. 13‑1988/BWP and Criminal Appeal (Special Court) No. 17‑1988/BWP, which are being decided by weans of this single judgment, emerge out of the judgment, dated 26‑1‑1988 pronounced by Mr. Muhammad Soltan Alam, learned Judge, Punjab Special Court for Speedy Trials No.VI, Bahawalpur, who had convicted Muhammad Akhtar, the appellant, under section 304 Part‑I of the P.P.C. and had sentenced him to suffer seven years' R.I. and a fine of 88.5,

000. In default of the payment of fine, he was directed to undergo three years' R.I. A moiety of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased. The benefit of section 382‑B, Cr.P.C. was extended to the appellant.

2. The facts, as gleaned from the F.I.R., in substance, are that Mst. Zakia, the younger sister of Muhammad Ismail complainant, had been married to Muhammad Akhtar son of Allah Diwaya, the appellant, who used to bicker with Mst. Zakia on trifling matters and Mst. Zakia used to come to her parental home. With the consent of the spouses, Capt. Bashir Ahmad Khan settled that the appellant should pay Rs.10,000, the deferred dower of fist. Zakia, and she would go to live in the appellant's house. The period of the payment of dower was fixed as one and a half months. The appellant defaulted to pay this amount and, on the previous Thursday, he sent Mst. Zakia to her parental home. On 21‑10‑1986 at about noon, the appellant came to the house of his in‑laws where his wife Msi. Zakia was feeding her suckling child while lying on a cot in her room. The other women of the family had gone out for picking cotton. The complainant was sitting in the room of Saghir Ahmad, his brother‑in‑law. The appellant asked his wife that her father had disgraced him by demanding Rs.10,000 as dower and it was done on account of Mst. Zakia. He insisted that she should go with him. Mst. Zakia told the appellant that her father had gone to Khanpur and her mother was also absent from the house and she would accompany him with their permission. The appellant felt enraged and had held the hand of Mst. Zakia and brought her in the courtyard. Mst. Zakia extricated her hand and the appellant whipped out a revolver and fired twice at Mst. Zakia who fell down. On the alarm of the complainant, Abdul Karim and Hazoor Bakhsh also reached the spot. After exhausting the bullets of the revolver, the appellant is stated to have held a knife in his hand and gave a number of injuries to Mst. Zakia in the courtyard. She succumbed to the injuries on the spot. The complainant, Saghir Ahmad, Abdul Karim and Hazoor Bakhsh over powered the appellant and kept him on the spot till the arrival of the police.

3. Muhammad Ismail P.W.3 went to the Police Station Saddar Khanpur and lodged the F.I.R. Exh.P.C. at 1‑45 p.m. which was recorded by Abdul Rehman P.W.7.

4. The police went to the spot, collected the blood‑stained earth, prepared the injury statement and the inquest report in respect of Mst. Zakia deceased. They recovered revolver P.5, two crime empties P.6/1‑2 and blood‑stained knife P.5 which were taken into possession vide memo. Exh.P.D. The appellant was arrested from the spot. After the. completion of the investigation, the challan of the appellant was submitted. As a result of the impugned trial, he was awarded the aforementioned punishment.

5. Dr. Ahmad Nawaz Bhatti P.W.8, Medical Superintendent, T.H.Q. Hospital Khanpur, District Rahimyar Khan, conducted the autopsy on the dead body of Mst. Zakia and found the following injuries:‑ INJURIES: (1) A sharp cut size 5 c. m. x 1? c. m. x skin deep on the lower part of right ear. (2) A wound entrance of bullet ? x ? c.m. circular with charred skin round about below the left nipple. (3) A sharp cut size 1 c.m. x 1 c.m. x below the injury No.2. (4) A sharp cut size 2 c. m . x 1 c. m . x abdominal cavity deep on the left side below the ribs. (5) A sharp cut size 1 c.m. x 1 c.m. x skin muscle deep on the left side of abdomen below and somewhat outer injury No.4. (6) A sharp cut size 4 x 3 c. m. x skin and muscle deep on back of right chest outer side below ribs. (7) A sharp cut middle half left side of chest below scapula deep and chest cavity. (8) A wound of entrance at back and right below the chest size 1 c.m. x chest cavity deep. The skin was charred. (9) A sharp cut size 2 c.m. x 1 c.m. x skin deep on back of left hand below the thumb.

6. This Medical Expert has opined that the death of Mst. Zakia was caused on account of injuries Nos. 2, 7 and

9. He has added that he did not know the time of the arrival of the dead body.

7. Muhammad Ismail P.W.3 has narrated the incident as stated above. He has also depicted the motive for the commission of this crime i.e. the appellant felt insulted on a demand of Rs.10,000, the dower amount of Mst. Zakia, which was settled through the agency of the Panchayat one and a half months prior to this occurrence. He has stated that he was sitting in the room of Saghir Ahmad P.W. when the appellant came to their house and entered the room of Mst. Zakia where she was feeding her suckling child. He did not state in the F.I.R. that he and Saghir Ahmad had come out of the room. He has added that Saghir Ahmad was jobless and sometimes he performed the job of a gardener, and, when Akhtar entered the room of Mst. Zakia, he did not see them and went straight to his wife and they also did not call him. He has admitted that the appellant was a student of 9th class and did not know the amount of dower written in the Nikahnama.

8. Saghir Ahmad P.W. 4 is the sister's husband of Mst. Zakia deceased. He has testified that Capt. Bashir Ahmad had decided the payment of Rs.10,000, the amount of dower, to be paid to the father of Mst. Zakia and then he could take Mst. Zakia with him. He has stated that he and Muhammad Ismail were talking to each other in his room when Akhtar accused fired twice at Mst. Zakia. First shot hit the chest of Mst. Zakia and the second shot fired by the appellant hit the back of Mst. Zakia. He has contradicted the complainant by stating that he was sitting in the room of Muhammad Ismail. He has stated about the recoveries of blood‑stained knife P.7, revolver P.5, blood‑stained shirt P.8 and Shalwar P.9 of the appellant which were taken into possession by the police. When subjected to the cross?-examination, he stated that the police did not record his statement. He corrected himself and said that he had stated before the police that he and Muhammad Ismail were sitting and‑talking in his room. His statement was confronted with wherein it was found that they were sitting in the room of the complainant. He is in the service of Pir Farooq Shah and used to work there. But on the date of occurrence, he is stated to have returned home after obtaining leave at about 8‑00 a.m. He does not state the reason of his taking leave. In this manner, he is not a natural witness of this occurrence and he was not expected to be present in the house at noon on the day of occurrence. His statement is also very shaky and discrepant. He has rightly been disbelieved by the learned trial Court.

9. Abdul Karim P.W.5, who is the first cousin of Mst. Zakia and Muhammad Ismail and the real brother of Muhammad Ibrahim, has stated that he was passing through the street in Basti Mundoo Khan when he heard the report of a fire‑arm from the house of Muhammad Ismail and when he entered his house, he saw Mst. Zakia running towards the street and the appellant firing at her which hit her back. He has added that she fell down and then she was injured by the knife and they encircled the appellant and apprehended him at the spot. He has also stated about the recoveries of revolver P.5, two crime empties P.6/1‑2, blood‑stained knife P.7, blood‑stained shirt P.8 and blood‑stained Shalwar P.9. Abdul Karim P.W. lives at a distance of one and a half acres from the spot and apart from being a relative of the complainant and the deceased is a chance witness. Chances mostly lead to fiction and his statement has also correctly been eliminated by the learned trial Court.

10. Abdul Rehman P.W.7, the Investigating Officer, has proved the F.I.R. Exh.P.C., the injury statement Exh.P.G. and the inquest report Exh.P.H. He, has stated that the appellant was produced before, him and he arrested him and took into possession the revolver P.5, two crime empties P.6/1‑2, knife P.7 which were made into a sealed parcel vide memo. Exh.P.D. He has stated that he got removed shirt P.8 and Shalwar P.9, both blood‑stained, and took into possession vide memo. Exh.P.F. He has stated that he reached the spot at 6‑00 p.m. and after correcting him deposed that he had reached at 4‑00 p. m.

11. The appellant when examined under section 342, Cr.P.C. made the following response to question No.9 when asked why this case against him: ‑ "Mst. Zakia deceased and I used to live happily as husband and wife. I am a student of 9th class. I and Mst. Zakia my deceased wife lived with my parents at Mauza Kundani, where my elder brother also lived with us. As I am a student, my parents and elder brother, used to maintain us. My wife Mst. Zakia strongly pressed me to take her to her parents' house at Mandho Khan (which is at a distance of ten miles from my house) where she wanted to pick the cotton crops. We were living happily as husband and wife. About one week before the occurrence I took her to her parents' house and left her, there according to her wishes for picking the cotton crops. On the day of occurrence, my wife and my son was missed by me. So I was going to see them. In the way my elder brother who is a school teacher gave me a plastic bag for keeping it safely in a house, as he was going with a school team in connection with the Tournament and he did not like to take alongwith him unnecessarily the above bag. I purchased fruit and sweets for my wife and son and opened the zip of the bag in order to put the above fruit and sweets in it, but there was not enough space or room in the bag, as there were some books and a revolver of my brother in it. I took the revolver with a belt out of the bag and put it on my shoulder. In this way after making the space, I kept the fruit and sweets in the bag. When I reached village Mandu Khan, I was told that the people had gone to attend the meeting of Ulemas at Muslim Town. There is no outer door of the courtyard of my father‑in‑law's house. I entered the courtyard, and saw my son lying on a cot near the palmdate true where a knife, few half cut potatoes with onions etc. were also lying on the one side of the cot. I knocked at the door of the room, Ibrahim came out hurriedly tying his loin cloth, while Mst. Zakia was without Shalwar. I seeing this lost my self‑control, took out the revolver and under grave and sudden provocation fired at Ibrahim which missed and he got escaped. I fired at Mst. Zakia in the courtyard while she was also running. I picked up a knife which was already lying on the cot alongwith some vegetables near the child, while chasing her, inflicted blows with it on the deceased. No one was present at the time of occurrence. I myself appeared before the Inspector at police station with the revolver and informed the above incident to the police. I was taken into custody by the police and a constable was sent for the complainant. I was taken to the spot and after due deliberation and consultation, the F.I.R. was lodged at Maghrabwela on the spot."

12. Muhammad Ismail, the complainant, lived in his house at that time. The women of the family had gone to pick cotton. He has stated about the motive of this crime but the site plan Exh.P.A. indicates that he and Saghir Ahmad were at a distance of eight Karams from the room where Mst. Zakia was feeding her suckling child. Possibly, they could not hear the voice of the spouses 'from that room. Muhammad Ismail has also deposed that he and Saghir Ahmad were sitting in the latter's room whereas the site plan belies this fact because they were sitting at point No.2 which is stated to be the room of Muhammad Ismail in the site plan Exh.P.A. It also looks strange that they saw the appellant exhausting the bullets of the revolver and then allowed him to inflict a number of knife blows to Mst. Zakia and saw it as disinterested spectators. They could have saved Mst. Zakia, had they been present nearby. In the circumstances, the ocular account narrated by Muhammad Ismail, Saghir Ahmad and Abdul Karim has rightly been discarded by the learned trial Court. Hazoor Bakhsh, who was an independent eye‑witness has not been examined.

13. The motive stated in the F.I.R. appears to be self‑contra?dictory. The appellant is stated to have said to his wife that he felt disgraced when her father demanded Rs.10,000, the dower amount. In the same breath, he asked his wife to accompany him to his house. As regards the amount of Rs.10,000, it should have been entered in the Nikahnama but the Nikahnama has not been produced. It had been settled by Capt. Bashir Ahmad, there was no writing and Capt. Bashir Ahmad was not examined: It shows that the story regarding this part of the motive in respect of the payment of 88.10,000! is false. The eye‑witnesses like Muhammad Ismail and Saghir Ahmad, as stated supra, could not hear the voice of the spouses at point No.1. of the site plan Exh.P.A. and they do not know what happened between them at that time. The motive for the commission of this crime has, therefore, not been proved. It is strange that at noon time when Mst. Zakia sustained a number of injuries, none of the neighbours came to the spot, as the incident took place in the courtyard.

14. When the prosecution does not substantiate the case against an accused, then his statement is to be believed in toto. The learned trial Court has rightly based the conviction of the appellant on his statement by believing the story of grave and sudden provocation. In such a situation, in Nazir and another v. The State 1984 P Cr. L J 3223 the normal sentence was adjudicated to range from three to five years. But in Fateh Khan v. Muhammad Younas and others and Muhammad Younas v. The State 1983 S C M R 268 and Chandoo alias Chand Muhammad v. The State 1986 S C M R 720 a sentence of ten years awarded to the appellant had been maintained.

15. The facts of each case are different in criminal trials. The appellant is a teenager and was a student of 9th class at the time of this incident. A sentence of seven years' R.1. would meet the ends of justice. The amount of fine awarded to him is also not very severe. We, however, observe that the order regarding the compensation to the heirs of an immoral lady should not have been granted. We modify the judgment to that extent only. The appeal of Muhammad Akhtar appellant fails and stands dismissed.

16. The State has filed an appeal that the conviction should have been made under section 302, P. P. C. whereas Muhammad Ismail complainant has lodged an appeal for the enhancement of sentence. In the light of the above observations, both the appeals filed by the State (Criminal Appeal (Special Court) No. 12‑1988/BWP) and Muhammad Ismail (Criminal Appeal (Special Court) No. 17‑1988/BWP) are dismissed in limine. M.Y.H./M‑802/L???????????????????????????????????????????????????????????????????? Appeal dismissed.