2007 PLP 2257 (YLR)

IJAZ AHMAD CHAUDHRY, J.

This judgment will dispose of Criminal Appeal No.622 of 2002 filed by Allah Ditta appellant against his conviction and sentence along with Murder Reference No.278 of 2002 sent by the learned trial Court under section 374; Cr.P.C. for confirmation of death sentence as both these matters have arisen from the same judgment dated 15-4-2002 passed by the learned Additional Sessions Judge, Jhang through which he has convicted the said appellant under section 302(b), P.P.C. and sentenced him to death with a compensation of Rs.2,00,000 payable to the legal heirs of the deceased Mst. Kausar Bibi under section 544-A, Cr.P.C. or in. default of payment thereof to undergo S.I. for six months.

2. The occurrence in the present case had taken place at Maghrab Wela on 10-2-2001, within the area of Mauza Ratta Khurd 17-1/2 Kilometers away from Police Station Qadirpur District Jhang and the statement (Exh.PD) of Ghulam Hussain real brother of the deceased Mst. Kausar Bibi under section 154, Cr.P.0 was recorded by Muhammad Sher, S.I. at Railway Phathak Mandi Shah Jewana at 11-30 p.m. on the same night on the basis of which formal F.I.R (Exh.PE) was drafted by Muhammad Ramzan Moharrar/HC (P.W.2) on 11-2-2001 at 12-10 a.m.

3. The brief facts as narrated in the F.I.R. (Exh. PE) by Ghulam Hussain (P.W. 7) are that he Teas a resident of Ratta Khurd, but he worked at Faisalabad. He had five brothers and three sisters. The elder sister Mst. Kausar Bibi was married with the appellant Allah Ditta five years ago, but no issue was born out of their wedlock and both the spouses oftenly quarrelled with each other. On 10-2-2001 the complainant P.W.7 along with Muhammad Anwar and Ghulam Farid P.Ws. not produced went to see his sister Mst. Kausar at their Dhari and asked both the spouses to live with peace and harmony and made compromise between them. At about Maghrab Wela the complainant and other P.Ws. were busy in conversation with each other when Allah Ditta (appellant) called Mst. Kausar Bibi inside the room and all of sudden, he inflicted Chhuri blows on the chest and abdomen of Mst. Kausar, who as a result of injuries fell down and succumbed at the spot. He and other P.Ws. at once attracted to the spot, but Allah Dita (appellant) fled away while waiving Chhuri in the hand.

4. The motive behind the occurrence was alleged that the appellant had suspicion about the character of his wife Mst. Kausar, deceased and due to this reason Allah Ditta murdered her.

5. After the registration of the case Muhammad Sher Inspector (P.W.8) proceeded to the place of occurrence where the dead body was lying. As there was no light in the premises where the occurrence had taken place, so he could not conduct further investigation. However, he remained there and started investigation next day. He prepared injury statement Exh.PB and inquest report Exh.PJ. He entrusted the dead body to Muhammad Rashid constable, who escorted the same to the mortuary for the post-mortem examination. He took into possession blood-stained earth from the place of occurrence and made the same into sealed parcel vide recovery memo. Exh.PF which was attested by Muhammad Anwar and Ghulam Farid. He prepared the rough site-plan, which is Exh.PK. He recorded the statements of P.Ws. under section 161 Cr.P.C. On 11-2-2001 Muhammad Rashid constable handed over to him last-worn clothes of the deceased viz. Qameez P.1, Shalwar P.2 and Dopata P.3 which were taken into possession vide recovery memo. Exh.P.L which was attested by Ghulam Shabbir (P.W.4) and Ahmad Ali. On 12-2-2001 he called Patwari Halqa Muhammad Sharif (P.W.6) who prepared site-plan Ex.PH and its duplicate Ex.PH/1 at his direction and on the pointation of P.Ws. Patwari Halqa Muhammad Sharif handed over to him site-plan Exh.PH and Ex.PH/l. Muhammad Rashid constable also handed over to him post-mortem report Exh.PA. He recorded the supplementary statement of Ghulam Hussain complainant on 11-2-2001. On 21-3-2001 he arrested. Allah Ditta appellant in this case. He also got his physical remand from Ilaqa Magistrate. On 22-3-2001 the appellant disclosed that he could get the recovery of weapon dagger effected, which was used in the commission of the offence. At the pointation of the appellant, he took into possession dagger vide recovery memo. Ex.PG. Again said it was a Chhuri P.4, which was blood-stained and that was sealed into parcel and took into possession vide recovery memo. Ex.PG. After that he was transferred from the police post Mandi Shah Jewana prior to his transfer from Police Post Mandi Shah Jewana, he completed the investigation and submitted the same before Illaqa Magistrate. Again said he entrusted the sealed parcel containing blood-stained and last-worn clothes and Chhurri to the Moharrar Police Station Qadirpur for keeping in safe custody. After handing over the above articles to the Moharrar Police Station Qadirpur, he was transferred from police post and after his transfer Muhammad Nawaz was posted as Chowki incharge, who recorded the statement of Muhammad Ramzan Moharrar and Muhammad Rashid constable.

6. After the completion of the investigation report under section 173, Cr.P.0 was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried. The prosecution in order to prove its case produced as many as 8 witnesses. The ocular account had been provided by the complainant Ghulam Hussain (P.W.7) while the medical evidence had been furnished by Dr. Razia Afzal (P.W.1) who had conducted the post-mortem examination of Mst. Kausar Bibi and the investigation had been conducted by Muhammad Sher Inspector (P.W.8). The remaining witnesses are of formal nature and need not to discuss here.

7. After the close of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C in which he denied the allegation and professed his innocence. However to a question that "why this case is against you"? Allah Ditta appellant made the following reply which is reproduced as under:-- "I have given already my answer. Mst. Kausar Bibi was my legal wedded wife she had put herself on the wrong path by developing illicit relations with Asad Kumhar. I had tried my best to keep her within the limits of God. Kausar Bibi had assured me that in future she will not keep relations of any kind with said Asad Kumhar. Unfortunately on the day when I had returned from Faisalabad at about 8-00/ 10-00 I found my wife in compromising condition. Asad ran away seeing me. I had reprimanded Mst. Kausar but instead of tendering apologies she abused me and insisted that she will continue illicit relations with Asad and in fact Asad is her real husband. Under the situation due to grave and sudden provocation, I lost my temperament and picked up a kitchen knife from the room and caused simple injuries to her but first injury was caused on her left forearm, but even she continued her abusive language against me due to which I caused further two injuries on her person. As a result of which she died. I was not intended to kill her. She had crossed the limits provided by Almighty Allah and his Holy Prophet. I am innocent in this case." The appellant did not opt to make statement under section 340(2) Cr.P.C and also denied to produce any defence evidence.

8. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which is being assailed through the instant appeal.

9. Learned counsel for the appellant contends that it was an unwitnessed incident and the F.I.R. was got registered with delay; that Ghulam Hussain complainant was resident of Faisalabad and at the most he was a chance witness, who failed to give any plausible explanation for his presence at the spot; that the other alleged witnesses did no appear in the trial Court who were given up and evidence of the complainant alone cannot be relied upon to maintain the conviction of the appellant; that Ghulam Hussain P.W.7 had changed his version regarding the motive by describing the same in a different manner and is not a reliable witness; that the recovery of weapon had been effected in violation of section 103, Cr.P.C. and the witnesses of recovery had gone to police station from where they had accompanied the police to the place of recovery, but no person from the locality had been joined in the recovery proceedings and as such the same cannot be used as a corroborative piece of evidence; that the defence version of Allah Ditta appellant is more nearer to the truth and his conviction and sentence may be converted from section 302(b), P.P.C. to section 302(c), P.P.C.

10. The learned Additional Prosecutor General on the other hand has opposed this appeal on the ground that Ghulam Hussain complainant had no enmity or grudge to falsely implicate his brother-in-law in the present case if he had not committed the offence; that the complainant was an independent witness having no previous enmity with the appellant and the solitary statement of the complainant which is supported by the medical and corroborated by the motive and recovery of weapon from the appellant can be relied upon for maintaining the conviction and that the defence plea being an afterthought story is not believable and conviction and sentence of the appellant may be maintained.

11. We have heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution.

12. The incident in the present case according to the prosecution had taken place at Maghrab Wela on 10-2-2001 while the F.I.R. was got registered on 11-2-2001-at 12-10 a.m. on the statement of Ghulam Hussain (P.W.7) at Railway Phathatk Mandi Shah Jewana at 11-30 p.m. the same night. The statement of the complainant was recorded after about 7/8 hours without any explanation of the alleged occurrence, Even it is doubtful that the FJ.R. had been registered at the given time because Ghulam Shabbir (P.W.4) who is first cousin of the deceased and the complainant during the cross-examination claimed that the Investigating Officer had come at the spot at 1-00 a.m. and he had taken away the dead body with him and in the morning the same was sent to the mortuary from the police station. On the other hand the I.O. (P.W.8) claimed, that although he had reached the spot immediately after receiving information, but he had conducted the investigation on the next day as there was no light. The post-mortem had been conducted on 11-2-2001 as per post-mortem f report Exh.PA at 1-30 p.m. The delayed post-mortem also is sufficient to draw an inference that the F.I.R. was not registered at the given time and such F.I.R. cannot be used as a corroborative piece of evidence, but due care and caution is required to rely upon their evidence.

13. To prove the ocular account the prosecution produced Ghulam Hussain (P.W.7) as a solitary witness and given up Ghulam Farid and Muhammad Anwar the other alleged, eye-witnesses being won over. Muhammad Anwar and Ghulam Farid P.Ws. were the first cousins of the complainant and the deceased. Ghulam Hussain P.W.7 was the real brother of the deceased Mst. Kausar Bibi. The ocular account is based on the solitary statement of Ghulam Hussain (P.W.7), who during the cross-examination explained that he was working in the days of incident as labourer at Faisalabad and used to visit his village in a week or a month and his house was one mile away from the place of occurrence. He has given only explanation that he along with other P.Ws. had gone to the house of the deceased at Degarwela and got effected compromise between the appellant and the deceased and then they were present in the house when the appellant called his wife Mst. Kausar Bibi in the room and she was done to death after causing injuries to her. P.W.4 Ghulam Shabbir is his first cousin and he during the cross-examination stated that he, Ghulam Farid, Ghulam Hussain and Ahmad Hussain are first cousins who had attracted to the spot after hearing hue and cry and when they all reached the appellant had already gone and the dead body was lying naked in the room of the house of the appellant, but somebody had put Chadar on it before their arrival. However, he did not disclose the name of the person who had put the Chadar on the naked dead body of the deceased. This facts hows that it was an unwitnessed incident, but the police after calling the close relatives of the deceased had subsequently concocted a story and the time must have been consumed in their arrival to the place of occurrence, who were residing at different place in Faisalabad. Even otherwise the story narrated by Ghulam Hussain is not plausible as three first cousins of the deceased were allegedly present in the same house but she was done to death by causing Chhuri blows and the conduct of the witnesses who were close relatives of the deceased was that they did not interfere to restrain the appellant from committing the murder of the deceased and even they could not arrest the appellant at the spot, who was not armed with any fire-arm weapon. It is also not on the record that when compromise had been got effected by the complainant and others, as to what had happened afterwards resulting into commission of this occurrence at the time when the close relatives of the deceased were still present in the house. The presence of the complainant at the spot during the occurrence could not be established beyond any shadow of doubt, who was residing at Faisalabad with his family and his presence at the spot at the time of incident being a chance witness cannot be accepted without any reasonable explanation which is lacking in the present case. Even otherwise the complainant had not given a true statement while appearing in the Court. We have noticed that the motive of the incident alleged by the complainant in the F.I.R., was that the appellant had a suspicion that the deceased was of a loose character but while appearing in the Court as P.W.7 he changed his version regarding the motive by stating that there were strained relations between the deceased and the appellant due to the reason that no child had born and this witness was duly confronted with his previous statement in this regard. As such we are of the view that the prosecution failed to prove the ocular account through the evidence of unimpeachable character and the motive also was not proved due to divergent statements made by the complainant.

14. The recovery of blood-stained Chhuri according to the prosecution had been effected from the appellant Allah Ditta on 22-3-2001 in the presence of Ahmad Hassan P.W.5 and Ahmad Ali given up PW by Muhammad Sher Inspector /I.0 (PW-8) from the Dhari after digging out the earth near the tree. Ahmad Hassan P.W.5 and Muhammad Sher Inspector (PW-8) in their statements before the court did not disclose the place from where the recovery had been effected. Even otherwise Ahmad Hassan P.W.5 and Ahmad Ali given up P.W according to their statements had firstly gone to the police station from where they accompanied the police for effecting the recovery and according to P.W.5 the police told them that the appellant had made a disclosure about the recovery of Chhuri from his possession. It was admitted that the place of recovery situated in the thickly populated area, but nobody from the said place had been' joined in the recovery proceedings. Even otherwise the prosecution version was that the appellant after committing the murder of the deceased had run away from his house and in such circumstances there was no time for him to bury the Chhuri before leaving the place of occurrence if the witnesses were present at the spot. The recovery had also not been effected in the manner narrated by the recovery witnesses and is not believable.

15. In view of the above discussion, we are of the view that the prosecution had not been able to prove the case of Qatl-e-Amd against the appellant through any cogent evidence and the solitary witness produced by the prosecution could not establish his presence at the spot. On the other hand the appellant had taken a specific plea, which has been reproduced in Para No.7 ante that he had caused injuries to his wife in the state of grave and sudden provocation as on his return to his house she was found indulged in compromising position with one Asad Kumhar, who ran away while seeing the appellant. The said story of the appellant is also borne out from the record as according to P.W.4 the dead body was found laying naked when he along with the complainant and other witnesses came at the spot and Dr. Razia Afzal Women Medical Officer (P.W.1) who conducted the post-mortem examination also sent the swabs through the police to the office of the Chemical Examiner and according to its report (Ex.PN) the said swabs were found stained with semen. Even otherwise, it is settled principle of law that if the prosecution version is disbelieved and the conviction has to be based on the sole defence plea of the accused taken in his statement under section 342, Cr.P.C. the same has to be believed or rejected in toto and not in piecemeal to suit the prosecution version. The judgment reported as Sultan Khan v. Sher Khan and others (PLD 1991 Supreme Court of Pakistan 520) is referred.

16. The point before us is as to what offence would attract for causing death of Mst. Kausar Bibi deceased. The circumstances discussed above in which the occurrence had taken place and the defence plea put forth by the appellant fully lead us to draw an irresistible conclusion that it was not a case of qatl-e-amd (culpable homicide amounting to murder and the Hon'ble Supreme Court of Pakistan in a case reported as Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) has held that there should be no doubt that the cases covered by the exceptions to the old section 300, P.P.C. read with old section 304, P.P.C. thereof, are cases 1 which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C.

17. In view of the above discussion we have no hesitation in holding that conviction and sentence under section 302(b), P.P.C. recorded by the learned trial Court against Allah Ditta appellant cannot be maintained, which is set aside and in the alternative he is convicted under section 302(c), P.P.C. and sentenced to 10 years R.I. However, the direction for payment of compensation is not maintained as the deceased was not Masoom-ud-Darn, but she herself had provoked the appellant while indulging in indecent act. The benefit of section 382-B, Cr.P.C. will also be given to the appellant.

18. With the above alteration in the conviction and sentence of the appellant, the impugned judgment stands modified and Criminal Appeal No.622 of 2002 filed by the appellant is disposed of accordingly.

19. Murder Reference No.278 of 2002 seeking confirmation of death sentence awarded to the appellant by the learned trial Court is replied in the negative and the death sentence awarded to the appellant by the learned trial Court is not confirmed N.H.Q./A-43/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.