2006 PLP 601 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment dated 22-7-2003 passed by the learned Additional Sessions Judge, Faisalabad, whereby, after having tried the appellant (in the case registered vide F.I.R. No.516, dated 13-10-2000, under section 302, P.P.C. Police Station Gulberg, District Faisalabad he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay a compensation of Rs.50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. in default whereof to further undergo S.-I., for six months. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Brief facts of the case, as given by the complainant in the F.I.R., are that in September, 2002 his deceased brother Gulraiz abducted Mst. Shagufta Bibi from Gujjar Basti and contracted' Nikah with her; that few days prior to the occurrence, appellant came to him and wanted to return his sister otherwise the deceased. to face the consequences to which he promised to contact the deceased; that on the fateful day and time, complainant, his said deceased brother Gulraiz, along with prosecution witnesses, were proceeding to Gujjar Basti and reached in front of the Tea Stall of Qutab Din, appellant armed with a Chhurri already present there, raised a Lalkara and inflicted a blow on his chest which was followed by another Chhurri blow which hit on his left upper arm; that the accused decamped from the spot and that the motive behind the occurrence was abduction of appellant's sister by the deceased.

3. After having completed legal formalities, challan was submitted against the accused before the learned trial Court, the accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced eleven witnesses during the trial.

4. Learned counsel for the appellant in support of this appeal submits that it is a case of two versions and the version put forth by the appellant is more plausible and convincing; that there is contradiction amongst the statements of P. W . 8 and P. W .9 regarding the mode of arrest of the appellant; that the appellant had committed the murder under the grave and sudden provocation because the deceased abducted sister of appellant, who requested to return her hand to which the deceased refused, so, the appellant was forced to commit the murder of the deceased; that it is not a case of section 302(b), P.P.C. and is a case of section 302(c), P.P.C. and the maximum sentence which can be awarded to the appellant would be from five to ten years and not more than that and that in support of the above submissions, he would place reliance on .1996 PCr.LJ 194, 2000 MLD 20 and 2000 PCr.LJ 175.

5. On the other hand, learned counsel for the State submits that the learned trial Court has already taken a lenient view by way of not awarding him capital punishment; that the appellant has failed to prove the defence plea; that the case against the appellant under the Arms Ordinance XX of 1965 was also proved to the hilt; that no further leniency is made out and that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.

6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

7. It is a case of two versions i.e. the one put forth by the prosecution and the other one set forth by the defence. In the instant case, appellant himself had produced his sister Mst. Shagufta Bibi to make a statement which is at page 55 of the judicial file and reads as under: "??????.about 20 days prior to the occurrence of the murder of Gulraiz deceased, Gulraiz deceased abducted me and then contracted marriage with me. I resided in the house of Gulraiz as his wife for about 20 days prior to the occurrence. Now, after the occurrence, I did not contract marriage with any other person. Being the widow of Gulraiz deceased, I forgive Sarfraz accused my real brother in the Name of Allah. My deceased husband Gulraiz has got two brothers Amjad Shahzad and Farrukh Shahzad and has got three sisters. I waived my right of Qisas and Diyat, in the Name of Allah". Brothers and sisters of the deceased, however, had not forgiven the appellant. It is not a case of grave and sudden provocation. The facts and circumstances enumerated in the three judgments referred to by the learned counsel for the appellant are distinguishable and are not applicable in the facts and circumstances of the present case. It was not a case of the appellant that he had seen his unmarried sister in an objectionable condition i.e. in the compromising position with the deceased. The plea of grave and sudden provocation, raised by the appellant during the trial was repelled. It is a matter of common knowledge and especially under Article 121 of the, Qanun-e-Shahadat Order, 1984, that when an accused wants to bring his case in any one of the exceptions under section 300, P.P.C. or section 302(c), P.P.C., then the onus heavily lies on him to prove the same. In the present case, the appellant has failed to discharge the said onus and could not prove his plea raised in answer to Question No.10. I have also gone through the statement of the Investigating Officer namely, Muhammad Akram Shah, S.-I. Although during the course of cross-examination, the Investigating Officer stated that the appellant committed the murder due to Ghariat yet no question regarding the first version of the appellant, which he took before the learned trial Court, was put to the Investigating Officer. Moreover, opinion of the police officer is not binding on the Court as far as answer of the Investigating Officer that the appellant had committed the murder of the deceased due to Ghariat. Both the deceased and appellant's sister were sui juris and they had contracted marriage in accordance with the rites of Islam. Appellant had caused not only on but four incised wounds on the person of the deceased. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellant beyond a shadow of doubt to sustain conviction against the appellant because the eye-witnesses of the occurrence had no enmity with the appellant. P.W.7 is Amjad Shahzad. Although he is closely related to the deceased i.e., real brother yet he has no enmity or strong motive to falsely implicate the appellant in this case. In support of the prosecution case, Moazzam Ali Farrukh Shahzad appeared before the learned trial Court as P.W.8 and P.W.9. Moazzam Ali is an independent witness of the case while Farrukh Shahzad though is the real brother of the deceased but he has also no enmity or reason to depose against the appellant. Even otherwise, the appellant himself has admitted the occurrence. The learned trial Court has delivered well-reasoned judgments to convict the appellant which do not call for interference by this Court in the appellate jurisdiction. Because already a lenient view has been taken, so, no question arises for taking a further lenient view qua the quantum of sentence. Resultantly, this appeal is dismissed and the conviction and sentence recorded against the appellant is hereby maintained in toto. H.B.T./S-470/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.