1984 P Cr (PLP)

2. Mst. Sahib Bibi (deceased) was the wife of Abbas a resident of Kot Hussain. Two years before the occurrence in this case, she eloped with Ashiq Hussain (informant). In order to marry Mst. Sahib Bibi, Ashiq Hussain had to obtain divorce for her. He gave his brother P. W, Ahmad's daughter Mst. Noor Asia in marriage to Mst. Sahib Bibi's brother Mehdi in Watta marriage; as he promised to marry Mst. Sahib Bibi after her divorce. Since Mst. Sahib Bibi could not get a divorce, therefore, rukhsati of Mst. Asia did not take place. Consequently the situation got aggravated. Allah Ditta felt insulted and aggrieved. Therefore, on 21st December, 1975 at 3 p. m. Mst. Sahib Bibi was on her way to the village followed by her paramour P. W. 9 Ashiq Hussain. She had carried some turnips on her head in a bundle. Allah Ditta, accused, her first cousin armed with gun appeared before her and from a distance of 10/15 paces fired at her hitting her in the upper part of her abdomen. She fell dead at the spot. On Ashiq's alarm P. Ws. Nazar and Ahmad (given up as having been won-over) appeared on the scene. They also witnessed the occurrence. P. W. 9 Ashiq Hussain went to Police Station Jalalpur Bhattian, District Gujranwala after covering a distance of 12 miles and made report Exh. P. E. to P. W. l l Nazar Chiragb, A. S.-I., on the same day at 6 p. m. the same evening. After registering the case, the A. S.-I. went to the place of occurrence, prepared the necessary docu ments and sent the dead body for its post-mortem examination. He took into possession the bundle of turnips through memo. P.I. attested by P.Ws. Noor Ahmad and Dost Muhammad (since dead).

3. P. W. 8 Dr. M. Fakhar Ali, Medical Officer, Civil Hospital Noshera Virkan, District Gujranwala, held the autopsy and found the following injuries on the dead body of Mst. Sahib Bibi: - "(1) Seven wounds of entrance, round in shape 1/3" in radius on the epigastrium in area of 2 " radius. (2) One wound of exit 1/3" X 1/4' oval in shape in the left renal angle 1 from the midline." Death in his opinion was due to shock and haemorrhage caused by rupture of right lobe of the liver.

4. P. W. I1 Nazar Chiragh, arrested the accused the same day who on interrogation led to the recovery of carbine, P. I from within the iron box lying in his house. Thereafter he led to the recovery of crime empty at a distance of half a mile from the place of occurrence; where it was concealed in a wheat field. Both the articles were made into a sealed parcel through memos. Exh. P. A. and Exh. P. B., respectively attested by P. Ws. Nawaz and Sher Muhammad (since dead), It may be mentioned here that though the crime empty and the carbine was sent to the fire-arm Expert, yet its report was not produced by the prosecution at the trial and 1 find in the statement of the Public Prosecutor, dated 27th October, 1979, he said "that, despite his best efforts, the report of the Expert has not been made available by the police."

5. After completing the investigation, the accused were sent up for trial. In his cross-examination under section 342, Cr. P. C. he denied guilt and said that Mst. Sahib Bibi, his first cousin, was abducted by Ashiq and for about two years, they remained away from the village. He denied the recovery of the carbine and the empty. Explaining the case against him, he made the following statement and led no evidence in his defence: - "Mst. Sahib Bibi, deceased was my real paternal sister. She eloped with Ashiq Hussain, P.W. from village Bbarrakpur. They remained away from the village till the time of occurrence. On the day of incident, I was going to my "dera" alongwith Shah Muhammad of my village. The said Shah Muhammad had a licensed - 12 bore gun with him and he on the way to our "dera" went to answer the call of the nature in a nearby field entrusted his gun to me. I further proceeded towards my "dera" when Mst. Sahib Bibi, deceased and Ashiq Hussain, P. W., met me on a katcha path for the first time after her elopement. She was ahead of Ashiq Hussain, P. W. and when she came near me, I asked her to leave the house of Ashiq Hussain P. W. and go to her parents' house and to refrain from leading an immoral life. She refused to do so and categorically insisted to continue it. On her reply, I lost my senses and self-control. I fired at her with the said gun under grave and sudden provocation."

6. Trial Court relied on the evidence of the two eye-witnesses P.W. 9 Ashiq Hussain (informant) and P. W. 10 Nazar Muhammad and the evidence of the recoveries from the accused. It came to the conclusion that the prosecution satisfactorily proved its case against the accused but on account of family honour awarded him the lesser penalty under section 302, P. P. C.

7. Learned counsel for the appellant contended that there are circumstances which have fully supported the defence version and the trial Court has not discussed them at all. For instance, the accused said that he was accompanied by Shah Muhammad who was holding a 12 bore gun, which the accused used on grave and sudden provocation. In the F.I.R. the informant also said that the accused was armed with a gun. Besides his evidence, this fact is also admitted in the evidence of P. W. 10 Nazar Muhammad. The appellant has denied recovery of a carbine and the empty from him. As to which of the two weapons was used, the evidence of the fire-arm Expert would have clinched the matter because it was the prosecution case that accused got recovered carbine P. 1 from his house and the empty P. 2 from a distance of half a mile from the place of occurrence. Had the two matched, there would have been some evidence to prove that it was a carbine that he fired, but the firearm Expert's report has been withheld by the prosecution which in all probability did not support the prosecution case. Since the Expert's report is not forth coming, therefore, the statement of Muhammad Nawaz and the inves tigating officer about the recovery of a carbine was per se not enough because the house from where the carbine was recovered was jointly owned by the accused and his brother who was a married man living there with his family.

8. There was yet another circumstance in this case which cannot be overlooked i. e. P. W. Ahmad, a brother of the informant, who was said to be an eye-witness in this case was given up by the prosecution as having been won-over. Even otherwise, the story put up by P. W. 9 Ashiq Hussain appears to be highly improbable because after having enticed away Mst. Sahib Bibi who in all probability eloped with him it was highly, improbable that P. W. Ashiq Hussain lived with her in the same village. It is admitted under cross-examination by Ashiq Hussain that father of Mst. Sahib Bibi lived at a distance of 1 Killa from their house. On the other hand, the statement of the accused was more probable that the two stayed away for two years. This finds support from the admission of the informant that Mst. Sahib Bibi gave birth to a daughter in Khanqah Dogran Hospital which is situated in an another district. I am of the view that the circumstances of this case lent ample support to the version of the appellant i. e. when be saw her for the first time in the company of the informant he asked her to leave him and accompany him but on her refusal h fired at her. Her refusal under the circumstances to my mind was a gray and sudden provocation because he had met her for the first time after her elopement. There is yet another material aspect of the case, according to Ashiq, Mst. Sahib Bibi was ahead of him. The accused fired at her from a distance of 14/15 paces with a gun. Under these circumstances, if the deceased had been fired from the distance of 14/15 paces or a little more then there would have been a widespread of the pellets and the type or injuries suffered by her would not have been possible. Next question arses that if Mst. Sahib Bibi was fired at by the accused then why did h not kill her paramour. It is not for the accused to explain all the circumstances. The fact that he was not hit by the pellets fired from the gun from that distance indicated that he managed to avoid the attack;

9. In view of the aforementioned analysis of the evidence, I am of the view that there were circumstances which supported the defence version. The prosecution has not satisfactorily proved its case against the accused. Relying on the defence version, I alter the conviction from section 302, P. P. C. to section 304, Part 1, P. P. C. The appellant has already served a period of over 2J years. I therefore, reduce his sentence to a period already undergone by him. His sentence of fine is, however remitted. With this modification, this appeal is accepted. The appellant is on bail. He shall be discharged from his bail bonds. M. Y. H. Appeal partly allowed.