2006 PLP 2912 (YLR)

ALI NAWAZ CHOWHAN, J.--Muhammad Hussain appellant was convicted under section 302-A, P.P.C. by the learned Additional Sessions Judge, Sheikhupura vide judgment dated 29-2-2000 and sentenced to death in a private complaint under section 302/34, P.P.C. and also because of case F.I.R. No.78 dated 27-3-1996 registered at Police Station Bara Garh Tehsil Nankana Sahib District Sheikhupura. The 'learned trial Court has also sent Murder Reference No.229 of 2000 which is being disposed of through this judgment. By the same judgment Yaseen co-accused of the appellant was acquitted of the charge.

2. Ameer Ali the brother of the deceased as well as brother of eye-witness Muhammad Akram (P.W.3) and who after being dissatisfied with the F.I.R. had filed the private complaint narrated the occurrence through his testimony in the following words: "Mst. Roshan Bibi deceased was my sister. She was married. Her husband Nazir Ahmad had died about two years before the occurrence. She had four children namely Abbas and Ilyas as sons and Mst. Kausar and Mst: Kaneez as daughters. She was residing with me along with her children about 1-1/2 years' before the present occurrence. Yaseen accused, present in Court, was on visiting terms to our house. My sister had two buffaloes which she has sold for a sum of Rs.30,000 which amount she gave on loan to Yaseen accused. My sister and myself had been demanding the return of the said amount, but we were put off by Yaseen accused, present in Court on one pretext or the other. Muhammad Hussain accused, present in Court, had a doubt that Mst. Roshan Bibi my sister and Yaseen accused had illicit relations, whereupon Muhammad Hussain accused, present in Court, had restrained me and Mst. Roshan Bibi from visiting the house. About two years and 2/3 months ago at about 8-30 or 8-45 p.m. I along with my sister visited the house of Yaseen accused for return of money. Yaseen and Muhammad Hussain, both present in Court, were present on that day in their house. They promised to return the amount by the following day. We then returned and when reached in front of the shop of Sh. Sharif situated in main bazaar, both the accused, present in Court, came from our behind. Yaseen accused raised a Lalkara that we should stop and they will teach us a lesson for demanding the return of amount. Then Yaseen accused caught hold of my sister from her hair and Muhammad Hussain accused who was armed with Churri gave a Churri blow to my sister near, her jugglar vein. She fell down. Muhammad Hussain accused, present in Court, continued giving Churri blows upon her while she had fallen which hit on her breast, right and left arms, upper part of the right arm, abdomen, right knee and left knee and right thigh. I raised alarm. At that time tube-lights were lit in the bazaar. At that time Nazir and Akram were taking tea upon the tea-stall of Akram. They also were attracted to the spot. Thereafter the accused, while raising Lalkaras, decamped from the spot." The following excerpts from the statement of the complainant being relevant are also reproduced below:-- "Yaseen accused was on visiting terms of our house for the last 5/7 years before the occurrence as he was on friendly terms with me. Roshan Bibi also used to reside in our house and thus the Yaseen accused had been on talking terms with her also." "It is incorrect that the Investigation Officer had asked me during investigating that Yaseen accused used to visit our house before Nikah between Yaseen accused and Mst. Roshan deceased."

3. Muhammad Akram (P.W.3) corroborated the case fully. The venue of the occurrence is the main bazaar of Butcheke where there are several shops and electric light. According to Muhammad Akram many people were attracted at the time of the occurrence. The followingexcerpt from the testimony of Muhammad Akram is reproduced below: "Yaseen used to sit always in the courtyard on his visits to our house. Roshan Bibi my sister also used to come to the courtyard. It is incorrect that she used to participate in our conversation. On his visits to our house of Yaseen accused, Roshan Bibi had been demanding the return of her Rs.30,000 from him. There had never been a quarrel in our house on that account."

4. The complainant to prove his case examined as many as nine witnesses. Rab Nawaz Shah Draftsman P.W.1 prepared site-plan Exh.P.A. Liaqat Ali A.S.-I. P.W.4 recorded formal F.I.R. Exh.PB on the basis of complaint Exh.PB/1. Shaukat Ali P.W.5 along with Muhammad Aslam P.W.7 escorted the dead-body of the deceased to the mortuary for past?mortem examination and produced before the Investigating Officer last-worn clothes of the deceased Shalwar P.1, Shirt P.2, vest P.3 and a sealed phial along with police papers which he took into his possession vide recovery memo Exh. PC.

5. Dr. Khadim Hussain P.W.6 conducted the post-mortem examination on the dead-body of the deceased on 28-3-1996 at 11-00 a.m. and found the following injuries on her person:-- (1) An incised wound 3 c.m. x 1 c.m. in the middle and back of neck. (2) An incised wound 3 c.m. x 1 c.m. on the right side of lower abdomen. The wound was muscle deep. (3) An incised wound 2 c.m. x 1/2 c.m. on the right breast muscle deep. (4) An incised wound 3 c.m. x 2 c.m. on the lateral side of left breast. (5) An incised wound 3 c.m. x 1/2 on the right forearm. (6) An incised wound 3 c.m. x 2 c,m. on the left forearm. The wound was bone deep. (7) An incised wound 6 c.m. x 3 c.m. on the right elbow through and through muscle deep. (8) An incised wound 3 c.m. x 2 c.m. on the left upper arm muscle deep. (9) An incised wound 3 c.m. x 1 c.m. on the lateral side of left chest. (10) An incised wound 3 c.m. x 1 c.m. on the right thigh. The wound was muscle deep. (11) An incised wound 3 c.m. x 1 c.m. on the medial side of left knee. In his opinion cause of death was due to shock and haemorrhage due to Injuries Nos.1, 4 and 9 which were sufficient to cause death in the ordinary course of nature. Exh.PD is the copy of the post-mortem report while Exh.PD/1 is the diagram showing the location of the injuries.

6. Muhammad Ashraf, Constable No.1631 P.W.8 is the witness of recovery.

7. Muhammad Aslam (P.W.9) is the Investigating Officer who recorded the statement of the complainant Exh.PB/1 and got the F.I.R. registered. He visited the spot and prepared the injury statement of Mst. Roshan Bibi Exh.PF and her inquest report Exh.PG and sent the dead-body for post-mortem examination. He prepared the rough site-plan Ehx.PJ and collected the last-worn clothes of the deceased from the constable who escorted the dead-body of the deceased. He later arrested the accused Muhammad Hussain who on 24-4-1996 led to the recovery of Churri P.4 from his house taken into possession vide memo Exh.PE. Later he got prepared the formal site-plan Exh.PA and endorsed his note in red. During investigation he secured the blood-stained earth and submitted the final report in this case before the Court. The following excerpts from his statement are relevant and are reproduced below: "On 1-5-1996 the complainant Amir Ali admitted before me that his sister Roshan Bibi deceased was married with Yasin accused, but no Nikahnama was registered." "It is correct that accused Yasin was found to be innocent during my investigation, so, he was not challaned in this. The investigation was conducted in the presence of so many persons of Butcheke locality who deposed the defence of accused Yaseen."

8. After close of the complainant's evidence the accused were examined under section 342, Cr.P.C. and in answer to a question; "why this case against you and why the P.Ws. have deposed against you?", Muhammad Hussain appellant stated as under: "Actually Mst. Roshan Bibi deceased had contracted second marriage with my co-accused Yaseen and they were residing together. Mst. Roshan Bibi had also illicit relations with other persons of the locality. I advised her to mend her ways but in vain. On the fateful day I saw Roshan Bibi going in the company of her paramour in the main bazaar Butcheke. I again requested Mst. Roshan Bibi to mend her ways but she threatened me for dire consequences and she also threatened me to convert my sisters in the way of prostitution. So upon hearing such filty remarks about mother and sister I lost my control and patience and I picked up Churri from the shop of Sheikh Sharif and inflicted the same on the person of Mst. Roshan Bibi". He neither produced any defence evidence nor opted to appear as his own witness under section 340(2), Cr.P.C.

9. The occurrence is admitted by the accused who has advanced the plea of grave and sudden provocation. For establishing any formal relationship between Yaseen the A acquitted accused and Mst. Roshan Bibi the deceased nothing tangible was produced as a proof whereas, the complainant Amir Ali denied the factum of marriage of the deceased with Yaseen after the death of her previous husband. It is only the Investigating Officer who stated that he learnt about their marriage but this was not registered.

10. One wonders how the appellant could have taken such a plea in the presence of the Yaseen his co-accused who had either formal or informal relationship with the deceased Mst. Roshan Bibi. There is nothing to suggest that Yaseen was ever provoked. The appellant was also responsible for inciting Roshan Bibi who according to his own admission in his statement under section 342, Cr.P.C. retaliated against his admonishing through hurling of abuses. If this invited B provocation he cannot use this as a plea in defence.

11. The next argument of the learned counsel for the appellant was that the appellant was a minor at the relevant time and reference in this connection is made to his statement under section 342, Cr.P.C. where his age is recorded as 18 years on the day when his statement was recorded.

12. There is nothing in the judgment to reflect that this age as scribed in his statement under section 342, Cr.P.C. was recorded after such ascertainment which the Court was bound to make. In this connection reference may also be- made C to the High Court Rules and Orders, Volume III, Chapter 22-A, which are now being ignored by the trial Courts and according to which the judgment has to reflect the age as observed by the Court or as determined by the Court.

13. We, therefore, do not find any controversy as to the age so as to give any benefit to the appellant on that score and on the basis of principle laid down in Javed Iqbal v. The State (1982 SCMR 447), Shana and others v. The State (1999 SCMR 1507) and Sohail Iqbal v. The State (1993 SCMR 2377).

14. The third argument raised by the learned counsel is that this. was not a case of Qisas as the legal requirements of the same have not been met. We agree with him and modify the conviction. He is, therefore, now convicted under section 302(b), P.P.C. keeping in view, however, the number of injuries which makes this a gruesome murder we are maintaining the sentence and are upholding the judgment otherwise. The appeal, therefore, is dismissed and the murder reference is answered in the affirmative. N.H.Q./M-1295/L?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.