2006 PLP 1789 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

Allah Ditta was tried by the learned Additional Sessions Judge, Layyah, in case F.I.R. No.182 registered at Police Station Karore on 15-8-2001 for offence under sections 302/109, P.P.C. for causing the murder of Allah Wasaya. Vide judgment, dated 5-3-2002, the learned trial Court convicted Allah Ditta for offence under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay fine of Rs.50,000, which, in the event of recovery, was to be paid to the legal heirs of the deceased. In default in payment thereof, the convict was to undergo S.-I. for six months.

2. Through this appeal, Allah Ditta has challenged his conviction and sentence. Murder Reference No.209 of 2002 seeking confirmation or otherwise of death sentence has also been placed before us. We propose to decide both these matters through this consolidated judgment.

3. The brief facts of the case per statement (Exh.PF) of Zahoor Ahmad, complainant/P.W.9, on the basis of which formal F.I.R: Exh.PF/1 was recorded, are that on 14-8-2001 at about 5.00 p.m. when the complainant's father Allah Wasaya (deceased), while on his way back to his house after grazing his sheep and goats, reached near the Basti, all of a sudden Allah Ditta/appellant armed, with Phaura came across him and raised Lalkara that he (complainant's father) would not go alive. Allah Wasaya raised hue and cry, which attracted the complainant/ P.W.9, Shaukat Munir and Muhammad Aslam/P.W.10 to the spot. Within the view of the P.Ws. Allah Ditta gave a Phaura blow to Allah Wasaya, which was warded off by the deceased with his right hand, Then the appellant gave second blow which hit him on his head, as a result of which Allah Wasaya fell on the ground. On catching sight of the P.Ws. coming towards him, the appellant decamped from the scene of occurrence along with his Phaura. Allah Wasaya was taken to the Hospital at Layyah where the doctor after giving Medical aid referred him to Nishtar Hospital, Multan. Allah Wasaya succumbed to the injuries in the Nishtar Hospital. As to the motive, it was alleged that on account of strained relations, Allah Ditta had divorced his wife and holding Allah Wasaya, the husband of his wife's sister, responsible therefor committed his murder on the abetment of his brother Ghulam Qasim.

4. On 15-8-2001 the complainant along with one Mahboob Ali was on his way to the police station when they came across Muhammad Rafiq, S.-I./P.W.12, at Rajan Shah Morr, who was going to the Sessions Court to produce record in connection with case F.I.R. No.103/01. Muhammad Rafiq, S.-I., recorded the statement/complaint Exh.PA of the complainant and sent the same to the police station for registration of formal F.I.R. Then after attending the Sessions Court, at 12.00 noon, the S.-I./I.O., proceeded to Nishtar Hospital, Multan, and reached there at 4.00 p.m. He collected the dead-body of Allah Wasaya; prepared injury statement Exh.PD and inquest report Exh.PE and sent the dead-body of the deceased for post-mortem examination. After post-mortem examination, he took into possession the last-worn blood-stained clothes of the deceased, i.e. shirt P-1, Chadar P-2, handkerchief P-3 and Khais P-4 through metro Exh.PG, attested by Muhammad Aslam/P.W.10 and one Shaukat Munir. On 16-8-2001, the Investigating Officer, on spot inspection, prepared its rough site-plan Exh.PK and collected blood-stained earth from the spot vide memo. Exh.PH. On 20-8-2001 the appellant was arrested. On 24-8-2001, the appellant, while in custody, led to the recovery of Phaura P-5 which was taken into possession vide memo. Exh.PJ, attested by Muhammad Aslam/P.W.10 and one Shaukat. After completion of investigation, the appellant was sent up to face trial.

5. To substantiate its version at the trial, the prosecution produced twelve witnesses. The ocular account was furnished by Zahoor Ahmad?-son of the deceased/P.W.9 and Muhammad Aslam the husband of sister of wives of the deceased and the appellant/P.W.10. They also stated about the motive. Their statements are in line with the story given in the F.I.R. In addition to that, Muhammad Aslam also stated about the recovery of Phaura at the instance of the appellant. Dr. Munir Hussain, MO, DHQ Hospital, Layyah/P.W.5, medically examined Allah Wasaya on 14-8-2001 and found two lacerated wounds on his person. According to him, injury No.1, which was a lacerated wound 6 cm x 1 cm bone deep and bone exposed on top of head transverse in position about 12 cm from right ear and fresh bleeding was present in the wound, was dangerous to life. Both were caused by blunt weapon. Dr. Muneer Ahmad/P.W.6, who conducted post-mortem examination on the dead-body of the deceased on 15-8-2001, while observing two lacerated wounds on his person, opined that injury No.1, "A lacerated wound about 8 cm x 1 cm on the top of vertex, which fractured the bone and bone pieces were embedded into the brain matter" was the cause of death. According to him, such type of injuries could cause death in the ordinary course of nature. Probable duration between injury and death was within twenty-four hours, while the time elapsed between death and post-mortem examination was 12 to 24 hours. Umar Hayat, S.-I./P.W.7, on 15-8-2001, on receipt of complaint Exh.PF recorded the formal F.I.R. Exh.PF/1. Muhammad Rafiq, S.-I./P.W.12, stated about the drafting of complaint at the instance of complainant, sending the same to the police station for registration of case and the investigation thereafter.

6. In his statement recorded under section 342, Cr.P.C., the appellant took specific plea of grave and sudden provocation in the following words:-- "I had not divorced my wife Mst. Hatan. She is still, in my Nikah. I used to work in Factory at Sinanwan Tehsil Kot Addu, District Muzaffargarh. Allah Wasaya aged about 45 years developed illicit relations with my wife in my absence. On the day of occurrence I was present outside my house near my cattle-shed after Maghrab Wela where I saw in the field of cane-crop in the watercourse lying south north direction, the deceased Allah Wasaya along with my wife Mst. Hatan in objectionable condition. Whereupon I took the Phaura lying in the cattle-shed near Khurly and inflicted Phaura blow on the head of Allah Wasaya and thereafter I ran behind my wife Mst. Ratan but she ran away. That Phaura was not taken from my possession. I caused single blow with Phaura on the head of Allah Wasaya deceased in grave and sudden provocation due to Ghairat. The P.Ws. are related inter se and Allah Wasaya deceased. The P.Ws. are inimical to me. They are interested in my conviction. Due to relationship they had deposed falsely." However, neither the appellant appeared as his own witness as contemplated by section 340(2), Cr.P.C. nor did he produce any witness in his defence.

7. The learned counsel for the appellant, while referring to the plea of grave and sudden provocation taken by the appellant during trial, has prayed for suitable reduction in the sentence. The learned counsel appearing on behalf of the State conceded that the motive set down by the prosecution in the F.I.R. could not be proved during trial. However, he supported the judgment passed by the learned Court below and submitted that the appellant did not deserve leniency in sentence merely due to non-proving of motive by the prosecution.

8. We have heard the learned counsel for the parties and have also gone through the record of the case.

9. According, to prosecution case on 14-8-2001 at about 5-00 p.m. Allah Wasaya father of complainant Zahoor Ahmad/P. W.9 was returning to his house after grazing sheep and goats. While he was near Basti, he was attacked upon by Allah Ditta appellant who was armed with Phaura. Within the view of the witnesses, the appellant gave first blow which landed on the right hand of the deceased, while the other hit on his head. The injured was taken to Hospital at Layyah and on the advice of the doctor he was taken to Nishtar Hospital, Multan, where he lost his life on the same night at 3.30 a.m. Neither Zahoor Ahmad son of the deceased/P.W.9 nor Muhammad Aslam, husband of the sister of deceased's wife/P.W.10 nor Shaukat Munir whose sister was married with the deceased reported the matter to the police. According to Exh.PF, Zahoor Ahmad was on his way to the police station when he accidentally met Muhammad Rafiq, S.-I./P.W.12, who was on his way to produce the record in some case in the Court of Sessions Judge, Layyah, at 7.30 a.m. on 15-8-2001. It is incorporated in the body of the complaint Exh.PF under the heading of "Karwai Police" that Dr. Muhammad Hussain had telephonically informed the police about the incident. P.W.I Munawar Ahmad-Inspector/S.H.O. stated in his examination-in-chief that at 9.30 p.m. on 14-8-2001, Amir Nawaz/A.S.-I. had received telephonic message from Dr. Muhammad Hussain, MO, DHQ Hospital, Layyah that Allah Wasaya had been severely injured and was referred to Nishtar Hospital, Multan, for treatment. The information was entered into Roznamcha. After receipt of this information, initially, in normal course, either the S.H.O. or a police official deputed by him would rush to the hospital to inquire into the matter. The police officials could not sit over the information as it would be a clear case of negligence and misconduct on their part. P.W.12 Muhammad Rafiq/S.-I., who had drafted the complaint and had conducted investigation of the case, admitted during cross-examination that he had come to, know about the occurrence after the receipt of telephonic message from Amir Nawaz A.S.-I. He further admitted that the investigation of this case was handed over to him, which presumably means that after receipt of information on 14-8-2001, P.W. 12 was deputed to go to Nishtar Hospital, where Allah Wasaya was lying in injured condition, and to look into the matter but in order to justify the drafting of complaint on a road side at Rajan Shah Morr, he did not mention his going to Nishtar Hospital and came out with a story that he was going to Sessions Court Layyah in a private car and that he was accidentally spotted by the complainant and his companions who were also in a car and on their gesture he stopped the car and drafted the complaint while sitting at a petrol pump. The first information reports which are not made at Thana are always looked with suspicion and need deeper scrutiny. In the instant case, the matter was reported to the police after considerable unexplained delay as well. The above noted facts made it crystal clear that the matter was reported to the police after deliberations and a story was carved out which also contained motive behind the occurrence. Regarding motive it was mentioned in the complaint that some time earlier to the occurrence the appellant had divorced his wife due to some differences. It was alleged that the appellant was convicted that the deceased, who was married with the sister of the wife of the appellant was behind the divorce. Thus, he nursed a grudge against him. During trial the prosecution palpably failed to prove the motive. P.W.12/I.O. conceded that he had not investigated whether Allah Ditta appellant had divorced his wife or not prior to this occurrence. P.W.9/complainant of the case stated that Allah Ditta had divorced his wife three months prior to the occurrence. However, according to him Allah Ditta had pronounced Talaq orally. The same witness conceded that Allah Wasaya deceased was a healthy person and wife of Allah Ditta was also healthy and had given birth to a daughter six months prior to the occurrence. He further admitted that out of the wedlock of appellant and Mst. Hatan Mai four sons and three daughters were born who were alive. None of the witnesses could mention the reasons for divorcing Mst. Hatan Mai. On the contrary the appellant emphatically said that he had not divorced his wife Mst. Hatan. The learned counsel appearing on behalf of the State has rightly conceded that the prosecution miserably failed to prove the factum of divorce of Mst. Hatan Mai.

10. The upshot of the whole discussion is that the prosecution has not come out with the true facts of the case.

11. Now we are left with the plea taken by the appellant before the learned trial Court. According to the appellant, he used to work in a factory at Senanwan Tehsil Kot Addu District Muzaffargarh and in his absence Mst. Hatan and the deceased developed intimacy. On the fateful day, he was present outside his house near his cattle-shed at about Maghrab Wela when he spotted Allah Wasaya Mst. Hatan in objectionable condition in field of cane crop in a Khala which was running through the sugar-cane field and in sense he took Phaura and gave injury on the head of Allah Wasaya. He also followed his wife who escaped unhurt. Though the appellant has stated that he had seen deceased and Mst. Hatan together in objectionable position but he has not explained the position at all. Perusal of his statement does not reveal that Mst. Hatan and Allah Wasaya were not wearing clothes. On the contrary it is mentioned in the inquest report that Allah Wasaya deceased was clad in blood-stained shirt and Chadar. P.W.6 Dr. Munir Ahmad also stated that the dead-body was clad in Qamiz and checked "Dhoti". In these circumstances, we do not agree with the learned counsel for the appellant that the case of the appellant fell within the ambit of section 302(c), P.P.C. However, after analyzing the whole evidence, we are of the firm opinion that it was not a case of extreme penalty of death. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C., we reduce the sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is extended to the appellant. The learned trial Court has wrongly imposed fine of rupees fifty thousands upon the appellant. The same would be deemed to be the amount of compensation under section 544-A, Cr.P.C. and on realisation the same would be given to the legal heirs of the deceased. In default of realisation or payment thereof, the appellant would suffer six months, S.-I. The death sentence is Not confirmed. The Murder Reference is answered in the negative.

12. With the above modification in the sentence this appeal is disposed of. S.M.B./A-146/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.