' IJAZ AHMAD CHAUDHRY, J.---Muhammad Bilal son of Muhammad Haji, convict/appellant has preferred this Criminal Appeal through jail against his conviction and sentence, who, vide judgment dated 29-1-2004 passed by Malik Mushtaq Ahmad Ojla, the then learned Additional Sessions Judge-II, Pakpattan Sharif, was convicted under section 302 (b), P.P.C. And sentenced to imprisonment for life with direction for payment of Rs,1,00,000 as compensation payable to the legal heirs of Mst. Sajida Bibi deceased as provided under section 544-A, Cr.P.C. For committing the murder of Mst. Sajida Bibi deceased his wife or in default thereof to further undergo six months' S.I.
And benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The occurrence in the present case had taken place on the night between 10/11th July, 2003 at 3- 30 a.m. At Chak No,37/S.P. Situated within the jurisdiction of Police Station Saddar Pakpattan Sharif which was at a distance of 6 k.Ms. From Police Station Saddar Pakpattan towards North West while the matter was reported by Abdul Ghani (P.W.2) father of the deceased through his statement (Exh.PB) which was reduced into writing by Talib Hussain S.-I. (P.W.6) at 7-50 a.m at Railway Crossing Chak No,37/SP, on the basis of which formal F.I.R. No,309 (Exh.PB/1) was recorded by MaqboolHussain, A.S.-I. (P.W.7) on 11-7-2003 under section 302, P.P.C.
3. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.PB/1), got lodged by Abdul Ghani (P.W.2) are that on 11-7-2003 at about 3-30 a.m. (night) Abdul Ghani (P.W.2), Muhammad Nawaz and Ismail were sleeping in the courtyard of the house of Muhammad Bilal appellant/convict. On hearing the hue and cry of Mst. Sajida Bibi deceased they woke-up and saw that in the room, where the electricity bulb was on, Muhammad Bilal appellant/convict was inflicting injuries with a hatchet on the neck of Mst. Sajida Bibi deceased who fell down on the ground while Muhammad Bilal appellant/convict gave some more injuries hitting the deceased on her arm, big and ring fingers of her left hand. The complainant and the P.Ws. Tried to apprehend the appellant/convict but he threatened them with dire consequences and fled away from the spot along with his crime weapon. Mst. Sajida Bibi succumbed to the injuries at the spot. The complainant along with Muhammad Nawaz and Ismail had witnessed the occurrence. The complainant after about two or three hours went away to inform the police about the occurrence.
4. After recording of the statement (Exh.PB), Talib Hussain S.-I. (P.W.6) went to the place of occurrence where he prepared the injury statement (Exh.PJ) as well as the inquest report (Exh.PK) of the dead body of the deceased and also sent the dead body through Taj Muhammad C-485 (P.W.4) to mortuary for autopsy. During the spot inspection he collected bloodstained earth from the place of occurrence which was taken into possession vide recovery memo (Exh.PC). He also got prepared scaled site plan (Exhs.PA/1 and PA/2) from Farooq Ahmad, Bhatti, Draftsman (P.W.1) and recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 20-7-2003 he arrested Muhammad Bilal appellant who on 23-7-2003 while in custody led to the recovery of blood-stained hatchet (P.3) from the courtyard of his house which was taken into possession vide recovery memo. Exh.PE. He also led to the recovery of blood-stained clothes which he was wearing at the time of incident and same were taken into possession vide recovery memo. Exh.PF.
5. After conclusion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court and copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellant who was charge-sheeted on 26-9-2003 which was denied by him and he claimed to be tried.
6. The prosecution in order to prove the guilt of the accused/appellant produced as many as seven witnesses. Medical evidence was produced by Dr. Shabnam Malik, W.M.O., D.H.Q. Hospital, Pakpattan Sharif (P.W.5) who on 11-7-2003 at 12-00 a.m. (noon) conducted the postmortem examination on the dead body of Mst. Sajida Bibi deceased while the ocular account was furnished through the statements of Abdul Ghani (P.W.2) father of the deceased and Muhammad Nawaz (P.W.3). The investigation of the present case was conducted by Talab Hussain, S.-I. (P.W.6).
However, the remaining witnesses are less or more of formal nature and need not to discuss here.
7. After close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C., who denied the allegations levelled by the prosecution against him and professed his innocence.
However, on a question that "Why this case against you and why the P.Ws. Deposed against you?
Muhammad Bilal appellant stated as under:-- "It is a false case. The P.Ws. Are closely related to the deceased and they were interested witnesses.
They were not present at the spot at the time of occurrence.
' They were summoned from Depalpur by police after the occurrence before the registration of case. The complainant party fabricated a false motive story."
' He also made the following reply to a question that "Have you anything else to say?
"I am innocent. On the day of occurrence when I came to my house at the eventful time I found my wife Sajida Bibi in compromising position with Arshad Machhi having seen them in such position I was highly provoked and ' I lost my self-control and then I picked up a hatchet from my house. I inflicted injuries to Sajida Bibi my wife under grave and -sudden provocation and I also chased Arshad Machhi but he ran away from the spot. The deceased was not Masoom-u-Dam ( )..
' I am custodian of the body of my wife and under such circumstances, ' I did not commit any offence. I my self reported the occurrence to the police station but the police in connivance with the complainant concocted a false story and involved me in this false case."
' The appellant did not produce any defence evidence nor he had opted to make statement on oath under section 340(2), Cr .P. C .
8. After hearing the learned counsel for the parties, the learned trial Court passed the impugned judgment of conviction and sentence against the appellant which is being assailed through this appeal.
9. Learned counsel for the appellant contends that the eye-witnesses are closely related inter se and with the deceased and they are the interested witnesses; that specific plea had been taken by the appellant that the deceased had illicit liaison with Arshad Machhi neighbour and on seeing the deceased with him in a compromising position during the odd hours of the night he having lost his control had committed the offence under grave and sudden provocation and that the recoveries had been planted upon him.
10. On the other hand, learned counsel for the State opposes this appeal on the ground that the appellant has admitted in his statement under section 342, Cr.P.C. That he had committed the offence and the eye-witnesses had no enmity, grudge or ill-will to falsely implicate the appellant in the present case and it is a case of brutal murder and the motive has been proved against the appellant.
11. I have heard the learned counsel for the parties and also perused the record with due care and caution.
12. The occurrence in the present case had taken place on the night between 10/11th July-, 2003 at 3-30 a.m. At Chak No, 37/S.P. Situated within the jurisdiction of Police Station Saddar Pakpattan Sharif which was at a distance of 6 k.Ms. From Police Station Saddar Pakpattan towards North West.
The matter was reported by Abdul Ghani (P.W.2) father of the deceased through his statement (Exh.PB) made before Talib Hussain S.-I. (P.W.6) at 7-50 a.m. While present at Railway Crossing Chak No,37/SP, on the basis of which formal F.I.R. No,309 (Exh.PB/1) was recorded by Maqbool Hussain, A.S.-I. (P.W.7) at 8-10 a.m. On 11-7-2003 under section 302, P.P.C. During the cross- examination Abdul Ghani (P.W.2) who is father of the deceased frankly admitted that he was resident of a place which is 20 miles away from the place of occurrence. As such the eye-witnesses were the chance witnesses. They have failed to establish their presence during odd hours of the night in the house of the deceased where the occurrence had taken place through any cogent reasons. They also tried to make improvements at the trial which appeared to be dishonest improvements and cannot be accepted. On the other hand, the occurrence allegedly had taken place at 3-30 a.m. (night time), but the matter was reported to the police at 8-10 a.m. Then the dead body according to P.W.5 Dr. Shabnam Malik, was brought in the hospital at 12-00 noon and the post-mortem examination on the dead body of the deceased was conducted at 1-30 p.m.
About 12 hours after the occurrence. The delay in conducting the post-mortem examination has not been explained which otherwise supports the story of the defence that the witnesses were summoned from their village and the story regarding their presence at the spot was concocted.
The possibility of concoction of story about the presence of the eyewitnesses at the spot cannot be ruled out as both the eye-witnesses are closely related inter se and with the deceased. It is not expected that the appellant would have committed the murder of the deceased in the presence of her close relatives who were sleeping in the courtyard of the house of the deceased and the appellant. It also does not appeal to mind that the appellant would commit the murder of the deceased in spite of the fact that the deceased and the appellant had been living with each other for the last about six years and their relations also became strained about one year before the incident.
13. After perusal of the statements of the eye-witnesses I am satisfied that they had not been able to establish their presence at the spot through any cogent reasons and possibility cannot be ruled out for registering the case by the police at 8-10 a.m. At the police station with the delay of about five hours after the incident after calling for the relatives of the deceased as police station was only 6 k.Ms. Away from the place of occurrence. It is also notable that the dead body was also sent to the hospital at Pakpattan Sharif with inordinate delay without any reasonable explanation for sending the same with such delay. It is also established on the record that in the memos.
Regarding the bloodstained earth (Exh.PC) and the injury statement (Exh.PJ) name of the accused has not been mentioned in spite of the fact that the appellant/accused was known to them. All these circumstances show that the eyewitnesses were not present at the spot and case had been registered in a doubtful manner by the Investigating Officer. It is also worth-mentioning to point out here that according to the eye-witnesses they were sleeping in the courtyard of the house of the deceased and after the occurrence the appellant had run away while raising the hatchet. It is also not mentioned by the eyewitnesses that clothes of the appellant were stained with blood. The Investigating Officer after about 10 days of the incident had taken into possession clothes and hatchet allegedly stained with blood from the courtyard of the house of the deceased where the occurrence had taken place in spite of the fact that the appellant had run away from the place of occurrence and the police had continued investigation at the said place of residence of the deceased as well as the appellant. The possibility cannot be ruled out that the story regarding the recovery of the hatchet and clothes which were blood-stained had been concocted by the Investigating Officer and arrest of the appellant was shown with the delay in spite of the fact that he was arrested on the same day as the appellant also claimed so. Moreover, the Investigating Officer admitted that the occurrence had taken place at a thickly-populated area but in spite of this fact none of the neighbours was joined in the investigation and no one from the said village had appeared before him in support of the prosecution story. Hence possibility cannot be ruled out that the eyewitnesses were summoned later on and the prosecution story was fabricated in order to make it a case of Qatl-i-Amd, which is not believable and is discarded.
14. On the other hand the appellant while making statement under section 342, Cr.P.C. Has taken a special plea reproduced above in para.7 ante, according to which he had committed the murder of his wife in the state of grave and sudden provocation with a hatchet as when he came back to the house at the eventful time he found his wife Mst. Sajida Bibi in compromising position with Arshad Machhi and he lost his self-control. It is well-settled law that the prosecution has to stand on its own legs and if the prosecution fails to bring home guilt to the accused and conviction is to be recorded on the special plea of the accused the same has to be accepted or rejected in toto and not in piecemeal to suit the prosecution case. According to the plea taken by the appellant his conviction recorded by the learned trial Court under section 302(b), P.P.C. Is not maintainable., It has been held by the Honourable Supreme Court of Pakistan in PLD 1996 SC 274 that the cases falling under section 304, P.P.C. Of the old law will come under section 302(c), P.P.C. In such circumstances conviction under section 302(b), P.P.C. Recorded by the learned trial Court is converted to section 302(c), P.P.C. And sentence of life imprisonment awarded to the appellant is reduced to rigorous imprisonment for 10 years. Admittedly the appellant is mason and is a poor man. The occurrence had taken place under grave and sudden provocation. Hence, direction for payment of compensation of Rs,100,000 is also reduced to Rs,50,000 which is payable to the legal heirs of the deceased and in default of payment of amount of compensation the appellant will further undergo S.I. For four months instead of six months' S.I. Benefit of section 382-B, Cr.P.C. Shall be extended to the appellant.
15. With the above alteration in the nature of conviction and reduction in the quantum of sentence and compensation amount, the impugned judgment of conviction and sentence recorded by the learned trial Court is modified accordingly and this appeal stands disposed of.