' ASIF SAEED KHAN KHOSA, J.--- Nasir appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 5-1-2001 delivered by the learned Additional Sessions Judge, Chiniot, District Jhang and was sentenced to death as Ta'zir and to pay a sum of Rs,1,00,000 to the heirs of Mst. Fatima Bibi deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. The appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us along with Murder Reference No,212 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We proposed to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Ahmad Ali complainant was a resident of Chak No,202/JB Sails situated within the area of Police Station Langrana, District Jhang and was an agriculturist by profession. The complainant had constructed a Dhari for his cattle in his agricultural land situated outside the above mentioned Chak. At about 10-00 a.m. On 3-12-1998 the complainant's wife namely Mst. Fatima Bibi was proceeding from the said Dhari towards the village and when she reached at a place two acres short of the village suddenly Nash appellant, armed with a gun .12 bore cable from the side of the village and raised a Lalkara that Mst. Fatima Bibi would not be spared alive. The hue and cry raised by Mst. Fatima Bibi attracted the complainant, Muhammad Aslam P.W. And Atta Muhammad P.W. To the place of occurrence as they were working in their fields situated nearby. After seeing the complainant and others approaching the place of occurrence Nasir appellant fired a shot at Mst. Fatima' Bibi which hit her on her right thigh.
Upon receipt of that injury Mst. Fatima Bibi fell down and the appellant raised a Lalkara that if the complainant and others tried to come near him then they would also be done to death. The appellant then decamped from the spot while firing in the air. Mst. Fatima Bibi was handled by the complainant and others but she had already succumbed to her injury and had died at the shot.
The motive set up in the F.I.R. Was that about 3/4 years prior to the present occurrence the complainant and the appellant had quarrelled with each other and cross-cases were registered with the police in respect of that quarrel. According to the F.I.R. Nasir appellant had fired at and killed the complainant's wife on the basis of that grievance. Leaving the dead body of Mst. Fatima Bibi at the place of occurrence in the care of Muhammad Aslam P.W. And Atta Muhammad P.W.
Ahmad Ali complainant proceeded to report the matter to the police but he met a Police Officer on the way and made a statement before him in respect of the present incident at 12-00 noon on 3- 12-1998 for an offence under section 302, P . P. C .
3. The investigation of this case was conducted by Ghulam Hussain, S.-I. (P.W.9) who inspected the place of occurrence, prepared an inquiry statement and an inquest report, sent the dead body to the mortuary for autopsy, prepared a rough site plan of the place of occurrence and recorded the statements of witnesses. After the postmortem examination of the dead body the last-worn clothes of the deceased were secured and later on a formal site plan of the place of occurrence was got prepared, the appellant was arrested and a gun .12 bore was recovered from his possession. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced ten witnesses in support of its case against the appellant. Ahmad Ali complainant (P.W.6) and Atta Muhammad (P.W.7) furnished the ocular account of the incident in question and they also deposed about the motive. Umar Daraz, F.C.
(P.W.3) stated about recovery of a gun .12 bore from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Shazia Athar.(P.W.4). Ghulam Hussain, S.-I. (P.W.9) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While responding to a question as to whether he had anything else to say he had stated as follows:-- "I am innocent. In fact due to a little quarrel between me and my wife, Mst. Fatima deceased was my mother-in-law took my wife from my house, but after few days a compromise was got effected by our relative namely Allah Bakhsh and my wife came back in my house.
' Few days before the occurrence Mst. Fatima deceased my mother-in-law took my wife again from my house. On the day of occurrence Mst. Fatima deceased met me and I requested her to send my wife back and she refused me, abused me and said that you are impotent and Beghairat.
At that moment I provoked and in order to frighten her fired near her feet but same moment she step forward towards me, with which fire hit on her thigh I fled away from the spot. No one was present at the place of occurrence including P.Ws. After about one hour womenfolk of the village took Fatima deceased to her house, where she died at night time due to failure to proper medical treatment. I had not any intention to murder her."
' The appellant, however, opted not to make a statement on oath under section 340(2), Cr.P.C. And he did not produce any witness in his defence..
7. Upon conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected murder reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the eye-witnesses produced in this case by the prosecution were related, chance and inimical witnesses, the reason stated by the said eye-witnesses for their presence near the place of occurrence had been falsified by the prosecution's own evidence, the motive set up by the prosecution had remained far from being established, the alleged recovery of a gun .12 bore from the appellant's possession was legally inconsequential; and the medical evidence had gone a long way in contradicting the ocular account. It has, thus, been canvassed by him that the prosecution had miserably failed to prove its case against the appellant beyond reasonable doubt. He had gone on to submit that in the circumstances of this case the version of the incident advanced by the appellant appears to be closer to the truth and the same, therefore, merits acceptance by this Court. As against that the learned counsel for the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that both the eye-witnesses produced in this case by the prosecution, i,e, Ahmad Ali complainant (P.W.6) and Atta Muhammad (P.W.7) were very closely related to Mst. Fatima Bibi deceased inasmuch as Ahmad Ali complainant (P.W.6) was the husband of the A deceased and Atta Muhammad (P.W.7) was a brother of the deceased besides being a brother-in-law as well as a maternal-cousin of the complainant. Both the said eye- witnesses were admittedly chance witnesses. The place of occurrence was stated two acres away from the village Abadi whereas the Dhari of the complainant was stated quite far away from the place of occurrence and that was not shown anywhere in the site plan (Exh.P.E.) of the place of occurrence. According to Ahmad All complainant (P.W.6) his Dhari was situated 4/5 acres away from the place of occurrence and the Dhari and the land of Atta Muhammad (P.W.7) was situated 3-1/2 Killas away. Both the said eye-witnesses had claimed that at the time of the present occurrence they were working in their own fields situated close to the place of occurrence but Muhammad Iqbal Patwari (P.W.5) had exposed the hollowness of their claim in that regard by stating clearly before the learned trial Court that according to the Revenue Record the fields adjoining the place of occurrence were not owned by the said eye-witnesses and they were also not the tenants or lessees of the said lands. We have further observed that both the said eye- witnesses were not travelling at the relevant time in the company of Mst. Fatima Bibi deceased and, as already observed above, their claim regarding presence in the adjoining fields had been proved to be false. The F.I.R. In this case had not been lodged at a police station and it is generally understood that in such a situation it is more likely that the F.I.R. Had been registered after due deliberations by the complainant party and preliminary investigation by the police at the spot. For all these reasons availability of the above mentioned eye-witnesses at the scene of the crime at the relevant time has been found by us to be quite suspect.
10. The motive set up in the F.I.R. Was that about 3/4 years prior to the present occurrence the complainant and the appellant had quarreled with each other and cross-cases were registered in that regard at the relevant police station. It had never been alleged in the F.I.R. That Mst. Fatima Bibi deceased had any role to play in the said quarrel but the complainant had maintained before the learned trial Court that the appellant was under an impression that the said quarrel had taken place at the instance of Mst. Fatima Bibi deceased. The said motive set up by the prosecution had been completely demolished before the learned trial Court through an admission by Ahmad Ali complainant (P.W.6) that in the cross-cases registered regarding the above mentioned quarrel taking place on 19-2-1994 (about four years and ten months prior to the present occurrence) a compromise had been effected between the parties and after two months of the said compromise a daughter of the complainant was given in marriage to the appellant and in the said marriage the members of the families of both the parties had duly participated. The complainant had gone on to admit before the learned trial Court that his daughter had been living happily with the appellant as his wife for the next three years. It had also been conceded by the complainant that there was no other criminal case or dispute between the parties. In these circumstance, as per the prosecution's own case the appellant had no ostensible reason to commit the murder of Mst.
Fatima Bibi who happened to be the appellant's mother-in-law. The motive set up by the prosecution had, thus, remained far from being established. In this view of the matter no corroboration to the ocular account was forthcoming on this score.
11. Although a gun .12 bore had allegedly been recovered from the appellant's possession during the investigation of this case yet the said recovery was legally inconsequential as admittedly no crime-empty had been recovered from the place of bccurrence so as to connect the recovered gun with the alleged murder. The said recovery was, thus, of no corroborative value.
12. Instead of providing support to the ocular account the medical evidence brought on the record of this case by the prosecution itself had gone a long way in contradicting and discrediting the eye-witnesses. According to Muhammad Iqbal Patwari (P.W.5) the site plan of the place of occurrence (Exh.P.E.) had been prepared by him at the pointing out of the eye-witnesses and the said site plan had shown that the appellant had fired at the deceased from a distance of five Karams. The statement made by Dr. Shazia Athar (P.W.4) before the learned trial Court shows that two of the injuries sustained by the deceased had blackening on their margins and a wad had also been recovered from the leg of the deceased. According to Dr. Shazia Athar (P.W.4) this was possible only if the deceased had been fired at from a very close range, i,e, within a distance of one to two feet. That was, however, not the case as far as the eyewitnesses were concerned. Apart from that post-mortem examination of the dead body had been conducted with a noticeable delay inasmuch as the occurrence in this case had taken place at 10-00 a.m. On 3-12-1998 and an F.I.R.
Had been chalked out in that regard at 1-15 a.m. On 3-12-1998 but the post-mortem examination of the dead body had been conducted at 8-00 a.m. On the next day, i,e, 4-12-1998. Dr. Shazia Athar (P.W.4) had categorically stated before the learned trial Court that the delay in conducting the post-mortem examination of the dead body had not been occasioned by her. Such a delay in conducting post-mortem examination of a dead body is generally suggestive of a real possibility of non-availability of eye-witnesses and such a delay generally indicates that time had been consumed by the complainant party and the police to procure and plant eye-witnesses and to cook up a story of the prosecution.
13. The discussion made above shows that availability of the eyewitnesses produced in this case by the prosecution at the scene of the crime at the relevant time had not been established and the said eyewitnesses had failed to receive independent corroboration from the motive and recovery or support from the medical evidence. The law is quite settled on the point that if the prosecution fails to establish its version of the incident then the version of the incident put forward by the defence is to be accepted as correct. Through the suggestions made by the appellant to the eye- witnesses produced in this case and also through his statement recorded under section 342, Cr.P.C.
The appellant had maintained that he was living happily with his wife for the last many years but his mother-in-law namely Mst. Fatima Bibi had taken the appellant's wife back to the house of the deceased and the appellant's wife had been restored to the appellant through the good offices of his relatives and few days prior to the present occurrence Mst. Fatima Bibi had once again taken the appellant's wife to her own house. The appellant had further maintained that on the day of the present occurrence Mst Fatima Bibi deceased had met him on the way and upon a request made by the appellant for restoration of his wife to him the deceased not only refused to entertain that request but she also abused the appellant and called him impotent and Beghairat. According to the appellant this conduct of Mst. Fatima Bibi deceased provoked him and in order to frighten her he fired at her near her feet but on account of stepping forward of the deceased the fire hit her on her thigh. This version of the appellant has appeared to us to be quite believable inasmuch as the motive set up by the prosecution was practically nonexistent at the time of the present occurrence and according to Ahmad Ali complainant (P.W.6) the appellant was happily married to the complainant's daughter for three years. In the background of repeated taking away of the appellant's wife by Mst. Fatima Bibi deceased to her own house the taunts regarding the appellant's impotence and regarding his being Beghairat were such that the same could have gravely provoked the appellant at the spot without any premeditation on his part. We have also noticed in this context that the occurrence in this case had taken place on 3-12-1998 whereas the appellant's statement under section 342, Cr.P.C. Had been recorded by the learned trial Court on 18-12-2000 and in the said statement the appellant's age had been recorded by the learned trial Court as nineteen years. This shows that the appellant was less than seventeen years of age at the time of the alleged occurrence. Even according to the police record the appellant was about 18/19 years old at the time of the present occurrence. In that state of minority and also in the backdrop of sustained provocation due to repeated taking away of his wife from his house by Mst. Fatima Bibi deceased the immediate provocation offered by the deceased could have prompted the appellant to fire at the deceased under the impulse of grave and sudden provocation: The appellant had fired only once and he had chosen a non-vital part of the body to be his target. For all these reasons we have found that the case against the appellant attracted the provisions of section 302(c), P.P.C. And not those of section 302(b), P.P.C.
14. As a sequel to the discussion 'made above this appeal is partly allowed, the conviction and sentence of the appellant recorded by the learned trial Court for an offence under section 302(b), P.P.C. Are set aside and instead the appellant is convicted for an offence under section 302(c), P.P.C. We have observed that the appellant was arrested in connection with this case on 29-12-1998 and he had remained in the jail ever since. He has, thus, already spent about seven and half years in jail in connection with the present case, including above five and half years in a death cell. In these circumstances the appellant is sentenced under section 302(c), P.P.C. To the period of imprisonment already under gone by him. As Mst. Fatima Bibi deceased's own conduct had prompted the appellant to launch an aggression upon her. Therefore, we have found it to be inappropriate to require the appellant to pay compensation to the heirs of the deceased. The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of Mst. Fatima Bibi deceased is, therefore, set aside. The appellant shall be released from the jail forthwith if not required in any other case.
15. Murder Reference No,212 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Nasir appellant is not confirmed.