1. ' BASHIR A. MUJAHID, J.---Haji Muhammad appellant has challenged judgment, dated 31-7-2003 passed by the learned Additional Sessions Judge, Chunian whereby after having been tried in case F.I.R. No.58 of 2003, dated 18-3-2003 under section 302, P.P.C. Registered at Police Station Kanganpur, Kasur for murder of his sister Zainab Bibi and sentenced to 5 years R.I. Under section 311, P.P.C. As the legal heirs of the deceased had compromised the offence and forgiven him in the name of Almighty Allah. Benefit of section 382-B, Cr.P.C. Was, however, extended in his favour.
2. ' The brief facts of the case are that F.I.R: Exh.PC was got recorded on the statement of Manzoor Ahmad complainant, P.W.3. Alleging therein that Muhammad Arshad his son was married with Zainab Bibi alias Neeli, daughter of Bashir Ahmad on 25-2-2003 and she was residing in the house of the complainant as wife of Muhammad Arshad. On 18-3-2003 at about 2-30 p.m. The complainant and his son Muhammad Arshad and Tufail were present in the house, when the appellant armed with gun .12-bore double barrel arrived at the spot in order to see his sister who was served with drinks and meal. All of a sudden he made three successive shots at Zainab Bibi hitting on her different parts of body, who succumbed to the injuries at the spot and the appellant fled away.
3. ' The motive for the occurrence was that the accused suspected that his sister Zainab Bibi was of bad character.
4. ' Muhammad Arshad Khan, S.-I. P.W.S. After recording the statement Exh. PC of the complainant arrived at the spot and took the dead-body of Zianab Bibi into possession. He prepared the injury statement through memo. Exh.PG and inquest report Exh.PH. He collected the blood-stained earth from the spot through memo. Exh.PB. Thereafter, he dispatched the dead-body for post-mortem examination. On 19-3-2003 he took into possession last worn clothes of the deceased through memo. Exh.PD. On 27-3-2003 he arrested the appellant who while in police custody led to the recovery of gun P7 which was taken into possession through memo Exh.PJ. After completion of the investigation he submitted the challan.
5. ' The trial Court framed the charge which was denied by the accused and he claimed trial.
6. ' The prosecution examined as many as 9 witnesses to prove the guilt of the accused.
7. ' The medical evidence was furnished by Lady Doctor Nosheen Sohail, P.W.6 conducted the post- mortem examination on the dead-body of Zainab Bibi and found the following injuries on her body:--
(1) An entry wound 2 x 3 c.m. On right side of upper part of neck 1.4 c.m. Behind right ear 6 c.m.
8. Above right angle of mandible.
(2) Nine exit wound .5 x .5 c.m. Each on left side of neck in an area of 5 into 6 c.m. Below left ear lobule 6 c.m. Away from mid line.
(3) An entry wound 2 x 2 c.m. On right side of back 6 c.m. Away from mid line 6 c.m. Below inferior angle of right scapula.
(4) 7 exit wounds present on front of chest .5 x .5 c.m. Each area of spread was 6 into 5 c.m. 5 c.m.
9. Medial to right nipple, 7 c.m. Edial to left nipple.
(5) An exit wound .5 x .5 c.m. Above to umbilicus.
(6) Five entry wounds .5 x .5 c.m. Area of spread 4 x 6 c.m. On lower part of right thigh 7 c.m. Above right knee.
10. ' The ocular account was furnished by Manzoor Ahmad, P.W.3 who was complainant of the case. He supported the prosecution story and narrated motive for the occurrence. Muhammad Tufail, P.W.4 was also eye-witness of the occurrence. His statement is in line with that of the complainant.
11. Khurshid Ahmad, P.W.2 identified the dead-body of Zainab Bibi at the time of post-mortem examination. Master Muhammad Sadiq, P. W.1 prepared the site plan of the place of occurrence.
12. Muhammad Ashiq, P.W.7 attested the recovery of memo. Exh.PJ whereby the accused got recovered gun P7 Mukhtar Ahmad H.C. P.W.8. Kept the sealed parcel in safe custody in police Malkana and handed over the same to Muhammad Ayub, FC for its owned transmission to the office of Chemical Examiner.
13. ' The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Ex.PN and that of Forensic Science Laboratory Exh.PM.
14. After close of the prosecution evidence statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. He also produced D.W.1 Haji Bashir Ahmad, D.W.2 Mst. Sheedan Bibi and D.W.3. Muhammad Rafique in his defence.
15. ' The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
16. ' Learned counsel for the appellant has argued that sister of the appellant Zainab Bibi was previously married with Muhammad Arshad son of Rafique from whom after seeking divorce she was residing with Muhammad Arshad son of the complainant wherefrom was abducted her and she was forced to sign Nikah Nama which was refused on which she was done to death and false F.I.R. Was lodged. Further adds that as she was admittedly unmarried at the time of abduction and was survived by father Bashir Ahmad and mother Rasheedan Bibi and was real sister of the present appellant and both father and mother got their statements recorded before the trial Court as D.W.1 and D.W.2 and according to them they had patched up the matter with' the appellant and had do objection if his appeal is accepted and he is acquitted of the charge but the learned trial Court although allowed the compromise but convicted him under section 311, P.P.C. As `Fisad fil Arz' and sentenced to five years R.I. Learned counsel for the appellant has argued that he had no criminal history and was not, habitual offender only he has been sentenced five years and that he caused three fire shots which is no ground for convicting him under section 311, P.P.C. Therefore, she has prayed that she would not 'challenge the conviction if the sentence is reduced to the sentence already undergone by him as almost two years sentence he has already served out.
17. ' Learned counsel for the State has opposed the appeal and supported the impugned judgment.
18. ' I have given due consideration to the contentions raised at the bar and also examined the record.
19. ' Admittedly, Zainab Bibi, deceased was survived by father Haji Bashir Ahmad, D.W.1 and mother Rasheedan Bibi, D.W.2. Althouh it is claimed by the complainant that she has entered into Nikah with Muhammad Arshad but this fact has been disbelieved by the trial Court as there was no documentary evidence and mere assertion of Nikah is not enough to hold Muhammad Arshad as husband of Zainab Bibi. However, as the prosecution case has been established by the eye- witnesses of the occurrence corroborated by the medical evidence and the motive, therefore, I do not find any force to interfere in the conviction recorded against him by the trial Court and learned counsel for the appellant is justified in not challenging the same.
20. As far as sentence is concerned it is correct that Zainab Bibi, deceased was survived by Haji Baashir Ahmad father, D.W.1 and Rasheedan Bibi mother, D.W.2 and both of them got their statements recorded while stating that they had forgiven the appellant and have no objection for his release and the appellant has no previous criminal history, therefore, while maintaining the con iction I reduce the sentence to the period having been already undergone by the appellant which will meet the ends of justice. The appeal is dismissed with the above modification in the sentence.
21. It is ordered that the appellant be released from jail forthwith if not required to be detained in any other case.