' MUHAMMAD AHSAN BHOON, J.--- This appeal is directed against the judgment dated 17-8-2002 passed by the learned Additional Sessions Judge, Faisalabad whereby Iftikhar Ahmad alias Pappu appellant was convicted under section 302(b), P.P.C. For causing the murder of Sardar Muhammad deceased and sentenced to death. Apart from the above said appeal, learned trial Court has submitted Murder Reference No,36 of 2003 for confirmation of death of Iftikhar Ahmad alias Pappu as required under section 374, Cr.P.C.
2. As per F.I.R. (Exh.P.C./1), briefly the story of the prosecution as narrated by the complainant is that he was resident of Chak No,33/GB.. Sardar Muhammad son of Ch. Kamal Din resident of Chak No,33/GB caste Jat Gill was his cousin. About 9/10 years ago Mst. Rashida Bibi after getting divorce from his husband Fazal Hussain contracted marriage with Sardar Muhammad deceased secretly and started living in Negehbanpura C-Block, Street No,2 in a rented house. Out of previous wedlock Mst. Rashida Bibi had one son namely Muhammad Iftikhar aged 26/27 years and one daughter namely Mst. Uzma Bibi aged 23124 years. Both the children were living with their mother. On 3-9- 2000 at 9-00 p.m. The complainant along with Bagh Ali son of Muhammad Hayat caste Rajput resident of Chak No,33/GB came to Negehbanpura to see Sardar Muhammad where Iftikhar Ahmad appellant was quarrelling with Sardar Muhammad (deceased) for the hand of Mst. Uzma.
Iftikhar Ahmad accused wanted to have her marriage in his relatives, upon which Sardar Muhammad deceased was not happy with him. The complainant and other eye-witness tried to patch up the matter. Iftikhar Ahmad accused wanted to take Uzma forcibly with him. Sardar Muhammad deceased did not allow him. Iftikhar Ahmad deceased left the place while threatening of dire consequences. The complainant and aforesaid Bagh Ali slept in lower portion of Warranda whereas Sardar Muhammad, Mst. Rashida Bibi and Uzma slept on upper storey. Early in the morning on the knocking of door the complainant opened the same when Iftikhar Ahmad son of Fazal Hussain, Muhammad Tariq son of Din Muhammad, and Muhammad Javed son of Muhammad Sharif came and went straight on the roof of house. The complainant lay on cot in the Warranda. After a while on hearing noise they ran to the roof top where they saw Iftikhar Ahmad while armed with Chhuri was giving blows to Sardar Muhammad while Muhammad Tariq armed with carbine, Muhammad Javed armed with Chhuri standing nearby were raising Lalkara that Sardar Muhammad be taught a lesson for creating hurdle in giving the hand of Uzma. Within their view the accused raised Lalkara, whosoever came forward he would met with the same fate, Mst.
Rashida Bibi came forward to rescue Sardar Muhammad then Iftikhar Ahmad inflicted many injuries to her, who also fell down on the ground. In the meantime, Sardar Muhammad tried to alight downward then Iftikhar Ahmad fired with his carbine which hit Sardar Muhammad, who fell down on the staircase. The accused persons left the scene along with Uzma while raising lalkaras.
As a result whereof Sardar Muhammad succumbed to ,the injuries whereas Mst. Rashida Bibi was taken to Civil Hospital.
' The motive behind the occurrence was that Iftikhar Ahmad accused was not happy on the Nikah of Sardar Muhammad with Rashida Bibi and he also wanted to get married Uzma in his relatives, on which Sardar Muhammad was not agreed.
3. After due investigation, report under section 173, Cr.P.C. Was submitted in the learned trial Court.
Charge was framed against the appellant who denied the charge, pleaded not guilty and claimed trial. The prosecution produced as many as 12 witnesses in evidence. The accused were examined under section 342, Cr.P.C. Iftikhar Ahmad appellants/accused in answer to question as to why this case was against him and why the P.Ws. Deposed against him replied as under:-- "P.Ws. Are related to deceased and are of his neighbour village, are of his party and deposed against me falsely and were not present at the time of occurrence, at the place of occurrence and were summoned by the police after the occurrence and showed the P.Ws. In fact on the fateful night returned from my job at late night and after taking meal when I was going to sleep, I heard some noise on the top roof of my house and I suspected' that some thieves were present on the top roof and took Chhuri with me and went on the roof and found Sardar and Mst. Rashida my mother in compromising condition. I raised Lalkara upon which Sardar deceased took out carbine and tried to fire at me. In the meanwhile, I inflicted Chhuri blows on both of them under grave and sudden provocation and exercising the right of self-defence, snatched carbine and under grave and sudden provocation and exercising my right of self-defence I fired at them which hit Sardar.
After this I went to Police Station and stated the whole incident to police. I am a poor labourer and belong to Muslim Sheikh Family. When the deceased was landlord of the village and complainant party is an influential party so the complainant party used their influence and cooked up a false and fabricated case against me. Sardar deceased had illicit relations with my mother. No complainant and Bagh Ali P.W. Were present at the place of occurrence. My co-accused Tariq and Muhammad Boota alias Javed were also not present at the time of place of occurrence."
' Iftikhar Ahmad appellant/accused did not opt to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. Nor did he produce any defence evidence.
5. The learned trial Court after hearing the parties passed the above said conviction and sentence through the impugned judgment, which has been assailed by the appellant.
6. Learned counsel for the appellant has contended that Muhammad Ashraf (P.W.9) appeared as an eye-witness who was resident of a place which was at a distance of 30/35 miles away from the place of occurrence. He was a chance witness and it was an occurrence which was seen only by the appellant and his sister Mst. Uzma and the same took place in the manner which was stated by him in his statement under section 342, Cr.P.C. In answer to question No,9. He further contended that Sardar Muhammad deceased was found by the appellant in a compromising position with Mst. Rashida Bibi mother of the appellant and thereafter he tried to fire at the appellant with carbine but the appellant in grave and sudden provocation while exercising his right of self- defence committed the murder of Sardar Muhammad deceased. The appellant took the plea that the deceased had never contracted marriage with mother of the appellant Mst. Rashida Bibi rather he had illicit relations with her. He further contended that even if the plea of self-defence is not accepted then his case falls within the purview of section 302(c), P.P.C. And this is not a case of capital punishment.
7. On the other hand, learned D.P.-G. Assisted by the learned counsel for the complainant argued that Sardar Muhammad deceased had contracted marriage with Mst. Rashida Bibi, mother of the appellant and the occurrence took place for the reason that the appellant wanted to give hand of Mst. Uzma, his sister to some of his relatives which was not liked by the deceased and due to that grudge, the appellant committed the murder of the deceased, so there was no question of grave and sudden provocation. He has further argued that ocular account furnished by Muhammad Ashraf (P.W.9) was confidence-inspiring and the Court has to see the quality not the quantity of the evidence. The presence of Muhammad Ashraf (P.W.9) at the place of occurrence was natural because he along with Bagh Ali (not examined) had came to the house of Sardar Muhammad deceased, his first cousin who was living with Mst. Rashida Bibi, mother of appellant. He further stated that the complainant had no motive to falsely implicate the appellant and prayed for dismissal of the appeal.
8. We have heard the learned counsel for the parties and perused the evidence carefully.
9. The ocular account in this case was furnished by Muhammad Ashraf (P.W.9) who is first paternal cousin of Sardar Muhammad deceased. He reiterated the story of F.I.R. Exh.P.C./1. According to which Mst. Rashida Bibi, mother of the appellant had taken divorce from her husband Fazal and had secretly contracted marriage with Sardar Muhammad (deceased) and she was residing in Mohallah Negehbanpura C-Block, Street No,2 in a rented house and out of the wedlock of said Fazal Hussain, Iftikhar Ahmad aged 26/27 years (appellant) and Mst.
Uzma Bibi were also residing with their mother in Mohallah Negehbanpura, Faisalabad and similarly it was also the case of prosecution that the deceased had contracted marriage with Mst.
Rashida Bibi secretly but on perusal of the whole evidence, we are unable to see a single piece of evidence which could show that the deceased had ever contracted marriage with Mst. Rashida Bibi, mother of the appellant. There is neither any Nikahnama nor any witness of the acclaimed Nikah and even no Nikah Khawan was produced by the prosecution about acclaimed marriage.
Although the learned counsel for the complainant referred the document Exh. Mark 'A' at page 124 of the paper book. It would be important to mention over here that Exh.Mark 'A' pertains to date i.e. 3-9-2000 at 6-30 a.m. Which is time of admission in hospital of Mst. Rashida injured as per documents whereas the occurrence in this case according to the prosecution took place on 4-9- 2000 and even claimed entry is on the bottom of the page, so the date above mentioned itself shows that the documents although not proved but was prima facie fabricated. According to it Mst. Rashida Bibi who was also injured in the same occurrence was admitted to hospital at 6-30 a.m. On 3-9-2000 i.e. One day prior to present occurrence. She was shown as wife of Sardar Muhammad deceased but that document was not even proved by any of the witnesses as to whom was author of said document and on whose asking that entry was made. Although the same was placed on record but it was rightly not accepted by the learned trial Court and same cannot be treated as a piece of evidence for the purpose of acclaimed Nikah of deceased with Mst.
Rashida Bibi mother of the appellant. So we hold that Sardar Muhammad deceased was not the husband of Mst. Rashida Bibi.
10. As far as the presence of Muhammad Ashraf (P.W.9) is concerned, he was the sole eye-witness who appeared before the Court and he admitted this fact that Sardar Muhammad deceased was a landlord and he was resident of Chak No,33/GB which was 33/34 kilometers away from the place of occurrence and the. Same was the place of residence of Muhammad Ashraf (P.W.9) but he was unable to justify his presence at the place of occurrence, at relevant time and we can safely hold that he is a chance witness. Another important aspect of the case is that the occurrence in this case took place on the top of roof of the house where there was no room and merely only a Pardah wall was there and this was an admitted fact that the appellant used to work in a workshop as a Mechanic and the appellant stated in his statement that when he returned from his job at late night, he suspected some thief on the roof top and he took a Chhuri with him and went on the roof top where he found Sardar Muhammad deceased and Mst. Rashida, his mother in compromising position and in result thereof he gave Chhuri blows to both Sardar Muhammad deceased and MO.
Rashida Bibi and same fact is borne out from the evidence of Dr. Arshad Masood (P.W.4) who found fifteen injuries on the body of Sardar Muhammad deceased. Similarly, Dr. Arif Shafiq (P. W.10) who examined Mst. Rashida Bibi, mother of the appellant, found two stab wounds on her person and both were on most vital part of the body/chest of injured Mst. Rashida Bibi, real mother of the appellant. So the story given by the prosecution is not confidence-inspiring rather the story of defence is more plausible. So we disbelieve the ocular account given by Muhammad Ashraf P.W.9 as he is interested witness being real first paternal cousin of the deceased and also being a chance witness.
11. As far as the motive is concerned, that is of no avail to the prosecution because the prosecution has failed to prove any legitimate relationship of Sardar Muhammad deceased with the family of the appellant. Thereafter there remains no occasion of his interference in the matter of engagement of Mst. Uzma, sister of the appellant. Although the learned trial Court in para.40 of its judgment observed as under:-- "Mst. Uzma appeared as D.W. Apparently she seemed to be major. The possibility of quarrel over her marriage, cannot be ruled out and her statement recorded as D.W. Is not convincing and is disbelieved being real sister."
' On perusal of the whole record as well as the file, we are unable to find out the evidence of Mst.
Uzma Bibi as D.W., however, we find from the police file that Mst. Uzma Bibi appeared during the investigation and she stated that Sardar Muhammad deceased had illicit relations with her mother Mst. Rashida and that was the cause of the incident. So the motive alleged by the prosecution is also disbelieved.
12. As far as the medical evidence is concerned, the same was furnished by Dr. Arshad Masud (P.W.4) and Dr. Arif Shafi (P.W.10). Dr. Arshad Masood (P.W.4) found fifteen injuries on the body of the deceased. He conducted postmortem examination at 4-40 p.m. And the duration between death and postmortem examination was 12-24 hours and the said time does not correspond with the story of prosecution as according to prosecution, the occurrence took place in the morning. Even if the time is stretched to 6-00 a.m. As time of occurrence then it comes within the ambit of 10 to 11 hours, whereas on the other hand, the time between death and postmortem examination corresponds with the version given by the accused, meaning thereby that the deceased was done to death in the dark hours of the night when he was found in compromising position, with Mst.
Rashida Bibi. Similarly the evidence of Dr. Arif Shafi (P. W.10) shows that there were two stab wounds on the most vital part of the body of Mst. Rashida Bibi, mother of the appellant which further furnishes corroboration to the defence plea that when she was found in compromising position she was given injuries by the appellant. Another important aspect of the case is that in the present case only a "Chadar" as last-worn clothe of deceased was taken into possession when his dead body was escorted and no other clothe of the deceased was available which fact would show that the deceased was in naked position at the time of occurrence.
13. As far as the recovery of Chhuri is concerned, it is,of no use to dilate upon the same because the occurrence was admitted by the appellant.
14. After going through the evidence and plea of appellant as discussed above, we hold that Sardar Muhammad deceased as well as Mst. Rashida Bibi injured were found in compromising position and in heat of passion the appellant inflicted injuries on their persons, so while converting the conviction of appellant from section 302(b), P.P.C. To section 302(c), P.P.C. He is sentenced to imprisonment for ten years.
' With the above modification, this appeal is dismissed and Murder Reference is answered in negative.