' ASIF SAEED KHAN KHOSA, J.--Muhammad Khan alias Mamman appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 17-2-2000 rendered by the learned Additional Sessions Judge, Hafizabad and was sentenced to imprisonment for life and to pay a sum of Rs, 30,000 to the heirs of Mst. Jannat 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 benefit under section 382-B, Cr.P.C. Was extended to the appellant. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No, 449 of 2000 which has been heard by us along with Criminal Revision No, 207 of 2000 filed before this Court by Mst.
Rehmat Bibi complainant seeking enhancement of the sentence passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Mst. Rehmat Bibi complainant and her younger sister namely Mst. Jannat Bibi were living together in the house of their deceased father namely Jalal in village Chhanni Qasim situated within the area of Police Station Sukheke, District Hafizabad. Mst. Rehmat Bibi complainant was issueless whereas Mst. Jannat Bibi was a widow having four children. The complainant and her sister had inherited some agricultural land in village Chhanni Qasim from their father and they were managing the said land through their tenants namely Allah Ditta accused and his brother namely Muhammad Khan alias Mamman appellant for the last four years. About one year prior to the present occurrence Muhammad Khan appellant had floated a rumour that he had contracted Nikah with Mst. Jannat Bibi whereupon Mst. Jannat Bibi had asked the appellant not to defame her but he had not desisted from that. Due to the defamation of Mst. Jannat Bibi by the appellant the complainant and Mst. Jannat Bibi had required Allah Ditta accused and Muhammad Khan appellant to vacate possession of their land about 7/8 days prior to the present occurrence. About 2/3 days thereafter Allah Ditta accused and Muhammad Khan appellant had asked forgiveness which was granted to them by the complainant and Mst. Jannat Bibi and, resultantly, Allah Ditta accused and Muhammad Khan appellant had resettled at the dera of the complainant party. At about 9/10 a.m. On 28-9-1994 Mst.
Jannat Bibi had quarrelled with Muhammad Khan appellant and Allah Ditta accused over the issue of her defamation by them and Muhammad Khan appellant and Allah Ditta accused were once again ousted from the dera of the complainant party whereupon they left that dera and took away their luggage as well as their cattlehead for settling at their own village namely Barhakpur. At about 1-00 a.m. During the night between 28-9-1994/ 29-1994 ,the complainant and her sister namely Mst. Jannat Bibi were asleep at their dera with three minor children when the complainant woke up upon hearing the barking of dogs and saw that three persons were advancing towards the complainant and her sister and two other were standing in the corner of their quarter. The complainant asked the intruders about their identity. In the meanwhile three of the intruders came towards the cots of the complainant and her sister and they were identified by the complainant as Allah Ditta accused, armed with rifle. 222 bore, Muhammad Khan appellant, armed with a double barrel gun .12 bore, and Asghar accused, empty-handed. Muhammaa Khan appellant put his foot on the cot of Mst. Jannat Bibi and asked her to stand up and to go with the accused party. Upon refusal of Mst. Jannat Bibi Muhammad Khan appellant said that she had caused a lot of disgrace to them and they would definitely take her with them. Mst. Jannat Bibi retorted to that by saying that she would not go with Muhammad Khan appellant, etc. No matter what they did. Hearing the said response of Mst. Jannat Bibi, Allah Ditta accused shouted that if Mst. Jannat Bibi did not want to go with the appellant, etc. Then she should be done to death. Hearing the said command by Allah Ditta accused Muhammad Khan appellant loaded his gun and fired a shot therefrom hitting the right side of the abdomen of Mst. Jannat Bibi when she was lying on the cot. The hue and cry raised by Mst. Rehmat Bibi complainant attracted Noor Muhammad P.W. From his own dera, Umar Hayat P.W. Who was plying his tractor at the time on his own land situated nearby and Muhammad Yousaf P.W. Who was watering his own field situated near the complainant's quarter whereupon the appellant and his co-accused decamped from the spot while firing in the air. Mst. Jannat Bibi succumbed to. Her injuries and died at the spot. The said incident was reported to the local police by Mst. Rehmat Bibi complainant on the next morning and on the basis of her statement in that regard F.I.R. No, 254 was registered at Police Station Sukheke, District Hafizabad at 7-00 a.m. On 29- 9-1994 in respect of offences under sections 148/302/149, P.P.C.
3. The investigation of this case conducted by Nazar Muhammad, S-I. And Muhammad Hanif Warraich, D.S.P. (CW1). During the investigation the dead body of Mst. Jannat Bibi was got subjected to post-mortem examination, the appellant and his co-accused were arrested, a gun was recovered from the appellant's possession and upon completion of the investigation a challan was submitted before the learned trial Court.
4. At the commencement of the trial a charge with two heads under section 449, P.P.C. And 302/34, P.P.C. Was framed against the appellant and his two co-accused who pleaded not guilty to the same and claimed a trial.
5. During the trial the prosecution produced eleven witnesses in support of its case against appellant and his co-accused. Mst. Rehmat Bibi complainant (P.W.7), Noor Muhammad (P.W.4) and Umar Hayat (P.W.5) furnished the ocular account of the incident in question and also deposed about the motive. Shakil Haider, FC (P.W.l) proved the recovery of a gun from the possession of Muhammad Khan appellant during the investigation of this case. The medical evidence was provided by Dr. Shaukat Ali Wahla (P.W.6). Nazar Muhammad, S.-I, the Investigating Officer, had died before holding of the trial and the steps taken by him during the investigation of this case were proved by Shaukat Ali, A.S-I. (P.W.8). The remaining evidence produced by the prosecution was more or less of formal nature. The learned trial Court summoned Muhammad Hanif Warraich, D.S.P, the other Investigating Officer, and recorded his statement as C.W.l.
6. In their statements recorded under section 342, Cr.P.C. Muhammad appellant and his co- accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Muhammad Khan appellant responded as follows:- ' Mst. Jannat Bibi the deceased was my legally wedded wife, who had valuable agricultural land property in her name. Mst. Jannat Bibi my wife (deceased) had a dispute over the agricultural land with Umar Hayat (P.W.5). In fact, it was an unseen occurrence which took place in the darkness of night. But as Umar Hayat had a dispute with my deceased wife Mst. Jannat Bibi deceased Umar Hayat P.W, who in order to save himself and on account of enmity with us connived with the complainant and involved me falsely in this case. The P.Ws. Are interested witnesses. I produce copy of Nikah Nama as Ex. DB."
' However, the appellant and his co-accused opted not to make any statement on oath under section 340(2), Cr.P.C. And they did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court acquitted Allah Ditta and Asghar Ali accused but, after finding the prosecution's case against Muhammad Khan appellant to have been proved beyond reasonable doubt, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected revision petition before this Court.
8. We have heard the learned counsel for the parties and have perused the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and thus, the appellant is entitled to be acquitted by extending the benefit of doubt to him. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, thus, his conviction recorded by the learned trial Court does not warrant any interference by this Court. The learned counsel for the complainant has gone on to submit that the reasons recorded by the learned trial Court for not awarding a sentence of death against Muhammad Khan appellant are not legally sustainable and, therefore, his sentence may be suitably enhanced. He has further maintained that although a charge had been framed against Muhammad Khan appellant for an offence under section 449, P.P.C. As well yet no reason had been recorded by the learned trial Court in its judgment for not convicting and sentencing Muhammad Khan appellant on the said count of the charge. Thus, according to the learned counsel for the complainant, Muhammad Khan appellant may be convicted and sentenced by this Court for an offence under section 449, P.P.C.
As well.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have observed that although the occurrence in this case had taken place at 1- 00 a.m. During a night yet it was quite conveniently possible for the complainant and the other eyewitnesses to identify Muhammad Khan appellant as he had been living at the dera of the complainant for the last about four years. The delay in lodging of the F.I.R. Stood adequately and satisfactorily been explained by Mst. Rehmat Bibi complainant as it had been mentioned in the F.I.R.
Itself that due to the occurrence having taken place at a night and the complainant being a female it was not conveniently possible for the complainant to leave for the police station soon after the occurrence and it was for those reasons that she had proceeded to the police station in the morning and had lodged the F.I.R. At 7-00 a.m. At the local police station situated seven kilometers away from the place of occurrence. We have found this explanation by the complainant to be quite understandable and reasonable.
10. The ocular account in this case was furnished by Mst. Rehmat Bibi complainant (P.W.7), Noor Muhammad (P.W.4) and Umar Hayat (P.W.5). Mst. Rehmat Bibi complainant was quite a natural witness of the occurrence as she was resident of the quarter where the occurrence had taken place and her presence and availability at the spot at 1-00 a.m. During the fateful night was nothing but natural and believable. Noor Muhammad (P.W.4) was not related to the complainant or the deceased and he used to live quite close by. His being attracted to the place of occurrence after hearing the hue and cry raised by the complainant and the victim and after hearing a fire- report was quite acceptable. He had absolutely no reason to falsely implicate Muhammad Khan appellant in a case of this nature. Umar Hayat (P.W.5) had an interest adverse to the complainant and Mst. Jannat Bibi deceased as admittedly there was litigation pending at the relevant time between him and the complainant and the deceased over an issue of inheritance. He had, therefore, no earthly reason to falsely depose against Muhammad Khan appellant by siding with Mst. Rehmat Bibi complainant. The reasons for the presence of Noor Muhammad (P.W.4) and Umar Hayat (P.W.5) near the place of occurrence at the relevant time had never been seriously questioned by the defence before the learned trial Court. It may be true that Mst. Rehmat Bibi complainant (P.W.7) has been attributed a sentence during her cross-examination that Noor Muhammad (P.W.4) and Umar Hayat (P.W.5) had come to the spot after about one hour of the firing by Muhammad Khan appellant but we have felt that even if the said two witnesses are taken out of consideration still the solitary statement made by Mst. Rehmat Bibi complainant (P.W.7) regarding the allegation against Muhammad Khan appellant can by itself suffice to hold the appellant guilty of the alleged murder, because she was not only a most natural witness but she had also found corroboration and support from the evidence of motive and the medical evidence.
11. The motive set up by the prosecution had sufficiently been established before the learned trial Court inasmuch as Mst. Rehmat Bibi complainant (P.W.7), Noor Muhammad (P.W.4) and Umar Hayat (P.W.5) had all consistently deposed about the fact that Mst. Rehmat Bibi complainant and Mst. Jannat Bibi deceased owned 110 acres of agricultural land and Muhammad Khan appellant and his brother namely Allah Ditta accused were their tenants who had not only be ousted from that land and dera 7/8 days prior to the present occurrence but also one day prior to the said incident. Such eviction of Muhammad Khan appellant had surely provided sufficient motive to him to cause harm to the complainant party. It is important to mention here that the statements made by the above mentioned prosecution witnesses regarding that motive had not been questioned by the defence at C all during the cross-examination of those witnesses. Apart from that the appellant's own defence taken through his statement recorded under section 342, Cr.P.C. And suggested through various suggestions put to the above mentioned witnesses during their cross- examination by itself indicated that Muhammad Khan appellant used to claim that Mst. Jannat Bibi deceased had contracted marriage with him but she was not agreeable to go and live with him as his wife. This by itself provided a motive to Muhammad Khan appellant to resort to violence against Mst. Jannat Bibi deceased. In this view of the matter Muhammad Khan appellant surely had a motive against Mst. Jannat Bibi deceased and the motive provided sufficient corroboration to the ocular account.
12. The recovery of a gun from the appellant's possession during the investigation of this case was legally inconsequential as no crime-empty had been recovered from the place of occurrence so as to connect the recovered gun with the alleged offence. However, the medical evidence had provided full support to the ocular account furnished by the prosecution inasmuch as the date and time of occurrence, the weapon used for commission of the offence and the locale of the injuries sustained by the deceased stated by the eyewitnesses were all confirmed by the medical evidence.
13. The defence taken by Muhammad Khan appellant through his statement recorded under section 342, Cr.P.C. And through different suggestions made to the eyewitnesses during their cross- examination pertaining to a marriage allegedly contracted by Mst. Jannat Bibi deceased with the appellant is hardly relevant to the question of the appellant's guilt as the appellant had no legal justification for killing Mst. Jannat Bibi deceased if she was unwilling to join him in his matrimonial fold.
14. For what has been discussed above a conclusion is inescapable that the prosecution had succeeded in establishing the guilt of Muhammad Khan appellant beyond reasonable doubt vis-k- vis the murder of Mst. Jannat Bibi deceased and, thus, his conviction for an offence under section 302(b), P.P.C. Recorded by the learned trial Court has been found by us to be unassailable.
15. Adverting to the question of sentence passed by the learned trial Court against Muhammad Khan appellant and Criminal Revision No, 207 of 2000 preferred before this Court by Mst. Rehmat Bibi complainant in that regard we have found that the reasons recorded by the learned trial Court for withholding the sentence of death from the appellant were superficial and unacceptable. In that context the learned trial Court had observed that the appellant was a "previous non-convict and an aged man of 50 years" and, therefore, he was entitled to a lenient treatment in the matter of his sentence. Upon a close scrutiny of the evidence available on the record we have, however, found many other reasons to be available which could have legitimately been referred to by the learned trial Court qua mitigation of the appellant's sentence. In this context we have observed that the conduct of Mst. Jannat Bibi deceased had been quite frustrating vis-k-vis the appellant inasmuch as within a span of eight days prior to the present occurrence she had turned the appellant and her brother namely Allah Ditta accused out of the land under their tenancy, had allowed them to repossess that land and had turned them out again. The question of the claimed marriage between the appellant and Mst. Jannat Bibi deceased based upon a Nikahnama (Exh- DB) was also not free from doubt and Muhammad Hanif Warraich, D.S.P. (C.W.l) had stated before the learned trial Court that during his investigation of this case it had transpired that Mst. Jannat Bibi deceased and Muhammad Khan appellant had illicit relations with each other and they had secretly performed Nikah. The denial of such Nikah by Mst. Jannat Bibi deceased coupled with the appellant's physical eviction from the relevant land/dera must have added to the appellant's frustration. Even in that backdrop of frustration the F.I.R. Itself shows that the appellant had no initial intention to kill Mst. Jannat Bibi deceased and it was only after her refusal to go with the appellant and upon a command by the appellant's elder brother to shoot the deceased that the appellant had loaded his gun and had fired a shot at the deceased at the spot. He had, thus, acted under the command of his elder brother and had not repeated his fire despite availability of an opportunity in that regard. While considering the question regarding enhancement of the appellant's sentence we are also mindful of the fact that the occurrence in this case had taken place in the year 1994 and almost a decade has passed ever since. Enhancing the appellant's sentence from a sentence of imprisonment for life to a sentence of death at such late stage has been found by us, while keeping all the other above mentioned 1 considerations in mind, to be unwarranted at this stage.
We have, however, found that the amount of compensation ordered by the learned trial Court to be paid by the appellant to the heirs of Mst. Jannat Bibi deceased is quite inadequate and, therefore, we enhance the amount of compensation payable by the appellant to the heirs of the deceased from Rs, 30,000 to Rs, 1,00,0000 (Rupees one hundred thousand only). The remaining sentences passed by the learned trial Court against Muhammad Khan appellant are, however, upheld and maintained.
16. For the reasons recorded above Criminal Appeal No, 449 of 2000 filed by Muhammad Khan appellant is dismissed and Criminal Revision No, 207 of 2000 preferred by Mst. Rehmat Bibi complainant is partly allowed to the extent of enhancement of the amount of compensation payable by the appellant to the heirs of Mst. Jannat Bibi deceased as mentioned above. The above mentioned appeal and the connected revision petition are disposed of in these terms.
17. Before parting with this judgment we may add that although a charge had been framed against Muhammad Khan appellant by the learned trial Court in respect of an offence under section 449, P.P.C, as well yet the learned trial Court had not convicted the appellant on the said count of the charge. The complainant cannot seek conviction of the appellant on the said count of the charge through her revision petition as no appeal against acquittal of the appellant on the said count of the charge had been filed by the complainant.