Muhammad Ashraf Bhatti, J.--Appellant Ghulam Musta was tried by the learned Additional Sessions Judge, Bahawalpur in FIR No, 19 dated 2.2.1998, Police Station Head Rajkan, Bahawalpur under Section 302 PPC for committing Qatl-i-Amd of Maqsood M daughter of the complainant at 3.00 p.m. on 1.2.1998 within the area Chak No, 139/DB, District Bahawalpur.
2. After evaluating the evidence brought on record, the learnd Additional Sessions Judge, Bahawalpur vide his judgment date 23.6.2001 came to the conclusion that the prosecution has established case beyond reasonable doubt against the accused person and record his conviction under Section 302 PPC and sentenced to death with fix of Rs, 1,00,000/- out of which Rs, 50,000/- was directed to be paid to the legal, heirs of the deceased.
3. The FIR is based on the statement (Exh.PA) of Khuda Bakhsh, complainant who stated that he is resident of Goth Mehrab and cultivating the land in Chak No, 1/DNB belonging to one Ch. Khalid Pervez for the last 7/8 years. Further, disclosed that about 15/16 years back his daughter Mst. .Maqsood Mai was married to Zahoor Ahmed PW-2 his real nephew also residing near his dera.
According to him Ghulam Mustafa appellant presently residing at a distance of one square from his place in the same chak alongwith his brother Irshad Ahmed and `Behnoees' for the last three years, cultivating the land of Ch. Rasheed Ahmed and being from his (complainant) brathery was a frequent visitor to his dera. He had the desire to develop illicit relations with his daughter, Mst.
Maqsood Mai and used to cut jokes with her and Mst. Maqsood Mai had refrained him from doing so but he did not stop. Few days before the occurrence, Ghulam Miistafa again cut a joke with Mst.
Maqsood Mai and she told all about this to the complainant. Therefore, after this incident he alongwith Zahoor Ahmed had to restrain Ghulam Mustafa from visiting his Dera but he felt ill of it.
On 1.2.1998 at about 3.00 p.m. the complainant along with Maqsood Mai, Zahoor Ahmed and Mashooq Ahmed were coming back from Chak No, 139/DB after shopping and were still in the area of the same chak, Ghulam Mustafa appellant emerged from the nearby sugar-cane field armed with pistol. He raised Talkara' at Mst. Maqsood Mai that he will teach her lesson for making complaint to her father and then within their view he fired three shots upon Mst. Maqsood Mai, which hit her on the left side of her abdomen and left thigh. She fell down. The complainant Khuda Bakhsh stated that they tried to apprehend Ghula Mustafa but he managed to run away, brandishing his arm. Mst. Maqsood Mai was shifted to B.V. Hospital, Bahawalpur in injure condition where she was admitted in Surgical Ward. Thereafter, the matter was reported to the police. After usual investigation, challan was submitted by the local police to the learned trial Court where the appellant denied the charge framed against him and claimed trial.
4. Muhammad Ramzan, Inspector (PW-7) recorded the complainant (Exh.PA) and sent the same to the police station for registration of formal FIR Exh.PA/1). At the B.V. Hospital, Bahawalpu he recorded the statements of the PWs under Section 161 Cr.P.C. inspected the spot and prepared rough site- plan Exh.PJ of the occurrence. He took into possession three crime empties Exh.P1/1-3 vid recovery memo Exh.PC, collected blood-stained earth Exh.PB and the came back to B.V. Hospital to prepare injury statement Exh.PH of Mst Maqsood Mai. On 2.2.1998 he made application for recording he statement which the doctor refused on the ground that she was not able to record the statement.
After repeated efforts finally on 6.2.1998 Mst. Maqsood Mai got recorded her statement Exh.PL in the presence of Khalid Javed and Ghulam Sarwar, PWs which she thumb marked as a token of its correctness. On 13.2.1998 he arrested the appellant and on the same day he led to the recovery of Pistol P5 which was taken into custody vide recovery memo Exh.PE. All the recovery memos were attested by the PWs. A separate case under arms Ordinance was also got Registered against the appellant. The I.O. also recorded the statements of he recovery witnesses, prepared the site-plan of the place of recovery vide memo Exh.PM. On 15.2.1998 Manzoor Ahmed, (PW-3) produced he clothes of the deceased Mst. Maqsood Mai, Qameez P2, Shalwar P3 and Dupatta P4 vide recovery memo Exh.PD duly attested by the PWs.
5. On 1.3.1998 Maqsood Mai succumbed to the injuries in .V.Hospital, Bahawalpur. The I.O. prepared the inquest report Exh.PG) of the deceased. Thereafter he handed over the dead-body of Mst.
Maqsood Mai to Rasheed Ahmed, Constable-1201 for post-mortem xamination. On 2.3.1998 the said constable produced the last worn clothes of the deceased P6, Shalwar P7 and Dupatta P8 vide recovery Remo Exh.PN.
6. On 1.2.1998 (PW-5) Dr. Javed Akhtar, Medical Officer, .V.Hospital, Bahawalpur examined Maqsood Mai while he was brought Before him in injured condition and found the following injuries:--
(i) There was an oval shape wound 1 x 75 cm x blind deep on the anterior aspect of left hypochondrum . Margins of wound were inverted.
(ii) There was an oval shape wound 1,25 cm x 1 cm x blind deep, having averted margin on the posterior aspect right lumber area (exit wound).
(iii) There was an oval shape wound 1 cm x 0.75 cm x blind deep on the lateral aspect of left upper thigh, margins of the wound were inverted (entry wound). Advised X-Ray left thigh AP and lateral.
(iv) There was an oval shape wound 1.25 cm x 1 cm x blind deep on the middle aspect of left upper thigh. Advised X-Ray left thigh AP and lateral.
(v) There was oval shape wound 1 cm x 0.75 cm x blind deep on the middle aspect of right upper thigh. Margins of wound were inverted, (entry wound).
(vi) There was a lacerated wound 1.5 cm x 1 cm x blind deep on the lateral aspect of right thigh.
Advised X-Ray thigh AP and lateral. opined that Injury No, 1 might be dangerous for life. All injuries the kept under observation for X- Rays and surgical notes and were seed by fire-arm weapon within a duration of 6 hours. Patient was mitted in Surgical Ward No,
2. Exh.PH is the correct carbon copy of medico legal report whereas Exh.PH/1 is the injury statement bears signatures.
After the death of Mst. Maqsood Mai on 2.3.1998 Dr. Tasneem hmood, PW-4 conducted the post- mortem examination of the dead-y and observed the following injuries:--
(i) There is surgical incision in midline measured 23 cm x 2 cm extending epigastrium to mid of abdomen. Wound was in hearing phase in lower part and gaping in upper end closed by stitches in lower part.
(ii) There was an oval shape wound measured 1cm x 1.5 cm in left lateral lower part of chest.
Wound was healing phase.
(iii) There was surgical stitched wound 21cm crossed by stitches on outer and middle of right upper thigh in healing process.
(iv) There was gaped wound crossed by stitches 10cm x 5cm on outer aspect of left thigh.
(v) There was wound 3 cm x 1 cm middle of buttock wound was in healing phase.
(vi) Small oval shape wound in 1cm x 0.5 cm in left phpochondirum.
(vii) There was oval shape healed stab wound on back of right lumber area. On dissection of abdomen, left kidney and left spleen was absent as result of surgical procedure. Absence present in wound area utrous normal size. after thorough external and internal post-mortem examination, he fined that Injury No, 6. and Injury No, 7 causing injury to left kidney and spleen small and large but leading to haemmorhage and spticemia ding to coma and death are sufficient to cause death in ordinary curse of life. Injury No, 1, Injury No, 3 and Injury No, 4 are result of surgical procedure. He further opined that the probable time that pseud between injuries and death was more than two weeks and less an five weeks and between death and post-mortem examination was ore than 12 hours and less than 24 hours. Exh.PF and Exh.PF/1 is the erect carbon copy, of MLR and diagram of injuries respectively which are his signatures.
7. The ocular account in this case was furnished by PW-1 Khuda Bakhsh, complainant, and PW-2 Zahoor Ahmed who fully corroborated the contents of the FIR (Exh.PA/1) in consonance with med evidence. Dr. Javed Akhtar, PW-5 and Doctor Tasneem Mehmood, P provided the medical evidence, mentioned above. PW-3 Manzoor Alim and PW-7 Muhammad Ramzan, Inspector/I.O. are the recover witnesses. The remaining witnesses are more or less of formal not and need not to be mentioned. After tendering report of Chemi Examiner Exh.PO, report of Forensic Science Laboratory Exh.PQ that of Serologist Exh.PP the prosecution closed its evidence.
8. The appellant was examined under Section 342 Cr.P.C. denied the factum of having committed' the offence under reference. neither produced evidence in his defence nor recorded his statement oath in terms of Section 340(2) Cr.P.C. in dis-proof of the allegati against him.
9. Being aggrieved of the afore mentioned judgment of learned trial Court the appellant has challenged his conviction sentence through this criminal appeal. Along with the criminal appeal hand, the learned trial Court has also sent a Murder Reference No, 3 2001 for confirmation of death sentence awarded to Ghulam Mus appellant which are now proposed to be disposed of by this common judgment.
10. We have heard the learned counsel for the appellant as was the learned Additional Prosecutor General appearing for the State the light of motive as set up by the prosecution, ocular account a medical evidence furnished, recoveries effected by the prosecution a then sentence passed on the basis thereof by the learned trial Court.
11. The motive behind the occurrence as spelled out from the prosecution case is that the appellant used to tease Mst. Maqsood Mst deceased and wanted to develop illicit relations with her. She had be tolerating for some time the unscrupulous attitude of the appellant a when failed to refrain him from doing so and was met with the same treatment few days before the occurrence she was forced to disclose t whole story to the complainant. Therefore, the complainant and Zahoor Ahmed, husband of the deceased stopped the appellant to visit the Dera any more in future. This developed grudge in his mind as to we the deceased had complained against him to her family members. T evidence brought to this effect by the prosecution during the course trial has not been shattered despite both the eye-witnesses i,e, Khuda Bakhsh, complainant/PW-1 and Zahoor Ahmed, PW-2 were subjected lengthy cross-examination. Perusal of the judgment of the learned to Court also makes us to believe that the learned trial Court had ye appropriately appreciated the evidence of the prosecution to this effect So, therefore, immediate cause for the occurrence was the direct result the jokes cut by the appellant with the deceased few days before the Clarence.
The learned trial Court rightly concluded that the plainant and Zahoor Ahmed, PW-2 could not have gone so far to set false motive against the appellant that could destroy their family bur.
12. Similar is the case of ocular account. Both the aforesaid PWs been consistent throughout the trial as to the material details of the elocution story directly connecting the appellant with the commission fence of causing fire-arm injuries at the person of the deceased with stool. They have statements quite in line with the statements given the doctors i,e, PW-4 and PW-5 as to the seats of injuries and the festive fire shots caused by the appellant while coming out of the cane field in their view. By their statements the said PWs have published the time of occurrence, place of occurrence, the manner in h the injuries were caused by the appellant' together with the nation of the state of health of the deceased right from the receipt injuries upto her death that occurred after about one month, in the tall. The learned counsel for the appellant, however, has pointed out discrepancies such as that PW-1 Khuda Bakhsh, complainant that the appellant's face was muffled, but if this statement is as a whole with that of the statement of Zahoor Ahmed, PW-2 it is case of mistaken identity of the appellant who belongs to their area as well known to them and also a frequent visitor to their dera occurrence also took place in a broad day light in their view and so refit of any kind of doubt, whatsoever, as to muffling the face can ended to the appellant. Another effort has been made by the end counsel for the appellant that the position of the deceased viz-ae eye- witnesses PW-8 and PW-10 allegedly by the prosecution doubt to the effect that the occurrence could not take place in the were it has been suggested. Indeed the eye-witnesses have very toy and in unequivocally terms described the occurrence. According m when they were coming together the deceased was walking of them at some distance when suddenly the appellant came out of end of sugarcane under cultivation by the complainant and then in view in few seconds he made repeated fires on the left lower of en and both thighs of the decease and then fled away.
Learned for the appellant has also made mention of the statement of r Ahmed, PW-2 that the deceased became unconscious after the, fence. It is also no help to the appellant because it may be possible or receiving injuries she might have been gone un-conscious for time but the fact of the matter is that when she was taken to the talk, she was in senses and the doctor who examined her and issued has confirmed it.
13. So, therefore, we brush aside the small discrepancies as d out above in the presence of strong, confidence inspiring, natural consistent and un-shaken ocular account provided by PW-1 Bakhsh, complainant and PW-2 Zahoor Ahmed fully corroborates medical evidence and other circumstantial evidence like recovery empties from the place of incident and recovery of pistol at pointation of the appellant and sent to the Forensic Science Labora with confirmation report as to existence of similarities with the empties. Therefore, in the absence of any previous enmity between parties no evidence can be given to the statement of the appeal recorded under Section 342 Cr.P.C. that he was falsely involved in case. So, therefore, the learned trial Court rightly believed the of account.
14. In view of the above discussion, we hold that the prosecution has established motive, proved recoveries and furnished ocular act in line with medical evidence, which is reliable and confidence inspire and so proved its case against the appellant beyond any reason doubt.
15. As far as the punishment awarded by the learned trial is concerned we are in agreement with the learned counsel for appellant to effort that in view of the peculiar facts and circumstance the case it did not warrant extreme penalty of death. He has refer the statement of both the doctors (PW-4 & PW-5) to indicate that In No,-1 described by Dr. Javed Akhtar, PW-5 which is in fact Injury, as described by Dr. Tasneem Mehmood, PW-4 during the course of mortem examination, was considered at the time of MLR to dangerous to life. Mst. Maqsood Mai, deceased was taken to the hos where she was given immediate medical aid, necessary sure procedure was adopted and X- Rays taken. Injury No, 7 shown by Tasneem Mehmood, PW-4 is the surgical wound whereas Injuries No, 4 and 6 are exit wounds. Injuries No, 3 and 5 were caused at thighs so practically it was Injury No, 1 (which was reflected as Injury No, the post-mortem examination which mainly became the cause of Even if Injury No, 7 is considered to be one of the cause of death the remains that after surgical procedure the said injury was partly he like other ones but had become septicemia leading to the influence when the deceased remained under treatment for about a month the reason to believe that the said injury caused at the hands of appellant may not be direct result of her death.
16.From the cumulative effect of the above circumstances o case we gather that although the appellant knew that the injuries going to cause upon the body of the deceased were likely to cause d: but nature of the wounds that developed later on after treatment made us to understand that in the intervening period of causing injury and till the death of the deceased when the wounds have gone septic punishment extreme penalty (u/S. 302 PPC) of death was warranted. We feel that in the above facts and circumstances it is a case where conviction has to be recorded under Section 324 PPC. Accordingly, we convict the accused appellant under Section 324 PPC while forming this opinion, we are fortified by judgment of the apex Court. Muhammad Rahim Vs Kajeer Ullah and another (1969 PCr.LJ 18), wherein as the medical evidence was not clear whether death caused by peritonitis resulting from wound, conviction was altered from Section 302 PPC to Section 324 PPC Resultantly, while convicting the accused-appellant under Section 324 PPC, we sentence him to imprisonment for ten years R.I, with payment of Arsh (one third of the Diyat as envisaged u/S. 337-D PPC) to be paid to the legal heirs of the deceased.
17. The Murder Reference No, 38 of 2001 is answered in the negative and the death sentence awarded to the appellant is NOT CONFIRMED.