' MUHAMMAD ASHRAF BHA 'TI, J.---Appellant Ghulam Mustafa was tried by the learned Additional Sessions Judge, Bahawalpur in case F.I.R. No,19 dated 2-2-1998, Police Station Head Rajkan, Bahawalpur under section 302, P.P.C. For committing Qatl-i-Amd of Maqsood Mai, daughter of the complainant at 3-00 p.m. On 1-2-1998 within the area of Chak No,139/DB, District Bahawalpur.
2. After evaluating the evidence brought on record, the learned Additional Sessions Judge, Bahawalpur vide his judgment dated 23-6-2001 came to the conclusion that the prosecution has established its case beyond reasonable doubt against the accused person and recorded his conviction under section 302, P.P.C. And sentenced to death with fine 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 F.I.R. 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 P.W.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 along with 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 Mustafa again cut a joke with Mst.
Maqsood Mai and she told all about this to the complainant. Therefore, after this incident he along with 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 Ghulam Mustafa but he managed to run away, brandishing his arm.
Mst. Maqsood Mai was shifted to B.V. Hospital, Bahawalpur in injured 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 (P.W-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, Bahawalpur he recorded the statements of the P.Ws. 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 vide recovery memo Exh.PC, collected blood-stained earth Exh.PB and then 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 her 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, P.Ws 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 the recovery witnesses, prepared the site-plan of the place of recovery vide memo Exh.PM. On 15-2-1998 Manzoor Ahmed, (PW-3) produced the clothes of the deceased Mst. Maqsood Mai, Qameez P2, Shalwar P3 and Dupatta P4 vide recovery memo. Exh.PD duly attested by the P.Ws.
5. On 1-3-1998 Maqsood Mai succumbed to the injuries in B.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 examination. On 2-3-1998 the said constable produced the last worn clothes of the deceased P6, Shalwar P7 and Dupatta P8 vide recovery memo. Exh.PN.
6. On 1-2-1998 (PW-5) Dr. Javed Akhtar, Medical Officer, B.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 lx 75 c.m. x blind deep on the anterior aspect of left hypochondrum. Margins of wound were inverted.
(ii) There was an oval shape wound 1.25 c.m. 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 lcmx 0.75 c.m. 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 c.m. x 1 c.m. 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 c.m. x 0.75 c.m. 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 cm x blind deep on the lateral aspect of right thigh.
Advised X-Ray thigh AP and lateral.
' He opined that injury No,1 might be dangerous for life. All injuries were kept under observation for X-rays and surgical notes and were caused by fire-arm weapon within a duration of 6 hours.
Patient was admitted in Surgical Ward No,2. Exh.PH is the correct carbon copy of the medico legal report whereas Exh.PH/1 is the injury statement bears his signatures.
' After the death of Mst. Maqsood Mai on 2-3-1998 Dr. Tasneem Mehmood, P.W-4 conducted the post-mortem examination of the dead-body 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 healing phase in lower part and gaping in upper end closed by stitches in lower part.
(ii) There was an oval shape wound measured 1 c.m. x 1.5 cm in left lateral lower part of chest.
Wound was in healing phase.
(iii) There was surgical stitched wound 21 cm crossed by stitches on outer and middle of right upper thigh in healing process.
(iv) There was gaped wound crossed by stitches 10 cm x 5 cm 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 1 cm x 0.5 cm in left hypochondirum.
(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. Abscess present in wound area uterus normal size.
' After thorough external and internal post-mortem examination, he opined that Injury No,6 and Injury No,7 causing injury to left kidney and spleen small and large but leading to haemmorhage and spticemia leading to coma and death are sufficient to cause death in ordinary course 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 elapsed between injuries and death was more than two weeks and less than five weeks and between death and post-mortem examination was more than 12 hours and less than 24 hours. Exh.PF and Exh.PF/1 is the correct carbon copy of MLR and diagram of injuries respectively which bear his signatures.
7. The ocular account in this case was furnished by P.W-1 Khuda Bakhsh, complainant, and P.W-2 Zahoor Ahmed who fully corroborated the contents of the F.I.R. (Exh.PA/1) in consonance with medical evidence. Dr. Javed Akhtar, P.W.5 and Doctor Tasneem Mehmood, P.W.4 provided the medical evidence, mentioned above. P.W.3 Manzoor Ahmed and P.W.7 Muhammad Ramzan, Inspector/I.O. Are the recovery witnesses. The remaining witnesses are more or less of formal nature and need not to be mentioned. After tendering report of Chemical Examiner Exh.P0, report of Forensic Science Laboratory Exh.PQ and that of Serologist Exh.PP the prosecution closed its evidence.
8. The appellant was examined under section 342, Cr.P.C. Who denied the factum of having committed the offence under reference. He neither produced evidence in his defence nor recorded his statement on oath in terms of section 340(2), Cr.P.C. In dis-proof of the allegations against him.
9. Being aggrieved of the afore mentioned judgment of the learned trial court the appellant has challenged his conviction and sentence through this criminal appeal. Along with the criminal appeal in hand, the learned trial Court has also sent a Murder Reference No,38 of 2001 for confirmation of death sentence awarded to Ghulam Mustafa appellant which are now proposed to be disposed of by this common judgment.
10. We have heard the learned counsel for the appellant as well as the learned Additional Prosecutor General appearing for the State in the light of motive as set up by the prosecution, ocular account and medical evidence furnished, recoveries effected by the prosecution and 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 Mai, deceased and wanted to develop illicit relations with her. She had been tolerating for some time the unscrupulous attitude of the appellant and 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 the whole story to the complainant. Therefore, the complainant and Zahoor Ahmed, husband of the deceased stopped the appellant to visit their Dera any more in future. This developed grudge in his mind as to why the deceased had complained against him to her family members. The evidence brought to this effect by the prosecution during the course of trial has not been shattered despite both the eye-witnesses i,e, Khuda Bakhsh, complamant/P.W.1 and Zahoor Ahmed, P.W.2 were subjected to lengthy cross-examination. Perusal of the judgment of the learned trial Court also makes us to believe that the learned trial court had very appropriately appreciated the evidence of the prosecution to this effect. So, therefore, immediate cause for the occurrence was the direct result of the jokes cut by the appellant with the deceased few days before the occurrence. The learned trial Court rightly concluded that the complainant and Zahoor Ahmed, P.W.2 could not have gone so far to set up a false motive against the appellant that could destroy their family honour.
12. Similar is the case of ocular account. Both the aforesaid P.Ws. Have been consistent throughout the trial as to the material details of the prosecution story directly connecting the appellant with the commission of offence of causing fire-arm injuries at the person of the deceased with his pistol. They have statements quite in line with the statements given by both the doctors i,e, P.W-4 and P.W-5 as to the seats of injuries and the successive fire shots caused by the appellant while coming out of the sugarcane field in their view. By their statements the said P.Ws. Have established the time of occurrence, place of occurrence, the manner in which the injuries were caused by the appellant together with the explanation of the state of health of the deceased right from the receipt of injuries upto her death that occurred after about one mouth, in the hospital. The learned counsel for the appellant, however, has pointed out small discrepancies such as that P.W-1 Khuda Bakhsh, complainant stated that the appellant's face was muffled, but if this statement is taken as a whole with that of the statement of Zahoor Ahmed, P.W-2 it is not a case of mistaken identity of the appellant who belongs to their area and was well known to them and also a frequent visitor to their dera. The occurrence also took place in a broad day light in their view and so no benefit of any kind of doubt, whatsoever, as to muffling the face can be extended to the appellant. Another effort has been made by the learned counsel for the appellant that the position of the deceased visa-vis the eye-witnesses P.W-8 and P.W-10 allegedly by the prosecution creates doubt to the effect that the occurrence could not take place in the manner it has been suggested. Indeed the eye- witnesses have very honestly and in unequivocally terms described the occurrence. According to them when they were coming together the deceased was walking ahead of them at some distance when suddenly the appellant came out of the field of sugarcane under cultivation by the complainant and then in their view in few seconds he made repeated fires on the left lower of abdomen and both thighs of the deceased and then fled away. Learned counsel for the appellant has also made mention of the statement of Zahoor Ahmed, P.W-2 that the deceased became unconscious after the occurrence. It is also no help to the appellant, because it may be possible that after receiving injuries she might have been gone un-conscious for some time but the fact of the matter is that when she was taken to the hospital, she was in senses and the doctor who examined her and issued MLR, has confirmed it.
13. So, therefore, we brush aside the small discrepancies as pointed out above in the presence of strong, confidence inspiring, natural consistent and un-shaken ocular account provided by PW-1 Khuda Bakhsh, complainant and P.W-2 Zahoor Ahmed fully corroborated by medical evidence and other circumstantial evidence like recovery of empties from the place of incident and recovery of pistol at the pointation of the appellant and sent to the Forensic Science Laboratory with confirmation report as to existence of similarities with the test empties. Therefore, in the absence of any previous enmity between the parties no evidence can be given to the statement of the appellant recorded under section 342, Cr.P.C. That he was falsely involved in this case. So, therefore, the learned trial court rightly believed the ocular account.
14. In view of the above discussion, we hold that the prosecution has established motive, proved recoveries and furnished ocular account D in line with medical evidence, which is reliable and confidence inspiring, and so proved its case against the appellant beyond any reasonable doubt.
15. As far as the punishment awarded by the learned trial Court is concerned we are in agreement with the learned counsel for the appellant to effort that in view of the peculiar facts and circumstances of the case it did not warrant extreme penalty of death. He has referred to the statement of both the doctors (P.W-4 & P.W-5) to indicate that Injury No,1 described by Dr. Javed Akhtar, P.W-5 which is in fact Injury No,6 as described by Dr. Tasneem Mehmood, PW-4 during the course of postmortem examination, was considered at the time of MLR to be dangerous to life. Mst.
Maqsood Mai, deceased was taken to the hospital where she was given immediate medical aid, necessary surgical procedure was adopted and K-Rays taken. Injury No,7 shown by Dr. Tasneem Mehmood, P.W-4 is the surgical wound whereas Injuries Nos.2, 4 and 6 are exit wounds. Injuries Nos.3 and 5 were caused at thighs and so practically it was Injury No,1 (which was reflected as Injury No,6) in the post-mortem examination which mainly became the cause of death. Even if Injury No, 7 is considered to be one of the cause of death the fact remains that after surgical procedure the said injury was partly healing like other ones but had become septicemia leading to the influence that when the deceased remained under treatment for about a month there is reason to believe that the said injury caused at the hands of the appellant may not be direct result of her death.
16. From the cumulative effect of the above circumstances of the case we gather that although the appellant knew that the injuries he is going to cause upon the body of the deceased were likely to cause death but nature of the wounds that developed later on after treatment has made us to understand that in the intervening period of causing injuries and till the death of the deceased when the wounds have gone septicemia punishment extreme penalty (under section 302, P.P.C.) of death was not warranted. We feel that in the above facts and circumstances it is a case where conviction has to be recorded under section 324, P.P.C. Accordingly, we convict the accused appellant under section 324, P.P.C. While forming this opinion, we are fortified by judgment of the apex Court Muhammad Rahim v. 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, P.P.C. To section 324, P.P.C. Resultantly, while convicting the accused- appellant under section 324, P.P.C we sentence him to imprisonment for ten years' R.I, with payment of Arsh (one third of the Diyat as envisaged under section 337-D, P.P.C.) 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.