Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 62 of 2004 filed by Muhammad Shafi appellant, who was convicted and sentenced by the learned Sessions Judge, Islamabad vide impugned judgment dated 30.06.2003 under Section 302(b) PPC, to Death and to pay a fine of Rs, 300,000/- (three lac only) or in default six months. RI in a case bearing F.I.R No, 357 dated 06.12.2002 offence under Section 302 P.P.C. at Police Station Margala, Islamabad. Murder Reference No 11 of 2009 for confirmation or otherwise of death sentence of the appellant shall also be 'disposed of through this single judgment.
2. Brief facts of the case as disclosed by Manzoor Hussain complainant are that on 06.12.2002, it was Eid day and at about 12 noon, he alongwith his sister's husband, namely Zulfiqar, went to the house of his sister Mst. Sukhan Bibi, who lived alongwith her husband Muhammad Shafi, in Quarter No, 15 Block No, 43, G-9/2 Islamabad. On a knock of the door, it was found closed and despite repeated knocks no body attended from inside the room and in the meanwhile, Sultan Muhammad, allottee of the said quarter arrived. On insisting of Sultan Muhammad and telling to Muhammad Shafi, who was otherwise not opening the door, that the complainant, the elder brother of Sukhan Bibi and the next also a relative had come to see him, ultimately, Muhammad Shafi opened the door and the complainant found that Mst. Sukhan Bibi, was lying dead in the room on the floor. The complainant also saw a ligature/dopatta around the neck of Mst. Sukhan Bibi, by which her neck had been strangulated. On his asking from Muhammad Shafi, as to what he had done, with Sukhan Bibi, he replied that he was sick/fed up with Mst. Sukhan,.therefore, he had done her to death, with her own Dopatta. According to the complainant, the accused confessed his guilt, in his presence, Sultan Muhammad allottee/owner of the quarter and Zulfiqar Ahmad, PWs.
3. Zulfiqar Ahmad S.I. who conducted the investigation has stated that on 06.12.2002, on receipt of the information reached at the spot, where the complainant made an oral statement Ex P.C, which he recorded into writing and sent the same to the Police Station for registration of case through Muhammad Awais ASI. He also prepared the inquest report of the dead body Ex P.H. He arrested the accused and on his disclosure recovered the crime weapon i,e, Dopatta P-1 vide recovery memo. Ex P.D. He prepared the site-plan without scale Ex P.K and inspected the spot. He recorded the statements of the P.Ws.
4. At the trial, the prosecution in order to prove its case produced nine witnesses in all, thereafter, learned D.A. after tendering in evidence the report of Chemical Examiner Ex.P.M., closed the prosecution case, then, the statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded false implication. However, after conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court.
5. It is contended by the learned counsel for the appellant that appellant has been falsely implicated in this case; that the eye-witnesses were not present at the spot and they are chance witnesses; that no weapon of offence i,e, Khanjar, Churri etc. has been used in the occurrence; that the appellant is behind the bars for the last eight years and that it is not a case of capital punishment and from perusal of the F.I.R, the case of lesser punishment is made out.
6. On the other hand, the learned counsel for the complainant assisted by the learned Standing Counsel submits that the appellant has committed the gruesome murder of his wife; that the ocular account is corroborated with the medical evidence and the case for lesser punishment is not made out.
7. We have heard the arguments of the learned counsel for the parties and have gone through the record.
8. The occurrence took place on 06.12.2002 at 12.00 noon on the day of Eid-ul-Fitr. The matter was reported to the police on the same day at 1.10 p.m. by the complainant Manzoor Hussain PW-4 real brother of Mst. Sukhan Bibi. The other two eye-witnesses are Sultan Muhammad PW-5 and Zulfiqar Ahmad PW-6. Dr. Nasir Naik Akhtar conducted the post-mortem examination of the deceased on 07.12.2002 and found the following injuries on her person:--
1. One external post-mortem examination, ligature mark just below the hyoid bone measuring 8 x 1 cm. with neck collar formed.
2. Scratches mark on the right side of angle of mandible.
3. Scratches mark on the left side of angle of mandible.
4. Scratches and abrasions on the medical aspect of both thighs.
On dissection of the neck, ligature on the middle of the neck just below the hyoid bone by which neck collar formed muscle of the neck were contused. There was a fracture of the greater corner of hyoid bone.
Larynx and trachea contains blood-stained forth. Tongue was protruded.
All other viscera were found healthy."
According to the opinion of the doctor, all the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature.
We are fully convinced that it was the appellant who had committed the murder of the deceased.
The only point, which is involved, in this case is that whether it is a case of capital punishment or A life imprisonment. In Section 302 (b) P.P.C., two sentences are mentioned i,e, death or life imprisonment. In the F.I.R lodged by the real brother of the deceased, it is clearly mentioned as under: {{URDU TEXT}} The occurrence took place on the day of Eid-ul-Fitr and no one can imagine to commit such act on the said day which was a day of celebration of Muslims. As the appellant was apprehended at the spot, so his statement was recorded by the police being his first version. In order to reach a just conclusion, we have gone through the same. In fact the deceased poor lady was already a divorced lady. The appellant was her first cousin. He married with her and there was a daughter of five years. Both the appellant and deceased lady always used to quarrel with each other. On the night of occurrence, she alongwith her husband went to purchase clothes and other articles of Eid- ul-Fitr. On their return in the late night, the appellant asked her wife to make food for him, on which quarrel had taken place but the owner of the house got the matter compromised. Thereafter, the appellant went in the morning to offer Eid-ul-Fitr prayer, when he came back, the deceased lady again started quarrelling with him and also abused the appellant, on which he became annoyed with her and with grave and sudden provocation he committed her murder. We are also of the considered opinion that the deceased used to fight with the appellant and, even on the day of occurrence, when the appellant came back after offering the prayer of Eid-ul-Fitr, again the quarrel took place. These are the mitigating circumstances, hence the case for capital punishment is not made out. In these circumstances, though we maintained the conviction. of the appellant under Section 302 (b) P.P.C. but convert the same into life imprisonment with the benefit of Section 382-B Cr.P.C. The compensation awarded by the learned trial Court, however, is upheld. The Criminal Appeal No, 62 of 2004 stands disposed of accordingly. Death sentence on is not confirmed. The Murder Reference is answered in Negative.