' NISAR MUHAMMAD SHAIKH, J.---This Criminal Appeal is directed against judgment dated 22-4- 2006 passed by IInd Additional Sessions Judge, Mirpurkhas in S.C. No,189 of 2000, under section 302, P.P.C. (Crime No,45 of 2000 of Police Station Dilber Khan Mehar), whereby he convicted the appellant Bilawal under section 302(b), P.P.C. And sentenced him to imprisonment for life. He was however, given the benefit of section 382-B, Cr.P.C.
2. The relevant facts of the case, briefly stated, are that on 15-11-2000 at 8-45 p.m., the complainant Saeedullah lodged F.I.R. Stating therein that the accused Bilawal was married to the daughter of one Gulsher who was son . Of deceased Mst. Qazbano and this deceased/victim Mst. Qazbanao was the aunt/Massi of the complainant. It was alleged that the accused Bilawal who was living in the house of deceased Mst. Qazbano, was not doing any job therefore, Mst. Qazbano used to quarrel with him daily. On the day of incident i.e, 15-11-2000, the complainant was available at his house where P.W. Qurban Ali came and informed him that Mst.Qa2bano quarrelled with accused Bilawal for his job therefore accused was annoyed and at about 8-00 p.m. He came duly armed with a hatchet and caused hatchet blows to Mst. Qazbano at her head, face and abdomen who therefore, fell down and died at the spot. After receiving this information the complainant lodged such F.I.R. With police who arrested the accused on 16-11-2000 and after completing investigation challaned him to face trial in the above case.
3. The accused pleaded not guilty to the charge framed by the trial Court, where the prosecution examined the P.W. Saeedullah being the complainant of this case, P.Ws. Qurban Ali, Asghar Ali and Sardar Ali as eye-witnesses of the incident, P.W. Ali Sher who acted as mashir, P.W. Dr. Qamar-un- Nisa, who conducted post mortem examination and P.W. Inspector Zawar Hussain Shah, who conducted the investigation of the case. They also produced the relevant documents during their evidence. After hearing the parties, the learned trial Court awarded the conviction and sentence to the accused as mentioned above, which have been impugned in the present appeal.
4. I have heard learned counsel for the appellant and learned A.P.-G. Sindh for the State and also perused the relevant record.
5. The learned counsel for the appellant argued that actually none of the alleged eye-witnesses had witnessed the alleged incident but the prosecution has examined three P.Ws. Namely Qurban Ali, Sardar Ali and Asghar Ali to be the eye-witnesses of the alleged incident. To support her contention, she referred the relevant piece of the evidence of these three P.Ws. As under:-- ' The P.W Qurban Ali deposed in his examination-in-chief that; "On her cries, we rushed to the house of Mst.Qazbano. After causing hatchet injuries to Mst.
Qazbano, the accused fled away. Thereafter, I and above said P.Ws. And other villagers entered the house of Mst.Qazbano and found that Mst. Qazbano had died."
' In his cross-examination, the said P.W. Further deposed that; "At the time when the accused entered the house of Mst.Qazbano, we all the four witnesses were standing at a distance of 20 to 25 feet away from the house of Mst.Qazbano."
' Whereas the P.W. Asghar Ali deposed in his examination-in-chief that; ' We heard cries of Mst.Qazbano and we entered the house along with other P.Ws./people of village and Mst.Qazbano died within our sight. Accused caused injuries to her. When we entered the house the accused had fled away. Thereafter P.Ws. Qurban Ali informed the complainant Saeedullah about the incident."
' While P.W Sardar Ali deposed during his examination-in-chief that; "Accused Bilawal caused hatchet blows to Mst.Qazbano, we went running there on cries of Mst.Qazbano. Mst.Qazbano was lying on the ground and blood was oozing from the injuries.
Thereafter, Qurban Ali narrated the facts with Saeedullah Brohi, who reported the matter with police."
6. Learned counsel for the appellant submitted that though the name of P.W. Asghar Ali was not cited as eye-witness in the very F.I.R. Yet he as well as. P.Ws. Qurban Ali and Sardar Ali whose names were shown in the F.I.R, were examined as eye-witnesses of the alleged incident while the fourth witness namely Shahzad who was also claimed by the prosecution to be an eye-witness could not be examined due to his death, however, the evidence of these P.Ws. Very clearly suggests that there was no ocular evidence as none of them had witnessed incident, whereas the complainant had admittedly not seen the alleged incident. In addition to above, the learned counsel also pointed out that the main P.W. Qurban Ali in his 164, Cr.P.C. Statement, which he produced during his evidence, had very clearly stated before the Magistrate that he had not seen with his own eyes the accused committing murder of the deceased. Learned co.Insel further argued that it is very surprising that none of the inmates of the house of deceased Mst. Qazbano was examined by the prosecution nor the names of such ladies were cited as P.Ws. Therefore, this fact also falsifies the alleged ocular evidence as set up by the prosecution. In this connection, she also drawn my attention to the evidence of P.W. Sardar Ali who deposed during his cross-examination as under:- "Complainant Saeedullah brought the police at the place of wardat. Police reached there along with complainant at 9-00 p.m. So many other villagers also gathered there. Police did not examine from the villagers. In the house of deceased Mst.Qazbano, the accused and other ladies namely Mst.Sain, Mst.Gori, Mst.Bhen, the son of Gulsher namely Jabbar are residing there so also the daughters of Gulsher. The above persons were available in the house of Mst.Qazbano deceased.
Police did not inquire from the ladies, who were available in the house of the deceased."
7. It is further argued by the learned counsel for the appellant that the medical evidence is also in conflict with the alleged ocular evidence which is falsified by the medical evidence as the very F.I.R.
As well as the evidence of complainant and P.Ws. Shows that the deceased Mst.Qazbano died at the spot just after the alleged incident but the Medical Officer Dr.Qamar-un-Nisa has very clearly deposed that the duration in between the injuries and death was about one hour, and this by itself indicates that none of the P.Ws. Or any other male member was present in the house of deceased at the time of incident so as to take the injured Mst.Qazbano to the Hospital and it was therefore, she succumbed to the injuries when she could not be saved by shifting her to the Hospital for immediate treatment.
8. Apart from above, the learned counsel for the appellant lastly submitted that although the case of the appellant could be considered on merits for his acquittal, yet the appellant does not press this appeal on merits with a request that his conviction and sentence may be altered and reduced in view of the attending circumstances of this case. In this connection, she also submits that it is the case of prosecution itself that the deceased Mst.Qazbano used to quarrel with the appellant daily, taunting him that he was jobless and this frequent and repeated taunting might have frustrated the appellant who, with such agony and upset condition, was gravely provocated with the result he lost his self control and allegedly inflicted repeated hatchet blows being out of control because of the grave provocation. The learned counsel for the appellant therefore, submitted that the appellant is a first offender having been involved in this case when he was a young of about 24/25 years of age and he has also completed his sentence of more than 16 years with remissions therefore, his remaining sentence of about 8 years is liable to be reduced in circumstances of the case when the offence if any, was also falling under section 302(c), P.P.C. .As according to the injunction of Islam the punishment of Qisas was not applicable in the present case.
9. On the other hand, the learned A.P.-G. Sindh appearing for the State opposed the above contentions submitting further that the impugned judgment calls for no interference as the case of prosecution was corroborated by the ocular, medical and circumstantial evidence therefore, the appellant is not entitled for any relief and his appeal is liable to be dismissed.
10. I have considered the above submissions and also perused the relevant record which reveals that no serious type of enmity was alleged in this case and the motive of crime, as appears from the F.I.R. As well as evidence of complainant party, itself suggests that there was a provocative occurrence on account of losing the power of self control by the appellant which also appears from the attending circumstances of. The case as well as the material available on record. It is an admitted position that the complainant, private P. Ws. As well as the deceased and the appellant are all related to each other and no other enmity is alleged or has come on record except the defense version in which the accused/appellant had shown some enmity between the parties for his false implication in the case. But, the facts and circumstances of the case and the material available on record of this case, no doubt, furnishes some reasons and grounds for taking lenient view for the appellant in spite of the fact that he was already awarded lesser punishment. Since the appellant is the first offender and he was a young man of about 24/25 years at the time of alleged incident and no sort of benefit appears to have gained by the appellant in committing the alleged offence therefore, looking to the facts and circumstances of this case I find that the appellant deserves some more concession and leniency in the interest of justice.
11. In view of the above, the conviction awarded to the appellant is altered/converted from section 302(b), P.P.C. To section 302(c), P.P.C. And the sentence of life imprisonment awarded to him by the trial Court is reduced to one already undergone by him consequently, he shall be released forthwith, if he is not, required in any other case.
12. With the above modification in the conviction and sentence, the present Appeal is hereby dismissed.