Muhammad Tariq AbbasiI:- This appeal is directed against the judgment dated 30.6.2005, passed by the learned Additional Sessions Judge, Rajanpur, whereby in case FIR No. 77, dated 9.3.2004, registered under section 302, PPC Police Station Fazal Pur, District Rajanpur, the appellant was convicted under section 302(b) PPC and sentenced to imprisonment for life alongwith compensation of Rs.1,00,000/- under section 544-A Cr.PC, payable to the legal heirs of the deceased, otherwise, to further undergo imprisonment for six months, with benefit of section 382-B Cr.PC.
2. The facts are that Ghulam Nazik complainant (PW-5) on 9.3.2004, had made a staternent/Fard- Bryan (Ex.PE), with the contention that he was resident of Saad Pur; about 10-years ago, marriage of his sister Mst. Sakina (deceased) was solemnized with Jind Wadda (appellant) under Watta Satta; out of the wedlock, there were four children of the deceased and the appellant; on previous evening, he alongwith his brother Muhammad Amin (PW-6) and one Abdul Karim (not examined) came at the house of deceased, had a meal and due to late hours did not return to his house, rather slept in a room of the house; his sister and the appellant alongwith children slept in another room; during late night on hearing alarm, made by Mst. Sakina (deceased) they came at the door of the room and in the light of lantern saw that the appellant, while armed with a pistol had caught hold of Mst. Sakina (deceased) from her hair and saying that as she had illicit relations, with one Perra, hence he would not leave her alive; the appellant with his pistol made a direct fire, which hit on mouth of Mst. Sakina and she fell down; they tried to catch hold of the appellant but he threatened that whosoever would come near, would also be killed and while waiving the pistol fled away; on hearing report of fire shot and alarm, the people of the locality arrived at the spot and when Mst. Sakina was attended found dead. The complainant further stated that the appellant had a suspicion that the deceased had illicit relations with one Perra, hence committed her murder.
3. On the basis of above said complaint, the case through FIR (Ex.PE/1) was registered and investigated. The appellant was found to be involved, hence challaned. Formal charge against him was framed on 21.12.2004, to which he pleaded not guilty and claimed the trial, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined as many as nine witnesses. Gist of the evidence led by the material witnesses was as under:- i) PW-2 Lady Dr. Zarina Aftab, had conducted post mortem examination of the dead body of Mst.
Sakina on 9.3.2004 when a fire shot injury on left side of her mouth was observed. She prepared the postmortem report (Ex. PA) and pictorial diagram (Ex.PA/1). According to her, the said injury was anti-mortem in nature and result of immediate death. ii) PW-5 Ghulam Nazik, complainant and an alleged eye witness, stated almost the same facts as were narrated by him in his above mentioned Fard Biyan (Ex.PE). iii) PW-6 Muhammad Amin, the brother of the complainant and the deceased, during examination in chief supported the version of the complainant (PW-5). iv) PW-7 Abdur Razak, Constable, had attested the memo (Ex.PK) through which pistol (P-6), got recovered by the appellant on .16.3.2004, was secured by the I.O. v) PW-9 Zulfiqar All SI, investigated the case, during which carried on the proceedings and prepared the documents fully described in his statement.
4. After examination of the prosecution witnesses, the reports of the Chemical Examiner, Serologist and Forensic Science Laboratory were tendered in evidence as Ex.PM, Ex.P11/1 and Ex.PN, respectively and the case for the prosecution was closed. Thereafter, the appellant was examined under section 342 Cr.PC, during which the questions arising out of the prosecution evidence were put to him and he denied all such questions. The questions "Why this case against you? And "Why the PWs have deposed against you?" were replied by him in the following words:- "At the time of occurrence I had seen my wife Mst. Sakina deceased in an objectionable position with Perra son of Nawaz Gopang. I murdered immediately my wife under the impulse of sudden and grave provocation. Perra son of Nawaz Gopang fled away from the spot taking the advantage of darkness. I myself went to the police station, and surrendered myself before the police alongwith the weapon of offence. The complainant with the connivance of the police falsely cooked up a story and involved me in this case only to take Chatti."
"The PWs are closely related to the deceased, so they have deposed falsely."
5. He opted to lead evidence in his defence but refused to make statement under section 340(2)
Cr.PC. In his defence, two persons namely Umar Wadda and Khalid Hussain had made statements as DW-1 & DW-2, respectively, whereby they deposed that on the night of occurrence, when the appellant saw his wife Mst. Sakina (deceased) in an objectionable position with one Perra, under a grave and sudden provocation made firing, which resulted into death of the lady and fleeing away of the above named person. After statements of above named DWs, the appellant had closed defence evidence. Finally, the learned trial court had passed the impugned judgment in the above mentioned terms. Hence, the appeal in hand.
6. The learned counsel for the appellant has argued that the appellant was innocent and falsely involved in the case, while concocting a false story and introducing false witnesses; neither the complainant (PW-5) nor Muhammad Amin (PW-6) was available at the spot or seen the alleged occurrence and they became false witnesses; the prosecution version was not at-all proved and established rather the stance taken by the appellant was substantiated, hence the charge against him was doubtful and as such he was entitled for acquittal.
7. On the other hand, the learned Deputy Prosecutor has vehemently opposed the appeal, while supporting the impugned judgment to be well reasoned and call of the day.
8. Arguments of both sides have been heard and the record has been perused.
9. There were two versions. One was of the prosecution that the appellant in presence of Ghulam Nazik (PW-5) and Muhammad Amin (PW-6) by firing, done his wife Mst. Sakina to death, while saying that she had illicit relations with one Perra. The other was of the appellant that during odd hours of the night when he saw his wife (deceased) in an objectionable condition with Perra, due to grave and sudden provocation fired at and done her to death, whereas Perra succeeded in fleeing away. Herein below, it would be seen that which of the above mentioned versions was correct.
10. The prosecution in support of its above said alleged version had got examined Ghulam Nazik complainant (PW-5) and Muhammad Amin (PW-6). It is important to note that both the above named PWs are real brothers inter-se and also of the deceased. As per complaint (Ex.PE) and their statements, one Abdul Karim had also accompanied them to the house of the deceased and saw the alleged occurrence but the said independent person was not got examined, rather given up, hence in view of Article 129(g) of the Qanun-eShahadat Order, 1984, an adverse inference would be drawn against the prosecution to the effect that if Abdul Karim (given up PW) would have been examined before the learned trial Court, his evidence would have been unfavourable to the prosecution. Reliance in this respect may be made to the case of Muhammad Rafique and others Versus The State and others (2010 SCM R 385).
11. Both the above named witnesses were not resident of the vicinity but belonging to a different area. They contended that their purpose of visit of the area of the village, where the deceased was married was that they had to obtain amount from one Tariq Hajam. The stance of Ghulam Nazik (PW-5) was that after receiving an amount of Rs.25,000/- from the above named person, he alongwith other PWs went to the house of the deceased. Whereas, the version of Muhammad Amin (PW-6) was that no amount was given by the above named person or received by them, rather a promise to make the payment on the next day was made by him, hence they went to house of the deceased. As per their alleged contention, their sister on receiving of the fire shot injury succumbed at the spot and they for whole of the night remained in the house and went to the police station on the following morning. The above mentioned alleged conduct of the above named witnesses, whereby their real sister was murdered and during whole of the night they remained satisfied and did not try to intimate anyone of the locality or the police and on the next day at about 10:30 a.m, intimated the police, had made their presence and availability, at the spot highly doubtful.
12. Not only the occurrence was reported by the above named real brothers of the deceased, to the police with the above mentioned alarming delay but the postmortem was conducted on 9.3.2004 at about 3:00 p.m. The said abnormal delay in postmortem examination was also an indication that the time was consumed by the police in procuring and planting eye witnesses and cooking up a story for prosecution, before preparing police papers, necessary for getting the postmortem examination of the dead body. In this regard, reference may be made to the case Irshad Ahmed Vs. The state (2011 SCM R 1190). From all the above mentioned, it is quite clear that the above named witnesses were not available at the spot and they after the occurrence while concocting a false story had come into picture.
13. Now the above mentioned defence version i.e. Taken by the appellant during statements of the prosecution witnesses as well as in his statement under section 342 Cr.PC and narrated by above named DWs is considered. In the above mentioned complaint (Ex.PE), it is categorically mentioned that the appellant was suspecting illicit relations of the deceased with one Perra. Not only in the said document the above mentioned was contended but the above named real brothers (PW-5 & PW-6) of the deceased, during their statements had also deposed that the appellant was suspecting their sister to be having illicit liaison with the above named person, hence clone to death. It has been observed that since the beginning stance of the appellant remained that the death of his wife at his hands was a result of sudden flare-up and provocation, when he saw her in an objectionable condition with Perra, who succeeded in fleeing away. The said stance of the appellant being not only taken during evidence of the prosecution witnesses but also in his statement under section 342 Cr.PC and further from the mouth of the above named DWs should not be ignored and thrown to winds. It has been observed that above mentioned stance of the appellant is plausible and nearer to reality. Under the law, it was the basic and primary duty of the prosecution to prove charge against the appellant beyond shadow of all reasonable doubts and subject to discharge of the said duty by the prosecution, the version of the appellant taken during statement under section 342 Cr.PC was to be considered and admitted or discarded as a whole. In this regard, I am fortified by the dictum laid down by the august Supreme Court of Pakistan in case Ashiq Hussain alias Muhammad Ashraf Versus The State (PLD 1994 Supreme Court 879), relevant para whereof reads as under:- "The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.PC., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C.
Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counterversions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
14. It was established on the record that death of the :ady at the hands of the appellant was a result of sudden flare-up and loss of temperament. In such like situation, the case of the appellant would fall under section 302(c) PPC, as held by the august Supreme Court of Pakistan in case All Muhammad Vs. All Muhammad another (PLD 1996 SC 274), relevant portion of which speaks as under:- "Fortunately for the development of the Islamic Penal Law, Shafiur Rehman, J. Was able, in Muhammad Hanif case, to discover the Qur'anic Provision in Verse 34 of Sura Al-Nisa and to enunciate the law that in such circumstances the offender has a right of self-defence which includes the right to defend the honour of his wife and that such a case falls under section 302, clause (c) of the PPC."
15. As a result of what has been discussed above, the conviction of the appellant is altered to Section 302(c) PPC and he is sentenced to RI for fifteen years. The amount of compensation and imprisonment in its default prescribed by the learned trial court is maintained and up-held. The appellant shall also be entitled for the benefit of section 382-B Cr.PC. The disposal of case property shall be as directed by the learned trial court. The appellant, by way of suspension of his sentence is on bail. It is directed that he be taken into custody and sent to the jail, to serve out remaining portion of his sentence. His bail bonds are discharged.
16. With the above mentioned modification, the appeal in hand is dismissed.