' Ashiq Irshad alias Maqsood was tried for the murder of Mst. Sakina and her daughter Mst. Bilqis and for having injured Mst. Hanifan. On 6-2-1980, he was convicted by the Additional Sessions Judge, Sahiwal, under section 302, P.P.C. On two counts and sentenced to life imprisonment on each count and Rs, 5,000 in default to undergo six months' R.I. On each count. The fine if realized, was ordered to be paid as compensation to the heirs of the deceased. He was also sentenced under section 324, P.P.C. For causing injuries to Mst. Hanifan and sentenced to one months' R.I. The appeal of the convict and the revision filed by the State for the enhancement of sentence are before me.
2. Appellant's sister Mst. Maqsoodan was abducted by Liaqat All son of Mst. Sakina (deceased). In order to avenge this insult, on 7-2-1977 the appellant armed with a dagger attacked Mst. Sakina Bibi, as she was coming from bazar after buying some medicines. Thereafter, he went inside her house. He wanted to attack Mst. Bilqis who scaled over the wall and went inside the house of Muhammad Sharif, Patwari, where the appellant waylaid her and inflicted injuries with the knife to Mst. Bilqis. Mst. Hanifan tried to intervene. She was also injured with the knife. Their alarm attracted Muhammad All and Muhammad Sabir husband of Mst. Bilqis. The accused threatened them with dire consequences and fled away with the knife. The incident was reported by Mst. Hanifan at Police Station Renala Khurd the same day at 11 a.m. Vide F.I.R. Exh. P.L. P.W.12 Ch. Fazal Muhammad, S.I. Reached the spot, collected the blood-stained earth from the two places. After preparing the necessary documents, he sent the dead body of Mst. Sakina for its post-mortem examination. Mst.
Bilqis was admitted to hospital.
3. P.W.8 Dr. Muhammad Athar, Medical Officer, Civil Hospital, Okara, at 1-10 p.m. On 17-2-1977 examined Mst. Bilqis and made the following observations:-
(1) A stab sharp wound 1-3/4" x 14" abdomen deep, coils of intestine with omentum was coming out of the wound on the left side of the abdomen 4" lateral to the umblicus with 14" below the lower costal margin.
(2) A stab sharp wound 1" x 3/4" x abdomen deep. Omentum was coming out of the wound on the right of the abdomen 3" above the umbilicus.
(3) A stab incised wound 1" x 4" x tail 1" x 4" deep on the right side of the abdomen 4" above the umbilicus 1" below the costal margin near the linear alba.
(4) An incised wound 4" x 1/6" x skin deep on the right side of the abdomen on the right costal lower ribs 2" lateral to the linear alba.
(5) A scratch 3/4" in length on the right side of abdomen 3/4" above injury No,3.
(6) An incised wound 1 1/4" xx 14" deep on the right side of the chest 1 1/2" below the sternal end of the clavical.
(7) An incised wound 1 1/2" x 3/4" x 1" deep on the back and lateral aspect of the right elbow joint.
(8) An incised wound 1 1/4" x 4" x 14" deep on the left deltiod muscle.
(9) An incised wound in an area of 2" x 14" x muscle deep on the top of the shoulder joint of left side.
(10) An incised wound 2" x 4" x muscle deep on the left side of the upper arm on the back and middle of it.
(11) An incised wound 1/2" x 1/4" x skin deep on the joint and lateral aspect of the forearm 1" above the right wrist joint.
(12) An incised wound 1" x 1/4x skin deep in between the thumb and the index finger of right hand.
(13) An incised wound 3/4" x 1/4" x muscle deep on the left cheek.
(14) An incised wound 4" x 1/4" x skin deep 4" above the injury No, 13.
(15) An incised wound 3" x 1" x depth cannot be ascertained on the right side of the back of the chest 7" below the upper margin of the chest and 3" lateral to vertebral column.
(16) An incised wound 11" x 1" x depth cannot be ascertained right axillary line 2" below the right axilla.
(17) An incised wound 2" x 1 1/2" x muscle deep on the lateral aspect of the left thigh 3" above the left knee joint.
(18) An incised wound 1" x 4" x skin deep on the foot of left thigh 3" above the left knee joint."
' In his opinion injuries Nos. 1 and 2 were grievous, injuries Nos. 6, 15 and 16 were kept under observation and the rest were declared simple caused by a sharp-edged weapon.
4. The same day at 4 p.m. Appellant Ashiq Irshad appeared before the Investigating Officer and produced the knife Exh. P.12 which was taken into possession vide memo. Exh. P.O. Attested by P.W. 11 Muhammad Ali and Sabir Ali (given up as having been won over). The S.I. Took into possession blood-stained shirt P.13 and Shalwar P.14 which were taken into possession vide memo. Exh. P.P.
Attested by the same aforementioned witnesses.
' P.W. 11 Dr. Shabbir Suleman, Medical Officer, Okara at 10-30 a.m. On 18-10-1977 held the autopsy on the dead body of Mst. Sakina and found the following injuries on her person.
(1) Incised wound 1 1/2" x 1/4" on the back of left chest about one inch lateral to verticle column horizontally.
(2) Incised wound 1/2" x 1/2" x skin on back of right chest.
(3) Incised wound 1" x 1/2" on right side of abdomen about 1 1/2" lateral to umbilicus.
(4) Incised wound 1 1/2x 4" oblique on left lateral side of chest about 8" below left anterior axillary line.
(5) Abrasion 4" x 1/2" on the left side of forehead.
(6) Abrasion 1" x 1" on the outer aspect of lower lid left eye.
(7) Incised wound 1" x 1/2" on the front and upper part of right leg.
(8) Incised wound 1" x 1/2" on the outer aspect of right leg about 2" below injury No, 7."
' Left lung was punctured. Eleventh rib, skin muscles, spleen and omentum were cut. The stomach contained fluid.
' In doctor's opinion, death was due to shock and haemorrhage caused by injuries Nos. 1 and 4 which were collectively sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within few minutes and between death and postmortem was about 24 hours.
5. On 17-2-1977 the A.S.I. Received information from the doctor for recording the statement of Mst.
Bilqis. The A.S.I. Reached the hospital and enquired from the doctor whether she was fit to make a statement. Since he replied in the affirmative, the A.S.I. Recorded her statement Exh. P.K. Which is the dying declaration in this case. Since Mst. Bilqis died latter information was sent to the police.
The Investigating Officer after preparing the necessary documents, sent the dead body for its post- mortem examination.
6. On 18-10-1977 at 11-45 a.m. P.W. 1 Dr. Shabbir Suleman, Medical Officer, Civil Hospital, Okara, held the autopsy on the dead body of Mst. Bilqis and noted the same injuries which he recorded before her death.
7. At the trial, the appellant denied the recovery of knife and his clothes but while explaining the case against him, he made the following statement:- "Mst. Sakina and Mst. Bilqis deceased were women of bad character. My sister Mst. Maqsoodan was got abuducted through Mst. Sakina and Bilqees deceased and handed over to Liaqat All brother of Bilqees deceased who was restored. Again my sister Mst. Maqsoodan was got abducted by Mst.
Sakina and Mst. Bilqees two days before the occurrence. On the day of occurrence on my asking the two deceased about my sister, they in a very taunting manner replied that they had gifted my sister to Liaqat Ali again by abducting her. On hearing these sarcastic remarks I lost my self control at the spur of the moment and out of sudden and grave provocation I injured them by ordinary knife used for domestic purpose. I appeared before the police voluntarily. The recovery of dagger and clothes are plantation and fabrication. I am innocent."
' He led no evidence in defence.
8. Trial Court did not accept the dying declaration for sound reasons. Disbelieving the plea of grave and sudden provocation, trial Court relied on the evidence of the two eye-witnesses and came to the conclusion that the appellant was not entitled to the benefit of Exception I to section 300, P.P.C.
Convicting him under section 302, P.P.C. It awarded the lesser penalty because the circumstances of the case involved family honour.
9. Learned counsel for the appellant contended that from the prosecution case itself, the defence plea was supported. He referred to the statement of the Investigating Officer who had admitted under cross-examination that both the deceased were of bad character and that after registering the F.I.R., it had come to his knowledge, that the deceased were responsible for the abduction of appellant's sister. Learned counsel for the appellant further contended that in the statement of Mst.
Hanifan, there is a material contradiction which supported the defence version i.e, in the F.I.R. The witness had stated that appellant's sister was abducted through Mst. Sakina and Mst. Bilqis which though she denied at the trial but was stated so by her in earlier statement. Learned counsel also referred to the dying declaration of Mst. Bilqis wherein the presence of Mst. Hanifan was not mentioned. Next contended that Mst. Sakina was said to have come from the bazar and had a bottle of medicine with her and the bottle had broken but the Investigating Officer did not take it into possession.
10. I have considered the discrepancies pointed out by the learned counsel for the appellant. To my mind, the sole question for determination would be whether it was a premeditated attack or the accused acted A under grave and sudden provocation. Prosecution relied on the evidence of P.W.
Mst. Hanifan, P.W. Muhammad All and the dying declaration Exh. P.K. P.W. 11 Muhammad Ali is said to have arrived at the spot on the alarm, to my mind, he could not have seen the entire occurrence.
Had he been there from the very beginning along with P.W. Sabir Ali who was given up as having been won over, then there was no person with them for not to have interfered at the very outset. It would not be wrong to infer that P.W. 11 Muhammad All was a stock witness of the police because when he was asked whether he appeared in a number of cases, the F.I.Rs, of which were put to him, he gave evasive reply by saying that he did not remember. He, however, did admit having appeared in two cases. P.W. Muhammad Sabir husband of Mst. Bilqis ought to have been produced but the prosecution gave him up as having been won over. Strangely enough, deceased's own husband did not support her. P.W.7 Nawab Din husband of Mst. Sakina and father of Mst. Bilqis was only produced for the identification of the dead body. These circumstances cto reflect adversely on the moral character of the two women and lend support to the defence allegation that the two deceased were women of easy virtue, therefore, the two men of the family have not come forward to give evidence in this case. As to whether the appellant had come prepared for an attack or acted under grave and sudden provocation is the question which is to be determined from the circumstances of this case. Evidence of P.W. 11 Muhammad All was not reliable for the reasons given earlier. As to the evidence of Mst. Hanifan a sister of Mst. Bilqis and daughter of Mst. Sakina (deceased) the solitary injury on her i.e, a scratch on her elbow is so trivial in nature that it could not be the result of an attack made by the appellant because the appellant was in a fit of frenzy, he would have caused much greater harm even if she was thrown. This was not all I find that Mst.
Hanifan was not named by the deceased in the dying declaration. This circumstance, also creates a doubt about her presence at the time of the occurrence. In any case she is an interested witness.
11. The dying declaration as observed earlier was rightly ruled out of consideration by the trial Court.
It was recorded at 2-10 p.m. And the opinion of the doctor was obtained at 2-20 p.m. i.e, after the dying declaration had been recorded. Whether she was in her senses before that and remained so throughout was a doubtful matter. Obviously, his opinion was not obtained before recording the dying declaration. Moreover, I find that the Investigating Officer deposed at the trial that he had received a written information from the Medical Officer, Civil Hospital for recording the dying declaration of Mst. Bilqis. Strangely enough, this writing is not produced and the doctor was not B asked a word about it. It is noteworthy that in the medico-legal report Exh. P.G. Of Mst. Bilqis after noting down eighteen injuries on different parts of her body, the doctor observed that her pulse was not countable, it was feeble. She was pale and restless. Her condition was very serious. The serious nature of injuries which she had suffered also made it doubtful whether she was in her senses. It may also be added here that in Exh. P.G., the doctor recorded that the injured had stated on oath that she had not got herself examined from any other doctor. Underneath this writing there is neither a signature nor thumb impression of Mst. Bilqis. It was thus doubtful whether she was in a fit state to make a statement. In any case, the dying declaration by an interested witness would require corroboration from an independent C source which there is none in this case. It was said to be a broad day-light occurrence. There were other people in the vicinity but none has appeared to support the prosecution case, so much so that even the husbands of the two women have not come forward. P.W. 11 Muhammad Ali who claimed to be a disinterested witness was suggested that he was carrying on with Mst. Sakina which of course he denied but this fact cannot be ignored that he was a stock witness of the police. I am not satisfied with the prosecution evidence. The appellant admitted having acted under grave and sudden provocation, I, therefore, accept his appeal to the extent that the conviction is altered from section 302, P.P.C. To section 304 Part I, P.P.C.
On both counts. Since presence of Mst. Hanifan was doubtful, therefore, conviction under section 324, P.P.C. Is set aside. The appellant remained in custody for over four years during trial and after conviction. Extending the benefit of section 382 (b), Cr.P.C. His sentence is reduced to a period already undergone by him. Since the appellant acted under grave and sudden provocation, his sentence of fine on two counts is remitted. The appellant was allowed bail during pendency of appeal, he shall be discharged of the bail bonds.