' Haji Shah and Muhammad Shah, the two brothers, have been convicted for the murder of Mst.Ghulam Sughra by Additional Sessions Judge, Dera Ghazi Khan, vide judgment dated 18-9-1979 and sentenced to imprisonment for life each. Neither any fine has been imposed on them nor compensation to the heirs of the deceased has been awarded under section 544-A, Cr.P.C.
2. The incident took place at Asar prayers' time on 17-11-1976 in village Rajanpur at a distance of 11/2 miles from the police station. The incident was reported by Ata Hussain (P.W.2), brother of Mst.Ghulam Sughra (deceased), at Police Station Rajanpur, the same day at 6-45 p.m. Vide F.I.R.
Exh.P.A., recorded by A .S.I. Muhammad Anwar (P.W.10). The occurrence was witnessed by Manzoor Hussain (P.W.3) besides the first informant Ata Hussain (P.W.2).
3. The prosecution story as narrated at the trial by Ata Hussain (P.W.2) is that Mst.Ghulam Sughra was married to Haji Shah, appellant on the condition that he would live as Khana-Damad with his in-laws. He accordingly lived with them for one year and thereafter he took his wife to this village in district Rahimyar Khan. The spouses lived there happily and were blessed with two children. About 3 months prior to the occurrence Mst. Ghulam Sughra deserted the appellant's house, and came to live with her parents. At that time, she was in advanced stage of pregnancy. About 8 days before the occurrence the appellant also joined her and they started living together. On the fateful day Haji Shah's brother Muhammad. Shah also came there. At Asar prayers' time Ata Hussain, complainant, was sowing some crop in the fields, when he heard shreiks emanating from his house. He rushed there and saw Haji Shah giving hatchet blows on the head of Mst.Ghulam Sughra and after she had fallen down Muhammad Shah gave her stick blows. Hearing alarm Manzoor Hussain and Allah Ditta P.Ws. Also came to the spot and witnessed the occurrence. They caught hold of both the assailants with their weapons and detained them in a room. Mst.Ghulam Sughra was removed in unconscious state to the hospital. Ata Hussain then reported the matter to police.
4. A .S.I. Muhammad Anwar (P.W.10) after registering the case left for the spot. On the way he visited Tehsil Headquarters Hospital, Rajanpur and made a query from the doctor if Mst.Ghulam Sughra was fit to make a statement. The doctor replied in the negative. He then left for the spot where Manzoor Hussain P.W. Produced before him blood-stained hatchet P.2 of Haji Shah and blood- stained Soti P.1 of Muhammad Shah which were taken into possession vide memo. Exh.P.D. And Exh.P.C. Respectively. He arrested both the appellants from the room where they were confined. He removed blood-stained Kurta P.3 from the person of Haji Shah and blood-stained Kurta P.4 from the person of Muhammad Shah and seized them under memos. Exhs.P.E. And P.F. Respectively. The A.S.1. Then handed over the case for further investigation to S.I.Shah Alam Khan Niazi (P.W.9).
5. Dr.Hasnain Pitafi (P.W.4) at 7-15 p.m. On 17-11-1976 examined Mst.Ghulam Sughra who was in unconscious state. Her respiration was laboured and she was restless. The doctor observed four injuries on her person. One of them was an incised wound on the head 6" x 1/2" x brain deep. Brain underneath the injury was cut and protruding out of the wound. The remaining three injuries were result of blunt weapon. One of them was a contused swelling 2" x 1/2 on left cheek just below left eye; the other was a contused swelling on the upper eye-lid of right eye and the third was a minor abrasion on both the knees which were of 2/3 hours duration. She was admitted in the hospital for treatment and information about her arrival there was given to the police. On 18-1.1-1976, she delivered a still born child and this fact too was communicated to the police. She died at 3-00 p.m.
On 26-11-1976. S.I.Shah Alam Niazi having learnt about her death reached the hospital, prepared her inquest report Exh.P.O. And sent the dead body for post-mortem examination.
6. Dr. Hasnain Pitafi on 26-11-1976 at 5-00 p.m. Conducted postmortem examination on her dead body. In the opinion of the doctor, all the injuries were ante-mortem, the head injury was fatal caused with sharp-edged weapon, her death occurred due to shock and haemorrhage produced by the head injury which was sufficient to cause her death in the ordinary course of nature. The doctor in cross-examination conceded that the contused swelling found on the cheek could be caused due to fall on hard substance and the injuries on the knees were possibly caused on account of struggle or due to fall on the ground. He, however, stated that he did not observe any semen stains on her clothes. He also admitted that he had not prepared her vaginal swabs.
7. At the trial the prosecution in order to prove its case examined 10 witnesses and mainly relied on the evidence of Ata Muhammad, the first informant (P.W.2) and Manzoor Hussain (P.W.3) who are eyewitnesses of occurrence. Both of them stated that they were busy working near the place of occurrence at Asar prayers' time. They heard shrieks emanating from the house. They went there running and saw Haji Shah and Muhammad Shah, appellants, giving blows with hatchet and stick respectively to Mst. Ghulam Sughra (deceased). The captured both the appellants with the help of Allah Ditta P.W.(not produced) and also snatched weapons from them and confined them in a Kotha. On arrival of the police the weapons of offence and the accused were produced before them. In cross-examination both the witnesses conceded that before the occurrene Haji Shah and his wife Mst. Ghulam Sughra were living happily in a separate Kotha given to them by the complainant. Ata Hussain P.W. Admitted that on the fateful day all his family members including ladies with the exception of the deceased had gone to the house of Abdullah Shah to enquire about the health of his wife and that when they left the house at noon time, both the appellants and the deceased were chatting in a happy mood. They admitted that Allah Ditta P.W. Lived about a square away from the place of occurrence and the rest of the Abadi of the village situates 2/3 squares away. Further conceded that till the arrival of police their womenfolk had not returned home. They denied the suggestion that on the day of occurrence Haji Shah appellant had gone to Rajanpur for purchasing sundry articles, who returned at Asar prayers' time and saw his wife Mst.
Ghulam Sughra (deceased) in compromising position with Manzoor Shah P.W. And by this sight Haji Shah lost self-control and killed Mst. Ghulam Sughra under grave and sudden provocation.
Manzoor Hussain (P.W.3) besides corroborating Ata Hussain P.W. Further added that in his presence the police had removed blood-stained shirts from the persons of the appellants and took them into possession. He also denied the suggestion that he had an affair with Mst. Ghulam Sughra or that at the fateful time he was seen with Mst. Ghulam Sughra flagrante delicto or that Haji Shah under the impulse of grave and sudden provocation had caused her death. He also denied that Muhammad Shah was falsely implicated because he is the brother of Haji Shah, appellant.
8. After the conclusion of prosecution evidence Muhammad Shah, appellant, when examined under section 342, Cr.P.C., denied his participation in the occurrence and stated that he has been implicated because he is brother of Haji Shah. Haji Shah, however, pleading sudden provocation made a detailed statement. In answer to question, why this case against you, he gave the following reply:- "I was leading a happy matrimonial life with my wife Mst. Sughra. On the day of occurrence my brother came at my house at noon time. I left him sleeping there and myself proceeded to purchase vegetables etc. From the town Incidentally on that day there was no one else at the Haveli except Manzoor P.W. As the women-folk had gone to attend an ailing relative of theirs. When I returned Isaw my wife missing from my house. I searched for her and when I passed in front of the house of Manzoor P.W. I went inside in order to enquire about my wife. To my surprise, I saw that my wife was in the sexual lap of Manzoor Shah. On seeing me, he ran away. I lost my self-control and under the heat of passion, I picked up Kulhari lying near the spot and injured her with its right and blunt side. On the alarm of Mst. Sughra my brother came there and he grappled with me and in that scuffle his shirt was torn and blood-stained. He then took me to the police station where I narrated the above-mentioned occurrence. The police came to the spot and with the collusion of complainant party they made the present case against me and my brother. My brother is totally innocent."
' No witness in defence was produced.
9. Learned trial Court on detailed analysis of the evidence on record believed the story narrated by the eye-witnesses and discarded the plea of grave and sudden provocation raised by Haji Shah and convicted both the appellants under section 302/34, P.P.C. And sentenced them as indicated above. Against this finding the appellants have filed the instant appeal.
10. Nobody appeared for the appellants despite notice. However, I have studied the record with the help of the learned State counsel.
11. As observed earlier, the prosecution mainly relies on the ocular trestimony furnished by Ata Hussain, real brother of the deceased and Manzoor Hussain, her cousin. The main question for determination in this case, therefore, is whether these two eye-witnesses can be safely relied upon in the circumstances of the case. It is in evidence that Haji Shah, appellant and his wife Mst.
Ghulam Sughra, deceased were leading a happy life. They lived together, firstly in Mst. Sughra's parents house land thereafter in appellant's village Neilgarh. They had two children. About 3 months before the occurrence, Mst. Ghulam Sughra came to her parents' house and sometime later Haji Shah also joined her and they started living in a separate Kotha in the Haveli where Ata Hussain, complainant, lived. On the fateful day all the family members of Ata Hussain P.W. Left the house at about noon time when both the appellants and the deceased were busy talking in a happy mood. There is nothing in evidence to show that the appellants had ever suspected the character of Mst. Ghulam Sughra. There did not exist any dispute whatsoever between the spouses and none of the witnesses has alleged any cause whatever for the attack on Mst. Ghulam Sughra by Haji Shah. Both the eye-witnesses stated that they went to the place of occurrence on hearing the cries of Mst. Ghulam Sughra and reaching there found the two appellants dealing blows with hatchet and stick to her. It means that they did not know what had transpired between them immediately prior to the occurrence. Important question to be determined in this case, therefore, is whether the eye-witnesses, namely Atta Hussain and Manzoor Hussain had really seen the tw appellants causing injuries to the deceased with hatchet and stick. 1 may express at the outset that the medical evidence belies their claim. According to the eye-witnesses Haji Shah gave one injury with a hatchet while two blows with stick were given by Muhammad Shah. Contrarily the doctor stated that the blunt weapon injuries seen on the cheek or eye could be the result of fall. I have carefully seen the injuries and find that the doctor's opinion leans towards the view that these injuries were the result of fall and, therefore, the claim of the eye-witnesses that they had seen Muhammad Shah giving stick blows to the deceased is falsified. I, therefore, discard the ocular testimony being in direct conflict with medical evidence. Now I am left with the statement of the accused alone which is to be either accepted or rejected as a whole.
12. At the relevant time there was no male or female member of the complainant's family present in the house as they all had gone to Abdullah's house for enquiring about the health of his ailing wife.
It, therefore, seems probable that while Haji Shah was away to Rajanpur for purchasing sundry articles Mst. Ghulam Sughra would have stolen an opportunity to meet her paramour. It does not appeal to reason that when the deceased and the appellant Haji Shah were enjoying happy life and the deceased lady was pregnant and within a few weeks was going to deliver a child why would her husband kill her without any cause. The prosecution as observed earlier has not given out any reason for the attack. The learned trial Court has ventured an opinion that Haji Shah might have asked, Mst. Ghulam Sughra to accompany him to his village and the might have denied and that her denial might have caused annoyance to the appellant and therefore, he attacked her in a fit of anger. This is not the prosecution case that there had been any difference whatsoever on this account. The inference derived by the trial Court is, therefore, not at all supported by the evidence on record. Considering all the facts and circumstances of the case I find that the story put forth by Haji Shah, appellant, appears to be reasonably probable, therefore, I extend full benefit of the plea raised by him. I also hold that Muhammad Shah did not participate in the occurrence. Accordingly, Muhammad Shah is acquitted and the conviction of Haji Shah is altered from 302, P.P.C. To one under section 304, Part I, P.P.C. Haji Shah, appellant, is in jail since his arrest till he was released on bail by this Court vide order dated 27-3-1983 on the ground that his appeal was not heard despite his being in custody for about 6 years. The appellant has obviously served about 6 years sentence of imprisonment, therefore, it is ordered that he is sentenced to imprisonment for the period already undergone, which in my view, is sufficient to meet the ends of justice in this case. Both the appellants are on bail. They are discharged of their bail bonds.