KHIZAR HAYAT, J.--Ghulam Rasool son of Muhammad Yar caste Dadpotra resident of Mauza Jilani, Police Station Khairpur, Tehsil Hasilpur, District Bahawalpur, has been tried and convicted by Additional Sessions Judge-III, Bahawalpur, for the murder of his own were Mst. Zeb Elahi, and sentenced to death and fine of Rs.5,000 or in default to undergo 3 years' rigorous imprisonment, vide judgment, dated 21-5-1984. The convict has challenged his conviction and sentence through filing Criminal Appeal No.53 of 1984 and the trial Court has referred the proceedings to this Court under section 374, Cr.P.C., (M.R. No. 15 of 1984) for confirming the death sentence awarded to the appellant. We propose to dispose of both, the appeal and the murder reference, by this single judgment.
2. Attar Khan (P.W.6) lodged F.I.R. Exh. P.F. At Police Station Civil Lines, Bahawalpur, at 10.45 a.m., on 7-7-1982 alleging that he has two wives, namely, Mst. Asmat Bibi and Mst. Ghulam Fatima. Mst. Zeb Elahi (deceased) was his daughter from Mst. Asmat Bibi whom he had married to Ghulam Rasool (appellant) about 9 months before the Occurrence in exchange of his son Maqsood Ahmad's marriage with Mst. Irshad Bibi, niece of the appellant. A month before the occurrence, Mst. Zeb Elahi, on account of some domestic dispute, left her husband's house and came to him. Ghulam Rasool (appellant) approached the complainant in the company of Muhammad Nawaz (elder son-in- law. Of the complainant) for taking his were to his house. At the asking of Muhammad Nawaz the complainant agreed to send Mst. Zeb Elahi with the appellant and then Muhammad Nawaz went away while the appellant stayed there. On the following day, i.e. The day of occurrence, at about 10 a.m., the complainant was sitting outside his house with his neighbours Zahid Mahmood (P.W.9), Khushi Muhammad P.W. (not produced) and the appellant. Ghulam Rasool suddenly went inside the house and after 15/20 minutes they heard alarm raised by Mst. Ghulam Fatima (P .W.8). They went inside the house and saw Mst. Zeb Elahi lying in a pool of blood in the room and within their view Ghulam Rasool (appellant) gave a Kulhari blow to Mst. Zeb Elahi on her neck. They tried- to apprehend the appellant but he escaped with hatchet in his hands. Mst. Zeb Elahi succumed to her injuries at the spot.
3. S.I. Mukhtar Ahmad (P.W.10) after recording F.I.R. Exh.P.F, went to the spot. He prepared injury statement Exh.P.D. And inquest report Exh.P.E. Of Mst. Zeb Elahi, deceased, and sent the dead body under police escort for post-mortem examination. He collected blood--stained earth from there and took it into possession under memo Exh. P.J. On 14-7-1952 he arrested Ghulam Rasool (appellant) who was produced by Mian Shah Nawaz. On 18-7-1982, the appellant while in custody got recovered blood-stained hatchet P.4 which he seized and secured in the presence of Attar Khan ' (P.W.6) and Dr. Muhammad Salim P.W. (given up). It was found by the Chemical Examiner as stained with blood vide report Exh.P.L., which was of human origin vide Serologist's report Exh. P.M.
4. Dr. Syed Shahzad Ali Bokhari, Medical Officer, B.V. Hospital, Bahawalpur (P.W.5) conducted post- mortem examination on the dead body of Mst. Zeb Elahi at 5 p.m., and reported the following injuries:- (1)An incised wound on vertex slightly curved concavity laterally longitudinal in direction in the midline anteriorly and little right posteriorly deep extending into brain-matter after cutting the bones and meninges-dimension 12 c.m. x 3 c.m, x 6 c.m.
(2)An incised wound on front of neck below level of larynx, transverse in direction cutting trachea oesophagus, great vessel and extending to cervical vertebra 6 c.m. x 2 c.m. x 3 c.m. Below the level of larynx and vertebra 2.5 c.m. x 2 c.m. x 4 c.m. (incised).
5. At the trial, prosecution examined 10 witnesses to support its case. The occurrence was narrated by Attar Khan (P.W.6), father of the deceased, Mst. Ghulam Fatima (P.W.8) stepmother of the deceased and Zahid Mahmood (P.W.9) a neighboured of the complainant. Attar Khan (P.W.6) also deposed about the recovery of blood-stained hatchet at the pointation of the appellant.
6. The appellant's case is one of denial simplicitor. He also denied to have got recovered hatchet P.4. He, however, admitted that he was married to Mst. Zeb Elahi (deceased) in exchange of the marriage of his niece Mst. Irshad Mai to Maqsood Ahmad brother of the deceased. He also admitted that Mst. Zeb Elahi (deceased) had gone to her father's house during the days of occurrence but denied that she had gone there due to ill-treatment on his part. He attributed his implication in the case at the instance of Ch. Muhammad -Ashraf Advocate in whose house the deceased used to work. He also stated that the eye-witnesses had deposed against him due in their relationship with the deceased. He asserted that Attar Khan, father of the deceased, was absent from the house at the time of occurrence as he had gone to see Mst. Shaman and Mst.
Nawaz who were confined in New Central Jail, Bahawalpur. He produced three witnesses in his defence namely, Ch. Abdul Ghani, Assistant Superintendent Jail, New Central Jail, Bahawalpur (D.W.1). Who stated that on 7-7-1982 one Imam Bakhsh had applied for interview with Mst. Shaman and Mst. Nawaz Mai who were confined in New Central Jail, Bahawalpur and he was granted the interview. Imam Bakhsh and Ghulam Farid (D.W.3) stated that on the day of occurrence they alongwith Attar Khan had gone to see the aforesaid ladies in New Central Jail at 7 /8 a.m., and that they are still present there when Mst. Ghulam Fatima were of Attar Khan came there and informed that somebody had murdered Mst. Zeb Elahi. They admitted that they were not related to the complainant at all.
7. Learned trial Court on consideration of material on record disbelieved the defence version and accepting the prosecution case convicted the appellant under section 302, P.P.C. While considering the question of sentence, learned trial Court observed that there was nothing on record to prove that the appellant was under "any sort of sudden or prolonged provocation, therefore, it would be considered as proof that he had deliberately and with an intention and motive committed this murder", hence in the absence of any mitigating circumstances the appellant deserved the extreme penalty and awarded to him death sentence plus fine, as indicated above.
8. We have heared learned counsel for the appellant as well as for the State assisted by learned counsel for the complainant and also perused the record.
9. From amongst the three eye-witnesses Attar Khan (P.W.6) and Zahid Mahmood (P.W.9) were attracted to the scene of occurrence by alarm raised by Mst. Ghulam Fatima (P.W.8), therefore, Attar Khan and Zahid Mahmood only saw the infliction of injuries and they did not know as to how the occurrence had started. Mst. Ghulam Fatima (P.W.8) is the only witness of occurrence from beginning to the end as she was present inside the house with Mat. Zeb Elahi, deceased, when the appellant came into the house. The story of Mst. Ghulam Fatima (P.W.8) is that she alongwith Mst.
Zeb Elahi was present in the room of house when Ghulam Rasool came there and asked Mat. Zeb Elahi that she should immediately accompany him to his house. Mst. Zeb Elahi replied that her mother Mst. Asmat and brother Maqsood Ahmad had gone to Bazar to make certain purchases for her, therefore, she would go with him in the evening after their arrival. At this, Ghulam Rasool got annoyed and abused Mst. Zeb Elahi telling her that she should accompany him at once otherwise he would deal with her badly whereupon the deceased refused to go with him. At this, the appellant got annoyed and picking up a hatchet lying nearby gave a blow with it on her head.
Cries of Zaib Elahi and Ghulam Fatima attracted Attar Khan (P.W.6) and Zahid Mahmood (P.W.9) who came in running and within their view the appellant gave the second blow on her neck and then escaped from the scene.
10. The occurrence took place in the house of Attar Khan (P.W.6) father of the deceased in broad daylight. The place of occurrence is not disputed by the defence rather the appellant admitted that during the days of occurrence Mst. Zeb Elahi (deceased) was living in the house of her father.
Therefore, Mst. Ghulam Fatima (P.W.8), stepmother of the deceased, Attar Khan (P.W.6), father of the deceased, and Zahid Mahmood (P.W.9), their neighboured, are natural witnesses of the occurrence. There did not exist any previous enmity between them and the appellant either. Ch. Abdul Ghani, Assistant Superintendent Jail (D.W.1) did not say that the complainant Attar Khan had interviewed Mat. Shaman and Mst. Nawaz Mai (detenue) in the New Central Jail, Bahawalpur, on the day of occurrence, as asserted by the defence. In the circumstances, we are convinced that Attar Khan, Zahid Mahmood and Mst. Ghulam Fatima P.Ws. Were present at the time of occurrence and had seen the appellant killing the deceased. The appellant inflicted injuries with a weapon like hatchet on the vital parts of body of the deceased like head and front of neck, therefore, we are in no manner of doubt that he had killed her intentionally. We are, therefore, satisfied that the learned trial Court rightly convicted the appellant for committing murder of Mst. Zeb Elahi. Consequently, we maintain appellant's conviction under section 302, P.P.C.
11. This brings us to the question of sentence. It is in evidence that the appellant came to the house of Attar Khan (P.W.6), two days before the day of occurrence, to take Mst. Zeb Elahi back to his house. An agreement between them had been effected due to intervention and good offices of Muhammad Nawaz, elder son-in-law of the complainant, and the complainant had agreed to send Mst. Zeb Elahi (deceased) with the appellant. It is also in evidence that the appellant was sitting with the complainant outside the house in a peaceful atmosphere before he went empty handed inside the house. According to Mst. Ghulam Fatima (P.W.8) the spouses quarrelled when the appellant insisted that the deceased should accompany him at once to his house and the deceased asked him to wait till return of her mother and brother from the Bazar. Disagreement between the spouses overtime to leave the house of complainant seems to have culminated in quarrel and the deceased refused to go with him. It appears that her refusal to go with him had provoked the appellant and, therefore, he picking up the hatchet lying nearby attacked and killed her. Since it all appears to have happened in the heat of moment on a sudden quarrel and without premeditation, therefore, we are of the view that in the circumstances, extreme penalty is not called for. Consequently, while maintaining conviction of the appellant under section 302, P.P.C., we are persuaded to commute the sentence of death awarded to him to one of imprisonment for life.
The sentence of fine imposed by the trial Court, is, however, maintained.
12. The result is that the death sentence awarded to the appellant is not confirmed and the reference is rejected. But for the alteration of death sentence to imprisonment for life the appeal is dismissed.