' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 61 of 1984/BWP and the connected Criminal Revision (Suo Motu) No, 46 of 1986/BWP for enhancement of sentence arise from the judgment of learned Additional Sessions Judge, Rahimyar Khan, whereby he on 30-4-1984, while acquitting Ghulam Qadir, Piran Ditta and Allah Ditta co-accused, convicted Dilwash appellant (45) under section 302, P.P.C. For the murder of Mst. Ghulam Jannat, his wife, and sentenced him to life imprisonment and a fine of Rs,10,000, in default thereof six months' R.I. With the direction that the fine if realized half of the same be paid as compensation to the legal heirs of the deceased.
2. The occurrence took place at mid-night between 25/26-9-1981 in front of the house of Fazal Hussain P.W.7 situate in village Pooran at a distance of 5 k.m. From Police Station Rukanpur, District Rahimyar Khan. F.I.R. Exh.P.N. Was lodged by Fazal Hussain P.W.7 on 26-9-1981 at 4-00 a.m. On the same day, which was recorded by Asmat Ullah A.S.I. P.W.11.
3. The alleged background of the occurrence was that Mst. Ghulam Jannat deceased was married with the appellant 6/7 years before the occurrence. Two years before the occurrence, the relations between the spouses became strained. Resultantly Mst. Ghulam Jannat came to the house of her parents and started living with them. In the meanwhile, the appellant sent unsigned Talacinama to her. Mst. Ghulam Jannat filed suit for dissolution of her marriage at Kand Kot in Sind Province about one month before the occurrence. After attending the Court four days before the occurrence she came back to the house of her father a day before her murder, hence this occurrence.
4. As for the main occurrence, it has been stated that on the eventful night, Mst. Ghulam Jannat deceased, Mst. Ghulam Sarwar, Mst. Allah Jawai and Fazal Hussain were sleeping in the courtyard of their house. At about mid-night, the appellant armed with pistol, Ghulam Qadir and Piran Ditta armed with hatchets and Allah Ditta armed with Soti came there. Dilwash appellant after awakening Fazal Hussain asked him about Mst. Ghulam Jannat, whereupon the complainant told him that he having already divorced her had no relation with her. In the meantime, Ghulam Qadir co-accused caught hold of Mst. Ghulam Jannat by her hair. On seeing her Dilwash appellant fired shot from his pistol hitting on her chest. She fell down and died instantaneously. The occurrence was allegedly seen by Fazal Hussain P.W.7, father of the deceased, Mst. Ghulam Sarwar P.W.8, mother of the deceased, Ameer Khan P.W.9, husband of the cousin of the deceased and Mst. Allah Jawai P.W.10, sister of the deceased. After killing the deceased, the appellant and his co-accused ran away taking the weapons with them.
5. On 26-9-1981, Dr. Abdul Raoof, P.W.4 conducted post-mortem examination on the dead body of Mst. Ghulam Jannat. He found a piercing wound on the front of chest of the left fifth intercostal space near the sternum, wound about six and half inches deep having no exit wound. He also found an abrasion on the back of the left hand of the deceased. In his opinion, the death had occurred as a result of excessive intra-thoracic haemorrhage and shock caused by injury to the heart which was sufficient to cause death in the ordinary course of nature. The death was instantaneous and the time between death and post-mortem was about 18 hours.
6. Dilwash appellant was arrested on 9-11-1981 by Asmat Ullah A.S.I., P.W.11. On 11-11-1981, he led to the recovery of pistol Exh.P.8 from his Kotha, which was taken into possession vide memo. Exh.P.J.
Attested by Bagh Ali P.W.6, Khuda Bakhsh (not produced) and Asmat Ullah A.S.I., P.W.11. It may be noted here that since no empty was recovered from the place of occurrence, therefore, pistol could not be sent to the Forensic Science Laboratory.
7. To prove its case, prosecution produced 12 witnesses. Fazal Hussain P.W.7. Mst. Ghulam Sarwar P.W.8, Ameer Khan P.W.9 and Mst. Allah Jawai P.W.10 have given the ocular account of the occurrence. They claim to have seen the appellant and his co-accused variously armed present in the courtyard of their house and Ghulam Qadir catching hold of the hair of the deceased and the appellant firing shot from his pistol hitting on her chest. Fazal Hussain P.W.7 has also deposed about the motive of the appellant to kill the deceased. Bagh Ali P.W.6 and Asmat Ullah A.S.I., P.W.11 have supported the recovery of pistol Exh.P.8. From the appellant. Dr. Abdul Raoof P.W.4 has proved the post-mortem examination report of the deceased. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. Raising the plea of substitution, he stated that the deceased was in fact killed by Ahmad and-since he (Ahmed) was related to the complainant, so the latter compromised with the former and falsely involved him in the case. In defence Razi Khan was produced as D.W.1. The defence witness stated that on the night of occurrence, he was staying in the house of his daughter, which is near to the place of occurrence. At about mid-night, on hearing the report of fire-arm coming from the house of the complainant, he alongwith Makhan, Pathan Khan and ladies of his family, rushed to the house of the complainant. He found Mst. Ghulam Jannat lying dead. Fazal Hussain told him that some unknown assailant had killed his daughter. The witness further stated that Mst. Ghulam Jannat was married to Ahmad and had come to the house of her father a day before the occurrence because of strained relations with her husband. She was brought by Abdul Rehman to the house of her father.
9. Believing the alleged motive and the ocular account of the occurrence given by the 4 eye- witnesses and disbelieving the plea of substitution raised by the appellant, and the statement of the D.W. Razi Khan, the trial Court has convicted and sentenced the appellant as stated above.
10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt, inasmuch ac there is unexplained delay of about 4 hours in lodging the F.I.R.; that the F.I.R. Was, in fact, recorded on the spot after preliminary investigation; that there is also an inordinate delay in the despatch of the dead body and the post-mortem examination of the deceased; that the eye-witnesses namely Fazal Hussain, Ghulam Sarwar and Mst. Allah Jawai are closely re:ated to the deceased; that Ameer Khan, who has been mentioned as eye-witness of the occurrence in the F.I.R. Has not supported the other eye-witnesses; that the night of occurrence was dark and as such, the culprit could not have been identified by the eye-witnesses; that the story of the prosecution that the appellant had awakened the complainant and asked about the deceased is unnatural; that the statements of the eyewitnesses were recorded by the police 3 days after the occurrence and that the inquest report is materially different from the contents of the F.I.R. On the other hand, the learned Assistant Advocate-General not only supported the judgment of the trial Court but also prayed for the enhancement of the sentence of the appellant from imprisonment for life to death on the ground that there were no mitigating or extenuating circumstances in his favour for lesser penalty.
11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statement of the appellant recorded under section 342, Cr.P.C., defence evidence and circumstances appearing in the case with care.
12. We find that it is a case of promptly lodged F.I.R. Containing the name of the appellant, the names of the eye-witnesses, the weapon used by the appellant in the occurrence and the manner in which the occurrence took place. The occurrence took place at about mid-night between 25/26- 9-1981 and the F.I.R. Was lodged on the same night at 4-00 a.m. There is nothing in evidence to show that F.I.R. Exh.P.N. Was in fact recorded at the spot after preliminary investigation. The learned counsel for the appellant was of the view that since Fazal Hussain has stated in cross-examination that his statement was recorded by Thanedar at the place of occurrence, therefore, it should be presumed that it was F.I.R. Exh.P.N. Which was recorded on the spot. We do not agree with him because Fazes Hussain has clearly stated that he had not thumb-marked the statement at the place of occurrence. This shows that the statement, if any, was not F.I.R. Exh.P.N. It may be noted here that Sub-Inspector Asmat Ullah A.S.I. Who had recorded the F.I.R. Was not cross-examined in this respect. We are convinced that F.I.R. Exh.P.N. Is genuine document and it was prepared at the time and place as it purports. The delay of four hours in lodging the F.I.R. In the circumstances of the case, cannot be termed as an inordinate delay. Ghulam Hussain FC P.W.1 has stated that the dead body was given to him at 6/6-30 a.m. For taking the same to the hospital and that he had brought the dead body in the hospital at 9-00 a.m. This shows that there was no delay at all in despatching the dead body to mortuary. The dead body had been brought in the hospital at 9/10- 00 a.m. The post-mortem was conducted at 3-00 p.m. On the same day. The doctor who conducted the post-mortem examination was not asked to explain as to why the post-mortem examination was not conducted in between 10-00 a.m. And 3-00 p.m. The F.I.R. Was lodged at 4-00 a.m. On 26-9-1981 and the postmortem was conducted on the same day as such there was no delay in conducting the post-mortem examination.
13. F.I.R. Exh.P.N. Which has been believed by us, can be used to corroborate the statement of its maker i,e, Fazal Hussain P.W.7.
14. Taking up the ocular evidence, we fmd that since the occurrence had taken place in the courtyard of the house at night time, therefore, residents of the house, namely, Fazal Hussain P.W.7, Mst. Ghulam Sarwar P.W.8 and Mst. Allah Jawai P.W.10 were the natural witnesses of the occurrence.
The appellant being closely related to them was fully known to them and as such there is no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the accused/appellant. The statements made by them do not suffer from major discrepancies, material contradictions or dishonest improvements. They have successfully faced the test of cross-examination. They had no motive to involve the appellant falsely or to assign him the major part in the occurrence. The defence has not been able to lay down any foundation for his substitution in place of Ahmad who, according to the appellant, had killed the deceased.
Talaqnama allegedly sent by the appellant to his wife Mst. Ghulam Jannat deceased was not signed by him. The suit for dissolution of her marriage filed by Mst. Ghulam Jannat against the appellant was still pending and as such question of her having been married to Ahmad does not arise. It can hardly be believed that knowing that Ahmad had killed the deceased, his father Fazal would have compromised with him within four hours and then decided to substitute the wpellant in his place. The medical evidence does not contradict the ocular evict .Ice. Muir Khan P.W.9 has not supported the prosecution case. He has given a different story. Froin the trend of his statement, it is very much obvious that because of his relationship with the accused/appellant he has given obliging statement. In his statement, he has stated that immediately after the occurrence, Mst.
Sarwar P.W.8 had told him that Dilwash had killed Mst. Ghulam Jannat. This part of statement is relevant and admissible as res gestae under section 6 of the Evidencem Act and lends support to the claim of the other eye-witnesses that they had seen Dilwash appellant killing the deceased.
Since the three acquitted accused had not caused anyh injury to the deceased, therefore, they were given benefit of doubt. The statements of the eye-witnesses were not disbelieved by the trial Court to their extent. The statements given by the eye-witnesses other than Amir Khan are in consonance with the probabilities and materially fit in with the rest of the evidence and surrounding circumstances.
15. Adverting to the plea of substitution raised by the appellant in his statement under section 342, Cr.P.C. We have already stated that he has failed to lay down any foundation for his substitution in place of Ahmad appellant. Razi Khan D.W.1 stated that on hearing the report of gun he went to the house of Fazal Hussain and found Mst. Jannat lying dead. Fazal Hussain told him that some unknown assailant had murdered his daughter with a pistol. Strangely enough, Fazal Hussain was not questioned on this point by the defence counsel. No suggestion at all was given to Fazal Hussain and other eye-witnesses with regard to the visit of Razi Khan D.W. Immediately after the occurrence. The story C of compromise between 'Fazal Hussain complainant and Ahmad, the real murderer of Mst. Ghulam Jannat, is ridiculous because within four hours of the occurrence compromise was not possible at all.
16. For all these reasons, we are of the view that the learned trial Court has rightly convicted the appellant under section 302, P.P.C. For the murder of Mst. Ghulam Jannat and the arguments of the learned counsel are devoid of force and substance.
17. This brings us to the suo motu notice issued by this Court for the enhancement of sentence. We feel that there are mitigating circumstances in ful favour of the appellant for lesser penalty, inasmuch as the deceased was his wife, that the marriage had not been dissolved by that time; that she had filed suit for dissolution of her marriage at Kand Kot in Sind; that she had attended the Court of Civil Judge, Kand Kot four days before the occurrence and that she was brought back to the house of Fazal Hussain a day before the occurrence by Abdul Rahman Dasti, who was a stranger to her. The appellant has stated in his statement that Ghulam Jannat had developed illicit relations with Abdul Rehman Dasti. No direct evidence can be given with regard to the motive of the accused to commit the crime. He is the best witness of his motive. In the instant case the appellant has stated that Ghulam Jannat had developed illicit relations with Abdur Rehman Dasti.
Admittedly, she was brought back from Sind to the house of her father a night before the occurrence by Abdur Rehman Dasti. So the act of appellant of kiting his wife seems to be somewhat provoked.
18.The upshot of the above discussion is that this being a case of satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is dismissed but there being mitigating circumstances in favour of the appellant for lesser penalty, the criminal revision for the enhancement of the sentence is also dismissed.