SARDAR MUHAMMAD DOGARJ.- Muhammad Mumtaz Kaleem aged 30 was tried by the Additional Session Judge, Lahore for having murdered his wife Mst. Kausar SuItana on 14.6.86 at 8.30 a.m. In his house in SuItan Street, Kucha Mian SuItan, at a distance of one kilometer from Police Station Yakki Gate, Lahore. Learned trial Judge vide judgment dated 19.3.87 convicted him under Section 302 PPC and sentenced him to imprisonment for life plus to pay a fine of Rs.30,000/- in defauIt whereof to suffer R.I. For five years. Out of the fine, on recovery, a sum of Rs.25,000/- has been directed to be paid as compensation to the legal heirs of the deceased.
2. The convict has filed appeal. Complainant has filed criminal revision seeking enhancement of the sentence. Both the matters are being disposed of together.
3. FIR Ex.PA/1 was registered at the Police Station on 14.6.86 at 10.50 a.m. By Liaquat Ali, MHC PW.l on the statement (Ex.PA) of Mst.Shaukat SuItana PW.9 recorded by Naseemul Hayee, S.I. PW 11 at 10.30. a.m. At Mayo Hospital Lahore. According to FIR complainant was residing in New Samanabad, Lahore with her husband. Her father and brother were carrying on business in Quetta. The deceased was married to the appellant 4 years prior to the occurrence. Only a few days after the marriage, Mst. Robila, Mst. Samina & Mst. Lubna sisters of the appellant and Mst. Builquecs his mohtcr started quarrelling with Mst.Kausar deceased for having brought less dowry as a resuIt of which relations between the spouses also were strained. In the meantime the deceased gave birth to a son and a daughter. She often used to complain to the complainant about the ill behaviour of her in-laws. The complainant and other relatives many a time got the matter patched up but the quarrel continued. A few days prior to the occurrence brother of the deceased and complainant had come from Quetta to Lahore for Eid. He had left for Quetta on Thursday, preceding the day of occurrence. The complainant and the deceased had gone to the Ralway Station to see him off, along with other relatives. There, also the deceased had complained about the atrocities of her mother-in-law and the husband. The complainant encouraged her and promised that she will visit her in-laws and talk to them.On the day of occurrence, father-in-law of the deceased informed the complainant at 9 a.m. That the deceased was admitted to the hospital on having been injured as a resuIt of the fireshot. The complainant went to the hospital along with her sister Mst. Shafquat SuItana (given up PW) and Liaquat Ali her sister's son. Mst.Kausar SuItana had died by that time.
The complainant, given up PW Mst. Shafquat SuItana and Liaquat enquired from Muhammad Mumtaz Kaleem. He started begging pardon and stated that he had committed a mistake. He should be pardoned and the case should not be reported to the Police nor the deceased be post- mortemed. He stated before them that on having seen the deceased quarrelling with his sisters and mother, he was flared up and fired a shot from the revolver which struck her, as a resuIt of which she has died.
4. Nasimul Hayee S.I., after recording statement Ex.(PA) sent the same to the Police Station for registration of case and despatched the dead body for post-mortem examination after preparing inquest report (Ex.PH). He recorded the statements of Mst. Shafquat SuItana and Liaquat Ali, who were present at the spot, under Section 161 Cr.P.C. The spot was inspected by him on the same day.
He arrested the appellant on 15.6.86. On 23.6.86 the appellant led to the recovery of his licensed revolver (P-5) from his house, containing 5 live cartridges (P-7/1-5) and an empty (P-6) in the revolver. Challan was submitted to Court after completion of necessary investigation.
5. Statement of 11 PWs were recorded at the trial. It may be mentioned here that in this case there is no ocular account. The case of the prosecution rests on the evidence of motive stated by complainant, who appeared as PW-9, and the extra judicial confession said to have been made by the appellant before Mst. Shaukat SuItana, Mst. Shafqat SuItana, sisters of the deceased, and Liaqat Ali S/O Mst. Shafquat SuItana. The same was deposed to by Mst. Shaukat SuItana and Liaquat Ali PW10. Mst. Shafquat SuItana was given up as un-necessary. There is also evidence of report submitted by Forsanic Science Laboratory wherein opinion has been expressed that the empty found in the chamber of the revolver recovered at the instance of the appellant, had been fired from the same revolver.
6. Mst. Shaukat SuItana while repeating the facts given by her in the FIR made certain additions. In that she stated that the appellant himself had also gone to the Railway Station to see off their brothers to Quetta and that the deceased had made complaint against him when he had moved away to meet their brother. She also stated that the accused had disclosed the facts of having killed the deceased when she had started weeping in the hospital on coming to know that her sister had died. She denied that she had taken any loan from the accused, instead she stated that she had given him loan of Rs.10,000/-. She also admitted that the accused used to observe the optional fasts falling after the Eid day.
7. Liaquat Ali who appeared as PW 10 corroborated her statement made in the Court. He was also, during cross examination, on confrontation with his statement under Section 161 Cr.P.C., found to have made some improvements.
Both the witnesses denied the suggestions that the appellant had not made any confession before them. They also denied the suggestion that the appellant had told them that the deceased while handling the revolver had inadvertently pulled the trigger, as a resuIt of which the revolver went off and struck the deceased.
8. Nasimul Hayee S.I. Who appeared as PW 11 made statement about registration of case, arrest of the accused and recovery of revolver at the instance of the appellant. He conceded that no blood stained earth was taken into possession from the spot. He denied the suggestion that he had made any peddings or had concocted the story of extra judicial confession in collaboration and consuItation with the complainant party.
9. Dr. Munir Ahmad who had medically examined the deceased during life time at 9.04 a.m. On 14.6.86 appeared as PW-6. He had noted a circular wound with blankened edges measuring 1x1 c.m. In diameter on the left lower medial quadrant of left breast. There was a corresponding hole on the shirt. The duration of the injury was few hours. It was caused by a fire-arm. The injury was kept under-observation. X-ray was advised for chest. The deceased was admitted in the North Surgical-Ward.During cross examination he stated that the injured was brought to the hospital by her husband Mumtaz. According to him he had sent information to the police immediately after medical examination.
10. Dr. Saeed Ahmad who had performed autopsy on the dead body of the deceased at 8.30 a.m.
On 15.6.86 appeared as PW-7. He had also noted a circular wound with lacerated and inverted margins 0.5 x 1 c m with blackening around in the area of 3 x 3.5 c m on front of left chest on the inner side of left brast 7.5 cm from left nipple and 9cm from mid-line.
According to his opinion the deceased had died due to damage to left lung, heart and liver caused by the said injury.
He had noted a hole on the Kurta with faint blackening around. Kurta was burnt from front. A hole was also noted by him in the brassiere with blackening around.
During cross examination he stated that the shot was fired from the close range. According to him it was a contact fire. He stated that bangles and rings which he had noted on the dead body were removed by him and handed over to the police.
11. Dr. Khalid Hakeem who had prepared the death certificate of the deceased appeared as PW 12.
During cross examination he stated that the death certificate bore the signature of one Mumtaz.
12. The evidence of the recovery of revolver at the instance of appellant was deposed to by Saeed Ahmad PW-8 and Nasimul Hayee S.I. PW.Ll. Saeed Ahmad during cross examination conceded that the deceased was daughter of his real sister.
13. The appellant during his statement under Section 342 Cr. P.C. Denied the prosecution case and pleaded innocence. He submitted written statement to explain his position in answer to the question "why this case was registered against you'. He also made statement on oath under Section 342(2) Cr. P.C. He took up the plea that he had gone to sleep on the upper portion of the house on the day of occurrence after keeping fast and that he was awakened at 8.00 a.m. On account of the noise. He added that he ran down-stairs and found his wife injured with his revolver also lying near by. He stated that his wife had told him on inquiry that she had picked up the revolver for taking to the house of her sister Mst. Shaukat SuItana and that during handling, the revolver went off and injured her.
Mst. Robila appeared as DW-2 in support of the plea taken by him. During cross examination she denied the suggestion that the accused had fired at the deceased and she had died because of that.
Abdul Hakim, his father who appeared as DW-3 also supported the plea taken by him and owned fact of having gone to inform the complainant about the admission of the deceased in the hospital. He denied that his son had murdered the deceased.
Sh. Muhammad Rashid a relative of the decesed who was produced as DW-4 denied that he had prevailed upon the police official because of the position held by him, to concoct a false case against the appellant.
One Salauddin was examined as DW-5 in support of the plea that Mst. Shaukat SuItana used to collect committee contribution.
Muhammad Munir Khokhar Incharge Camera department, daily Jang, Lahore appeared as DW-6 in support of the plea that the appellant was working as a Camera man with daily Jang Lahore and had remained on duty from 7.12. P.M. On 13.6.86 to 3.48 A.M. On 14.6.86.
14. Learned counsel for the appellant after having gone through the evidence criticised the impugned judgment and submitted that the story of motive for the occurrence was a cooked up one, that the opinion of the Doctor that it was a contact fire clearly contradicts the prosecution version of the manner in which the deceased suffered injury and lends support to the explanation given by the appellant in that regard, that the prosecution case of appellant having made a confession on the face of it appears to be improbable and unbelievable and that the case we cooked up by complainant party with the active assistance, connivance and help of the police.
15. Learned counsel for the State/ complainant defended the judgment of the trial Court.
16. The stance of the appellant from the very inception has been that he was having good relations with his wife and never any dispute occurred on account of the so-called complain of less dowery given by the parents of the deceased at the time of marriage. Not only suggestion in this regard were put during trial but the appellant also made a categorical statement on that account. His counsel has also argued the same. Reference in this regard was also made at the trial by bring on record the fact that the appellant had been visiting his in-laws and his in-laws had also been visiting his wife in his house. If all that had been true there would have been no reason for the maternal relatives of the deceased to have named the appellant as amurderer. In fact they could not even suspect him if the relation between him and his wife were so smooth as he would like others to believe.
17. The arguments of the learned counsel that the plea taken by the appellant that the deceased appears to have suffered the injury because of mishandling of revolver by her, is contradicted by the seat of injury shown on the diagram of injury prepared by the Doctor, who performed autopsy.
The injury was found to have been suffered by the deceased right in the breast. By no way of handling the revolver she could have turned the mussal of the revolver to her breast. It could only have been suffered either at the hand of some body, firing at her on if at all, she had herself intentionally directed mussal of the revolver to her breast and then fired. But that would have happened only if she had decided to commit suicide, which is no body's case.
18. The arguments of the learned counsel that the manner in which the appellant is alleged to have confessed appeared highly improbable, seen in the light of the fact that the complainant and the other witnesses before whom he is said to have confessed the crime had no animoisty against him, leaves a little room to doubt that the evidence of confession was concocted. No doubt it is complaint's case that the appellant was having unhappy relations with the deceased and she used to complain of that, but that fact has not only been categorically controverted by the appellant but the complainant himself also stated that they always liked the couple to live happily and had been making efforts for that as well.1 cannot imagine that the complainant would have involved the appellant, who was father of deceased's two minor children in a murder case for her accidental death as propounded by the appellant. It is not the case of appellant that he was not in the house at the time of occurrence or that revolver did not belong to him. It is also not his case that his sisters and mother were not in the house on the day of occurrence. In the circumstances I feel no reason to disbelieve the fact that the appellant had fired a shot at the deceased on seeing her qrarrelling with his mother and sisters.
However, I am not convinced that it was a case of intentional murder. The case rather appears to fell under exception 4 of Section 300 PPC which reads as follows.
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage of acted in a cruel or unusual manner."
The revolver with which he was stated to have fired at the deceasd contained six bullets, only one of which had been fired. He had himself taken the deceased to the hospital for treatment and got her admitted there. The fact of no stains of blood having been found at the spot shows that he had done the same at the earliest. Had he any intention to commit the murder, he would have definitely repeated the shot or at least would have left her lying to bleed to death. He would have not sent his father with information of her admission to the hospital to her sister and other relatives so that they may create trouble for him. He did not make any attempt to have the matter reported to the police in a manner which could have been a defence for absolving him. What appears, is, that on being woken up due to quarrel and dispute between the deceased and his mother and sisters, after having gone to sleep on coming late from the office, in the morning and keeping fast, he lost power of control and fired at the deceased under sudden provocation. He neither had acted cruelly nor took undue advantage. In the circumstances, case under Section 302 PPC is not proved. The conviction of the appellant under that Section is set aside. He is instead convicted under Section 304- Part I PPC and sentenced to undergo R.I. For five years, plus to pay a fine of Rs.2,000/- in defauIt whereof to suffer further R.I. For six months. He shall also be given the benefit of the provision of Section 382-B Cr.P.C.
19. Since conviction under section 302 PPC has been set aside, question of enhancement of sentence thereunder does not arise. The revision petition is, therefore, dismissed.