Tanvir Ahmad Khun, J.- Shah Alam Khan has filed this appeal through jail against the order dated 14.6.1988, passed by the learned Additional Sessions Judge Gujral, whereby he was convicted under section 304 Part-1 PPC and was sentenced to 10 years R.I. For causing death of his wife Mst.Ghulam Fatima.
2. The facts necessary for the disposal of this appeal are that 11R No.360 Ex.PA/1 was recorded by P.W-4 Manzoor Hussain ASI, at Police-Station Sadar Gujral ea 11.6.1986 at 9.45 a.m. On the basis of his statement Ex.PA made by the complainant Sajjad Hussain before Mian Aluf Ahmad SHO.
According to the complainant his father Shah Alam Khan the present appellant was working outside the country and had come back to Pakistan 4/5 months prior to occurrence. Earlier they were living at Lala Musa in their own house with their grand-parents. Since the accuscd/appcllant had suspicion that his wife Mst.GhuIam Fatima had got illicit intimacy with his grandfather Bahawal Bakhsh so due to this suspicion the parents of the complainant had always quarrelled. One month prior to the occurrence the appellant got a rented house in Mohallah Walia Abad at Gujrat and brought his wife Mst.GhuIam Fatima deceased over there. The complainant was also living with his parents. According to the complainant his mother on the night before the occurrence stated that they should shift to their own house at Lala Musa instead of living in a rented house at Gujrat. An aItercation took place but that subsided at that lime on the intervention of the complainant. It is further stated that the next day at 8.(X) a.m. His parents were again quarrelling and in the meantime the complainant brought one Ch. Muhammad Anwar so that he could ease the situation and appeal his parents. The moment the complainant eritcrcd the house along with Ch. Muhammad Anwar, they saw the accused giving Panda blows to Mst. Ghulain Fatima which landed on different parts of her body. According to the complainant this incident was witnessed by Anwar and his younger sister Msl.Fizza Bibi aged 11/12 years. P.W-6 Mian Allaf Ahmad SHO after recording the statement reached the spot and investigated the case. He prepared the inquest report Ex.PF as well as injury statement Ex.PG. He got prepared site-plan Ex.PD and Ex.PD/1 through Akhtar Naqqash Draftsman P.W-5. Gulzar Baigh Constable P.W-11 gave the last worn clothes of the deceased P2 to P5 to Investingating Officer after the postmortem examination, which were taken into possession vide memo Ex.PH. After the investigation the challan was submitted before the trial Court. The appellant was charged for the aforesaid offence under section 302 PPC by the Additional Sessions Judge Gujrat on 27.10.1987. The prosecution examined 11 witnesses to establish its case.
3. The ocular account in this case has been established in its material particulars by the complainant Sajjad Hussain who appeared as P.W-1, the son of the accused, and his 12 years old younger sister Fizza Bibi (P.W-2). From the perusal of their statements one is fully convinced that they arc the most natural witnesses. Both of them have stated that the accused inflicted Panda blows on their mother Mst. Ghulam Fatima deceased. There is nothing on record to show that why the two children of the accused would involve their own father in a case of capital nature. P.W-2 Fizza Bibi was a girl of 12 years of age when she deposed against her own father and successfully stood the test of cross-examination. She had in clear words sited that her father inflicted Panda blows on the person of her mother which caused her death.
4. The motive has been put forward by Sajjad Hussain P.W-1 and the accused while making statement denied this motive but had slated that he had been involved due to suspicion and enmity. This suspicion and enmity he has not further elaborated before the trial Judge. A suggestion was made to Sajjad Hussain P.W-1 at the trial that one Haji Sadiq had some illicit relations with the deceased Mst. Ghulam Fatima. This was categorically denied by the P.W who stated that such an illicit relations never existedbetween alleged Muhammad Sadiq and his mother Mst. Ghulam Fatima. The accused in his appeal which he had filed through jail had stated that he went out to do some purchase and instead of going to market he stayed in a hotel and took a cup of tea. After taking tea he look two more cups of lea for his younger daughter and went towards home. He had staled in that appeal that when he entered the house he saw the said Sadiq who was also brother- in-law of his son sitting with his wife. This Sadiq had taken Rs.35,000/- from his wife Mst. Ghulam Fatima deceased. When he saw the alleged paramour Sadiq sitting with his wife on that day he held him from his Grebaan while his wife held the appellant from back side, In the meantime, the aforesaid paramour got himself released and took the Panda which was lying over there and tried to inflict on his head. The appellant further staled that he avoided that blow by sitting while that Panda struck on the head of his wife who fell down on the ground. He had further stated that he had been involved by his own father in this case instead of the real culprit Muhammad Sadiq, who fled away from the place of occurrence.
5. The record of the trial Court docs not show any of the pleas taken by the accused except that he had been involved due to suspicion and enmity. The story put forward by the accusedappcllant in his jail appeal does not inspire any confidence. The prosecution through two close blood relations of the accused have fully established the case against him. I see no reason to disagree with the view taken by the learned Additional Sessions Judge in this ease.
6. The medical evidence has been proved by Pr.Arshad Mchmood (P.W-10) who found the following four injuries on the person of the deceased at the lime of post-mortem examination:
1. Lacerated wound 7 cm x 1 cm x PNP on the left cheek.
2. Lacerated wound l cm x 1 cm x PNP on the left side of nose.
3. Lacerated wound 2 cm x 1 cm x scalp deep on the left side of the top of the head.
4. Lacerated wound 1 cm x 1 cm x scalp deep on the left side of the head.
These four injuries according to doctor were caused by blunt weapon and were sufficient to cause death in the ordinary course of nature. The doctor had given the concession that the possibility cannot be ruled out that the aforesaid injuries could have been caused by fall on the ground. I am sorry to say that the doctor had given undue concession in this ease as the nature of injuries and the damage caused by them establish otherwise. These injuries as stated by the prosecution have been caused with full force by the appellant with the alleged Panda which was recovered at his instance. In the circumstances I feel that ocular account has been fully corroborated by the medical evidence.
7. Keeping the ocular account, medical evidence and other circumstances of the case into consideration I am of the considered view that no exception can be taken to the judgment of the learned Additional Sessions Judge in convicting the accused. The ocular account has been proved by two witnesses who got no animus against their own father. This has further been corroborated by medical evidence. Taking all these factors into consideration, I dismiss the appeal. However, 1 allow the benefit of section 382-B Cr.P.C, to the appellant.
8. I do not approve the view of the learned Additional Sessions Judge in not imposing.The fine wherein he had staled that since the acr.Sed himself was one of the legal heirs of the deceased so he thought it fit n >l to impose any fine. The learned trial Court is wrong as according to Islamic law a person who has caused the death of another, whether intentionally or by mistake is debarred from succeeding to the estate of other. Since the accused in this case has caused the death of his wife Mst. Ghulam Fatima he cannot be said to be legal heir in the circumstances of the case. This being the position, 1 impose a fine of Rs.5000/- or in defauIt the accused would undergo a further R.I for one year. The fine, if realised, would be paid to the legal heirs of the deceased as compensation. With this modification the appeal is dismissed.