' Muhammad Aslam, aged 29 years, was tried by Additional Sessions Judge, Sialkot, for having murdered Muhammad Sarwar, aged 30/32 years, his wife's brother, on 30-10-1985, at 7 a.m., in the house of Mst. Hamida Begum, mother of the deceased, in Mohallah Saleempura, in Sambarial Town, at a distance of one mile from Police Station Sambarial. The learned trial Judge vide judgment dated 30-10-1986 convicted him under section 302, P.P.C. And sentenced him to imprisonment for life, plus to pay a fine of Rs,5,000, in default whereof to undergo R.I. For one year.
2. The convict has filed appeal. The complainant has filed Criminal Revision No, 70/87, wherein prayer has been made for enhancement of the sentence of the appellant from imprisonment for life to death and to award substantial amount of compensation to the heirs of the deceased. The revision petition is still at motion stage.
' As both the matters arise from the same judgment, they are being disposed of by one judgment.
3. F.I.R. Exh.P.A. Was recorded at the police station by Ijaz Ahmad, A.S.I. (P.W.10) at 8-15 a.m. On the same day, on the statement of Mst. Hamida (P.W.1), mother of the deceased. According to the F.I.R.
The deceased, Mst. Bashiran and Mst. Muneeran were born to the complainant from her former husband, Rahim Bakhsh. After the death of Rahim Bakhsh she had married Muhammad Sharif.
Deceased was residing separately with his family in Tanki Mohallah, Sambarial. Both the sisters of the deceased were also married. Mst. Muneeran was married to the appellant. She was residing with her husband (appellant) in Sialkot City. Sometime prior to the occurrence, the deceased had obtained a sum of Rs,200 as loan from the appellant. He came to the house of the complainant on 29-10-1985 at 7 a.m. And stayed there for the night. He got up after Fajar prayer time and left the house of the complainant for going to Sialkot, in spite of being asked by Muhammad Sharif, husband of the complainant, to stay for breakfast. At about 7 a.m. Muhammad Sarwar deceased (son of the complainant) came to her house followed by Muhammad Aslam appellant. The complainant asked her deceased son as to why he had not gone for working. He told her that Muhammad Aslam (appellant) had given him a message that she had sent for him. She told him that she had not sent for him. Deceased sat in the western room with her mother. The appellant sat on cot lying in the courtyard. A shortwhile later, he came to the complainant and asked her if they want their daughter to live with him or not. She replied that she was living with him in a nice manner since long. Whereupon, he told her that your son Sarwar was shameless (Baighairat).
Thereupon Sarwar told him not to talk nonsense. The complainant tried to effect conciliation. In the meantime P.Ws. Abdul Ghani. Liaqat and Zainul Abidin also came there. Her husband Muhammad Sharif was also present there. The appellant in the presence of all of them brought out a khanjar from his fold. The complainant tried to catch him but he pushed her away and gave injuries to Sarwar with the Khanjar on the right upper arm, left pit and right side of the chest. Sarwar also suffered some abrasions while attempting to save himself. Sarwar fell down. The appellant ran away. Sarwar died at the spot.
4. Ijaz Ahmad, A.S.I. (P.W.10), after recording the F.I.R. Reached the spot.
' He dispatched the dead body for post-mortem examination after preparing injury statement (Exh.P.E.) and inquest report (Exh.P.F.). Blood-stained earth was taken into possession by him from the spot vide memo. Exh.P.H. He also-recorded the statements of the witnesses.
' The appellant was arrested on 2-11-1985. On 9-11-1985, he led to the recovery of blood-stained dagger (P.W.) from near the railway track close to the rilway crossing, which was taken into possession vide memo. Exh.P.C.
' After completion of necessary investigation challan was submitted to Court.
5. Statements of 11 P.Ws. Were recorded at the trial.
' Dr. Syed Iftikhar Ahmad, who had performed autopsy on the dead body, on the same day, appeared as P.W.11. He had noted following inuries on the body of the deceased:
(1) Incised wound 4 x 2 c.m. x chest cavity deep over front of left chest below the level of nipple 3 c.m. Below and medial backwards and laterally.
(2) Incised wound, 4 x 1-1/2 c.m. x muscle deep, transverse over frontal and medial side of left upper arm.
(3) Incised wound, 3-1 /2 x 2 c.m. Chest cavity deep over left side of chest below axilla, directed medially and backwards.
(4) Incised wound, 1-1 /2 x 1 c.m. x muscle deep over back and outer part of left chest 6 c.m. Below injury No,3
(5) Incised wound, 7 x 2 c.m. x muscle deep over medial part of right elbow.
(6) Abrasion, 3/4 x 1/2 c.m. Over tip of nose.
(7) Incised wound, 2 x 1/2 c.m. x skin deep over back of left scapula lower part.
' On internal examination, he found the pericardium and left vertical of heart cut under injury No,l.
Posterior part of left lower upper lobe of the lung was found cut under injury No,3. Left pleura, left lung and diaphragm were also found injured.
' All the injuries were opined to be sufficient to cause the death in the ordinary course of nature.
Probable time between injuries and death was opined to be sudden while duration between death and post-mortem was opined to be within 12 hours.
6. The ocular account was deposed to by Mst. Hamida Begum (P.W.1) and Abdul Ghani (P.W.2).
' While narrating the facts given by her in the F.I.R. At the trial Mst. Hamida gave a more detailed account of the infliction of injuries by the appellant to the deceased and explained in a more detailed manner about the loan of a sum of Rs,200 obtained by the deceased from the appellant.
Shc gave different version from the F.I.R. About the place where the deceased and the appellant had sat after coming to her house. In that, she stated that both of them sat on different cots in front of each other and that the appellant had summoned her from outside and then asked her.
"Whether I wanted to continue my daughter live peacefully with him or not". During cross- examination, she stated that the accused was the son of her real sister and her husband Sharif was real brother of the father of the accused. She conceded that the accused and her daughter had filed suits against each other for dissolution of marriage and for restitution of conjugal rights, and that they were disposed of as a result of a compromise. She admitted that Mst. Salima Bibi was sister of the accused but denied that she had come to her house along with the accused to take back hcr daughter (wife of the accused). In fact, she denied the suggestion that his daughter (wife of the accused) had returned to her house on account of some annoyance and the accused had come to take her back along with Mst. Salima. She also denied the suggestion that she had agreed to send back her daughter with the accused but the deceased had refused and that on that account Mst. Salima had quarrelled with the deceased and told him that he was responsible for not sending the wife of the accused, as a result of which, the deceased had slapped her. She also denied the suggestion that it was on that account that the accused had felt provoked and had inflicted the injuries to the deceased after picking up Chhuri from her house.
' Abdul Ghani (P.W.2) stated that he had reached the spot after hearing alarm from the house of the complainant. He claimed that he had seen the accused standing with dagger in hand and that he had inflicted the injuries to the deceased in his presence. He stated that he along with Zainul Abidin, Muhammad Sharif and Mst. Hamida had attempted to intervene but could not do so as they were threatened by the accused. During cross-examination, he stated that he could not make out while being at his house as to what was the nature of the dispute between the parties. In answer to another question, he stated that his whole attention was devoted to the deceased, who was being attacked, and so did not care to see as to whether there was any other person in the house of the complainant at that time. He did not specifically deny having seen Mst. Saleema D.W.
' Siraj Din (P.W.4) deposed about the recovery of blood-stained dagger at the instance of the appellant and of having attested the recovery memo. During cross-examination, he admitted that the deceased was from his brotherhood. He also gave out that he had gone to the police station on having learnt about the arrest of the accused on the third day of the occurrence. ' ljaz Ahmad, A.S.I. (P.W.10), while giving the account of registration of case, the investigation conducted by him and the arrest of the accused, also deposed about I he recovery of dagger at the instance of the accused. During cross-examination he stated that he had not investigated into the disputes which existed between the accused and his wife. He denied the suggestion that he had suppressed the plea of the accused, which was based on grave and sudden provocation on account of the fact that the deceased immediately before the occurrence had manhandled and abused the sister of the accused.
' Iftikhar Hussain, H.C. (P.W.8), who had been working as M.H.C. At the police station during the days of occurrence stated that the parcel of bloodstained earth was dispatched to the office of the Chemical Examiner on 17-11-1985 and that the parcel containing dagger was sent to the office of the Chemical Examiner on 10-12-1985. He gave out that the said parcel was deposited with him by the A.S.I. On 9-11-1985. During cross-examination he explained that he did not send the parcel of weapon of offence earlier, as the docket that had not been prepared. He denied the suggestion that the weapon of offence had not been recovered till 17-11-1985.
7. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole. He also denied the recovery of dagger. He stated as follows in answer to the question, "Why this case against you'?
"The story of the prosecution is false. My wife had gone to her brother. I took my sister with me to bring her back. The deceased came to the house of her mother who is my mother-in-law and I was also present there along with my sister. The deceased was also there and was talking about my wife. My sister said that the deceased was responsible for my wife. He was not allowing her to return on which the deceased slapped my sister and also hurled filthy abuses on her. I lost my temper and under grave and sudden provocation took up a Chhuri from the kitchen and gave injuries to the deceased. I never wanted to take his life. Whatever had happened, was under grave and sudden provocation, as he had misbehaved and misconducted to my sister who was young in age. I had never any intention to cause the death of the deceased."
' He made statement on oath also as D.W.-1. In that also he took up the same plea which he had put forth during his statement under section 342, Cr.P.C. But he made a little more detailed statement. During cross-examination, he admitted that his parents and grandmother were alive during the days of occurrence but none of them had accompanied him to bring back his wife. He also admitted that he had a younger brother aged about 21 years. He denied the suggestion that he had quarrelled with the deceased on account of non-payment of loan of Rs,200 or that he had murdered him on that account. Mst. Salecma Bibi, sister of the appellant, appeared as D.W.2, and stated that Mst. Muneeran, wife of his brother, had gone to Sambrial after some quarrelling with her husband and that she along with the accused had gone to the house of Mst. Hameeda to bring her hack a day before the occurrence. According to her, the complainant, her husband, Sharif, and the appellant were present in the house. She stated that when her brother demanded that his wife should be sent with him, the deceased took hcr away to his house, which was in the different Mohallah. She further stated that they stayed in the house of the complainant for the night and on the following morning the accused again repeated his request, on which the complainant replied that let the deceased come. According to her when the deceased came in the morning, the complainant was agreeable to send her daughter but the deceased refused to do that; on which she remarked against the deceased that he was responsible for the whole trouble and was Fasad- ki-Jar (a mischief maker); upon which the deceased slapped her 4/5 times and hurled abuses also; as a result of which the appellant felt provoked and started quarrelling with the deceased and then brought out a Chhuri from the kitchen seeing which she ran away due to fear. During cross-examination, she denied the suggestion that she had not accompanied her brother to the house of the complainant and had made a false statement to save her brother.
8. Learned counsel for the appellant criticised the impugned judgment and contended that the prosecution has failed to prove the case against the appellant and that the version put forth by the appellant was more probable and nearer the truth than the prosecution version. Learned counsel contended that no case under section 302, P.P.C. Was made out and that at the best appellant can be held liable for having committed an offence under section 304, Part I, P.P.C. On account of having acted disproportionately to the provocation caused by the deceased.
9. Learned counsel for the state defended the judgment of the trial Court.
10. The parties in this case are admittedly close relatives. The appellant during statement under section 342, Cr.P.C. As well as statement made by him on oath, did not deny the killing. Apart from that the testimony of Abdul Ghani (P.W.2) of having witnessed the appellant causing injuries to the deceased in itself is sufficient to hold that it was the appellant who had inflicted injuries to the deceased, because the said witness was neither related to the complainant party nor had any enmity with the accused. In fact, no such thing was suggested. Being a close neighbor, he is a natural witness.
' In the circumstances, the only question which needs consideration is, whether the appellant had committed deliberate and calculated murder or he had acted under grave and sudden provocation; as a result of the beating given by the deceased to his sister?
' The prosecution as well as the appellant are at one with regard to the fact that the appellant had come to the house of the complainant at 7 a.m. a day before the occurrence and had not only stayed there for the day but had stayed for the night as well. If the appellant had gone there to get back the amount of loan from the deceased, he would have gone to his house, where he was residing separately or would have made the demand from the mother of the deceased or his stepfather on the very first day or at least during the night, he stayed there. No such thing was stated by the complainant in the F.I.R. She did not state anything with regard to that while appearing at the trial also. All that she stated at the trial was that shortly before the actual occurrence the appellant had talked about the loan taken by the deceased from him.
' Yet another aspect of the case is, that even according to the complainant, the appellant had told her at Fajar prayer time on the day of occurrence that he was going back to his house in Sialkot and had not accepted the offer/request of the complainant and her husband that he should go after taking food. If the appellant had gone to the house of the complainant only to receive back the loan, he would not have stayed there for the whole day and for the night and left her house in the morning without mentioning that fact to her or to her husband, and without meeting the deceased. Even according to the complainant the deceased for the first time mentioned about the said loan when he had returned to his house at 7 a.m. After having left for Sialkot followed by the deceased. The stay of the appellant in the house of the complainant for the whole day and night before the time of occurrence shows that the purpose of his visit was something else, than the prosecution has given out. In this connection, the claim made by him and his sister, Mst. Saleema (D.W.2), that the complainant was agreeable to send back the wife of the appellant with him but the deceased was not agreeable to that, seems to be better and more plausible reason for prolonging stay by the appellant expecting that he might be able to take back his wife after convincing the deceased. The statement made by the complainant that the appellant had asked her shortly before the infliction of injuries to the deceased, whether she wanted her daughter to live peacefully with him or not, and that she had replied affirmatively, also seems to be more in line with the version put forth by the appellant that he had gone to the complainant's house to take back his wife who had left his house on account of some annoyance. Although the Investigating Officer did not concede that the appellant had put up any such plea before him, but he conceded that he had not investigated into the dispute, which existed between the accused and his wife. His statement clearly indicates that it had come to his knowledge that there was some dispute between the accused and his wife. The factum of the unhappiness between the accused and his wife also finds corroboration from the admission made by the complainant, during cross- examination, that sometime prior to the occurrence, her daughter had filed a suit for dissolution of marriage against the accused while the accused had filed a suit for restitution of conjugal rights.
Those suits were disposed of as a result of a compromise.
11. The evidence of recovery of blood-stained dagger at the pointing out of the appellant does not inspire confidence and so does not lend any corroboration to the prosecution version. In that connection what particularly attracted my attention is that although according to the prosecution the dagger had been recovered at the instance of the appellant on 9-11-1985 and the parcel of the same had been deposited at the police station on the same day but in spite of that the parcel containing blood-stained dagger was not sent to the office of the Chemical Examiner along with the parcel of the blood-stained earth on 17-11-1985 and was instead sent on 10-12-1985. The explanation given in this regard by the M.H.C. (P.W.8) appears to be out of context.
12. As a result of the above discussion, I feel inclined to hold that the version put forth by the appellant appears to be more probable and nearer the truth. The conviction of the appellant under section 302, P.P.C. Is, therefore, set aside. However, the number of injuries and the seats of injuries clearly make out a case that he had acted indiscreetly and disproportionately to the provocation.
He is, therefore, convicted under section 304, Part I, P.P.C. And sentenced to undergo R.I. For ten years, plus to pay a fine of Rs,3,000, in default whereof to suffer R.I. For one year. He shall be given the benefit of the provisions of section 382-B,) Cr.P.C.
13. Since the conviction of the appellant under section 302, P.P.C. Has been set aside, the question of enhancement of sentence from life imprisonment to death does not arise. The revision petition, which is at motion stage, therefore, stands dismissed.