MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No.146 of 1987 and the connected Murder Reference No.1 of 1988 arise from the judgment of learned Sessions Judge, Bahawalnagar, whereby he on 9-12-1987 convicted Abdul Majeed appellant (30) under section 302, P.P.C. For the murder of his brother's were Mst. Jamila Bibi and sentenced him to death and a fine of Rs.10,000, in default thereof one year's R.I. With the direction that the fine if realised be paid to the, legal heirs of the deceased.
2. The occurrence took place on 17-5-1987 at about 4-00 p.m. In the house of the husband of the deceased namely Rashid Ahmad situate in Bait Hussain Colony at a distance .Of one kilometre from Police Station City Chishtian. The F.I.R. Exh. P.G. Was lodged by Khuda Bakhsh P.W.7, father of the deceased on the same day at 4-30 p.m. And was recorded by Amir Azam Baig, Inspector, P.W.12.
3. Mst. Jamila Bibi was married to Rashid Ahmad, brother of Abdul Majeed, appellant, 1-1/2 months before the occurrence. The background of the occurrence as stated by the prosecution was that the appellant had evil eye upon the deceased and used to tease her.
4. As for the main occurrence, it has been stated that on 16-5-1987, Khuda Bakhsh complainant had come to Chishtian to know the welfare of her daughter. He stayed in the house of Channan Din. On the eventful day at about noon time he narrated the evil design of the appellant and his treatment with the deceased to Muhammad Hanif, Wali Muhammad and Channan Din P.Ws. At about 3-45 p.m. All of them left for the house of Rashid Ahmad for complaint. Reaching near the house of Rashid Ahmad, they heard shrieks from inside the house. They went inside and found Abdul Majeed appellant giving Chhuri blows to Mst. Jamila Bibi. Khuda Bakhsh and others tried to apprehend the appellant but he threatened them with dire consequences. On receiving the injuries Mst. Jamila fell down and died. The appellant made good his escape taking Chhuri with him.
5. Dr. Mushtaq Hussain, who had conducted post-mortem examination on the dead body of the deceased had gone abroad and was not available, so Muhammad Ashiq Clerk, fully acquainted with the writing and signatures of Dr. Mushtaq was produced as P.W.11. Muhammad Ashiq has proved the post---mortem examination report Exh.P.1 and the diagrams of the injuries Exh.P.1/1. He stated that the carbon copy of the post-mortem examination report was in the hand of Dr. Muhammad Mushtaq. He identified his signatures thereon. He was not cross-examined by the defence. The post-mortem examination report shows that there were as many as 8 injuries on different parts of the body of the deceased. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of multiple injuries. All the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.
6. The appellant was arrested on 19-5-1987 by Amir Azam Baig, Inspector, P.W.12. On 20-5-1987, he got recovered his blood-stained shirt Exh.P.6 and Chadar Exh.P.7 from cluster of trees, which were taken into possession vide memo. Exh. P.E. Attested by Abdul Majeed P.W.6 and Abdul Rashid (not produced). On the same day in the presence of the same witnesses, he got recovered blood- stained Chhuri Exh.P.8 from cluster of trees which was taken into possession vide memo. Exh. P.F.
The memoranda were prepared and signed by Amir Azam Baig, Inspector, P.W.12. Serologist Report Exh. P.N. Shows that the clothes Exhs.P.6 and 7 and Chhuri Exh.P.8 were stained with human blood.
7. To prove its case prosecution produced 11 witnesses. Khuda Bakhsh P.W.7, Wali Muhammad P.W.8 and Muhammad Hanif P.W.9 have given the ocular account of the occurrence. They claim to have seen the appellant inflicting knife blows on the person of Mst. Jamila Bibi deceased at the place of occurrence. Abdul Majeed P.W.6 and Amir Azam Baig, Inspector P.W.12 stated that the appellant had led to the recovery of blood-stained shirt Exh.P.6, Chadar Exh.P.7 and Chhuri Exh.P.8 on 20-5- 1987. Muhammad Ashiq P.W.11 has proved the post-mortem examination report. Supporting the motive of the appellant to kill the deceased, Khuda Bakhsh P.W.7 stated that before her death, the deceased had told that the appellant was having evil eye upon her. The rest of the evidence is more or less of formal nature.
8. In his statement recorded under section 342, Cr.P.C., the appellant admitted to have killed the deceased. He raised the plea of grave and sudden provocation. In reply to question No.3, he stated:-- "On the day of occurrence, I was keeping fast as it was Holy month of Ramazan. I reached home at about 3-00 p.m. The shutters of the room were closed and when I pushed them, they opened and I found Mst. Jamila and Ashraf naked and in compromising position. On seeing me, Ashraf ran away and I picked up the Chhuri lying near the hearth and killed Mst. Jamila."
"In fact, I had voluntarily appeared before the police on the day of occurrence and produced blood-stained Chhuri Exh.P.8 before the police and they secured my blood-stained shirt Exh.P.6 and Chaddar Exh.P.7 at the time of my arrest in the police station."
The appellant neither gave evidence on oath in disproof of the charge against him nor did he produce any witness in defence.
9. Believing the prosecution evidence and the version of the occurrence narrated by the eye- witnesses and disbelieving the defence plea of grave and sudden provocation, the trial Court has convicted and sentenced the appellant as stated above.
10. Learned counsel for the appellant submitted that the eye-witnesses are closely related to the deceased; that they had not seen the occurrence; that the appellant had no motive to kill the deceased and that in reality the appellant had killed the deceased seeing her in compromising position with her paramour Muhammad Ashraf. Learned counsel for the State has supported the judgment of the trial Court.
11. We have carefully attended to the arguments of the learned counsel for the appellant and have reviewed the entire evidence produced by the prosecution, statements made by the appellant under section 342, Cr.P.C. And the circumstances appearing in the case. We find that there is no dispute with regard to the time of occurrence, place of occurrence, identity of the accused and the fact that Mst. Jamila Bibi died as a result of injuries caused by the appellant with Chhuri Exh.P.8. So, the crucial question, which arises for consideration and determination, is as to whether the occurrence took place in a manner as alleged by the prosecution or in a manner as stated by the appellant. It is a case of two versions. We first proceed to examine the prosecution evidence in order to arrive at a conclusion with regard to its truth or falsity. We find that the presence of the eye-witnesses including Khuda Bakhsh P.W.7 is, mentioned in the promptly lodged F.I.R. Except suggestion there is nothing in evidence to show that Khuda Bakhsh complainant was not present in the village where the occurrence took place and was brought there subsequently. The daughter of the complainant was living with her husband in the village where the occurrence took place. Since she had complained about the misbehaviour of the appellant, therefore, the cause of his arrival in the Basti and his going to the house of Rashid Ahmad alongwith Wali Muhammad, Muhammad Hanif and Channan Din was/is quite plausible. No doubt, Muhammad Hanif is maternal-nephew of Khuda Bakhsh and the were of Wali Muhammad is sister of the were of Khuda Bakhsh and they are closely related to each other but they had no motive at all to involve the appellant who is the real brother of the husband of the deceased, falsely in the case. Wali Muhammad and Muhammad Hanif were the residents of the village where the occurrence took place. So, there was nothing unnatural in their accompanying Khuda Bakhsh P.W. To the house of the husband of the deceased to complain about the misbehaviour of the appellant. They have successfully faced the test of cross-examination. The statements made by them do not suffer from material contradictions/major discrepancies or dishonest improvements. We do not see any legal infirmity in their statements warranting the rejection of their testimony. For these reasons, it is not possible to discard or exclude their statements from consideration.
12. Adverting to the defence plea of grave and sudden provocation, we find that appellant has not been able to establish this plea by direct or indirect evidence. On his own showing he was the only witness of the circumstances of the murder of the deceased, so, he, himself, was the best witness of this plea but he did not dare to give evidence on oath in disproof of the charge against him.
Muhammad Ashraf was not killed or injured on the spot. According to the defence version, it yeas all of a sudden that the appellant came to the house, pushed the shutters of the room and found Mst. Jamila Bibi and Muhammad Ashraf naked and in compromising position. Muhammad Ashraf, who might have been the first target, successfully ran away from the door. He did not leave any shoe or other sign of his presence behind. Had the occurrence taken place in the manner as stated by the appellant then the body of Mst. Jamila would have been found naked, as there was no time and occasion to clothe herself. The plea raised by the appellant at the time of his examination under section 342, Cr.P.C. Seems to be afterthought version. This plea was not raised by him before the Investigating Officer. This plea was not suggested to the eye-witnesses. The suggestion given to Khuda Bakhsh P.W. Was altogether different. During cross---examination, the plea of substitution of the appellant in place of Muhammad Ashraf, the alleged paramour, was suggested. It was suggested to Khuda Bakhsh that on the day of occurrence, Mst. Jamila Bibi was all alone in the house when Muhammad Ashraf son of Fateh Muhammad approached her, but she refused to co- habit with him because, she was with fast whereupon said Muhammad Ashraf inflicted injuries on her person. The suggestion, by itself, falsifies and negates the defence version, inasmuch as, it shows that Mst. Jamila Bibi was with fast at the time of occurrence. The occurrence took place in the month of Ramazan. We are not prepared to believe that a Muslim woman with fast will commit sexual intercourse with a stranger or even with her husband in day time. From the natural flow of the circumstances of this case, we are convinced that on the arrival of Khuda Bakhsh in the village, the appellant came to know that the deceased had apprised her parents about his misbehaviour, so he intentionally killed her. For all these reasons, we are of the view that the trial Court has rightly convicted the appellant under section 302, P.P.C. For the murder of Mst. Jamila Bibi.
13. We have considered the question of sentence of the appellant with utmost care on our part. We do not see any mitigating circumstance in his favour for lesser penalty. Mst. Jamila Bibi being the were of his brother deserved respect and decent treatment from the appellant instead he developed evil designs against her, and mercilessly killed her when she was with fast.
The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is dismissed and the sentence of death awarded to the appellant by the trial Court is confirmed