MUHAMMAD AMIR MALIKJ.-Muhammad Ashraf(35 years) was tried for the murder of his wife(ex- wife) Mst. Kaniz Fatima, by Sessions Judge Sheikhupura and vide judgment dated 5.7.1987 convicted and sentenced to imprisonment for life and a One of Rs.5,000/- or in default thereof six months R J. Under Section 302 PPC. He was also convicted and sentenced to 3 years R.I. Under Section 307 PPC for making murderous assault on Ghulam Qadir complainant.
Both the sentences were ordered to run concurrently. He was, however, allowed the benefit of the provisions of Section 382-B Cr.P.C. He has filed appeal against his conviction (Cr. Appeal No.501 of 1987) while Ghulam Qadir complainant has filed revision petition (Crl. Revision No.399 of 1987) for the enhancement of the sentence. Notice was issued to the appellant to show cause as to why his sentence be not enhanced to death. It is proposed to dispose of the appeal as well as the revision petition by this single judgment.
2. Ghulam Qadir complainant(P.W.2) is and Mst. Kaniz Fatima deceased was, the son and daughter, of Rahim Bakhsh(P. W.l). Mst. Shamim Akhtar(P.W.3) is the wife of Ghulam Qadir complainant.
Muhammad Bilal (P.W.4) is son of Muhammad Din, the brother of Rahim Bakhsh. The appellant is the son of a sister of Rahim Bakhsh (P.W.1) and Muhammad Din.
3. The complainant family was residing in Nizampura Diwa .Singh Chak No.38/RB which is situate at distance of about five miles from P.S.Shahkot District Sheikhpura, though at the time of the present occurrence i.e.10.11.1986 the complainant and his younger brother and their father Rahim Bakhsh were doing business at Lahore. The appellant is a resident of Chak No.47/GB Khatrani Tehsil Samundri, District Faisalabad.
4. Mst. Kaniz Fatima deceased was married to the appellant 10/12 years before the occurrence and the couple had three sons, Afzal, Asghar Shakil(8/9 years, 5/6 years and l\/2 years) and a daughter Mst. Najma (6/7 years). The appellant and the deceased parted company, she came over to her parental house in Chak No.38/RB alongwith Najma and Asghar while the other two sons were left with the appellant, the father. She filed a suit for dissolution of marriage at Lahore and obtained an exparte decree.
5. Mst. Kaniz Fatima deceased was murdered at the house of Ghulam Qadir complainant at 1130. a.m. On 10.Ll.1986. Ghulam Qadir came across Muhammad Ashraf, A.S.I.(P.W.IO) the same day at College Road Shahkot where he made statement (Ex.PA) at 12.15 p.m. It was sent to the Police Station where formal FIR (Ex.PA/1) was registered by Safdar Ali MHC(P.W.8) at 12.30 p.m.
6. The version given in the FIR was that the appellant and the deceased having been married 10/12 years back had three sons and one daughter. They fell out about 1h years back and the deceased obtained divorce from Court. On the day of occurrence she was going to enter into a second Nikah.
At the fateful time(1130 a.m.) the complainant alongwith his wife Mst. Shamim Akhtar(P.W3) and Mst. Kaniz Fatima deceased were present at the house when the appellant reached there carrying a Carbine. He raised a lalkara to the deceased to teach her a lesson for the intended marriage and fired hitting her on the finger of right hand followed by another shot hitting her on the right breast and she f$ll down inside the room and died. The complainant tried to apprehend the appellant and he fired the third shot at him. He saved him by lying on the ground and the^shot hit the parapet of the Kotha. In the meantime Muhammad Bilal raised the alarm from the roof top and so did the complainant. On this the appellant went up the roof of the Deori by stairs, jumped in the street and ran away.
7. Muhammad Ashaf A.S.I.(P.W.10) investigated the case. He prepared injury statement and inquest report (Ex.PK & PL), sent the deadbody to the Mortuary, inspected the spot and secured blood- stained earth vide memo.(Ex.PB), three crime empties(Ex.P/6/l to 3) vide memo. (Ex.PC) and a pair of Chappal(P.I & P.2) vide memo.(Ex PD) from the spot. The empties and the blood-stained earth were sealed into parcels. He arrested the appellant from Bus Stand Shahkot on 18.11.86 and from his personal search Carbine(Ex. P.5) was recovered and taken into possession vide memo. (Ex.PJ) and sealed into a parcel.
8. The post-mortem examination on the deadbody of the deceased was performed by Dr. Mubashar Ahmad (P.W.7) on 11.11.86 at 9.00 a.m. It was the deadbody of a middle aged lady of average built, with eyes semi open and mouth closed. It was clad in Shalwar Kamiz and Dopatta and having a brassier with corresponding holes. He observed the following injuries on the deadbody:-
1. A fire arm wound of entrance with tattooing around the edges 4 cm x 3 cm on the palmer aspect of medial part of right hand involving the little ring and middle fingers with fracture of ring finger into pieces. The pellets travelled forward and made an exit wound 7 cm x 4 cm on the back of the right hand. Seven pellets entered into the right breast and one pellet entered into the left breast.
The pellets fractured the 5th rib, entered the right lung injuring the blood vessels and made exit wounds (three in number) on the right scapular region. Four pellets were removed from the posterior side of the right chest. The pellet entering the left breast caused an injury 1 cm x 1 cm with fracture of the 5th rib puncturing the left side of heart, left lung through and through and was ledged on the posterior side from where it was removed by giving an incision.
2. A firearm wound of entrance (five in number) with j blackening and tattooing around the edges in an area 11 cm x 9cm op the upper part of right breast. The pellets travelled forward and outward and made exit wound 5 in number in an area 10 cm x 5 cm on the outer part of right breast and mid axillary line. It was only muscle deep causing fracture of the big blood vessels.
In the opinion of the doctor the injuries were ante-mortem and by a fire arm. Injuries were individually as well as collectively sufficient to cause death in the ordinary course of nature. The death was due to shock and haemorrhage due to the two injuries. The death was immediate and time between death and post mortem was within 24 hours.
The doctor also obtained two vaginal swabs which were sent to the Chimical Examiner. According to the report of the Chemical Examiner dated 25.11.86(Ex.PH), the same were found to be stained with semen.
9. At the close of the trial, the appellant in his statement pleaded that he came to know about the decree for dissolution of marriage during investigation, the same being exparte. Mst. Kaniz Fatima deceased, according to him, was a lady of easy virtue. She used to elope -with her paramours and he used to give her beating by way of reprimanding over which the complainant party had got annoyance with him. On the day of occurrence the deceased was having sexual intercourse with somebody in the house of Ghulam Qadir where he (Ghulam Qadir) arrived by chance and finding her in compromising position fired upon her and killed her. The man having good time with the deceased was chased by the complainant, the complainant fired at him in the courtyard but missed, the man went up the roof followed by the complainant who again fired but the man jumped in the street and ran away. After deliberation the case was cooked up against him to save the complainant.
10. At the trial Dr. Mubashar Ahmad(P.W.7) provided the medical evidence. Ghulam Qadir, Shamim Akhtar and Muhammad Bilal(P. Ws.2,3 & 4) gave the ocular account of the occurrence. The recovery of blood-stained earth, the three crime empties and pair of Chappell as stated to by Bilal and Muhammad Ashraf ASI(P. Ws.4&10) while the recovery of Carbine from the appellant was stated to by Muhammad Younas(P.W.9) and the A.S.I. The report of the Fire Arm Expert (Ex.PQ) is positive. The case was investigated by Muhammad Ashraf, A.S.I. Appreciating the above evidence and the defence plea the learned trial Judge concluded the charge against the appellant.
11. Learned counsel for the appellant contended that the motive part of the story was not proved, the recovery evidence as to the crime empties and Carbine was of not avail the same having been sent to the Firearm Expert at the same time, the version of the occurrence given by the three eye- witnesses was not probable their testimony was full of contradictions and the conduct of the deceased after the receipt of the conduct of the first shot(as stated by the eyewitnesses) indicated that the occurrence had not taken place in the manner as stated by the eye-witnesses who had made improvement to tune their statements with the medical evidence. Lastly, it was asserted that the investigation was dishonest and partisan. It was also argued that the swabs being stained with semen there was very probability that the defence plea was correct. Learned counsel for the State, however, tried to defend the judgment and raised the argument that there were no extenuating circumstances for awarding the lesser penalty of life imprisonment.
12. After hearing the learned counsel for the parties and going through the record we find no force in the contentions raised by both the learned counsel. As pointed out above, the eye-witnesses and the appellant are very close relatives. The version of the eye-witnesses that the deceased was living with the complainant for about 1h years before the occurrence, has not been put to contrary cross- examination. The fact that she had obtained an exparte decree for dissolution of marriage against the appellant is also an admitted fact though the version of the appellant is that he came to know of it during investigation. It. Is the consistent case of the eye-witnesses that the deceased was going to be remarried with Arshad Mahmood s/o Fazal Din, caste Sheikh of Nizampura at about 8/9 p.m. The appellant being close relative can be expected to have gained knowledge of this state of affairs and the argument raised by the learned State counsel is forceful that feeling enraged he came to the house of his in-laws and fired at the deceased.
Anyhow the eye-witnesses are independent and disinterested and there is no reason why they be not believed particularly Bilal who is equally related to the deceased and the complainant. If the complainant and his wife were annoyed, as is the case of the appellant, over the maltreatment meted out by him to the deceased Bilal in any case, had no such grudge. The complainant clearly told in cross-examination that on entering the Khata the appellant raised a lalkara to the deceased and fired the first shot from a distance of 6/7 feet which she received in standing position and while stretching out both of her hands towards him. The statement is quite natural and in accord with the medical evidence, rather than contradictory. It is the case of the eye- witnesses that only two shots had been fired at the deceased. One can visualise the situation by referring to injury No.1 that the hands were stretched towards the appellants when the first shot was fired, the same hit the palmer side of the right hand making exit at the back then reentering the chest and causing damage making exist on the back. The doctor recovered pellets which were handed over to the police in sealed phial. The second shot was also fired from a close range when the deceased receded towards the room. The witnesses denied the suggestion as to the defence plea raised. The complainant ran after the appellant who went up stairs, fired the third shot at him (the complainant) and it hit the parapet whereafter he jumped down the roof and ran away. The eye-witness account is believable and the same gets support from the motive part of the version as discussed above. No improvements made by the witnesses have been pointed out by the learned counsel for the appellant and we also do not see any with the object of making the eye- witness account consistent with the medical evidence. Mst. Shamim Akhtar (P.W.3) seems to be a simple village lady, had no definite idea as to distances as observed by the learned trial Judge and made a very straightforward and natural statement. The two-witnesses were present at the house and are natural witnesses inasmuch as Mst. Shamim Akhtar was living in the Chak while the complainant had reached as the deceased was to be remarried. Learned counsel for the appellant drew the attention of the Court to the statement of Rahim Bakhsh (P.W.1) who deposed that he reached Sheikhupura straight from Lahore and identified the deadbody over-there. Argument was raised that if the deceased was to be remarried, then in due course the father Ibrahim Bakhsh(P.
W.l) should have been at the house like the complainant in the Chak but it is to be seen that the occurrence took place at 11.30 a.m. And one could reach the Chak from Lahore before the evening.
The argument is rejected. Thus appreciating, the eye-witness account coupled with the motive part of the story, is sufficient to conclude the charge against the appellant.
13. Three crime empties were recovered from the spot but it is apparent from the statement of Zamir Hussain Constable (P.W.6) and Safdar Ali MHC(P.W.8) that the parcels of the crime empties and the carbine were sent at the same time to the Forensic Expert. Thus the report of the Expert would be of no avail to the prosecution. Anyhow the recovery of the three crime empties from the spot is proved from the statements of Bilal(P.W.4) and Muhammad Ashraf, ASI(P.W.IO). The recovery of the three crime empties in a manner corroborates the version of the eye-witnesses that three shots were fired; two at the deceased and the third at the complainant. However, the recovery of Carbine at the instance of the appellant is doubtful. Muhammad Younis(P.W.9) and Muhammad Ashraf ASI(P.W.10) made statements in this respect. Younis being a brother of Bilal,P. W.
And so a close relative of the appellant, is an independent witness but his statement is contradictory to the statement of the A.S.I. Younis deposed that his village was at a distance of seven miles from Bus Stand Shahkot, he had come to the Police Station to find out whether the appellant had been arrested or not and learnt that the police officer had gone to the bus Stand, he reached there and saw the police officer catching hold of the appellant. The version of the A.S.I., on the other hand, is that Younis,P. W. Informed him at the Police Station that the appellant was roaming about in the Illaqa he accompanied him to Bus Stand Shahkot where they remained for about 1h hours on vigilance and finding the appellant boarding a bus, arrested him and the Carbine was recovered. The Statement being diametrically contradictory, no reliance can be placed as to the recovery of Carbine.
14. Learned counsel for the appellant laid great stress as to the character of the deceased and the report of the Chemical Examiner as to the swabs being semen stained to support the plea raised by the appellant. The complainant (P.W.2) denied the suggestion that the deceased used to be beaten by the appellant as she used to frequently leave the house with other persons. Younis (P.W.9) was suggested that he had developed illicit intimacy with the deceased. Ashraf A.S.I(P.W.10) admitted that during investigation it came up from some persons of the village of the appellant that the deceased was a bad character but he also added that it was not proved in the village of the complainant. So, if the swa bs were semen stained, the possibility that the deceased indulged in sexual intercourse with somebody some time or days before the occurrence, can well be visualised, she living separate from her husband for the last about 1h years. If some paramour of the deceased had been seen by the complainant having good time with her at the house, then there is no reason why the paramour should not have been involved in the case and the appellant substituted particularly when the appellant and the deceased had four living minor children. The house being situate in the Abadi of the village it is rather hard to imagine that the deceased would be having goods time with her paramour without even bolting the room or the main door of the house, particularly when Mst. Shamim Akhtar was also admittedly living at the house. There is no force in the defence plea and the same was rightly discarded by the learned trial Court.
15. The upshot is that the appeal against conviction fails and is hereby dismissed. As concluded above, might be the appellant against whom the exparte decree for dissolution of marriage had been obtained, came to know of the arrangements for remarriage on the day of occurrence, was infuriated as to the conduct of the deceased, reached to the house of the deceased and fired at her in broad-day light. We take it as an extenuating circumstance. We therefore, dismiss the revision petition and withdraw the notice for enhancement of the sentence. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.