MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No.86 of 1987 and the connected Murder Reference No.13 of 1987 arise from the judgment of learned Sessions Judge, Bahawalnagar, whereby he on 13-5-1987, convicted Manzoor Ahmad alias Shami (26) appellant under section 302, P.P.C. For the murder of Mst. Denan (16/17) and sentenced him to death. However, neither any fine was imposed and nor any compensation was awarded to the legal heirs of the deceased. .
2. The occurrence took place on 27-6-1986 at 11-00 p.m. In the house of Abdul Sattar, father of the deceased situate in Basti Bakhrana at a distance of 7--1/2 k.m. From Police Station Donga Bonga.
The F.I.R. Exh.P.E was lodged by Ghulam Nabi P.W.5 on 28-6-1986 at 5-00 a.m. And was recorded by Malik Qadir Bakhsh, Inspector, P.W.10.
3. Mst. Denan deceased was the sister of the were of Manzoor Ahmad appellant. She was married to Noor Nabi 1-1/2 years before her murder. Ghulam Nabi P.W.5 (complainant) is brother of her husband. Mst. Jannat Bibi P.W.6 and Mst. Sakina Bibi P.W.7 are the mother and sister, respectively, of the deceased and mother-in-law and sister-in-law respectively of the appellant. Muhammad Amin P.W.8 and Bashir Ahmad P.W.9 are not related to the deceased.
4. The motive allegedly was that Manzoor Ahmad appellant demanded the hand of Mst. Denan deceased for his brother namely Nazir, but Abdul Sattar, father of the deceased and also father-in- law of the appellant, did not agree. Instead she was married to Noor Nabi to the annoyance of the appellant. About one month before the occurrence, he asked the deceased to get divorce from her husband but Mst. Denan abused him and the appellant threatened her with dire consequences.
5. As for the main occurrence, it has been stated that at the eventful time, Mst. Denan was sleeping in the courtyard of the house of her parents. Mst. Jannat Bibi and Mst. Sakina Bibi were sleeping nearby. The father and brothers of the deceased were not present as they had gone to attend some marriage. Ghulam Nabi was sleeping in the street opposite to the house of Abdul Sattar. The lantern was burning. On hearing the shrieks of the deceased, Ghulam Nabi Mst. Jannat Bibi and Mst. Sakina Bibi were up and saw the appellant armed with a gun present in the courtyard of the house and the deceased was trying to snatch the gun from him. Ghulam Nabi P.W.5 raised Lalkara, whereon the appellant stepped 3/4 feet back and fired shot from his gun hitting the deceased, who fell down. The appellant ran away from the house by scaling over the wall of the house. Mst. Denan succumbed to the injuries at about 3-00 a.m.
6. On 29-6-1986 at 7-00 a.m. Dr. Capt. Abdul Majeed P.W.4 conducted post-mortem examination on the dead body of the deceased and found following injuries on her person:-- Injuries (1)One lacerated wound 2-1 /2 x 2 c.m. x peritoneal cavity deep on the mid of the back, slightly on right side about 2 c.m. Below the inferior angle of right scapula. The wound was oval in shape with everted margins (five arm wounds of entrance). Blackening tatooing and scorching of the skin around the margins of the wound and the covering cloth present. The Bunian over the wounds was blood-stained and torn. The plastic of cartoon recovered from the wound was sealed and handed over to the police.
(2)One lacerated wound 1-1/2 x 1-1/4 c.m. x peritoneal cavity deep on front of right side of abdomen 17 c.m. Below the right nipple, which was oval in shape with everted margins (fire-arm wound of exit). The Bunian over the wound was torn and blood-stained.
(3)One lacerated wound 1 x 3/4 c.m. On front of right side of abdomen about 1-3/4 c.m. Below and medial to injury No.2. The wound was oval in shape and margin of the Wound was everted (five fire-arm wounds of exit). The Bunian over the wound was torn and blood-stained.
(4)One lacerated wound 1-1/2 x 1 c.m. x peritoneal cavity deep on front of right side of the abdomen about 5-1/2 c.m. Below and medial to injury No.2, which was oval in shape with everted edges. The Bunian over the wound was torn and blood-stained (This was fire-arm wound of exit).
(5)One lacerated wound 1 x 3/4 c.m. x peritoneal cavity deep on front of right side of the abdomen about 1 c.m. Below and lateral to injury No.2. The wound was oval in shape with everted marginal edges (Fire-arm wound of exit). The Bunian over the wound was torn and blood-stained).
(6)One lacerated wound 1 x 3/4 c.m. x peritoneal cavity deep on front of right side of abdomen about 2-1/2 c.m. Below and lateral to injury No.2 with oval shape and everted margins (fire-arm wound of exit). The Bunian over the wound was torn and blood-stained.
(7)One lacerated wound 2 x 1-1/2 c.m. x peritoneal cavity deep on front of right side of abdomen about 3 c.m. Below injury No.2, oval in nature with everted margins (fire-arm wound of exit). The 8unian over the wound was torn and blood-stained.
(8)One lacerated wound 1-1/4 x 1 c.m. x peritoneal cavity deep on front of right side of abdomen about 4 c.m. Below and medial to injury No.2, oval in nature with everted margins. (Fire-arm wound of exit). The Bunian over the wound was torn and blood-stained.
(9)Five lacerated wounds on an area of 7 x 6 c.m. On the antero medial part of the right fore-arm about 7 c.m. Below the elbow joint. Each wound was oval in shape and measures 1-1/2 x 1-1/4 c.m. x bone deep. The margins of the wounds were averted (Fire-arm wounds of entrance). No blackening, tatooing, scorching of the skin around the margins of the wounds was present. The underlying bone (right ulna factured in its middle part).
(10) One glazed wound 3 x 1/4 c.m. On antero-medial part of right forearm above the wrist joint 10 c.m. Above with oblique direction.
(11) Five lacerated wounds on an area of 6-1/2 x 5-1/2 c.m. On back of right forearm about 9 c.m.
Below the elbow joint. Each wound was oval in shape and measures 1-1/2 x 1 c.m. x bone deep with margins of wounds everted and were exit wounds."
7. The appellant was arrested on 1-7-1986 by Malik Qadir Bakhsh, Inspector, P.W.10. He was carrying a gun Exh.P.4, live cartridge Exh.P.5, bandolier Exh.P.6 and licence Exh.P.7 of the gun, which were taken into possession vide memo. Exh. P.H. Attested by Bashir Ahmad P.W.5, Said Muhammad (not produced) and Malik Qadir Bakhsh, Inspector, P.W.10. It may be noted that since no empty was recovered from the place of occurrence, therefore, the recovery of gun was of no legal consequences in this case.
8. To prove its case, prosecution examined 10 witnesses. Ghulam Nabi P.W.5, Mst. Jannat Bibi P.W.6 have also deposed about the motive. They have fully supported the motive as well as the version of the prosecution relating to the main occurrence. Muhammad Amin P.W.8 saw the appellant coming out from the place of occurrence armed with a gun. When he tried to apprehend the appellant, he threatened him and made good his escape. Muhammad Amin P.W. Further stated that when he reached the spot, Mst. Denan was still alive although injured. She narrated that the appellant had fired at her. Bashir Ahmad P.W.9 and Malik Qadir Bakhsh, Inspector, P.W.10 have supported the recovery of gun Exh.P.4, etc. From the appellant. Dr. Capt. Abdul Majeed, P.W.4 has proved the post-mortem examination report.
9 When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He raised plea of false implication and stated that it was a case of blind murder and he was involved by the complainant on account of enmity. In reply to Q. No.15, he stated:-- "The real facts are that the complainant was inimical towards me, because, in the' absence of the husband of the deceased he used to hire the deceased as sexee for immoral purposes which was objected by me. For this reason the complainant was inimical towards me. In fact this was a blind murder and on the basis of that enmity the complainant and the parents of the deceased have falsely implicated me in this case: Even prior to the marriage of the deceased, her parents had been promising to give her hand to different persons including one Muhammad Amin and one of their relatives Khushi Muhammad resident of India and had been exhorting money from them."
He did not give evidence on oath in disproof of the charge against him. No witness in defence was produced.
10. Believing the prosecution case and the evidence produced by it, the trial Court has convicted and sentenced the appellant as stated above.
11. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubts, inasmuch as there is an inordinate delay in conducting post-mortem examination. The deceased died at 3-00 a.m. On 28-6-1986 but the post-mortem examination was conducted on 29-6-1987 at 7-00 a.m.; that the eye-witnesses are closely related to the deceased, that the eye-witnesses had actually not seen the occurrence; that the identification of the accused in the dark night was/is doubtful; that according to the eye--witnesses, the appellant fired one shot at the deceased but the medical evidence shows that there were two entrance wounds and that the story of the prosecution that the appellant had awaken the deceased and then killed her is highly improbable. In the alternative, the learned counsel for the appellant relied on application (Criminal Miscellaneous No.1661/M of 1987/BWP) stating that since compromise has been effected between the parties, so the appellant may either be acquitted or sentence of death be reduced to imprisonment for life. Learned counsel for the State has supported the judgment of the trial Court.
12. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the accused under section 342, Cr.P.C. And the circumstances appearing in the case. We do not feel persuaded to agree with the learned counsel for the appellant. The occurrence took place in the house where Mst. Jannat Bibi P.W.6 and Mst. Sakina Bibi P.W.7 reside. So their presence at the time of occurrence near the deceased was quite natural. The appellant is married to another daughter of Mst. Jannat Bibi. Mst. Sakina Bibi P.W.7 is the sister-in-law of the appellant. They had no animus against the appellant to involve him falsely in the case. Had they not seen the appellant causing the death of the deceased, then in view of his critical relation with them, Mst. Jannat Bibi and Mst. Sakina Bibi P.Ws. Would not have deposed against him. There is nothing in evidence or even in statement of the appellant that his relations with his were were `trained or she was not living wit b him at the time of occurrence. Ghulam Nabi P.W.5 has no motive to involve the appellant falsely in the case. In villages, people normally sleep outside the houses. He has given plausible cause of his sleeping on the night of occurrence opposite to the house in which the occurrence took place. Muhammad Amin P.W.8 is a quite independent witness. He has no reason to depose falsely against the appellant. He had seen the appellant coming out of the place of occurrence. On reaching the place of occurrence, he found Mst. Denan lying in injured condition. He stated that the deceased had disclosed the name of Manzoor Ahmad appellant as her assailant.
All the eye-witnesses and Muhammad Amin P.W.8 have successfully faced the test of cross- examination. The part of the statement of Muhammad Amin relating to the dying declaration of Mst. Denan was not questioned in cross-examination. Except for minor and immaterial contradictions/discrepancies here and there, the learned counsel has not been able to point out any material discrepancy/major contradiction or dishonest improvement in the statements of the aforesaid witnesses. The appellant was fully known to the witnesses. So there was no difficulty in identifying him. The eye-witnesses have stated in their evidence in the Court that the lantern was burning at the time of occurrence. Although in the F.I.R., it has not been stated that the lantern was burning at the time of occurrence, yet the benefit of this omission cannot be claimed by the learned counsel for the appellant because Ghulam Nabi complainant was not confronted with the F.I.R. In this regard. Other eye-witnesses, who, too, have not been confronted with their statements under section 161, Cr.P.C. With regard to the presence of the lantern at the time of occurrence, have supported the presence of the lantern at the time of occurrence. The lantern was taken into possession by the police on the following day of occurrence. The recovery of lantern is supported by Bashir Ahmad P.W.9. Bashir Ahmad P.W. Is an independent witness having no ill-will against the appellant. We do not see any valid reason to disbelieve his statement. It is a case of single accused. The injuries found on the person of the deceased commensurate with the number of the culprit named by the eye-witnesses. The occurrence took place within the limits of Police Station Donga Bonga. The dead body reached District 11cadquarter Hospital, Bahawalnagar on the following day at 5-40 p.m. (as stated by the doctor). The doctor was not asked in cross- examination as to why he had delayed the post-mortem examination till 7-00 a.m. On 29-6-1986.
The distance of Bahawalnagar from the place of occurrence is not in evidence. The eye-witnesses were up on the shrieks of the deceased. They have not stated in their evidence in the Court that they had seen the appellant awaking the deceased. Ghulam Nabi P.W. Had stated in the F.I.R. But he has not been confronted in accordance with the provisions of Article 140 of Qanun-e-Shahadat with this statement in the F.I.R. It is well-settled that the F.I.R. Is not a substantive piece of evidence, so it can either be used to corroborate the statement made by the complainant at trial or to confront the same. Since Ghulam Nabi P.W. Has not been confronted with this part of his I statement, so this piece of statement given in the F.I.R. Cannot be used as a legal evidence. The location of the entrance wounds Nos. 1 and 9 read with diagram will show that these injuries were caused by one shot and not by two shots. For all these reasons, we are convinced that the trial Court has rightly recorded the conviction of the appellant under section 302, P.P.C. For the murder of the deceased and the contentions/submissions raised/made by the learned counsel for the appellant are devoid of force and substance.
13. This brings us to the alternative argument of the learned counsel for the appellant. Application for compromise (Criminal Miscellaneous No.1661-M of 1987) is signed by Ghulam Nabi, complainant, Noor Nabi, husband of the deceased. Ghulam Nabi is not legal heir of the deceased although her husband Noor Nabi is her legal heir. The parents of the deceased have not signed this application. The list of the legal heirs of the deceased is not on record. So we do' not see any cogent reason to acquit the appellant on the basis of this miscellaneous application. However, benefit of this application on the question of I sentence can/may be given to the appellant.
Pursuant to the above discussion, there being satisfactory basis to uphold the conviction of the appellant, the appeal against his conviction is dismissed but the sentence of death is reduced to imprisonment for life. The appellant will also get benefit of the provisions of section 382-B, Cr.P.C.
Death sentence is not confirmed