The appellant was convicted under section 302, P.P.C. And sentenced to imprisonment for life with a fine of Rs.5,000, and in default thereof to further R.I. For 2 years. The fine, if realized, to be paid to the heirs of the deceased, vide judgment, dated 29-4-1987, passed by Ch. Muhammad Saeed, Additional Sessions Judge, Lahore.
The co-accused of the appellant, namely, Shahid Hanif and Zafar Ullah Khan were acquitted by a separate judgment dated 19-4-1987. Initially the appellant, alongwith his acquitted co-accused, were charged with and tried under section 302/380/411/ 149, P.P C. But was convicted and sentenced under section 302, P.P.C. Only as stated above.
2. In brief, the facts leading to the present appeal are that an FJ.R. No.301, dated 20-10-1983, was registered at 11-10 a.m. By the complainant, Abdul Ghaffar, P.W.9, at Police Station Ichhra, Lahore, to the effect that his sister Mst. Shehnaz was married to Maqsood Ahmed accused and had lived with him for three years but later on the relations between the two got strained and she came back to the house of the complainant, her brother, and that about two and a half years ago the accused, Maqsood Ahmed had chopped of the nose of the said Mst. Shehnaz, whereupon he was sentenced to 7 years' R.I., as a result of compromise he was acquitted three months before the occurrence, and that for about eight days therefore his were had stayed with him but again got annoyed and came back to the house of her parents. It is further stated in the complaint, Exh. P.B on the basis of which the formal F.I.R. Exh.P.B./1 was recorded that on 19-10-1983 Maqsood accused had come to the house of in-laws and threatened that if Mst. Shehnaz was not sent with him, he would divorce her, and furthermore, that on 20-10-1983 at about 9-50 a.m. Abdul Ghaffar, Abdul Sattar Mst.
Shehnaz, P.W& and the deceased Mst. Khurshid Begum were present in the house when they heard the voice of rickshaw outside, whereupon Mst. Shehnaz looked out and saw Maqsood and his brother Tariq Mehmood alias Nikka and Manzoor alias Kala (the acquitted co-accused) standing there, whereupon they closed the door but Mst. Khurshid Begum deceased opened the door, as a result all the three accused entered into the house, and that Tariq Mehmood picked up a tape- recorder while Manzoor Hussain took into possession an attach---case, in which there were the clothes and ornaments of Mst. Shahida and went outside the house. It is further stated therein that Abdul Ghaffar, Abdul Sattar and Mst. Shehnaz P.Ws. And Mst. Khurshid Begum deceased followed them out of the house, whereupon Maqsood accused fired 5 shots from his pistol at Mst. Khurshid Begum deceased and killed her.
3. The case was partly investigated by Muhammad Hanif, A.S.I., who recovered tape-recorder, P.4 from Shahid Hanif accused and arrested him and Zafar Ullah accused from G.T.S. Bus Stand. He received tape-recorder, P.4 vide memo. Exh. P.D. He also received clothes P. l, P.2 and Phial P.3 vide memo, Exh. P.C. He also arrested Maqsood accused and recovered pistol P.5 from him, which he took into possession vide memo. Exh. P.E. He made sketches of tape --recorder and pistol and they are Exhs. P.G. And P.H.
4. The case was also investigated by P.W.13, Azizullah, S.I., who received information of the occurrence during patrolling in the Ilaqa. He went to Services Hospital, Lahore and submitted application Exh. P.K. Before the doctor to know if Mst. Khurshid Begum was fit to make a statement, The doctor replied in negative, whereafter he recorded the statement, Exh. P.B. Of Abdul Ghafoor P.W. And sent the same to the police station for the registration of the case. Muhammad Ilyas A.S.I.
Recorded formal F.I.R. Exh. P.B./l on its basis. He inspected the spot and collected blood-stained earth from the spot vide memo. Exh. P.L. And converted the same into a sealed parcel. P.W. Aziz Ullah also took into possession empties P.6 to P.8 vide memo. Exh. P.M. He prepared site plan, Exh P.N. Without scale. He summoned Draftsman and got prepared site plans, Exhs. P.A. And P.A./1. He recorded the statements of the P.Ws. He also prepared injury statement and inquest reports, Exhs P.O. And P.P. Respectively. The report of telephonic message is Exh. P.Q.
5. On 20-10-1983 at 9-30 p.m. P.W.10 Doctor Akif Qasim examined Mst. Khurshid Begum and found the following injuries on her person:
(1) Entry wound present over the occiput 5 x 1-1/2 c.m. On the head. Wound is yesterday. There is mild charring of the skin around the wound.
(2) There is a wound of exit 7-1/2 x 1/2 c.m. Present on the left side of the head, almost 5 c.m. Behind the left mastoid bone. Brain matter was coming out of the wound.
(3) Wound of entry present on the front of middle of neck, 3 c.m. x 1 c.m. Mild charring of the skin present.
(4) There is a wound of exit present on the left side of neck 3 x 2 c.m.
(5) There is a' wound present on the right index finger on the medial side of the right index finger into size of 2 x 1 c.m.
(6) There was a wound of exit over the lateral side 3 c.m. x 1-1/2 c.m. Fractured pieces of bone seen. .
All the wounds were bleeding. The condition of the patient was serious and she was referred to Surgical Unit No.]. All the injuries were caused by fire--arm weapon. Exh. P.F. Is the correct carbon copy of medico-legal report.
6. After the death of Mst. Khurshid Begum,, her post-mortem was conducted by Dr. Khalid Jamil who had proceeded abroad. P.W.12 Maqbool Ahmed has been examined to prove the handwriting and post-mortem report, Exh. P.J.
7. The appellant and his acquitted co-accused had denied the prosecution case in toto in their statements under section 342, Cr.P.C. And claimed to be tried but they neither led evidence in defence nor made statements under section 340, Cr.P.C.
8. The learned trial Court had disbelieved the recoveries against all the accused but disbelieved the ocular evidence only against the acquitted co-accused and duly placed reliance upon the same to convict and sentence the appellant and further accepted the motive as alleged by the prosecution but awarded the lessor punishment of imprisonment for life and fine as stated earlier to the appellant on the mitigating ground that it was not clear as to what had transpired between him and the deceased, and as the same was shrouded in mystery, therefore, the appellant/accused was not awarded the maximum penalty. The learned trial Court had disbelieved the prosecution version in respect of the accused having entered the house of the deceased and taken away the tape-recorder and suit-case etc. As alleged by the prosecution, hence had convicted the appellant only under section 302, P.P.C.
9. The learned counsel for the appellant submitted that out of all the 13 P.Ws. Produced in support of the prosecution version, only two are eye-witnesses, namely Mst. Shehnaz P.W.8 and Abdul Ghaffar P.W.9. In this respect, pointed out that P.W.8 is the real daughter, whereas P.W.9 is the real son of the deceased respectively. Further submitted that it was the case of the prosecution itself as stated in the F.I.R. Exh. P.B./l, that Mst. Shehnaz had hidden herself on the arrival of the accused at the time of fateful occurrence, hence her testimony has to be discarded. Further pointed out that whereas another son of the deceased was named as an eye-witness but he was given up as unnecessary, whereas the other eye-witnesses named in the F.I.R. Namely Ghulam Rasul, Jaswant and Muzaffar Hussain were given up as won over. Therefore, argued that the conviction and sentence of the appellant cannot be sustained on the solitary testimony of P.W.9 Abdul Ghaffar, even if it is conceded for the arguments' sake that the same is credible and worthy of reliance. Further pointed out that the recoveries have not been believed and, in any case, the crime weapon alleged was never sent to the Fire-Arm Expert for his opinion to match the same with the crime empties.
10. In the alternative, the learned counsel for the appellant submitted that if the prosecution version is accepted, even then as mystery shrouds the immediate cause of the appellant being provoked to the extent of firing at the deceased shall make the present case to be one under the provisions of section 304, -Part I, P.P.C. Instead of one under section 302, P.P.C. In this respect, pointed out, that the appellant though estranged was a son-in-law of the deceased and that it is the story of the prosecution itself that he never threatened them with bodily harm even on his earlier visit to the in- laws' house and nor did he threaten the deceased or any other member of the family then he is alleged to have gone inside the house and thereafter walked out of the house empty-handed although it was alleged but not believed by the trial Court that the co-accused were carrying a tape-recorder and a sv4-case respectively. Therefore, argued that under such circumstances, it cannot be established that he had gone to the place of occurrence with the intention to cause even bodily harm what to say of committing murder. Therefore, further submitted that there must have been extreme provocation for the appellant to have committed the murder of the deceased.
Again reiterated that under these circumstances, the appellant's case falls under the Exception I of section 300, P.P.C., the offence charged having been the result of grave and sudden provocation.
The learned counsel further pointed out that the appellant has already undergone imprisonment for more than seven years.
11. On the other hand, the learned counsel for the State opposed the present appeal and submitted that the P.Ws. Were natural witnesses being the family members of the deceased and that the motive pertaining to the estranged relations between the parties stood proved, and that it was day time occurrence, and that the appellant alone being accused of having caused the murder of the deceased by firing at her, under such circumstances the substitution of an innocent person in place of the guilty is highly unlikely, especially as the appellant/accused was otherwise a son-in- law of the deceased. However, the learned counsel for the State conceded that the appellant had never held out a threat of murder or even of bodily harm either to the deceased or to the estranged were or to other members of the family of the deceased, neither on his previous visit nor at the time of occurrence when he made his entry into the house of the deceased nor is it a case of the prosecution that he did so while walking out of the said place. Further conceded that as to what provoked the appellant to fire at the deceased and kill her when they were both outside the house is totally shrouded in mystery.
12. In view of what has been stated above, as it is a day time occurrence and only the appellant is accused of having murdered the deceased, therefore, the chances of substitution under the facts and circumstances of the case, as established by the evidence on the record, have to be ruled out.
However, the immediate cause for the appellant to have taken the extreme step of killing the deceased is shrouded in mystery. Furthermore, it is not the case of the prosecution that at any stage he had held out the threat of bodily harm to either his estranged were or to any other member of the family, and under such circumstances, therefore, it is safe to hold that premeditation for committing of the offence charged has to be ruled out and that some grave and sudden provocation must have taken place to result in the occurrence of the offence charged, and that in keeping with the safe administration of justice, the benefit of the same should go to the appellant. Therefore, in this view of the matter, the conviction of the appellant is converted to one under section 304, Part I, P.P.C. And his sentence is reduced to one already undergone as he has already suffered 7 years' R.I. And the fine imposed is hereby set aside.
13. In view of what has been stated above, the present appeal is partly allowed in accordance with the terms stated above.