RAJA AFRASIAB KHAN, J: - Muhammad Sarwar (27) son of Abdul Rehman's was tried by the learned Additional Sessions Judge, Jhang, for the murder of Mst. Sardaran Bibi (32). The learned trial Judge convicted and sentenced the appellant Muhammad Sarwar under section 302, P.P.C. To death plus a fine of Rs.5,000 or in default to suffer two years' R.I. It was directed that in case of recovery of fine, it shall be paid to the legal heirs of the deceased as compensation. The appellant has challenged his conviction and sentence by filing Criminal Appeal No. 732 of 1986. The learned trial Judge has sent a reference under section 374, Cr.P.C. Vide Murder Reference No. 216 of 1986 for confirmation of death sentence of the appellant. By means of this judgment, we propose to dispose of both the matters together.
2. The prosecution case is that Mst. Sardaran Bibi alias Daro (deceased) was married to Muhammad Ramzan son of Hakim Ali resident of Lahori Gate, Chiniot, about ten years ago. About 5/6 days earlier to the occurrence, a message was conveyed to Muhammad Ramzan, complainant, that Mst. Sardaran Bibi had a quarrel with her mother-in-law on account of some domestic problem and that he should visit her in her Chak. On i1-2-1985, the appellant abused Mst.
Sardaran Bibi on account of her earlier quarrel with his aunt. At about 4 p.m., on 11-2-1985, Muhammad Ramzan, complainant, his grandson Muhammad Shakil and Mst. Sardaran Bibi, his daughter, were present in their house. The appellant while armed with a chhuri entered into the house of Mst. Sardaran Bibi and attacked her while abusing. He gave a chhuri blow, which landed on the abdomen of Mst. Sardaran Bibi. She fell down. Thereafter, the appellant inflicted more injuries on her face, breast and back. The complainant raised an alarm. Muhammad Shakil informed his maternal-aunt Mst. Hasina and she reached the spot also to witness the occurrence.
The statement Exh P.B. Of Muhammad Ramzan was recorded by Ashiq Ali, S.I. At Police Station Sadar, Chiniot and on the basis of that statement formal F.I.R. Exh.P.B./1 was recorded by Zahoor Ahmad Moharrir H.C. P.W.2.
3. Ashiq Ali, A.S.I. P.W.11 investigated the case. He prepared the injury statement Exh. P.H. And inquest report Exh.P.1 of the dead body of Mst. Sardaran Bibi, The dead body was sent for post-mortem examination through Ameer Zaman, F.C. P.W.4. Blood-stained clothes of the deceased P.3 to P.6 alongwith broken bangles were taken into possession vide memo. Exh. P.F. Blood-stained earth was taken into possession vide memo. Exh. P.E. Site plans Exh. P.C. And Exh.P.C./1 of the place of occurrence were got prepared by the Police Officer through Ghulam Dastgir, Draftsman P.W.5 The accused was arrested by the Assistant Sub-Inspector on 16-2-1985. While in police custody, the appellant led to the recovery of knife P.7 from his house, which was taken into possession vide memo. Exh. P.G. Blood-stained clothes of the appellant were taken into possession vide memo. Exh.
P.D. Positive reports of the Chemical Examiner Exh P.J. And that of Serologist Exh. P.K. Were tendered in evidence.
4. Dr. Muhammad Latif P.W.1 conducted the post-mortem examination of the dead body on 12-2- 1985 at 8-30 a.m. And found the following injuries thereon: (1)An incised wound 3 c.m. x 0.75 c.m. On the left side cheek and angle of mouth, cutting the whole cheek andunder lying fifth tooth in full thickness.
(2)An incised wound 4 c.m. x 0.5 c.m. Muscle deep on the right side of cheek and angle of the mouth.
(3)An incised wound 1 c.m. x 0.5 c.m. Muscle deep on the right side of the cheek 3 c.m. In front of the right iragus.
(4)An abrasion 1.5 c.m. x 0.5 c.m. On the right cheek in front of injury No. 3.
(5)An incised wound 2.5 c.m. x 0.5 c.m. x bone deep on the right side of the chin.
(6)An incised wound 4 c.m. x 1 c.m. X :"Muscle deep on the right side of the chin.
(7)An incised wound 1 c.m. x 1.5 c.m. x muscle deep on the right side of the neck below the injury No.6.
(8)A stab wound 2 c.m. x 2.5 c.m, on the front middle and upper part of right chest, which was opening to the chest cavity.
(9) An incised wound 1 c.m. x 0.25 c.m. x muscle deep on the front middle of right chest near the eternal border.
(10) A stab wound 2 c.m. x 0.5 c.m. On the upper and inner part of the right mammary gland and was opening to the chest cavity.
(11) A stab wound 2 c.m. x 0.5 c.m. On the lower and inner part of the right mammary gland, which was also opening the chest cavity.
(12) An incised wound 1 c.m. x 0.25 c.m. x muscle deep on the right mammary gland near injury No.10.
(13) A stab wound 2 c.m. x 1 c.m. Cutting the underlying cartilage and opening into the chest cavity.
(14) A stab wound 2.5 c.m. x 0.5 c.m. On the front of the chest upper part left side near the eternal border lower part and opening into the chest cavity.
(15) A stab wound 2.5 c.m. x 1 c.m. Situated on the epigastria more on the right side opening into the abdomen.
(16) An incised wound 1.5 c.m. x .5 c.m. x muscle deep on the inner and upper part of left mammary gland.
(17) An incised wound 1.5 c.m. x 0.5 c.m. x muscle deep on the left mammary gland below the injury No.6.
(18) An incised wound 1.5 c.m. x 0.5 c.m. x muscle deep on the left mammary gland below injury No.17.
(19) An abrasion 8 c.m. x (?) on the right mammary gland upper part.
(20) A stab wound 2 c.m. x 0.5 opening into the peritoneal cavity on the left side of the abdomen 2.5 c.m. Away from the umbilicus.
(21) A stab wound 3 c.m. x 3 c.m. x peritoneal deep on the left side of abdomen and the omentum was coming out from the wound.
(22) An incised wound 1.5 c.m. x 0.5 c.m. On the left side of the abdomen.
(23) A stab wound 2.5 c.m. x 0.5 c.m. Opening into the abdominal cavity on right side of the abdomen 1 c.m. Away from umbilicus.
(24) A stab wound 1.5 c.m. x 0.5 c.m. x abdominal cavity on the right side of abdomen near the injury No.23.
(25) Five abrasions of different size on the right side of the abdomen in an area of 10 x 2 c.m.
(26) An incised wound 2 c.m. x 0.5 c.m. x muscle deep on the right side back of chest below the angle of scapula.
(27) An incised wound 1.5 c.m. x 0.5 c.m. x muscle deep on the back of right lumber region.
(28) A stab wound 1 c.m. x 0.5 c.m. On the back of the right chest 21 c.m. Below the root of the neck.
(29) A stab wound 1 c.m. x 0.5 c.m. x muscle deep on the right side of lumber region back.
(30) An incised wound 1.5 c.m. x 0.5 c.m. x muscle deep on the left side of the back of the chest.
(31) An incised wound 0.5 c.m. x 0.5 c.m. x muscle deep on the back of the left chest middle part.
(32) An incised wound 4 c.m. x 1.5 c.m. x muscle deep on the back of the left chest lower part.
1n the opinion of the Doctor, death occurred due to shock and haemorrhage as a result of injuries Nos. 1, 8, 10, 11, 13, 14, 15, 20, 21, 23, 24 and 28. The injuries were ante-mortem and were caused with sharp-edged weapon except injuries 4, 25 and 19, which were caused with blunt weapon. Injuries Nos. 1, 8, 10, 11 13, 14, 15, 20, 21, 23, 24 and 28 were sufficient to cause death in the ordinary course of nature. The probable period between injuries and death was immediate whereas it was 12 to 18 hours between death and post-mortem examination.
5. Eye-witness account was given by Ramzan P.W.9 and Shakeel P.W.10 The appellant while making a statement under section 342, Cr.P.C. Denied the allegations levelled against him and took the plea that he killed Mst. Sardaran Bibi under grave and sudden provocation on 11-2-1985 while finding one Muhammad Sharif committing sexual intercourse with her in her house. According to the appellant, he lost self-control while killing Mst. Sardaran Bibi on the spot. He further stated that he treated Mst. Sardaran Bibi as his sister because she had no real brother of her own. 11e pleaded that he gave information to the local police about the occurrence and also surrendered himself along with his knife to the Incharge of Police Station. In support of plea, the appellant produced Muhammad Ismail D.W.1, Ghulam Hussain D.W.2 and Abdul Karim D.W.3. The appellant himself,, appeared as D.W.4 in his own defence. The learned trial Judge disbelieved the plea taken by the appellant and convicted ands sentenced him as already observed above.
6. Learned counsel forcefully contends that the appellant has committed an offence under Part I of section 304, P.P.C. And that he killed Mst. Sardaran Bibi as a result of grave and sudden provocation. In this behalf the learned counsel has placed reliance on the confessional statement made by the appellant before the learned trial Court. The learned State counsel could not substantially oppose the contentions raised by the learned counsel for the appellant.
7. We have heard the learned counsel for the parties at considerable length and have read the record with utmost care. We are not convinced,, as to the motive as set up by the prosecution inasmuch as no evidence whatsoever has been given about the alleged quarrel having taken place between Mst. Sardaran Bibi and her mother-in-law before occurrence. Admittediy, no date and time have been given about the said quarrel. The evidence deposed by Muhammad Ramzan P W.9' regarding motive is, in our view, a hearsay evidence, and as such, we are not ready to accept the motive part of the prosecution story on such irrelevant evidence. We, accordingly reject the motive for lack of evidence. The story that Ramzan P.W.9 and Shakeel P.W.10 were present at the spot when Mst. Sardaran Bibi was done to death,, by the appellant does not appear to be truthful for reasons to follow. Ramzan P.W.9 is admittedly not the resident of Chiniot. His Chak is situated at a distance of about 50 to 60 miles away from Chiniot. His stay with deceased on day of occurrence is not proved beyond doubt. In our view, possibility cannot be ruled out that Ramzan P.W.9 might have been summoned by the Investigating Officer to become the first informant in the case to provide evidence. According to the medical evidence, as many as 32 injuries were found on the person of Mst. Sardaran Bibi. It appears that the appellant must have taken lot of time in inflicting those injuries or. The deceased. 1n case, Ramzan P.W.9 was present, it was nothing but natural that he would raise alarm outside to collect people of the locality in order to save the life of his daughter. Admittedly this was not done by the witness. The only conclusion, which could be drawn is that he came to the spot after the occurrence on call of police by the relative of the deceased.
The evidence of Shakeel P.W.10 is also not of much avail to the prosecution case. He is only 10 years old lad. His evidence is that the accused gave a blow with a knife on the stomach of his mother and on receipt of the injury she fell down. He further stated that he went straight to the house of his maternal-aunt Mst. Haseena Bibi. The boy brought her maternal-aunt at the spot to witness the remaining occurrence. Again, the minor witness did not raise an alarm in the locality to collect the people with a view to save the life of his mother. The boy did not weep or cry while on his way to inform his aunt about the occurrence. His conduct appears to be highly unnatural. He is not expected to go to bring his aunt quietly. This circumstance creates doubt on the truthfulness of his version. Mst. Haseena Bibi was not produced as an eye-witness, obviously, for no reasons. The prosecution case is that the occurrence,, was also witnessed by Mst. Haseena Bibi. Her non- production as a prosecution witness would certainly raise presumption that in case of her production as a witness she would not have l supported the prosecution version. Even if the evidence of Shakeel P.W.10 is j accepted, it will not make any substantial difference. The witness did not say anything about the motive part of the prosecution story. The killing of Mst. Sardaran Bibi has been admitted by the appellant to have been done under grave and sudden provocation.
Learned counsel has placed reliance upon the photographs Exh. DA. And Exh. D.B. To show illicit intimacy of Muhammad Sharii with Mst. Sardaran Bibi. Ramzan P.W.9 has admitted the photograph Exh D.B. To be that of Muhammad Sharif. This being so, the photographs Exh. DA. And Exh. D.B. Would demonstrate beyond doubt that there was certainly some illicit relationship between the deceased and Muhammad Sharif. In our view, there was no justification whatsoever for Mst. Sardaran Bibi and Mst. Sharif to have a photograph together. It is conceded by Ramzan P.W.9 that at the time of occurrence, aforesaid Muhammad Sharif was living in Chiniot. This admission lends further support to the defence plea. Thus, in the circumstances, the' possibility of defence version being true cannot at all be ruled out. In face of it, the defence version appears to be reasonable and credible.
There was no previous enmity between the appellant and Mst. Sardaran Bibi, deceased. In the circumstances, we accept the plea taken by the appellant. `
8. Resultantly, the conviction and sentence of the appellant under section 302, P.P.C. Is not sustainable. We, therefore, proceed to set it aside and convict him under section 304 Part I, P.P.C.
And sentence him to 10 years' R.I. Plus a fine of Rs.15,000 or in default thereof to suffer further two years' R.I. In case of recovery of fine, it shall be paid to the legal heirs of Mst. Sardaran Bibi, deceased, as compensation. Benefit of section 382-B. Cr.P.C. Shall also be extended to the appellant. The appeal is thus allowed in part. The death sentence of the appellant is NOT confirmed. The murder reference is answered accordingly.