The present criminal appeal is directed against the judgment, dated 23-10-1989 passed by Muhammad Ahmed Afghani, Additional Sessions Judge, Sialkot, whereby the appellant was convicted under section 304, Part I, P.P.C. And sentenced to 10 years' R.I. With a fine of Rs.5,000 and in default thereof to further R.I. Of two years. Half of the fine if recovered, to be paid to the deceased.
The benefit of provision of section 382-B, Cr.P.C. Was granted to the appellant.
2. The appellant was charged under section 302, P.P.C. But was convicted and sentenced under section 304, Part I, P.P.C. As stated above.
3. The occurrence in the instant case took place on 13-11-1988 at 3-00 a.m. (night) at appellant's house at Bharth and was reported by Aftab Masih, the same night at 4-30 a.m. The place of occurrence is situated at a distance of 2 miles from Police Station Cantt. Sialkot. As gleaned by F.I.R.
Exh. P.F., recorded on statement of Aftab Masih (P.W.7), on fateful night, he, his brother Kamal Masih and his sister Sanober were sleeping in a room of their house and in an adjoining room his father Tamas Masih accused and his mother Alazebeth were sleeping. He heard the shrieks, got up and after breaking the window panes from the Verandah side, he entered the room. In the meantime, his brother Kamal Masih who also joined him. They saw that their father was holding their mother on a cot and was giving her Chhuri blows on the chest and abdomen. He caught hold of his father in his clasp from behind with the assistance of his brother Kamal Masih also joined him. He snatched Chhuri from his hand and in the process thereof suffered incisions on right hand on finger and thumb. His sister Sanober aged 16 years also reached the spot and witnessed the occurrence.
His mother sustained stab wounds on her face, chest, belly and abdomen and her intestines protruded out of the belly. She succumbed to the injuries at the spot. On hearing the alarm, a large number of neighbours also gathered at the spot.
4. The motive for the crime is that his father lived in Saudi Arabia in connection with some employment. He came back and he had lived cordially in her house for about 10 days but thereafter he entertained the suspicion that his mother Alazebeth deceased had illicit connection with his maternal-uncle Pitras Masih. This was the reason, which prompted the accused to murder his were.
5. The complainant rushed to his maternal-uncle Pervaiz Masih and narrated the incident to him who accompanied him to the Police Station Cantonment, Sialkot. He lodged report Exh. P.F.
6. Ahmad Shujaa Sub-Inspector (P.W.12) recorded the F.I.R. He went to the spot and investigated the case. He examined the dead body of Alazebth deceased and prepared injury statement Exh. P.L.
And inquest report Exh. P.M. And forwarded the dead body for post-mortem examination to the mortuary under escort of Muhammad Asghar Constable No.966. He took into possession blood- stained bed-sheet Exh.P.4, vide memo. Exh. P.H. He also recovered few pieces of broken window pane lying at the spot vide memo. Exh. P.J. Aftab Masih produced before him blood-stained Chhuri P.3 vide memo. Exh. P.J. He made it into a sealed parcel. He also arrested the accused and removed his blood-stained clothes viz. Shirt P.5, Shalwar P.6 and he took the same into possession vide memo. Exh. P.K. And made the same into a sealed parcel. He also sketched plan of place of recovery Exh. P.O. He got Aftab Masih (P.W.7) medically examined and prepared his injury statement Exh. P.N. On the same day, after post-mortem examination Muhammad Asghar Constable produced before him the last-worn blood-stained clothes of deceased namely Shalwar P.1 and shirt P.2, which he took into possession vide memo. Exh.P.E. He got prepared site plan Exh.
P.D. And its duplicate Exh.P.D./1 by Akhtar Naqqash draftsman. He deposited the sealed parcel with Moharrir for safe custody in Malkhana. He also prepared site plan Exh. P.O. Of the place from where Chhuri P.3 was recovered from the accused.
7. Doctor Fakhar-uz-Zaman Medical Officer (P.W.2) conducted the post---mortem examination on dead body of Alazebth aged 40 years and made observations, vide report Exh. P.B. And skygram Exh.P.B./1 as under:-- "It was a dead body of middle aged lady with pale face. Eyes closed, mouth opened. Post-mortem staining and rigor mortis were present. The dead body was clad into pink colour Shalwar and Qameez, which was signed and handed over to-police."
External injuries:-- There was no mark of ligature on neck.
(1)An incised wound 3 c.m. x 0.25 c.m. x skin cutting starting from just below the left lip and extending to the left cheek in transverse direction.
(2)An incised wound 3 c.m. x 1 c.m. At the upper part of right chest in front below the medial end of right clavical in oblique direction.
(3)An incised wound 3.5 c.m. x 0.25 c.m. On the upper part of middle of front of chest in horizontal direction 5 c.m. Below the sternal notch.
(4)An incised wound 7 c.m. x 2 c.m. On the upper part of mid abdomen in a horizontal direction 9 c.m. Below the epigestrium.
(5)An incised wound 6 c.m. x 2 c.m. On the upper part of left abdomen in an obliquely horizontal direction 10 c.m. To the left and below injury No.4.
(6)An incised wound 8 c.m. x 2 c.m. On lower part of left lateral side of chest. In direction the wound follows the countour of that part of chest. The anterior axillary line passed through the middle of the wound.
(7)An incised wound 12 c.m. x 5 c.m. Over the left lower abdomen in horizontal direction spreading over ilio-hyprogastric region of abdomen. The intestines and mesentry were lying out of the wound.
(8)An incised wound 6 c.m. x 2 c.m. On left iliac region of abdomen in a horizontal direction, about 9 c.m. Below injury No.7.
(9)An incised wound 1.0 c.m. x 5 c.m. Over the right lower abdomen in a horizontal direction 10 c.m.
Below and to the right of umblicus. The intestines and mesentry were lying out of the wound.
(10) Two incised wounds (i) 2 c.m. x 0.25 c.m. x skin cutting. (ii) 3 c.m. x 0.25 c.m. x skin cutting on the lower and outer part of left upper arm.
(11) An incised wound 3 c.m. x 1 c.m. x skin cutting on the back of left wrist.
On dissection, under injury No.2, the wound after cutting the skin and underlying tissues fractured the right first rib and entered into right lung. Under injury No.3, the wound after fracturing sternum entered into right lung causing it a big damage. Under injury No.4, the wound after cutting the skin and rectus sheats of anterior abdominal wall injured the stomach. Under injury No.5, the wound after cutting the muscles of anterior abdominal wall injured the small intestines as well as its mesentry. Under injury No.6, the wound after cutting the skin and muscles of intercostal space between 7th and 8th ribs on the left side, injured the spleen cutting it completely into two parts without injuring the ribs. Under injury No.7, the wound after cutting the skin and muscles of anterior abdominal wall injured the large intestine and its mesentry. Under injury No.8, the wound cut the skin and muscles of anterior abdominal wall but did not find its way through peritoneum and peritoneum was intact. Under injury No.9, the wound after cutting through the skin and muscles of anterior abdominal wall injured large intestines and its mesentry. Both chest and abdominal cavity were moped with blood and ebris. Rest of the organs were found healthy.
8. Injuries Nos.1, 2 3, 4, 5, 6, 7, 8, 9, 10 and 11 were caused by sharp-edged weapon and were ante- mortem. Injuries Nos.1, 8, 10 and 11 were simple. Injuries Nos.2 to 7 and 9 were grievous as well as dangerous to life. In his opinion, the death was caused by the collective affects of these injuries due to shock and haemorrhage. These injuries were sufficient to cause death in the ordinary course of life. The probable time that elapsed between injuries and death was instantaneous and that between death and post-mortem was about 13 hours. The completely stitched body was handed over to police alongwith clothes and papers.
9. Doctor Muhammad Younas Chughtai Medical Officer (P.W.1) medically examined Aftab Masih (P.W.7) and found the following injuries vide M.L.R. Exh. PA. And skygram Exh.P.A./1 on his person:-- (1)Superficial cut 1.4 x 0.25 c.m. x skin deep on the palmer aspect of the distal phalynx of left thumb middle part transverse in direction.
(2)Superficial cut 2.5 x 0.25 c.m. x skin deep on the dorsal aspect of the proxinal phalynx on the left middle finger. Oblique in direction.
Both the injuries were simple and were caused by sharp-edged weapon. The probable duration between the injuries and examination was 12 to 18 hours.
10. According to report of Chemical Examiner Exh. P.P. Chhuri, Chadar and clothes of Tamas Masih accused i.e. Shalwar and Qameez were found to be stained with blood and under report of Serologist Exh. P.Q. The same were observed to be stained with human blood.
11. Ahmad Shujaa S.I. (P.W.12) recorded statements of the P.Ws. After accomplishing the investigation in the case, he submitted challan before the Court.
12. At the trial, the prosecution examined 12 witnesses namely Doctor Muhammad Younas Chughtai (P.W.1), Doctor Fakhar-uz-Zaman (P.W.2), Faqir Hussain, A.S.I. (P.W.3), Muhammad Shafi Constable (P.W.4), Akhtar Naqqash Draftsman (P.W.5), Aslam Pervaiz recovery witness (P.W.6), Aftab Masih complainant and eye-witness (P.W.9), Pervaiz Masih recovery witness (P.W.10), Muhammad Asghar Constable (P.W.11) and Ahmad Shujaa S.I. (P.W.12). The report of Chemical Examiner Exh. P.P. And that of Serologist Exh. P.Q. Were also tendered in evidence. Prosecution gave up the eye-witnesses Mst. Sanober and Bhag Masih P.Ws. As unnecessary under his statement dated 13-6-1989.
13. Doctor Muhammad Younas Chughtai (P.W.1) examined the injured eye--witness Aftab Masih (P.W.7) and proved M.L.R. Exh. PA. And skygram Exh.PA./1. Doctor Fakhar-uz-Zaman P.W.2 conducted autopsy on dead body of Alazebth deceased and proved medico-legal report Exh. P.B. And diagram Exh.P.B./1 showing location of injuries on her person. Faqir Hussain A.S.I. (P.W.3) received three sealed parcels alleged to contain blood-stained bed-sheet, Chhuri and last-worn clothes of accused on 13-11-1988 for safe custody and handed over the said parcels to Muhammad Shafi Constable on 22-11-1988 for onward transmission to the office of Chemical Examiner, Lahore.
Muhammad Shafi, Constable (P.W.4) took the sealed parcels and delivered in the office of Chemical Examiner on 23-11-1988. Akhter Naqqash Draftsman (P.W.5) prepared site plan Exh. P.D.
And its duplicate Exh.P.D./1 on 21-11-1988 in scale of 1" = 16'. Aslam Pervaiz (P.W.6) identified the dead body of Alazebth deceased and attested the recovery memo. Exh.P.E. Relating to recovery of blood- stained clothes by the Police Officer, Lazar Masih (P.W.9) stated about recovery of blood-stained bed-sheet P.4 vide memo. Exh. F.H., broken pieces of window pane vide memo. Exh. P.J. And blood- stained clothes of accused, shirt P.5 and Shalwar P.6 vide memo. Exh. P.K. Pervaiz Masih (P.W.10) also proved recovery of said articles and attested the memos. Exhs. P.E., P.F. Exh. P.J. And Exh. P.K.
Muhammad Asghar Constable (P.W.11) escorted the dead body from the spot to the mortuary and stated about handing over last-worn clothes of the deceased vide memo. Exh.P.E. Ahmad Shujaa S.I. (Investigating Officer) (P.W.12) stated to have recorded the statement of Aftab Masih complainant Exh. P.F. He also made statement about recovery of blood-stained bed-sheet Exh.P.4, vide memo. Exh. P.H., few pieces of broken window pane vide memo. Exh. P.J., blood-stained Chhuri P.3 vide memo. Exh. P.G. And blood-stained clothes of accused i.e. Shirt P.5 and Shalwar P.6 vide memo. Exh. P.K. And made the same into sealed parcel.
14. Aftab Masih complainant (P.W.7) and Kamal Masih (P.W.8) gave ocular account of the occurrence. Both the P.Ws. Are sons of the accused and deceased Alazebth. They were sleeping in a room in their house where the accused and his were Alazebth deceased were also sleeping in adjoining room. They heard the noise of shrieks. They saw their father/accused holding their mother Mst. Alazebth deceased on the cot and giving her successive Chhuri blows on the chest and abdomen. Aftab Masih caught hold of the accused and snatched Chhuri from his hand and sustained incisions on his right hand in the process of snatching. Their sister Sanober P.W. (given up) also witnessed the occurrence. Their mother sustained stab wounds on her face, chest and abdomen' and succumbed to the injuries at the spot. Both the witnesses are natural witnesses. The injuries sustained by P.W.7 on his hand during the process of snatching in the occurrence also furnish judicial certainty about his presence at the time of occurrence. Both the P.Ws. Have given consistent account of the occurrence. Their testimony is trustworthy.
15. Both these P.Ws. Also narrated the facts constituting the motive. According to them, their father had entertained suspicion that their mother Alazebth deceased had illicit liaison with their maternal-uncle Pitras Masih and this prompted him to kill her.
16. On cross-examination P.W.7 disclosed that his father came from Saudi Arabia 3 or 4 months prior to the occurrence and that he had suspicion ever since his repatriation that his mother was continuing illicit connection with Pitras Masih. He also disclosed that Pitras is not his real maternal- uncle but his maternal-uncle from the line of relationship and that he was also living in the same house. He also admitted that he had five brothers and two sisters and that they were living jointly in the same house. He also disclosed that his father came back from Saudi Arabia on 26-5-1987 and was about to return back on expiry of his Visa on 16-11-1988 and his travel ticket to Saudi Arabia was already declared O.K.
17. In his statement recorded under section 342, Cr.P.C. The accused denied that he doubted fidelity of his were and her illicit relations with her cousin, Pitras Masih. He denied recovery of Chhuri P.3 and sustaining of incisions on right hand and finger and thumb by Aftab Masih in process of snatching Chhuri from him. He explained that as a matter of fact when he returned from outside at dead of night unexpectedly, he found his were Alazebth and Pitras Masih in such a compromising position as to commission of Zina. He got extremely provoked and', lost senses and self-control.
Pitras Masih ran away and he stabbed his were to death under grave and sudden provocation. He -relied on his statement earlier recorded under section 342, Cr.P.C. And stated to have nothing to add to it. He did not adduce defence evidence. He did not make any further statement on oath.
18. .As admitted by the accused in his statement under section 342, Cr.P.C., he has committed the murder of his were Alazebth.
19. The learned trial Court, accepting the plea of grave and sudden provocation, convicted the appellant under section 304, Part I, P.P.C. And sentenced as stated above.
20. The learned counsel for the appellant and the State have been heard at length and the record of the case perused with their assistance.
21. Learned counsel submitted that the learned trial Court had convicted the appellant under section 304, Part 1, P.P.C. Although he was charged under section 302, P.P.C. Accepting the plea of grave and sudden provocation taken up by the appellant. In this respect he referred to the statement of the appellant/accused under section 342, Cr.P.C. Wherein he had categorically stated that he had found his were in a compromising position with one Pitras Masih and as a result of grave and sudden provocation killed his were on the spot. Further submitted that P.W.7 Aftab Masih and P.W.8 Kamal Masih, present in Court, are sons of the deceased as well as appellant, have forgiven the appellant, their real father, of the offence for which he stands convicted and sentenced. Therefore, the learned counsel for the appellant argued that as the appellant has already suffered substantial imprisonment of over 2 years and 5 months, under the circumstances of the case as stated above, it shall meet with the ends of justice if the sentence awarded to the appellant is reduced to the period already undergone and the fine is set aside. To support his contention he placed reliance upon:--
(1) Muhammad Nawaz v. The State PLD 1971 Lah. 703 wherein the sentence of five years' R.I. Awarded under section 304, Part I, P.P.C. Was reduced to the period already undergone.
(2) Maqsood Ahmed v. The State 1983 P Cr. L J 2236 wherein the sentence of 8 years was reduced to 2-1/2 years and it was held that was sufficient punishment because of the grave and sudden provocation under which the offence was committed.
(3) Muhammad Sharif v. The State 1983 P Cr. L J 1817 wherein the conviction under section 302, P.P.C. Was converted into 0.1e under section 304, Part I, P.P.C. Holding that the murder was the result of grave and sudden provocation and the sentence of life imprisonment was reduced to 3 years already undergone.
22. The learned counsel for the State opposed the present criminal appeal and argued for the conviction and sentence to be maintained. In this respect, further submitted, that the appellant has already been dealt with leniently otherwise he would have been sentenced to life imprisonment as a result of conviction under section 304, Part 1, P.P.C.
23. However, in pursuance to the above discussion it shall meet with the ends of justice, and shall be in keeping with the principles of fair administration of criminal justice, if, while maintaining the conviction of the appellant under section 304, Part 1, P.P.C., his sentence is reduced to the period already undergone by him, and the fine imposed is set aside. In this respect, reliance is placed on the precedents relied upon on behalf of the appellant.
24. Therefore, while dismissing the present criminal appeal, the sentence awarded to the appellant is hereby reduced to the period already undergone by him and the fine imposed is set aside.
25. The appellant shall be set free forthwith if not required to be detained in any other case.