KHALIL-UR-REHMAN RAMDAY, J. -- Ghulam Mustafa appellant stands convicted for having trespassed into the house of the husband of his sister, namely, Abdul Latif; for having murdered the said Abdul Latif and for having murderously assaulted his sister, namely, Mst. Sughran Bibi.
2. He has been sentenced to suffer death-and to pay a fine of Rs.10,000 or to undergo six months'
R.I. For his conviction under section 302, P.P.C. He has been punished with five years' R.I. Plus a fine of Rs.5,000 or sufferance of four months' R.I. In default of payment of fine under section 307, P.P.C. And has been sentenced to another term of five years' R.I. And a fine of Rs.3,000 or three months' R.I. In default of payment of tine under section 449, P.P.C. Half of the amount of fine imposed under section 302, P.P.C. Has to be paid to the heirs of the deceased and half of the amount of fine imposed under section 307, P.P.C. Has to be given to Mst. Sughran Bibi P.W., as compensation.
3. Two co-accused of Ghulam Mustafa appellant, namely, Asghar and Sultan Mehmood were extended the benefit of doubt and had been acquitted by the learned trial Court.
4. The judgment under examination which records the above-noticed findings, convictions and sentences was passed by a learned Additional Sessions Judge at Faisalabad on 21-2-1989.
5. Murder Reference No.52 of 1989 seeks confirmation of the sentence of death imposed on Ghulam Mustafa appellant who challenges all the convictions and sentences recorded against him through Criminal Appeal No. 197 of 1989.
6. The acquittal of Asghar and Sultan accused has not been challenged.
7. The abovementioned murder reference and criminal appeal are being disposed of together through this single judgment.
8. One Sadar Din who is the husband of a sister of Latif deceased had reported that he was staying the night in the house of Latif deceased and was asleep on a cot in the courtyard of the said house while Latif deceased and his wife Mst. Sughran Bibi P.W. Were sleeping on separate cots in the same courtyard near his cot.
9. He had further reported that on hearing the barking of dogs, he woke up and found Ghulam Mustafa appellant armed with a Carbine accompanied by two unidentified persons and that in the meantime Farzand Ali alias Muhammad Sharif, a brother of Latif deceased who was sleeping on the roof of the said house, also woke up and in their view Mustafa appellant fired a shot hitting the chest of Latif deceased.
10. He had further alleged that on hearing the report of this fire, Mst. Sughran Bibi P.W. Also woke up and clasped his brother Ghulam Mustafa appellant who dragged her towards the door of the house in order to liberate himself but after failing in the said attempt, fired a shot on Mst. Sughran Bibi which hit her on the left upper arm.
11. The unidentified companions of Mustafa appellant started firing in the air to deter any intervention whereafter all the three accused persons disappeared from the place of occurrence.
12. Sadar Din complainant had claimed that the parents of Mst. Sughran Bibi P.W. Had married her of to Latif deceased against the wishes of Mustafa appellant and it was on account of this grievance, that the appellant, alongwith his companions, had killed the deceased and had inflicted injuries on the person of Mst. Sughran Bibi P.W.
13. In his statement under section 342, Cr.P.C. Mustafa appellant has narrated various stories.
14. He claimed that Latif deceased had developed illicit relations with his sister Mst. Sughran Bibi which had become a talk of the village and it was thereafter that Mst. Sughran Bibi was married off with him on the condition that he would transfer some land of his to Mst. Sughran Bibi whereafter she lived with Latif deceased happily and she even gave birth to a daughter in the house of Mustafa appellant. He had further claimed that his sister Mst. Sughran Bibi asked her husband to transfer the land as promised, at which Latif appellant gave her beating and she came away to the house of the appellant but Latif deceased took her back after a compromise and thereafter the complainant and others hatched a conspiracy to murder her.
15. Mustafa appellant then went on to state that it was some unknown person who had fired at Mst.
Sughran Bibi P.W. To murder her in the darkness of the night but since she was sleeping with her husband Latif deceased, the fire hit both of them resulting in the death of Latif deceased.
16. The appellant further stated that he was not present in his village on the night of occurrence and was in Karachi being a truck driver and had been falsely involved in the case. He also claimed that Mst. Sughran's statement had been obtained by the prosecution through coercion and threats.
17. The learned counsel for the appellant argued that Sadar Din complainant was not present in the house of the deceased at the time of occurrence.
18. The learned counsel submits that Sadar Din complainant was a resident of the same village in which the occurrence in question had taken place and had his house in the said village where he lived with his wife and children. Thus, he argued that there was no occasion or reason for Sadar Din complainant to sleep in the house of Latif deceased on the night of occurrence and not to have stayed the night in his own house, which was only a few paces away from the house of the deceased.
19. The learned counsel argued that even otherwise it is not believable that Sadar Din who was the husband of the sister of Latif deceased would be sleeping next to Latif deceased and his wife Mst.
Sughran Bibi, when even a brother of the deceased was not sleeping so close to this couple and was asleep on a cot on the roof of the house of the deceased.
20. Be that as it may, the fact remains that Mst. Sughran Bibi who is a real sister of Mustafa appellant and who is not only a natural witness of the occurrence being an inmate of the house where the occurrence in question had taken place but was even an injured witness of the said occurrence, had fully implicated the appellant.
21. The learned counsel for the appellant has not been able to offer any explanation to justify a sister falsely implicating her real brother for the murder of her husband by substituting him for the actual assailants.
22. Consequently, there is nothing on record to persuade us to reject the testimony of Mst. Sughran Bibi especially when there is nothing on record even A to indicate that Mst. Sughran Bibi was under any threat or coercion while deposing before the learned trial Court.
23. Resultantly, we hold that no exception can be taken to the convictions recorded by the learned trial Court against Mustafa appellant and we hold accordingly.
24. It has, however, co' irie on record that Mst. Sughran Bibi's marriage with Latif deceased had taken place about three years prior to the occurrence in question and that during these three years, no untoward incident had taken place between the appellant and the deceased.
25. It is also on record that after her marriage, Mst. Sughran Bibi P.W. Had been visiting the house of her parents where Mustafa appellant was also residing.
26. It is, therefore, not believable that Mustafa appellant would elect to wreak his vengeance against Latif deceased for having married his sister against his wishes after such a long period of time and even after a daughter had been born out of this wedlock especially when there is nothing in evidence to suggest that the appellant had ever taken any steps to hold his sister back or to retrieve her out of this wedlock.
27. Consequently, we find that the motive alleged for the occurrence in question is not reliable and that the actual reason which had prompted the I $ assault in question is hazy.
28. In the circumstances, we are not inclined to confirm the sentence of death imposed on the appellant which is accordingly converted into a sentence of imprisonment for life.
29. We also direct that the entire amount of fine imposed under section 302, P.P.C. Shall be paid to the heirs of the deceased and the entire amount of fine levied under section 307, P.P.C. Shall be paid to Mst. Sughran Bibi P.W., as compensation.
30. We further direct that all the sentences of imprisonment awarded to the appellant shall run concurrently and he shall also be given the benefit of the provisions of section 382-B, Cr.P.C.
31. Murder Reference No.52 of 1989 and Criminal Appeal No.197 of 1989 are disposed of in the above terms.