' This criminal appeal has been filed by the appellant against the judgment dated 23-9-1989 passed by the learned Additional Sessions Judge, Rahim Yar Khan whereby he was convicted and sentenced under section 302, P.P.C. To undergo imprisonment for life and a fine of Rs30,000 in default whereof three years' further R.I. Half of the fine, if realized was to be paid to the legal heirs of the deceased as compensation.
2. Briefly, the prosecution case is that P.W.9 Muhammad Nawaz on 3-4-1987 lodged F.I.R. Exh.P.A. At Police Station Saddar Khanpur, District Rahim Yar Khan at 10-00 a.m. To the effect that he was a labourer and had married his daughter Mst. Naziran, deceased with Piran Ditta and in exchange the daughter of Piran Ditta was married with Rashid son of Gul Muhammad, who was his cousin about three months earlier to the present occurrence. Mst. Naziran was living with her husband happily in his house. On the preceding day of the occurrence, P.W.9, alongwith Mst. Sakina and one Faqir Muhammad went to see the deceased Mst. Naziran and Mst. Latifan. Mst. Naziran had wept and stated that the appellant who is the brother of husband of the deceased wanted and compelled her for friendship. Piran Ditta, the husband of the deceased and son-in-law of the complainant was informed before whom the deceased had also complained and had stated that he would make, understand, the appellant. At night P.W.9 alongwith P.W.10 and Mst. Sakina slept in the house of Mst. Latifan Mai. At about 8-30 a.m. After they left for the house of the deceased and when reached near her house, they heard hue and cry from the but and the lock of the same was bolted from inside and through the window, the P.Ws. Witnessed that the appellant was giving Kulhari blows one after the others to the deceased and was stating that was the result of a complaint against him. Mst. Naziran, deceased fell on the ground. The appellant after opening the bolt of the door while brandishing the Kulhari went out. P.W.9 and P.W.10 tried to apprehend the appellant but the appellant threatened them not to come forward and the appellant made good his escape alongwith hatchet from the spot. P.W.9 witnessed that Mst. Naziran had succumbed to her injuries.
' P.W.11, Abdul Rehman, Inspector, S.H.O. Had recorded F.I.R. Exh.PA. Made by P.W.9 and thereafter proceeded to the spot and secured blood-stained earth vide memo. Exh.P.E. And made it into a sealed parcel. After completing the formalities, P.W.11 sent the dead body for autopsy, recorded the statements of P.Ws. On 27-6-1987, arrested the appellant. On 5-7-1987, the appellant while in policy custody led to the recovery of bloodstained hatchet P.16 from water Khal which was secured by P.W.11 vide memo. Exh.P.C. Attested by P.W.4, Ghulam Akbar and P.W.11. P.W.11 had prepared the sealed parcel of the same. The report of the Chemical Examiner and that of the Serologist pertaining to blood-stained earth and hatchet P.16 are positive, respectively.
3. The appellant was challaned and sent up ,for trial. A charge under section 302, P.P.C. Was framed against him to which he denied and claimed trial.
4. The prosecution examined twelve witnesses in all to substantiate its case. The motive behind the occurrence has been stated by P.W.9, Muhammad Nawaz complainant and P.W.10 Faqir Muhammad. P.W.9 had stated that the deceased had told him while weeping that the appellant used to pursuade her for illicit relations and she made a complaint to Piran Ditta i,e. Brother of Amir Bux, appellant that the appellant wanted to start illicit relations with the deceased. Piran Ditta also told P.W.9 that the deceased had made similar complaint to him and that he woud reprimand his brother.
' P.W.10 had stated that P.W.9 and Mst. Sakina P.W. (given up) had told him that appellant wanted to develop illicit relations with the deceased. Muhammad Nawaz P.W.9 had summoned Piran Ditta and informed him that the deceased had made a complaint to him. Piran Ditta, the husband of the deceased told him that Mst. Naziran had also made a similar complaint to him and that he would reprimand his brother Amir Bakhsh. Piran Ditta, husband of the deceased has neither been cited as P.W. To corroborate the statement of P.Ws. 9 and 10 as well as Mst. Sakina who had been given up by the prosecution. Piran Ditta was the most important witness on the point of motive but he has not been produced as a P.W. And from the statements on record of P.Ws.9 and 10 the motive behind the occurrence does not stand proved.
5. The ocular testimony on record has been furnished by the statements of P.W.9 and P.W.10. P.W.9 is the complainant, who narrated the facts mentioned by him in F.I.R. Exh.PA. P.W.10 had stated that at about 8-00 a.m. He alongwith P.W.9 and Mst. Sakina (given up) started for the house of the deceased and when they reached near, they heard hue and cry. They rushed to the house of the appellant and saw through the window that the appellant was inflicting injuries to Mst. Naziran with hatchet and the appellant was also stating that it was the result of making wrong complaint against him.
6. It is pertinent to mention here that P.W.9 Muhammad Nawaz, father of the deceased was not resident of the locality where the alleged murder took place and P.W.10 as well. They are residents of Mauza Mitha Mirani whereas the occurrence took place in Mauza Kehna Lar, the distance between the two villages is about half a mile. P.W.9 stated that he alongwith his wife Mst. Sakina (given up) went to the tube-well of P.W.10 and from there they accompanied P.W.10 whereas in cross-examination P.W.10 had stated that he went to the house of Muhammad Nawaz P.W.9 and from there they started for the place of occurrence. He had also stated that he had gone to the house of Muhammad Nawaz P.W.9 at about Asar prayer time. It was in his house that P.W.9 had requested P.W.10 to accompany P.W.9 for going to village Gehna Lar and P.W.10 had started alongwith P.W.9 and Mst. Sakina from their house together. They had gone from the house of P.W.9 direct to the house of Mst. Latifan and had not stopped at any intervening place. P.W.9 and P.W.10 had not been able to give probable cause of their presence at the relevant time near the place of occurrence. P.W.9, is the real father of the deceased whereas P.W.10 is maternal-uncle of the deceased i,e. Mst. Sakina Bibi P.W. (given up) and mother of the deceased is the real sister of the wife of P.W.10. P.W.9 and P.W.10 are closely related to the deceased and they had not been able to prove their presence at the relevant time near the place of occurrence.
7. The recovery in respect of the hatchet has been furnished on record by the statement of P.W.4, Ghulam Akbar who had stated that in his presence, the appellant while in police custody led to the recovery of blood-stained hatchet from a garden of Imam Bakhsh which was secured by P.W.11 vide memo. Exh.P.C. And was thumb-marked by him. During cross-examination P.W.4 had stated that he was not a Councillor, Lambardar or Chairman of any village and had friendship and contacts with P.W.11 who had investigated the case and P.W.4 had been appearing before the police and making inquiries about the progress of the case. He has further stated that police did not join any other person during the journey to the place of recovery and no Chairman, Member or Lambardar was summoned from Mouza Gehna Lar to witness the recovery.
8. The appellant was arrested by P.W.11 on 27-6-1987 and on 5-7-1987 he is alleged to have got recovered hatchet P.16 i,e. After eight days of his arrest and after about 2-3/4 months of the occurrence. The appellant is alleged to have got recovered P.16 from a water Khal situated in the garden of Imam Bakhsh (not a P.W.). The place of recovery was accessible to everybody. P.W.4 had stated during cross-examination that he had friendship and contacts with P.W.11 and had also shown his keen interest in the progress of the case. He is an interested witness. No other independent witness was present or joined in the recovery proceedings and one Ghulam Hassan, another public person was cited, who had been given up by the prosecution as given up and if the statement of P.W.4 is brushed aside from consideration, the statement of P.W.11 who is naturally interested in the success of the prosecution case cannot be relied upon and thus the recovery effected in the case has not been proved on record.
9. Dr. Jamil Akhtar P.W.8 on 4-4-1987 at about 8 a.m. Had conducted the autopsy on the dead body of the deceased and found eight injuries on her person caused with sharp-edged weapon and had opined that injuries Nos.1 and 5 supplemented by all other injuries resulted in shock and death.
Injuries Nos.1 and 5 were sufficient in ordinary course of life to cause death. All the injuries were ante-mortem and inflicted by a sharp-edged weapon. The probable time that elapsed between injury and death was within five minutes and between death and post-mortem was 16 to 24 hours.
10. The appellant when examined under section 342, Cr.P.C. Denied the prosecution case against him and also recovery of P.16 at his instance. While answering question No,12, have you anything else to say?, he replied:-- "Mst. Naziran was like my sister being wife of my brother Piran Ditta. On the day of occurrence, in the early hours of morning, I went to my land and when I came back to my house, I found that Mst.
Naziran was making love affairs with one Sattar son of Waryam. I picked up a hatchet and in grave and sudden provocation, caused injuries to her as I had lost my self-control and balance of mind.
Sattar made good his escape. My brother Piran Ditta was not present at the house. Muhammad Nawaz and Faqir Muhammad P.Ws. Were also not present there and they were summoned later on from their Basti. No other person was present at the spot at that time. I am innocent."
' He neither made statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced defence evidence.
11. I have heard learned counsel for the parties and perused the record. The eye-witness account coupled with the recovery effected in this case has not been found confidence inspiring. The appellant had raised a specific plea from the very start of the case. On 27-6-1987 when he was arrested by P.W.11 he had stated before the police that he had killed the deceased due to her bad habits and deeds. P.Ws.9 and 10 had stated that they were proceeding to the house of the deceased alongwith P.W. Sakina (given up) when on the way they heard hue and cry from the but and reached there and found the door of the but bolted from inside and through window, they witnessed the appellant inflicting Kulhari blows on the deceased. Nothing was brought on record by the prosecution that what immediately earlier to the present occurrence had happened and what was the immediate cause of the infliction of Kulhari blows by the appellant to the deceased. It has been brought on record by the defence that at the relevant time, Piran Ditta, husband of the deceased and brother of the appellant as well as no other member of the family where they were jointly living was present nearby. The appellant had raised the plea that he had found one Sattar son of Waryam near relative of the complainant and resident of the village at a distance of two acres from the place of occurrence embracing and kissing the deceased and the appellant lost his self-control and under grave and sudden provocation, after picking the hatchet killed the deceased and said Sattar had succeeded in running away. The statements made by P.Ws. Have also been found not confidence inspiring.
12. Now the Court is left with the plea raised by the appellant and keeping it in juxtaposition with the case of the prosecution it had spelt out from the circumstances appearing in the case and the evidence on record that at the relevant time when said Sattar of the same village was kissing and making love with the deceased, the appellant suddenly arrived at the scene, picked up a Kulhari, Sattar escaped and under grave and sudden provocation, the appellant had murdered the deceased. The appellant had satisfactorily explained and substantiated his plea. Therefore, the offence committed by the appellant falls within the purview of section 304, Part I, P.P.C.
13. Learned counsel for the appellant has prayed for leniency in the matter of sentence. The appellant was arrested on 27-6-1987 and since then he is in the jail i,e. For a period of about five years and ten months and I am of the considered view that the period already undergone by the appellant in jail as under-trial and convict shall meet the ends of justice. .
14. In the peculiar circumstances of the case, no compensation can be awarded to the legal heirs of the deceased. The appellant is in jail. He shall be released forthwith if not required in any other case.