' KHALIL-UR-REHMAN RAMDAY, J.--- One Gbulam Ali, his brother Ali Muhammad and their father Nazar Muhammad had been tried by a learned Additional Sessions Judge at Gujrat for the murder of one Mst. Naziran Bibi who was the wife of above-said Ghulam Ali accused. Through his judgment, dated 20-9-1989, the said learned trial Court had extended benefit of doubt to Ali Muhammad and Nazar Muhammad accused and had accordingly acquitted them while Ghulam Ali accused had been found guilty of the charge and on his conviction under section 3024P.P.C. He had been punished with death and with a fine of Rs,10,000 or one year's R.I. In default of payment of fine. Half of the fine had been directed to be paid to the heirs of the deceased.
2. Murder Reference No,260 of 1989 seeks confirmation of the said sentence of death awarded to Ghulam Ali convict who in turn challenges the above-noticed conviction and sentences through Criminal Appeal No,62/J of 1989.
3. Both these matters are being disposed of together through this single judgment.
4. The occurrence in question had taken place on the night between 12th and 13th of May, 1988, in the house of Nazir complainant who is the brother of Mst. Naziran Bibi deceased and had been reported by the said complainant at Police Station Malakwal at 5-00 a.m. On 13-5-1988.
5. Nazir complainant had said that Mst. Naziran Bibi deceased was his sister who had been married to Ghulam Ali appellant about 20 yeas ago; that about two years prior to the occurrence, the relations between the appellant and the deceased became strained as a result of which, the deceased, on a number of occasions, used to come away to the house of the complainant after having a fight with the appellant; that the complainant party used to go and leave the said deceased in the house of the appellant; that about 15 days prior to the occurrence, the deceased again had a fight with the appellant and returned to the house of the complainant; that about 6/7 days prior to the occurrence, Ghulam Ali appellant and his father Nazra (acquitted accused) came to the house of the complainant and insisted on taking Mst. Naziran deceased back but the said deceased refused to go to her matrimonial home on account of the excesses of her said husband at which, the appellant and his father Nazra went away after extending threats of dire consequences; that on the night of occurrence, the complainant, his brother Sultan P.W. And the deceased were sleeping on the roof of their house when the complainant suddenly heard the shrieks of the deceased at about mid-night and on waking up, he saw Ali Muhammad (acquitted accused) armed with a Sota and his father Nazra (acquitted accused) empty-handed, standing near the cot of the deceased while the appellant was inflicting injuries on the person of the deceased with a Toka; that on the alarm raised by the complainant and his brother Sultan P.W., the three assailants ran down from the roof and decamped from the place of occurrence and further that Mst. Naziran Bibi deceased had died at the spot on account of the injuries received by her.
6. During the course of investigation, Nazra and Ali Muhammad (acquitted accused) had been arrested on 16-5-1988 and 7-6-1988, respectively, while the appellant could be arrested only on 2- 8-1988 but had thereafter led to the recovery of a blood-stained Toka P.5, the same very day.
7. On being "confronted with the prosecution case, Ghulam All appellant had pleaded innocence.
He denied his participation in the occurrence in question. About his absconsion for about three months despite the arrest of his father and his brother, he claimed that he did not know about the registration of the case. He had added that Mst. Naziran Bibi deceased was a woman of bad character who had been murdered on that account by her brothers i,e. Nazir complainant and Sultan P.W. And it was to save their skin, that they had, in connivance with the police falsely implicated him in the said murder.
8. It had not been disputed by the appellant that he had never had any fight with his wife or that the deceased had never left his house on account of the quarrels or the disputes which the two spouses used to have with each other. It had in fact been asserted by the defence itself and not denied by the prosecution that sometimes prior to the present occurrence, Mst. Naziran Bibi deceased had disappeared; that case had been registered against one Sultan regarding the abduction/enticement of Mst. Naziran Bibi deceased; that she had finally been traced as being lodged in Darul Aman at Karachi and that it was with the assistance of the local police that Nazir complainant had gone and had retrieved the deceased from Karachi. In the circumstances, it would be difficult to hold that Ghulam Ali appellant would have no grouse or grievance to do the deceased to death.
9. It is true that Nazir complainant and Sultan P.W. Are the real brothers of the deceased but it also stands undisputedly proved on record that the place of occurrence is the house occupied by these two P.Ws. The occurrence in question had taken place at about mid-night when the occupants of the house are ordinarily expected to be at home. The two are thus natural witnesses of the occurrence in question. They have no enmity whatsoever with Ghulam Ali appellant. The claim of these eye-witnesses is that in fact it was these brothers who used to patch up the matter between their deceased sister and the appellant and it had never even been suggested to them that they had any animosity or grievance against the appellant which could have motivated them to falsely implicate him in the occurrence in question. They are, thus, not only natural but even independent witnesses of the said occurrence.
10. The appellant had suggested that it was these two eye-witnesses who had done the deceased to death on account of her bad character and had then planted the murder on him. Even if it be presumed for the sake of arguments that they were the ones who had killed their own sister, then nothing exists on record to indicate why they should have planted this murder on the husband of the deceased, especially when this act of the two witnesses would have indicated that they had found their own sister to be at fault and not their brother-in-law. Even if they had to plant this murder on someone, then they would not have implicated their innocent brother-in-law but could have picked on anyone else for the purpose and the favourite target would be Sultan against whom they had themselves registered a case for the abduction etc. Of Mst. Naziran Bibi deceased and who was also responsible for the elopement of their said sister with him.
11. The above examination of the material available on record leads us to conclude that the ocular testimony is reliable and trustworthy and the conviction of the appellant on the basis of such an evidence can be safely sustained.
12. Consequently, the conviction of Ghulam Ali appellant under section 302, P.P.C. As recorded by the learned trial Court is maintained.
13. The quantum of punishment awarded to the appellant has, however, engaged our attention. It had been admitted by the two eye-witnesses who are the brothers of the deceased that since about two years, the deceased used to frequently abandon her matrimonial home and used to come away to her brothers house. Despite this, the complainant claimed that he had never asked his deceased sister the reason of these continuous quarrels whereas, Sultan P.W. Stated that he did ask his sister about the same but she never disclosed the cause of dispute. The inference is obvious that the two witnesses were reluctant to say anything derogatory about their sister who was no more. As has been mentioned above, it stands proved on record that the deceased had disappeared and had been finally found in Darul Aman at Karachi and one Sultan was the one against whom a case had been registered in respect of this abduction.
14. In these circumstances, we find that the appellant deserves leniency of treatment.
Consequently, the sentence of death awarded to Ghulam Ali appellant is not confirmed. He is instead sentenced to suffer imprisonment for life. The fine of Rs,10,000 awarded to him is also reduced to an. Amount of Rs,2,000 and he shall undergo only three months' R.I. In default of payment of this fine. The benefit of the provisions of section 382-B of the Cr.P.C. Shall be allowed to him.
15. Murder Reference No,260 of 1989 and Criminal Appeal No,62/J of 1989 are disposed of in the above terms.
Death sentence is not confirmed.
Sentence reduced.