' KHALIL-UR-REHMAN RAMDAY, J.---One Maratab All was tried by a learned A.S.J. of Sahiwal for having murdered his wife, namely, Mst. Naseem Akhtar.
2. Through a judgment, dated 20-3-1989 of the said learned Court, the said Maratab All was found guilty of the charge and after being convicted under section 302, P.P.C. he was sentenced to suffer death and to pay a fine of Rs,20,000 or to undergo three years' R.I. in default of payment of fine. Half of the amount of the said fine, if realized, was directed to be paid to the heirs of the deceased.
3. Murder Reference No,66 of 1989 seeks confirmation of the abovementioned sentence of death imposed on Maratab Ali convict who in turn challenges his conviction and sentences, above- noticed, through Crl.
' Appeal No,235 of 1989. All Muhammad complainant has field CrL Revision No,326 of 1989 and prays for an order directing the said convict to pay compensation as envisaged by section 544-A, Cr.P.C. and also for enhancement of the amount of fine imposed on him.
4. All these three matters are being disposed of together through this single judgment.
5. The occurrence in question which had witnessed the murder of Mst. Naseem Akhtar had taken place at about 10 p.m. on 31-1-1987 in the house of Maratab appellant situate in village Piddo Basharat, about 8 miles from P.S. Sadar Pakpattan.
6. The same had been reported to Karamat Miran S.I./S.H.O. at about 12-05 a.m. on 1-2-1987 by one All Muhammad who was father of Mst. Naseem Akhtar deceased.
7. The said complainant had stated that he was a resident of Lahore and had married his daughter to Maratab All appellant about three years prior to the occurrence. He had further claimed that his deceased daughter had been repeatedly complaining to him that her husband Maratab Ali appellant was a drug addict and that on these complaints, he had many a time asked Maratab All appellant, to mend his ways.
8. All Muhammad complainant had further reported that on 31-1-1987 he again received a message from his deceased daughter to the effect that her husband was again pestering her by making a grievance that Mst. Naseem Akhtar deceased had spoilt the appellant's reputation by complaining against him to her father.
9. The complainant added that after receiving this message he reached village Piddo Basharat alongwith his two sons, namely, Waqar (P.W.5) and Nisar (given up) and talked the matter over with Maratab Ali appellant till about 8/9 p.m. and advised him to correct himself upon which the appellant undertook to improve his conduct.
10. The complainant had added that he then went into his room alongwith his sons which was adjacent to the room of the appellant and the deceased and they were preparing to go off to sleep when the deceased called out to them at about 10 p.m. saying that Maratab appellant was going to fire at her.
11. He went on to further inform Karamat Miran S.I. that he alongwith his sons rushed into the room of the appellant and just as they were about to enter the room, Maratab appellant fired two shots at his deceased daughter who fell down after receiving injuries and died whereafter Maratab appellant ran away from his house.
12. The complainant had finally disclosed that Maratab appellant had done his daughter to death on account of the said deceased having complained to the complainant about the drug addiction of the appellant.
13. During the course of investigation two crime empties had been recovered from the place of occurrence. They were, however, not exhibited at the trial. Similar is the position of a licensed gun of Maratab appellant which the I.O. had taken into possession from the shop of Nazir Ahmed, arms dealer of Pakpattan where the same had been deposited on 5-2-1987 i.e. about six days after the occurrence.
14. Maratab All appellant had been arrested on 17-2-1987 and was challaned to face trial, after the completion of investigation.
15. When examined under section 342, Cr.P.C., the appellant stated that he had cordial relations with his deceased wife and that the two .had been leading a happy life. He, however, pleaded that on 31-1-1987, he wanted to go out at about 8-.00 p.m. to attend a Punchayat and was carrying his gun with him but his deceased wife asked him not to go out of the house at that odd hour and on the appellant's persistence to go, the deceased caught hold of the barrel of the appellant's gun which he was carrying and in the struggle that ensued, the said gun went off accidentally and the shot which had so got fired hit the deceased who died as a result of the injury caused by the same.
He had further claimed that he then sent information to All Muhammad complainant about the death of his daughter as per Muhammad Yousaf (D.W.1) who came to the appellant's house the next morning and after fabricating a false case, because of his connections with the local police, got the case in question registered against the appellant.
16. Canvassing acquittal for Maratab Ali, appellant, his learned counsel argued that the two alleged eye-witnesses, namely, All Muhammad complainant and Waqar (P.W.5) were not present at the place of occurrence at the relevant time and that they had been falsely planted as eye-witnesses after having been imported from Lahore, that both the said eye-witnesses were closely related to the deceased being her father and brother respectively; that the death of the deceased was the result of an accident for which the appellant was not criminally liable; that no corroboration was available on record in support of the ocular testimony and that in the circumstances, prosecution having failed to prove the guilt of the appellant, he deserved to be acquitted.
17. The appellant has not denied that the occurrence in question had taken place in his bedroom where he was the only person present with his deceased wife when she met her end.
18. The onus thus lay very heavily on the appellant to explain how the deceased had died and it is an established principle of law that if in the kind of circumstances above-noticed, the appellant cannot explain the death in question upon any reasonable hypothesis which was compatible with his innocence then the said circumstances, by themselves, could furnish a valid basis for recording a fmding of guilt against him. Reliance is placed on Muhammad Arshad v. The State 1992 SCM R 1187.
19. The genesis of the occurrence in question, according to the appellant, was his leaving house at 8 p.m. and the insistence of the deceased to persuade him against it because as per the deceased, as claimed by the appellant, the said hour was an odd hour of the night.
20. An examination of this claim of the appellant demonstrates that the same was not reasonable.
21. Eight '0 clock at night, even during winter days, was no odd hour of the night nor a man going for village Punchayat was such an odd or objectional purpose that a wife would react to the same so strongly and so vehemently that having failed in her verbal entreaties would resort to physical violence or would get involved in physical struggle with her husband to stop him from leaving the house at that hour or for that purpose.
22. It is also not believable that the appellant would feel the necessity of arming himself with a loaded gun while going out of his house to attend the village Punchayat.
23. Equally unbelievable is the plea of the appellant that during the alleged struggle that had ensued between him and his wife, his deceased wife would elect to hold his gun by the barrel.
24. In any case, the holding of the gun by the deceased and her having received injuries on her person while the gun having accidentally gone off in that position, is a claim which is being falsified by the seat, the nature and the dimensions of the injuries received by her. Needless to elaborate that if the deceased was holding the gun in question by its barrel then she would not have received injuries on the lateral side of her left arm and on her left flank.
25. Having thus noticed the defence plea in the light of the attending facts and circumstances we find that the theory propounded. by the appellant regarding the accidental death of his wife was not a reasonably believable explanation of the death in question.
26. Consequently, we are led to reject the defence version of the occurrence in question and we hold so accordingly.
27. The effect of the rejection of the appellant's explanation of the occurrence in question is that the appellant is held not to have been able to discharge the burden which the circumstances had so heavily placed on him regarding offering a reasonable explanation of the death in question which was incompatible with his guilt.
28. This failure on the part of the appellant is by itself sufficient to maintain the appellant's conviction as recorded by the learned trial Court.
29. Nevertheless, the prosecution is armed even with the ocular testimony offered by All Muhammad complainant and Waqar Ahmed (P.W.5).
30. The occurrence in question had allegedly taken place at about 10 p.m. which time of occurrence is being supported by the medical evidence according to which the post-mortem examination had taken place at about 11-30 a.m. on 1-2-1987 and the time which had elapsed between the death and the said examination had been declared to be from 10 to 14 hours. The F.I.R. had been recorded at the P.S. at about 12 a.m. i.e. within two hours of the occurrence in question which could not have been possible if Ali Muhammad complainant and his son Waqar were not present at the place of occurrence at the relevant time and if they had to be imported from Lahore for the purpose.
31. Both the eye-witnesses, who are no doubt the father and brother of the deceased, had no enmity or ill-will which could have prompted them to convert an accidental death of the deceased into a murder and then to falsely accuse their innocent son-in-law of the same. The depositions of these two eye witnesses are in accord with the medical evidence which thus corroborates them.
32. We, therefore, find no reason to disbelieve these two eye-witnesses regarding their presence at the place of occurrence and regarding their having witnessed the same.
33. The learned counsel for the appellant also submitted that the complainant was a retired police officer who had, at one time, served under Sakhawat Ali who was the S.H.O. of P.S. Sadar Palcpattan during the days of occurrence. According to him, it was on account of this association that the said S.H.O. had conducted a partial investigation resulting in fabrication and concoction of the evidence.
34. The partiality of the said S.H.O. and of the local police is evident from the fact that the I.O. had not been able to recover even the licensed gun of the appellant which had been allegedly used in the occurrence in question and instead permitted him to have the same deposited with an arms dealer.
35. In any case, as would be evident from the above examination of the evidence available on record, the same consists only of circumstances and the ocular testimony offered by the father and brother of the deceased and did not include any other piece of evidence which could have been falsely planted or concocted in favour of the prosecution.
36. In view of the facts and circumstances above-noticed, we are of the opinion that the prosecution had successfully proved its case against the appellant and that no exception could be taken to the finding of guilt recorded by the learned trial Court against the present appellant and we hold accordingly. The conviction of the appellant under section 302, P. P.C. is, therefore, maintained.
37. The question of quantum of sentence warranted by the above-noticed facts and circumstances of the present case has however, engaged our attention.
38. It is the prosecution's own case that the eye-witnesses, the appellant and the deceased had retired to their respective bedrooms by about 8/9 p.m. and that the occurrence had taken place at about 10 p.m. This then indicates that the deceased lady and the appellant had been alone in their bedroom for at least half an hour before the deceased had got killed. There is nothing on record to indicate as to what had transpired between the two immediately preceding the occurrence in question.
39. In the circumstances, we would fmd it unsafe to impose the maximum penalty of death on Maratab All appellant.
40. Consequently, the death sentence awarded to him by the learned trial F Court is NOT CONFIRMED and he shall instead suffer imprisonment for life for his conviction under section 302, P.P.C.
41. There is yet another aspect of this case. The amount of compensation awarded to the heirs of the deceased is only Rs,10,000 and that also has been ordered to be paid out of the amount of fine levied on the appellant.
42. We, therefore, issued notice to Maratab Ali convict in Cr.R. No,326/89 to show cause why he should not be directed to pay compensation under section 544-A of the Cr.P.C., independently of the compensation, as directed by the learned trial Court.
43. The learned counsel appearing before us for Maratab All appellant in abovementioned appeal filed by him, accepted notice and having heard the learned counsel we direct Maratab All convict to pay an amount of Rs,20,000 as compensation to the heirs of the deceased as envisaged by the provisions of section 544-A, Cr.P.C. which would be in addition to the payment of compensation as already directed by the learned trial Court out of the amount of fine. In case Maratab Ali convict defaulted in payment of this compensation, he shall suffer six months' R.I. in lieu thereof. It is further directed that the said amount of compensation shall be recovered from Maratab All convict as arrears of land revenue and it is clarified that since the appellant, though the husband of the deceased, yet has himself been adjudged as her murderer, he shall not be entitled to receive any part of the compensation as one of the heirs of his deceased wife.
44. Murder Reference No,66 of 1989, Criminal Appeal No,235 of 1989 and Criminal Revision No,326 of 1989 are disposed of in the above terms.
Death sentence not confirmed.
Sentence reduced.