' Mst. Maqsood Bibi wife of Taj Muhammad aged 25/26 years and her brother co-accused Ahmad Bakhsh alias Lalu were tried by the learned Additional Sessions Judge, Rahimyar Khan for the murder of Khan Muhammad alias Khanu, and vide his -impugned judgment, dated 19-2-1987 convicted Maqsood Bibi appellant under section 302, P.P.C. And sentenced her to undergo imprisonment for life and a fine of Rs,5,000 in default whereof to further suffer R.I. For 2 years. The fine, if realized, was directed to be paid to the legal heirs of the deceased. She was also extended the benefit of section 382-B, Cr.P.C. The co-accused was acquitted of the charge. To assail her conviction and sentence the appellant has come up in appeal. Connected Criminal Revision No,41/1987/BWP has been withdrawn and disposed of accordingly.
2. The facts of the case as unfolded in the F.I.R. Exh.PG recorded by P.W.11 Abdul Hamid, A.S.I. On 11-6- 1985 at 5-30 a.m. At Police Station Liaquatpur, District Rahimyar Khan on the statement of P.W.3 Muhammad Ismail complainant are that he was resident of Mauza Goth Mahi and on the preceding night of the occurrence he alongwith his family slept in the courtyard of the Haveli and his sons Khan Muhammad alias Khanu deceased, Ata Muhammad P.W. (given up) and P.W.4 Jan Muhammad were sleeping in the courtyard near him on their cots. The complainant's daughter-in- law Mst. Maqsood Bibi appellant wife of Taj Muhammad slept in the courtyard in front of her Kotha.
A lantern was lit. At about mid-night the complainant alongwith his sons Ata Muhammad P.W.
(given up) and Jan Muhammad, P.W.4 on the hue and cry of Khan Muhammad deceased woke up and witnessed appellant Mst. Maqsood Bibi inflicting Kassi blows on the head of deceased Khan Muhammad and Ahmad Bakhsh, her brother (acquitted co-accused) had caught hold of the legs of Khan Muhammad deceased and within the sight of P.Ws. The appellant inflicted two/three Kassi blows direct on the head of Khan Muhammad deceased. The witnesses tried to apprehend Ahmad Bakhsh, who escaped alongwith Soti, whereas Mst. Maqsood Bibi appellant after leaving behind Kassi at the spot went inside her Kotha and bolted it from inside. The complainant witnessed that Khan Muhammad deceased was sme ared in blood and lying unconscious on the cot. The motive was that the complainant had given Rishta of Mst. Mithan Mai, his daughter to the acquitted co- accused, but due to his bad habits the Rishta was not given and on account of that grievance the appellant with the help of her co-accused seriously injured Khan Muhammad with the Kassi. Khan Muhammad injured succumbed to his injuries on the same day in the hospital and section 302, P.P.C. Was added. P.W.11 Abdul Hamid, A.S.I. Reached the hospital, prepared injury statement Exh.PJ and inquest report Exh.PK of the deceased and despatched the dead body for autopsy. He reached the spot 'and secured blood-stained Kassi P.2 vide memo. Exh.PB. He also collected blood-stained earth from the spot vide memo. Exh.PC. The reports of the Chemical Examiner and Serologist Exhs.PN and PO respectively are positive. He arrested the accused on 16-6-1985 and after completion of the investigation had challaned them.
3. The accused were challaned and sent up for trial. A charge under section 302/34, P.P.C. Was framed to which they denied and claimed trial.
4. The prosecution examined 11 P.Ws. In all to substantiate its case. P.W.7 Dr. Gulzar Muhammad Khan stated that on 11-6-1985 the deceased was brought in unconscious condition in the hospital, who died at 6-15 a.m. And on the same day at 4-15 p.m. He conducted autopsy on the dead body of the deceased and found the following injuries:---
(1) An incised wound 12 c.m. x 2 c.m. x brain exposed on the left side of head, 2 c.m. Above the ear deeply swinging lower down brain was protruding out of the wound.
(2) An incised wound 8 c.m. x 2 c.m. x bone deep on the left side of the neck and face. The ear was cut into two halves. Sweeping downwards from the neck to face.
(3) A 16 c.m. Long cut mark from the angle of mouth to the neck on its left side. It was quite superficial cutting the skin only.
' Scalp, skull, membrane, brain were cut and injured under Injury No,1. The base of the skull was also cut under Injury No,2, and opined that the death was due to haemorrhage and shock caused by Injury No,1 individually. Individually and collectively all the injuries were sufficient enough to cause death in the ordinary course of nature. All the injuries were ante-mortem and were inflicted by the sharp weapon. The probable duration between the injuries and the death was seven hours, and between the death and postmortem was ten hours.
5. The ocular account and the motive were furnished on record by the statements of P.W.3 Muhammad Ismail complainant and P.W.4 Jan Muhammad, who are father and brother of the deceased respectively. The recovery of blood-stained Kassi P.2 was witnessed by P,W.2 Abdul Majid and the same was secured by P.W.11 Abdul Hamid A.S.I. From the place of occurrence.
6. The appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against her and made a detailed statement and in short stated that on the relevant night her husband was not in the house and had gone to water the lands. The deceased tried to commit rape upon her when she was sleeping on the cot in front of her Kotha. She resisted his attempt and also threatened him to raise alarm, upon which he went back to his cot. She was infuriated, picked up a Kassi which was lying in the courtyard and under grave and sudden provocation and also in exercise of her right of private defence gave Kassi blows to him while he was lying on his cot. The P.Ws. Were not present. She was also suffering from schizophrenia for quite some time and remained admitted in the B.V. Hospital, Bahawalpur and was treated by Dr. Ijaz Haider (D.W.2) and although she felt some time normal, but all of a sudden used to get fits and the above act was under that impulse. She was innocent and had not exceeded her legal rights. She produced D.W.1 Mst. Aishan and D.W.2 Dr. Ijaz Haider, but had not made statement on oath. D.W.1 Mst. Aishan stated that she was married to Atta Muhammad, brother of the deceased and the appellant was married to Taj Muhammad, brother of her husband and in exchange of their hands Mst. Mithan daughter of the complainant was to be given in marriage to Ahmad Bakhsh alias Lalu (acquitted co-accused), but the complainant refused. The appellant had no issue and on the night of occurrence she was sleeping in the courtyard of her house and at about mid-night on the alarm raised by Jan Muhammad she woke up and she found that the appellant had killed Khan Muhammad and the appellant was under mental fits. After some time when the appellant composed herself, she told that her husband Taj Muhammad had gone out to irrigate the land on the night of occurrence and in his absence the deceased tried to commit rape upon her which she resisted and in exercise of her right of self-defence she had done so. The appellant further told her that she was under mental fits and could not understand the consequence of her act. D.W.2 Dr. Ijaz Haider, Professor, of Psychiatry, King Edward Medical College, Lahore, was Head of the Department of Psychiatry, B.V.
Hospital, Bahawalpur in 1985 and the appellant was admitted as indoor patient vide Indoor No,174 on 12-3-1985 till 27-3-1985 and she suffered from mental disorder (Schizophrenia) and he had prescribed medicines. He further. Stated that approximately 25 per cent. Of the patients get fully cured and in the remaining 75 per cent. Some residual defect remains. When the appellant was discharged from the hospital, she was not fully cured. Exh.DC/1 is the patient case sheet signed by him. He further stated that if the patient does not follow the instructions contained in the discharge slip Exh.D.C. And Exh.D.C./1, then she was likely to take a very long time to come out of the attack.
7. The learned trial Court after evaluating the evidence on record acquitted the co-accused and convicted and sentenced the appellant.
8. I have heard the learned counsel for the parties and have also perused the record with their assistance. The learned counsel for the appellant vehemently contended that the appellant had killed the deceased under grave and sudden provocation and in exercise of the right of private defence of her body. Moreover, she was suffering from schizophrenia.
9. The appellant was arrested on 16-6-1985 by P.W.11 Abdul Hamid, A.S.I. From the house of her father and at that time she had stated before him that the deceased used to molest her and used to cut indecent jokes with her. The appellant is stated to have entered her Kotha after the commission of the crime and bolted from inside and nothing was brought on record by the prosecution that how she escaped from the place of occurrence. P.W.3 Muhammad Ismail complainant neither narrated before the police in the F.I.R. Exh.PG that the co-accused had caused Soti blows to the deceased nor stated so before the trial Court, whereas P.W.4 Jan Muhammad stated that the co-accused was armed with a stick and had given one or two blows with the Soti to the deceased, but no blunt weapon injury was found by P.W.7 Dr. Gulzar Muhammad, who conducted autopsy on the dead body of the deceased. P.W.4 also stated during cross-examination that Mst. Maqsood Mai appellant while inflicting Kassi blows to his deceased brother was enraged and in high tamper. She did not utter anything at that time.
10. The appellant had raised a specific plea and while keeping it in juxtaposition with that of the prosecution case it has been brought on record that the appellant at the time of her arrest had stated before P.W.11 Abdul Hamid A.S.I. About the cutting of indecent jokes and her molestation by the deceased. The trend of cross-examination of the P.Ws. Is also on the same lines and they were also put the suggestions that the deceased wanted to commit rape upon the appellant while she was sleeping aside and in order to protect herself she killed the deceased under grave and sudden provocation. P.W.3 Muhammad Ismail complainant during cross-examination stated that the appellant was sleeping on her cot in front of her room at a distance of 7/8 Karams from his cot and about 11 Karams from the cot of the deceased. The other inmates of the house had their cots lying close to each other, but the cot of Mst. Maqsood Mai was in front of her own room. The possibility cannot be ruled out that the deceased might have had gone to the cot of the appellant to fulfil his nefarious designs and on her refusal went back to his cot. The appellant who was suffering from schizophrenia might have had noticed the Kassi lying in the courtyard, took it up and inflicted blows with the same on the deceased. D.W.1 Mst. Aishan, sister of the appellant was married to Ata Muhammad, brother of the deceased and was living in the same house, who also stated about the ailment of the appellant, as well as the appellant after the occurrence had stated before her that due to the absence of her husband the deceased tried to commit rape upon her, which she resisted and in the exercise of her right of private defence of her body she had killed the deceased.
She further told her that she was under mental fits and could not understand the consequences of her act. D.W.2 also stated about the ailment of the appellant, who remained under his treatment and was suffering from mental disorder (schizophrenia) and had further stated that approximately 25 per cent. Patients get fully cured and in the remaining 75 per cent. Some residual defect remains. The motive was also disbelieved by the trial Court to the extent of the acquitted co- accused and if there would have been some motive, it was for the acquitted co-accused to commit the murder and not the appellant. P.W.3 Muhammad Ismail complainant stated that he alongwith his sons consulted each other that how to get a case registered.
11. The genesis of the occurrence is shrouded in mystery and P.Ws.2, 3 and 4 have specifically stated that they did not know that what immediately happened before the occurrence and they were awakened only on the hue and cry of the deceased.
12. The plea raised by the appellant has been satisfactorily explained by her and the same is also spelt out from the evidence on record and the circumstances appearing in the case.
13. Pursuant to the above discussion I am of the view that the appellant who was suffering from schizophrenia, in exercise of her right of private defence of her body and under grave and sudden provocation had killed the deceased. The appeal filed by the appellant is allowed and she is acquitted of the charge. She is present on bail, her bail bonds are discharged.