FALAK SHER, J.--- Shujat Ali appellant (23) assailing his conviction and sentence recorded by a learned Additional Sessions Judge, Okara under section 302, P.P.C. To death with a fine of Rs.10,000 or in default to serve one year's R.I. In addition to paying Rs.5,000 compensation to legal heirs of Asghar Raza deceased (35) or to suffer another term of six months' S. I. Vide judgment, dated 29-7- 1991 seeking confirmation through Murder. Reference No.382 of 1991 has preferred the captioned Criminal Appeal No.921 of the same year and are disposed of as under.
2. Jafar Raza P.W.3 brother of the deceased on 14-3-1990 at 10-30 p.m. Lodged F.I.R. Exh.P.B. With Rana Faqir Muhammad, Inspector/S.H.O. Police Station City Depalpur P.W.14.
3. Alleging that he was running a fertilizer shop at Grain Market Road, Depalpur having the deceased as a partner and appellant accountant, who on the preceding day had an altercation over defalcation in the accounts culminating into the latter's admonition where after he left the shop and showed up on the day of occurrence at 9/10 a.m. And invited the deceased to his place of abode for reconciliation of the accounts. Pursuant whereto the complainant accompanied by the deceased, Muhammad Yasin Sial P.W.5 and Muhammad Yasin Qadri P.W.6 called at the appellant's house around 9 a.m.; who upon showing up went in on the pretext of opening the sitting room returned with a dagger and within their sight, in quick succession stabbed the deceased on the left side of the chest and flank who collapsed in the entrance of the house across that of the appellant. Where after the latter vanished away brandishing the dagger while the deceased in injured condition was removed to Tehsil Headquarters Hospital,' Depalpur en-route whereto his elder brother Akhtar Raza joined them and before approaching the same succumbed to the injuries.
4. Rana Faqir Muhammad, Inspector P.W.14 after recording the F.I.R. Proceeded to the hospital prepared the deceased's inquest report Exh.P.H., injury statement Exh. P. H . / 1, despatched the dead body to the mortuary with Muhammad Sarwar F.C. P.W.11 who later on tendered his last worn blood--stained clothes shirt P.1, Shalwar P.2, Vest P.3 reduced into possession vide memo. Exh.P.F., collected blood-stained earth from the venue vide memo. Exh.P.E., got site plan Exh.P.A. Prepared from Muhammad Saleem, Draftsman P.W.2; on 25-3-1990 arrested the appellant who a day latter i.e. 27-3-1990 led to the recovery of blood-stained Chhuri P.4 digging it up by the WAPDA Transmission pole taken possession of vide memo. Exh.P.G. Attested by Riaz Hussain P.W.10, Jarrar Haider P.W.13.
5. Dr. Shahid Farooq P.W.4 then Medical Officer, Tehsil Headquarters Hospital, Depalpur on 15-3- 1990 conducted autopsy on the deceased's body brought by Muhammad Sarwar F.C. P.W.11 identified by Muhammad Rafi P.W.8 observing the following vide post-mortem report Exh.P.D.:-- "(1)Stab wound measuring 4 c.m. x 1 c.m. x deep going on left side of front of chest. The wound lied 3.5 c.m. Inferomedial to the left nipple (at 7 O'clock position from the left nipple).
(2)Stab wound measuring 1.5 c.m. x 0.5 c.m. x muscle deep on the outer side of left side of chest, 18 c.m. Below the left axilla.
(3) Stab wound measuring 1.7 c.m. x 1 c.m. x muscle deep on the left side of front of abdomen, 1 c.m.
Below the margin of left rib cage. It lies 18 c.m. Below the left nipple (at 6 O'clock position from the left nipple)." opined cause of death was cardiac shock due to injury No.1 sufficient to cause death in the ordinary course of nature, all ante-mortem of sharp-edged origin.
6. Jaffar Raza P.W.3 testifying the prosecution story in cross-examination explained that they are running fertilizer shop since 1978 with a store situated 400/500 yards away, he was managing the shop while the deceased and the appellant were looking after the store maintaining separate accounts, according to the deceased the appellant had embezzled a sum of Rs.53,587 in a month's period, they had never visited the appellant's house preceding the incident, his clothes as well as that of the remaining two eye-witnesses were slightly stained with blood while handling the deceased but were neither produced to the Investigating Officer nor were taken into possession; vehemently refuting the suggested out raging modesty of the appellant's sister Mst. Robina by the deceased.
7. He was corroborated on all material particulars by Muhammad Yasin Sial P.W.5 a neighbouring shopkeeper in the same trade as well as Muhammad Yasin Qadri P.W.6 an employee of Depalpur Municipal Committee, a latter's friend and daily visitor after office hours. Rest of the evidence was of formal nature.
8. Whereas the appellant denying the prosecution story recorded his version of the incident both in his statement under section 342, Cr.P.C. As well as on oath within the contemplation of section 340(2) ibid in the following terms:-- "The P.Ws. Have given false evidence against me. I have been falsely involved in this case on the basis of false motive and concocted version. In fact my ailing father was admitted in Depalpur Hospital. On the day of occurrence the deceased visited him in the hospital after evening time, when my family members were also present there except my sister Mst. Robina. Finding my family members there in the hospital the deceased left the hospital. In the meantime I also left for my house. As I reached in my house I saw the deceased inside my house, who was trying to outrage the modesty of my sister Mst. Robina, who was beseeching him. On seeing this I lost self-control and under grave and sudden provocation and at the spur of moment, picked up kitchen knife and caused injuries to the deceased who tried to run away but fell injured in front of our house and died there. I had no intention to cause his death. None of the eye-witnesses were present at the spot at the time of occurrence. I went to police station and narrated the occurrence there. The police fabricated a false story by setting up a false motive and then registered this case in collusion with the complainant party. I am innocent." examining his sister Mst. Robina (24) as D.W.1 in support of his stance.
9. Whereupon the verdict under appeal was returned legality whereof has been assailed by the teamed counsel for the appellant reiterating the plea of sudden and grave provocation.
10. To which learned counsel appearing on behalf of the State as well as the complainant joined issue supporting the judgment stating that the banked upon plea is not available to the appellant in view of amended law where under upon confession of Qatl-i-Amd death sentence has to be visited in terms of section 302(a) read with section 304(1)(a), P.P.C. Placing reliance on the case of The State v. Abdul Waheed alias Waheed and another 1992 PCr.LJ 1596.
11. Adverting to the legal proposition canvassed by the learned counsel for the complainant before examining the factual aspect of the case, suffice it to observe that the same has been advanced in oblivion of the subsequent Supreme Court's pronouncements in the case of Manzoor and others v.
The State and others 1992 SCMR 2037, requiring the witness to stand the test of Tazkiya-ul- Shahood; in the following terms: .... That where proper Tazkiya-tul-Shahood was not done of an eye--witness, the conviction under Islamic Law could not be sustained. In the present case this requirement having not been satisfied, the conviction under Injunctions of Islam could not be awarded." and preserving the right of self-defence with extended scope, relevant text whereof is reproduced here in below:-- "even on seeing him and encountering him in spite of having weapons with them, they did not react violently immediately. These factors and such a conduct acts as a mitigation. In this background we maintain the conviction of the appellants under section 302, P.P.C. But it shall be under clause (b)..." as well as that of this Court in the case of Ghulam Yaseen and 2 others v.-'The State PLD 1994 Lah.
392 taking into account the plea of Ghairat:-- "A Qatl committed on account of Ghairat is not the same thing as Qatl--i-Amd pure and simple and the persons found guilty of Qatl committed on account of Ghairat do deserve concession which must be given to them. The test that can be done in the present stage of law is to convict such-like persons, guilty of Qatl-e-Amd committed on account of Ghairat, under clause (c) of section 302, P.P.C. As such, a Qatl cannot be said to be punishable with Qisas as per Injunctions of Islam."
12. Visualising the prosecution version juxtaposed to that of the appellant's upon perusal of the entire evidence we are impelled to observe that the appellant's stance does not manifest true confession for the same being patently irreconcilable with the adduced facts, factum whereof remained un-controverted viz. Non-discovery of any blood within the precinct of the appellant's house as well as the trail tending to connect the same with the place wherefrom the dead body was recovered and the blood-stained earth thereunder i.e., in the entrance of the house across the road; and rather seems to be a convenient afterthought urged at the trial for the first time without exposing it to the Investigating Officer for ascertainment of its veracity.
13. Conversely the prosecution story stands duly proved by the unimpeached confidence inspiring testimony of the complainant corroboration whereto has been furnished by Muhammad Yasin Sial P.W.5 and Muhammad Yasin Qadri P.W.6 save for the acclaimed motive remaining shrouded in mystery including possibility of the appellant's family honour because there was no occasion for the complainant and the deceased to visit the appellant's house for verification of the accounts, record whereof they were possessed off and secondly, being his employer they should have summoned him over instead of visiting him, therefore, awarding of capital punishment is not called for.
14. Consequently partly allowing the appeal, maintaining the appellant's conviction is awarded imprisonment for life as Tazeer availing the benefit contemplated by section 382-B, Cr.P.C. And the entire fine in the event of recovery to be paid as compensation to legal heirs of the deceased.
15. As a necessary corollary of the foregoing answering the Murder Reference in the negative the death sentence is not confirmed.