ZIA MAHMOOD MIRZA, J.---This appeal by leave of the Court is directed against the judgment of Lahore High Court, Rawalpindi Bench, dated 16-1-1993 whereby the appellant's conviction under sections 302/307, P.P.C. Recorded by the trial Court for his having caused the murder of his wife Mst.
Nargis Bibi and making murderous assault on his father-in-law Abdul Rehman was upheld and death penalty awarded to him on the charge of murder was confirmed.
2. Facts relevant for the disposal of this appeal, briefly stated, are that the appellant Abdul Shakoor alongwith to others namely Iftikhar Ahmed and Nisar Ahmed were put on trial to face the charges under section 302/307/34, P.P.C. For committing the murder of Mst. Nargis Bibi and launching murderous assault on Abdul Rehman and Sakhawat Hussain. Case of the prosecution in nutshell was that on 4-5-1989 at about 6-30 a.m., Abdul Rehman alongwith his daughters Mst. Nargis Bibi and Ishrat and Sakhawat Hussain (given up P.W.) were bringing wheat crop from their fields to the threshing floor when the appellant armed with Churri, Iftikhar Ahmed armed with Soti and Nisar Ahmed empty-handed appeared on the scene. The latter to raised a Lalkara and the appellant attacked Abdul Rehman and gave him as many as six injuries on different parts of his body. He also inflicted to injuries on Sakhawat Hussain and gave a Churri blow to Mst. Nargis Bibi on the left side of her chest which proved fatal and she died on the spot.
The motive alleged was that Mst. Nargis Bibi was married to Abdul Shakoor but for the last to years, she was living with her parents on account of strained relations between the spouses. Abdul Shakoor wanted to take her back to his house but she was not willing to live with him. It was for this reason that the appellant and his co-accused killed Mst. Nargis Bibi and caused injuries to her father Abdul Rehman.
3. Prosecution rested its case on the ocular testimony furnished by Abdul Rehman, the injured P.W., Fazal Hussain and Mir Afsar, the motive and the recoveries of blood-stained Churri and blood- stained clothes of the appellant as also the medical evidence. Reliance was also placed on the reports of the Chemical Examiner and Serologist.
Appellant when examined under section 342, Cr.P.C. Took the plea of grave and sudden provocation stating that on the day of occurrence, early in the morning when it was still dark, Mst.
Nargis Bibi had gone to the fields to meet her paramour Ali Asgher. He was already in their pursuit and when he saw both of them in an objectionable posture, he got provoked and assaulted them.
Ali Asgher succeeded in fleeing away but he overpowered Mst. Nargis Bibi and gave her a single Churri blow. Thereafter, when he was on his way back home, Abdul Rehman armed with Churri attacked him. Sakhawat P.W., reached there by chance and wanted to rescue him and in that process he was injured by Abdul Rehman. Apprehending danger to his life and that of Sakhawat Hussain, he (the appellant) caused injuries to Abdul Rehtoan in self-defence.
The appellant repeated this version in his statement under section 340(2) ,Cr.P.C.
4. Learned trial Court did not accept the plea of the appellant that he caused the death of Mst.
Nargis Bibi under sudden and grave provocation and relying upon the ocular testimony of prosecution witnesses which was corroborated by the motive, the recoveries and the medical evidence as also the reports of Chemical Examiner and Serologist found the appellant guilty of committing the murder of Mst. Nargis Bibi and making murderous assault on Abdul Rehman, injured P.W. The appellant was accordingly convicted under section 302, P.P.C. And sentenced to death and a fine of Rs.10,000 with the further direction that he shall pay compensation of Rs.10,000 to the legal heirs of the deceased. He was also convicted under section 307, P.P.C. And sentenced to seven years' R.I. With a fine of Rs.2,000 and was further directed to pay Rs.2,000 as compensation to the injured P.W. The co-accused of the appellant were, however, given the benefit of doubt and acquitted.
5. Appeal filed by the appellant, as stated above, was dismissed by the High Court and death sentence awarded to him by the trial Court was confirmed vide the impugned judgment
6. Counsel for the appellant at the leave-stage did not assail the conviction of the appellant and only contended that there was a mitigating circumstance which justified the award of lesser sentence of imprisonment. His submission was that the deceased was the wife of the appellant but she had returned to the house of her parents and was not living with him for to years prior to the occurrence. He wanted to bring her back but she was not willing to live with him and it was on account of this grievance that he attacked the accused and injured her father. In view of this submission, leave to appeal was granted in this case to consider whether it is a fit case for awarding the penalty of death.
7. Reiterating the submission made at the leave stage, learned counsel for the appellant sought to contend that the appellant being the husband of the deceased was entitled to her company which was denied to him for to years. According to, the learned counsel, it is in the evidence of Abdul Rehman P.W., the father of the deceased that the deceased was residing separately due to strained relations with the appellant for to years prior to the occurrence and that the appellant went to the house of his father-in-law few days before the occurrence with the request that he should send the deceased with him but he (Abdul Rehman P.W.) refused to do so which was followed by exchange of hot words. It was urged that it was in this background, that the appellant, a young man of 27/28 years of age became desperate and took recourse to attacking his father- in-law and also caused one Chhurri blow to his wife which unfortunately proved fatal. These, according to the learned counsel, were the extenuating circumstances which mitigated the gravity of the crime and would justify passing the lesser sentence of imprisonment for life rather than exacting extreme penalty of death. We have given our anxious consideration to the circumstances pointed out by the learned counsel and find ourselves unable to accept his contention. The evidence on record does not show that during the period of to years that the deceased lived with her parents, the appellant made any serious and earnest effort to bring her back to his house by seeking intervention of the elders of the family or respectables of the village. He did not approach the Union Council nor did he file any suit for restitution of conjugal rights or arranged any Jirga for compromise to take back his wife from the house of his in-law. He went to the house of his father- in-law only once and that, to, not in a very reconciliatory mood because on the refusal of the latter to send the deceased with him, the visit ended in exchange of hot words and some days thereafter he having armed himself with a Chhurri, made a murderous assault on his father-in-law causing him as many as six injuries including to on the abdomen and to on his face though he luckily survived and in the same transaction, he also killed his wife in utter cold blood. Not only that, he also tried to malign the deceased by taking a false plea at the trial attacking her moral character which was not accepted by the Court below and for good reasons. For all these reasons, the appellant, in our view, was not entitled to any leniency and he has been rightly awarded the death sentences which under the law is the normal penalty for the offence of murder.
9. Upshot of the above discussion is that we find no merit in this appeal which is hereby dismissed.