' This criminal appeal calls into question the legality and propriety of the impugned judgment, dated 17-5-1993 passed by the learned Sessions Judge, Faisalabad whereby he convicted Abdul Ghafoor under section 302 read with section 311, P.P.C. And sentenced him to undergo five years' R.I.
While Muhammad Sarwar, accused was acquitted of the charges. Muhammad Yousaf, complainant had filed Criminal Revision No,304 of 1993 for enhancement of the sentence of the appellant and against the acquittal of the co-accused. The criminal appeal as well as the criminal revision petitions, are being disposed of by this single judgment.
2. The brief facts of the prosecution story as detailed in the F.I.R., Exh.P.F./1 are that Muhammad Yousaf, P.W.7 reported to the police that Mst. Noor Bakhi, his wife, had gone to fetch water. In the meanwhile, there was noise in the village that Abdul Ghafoor and Muhammad Sarwar are dragging Mst. Bakhi, the wife of the complainant forcibly to their house. He immediately came out of his house in chase and saw that Abdul Ghafoor armed with Chhuri was holding Mst. Bakhi from her hair while Muhammad Sarwar had caught her neck. Both the accused took Mst. Bakhi to their house and bolted the door from inside. The complainant made hue and cry upon which Ashiq Khan and Ahmad Yar came at the spot. All the three knocked at the door but the accused did not open it and through peeping, it was seen that the accused had fallen down Mst. Bakhi on the ground, Sarwar was catching hold of her while Abdul Ghafoor was slaughtering her with a Chhuri. All the witnesses and the complainant forcibly entered into the house by scaling over the door but the accused managed to run away.
2. The motive alleged was that Abdul Ghafoor accused had divorced Mst. Bakhi (deceased) and after divorce, the complainant had married with her and due to his grudge, the accused had murdered Mst. Bakhi.
3. Leaving the dead body of Mst. Bakhi lying in the house of the accused, the complainant proceeded to the police station for registration of case where a Police Officer met him before whom he narrated the story who thereafter reduced the same into writing.
4. Muhammad Hussain, (P.W.9) then proceeded to the place of occurrence, prepared the injury statement, inquest report, collected bloodstained earth; took into possession Shalwar, Qameez and brazier and sent the dead body of the deceased for post-mortem examination. He arrested Abdul Ghafoor accused on 25-9-1990 who while in police custody led to the recovery of Chhuri P.4. The recovery was witnessed by Ashiq Hussain and Ahmad Yar. The investigation was then taken over by Inspector Masroor Ahmed (P.W.5) who partly investigated the case, found Muhammad Sarwar, accused, innocent, placed him in column No,2 of the challan and challaned Abdul Ghafoor, accused.
5. On 11-9-1990, Dr. Nazar Hussain (P.W.1) conducted the post-mortem examination on the dead body of Mst. Bakhi and found five injuries on her person. The injuries were caused by sharp-edged weapon, duration between the infliction of injuries and the death was immediate at the spot, between the death and post-mortem, 24 hours and in the opinion of the doctor, the injuries numbering five were sufficient to cause death in the ordinary course of nature.
6. The appellant when examined under section 342, Cr.P.C. Denied the prosecution allegations and professed innocence. In answer to a question why this case against him, he submitted as under:-- "The complainant is a bad character. The other P.Ws. Have deposed against me on his behest.
There is a party faction in the village."
7. The learned trial Judge disbelieved the motive and by relying on the statement of. Complainant P.W.8 and the medical evidence acquitted Muhammad Sarwar and convicted Abdul Ghafoor as indicated above.
8. Learned counsel for the appellant contended that it was an unseen occurrence, the dead body was seen lying in the house of Mansha, brother of the deceased, the medical evidence did not support the prosecution case as regards the alleged time of occurrence, the complainant was a man of bad character and that, Ashiq Hussain P.W.8 was an interested witness and his version stood uncorroborated. According to the learned counsel, the sentence awarded to the appellant is not warranted by law.
9. Learned counsel for the State as well as the complainant have submitted that the prosecution has established its case beyond any reasonable doubt, hence the conviction and sentence are liable to be enhanced.
10. I have critically examined the submissions of the learned counsel and have perused the record with their able assistance. The motive as alleged by the complainant in the F.I.R. (Exh.P.A.) was that Abdul Ghafoor divorced Mst. Noor Bakhi whereafter the complainant married her for which the accused harboured a grudge and now they have murdered her in furtherance of their common intention. The complainant stated the same in his deposition as P.W.7. The Nikahnama Mark "A" also shows marriage between deceased and the complainant. Muhammad Ashiq (P.W.8) in his cross- examination says, "it is incorrect to suggest that Muhammad Yousaf complainant and the deceased were not married, they were just carrying on and committing Zina. When they were married, the relatives of Muhammad Yousaf complainant had participated, but none had joined from the side of Mst. Bakhi. It is incorrect that the mother, a brother and a sister of the deceased are alive". It clearly shows that the learned trial Court did not properly appreciate the oral and the documentary evidence on the record. These circumstances did prove the motive as alleged by the complainant.
11. The ocular account of the incident as given by Ashiq Hussain (P.W.8) is that Abdul Ghafoor accused was holding Mst. Bakhi from her hair and in one hand he was holding a Chhuri and Sarwar accused was holding her by the neck and direct her into their house and bolted the door of the courtyard. He further deposed that Sarwar accused was holding the deceased on the ground while Abdul Ghafoor accused was cutting her throat with the Chhuri. Mst. Bakhi was writhing in agony and she expired in their presence. The medical evidence as per deposition of Dr. Nazar Hussain (P.W.1) is that he noticed the following injuries on external examination of the dead body of Mst.
Noor Bakhi wife of Muhammad Yousaf on 11-9-1990 at 4-45 p.m.:--
(1) Throat had been completely cut off (soft parts). Skin, muscles, large vessels, nerves trachea, oesophagus, cervical muscles and cervical bones had been partially cut off.
(2) An incised wound 22 c.m. x 5 c.m. (bone deep). All cervical structure had been cut off.
(3) An incised wound 2 c.m. x 1 c.m. On ring finger of left hand.
(4) An incised wound 3 c.m. x 1 c.m. On middle finger of left hand.
(5) Larynx and trachea had been completely cut off. All blood vessels of neck had been completely cut off. Oesophagus had been cut off. The rest of the organs were healthy.
' In his opinion death occurred due to the said injuries which were sufficient to cause death in the ordinary course of nature and that the injuries were caused by sharp-edged weapon. The duration between infliction of injuries and death was immediate at the spot and the probable time that elapsed between death and postmortem was within 24 hours. The time of occurrence given in the F.I.R. Is "Subahwela" and in the deposition the time given by the complainant P.W 7 is 6-30 or 6-33 a.m. The time given by Ashiq Hussain is "morning time". The time mentioned by the Medical Officer in the post-mortem report Exh.P.A. Is within 24 hours. As the death occurred at the spot there seems to be no discrepancy in the medical evidence and the prosecution case because the time of 10-1/4 hours is covered by the statement of the Medical Officer when he said that it was within 24 hours. In the cross-examination the doctor has admitted that duration between death and post-mortem can vary' to the extent of two hours on either side. The doctor has also stated that there was no post-mortem staining or rigor mortis on the dead body. Me also explained that the dead body was fresh and on this reason there was no rigor mortis or post-mortem staining. It is also important to note that the doctor had found the stomach healthy and having only a small quantity of fluid and both the small and large intestines were empty. Thus, the time given by the complainant is in line with the time of assessm ent of the doctor. The Medical Officer corroborates the ocular evidence regarding the cutting the neck of the deceased by the accused Abdul Ghafoor. The learned Sessions Judge has very correctly appreciated the whole evidence on this point and has come to the correct conclusion both on facts and law. So far as the arguments of the learned counsel for the appellant that the complainant was a man of bad character is of no help as the character is not relevant and even an offence committed against the complainant of bad character can be brought to the Court by such persons for scrutiny. Secondly, the prosecution case is supported by the evidence of Ashiq Hussain (P.W.8) and the medical evidence Exh.P.A. The next contention of the learned counsel for the appellant that Ashiq c Hussain (P.W.8) was an interested witness and his version stood uncorroborated is also not tenable for the reason that no enmity has come on record nor any factum to show the interestedness of this witness. In cross-examination of P.W.8 his truth could not be shaken. The last contention of the learned counsel for the appellant that the sentence awarded to the appellant is not warranted by law is also not sound. The learned Sessions Judge has correctly pointed out in Para. No,27 of the judgment that as all the three Walies of the deceased have pardoned both the accused, hence normally both should have been acquitted but in the circumstances of the case only Muhammad Sarwar accused is allowed this PC, u benefit. As far as Abdul Ghafoor accused (the present appellant) is concerned he attacked and cut the throat of a defenceless woman hence he is convicted under section 302 read with section 311, P.P.C. And sentenced to undergo five years' R.I. Muhammad Sarwar accused was acquitted of the charge.
Sections 302, 309, and 311, P.P.C. Are reproduced as under:-- "302. Punishment of Qatl-e-Amd.--- Whoever commits Qatl-e-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
309. Waiver---Afw- of Qisas in4Qatl-e-Amd.--- (1) In the case of Qatl-eAmd, an adult sane Wali may, at any time and without any compensation, waive his right of Qisas: Provided that the right of Qisas shall not be waived--
(a) where the Government is the Wali; or
(b) where the right of Qisas vests in a minor or insane.
(2) Where a victim has more than one Wali, any one of them may waive his right of Qisas: Provided that the Wali who does not waive the right of Qisas shall be entitled to his share of Diyat.
(3) Where there are more than one victim, the waiver of the right of Qisas by the Wali of one victim shall not affect the right of Qisas against the Wali of the other victim.
(4) Where there are more than one offenders, the waiver of the right of Qisas against one offender shall not affect the right of Qisas of the other offender.
311. Ta'zir after waiver or compounding of right of Qisas in Oatl-i-Amd.--- Notwithstanding anything contained in section 309 or section 310, where all the Walis do not waive or compound the right of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which extend to fourteen years as Ta' zir."
Had there not been the waiver of the right of Qisas by the Walis of the deceased the. Qisas would have been enforced in this case but as the Qisas has been waived section 311, P.P.C. Empowers the Court keeping in view the principle of Fasadfil-Ard ( ) to punish as a Ta'zir with imprisonment of either description for a tertn which may extend to 14 years as Ta'zir. The learned Sessions Judge having regard to the facts and circumstances of the case has exercised his discretion correctly with which I do not want to interfere.
12. The result is that no case is made out for setting aside the impugned judgment and conviction nor a case is made out for enhancement. As such, both the appeal of the appellant and the revision of the complainant are dismissed.