' MUHAMMAD NAWAZ ABBASI, J.--- The appellant, namely, Saif Ullah son of Muzaffar Khan faced trial for the charge under section 302, P.P.C. For the allegation of committing Qatl-e-Amd of Mst.
Ghulam Farida, his wife on 6-3-1993 within the area of Police Station Makhad, District Attock before the learned Sessions Judge, who vide judgment, dated 29-3-1994 having found the appellant guilty of the charge convicted him under section 302, P.P.C. And sentenced him to death. He was also directed to pay Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in case of default in payment of compensation to further undergo R.I. For six months.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No,47 of 1994, whereas the learned Sessions Judge has sent Murder Reference No,75 of 1994 under section 374, Cr.P.C. For confirmation of sentence of death awarded to the appellant. Criminal Revision No,60 of 1994 has been filed by Khadim Hussain complainant for enhancement of the compensation.
3. The appeal as well as Criminal Revision and Murder Reference are being disposed of through this single judgment.
4. The brief facts in the background as contained in the statement (Exh.P.C.) of Khadim Hussain complainant made before Gulfam Hussain, Sub-Inspector, at Kafi Chowk at 4-35 p.m. On 6-3-1993 on the basis of which a case through F.I.R. Exh.P.C./1 was registered are to the following effect:-- "The complainant is the resident of Village Bhata and agriculturist by profession. Mst. Ghulam Farida, sister of the complainant was married to Saif Ullah son of Muzaffar Khan resident of the same village about one and a quarter years back and about three months earlier, she due to strained relations with her husband left for the house of the complainant, but after 10/12 days due to the intervention of the respectable, Ghulam Farida was sent to the house of the appellant by her father. However, the relations between the spouse remained strained and about twenty days ago, the sister of the complainant again left for his house as she was given beating by her husband namely Saif Ullah. Two days ago, Noor Zaman, Chairman Zakat and Ushr Committee came to the house of the complainant for compromise who was told by the father of the complainant that after Eid, he would send his daughter to the house of her in-laws. Saif Ullah had been extending threats that if Mst. Ghulam Farida would not be sent to his house, immediately she would be done to death.
Today, at Paishi-vela, Mst. Ghulam Farida and Mst. Sharfan, wife of the complainant had gone towards the Kassi Bhatawan for taking water and the complainant was also left for the said place with his cattle to provide them water. The moment Mst. Ghulam Farida and Mst. Sharfan reached near the Spring in the Kassi, Saif Ullah accused armed with a Chhuri suddenly emerging there raised Lalkara that Mst. Ghulam Farida would be taught a lesson for living in the house of her father and inflicted a Chhuri blow on the left flank of Mst. Ghulam Farida. Thereafter, he further caused two successive Chhuri blows to Mst. Ghulam Farida on her left flank. She made an attempt to escape from the place of occurrence, but she was given two more Cheri blows on her left arm by Saif Ullah who after causing injuries to her left the place of occurrence."
5. The complainant while taking his sister Mst. Ghulam Farida in an injured condition to the Hospital met with Ghulam Hussain, Sub-Inspector (P.W.9), who recorded his statement. He after preparing the complaint Exh.P.C. And injury statement Exh.P.F. Of Mst. Ghulam Farida sent her for medical examination to Rural Health Centre, Chhab. He prepared rough site plan Exh.P.G. Recorded the statement of Mst. Sharfan Bibi P.W. And took into possession the blood-stained earth from the spot through memo. Exh.P.D. He also took into possession iron bucket P.1, silver cup P.2, few pieces of broken pitcher P.3 and a shirt P.4 vide memo. Exh.P.E. On receipt of information about the expiry of Mst. Ghulam Farida in the Hospital, he prepared her injury statement Exh.P.I. For the second time and inquest report Exh.P.J. And dispatched the dead body to the mortuary for post-mortem examination. After completing the spot inspection, he got site plans Exh . P. C . /2 and Exh.P.C./3 prepared by the Patwari Halqa. Gulfam Hussain, S.-I. Arrested Saif Ullah appellant on 17-3-1993 and during the course of investigation, he led to the recovery of blood-stained Cheri P.8 from his residential house on 19-3-1993 which was taken into possession through memo.Exh.P.L. After completing the formal investigation, he challaned the accused to face the trial.
6. Lady doctor Shahida Perveen P.W.1 medically examined Mst. Ghulam Farida in an injured condition and traced the following injuries on her person:--
(1) Incised wound measuring 5.2 x 3 x 1.5 c.m. In left lumber region posteriorly.
(2) An incised wound measuring 1 x 0.5 x 0.5 c.m. On back 3 c.m. Lateral to spinal cord line.
(3) Incised wound measuring 2.5 x 1 x 1 c.m. In mid axillary line on left side.
(4) Incised wound measuring 4 x 1 x 0.5 c.m. On left elbow joint posteriorly.
(5) Incised wound measuring 5 x 2 x 1 c.m. On left elbow joint anterior laterally.
7. The post-mortem examination on the dead body of Mst. Ghulam Farida was conducted by Dr. Dost Muhammad P.W.2 on 7-3-1993 at 9-00 a.m. Who also observed the same injuries which were found by the lady doctor at the time of medical examination of Mst. Ghulam Farida in an injured condition. Injuries Nos.1 and 2 were found grievous and dangerous to life which were caused with sharp-edged weapon and were sufficient to cause death in the ordinary course of nature. The remaining injuries were simple in nature.
8. The prosecution produced eleven witnesses in all in proof of the charge against the appellant including the eye-witnesses namely Khadim Hussain and Mst. Sharfan Bibi. The eye-witnesses have supported the prosecution story as set down in the complaint Exh.P.C. Consistently and have corroborated each other on all material points.
9. The positive reports of the Chemical Examiner Exh.P.M. And Exh.P.M./1 and that of the Serologist Exh.P.N. And Exh.P.N./1 were placed on record as corroborative evidence.
10. The appellant in his statement under section 342, Cr.P.C. Denying the charge pleaded innocence. He in answer to question "why this case against you and why the P.Ws. Have deposed against you" replied as under:-- "The P.Ws. Are closely related to the deceased and also inter se. They have purposely become eye- witness against me, although it was an witnessed crime on account of strained relations between me and them. I have been falsely involved in this case. Mst. Ghulam Farida was done to death by her paramour who wanted to take her away. He being very close relative of the complainant party was left away and I was named as assailant on account of mere suspicions it was an un- witnessed occurrence. Mst. Ghulam Farida deceased used to desert my house off and on without my permission as she had illicit relations with some of the person in the village. I wanted to keep her at the Dhok but she did not put her mind to live with me on which I and my parents had strained relations with the father, brother and other relatives of the deceased. Furthermore, we wanted to decide the matter once for all and for that we had sent information to her parents that we will bring the Jirga on 27th of Ramazan for that purpose which further infuriated her parents and they falsely involved me."
11. Learned counsel for the appellant contended that the witnesses being closely related to the deceased, are interested and inimical towards the accused. He with reference to the statement of Aulia Khan (P.W.8) argued that Khadim Hussain complainant was not accompanying Mst. Ghulam Farida when she was taken to the Hospital in an injured condition. He excluding the presence of Khadim Hussain complainant at the spot contended that the presence of Mst. Sharfan Bibi, wife of the complainant at the spot was also not believable. He pointed out the minor discrepancies in the statements of the eye-witnesses such as that the deceased and Mst. Sharfan Bibi did not use to take water from the Spring together and difference of the distance of accused given by them from the Spring and the deceased argued that the eye-witnesses were not present at the spot. Learned counsel placing reliance on the suggestion put to the witnesses that the deceased was not of good character and used to visit the house of her parents with short intervals in order to see her paramour and she was killed by her paramour on her refusal to go with him who being closely related to the family of deceased, was not named in the F.I.R. And instead the appellant was substituted as an accused. Similar suggestions put to Mst. Sharfan Bibi P.W.11 that Mst. Ghulam Fulda had developed illicit relations with one Musthaq who done her to death was denied by her. It was also contended with reference to the statement of Mst. Sharfan Bibi that the women-folk of the village jointly fetched water from the Spring in question and that non-production of any woman present at the Spring has made the prosecution story doubtful.
12. Learned counsel appearing on behalf of the complainant as well as the State argued that it being a broad daylight occurrence having taken place at the open place at Spring and seen by the two natural witnesses, the guilt of the appellant is proved beyond doubt. They argued that the evidence does not suffer from any material infirmity to suggest a remote possibility of the innocence of the appellant, therefore, the conviction under section 302(b), P.P.C. Is unexceptionable. They further argued that the appellant having caused successive Chhuri blows to an innocent and helpless lady does not deserve any leniency in the matter of sentence.
13. We have heard the learned counsel for the appellant as well as the State at length and also perused the record with their assistance. The eye-witnesses account in the present case is consisted upon Khadim Hussain complainant (P.W.10), brother of the deceased, and Mst. Sharfan Bibi, wife of Khadim Hussain complainant. The occurrence took place at Paishivela at Spring at a short distance from the residential houses of the witnesses and the deceased in Village from where the women of the village used to take water for their domestic use. The going of the two ladies to the Spring for fetching water at the relevant time was not unnatural. It is common in villages that the ladies go - together to well or Spring for fetching water, therefore, the presence of Mst. Sharfan Bibi with the deceased at the place of occurrence was not unnatural. The causing of death of Mst.
Ghulam Farida near the Spring when she had gone to fetch the water itself was a strong proof of the presence of Mst. Sharfan Bibi, her Bhabi, with her at the relevant time. The blood-stained earth and the broken piece of pitcher and other articles belonging to the deceased having taken into possession by the Sub-Inspector near the Spring removed all doubts regarding happening of the occurrence at the Spring and the presence of Mst. Sharfan Bibi with the deceased.
14. The presence of Khadim Hussain, brother of the deceased with his cattles in the Kassi was also free of doubt. While being cultivator, it was natural for him to take his cattles for drinking water from the Kassi. However, the presence of the two eye-witnesses at the place of occurrence having established is not by itself sufficient to believe them truthful witnesses. They are closely related to the deceased and we, therefore, following the rule of corroboration as abundant caution examined their evidence in detail but have not been able to find out any material contradictions or discrepancies creating any doubt in the prosecution story or convincing us to believe that the appellant was not the actual culprit. The appellant in his statement under section 342, Cr.P.C. Has admitted the factum of strained relations with his wife. Therefore, the prosecution story to the extent of strained relations between the spouses is supported by the admission made by the appellant in his statement under section 342, Cr.P.C. This would indicate that there was no other dispute between the parties except the objection of the appellant to the attitude of the deceased of not taking interest in him and the appellant for the said reason having grievance against his wife caused her murder. Thus, the motive given by the prosecution stands proved through the admission of the appellant.
15. The occurrence took place on 6-3-1993 whereas the appellant after his arrest on 17-3-1993 led to the recovery of blood-stained Chhuri on 19-3-1993 i.e. After thirteen days of the occurrence.
According to the reports of the Chemical Examiner and the Serologist, the Chhuri was stained with human blood. Without commenting much on the subject, we cannot digest the argument that after lapse of thirteen days, the blood could still be deducted on the weapon of offence. Be that as it may, the sharp-edged injuries on the person of the deceased having traced by the doctor as mentioned in the medical report, without proving the use of Chhuri allegedly recovered from the appellant, the ocular account seeks ample corroboration from the fact that the injuries were caused with sharp-edged weapon.
16. The independence and truthfulness of the witnesses is established from the fact that undoubtedly the appellant had strained relations with his wife, but the other family members had no grudge or against him, as the father of the deceased made repeated attempts to rehabilitate the family by sending the deceased to the house of the appellant. Thus, it can be visualized from the circumstances that the witnesses had no reason to depose falsely against the appellant who wanted reconciliation between the appellant and the deceased. Therefore, despite being related to the deceased, the eye-witnesses were independent and, therefore, their evidence even if is not corroborated from any other evidence is sufficient to sustain the conviction. We, therefore, after making a detailed analysis of the evidence are of the view that the conviction of the appellant under section 302(b), P.P.C. For the charge of committing the murder of Mst. Ghulam Farida is unexceptionable.
17. Considering the question of sentence, we notice that the circumstances under which the occurrence took place and the strained relations of the appellant with the deceased in the background would frustrate the appellant due to the desertion of his wife and he becoming revengeful and loosing balance probably caused injuries to the deceased upon her refusal to accept his demand of joining him. The possibility of the deceased having behaved aggressively with the appellant being also not ruled out, we, giving the benefit of such extenuating circumstances to the appellant, are of the view that it is not a case of capital punishment. We, therefore, converting the death sentence awarded to the appellant by the learned trial Court into life imprisonment, dismiss this appeal. We also finding no reasonable ground to enhance the compensation awarded by the learned trial Court, dismiss the revision petition. The death sentence having not confirmed, the murder reference is answered in the negative.
Sentence reduced.