Instant appeal is directed against the judgment dated 21-2-1998 passed by Rao Shafey A.I Khan, Additional Sessions Judge-I, Bahawalnagar came at Chishtian, whereby he convicted Bashir Ahmad accused/appellant under section 302, P.P.C. And sentenced him to imprisonment for life.
However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Briefly stated the facts are that Muhammad Abdullah complainant married his daughter Mst.
Mazharan Bibi deceased with the appellant about 3/4 months prior to the occurrence. After his marriage, the appellant had been residing in the house of the complainant as Khana Damad.
About 5/6 days prior to this occurrence, it is alleged, hot words were exchanged between accused and his wife, upon which appellant left the house of complainant and shifted to his own house.
However, respectables of the Bratheri brought reconcliation between them and consequently the appellant returned to the house of the complainant. On the mid-night of 15/16th of June, 1996 the complainant alongwith his wife Mst. Bashiran, brother Jan Muhammad as well as one Ghulam Nabi were sleeping in the courtyard of his house, while the appellant alongwith his wife Mst. Mazharan Bibi were also sleeping in the same courtyard. At about 3-00 a.m. The complainant got up on the hue and cry of his daughter and saw that appellant being armed with a hatchet had caused hatchet blows on the forehead and back side of the head of Mst. Mazharan Bibi. The complainant and P.Ws. Tried to catch hold of accused, who succeeded in decamping from the place issuing threats and waiving his hatchet in the air. Later on it was found that Mst. Mazharan Bibi had succumbed to the injuries on the spot. The motive is stated to be exchange of abuses between the accused and the deceased. Leaving the dead body on the spot the complainant proceeded to the police station to lodge report
3. Zahid Majeed--- S.-I. P.W.6' recorded F.I.R. Exh.PD on the statement of the complainant Muhammad Abdullah on 16-6-1996 at 7-30 a.m. He then proceeded to the place of occurrence. He took into possession the deed body of Mst. Mazharan Bibi, prepared the inquest report Exh.PC/3 and injury statement Exh.PC/2. He also prepared rough site plan Exh.PH and took into possession the blood-stained earth vide memo.' Exh. P.E. He also secured the blood-stained cot P-4 vide memo. Exh.PF. He despatched the dead body of Mst. Mazharan Bibi to mortuary of Rural Health Centre, Sheher Farid through Akhtar Hussain, Constable who after the post-mortem examination produced the last worn clothes Exhs.P-1 to 3 of the deceased before the S. I. Who recovered the same vide memo. Exh.PB. He arrested the appellant on 21-7-1996, who on 25-7-1996 led to the recovery of blood--stained hatchet P-5 which was taken into possession vide memo. Exh.PG. He also prepared the rough site-plan of the place of recovery Exh.PG/l. He delivered the parcels to the Moharrer for keeping the same in safe custody. On 9-3-1997 he got prepared site plans of the place of occurrence Exhs.PA and PA/1. After completing the investigation got the appellant challaned.
4. A charge under section 302, P.P.C. Was framed against the appellant to which he pleaded not guilty and claimed trial.
5. In order to bring home guilt to the appellant prosecution examined Muhammad Tahir Khan Anjum P.W.1, Akhtar Hussain P.W.2, Dr. Shakeel Riffat Mirza P.W.3, complainant Abdullah P.W.4, Ghulam A.I P.W.5 and Zahid Majeed, S.-I. P.W.6. Thereafter the APP produced the report of Chemical Examiner Exh.PK and closed the case for prosecution vide his statement dated 6-2-1998.
6. When examined under section 342, Cr.P.C. The accused denied the prosecution version and in reply to Question No.11 as to why this case had been registered against him stated as follows:-- "The actual facts of this case are that on the night of occurrence I came to my house and saw my wife Mst. Mazharan Bibi lying in a compromising position with Rafique Shah inside the room. On seeing me Rafique Shah ran away and when I tried to catch hold of Rafique Shah my wife Mst.
Mazharan Bibi caught hold of me and Rafique succeeded in running away. I then picked up a hatchet lying inside the room and Mst. Mazharan tried to run away but I inflicted injuries on her person due to sudden provocation and Ghairat. I myself appeared before the police and narrated the whole occurrence. The witnesses were not present at the time of occurrence and they falsely deposed against me due to relationship with the complainant. "
However, he neither produced any evidence in his defence nor opted to get his statement recorded under section 340(2), Cr.P.C.
7. After going through the evidence of the prosecution and hearing the learned counsel for the parties, the trial Court convicted the appellant vide judgment under appeal.
8 .Arguments have been heard and record perused.
9. It is submitted by the learned counsel for the appellant that motive aspect of the prosecution version is so weak and unconvincing that it hardly gives a cause of grievance to commit the murder of the deceased and that is why it has not been believed by the trial Court; that it is not necessary that there must be a motive for committing murder, but if some motive is asserted then it is the duty of the prosecution to establish it failing which it recoils upon the prosecution; that as per prosecution version occurrence took place at 3-00 a.m. On 16-6-1996, that even this aspect of the prosecution version is belied by the post-mortem examination report Exh.P.C wherein the time between death and post-mortem is stated to be within 24 hours, that post--mortem examination was conducted on 16-ti-1996 at 11-55 a.m. And if the period of 24 hours is counted then the occurrence could not take place at 3-00 a.m. But much prior to that, that even the oral account of this occurrence does not appeal to reason as if the complainant (P.W.4) and eye--witness Ghulam Nabi (P.W.5) were present on the spot, they must have intervened to save the deceased from the clutches of the appellant, that the compla0ant being father of the deceased must have stepped to rescue his daughter at the risk of his life and in that process must have received some scratch on his person, if not some injury, that prosecution version consists of the statement of complainant (P.W.4) and his brother-in-law (Sala), i.e. P W.5 Ghulam Nabi, that even the motive as disclosed by P.W.4 hardly appeals to reason and it cannot be believed that the appellant would commit the murder of his newly wedded wife simply on the ground that he (appellant) had damaged some silky cloth given to the deceased by her parents, that as the prosecution version does not ring true so the defence version has to be accepted in totality and placed reliance upon Muhammad Yaqoob v. The State (2000 SCM R 1827), that if the defence version is accepted, then the appellant is liable to punishment ranging up to 5 years as under these circumstances similar punishment has been awarded and placed reliance upon Nazir and another v. The State (2000 PCr.LJ 175). He, thus, submitted that conviction may be altered to section 302(c), P.P.C. And sentence may be modified to one which he has already undergone.
10. Conversely the impugned judgment has been supported by the learned counsel for the State.
11. It is evident from the contents of F.I.R. That the motive ascribed to the appellant is that he had committed the murder of the deceased as exchange of hot words which had taken place between the appellant and the deceased. This motive on the face of it does not appeal to reason and that is why it has not been believed even by the trial Court. On the other hand, cause of grievance voiced by the accused/appellant has been explicitly described in reply to Question No. 11 while recording his statement under section 342, Cr.P.C. Even otherwise the oral account of occurrence as deposed by the complainant Muhammad Abdullah (P.W.4) and Ghulam Nabi (P.W.5) does not appeal to the mind of a prudent man. It does not stand to reason that if the accused had been inflicted hatchet blows on the person of deceased, the complainant being a real father should have acted like a silent spectator. Even otherwise the seat of injuries on the forehead and back of head of the deceased shows that these could not be caused if the deceased had been attacked as suggested by the prosecution. The time that elapsed between death and post-mortem examination also lends support to the defence version rather than the prosecution. The evidence of recovery of hatchet after 39 days of incident does not come to the rescue of the prosecution. The prosecution evidence, being not up to the mark, reliance has to be placed on defence version and that too in totality. Thus, it is proved that occurrence has not taken place as disclosed in the F.I.R. Exh.P.D, but as asserted by the appellant in his statement under section 342, Cr.P.C
12. The upshot of the above discussion is that appellant has committed the murder of his wife under the impulse of sudden and grave provocation/Ghairat. Thus, the conviction of appellant under section 302, P.P.C is altered to under section 302(c), P.P.C. In cases involving element of Ghairat, there is tendency to justify imposition of lesser penalty as held in A.I Muhammad v. A.I Muhammad and another (PLD 1996 SC 274), and Muhammad Ishaque alias Baig v. The State (1998 P.Cr.L1 1110). The appellant was arrested on 21-7-1996 and since then is in jail. As such he has been undergoing the agony of trial and conviction for the last four years, three months and ten days.
Keeping in view the authorities referred above, the sentence of imprisonment of life is reduced to six years. However, he is I extended benefit of section 382-B, Cr.P.C.
With this modification in the conviction and sentence, the appeal is dismissed.
H.B.T./B-44/L Appeal dismissed/Order accordingly revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.