This judgment will dispose of Criminal Appeal No. 13 of 1990 as well as Criminal Revision No.35 of 1990.
2. Brief facts as revealed from the statement Exh.P.D. Made by Mst. Maqbool Jan are that Altaf Hussain deceased is her son. On 16-1-1988 at about 2.00 p.m. When the complainant Mst. Maqbool Jan was present alongwith his daughter Mst. Ghulam Ruqia, Altaf Hussain deceased was having his meal, Zafar Abbas appellant came to their house who was his old friend and took him to his house on the pretext that he had to discuss something with him. Both went towards the house of the appellant Zafar Abbas. They were seen entering the house together by Mst. Ghazala Anjum as well.
Mst. Ghazala Anjum reached her house i.e. Her as well as that of complainant when Zafar Abbas appellant came to the house of A.I Raza which is situated in front of the house of the complainant and took Mst. Nargas Yasmeen towards his house.
3. After a short while hue and cry was heard from the house of War Abbas appellant. It transpired that Altaf Hussain had been murdered by Zafar Abbas appellant in his Baithak and he had also inflicted injuries on the person of Mst. Nargas Yasmeen who is his niece. The complainant alongwith her daughters Mst. Ghazala Anjum and Mst. Ghulam Ruqia reached the house of the appellant War Abbas and saw that the dead body of Altaf Hussain was lying on the floor smeared with blood. In the courtyard, Mst. Nargas Yasmeen was also lying on a cot in an injured condition.
4. The motive was stated to be that the appellant suspected that Altaf Hussain deceased had illicit liaison with Mst. Nargas Yasmeen i.e. The niece of the appellant, therefore, out of that grievance he committed murder of Altaf Hussain and caused serious injuries on the person of Mst. Nargas Yasmeen.
5. On the statement of Mst. Maqbool Jan, case F.I.R. No.10 was registered with Police Station Kallar Syedan, District Rawalpindi, on 16-1-1988 at about 4.00 p.m. Under sections 302/307, P.P.C. The statement was exhibited as Exh.P.D. On the basis of which formal F.I.R. Exh.D.D.l was registered. On completion of the investigation, the challan was submitted in the Court of Mr. Abdul Hamid Khan Khattak, Additional Sessions Judge, Rawalpindi. The learned Additional Sessions Judge, vide his judgment dated 3-2-1990 convicted 'the appellant under section 302, P.P.C. And sentenced him to undergo imprisonment for life and also to pay a fine of Rs.10,000, in default thereof; to undergo two years R.I. The conviction was also recorded under section 307, P.P.C. And sentenced the appellant to five years R.I. With a fine of Rs.2,000, in default thereof, to suffer R.I. For six months.
6. The prosecution, in order to prove its case, examined 14 witnesses. P.W.1 Fida Hussain is a witness of blood-stained clothes removed from the body of Zafar Abbas appellant. He has also attested other recoveries from the "spot. Mst. Maqbool Jan is P.W.2 and she has furnished the eye-witness account. She has reiterated the facts already made in Exh.P.D. She also attested the recovery of 11 empties from the place of occurrence (8 from the cot and 3 from the floor) vide memo. Exh.P.F. She also attested the recovery of four led bullets from the spot vide memo. Exh.P.G. P.W.3 Muhammad Razzaq, A.S.I. Is a formal witness. P.W.4 Munir Akhtar identified the dead body of Altaf Hussain deceased at the time of post-mortem examination. P.W.5 is Mst. Ghazala Anjum. She deposed to the effect that she saw Zafar Abbas appellant taking her brother towards inside of his house and she also saw appellant outside the house of his brother A.I Raza which is located in the front of her house and from there he took alongwith him Mst. Nargas Yasmeen his niece. Soon thereafter, she heard noise, hue and cry and on reaching the place of occurrence, she saw her brother dead and Mst. Nargas Yasmeen in an injured condition. She also attested certain recoveries. P.W.6 is Naved Anjum. He is witness of recovery of blood-stained clothes. P. W.7 Mukhtar Ahmad is a formal witness from Police whereas P.W.8 Muhammad Din 3s a Draftsman. P.W.9 Mumtaz Ashraf stated that on the day of occurrence at about 3.00 p.m., he followed Zafar Abbas appellant who entered the Telephone Exchange and told the Telephone Operator that he (the appellant) had murdered Altaf Hussain and his own niece i.e. Mst. Nargas Yasmeen and thereafter locked them up in his drawing room. P.W.10 Allah Yar A.S.I., and P.W.11 Asghar A.I, Constable, are formal witnesses and they have performed duties assigned to them during investigation.
7. P.W.12 Dr. Basharat Hussain examined Mst. Nargas Yasmeen aged about 17 years and noted the following injuries on her person:-- (1-A) A fire-arm entry wound 1/2 x 1/2 c.m. Below the left ear over the neck with blackening around the wound. There was bleeding through the wound. Blackening was 1 c.m. Around it.
(2) A fire-arm entry wound 1 /2 x 1 /2 c.m. Over the front of right side of face in front of and below the right ear. There was blakening of 1 c.m. Around the wound and was bleeding through it.
(3) An oval shape fire-arm entry wound which was 7/10 x 5/10 c.m. With blackening around it and was located over the outer side of left fore-arm in the middle of it with bleeding to it.
(4) A circular shaped fire-arm entry wound 5/10 x 5/10 over the outer side of left upper arm with similar mark over the clothes with blackening over the clothes.
(5) A circular shaped exit wound over the inner side of left upper arm with bleeding and which was most probably the exist wound of injury No.4.
(6-A) Circular shaped wound over the left side of upper part of left mammary gland which was 1/2 x 1/2 c.m. With the bleeding through it. There was corresponding mark over the clothes. Probably injury No. 6 was the continuation of fire-arm injury No.4.
All these injuries have been caused with fire-arms..
8. P.W.13.Dr. Riaz Ahmad conducted the post-mortem examination of Altaf Hussain deceased aged 26/27 years and found the following injuries on his person:--
(1) An incised wound 1 " x 0/5 " x deep enough to reach the interior of the left cheek below the maxilla. The injury was situated 5/8" below the left eye.
(2) A round fire-arm wound 3/4 c.m. x 3/4 c.m. On the left temopral region just near the outer end of the left eye brew. The edges of the wound were blackened and inverted, that was the wound of enterence. The upper lid of the left eye was ecohymosed for 3/4" x 1/2". On dissection under this injury, the lateral orbital wall of left orbit had been fractured and traversed by the bullet. The bullet was found and recovered from the left orbit.
(3) An incised 'round 1.1" x. 1/4" deep enough to reach the carvical vertebral column on the back of the left side of the neck 3-1/2 below and behind the lower part of left ear.
(4) An incised wound 1" x 1/2" x deep enough to communicate with injury No. 3 on the back of-the neck just adjacent to injury N6.3. Ondissection under these two injuries, the third cervical vertebra had been cut and the spinal cord also was cut at that level. The big blood vessels i.e. Caretid artery was also cut.
(5) An incised wound 6/8" x 1/4" deep enough to reach cervical spine almost in the median plain.
(6) An incised wound on the back of the left shoulder 3/4" x 1/4" x muscle deep on the left scapular region.
(7) An abrasion 1/2" x 1/5" on the back of left upper arm about 1-1/2" above the left olecranan process of left elabow joint.
(8) An abrasion 1-1/4" x 34" on the left hand just below the left wrist
(9) An abrasion 3" x 1/4" on the front of the left lower leg almost in the middle.
Injuries Nos. l,' 3 and 4 were grievous and caused by sharp-edged weapon. Injuries Nos.5 and 6 were simple and caused with sharp-edged weapon. Injuries Nos.7, 8 and 9 were simple and caused with a blunt weapon. Injury No.2 had been caused with fire-arm from the very close range.
Injuries Nos.3 and 4 were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem, Exh.P.M. Is the correct carbon copy of the post-mortem report whereas Exh.P.M./1 and Exh.P.M./2 are formal diagrams of the injuries.
9. P.W.14 Muhammad Asadullah is a Investigating Officer who conducted the investigation and performed 'all the necessary formalities required for completion of the investigation: On 17-1-1988, he arrested the accused and after getting removed the blood-stained clothes last worn by him, took them into possession. On completion of the investigation challaned the accused.
10. After the close of the prosecution case, Tariq Masood, Telephone Operator whom the appellant stated to have visited was examined as C.W.1 who stated that the appellant never visited him nor he was known to him previously. Mst. Nargas Yasmeen niece of the appellant was examined as C.W.2. She stated that on the day of occurrence i.e. 16-1-1988 she was present in her house at about 12 noon. Altaf deceased entered her house. He tried to molest her but she pushed him. She took out the kitchen Knife lying in the almirah of the room but deceased brought out a pistol and started firing upon her whereupon she started giving him chuuri blows as they were close to each other. He tried to snatch chhuri but his pistol fell down and she picked it up and fired shots as a result of which he injured. In the meanwhile Ghulam Rabbani, Lal and brothers of Ghulam Rabbani the neighbourer also reached the place of occurrence. It is to be noted that she had been originally cited as P.W. But subsequently was summoned by Court on the prayer made by the defence. The appellant was examined under section 342, Cr.P.C. He, however, declined to appear as his own witness as envisaged by section 340(2); Cr.P.C. He denied all the allegations against him. He stated that his defence is reflected from, the statement of Mst. Nargas Yasmeen C.W.2, as such, he adopted the same as his defence version.
11. The learned counsel for the appellant, in the first instance, tried to point out certain discrepancies in the statements of P.Ws. It is also argued that the prosecution version was not plausible, as such, is not acceptable. His main stand was, however, the statement made by Mst. Nargas Yasmeen as according to him she came forward with the true exposition of facts and by relying upon her statement, the appellant Zafar Abbas be acquitted. According to him, the prosecution had failed to discharge its onus and to prove the guilt of Zafar Abbas appellant.
12. As against that, the learned counsel appearing for the complainant and the State argued that the appellant had committed a cold-blooded murder and the prosecution had proved its case beyond any shadow of doubt. They further submitted that there was no mitigating or extenuating circumstances in favour of the appellant, therefore, normal sentence of death should have been imposed. The learned trial, Judge has erred in awarding lesser penalty. The same is sought to be enhanced.
13. I have gone through the prosecution evidence as well as the relevant record with the help of the learned counsel for the parties. The prosecution evidence comprises of the witnesses who can be termed as witnesses of last seen. According to them, the deceased Altaf Hussain was seen in the company of Zafar Abbas appellant who, in fact, took him to his house in order to kill him. Soon after he took him to his house, hue and cry was heard. As Altaf was killed soon after taking with him, therefore, the appellant is the only person responsible for his murder. The other pieces of evidence are the evidence of recovery of revolver at the instance of the appellant, the recovery of empties from the place of occurrence, the opinion of Forensic Science Expert was obtained and vide his report Exh.P.Z., the revolver was found to be id working order. The empties recovered from the place of occurrence had been fired from his revolver. Not only that the led bullets recovered on dissection of the dead body also detected to have been fired from the appellant's revolver. The appellant was arrested just next day after the occurrence i.e. On 17-1-1988 whereafter the blood-stained clothes which he was wearing at that time were removed from his body. The medical evidence also lends support to the prosecution version. Apart from that, there is evidence of motive. According to the prosecution, the appellant suspected illicit relations in between the deceased Altaf Hussain and his niece Mst. Nargas Yasmeen. All these pieces of evidence together leaves no doubt to believe that deceased had in fact been killed by Zafar Abbas appellant. The finding of the learned trial Judge after appraising the entire evidence that the death had, in fact, been caused by Zafar Abbas appellant appears to be sound and well-considered. Although the learned counsel for the appellant has pointed out certain discrepancies in the statements of the P.Ws. And also has pointed out some defects in the prosecution case but the discrepancies pointed out by the learned counsel are not material enough to discard their testimony. All the circumstances of the prosecution case lead to one irresistible conclusion that Altaf Hussain had been killed by appellant Zafar Abbas. No possible hypothesis of defence of War Abbas appellant is spelt out. I, therefore, am not in a position to accede to the contention raised by the learned counsel for the appellant.
14. The learned counsel for the appellant has argued with rather vehemence that the statement of Mst. Nargas Yasmeen C.W. 2 who was injured during the same incident that she was intended to be molested by the deceased, therefore, in order to save her chastity, she inflicted injuries on his person by picking up a knife from the almirah of the room deserves reliance. According to the learned counsel, as she has admitted killing of the deceased, therefore, the appellant be exonerated of the charge against him.
15. It is true that Mst. Nargas Yasmeen received injuries even according to prosecution during the incident wherein Altaf Hussain was also killed but the statement made by her in Court cannot be accepted to be true narration of the incident for more than one reasons firstly the occurrence took place on 16-1-1988 and she came up to appear as a witness in Court for the first time on 6-1-1990 i.e. After the expiry of about two years. It was never put to the Investigating Officer that she wanted to make statement before him and he refused to record the same. It was also not put to the Investigating Officer that the appellant came up with this plea that the murder had, in fact, been committed by his niece to save her chastity. Had she appeared before the Investigating Officer and the same would not have been recorded, the appellant or Mst. Nargas Yasmeen who was, in fact, brought up by him as his daughter would not have spared any efforts to bring the version on record. No attempt was ever made to bring this version on record earlier than 6-1-1990 when she was produced before the Court. As noted above, she, in fact, had been cited as a P.W. But was given up during trial and was got examined as C. W. This circumstance abundantly indicates that during course of investigation or even during trial, Mst. Nargas Yasmeen was not prepared to help the appellant and did not want to make a statement as she made in the Court subsequently as C.W.2. Apart from the above stated reasons, the version put forward by her is self-contradictory and inconsistent. According to her, she picked up a knife and started inflicting blows on the deceased. Had the deceased been armed with a revolver, he would not have permitted her to cause injuries one after the other. It also appear to be rather ridiculous that during the scuffle when the pistol or revolver fell down she picked up the same and caused fire-arm injuries, to the deceased with it. It clearly appears that after expiry of about two years, the sentiments got cool down. She was prevailed upon by members of the family to forgive the appellant and was produced in Court in order to protext and defend the appellant. The story put forward by her is absolutely incredible.
16. Unfortunately, in this case, neither the prosecution nor the defence has come forward with true version of the incident. As observed by the Hon'ble Supreme Court in Syed A.I Bepari v. Nibaran Mollah and others (PLD 1984 SC 502), the Court in order to dispense justice has to dig out the true facts from the available material. Following the guidelines provided by the Hon'ble Supreme Court, I have ventured to find out the real facts. To ascertain the same, various admitted facts and circumstances of the case have to be kept in mind. The admitted position in the instant case is that the occurrence took place in the house of the appellant; that both deceased and Mst. Nargas Yasmeen received injuries in one and the same incident, that the motive even by the prosecution is stated to be illicit liaison in between the deceased and Mst. Nargas Yasmeen; that the revolver recovered at the instance of appellant had matched with bullets recovered from the place of occurrence and also that the led, bullets extracted from the dead body of the deceased; that appellant was seen in the accompany of the deceased soon before the alleged occurrence; and lastly that the appellant when arrested was wearing blood-stained clothes indicating that he was concerned with the incident took place in his house. All these facts and circumstances taken up together, as already observed above, lead to one conclusion that it is appellant who is responsible for killing Altaf Hussain but these facts also clearly indicate that the murder would have been committed by the appellant out of some provocation and fury. The prosecution story that the appellant, in the first instance, took deceased alongwith him and thereafter by leaving him in his house went to the house of his brother A.I Raza which is situated in front of the house of the deceased and then took Mst. Nargas Yasmeen with him to his house and thereafter by putting both deceased and Mst. Nargas Yasmeen together caused injuries to them to commit murder appears to be extremely unplausible rather paradoxical. It is inconceivable that the appellant would have made the deceased to sit in the Baithak and then he was made to wait for sometime and in the meanwhile would have brought his niece and then put them together appears to be an attempt to explain as to why and how these two persons who were allegedly carrying on with each other were injured together. It seems that Mst. Nargas Yasmeen the appellant's niece who was brought up by him like his daughter, he saw them in an objectionable condition and thereafter by losing his self- control caused injuries with sharp-edged weapon and also with a fire-arm. As to where from he picked up the weapon it has not been brought on record either by the prosecution or by the defence, may be the appellant picked up a knife from the house and also a revolver because a number of injuries caused both to the deceased and injured Mst. Nargas Yasmeen leave no doubt that the same had been done out of some sudden provocation. It is undisputed principle of criminal justice that benefit of doubt, if any, should be extended to the accused. Similarly, if theory favourable to accused is reasonably spelt out from the facts and circumstances, the defence should be afforded the benefit of the same as well. Following the same principle, I hold that the appellant inflicted injuries on the deceased as well as Mst. Nargas Yasmeen on seeing them in some objectionable condition by loosing his self-control. His case would, therefore, be covered by first proviso to section 300, P.P.C. And is liable to be convicted under section 304, Part II, P.P.C. The offence, therefore, does not constitute murder but culpable homicide punishable under' section 304, Part II, P-P.C. Accordingly, the appellant's sentence under section 302, P.P.C. Is set aside and he is convicted under section 304, Part II, P.P.C. Coming to the quantum of sentence, the occurrence took place in the year, 1980 i.e. About 12 years back. He was sentenced to imprisonment for life but was released on bail by this Court on 24-6-1992, as such, he has undergone imprisonment for a period of about 4-1/2 years. I would, therefore, sentence him to imprisonment already undergone by him. The sentence of fine is enhanced from Rs.10,000 to Rs.50,000, in default thereof, to undergo R.I. For two years. On recovery, the amount may be paid to heirs of the deceased. His conviction under section 307, P.P.C. Is maintained but sentence of five years' R.I. Is reduced to that of already undergone with a fine of Rs.2,000, in default, to undergo R.I. For six months. Both the sentences of imprisonment shall run concurrently. Both the criminal appeal as well as criminal revision are disposed of in the above terms.