' SHEIKH ABDUR RAZZAQ, J.---Briefly stated the facts are that Bashir Ahmad (since deceased) brother of Naseer Ahmad complainant (P.W.6) has been working as driver on the tractor with Javed Sargana resident of Nawab Bhoti. On 11-5-1994 the complainant alongwith his brother Bashir Ahmad and Talib Hussain son of Wali Dad were sleeping in the Dera of Javed Sargana. At about 3- 00 a.m. Ejaz Ahmad son of Ghulam Muhammad resident of Nawaz Bhoti came at the Dera of Javed Sargana. He woke Bashir Ahmad deceased and took him to his house on the pretext of some private work. After sometime the complainant heard a fire shot coming from the house of Ejaz Ahmad. He alongwith Talib Hussain rushed towards the house of Ejaz Ahmad and saw that Bashir Ahmad was coming out of his (Ejaz Ahmad) house and was chased by Ijaz Ahmad who fired successive shots upon Bashir Ahmad hitting him on his abdomen, right arm, right hand, back and left thigh. As a result of which he fell down. The complainant and Talib Hussain then removed the injured for his treatment who on the way succumbed tp the injuries. Leaving the dead body in his house father Sher Muhammad, the complainant left for lodging the report. He stated that motive behind this occurrence is that Ejaz Ahmad suspected that Bashir Ahmad deceased had illicit relations with his wife.
2. Aman Ullah Inspector (P.W.8) was posted as S.H.O. Police Station Arouti on 11-5-1994. On the statement of Bashir Ahmad complainant (P.W.6) he recorded F.I.R. Exh.P.F. He then proceeded to the house of complainant situated in Chak No,757/GB. Where the dead body of Bashir Ahmad was lying. He inspected the dead body, and retrieved a led of bullet from the fold of Shalwar of the deceased and secured the same vide memo. Exh.P.G. He prepared the injury statement of the deceased Exh.P.B. And inquest report Exh.P.C. He dispatched the dead body of Bashir Ahmad for post-mortem examination through Muhammad Khan, Constable (P.W.2). He inspected the spot and secured blood-stained earth vide memo. Exh.M.H., prepared rough site plan Exh.P.K., secured last-worn clothes of the deceased P.1 and P.2 vide memo. Exh.P.D. Produced by Muhammad Khan, Constable. On 12-5-1994 he arrested the accused who thereafter led to the recovery of rifle P.3 which was secured vide memo. Exh.P.J. On 13-5-1994 he got the spot inspected through Muhammad Ashraf draftsman (P.W.5) who prepared site plans Exh.P.E. And Exh.P.E./1 and delivered the same to him on 14-5-1994. He deposited the parcel with the Moharrir directing him to transmit the same to the respective Laboratories for examination , and report. After usual investigation the case was sent up for trial.
3. A charge under section 302, P.P.C. Was framed against the accused Ijaz Ahmad to which he pleaded not guilty and claimed trial.
4. To bring home guilt to the accused the prosecution examined Dr. Shafqat Hussain (P.W.1) who on 11-5-1994 conducted the post-mortem examination of Bashir Ahmad deceased and found the following injuries on his person:---
(1) A fire entry wound 1.2 x 1 c.m., 4 c.m. Left to mid line in left lumber area 42 c.m. Below from base of neck, margins were inverted. There was no blackening and burning.
(2) A fire-arm entry wound 1 x 1 c.m. On left side of chest lateral aspect and lower most part, 22 c.m.
Left to mid line from back 31 c.m. Below from top of left shoulder. There was no blackening and burning.
(3) A fire-arm entry wound 1 x 1 c.m., 12 c.m. Below from tip of right shoulder on lateral aspect of right arm. There was no blackening or burning. Right humorous bone was fractured (compound).
(4) A fire-arm exit would 10 x 7 c.m. On medial aspect of right arm.
(5) A fire-arm graze 3 x 1 c.m. On right side of abdomen 4 c.m. Right to mid line, 15 c.m. Above from umbilicus.
(6) A fire-arm exit wound 3 x 2.5 c.m., 1 c.m. Right mid line, 2 c.m. In-foromedial to Injury No,5 on abdomen, fatty tissues of intestine were protruded out.
(7) A fire-am exit wound 5 x 2.5 c.m. On mid line, 5 c.m. Above. Umbilicus, fatty tissues and intestines were protruded out.
(8) A lacerated wound 2 x 1.5 c.m. On left side of abdomen, 4 c.m. Left to mid line 6 c.m. Below from umbilicus, muscle deep.
(9) A lacerated wound 2 x 1 c.m. x muscle deep on left thigh interiorly.
(10) A lacerated wound 3 x 1 c.m. On index finger of right hand muscle deep on palmer surface.
(11) A lacerated wound 2 x 1 c.m. On middle fingers of right hand muscle deep.
(12) An abrasion 3 x 2 c.m. On in front of right knee joint.
(13) An abrasion 4 x 2 c.m. On in front of left knee joint.
' In his opinion the cause of death was due to shock and haemorrhage induced by Injuries Nos.1, 2 and 3 caused by fire-arm weapon. Injuries Nos.8 to 13 were caused by blunt weapon. All the injuries were ante-mortem and Injuries Nos.1 to 3 were sufficient to cause death in the ordinary course of nature. He gave duration between injuries and death within one hour and between death and post-mortem examination 10-11 hours. He produced correct carbon copy of postmortem report Exh.P.A. And sketch of injuries Exh.P.A./1. He also signed the statement of injury Exh.P.B. And inquest report Exh.P.C. In respect of the deceased. Muhammad Khan, Constable (P.W.2) was posted at Police Station Arouti on 11-5-1994. He was handed over the dead body of Bashir Ahmad for post- mortem examination, After the post-mortem examination he handed over the last-worn clothes of the deceased P.1 and P.2 which were secured vide memo. Exh.P.D. On 27-5-1994 Mushtaq Ahmad Moharrir constable (P.W.3) gave sealed parcels containing bloodstained earth and 222 rifle for onward transmission to the office of the Chemical Examiner and Forensic Science Laboratory, Lahore respectively. Mushtaq Ahmad Head Constable (P.W.3) corroborated the version of P.W.2 regarding handing over parcels to him. Adil (P.W.4) identified the dead body of Bashir Ahmad at the time of its autopsy. Muhammad Ashraf draftsman (P.W.5) produced site plans Exh.P.E. And Exh.P.E./1 Officer. Naseer Ahmad (P.W.6) is the complainant who corroborated his version appearing in F.I.R. Exh.P.F. He further stated that he joined the investigation and the Investigating Officer secured led of the bullet as well as blood-stained earth vide memos. Exh.P.G. And Exh.P.H.
Respectively. Talib Hussain (P.W.7) is an eye-witness of the occurrence and supported the prosecution version. He also acted as marginal witness of memo. Of recovery rifle P.3 which was secured vide memo. Exh.P.J. Aman Ullah, Inspector (P.W.8) is the Investigating Officer whose evidence has already been discussed above. Thereafter, the learned A.D.A. Produced the report of Chemical Examiner Exh.P.L. And Exh.P.N. Of Serologist Exh.P.M. And closed the case of the prosecution vide statement, dated 20-9-1995.
5. When examined under section 342, Cr.P.C. The accused denied the prosecution story and in reply to Question No,19 as to why this case had been registered against him and why the P.Ws. Had deposed against him, stated as follows:--- "Case against me is false and the P.Ws. Have deposed against me due to the close relationship with the deceased. I and my father were away from our house because had gone to Multan to purchase the tube-well apparatus. We had returned to our house at the fateful night at 3-00 a.m.
And when entered saw Bashir Ahmad deceased already gagged the mouth of my wife Mst. Murid Fatima, removed her Shalwar lying aside, and wanted to commit forcible Zina with her, while she was resisting. She picked up a Sota lying there and started giving beating to the deceased. The deceased snatched that Sota and caused her injuries with it and overpowered her. Meanwhile I picked the licensed gun of my father lying in the house, lost my self-control under the grave and sudden provocation and fired at the deceased with intent to rescue my wife from his clothes as well as in the right of self-defence to the person of my wife, inflicted the fire shot injuries. I intended to cause . Injury to the deceased in order to save my wife from criminal assault for the purpose of Zina-bil-Jabr by the deceased. The deceased started running outside our house and fell down outside the main gate at some distance, and took his last breathe."
' He stated that he would lead defence but would not record his statement under section 340(2), Cr.P.C. Accordingly he examined Dr. Siraj-ud-Din Shad (D.W.1) who deposed that on 11-5-1994 at 11- 45 a.m. He had examined Mst. Murid Fatima daughter of Muhammad Azeem and found the following injuries on her person:---
(1) Stitched would 8 c.m. x 0.5 c.m. With swelling in an area of 10 c.m. Into 6 c.m. On the top of head.
(2) A stitched wound 6 c.m. x 1/2 c.m. With swelling in an area of 6 c.m. x 4 c.m. On the right side of head 8 c.m. Above the right ear.
(3) A contused swelling with abrasion over it in an area of 10 c.m. x 8 c.m on the back of right fore- arm, middle part.
(4) A tender swelling 7 c.m. x 4 c.m. On the back of left hand.
(5) A contused swelling with abrasion over it in an area of 8 c.m. x 6 c.m. On the back of left fore- arm in the middle.
' He produced the medico-legal certificate Exh.D.C. And sketch of injuries Exh.P.L./1. Thereafter, the accused closed his defence evidence vide his statement dated 24-9-1995.
6. After going through the evidence produced by the prosecution as well as the defence the learned trial Court convicted the accused/appellant under section 302(c), P.P.C. And sentenced to undergo R.I. For 5 years and fine of Rs,20,000 or in default thereof to undergo R.I. For one year.
Benefit of section 382-B, Cr.P.C. Was, however, extended. The accused/ appellant felt aggrieved and filed the instant appeal.
7. Alongwith this appeal. Of Criminal Revision No,498 of 1995 has also been filed by the complainant Naseer Ahmad for the enhancement of sentence awarded to the appellant. The said criminal revision has also been admitted vide order dated 7-5-1997.
8. As the instant appeal and Criminal Revision No,498 of 1995 arise out of the same judgment so these are being disposed of by this single judgment.
9. Arguments have been heard and record perused.
10. Stand of the learned counsel for the appellant is that the trial Court has not believed the presence of the complainant (P.W.6) as well as the eye-witness (P.W.7) at the alleged time of occurrence. As such it was incumbent upon the trial Court to accept the version of the accused/appellant in toto, that if the statement of the accused/appellant is accepted in toto then he has not committed any offence as he committed the murder of the deceased as a result of sudden and grave provocation seeing the deceased in an objectionable position with his wife Mst.
Murid Fatima as well as in the exercise of right of defence of person of his wife, who was under the clutches of the deceased, that there are contradictions between the statements of the complainant (P.W.6) and the alleged eye-witness (P.W.7) as such their statements have rightly been disbelieved by the trial Court, that the accused/appellant has not only explained the injuries on the person of the deceased but also on the person of victim i,e, his wife Mst. Murid Fatima, that his contention regarding injuries on the person of Mst. Murid Fatima stands corroborated even from the statement of D.W.1 Dr. Siraj-ud-Din, that if his submissions do not find favour with this Court, then the sentence imposed upon be reduced, as under such circumstances sentence imposed ranges from 3 to 5 years, that in any case the sentence imposed upon the appellant does not require any modification and enhancement as suggested by the learned counsel for the complainant in Criminal Revision No,498 of 1995.
11. Conversely the stand of the learned counsel for the complainant is that pleas of grave and sudden provocation and of defence of the person of his wife raised by the accused could be pressed into service as requisite evidence as per Islamic injunctions is not available on record.
While explaining his contention he submitted that unless, and until it had been proved by the accused/appellant that his wife had actually been subjected to Zina-bil-Jabr by the deceased and his wife was under the imminent danger to her life, he cannot be allowed to raise the aforementioned pleas. The case of the accused/appellant squarely falls within the ambit of section 302(a), P.P.C. And he (appellant) deserves the normal punishment of death. As such criminal revision be accepted and the appellant be awarded normal punishment of death.
12. We have given our anxious consideration to the contentions raised by the learned counsel for the parties. According to the prosecution own version contained in F.I.R. Exh.P.F. Lodged at the instance of complainant Naseer Ahmad (P.W.6) the motive behind this occurrence is that the accused/appellant suspected the deceased for having illicit relations with his wife Mst. Murid Fatima. It is the stand of the appellant that it was under the impulse of grave and sudden provocation that he (accused/appellant) caused the murder of the deceased when he (accused/appellant) saw the deceased in an objectionable condition with his wife gagging her mouth and putting her Shalwar off for committing Zina with her. The presence of the complainant (P.W.6) as well as of the eye-witness Talib Hussain (P.W.7) has not been believed by the trial Court on account of discrepancies in their statements which have been highlighted by the trial Court while discussing said evidence. Under these circumstances, the trial Court has rightly relied upon the statement of accused/appellant recorded under section 342, Cr.P.C. The accused/ appellant has not only explained the injuries on the person of the deceased but has also explained the injuries suffered by the victim i,e, his wife Mst. Murid Fatima. He has stated that while the deceased was trying to commit Zina with his wife, she had resisted and was caused injuries with Sota by the deceased. He further stated that his wife snatched said Sota and inflicted injuries on the person of deceased which also stand corroborated from medical evidence. The injuries on the person of Mst.
Murid Fatima stand corroborated from the statement of D.W. 1 who examined her on 11-5-1994 and found five injuries on her person. Thus, the trial Court has rightly discarded the evidence of P.W.6 and P.W.7 and has relied upon the defence version as asserted in his statement recorded under section 342, Cr.P.C.
13. Since the accused caused the murder of the deceased under grave and sudden provocation so the case squarely falls under clause (c) of section 302, P.P.C. And has rightly been awarded punishment by the trial Court vide judgment under appeal. Reliance is also placed on Ali Muhammad and others v. The State PLD 1996 SC 274, Saeed Ahmad v. The State 1996 PCr.LJ 1016 and Muhammad Ashfaq alias Barq v. The State 1998 PCr.LJ 1110. Resultantly we do not find any force in the instant appeal and dismiss the same.
14. For the reasons given above, we also do not find any force in the criminal revision which is also dismissed.
15. Since the appellant has been granted bail vide order, dated 10-7-1996. So the office is directed to initiate necessary proceedings for apprehending him and lodging him in jail to serve the sentence imposed upon him.