1. ' Muhammad Naeem alias Babu has challenged judgment, dated 29-8-2000 passed by learned Additional Sessions Judge, Pasrur whereby he was convicted under section 302(c), P.P.C. For commission of murder of Mst. Gulzar Bibi and sentenced to 25 years' R.I. And ordered to pay Rs,1 lac to the legal heirs of the deceased as compensation. Benefit of section 382-B, Cr.P.C. Was, however, extended in his favour. Through the same judgment Mst. Batool Bibi was acquitted of the charge.
2. ' Briefly the facts of the case are that Allah Rakha P.W.1 got recorded F.I.R. No,645 (Exh.P.A.) at Police Station Pasrur on 21-11-1998 with the allegation that he was married with Mst. Gulzar Bibi, daughter of Muhammad Latif and on the day of occurrence at 6 p.m., he alongwith his wife, daughter Mst.
3. Robina P.W.2 and Maryam Bibi, wife of Allah Ditta P.W.3 were present in his house, when his mother Batool Bibi came to his house and had a quarrel with Mst. Gulzar Bibi and he forbade them.
4. Meanwhile Naeem alias Babu, appellant armed with Chhuri alongwith an unknown person came to his house and Naeem caused Chhuri blows to his wife hitting on her chest and abdomen while the unknown person kept on standing at the door to keep guard. Mst. Gulzar Bibi after receiving the injuries fell on the ground and succumbed to the injuries at the spot. The occurrence was also witnessed by Robina Bibi P.W.2 and Maryam Bibi P.W.3. The accused fled away from the spot.
5. ' The investigation was conducted by Tariq Mehmood, S.-I. P.W.15, who arrived at the place of occurrence and dispatched the dead body for post-mortem examination which was conducted by Dr. Neelam Tariq, who issued post-mortem report No,135 of 1998 and had proceeded abroad and the said medical report was proved by Yousaf Masih, Dispenser A.I.M. P.W.13 and according to the postmortem report, following injuries were found on the body of Mat. Gulzar Bibi:--
(1) An incised wound about 4 x 1 c.m. Vertically oblique on front of shoulder just below.
(2) Incised wound 3.5 c.m. x 1 c.m. Vertically oblique on its outer margin of right breast.
(3) An incised wound 3 x 1 c.m. Transverg in position on inner upper, part of left breast, 5 c.m. From stanum.
(4) An incised wound 3 x 1 c.m. Vertifically oblique on upper inner part of left breast 9 c.m from midline.
(5) An incised wound about 2 x 1 c.m. Vertically oblique on lower inner margin of left breast.
(6) An incised wound 5 x 1 c.m. Transversely oblique on front of chest costel margin just to the right of midline.And 3 c.m. Below.
(7) An incised wound 2 x 1 c.m. Vertically oblique on front of chest 4 c.m. From midline 5 c.m. Below the margin of left breast.
(8) An incised wound 3 x 1 c.m. Transverse in position in front of abdomen outside below costel margin, 5 c.m. To the left of umbilicus.
(9) An incised wound 5 x 1 c.m. Transversely oblique on left knee. The injury is bone deep.
6. ' After completion of the investigation, challan was submitted. Mst. Batool Bibi was found innocent and was placed in Column No,2 of the challan and was summoned to face the trial by the trial Court. The trial Court framed the charge which was denied by the accused and they claimed trial.
7. ' During the trial the prosecution examined as many as 14 witnesses to prove the guilt of the accused. Allah Rakha complainant appeared as P.W.1, he although supported the version of F.I.R.
8. But subsequently he moved application under section 309, P.P.C. Stating that he has compromised the offence with the appellant and has forgiven him by waiving the right of Qisas and Diyat. Robina Kausar daughter of the deceased and complainant was examined as P.W.2 while Mst. Maryam as P.W.3 who is sister of the deceased. They supported the version as eyewitnesses of the occurrence and implicated the appellant for causing injuries to the deceased in their presence.
9. ' Amanat Ali, A.S.-I. P.W.11 had recorded the formal F.I.R. Ijaz Ahmad P.C. Had attested the recovery memo. Of Chhuri got recovered by Muhammad Naeem, appellant was examined as P.W.10. The remaining witnesses are of formal in nature and need not to be discussed.
10. ' The trial culminated into conviction of the appellant as mentioned above, who has challenged his conviction and sentence through the instant appeal.
11. ' Learned counsel for the appellant at the very outset has argued that as Allah Rakha was husband of the deceased who had compromised the offence with the appellant and had forgiven him by waiving right of Qisas and Diyat, therefore, the case of the appellant falls under section 311, P.P.C.
12. And conviction under section 302(c), P.P.C. Recorded by the trial Judge is not legal and he would not challenge the conviction if the same is altered to section 311, P.P.C. And the sentence be adequately reduced.
13. ' Learned counsel for the State concedes to the contentions raised by the learned counsel for appellant.
14. ' After hearing the learned counsel for the parties I have perused the record. Although Allah Rakha, complainant P.W.1 has compromised with the accused/appellant but the prosecution case has been fully proved by Robina Kausar P.W.2 and Mst. Maryam Bibi P.W.3 against the appellant. They were inmates of the house and were natural witnesses and had no animosity to falsely implicate the appellant. Therefore, I feel that learned counsel for the appellant is justified not to challenge the conviction recorded against the appellant. However, as the complainant Allah Rakha who was husband of Mst. Gulzar Bibi deceased has entered into compromise and has forgiven him by waiving right of Qisas and Diyat, therefore, the case of the appellant falls under section 311, P.P.C.
15. The appellant who is real brother of the complainant has murdered an innocent lady in a brutal manner over a petty matter of quarrel with his mother, therefore, while I alter his conviction from section 302(c), P.P.C. To section 311, P.P.C. And sentence him to 14 years' R.I. He is further ordered to pay compensation of Rs,3 lacs to the legal heirs of the deceased and the same be deposited with the trial Court and if that is realized, will be distributed among the legal heirs of the deceased Gulzar Bibi according to their legal shares except Allah Rakha, her husband who has waived his right of Diyat by entering into compromise with the accused/appellant. The shares of minors will be deposited in some profitable scheme in their names to be paid to them on attaining their majority.
16. Till the payment of Diyat, the appellant will be kept in jail as under simple imprisonment after serving out his substantial sentence. However, benefit of section 382-B, Cr.P.C. Will be available to him. The appeal is dismissed with the above modification.