1. Appellant Jahangir son of Ghulam Hussain has challenged judgment dated 10.11.2001 passed by learned Addl. Sessions Judge, Sargodha whereby he was convicted under Section 302(b) PPC for murder of his wife Mst. Akbari Bibi and sentenced to imprisonment for life and was also ordered to pay compensation of Rs, 30,000/- to the legal heirs of the deceased failing which he had to undergo two years SI. Benefit of Section 382-B Cr.P.C. was, however, extended in his favour.
2. The brief facts of the case are that Muhammad Saeed, PW8 got FIR No, 151 dated 13.8.2000 (Ex. PH) registered at P.S. City Sargodha alleging that on the day of occurrence at 12 noon the complainant alongwith Muhammad Khalil and Fayyaz, PW9 were watching TV in the next room when the appellant armed with churri launched attack on his sister Mst. Akbari Bibi who was married with the appellant three months before and inflicted churri blows on her different parts of the body. The complainant and PWs tried to intervene, on which, they were extended threats so they did not dare to rescue their sister. The accused fled away from the spot after causing the injuries. Mst. Akbari died at the spot. The alleged motive for the occurrence was that Mst.Akbari Bibi deceased was married to the appellant three months back and the appellant intended to keep her with his grand maternal mother while Mst. Akbari insisted to stay with her mother. On which she was done to death. Akbar Ali, SI PW10 after registration of the case arrived at the spot and took the dead body into possession and prepared the injury statement Ex. PB and inquest report Ex. PC and dispatched the dead body for post mortem examination. He also secured the blood stained earth through memo Ex. PE and the blood stained through memo Ex. PF. After post mortem examination last worn clothes of the deceased were produced before the I.O. which were taken into possession by him through memo Ex. PD. On 22.8.2000 he arrested Jahangir appellant/accused who while in police custody on 25.8.2000 led to the recovery of blood stained churri which was taken into possession through memo Ex. PJ. After completion of the investigation he got the accused challaned through Muhammad Yar, Inspector/SHO.
3. The trial Court framed the charge which was denied by the accused and he claimed trial.
4. During the trial the prosecution examined as many as 10 witnesses to prove the guilt of the accused.
5. The medical evidence was furnished by Dr. Arshad Rauf, PW1 who conducted the post-mortem on the dead body of Mst. Akbari Bibi and found the following injuries on her body :--
1. An incised wound at the middle level of front of the neck deep to the vertebral muscles deviding on its way skin muscles, langynotracheal junction, oesophagus and major vessels extending from a point 9 cm below left ear to a point 7 cm from a right ear.
2. Three incised wounds each of size 1 x 2.5 cm muscle deep present adjacent to left of Injury No, 1.
3. An incised wound 6 x 2 cm bone deep in front of chest 3 cm above and medial to the right nipple.
4. Multiple small size incised wound bone deep in front of medical part of right upper arm in area 12 x 8 cm.
6. 5 An incised Wound 6 x 1 cm on the last aspect of right side of the chest 9 cm lateral to the right nipple.
7. 6 An incised wound 3 x 1 cm bone deep 2 cm behind anteriot axillary line 4 cm below the apex on the right side.
7. An incised wound 2.5 x .25 cm muscle deep on the upper part of the internal surface of the right forearm.
8. An incised wound 1 x .5 On on the palmer surface of the middle phalanx of the right little finger with bone underneath divided.
9. An incised wound 1 x .5 cm on the palmer surface of basle phalanyx of the right ring finger with bone underneath divided.
8. 10.An incised wound 1 x .5 cm- on the painter surface of the basle phalynx of the right middle finger bone exposed.
9. 11.An incised wound 6 x .25 cm on the right side of the chin. 1.5 cm below the lip skin deep.
10. 12.An incised wound 3 x .25 cm skin deep on the outside right end of the mouth.
11. 13.An incised wound 8 cm x 4 cm ,bone deep on the outer aspect of lower part of left arm.
12. 14.An incised wound 6 x 1 cm muscle deep on the lower part of medial side of left forearm.
13. 15.An incised wound 5 x 2 cm on the lateral part of upper 1/3rd of left leg.
14. 16.An incised wound 6 x 1 cm muscle deep on the lower part of medial side of left thigh.
15. 17.An abrasion 4 x .25 cm on the outer aspect of lower part of right leg.
16. The ocular account was furnished by Muhammad Saeed, PW8 who was complainant of the case.
17. He supported the version of the FIR. He also narrated the motive for the occurrence. He was real brother of the deceased. Muhammad Fayyaz, PW9 who was sister's husband of the complainant also supported the prosecution case as an eyewitness of the occurrence. Shakir Hussain, PW 2 escorted the bead body of the deceased Akbari for post mortem examination and produced her last worn clothes before the I.O. which were taken into possession through memo Ex. PD and he attested this memo. Iftikhar Hussain, Moharrir/C PW 3 kept the sealed parcels of blood stained earth and blood stained churri in safe custody of police Malkhana and handed over it to Ghazanfar Ali, . FC for its transmission to the office of Chemical Examiner. Muhammad Ijaz, PW 5 being relative of the complainant identified the dead body at the time of post mortem examination. Muhammad Aslam, PW6 attested the recovery memos Ex. PE and Ex. PF whereby blood stained earth and blood stained cot were taken into possession by the I.O. Muhammad Saleem Draftsman, PW7 prepared the site-plan of the place of occurrence.
18. After closing of the prosecution evidence statement of the accused/appellant was recorded under Section 342 Cr.P.C. He denied the allegations and claimed his innocence. In reply to Question No, 8 as to why the case against him and the PWs deposed against him, he stated as under: The facts of the case are that I contracted love marriage with Mst.Akbari (3/4) months ago to the occurrence. I came back to my house some time. Akbari was not present there. When ever I inquired about her whereabouts from her mother, then she normally told that she had gone to bazaar but I could not locate her in the bazaar that is why I developed suspicion about the character in my mind on the said date I came to my room and saw my wife with Akbar Zargar playing foul. On seeing me Akbar Zargar ran away and when I tried to catch hold of Akbar Zargar then my wife Akbri caught hold of me and Akbar Zargar succeeded in running away. I then picked/snatched up a churri inside the room and inflicted injuries on her person due to sudden provocation and Ghairat. I myself appeared before the police and narrated the whole occurrence.
19. The witnesses were not present at the time of occurrence and they falsely deposed against me due to relation with complainant."
20. The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
21. Learned counsel for the appellant has argued that it was an unwitnessed occurrence and complainant Muhammad Saeed, PW8 and Fayyaz, PW9 are closely related interse to the deceased and no independent witness has been examined to support the prosecution story, therefore, the defence plea is to be accepted correct and toto and the case against the appellant falls under Section 302(c) PPC instead of 302(b) PPC, so he has prayed for reduction of the sentence.
22. According to the learned counsel the occurrence took place under grave and sudden provocation and the matter was reported to the police by the accused himself but his statement was not recorded by the police and he was implicated falsely in the case with the connivance of the complainant party. It is further argued that in the recovery proceedings no independent witness from the locality was associated, therefore, recovery cannot be taken as a corroborative piece of evidence due to violative of Section 103 Cr.P.C. In support of his contentions learned counsel has placed reliance on 2000 P.Cr.LJ 175 Nazir and another us. The State, 1998 PCr.LJ 1316 Haq Nawaz vs. The State, NLR 1987 Criminal 526 Muhammad Sharif vs. The State, 1976 P.Cr.LJ 167 Ghulam Hussain vs. The State, PLJ 1995 SC 624 Khalid Javed vs. Ansar Khan and another, NLR 1991 Criminal 415 Murad Shah, etc. vs. The State and PLJ 1996 SC 831 Ali Muhammad s/o Noor Muhammad vs. Ali Muhammad s/o Wali Muhammad and another.
23. Learned counsel for the State has opposed the appeal and support the impugned judgment.
24. Heard. Record perused.
25. It is a case of single accused. The appellant was nominated in promptly recorded FIR. Muhammad Saeed, PW8 is real brother of Mst. Akbari Bibi deceased while Fayyaz, PW9 is his other sister's husband, both are inmates and they were natural witnesses. They have fully explained their presence at the spot. They are truthful witnesses and no material discrepancies have been pointed out by learned counsel for the appellant to disbelieve their testimo;iy. The occurrence, time and place of occurrence have not been denied. The plea taken by the accused/appellant that the committed the murder under grave and sudden provision is afterthought as while cross- examination the appellant has put suggestion to the complainant that Mst. Akbari had attacked the accused with churri which was snatched by him and he in retaliation caused injuries to the deceased which was not his first version before the I.O. He also did not take plea that he saw the deceased in compromising position with Akbar Zargar and no such suggestion was put to the PWs.
26. He also not made any complaint to the higher police authorities against the I.O. if he was not satisfied with his investigation. It is settled law that if the accused takes the plea of grave and sudden provocation, the burden is on him to prove the plea. to discharge this burden the accused need not to lead any evidence but he has to show that there is reasonable possibility of his version being true. The Hon'ble Supreme Court in case reported as Khalid Javed vs. Ahsar Khan (1995 SCM R 1846) has held as under: "Where an accused person admits that he has killed another the burden of proving that he had committed no offence under the law or that his case was one of diminished liability shifts to him.
27. His burden is indeed a lighter one for he has only to sow that there is a reasonable probability of his version being true; to discharge his burden he need not lead any evidence of his own for he can rely entirely upon circumstances appearing from the evidence of the prosecution itself."
28. In the instant case the plea of the accused/appellant was that he saw his wife Mst. Akbari in compromising position with Akbar Zargar but nothing has been said in the evidence which may lend support to his assertion.
29. The ocular account has been fully corroborated by medical evidence and recovery of blood stained churri at his instance, therefore, I find that the prosecution case has been established beyond shadow of doubt. The learned trial Court has already taken a lenient view by awarding lesser punishment of imprisonment for life, therefore, the conviction and sentence of the appellant is maintained. However, in default of payment of compensation of Rs, 30,000/- the sentence is reduced to six months SI. Benefit of Section 382- Cr.P.C. extended by the trial Court will be available to him. The appeal is dismissed with the above modification.