GHULAM SHABBIR Versus THE STATE

IFTIKHAR HUSSAIN CHAUDHRY, C.J.--- Criminal case F.I.R. No.138 dated 15-5-1996 under section 302, P.P.C. was registered at Police Station City Muridke, District Sheikhupura at 5-00 p.m. on 15-5-1996 on the report of Sabir Hussain. Narrative contained in Exh.PB/1 is in terms that Sabir Hussain alongwith his brother Nazar Hussain went to visit Abdul Ghafoor, who was related to them, on 14-5-1996. According to the complainant, Mst. Kishwar Bibi, who was daughter of Abdul Ghafoor, was suspected by her in laws as having illicit relations with Nazar Hussain. Mst. Kishwar Bibi went to a Government tube-well for washing clothes at 11-30 a.m. (on 15-5-1996) Nazar Hussain went to see her. The complainant alongwith Abdul Ghafoor claimed to have gone to the same tubewell by chance, when Ghulam Shabbir son of Ghulam Ali, caste Barber, co-villager, who was brother of husband of Mst. Kishwar Bibi, came there carrying a hatchet and shouted that Nazar Hussain would be taught a lesson for meeting Mst. Kishwar and thereafter, inflicted hatchet blow to the head of Nazar Hussain, who fell down. Nazar Hussain was removed in injured condition to Mayo Hospital, Lahore, who died there.

2. Muhammad Akram, S.-I., P.W.8 conducted investigation after registration of the case, found Ghulam Shabbir as guilty and sent him to Court for facing trial.

3. Charge against Ghulam Shabbir for offence under section 302, P.P.C. was framed on 6-10-1997. He did not plead guilty and claimed trial.

4. The prosecution in order to establish its case against the accused, examined 10 witnesses. Muhammad Yaqoob, Constable, P.W.1, Abdul Rahim, Draftsman, P.W.2, Mst. Kishwar Bibi, wife of Ghulam Abbas, P.W.3, Sabir Hussain, P.W.4, Abdul Ghafoor, P.W.5, Basharat Ali, Constable, P.W.6, Iftikhar Ahmed, Constable, P.W.7, Muhammad Akram Sub-Inspector, P.W.8, Muhammad Younas, Constable, P.W.9, testified at the trial as prosecution witnesses. Dr. Javed Iqbal, Medical Superintendent, Tehsil Headquarters Hospital had conducted post-mortem examination of dead body of Nazar Hussain on 16-5-1996. He testified as P.W.10. The witness had noted five incised wounds on head of the deceased. The witness tendered Exh. PH, copy of the Post-mortem Examination Report.

5. Ghulam Shabbir in his statement under section 342, Cr.P.C stated as under:

"Q.No.6. Why this case against you and why the P.Ws. deposed against you?

Ans. All the P.Ws. are inter se related and due to suspicion of illicit relations with Mst. Kishwar Bibi, I have been falsely implicated in this case. The complainant as well as the P.Ws. were not present at the place of occurrence on the day and time of occurrence. I saw Nazar Hussain deceased and Mst. Kishwar Bibi in compromising position and I lost my self-control and due to grave and sudden provocation, I attacked the deceased."

6. The trial Court believed the prosecution case, disbelieved the defence version and proceeded to convict Ghulam Shabbir for offence under section 302(b), P.P.C. and awarded sentence of death to him. The convict was also directed to pay compensation amounting to Rs.50,000 to legal heirs of deceased under section 544-A, Cr.P.C.

7. Judgment dated 21-10-1998 passed by Additional Sessions Judge, Ferozewala has been appealed against. The trial Court has also referred the matter under section '374, Cr.P.C. for confirmation of sentence of death awarded to Ghulam Shabbir.

8. Appeal submitted through jail has been heard with the assistance of learned defence counsel as well as learned Additional Advocate-General and counsel for the State.

9. Learned defence counsel argued that deceased went to house of Abdul Ghafoor on 14-5-1996 and had stayed for the night in the village and had enough occasion to have seen Mst. Kishwar Bibi and really had no occasion to have gone to meet Mst. Kishwar Bibi next morning when she was all alone at a practically deserted place. It was submitted that site plan showed that tubewell was placed at an isolated place and visit of Nazar Hussain was not for innocent purposes and even in the F.I.R the complainant had acknowledged that Nazar Hussain was suspected of carrying on with Mst. Kishwar Bibi and that occurrence had taken place in the manner as claimed by the appellant. It was submitted that neither the complainant nor Abdul Ghafoor were natural witnesses of the occurrence and their claim was that they had gone to the tubewell by chance and, as a matter of fact, incident was not seen by them. It was submitted that only the statement of accused was left in the field and that had to be believed in totality. Learned defence counsel submitted that there was a plethora of case-law, which was to the effect that in such a situation, lesser sentence should be given to the accused, as he actually acted under grave and sudden provocation. Learned Additional Advocate-General and learned counsel for the State, on the other hand, submitted that there was no enmity between the parties and there was no occasion for the complainant party to have made an incorrect story. It was submitted that narrative contained in the F.I.R was correct version of the incident and complainant had not tried to embellish the story.

10. We have given anxious consideration to the facts and circumstances of the case. Admittedly, the parties are related inter se. There was no background of enmity between the parties. Mst. Kishwar Bibi was married to Ghulam Abbas, brother of Ghulam Shabbir-convict-appellant. Ghulam Abbas was employed abroad during the days, when occurrence had taken place. The complainant claimed that he alongwith his brother Nazar Hussain (deceased) went to see Abdul Ghafoor, who was related to them and stayed for the night there and next day at 11-30 a.m., Nazar Hussain went to see Kishwar Bibi, who had gone to wash clothes at a Government tubewell, which appears to be located at an isolated place. Nazar Hussain had gone to the village a day prior to 'the incident and had enough opportunity to have seen Mst. Kishwar Bibi. There really was no occasion for him to have gone to an isolated place to meet with Mst. Kishwar Bibi. Even in the First Information Report, the complainant acknowledged that in-laws of Mst. Kishwar Bibi suspected that she was carrying on with Nazar Hussain. In that background, visit of Nazar Hussain to tubewell, in order to see Mst. Kishwar Bibi, was not for bona fide purposes. The evidence on record indicates that house of Ghulam Shabbir was located not far away from the tubewell. It appears that he came out of his house and per chance saw Nazar Hussain and Mst. Kishwar Bibi together. Husband of Mst. Kishwar Bibi was employed abroad and meeting of Mst. Kishwar Bibi with Nazar Hussain at that place was for purposes, which were quite obvious. After having given our anxious consideration to all the aspects of the case, we are of the view that defence version is more plausible and merits to be accepted. The complainant and Abdul Ghafoor had no business at tubewell. There was no occasion for them to have visited that place. They claimed to have gone there by chance. They, by all contents and treasures were chance witnesses and their testimony does not in-spite confidence and had to be discarded for that reason.

11. Nazar Hussain-deceased and Mst. Kishwar Bibi had met each other at an isolated place. It is claim of Ghulam Shabbir that they were found by him in compromising position and due to grave and sudden provocation caused to him by the sight of his sister-in-law, being with another person, he was incensed and inflicted injuries to head of Nazar Hussain, appears to be correct version of the incident. In the given circumstances, appellant could not have been convicted under section 302(b), P.P.C. Therefore, conviction of Ghulam Shabbir is modified from one under section 302(b), P.P.C. to 302(c), P.P.C. He is awarded 10 years' rigorous imprisonment with benefit of provisions of section 382-B, Cr.P.C. In cases where accused acts under grave and sudden provocation when deceased is found to be indulging in immoral activities, such as sexual intercourse, normally compensation is not granted to legal heirs of the deceased. Therefore, we are not inclined to award compensation to the legal heirs of the deceased in this case. The appeal is dismissed with above modification in conviction and sentence awarded to Ghulam Shabbir appellant.

12. Murder Reference is answered in the negative.

M.B.A./G-267/L Order accordingly.