MUKHTAR AHMAD Versus THE STATE
This judgment will dispose of Criminal Appeal No .164/J of 1999 filed by Mukhtar Ahmad appellant through Jail, who was convicted and sentenced by learned Sessions Judge, Rahimyar khan for the murder of Mst. Shamim Bibi under section 308, P.P.C., to undergo fourteen years R. I. vide his judgment, dated 29‑6‑1998.
2. Occurrence in this case took place at 12‑30 mid night on 22‑8‑1996 which was reported by Shabbir Ahmad, complainant at 2‑30 on the same night while the formal F.I.R., Exh.P.J./1 was recorded by Muhammad Aslam A.S.‑I. at 2‑15 a.m.
3. Brief facts of the case as disclosed in complaint Exh.P.J. are that sister of the complainant Shabbir Ahmad was married with Mukhtar Ahmad 18/ 19 years ago and out of the wedlock nine children were born, who are alive. A month prior to the occurrence, a dispute arose between Mst. Shamim Bibi sister of the complainant and Mukhtar Ahmad present appellant due to non- providing of domestic expenses. The matter was patched up later on. Three days prior to the occurrence, the present appellant took‑off his shirt in which Rs. 1,000 was available but the same were taken out by some child. Mukhtar Ahmad insisted that the amount had been taken out by Mst. Shamim Bibi, who refuted the allegation. This became a cause of the dispute between the spouses for which Mukhtar Ahmad had a grudge. On the day of occurrence at 12‑30 mid night on hearing the noise of Mst. Shamim Bibi, Bashir Ahmad father of the complainant went to the house of her daughter, and saw in the light of bulb that Mukhtar Ahmad, brother‑in‑law of the complainant was causing injuries with hatchet to Mst. Shamim Bibi. On seeing the complainant party, Mukhtar Ahmad by extending the threat of hatchet ran away. On close examination, blood was coming from different parts of body of Mst. Shamim Bibi. She was then taken to hospital where she succumbed to the injuries.
4. After registration of formal F.I.R. Exh.P.J./l, Muhammad Aslam A.S.I., examined as P.W.11 on receipt of information rushed to Hospital and prepared the injury statement of Mst. Shamim Bibi Lxh.P.C.;1 and got her medically examined. On the sank day, he inspected the spot, prepared the rough site plan Exh.P.K. and took into possession the blood‑stained earth from the venue where Mst. Shamim Bibi was injured and took the same into possession vide memo. Exh.P.E. Mst. Shamim Bibi was got medically examined on 23‑8‑1996 when she was in an injured condition and on 24‑8‑1996 post‑mortem examination was conducted on her dead body. Mukhtar Ahmad, appeal an; v: as arrested on 9‑9‑1996, who while in police Custody on 11‑9‑1996 led to the recovery of blood‑stained hatchet P.6 from the residential house which was taken into possession vide memo Exh.P.J.
5. Prosecution in order to prove its case produced 11 witnesses in all including Shabbir Ahmad P.W.9 and Taj Muhammad P.W.10 as eye‑witnesses, while the doctor who conducted the post‑mortem examination on the dead body of Mst. Shamim Bibi was examined as P.W.1. Thereafter, the statement of the appellant was recorded under section 342, Cr.P.C., in which he pleaded innocence and claimed false implication. Reports of the Chemical Examiner are Exh.P.L. and Exh.P.M. while that of the Serologist are Exh.P. L./ 1 and Exh. P. M./ 1.
6. Learned counsel for the appellant appointed on state expenses has read before me the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C., and submits that both the eye witnesses produced by the prosecution namely Shabbir Ahmad and Taj Muhammad P.Ws.9 and 10 are real brothers of the deceased had they been present at the spot, they could have apprehended the appellant, who was alone that the occurrence took place at mid night on 21/22‑8‑1996 and the presence of the eye witnesses at such an odd time is doubtful and both the eye‑witnesses, had not stated any reason as to how and why they were present in the house of their sister. Further submits that recovery of the hatchet has been planted upon the appellant and even otherwise the witnesses produced by the prosecution with regard to the recovery are also related to the deceased. Learned counsel lastly, submits that no case is made out against the appellant.
7. On the other hand, learned A.A.‑G. submits that the appellant is named in the promptly lodged F.I.R., he is single accused so there is no question of substitution and that although both the eye‑witnesses are real brothers of the deceased but they had no enmity against the appellant.
8. I have heard the learned counsel for the parties at a great length and have also gone through the prosecution evidence with their assistance. The motive set up in this case by the prosecution was that one month prior to the occurrence, there was an altercation between the deceased and the appellant for not providing the house expenses to the deceased by the appellant but the matter was patched up and that three days prior to the present occurrence, appellant had put off his shirt and hanged the same in the house but Rs.1,000 was found to be missing about which the appellant had shown his suspicion of having taken the money by the deceased and this matter too was patched up but with regard to the first quarrel the father of the deceased who patched up the matter namely Bashir Ahmad was never produced by the prosecution, and as to second quarrel no independent witness was produced by the prosecution, so in my view, in the instant prosecution has failed to prove the motive against the appellant.
Presence of both the eye‑witnesses at the spot has not been shown in the site plan. There is no explanation as to in what connection both the eye‑witnesses were present in 'the house of the deceased. Admittedly, deceased had nine children but none of them had been cited by the prosecution as eye‑witness or the prosecution witness. Although, appellant had taken the plea of substitution but that is not believable. In fact, in my view, both, the prosecution and the defence did not tell truth and it seems that the deceased had acted in such a manner that it provoked the appellant under grave and sudden provocation and in the heat the passion to commit the murder of the deceased. During the course of investigation, appellant took the defence that the deceased was lady of a bad character. The way, in which the deceased was done to death, possibility of her being a women of a bad character cannot be ruled out. Case of the appellant is, thus, covered under section 302(c), P.P.C., and had the old law been prevalent then the case of the appellant would have definitely fell in one of the exceptions of section 300, P.P.C., and the appellant would have been sentenced under section 304‑II, P.P.C.
9. Taking into consideration the over all facts and circumstances of the case, the evidence brought on record and the submissions made by learned counsel for the parties, I am of the considered opinion, that at the most the case, if any, made out against the appellant, that is under section 302(c), P.P.C., and not under section 308, P.P.C., as held by the learned Trial Court. Appellant was arrested in this case on 9‑9‑1996 and since then he is behind the bars. I think, the period of sentence which the appellant has already undergone would be sufficient to meet the ends of justice. Order accordingly. Appellant is in jail. He shall be released forthwith, if not required in any other case. Appeal stands disposed of with the above said modification in sentence.
N.H.Q./M‑49/L
Order accordingly