MUHAMMAD JEHANGIR Versus THE STATE

1. BASHIR A. MUJAHID, J.‑‑ Muhammad Jehangir son of Muhammad Bashir has challenged judgment dated 13‑5‑1997 passed by learned Additional Sessions Judge, Sargodha whereby he was convicted under section 302(b), P.P.C. for commission of murder of Mst. Rauf Bibi and sentenced to death. He was further ordered to pay compensation of Rs.20,000 to the legal heirs of the deceased, failing which he had to undergo six months' R.I.

2. Briefly the facts of the prosecution case are that F.I.R. No.168 of 1994 (Exh.P.F) was registered at the instance of Altaf Hussain, P.W.6 at Police Station Sahiwal, District Sargodha at 2‑30 p.m. On 31‑7‑1994 about the occurrence which took place at 2‑00 p.m. in the house of the appellant at a distance of two furlongs from the police station, wherein it was stated that complainant was resident of Chak No.111/SB. His sister Mst. Rauf Bibi was married to Muhammad Jehangir (appellant) about 21/2 years before and there was no issue from the wedlock. The appellant was a Police Constable posted at Police Station Sahiwal and was residing in Mohallah Chak Malikwala with his wife Mst. Rauf Bibi (deceased). Three days before the occurrence, Mst. Mehfooz Bibi, younger sister of complainant came to Sahiwal to see Mst. Rauf Bibi, her sister, who informed her that Muhammad Jehangir, appellant intends to contract second marriage and compels the deceased to hand over the ornaments. Mst. Mehfooz Bibi narrated this fact to the complainant and the complainant alongwith his brother Ijaz Hussain and Mst. Mehfooz Bibi came to Sahiwal to find about the true facts and real controversy between the spouses. The accused was not present in his house when they arrived his house. The complainant and his brother Ijaz Hussain were relaxing in `Baithak' while Mst. Mehfooz Bibi and Mst. Rauf. Bibi were talking to each other in another room. When at 2‑00 p.m. the appellant arrived home and on seeing the complainant and the prosecution witnesses got infuriated and took out a pistol from the adjoining room and tired at Mst. Rauf Bibi hitting on her upper portion of left temple. The complainant and Ijaz Hussain immediately came out in the courtyard from `Baithak'. The appellant while extending the threats for dire consequences fled away. Mst. Rauf Bibi succumbed to the injuries at the spot.

3. Raja Muhammad Latif, Inspector P.W.10 after registration of the F.I.R. arrived at the spot and took the dead body of Mst. Rauf Bibi into possession and prepared her, injury statement through memo. Exh.P.C and inquest report Exh.P.D and despatched the dead body to Civil Hospital, Shahpur for post‑mortem examination. He also took into possession blood‑stained earth from the spot through memo. Exh.P.G. He recorded the statements of the prosecution witnesses under section 161, Cr.P.C. On 1‑8‑1994, Muhammad Akram, FC P. W.5 produced the last worn‑clothes and ornaments of the deceased she was wearing at the time of post mortem examination which were taken into possession by the Investigating Officer through memo. Exh.P.E. On 3‑8‑1994, he arrested the appellant who produced his licensed pistol P.6 alongwith licence which were taken into possession through memo. Exh.P.H. On 4‑8‑1994, after completion of the investigation sent the accused in judicial lock‑up. He completed the investigation and submitted the challan.

4. The trial Court framed the charge which was denied by the accused and he claimed the trial.

5. During the trial, the prosecution examined as many as 10 witnesses to prove the guilt of the accused.

6. The medical evidence was furnished by Dr. Pervaiz Qayyum P.W.4 who on 1‑8‑1994 at 12‑30 p.m. conducted the post-mortem examination can the dead body of Mst. Rauf Bibi and found the following injuries on her body:‑‑

1. "There was wound of entry which was star shaped with four corner, fire arm wound measuring 8 x 3.5 c.m. On the temporal region, 2.5 c.m. above and behind the left eyebrow and 3 c.m. above thaw left ear. There was a half circular hold measuring 2.5 x 2 c.m. present in the centre of the wound can the temporal bone, Bunting, blackening were also present around the wound. Brain matter and blood were coming out from the bone.

2. There was a fire‑arm lacerated wound of exit measuring 6 x 2 c.m. present on the right side of scalp, 3 c.m. above and behind the right ear. Brain matter and blood were coming out from the wound.

7. In the opinion of the doctor the injuries were ante-mortem and caused by fire arm weapon and were sufficient to cause multiple fracture of the skull and torn the brain into pieces. The time between injury and death was immediately and between death and post‑mortem examination was 24 hours.

8. The ocular account was furnished by Altaf Hussain, P. W.6 who, was complainant of the case. He supported the version of the F.I.R. and motive for the occurrence. He stated that he alongwith Mst. Mehfooz Bibi P.W.7 and Ijaz Hussain had witnessed the occurrence. He also attested the recovery memo. Exh.P.G whereby blood‑stained earth was taken into possession by the Investigating Officer from the spot, Altaf Hussain was real brother of Mst. Mehfooz Bibi and Mat. Rauf Bibi. Mst Mehfooz Bibi P.W.7 supported the prosecution story as an eyewitness of the occurrence. She stated that on the day of occurrence she was present in the house of the accused/appellant in a room alongwith Mst. Rauf Bibi and in her presence the appellant fired a pistol shot at the deceased who died at the spot and the accused fled away from the place of occurrence after causing injury. Muhammad Saleem Draftsman P. W. 1 had prepared the site plan of the place of occurrence. Muhammad Hanif, NC P.W.2 had kept the sealed parcels of the incriminating articles in Police Maalkhana. Muhammad Mumtaz, PC P.W.3 had delivered the sealed parcel containing the blood‑stained earth to the office of Chemical Examiner. Muhammad Akram, FC P.W.5 had escorted the dead body of Mst. Rauf Bibi for post‑mortem examination, and produced the last worn‑clothes and ornaments of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.E. he had also attested the said recovery memo. Riaz Hussain, P.W.8 had identified the dead body of Mst. Rauf Bibi at the time of post‑mortem examination. Khuda Bakhsh P.W.9 had attested the recovery memo. Exh.P.H whereby pistol P.6 and the licence of the accused was taken into possession by the Investigating Officer.

9. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.J and that of Serologist Exh.P.K.

10. The statement of the accused under section 342, Cr.P.C. was recorded towards the end of trial, who denied the allegation, claimed his innocence and false involvement and in reply to Questions Nos.7 and 8 as to why the case against him and anything else he want to say, he replied as under:‑

11. "The P. Ws. are closely related to the deceased and they were annoyed with me when I demanded share of agricultural land of my wife Rauf Bibi. They belong to a place which is at a distance of 50/60 K.M from the spot and their presence at the time of occurrence is not plausible.

12. Rauf Bibi was a woman of easy virtue and she was killed due to `Ghairat' in my house"

13. The trial culminated into conviction of the appellant as mentioned above, who has challenged his conviction and sentence through Criminal Appeal No. 261 of 1997.

14. The complainant has filed Criminal Revision No.316 of 1997 for enhancement of the compensation while the trial Court has sent up Murder Reference No.102 of 1997 for confirmation of death sentence of the accused/appellant under section 374, Cr.P.C. All the matters are outcome of the same judgment, therefore, are being decided by this single judgment.

15. Learned counsel for the appellant has argued that the motive alleged by the prosecution witnesses has not been proved; that both the eye‑witnesses Altaf Hussain, P. W.6 and Mst. Mehfooz Bibi, P. W.7 are resident of Chak No.101/SB which is at a distance of more than 50 K. M. and if the motive is disbelieved, their arrival and presence in the house of the appellant is not correct; that Altaf Hussain complainant P.W.6 and Mst. Mehfooz Bibi, P.W.7 are brother and sister inter se and also of the deceased and their testimony has not been corroborated by any other independent source; that the plea of the accused was more probable and believable, and at least it is not a case of capital punishment.

16. Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment. Learned counsel for the complainant has also prayed for enhancement of the compensation.

17. Heard. Record perused.

18. The alleged occurrence took place at 2‑00 p.m. while the F.I.R. was recorded at 2‑30 p.m. which shows that the accused/appellant was nominated in. the promptly recorded F.I.R. The appellant himself was Constable posted at the, same Police Station. There was no reason for his false implication or substitution by letting off the real culprit. The appellant himself has admitted the occurrence and place of occurrence but his plea is that murder was committed under `Ghairat'. The occurrence took place in his house and he has to explain that how and in what manner the murder took place. He has failed to furnish any such explanation as why he was implicated falsely. The relationship of the P.Ws. and the deceased is no ground to discard their testimony as they have no previous enmity for false implication of the appellant. The ocular account furnished by Altaf Hussain, P.W.6 and Mst. Mehfooz Bibi, P.W.7 has been corroborated by medical evidence. Their statements were confidence‑inspiring. The prosecution case has been proved against the appellant beyond, any shadow of doubt and we do not find any force in the arguments advanced by learned counsel for the appellant to interfere in the conviction recorded against him.

19. As far as the sentence is concerned, the motive as alleged by the complainant has not been established. Nothing has been brought on record to show that the accused wanted to contract another marriage. The complainant himself stated in the F.I.R. that the accused on seeing the prosecution witnesses in his house was provoked and fired at the deceased which shows that it was not pre‑planned and pre‑meditated murder. The accused/appellant has also not repeated the tire shot, therefore, it is not clear that what happened at the spur of the moment. There is no evidence that there was any dispute between the husband and wife and their relations were not cordial. By placing the prosecution story and the defence plea in juxtaposition, we are convinced that it is not a case of capital punishment, therefore, we, while maintaining the conviction under section 302(b), P.P.C. alter the sentence from death to imprisonment for life which will meet the ends of justice. The punishment of payment of compensation or sentence in default thereof is upheld. Benefit of section 382‑B, Cr.P.C. is also extended in favour of the accused/appellant. Death sentence of Muhammad Jehangir is not confirmed. The appeal is dismissed with the above modification.

20. Criminal Revision No. 316 is also dismissed having no force.

21. Murder Reference is answered in the negative .

22. N.H.Q./M‑1073/L Sentence reduced.