MANZOOR HUSSAIN Versus THE STATE

This judgment will dispose of Criminal Appeal No. 1889 of 2001 filed by Manzoor Hussain, appellant who was convicted under section 302(b), P.P.C. and was sentenced to imprisonment for life with the benefit of section 382‑B, Cr.P.C. by learned Additional Sessions Judge‑III, Faisalabad vide judgment dated 30‑10‑2001.

Criminal Revision No.892 of 2001 filed by the complainant for enhancement of sentence of the convict Manzoor Hussain shall also be disposed of through this single judgment.

2. Briefly stated the facts of the case are that Liaqat Ali reported to the Police that Ijaz Ahmad (deceased) the son of his wife's brother was residing in his house. In the village one Abida daughter of Manzoor Hussain was also studying. Manzoor had suspicion of illicit relations between Ijaz and Abida. Manzoor had been extending threats to Ijaz Ahmad. On 29‑1‑1998 at 10 p.m. the complainant alongwith his son Haroon and Ijaz were sleeping in their Bathaik, some one knocked at the door. Ijaz Ahmad, deceased opened the door and found Manzoor, Muhammad Nawaz and Mubashar armed with hatchets standing there. Manzoor cautioned to hold Ijaz and kill him and simultaneously he hit Ijaz Ahmad on his left side of the head.

Resultantly, he fell down, therefore, Mubashar Hussain hit him with his respective hatchet on the back side of the head. Nawaz also hit the deceased twice on his left arm. In the meanwhile Muhammad Ishaq, Muhammad Afzal and many other residents of that area reached at the place of occurrence but the accused managed to escape. Ijaz was taken to hospital in injured condition. Subsequently, Ijaz expired on 12‑2‑1999.

3. Investigation of the case was taken over by Rafi Ullah, S.‑I.(P.W.12). He went to the place of occurrence, took into possession the blood‑stained earth vide memo. Exh.PJ, also prepared inquest report Exh.PH, and on 23‑2‑1999 arrested Manzoor, Nawaz and Mubashar. In custody on 2‑3‑1999 Manzoor got recovered hatchet P.4 which was taken into possession vide memo. Exh.PL. On the same day, Muhammad Nawaz accused got recovered hatchet P.5 which was secured vide memo. Exh.PQ. After completion of the formal investigation, all the accused were found guilty and challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 13 witnesses in all. Then the learned S.P.P. tendered in evidence reports of the Chemical Examiner Exhs.PR, PT, PV and reports of the Serologist Exhs.PS. PU and PW. After that statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial, except the present appellant namely Manzoor, remaining two co‑accused were acquitted.

6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that though the police station was at a distance of 3 miles from the place of occurrence but there is delay of 2 days in lodging the F.I.R. Further submits that according to finding of the trial Court in para.18 of the judgment, he has disbelieved the eye‑witnesses and came to the conclusion that the appellant had committed the murder of the deceased under Ghairat. Further submits that on the same set of evidence, co -accused namely Mubashar and Nawaz were acquitted by the trial Court. Adds that Mubashar was found to be innocent during the course of investigation. Adds that even otherwise motive given by the complainant in the F. I. R. by the complainant himself was that the appellant had suspicion that his daughter Abida had developed illicit relations with the deceased. Concluding his submissions, learned counsel submits that it is not a case in which the trial Court should have convicted the appellant under section 302(b), P.P.C. but the case, if any, was under section 302(c), P.P.C.

7. On the other hand, learned A.A.‑G. submits that in the facts and circumstances of the case sentence awarded is too harsh.

8. I have heard learned counsel for the parties and have gone through the record. The learned trial Court in para. 18 of the judgment has disbelieved the eye‑witness account. It is settled law that when the prosecution story is disbelieved then the version of the accused has to be accepted in toto. The appellant in, his statement under section 342, Cr.P.C. while, replying question No. 11 submitted as under:‑‑

"P.Ws. are related inter se and are inimical towards me, In fact on the night of occurrence, I was sleeping near the Dera of Liaqat, complainant, I saw my daughter Abida and deceased standing under the Chapper in objectionable/embracing position. After seeing them together, I lost myself control and under grave and sudden provocation and under Ghayarat I picked up hatchet lying there and inflicted injuries to the deceased. Due to darkness my daughter Abida ran away. She was produced by Afzal P. W. before the Police. I was alone. My co‑accused and eye‑witnesses were not present at the time of occurrence."

So, it was a case of two versions and by applying the golden principle of putting both the versions, one put forward by the prosecution and other introduced by the accused, in juxtaposition, the version put forth by the appellant is more probable and nearer to the truth and it was so held by the trial Court.

After taking into consideration the evidence brought on record, attending to the submissions made by both the sides and applying the golden principle of putting both the versions, one of the prosecution and other by the accused, in juxtaposition, I am of the considered opinion that conviction of the appellant under section 302(b) cannot be maintained and in fact the instant case falls under section 302(c), P.P.C. because the same is covered by one of the exception to section 300, P.P.C. as it was before the enforcement of Qisas and Diyat Ordinance. Resultantly, conviction and sentence of the appellant under section 302(b), P.P.C. is set aside and he is convicted under section 302(c), P.P.C. and sentenced to undergo R.I. for 14 years with benefit or section 382‑B, Cr.P.C.

With above modification in the conviction and sentence, appeal filed by the appellant is disposed of. Criminal Revision is dismissed.

N.H.Q./M‑1611/L Order accordingly.