IKHLAQ HUSSAIN Versus State

This appeal is directed against the judgment dated 11-11-2002 passed by the learned Additional Sessions Judge, Sargodha whereby, after having tried the appellant, convicted him under section 302(c), P.P.C. and sentenced him to 25 years R.I. as Tazir with a further direction to pay Rs.2,00,000 as compen sation to the legal heirs of deceased under section 544-A, Cr.P.C. and benefit of section 382-B, Cr.P.C. was extended to him.

2. Brief facts of the case, as given by the complainant Gulzar Fatima (P.W.5) in the F.I.R., are that on 11-9-1999 at about 12-15 p.m. the complainant along with Ahmad Bakhsh and Azadar Hussain had gone to meet her daughter Nargas Batool who was married with accused Akhlaq; that the said Nargas Batool insisted to accompany them whereupon there was an exchange of hot words between accused Akhlaq Hussain and Mst. Nargas Batool; that the accused fired at the deceased with his rifle in consequence whereof she died at the spot; that the occurrence was witnessed by the complainant and other P.Ws. and that the motive behind the occurrence was the differences between the spouses.

3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced nine witnesses during the trial.

4. Learned counsel for the appellant in support of this appeal submits that the appellant has falsely been implicated in this case; that both the eye-witnesses, namely, Mst. Gulzar Fatima (complainant) P.W.5 and Azadar Hussain Shah (P.W.6) were not present at the place of occurrence for the reason that there was a marriage of "Watta Satta" and the said Azadar Hussain Shah had divorced the sister of the present appellant; that the appellant had produced three defence witnesses in the instant case; that Mst. Gulzar Fatima (complainant) P.W.5 had also, earlier on, got arrested the appellant in an abduction case of his other daughter Mst. Zameer Batool but he was exonerated by the police in the said case during the course of investigation; that Azadar Hussain Shah (P.W.6) and one Ahmad Bakhsh (given up P.W.) had sworn affidavits (Exhs.D.A./1 and D.A./2) during the course of hearing of bail application. That the appellant has fully explained his version in answer to Question No.8 during recording of his statement under section 342, Cr.P.C.; that if the version of the prosecution is found to be false then appellant's version should be considered in totality; that to the least the offence, if any, is made out under section 319, P.P.C.: that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.

5. On the other hand, learned counsel for the State submits that the time and place of occurrence and the weapon of offence is admitted; that there is no blackening on the injury of the deceased so the story set up by the appellant in his statement recorded under section 342, Cr.P.C. can be ignored easily; that the learned trial Court has wrongly convicted the appellant under section 302(c), P.P.C. and not under section 302(b), P.P.C. because the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.

6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

7. The occurrence in this case took place on 11-9-1999 at 12-15 p.m., the matter was reported to the police through written application (Exh.P.E.) at 2-30 p.m. while the formal F.I.R. was recorded at 3-30 p.m. The appellant in this case was arrested on 14-10-1999 i.e. one month and three days after the occurrence. Mst. Gulzar Fatima (complainant) P.W.5 and Azadar Hussain Shah (P.W.6) had appeared before the learned trial Court to prove the case. Their statements are corroborative to each other and despite a lengthy cross-examination, to which they were subjected, nothing could be shaken from their testimony. They have either no enmity or strong motive to falsely depose against the appellant. They have reasonably proved their presence at the spot, so, contention of the learned counsel for the appellant that they were not present at the spot, has no force. This Court seems no reason to discard their testimony which is believed.

8. It is a case of two versions i.e. one put up by the prosecution and the other set up by the appellant given in Question No.8 in his statement recorded under section 342, Cr.P.C. If both the versions are put in juxtaposition, the version put up by the defence is not reliable because the occurrence took place on 11-9-1999, the appellant remained fugitive from law for one month and three days, thereafter after getting legal advice he appeared before the police and gave his version and there is no blackening on the wounds of the deceased Nargis. Moreover, appellant's real brother, with whom he quarrelled at the time of occurrence, was never produced by the appellant before the learned trial Court in support of his case. If D.W.1 Allah Ditta was present at the spot then why he did not lodge the F.I.R. Moreover, the Court has to see the quality of the evidence and not the quantity. Even the single statement of Mst. Gulzar Fatima (complainant) P.W.5 can be considered sufficient to bring home guilt of the appellant. Moreso, her statement is corroborated by the statement of Azadar Hussain Shah (P.W.6). The ocular account in this case is corroborated by the medical evidence. Therefore, it can safely be concluded that the prosecution has proved the case against the appellant to the hilt. It is settled by now the apex Court of the country in the judicial hierarchy that even the statement of closely related witness is reliable if the said witness has no enmity with the accused.

9. However, I note that the learned Additional Sessions Judge, while convicting the appellant under section 302(c), P.P.C. did not give any cogent reason because the appellant never claimed to have acted under a grave and sudden provocation which could bring his case into one of the exceptions of section 300, P.P.C. (as it was prevalent before enforcement of Qisas and Diyat Ordinance). I am of the considered view that the prosecution has successfully proved the case against the appellant to the hilt but the learned Additional Sessions Judge has not awarded him the sentence mandated under the law i.e. under section 302(b), P.P.C. Therefore, he has ignored the mandatory provision of subsection (5) to section 367 of the Criminal Procedure Code which reads as under:--

"(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed."

Such like glaring mistakes are not expected from the Judicial Officers who are assigned with such sensitive tasks and they must deliver the decisions strictly in accordance with the law and the dictates of the Superior Courts. A copy of this judgment shall be sent to Mr. Muhammad Tanveer Akbar, the then learned Additional Sessions Judge at his present place of posting for his future guidance with a warning to be careful in future.

10. I am in agreement with the contention of learned counsel for the appellant that it was not a case under section 302(c), P.P.C. but at the same time I am helpless as the law had bound down my hands because neither the State nor the complainant have filed appeal against the appellant's acquittal under section 302(b), P.P.C.

11. As far as contention of learned counsel for the appellant that the offence falls under section 319, P.P.C. has no legs to stand because after going through the provisions of sections 318 and 319, P.P.C., 1 find that this contention has no nexus with the present case. However, this Court finds that the appellant has committed the murder of his wife, so, his case would fall under sections 306, P.P.C. 'punishable under section 308, P.P.C. Therefore, the appellant's conviction and sentence is converted from 302(c), P.P.C. to section 308, P.P.C. read with section 306, P.P.C. and the appellant is sentenced to fourteen years imprisonment as Tazir with a further direction to pay Diyat amount to the other legal heirs other than the appellant according to the rate prevalent at the time of occurrence as notified by the Federal Government. Benefit of section 382-B, Cr.P.C. shall be extended to the appellant. This appeal stands disposed of with the above modification in the quantum of sentence.

N.H.Q./I-87/L Order accordingly.