MUHAMMAD JAMIL Versus STATE
RASHID AZIZ KHAN, J .‑‑‑Muhammad Jameel son of Sadar Din was sent up for trial by Police Station Wan Bhachran, District Mianwali, for an offence under section 302, P.P.C. Punjab Special Court for Speedy Trials No.VIII, Sargodha, vide its judgment dated 31‑10‑1988 convicted and sentenced Muhammad Jameel under section 302, P.P.C. to death with a fine of Rs.30,000, or in default five years' R.I. The convict has appealed. this judgment shall dispose of the same.
2. Prosecution story in brief, disclosed by Badar Din in his complaint Exh.PA, was that he had a general merchant store in the village. On 8‑5‑1988 at about 6‑00 a.m., first informant with his wife Mst. Gohari and Naik Muhammad, brother of said Mst. Gohari, were present in their house. Muhammad Jameel called them to come to their shop as he wanted to buy something. Whereupon, first informant with Naik Muhammad and Mst. Gohari came out of their house: They saw Muhammad Jameel armed with .12 bore gun. He raised a Lalkara that he would teach them a lesson for giving 'Rishta' to the son of Naik Muhammad. Mst. Gohari ran into the shop, whereupon Muhammad Jameel fired a shot hitting on her right flank. Khalil, son of the first informant, also came there and witnessed the occurrence. Mst. Gohari was transported to the hospital but she died on the way.
Motive for the commission of the occurrence was that the first informant had agreed to marry his daughter Mst. Parveen with Gulzar Ahmad, son of Naik Muhammad. Naik Muhammad had come to their house and had brought Eid presents for said Mst. Parveen. Muhammad Jameel and his parents used to press upon the first informant and his wife not to give the hand of their daughter to son of Naik Muhammad. For this reason, Muhammad Jameel committed the murder of Mst. Gohari.
The occurrence took place at 6 a.m. on 8‑5‑1988 in the shop, attached to the house of the complainant in Chak No.29/D‑B, 10 miles from Police Station Wan Bhachran. Complaint Exh. PA was made by Badar Din, P.W.5 on 8‑5‑1988 at 9 a.m., which was recorded by Khalid Bashir, S.I., P.W.8, at Sessions Court, Mianwali. Formal F.I.R. Exh.PA/1 was registered the same day at 9‑30 a.m. It was registered by Rafiullah, A.S.‑I., Moharrir, P.W.1.
Dr. Nehamat Ullah, Medical Officer, District Headquarters Hospital, Mianwali, P.W.7, conducted the post‑mortem on the dead body of Mst. Gohari, wife of Badar din, on 8‑5‑1988 at 10‑30 a.m., and found the following injuries:‑‑
(1) A fire‑arm entrance wound 2 c.m. x 2 c.m., over right side of abdomen exactly in the mid axillary line. It was 15 c.m. from mid‑line and 7 c.m. above illiac crest. There was blackening and burning around the wound.
(2) A fire‑arm exit wound 1/2 c.m. x 1/2 c.m., over the left side of abdomen 8 c.m. from umbilicus and 10 c.m. below left of sub costal margins. .
(3) A fire‑arm exit wound 1/2 c.m. x 1/2 c.m., over left side of abdomen 5 c.m. below injury No.2.
(4) A fire‑arm exit wound lit c.m. x 1/2 c.m., over left side of abdomen 5 c.m. outer and below injury No.3, 12 c.m. from midline.
(5) A fire‑arm exit wound 1/2 c.m. x 1/2 c.m., over left side of abdomen 4 c.m. from injury No.4 over its inner and inferior aspect, 6 c.m. from midline.
(6) A fire‑arm exit wound 1/2 c.m. x 1/2 c.m. over left side of abdomen, 4 c.m. above and inner to injury No.5.
(7) A fire‑arm exit wound 1/2 c. m. x 1/2 c. m., over front of left thigh, 19 c.m. above left knee.
According to him, the deceased was fired at from a distance of two feet.
Khalid Bashir, S.H.O., P.W.8, was present in the Sessions Court when Badar Din, P.W., approached him and on his dictation he correctly recorded complaint Exh.PA, and thereafter sent the same for registration of a case at the Police Station. He came to the hospital and prepared injury statement Exh.PG and inquest report Eith.PH of the deceased and sent the dead body for autopsy. He came to the spot and secured blood‑stained earth as well as one crime empty P.7 vide Memo. Exh.PE. He got the Memo. attested from the witnesses. He recorded the statements of the witnesses. He arrested the accused on 13‑5‑1988. On 15‑5‑1988, the accused while in custody got recovered gun P.5 with four live cartridges P.6/1‑4, which were secured vide Memo. Exh.PD. After usual investigation, he challaned the accused.
3. Prosecution in support of its case had produced eight witnesses in all. Rafiullah, A.S.‑I., P.W.1, had correctly recorded F.I.R. Exh.PA/1 on 8‑5‑1988. On the same day he was given two sealed parcels containing blood?stained earth and crime empty, which parcels were sent to the respective offices through Habib Ullah, F.C., on 10‑5‑1988. Mirza Zaheer‑ud‑Din., Draftsman, P.W.2 had prepared site‑plan Exh.PB and Exh.PB/1 on the directions of the police. The ocular account was furnished by Badar Din and Naik Muhammad, P.Ws.5 and 6, respectively. The doctor who had conducted the post‑mortem examination had appeared as P.W.7.
At the conclusion of prosecution evidence, the appellant was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. In answer to a question, he further stated that on the day of incident, at Sehri time, he saw the deceased going into her shop with one Noor Muhammad. He followed them and saw them in compromising position, therefore, he picked up a gun and fired at the deceased. Noor Muhammad managed to escape. He neither produced any defence evidence nor appeared in his defence on oath.
4. It was contended by learned counsel for the appellant that the appellant had fired at the deceased under grave and sudden provocation. Contended that the appellant was a close relation of the deceased and was next door neighbour, and in such. circumstances, there was no occasion to have committed the murder unless the version given by him was correct. Submitted that the motive asserted by the prosecution was too vague and far‑fetched. The contentions were opposed by learned counsel for the State.
5. We have heard the learned counsel and gone through the evidence with his assistance. In the instant case, the occurrence is admitted by the 'defence. It is also admitted by the defence that the deceased was done to death with fire‑arm. Time and place is also not disputed. The only question which remains to be resolved is whether the occurrence took place in the manner as asserted by the defence, or it took place as alleged by the prosecution.
Ocular account was furnished by Badar Din and Naik Muhammad, P.Ws.5 and 6, respectively. Both of them were cross‑examined at length, but nothing could be brought on record to indicate that they were not present at the spot or they had not witnessed the occurrence. The occurrence had taken place inside the shop, adjacent to Badar Din's house. He used to manage the shop himself. He was the most natural witness. As far as Naik Muhammad, P.W., is concerned, he was real brother of deceased Mst. Gohari. He had brought Eid presents for the daughter of the deceased as it was agreed and decided that the hand of deceased's daughter would be given to the son of Naik Muhammad. Their statements are convincing and inspire confidence and can safely be relied upon. The appellant has also admitted the occurrence though in a different manner. Crime empty secured from the spot matched with the gun, recovered at the instance of the appellant, vide report of Ballistic Expert Exh.PM.
As far as the defence of the appellant is concerned, we have given our anxious consideration to it and have come to the conclusion that if it is kept in juxtaposition with the prosecution case, it neither rings true nor appears plausible. The appellant had asserted that on the day of incident at Sehri time, he saw Mst. Gohari, deceased, going into her shop with one Noor Muhammad and then he saw them in compromising position. He picked up the gun of one Suleman and fired at the deceased. There is no explanation where was laid Suleman, who was guest of the appellant, at the relevant time. According to the site‑plan Exh.PB, house of the appellant is not shown. So, obviously, it was not adjacent to the place of incident. If the version of the appellant is relied upon, it means that he saw the deceased in a compromising position, then he went to his house, picked up the gun of his guest, came back and fired at the deceased. In such circumstances, plea of grave and sudden provocation cannot be available. On the other hand, if he had gone to the shop of the appellant while armed with gun, the plea of grave and sudden provocation would become redundant. Even otherwise, it is most unnatural that at Sehri time the deceased would indulge in such activity inside of her house in the presence of her husband and real brother. Had the defence plea been correct, husband of the deceased would have supported it rather trying to conceal it. We have examined the defence plea from every angle but the same does not appeal to reason.
For what has been discussed above, we find no merit in the appeal, which is dismissed.
N.H.Q./M‑697/L ???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.