MUHAMMAD YAQOOB Versus STATE

IFTIKHAR MUHAMMAD CHAUDHARY, J. ---This appeal has been filed by leave of this Court vide order dated 20th March, 1995 for re appraisal of evidence.

2. Precisely stating facts of the case are that on February 10, 1988 P.W. Noor Ahmad lodged F.I.R. Exh.PB at Police Station Kunjah,-District Gujrat alleging murder of his daughter Mst. Bashir Bibi by the appellant at the time when complainant alongwith P.W. Ramzan and Sardar Khan son of Boota Arain went to see her in the house of her husband i.e. appellant situates] in Village Darya Khatana. According to report when they entered the house of appellant they heard shieks of the deceased, therefore, they rushed to the room where appellant Muhammad Yaqub was found giving Toka blows to the deceased on her neck on account of which she fell down on the ground and succumbed to the injuries instantaneously. The appellant was overpowered at the spot and Toka i.e. crime weapon was also taken from his possession. The motive disclosed in the F.I.R. is that convict had suspicion that his wife Mst. Bashir Bibi had illicit relations with one Dr. Fayaz, therefore, he committed her murder.

3. On completion of investigation appellant was sent up to face trial before Sessions Judge, Gujrat. As convict did not plead guilty to the charge, therefore,. prosecution led evidence of P.Ws. Muhammad Ashraf, Muhammad Riaz, Arif Hussain, Dr. Ch. Shafique Ahmad, P.Ws. Noor Ahmad and Muhammad Ramzan (eye-witnesses of occurrence); P.W. Hasan Akbar, Investigating Officer. Thereafter statement of appellant under section 342, Cr.P.C. was recorded wherein while answering one of the questions he replied as under:--

"The case is false and so has been brought against facts against me. The real facts are that on the day of occurrence I returned to my house after doing the labour and saw my wife Mst. Bashir Bibi in compromising position with the said Dr. Fayyaz Ahmad and I lost my senses, picked up the Toka lying in my house and gave injuries to my wife and in the sequence Dr. Fayyaz managed his escape and I committed no offence. Nobody witnessed the same and the police concocted this false version."

4. Learned trial Court on appraisal of evidence found appellant guilty for commission of offence i.e. under section 302, P.P.C. and sentenced him to imprisonment for life with fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for one year, with further direction to deposit a sum of Rs.5000 to be paid to the legal heirs of deceased as compensation and in lieu of default he was ordered to further undergo six months' S.I. However, benefit of section 382-B; Cr.P.C. was extended to appellant. '

5. Appellant being aggrieved from the order of the trial Court preferred appeal before Lahore High Court, Lahore which, has been dismissed vide impugned order dated April 23, 1994.

6. Learned counsel for appellant argued that the prosecution in F.I.R. disclosed that appellant resorted to commission of offence because deceased was suspected by him to have illicit relations with one Dr. Fayyaz Ahmad, The appellant was also strict to this motive and had disclosed that in fact on the day of occurrence when he returned to his house after doing labour work he saw deceased Mst. Bashir Bibi in compromising position with Dr. Fayyaz, therefore, he lost his senses, picked up the Toka lying in his House and gave injuries to his wife and during this process Dr. Fayyaz managed to escape. Therefore, according to him as the offence has been committed by appellant on account of Ghairat,. therefore, he was liable to lesser sentence falling under section 302(c), P.P.C.

7. On the other hand, Ch. Muhammad Akram, learned State Counsel contended that normal penalty for commission of Qatl-i-Amd as prescribed under the law is death but the trial Court has already taken lenient view while exacting sentence to appellant, therefore, no further reduction in the quantum of sentence is warranted.

8. We have heard learned counsel for parties and have also gone through the available record carefully. A close scrutiny of prosecution evidence particularly statements of P.W. Noor Ahmad and Muhammad Ramzan indeed has established that appellant has committed murder of Mst. Bashir Bibi in a brutal manner and both these witnesses not only arrested him A from the spot but had also recovered Toka from his possession. Their statements have been corroborated by post-mortem report produced by Dr. Ch. Shafique Ahmad as Exh.PC in which following external injuries are noted by him:--

(1) An incised wound 12 c.m. x 6 c.m. bone deep on left side of neck reaching to front of neck. Irregular in shape with cutting the soft tissues.

(2) An incised wound 3 c.m. x 1 c.m. x 2.5 c.m. on left ear. The lobe of the left ear was cut but hanging with the remaining ear.

(3) An incised wound about 100 c.m. into bone deep on right side below the right inedible and extending to the right side of the neck. The wound was oblique in appearance, irregular in shape and had cut the soft tissues.

(4) An incised wound about 5 c.m. x 0.5 c.m. x 4 c.m. deep just front of right ear, the lobe of the right ear was cut but was hanging with

Similarly report of Chemical Examiner has furnished confirmatory evidence namely Toka Article P/7 taken into possession vide memo Ex.PW 7/5 and blood-stained Chaddar Article P/6 taken into possession vide recovery memo. Exh.P/7-4 were found stained with blood. Likewise Serologist vide g his report Exh.P/6 has opined that these articles were stained with human blood. Prosecution has led trustworthy, confidence inspiring and consistent evidence to establish guilt against appellant. Thus learned High Court as well as trial Court rightly concluded that appellant is guilty for commission of crime.

9. Now turning towards the plea of appellant's counsel that the statement made by him under section 342, Cr.P.C. be accepted in totality and lesser sentence be awarded to him. In this behalf the settled principle in criminal administration of justice is that if the prosecution evidence stands rejected in totality then the statement of the accused is to be accepted in totality as held by this Court in the case of State v. Muhammad Hanif and 5 others (1992 SCMR 2047). Because in the instant case prosecution has proved its case beyond shadow of doubt, therefore, statement of appellant under section 342, Cr.P.C. wherein he admitted commission of offence on C account of Ghairat is not worthy of acceptance. Moreover, in view of the motive disclosed by the prosecution in the F.I.R. and accepted by appellant himself to some extent, lenient view has already been taken by the trial Court in awarding the sentence to him considering it as a mitigating circumstance in his favour. Thus we are of the opinion that no interference in the impugned judgment is called for.

For the foregoing reasons appeal being without merit is dismissed.

Appeal dismissed.