MUHAMMAD ASHRAF Versus THE STATE

AFRASIAB KHAN, J .‑‑The appellant Muhammad Ashraf son of Allah Ditta stands convicted under section 302, P.P.C. for causing the murder of Mst. Shagufta Parveen alias maqsooda Begum by the learned Additional Sessions Judge, Sialkot, vide his judgment, dated 10‑3‑1987. He was sentenced to death plus a fine of Hs.5,000 and in default thereof to further undergo two years' R.I. It was also directed that a sum of Hs.10,000 shall be paid to the legal heirs of the deceased as compensation and in default of the payment the appellant shall undergo six months' further R.I. Mst. Rashida Bibi co‑accused was, however, acquitted. The appellant has challenged his conviction and sentence by filing this appeal. Murder Reference is also before us for confirmation. We propose to dispose of both the criminal matters by a single judgment.

The prosecution case in brief, as stated by complainant Muhammad Yaqoob son of Muhammad Hussain, is that he is an agriculturist. He was engaged about four years ago with Mst. Shagufta Parveen alias Maqsooda Begum daughter of Muhammad Boota. Later on Mst. Shagufta Parveen's parents refused to give her hand to the complainant. They wanted to marry her with somebody else. This proposal of the parents was also not liked by Mst. Shagufta Parveen. For this reason Mst. Shagufta Parveen came to the house of the complainant of her own free will on 7‑7‑1986. She married with the complainant of her own free consent. Thus, the complainant and Mst. Shagufta Parveen was legally a married couple. Muhammad Boota, the father of Mst. Shagufta Parveen got registered a case of abduction against the complainant as well as his real brothers, namely, Manzoor Ahmad, Mahmood, and his real sister Mst. Asifa Bibi. All the accused in the case were released on bail by the learned Sessions Judge. On 23‑7‑1986 at about 6‑30 a.m. local police summoned the complainant, Mst. Shagufta Parveen, the alleged abductee, alongwith Manzoor Ahmad, Ch. Nasimullah at the police station. All the above‑referred persons appeared before the S.H.O. The complainant party sat on cots in front of the door of the room. Mst. Shagufta Parveen went inside the room and sat on a cot. The Police Officer at that time went away to ease himself. In the meantime appellant Muhammad Ashraf resident of village Jok Mar, Police Station Dajanpur, District Rajanpur, who is the maternal‑cousin of Mst. Shagufta Parveen, Mst. Kashida Bibi, mother of the abductee, also came to the police station. They straightaway went to the room of the S.H.O. by seeking Mst. Shagufta Parveen sitting there. Mst. Rashida Bibi, the mother of the abductee and appellant Muhammad Ashraf started persuading the abductee Mst Shagufta Parveen to give statement against the complainant. However Mst. Shagufta Parveen stated that she was engaged to the complainant and that she has married him of her own free will, and that she will not Leave her husband alone under any circumstances. Upon this, there was an altercation between the abductee and her mother and the appellant. The appellant hurled a threat that he will see how she was married to the complainant against their will. At about 6‑45 a.m. Mst. Rashida Bibi, the acquitted co‑accused, caught hold of Mast. Shagufta Parveen by her pigtail and fell her on the cot whereafter the appellant took out his knife and inflicted successive injuries on the person of Mst. Shagufta Parveen, landing on her chest and left shoulder to the meantime the S.H.O. returned after easing himself.

3. Rafiq Ahmad Hussain S.I P.W.8 investigated the case He stated that he summoned Muhammad Yaqub etc. as accused‑persons in the case of abduction, who were released on pre‑arrest interim bail on 23‑7‑1986. Yaqoob P.W. brought Mst. Shagufta Parveen, the deceased, to police station for the purpose of joining investigation. Both were present in the police station at 6‑30 a.m. He stated that he as well as Mubarik A. S. I. caught the accused persons t rpm the room of the police station. Blood‑stained knife was recovered from Ashrat appellant to presence of Nasimullah and the same was taken into possession vide memo. Exh.P.E. The injured Mst. Shagufta Parveen was sent to the hospital and at 7‑30 a.m. he received a telephonic message that she had expired. Injury statement Exh.P.J. and inquest report Exh.P.K. were prepared by him. Blood‑stained earth was secured from the place of occurence vide memo. Exh. P. G. Blood‑stained clothes of Ashraf appellant Exhs.P.B to P.10 were also taken into possession vide memo. EXh . P . H . Cot P .11, pillow P .12 were taken into possession vide memo. P.I. Shoes P.13, Burqa P.14 of the deceased were also taken into possession. Two ear‑rings P.5 and P.18 and bangles P.6 of the deceased were taken into possession vide memo. Exh.P.C. 'The last‑worn clothes of the deceased P.1 to P.4 were taken into possession vide memo. Exh.P.B. Site plans Exh.P.A. ana P.A./1 were got prepared from the Draftsman. Dr. Syed Iftikhar Ahmad, S.M.0. Civil Hospital, Daska conducted the post‑mortem examination on the dead body on 23‑7‑1986. The doctor found the involving injuries on her person-‑

(1) Incised wound 4 x 2 ? ? c.m. x chest cavity deep backwards medially.

(2) Incised wound 4 x 2? c.m, x muscle deep directed downward backward medially ? c.m. outer to injury No.1.

(3) Incised wound 1? x 1/3 c.m. transverse over left nipple and areolay directed downward backward medially.

(4) Incised wound 1‑3/4 x 1 c.m. x muscle deep over left upper chest, 3? c.m. above nipple.

(5) Incised wound 2 x ? x chest cavity deep obliquely directed downwards backwards 2? c.m. above injury No.4.

(6) Incised wound 1‑3/4 x 3/4 c.m. transverse over left chest 1 c.m. medial to injury No. 5 direction as above.

(7) Incised wound 1‑3/4 x 1 c.m. x muscle deep 1 c.m. medial to injury No.6.

(8) Incised wound 2 x 3/4 c.m. x chest cavity deep over middle of left chest medial to nipple.

(9) Incised wound 2 x 1 c.m. vertical x bone deep over right upper chest 4 ? c.m. below and to the right side of upper margin of manubrium.

(10) Incised wound 1 x ? c.m. x chest cavity deep, over middle, of left chest 7 c.m. above and to left side of xiphisternum.

(11) Incised wound 2? x 1‑3/4 c.m. over outer side of right upper arm, upper part.

(12) Incised wound 5 x 3 c.m x muscle deep over inner part of front of left upper arm.

(13) Incised wound 3/4 x ? ? c.m. x muscle deep over medial side of middle of left arm.

(14) Incised wound 1‑3/4 x 1 c.m. over outer side of left arm lower arm x muscle deep.

(15) Incised wound 1‑3/4 x ? c.m. over that of medial part of left chest upper part 2 c.m. to left of 3rd thoracis spine.

(16) Incised wound 2 x 3/4 c.m. x muscle deep over back of middle of left chest 4 c.m. below injury No.15.

(17) Incised wound 1‑3/4 x 3/4 x bone deep 2 c.m. to right of injury No. 14.

(18) Multiple incise wounds each other over area of 6 x 2 c.m. front of left knee x muscle deep.

Injury No.10, skin muscles, space between 6th and 7th ribs pierced diaphragm and left lobe of liver were injured through and through ? Stomach was pierced. Death, in the opinion of the doctor, occurred because of shock and bleeding on account of injuries to vital organs as a result of injuries Nos. 1, 2, 3, 5, 6, 8 and 10. All injuries were found to be ante‑mortem and sufficient to cause death in the ordinary course of nature. All the injuries were by sharp‑edged weapon. Probable time that elapsed between injuries and death was sudden and that between death and post‑mortem about 7 hours. The report of Chemical Examiner Exh.P.M. and the report of Serologist Exh.P. O. were positive. The items mentioned therein were found by the Serologist to be stained with human blood. Muhammad Yaqoob P.W.6, who is maker of the F.I.R. has narrated the whole version before the Court from beginning to the end; He stated that deceased Mst. Shagufta Parveen was commanded by the appellant and the acquitted co‑accused to give evidence against him in the investigation. However, she refused to do so. Acquitted co‑accused Mst. Rashida Bibi pushed the deceased down on the cot by catching her from her pigtail. Thereafter, the appellant Ashraf gave successive injuries with his knife on various parts of her body. Manzoor Ahmad P.W.7 suppor?ted the prosecution version in its material particulars. In his statement under section 342, Cr.P.C. the appellant denied the allegations and took the plea that the prosecution witnesses were not present at the spot. The appellant further stated that deceased told them that the money and ornaments were lying with the complainant Yaqoob and that she could not leave her paramour as she was pregnant by five months because of illicit liaison with the complainant, whereupon he lost self‑control. He went on to say that a knife was lying on the table of the Thanedar which he picked up and on account of grave and sudden provocation inflicted some stab wounds on the deceased. He further stated that he could not control his emotions despite the efforts made by his co‑accused Mst. Rashida Bibi. To the same effect is the statement made by the acquitted co‑accused Mst. Rashida Bibi. Anwarul Haq A.D.I.‑G. appeared as a court‑witness. He stated that he investigated the case and directed the S. H. O. to submit a challan under section 304, P.P.C. The learned trial Court, after recording the evidence and hearing the parties, convicted and sentenced the appellant as stated earlier on the basis of eye‑witness account provided by P.W.6 and P.W.7.

4. At the very outset the learned counsel for the appellant has submitted that this is a case of grave and sudden provocation inasmuch as the very case of the prosecution as disclosed by the F.I.R. Exh. P. D. is that the accused were not happy over the marriage of the deceased with Muhammad Yaqoob P.W.6. complainant and had got a case registered against the complainant and his relatives of her abduction. Apart from the statement having been made by the complainant P.W.6, the appellant, while making statement under section 342, Cr.P.C. especially in answer to question No.4 stated that the appellant enquired from the deceased as to why she had eloped with the complainant, who is already married and is the father of six children and on this the deceased disclosed that money and ornaments were with the complainant Muhammad Yaqoob and that she cannot now leave her paramour as she was pregnant of five months duration because of her sexual liaison with him. To the same effect is the statement of acquitted co‑accused Mst. Rashida Bibi, the real mother of the deceased. She disclosed to her mother, the acquitted co‑accused, that she could not leave the complainant Muhammad Yaqoob as she was pregnant for the last five months. The acquitted co‑accused stated that this disclosure on the part of the deceased suddenly provoked the appellant. He could not control his emotions and he caused injuries on the person of the deceased. From the prosecution evidence as well as from the statement of the appellant plus the statement of the acquitted co‑accused it is proved beyond doubt that the appellant, who is the first maternal‑cousin of the deceased was gravely provoked by the admission of the deceased that she was carrying on with her paramour Muhammad Yaqub P.W.6 and that her pregnancy was of five months duration. We are, therefore, of the view that the appellant at the spur of moment was provoked sudden and gravely by the statement of the deceased. Thus, the ingredients of intentional murder are not proved. Accordingly we alter the, conviction of the appellant from section 302, P.P.C. to section 304, Part I, P.P.C. and sentence him to 7 years' R.I. The amount of compensation is, however, enhanced from 10,000 to Rs.15,000, in default whereof he would undergo six months' imprisonment. The sentence of fine is maintained. Benefit of section 382‑B, Cr.P.C. shall also be allowed to the appellant. With the above modification the appeal is otherwise dismissed.

The death sentence is ‑not confirmed.

M.Y.H./M‑644/L ???????????????????????????????????????????????????????????????????? Order accordingly.