MUHAMMAD AYUB Versus THE STATE

Muhammad Ayyub aged 19/20 years alongwith one Part aged 45 years were arraigned for trial before Malik Muhammad Aslam, Additional Sessions Judge, Jampur, District Rajanpur. Vide judgment, dated 30-4-1995 the learned trial Court convicted Muhammad Ayyub under section 302-C, P.P.C. and sentenced him to 25 years' R.I. and he was also ordered to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default of payment thereof to further undergo S.I. for 6 months. He was extended the benefit of section 382-B, Cr.P.C. Pari co-accused was given the benefit of doubt and acquitted vide the same judgment.

2. Feeling aggrieved by his conviction and sentence the appellant preferred the present appeal.

3. Ahmad Ali (P.W.6) father of the deceased Mst. Shameem got recorded his statement (Exh.P.A.) at Police Station Dajal at 8-30 a.m. can 12-4-1994 which is at a distance of 12 Kms. from Mauza Rakh Azmat Wala. Exh.P.A. was reduced into writing by Barkat Ali, A.S. I. (P.W.1)

4. Briefly the facts of the case are that on 11-4-1994 after watering their wheat crop in Mauza Rakh Azmat Wala, Ahmad Ali alongwith his Munshi Rab Nawaz went to the house of the appellant who is his son-in-law. They took their meals there and went to sleep. At about 11-00 p.m. they heard alarm. Pari co -accused was also present at the house of Ayyub at that time. Mst. Shameem daughter of the complainant was raising alarm and they saw Pari and Ayyub armed with gun and pistol respectively dragging her away. Pari accused raised Lalkara that what was he seeing and why had fie not taught her a lesson of her illicit relations with Muhammad Bakhsh, whereafter Muhammad Ayub appellant fired two shots with his pistol .12 bore which hit Mst. Shameem on the front of her chest and on the left arm and also on the left side of the chest. Both the accused managed to escape from the spot with their respective weapons towards south. The deceased succumbed to the injuries at the spot. The complainant further said that they did not try to apprehend the accused as they were armed. Because of the night time they remained with the dead body and on the next morning they went to the police station where the complainant reported 'the matter by making statement Exh.P.A. -

5. On 12-4-1994 the Investigating Officer prepared the injury statement Exh. P.B. and inquest report Exh. P.C. and despatched the dead body for post- mortem examination. Thereafter, on the same day blood-stained earth was taken from the spot. It was made into a sealed parcel and taken into possession vide memo. Exh. P.D. which is signed by Muhammad Munshi (P.W.7), the Investigating Officer (P.W.1) and Rab Nawaz (given up). On 1-5-1994 the appellant was arrested by Hameedullah Khan, S.I./S.H.O. (P.W.2) and 12 bore pistol (Exh.P.5) was recovered from his possession. It was taken into possession vide recovery memo. Exh. P.G. which is attested by Muhammad Ali (P.W.6), the Investigating Officer (P.W.2) and Rab Nawaz (given up). After completing the investigation the accused were challaned. The prosecution produced 8 witnesses to prove the charge.

6. Dr. Faizullah Khan, Medical Officer, Tehsil Headquarters Hospital, Jampur appeared as P.W.3 and stated that on 12-4-1994 he conducted autopsy on the dead body of Mst Shameem aged 20 years and found the following injuries on her person:--

(1) A fire-arm wound 5 c.m. x 4 c.m. x going deep on the left side of abdomen 9 c.m. above the umbilicus just left to the midline. The margins of the wound were burnt and black, inverted irregular and torn up (wound of entrance).

(2) Three fire-arms wounds in an area of 7 x 7 c.m. on the left side of back of chest 1 c.m. x 1 c.m. x going deep each. The margins were everted, irregular (wound of exit of injure- No. l).

(3) A fire-arm wound in an area of 6-1/2 x 5-1/2 c.m. situated 4-1/2 c.m. left to the injury No. 1. The wound bears seven multiple holes 1 c.m. x 1 c.m. x going deep each with the inverted and torn up margins (wound of exit).

(4) Six fire-arm wounds in an area of 10 c.m. x 10 c.m. on right side of chest just below and lateral to the right breast 1 c. m. x 1 c. in. x going deep each with everted irregular and torn up margins (wound of exit).

(5) A fire-arm wound 10 c.m. x 7 c.m. bone deep on the front and lateral side of left arm just above the elbow joint. The injury caused fracture of the lower end of the humerus blackening and burning o the wound margins was present.

The uterus was bulky and of size of about 4 months gastation (pregnancy). On dissection a male baby 15 c.m. in length of about 4 months age was found in the gastational sac. In his opinion death occurred due to haemorrhage and shock and injury to vital organ consequent upon injuries Nos.1, 3 and 5 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. Probable duration between the injuries and death was immediate while between death and post-mortem examination was 14-18 hours.

6. The appellant when examined under section 342, Cr.P.C. admitted that Mst. Shameem deceased daughter of the complainant was his wife and that out of the wedlock a girl was also born. He denied the prosecution allegations and instead took up the plea which is reproduced as under:--

"I saw Mst. Shamim deceased in objectionable position with Muhammad Bakhsh son of Haji and murdered her out of Ghayrat. Muhammad Bakhsh succeeded in making good his escape. The complainant and P. Ws. were not present at the spot as well as Pari co accused. This case has been got registered against me and Pari co-accused due to enmity between the complainant and Pari co-accused as Pari co-accused had cut away the nose of Ahmad Ali complainant. "

7. The learned trial Court disbelieved the prosecution version and accepted the version posed by the accused and thereafter, convicted and sentenced the appellant.

8. I have heard the learned counsel for the appellant at length and the record has been perused and scrutinised. Learned counsel for the State has also been heard at length and she has supported the judgment and prayed that conviction and sentence be maintained as awarded by the learned trial Court as it commensurates with the offence committed by the appellant.

9. Neither the State nor the complainant has preferred any appeal or revision challenging the finding of the learned trial Court. The precise question now left to be decided is whether the sentence awarded be maintained or is it a case where the ends of justice would be met by a lesser sentence. The appellant has, however, challenged his conviction and prayed for acquittal through his appeal, which I am afraid is not permissible under the law and -is misconceived. The learned counsel has argued this case on the point that it is a case where the indulgence of the Court is required for lesser sentence as the version of the accused had been accepted in totality and the prosecution evidence has been disbelieved. He has placed reliance on a reported case titled Ali Muhammad v. Ali Muhammad' and another PLD 1996 SC 274 and submits that in the light of dictum of the Supreme Court the appellant is entitled to lesser penalty.

10. I have given my anxious thought to all what has been said and after hearing the parties I am inclined to agree with the submissions made by the learned counsel for the appellant keeping in view the aforesaid dictum laid down try the Supreme Court. I have also considered the aspect from this angle that the appellant is an uneducated young man belonging to a tribe and area where no loose conduct of a female is tolerated and family honour is relishly guarded. Furthermore, the appellant is in such an age group where tolerance is non existent and rashness is the order of the day irrespective of the ensuing consequences. If he remains in jail for a long term there is a possibility that he comes out as a hardened criminal, which is not desirable. The conviction of the appellant under section 302-C, P.P.C. is maintained. However, the sentence is reduced to five years' R.I. and the sentence awarding payment of compensation is set aside. The benefit of section 382-B. Cr.P.C. is, however, allowed. With these observations and modification the appeal is disposed of.

N.H.Q./M-405/L Sentence reduced.