NASIR ABBAS Versus State

MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J .---Appellant was tried by Additional Sessions Judge, Jhang for the murder of one Fazal Abbas in case F.I.R. No.88 of 1998, dated 2-5-1998 for the offence under section 302, P.P.C. registered at Police Station Garh Maharaja, District Jhang, who vide judgment, dated 11-4-2000 convicted the appellant under section 302(b), P.P.C. and sentenced him to death. Appellant was also directed to pay Rs.50,000 (Rupees fifty thousand) as compensation to the legal heirs of the deceased.

Feeling aggrieved by the impugned judgment, appellant has filed the instant appeal through jail i.e. Criminal Appeal No.94/J of 2000. Trial Court also made a Reference i.e. Murder Reference No.304 of 2000 for confirmation of death sentence awarded to appellant. Both these matters are being disposed of together by the single judgment.

2. In brief the case of the prosecution as set down in the F.I.R. is that on 2-5-1998 in the evening the complainant along with Fazal Abbas were going on their Motorcycle No.5612/JGB Yamaha 100 CC from their land in Chah Nawan towards their house, when at about 6-20 p.m. they reached Chah Khajiwala, and got down from the motorcycle to cross the water channel. In the meantime, Nasir Abbas appellant being armed with .7 nun rifle emerged there and while raising Lalkara fired at Fazal Abbas, which hit him on the left shoulder and pierced across his chest. Fazal Abbas fell down. In the meantime, Nazar Abbas and Kalb Ali, who were passing nearby came to the spot, while witnessing the occurrence. Seeing these P.Ws., Nasir Abbas appellant fled away from the spot while brandishing his rifle. Statedly Fazal Abbas succumbed to the injuries at the spot.

The motive behind the occurrence was that the appellant had a suspicion that Fazal Abbas had cultivated illicit relationship with his wife. Allegedly on account of this anguish and grouse the appellant had committed the murder of Fazal Abbas.

3. The matter was reported to Noor Muhammad, S.-I. P. W.10 by complainant Ghulam Abbas. The Police Officer conducted the formal investigation and after complying with legal formalities submitted challan before the trial Court where prosecution produced ten witnesses including Ghulam Abbas complainant P.W.5 and Nazar Abbas P.W.6 being eye-witnesses of the occurrence to prove the charge against the appellant.

5. (sic) Learned trial Court also examined appellant under section 342, Cr.P.C. In response to the question "why this case was registered against you and why the P.Ws. have made statements to involve you in this case?" appellant made the reply which reads as follows:--

"The P.Ws. are related inter se and biased against them. None of them was present at the spot. The deceased was a debauch and vagrant. In my absence he wanted to take my wife to fulfil his lust at some other places. I and Anwar Awan were present with Baba Fazal Abbas, who lives nearby my house. I took licensed weapon of Anwar Awan to my house and saw my wife missing. As I come to my house and saw Fazal Abbas deceased taking my wife on motorcycle for fulfilling of his lust, I lost my head on account of Ghairat and provocation and to save my honour, I fired at Fazal Abbas. It was at 9/10 p.m. I took Anwar Awan with me and surrendered before police. The police called the complainant from his house and netted me in the case."

Neither appellant made any statement under section 340(2), Cr.P.C. nor produced any evidence in his defence.

Learned trial Court after appraisal of evidence vide judgment dated 11-4-2000 convicted and sentenced the appellant as narrated earlier.

6. At the very outset, learned counsel for the appellant did not challenge the conviction and had prayed for reduction of sentence on the grounds that appellant had committed the murder under grave and sudden provocation and that he had caused only a single injury. Learned counsel for the State while supporting the impugned judgment vehemently opposed the arguments raised by counsel for the appellant.

7. Heard. File perused.

Since the appellant had admitted the occurrence, thus, there is no need to discuss the ocular account and the only question for determination is the quantum of sentence of the appellant.

From the very beginning the case of the prosecution was that appellant had committed the murder of Fazal Abbas deceased as he suspected illicit relations of his wife with the deceased. While making statement under section 342, Cr.P.C. the appellant also took the same plea and stated that on the day of occurrence he took the rifle of one Anwar Awan from his house and on seeing the deceased taking away his wife on the motorcycle, he lost his self-control and under grave and sudden provocation made a single fire shot at the deceased. We have observed that Investigating Officer Noor Ahmed P.W.10 during the cross-examination had admitted that place of occurrence is 9/10 Karams from the house of the appellant. He also admitted that weapon of offence was a licensed rifle of one Anwar Awan. As it is established from the record that it is a case of family honour, thus, award of capital sentence of the appellant is not justifiable. According while dismissing this appeal, sentence of the appellant is converted to imprisonment for life with the benefit of section 382-B, Cr.P.C. However, the appellant shall pay the compensation to the legal heirs of the deceased on the same terms and conditions as fixed by trial Court.

Murder Reference i.e. Murder Reference No.304 of 2000 is answer in the Negative and death sentence of Nasir Abbas is not confirmed.

H.B.T./N-104/L Sentence reduced.