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Criminal Appeal No. 46 of 1979,.decided on 6th March, 1983.

(On appeal from the judgment and order of Sind High Court dated 30‑1‑1979 in Criminal Appeal No. 91 of 1978).

--‑‑S. 302--Murder‑‑Sentence‑Accused till time of occurrence having cordial relations with deceased, his wife, getting annoyed on being complained against for having association with shady characters and on refusal of his wife to accompany him to his house making murderous attack on her‑Held, sentence of life imprisonment, fine of Rs. 10,000 and compensation of Rs. 1,000 would meet ends of justice in circum stances of cases‑Criminal Procedure Code (V of 1898), S. 544‑A.‑-- [Sentence].

M. Aslam Jan, Advocate Supreme Court of Pakistan for Appellant.

Raja M. Bashir, Advocate Supreme Court of Pakistan for Respondent.

Date of hearing : 6th March, 1983.

This is an appeal to consider the sentence of death passed against the accused/appellant who stood trial under section 302 and section 326, P. P. C. for causing the murder of his wife Mst. Khadijan and causing grievous hurt on his mother‑in‑law Mst. Bachal, vide judgment of the learned Sessions Judge, Tharparkar dated 12‑4‑1978. The accused/ appellant was also sentenced to 5 years' R. I. for causing injuries to Mst. Bachal.

2. According to the prosecution, the appellant was married to Mst. Khadijan about a year prior to the occurrence and she bad come to the house of her parents where another sister of bets Mst. Ghulam Fatima who was married to the brother of the appellant, was also present in order to deliver her first child, in village Budho Nambrani, and also to attend the Urs ceremonies to be held on 28‑3‑1976. The appellant went to fetch his wife and on the night of 30‑3‑1976 Mst. Khadijan deceased complained to her father that the appellant used to associate with undesirable people in his house. On the following day Lokhani, P. W. and father of Mst. Khadijan and Ghulam Qadir, her brother, left the house to attend their work. The appellant asked Mst. Khadijan to accompany him to his house but she insisted that at least 10/12 days be allowed to enable her to look after Mst. Ghulam Fatima who was expecting a child soon. The appellant got infuriated on the refusal of Mst. Khadijan to accompany him and started giving her blows with the hatchet he was carrying. Mst. Bachal, in order to protect her daughter Mst. Khadijan deceased, fell over her but the accused continued to give blows and injured his mother‑in‑law as well. Ghulam Qadir, P. W. who had returned to his house to collect some papers, witnessed the occurrence, went to Lokhani, P. W. who lodged the report with Tando Jan Muhammad Police Post at about 10 a.m.

3. The Investigating Officer A. S: I. Abdul Aziz then proceeded to the spot. He prepared the injury sheet of Mst. Bachal and sent her to Digri Dispensary for treatment, and prepared the inquest report of Mst. Khadijan who had since succumbed to her injuries, and sent her dead body for post mortem examination.

4. Dr. Muhammad Ishaque performed the post‑mortem examination and found six incised injuries on the body of Mst. Khadijan. All the injuries were caused, according to the doctor, by a sharp‑edged weapon such as hatchet and reported that each of injuries Nos. 1, 4 and 5 individually was sufficient to cause death in be ordinary course of nature. Mst. Bachal bad also six incised wounds and she remained hospitalised for 20 days. Being present in, the house at the relevant time Mst. Bachal was injured in the same incident ad gave the prosecution story as mentioned in the foregoing paragraphs. Mst. Bachal also stave reason for refusal by Mst. Khadiian deceased to accompany the appellant who took exception to it and started giving hatchet blows to the deceased and to her.

5. Mst. Ghulam Fatima sister of the deceased lent support to the prosecution case giving an ocular account of the occurrence. Similarly, Ghu4am Qadir, P. W. 5 also supported the prosecution version as an ocular witness. Lokhani, P. W. 4, father of the deceased lodged the report of the occurrence. He was not present in the house as he had left for his duty where he was informed by his son Ghulam Qadir about the occurrence. He rushed to his house where he found his wife Mst. Bachal lying unconscious and daughter Mst. Khadijan lying murdered. He went to the police post and lodged the report. Jammo, P. W. 7 also gave ocular account of the occurrence.

6. Accused/appellant when examined, denied the commission of the offence and stated that he has been falsely implicated by the prosecution witnesses on account of their ill‑will against him and added that before his marriage with deceased Khadijan she was betrothed to Muhammad brother of P. W. Nur Muhammad and later on that engagement was broken and she was married to him. This had annoyed Mst. Bachal his mother‑in‑law and her son Ghulam Qadir, P. W. and, therefore, they implicated him in the murder of Mst. Khadijan deceased.

7. Learned counsel laid emphasis on the fact that though the leave granting order aims at the consideration of the quantum of sentence, it gives him the right to re‑open the case on the merits as well and seek the acquittal of the accused/appellant, and referred to the case‑law on the subject. We have gone through the leaving granting order and find that the two learned Judges have granted leave to consider the question of adequacy of sentence only.

8. In the interest of justice we allowed the learned counsel to address the Court on the question of deficiency of prosecution evidence brought on the record against the accused/appellant. His argument to brush aside the statements of the ocular witnesses is devoid of any substance and the reasons are not far to seek, the occurrence took place inside the house of the complainant where the natural witnesses would be his wife Mst. Bachal, daughter Mst. Ghulam Fatima and son Ghulam Qadir as well as other witnesses from the neighborhood. The accused/appellant offered no satisfactory explanation or evidence as to why these witnesses denounced him as the culprit instead of real guilty one. Mst. Bachal, P. W. who was injured with a sharp‑edged weapon had sufficient long cuts across her body which tallied with the weapon like hatchet allegedly used by the accused. Thee learned counsel lastly contended that it was a case where the extreme penalty of death was not called for. The accused if at all, committed the offence strain and provocation caused to him by his in‑laws ; that decease Mst. Khadijan had made a serious charge about his character by alleging that he associated with bad characters of his village which was reason enough to provoke him. We have considered this aspect of the case and find that the accused/appellant who had till the time of occurrence, cordial relations with his wife, had no reason to resort to such a murderous attack on her that it only occurred when the deceased had made a complaint to her father about the alleged association of the accused with shady characters, and the appellant learnt about it. He then asked the deceased to accompany him the following morning to his house and on her refusal he got annoyed. Thus, we consider that sentence of life imprisonment and fine of Rs. 10,000 in default 3 years' R‑ I. and Rs. 1,000 as compensation under section 544 A, Cr. P. C. in default 6 Months R.I. would meet the ends of justice. The total amount of fine, if recovered be paid to the heirs of the deceased. Benefit of section 382-B, Cr.P.C to be extended to the appellant.

Order accordingly.

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