Muhammad Hayat (23) son of Laia, and his cousin Ghulam Hussain (27) son of Buta, residents of village Chawa, were tried by the learned Additional Sessions. Judge, Sargodha, under section 302/34 of the Pakistan Penal Code on the allegations that on 16th May 1971 at about Rotiwela they committed the murder of Muhammad deceased in the area of village Chawa in furtherance of their common intention. By judgment dated 24th September 1975 both of them were convicted on the said charge and were sentenced to imprisonment for life and a fine of Rs. 50 each or in default in the payment thereof to suffer further rigorous imprisonment for four months each. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. They have appealed.
2. Saee complainant is the cousin and bother-in-law (sister's husband) of Muhammad deceased and is a resident of village Kaleka situate at a distance of one mile from village Chawa where the occurrence took place. Mirza P. W. Is also cousin of the deceased. The brief facts of the prosecution case are that on 16th May 1971 Saee P. W. Came to village Chawa in order to attend a marriage ceremony. At about Rotiwela he went to the house of Muhammad deceased to see him. The deceased and Mir.Za P. W. Were present there. In the meantime, Ghulam Hussain appellant also came there and asked the deceased to accompany him to his house upon which the deceased went with him. A shortwhile after, Saee complainant, Mirza P. W. And Salehon (not produced) heard alarm from the house of Ghulam Hussain appellant and rushed there. On reaching there they saw that Ghulam Hussain appellant had taken the deceased into his hold and Muhammad Hayat appellant was holding him by his hair. Within their view Muhammad Hayat appellant' inflicted churri blow on the deceased which landed on his neck. They raised alarm upon which Ghulam Hussain appellant left the deceased. Muhammad Hayat appellant gave a blow on the back of the deceased. Mst. Rehmo, paternal--aunt (father's sister) of Ghulam Hussain appellant came to rescue the deceased and in this process she also sustained an injury on her hand. After the occurrence both the appellants fled away from the spot. After their departure, the eye-witnesses took the deceased in injured condition to the shop of his mother Mst. Fatima and then carried him towards Civil Dispensary Sardarpur Noon for treatment, but he expired on the way upon which they brought back the dead body to the spot. Leaving Mirza and. Salehon with the dead body, Saee complainant started for the police station to lodge the report. On the way he met Muhammad Yaqub Assistant Sub-Inspector at village Dhall at 2 p.m. And reported the occurrence to him vide Exh. P. C. On the basis of which formal F. I. R. (Exh. P. C./I) was recorded at Police Station, Bhera at 3 p.m. The same day.
3. After recording the statement Exh. P. C. Muhammad Yaqub A. S. I. Reached the spot and prepared injury-statement (Exh. P. E.) and inquest report (Exh. P. D.) of the dead body of Muhammad deceased and despatched it to the mortuary for post-mortem examination. He also prepared injury-statement (Exh. P. F.) of Mst. Rehmo and got her medically examined. Then he took some blood-stained earth from the spot and made it into a sealed parcel vide memo Exh. P. G. He arrested the appellants on 17th June 1971. He removed blood-stained shirt (Exh. P. 3) from the person of Muhammad Hayat appellant and made it into a seated parcel vide memo Exh. P. H. This appellant made a disclosure that he could lead to the recovery of a churri and consequently he led to the recovery of blood-stained churri (Exh. P. 4) from his residential kotha which was made into a sealed parcel vide memo Exh. P. J. After the investigation, the appellants were challaned.
4. On 17-5-1971 at 8 a.m. Dr. Ihsan-ul-Haq, Medical Officer, Civil Hospital, Bhera, conducted the autopsy on the dead body of Muhammad deceased and found the following injuries on it.
In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No. 1.
5. In support of its case, the prosecution examined two eye-witnesses, namely, Saee complainant and Mirza (P. W. 8). It also relied on the motive and the recovery of blood-stained shirt and blood- stained churri at the instance of Muhammad Hayat appellant.
6. The appellants pleaded not guilty to the charge. Muhammad Hayat appellant admitted having caused injuries to the deceased but gave a different version as under. * * * * Ghulam Hussain appellant stated that at the time of occurrence he had gone out. For begging and was not present at his house. No evidence was led in defence.
7. The learned trial Judge believed the prosecution evidence against the appellants and convicted and sentenced them as mentioned above.
8. The learned counsel for the appellants contended that the F. I. R. Was lodged at the spot after the preliminary investigation and false witnesses were imported at a belated stage after due deliberation. He further submitted that the prosecution version of the occurrence was highly improbable and there was sufficient material on the record to show that Muhammad Hayat accused alone had killed the deceased under the impulse of grave and sudden provocation.
3. There are two versions of the same occurrence, one pleaded by the prosecution and the other by the defence, and the only question that arises for decision in this case is as to which version is more plausible.
10. The F. I. R. Was lodged by Saee complainant. He is a resident of village Kaleka situate at a distance of one mile from village Chawa where the occurrence took place and he admitted in cross-examination that he had no special purpose at the house of the deceased and had gone there just to see him. He further stated that while going to the police station he saw the thanedar coming in a tonga near village Dhall, he stopped him and made the statement before him. On the other hand the A. S. I. Stated that he was sitting at the dera of Muhammad Hayat Lambardar at village Dhall and it was there that the complainant met him. This contradiction shows that the F. I. R.
Was not recorded at village Dhall as alleged by the prosecution and it can be safely inferred that it was recorded at the spot after preliminary investigation.
11. Saee complainant and Mirza P. W. Furnished the ocular account of the occurrence. The gist of their evidence is that on the fateful day at Rodwela they were present with the deceased at his house when Ghulam Hussain appellant came there and asked him to accompany him, upon which the deceased left him and a shortwhile after they heard alarm from the house of Ghulam Hussain appellant and on reaching there saw Muhammad Hayat appellant giving churri blows to the deceased while Ghulam Hussain appellant was holding him. According to them, the motive for the offence was that the deceased was suspected for illicit relations with Mst. Fatima alias Phapi, sister of Muhammad Hayat appellant and maternal-cousin of Ghulam Hussain appellant. Saee P. W.
Stated the Hayat appellant started suspecting the deceased about two months prior t the occurrence and Mirza P. W. Stated that there was a common talk about this affair in the village. If that was so, then one fails to under stand why the deceased accompanied Ghulam Hussain appellant who was very closely related to Mst. Phapi. There is sufficient force in the argument that if Saee complainant, Mirza P. W. And Salehon (no produced) who are very closely related to the deceased, had been present in the house of the deceased when Ghulam Hussain appellant came there to call him they would never have permitted the deceased to accompany the aforesaid appellant. Moreover, since Saee P. W. Had come from hi village to the house of the deceased in order to see him, the latter was nor expected to go anywhere leaving him (Saee) at his house. In the circumstances the presence of the eye-witnesses at the spot seems to be highly doubtful and the prosecution version that the deceased was decoyed by Ghulam Hussain appellant does not ring true.
12. Another circumstance which creates a doubt about the presence of the P. Ws. At the spot is their unnatural conduct. Saee complainant is the cousin as well as brother-in-law of the deceased, Mirza P. W. Is also cousin of the deceased and Salehon (not produced) is his uncle. Saee P. W.
Stated that they did not try to apprehend the accused. Had they been present at the spot they would not have stood like mere spectators when their close relative was being attacked before their very eyes. Ghulam Hussain appellant was empty-handed and the other was not armed with any firearm but had only a churri with him, therefore, they were expected to intervene in order to rescue the deceased. Saee and Mirza P. Ws. Claim to have escorted the deceased in injured condition to the shop of his mother. Saee P. W. Stated that the shop of the mother of the deceased was at a distance of 20/25 karam from the spot and h and Mirza P. W. Supported both the shoulders of the deceased and took him to the said shop. Mirza P. W. Admitted that blood had fallen on the way and the Investigating Officer also admitted that there was a trail of blood. There is some force in the argument that if these alleged eye-witnesses had escorted the deceased to the shop of his mother in injured condition when the blood was oozing out of the wounds, their clothes must have besmeared with blood but no such clothes were found on their persons. All these circumstances raise a serious doubt about the presence of the eye-witnesses at the spot.
13. According to the prosecution, the motive for the offence was that Muhammad Hayat appellant had a suspicion that the deceased was having illicit liaison with his sister and there was common talk in the village about this affair. In examination-in-chief Mirza P. W. Stated that on the day of occurrence Mst. Fatima (sister of Muhammad Hayat) was in the house of her father-in-law and was not present in the house of Hayat accused. Similarly, Mirza P. W. Stated that Mst. Fatima was married in village Lilayani and that she had come to the house of her father one month before the occurrence but had left it about seven days before the occurrence. They were confronted with their previous statements where these facts were not mentioned. Obviously they made this improvement with a view to meet the plea of grave and sudden provocation which Muhammad Hayat appellant had raised in the committing Court by putting certain suggestions to Mirza P. W.
The case of the defence is that Ghulam Hussain appellant was not present at the spot and Muhammad Hayat appellant alone caused injuries to the deceased on grave and sadden provocation. Muhammad Hayat appellant stated that on the fateful day he had gone to the house of Riaz son of Manak to attend his marriage ceremony but on reaching there he found that he had left his money in his house with Mst. Phapi upon which he came back to his house but found that Mst. Phapi was not there. He enquired from his blind father as to where she was and he told him that she had gone to the house of Ghulam Hussain accused. Then he went to the house of Ghulam Hussain accused and found the deceased embracing and kissing Mst. Phapi whereupon he lost his self-control and picked up a churri lying near the hearth in the courtyard of Ghulam Hussain and in the heat of passion gave blows to Muhammad deceased. He also tried to give blows to Mst. Phapi but Mst. Rehmo intervened to save her and received injuries during the process. The prosecution version that Ghulam Hussain appellant came and took him along to his own house has already been According to the F. I. R. The appellant had taken the deceased into his hold (Jhappa) when he was attacked by Muhammad Hayat appellant The eye-witnesses stated that Ghulam Hussain appellant was grappling wit] the deceased when Muhammad Hayat appellant gave him churri blows The learned counsel for the appellants contended with some justification that if Ghulam Hussain appellant had grappled with the deceased or taker him into his hold, his clothes must have been besmeared with blood but no blood stains were found on his clothes. In the circumstances his participation in the occurrence seems to be highly doubtful. Mahmood P. W.
Admitted that during the days of occurrence the father of Hayat appellant was blind and Mst.
Fatima alias Phapi used to live in his house. He also admitted that the marriage of Riaz son of Manak was solemnized on the day of occurrence and this fact is also admitted by Saee complainant It is the prosecution's own case that the deceased was suspected for illicit relations with the sister of Muhammad Hayat appellant. Mirza P. W. Stated : "People were told by Hayat accused that Muhammad deceased had illicit relations with Mst. Phapi, it was common talk of the village" All these circumstances lend support to the defence version. After giving my careful consideration to the evidence and having juxtaposed both the versions, I feel convinced that the presence of the alleged eye-witnesses at the spot is highly doubtful and probability is in favour of the view that Muhammad Hayat appellant alone had killed the deceased under grave and) sudden provocation.
14. For the foregoing reasons the conviction and sentence of Ghulam Hussain appellant is set aside and he is acquitted. He shall be set at liberty forthwith if not required to be detained in any other case. The conviction of Muhammad Hayat appellant is altered from section 302 to section 304, Part I of the Pakistan Penal Code and he is sentenced to three years--- R. I. The appeal stands disposed of accordingly.