' MUHAMMAD FARRUKH MAHMUD, J.-This judgment will dispose of Criminal Appeal No, 12-J of 2003 filed by Muhammad Sharif, who was convicted and sentenced by the learned Additional Sessions Judge, Faisalabad, in case F.I.R. No,573, registered at. Police Station Sargodha Road, Faisalabad on 16-11-1999, for offences under sections 302/*34, P.P.C., vide his judgment dated 17-10-2001 as under:- ' "Death with compensation of Rs, 1,00,000 or in default six months S.I. Under section 302(b), P.P.C.
' Murder Reference No,777 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as described in the F.I.R. Exh.P.A./l are (hat on 15-11-1999 at about 5-00 p.m.
Khalid Hussain and Babar Hussain came to the house of complainant and asked Muhammad Aleem to accompany them for settlement of the money dispute between Muhammad Sharif and Muhammad Aleem at the house of Muhammad Sharif situated in Mohallah Rehmatabad.
Muhammad Aleem accompanied them to Mohallah Rehmatabad and did not return till 11-30 p.m.
The complainant got worried and along with Zulfiqar Ali and Muhammad Aslam went to the house of Muhammad Sharif, Mohallah Rehmatabad at about 12-30 p.m. (night). When they reached there they saw that Babar Hussain and Khalid Hussain had caught hold of Muhammad Aleem by his arms and legs, while Muhammad Sharif cut the throat of Muhammad Aleem and thereafter inflicted six Chhurri blows on his person. The complainant and the P.Ws. Witnessed the occurrence and attended to Muhammad Aleem, who succumbed to the injuries at the spot. Thereafter the accused fled away from the scene of occurrence.
' The motive behind the occurrence, as vset down in the F.I.R., was that Muhammad Aleem- deceased and Muhammad Sharif-accused were jointly running a hotel at Lari-Adda, which business after some time, came to an end and a money dispute arose between them.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Ashraf, A.S-I./P.W.10. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.E. And ihquest report Exh.P.F. He took into possession bloodstained earth from the spot vide memo. Exh.P.B. On 2-12-1999 he arrested Muhammad Sharif-accused. While in custody, Muhammad Sharif led to the recovery of bloodstained Chhurri P.l and secured the same vide memo. Exh.P.C. P.W. 10 also arrested Khalid Hussain and Babar Hussain on 16-1-2000. During investigation P.W. 10 found Babar Hussain .And Khalid Hussain to be innocent and placed them in column No,2 of the Challan. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.L. And Exh.P.M. And that of Serologist Exh.P.L./I and Exh.P.M/1., regarding bloodstained earth and Chhurri respectively, closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and took a specific defence plea, which is being reproduced hereunder for ready reference:- ' "I am innocent. The factual position is that the deceased was a man of immoral character. He abducted Mst. Shamim the sister of my wife (since dead) earlier to the present occurrence. She was recovered from his possession through hectic efforts with the help of my co-accused Babar Hussain and Khalid Hussain and other respectables. He has also subjected her to Zina bil Jabr during the period she remained with-Jiim due to this the deceased and other his brothers P.Ws. In this case had nursed a grudge against Khalid Hussain and Babar Hussain accused as the P.Ws.
Were also reprimanded over the taking and return of Mst. Shamim aforementioned. In addition to that Muhammad Aleem deceased after the return of said Shamim, started having an evil eye over my wife (since dead) Mst. Nasreen. After coming to know this fact, I tried to check him from this nefarious design. On the eventful .Night Muhammad Aleem deceased by climbing over the wall of my house trespassed into my house Criminally and tried to commit Zina bil Jabr with my wife Mst.
Nasreen after breaking string of her Shalwar when I was lying inside the room of my house. On hearing the alarm, I found the deceased trying to commit Zina bil Jabr (rape) with my wife who was lying ori" a cot inside the waranda in front of the room where I was lying. 'I was deprived over my senses and lost control over me, I picked up a Chhurri from nearby and caused injuries to Muhammad Aleem deceased under grave and sudden provocation. I had not committed the murder of said Muhammad Aleem intentionally and this occurrence was the result of above mentioned situation. No P.Ws. As produced by Jhe prosecution had witnessed this occurrence. The P.Ws. Have been set up afterwards by the police to strengthen this case. In fact immediately after the occurrence Muhammad Ali son of Anwar whose house was adjacent to me came to my house who held me there and produced me before the police immediately after the said occurrence. I was not arrested in the manner as shown by the police papers. Muhammad Arif who is the landlord of my house is also in know of the said facts. Khalid Hussain and Babar Hussain accused were not present at the place of occurrence and they never participated in the present commission of offence. They have been involved also with ulterior motive by the eye-witnesses. This is an unwitnessed occurrence which took place as a result of Ghairat being husband of Mst. Nasreen who died later on. My case falls within the exception pertaining to self-defence and I had a right to cause injuries to the deceased while availing my self-defence and to vindicate the safety of my family and to save my wife from the clutches of the deceased. I may kindly be acquitted from the case in hand, in a peculiar circumstance mentioned above. "
' He did not appear as witness under section 340(2), Cr.P.C" However, in support of his defence plea the appellant produced Muhammad Arif as D.W.I.. After conclusion of trial the appellant was convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that all 'the eye-witnesses were chance witnesses and related to the deceased; that there was inordinate delay in reporting the matter to the police; that the defence plea was borne out from the circumstances of the case and was also supported by the evidence of Muhammad Arif D.W.l, who was natural witness being landlord of the house where the appellant lived; that from the very outset the appellant has taken the plea of grave and sudden provocation; and that it is not a case of capital punishment.
6. The learned counsel appearing on behalf of the State have frankly conceded that the defence plea was borne out from the circumstances of the case.
7. ' We have heard the learned counsel for the parties and gone through the record minutely. It is a case of two versions. The appellant has taken specific plea of grave and sudden provocation. Both the versions are to be put in juxtaposition to ascertain, which of the two is true or nearer to the truth. According to prosecution case, Khalid Hussain and Babar Hussain (acquitted co-accused) went to the house of the complainant at about 5-00 p.m. And asked Muhammad Aleem-deceased to accompany to the house of Muhammad Sharif-appellant for the purposes of settling the accounts with him. Muhammad Aleem went along with Khalid Hussain and Babar Hussain to Mohallah Rehmatabad. He did not return till 11-30 p.m. Hence the complainant, his brother Zulfiqar/P.W.4 and Muhammad Aslam P.W.3 went to the house of Muhammad Sharif, they reached there at 12-30 a.m. (during night). They saw that Babar Hussain and Khalid Hussain were holding the arms and feet of Muhammad Aleem while Muhammad Sharif was cutting the throat of Muhammad Aleem with Chhurri. Thereafter Muhammad Sharif inflicted six more injuries with Chhurri on different parts of the body of Muhammad Aleem, who died at the spot. All the three witnesses resided at distance of one and half miles from the place of occurrence.
As against F.I.R. The witnesses made improvements in their statements before the learned trial Court and stated that after waiting for Muhammad Aleem till 11-30 p.m. The complainant went to Wagan Adda and met Muhammad Aslam and Zulfiqar, who were sitting in a hotel. The complainant narrated the story to the two witnesses. Thereafter the complainant and P.Ws.
Boarded a wagon and reached the house of the appellant. All the three eyewitnesses reached the spot per chance exactly at the time of infliction of injuries. Muhammad Aslam P.W.3 stated that he and other P.Ws. Proceeded towards Hajiabad in a wagon, which was being driven by him. He further stated that distance between hotel and Hajiabad was about 4 k.m. He did not know the name of Mohallah where the house of Muhammad Sharif-appellant was situated. Furthermore, he stated that he parked the wagon at 1-1/2 Killa away from the house of Muhammad Sharif. No reasonable explanation is available on record as to why wagon was stopped at distance of 1-1/2 Killa from the house of Muhammad Sharif and why not just in front of the house of appellant. He also stated that they reached Boley di Jhugi (where written complaint was given to Muhammad Ashraf, S.-I./P.W.10) at about 2-00 a.m. Muhammad Rafiq complainant/P.W.2 stated that distance between Rehmatabad, where the occurrence took place and Boley di Jhugi where the complaint was handed-over to the S.-I., was about 1 K.m. He further stated that he left for police station from the place of occurrence after 5/10 minutes of the expiry of Muhammad Aleem. According to him, he reached Boley di Jhugi at about 1-45/2-00 a.m. He further stated that he got recorded Exh.P.A. From a stranger on the instructions of Thhanedar. According to doctor/P.W.7, the deceased lost his life immediately after receipt of injuries. It means that the complainant left the scene of occurrence at about 1-00 a.m. According to P.W.3, distance between Boley di Jhugi and the spot was 4 k.m. While according to P.W.2 it was 1 k.m. In any case the distance could easily be covered within ten minutes, as the complainant and P.Ws. Were having the facility of wagon. On the contrary, P.W.3 stated that they reached Boley di Jhugi at 2-00 a.m., while P.W.2 stated that they reached there about 1-45/2- 00 a.m. The B statements of the P.Ws. Are belied by the time written on the complaint Exh.P.A., according to which, the complaint was received by Muhammad Ashraf S.-I./ P.W.10 at 4-00 a.m.
And the case was registered at police station at 4-10 a.m. Muhammad Ashraf S.-I./P.W.10 stated that Muhammad Rafiq complainant had presented application to him at 2-00 a.m. But he could not explain at all as to why the time of receiving the application was mentioned as 4-00 a.m. P.W.10 admitted that in column No,3 of the inquest report the time of receipt of information of death and occurrence was mentioned as 12-30 during night on 16-11-1999, It is also noteworthy that the matter was not reported at the police station rather S.-I. Met the complainant per chance at the place near to Thhana. It is common knowledge that such C like F.I.Rs, are recorded after visit of the spot.
Hence the F.I.Rs, which are not recorded at the police station suffer from inherent doubt that those were recorded after deliberations. It is too much of al c chance that the appellant kept waiting for the arrival of the eye-witnesses till 12-30 a.m. The P.Ws. Also made dishonest improvements in their statements during trial in order to bring their statements in conformity with the medical evidence D regarding the number of injuries and they were duly confronted with their earlier statements.
According to doctor/P.W.7, he conducted post-mortem examination on the dead body of Muhammad Aleem on 17-11-1999 at 9-00 a.m. According to his opinion the post-mortem was conducted within 12 hours of death. During cross-examination he explained that probable time between death and post-mortem could be one hour less or more. It means that the death might have occurred at about 8-00 p.m. Or 10-00*p.m. And not at 12-30 a.m. In the above noted circumstances, we have come to the conclusion that the P.Ws. Were E not present at the time of occurrence.
8. As far as the motive is concerned, no independent witness has been produced to support the same. The learned trial Court acquitted Babar Hussain and Khalid F Hussain co-accused, who according to complainant had taken the deceased along with them for settlement of account. No appeal against their acquittal has been filed.
9. Now we left with the defence plea. Muhammad Ashraf S.-I. /P.W.10 admitted that the defence plea was in accordance with the first version of the accused recorded by him soon after his arrest.
He further admitted that neighbours of the appellant were joined in the investigation of the case, who stated before him that at the time of occurrence only Muhammad Sharifappellant was present in the house. He further admitted that Ali Muhammad, who was also neighbour of the appellant, stated before him during investigation that Muhammad Sharif was alone in the house and a dead body was lying in the veranda; and that except for Muhammad Sharif no one else was there. Similar deposition was made by Muhammad Arif D.W.1, in whose house the appellant used to live as tenant. Muhammad Rafiq 1.W.2 during cross-examination admitted that name of wife of the appellant was Mst. Nasreen and that Mst. Naseem sister of Mst. Nasreen was wife of his brother Muhammad Saleem. He also admitted that Mst. Shamim, who was allegedly earlier abducted by the deceased, was sister of Mst. Nasreen wife of appellant. He conceded that Muhammad Aleem- deceased was unmarried. The appellant produced Muhammad Arif (owner of the house) as D.W.1, in his defence, who stated on oath according to defence H plea of the appellant. He was subjected to lengthy cross-examination but no dent could be caused in the veracity of his statement. As noted above, the Investigating Officer admitted the presence of D.W.1 at the time of occurrence.
The defence plea is supported by the oral evidence as well as I circumstances of the case. Hence, we have no qption but to accept it.
10. The upshot of the whole discussion is that we alter conviction of the appellant to offence under section 302(c), P.P.C. And reduce his sentence to 10 years' R.I. In view of acceptance of the defence plea, the order passed by the learned trial Court under section 544-A, Cr.P.C. Is set aside. Reliance is placed on the case of Meraj Begum v. Ejaz Anwar and Others PLJ 1981 SC 435 (sic). Benefit of section 382-B, Cr.P.C. Is given to the appellant.
11. This appeal with the above modification in the sentence is partly allowed.
12. Murder reference is answered in the negative. Death sentence is not confirmed.