ATAULLAH SAJJAD, J.-The appellant was tried for the murder of Ghulam Hassan his co-villager and was sentenced to death by Mr. Saeed Ahmad, Additional Sessions Judge, Multan, who was in Camp at Dera Ghazi Khan. The matter is also before us under section 374 of the Criminal Procedure Code.
This order will dispose of the appeal as well as the murder reference.
2. The case of the prosecution is that the appellant had suspected a liaison between Mst. Phapal his wife and Ghulam Hassan deceased. The spouses had separated over a year before the occurrence and at the relevant the the woman was living with her brothers at Chah Dilshadwala.
The deceased met Ghulam Husain (P. W. 6) whose father is his cousin, in Choti Town. Ghulam Husain P. W. Had gone there to purchase penicillin drops as his daughter was suffering from eyesore. The deceased had gone to Choti to purchase mithas (sweet citrus fruit) for his wife. They were on the \N-ay back to their village which is at a distance of three miles from Choti. They had reached the Basti of Jalal Hussain after covering a distance of one and a half mile, when they came across Fida Husain who was examined as C. W.
1. Ghulam Hassan deceased kept on traversing his way while Ghulam Husain P. W. Stopped to converse with Fida Husain. After a minute or so both of them heard an alarm raised by Phulam Hassan deceased. They reached the place of occurrence and found that Gul Sher appellant was giving hatchet blows to the deceased. Ghulam Akbar (P. W. 7) a nephew of the deceased and Rahim Bakhsh (P. W. 8) a cousin of the deceased came from the opposite side. The witnesses rushed to the place of occurrence. On seeing the witnesses, the appellant took to his heels. He was given a chase and was over--powered and caught at a distance of one acre. He was tied with his turban and the blood-stained hatchet was snatched from him. He was brought back to the place of occurrence. In the meantime, Ghulam Hassan had succumbed to his injuries. Ghulam Husain (P. W. 6) left Ghulam Akbar (P. W. 7), Rahim Bakhsh (P. W. 8) and Fida Husain (C. W. 1) at the place of occurrence to guard the appellant and the dead body and after taking the blood-stained hatchet with him proceeded to the Police Station. The F. I. R. Exh. P. A. Was recorded by S. 1. Ghulam Rasul (P. W. 9) in Police Station, Choti to the dictation of Ghulam Husain P. W. At 6-30 p.m. The Sub-Inspector also took into possession the blood-stained hatchet and sealed it into a parcel.
3. The Investigating Officer reached the spot at 8-30 p.m He found Gul Sher appellant tied with his turban. He also found that the shirt and the chaddar of the appellant were blood-stained. He took these clothes into possession and sealed them into a parcel. He also took into possession the blood-stained earth from the spot. Two chaddars, one of Ghulam Husain (P. W. 6) containing the penicillin tube and to pears and the other belonging to the deceased containing one dozen of mithas were also taken into possession. The blood-stained earth, the blood-stained clothes of the appellant and the hatchet were sent for Chemical Examination. The Serologist's report showed that they were stained with human blood.
4. The autopsy on the dead body was conducted by Dr. Abdul Ghaffar (P. W. 1) Medical Officer, Choti, on 11th of October 1967, at 7 a.m. It has seven incised wounds on it. Injury No. 1 measured 5" x 4" above the right ear under which the bone was completely cut of and the brain matter was protruding out. Injury. No. 3 measured 7" x 2" and had resulted in the cutting of the ear and the neck below the ear. Both were found to be individually fatal in the ordinary course of nature. The temporal bone under injury No. 3 was found cut. Other injuries were simple, except No. 6 which was grievous. Death according to the doctor was instantaneous and had been caused due to haemorrhage and shock resulting from injuries Nos. 1 arid 3.
5. Apart from giving the eye-witnesses account of the occurrence, Ghulam Husain (P. W. 6) and Ghulam Akbar (P. W. 7) testified also to the motive part of the prosecution story. There is some difference in their statements about the the when suspicion arose, in the mind of the appellant with regard to the illicit intimacy between his wife Mst. Phapal and the deceased. While Ghulam Hussain P. W. Stated that he came to know of the suspicion a year before the occurrence, Ghulam Akbar P.
W. Stated that for the last to or three years the appellant had suspected his wife of having illicit relations with the deceased. In view of the fact that the appellant himself stated that he killed the deceased when he found his wife and her paramour in a compromising position in the jungle, we need not dilate any more on this aspect of the case and we hold that the prosecution have successfully shown that the motive alleged for the offence is correct.
6. The defence taken by the appellant was that he killed the deceased as a result of grave and sudden provocation when he found his wife in a compromising position with the deceased. It is his case that after killing the deceased he himself went to the Police Station and produced the hatchet P. 1 there.
7. As stated above, the eye-witnesses produced by the prosecution in this case are related to the deceased. Ghulam Hussain (P. W. 6) professed to have accompanied the deceased from Choti.
The other to witnesses were going from their village to Choti to purchase Barsim seed. The only other person who could be considered as natural witness is Fida Husain (C. W. 1) whose house is at a distance of eighteen karams from the place of occurrence. He was declared hostile before the Committing Magistrate as he did not support the prosecution story in its entirety and further stated that the appellant ran away from the spot and concealed himself in the bajra crop and was not arrested by them. At the trial, he was examined as a Court witness and he gave substantial support to the version of the prosecution stating that he had seen the appellant inflicting injuries on the deceased and that the appellant was caught red-handed at the spot. He, however, admitted in cross--examination that his brother had murdered the father of the appellant and was sentenced to transportation for life by the Sessions Judge but was acquitted in appeal. This witness is definitely inimical to the appellant. He gave conflicting stories before the Committing Magistrate and the Sessions Court. We think that the learned Additional Sessions Judge rightly rejected his testimony.
8. As for the other eye-witnesses, it has been contended before us that the coming together of the .Relatives of the deceased by chance at the place of occurrence is a circumstance to good to be believed. It is also pointed out that Ghulam Akbar and Rahim Bakhsh were' not unanimous regarding the acreage and the amount of money that they had in their possession for the purchase of the seed and the number of the empty bags. These discrepancies were brought to the notice of the learned Additional Sessions Judge who thought that they were to trivial to be taken notice of. We do not agree. The testimony of a chance witness is to - be subjected to a more severe examination than that of a natural witness and the Court has to come to a positive conclusion after weighing its pros and cons that he was in all probability present at the spot. It is an admitted position that the witnesses do not belong to the vicinity where murder took place arid it was just by a chance that they came together. The learned trial Court thought that the recovery of the tube of penicillin and the mithas lent corroboration to the assertion of Ghulam Husain P. W. That he was an eye-witness of the occurrence. We do not think so. The recovery of these articles will only show that Ghulam Hussain P. W. Might have gone to Choti to make these purchases, but that he was present at the spot arid had seen the occurrence, is not borne out by the recovery of these articles. It is the prosecution story that Ghulam Husain and Ghulam Akbar P. Ws. Had caught hold of the appellant by clasping him in their arms. His clothes were admittedly soiled with blood but it is strange that in their struggle to catch hold and overpower the, appellant the clothes of these to witnesses remained untainted with blood. Further, it is the statement of Rahim Bakhsh that Ghulam Hussain had snatched the hatchet from the appellant. On the other hand, Ghulam Akbar stated that the appellant had himself thrown the hatchet on the ground.
9. A significant admission was made before the committing Magistrate. By Fida Husain (C. W. '1) who, as we have seen, is not to friendly to the appellant. He stated that the appellant was not arrested at the spot. This lends colour to the assertion of the appellant that he was not arrested at the spot and had himself gone to the police station to report the matter.
10. The-house of the deceased is stated to be one mile from the place of occurrence. We have seen that Chah Dilshadwala, where Mst. Phapal resided with her brothers, is at a distance of one kills from Chah Jadewala in the area whereof this occurrence took place. It may, therefore, be possible to say that the deceased had come from his house to see his mistress. The house of the appellant is at a distance of four to five acres from the place of occurrence and he might have surprised his wife and her paramour while they were indulging in love. Mst. Phapal was not medically examined nor was she produced at the trial.
11. The recovery of a, dozen of mithas does not necessarily prove that Ghulam Hussain deceased had gone to Choti and had purchased these mithas. They might have been purchased by Ghulam Husain (P. W. 6).
12. We, therefore, hold that the possibility that the witnesses who claimed to have seer, the occurrence, were not present at the spot and learnt about the occurrence afterwards cannot be ruled out. Having become doubtful of the presence of the eye-witnesses at the the of occurrence, we have. No alternative but to fall back on what the appellant stated at the trial. We have to accept his version in the circumstance of the case. We, therefore, set aside his conviction under section 302 of the Pakistan Penal Code and convert it to and under section 304, Part 1, P. P. C. We sentence him three years' rigorous imprisonment. We do not confirm the sentence of death.