This criminal appeal arises from the judgment of the learned Additional Sessions Judge, Vehari, whereby he on 7-12-1980 convicted Allah Bakhsh Appellant under section 302, P. P. C. For causing the death of Ata Muhammad and sentenced him to imprisonment for life.
2. The occurrence took place on 28-6-1977 at peshiwela in a field near Chah Jehanaywala of Chak No. 65/K. B. Of Police Station Luddan. The F. I. R. Exh. P, J. Was lodged by Allah Bakhsh P. W. 8, brother of the deceased at Police Station Luddan at 6-30 p. m. On the same day and was recorded by Abdul Hameed S. H. O. P. W.
7. The distance between the place of occurrence and the police station is 8 miles.
3. The motive as alleged by the prosecution is that Allah Bakhah appellant suspected illicit relations of the deceased with Mst. Amiran, his sister.
4. The prosecution case an-brief is that at the eventful time, the deceased was grazing his sheep when Allah Bakhsh appellant attacked him with his hatchet. The alarm raised by the deceased attracted Allah Bakhsh P. W. 8, Allah Yar P. W. 9 and Falaksher P. W. 10 to the spot and that I n their view, the appellant inflicted injuries with hatchet and when its handle was broken, he not only inflicted injuries with the handle of the hatchet but also caused injuries with his knife which he pulled out from his dub. After having inflicted injuries, the appellant made good his escape taking away the blade of the hatchet, its handle arid knife with him.
5. Dr. Wasim Akhtar P. W. 3 conducted post-mortem examination on the person of the deceased and found the following injuries :-
(1) An incised wound 1-- x 1/6 x bone deep on front and middle of chest.
(2) An incised wound 1-- x --" x bone deep half inch above of injury No.1
(3) All the upper and lower inciser teeth were dislocated from the roots.
(4) An incised wound 4-- x 1-- on the bridge of nose, the underlying nasal bone and bone of the right cheek were cut.
(5) An incised wound 1' x 1/8' X cutaneous deep on the left cheek.
(6) A lacerated wound 1--' x 1 --' on right eye-brew, underlying bone was exposed.
(7) An incised wound 3-- x 1--' on front and middle of neck extending more to left side. Left juglur vessels and left cartoid vessels were cut, trachea was also cut in middle subtotally.
(8) An incised wound 2' x --' x 1/6' on the lower surface of lower jaw.
(9) An incised wound 1/3" x --" x -- on back of right mastoid region of head.
(10) Multiple of abrasions on chest and. Trunk bank on both sides of mid--line situated longitutidinally in the area 10' X 8".
(11) A stab wound 3--' x 2 starting from front just above the umbilicus half inch to the left of mid line extending transversely to the left side. All the intestinal loops were lying outside. Intestines were cut at three places: Mesentry was injured. Paritonial cavity was containing liquid and clotted blood. The portion of intestine that was lying out was dried up and dusty. Larval stage of maggot was flowing over the wound.
In the opinion of the doctor, the cause of death was shock and haemor--rhage as a result of cut injury on the neck, cutting trachea, jugular and carotid vessels, stab abdomen with cutting of intestine and extensive injury to face, which was sufficient to cause death in the ordinary course of nature. All the injuries were anti-mortem. Injury No. 10 was caused with blunt object and the rest with sharp-edged weapon within 24 to 48 hours.
6. The appellant was arrested on 30-6-1977 and on the same day he got recovered blood-stained knife Exh. P. 4, blood-stained hatchet's blade Exh. P. 5 and blood-'stained broken handle Exh. P. 6 from a box lying in his residen--tial Sahal which were taken into possession vide memorandas Exh.
P. F, P. G. And P.- H. Attested by Zahoor Ahmad P. W. 6 and Muhammad Hussain, not produced.
7. In order to prove its case, the prosecution examined as many as 10 witnesses out of whom Allah Bakhsh P. W. 8, Allah Yar P. W. 9 and Falaksher P. W. 10 have given the ocular account of the occurrence and have supported , the prosecution case as detailed above. Zahoor Ahmad P. W. 6 and Abdul Hameed S. H. O., P. W. 7 have stated that blood-stained knife, blade of hatchet and its handle were got recovered by ~ the appellant from a box lying in his residential Sabal. The evidence of the rest of the witnesses is more or less of formal nature. The Serologist report Exh. P. O.
Indicates that these were stained with human blood. The appellant when examined under section 342, Cr. P. C. Claimed to have done away with the deceased on account of grave and sudden provocation as well as in self-defence of his person. In answer to question No. 5, i.e. "Why this case against him 7" He pleaded "In fact none of the P. Ws. Was present at that time. Later on the police and the complainant twisted the true facts and fabricated the present version to implicate me. 1 had lost control of my mind when I saw the deceased in compromising position with my sister Mst.
Amiran. Moreover, I, myself was attacked by the deceased with his hatchet which was lying nearby but I was luckily saved as during the course of attack the deceased slipped and fell down with his hatchet in such a way that I gave a stab wound swiftly with my knife. The deceased was very much furious at that time and he was more powerful than me and when he tried to get up then I snatched his hatchet and in self-defence also caused blows to the deceased because I had the apprehension that the deceased would overpower me and would murder me. Handle of that hatchet broke away and I also gave some injuries to the deceased with that wooden handle because the deceased was abusing me throughout the incident and he was also saying that in future he would commit sexual intercourse with Mst. Amiran in my presence and in my own house.
The venue is also changed by the police, in fact I caused injuries to the deceased where there was water in the field with the result that his naked body smeared with mud. I had picked up the clothes of the deceased and the weapons were wrapped into them and went to Police Station Luddan. The police had summoned the heirs of the deceased and after some bargain with them the police went to the spot and clothes of the deceased were put on the dead body. The deceased was badmash and he developed illicit connection with my sister Mst. Amiran on which I checked him but he was persisted on carry on with her. I made the same statement to police but the S. I. Abused me and asked that it was the fault of my sister and I should suffer for her immoral activities. I am a self respecting poor man and I could not pocket the insult and lost my balance of mind on seeing the deceased in compromising position with Amiran and under sudden grave provocation and also in exercise of self-defence of my own person caused injuries to Ata Muhammad deceased, when he was altogether naked. Mst. Amiran my sister succeeded to run away during the process of our scutfle otherwise she would have met the same fate. She is Zania and GOD Almighty must . Put her in hell on the day of , judgment. As I had not taken the life of the deceased intentionally so I pray that I may kindly be pardoned."
He however, did not produce any evidence in defence.
8. The learned counsel contends that the prosecution has failed to prove its case beyond shades of doubts ; that ocular evidence is not worth reliance inasmuch as the eye-witnesses are related as well as chance witnesses ; that their evidence is in conflict with the medical evidence which shows that 3 types of weapons were used in the occurrence ; that the natural witnesses who reside near the place of occurrence have not been produced by the prosecution ; that it was an unseen murder and the dead body as stated by the doctor remained unattended ; that the manner, in which the recoveries of knife, hatchet and broken handle were effected is not confidence-inspiring ; that the appellant acted under grave and sudden provocation as he found the deceased in com- -promising position with his sister and in any case there is a reasonable possibility of the plea of grave and sudden provocation -raised by the appellant being true inasmuch as it is the prosecution case that the deceased was killed on account of suspicion o#' his illicit relations with the sister of the appellant.
As against this, the learned counsel for the State has defended the judgment of the trial Court and stated that it is a case of premeditated murder and there is no possibility at all of the existence of the grave and sudden provocation at the time of occurrence.
9. I have heard the learned counsel and gone through the record with care. Since it is a case wherein the appellant has taken special plea of grave and sudden provocation, I propose to discuss the prosecution case first in order to come to an independent finding as to the truth or falsity of the prosecution case and the credibility of the evidence produced by it and after having done so I would like to examine the plea raised by the accused to satisfy myself whether the appellant has proved the plea of grave and sudden provocation raised by him and if not whether there is yet a reasonable possibility that the plea raised by the appellant might be true. After having considered the evidence produced by the prosecution in the light of critic is of the learned counsel I am inclined to believe the prosecution case and the ocular evidence produced by it for the reasons that it is a case of prompt F. I. R. The occurrence took place at peshiwela and the F. I. R.
Was lodged at 6-30 p. m. On the same day at the police station which is at a distance of 8 miles from the place of occurrence. The defence has not been able to show that the F. I. R. Exh. P.
1. Is not a genuine document or that it was not written at the time and place as it purports. I find that the manner of the occurrence as alleged by the prosecution at the trial has been given in the F. I. R.
As far the motive it is not only proved by the prosecution but the same has been admitted by the appellant.
10. Now coming to the ocular evidence, I find that the names of the eye-witnesses are mentioned in the F. I. R., that their evidence is in consonance with the probability and materially fits in with the circumstances of the case ; that they have stood the test of cross-examination ; that they have no enmity whatsoever, with the appellant and that there are no B material contradictions, discrepancies, omissions or improvements in the statements. As far the criticism made by the learned counsel I find that Allah Yar P. W. 9 and Falaksher P. W. 10 are not related to the deceased.
Allah Bakhsh, is no doubt brother of the deceased but I need not to say that mere relationship is no a ground to disbelieve a witness; that Falaksher lives at a distance of 3 acres from the place of occurrence and that Allah Bakhsh P. W. 8 and Allah Yar P. W. 9 have given reasons for their pre-- sence near the place of occurrence at the eventful time and as such they can--not be termed as chance witnesses. I do not see any conflict between the ocular evidence and the medical evidence inasmuch as the witnesses were attrac--ted on hearing the alarm raised by the deceased and as such the possibility of the infliction of injuries with handle of the hatchet before the arrival of the eye-witnesses cannot be excluded. Furthermore, the appellant has also admit--ted that he had given injuries with the handle of the hatchet. In these circum--stances, it cannot be said that since the eye-witnesses have not explained the injuries found on the person of the deceased caused by blunt weapon, there--fore, the same is not in conformity with the medical evidence. The 3 eyewit-- nesses claim to have seen the occurrence and there appears to be no reason to 0 disbelieve them, therefore, it cannot be said that this was an unseen murder. No doubt, the doctor has stated that "I agree with the suggestion that the body remained unattended after the occurrence". Strangely enough, he has made this statement without assigning any reason. I am of the opinion that in the circumstances of the case, the doctor was nobody to say that the dead body remained unattended. This part of statement, therefore, appears to be an obliging statement which has to be excluded from consideration. The ocular account finds further support from the recovery of blood- stained knife, broken handle and the hatchet's blades on the pointation of the appellant. Zahoor Ahmad P. W. 6 is an independent witness having no relationship with the complainant or any ill-will against the appellant. He lives at a distance of 60 Karams from the house of the appellant. The learned counsel has not been able to point out any flaw or infirmity in his -evidence. For all these reasons, I believe the prosecution case. Since I have not excluded the ocular evidence from consideration I proceed to examine whether the appellant has been able to prove the, plea taken by him and whether there is a reasonable possibility of its being true. I find that except the statement of the appellant there is no oral or circumstantial evidence to prove that at the time of occurrence the deceased was in compromising position with Mst. Amiran, the sister of the appellant. I further find that the following circumstances of the case rather negative the claim of the appellant that he had seen the deceased in compro--mising position with his sister:
1. Time of occurrence It is a case of daylight occurrence.
2. Place of occurrence The dead body as stated by Zahoor Ahmad P. W. 6 and Abdul Hameed S. 1. P. W. 7 was lying in a field from where Jawar crop had been cut and re--moved. It is not the case of the appellant that the deceased had either run away from the place where he was committing sexual intercourse or that he had followed the deceased. The house of Mst. Amiran is at a distance -of 4 miles from the place of occurrence. According to the statement of the appellant although the deceased and his sister were surprised by him, yet no sign of the presence of lady, for example, her Dopatta, her shoe, etc., were found on the spot. Mst. Amiran has not been injured and lastly that he did not tale plea of self-defence or grave and sudden provocation during the in--vestigation as stated by the Investigating Officer. Furthermore, as far the plea of self-defence, the appellant in his statement has stated that the hatchet was with the deceased who was not only more powerful than him but was also furious at that time. Strangely enough, he could not cause any injury to the accused. The absence of any injury on the person of the appellant belies the version of the appellant.
11. The upshot of the discussion is that the prosecution has proved it case beyond reasonable doubts and there is no possibility of existence of grave and sudden provocation or self-defence at the time of occurrence. Resultantly, the appeal is dismissed.