KRIZAR HAYAT, J.---Noor Muhammad son of Muhammad, Caste Gabol was tried alongwith Wazir son of Sohanra for the murder of Pullu by the Additional Sessions Judge, D. G. Khan, who by his order dated 17th May, 1980, acquitted Wazir but convicted Noor Muhammad under section 302, P.P.C. And sentenced him to death and a fine of Rs. 3,000 or default to undergo two years' R.I. Noor Muhammad has filed appeal against his conviction and sentence to this Court, and the trial Court has also sent the proceedings under section 374, Cr. P.C. For confirming the death sentence of Noor Muhammad. We propose to dispose of the appeal as well as the reference by this single judg-- ment.
2. The incident had taken place at Dhalli Assarwela on 31st January, 1979 near the tube-well of Tauqir Hussain Shah on a pathway in the vicinity of village Fatehpur at a distance of about 12 miles from Police Station Rajanpur formerly in district D.G. Khan. The F. I. R. Exh. P.C. In this case was lodged at the Police Station by Balochan (P.W.6) Brother of Pullu deceased the same day at 10 p.m., recorded by Sardar Muhammad S.-I. (P. W. 9).
3. Briefly facts of the case as disclosed in the F. I. R. Exh. P. C. Are that Balochan complainant used to reside in village Fatehpur and Pullu deceased in village Darkhast Haji Muhammad Khan. On the day of occurrence, Balochan P.W. Went to village Fatehpur for purchasing sundry articles. There he met Pullu who had come there to get medicine for his ailing son Faiz Bakhsh aged 2 years. Both the brothers started for the back journey together. At Dhalli Assarwela, they were passing near the tube-well of Tauqir Hussain Shah on its southern side when Noor Muhammad appellant armed with hatchet and his co-accused Wazir (since acquitted) empty handed came running from behind and over--took them. The appellant raised a lalkara that he would not let Pullu go alive.
Balochan and Pullu cried for help which attracted Ghulam Rasul (P.W. 7) and Mir Hazar (P. W. 8) who were also returning home after making purchases from Fatehpur. They tried to intervene but were kept at by by the appellant by issuing -threats to their life. Within their view Wazir (acquitted co-accused) took Pullu in his grip while Noor Muhammad appellant struck him thrice on the head with a hatchet and the fourth blow landed a little above his right eye and he fell down with his face downward. In that position, the appellant gave him another hatchet blow on his back and then disappeared. Pullu succumbed to his injuries, then and there.
4. The motive for the crime was stated to be that the deceased had abducted the appellant's mother Mst. Raji some 11 years before and was living in adultery with her since then.
5. Having registered the case the S. I. Took up the investigations in the case. The appellant was produced before him the same day, whom he arrested. He removed the appellant's clothes namely shirt P. 4 and Chaddar P. 5 as they were stained with blood and seized them after making their parcel vide memo. Exh. P. H. Later, the appellant got recovered a blood-stained hatchet P. 6 from his residential kotha. It was sealed and secured under memo. Exh. P. J., attested by Balochan (P.W. 6) and Ghulam Rasul (P. W. 7). The appellant had two injuries on his person, therefore, he was got medically examined vide report Exh. P. B.
6. It may be mentioned that the blood-stained earth, blood-stained clothes Exh. P. 4 and Exh. P. 5 of the appellant and blood-stained hatchet P. 6, though sent to the Chemical Examiner, their relevant reports were not produced at the trial.
7. Dr. Hasnain Pitafi, Medical Officer, Jampur (P. W. 1) conducted post-mortem examination on the dead body of Pullu deceased and noted the following injuries :-
(1) An incised wound 7" x 1" x cutting the second and third lumber vertebrae, spinal cord on the back of abdomen.
(2) Incised wound 1" x --" x --" on right side of forehead.
(3) An incised wound 4" x 2" x bone deep semi-circular on top of right head.
(4) An incised wound 2" x 1" x bone deep on top of left side of head.
(5) An incised wound 6" x 1" x injuring the brain on back of middle of bead.
(6) A bruise 2" x 1" on nose fracturing the nasal bone.
8. On internal examination the doctor found all the internal organs mentioned above as healthy. In his opinion all the injuries were anti--mortem. Injury No. 6 caused by blunt weapon was grievous.
Rest were caused by sharp-edged weapon. Of them injuries Nos. 1 and 5 were fatal and the- remaining were simple. Death occurred due to shock and haemorrhage produced by injuries Nos. 1 and 5, which were sufficient to cause death in ordinary course of nature. Duration between injuries and death was "instantaneous" and between death and post-mortem was 16 to 18 hours.
9. On the same day, the same doctor examined Noor Muhammad appellant medically and noted following injuries on his person
(1) An incised wound 2" x --" on back of left hand.
(2) An incised wound 1" x --" x --" on back of thumb of left hand.
They were caused by sharp-edged weapon within 18 hours vide medico legal report Exh. P. B.
10. The prosecution examined 9 witnesses in all, in support of its case, at the trial. The ocular account has been furnished by Balochan (P. W. 6) first informant, brother of the deceased, Ghularn Rasul (P. W. 7) a caste-fellow of the deceased, and Mir Hazar (P. W. 8) who is not connected with the deceased in any manner whatsoever. The evidence of motive has been provided by Balochan (P. W. 6) ; the medical evidence is provided by doctor Hasnain Pitafi (P.W. 1) and Sardar Muhammad S.-I. (P.W. 9) gave different stages of the investigation.
11. It may be stated here that incriminating recoveries of weapon of offence hatchet P. 6 and clothes .Of the appellant P. 4 and P. 5 have been admitted by the appellant.
12. The appellant when examined under section 342, Cr. P.C. Raised special pleas of "grave and sudden provocation" and "self-defence". When asked the question; "why this case against you", he made the following reply :- ---I am innocent. Actually I had a chance meeting with Paloo deceased on the fateful day while we came across to each other. The deceased taunted me saying that he is committing adultery with my mother and that I should ask my father to divorce her so that he may be in a position to solemnise marriage with her. On hearing the same, I abused him because I was provoked. He dealt a hatchet blow aiming on my head, I warded the same on my left hand and simultaneously gave him hatchet blow in my self-defence. Had I not inflicted him injuries, he would have done away with my life. None of the P. Ws. Was present there. Even Wazir co-accused was also not with me at that time.---
13. We have heard the learned counsel for appellant, as well as for the State and also perused the record with their assistance.
14. Learned counsel for the appellant argued that the ocular evidence is not trustworthy for the eye-witnesses are chance witnesses who had no plausible reason to be present at the spot at the relevant time; that their evidence is bristled with grave discrepancies and is also in conflict with the medical evidence inasmuch as injury No. 6 caused with blunt weapon involving fracture of nasal bone of the deceased remained unexplained which suggested that they did not see the occurrence. Lastly, he argued that if the ocular evidence in this case is discarded there would then remain the statement of the appellant alone in the field, which must be accepted and the appellant be acquitted.
15. On the other hand learned counsel for the State submitted that in view of the pleas raised by the appellant the scope of considering the evidence on record has been narrowed down because the appellant has himself admitted to have caused the death of Pullu deceased with a hatchet. The injury on the nose of the deceased found to have been caused with blunt weapon was the result of fall and, therefore, the non-explana--tion of this injury by P. Ws. Does not affect their credibility. He further argued that considering the two versions in juxtaposition the prosecution version appears as more convincing. He next contended that the appellant cannot clam grave and sudden provocation, for, his mother was living in adultery, with the deceased for the last about 11 years which tends to show that the appellant had almost compromised with the situation. Lastly, he, submitted that in the circumstances of the case. No right of private defence of his person was available to the appellant who suffered two minor cuts on his hand, non-vital part of his body.
16. There is no dispute as to the time and place of occurrence. The appellant has even admitted to have killed the deceased although in different circumstances than alleged by the prosecution witnesses. The occurrence allegedly took place at Dhalli Assarwela and the report was made at 10 p.m. At Rajanpur Police Station, at a distance of 12 miles from there. It is not on record if the place of occurrence is connected with metalled road or any mechanical transport was available there. We, therefore, find that report was made at the police station without any loss of time, which contained the name of the appellant the weapon of offence and the names of the witnesses specifically. The F.I.R. Has been recorded a day before the post-mortem examination of the dead body was carried out. The genuineness of this document has not been challenged. It has not been suggested to Balochan or to S.-I. Sardar Muhammad that the F.I.R. Was drawn up after preliminary investigation, much later in time than it purports to be. We are, therefore, of the considered view that the F.I.R.
Was lodged by Balochan P. W. With promptitude, because he happened to be in the company of Pullu, his deceased brother, at the relevant time and A the chances of consultation and deliberation prior to its lodging are excluded. This document can, therefore, be legally read in corroboration of the maker. The place of occurrence is a pathway which connects Fatehpur with Kot Ram, vide site plan Exh.-P.K which is not at all disputed. The deceased lived in village Darkhast Haji Muhammad Balochan P.W. 6, Ghulam Rasul (P.W. 7) and Mir Hazar (P.W. 8) were allegedly following that path for their residences. No doubt that Balochan Khan and Ghulam Rasul P. Ws.- have given the distance and the directions of their houses from the scene of offence somewhat differently but this circumstance alone is not sufficient to render their evidence untrustworthy, as the simpleton villagers cannot be expected to give distances and directions with exactitude while standing in the witness-box. The best witness on this point is the Patwari (who prepared the plan), but has not been asked any question in l that regard. S.-I. Sardar Muhammad (P-W. 9) stated that village Darkhast Haji Muhammad where deceased lived and the destination of Balochan and other eye-witnesses were adjoining each other, so it is quite natural for the deceased and the witnesses to take the same pathway for going to their residences. We gathered from the evidence of the witnesses that Basti Fatehpur is a place which is normally visited by the residents of nearby localities for purchasing necessaries of life, etc., and their is nothing surprising, therefore, if the witnesses had got together on a common path--way leading to their places. The superior Courts have often believed evidence of wayfarers who happened to witness the occurrence during their journey.
18. Mir Hazar (P.W. 8) is absolutely an independent witness who is not related to the deceased and also he comes of a different tribe. No special interest of this witness has been shown with the deceased or his family, also no animosity with the appellant has been suggested to him. There is no reason why Mir Hazar should depose against the appellant on capital charge. We are thus persuaded to hold that Balochan P.W., the first informant, was with the deceased at the time of occurrence, that is why it was possible for him to lodge the F.I.R. With promptitude and also with exactitude.
19. As for the blunt weapon injury on the nose of the deceased, we find that it is capable of explanation. It is in evidence that the deceased fell with his face downward after receiving hatchet blows on his head. By falling on the ground with such posture, the injury like the one found on the nose of the deceased was quite possible. Learned counsel for the appellant laid much stress on the fact that sundry articles allegedly purchased by Balochan and the medicine packets (Purya) brought by the deceased for his son from Fatehpur were not found at the spot. He further stated that according to Balochan and Ghulam Rasool, P. Ws., Pullu, deceased, was carrying his son Faiz Bakhsh on his shoulder who fell from his shoulder at the time of occurrence and leaving that child at the spot Balochan left for making report. He objected that this fact finds no mention in the F.I.R.
And that the Investigating Officer did not find that child present there on his arrival at the scene. In the F.I.R., it is clearly mentioned that the deceased was returning after procuring medicines, etc., for his ailing son Faiz Bakhsh. There is no mention in the F.I.R. That his ailing son Faiz Bakhsh was with him or not at the time of occurrence. However, the witnesses have deposed consistently that the ailing child was with the deceased when he was attacked. If the child was not found on the spot by the police it does not recoil on the prosecution case, because the police reached the place of occurrence at about mid-night and, therefore, before the arrival of the police the child as well as medicines might have been removed by the relatives who would have arrived there before the arrival of police.
20. We proceed now to consider the plea of the appellant. It is in evidence that the deceased had abducted and was keeping the mother of the appellant for the last 11 years. He lived with her at about six mile distance from the residence of the appellant. The appellant's father is also alive. It is also in evidence that they did not trap the deceased earlier nor they made any attempt whatsoever at his life. They did not raid the house of the deceased either to bring Mst. Raji back.
This shows that the appellant and his family had compromised with the situation and adopted docile attitude and rested content by avoiding to see her and her paramour's face. It is common knowledge that in Baloch society the adulterers are declared Kala, Kali and are murdered, and normally the Kala (adulterer) avoids to be sighted by the relations of the Kali (adulteress). We, therefore, do not accept the assertion of the appellant that the deceased having met him (the appellant) instead of scaring away hurriedly and silently would have had engaged into dialogue with him and that too in taunting manner asking the appellant to persuade his father to divorce his wife who lived with him (the deceased) in adultery. Rather it appears that on chance meeting the appellant would have abused the deceased against whom he had a living grouse, which culminated into exchange of blows. The injuries found on the person of the appellant have not been explained by the prosecution. The natural conclusion, therefore, would be that he suffered those injuries in the fight at the hands of the deceased, who perhaps proved no match to the appellant as we obse6ed that the appellant received very small cuts on his left hand. These cuts must have been caused by the deceased before he had received two fatal injuries on the back side of his chest and head. These injuries on the back of the deceased suggest that they were inflicted when the deceased had his back towards the appellant or was lying down and thus there was no threat to the life of the appellant from the deceased at all. The infliction of injuries by the appellant in these circumstances were thus wholly unjustified. May be that the deceased received one of the blows at the back of the head during the fight when he was still on his feet but the other fatal injury at his back was given when he was lying down as has been consistently stated by all the witnesses. The eye-witnesses version is F supported by the attending circumstances that the last blow was given to the deceased when he was lying prostrate on the ground and at that time there was no justification for the appellant to repeat the blow muchless with formidable force which proved fatal. Therefore, we hold that the appellant had exceeded the right of private defence of his person and his act squarely fell within the mischief of section 304, Part-1, P. P. C. His con-- viction from section 302, P. P. C. Is, therefore, altered to one under section 304, Part I, P. P. C. And is sentenced to ten years' rigorous imprisonment and a fine of Rs. 3,000 (Rupees Three Thousand only) or in default, 'to undergo one year's rigorous imprisonment. The fine, if realised, shall be paid as compensation under section 544-A, Cr. P.C. To the heirs of the deceased. The death sentence is not confirmed and the reference is rejected.