JAVID IQBAL, J----Ahmad son of Bahauli, aged 49 armed with Wahala, and Sultan son of Ali, aged 16, armed with Wahola, his nephew, have been convicted and sentenced as follows vide judgment dated 17th November, 1978 of the Additional Sessions Judge, Sargodha : Both of them have been convicted under section 302/34, P.P.C. For the murder of Mcharak Ali, aged 40/45 and whereas Ahmad was sentenced to death plus fine of Rs. 2,000 or in default to undergo one year rigorous imprisonment, Sultan was sentenced to imprisonment, for life plus fine of Rs. 1,000 or in default to undergo one year rigorous imprisonment. If the fine was realized from them, it was to be paid 'as compensation to the heirs of the deceased. Ahmad alone was also convicted under section 404, P.
P. C. For taking away money amounting to Rs. 16,800 from the pocket of the deceased after his murder and was sentenced to three years' rigorous imprisonment plus fine of Rs. 500 or in default to undergo six months' rigorous imprisonment Ali, Yaroo and Manzoor co-accused, real brothers of Ahmad were given the benefit of doubt and acquitted. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Ahmad are being taken up and disposed of together by this judgment.
2. The occurrence took place at Degarwela on 26th February, 1977 in the garden of the deceased within the area of village Kot Momm, at a distance of two miles from Police Station Kot Momin, District Sargodha, F. I. R. Exh. P. F. Was lodged by Muhammad Afzal P. W. 7 son of the deceased at 8- 35 p. m. On the same day and it was recorded by Muhammad Yaqoob S. I. P. W. 9.
3. The motives stated in the F. I. R. Are that the accused-party sus--pected that the deceased had illicit relationship with Mst. Sabi mother of Sultan appellant. However, on the day of occurrence it is stated that the deceased had reprimanded the accused-party, who were his servants, for not weeding the garden properly and that they must do that work im--mediately.
4. The prosecution has produced two eye-witnesses of the occur--rence namely, Muhammad Afzal P. W.
7. Son of the deceased and first informant, and Abdul Majid P. W. 6, an unconnected person. Ghulam Hussain and Boota were cited as eye-witnesses in the F. I. R. But were given up as unnecessary.
5. The appellants and the acquitted co-accused were arrested on 2nd March, 1977 by Muhammad Yaqoob S.T. P.W.
9. At the instance of Ahmad appellant was recovered blood-stained Wahola P. 7 and taken into possession vide memo. Exh. P. D. Dated 5th March, 1977. The attesting witnesses are Raushan P. W. 4, Mirza (not produced) and Muhammad Yaqoob S. I. P. W.
9. Earlier at the instance of Ahmad appellant was recovered silver box P. 8 containing Rs. 16,800 wrapped in a muslin handker- -chief P. 11 and taken into possession vide memo. Exh. P. H. Dated 2nd March, 1977. The attesting witnesses are Muhammad Yaqoob S. I. P. W. 9 Muhammad Afzal P. W. 7, son of the deceased, Ahmad Bakhsh P. W. 8, son-in-law of the brother of the deceased, and Mirza (not produced). At the instance of Sultan appellant was recovered blood-stained Wahola P. 6 and taken into possession vide memo. Exh. P. C. Dated 5tb March 1977. The attesting witnesses are Raushan P. W. 4, Muhammad Yaqoob S. I., P. W.
9. And Mirza (not produced). According to the report of the serologist Exh. P. N. At page 6 of the Paper Book both Wahola P. 6 and P. 7 were found to have been stained with human blood.
6. Sultan appellant in his statement before the trial Court, denied having participated in the occurrence. He disowned recovery and stated that he bad been falsely implicated due to his relationship with Ahmad appellant and enmity of the P. Ws. His Base was that he was not present on the spot at the time of the occurrence. Identical were the statements of Ali, Yaroo and Manzoor, acquitted co-accused who were stated to be empty-handed. Their case also was to the effect that they had been falsely implicated due to their relationship with Ahmad appellant and that they were not present at the time of the occurrence. So far as Ahmad appellant is concerned, he has admitted having caused injuries to the deceased but under grave and sudden provocation. He admitted that he was a servant of the deceased and was residing at his dera. On the day of occur- -rence after working in the garden of the deceased he went to his dera for taking his meals. When he arrived at his dera, lie saw the deceased cohabiting with Mst. Sabi, the wife of his brother Ali, acquitted co---accused, and mother of Sultan appellant in a room of the dera. He saw the deceased committing the act from a window and rushed inside the room as the door was not bolted. When he went in the room Wahola, P. 7 was lying in the room which he picked up and caused injuries therewith to the deceased under grave and sudden provoca--tion. Mst. Sabi managed to run away but the deceased died on the spot in that room. He further stated that his co-accused had been falsely implicated due to their relationship with him although they had nothing to do with the murder of the deceased. He alone committed the murder of the deceased under grave and sudden provocation, as he could not resist when he saw that the deceased was cohabiting with the wife of his brother. He did not produce airy defence. In respect of the amount of Rs. 16,800 recovered from a silver box at his instance, he only stated that this amount did not belong to him and that it had not been recovered at his instance.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner. The appellant and the acquitted co-accused were servants of the deceased and they used to work for him in the garden. On the day of occurrence the deceased was present at his dera in the garden alongwith his son Muhammad Afzal P. W. 7 and at that time the appel--lants and the acquitted co- accused were also present there. The deceased reprimanded them that they had not weeded the garden properly and that they must do that work immediately. In the meantime Abdul Majid P. W. 6, a contractor of garden, came there alongwith Boota (not produced) Then came Ghulam Hussain (also not produced). Abdul Maid P. W. Handed over some money about the contract of the garden to the deceased and the deceased after receiving the amount put it into the pocket of his shirt so that it could be deposited in the Bank afterwards. After ordering the appellants and the acquitted co-accused that they should immediately do the weeding of the garden, the deceased himself also proceeded to the garden. In compliance with his order Ahmad and Sultan appellants who were carrying Waholas whereas Ali, Yaroo and Manzoor, acquitted co--accused, who were empty- handed, went to the garden in order to weed it. Shortly thereafter, Abdul Majid P. W. Boota and Ghulam Hussain stood up for going away and Muhammad Afzal P. W. Went along in order to see them off. While they were coming on the middle Watt of the garden, they heard alarm from the left side. They saw that Ali, Yaroo and Manzoor, acquitted co-accused, were grappling with the deceased. In the meantime, Sultan appellants gave a Wahola blow which fell on the head of the deceased and the deceased fell down. Then Ahmad ap--pellant gave a Wahola blow which fell on the neck of the deceased. The P. Ws. Raised alarm and rushed towards the spot. But on seeing them the appellants and the acquitted co-accused ran away. When they advanced forward they saw that the deceased had died on the spot as a result of the injuries and the money was not in his pocket. The motive for crime, as given in the F. I. R. Was that Sultan appellant etc. Had suspected that the deceased had illicit relationship with Mst. Sabi, mother of Sultan appel--lant and that in this background the accused-party with common intention had attacked and murdered the deceased. Leaving behind Sher Muhammad to guard the dead body, Muhammad Afzal P. W. Went to lodge the report with the police.
8. Dr. Muhammad Raheem Paracha P. W. 5 conducted post-mortem examination on the dead body of the deceased at 9-00 a. m. On 27 February. 1977 and found on his person a cut wound 6" x 1" brain deep on the left side of head and another cut wound 6" x 1--" on the front right side of neck.
In his opinion, both the injuries were grievous and had been caused by sharp blunt-weapon like Wahola and each injury was indivi--dually sufficient to cause death in the ordinary course of nature. The death had resulted due to shock and haemorrhage as a result of these injuries probable time that elapsed between injuries and death was instantaneous. He stated in the cross- examination that he did not find any semen on the privates part or clothes of the deceased.
9. We have heard learned counsel for the parties and carefully perused the record. The case of the prosecution is supported by Abdul Majid P. W. 6, who is an unconnected person and has no motive to falsely implicate the appellants as well as Muhammad Afzal P. W. 7, who is son of the deceased, but there is nothing on the record to show that he had any motive to falsely implicate the appellants. Both these eye--witnesses consistently supported the version given in the F. I. R. This version is to the effect that the acquitted co-accused were found grappling with the deceased whereas Sultan appellant gave a Wahola blow which fell on the head of the deceased and Ahmad appellant gave a Wahola blow which fell on the neck of the deceased. No recovery was effected from the acquitted co-accused and the grappling part of the version of the eye-witnesses had not been accepted by the trial Judge. Consequently, he gave the benefit of doubt to the acquitted co- accused and acquitted them. So far as the appellants are concerned the ocular testimony in respect of them is corroborated by the recovery evidence. At the instance of both the appellants human blood-stained Waholas were recovered and taken into possession by the Police. Similarly, at the instance of Ahmad appellant the sum of Rs. 16,800 was also recovered and taken into possession. According to Abdul Majid P. W. This was the amount of money of the garden contract which he had delivered to the deceased in the presence of the appellants and the acquitted co- accused. It may be noted at this stage that according to the prosecution version the money which the deceased was stated to have been carrying in the pocket of his shirt was missing at the time when the eye-witnesses arrived at the spot where the deceased was lying dead. The ocular version is further supported by the motive as well as the medical evidence. Furthermore, Ahmad appel--th lant had at least admitted that since he had found the deceased in a compromising position with the wife of his brother he caused injuries to him under grave and sudden provocation.
Learned counsel argued that it is stated in the F. I. R. By Muhammad Afzal P. W. Son of the deceased himself that the accused-party had sus--pected that the deceased was carrying on an illicit relationship with the mother of Sultan appellant and wife of Ali, acquitted co-accused. It is argued that Ahmad appellant had admitted in his statement before the trial Judge that since he had found the deceased in a compromising position with the wife of his brother, he attacked him and murdered him under grave and sudden provocation in the room of his dera while the wife of his brother ran away. It is submitted that in the light of the statement of Ahmad appellant, his conviction under section 302,134, P. P. C. And sentence awarded thereunder were nit proper. Since his case was cover--ed by one of the exceptions under section 300, P. P. C. He could have only been convicted under section 304, Part 1, P. P. C. It was next argued that Ahmad appellant might have participated in the commission of crime and that Sultan appellant was not present at the time of the occurrence but had been falsely implicated due to his relationship with Ahmad appellant.
We have carefully considered this aspect of the case. No doubt it is mentioned in the F. I. R. That the accused-party had suspected that she deceased was carrying on an illicit relationship with Mst.
Sabi, but the eye-witnesses in their statements before the trial Court denied the existence of any such relationship. They also denied that at the time of the occurrence the deceased was found in a compromising position with the mother of Sultan, appellant. There is nothing on the record to show that any woman was found escaping or running away from the scene of crime when the deceas-- ed was attacked. According to the medical evidence, semen was not detected on the private parts of the deceased or on his clothes. The dead body of the deceased was also not found in the room of the dera of Ahmad appellant as stated by him in his statement before the trial Court. The ocular testimony is to the effect that the deceased was given some amount of money by Abdul Majid P.
W. In the presence of the accused party and that subsequently on his murder the said amount was missing from his pocket. Later on, after the arrest of Ahmad-appellant an amount of Rs. 16,800 was recovered and taken into possession at his pointing out. He could not give any satisfactory explanation as to how he was in possession of such a large amount of money. He only stated that this was not his and that it was not recovered from him, On the other hand about Sultan appellant and his participation in the commission of --crime, the ocular testimony is corroborated by the recovery evidence from him and it is being supported by the medical evidence and the motive version. The trial Judge has not adverted to or paid any attention to the plea of Ahmad appellant of grave and sudden provocation in finding his brother's wife in a compromising position with the deceased. It appears that he did not even rely on this motive. In paras. 41 and 43 of the judgment at pages 42 and 43 of the Paper Book he has relied upon the other motive, i.e. Sine the deceased had reprimanded the appellant: and the acquitted co-accused for not weeding the garden properly, and hoc ordered them to do that work immediately; this was the reason according to the trial Judge, which made the appellants attack the deceased with their respective Waholas and that they not only murdered him but also Ahmad appellant took away Rs. 16,800 from his pocket.
Any way, we have considered the arguments of learned counsel. The case of the prosecution is based on the ocular testimony which is being corroborated by the recovery evidence and is being supported by the medical evidence and motive. Therefore, in our view the prosecution has succeeded in establishing its case as against the appellants beyond any shadow of doubt.
In the light of what we have discussed above, the conviction of the appellants under section 302/34, P. P. C. Was quite proper and is accordingly maintained. The sentence of life imprisonment and fine awarded there--under to Sultan appellant is also maintained. So far as Ahmad appellant is concerned since it is stated in the F. I. R. That the accused-party had suspected, that the de- cased was carrying on an illicit relationship with the wife of; the brother of Ahmad appellant, although there was nothing on the recorded from which an inference could be drawn that Ahmad appellant had found the deceased in a compromising position with the wife of his brother on the day of occurrence and, therefore, had killed him under grave and sudden provocation in the room of his dera, nevertheless we consider that he might have retained such a suspicion which constitutes an extenuating circumstances my and consequently we are of the view that the awarding of lesser p in the instant case, may be sufficient to meet the ends of justice. It is ordered accordingly. The result is that the conviction of Ahmad appellant under section 302/34, P. P. C. Is maintained but his sen--tence is altered from death to that of imprisonment for life. The sentence of fine is maintained. Similarly, the conviction as well as sentence awar--ded to Ahmad appellant under section 404, P. P. C. Are also quite proper and are accordingly maintained. The sentences of imprisonment awarded to Ahmad appellant under sections 302/34 and 404, P. P. C. Shall run concur--rently. The case was registered against both the appellants on 26th February, 1977 and they were arrested on 2nd March, 1977. Eversince they had not been released on bail at any stage.
They were convicted and sentenced on 17th December, 1978 and had remained in jail throughout.
We therefore, direct the jail authorities that both the appellants should be granted the benefit of the provisions of section 382-B, Cr. P. C. At the time of the computation of their sentences of life imprisonment, etc. With this modification the appeal is dismissed.
The death sentence awarded to Ahmad appellant is not confirmed.
Death sentence not confirmed.