MUHAMMAD MONIR FARUQUEE, J.-Muhammad Waryam, son of Sultan, was tried on a charge under section 307/302, P. P. C. By the Additional Sessions Judge, Lyallpur at Jhang, for attemp--ting on the life of Mst. Sullahn P. W., his paternal aunt and committing the murder or his name-sake Muhammad Waryam, son of Muhammad Baksh, his first cousin, who acquitted him of the first charge and convicting him under section 302, P. P. C. Sentenced him to death on the 17th of January 1969. He has filed the present appeal to question the correctness of this order and a usual reference under section 374, Cr. P. C. For confirmation of the death sentence is also before us. We propose to dispose of the to matters by this judgment.
2. This violent incident took place on the 16th of March 1968, at about Sahriwala in Mohalla Abbotpur, City Police Station, Jhang, on account of their rivalry about Mst. Anwar Bibi P. W. a step- daughter of Mst. Sullahn.
3. The prosecution case, in brief, is that Mst. Sullahn P. W. Was married to one Khan Muhammad, an A. S. I. Of police but she bore him no child so he took a second wife Mst. Sattan by name, who gave birth to to daughters Mst. Anwar Bibi and Nasim Akhtar P. Ws. A son was also born out of this wedlock but he died. The desire to perpetuate his line seems to have remained uppermost in his mind as he married a third the with Mst. Ghulam Sakina P. W. Who fulfilled this human instinct and gave birth to to sons Anisur Rehman and .Azizur Rehman P. Ws. And to other daughters. Khan Muhammad had in the meanwhile adopted Muhammad Waryam (deceased) and Muhammad Waryam (appellant) the former being a son of his own sister and the brother of his wife Mst.
Sullahn P. W. While the latter was the son of his brother. Muhammad Waryam (deceased) had thus a double relationship with him and as he grew up Khan Muhammad got him recruited in police but he had to resign the job after his demise to look after the household, as Muhammad Waryam (appellant) had been employed in the Postal Department and was posted at Sahiwal.
4. During his lifetime Khan Muhammad had indicated his intention to perform the marriage of his daughter Mst. Anwar Bibi P: W. With the appellant but after his death his widows did not honour his wish who proposed to give the hand of Mst. Anwar Bibi to Muhammad Waryam (deceased) and that of Mst. Nasim Akhtar P. W. To a nephew of Mst. Ghulam Sakina P. W. Muhammad Waryam (appellant) had his own plans about these girls as he wanted to take Mst. Anwar Bibi P. W. As his own wife and to give the hand of Mst. Nasim Akhtar to his own brother which is said to have spread bad blood.
5. It is alleged that on the evening preceding the incident Muhammad Waryam (appellant) tried to persuade Mst. Ghulam Sakina P. W. To accept his proposal but she refused it point blank and this instigated the disappointed suitor to remove Muhammad Waryam (deceased) from his way. It so happened that during the same night at about Sahriwela Muhammad Waryam (appellant) attacked. Muhammad Waryam (deceased) with Toka P. 1 while asleep in the compound of his haveld and inflicted as many as eight injuries on his person resulting in his instantaneous death.
His outcries woke up Mst. Sullahn P. W. And the other members of the family who were sleeping nearby. They raised an alarm and tried to catch hold of the appellant and Mst. Sullahn P. W.
Received an injury on the forehead in the scuffle but Muhammad Waryam (appellant) made good his escape. Sultan and Sher Muhammad P. Ws., their neighbours were also attracted by their alarm and saw the appellant running out of his house with a Toka in his hand. Taking her brother Muhammad Baksh P. W. Along with her Mst. Sullahn went to the police station and lodged her report Exh. P. A. About it.
It was recorded by Khan Muzaffar Khan Niazi S. I. At 5 a.m. The same morning. Muhammad Waryam (appellant) had followed them to the police station alongwith one Karam Dad, so the S. I. Arrested him and got removed the blood-stained bush-shirt P. 8 from his person and sealed it into a parcel vide Exh. P. E. The S. I. Then went to the spot and after examining the dead body vide injury statement Exh. P. K. Held an inquest vide Exh. P. J. And dispatched it to the mortuary under the escort of F. C. Noor Muhammad. He secured some blood-stained earth from the spot and made it into a sealed. Parcel vide Exh. P. C. He also took into possession cot P. 2, pillow P. 3, quilt P. 4 and tulai P. 5 vide memo. Exh. P. D. Muhammad Waryam (appellant) is said to have led to the recovery of blood--stained Toka P. 1 from the wheat crop on the 19th of March 1968 which was sealed into a parcel vide Exh. P. F. After preparing its sketch P. F./1 and rough site plan Exh. P. L. Of the place of recovery. The site plans of the place of occurrence Exh. P. B. And P. B./I were prepared by Murad Ali P. W., a retired Overseer. The three sealed parcels were sent to the Chemical Examiner for analysis and the earth, bush-shirt and Toka P. 1 were found stained with human blood vide reports Exhs. P. O.
And P. Q. On the completion' of the investigation Muhammad Waryam (appellant) was put on trial and convicted as above.
6. Dr. Tajamal Hussain, Medical Officer, Civil Hospital, Jhang, performed the autopsy on the dead body of Muhammad Waryam (deceased) on the 16th of March 1968, at 12 p.m. Who found the following injuries over it :-
(1) An incised wound 3' x --' x bone underneath cut on right forehead, just above the right eye-brew oblique in direction.
(2) An incised wound 3--" x 1/3' x bone underneath cut on right head, 2--' above the right car in direction anteroposterior.
(3) An incised wound 2--' x 1/3' x bone deep on left face. Left eye-ball is cut obliquely and the lower wall of the bony socket of the eye was cut obliquely in direction.
(4) An incised wound 3' x --' x bone underneath cut over maxillary prominence of left face oblique in direction.
(5) An incised wound 3" x --' x bone deep middle of face. Nose was cut 1/3' from its tip through and through. Also the bones on both sides of nose were cut, obliquely.
(6) An incised wound 1" x 1/3' x bone deep on right upper lip. Bone underneath is cut through obliquely.
(7) An incised wound 2" x 1/3" x bone deep on left lower lip below it near its angle bone underneath was cut through obliquely.
(8) An incised wound 3--' x 1/2' x bone deep on right side of face cutting through the right ear near its tragus obliquely. The wound extended both above and below the ear, obliquely. Bones underneath the wound were cut.
On dissection, scalp and skull were found cut corresponding to injuries Nos. 1 to 8, which, in the opinion of the doctor were caused by sharp-edged weapon and were grievous in nature. Death in the opinion of the doctor occurred due to heamorrhage and shock due to the injuries collectively which in the ordinary course of nature could cause death.
On the same day Lady Dr. Miss Safia Choudhry examined Mst. Sullahn at about 1 p. m. And found the following injuries on her person :-
(1) A lacerated wound triangular in shape on the forehead above the left eyebrow. --" x --' x --'.
Bleeding from the wound was present.
(2) Scratch with contusion mark on the left eye below lateral border. Scratch was about 1/6" x 1/8" x 1/8".
Both the injuries were simple in nature and were caused within eight hours with a blunt weapon.
7. Muhammad Waryam (appellant) when examined finder section 342, Cr. P. C. At his trial denied all these allegations and pleading not guilty to the charge set up a plea of grave and sudden provocation and made the following statement :- "I and Waryam deceased had been adopted by Khan Muhammad deceased, and later on, when his sons were born to his wife Mst. Ghulam Sakina decided to give the hands of his to daughters Mst. Anwar Bibi and Mst. Nasim Akhtar to me and Waryam deceased. On the date of `qul khawani' of Khan Muhammad the brotherhood objected to the presence of Waryam deceased in the house as Mst. Ghulam Sakina was young and the brotherhood suspected him to have some inkling about the intimacy of Ghulam Sakina with the deceased. But I had no suspicion regarding this matter. I regarded Waryam. Deceased as my brother. That is why I brought him again to the house of Khan Mohd. Deceased and left him there to look after the female folks and the minor boys. On the evening of night of occurrence I came late from Sahiwal and we all slept in our courtyard. At sahriwela I heard a murmuring noise and to my utter surprise I saw Mst. Ghulam Sakina and Waryam deceased in a compromising position on the same cot. I lost my self control and picked up the toka lying near the fodder and gave him blows having lost my mental equilibrium. While I was busy giving blows to Waryam, Mst. Sakina escaped and took refuge in the baithak. I reached after her, pushed the door but Mst. Sullahn stood before the door and the leaves of the door struck against the forehead of Mst. Sullahn and in the meantime Mst. Ghulam Sakina escaped, from the outer door of the baithak. I threw the toka there and went straight to the Police Station to lodge the report. But the S. H. O. Rather than recording to my statement came to the spot and said that he was not going to record my statement as the F. I. R. As it would disgrace the widow of a deceased brother Police Officer, and he concocted a different story at the instance of Mst. Sullahn."
He had thereby admitted the deadly assault on Muhammad Waryam (deceased) with Toka P. 1 as ascribed to him by the prosecution witnesses. We are thus left with the task of deter-mining as to which of the to versions is correct or more probable, if it was a cold-blooded murder on account of their rivalry about Mst. Anwar Bibi P. W. Or it was an attack provoked by the infidelity of Mst. Ghulam Sakina P. W. At that hour of the eventful night.
8. The prosecution witnesses Mst. Sullahn and Mst. Ghulam Sakina, from among the inmates of the house, had only see Muhammad Waryam (appellant) inflicting Toka blows on the deceased which had not been denied by the appellant either as pointed out above. Mst. Nasim Akhtar and Anisur Rehman P. Ws. Even denied that much at the trial and, their statements made in the Court of the committing Magistrate' were brought on the record of the case under section 288, Cr. P. C. Which also do not take us beyond it. Mst. Sullahn and Mst. Ghulam Sakina P. Ws. Have; however, made a material improvement upon their earlier statements by introducing the, talk of Muhammad Waryam (appellant) with Mst. Ghulam Sakina P. W. On the preceding evening seeking the hand of Mst. Anwar Bibi P. W. For himself and that of Mst. Nasim Akhtar for his brother and its outright rejection by her, which did not find mention either in the F. I. R. Or in the statements made by them to- the police or even before the committing Magistrate. This addition was made to provide an immediate motive inciting Muhammad Waryam (appellant) to remove Muhammad Waryam (deceased) from his way, as the to witnesses felt that the story being put forward by them would be unnatural without it. The fuss about Mst. Anwar Bibi was going on for quite a long the, her late father Khan Muhammad had indicated -his intention to marry her with Muhammad Waryam (appellant) but it were his widows who had, after his demise, entertained different plans in their minds about the disposal of the to girls but in spite of it no quarrel had ever taken place between Muhammad Waryam (appellant) and Muhammad Waryam (deceased) ever since then. They had, therefore, thought of introducing this new factor as the immediate motive for this attack on Waryam (deceased). Even Sultan and Sher Muhammad P. Ws. Reached there just after: the incident but had not been told about it as they had only stated that the, ladies had told them that Muhammad Waryam (appellant) had murdered Muhammad Waryam (deceased). This factor being clearly an afterthought we are not inclined to accept it as correct. These witnesses have made many other improvements upon their previous statements and appear to have even fabricated evidence to support such additions, the most important being the injuries of Mst. Sullahn P. W. She had made no mention of any such injuries in the F. I. R. Even the S. I. Who recorded it made no note about it in the `Karwai Police' under the F. I. R. That she was found to have some marks of injuries on her person in respect of which her injury statement would be prepared separately. These injuries had thus been fabricated on her person to strengthen her assertion that she had tried to catch hold of the appellant and had received these injuries in the course of that scuffle. She had been duly confronted with these omissions and additions in her statement.
The same is true about the recovery of Toka P. 1-. The to witnesses of this recovery did not state at the trial that in their presence the appellant had made any disclosure about the Toka P. 1 saying that he had thrown it in any field and offered to lead to its recovery as stated in the memo. Exh. P. F.
They claim to have only met the S. I. On their way and accompanied him when the Toka P. 1 was recovered from the wheat field which according to Ahmad Baksh P. W. Belong to one Pir Baksh Mahajir but according tea Sikandar P. W, to Muhammad Yusaf.
9. There is another feature of this case which made this recovery improbable. The appellant had immediately gone to the police station after the occurrence dangling a blood-stained bush-shirt then why could he not take this Toka P. 1 along with him and why should he have resisted its disclosure for three days. We are, therefore, not prepared to accept the evidence about the recovery of Toka P: 1 in that manner. This would show that even the police was a party to such fabrications. They had even tried to dub the voluntary appearance of the appellant at the police station as production through one Karam Dad, a B. D. Member, who was not found prepared to support it and was given up at the trial. F. C. Noor Muhammad who had accompanied the S: I. From the police station, to the spot denied to have witnessed his arrest in the alleged manner. He had given the the of the arrival of the S. I. On the spot at 7 or 8 a.m., which was an eloquent testimony to the fact that the F. I. R. Was not recorded at 5 a. m. In the police station. The place of occurrence is situate at a distance of one mile only from the police station which the police party had taken to to three hours to cover. It appears that the S, I. On coming to know of this incident relating to the household of an ex-police officer spent all this the in deliberations and then taking stock of the situation drew out F. I. R. On the spot otherwise there was no apparent reason for giving so many details about the sleeping arrangement in that house on that night including the bolting up of the door of the Baithak by Mst. Ghulam Sakina from inside and the locking of the outer door of the Haveli from within the courtyard. It was thus not safe to rely on the prosecution version about the occurrence. We have, therefore, no alternative but to accept the statement of the appellant in toto especially when some admissions made by the prosecution witnesses themselves go a long way to show that the plea, taken by the appellant might be true. It is admitted by all the material prosecution witnesses that the brotherhood of late Khan Muhammad at the the of his qul ceremony had decided 'that Muhammad Waryam (deceased) should not be allowed to live in this house, so his father Muhammad Baksh P. W. Had taken him away to his house and that it was the appellant who had again brought him back to live in this house to look after the family in his absence. Then, there are some admissions made by Mst. Ghulam Sakina P. W. Herself which lend further support to the insinuations made by the appellant about her character. She had admitted that. a month after this incident she contracted a second marriage with her cousin Siddique although she had given herself out as a widow of late Khan Muhammad In a complaint filed by her in August 1968, long after her alleged second maniaga which might be only a clandestine affair.
She also admitted that she had an abortion of a child conceived from Siddique. This would be a sufficient clue to her character which had certainly depicted her as a woman of easy virtue so it was not improbable that she might be carrying on with Muhammad Waryam (deceased):
10. We then find in the evidence of S. I. That according to his investigation Toka. P. 1 used to lie its the verandah close to the place of occurrence (the cot of the deceased). This is precisely what the appellant had stated in his above statement that he took the Toka P. 1 from near the fodder lying in the verandah. The number, nature and seat of the injuries found on the deceased also spoke for itself that his assailant had been deprived of the power of self-control while causing these injuries to him as claimed by the appellant in this case.
11. In view of what has been said above the version of the occurrence given by the appellant seems more probable so we accept this plea of grave and sudden provocation. His case would thus fall under Exception (1) to section 300; P. P. C. His conviction under section 302, P. P. C. Was, therefore, not sustain--able, so we decline to confirm the- sentence of death awarded to him by the trial Court and altering his conviction to that under section 304 (1), P. P., C reduce the sentence to R. 1.
For three years. With this modification the appeal shall stand dismissed and the reference is answered accordingly.