' This appeal has been filed by Ahmad Bakhsh who was tried alongwith Khuda Bakhsh (since acquitted) for having murdered Muhammad Sadiq on the night between 17/18-10-1981 by Sessions Judge, Dera Ghazi Khan, who by his judgment dated 12-3-1983 while acquitting Khuda Bakhsh convicted Ahmad Bakhsh under section 304, Part-I, P.P.C. And sentenced him to 7 years' rigorous imprisonment and a fine of Rs,500 or in default to undergo 3 months' rigorous imprisonment. He further directed him to pay Rs,500 as compensation to the legal heirs of the deceased, in default whereof to undergo imprisonment for 3 months. The complainant has filed a criminal revision (Cr.R.No,116/ 1983) seeking re-trial of Khuda Bakhsh (acquitted-accused) and enhancement of sentence of the appellant. The appeal as well as the revision are being disposed of by this single judgment.
2. The facts of the prosecution case briefly are that on the night of occurrence Ghulam Farid informant (P.W.7) was sleeping alongwith Abdul Shakur (P.W.11) and Muhammad Sadiq (deceased) in the house of Abdul Shakur. At about mid night Muhammad Sadiq went out at the call of Khuda Bakhsh (acquitted accused). Muhammad Sadiq did not return for quite some time whereupon Ghulam Farid and Abdul Shakur P.Ws. Went out in his search. Yara (P.W.10) met them in the street who also joined them. When they reached near Loharanwali street they heard alarm and ran in that direction. They saw Ahmad Bakhsh appellant and Khuda Bakhsh (acquitted accused) injuring the deceased with Katis. They raised a Lalkara and tried to apprehend the assailants but they fled away. Muhammad Sadiq was removed to District Headquarters Hospital, Dera Ghazi Khan, in an injured state while the informant went to police station and lodged F.I.R. Exh.P.C. There. Later the victim died in the hospital. The motive was stated to be that Ahmad Bakhsh appellant suspected the deceased as maintaining illicit relation with his sister Mst. Mahlo wife of Khuda Bakhsh (acquitted accused) and for that reason they had murdered him. Initially, a case under section 307/34, P.P.C. Was registered and the offence was converted to 302/34, P.P.C. After the victim had died.
3. A.S.I. Murid Hussain (P.W.6) prepared the inquest report Exh.P.D. And injury statement Exh.P.E. Of the deceased and sent the dead body for post-mortem examination to the mortuary under police escort. He recorded the statements of Yara and Abdul Shakur P.Ws. In the hospital. He visited the spot and collected blood-stained earth from there. On 11-11-1981 he arrested the appellant and his co-accused and recovered from them blood-stained Katis P.4 and P.5. Having completed the investigation he submitted the challan to Court for trial. The earth and Katis as per reports of the Chemical Examiner and the Serologist were found stained with human blood.
4. Dr.Muhammad Arshad (P.W.9) examined Muhammad Sadiq in his lifetime and found 6 injuries on his person, caused by sharp-edged weapon, within duration of 2 to 3 hours vide medico-legal report Exh.P.K./1. Dr. Ghulam Farid (P.W.1) conducted autopsy who observed a deep incised wound in the chest, two incised wounds visceral deep in lumber and scapular region besides two sufficiently deep injuries; one on the back side and the other on the inner aspect of the right upper arm. Underneath the injuries he found left lung, small intestine, large intestine and mesentary damaged. Bladder contained some amount of urine and stomach contained semi-solid food. The injuries in the opinion of the doctor were ante-mortem and caused by sharp-edged weapon, sufficient to cause death in ordinary course of nature. The time between injuries and death was 3 to 4 hours and between death and post-mortem was 10 hours.
5. The prosecution produced 11' witnesses who supported its case at the trial.
6. The appellant in his statement under section 342, Cr.P.C., pleaded "grave and sudden provocation". He stated that on the night of occurrence he came home from his fields after two days. He had Chhuri P.5 with him at that time. He saw the deceased in an objectional position with his sister Mst. Mahlo. He lost self-control at this sight and under grave and sudden provocation attacked him, who started running. He chased him and gave him injuries with Chhuri P.5 and then surrendered before the police of his own at the police post and produced Chhuri P.S.
7. The learned trial Court on a detailed analysis of the evidence on record observed that the eye- witnesses; namely, Ghulam Farid and Abdul Shakur made discrepant statements on material points while Yar P.W. a chance witness, failed to establish his presence at the spot at the relevant time and, therefore, discarded the total ocular account. In this way there remained only the statement of the appellant in the field which was wholly accepted and the appellant alone was held to have committed the murder of Muhammad Sadiq under grave and sudden provocation.
8. Learned counsel appearing on behalf of the appellant has not disputed the conviction of the appellant under section 304, Part-I, P.P.C. His only grievance is that the sentence of seven years' rigorous imprisonment awarded to the appellant is excessive. According to him, in such like cases the superior Courts generally award sentence upto three years' rigorous imprisonment, therefore, the sentence of the appellant should also be reduced sizeably.
9. It admitted in the F.I.K. That the deceased was suspected of having a liaison with Mst.Mallo, sister of the appellant (Ahmad Bakhsh) and wife of the acquitted accused (Khuda Bakhsh). In these circumstances, it is not believable that at the dead of night the deceased at the call of aforesaid Khuda Bakhsh readily went out and further accompanied him. Learned trial Court, of course for good reasons had rightly disbelieved the prosecution story. The complainant Ghulam Farid (P.W.7) stated that he heard alarm emanating from the house of Khuda Bakhsh and by going in that direction he saw Muhammad Sadiq deceased being inflicted injuries by the appellant and the acquitted accused. The other eye-witnesses also when reached the spot had seen the deceased already under attack. Although I find no valid reason to disagree with the finding of the learned trial Judge that the eye-witnesses are not reliable, yet for argument sake if it is assumed that they witnessed the occurrence, it would not advance the prosecution case in any manner whatsoever because they when reached saw the deceased being injured and did not know that what preceded immediately before Muhammad Sadiq was attacked. Therefore, plea of the appellant has to be accepted. Again, the prosecution story that the deceased was called out from his house at the dead of night by Khuda Bakhsh, as observed earlier, is highly improbable. Finding of the learned trial Court that the deceased was found flagrante delicto and was killed under grave and sudden provocation by the appellant alone is, therefore, not at all open to exception.
10. As for the objection of the learned counsel that the sentence is excessive, I may say that in the circumstances of the case the imprisonment of seven years is certainly excessive. I am fortified in my view by the dictum laid down in Muhammad Sadiq v. The State PLD 1966 Lah. 104 wherein a learned Judge of this Court awarded the sentence of rigorous imprisonment for two years although there was no evidence that the deceased was actually engaged in sexual intercourse with the lady involved in that case. In another case, Fateh Muhammad alias Fattu v. The State PLD 1967 Lah. 579, in similar circumstances, the sentence of death awarded to the appellant was substituted with rigorous imprisonment for three years. In yet another case, Ahmad Din alias Ahmi v. The State PLD 1967 Lah. 649, the sentence of rigorous imprisonment for seven years awarded to the appellant under section 304, Part-1, P.P.C. Was reduced to the imprisonment already undergone by him which came to little above 31/2 years. Taking the aforesaid authorities as guideline, I feel inclined to reduce the sentence of the appellant to three years' rigorous imprisonment. The sentence of fine of Rs,500 is, however, maintained. The appellant shall also get the benefit of the provisions of section 382-B, Cr.P.C., in computation of his sentence of imprisonment.
11. Notice to the appellant was however, given to show cause as to why the compensation of Rs,500 imposed by the trial Court should not be enhanced. Learned counsel for the appellant accepted notice and submitted that the amount of compensation may not be raised for the appellant is a poor person. 1 earnestly feel that the compensation of Rs,500 is ridiculously small and keeping in view the financial position of the appellant I feel disposed to raise the same to Rs,4,000 (Rupees Four Thousand only) which shall, if realised, be paid to the legal heirs of the deceased,failing which the appellant shall suffer further rigorous imprisonment for six months.
12. But for the reduction in sentence and enhancement in the amount of compensation this appeal is dismissed. The revision petition filed by the complainant automatically fails.