' This appeal is directed against the judgment of learned Sessions Judge, Faisalabad, dated 12-11- 1981, whereby Babar appellant was convicted under section 302, P.P.C. And sentenced to life imprisonment and a fine of Rs,1,000 or in default in payment of fine to undergo R.I. For six months.
Bashir Masih complainant filed revision petition for the enhancement of sentence, which was ordered to be heard along with criminal appeal. The appeal and the revision petition are being disposed of together.
2. On 23-1-1980, at about 5-30 p.m., Yousuf alias Maru deceased, Yousuf Masih (P.W.8) and Boota P.W. (not produced) were present in the house of Bashir Masih complainant situated near Sadar Chowk Warispura, at a distance of one and a half miles from Police Station Peoples Colony. The deceased came out of house on hearing exchange of abuses between his wife Mst. Hamidan and Mat. Bashiran an aunt of the appellant. He abused Mst. Bashiran. In the meantime, the appellant came from his house armed with Chhuri. He shouted to the deceased that he was fed up of his mis-deeds (Kaarstanian). On hearing the noise, Bashir Masih complainant, Yousuf Masih and Boota P.W. Also came out of the house. Within their view, the appellant inflicted blows to the deceased on left lion region and chest. The deceased fell down. The appellant inflicted more blows on his left knee. The abovementioned witnesses tried to apprehend the appellant who succeeded in making good his escape. The motive for the occurrence was that the appellant suspected the deceased of having illicit relations with his sister. Mst. Shamim.
3. The deceased was taken to the hospital in an injured condition where he succumbed to the injuries. Bashir Masih complainant left hospital for the Police-Post. He met Abdul Hameed S.I. At Jhaal Khanuana, Satiana Road, and made statement Exh. P.D. His statement was completed at 6- 45 p.m. It was sent at the Police Station and formal F.I.R. Was recorded at 7-5 p.m.
4. Abdul Hameed S.I. Reached hospital, prepared injury statement and inquest report of the deceased and sent the dead body to the mortuary. From hospital, he went to the spot, collected blood-stained earth and sealed it into a parcel. He arrested the appellant, on 24-1-1980, who produced blood-stained dagger P.3 from his house which was sealed into a parcel. The appellant was challaned after investigation.
5. The prosecution examined nine witnesses, including two eye-witnesses, Bashir Masih complainant and Yousuf Masih. The deceased had two stab wounds on the chest and left lateral chest. He had three incised wounds on the left knee. Injuries Nos. 1 and 2 which were on the right front chest and left lateral chest were individually sufficient to cause death in the ordinary course of nature. The two eye-witnesses named the appellant as the murderer.
6. The appellant had taken up the plea of grave and sudden provocation. In his statement made before the trial Court, he stated that on the day of occurrence he was present in his house when he heard the cries of his sister Mst. Shamim. It was dark. He went out and found the deceased holding Mst. Shamim and dragging by her arm. He lost self-control, picked up a Chhuri from his house and caused injuries to the deceased. Bashir Masih complainant (P.W.7) and Yousuf Masih (P.W.8) made an attempt to change the motive of this case. It was a dishonest move. It was clearly stated by the complainant in his statement Exh.P.D. That the appellant suspected the deceased of having illicit relations with his sister Mst. Shamim. During the trial, the complainant stated that five or seven days before the occurrence, his brother Yousuf deceased had given beating to the accused in front of his house and it was on account of that grudge that the appellant had killed him. During cross- examination, he stated that he mentioned before the Police that the deceased made assault on the appellant. He was duly confronted with the said statement where it was not so recorded. The complainant stated before the trial Court that the deceased had no illicit relations with Mst.
Shamim. Tie mentioned before the trial Court that he had made such a statement before the Police. He was confronted with his statement Exh. P.D., where it was not so recorded. He further added that before the murder he did not know that the accused had suspected the deceased of having intimacy with his Sister. Similarly.
' Yousuf Masih stated before the trial Court that eight or ten days before the occurrence, the deceased had given slaps to the accused. It was on that account that the accused bore grudge against the deceased. During the cross-examination, he admitted that he had not stated before the police about this motive. His position before the police was that the accused suspected the deceased of having illicit relations with his sister Mat. Shamim. He was duly confronted with his statement Exh. PAY., where the said motive was recorded. The two eye-witnesses totally discarded the motive given in the F.I.R. And introduced b new motive dishonestly.
7. The deceased was not a person of good character. He was previously married to Mst. Sharifan, who deserted him. The deceased did not divorce her. Being a christian, he could not marry a second time during the subsistence of the first marriage. Mst. Hamidan was living in the house of the deceased for the last seven/eight yeaRs, According to the complainant, the deceased had married Mst. Hamidan and the marriage was solemnized in Faisalabad. The complainant admitted that he was not present at the time of second marriage. The complainant was not sure if the marriage was solemnized at Faisalabad or at Sangla Hill. In the first instance he stated that it took place at Faisalabad but in the same breath he stated that it was solemnized at Sangla Hill. The complainant admitted in cross-examination that the police raided the house of the deceased and found the deceased, Yousuf Masih and Boota P.Ws. Gambling. The deceased, Yousut Masih and Boota P.Ws. Were challaned in the case. Besides proving that the deceased was not a person of good character, the last admission of the complainant would also prove the connection of Yousuf Masih and Boota P.Ws. With the deceased.
8. Bashir complainant, a real brother of the deceased, resided in another lane. The houses of the deceased and the appellant were situated close to each other. Only one house intervened between their houses. According to the prosecution version, Yousuf deceased, Yousuf Masih and Boota P.Ws. Were present in the house of Bashir Masih complainant and on hearing the exchange of abuses between Mst. Hamidan and Mst. Bashiran, the deceased had come out of the house. If the deceased had been present in the house of Bashir Masih alongwith other P.Ws., the three eye- witnesses would have also come out of the house along with the deceased. Contradiction between the statements of Bashir Masih complainant and Yousuf Masih P.W. Would further prove that th eye-witnesses, namely, Yousuf Masih, Boota and the deceased had not gone to the house of Bashir Masih complainant. The eye-witnesses changed the prosecution version by stating that they followed the deceased when the latter came out of the house. It was stated by the complainant in the F.I.R. That the appellant abused the deceased and challenged that he was fed up of his mis- deeds and would not allow him to escape and on hearing it, he along with Yousuf Masih and Boota came out of the house. The spot of occurrence was situated in thickly populated area but no person from the locality came forward to support the prosecution case.
9. Yousuf Masih P.W. Did not accompany the deceased when he was being taken to the hospital in an injured condition. It was an unnatural conduct. He was having good relations with the deceased.
If he had been present at the spot and had witnessed the occurrence, he would have accompanied the deceased to the hospital. For the reasons stated above, I hold that Bashir Masih and Yousuf Masih P.Ws. Had not witnessed the occurrence.
10. The appellant had taken up the plea of grave and sudden provocation. It was the case of the prosecution that the deceased was suspected of having illicit relations with Mst. Shamim. The occurrence had taken place at about sunset time, near the house of the appellant and far away from the house of the deceased. The deceased had come out of house on hearing the noise. Mst.
Hamidan was not produced byl, the prosecution to state that in fact she had exchanged abuses with Mst. Bashiran and on hearing the noise, the appellant had come to the spot. She was a material witness to prove the fact as to how thei. Assault was made on the deceased. The statements of the two, eye-witnesses have already been discarded. The challenge thrown by the appellant was to the effect that he was fed up with the mis-deeds of the deceased. It further goes to prove that the deceased was responsible for his own murder. The plea taken up by the appellant receives support from the various circumstances. I accept this appeal and alter the sentence from section 302, P.P.C. To section 304 Part-I, P.P.C. The sentence of the appellant is reduced to imprisonment for ten years and w fine of Rupees one thousand. In default in payment of, fine, he shall suffer ' R.I. For six months. The benefit of section 382-B, Cr.P.C. Shall be given to the appellant and the period spent by him as under-trial prisoner, shall be counted towards his sentence.
' Since the appeal has been accepted, the revision petition for enhancement of sentence is dismissed.