' Dilloo son of An Sher aged 42 years and his cousin Faqiroo son of Gulsher aged 45 years, both residents of Umar Kot, district D.G. Khan (now Rajanpur) have been convicted for the murder of Allah Rakha Shah aged 55 years by Additional Sessions Judge, D.G. Khan, vide judgment, dated 29- 8-1979 and sentenced to imprisonment for life and a fine of Rs,2,000 each in default whereof to further undergo 3 months' simple imprisonment each. Fine if realised was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. The convicts have filed this appeal against their conviction and sentence.
2. The occurrence took place in the bazaar of village Umer Kot, district D.G. Khan, at evening time on 7-12-1976. The incident was reported at a local police post the same day at 6.00 p.m. By Wazir Hussain Shah (P.W.10), brother of the deceased, vide his statement Exh. P.F. Recorded by Khuda Bakhsh, Head Constable (P.W.12), which formed basis of formal F.I.R. Exh.P.F./1 drawn up by Head Constable Ismat Ullah (P.W.8) at 8.45 p.m. At Police Station Rojhan situate about 15 miles away from the scene of offence.
3. Prosecution case briefly is that on 7-12-1976 at evening time, the first informant Wazir Hussain P.W. In the company of Nazar Hussain Shah and Riaz Hussain P.Ws. Went to the hotel of Shabbir Ahmad for taking tea. On their arrival, Allah Rakha Shah (deceased) who was already sitting there, got up and left for his house. After a short while, they heard alarm and rushed towards that side and saw that at a distance of about 74 Karams Dilloo armed with hatchet and Faqiroo armed with stick giving blows to the deceased who fell on the ground due to injuries. Wazir Hussain P.W.
Challenged them, at which, Dilloo shouted that he had taken revenge from the deceased for not vacating his land encroached by him (deceased). The appellants then decamped with their weapons. Allah Rakha Shah died at the spot. Leaving dead body in the care of Riaz Hussain and Nazar Hussain P.Ws., Wazir Hussain went and lodged report Exh.P.F. At Police Post, Umer Kot at a distance of 14 Furlong from there.
4. Head Constable Khuda Bakhah (P.W.12) after registering the case proceeded to the spot.
Reaching there he prepared the inquest report Exh.P.N. And sent the dead body for post-mortem examination under police escort. He arrested both the appellants on 8-12-1976. Dilloo produced blood-stained hatchet P.5 and Faqiroo produced bloodstained Dang P.6 at the time of their arrest which were sealed and secured under separate memos. Exh.P.G. And Exh.P.H. Respectively. Blood- stained shirt P.7, Lungi P.8 of Dilloo and blood-stained shirt P.9 and Chaddar P.10 of Faqiroo were removed from their persons and seized under memos. Exh.P.J. And Exh.P.K. He got site plan Exh.P.E.
Prepared from Manzoor Ahmad, Patwari (P.W.7). Hatchet P.5 and stick P.6 and clothes P.7 to P.10 were found as stained with human blood vide Chemical Examiner's report Exh.P.O. And that of Serologist Exh.P.Q. After completing usual investigation the appellants were challaned to Court.
5. Dr. Hasnain Pitafi (P.W.1) who performed autopsy on the dead body of the deceased noted following injuries:-
(1) An incised wound 94" x 4" x brain cut on back of middle of head starting from just in front of middle of head going backward and downward ending 4" above the lower part of back of skull.
(2) A contusion 3" x 1" on anterior side of middle of head 4" above forehead.
(3) A contusion 2" x 1/2" on right side of forehead 1" above right eye-brow.
(4) Contusion 24" x 4" on back of neck.
6. In the opinion of the doctor the injuries were ante-mortem.Injury No,1 was caused with sharp- edged weapon and rest with blunt weapon. Injury No,1 was found to be fatal and sufficient to cause death in ordinary course of nature. Duration between infliction of injuries and the death was 10/20 minutes and between death and post-mortem examination 16-18 hours. According to the doctor injuries No,2 to 4 cution Story that blood-stained clothes and the weapons of offence were produced by him voluntarily on the following day of occurrence before the Investigating Officer is not believable. It does not sound to reason that this appellant was carrying tell-tale articles till second day of the occurrence and without washing off the blood from those articles C would hand them over to the police. I am not, therefore, prepared to rely these recoveries against Faqiroo, appellant.
13. After discarding the prosecution evidence there remains Dilloo's statement in the field, which is to be accepted as a whole unless some part of it is found palpably false. The next question which arises for determination is, whether the deceased by calling Dilloo "a bad character, catamite and a Beghairat" caused to the appellant grave and sudden provocation. To answer the question, the appellant's occupation, age and social set-up in which he lived have to be considered. Dilloo, appellant, belongs to Gerani branch of a Baloch tribe from the interior of district D.G. Khan, which has the influence of customs prevailing in Baluchistan Province being contiguous to that part of the country. In a case decided by Baluchistan High Court reported as Bahawal Khan v. Crown PLD 1953 Bal. 7, the accused who shot dead the deceased on being taunted by him as "catamite" was held to have acted under grave and sudden provocation and the offence committed was held to be one of culpable homicide not amounting to murder. In another case Muhammad Hayat v. The State PLD 1977 Lah. 222, the accused stabbed the deceased who cut a dirty joke with him and was convicted by the trial Court under section 304, P.P.C. And sentenced to 10 years' R.I. On appeal a learned Judge of this Court observing;-- "It will be not unsafe to presume that the dirty joke must have caused extreme annoyance to the appellant which had resulted in the loss of self-control because the attack had been sudden." reduced the sentence from 10 years to 7 years. These precedents are applicable on all fours to the facts of the case in hand. The injuries found on the person of the decease can be caused with blunt as well as sharp sides of hatchet, as admitted by the doctor. I would, therefore, hold that Dilloo, appellant, on being called as "catamite" and "Beghairat" lost self-control and under fit of grave and sudden provocation attacked with right and wrong sides of the hatchet and killed him.
Consequently, accepting the appeal, conviction and sentence of Faqiroo, appellant, is set aside and he is acquitted. He is on bail. He is discharged of his bail-bonds. The conviction of Dilloo, appellant, is altered from section 302, Part-I, P.P.C. And his sentence is reduced to 10 years' rigorous imprisonment. It is further directed that benefit of section 382-B, Cr.P.C. Shall be allowed to him while computing his sentence of imprisonment. Dilloo, appellant, is on bail. His bail is cancelled. He shall be taken in custody and sent to jail to serve out the remaining part of his sentence. The trial Court shall take necessary steps for committing Dilloo, appellant, to jail, as directed.