' This Criminal Appeal No,541 of 1982 arise from the judgment of learned Additional Sessions Judge, Jhang whereby he on 4-8-1982 convicted Khushi aged 13 years under section 302, P.P.C. For causing the death of Feroze and sentenced him to imprisonment for life and a fine of Rs,1,000 in default thereof six months' R.I. He was directed to pay Rs,2,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In default thereof six months' R.I.
2. The occurrence took place on 12-3-1981 at about evening time in the area of mouza Bawrey of Police Station Lalian. The distance between the place of occurrence and the Police Station is 15 miles. F.I.R. Is statement Exh.P.D. Of Lala P.W.6 uncle of the deceased and a collateral of the appellant. It was recorded by Talib Ali A.S.I. P.W.8 at 7-40 p.m. At bridge Kot Qazian. The distance between the bridge and the place of occurrence is 9 miles. Formal F.I.R. Exh.P.D/1 was drawn up at the Police Station at 8-30 p.m. On the same day by Allah Rakha Head Constable P.W.3.
3. The motive as set up by the prosecution was that the deceased was suspected of having illicit relations with Mst. Rasoolan the wife of Khushi Muhammad appellant.
4. As for the main occurrence, it has been stated that on the eventful time Lala P.W.6, Chakar P.W.7, Dosa (not produced) had gone to neighbouring village to offer condolence on the death of one Khan. On their way back to their houses when they were 30-35 Karams away from the Dhari of Ghulam Lallera, they saw Feroze leading them by 16-17 Karams. The appellant armed with a spear emerged out of the sugarcane field. He raised Lalkara and inflicted injury on the front of the chest of Feroze with his spear who fell down and died immediately. The witnesses tried to apprehend the appellant. He threatened them with dire consequences and made good his escape taking away the spear with him.
5. On 13-3-1981 at 11 a.m. Doctor Abdullah Shah Hashmi conducted post-mortem examination on the dead body of Feroze and found: "It has a stab wound 2" x 1" the chest cavity, slightly above medical to the left nipple at the level of the 2nd, 3rd and 4th rib. It was transverse to the body line. Blood was oozing from the wound. His skull and vertebrae were not opened. In the thorax he had stab wound 2" x 1" cutting x the chest cavity. Wound was passing in the intercostal space. Pleura was healthy. Lungs, lyranx were also healthy. Paricardium and heart were cut corresponding to the external injury. Right heart was cut at its upper part and was empty. Chest cavity of the left side was full with blood. Nothing abnormal was seen other in the chest. In abdomen all the organs were healthy. Stomach contained digested food. The small intestines contained also digested food while the large intestines were having the faecal matter. Bladder had 2 ounces of urine. No bony cut or dislocation was seen."
' In his opinion the cause of death was due to shock and haemorrhage as a result of injury direct to the right heart which had been inflicted by a pointed weapon having both edges sharp. The death was immediate. The time between the death and post-mortem was 16 to 18 hours.
6. The appellant was arrested on 15-3-1981 by Talib Ali A.S.I. P.W.8. The appellant led to the recovery of blood-stained spear P.3 from a sugarcane field which was taken into possession vide Exh.P.G.
Attested by Sabir P.W.7 (not produced). The recovery memo. Was prepared by Talib All P.W.8. The Serologist report Exh.P.L. Reveals that spear was stained with human blood.
7. To prove its case, prosecution examined 8 witnesses. Lala P.W.6, Chakar P.W.7 has given the ocular account of the occurrence. They claim to have seen the appellant causing spear injury to the deceased resulting in his death. Chakkar P.W.7 also supported the recovery of blood-stained spear P.3 at the instance of the appellant. Rest of the evidence is of formal nature.
8. When examined under section 342, Cr P.C. The appellant denied all incriminating circumstances.
In reply to the question, whether he had anything else to say, he stated:- "I am innocent. I, my wife Mst. Rasulan, and my sister were working at sugarcane crusher near the place of occurrence. At about Deegerwela my wife went towards standing sugarcane crop for easing herself. After sometime I heard whisperings from the sugarcane crop. I was furling the furnace while having a spear-shaped implement with me for that purpose. I went to the sugarcane crop having the implement with me. I saw Mst. Rasulan and Feroze embrasing each other there I lost self-control due to grave and sudden provocation. Therefore, I inflicted a piercing blow hitting the front chest of Feroze who fell down near the roadside after covering a distance of 3-4 Karams.
Mst. Rasulan escaped in the meantime. I threw the spear in the field and went to my house. I was arrested on the following day of the occurrence from my house."
9. The trial Court has believed motive, ocular evidence and recovery of spear P.3 at the instance of appellant.
10. The learned counsel contends that the occurrence did not take place in the manner as alleged by the prosecution; that Lala P.W.6 and Chakar P.W.7 are not reliable witnesses; that they had not seen the occurrence that from the prosecution case it is not certain as to what actually happened before the appellant opened attack on the deceased and that in the circumstances of the case, there is a reasonable possibility of defence plea having true.
11. Since it is a case of two versions, so, I proceed to appreciate it in accordance with the guiding principles laid down by the superior Courts for the appreciation of evidence in such like cases. For that, I would like to discuss prosecution case and its evidence first so as to come to independent finding on the truth or falsity of the prosecution case and its evidence. In case I exclude the prosecution case or its evidence more particularly the ocular evidence from consideration then the statement of the accused recorded under section 342, Cr.P.C. Will have to be accepted. If do not exclude prosecution case and ocular testimony furnished by the eye-witnesses in toto, I will then examine the two rival case placing in juxtaposition and will review the entire evidence and circumstances appearing in the case at the close to arrive at a conclusion regarding the truth or falsehood of defence plea and will estimate its total effect in relation to two questions.
(i) Is the plea of the appellant satisfactorily established by the evidence and circumstances appearing in the case?
(ii) If the answer be in the negative, is there yet a reasonable possibility that plea of grave and sudden provocation raised by the appellant might be true.
As for the prosecution case I find that it is case of prompt F.I.R. There is nothing on record that the F.I.R. Was not written at the time anal place as it purports. The name of the appellant, the name of the deceased, the names of the eye-witnesses the weapon used by the appellant and the manner in which the occurrence took place all are given therein. This genuine and prompt valuable document may be used to corroborate the first informant/complainant. Coming to the eye- witnesses, I find that they have given plausible cause of their presence at the place of occurrence.
Their names are also mentioned in the F.I.R. Lala complainant is collateral of the appellant. Chaker had no enmity with the appellant. He is quite independent witness. I do not see any inherent infirmity in their statements which may warrant total rejection of their statements. Their statements do not suffer from infirmities such as material contradictions/major discrepancies and dishonest improvements. For all these reasons, I do not feel inclined to exclude their evidence from consideration.
12. This brings me to the two questions posed in the preceding para. Of the judgment. So far as the first question is concerned, I find that the appellant had not led any evidence to establish his plea of grave and sudden provocation. Except his bald statement. There is no other direct evidence to prove the plea of appellant. So my answer to the first question is in the negative. Adverting to question at (ii), whether there is a reasonable possibility that the plea of grave and sudden provocation raised by the appellant might be true. My answer would be in the positive. I find that the motive as alleged by the prosecution was that the deceased was carrying on with the wife of the appellant that since the deceased was not with the eye-witnesses immediately before the occurrence, therefore, the witnesses could not have known and seen anything happening before they saw the deceased for the first time going at a distance of 15/16 Karams and that Lala P.W.6 has stated that when they saw Khushi appellant for the first time, he was coming from the sugarcane crops field while running and was one Karam away from the place of occurrence. Since the eye-witnesses had not seen what according to the appellant had happened in the sugarcane field therefore, there is nothing to falsify the exploratory part of the statement of the appellant that he had seen his wife and the deceased sitting in the sugarcane field embracing each other. For all these reasons, in the peculiar circumstances of the case, the reasonable possibility that the appellant might have seen the deceased sitting with his wife in the sugarcane field before the eye- witnesses could see the deceased and the appellant, cannot be excluded. For the safe administration of justice in criminal cases, the plea raised by the appellant has to be accepted.
13. The upshot of the discussion is that there being no satisfactory basis to uphold the conviction of the appellant under section 302, , P.P.C. The same is altered to under section 304-1, P.P.C. And he is sentenced to five years' R.I. He will get the benefit of provisions of section 382-B, Cr.P.C. With this modification the appeal is dismissed.