' Maula Bakhsh son of Makhan Khan, caste Gujjar, resident of Chak No, 122/SB, Police Station, Sillanwali, District Sargodha, was tried by the learned Additional Sessions Judge, Sargodha, on the allegations that on 17th June, 1983 at 10 a.m. He committed the murder of his wife Mst. Balqis and made murderous assault on Taj Shah and Talib Shah P.Ws. When they tried to rescue her. By judgment, dated 11th November, 1984 he was convicted "for murdering Mst. Balqis" and sentenced to imprisonment for life and a fine of Rs,5,000 or in default in the payment thereof to undergo further rigorous imprisonment for six months. He was also convicted under section 324, P.P.C. On two counts and sentenced to R.I. For three years and a fine of Rs,2,000 on each count. In default of payment of fine he was ordered to undergo further R.I. Tor four months on each count. All the sentences were ordered to run concurrently. The appellant has appealed through Jail.
2. The brief facts of the prosecution case are that Maula Bakhsh appellant and his family used to reside in Nlandi Kamoke, district Gujranwala. About two years prior to the occurrence, he shifted to Chak No, 122/S.B. With his family and started living in a house which he had purchased from his wife's brother Abdul Hameed. The appellant sold a buffalo to Shaukat P.W. (not produced) for Rs,1,700. He obtained Rs,1,000 from Shaukat and the remaining amount was due from him. On 17th June, 1983 the appellant asked his wife Mst. Balqis to get him Rs,700 from Shaukat P.W. But she refused to do so and told him that she will utilize that amount for purchasing wheat. There was an altercation between them. Bashir Ahmad complainant intervened and pacified them. A short while after, Bashir Ahmad complainant, Talib Shah, Taj Shah P.Ws. And Shaukat Ali (not produced) heard the shrieks of Mst. Balqis and rushed to the house of the appellant. They saw him causing Chhuri blows to Mst. Balqis. Talib Shah P.W. Tried to intervene but the appellant gave him a Chhuri blow on his back. Thereafter, Taj Shah tried to intervene but he aslo suffered a Chhuri blow on his abdomen.
The appellant tried to run away but Bashir Ahmad complainant and Shaukat Ali apprehended him in the lane and snatched the Chhuri from him. Leaving the appellant and the Chhuri in the custody.
Of Muhammad Hussain P.W., Bashir Ahmad complainant left for the police station to lodge the report. On the way he met Muhammad Nawaz, Sub-Inspector in Shaheenabad and reported the occurrence to him vide statement Exh.P.B.
4. After recording the statement of complainant, Muhammad Nawaz,Sub-Inspector, reached the spot. He prepared injury statement Exh.P.L. And inquest report Exh.P.M. On the dead body of Mst.
Bilqees and dispatched it to the mortuary for post-mortem examination. He secured some blood- stained earth from the spot and made it into a sealed parcel vide memo. Exh. P.K. Muhammad Hussain P.W. Produced the accused before the Sub-Inspector and he arrested him. He took into his possession blood-stained Jacket (Exh.P.5) and blood-stained Chadar (Exh.P.6) of the accused vide memo. Exh. P.J. Muhammad Hussain P.W. Also produced Chhuri (Exh.P.1) before the Sub-Inspector vide memo. Exh.P.H. Zahid Hussain P.W. Produced blood-stained shirt (Exh.P.7) of Talib Hussain P.W.
Before the Sub-Inspector vide memo. Exh. P.N. The Sub-Inspector prepared injury statement of Taj Shah P.W. And sent him to the hospital at Chak No, 46 for medical examination. He also prepared injury statement of the appellant and sent him for medical examination. After the investigation the appellant was challaned.
5. On 18th June, 1983 Dr. Syed Muhammad Fardos, Medical Officer, Primary Health Centre, Chak No, 46/S.B. Conducted the autopsy on the dead body of Mst. Balqees and found the following injuries on it:-
(1) An incised wound 5 c.m. x 2 c.m. x nose deep on the middle of the nose.
(2) An incised wound 4 c.m. x 2 c.m. x muscle deep on the right cheek below the eye.
(3) An incised wound 3 c.m, x 11/2 c.m. x muscle deep on the left side of the mouth between the two lips.
(4) An incised wound 14 c.m. x 5 c.m. x trachia and oesophagus deep with vessels cut on front and left side of the neck.
(5) An incised wound 10 c.m. x 5 c.m. x all tissues cut upto vessels on the right side of the neck.
(6) An incised wound 3 c.m. x 11 c.m. x muscle deep on the left forearm upper part inner side.
(7) An incised wound 2 c.m. x 11/2/2 c.m. x bone deep on the left hand right finger back middle part.
(8) An incised wound 3 c.m. x 11/2/2 c.m. x bone deep on the left and index finger lower part inner side.
(9) An incised wound 21 c.m. x 14 c. m. x bone deep on the left hand index finger back inner side middle part.
(10) An incised wound 2 c.m. x 11/2/2 c.m. x bone deep on the left hand back inner side above the wrist joint.
(11) An incised wound 21/2 c.m. x 11/2 c.m. x bone deep on the left hand and little finger back lower part.
(12) An incised wound 5 c.m. x 31/2 c.m. x muscle deep on the right elbow inner side.
(13) An incised wound 31/2 c.m. x 21/2 c.m. x muscle deep on the right elbow inner side.
(14) An incised wound 71 c.m. x 31 c.m. x muscle deep with muscle cut on the right forearm upper part front, inner side and back.
(15) An incised wound 31 c.m. x 2# c.m. x muscle deep on the right forearm back middle part.
(16) An incised wound 24 c.m. x 14 c.m. x muscle deep on the right forearm inner part inner side.
(17) An incised wound 84 c.m. x 3 c.m. x muscle deep x vessls cut x tendon cut on the right hand front.
(18) An incised wound 21/2 c.m. x 2 c.m. On the right hand middle finger upper front part.
(19) An incised wound 21/2 c.m. x 11/2 c.m. x bone deep on the right hand index finger from upper part.
(20) An incised wound 13 c.m. x 5 c.m. x muscle deep on the right buttock outer part.
(21) An incised wound 8 c.m. x 44 c.m. x abdomen deep intestine coming out. Right side of the lower abdomen.
(22) An incised wound 31 c.m. x 11/2 c.m. x muscle deep on the right side of the abdomen outer to umbilicus.
(23) An incised wound 10 c.m. x 4/ c.m. x muscle deep on the right thigh lower lateral part extending on to the front.
(24) An incised wound 44 c.m. x 114 c.m. x muscle deep on the right front upper part.
(25) An incised wound 21 c.m. x 11 c.m. x muscle deep on the right leg outer part middle area.
(26) An incised wound 31/2 c.m. x 11 c.m. x muscle deep on the right left 5 c.m. Below injury No, 25.
(27) An incised wound 71/2 c.m. x 24 c.m. x muscle deep on the right foot front outer side below the outer maleollus.
(28) An incised wound 21/2 c.m. x 24 c.m. x muscle deep on the right foot front below the little toe.
(29) An incised wound 51 c.m. x 31/2 c.m. x muscle deep on the left thigh upper part with skin peeled off.
(30) An incised wound 71/2 c.m. x 41 c.m. x muscle deep on the left thigh lower part.
(31) An incised wound 21 c.m. x 11 c.-m. x muscle deep on the left front middle part.
(32) An incised wound 71/2 c.m. x 1 c.m. x muscle deep on the back of the right side of lower chest going upwards.
' In the opinion of the doctor, death was due to shock and haemorrhage resulting from the injuries.
Injuries Nos. 4, 5 and 21 were individually sufficient to cause death in the ordinary course of nature.
' On 17-6-1983 the same doctor examined Maula Bakhsh appellant and found the following injuries on his person:-
(1) An incised wound 6 c.m. x 11/2 c.m. x muscle deep on the right inner maleollus.
(2) An incised wound 2 c. m. x 11/2 c.m. x muscle deep on the right hand front below the index finger.
' Both the injuries were simple and caused by a sharp weapon.
' On the same day, the same doctor examined Taj Shah P.W. And found an incision 3 c.m. x 1/8 c.m. x skin deep on the abdomen. The injury was simple caused by a sharp weapon.
' On 17-6-1983 Dr. Muhammad Khalid Qureshi examined Talib Hussain P.W. And found a stab wound 31 c.m. x 2 c.m. x depth not probed on the back of right chest on lower part. The injury was kept under observation and later on declared simple in nature.
6. In support of its case the prosecution examined three eye-witnesses, namely, Bashir Ahmad complainant, Talib Hussain Shah and Taj Shah. It also relied on the evidence relating to recovery of blood-stained clothes and Chhuri from the appellant.
7. The appellant pleaded not guilty to the charge. He stated that he was residing in Kamoke but Mst. Balqis fell out with him and started living in Chak No, 122/S.B. And thereafter he also shifted to that Chak. When asked why this case against him, he gave his own version as under:- "I used to live out of my house for days because my wife used to quarrel with me. On the day of occurrence I came to my house at about 5/6 a.m. In the morning and found Talib Shah in compromising position with my wife. I lost temper under grave and sudden provocation, picked up knife lying near and caused an injury on the back of Talib Shah who escaped from there and thereafter I inflicted blows on my wife. When I came out I was caught by Taj Shah and I inflicted an injury on him and he injured me. I myself appeared before the police at police station and the police concocted this false story."
' No evidence was led in defence.
8. The trial Judge observed that the prosecution has failed to prove the motive; he accepted the ocular evidence and held that the plea taken by the accused was baseless.
9. The learned State counsel does not support the impugned judgment. He submits that the presence of Bashir Ahmad and Taj Shah P.Ws. At the spot is highly doubtful and the facts and circumstances clearly support the plea of grave and sudden provocation raised by the appellant.
10. There are two versions of the occurrence, one narrated by the prosecution and the other by the defence. The prosecution version is that the appellant asked Mst. Balqis to get him Rs,700 from Shaukat but she refused to do so, upon which there was an altercation between them which came to an end on the intervention of Bashir Ahmad complainant. A shortwhile after, Bashir Ahmed, Talib Shah and Taj Shah P.Ws. Got attracted to the house of the appellant on hearing the shrieks of Mst.
Balqis and saw the appellant giving Chhuri blows to her, as a result of which she died at the spot.
' The appellant's version is that he used to live out of his house for days because the deceased used to quarrel with him. On the day of occurrence he came. To his house at 5 or 6 a.m. In the morning and found Talib Shah P.W. In a compromising position with the deceased. He lost his temper, picked up a knife lying near and caused an injury on the back of Talib Shah who escaped and thereafter he gave blows to his wife. When he came out he was caught by Taj Shah. He inflicted an injury to Taj Shah who in turn injured him.
' The only question that requires to be considered in this case is as to which version is more plausible.
11. The motive alleged by the prosecution was that Shaukat P.W. Had purchased a buffalo from the appellant for Rs,1,700. He paid Rs,1,000 to the appellant and the remaining amount was due from him. On the fateful day the appellant asked his wife to get him Rs,700 from Shaukat but she refused to do so, upon which there was an altercation between them and it ultimately resulted in this murder. Aforementioned Shaukat was the best witness of the motive. He was cited as a P.W. But was not examined at the trial. Thus, the best evidence regarding motive was withheld by the prosecution. As the buffalo was sold by the appellant, aforementioned Shaukat had to pay the remaining amount to him, and not to Mst. Balqis deceased. The appellant was not obliged to get her services for getting the remaining amount. Being the creditor, he himself could demand the same from aforesaid Shaukat. Thus, the motive alleged by the prosecution remains unsubstantiated.
12. The prosecution version is that Bashir Ahmad, Talib Hussain and Taj Shah got attracted to the spot on hearing the shrieks of the deceased and saw the appellant giving Chhuri blows to her. The occurrence took place inside the room. A glance at the site plan would show that the room of occurrence had a small door with a Verandah in the front. Blood-stained earth was taken into possession from point No,1 and the eye-witnesses allegedly saw the occurrence from point No, 2 which falls in the Verandah. If the eye-witnesses were present, they could easily apprehend the accused inside the room or in the verandah and would not have allowed him to escape as he was not armed with any fire-arm. Absence of any effort on the part of the eye-witnesses to apprehend the accused in the Verandah or in the room of occurrence creates a serious doubt about the genuineness of the prosecution version. If the eye-witnesses were present, they would also not permit the appellant to cause as many as thirty-two injuries on the person of the deceased. The appellant was armed only with a Chhuri and the P.Ws. Who were three in number, could easily stop him from causing further harm. Particularly, Bashir Ahmad P.W. Being the brother of the deceased, would not have hesitated to intervene even at the cost of being injured. In the circumstances, the prosecution version of the occurrence seems to be highly doubtful.
13. The plea set up by the accused finds substantial corroboration from the facts available on the record. It is admitted by both the parties that the appellant used to stay out for days together. The prosecution version is that the appellant was a wanderer, but he stated that he used to stay out as the deceased used to quarrel with him. The explanation given by the appellant rings true as the statement of Bashir Ahmad complainant shows that the deceased had deserted the house of the appellant due to some matrimonial dispute. It appears that she had no liking for the appellant and was not having normal relations with him. Talib Shah P.W. Admitted that he was on visiting terms to the house of the appellant. Taj Shah P.W. Also admitted this fact, but Bashir Ahmad tried to suppress it saying that Talib Shah P.W. Was not on visiting terms to the house of the appellant. The solitary injury on Talib Shah was on his back which could not possibly be suffered while trying to intervene. Had the accused attacked him while he was trying to intervene, in all probability the injury would have been on the front side. Mst. Balqis had thirty-two injuries on her person. The large number of injuries suggests that the appellant was completely deprived of the power of self- control. Refusal of Mst. Balqis deceased to get Rs,700 from Shaukat would hardly constitute a motive for causing such a large number of injuries. The above facts and circumstances lend substantial support to the plea of the appellant and there is a reasonable possibility that he caused injuries to the deceased and Talib Shah P.W. Under the impulse of grave and sudden provocation as alleged by him. His conviction on charge of "murdering Mst. Balqis" is, therefore, altered to section 304, Part I, P.P.C. And his sentence is reduced to rigorous imprisonment for three years. His conviction under section 324, P.P.C. For causing injury to Talib Hussain Shah P.W. Is altered to section 334, P.P.C. And his sentence is reduced to rigorous imprisonment for seven days. His conviction on the charge of causing injuries to Taj Shah is maintained but his sentence is reduced to R.I. For three months as the injury was in the nature of a skin deep incision. All the sentences shall run concurrently. Sentence under section 304, P.P.C. Has been passed after considering the provisions of section 382-B, Cr.P.C. The appeal stands disposed of accordingly. The appellant be informed in jail.
' While parting with this judgment, I am pained to say that the impugned judgment does not conform to the requirements of section 367, Cr.P.C. It appears that the Additional Sessions Judge has no knowledge of the basic principles of the criminal law. He has avoided to mention the section of the P.P. C. Under which he convicted the accused for causing the death of Mst. Balqis, obviously for the reason that he could not conclude as to what offence the appellant had committed. The judgment is unintelligible and very unhappily worded. A passage from the same is reproduced below:- "By keeping in view the prosecution evidence, circumstances of the case, and the statement of the accused, the only point for the determination is whether there are any sort of provocation, mitigating circumstances for awarding the capital punishment. Bashir Ahmad P.W.2 stated that when he went to see his sister Mst. Balqis deceased in the house of Maula Bakhsh he saw both husband and wife were quarrelling. He intervened and asked them not to fight. But as soon as he reached in his own house he heard shrieks raised by Mst. Balqis, the deceased. From this fact it transpires that his wife who has been 15/16 years of age alongwith him and is mother of six children has uttered the same word which provoked Maula Bakhsh accused to this extent that he inflicted grievous injuries. This provocation seems to be so grave that he has not only inflicted grievous injuries upon Mst. Bilqees deceased but also to the P.Ws. Who tried to intervene. Exception-I to section 300, P.P.C. In a short interval between the provocation and the homicidal action during which under the spell of provocation normal person is likely to loose his mental equilibrium when there is very brief or little time for cooling down of the passion so arose. In considering as to what would constitute a grave or sudden provocation the norms of morality and the custom of the society to which a person belongs his age, mental make up, his education, environment in which the offence is committed are to be kept in view. Maula Bakhsh accused is uneducated, 50 years of age and belongs to uneducated family."
' The judgment is replete with contradictions, inchoate expressions and meaningless phrases. On the one hand the Additional Sessions Judge stated that the accused had acted under grave and sudden provocation and on the other he convicted him for "murdering Mst. Balqis". He just reproduced the statements of the eye-witnesses and stated that they had no motive to falsely implicate and that the plea of the accused was baseless. Section 367, Cr.P.C. Requires that judgment must contain the point or points for determination, the decision thereon and the reasons for the decision. It was a case in which the accused had taken a specific plea. The Cou,rt was required to put both the versions in juxtaposition and arrive at a definite conclusion after considering the entire evidence. The impugned judgment does not fulfil the mandatory requirements of section 367, Cr.P.C.