' Muhammad Saleem aged 20 years and Muhammad Shabbir aged 15 years, sons of Sardar Muhammad, were convicted on 1-12-1982, by the learned Sessions Judge, Toba Tek Singh, under section 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs,5,000 each or in default in payment of fine to undergo further R.I. For two years. It was ordered that out of the fine, if recovered, Rs,8,000 shall be paid to the legal heirs of the deceased as compensation.
2. On 1-3-1981, at about 8 a.m. Ali Muhammad deceased was going towards his fields followed by his wife Mst. Bashiran Bibi complainant and Muhammad Sarwar (nephew of Mst. Bashiran Bibi).
When the deceased reached near the field of Noor Muhammad, he was caused injuries by the two appellants with hatchets. The deceased fell down and died on account of injuries. The occurrence was witnessed by Mst. Bashiran Bibi (P.W.1), Muhammad Tufail (P.W.2) and Muhammad Sarwar (not produced).
3. Three-four days prior to the occurrence, the ladies belonging to the complainant party and accused family including their mother quarrelled with each other. The deceased separated them and caught hold of the hand of the mother of the appellants. The appellants felt offended. They were of the view that the deceased had caught hold of the hand of their mother with some ill- design. It was alleged by the prosecution that the appellants committed the murder of Ali Muhammad on that account.
4. Mst. Bashiran Bibi lodged F.I.R. The same day at 10 a.m. Which was recorded by Muhammad Sarfraz Khan S.I. (P.W.9). The Sub-Inspector reached the spot, collected blood-stained earth and sealed it into a parcel. He sent the dead body to the mortuary after preparing injury statement and inquest report. He arrested the appellants on 2-3-1981. Muhammad Saleem appellant produced blood-stained hatchet P.1 and it was sealed into a parcel. Muhammad Shabbir appellant produced blood-stained hatchet P.2 which was sealed into a parcel. Both the memos. Were attested by Bashir Ahmad (P.W.4) and Muhammad Sadiq (not produced). The hatchets were sent to the Chemical Examiner. Human blood was found on both the hatchets.
5. Dr. Muhammad lqbal conducted the post-mortem examination on the dead body of All Muhammad. He found the following injuries on his person:-
(i) An incised wound 8 cm x 2 cm x brain deep above downward and transversely over the right parietal region.
(ii) An incised wound 7 cm x 2 cm x brain deep transversely over the right occipital region.
' In the opinion of the doctor, the death was due to shock and haemorrhage on account of Injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. Both the injuries had been caused with sharp-edged weapon. The duration between injuries and death was two to three minutes and between death and post-mortem about twenty-four hours.
6. Mst. Bashiran Bibi (P.W.1) and Muhammad Tufail (P.W.2) supported the prosecution case by stating that the two appellants had inflicted one hatchet blow each to the deceased and committed his murder. They further stated that they had seen the occurrence. Bashir Ahmad (P.W.4) supported the recoveries of blood-stained hatchets at the instance of the two appellants.
Muhammad Sarfraz Khan (P.W.9) supported the investigation. Rest were the formal witnesses.
7. Muhammad Saleem appellant admitted his presence at the spot.
' He admitted to have inflicted hatchet blows to the deceased. He gave the following explanation:- "I am innocent. About four days before the occurrence I was present at my house in the Chak, when I heard alarm from the lane being raised by the womenfolk. I went there and saw All Muhammad deceased holding the arm of my mother in such a way that I suspected his bad intention. On seeing me All Muhammad deceased went away. On the day of occurrence, I came across Ali Muhammad deceased just by chance on the spot, as I was going towards my fields. At that time I was holding small hatchet in my hand. I expostulated with All Muhammad deceased about the previous incident of holding of my mother's arm by him. Instead of clarifying his position All Muhammad deceased used insulting and provocative words. Rather he proclaimed that what to talk of holding by her arm he was having illicit intercourse with her occasionally. On hearing these objectionable remarks from All Muhammad I was gravely provoked. I lost the power of self-control on myself and so I killed him with hatchet under grave and sudden provocation. My brother co- accused Muhammad Shabbir was not present there, and also on the earlier occasion."
' Muhammad Shabbir did not admit his presence at the spot. He professed innocence. He denied to have produced blood-stained hatchet.
8. The appeal had been filed through Jail. I was taken through the entire record. I was not impressed by the statements of the two witnesses, namely, Mst. Bashiran Bibi and Muhammad Tufail. The former was a widow while the latter was a close relative of the deceased. Mst. Bashiran Bibi had deposed before the trial Court that when her husband separated the womenfolk of the accused, the accused exchanged abuses with him and pronounced that they would avenge the insult by killing Ali Muhammad. She further stated that Bashir Ahmad and Muhammad Anwar P.Ws intervened and separated them. Mst. Bashiran Bibi had Aold a different story at the time of lodging the F.I.R. It was not her case that both the accused were present when her husband separated the womenfolk of the accused. She had made material improvement on the F.I.R. As regards the motive and she was duly confronted with the F.I.R. She had named Bashir Ahmad and Muhammad Anwar P.Ws. As the persons who had rescued the deceased from the appellants. Bashir was examined in Court but he did not support her version. Muhammad Anwar was, however, not examined. There was solitary statement of the complainant as regards the motive. It was quite clear from the record that when the deceased separated the womenfolk of the accused, the accused were not present at that time. Mst. Bashiran Bibi complainant had made false statement in that regard.
' Muhammad Tufail (P.W.2) was a chance witness. He worked at a brick-kiln which was at a distance of two miles from his Chak. He was proceeding towards the bus stop of Chak No, 360 G.B.
He was son of paternal aunt of Mst. Bashiran Bibi. His wife was also a relative of Mst. Bashiran Bibi.
Both the eye-witnesses had no occasion to be present at the spot. According to the eye-witnesses, the appellants had inflicted hatchet blows to the deceased when the appellants and the deceased were in standing, position. Injury No, 2 to the deceased could not result in a standing position. The direction of the injury was such. He had received this injury while he had fallen on the ground. After having considered the evidence, I have come to the conclusion that both the eye-witnesses were not present at/the spot.
9. The evidence of recovery of blood-stained hatchet at the instance of Muhammad Shabbir could not be considered for the reason that in the recovery memo. (Exh.P.E.), it was nowhere recorded that the hatchet, produced by Muhammad Shabbir, was stained with bood.
10. Muhammad Saleem had admitted his presence and he had taken up the plea of grave and sudden provocation. He stated before the trial Court that he had committed the murder of Ali Muhammad under grave and sudden provocation. He stated that his brother Muhammad Shabbir was not present. The statements of Mst. Bashiran Bibi and Muhammad Tufail have already been rejected by me. Under these circumstances, the statement of Muhammad Saleem has to be accepted. The appeal of Muhammad Shabbir is accepted and he is acquitted of the charge. He shall be set free forthwith unless wanted in some other case.
11. The conviction of Muhammad Saleem appellant is altered from section 302, P.P.C. To section 304, Part I, P.P.C. And his sentence is reduced from imprisonment for life to rigorous imprisonment for ten years. The sentence of fine is, however, maintained. The amount of fine, if recovered, shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Shall be given to Muhammad Saleem appellant and the period spent by him as under-trial prisoner shall be counted towards his sentence. The appeal of Muhammad Saleem is partly' accepted in the above terms.