' KAMAL MUSTAFA BOKHARI, J.-- Muhammad, aged 18 years son of Usman, with four others was tried for the murder of Ibrahim, aged 28 years, by Additional Sessions Judge, Dera Ghazi Khan, on 13-12- 1979, who acquitted his four co-accused and convicting Muhammad under section 302, P.P.C.
Awarded him sentence of life imprisonment and fine of Rs,500 or in default thereof to undergo simple imprisonment for two months. The fine, if realized, was ordered to be paid to the heirs of the deceased. The convict has filed appeal against his conviction and sentence. On the revision filed by the State (Criminal Revision No,623 of 1980) notice was issued to the appellant for enhancement of his sentence. This judgment will dispose of both the matters.
2. In an occurrence which took place during the night between 9/5th of May, 1977 in the area of village Shadan Lund the appellant with a Sota, his co-accused Usman with a hatchet, Lakhi with a Khanjar, Ismail and Hassan with a Sota each caused murder of Ibrahim, aged 28 years. The matter was reported at Police Station Kale, 16 miles away from the spot, on 5-5-1977 at 9-12 a.m. Where F.I.R. Was registered by Nizam Shahid, S.I. (P.W) on the statement of brother of the deceased, Muhammad son of Ghulam Siddique. The occurrence was witnessed by the first informant, Muhammad (P.W.), his maternal-uncle Atta Muhammad (P.W.) and one Rab Nawaz, given up as won over.
' The motive given was that acquitted accused, Usman, suspected illicit relations of deceased with his wife, Mst.Ghulam Fatima. The appellant confessed his guilt and stated that he caused the murder of deceased under grave and sudden provocation having seen him in compromising position with his mother.
3. Nizam Shahid, S.1. (P.W.) investigated the case. He visited the spot from where he secured blood- stained earth and despatched the dead body to the mortuary for post-mortem examination after completing formalities. He arrested the appellant and his four co-accused on 19-5-1977. Lakhi acquitted accused led him to the recovery of his blood-stained C11111.111 P.3 from Ilaithak of Usman, acquitted accused. Usman, acquitted accused, got recovered blood-stained hatchet from his residential Kotha. Ismail, acquitted accused, led the Investigating Officer to the recovery of his blood-stained Sota from his residential Kotha. Appellant led police to his house and got recovered blood-stained Sota P.6 from his Chappar. Hassan, acquitted-accused, got recovered his blood- stained Sota from his Bhani. All these incriminating articles were secured by the police. The appellant and his four acquitted co-accused were challaned in Court. All these articles were found stained with human blood by the Serologist.
4. Dr. Farhat Hussain (P.W.) conducted post-mortem examination on the dead body of Ibrahim on 6-5-1977 and found the following six injuries on it:-
(1) Three lacerated wounds each 3" x 1/2" bone fracture deep on the left lateral side of the skull about three inches from the left ear. The wounds were close to one another within the area of 4 x 4"
(2) Lacerated wound between the eyes involving the whole nose and portion of the forehead just above the root of the nose, multiple pieces of bones were present in the wound and the brain matter was also present.
(3) Lacerated wound 1" x 1" on the middle of the upper lip.
(4) Two lacerated wound on the lower lip slightly to the left side 1" x 1/2x close to each other.
(5) Lacerated wound on the outer side of the right eye brow 2" x x bone fracture deep.
(6) Incised wound 1/2" x 1/2" on the dorsam aspect of the distal phillanx of left index finger.
' Skull bones of the deceased had fractured into multiple pieces and brain matter was coming out from injury No,
1. Stomach of the deceased contained semi-digested material. Small intestines had digested material in it and large intestines contained faecal matter. Injury No,6 was caused by sharp-edged weapon and rest of the injuries were result of blunt weapons. Injuries No:l and 2 were declared dangerous, injury No,5 was grievous and rest were simple in nature. In the opinion of the doctor injuries Nos.1 and 2 were sufficient in the ordinary course of nature to cause death. The probable time between injuries and death was immediate and between death and post-mortem was 36 hours to three days. In cross-examination the doctor deposed that injury No,6, incised wound, was a trivial injury which could be caused by sharp-edged object like broken glass etc. By fall on the ground. The deceased had urinated just before the occurrence and had taken his last substantial meal four hours before his death.
5. The prosecution examined first informant, Muhammad (P.W.5), brother of the deceased and Atta Muhammad (P.W.8), maternal-uncle of the deceased as eye-witnesses of the occurrence. The recovery of Sota from the appellant was proved by Rahim Bakhsh (P.W.9) and the Investigating Officer, Nizam Shahid (P.W.10) and recoveries from the acquitted accused were also proved.
6. The appellant denied the allegations and gave his own version in his statement recorded under section 342, Cr.P.C. Which is reproduced below:- "On the fateful night I surprised my mother in compromising position with the deceased when I was returning to my house with a hatchet in my hand. On seeing the ghastly scene I lost my self-control and injured the deceased with right and wrong side of the hatchet under the impulse of grave and sudden provocation. In the meanwhile my mother slipped away from the scene of occurrence. I had myself gone to the police station and informed them about it. The Police came at the spot and then in connivance with the complainant party and Abdul Ghafoor retired Thanedar had concocted the present story against me and other accused."
' His co-accused denied the charge. Usman, acquitted-accused, father of the appellant stated that complainant party had falsely roped him and the other co-accused and that appellant alone had caused the murder under grave and sudden provocation. Ismail and Lakhi, acquitted accused, was stated that they had been implicated being relatives of Usman, acquitted accused. Hassan, acquitted accused, stated to have been falsely involved due to long-standing enmity.
7. The trial Court found that the prosecution had not proved its case beyond reasonable doubt due to which four co-accused were acquitted. The appellant was convicted and sentenced because he had confessed his guilt without giving him benefit of Exception I to section 300, P.P.C.
8. There is no dispute about the time and place of occurrence.Ibrahim deceased was allegedly murdered at an uninhabited place while on his way to Band Rangoowali. As deposed by the first informant the occurrence took place at last Pehar of the night. It was a moonlit night. The two eye- witnesses claimed to have seen the occurrence from a distance of over 60 feet. The medical evidence shows that the deceased had semi-digested material in his stomach. The trial Court found that the eye-witnesses could not identify the assailants of the deceased. We agree with finding of the trial Court. The ocular evidence was rightly disbelieved by the learned trial Judge. It is probable that the two eye-witnesses were not available at the spot to witness the occurrence for the contents of stomach bear out that deceased died before midnight. It was not possible for them to identify the assailants from the distance of over 60 feet in a moonlit night. The prosecution had failed to prov its case against all accused including the appellant.
9. Appellant confessed the guilt and pleaded grave and sudden provocation. In the circumstances of this case the trial Court was wrong in ruling out of consideration exculpatory part of the confessional statement of appellant. The conviction of appellant on his own confession can be upheld by reading it as a whole. Therefore, we are of the view that case of the appellant is covered by Exception I of section 300, P.P.C. Eversince, his arrest on 19-5-1977 appellant has been detained in custody throughout.
' For the foregoing reasons we set aside conviction of the appellant under section 302, P.P.C. And convicting him under section 304, Part I, P.P.C. Reduce his sentence to already undergone and order him to pay a fine of Rs,5,000 or in default thereof to undergo rigorous imprisonment for six months. The fine, if realized, shall be paid to the heirs of Ibrahim deceased. The appeal of Muhammad appellant is accepted to this extent. The revision filed by the State for enhancement of sentence is dismissed.