' Sardul, his brother Pehlwan and their brother-in-law Lal were tried for the murder of Bashir Ahmad.
The trial Judge by judgment, dated 25-1-1984, found Sardul guilty. He was sentenced to imprisonment for life and a fine of Rupees five thousand or in default one year's R.I. The remaining two accused were acquitted. The convict filed appeal to this Court. State has filed revision (Criminal Revision No,541 of 1984) for enhancement of sentence. Nazir Ahmad complainant has filed revision (Criminal Revision No,542 of 1984) against the acquittal of Pehlwan and Lal as well as for enhancement of sentence of Sardul. Both the revisions had been ordered to be heard alongwith the appeal. All these matters are being decided by this judgment.
2. Occurrence took place, on 27-7-1981, at about 7-30 p.m. In the area of Chak No,744/G.B., District Toba Tek Singh, which falls within the jurisdiction of Pir Mahal Police Station. Nazir Ahmad lodged report Exh.P.C., which was recorded by Zia-ullah S.I.
3. Nazir Ahmad, a cultivator, was residing with his parents in his Dera at Chak No,744/G.B. His father Ameer was suffering from T.B. His sister Mst. Naikan was also not keeping good health. Two days before the occurrence, Nazir and his brother Bashir took Mst. Naikan to T.B. Hospital, Sargodha, for treatment. They were to bring medicines for their father from the hospital. They were coming back to their house from Sargodha. The time was about half past seven in the evening. When they reached near the house of Lal, all of a sudden the accused appeared. Pehlwan and Lal had Sotas, whereas Sardul a hatchet. Pehlwan said that Bashir would not be spared. He would take revenge of his illicit relations with Mst. Manzooran, the wife of Sardul. Thereafter, Pehlwan put a cloth around the neck of Bashir, tried to strangle him and threw him down. Bashir raised hue and cry. Lal caught hold of Bashir from his leg. Sardul attacked him with hatchet. Pehlwan gave him Sota blows repeatedly. Rigth leg of Bashir was fractured. He died at the spot. His dead body was taken by the accused to their Dera. Nazir raised alarm. Ramzan and Mamand came to the spot. They saw the occurrence. Other persons also gathered there. Nazir requested the accused to give the dead body back. The accused allowed this request. Motive for the murder was that the accused suspected Bashir of illicit relations with Mst. Manzooran wife of Sardul.
' Mst. Naikan is the next eye-witness. Her statement is almost the same as that of her brother. She deposed that after killing Bashir, the accused took the dead body to the Dera. Ramzan, Mamand and others brought the dead body back to the place of occurrence.
4. Mamand deposed that at about 7-30 p.m. He alongwith Ramzan was irrigating his fields. He heard hue and cry. Noise was coming from the side of the house of Lal. He saw Pehlwan throwing down Bashir with cloth around his neck. Lal caught hold of Bashir from his right leg. Sardul inflicted hatchet blows to Bashir on his leg from the wrong side of the hatchet. Pehlwan also gave him a Sota blow. Bashir died at the spot. The three accused took the dead body to the Dera of Nawab given to them.
5. Dr. Muhammad Iqbal S.M.O., Civil Hospital, Toba Tek Singh, conducted the post-mortem examination, on 28-7-1981. He found seven injuries in all. Those were a ligature mark 3 c.m. Wide around the neck; an abrasion 4 c.m. x 2 c.m. Over the posterior surface of right lumbar region of abdomen; an abrasion 3 c.m. x 2 c.m. Over the posterior and outer part of right buttock; a bruise heamatoma 10 c.m. x 6 c.m. Over the anterior surface of right thigh; multiple bruises in area of 12 c.m. x 6 c.m. Over the anterior surface of right knee joint; a lacerated wound 17 c.m. x 7 c.m. Over the anterior surface of right leg with communted fractures of tibia fibula bones of right leg and the leg was mutilated dreadfully and a bruise 6 c.m. x 2 c.m. Over the anterior surface of left thigh.
' According to the doctor, death was due to shock and internal haemorrhage by strangulation and repeated injuries on right thigh and right leg. Four of the injuries were collectively sufficient to cause death in the ordinary course of nature. The injuries had been caused by the blunt weapon.
6. The appellant before the trial Court admitted to have killed Bashir but not as alleged by the prosecution. He gave his own version. He admitted his relationship with the acquitted accused. He stated that he alone suspected illicit liaison between Mst. Manzooran and Bashir. He was very much annoyed. The acquitted accused had nothing to do with the incident.
7. The trial Court practically rejected the entire prosecution evidence and observed:- "From the above discussion I have come to the conclusion that ocular evidence produced by the prosecution is not only interested and inimical to the accused but it is also full of material contradict ions, discrepancies and inconsistencies with each other. It does not inspire confidence There was no evidence from where it could be inferred that it was a case of grave and sudden provocation. Another factor for convicting the appellant was his statement before the trial Court. In other words the conviction was recorded on the statement of the appellant. This was not the correct approach. Having disbelieved the entire prosecution evidence the only other evidence left was the version of the appellant. This had to be accepted in toto.
' Appellant admitted that Pehlwan was his real brother. Lal was married to his sister. He said that he alone suspected illicit liaison with Mst. Manzooran. The other accused had nothing to do with it. Rest of the allegations were denied by him. He disowned the hatchet.
' When questioned why this case against him, he gave a very detailed statement, the sum and substance of which was that Bashir deceased was married. He was father of three small children.
He developed liking for Mst. Manzooran. Both became very intimate. Appellant was humiliated. He contacted Bashir through respectables and told him to stay away from his wife because he too had two small daughters. Nevertheless Bashir went on meeting Mst. Manzooran secretly.
8. On 27-7-1981, it was the last week of holy month of Ramzan, when Sardul went for Travih prayer.
He was regularly fasting. He returned at about 10/11-00 p.m. And found Bashir in a compromising position with his wife. He lost temper. Under grave and sudden provocation he started giving injuries on his legs with Sota which he was carrying. The Sota broke. Thereafter, he put his Safa around his neck and pulled him on the ground. Appellant's two small daughters started crying.
Other people also turned up. By then Bashir had died. Mst. Manzooran ran away.
He said, his intention was not to kill him but to teach him ay, lesson so as to make him lame for the rest of his life. Rest of ther statement is not relevant.
I do not find any reason to disbelieve Sardul. Result is that neither the conviction nor sentence can be upheld. The conviction is accordingly altered to section 304 Part II, P.P.C. The sentence already undergone would meet the ends of justice. I .
9. The fine, if paid, shall be refunded to the appellant forthwith.
He shall be set at liberty, if not required in any other case.
10. The revisions referred to above, were ordered to be heard alongwith the appeal. Neither in the revision filed by the State nor in that by the complainant, the counsel turned up. I am not obliged to adjourn those or to wait for the counsel.
11. For the reasons given above, appeal of Sardul is partially allowed. There being no merits in the two revisions both are accordingly dismissed in limine.
' Appeal partially allowed.