' Wali Muhammad and his son Abdul Rahman were tried for the murder of Ghulam Muhammad by Additional Sessions Judge, Multan, who convicted both of them under section 304, Part-I, P.P.C. And sentenced them to 10 years' rigorous imprisonment and fine of Rs,2,000 each, in default of payment of fine to undergo further rigorous imprisonment for 2 years. Both the convicts have preferred the instant appeal (Cr.A.No,91/1983) against their conviction and sentence. On the other hand, Newab Khan, complainant in this case, who is sister's husband of the deceased Ghulam Muhammad, has filed revision (Cr.R.No,112/1983) praying for the enhancement of sentence of the appellants. As both the criminal appeal as well as criminal revision have arisen from the same judgment, therefore, they are taken up together and being disposed of by this single judgment.
2. The incident had taken place at 5.30 p.m. On 9-1-1982 in an unroofed Khola in Chak No,12/M.R. At a distance of about 7 miles from Police Station, Makhdum Rashid. The police was informed by Nawab Khan P.W. At Police Station Makhdum Rashid, the same day at 7 p.m., vide F.I.R. Exh.P.D.
Recorded by A.S.I. Muhammad Khan P.W.8.
3. The prosecution case briefly is that Nawab Khan, complainant,alongwith Hakim Ali F.W. And Ghulam Muhammad, deceased, had gone into the field of Wall Muhammad, appellant, for cutting the branches of Shahtoot Tree. When Ghulam Muhammad was collecting the branches both the appellants suddenly appeared there. Wali Muhammad was armed with a hatchet and Abdul Rahman with a dagger. Abdul Rahman raised Lalkara that they had come to take revenge from the deceased for dishonouring their family. Wali Muhammad opened attack and gave hatchet blow on the 'head of Ghulam Muhammad. Abdul Rahman gave him dagger blow in the chest. Wali Muhammad again repeated a blow which landed on the head of Ghulam Muhammad above the right ear. Then Abdul Rahman gave dagger blow in his right chest. Ghulam Muhammad as a result of the injuries fell on the ground. Thereafter, Abdul Rahman again gave a dagger blow on his right thigh. The witnesses raised alarm which attracted Muhammad Rafiq P.W. (not produced) to the spot. The appellants then took to their heels and disappeared. Ghulam Muhammad as a result of the injuries sustained by him expired at the spot. The motive for the attack was stated to be that Mst. Hamidan daughter of Wali Muhammad and sister of Abdul Rahman, appellants, was married to Khushi Muhammad, real brother of Ghulam Muhammad deceased. The appellants suspected that the deceased was having illicit liaison with Mst. Hamidan and had complained twice before the occurrence to Nawab Khan P.W. In this respect and requested him to ask the deceased to discontinue his illicit connections with Mst. Hamidan but he did not mend himself.
4. After registering the case A.S.I. Muhammad Khan proceeded to the spot and reaching there he prepared injury statement Exh.P.K. And inquest report Exh.P.L. Of the deceased and sent the dead body under police escort for post-mortem examination. He also removed bloodstained earth from the scene and made it into a sealed parcel. He arrested the appellants on 14-1-1982 and removed blood-stained turban P.4 from the head of Wall Muhammad and a blood-stained coat P.5 from the person of Abdul Rahman. Wali Muhammad while in custody lead to the recovery of blood-stained hatchet P.6 and likewise Abdul Rahman got recovered blood-stained dagger P.7 which were taken into possession vide memos. Exh.P.H. And Exh.P.J., respectively. He got prepared site plan from Muhammad Sarfraz, Patwari in triplicate and after completing usual investigation sent the case to Court. It may be stated that according to the reports of Chemical Examiner and the Serologist Exh.P.O. And Exh.P.Q. The hatchet, dagger, turban and coat were found stained with human blood.
Dr.Riaz-ud-Din Medical Officer, Civil Hospital, Multan, P.W.3 performed autopsy on the dead body of Ghulam Muhammad on 10-1-1982 and noted following injuries:--
(1) An incised wound on the right side of head and forehead 16 c.m. x 3 c.m. x cranial cavity deep.
Membrane and brain matter was cut in the way about 2 c.m. Above the ear and 2 c.m. Above the eyebrow.
(2) An incised wound on the right forehead 2 c.m. x 3/4 c.m. x frontal bone cut about 2 c.m. Above the eyebrow.
(3) An incised wound on the left forehead and head near the mid line 13 c.m. x 2 c.m. Brain deep.
Bones and membrane cut in the way about 1 c.m. Above the eyebrow.
(4) A stab wound on the front of chest in the mid line transverse in direction 51 c.m. x 2 c.m. x chest cavity deep about 10 c.m. Below the manubriumsterni.
(5) A stab wound on the front of right chest oblique in direction 4 c.m. x 1 c.m. x chest cavity about 1 c.m. Above the nipple.
(6) An incised wound on the outer side of right thigh 4 c.m. x 1 c.m. x muscle deep about 19 c.m, above the knee joint.
(7) An incised wound on the back of left chest outerside 1/2 c.m. x 1 c.m. x muscle deep about 9 c.m.
Below the shoulder blade. There are corresponding cuts on the shirt and jersi with injuries Nos. 4, 5 and 7 and on the Dhoti with injury No,6.
' The Doctor opined that the death of Ghulam Muhammad occurred due to shock and haemorrhage and injuries to brain and heart. Injury Nos.1 to 5 were sufficient to cause death in ordinary course of nature individually or collectively. Injury Nos.6 and 7 were of simple nature. All these injuries were caused with sharp-edged weapon. The probable time which elapsed between injuries and death was immediate and that between death and post-mortem examination 36 to 48 hours.
5. At the trial the prosecution in support of its case examined all told 8 witnesses. Out of them, Nawab Khan P.W.6, Hakim Ali P.W.7 provided the evidence of motive as well as the eye-witness account of the occurrence; Dr. Riaz-ud-Din P.W.3 proved that Ghulam Muhammad died due to violence while the incriminating recoveries were sought to be proved through the statements of Hakim Ali P.W.7 and A.S.I. Muhammad Khan P.W.8. When examined on the conclusion of the prosecution evidence, Wali Muhammad appellant denied all the incriminating circumstances; however, Abdul Rahman, appellant, raised plea of grave and sudden provocation in the following words:- "The facts of the case are that on the day of occurrence while the sun has not set, I was returning from my field after planting sticks of Aanar, all of a sudden I saw in the Khola where my sister Mst.
Hamidan and Ghulam Muhammad deceased in objectionable position and in heat of passion I inflicted hatchet blows to the deceased which was already in my hand. The wooden handle of the hatchet was broken and then I gave Chhuri blows to Ghulam Muhammad which was already with me."
' They did not produce any witnesses in their defence but a medical certificate Exh.D.A. Was produced to prove that Abdul Rahman, appellant, was of young age.
6. Learned trial Court after detailed analysis of the evidence of eye-witnesses held that they were not trustworthy and that their presence at the spot at the relevant time was highly doubtful but at the same time he believed that incriminating recoveries from both the appellants were genuine. It may be pointed out that in the last paragraph at page 14 of judgment learned Additional Sessions Judge observed as under:- "In the present case, there are two circumstances for the implication of both the accused. Firstly the confessional statement of Abdur Rehman accused and secondly the recoveries of incriminating articles from both the accused. The confessional statement of Abdur Rehman accused is accepted to his extent that he caused the death of Ghulam Muhammad under grave and sudden provocation but I reject the other part of his statement that he only was responsible for the said murder. The recovery of bloodstained turban and hatchet from Wali Muhammad accused stands established which inculpate him for the commission of present crime , I am of the firm view that both the accused persons namely Wali Muhammad and Abdur Rehman murdered Ghulam Muhammad under grave and sudden provocation."
7. I have heard learned counsel for the appellants as well as for the State and also for, the complainant and perused the record with their assistance.
7 There are three eye-witnesses of the occurrence, namely, Nawab Khan P.W.6, the informant, Hakim Ali P.W.7 and Muhammad Rafiq P.W. (not examined) according to the F.I.R. Admittedly, Nawab Khan and Hakim Ali are close relations of the deceased and lived many miles away from the place of occurrence. They contradicted each other as to what purpose took them to the place of occurrence at the relevant time. They are obviously the chance witnesses. Again the post- mortem examination has been carried out on the third day of the occurrence and according to the doctor the dead body was brought to the hospital in the late hours of the day on 9-1-1982 which means that the dead body was removed from the spot following day of the occurrence in the afternoon, these facts lead unmistakably to the conclusion that it was an unwitnessed occurrence and I endorse the conclusion of learned trial Court in this respect.
8 9 As for the recovery evidence, learned trial Court has ventured to believe the recovery of blood- stained hatchet and a turban from Was Muhammad and blood-stained coat and a dagger from Abdul Rahman, appellants, on the strength of the statement of solitary witness i.e, the Investigating Officer. No doubt that police officer is as good a witness as any other witness from the public but in the peculiar circumstances of the case I do not consider it safe to rely on the recovery, supported by a police officer alone whose interest in the case investigated by him is too obvious.
10. Learned trial Court in this case- has fallen into error of law by having partly rejected and partly accepted the statement of Abdul Rahman, appellant. The well-established and time honoured principle of dispensation of criminal justice is that the statement of an accused should either be accepted or rejected as a whole. It is noteworthy that in the present case learned trial Court has totally disbelieved the ocular evidence and in such situation there was no alternative left with him but to fall back upon the statements of the appellants by accepting them in toto. Even if the evidence of recovery of weapons of offence was believed, I would say, the result could not be different because mere recovery of weapons of offence or blood-stained clothes hardly leads to an inference that such an accused is the author of the crimeD of murder, therefore, Wali Muhammad, appellant, in either case, is entitled to acquittal, first, because the ocular evidence has been disbelieved and incriminating recovery is not sufficient to connect him with the crime of offence and secondly, the prosecution evidence having been discarded the only evidence which remained in the field is the statement of Abdul Rahman, appellant, which has to be accepted in E totality wherein he singly owned the responsibility of killing Ghulam Muhammad under grave and sudden provocation without implicating Wali Muhammad.
11. In the circumstances, therefore, I am of the confirmed view that Wali Muhammad, appellant, deserves acquittal and I order accordingly. As for Abdul Rahman, appellant I uphold his conviction under section 304, Part I, P.P.C. But I feel that the sentence of 10 years imposed on him is excessive and also against the present day trend of the superior Courts which normally impose 3 to 7 years' rigorous imprisonment in such like cases with reference to the facts of each case. Keeping in view the circumstances of the case, I feel disposed to reduce the sentence of Abdul Rahman, appellant, from ten years to five years' rigorous imprisonment but maintain the sentence of fine of Rs,2,000 (Rupees Two Thousand only) or in default to undergo two years' rigorous imprisonment awarded by the learned trial Court. I further direct that the appellant shall get the benefit of provisions of section 382-B, Cr.P.C., that is, the period spent by him in jail till his conviction shall be computed towards his substantive sentence of imprisonment.
12. In result this appeal is partly accepted in the terms indicated above. As the appeal has succeeded, though partly, the revision petition for the same reasons fails and is dismissed in limine.