Muhammad Hayat son of Lala caste Maiken resident of Chak No.54/ 3-L, Tehsil Haroonabad, District Bahawalnagar, has been tried by Additional Sessions Judge-I, Bahawalnagar, under section 302, P.P.C. On three counts for committing tripple murder, of his sister Mst. Manzooran, Ghulam Muhammad and Zafar Ali, the night between 14[15-7-1979 in the areapf Chak No.92/6-R, Tehsil Haroonabad, District Bahawalnagar.
2. At the trial, proset...)tion examined 12 witnesses in support of is case. Nobody had seen th, accused committing aforesaid three murders s the cited eyewitness 41Jul Aziz, maker of tt,e F.1.R. had turned hostile at the trial. Noor Muhammad (P.W.7), however, stated that when he reached the spot he found the accused present at the spot with Kassia P.14 in his hand and that he confessed before him that he "committed the murders in Ghairat". Dr. Abdul Saboor (P.W.8) found, numerous incised injuries on the persons of the three deceased which resulted in their death. The blood- stained clothes of the accused, Chadder P-15 and shirt P-16 and blood-stained Kassia P-14 recovered from the accused were found by the Chemical Examiner/ Serologist to be stained with human ,blood.
3. When examined under section 342, Cr.P.C., the accused in reply to question No.4 raised plea of grave and sudden provocation in the following words: - "On the night of occurrence after about mid-night I found that Ghulam Muhammad was on the cot of my sister and was kissing her. I got provoked and taking up the 'Vahola' nearby, I started giving blows to him. Muzaffar alias Zafar Ali tried to intervene and I also gave blows to him. I had given blows to him as a result of which he also died. I committed the murder under grave and sudden provocation. The clothes P715 and P-16 belong to me."
4. The learned trial Court on detailed examination of the evidence on record, disbelieving the prosecution accepted the plea of Ghairat raised by the accused and summed up his conclusion in para. 18 of his judgment as under:- "On the above view of the evidence I hold that so far as the murders of Mst. Manzooran and Ghulam Muhammad were concerned, the case of the accused was covered by exception 1 of section 300, P.P.C. But so far as the murder of Muzaffar alias Zafar All is concerned it is stated that he had come to intervene ,when the accused had given him blow's with the 'Vahola'. Although, therefore, -the accused, is entitled to acquittal for bhe murders of Mst. Manzooran..."
In paragraph 19 of the judgment, held,----------- ............. The accused is, however, acquitted so far as the murders of Mst. Manzooran and Ghulam Muhammad are concerned......
As for the murder of Zafar Ali, learned trial Court convicted and sentenced him under section 304 Part-I, P.P.C. With the remarks:- "the fact that the accused had .Given at least four injuries to Zafar Ali, in my view, the accused decidedly exceeded the right which had been given to him by law. However, it would be fallacy to hold the accused guilty under section 302, P.P.C. For the murder of tafar Ali alias Muzaffar under the above circumstances. In my view the case is covered by section 304(1), P.P.C."
5. The convict has filed Criminal Appeal No.77 of 1983 challenging his conviction and sentence, while Sardar Ali, brother and Mst., Wallan Bibi, mother of the two deceased, Ghulam Muhammad and Zafar Ali, has filed Criminal Revision No.44 of 1984 challenging the appellant's acquittal from tije charges relating to the murder of Ghulam Mohammad. And Mst.
Manzooran and also prayed for the enhancement of his sentence awarded under section 304, Part-I, P.P.C. For murdering Zafar Ali. Both these matters are being disposed of by this single judgment.
6. I have heard learned counsel for the appellant as well as for the State as also for the petitioner in the criminal revision and perused the record with care.
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9. That the learned trial Court has committed patent error in appreciation and application of facts and law which has resulted in grave miscarriage of justice. Consequently, I set aside the impugned order being illegal and remand the case for retrial of the appellant in accordance with law from the stage of recording of the statement of appellant under section 342. Cr.P.C.
10. This disposes of both the appeal and the criminal revision. It is, however, directed that the trial Court shall conclude this case within three months' time because the appellant is in jail for about 6 years.
11. S.A. Re-trial ordered.
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13. The learned trial Court in paragraphs 18 and 19 of the judgment, as indicated above, has recorded contradictory findings. On one hand, it has been held that the "murders of Mst. Manzooran and Ghula Muhammad" by the accused were "covered by exception 1 of section 300. P.P.C." which necessarily mean, that he was guilty of committinglA culpable homicide not amounting to murder, obviously punishable unde section 304, P.P.C. But on the other hand he completely acquitted th appellant from the charges pertaining to the "murders of Mst.
Manzooran and Ghulam Muhammad". Similarly the finding of the learned trial Court that by giving blows on the face and neck of Zafar Ali the appellant "decidedly exceeded the right which had been given to him by law" I absolutely incorrect for the simple reason that neither it could be held nor it has been so held by the trial Court that the appellant had a right to cause death of Zafar Ali, therefore, the question' of exceeding the right did not arise.Learned trial Judge appears to be completely ignorant about the implications of Exceptions 1 and 2 of section 300 B P.P.C. He must have known that law gives the offender right to kill his opponent when he has a complete right of private defence of person and property against him. Neither such right has been pleaded by the appellant nor the circumstances in this case exist warranting exercise of such a right and, therefore, the question of exceeding the right does not arise. I have further found that the statement of the appellant recorded tinder section 342, Cr.P.C., is defective in as much as the evidence of extra judicial confession made by the appellant before NoorC Muhammad P.W. Has not been put to {{TEXT BOX}} him. For all these reasons, I hold