Muhammad Arshad (18) and Muhammad Asghar (20) sons of Muhammad Din, residents of Badomalli. Police Station Rayya, were tried by the learned Additional Sessions Judge, Sialkot, on the allegations that on 25th May, 1982 at 7.30 p.m. They alongwith co-accused Iqbal, (since murdered), in furtherance of their common intention, caused injuries to Imtiaz alias Tap deceased in the Main Bazaar, Badomalli, as a result of which he died on 28th May, 1982. By judgment, dated 11 July, 1983 Muhammad Asghar accused was acquitted of the charge but Muhammad Arshad was convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs.2,000 or, in default in the payment thereof to suffer further R.I. For six months. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation. The convict has appealed.
2. The brief facts of the prosecution case are that on 25th May, 1982 at about 7.30 p.m. Habib Ullah complainant, his brother Manzur and his brother-in-law Muhammad Ramzan P.Ws. Were present in the main Bazaar, Badomalli, for making some purchases. They noticed Imtiaz alias Tap deceased, son of the complainant, sitting on the Thara of the shop of a Cloth Merchant, namely, Hafiz. The shop of the accused persons was in front of the shop of aforesaid Hafiz. All of a sudden Iqbal (since murdered) and Asghar armed with daggers and Muhammad Arshad with a Chhuri challenged the deceased that he would be taught a befitting lesson for demanding the re-payment of loan from Muhammad Arshad accused. Iqbal opened the attack by giving two dagger blows to Imtiaz alias Taji deceased hitting his left hand and abdomen. Then Muhammad Arshad accused gave two Chhuri blows hitting his "abdomen and near-about" and thereafter Asghar gave dagger blows to the deceased hitting his back. The complainant and his companions raised alarm and tried to rescue Imtiaz alias Taji but the accused persons threatened them with dire consequences and fledth away from the spot taking their weapons with them. The P.Ws. Removed Imtiaz alias Taji injured to Civil Hospital Badomalli but no doctor was available, therefore, they took him to Civil Hospital, Narowal, where he was medically examined. On the following morning Habib Ullah complainant reported the occurrence to Habib Ahmad, A.S.I., in Civil Hospital, Narowal, at 7 aim. Vide his statement Exh. P.A., on the basis of which formal F I R (Exh. P.A./1) was recorded at Police Station Rayya at 10 a.m.
3. After recording the statement of the complainant, Habib Ahmad A.S.I. Took the blood-stained clothes viz. Shirt (P.1), Shalwar (P.2) of the injured into his possession vide memo Exh. P.H. Thereafter, he reached the spot and secured some Blood-stained earth which was made into a sealed parcel vide memo Exh. P.G. On 27-5-1982 he again visited Civil Hospital, Narowal, and enquired from the doctor if Imtiaz alias Taji injured was fit to make a statement to which the doctor replied in the negative. Imtiaz was removed to A1ayo Hospital, Lahore, where he succumbed to his injuries on 28- 5-1982. The A.S.I. Prepared the inquest-report Exh. P.L. And despatched his dead body to the mortuary for post-mortem examination.
On 14th June, 1982 Sarfraz Mahmud S.H.O. Police Station Rayya arrested the accused persons. On 22-6-1982 Muhammad Arshad accused, while in custody, got recovered blood-stained Chhuri (P.
3) from his residential house which was made into a sealed parcel vide memo. Exh. P.J. During the investigation Iqbal (since murdered) and Ashgar were found innocent. After completing the investigation the S.H.O. Submitted the challan in Court.
4. On 25th May, 1982 Dr. Muhammad Akhtar Chatha, Medical Officer, T.H.Q. Hospital, Narowal, examined Imtiaz alias Taji deceased, when alive, and found the following injuries on his person: "(1)A stab wound 5 c.m. x 2 c.m. Cavity deep on the back of left chest just below the rib margin.
(2)A stab wound 5 -- c.m. x 3 c.m. Left kidney deep on the middle of left lumber region.
(3)A stab wound 4 c.m. x 2 c.m. Cavity deep on the left side back of lower abdomen 9 c.m. Below injury No. 2.
(4)A stab wound 4 -- c.m. x 3 c.m. Cavity deep on the left side abdomen omentum was coming out of it. Iliac vessels rupture: repaired in the laparatemy.
(5).A stab wound 3 -- c.m. x 3 -- c.m. Muscle deep just above public, symphasis.
(6)An incised wound 6 c.m. x 3 c.m. Muscle deep on the palmer side of the left hand near root."
Condition of the injured was not satisfactory. Pulse and B.P. Were not recordable. Injuries Nos. 1 to 4 were declared dangerous, the rest were simple.
On 29th May, 1982 Dr. Khalid Hussain, Medical Officer, office of Surgeon Medico-legal Punjab, Lahore, conducted the autopsy on the dead body of Imtiaz alias Tap and found the following injuries on it:- "(1)A stitched wound (skin not stitched) 24 c.m. x 2 c.m. In the mid line of the abdomen deviated towards right at umblicus ending just above pubic symphasis. On exploration peritoneum was stitched alongwith the whole wound.
(2)A stitched wound 14 c.m. Alongwith eleven stitched and drain incide about 9 c.m. Outer to the umblicus oblique in direction.
(3)A stitched wound with two stitches in the left iliac fossa, slur: deep.
(4)A stitched wound 4 c.m. x -- c.m. On the palm of left hand muscle deep near the root of the thumb.
(5)An incised wound 3 c.m. x -- c.m. On the outer aspect of try, left chest near the mid axillary line transversely oblique 17 c.m. Below and lateral to the left nipple. It was muscle deep.
(6)A stitched wound 13 c.m. Long oblique on the back of lower chest upper abdomen 8 c.m. Below and outer to the injury No. 5.
(7)A stitched wound 3 c.m. Alongwith one stich about 2 c.m. Below the injury No. 6. It was muscle deep.
(8)An incised wound 3 c.m. x -- c.m. On the back, 18 c.m below the angle of left scapula.
(9)A stab wound 2 c.m. x -- c.m. On the back of right chest 3 c.m. Lateral to the vertebral column."
5. In support of its case the prosecution examined Habib Ullah complainant and Muhammad Ramzan as eye-witnesses of the occurrence. The prosecution also relied on the evidence relating to motive and recovery of blood-stained Chhuri at the instance of the appellant.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He admitted having injured the deceased but gave a counter-version as under:- "I am innocent. I was born on 28-9-1966, and I produce certified copy of my birth certificate. The deceased was a bad character and used to establish illicit relations with me and few days before this occurrence I had an altercation with him as well on this issue. He used to sit on the 'Thara' of the shop of Hafiz cloth merchant which is situated in front of my shop and on the day of occurrence at evening time, the deceased was there and he made provocative jestures, on which I was deprived of my self-control and picked up a Chhuri from my shop, gave him injuries under grave and sudden provocation. Nay two brothers namely Asghar accused and Iqbal (since murdered) were not there. They were involved falsely. The story about the loan is a pure fabrication."
No evidence was led in defence.
7. The learned trial Judge accepted the evidence of the eye-witnesses against the appellant and further observed that so far as he was concerned the prosecution version was fortified by the recovery of blood-stained Chhuri at his instance. He, therefore, convicted and sentenced him as mentioned above. He rejected the ocular evidence against acquitted accused Muhammad Asghar and Muhammad Iqbal (since murdered) and observed that they had been falsely implicated.
8. Learned counsel for the appellant contended that the presence of both the eye-witnesses at the spot was not established and in any case their evidence having been rejected against the acquitted accused, it could not form a basis for the conviction of the appellant. He contended that the plea of grave and sudden provocation raised by the appellant is fully established. The learned State counsel supported the impugned judgment. He submitted that Exception I to section 300, P.P.C. Is not attracted and it is a clear case of murder.
9. Habib Ullah complainant and Muhammad Ramzan P.W. Supported the prosecution version of the occurrence, as detailed in para. 2 supra. Habib Allah complainant is the father of the deceased and Muhammad Ramzan P.W. Is married with the sister of the complainant. He is a resident of village Mangat situated twenty or twenty-five miles away, from Baddomalli Town where the occurrence took place. He claims to have come to Baddomalli Town two or three days prior to the occurrence in order to participate in the marriage ceremony of Mst. Bushra, niece of the complainant. The occurrence took place in the Main Bazar of Baddomalli Town. The eye-witnesses stated that they had gone to the, Bazar at 7 or 7.30 p.m. In order to make purchases. This explanation A is highly unconvincing. The marriage ceremony of Mst. Bushra took place on the same day. Habib Ullah complainant stated that the marriage party left for Lahore at about 6 or 6.30 p.m. He admitted that most of the shops in the Bazar were closed and only a few were open while' Muhammad Ramzan P.W. Stated that all the shops were closed at the time of occurrence. It is highly doubtful that two close relatives of Mat. Bushra visited the Bazar for making purchases soon after the departure of the marriage party at an hour when all or most of the shops were closed. The learned trial Judge was also of the view that they were chance witnesses and their evidence could not be believed) as a gospel truth unless corroborated by some independent source. He further observed that they had not spoken the whole truth and had falsely implicated two innocent persons, namely, Muhammad Asghar accused and Muhammad Iqbal (since murdered) attributing them specific injuries although they were not present at the spot. Despite such a finding, the learned trial Judge relied on their evidence against the appellant which, according to him, was fortified by the recovery of blood-stained Chhuri from the appellant. This recovery is also supported by aforementioned Muhammad Ramzan P.W. And cannot furnish any corroboration to the ocular account because one piece of tainted evidence cannot lend any support to another piece of tainted evidence. In the circumstances, the ocular evidence furnished by Habib Ullah complainant and Muhammad Ramzan P.W. Merits rejection and cannot be relied upon.
10. Now, I proceed to consider the plea of the appellant. 10 the impugned judgment it has been stated that the appellant had taken the plea of self-defence and grave and sudden provocation, out this is not correct. The appellant had taken the plea of grave and sudden provocation only, and not of self-defence. His statement from the Urdu record is being reproduced below as the statement in English record is not a correct translation of the same: The prosecution evidence having been rejected in toto, the statement of the appellant alone remains in the field and has to be accepted. He stated that he lost the power of self-control over the provocative remarks uttered by the deceased and caused him injures. In the circumstances, he is entitled to the benefit of Exception I to section 300, P.P.C. Accordingly, his conviction under section 302, P.P.C. Is altered to section 304 (Part I) , P.P.C. And his sentence is reduced to rigorous imprisonment for ten years and a fine of Rs.10,000. In default of payment of fine he will undergo further R.I. For two years. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. The above sentence has been passed after considering the provisions G of section 382-B of the Pakistan Penal Code. The appeal stands disposed of accordingly.