' Abdul Ghani alias Bodi son of Fateh Muhammad, aged 35 years, caste Rajput resident of Mohalla Islampura, Sadiqabad town, district Rahimyar Khan, was tried by Additional Sessions Judge, Rahimyar Khan, for having committed murder of Ghulam Mustafa and murderous assault on his own wife Mst. Perveen, and was convicted and sentenced to imprisonment for life under section 302, P.P.C. And to 5 years' rigorous imprisonment under section 307, P.P.C. Both the sentences were ordered to run concurrently but neither fine was imposed on him nor was he directed to pay any compensation. The convict has challenged his conviction and sentence through this appeal.
2. The incident took place in Sadiqabad town, district Rahimyar Khan, at 12 noon on 10-5-1978 and report was made by Ghulam Nabi, brother of Ghulam Mustafa deceased; vide written complaint Ex.PA, delivered at Police Station Sadiqabad. SI Muhammad Akram, Station House Officer (PW 9) drew up formal FIR Ex.PA/1 based on complaint Ex.PA, the same day, at 12.30 p.m.
3. The prosecution case briefly is that the appellant suspected Ghulam Mustafa, deceased, as having illicit connection with his wife Mst. Perveen. On fateful day, Ghulam Nabi, complainant (PW 1), his brother Ghulam Mustafa, deceased, Mahinga (P.W.2) and Abdul Aziz P.W (not produced) were going together in Sadiqabad Bazar. Ghulam Mustafa (deceased) was ahead of them by 7/8 paces, when they saw Abdul Ghani, appellant, who, raising Lalkara that he would not let Ghulam Mustafa go alive, pounced upon him and started causing injuries to him with Bughda (cleaver), he was carrying at that time. As a result of injuries Ghulam Mustafa died at the spot. The appellant ran towards his house but was chased by Ghulam Nabi and other witnesses and in their view the appellant entering his house gave 4/5 blows with the same "Bughda" to his wife Mst. Perveen P.W.
Who was at that time baking breads underneath a Chhapper and as a result thereof she fell unconscious. The witnesses then caught hold of the appellant and produced him at Police Station Sadiqabad with Bughda P.1 and reported the occurrence through complaint Ex-PA. After registering the case under section 302/307, P.P.C. SI Muhammad Akram (P.W.9) arrested the appellant and seized blood-stained Bughda P.1 vide memo Ex-P.B. Chaddar P.2 and Kurta P.3 of the appellant were also blood-stained which were got removed from his person and secured under memo Ex- P.C. The Sub-Inspector then visited the house of the appellant where Mst. Perveen was lying injured.
Having prepared her injury statement Ex-P.M. He sent her to the hospital for medical examination and treatment. He took into possession a Tawwa (pan) P.4, a burnt loaf P.5, a paraat containing some flour P.6 and a dough P.7 vide memo Ex-PD and also collected blood-stained earth from there. He then went to the place where Ghulam Mustafa was lying murdered in the Bazar. He sent the dead body for post-mortem examination after collecting blood-stained earth and preparing inquest report Ex.PD and challaned the appellant on completion of the investigation.
4. Dr. Abdul Sattar, Medical Officer, D.H.Q. Hospital, Rahimyar Khan (P.W.8) performed post-mortem examination on the dead body of Ghulam Mustafa on 11-5-1978 because Medical Officer, Sadiqabad, was on leave. He found 7 incised wounds on his person. According to him, all the injuries were ante-mortem, caused with sharp-edge weapon. Two head injuries whereunder brain matter was found cut and haemorrhage from other injuries, had proved fatal. The injuries were opined as sufficient to cause death of the deceased in the ordinary course of nature.. The probable time between injuries and death was immediate and between death and post-mortem 18 hours.
5. The same doctor on 13-5-1978 examined Mst. Perveen who was referred to him by woman Medical Officer, Sadiqabad Hospital. For examination and treatment as she was in precarious condition. The doctor found 5 incised injuries of 3 days duration seated on her head, back of neck and left eye. At the time of examination her life was said to be in danger.
6. In order to prove its case prosecution examined 9 witnesses at the trial, Ghulam Nabi, complainant (P.W.1) and Mahinga (P.W.2) gave eye-witness account. Muhammad Tufail (P.W.3) father of the deceased, narrated the motive. Dr. Abdul Sattar (P.W.8) proved injuries or Mst. Perveen and Ghulam Mustafa and that the latter had died of violence, while S.I. Muhammad Akram (P.W.9) deposed about the investigation carried out by him.
7. The appellant, when examined under section 342, Cr.P.C pleaded to have attacked Mst. Perveen and deceased under grave and sudden provocation. He stated that the complainant had given wrong story. According to him when he returned from the market after making purchases on the fateful day, he found outer door of his house closed. He jumped, over the wall and saw his wife Mst.
Perveen in an objectionable position with the deceased. He was gravely and suddenly provoked and picking up Bughda attacked his wife as Ghulam Mustafa ran out. Having injured her, he followed Ghulam Mustafa and overtook him at Shaheed Road, Sadiqabad and dealt him blows with Bughda and killed him and thereafter he himself surrendered at the police station. The police then called the complainant party and registered the instant case. He, however, did not produce any defence evidence.
8. Ghulam Nabi (P.W.1), complainant in this case, is real brother of the deceased who largely supported the F.I.R. As to the motive behind the occurrence he stated that the appellant had suspected the deceased as having illicit intimacy with his wife Mst. Perveen and complained of it to his (witness's) father who did not believe it and said that his son (deceased) was Derwesh. In corss-examination he stated that they caught hold of the appellant because his Bughda had got stuck up in the .Beam of the Chhapper while giving injuries to Mst. Perveen but this story did not find mention in F.I.R. Ex-PA. He did not deny that the paper on which complaint Ex-PA was written was supplied by the police. He conceded that before drafting the report Ex-PA he had consulted persons of his Brathery and other people besides Muhammad Akram, Advocate and that they had told him that Mst. Perveen (wife of the appellant) was known as Guddo and at that time father had also told him that the appellant suspected the deceased for having illicit connections with his (appellant's) wife. He further stated that Mahinga and Abdul Aziz P.Ws. Met him on the way per chance. He also admitted that the appellant after committing the murder had run towards his house and passed by the police station and that all-along during the chase they had been raising alarm. Mahinga (P.W.2), the other eye-witness, also stated that within his view the appellant attacked and killed the deceased in the Bazar and then entering his house he caused injuries to Mst. Perveen, his own wife, and because his Bughda got stuck up in the beam of Chhapper therefore, they succeeded in capturing him. The story that Bughda was caught in the beam of Chhapper does not find mention in his police statement Ex-DA. He conceded that he met the complainant and the deceased per chance in the Bazaar. He lived at a distance of 2 Acres from the House of Ghulam Mustafa which was about 2 squares away from the house of the appellant.
The place of . Murder, according to him, was 11 furlongs from the house of the appellant. Many people joined them in the chase. SI. Muhammad Akram (P.W.9) stated that on 10-5-1978 at 12.30 p.m., Ghulam Nabi, complainant, delivered to him written complaint Ex-PA and also produced the appellant with Bughda P.1 before him. He drafted formal F.I.R. Ex-PA/1 on the basis of Ex-PA, arrested the appellant and seized blood-stained Bughda P.1 after making it into parcel. He seized blood- stained clothes of the appellant and having completed investigation challaned the appellant. He admitted that there were many shops near the place where Ghulam Mustafa was attacked and killed.
9. Learned trial Court rejected the defence plea and believing the prosecution case convicted the appellant on both counts under section 302/307, P.P.C.And sentenced him, as indicated above.
Extreme penalty was not inflicted on the ground that the deceased was suspected of carrying illicit intimacy with the wife of the appellant which involved family honour of the appellant. These findings have been challenged through this appeal.
10. I have heard leaned counsel for the appellant as well as for the State and also perused the record keenly.
11. In the first instance, I may say that the F.I.R. Of this case as admitted by the complainant was drafted after consultations with members of his Brathery, Muhammad Akram Advocate and others, therefore, this F.I.R. Which is said to have been lodged within ha an hour of the occurrence does not carry that sanctity which a prompt F.I.R. Normally does have. Out of three eye-witnesses named in the F.I.R. Two appeared and one of them, namely, Ghulam Nabi (complainant) real brother of the deceased, lived two squares away from the place of murder while other eye-witness Mahinga P.W.
Lives two acres away. Admittedly they met in Bazar per chance. Although the occurrence took place at the busiest place like bazaar of the town yet none from the nearby shopkeepers has come forward to support the prosecution. The story told by the eye-witnesses that they chased the appellant leaving behind dead body of Ghulam Mustaf: unattended appears to be unnatural.
Furthermore, if the witnesses had chased the appellant upto his house for a distance of 11 furlong while raising alarm and many persons of the locality also joined them in the chase and police station also fell on the way then it appears highly surprising that the appellant was not caught before he reached his house and had seriously injured Mst. Perveen. Had the appellant been chased by the people as stated by the eye-witnesses then the commotion created by the persons would have at least alerted Mst.Perveen and she would have closed herself in a room of he house to save herself from the attack. Again, it is not believable that the empty-handed PWs were able to capture the appellant in his house without being injured. To provide reply to this objection, prosecution has introduced the story that appellant's Bughda -was stuck up in the beam of the Chhapper and thus they succeeded in capturing him. It is significant that this story does not find mention either in the F.I.R. Or in the witnesses' statements recorded by the police under section 161, Cr.P.C. This deliberate improvement on the part of eye-witnesses is meaningful. Learned counsel for the complainant argued that recovery of 'Tawwa, half-baked loaf, flour in the Paraat and a dough from the place where Mst. Perveen was injured indicates that she was preparing bread when she was attacked.- This fact eliminates the possibility of deceased to have been seen with Mst.Perveen in an objectionable posture and the plea of grave and sudden provocation is thus negatived. The argument looses weight because the best witness on this point, Mst.Perveen has not appeared to say that at the time of attack she was busy baking bread and thus she was not in the company of deceased muchless in objectionable position. Considering the two versions placed in juxtaposition I find that the occurrence appears to have started from appellant's house wherein Mst. Perveen was injured by the appellant first and then he chased the deceased and having overtaken him in the Bazaar caused him fatal injuries and after he had surrendered at the police station, the police after consultation concocted this story and cited Ghulam Nabi and Mahinga as eye-witnesses who, as indicated above, were neither present at the time of occurrence nor had they seen it. There remains new statement of the appellant alone on record which has to be accepted as a whole because no portion of it has been falsified by the facts and circumstances proved on record by theC prosecution. For all these reasons I find that offence committed by the appellant squarely falls under section 304 Part-I, PPC. Consequently, the conviction of the appellant is altered from section 302 to 304 Part-I, PPC and he is sentenced to 5 years' rigorous imprisonment and a fine of Rs,5,000/-, in default of payment of fine to under 1 year's rigorous imprisonment. He shall also pay a sum of Rs,5u00/- as compensation to the legal heirs of the deceased, o in default to undergo further rigorous imprisonment for a period of months. Likewise, his conviction under section 307, P.P.C. For th injuries caused to Mst.Perveen is altered to section 308, P.P.C. An sentenced to 1 year's rigorous imprisonment and fine of Rs,1,000/ or in default 3 months' rigorous imprisonment. Both the sentences shall run concurrently and the appellant shall also get benefit of provisions of section 382-B, Cr.P.C.