KHIZAR HAYAT, J.-- Allah Bakhsh alias Bakhu aged 25 years, Khokhar by caste, resident of Old Khanewal, district Multan (now district Khanewal) has been convicted for the murder of his wife Mst. Manzuran and sentenced to death and a fine of Rs 5,000 or in default to undergo 2 years' rigorous imprisonment, by Additional Sessions Judge, Multan, vide judgment dated 4-4-1983. It was directed that the fine if realised would be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. The convict has challenged his conviction and sentence by filing Criminal Appeal No.95 of 1983 through Jail and another Criminal Appeal No.101 of 1983 through his counsel.
Besides these appeals, a reference under section 374, Cr.P.C. For the confirmation of death sentence is also before us. The appeals as well as the reference are being disposed of by this single judgment.
2. The occurrence took place on the night between 10/11-9-1982 at about 12 mid-night in the house of Ghulam Hussain in village Chauper Hatta at a distance of 4 miles from Police Station Sarai Sadhu. The incident was reported at the said police station by Charagh (P.W. 5), uncle of Mst.
Manzuran deceased, the same night at 4 a.m. Vide F.I.R. Exh. P.C. Recorded by A.S.I. Ghulam Hazoor (P.W.8).
3. Chiragh (P.W.5), the complainant, lives in Chak No. 18/A.H. At a distance of 19/ 20 miles away from the place of occurrence and his brother Ramzan, father of the deceased, lives in jungle Maryala about three miles-away his place. The appellant lived in Old Khanewal with his parents at a distance of 7/8 miles from the house of Ramzan, father of the deceased.
4. The prosecution case as disclosed, at the trial, by Charagh (P.W. 5), the" complainant, was that about 8 years prior to the occurrence, Mst. Manzuran, deceased, was married to the appellant and lived with her husband in the house of her in-laws at Old Khanewal. A son and a daughter were born out of the wedlock. A month or so before the occurrence the deceased got annoyed with the appellant and her in-laws and went to live with her father at Jungle Maryala, however, the appellant approached his father-in-law Ramzan who sent Mst. Manzuran, deceased, with the appellant on the promise made by him that he would keep her at Chauper Hatta instead of Khanewal and accordingly the couple started living in the house of Ghulam Hussain at Chauper Hatta. About 12 days later Mat. Kanizan, sister of the appellant visited Chauper Hatta in order to bring Mst. Manzuran and her children back to Old Khanewal but the deceased did not agree, the appellant approached Charagh P.W. And asked him to take the deceased from Chauper Hatta to the house of her father in jungle Maryala. Charagh P.W. Contacted his brother Ramzan and told him all about it who also asked him to bring the deceased back. At this, the complainant accompanied by Allah Bakhsh, appellant Khuda Bakhsh, brother of the appellant, and Din Muhammad, father of the appellant went to the house of Ghulam Hussain in Chauper Hatta, reaching there at 8 p. m. Mst. Manzuran deceased, asked them to sit outside the house. According to Charagh P.W. They started negotiations with Allah Bakhsh, appellant, on the question of taking Mst. Manzuran, deceased, to jungle Maryala, Talib Hussain (P.W.7) and Ramzan P. W. (not produced) also joined the dialogue. The deliberations were, however, postponed till next morning.
At about 12 mid-night they heard shrieks of Mst. Manzuran, deceased. The complainant (Charagh P.W. 5), Manzur (P.W. 6) and Talib Hussain (P.W. 7) went inside the house and saw the appellant dealing hatchet blows to the deceased. Manzur (P.W. 6) grappled with the appellant in order to save Mst. Manzuran and then all the P.Ws. Captured the appellant with weapon of offence. They disarmed him and tied him down with a rope. The deceased succumbed to the injuries on the spot.
The complainant leaving the appellant, the weapon of offence and the dead body of Mst.
Manzuran under the care of the witnesses had repaired to Police Station Sarai Sadhu for making a report.
5. A. S. I. Ghulam Hazur (P. W. 8) having registered F. I. R. Exh.P.C. Went to the spot. He prepared the inquest report Exh.P.H. And sent the dead body for post-mortem examination under police escort.
He collected blood-stained earth and secured blood-stained hatchet (P.5). He then arrested Allah Bakhsh appellant and removed blood-stained Shalwar (P-4) from his person and secured it under memo. Exh. P.E. Blood-stained earth, Shalwar (P.2) and hatchet (P.5) were found as stained with human blood by Chemical Examiner and Serologist vide their reports Exh. P. W. And P. N.
Respectively.
6. The dead body of Mst. Manzuran was first taken to Sarai Sadhu Hospital but the doctor was not available, vide dispenser's report on application Exh. P.J., therefore, it was taken to Kabirwala Hospital, reaching there at 7 p.m. On 11-9-1982. Dr. Muhammad Rafi (P.W.1) conducted the post- mortem examination on the dead body at 7 a.m. The next day (12-9-1982) and noted three incised wounds on head, face and neck of the deceased and two abrasions on the left shoulder and neck.
Underneath the incised injuries, the brain was injured and mandible and carotid vessel were found cut. In the opinion of the doctor, all injuries were ante-mortem. The incised injuries inflicted with a sharp-edged weapon, according to the doctor, caused shock and haemorrhage which resulted in instantaneous death of the deceased. Probable time between death and post-mortem was within 25 to 38 hours.
7. In support of its case, the prosecution examined nine witnesses in all. Of them, Charagh (P.W. 5).
Manzur (P.W. 6) and Talib Hussain (P. W.7) furnished the ocular account. Dr. Muhammad Rafi (P. W.
1) proved that Mst. Manzuran had died of violence and A.S.I. Ghulam Hazur (P. W. 8) narrated about different stages of investigation carried out by him.
8. The appellant when examined under section 342, Cr. P. C. Raised the plea of grave and sudden provocation. He explained that Mst. Manzuran, deceased, went to her father's house in Jungle Maryala without his permission, therefrom she eloped with Ghul$m Hussain and started living with him at Chauper Hatta. In order to bring her back he took Punchayat to the house of Ghulam Hussain. He specifically denied that Talib Hussain and Ramzan P Ws, were the members of the Punchayat. According to him, on the night of occurrence the Punchayat postponed its deliberations to next morning whereupon he went inside the house and found Mst. Manzuran, deceased, in compromising position with Ghulam Hussain. At this sight, he was gravely and suddenly provoked and in that state of mind picked up a hatchet lying nearby and dealt blows to the deceased. He then chased Ghulam Hussain in order to kill him but was caught hold of by latter's son Manzur P.W. He denied the presence of other P.Ws. There and also disowned hatchet (P.5) and Shalwar (P 4) as belonging to him. He did not produce any witness in his defence.
9. Learned trial Court on consideration of materials on record believing the motive, the ocular evidence and recovery of blood-stained hatchet and Shalwar of the appellant having accepted the prosecution story, rejected the defence theory, and convicting-the appellant under section 302, P.P.C. Awarded him extreme penalty of death because in the opinion of the trial Court there was no extenuating circumstance in favour of the appellant.
10. We have heard learned counsel for the appellant as well as for the state and also perused the record.
11. The appellant has not denied the place and time of occurrence, He admitted to have killed the deceased but explained that he killer: her under grave and sudden provocation on seeing her flagrante delicto with Ghulam Hussain who admittedly is a stranger in whose house the occurrence took place. He admitted that he was caught by Manzur P.W. On the spot while chasing Manzur's father but denied the presence of Ramzan, Talib Hussain and Charagh P.Ws. At the spot.
12. It is well-settled that in a case of two versions, in the first instance the credibility of the ocular evidence is tested and if the same is disbelieved then the statement of the accused is accepted in its entirety but when the ocular testimony is not discarded then both the rival versions are placed in juxtaposition and all the evidence on record is reviewed to find if there is reasonable possibility of the defence version being true. It is so then the accused is given the benefit of doubt not as a matter of grace but as of right.
13. There are three eye-witnesses, namely Charagh (P.W. 5), Manzur (P.W.6) and Talib Hussain (P.W.
7) in this case. Their claim is that they were present outside the house of Ghulam Hussain in connection with the Punchayat, discussing about return of Mst. Manzuran, when they heard shrieks of Mst. Manzuran emanating from the house. They rushed into the house and saw the appellant inflicting hatchet blows to the deceased. They captured him red handed disarmed him and produced him before police on its arrival at the spot. So, the purpose of the witnesses being present at the house of Ghulam Hussain at odd hours was that they were participating in the Punchayat. So, it needs scrutiny if they really attended the Punchayat? Charagh P.W. Stated that he came to Ghulam Hussain's house for taking Mst. Mazuran to her father's house in Jungle Mayala.
The deliberations remained inconclusive and the matter was put off till next morning and thereafter they heard the alarm of Mst. Manzuran and saw the occurrence. Manzur (P.W. 6) stated that they were discussing about sending of Mst. Manzuran (deceased) with Allah Bakhsh appellant to Old Khanewal (and not to Jungle Maryala). The matter was postponed to next morning for taking final decision and thereafter this occurrence had taken place. Talib Hussain (P.W. 7) stated that he joined the Punchayat at the asking of Manzur P.W. And that they were busy discussing the issue when they heard hue and cry of Mst. Manzuran. According to the witness, the dispute under discussion with the Punchayat precisely was that Allah Bakhsh appellant wanted to take with him his wife Mst. Manzuran during 'the night whereas Ghulam Hussain and Manzur P.W. Asked him to take her early in the morning. The negotiations continued for fifteen minutes when they heard alarm raised by Mst. Manzuran from inside the house. Statement of this witness shows that decision had been taken that Mst., Manzuran would go to Old Khanewal with the, appellant in the morning. It would-be seen that all the eye-witnesses differ with each other on the point that the dispute before Punchayat was about sending of Mst. Manzuran with appellant to Old Khanewal or with Charagh P.W. To Jungle Maryala i.e. To her father's house. They are not unanimous the deliberations were postponed till next morning for taking final decision or that it has been finalized that the appellant would take her to Old Khanewal. Following morning. These discrepancies in the statements of Talib Hussain and Charagh, P.Ws have aroused grave doubts in our mind as to their presence in the Punchayat and therefore, it is hard to believe that the occurrence took place in the manner they have narrated. Furthermore, we find that the escort which took dead body of Mst.
Manzuran for post-mortem examination had reached Kabirwala mortuary at 7 p. m. On 11-9-1982 which is 19 miles away from Sarai Sadhu. It shows that the dead body was removed late in the day from the spot. It suggests that Charagh P.W. Was sent for from his village and after weaving out the present story, with his consultation, the case was registered and then after filing in inquest report dead body was despatched to the mortuary.
14. The appellant admitted the presence of Manzur (P. W. 6) to the extent that the witness had captured him on the spot. The witness stated that Charagh P.W. Etc. Came to his village on the night of occurrence at about 10 p.m. When he along with his father (Ghulam Hussain) and one Bahadara were sleeping outside the house. Learned trial Court had specifically noted about the witness that "as regards his father and Bahadara's fact of sleeping has been volunteered by the witness". This shows that it was not his case during the investigation that his father Ghulam Hussain and Bahadara at the relevant time were sleeping near him outside the house. This is deliberate improvement. The position which now emerges is that Manzur P.W. Was sleeping outside the house when the appellant attacked the deceased and that he got upon hearing the alarm and reaching the spot he grappled with and captured the appellant. It follows that he did not see as to what preceded immediately before the appellant had attacked Mst. Manzuran deceased. His volunteering a statement about his father that he was sleeping with him outside the house appears to be en attempt on his part to provide an answer to the defence plea raised by the appellant i.e., that he attacked the deceased seeing her in compromising position with Ghulam Hussain (father of the witness). It is worth noting that Ghulam Hussain who, according to Manzur P.W. Participated in the Panchayat had neither appeared during the investigation nor at the trial which means that he did not see eye to eye to the plea raised by the appellant and, preferred to stay back to avoid embarrassment to him. In view of the above discussion we find the statement of Manzur P. W. Is also not above board and that implicit reliance cannot be placed on it either. In the circumstances, we discard the total ocular testimony adduced by the prosecution.
15. There now remains in the field statement of Allah Bakhsh appellant alone and we have no option but to accept it, which constitutes the commission of an offence under section 304 (Part I), P.P.C. And not under section 302, P.P.C.
16. This brings us to the question of sentence. The father of the deceased has filed an application (Criminal Miscellaneous No. 1 of 1985) saying that he has effected a compromise with the appellant and his parents. Charagh complainant also testifies to it. The compromise deed is placed on record. It shows that father of the appellant has agrees: to marry his daughter in the near relatives of the father of the deceased. The appellant is in jail for the last four years. In view of the compromise effected between the parties we feel that sentence of imprisonment for the period already undergone by the appellant would be sufficient in the circumstances to meet the ends of justice and we order accordingly. Consequently, the appeal is partly accepted, the murder reference is rejected, and the death sentence is not confirmed. The appellant be released forthwith, if not wanted in any other case.