' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No,19 of 1987 and connected Murder Reference No,3 of 1977/BWP, arise from the judgment of learned Additional Sessions Judge, Rahimyar Khan, whereby he on 29-1-1987 convicted Abdul Ghaffar appellant under section 302, P.P.C. For the murder of Sami Ullah and sentenced him to death and a fine of Rs,5,000 with the direction that half of the fine if realized be paid to the legal heirs of the deceased.
2. The occurrence took place on 2-12-1984 at 6-00 a.m. In the house of Abdul Ghaffar appellant situate in village Bohiwar at a distance of 13 k.m. From Police Station Ahmadpur Lamma. On the written report Exh.P.J. Of Muhammad Nasir P.W.6, brother of the deceased, F.I.R. Exh.P.J./1 was drawn up at P.S. Ahmadpur Lamma on the same day at 9-30 a.m. By Muhammad Saeed Akhtar A.S.I, P.W.10.
3. The motive as alleged by the prosecution was suspicion of illicit relations of the deceased with Mst. Shamim Akhtar, sister of the appellant.
4. According to the F.I.R. The appellant deceitfully took the deceased to his house at about evening time on 1-12-1984 and on the following morning killed him by inflicting hatchet blows on his person and also injured his sister Mst. Shamim Akhtar when she tried to save the deceased. The occurrence was seen by Muhammad Ashraf and Faqir Bakhsh P.Ws.
5. On 2-12-1984, Dr. Abdul Wahab P.W.4 conducted post-mortem examination on the dead body of Sami Ullah, and found following injuries:-
(1) An incised wound 5" x 2" x bone deep on the right side of face.
(2) An incised wound 5" x 1-1/2" x bone deep on the right side of head 1-1/2" above and back of right ear. Brain matter was coming out.
(3) An incised wound 3" x 1-1/2" x bone deep on the back of right forearm."
' In his opinion, the cause of death was shock and haemorrhage as a result of injuries Nos. 1 to 3 all caused by sharp-edged weapon. Injuries Nos. 1 and 2 individually were sufficient to cause death in the ordinary course of nature.
6. Abdul Ghaffar appellant was arrested on 3-12-1984 by Muhammad Sarwar Gondal, S.I. P.W.11. On 12-12-1984, he led to the recovery of bloodstained hatchet Exh.P.9 from his cattle-shed which was taken into possession vide memo. Exh.P.M. Attested by Muhammad Ashraf P.W.7 and Bashir Ahmad (not produced). The recovery memo. Was prepared by Muhammad Sarwar Gondal, S.I. P.W.11.
Serologist's report Exh.P.N. Shows that hatchet P.9 was stained with human blood.
7. To prove its case, prosecution produced 11 witnesses. Muhammad Nasir P.W.6 has deposed about the moti* of tlle appellant to do away with the deceased. He had not witnessed the occurrence.
Muhammad Ashraf P.W.7 and Faqir Bakhsh P.W.8 had narrated the occurrence to him. Muhammad Ashraf P.W.7 and Faqir Bakhsh P.W.8 have given the ocular account of the occurrence.Muhammad Ashraf P.W.7 stated that at the eventful time he and Faqir Bakhsh P.W.8 were going towards village Bohiwar. Reaching near the house of Abdul Ghaffar appellant, they were attracted to his house on hearing the hue and cry raised by the deceased. On entering into the house, they saw the appellant causing injuries with his hatchet to the deceased and to Mst. Shamim Akhtar. They tried to intervene but the appellant threatened them with dire consequences. They, then, went to the house of Muhammad Nasir complainant and informed him about the occurrence. Faqir Bakhsh P.W.8 has given almost similar statement. Muhammad Ashraf P.W.7 and Muhammad Sarwar Gondal, S.I. P.W.11 have supported the recovery of blood-stained hatchet Exh.P.9 from the appellant.
Dr. Abdul Wahab P.W.4 has proved the post-mortem examination report of the deceased. Dr. Mrs. Abida Ghani, Woman Medical Officer, Sadiqabad, P.W.3 had medically examined Mst. Shamim Akhtar D.W.1 on 2-12-1984 and found 4 incised wounds on her person. The injuries were simple and caused by sharp-edged weapon. She handed over two vaginal swabs to the police for transmission to the Chemical Examiner. Dr. Abdul Wahhab had also handed over the urethral swa bs to the police for sending the same to the Chemical Examiner. The Chemical Examiner's reports Exh.P.G. And P.O. Revealed that the urethral as well as vaginal swabs were not stained with semen. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellant while admitting to have killed the deceased and injured Mst. Shamim Akhtar at the time of occurrence, raised the plea of grave and sudden provocation. In reply to the Q.No,15, he stated:- "I am innocent. In fact my father and mother had gone to Chak No,148/P for condolence one day prior to occurrence and I and my sister Mst. Shamim Akhtar were in the house. My father Abdul Hamid told me that he and my mother were going to Chak No,148/P for condolence and I should remain in the house and should water the land of Khurshid Khan Dohar in the evening being the tenant of said Khurshid Khan. At that time Sami Ullah deceased was standing on the Pulli which was at some distance and was hearing our talk. My father and my mother then went away at that time and I went to water the land of Khurshid Khan Dahir. At that time, Mst. Shamim Akhtar, my sister was alone in the house. After watering the land when I came back to my house in the morning at about 4 a.m. I saw Sami Ullah deceased and my sister Shamim Akhtar sleeping on one Charpai and were embracing and kissing each other. I was suddenly provoked by seeing this nefarious act of deceased and my sister and under grave and sudden provocation I firstly inflicted injuries on the person of my sister Shamim Akhtar with the hatchet which I had with me when I went to water the land and was having in my hand at that time, when she was lying on the Charpai. She after receiving some injuries ran away to save her life and hid herself, somewhere. I, then under grave and sudden provocation, inflicted injuries on the person of Sami Ullah deceased, when he was lying on the same Charpai and thereafter I proceeded to police station alongwith the hatchet and reported the matter to the police and handed over the hatchet to police. Police took the hatchet from me, sent for the brother of the deceased Muhammad Nazir, came at the police station alongwith Muhammad Ashraf P.W., who is his relative. Police gave a white paper to Muhammad Ashraf P.W. To write down the report who at the dictation of the police wrote it and handed over the report written by him to police for registration of the case. After the registration of the case police arrested me and sent me to police lock up. No one has seen the occurrence except my sister Mst. Shamim Akhtar. She is eye-witness in this case. P.Ws. Have deposed falsely. They were not present at the time of occurrence, but have been concocted by the complainant party in collusion with police."
' To prove the plea taken by him, he produced Mst. Shamim Akhtar as D.W.1. She stated that on seeing her in compromising position with Sami Ullah deceased, the appellant had killed him and caused injuries to her at the time of occurrence.
9. Believing the prosecution version of the occurrence told by the two eyewitnesses and disbelieving the plea of grave and sudden provocation raised by the appellant and the statement of the D.W. As well, the trial Court has convicted and sentenced the appellant as stated above.
10. Learned counsel for the appellant contended that Muhammad Ashraf P.W.7 and Faqir Bakhsh P.W.8 are not truthful witnesses; that they are chance witnesses; that the story of their reaching the place of occurrence at the eventful time does not ring true and that since the deceased was murdered and Mst. Shamim Akhtar was also injured inside the house of the appellant, therefore, there is a reasonable possibility of the defence version being true. Learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court.
Learned counsel for the complainant was of the view that Muhammad Ashraf and Faqir Bakhsh had no enmity with the appellant, therefore, their evidence has rightly been believed and acted upon by the trial Court; that since the urethral swabs of the deceased and vaginal swabs of Shamim Akhtar, sister of the appellant, were found 'not stained' with semen so the plea of grave and sudden provocation raised by the appellant was false and that in any case the prosecution version is more probable than of defence.
11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statement of the accused/appellant recorded under section 342, Cr.P.C. And the circumstances appearing in the case. We find that the time, of occurrence, place of occurrence, and the fact that Sami Ullah was done to death by the appellant, are the admitted facts of the case. The parties as usual have given different versions of the circumstances of the murder of the deceased. According to the prosecution, the appellant deceitfuly took Sami Ullah deceased to his house on evening and killed him and injured Shamim Akhtar his (accused) sister in the following morning on account of suspicion of illicit relations between them and the occurrence was seen by Muhammad Arshad and Faqir Bakhsh P.Ws. Conversely the defence case is that the accused/appellant had gone to water the land and on coming back to his house he found Sami Ullah deceased and Mst. Shamim Akhtar sleeping on a Charpai embracing and kissing each other, so he killed him under grave and sudden provocation and that the occurrence was not seen by Muhammad Arshad and Faqir Bakhsh P.Ws. It is a case of two versions. We propose to discuss the prosecution case and the ocular evidence produced by it in order to come to an independent finding on the truth or falsity of the prosecution case and the credibility of the eye-witnesses, before examining the defence version given by the appellant in his statement recorded under section 342, Cr.P.C. From the aforesaid state of affairs it is very much obvious that the fate of the prosecution case depends upon the question of the credibility of Muhammad Ashraf and Faqir Bakhsh, the two eye-witnesses.
We find that there are reasons to doubt that they in fact had seen the occurrence. The occurrence took place inside the house of the appellant situate in Mauza Bohiwar. Muhammad Ashraf lives in Mauza Sanjarpur and Faqir Bakhsh resides in Mauza Baig Mehar. Muhammad Ashraf is the first cousin of the deceased. Faqir Bakhsh P.W. Is an employee of Muhammad Ashraf P.W.7. They are the chance witnesses. They stated that they were going to get cotton from Mauza Bohiwar, and were attracted to the place of occurrence on hearing the hue and cry raised by the deceased. Because of his relationship with the deceased, inclination of Muhammad Ashraf towards him is very much obvious. The occurrence took place at 6-00 a.m. In the month of December. It can hardly be believed that Muhammad Ashraf accompanied by his private servant would have reached the place of occurrence exactly when his first cousin was being killed unless the nature had so pre- arranged. To disbelieve the presence of a witness on the place of occurrence, it is not necessary that there should be more than one reasons. If there is one reason which creates reasonable doubt with regard to his presence on the spot at the time of occurrence, that alone will be sufficient to discard his entire evidence.
12. Taking up the defence version, we feel that since we have disbelieved the ocular evidence and there is nothing in evidence to falsify the circumstances of the murder told by the appellant, therefore, we are obliged to accept his statement as a whole. Even otherwise, there is a reasonable possibility of the defence version being true. There were suspicions of his illicit relations with Shamim Akhtar, the sister of the appellant; that Shamim Akhtar was also injured during the occurrnece; that the occurrence took place in the house of the appellant where Mst. Shamim Akhtar was residing; that in view of the suspicion of the appellant against the deceased that the latter was having illicit relations with his sister, the latter would not have accompanied the former to his house; that had the appellint deceitfully taken the deceased to his house on the evening preceding the day of occurrence, he would have easily killed him during the night and would not have waited till 6-00 a.m.; that since the appellant had not seen the deceased committing sexual intercourse with his sister and the deceased was seen lying on a Charpai and kissing and embracing the sister of the appellant, therefore, the absence of semen stains on the urethral and vaginal swa bs is quite obvious and this will not render the defence version false.
' The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant under section 302, P.P.C. The same is set aside. Instead the appellant is convicted under section 304-1, P.P.C. And sentenced to 5 years' R.I. And a fine of Rs,5,000, in default one year's R.I. The fine, if realized, be paid to the legal heirs of the deceased. Death sentence NOT CONFIRMED,