1. Muhammad Aslam, aged 38 years, a Government servant in the Department of Railway Mail Service, has called in question the judgment and order dated 19-5-1969 of learned Additional Sessions Judge, Rawalpindi, whereby he has been convicted under section 302, P. P. C. And sentenced to transpor--tation for life and .a fine of Rs. 100 (in default three months' R. I.); for the murder of Abdul Khaliq a young Warrant Officer in the Pakistan Air Force, The prosecution case, as disclosed by Abdul Majid P. W., a real younger brother of the deceased, is that the appellant who is distantly related to the witness had a suspicion of illicit connection between the deceased and his wife. On 4-10-1968 at 7-45 p. m. He and his deceased brother went to the quarter of the appellant "to remove the false suspicion". The deceased told the appellant about his innocence in the matter. On this, an altercation ensued between the two. The appellant declared that he would "give a taste to the deceased for having altercated with him". On this, the witness and the deceased came out of the quarter. As soon as they came out, the appellant who followed them gave a blow with chhuri (P. 1) at the "right flank" of the deceased. When the witness looked up, the appellant pulled the chhuri from the "abdomen" of the deceased and fled away with the same. The deceased and the witness raised an alarm whereupon Ahmad Hasaan Baloch and Abdul Hamid p Ws, reached the spot from a nearby quarter. Abdul Majid went to Police Post Chaklala where he lodged the report (Exh. P. B.) at 8-55 p. m. Whereupon formal F. I. R. (Exh. P. B. 1) was registered at Police Station Civil Lines at 9- 30 p.m.
2. On autopsy, "an oval penetrating wound 1 x -- in the right lover quadrant of the abdomen about 2' above and. Medial to the anterior superior iliac spine and about 5" to the fight slightly below the umbilicus with neat margins" was found on the dead body, under which the abdominal wall, the peritoneum slid the ascending colon as also mesentery and inferior vena were found cut. This injury was sufficient to cause death. There was no other injury on the body. Stomach was empty.
3. The death war instantaneous but the tire between the death and the post-mortem was from 8 to 18 hours. The deceased was of middle age and had good physique. At the time of the post--- mortem the dead body was clothed in civilian clothes. The shirt and the vest which were blood- stained had tear marks in the right lower part.
4. During the investigation, after the arrest the appellant led to the recovery of chhuri (P. 1). Blood- stained shirt (P. 2) was removed from his person. Subsequent chemical analysis revealed that both these articles were stained with human blood of Group, A which matched with the blood of the deceased.
5. Evidence in support of the ocular account (Abdul Majid, Ahmad Hassan and Abdul Hamid eye- witnesses) the recoveries of chhuri (P. 1) and shirt (P. 2) two P. A. F. Corporals Mir Dad and Abdul Rauf and Gulzar Ahmad, S. L, P. Ws.) and of motive (aforementioned Abdul Majid and Muhammad Fazil P. Ws.) as also the medical evidence was led against tire appellant at the trial. In his statement under section 342, Cr. P. C. The appellant raised a plea of total denial and stated that about five years before the occurrence he had divorced his first wife who was parent aunt's daughter of the deceased. On this account, the deceased and his brother Abdul Majid P. W. Had a grudge against him, therefore he had been falsely implicated, He stated that he had no knowledge as to why Ahmad Hassan and Abdul Hamid had deposed against him and surmised that they, probably, did so because they were employees of the Air Force. He further explained that on the night of occurrence he came to his house at about 8-30 p.m. And found many persons collected there near the deceased who was lying dead.
6. The police first joined him in the investigation and then after summoning Abdul Majid at the spot recorded his report and, later on, at his instance, falsely implicated him. Before the committing Magistrate, he had clearly admitted that on 4-10-68, i.e., the day of occurrence, the deceased had gone to his quarter but had denied that Abdul Majid P. W. Had accompanied him. He denied the recoveries at both the stages. He also denied that he suspected the deceased of having illicit connection with cost. Shamim his wife, presumably the second one. No, evidence was produced in defence. The learned trial Judge accepted the evidence about motive as true. He discussed at some length the reasons for coming to the conclusion that Ahmad Hassan and Abdul Hamid P. Ws.
7. Must have seen the occurrence. But without making any such analysis of the deposition of Abdul Majid P. W., who undoubtedly was highly interested and inimical witness, his statement, it only appears, has been assumed as correct. The recoveries have also been believed. The learned Judge was of the view that there was an altercation between the deceased and the appellant and further that in the excitement caused by this altercation the appellant attacked the deceased, therefore, he was, given lesser punishment.
8. In the grounds of appeal contained in a lengthy memorandum written in long band, the evidence has been criticised as if by a lawyer. The appellant, by making several applications; appearance in this Court at the time of hearing of the appeal. He was summoned and in the first instance, he made the following brief statement: - "I am innocent. I have been falsely implicated. I have never fought with anybody throughout my life.
9. I lived life of a gentleman. I have five small children. They have no other person to depend upon. I do not know where they are. I do not know about-the whereabouts of three of my children."
10. As in this statement the appellant neither clearly admitted nor denied having caused the death of Abdul Khaliq. I pointed out to him that before the Committing Magistrate he had admitted the visit of the deceased to his quarter on the night of occurrence while before the trial Judge he denied this fact and as he had riot engaged any counsel, I thought he might give some plausible explanation for this contradiction between the two statements made by him which had been duly noticed by the trial Judge and had in fact, been used against he, after a small amount of hesitation, stated that he was not much consulted by his counsel either before the committing Magistrate or the trial Judge and that his grounds of appeal had been drafted by a Jail Officer on which he only appended his signatures. He then sought my permission to state the truth in this Court because he explained to have thought t have appeared before the High Court and keeping in view the realities I must state the truth" He then admitted having inflicted the injury on the deceased pleading some justification for the same and started giving the details. I did not record his statement contemporaneously, when he had finished making the verbal statement, I again asked him whether he wanted to get it recorded to which he answered in the affirmative. His detailed statement duly recorded in this Court is reproduced below: - "I married Mst. Shamim Akhtar as a second wife. My first wife was related to me. So was she related to the deceased distantly? My second wife has no relationship with the deceased. As the deceased was related to me, he used to visit my house and he developed illicit connection with my second wife. I also saw them sitting together once and I had sufficient material to think that they had such a liasion between each other. I told the deceased not to visit my house and also started telling my wife to improve her conduct. In spite of that, they continued the illicit liasion. My smaller children had told me several times that in my absence Khaliq used to visit my house in spite of my having told him not to visit the house. The relations between me and my wife got strained and ultimately leaving the children with me, she left my house and went to reside with her parents. A few days before the occurrence she (not only left my house but also) started asking for divorce. I wanted to save my home as I had five small children and I could not afford my wife permanently leaving the children. In order to run away from the bad influence of the deceased I also arranged for my voluntary transfer out of Rawalpindi to Nowshera. I have sufficient documentary proof. If the Court desires I can produce it. I was under the impression that after tae transfer, wither the matter would be patched up between me and my wife as she would then be out of influence of Khaliq, or if I had to divorce her, at least I would be having mental peace and would take my children away from those people. I was, in fact, on joining time and was to proceed to Nowshera after a day or two when, somehow after having learnt about this fact, the deceased came to my quarter on the day of occurrence alone. Again said, that I had started making efforts for my transfer from the time when I had realised that Abdul Khaliq deceased and my wife had developed illicit connection. I do not remember exactly, but I think my wife was still in my house when the orders of my transfer had been passed and she also came to know about it somehow or the other though I had not told her, that I had been transferred out of Rawalpindi. I place the duplicate of the original transfer order on the record of this Court.
11. (Note. The document has been placed on the record and has been marked as Exh. C/1).
12. When Khaliq came to my quarter, at that time I was preparing meals for myself and my children in my kitchen. A kitchen knife (ordinary chhuri) was lying there. The deceased came where I was sitting and told me that I should divorce my wife. During those days Tariq Javed, one of my children, had been lost somewhere and I had already reported the matter in the Idara Khidmat-e- Khalaq. I was under terrible mental strain due to the faithlessness of my wife, the loss of my child and the depression caused by the uprooting of my home. I told Khaliq why he had come to my quarter. It was matter which concerned me and my wife and that he should go away. He was healthier than myself. He firmly stood in front of me and demanded that he would not leave the place unless I divorced my wife. He then told me that unless I divorced my wife I could not leave for Nowshera nor could I really leave my quarter. All this, in that state of depression, gravely provoked me. Even then I thought that I should avoid the deceased and get out of my house. In that state of mind when I was not able to make difference between good and bad, probably instinctively I picked up a chhuri from the kitchen and wanted to get out of the kitchen. The deceased wanted to prevent me from going away. When we, i.e., the deceased and myself, were till in the compound, in that confusion as the chhuri was in my hand, he did receive the injury with that chhuri and fell down in the compound. It is wrong that I ran after the deceased and caused him .The injury outside the quarter. I do not want to say any thing more.
13. Question: Did you inflict the blow with the chhurt on the deceased?
14. Answer: (The appellant has kept mum and probably does not want to answer the question).
15. Question: Do you want to say anything else?
16. Answer: None of the so-called eye-witnesses actually caw the occurrence. Again said, I had raised an alarm and many people had collected. I do not know whether after the occurrence any one of those persons arrived or not; I knew that the S.I lived in the same locality in a quarter. I straightaway went to hid quarter along with the churri. I told the truth to him there and then and gave the churri to him.
17. Due to mental worries and disturbed family conditions, I was not feeling well and I had also given a medical certificate in my departmental office.
18. After having gone through the entire evidence and the various statements made by the appellant, I agree with the learned trial, Judge that there is sufficient evidence on the record to show that the appellant did cause a blow with the chhuri to the deceased. In reaching this conclusion, I have not excluded the possibility that Ahmad Hassan and Abdul Hamid might have seen the occurrence but due to the reasons best known to them or due to sheer ignorance, they have not stated that the truth as to what actually happened before the blow was inflicted and as to where, in fact, the occurrence took place. I have already noted that the learned trial Judge did not analyse the statement made by Abdul Majid P. W. He is the younger brother of the deceased. The circumstances of the case particularly the facts disclosed by Fazil P. W, with regard to the motive show that it was unlikely for the deceased to have gone to the house of the appellant for the so- called purpose of assuring him about his innocence in she matter of his suspected liaison with the appellant's wife. This supposition is further strengthened by the fact that. Ahmad Hassan P. W.
19. Admitted that the deceased had been visiting the house of the appellant before the occurrence.
20. This, at least, partially gives support to the statement made by the appellant in this Court that the deceased used to visit his house even in his absence and he was told about it by his own children.
21. It was not a mere suspicion of illicit connection. Fazil P. W., who is related to the appellant, clearly stated that the wife of the appellant had deserted him and that it was due to her illicit relations with Khaliq deceased. The appellant had further impressed upon this witness that he should make it clear to the deceased, who was also related to the witness, that this illicit connection must be stopped; otherwise the results would be dangerous. It was almost impossible with this background that there was any chance of the deceased entertaining an idea that be would be able to convince the appellant of his innocence in so far as the allegation of illicit connection with his wife was concerned. The matter had gone too far. He had been given a clear warning. Therefore, it is absolutely unlikely that he would have gone to the house of the appellant for the purpose of making any clarification. It is for the same reason unlikely that he would have taken his younger brother Abdul Majid with him for the alleged purpose. On the other hand, a reasonable possibility cannot be excluded that the statement made by the appellant in this Court, that his wife having deserted him on account of this illicit connection had already asked for the divorce and that the deceased had gone to his quarter at night time on the day of occurrence in order to coerce him to give divorce to the woman he the deceased love might tae true. Abdul Majid, in view of the divorce by the appellant to his first wife who was closely related to him (Majid), the illicit connection of his brother with the wife of the appellant and on account of the death of his brother, should nave been treated as highly interested and inimical witness. A reasonable possibility cannot be excluded that he told a lie about his having gone with the deceased to the quarter of tile appellant on the night of occur--rence. Moreover, it is clearly mentioned in the statement of Mir Dad Corporal P. W. Who, if at all had some interest in the deceased had none in the appellant, that blood-stained earth was taken from the compound of the quarter of the appellant. On the other hand Abdul Majid who as noted above is interested witness, stated that after the altercation he and his deceased brother came out the quarter. The appellant followed him from behind caused him blow in the abdomen and further that he fell down outside the quarter. This shows that Abdul Majid had not seen the occurrence. The seat of injury also, when compared to the position described by this witness that the appellant came from behind and in the same position inflicted the blow on the deceased, shows as if Abdul Majid had not seen the occurrence. It was probably for all these reasons that the learned trial Judge felt it difficult to properly analyse his statement. I have serious doubt about his presence at the spot Therefore, his statement; gill to, kept out of consideration.
22. Although there are some discrepancies in the statements of Ahmad Hassan and Abdul Hamid with regard to their position before the occurrence, as to what they actually saw and also as to how the injured /deceased, was looked after or taken to the hospital; yet I am of the view that there is no connection of Abdul Hamid P. W. With the deceased. Ahmad Hassan, it can be said, would have soft corner for him (the deceased) but the impression created by their statements is that either they actually saw the occurrence or the blow being single they reached immediately after the occurrence and saw the appellant with the chhuri in his hand. But with regard to the place of occurrence, as already noted, I have no reason to prefer their statements on the one made by Mir Dad Corporal with regard to the recovery of the blood-stained earth from the compound of the quarter of the appellant. It appears that the occurrence, as stated by the appellant did take place in the compound but due to the reason that the deceased was in active service as an Engineer in the P. A. F:, the S. I., for reasons best known to him, introduced the embellishment of the deceased having been injured outside the quarter. This having been done at the initial stages, these two witnesses (Ahmad Hassan and Abdul Hamid) were probable made 'to toe the same line. However, the fact that the appellant did cause the injury to the deceased has been admitted by him blood- stained chhuri was recovered at his instance. His shir and the chhuri were stained with human blood in the same growl as that of the deceased. Therefore, the admission made by that appellant in this Court that he did cause the death lo, not with foundation. I hold accordingly.
23. The question of the offence committed has given me anxious thought. I have already noted that Ahmad Hassan and Abdul Humid P. Ws. Have made slight improvement with regard to the place of occurrence and that Abdul --- .Majid P. W. Is not a reliable witness. There is strong reliable evidence that the deceased fell in the compound of the appellant. This provides ample corro--boration to the statement made by the appellant in this Court. Ahmad Hassan and Abdul Hamid reached the spot from some distance after the alarm having been raised. There must have been a very small gap of time between the alarm and the inflic--tion of the blow. Therefore, it was impossible for these two witnesses to have witnessed as to what happened immediately before the appellant inflicted the blow. The occurrence I have already held took place inside the compound where the children of the appellant could be the only witnesses. The statement made by him in this Court, in the background of the relations between the parties as deposed to by Fazil P. W., shows that it was very likely that the deceased, who was a young healthy man and must have felt confident in his official position, might have gone to the house of the appellant to seek divorce for a woman he probably loved. There does not appear to be any exaggeration to the statement of the appellant that the deceased stood in front of his kitchen and further that he, on account of the reasons mentioned by him, was in an extreme state of mental depression. The conduct of the deceased in his persistence to stay on in the house which he had been told several times not to visit, and his standing in the way as described by the appellant, could definitely, in the circumstances of this case, provoke him suddenly and the provocation could not be anything less than grave. There is no reason why to doubt the statement of the appellant that the deceased stood in his way in front of the kitchen; and if the appellant, in fact, felt that he had been prevented by the deceased from getting out of the house, this might have caused a reasonable and genuine apprehension in the mind of the appellant that he might be physically harmed by the deceased. The chhuri recovered from the appellant, from its diagram, appears to be an ordinary kitchen knife. This also supports his version.
24. Learned counsel appearing for the State, in complete fairness to the appellant, analysed the prosecution evidence, and brought to my notice several weaknesses in the prosecution evidence, and at the end unequivocally supported the plea taken by the appellant in his statement before this Court. I have already held that there is no reason to ignore the admission made by the appellant in this Court that he was--- in fact, responsible for the death of Khaliq. On this view of the matter, it is not necessary to examine in detail the weaknesses pointed out by the learned counsel for the State. I may mention here that the position taken by the learned counsel for the State is not only fair but also fully justified by the circumstances of the case. The only fact that the appellant made a plea of denial at the earlier stages will not, in the circumstances of this case, make any difference because the explanation that he was not fully consulted appears to be correct as he did make a part admission in answer to question No, 6 asked from him at the commitment stage.
25. In the light of the above discussion and keeping in view all the circumstances of this case, T have come to the conclusion that the appellant apprehended physical harm to his person from the deceased who had trespassed into his quarter: Therefore he could exercise right of private defence but not to the extent of causing the death. His case, on this view of the, matter, falls within Exception II to section 300, P. P. C. He had also, due to the grave and sudden provocation given by the deceased, lost the power of self-control. Therefore, his case also falls under Exception I to section
300. Thus he has not committed the offence of murder. I partly accept his appeal, set aside his conviction and sentence under section 302, and instead convict him under section 304, Part 1, P. P.
26. C. If it would have been a case of the appellant killing the paramour of his wife on surprising them in any compromising position, a sentence of three years' R. I. Would have met the ends of justice.
27. But the facts of this case are different. Keeping the same in view, I sentence the appellant under section 304, Part 1, to four years' R. I. And a fine of Rs. 4,000 in default of payment of which he shall further suffer rigorous imprisonment for three years. The entire amount of fink when recovered, shall be paid as compensation to the heirs of the deceased.