The accused Francis has filed the above-titled appeal through jail challenging his conviction and sentence passed by the learned Additional Sessions Judge, Jhang on 23-4-1988, whereby he convicted him under section 302, P.P.C. For having caused the murder of Javed Masih and sentenced him to imprisonment for life and a fine of Rs. 3,000 or in default to undergo R.I. For 6 months. The fine, if realised, was ordered to be paid to the legal heirs of the deceased as compensation. The accused/appellant was also given the benefit of section 382-B, Cr.P.C.
2. The facts necessary for the disposal of this appeal are that F.I.R. Exh.P.D. Was recorded at the instance of Yusuf Masih P.W.6, the real brother of deceased Javed at Police Station, Shorkot Cantt.
On 1-5-1986 at 7-00 p.m. The occurrence is alleged to have taken place at 5-30 p.m. In the area of Chak No.500/G.B., Tehsil Shorkot, District Jhang. The distance of police station from the place of occurrence is about 7 miles. It is mentioned by the complainant that he alongwith the deceased was returning from the fields after harvesting the wheat crop. The deceased Javed Masih was about 10/15 Karams ahead of him. When he reached near the Government watercourse, all of a sudden the accused who was hiding himself near the Khal got up and challenged the deceased that he would teach him lesson for having illicit intimacy with his sister Mst. Rukhsana. On this the deceased tried to run away but the accused Francis inflicted Churri blow on the elbow of his left hand. The second blow was inflicted on the left side of the neck of the deceased. The complainant raised hue and cry which attracted Falak Sher and Salwatar P.Ws. Who also saw the occurrence.
The complainant put his brother Javed on a cot in an injured condition and took him to the house where after sometime he died due to the injuries.
3. The motive according to the complainant was that the accused Francis suspected the deceased of having illicit liaison with his sister Mst. Rukhsana.
4. The Investigating Officer Haibat Khan P.W.8 after recording the F.I.R. Reached the spot at about 8- 00 p.m. And conducted the investigation. He prepared the injury statement of the deceased Exh.
P.H. And inquest report Exh.P.H./1. He also took into possession blood-stained earth from the place of occurrence and sealed it into a parcel vide memo. Exh. P.E. The statements of the witnesses were also recorded. The last worn clothes of the deceased i.e. Blood-stained shirt Exh.P.I, blood-stained Bunian P.2 and blood-stained Shalwar Exh.P.3 were also handed over to the Investigating Officer by Ghulam Abbas Constable and the same were taken into possession vide memo. Exh.P.B. The accused was arrested on 2-5-1986 from a bus-stop situated at a distance of 4/5 miles from the place of occurrence. On interrogation the accused led to the recovery of blood-stained Churri Exh.P.5 from an almirah of his residential room. He also got recovered blood-stained shirt Exh.P.4 as well. Both these articles were taken into possession vide memos. Exh.P.G. And Exh.P.F. Respectively.
After completing the investigation the challan was submitted and the accused pleaded not guilty.
5. The prosecution examined 8 witnesses in all to establish its case. Dr. Abdul Razzaq P.W.1 conducted the post-mortem examination of the deceased on 2-5-1986 at 7-00 a.m. He found the following injury:-- .
(i)A stab wound 4 c.m. x 2 c.m. x passing the inner side of the left side of the neck. The wound was situated on the outerside of the left side of the neck two c.m. Below the lower jaw and was 6 c.m.
Below the left lobule of the ear. The wound was passing through the lateral towards the mandible alongwith side of cervical thoracic vertebra. There was perforation of the superior vanacava and had rupurted left pleura. The left lung was collapsed and left chest cavity was full of blood. Some of the blood was clotted.
(ii)An abrasion 3 c.m. x 3 c.m. On the back of left elbow.
6. According to the doctor injury No.1 which was caused by sharp-edged weapon, was sufficient to cause death. The ocular account has been established in all its material particulars by P.W.6 Muhammad Yousuf complainant and P.W.7 Falak Sher. The third witness, namely, Salwatar mentioned in the F.I.R. Was given up as being unnecessary by the prosecution. The complainant Yousaf Maseeh P.W.6 who is the real brother of the deceased has supported the prosecution case in the same line as taken by him in the F.I.R. Similarly Falak Sher P.W.7 who is related to both the parties stated that he was standing; near the wall of the mission alongwith Salwatar given up P.W. When they heard hue and cry raised by Yousuf P.W.6. They at once rushed to the scene of occurrence. In their view the accused Francis gave a Churri blow to the deceased as a result of which he fell down on the ground. He has also witnessed the recovery of incriminating articles recovered at the instance of the accused. The testimony of this witness is consistent with that of Yousaf Maseeh P.W.6, complainant. According to the reports of Chemical Examiner and Serologist the recovered articles were stained with human blood.
7. The accused was examined under section 342, Cr.P.C. And refused to appear as witness as provided by section 340(2), Cr.P.C. In his statement he has denied the recovery of Churri P.5 and blood-stained shirt P.4 from him. However, to a question that why this case against you he answered as under:- "The deceased was a wagabond type of a young man. He was seen in objectionable condition, kissing embracing Mst. Rukhsana, in an isolated garden of Younis son of Dhanna near the place of occurrence. He was murdered, due to grave and sudden provocation, unwitnessed and unseen.
Later on Bashir District Councillor fabricated the present story and the close relatives of the deceased were made as witnesses and I was made a scape-goat."
8. Apart from this he did not bring any evidence to further establish his plea.
9. I have gone through the entire evidence with the help of the learned counsel appearing in this Jail appeal.
10. The occurrence has not been denied by the accused /appellant in his statement under section 342, Cr.P.C. But he has advanced the plea of grave and sudden provocation as according to him he had seen the accused kissing and embracing his sister Rukhsana in a nearby garden. The prosecution has also advanced the motive, which is in line with the defence version. The only difference is that according to the prosecution the accused was nourishing suspicion against the deceased that he was carrying on with his sister while according to the defence the accused actually craw the deceased kissing and embracing his sister. ]'he site plan shows a garden nearby the place of occurrence. According to Jan' Muhammad P.W.5 the place of occurrence is a thoroughfare. The accused would not have hidden himself near the watercourse at that time of the day in the month of May. There is also another factor creating some doubt in the version of the prosecution as according to the eye-witnesses the accused had inflicted two sharp-edged injuries on the person of the deceased while the medical evidence shows only one sharp-edged injury and the second one an abrasion.
11. Though the accused apart from his own statement did not produce any evidence to advance his plea but the timing and circumstances of the incident would give strength to the testimony of the accused. The stance of the prosecution that the accused was hiding on the side of the Khal would not inspire Confidence as the alleged place of occurrence is a thoroughfare. In the circumstances if the stance of the prosecution is placed in juxtaposition to that taken by the accused the pica of the accused that he saw the deceased in the nearby garden with his sister cannot be ruled out. In the circumstances of the case the conviction of the accused is altered to that under section 304, Part 11, P.P.C. And he is sentenced to 7 years' R.I. The accused shall also be given the benefit of section 382-B, Cr.P.C. With this modification the appeal is dismissed.
S.A./F-141/L