' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 14 of 1987/BWP and connected Murder Reference No,6 of 1987/BWP, arise from the judgment of learned Sessions Judge, Bahawalpur, whereby he on 20-1-1987, convicted Muhammad Arshad (18) and Muhammad Sardar (25), the appellants under section 302/34, P.P.C. For the murder of Muhammad /Warn (25) and sentenced them as under:- ' Muhammad Arshad. Death and a fine of Rs,5,000, in default thereof one year's R.I.
' Muhammad Sardar. Imprisonment for life and a fine of Rs,2,000 in default thereof one year's R.I.
' It may be noted here that no direction for the payment of fine or any compensation to the legal heirs of the deceased was given by the trial Court.
2. The occurrence took place on 3-8-1986 at 5-30 p.m. In Killa No, 15 owned by Muhammad Ali P.W.
In the area of Chak No,14/BC at a distance of 19 k.m. From Police Station Yazman. The F.I.R. Exh.P.D.
Was lodged by Muhammad Ramzan, father of the deceased on the same day at 8-45 p.m. And was recorded by Ali Gohar S.I., P.W.9.
3. The motive as alleged by the prosecution was suspicion of illicit relations of Muhammad Aslam deceased with Mst. Irshad Mai, sister of the appellant.
4. As for the main occurrence, it has been stated that at the eventful time Muhammad Ramzan P.W.6, and Muhammad Aslam deceased were cutting grass from the land of Muhammad Ali.
Muhammad Arshad armed with knife and Muhammad Sardar empty handed came there.
Muhammad Sardar caught hold of Muhammad Aslam and Muhammad Arshad inflicted knife blows on him (the deceased), who fell on the ground and died instantaneously. Muhammad Ramzan raised alarm which attracted Rahim Bakhsh and Muhammad Rafiq P.Ws. To the spot. The appellants then ran away from the spot.
5. On 4-8-1986 at 11-30 a.m. Dr. Bilal Hussain conducted post-mortem examination of the dead body of Muhammad Aslam and found following injuries:
(1) An incised wound on right lower chest near the right border of sternum extending laterally measuring 3-1/2 x 1-1/2 c.m. x deep (unknown depth).
(2) An incised wound on left side of chest just on left margin of sternum, extending supro inferiorly about 7 c.m. Below the supra sternal notch, measuring 2 c.m. x 3/4 c.m. x depth (unknown depth).
(3)An incised wound on left side of chest about 4 c.m. Infro lateral to left nipple measuring 2 x 1/2 c.m. x deep (unknown depth).
In his opinion, the death had occurred due to exessive haemorrhage as a result of injuries Nos.2 and 3, which are sufficient to cause death in the ordinary course of nature. The injuries were caused by sharp-edged weapon and were ante-mortem.
6. On 4-8-1986, the appellants were arrested by Ali Gohar, S.I., P.W.9. On 10-8-1986 Muhammad Arshad appellant led to the recovery of blood-stained knife Exh.P.4 from his residential Sahal, which was taken into possession vide memo. Exh.P.F. Attested by Rahim Bakhsh P.W.7 and Muhammad Rafique (not produced) and Ali Gohar S.I. P.W.9. The Serologist Report Exh.P.J. Reveals that knife Exh.P.4 was stained with human blood.
7. To prove its case, prosecution produced 9 witnesses. Muhammad Ramzan P.W.6 and Rahim Bakhsh P.W.7 have given the ocular account of the occurrence. They claim to have seen Muhammad Sardar appellant catching hold of Muhammad Aslam and Muhammad Arshad giving injuries with his knife to him. Muhammad Ramzan has also deposed about the alleged motive of the appellant to kill the deceased. Rahim Bakhsh P.W.7 and Ali Gohar, S.I. P.W.9 have supported the recovery of blood-stained knife Exh.P.4 from the appellant. Dr. Syed Bilal Hussain P.W.1 has proved the post-mortem examination report. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. Muhammad Sardar denied all the incriminating circumstances. Muhammad Arshad admitted to have killed the deceased on grave and sudden provocation. In reply to Q.No,6, he stated: "On the day of occurrence I had seen the deceased and my sister Irshad Mai in compromising position in the cotton field of Muhammad Ali. I lost my control and gave injuries to Muhammad Aslam deceased with my knife P.4. Thereafter I had chased Irshad Mai in order to kill her but I was intervened by Abbas and Wali Muhammad, who caught hold of me and that Irshad Mai ran away.
Muhammad Sardar accused was not present with me and I alone had given injuries to the deceased. The P.Ws. Have deposed against me on account of enmity and having relationship with the deceased. Abbas and Wali Muhammad had produced myself alongwith knife P.4 before the I.O., who had recovered the knife from me at the time of arrest."
' To prove the defence version, the appellants produced Wali Muhammad and Muhammad Amin in their defence. Wali Muhammad D.W.1 stated that at the eventful time, he and Muhammad Amin were present in Killa No,15. On hearing the alarm, they ran towards the place of occurrence and found Muhammad Aslam lying on the ground in injured condition while Muhammad Arshad was chasing a girl, who was running 1 or 2 Killas ahead of him. They followed Muhammad Arshad appellant and asked him not to chase the girl to which he agreed. They took knife from him.
Muhammad Arshad appellant disclosed that on seeing Muhammad Aslam deceased in compromising position with his sister he had caused injuries to him with his knife and had also chased his sister. Muhammad Amin D.W.2 made similar statement.
9. Believing the ocular account of the occurrence stated by Muhammad Ramzan and Rahim Bakhsh P.Ws. And disbelieving the version of the occurrence told by the appellant and the statements made by the 2 defence witnesses, the trial Court has convicted and sentenced the appellants as stated above.
10. Learned counsel for the appellants submitted that Muhammad Ramzan and Rahim Bakhsh P.Ws. Are closely related to the deceased and as such are- not independent witnesses; that they had not seen the occurrence; that had they been present on the spot, they would have apprehended or at least tried to apprehend the appellants on the spot; that the motive lends support to the defence version; that the defence witnesses namely Wali Muhammad and Muhammad Amin are quite independent persons; that they had no animus against the complainant and that, in the circumstances of the case, there is at least, 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 pointed out that in his statement recorded under- section 342, Cr.P.C. Muhammad Arshad has named Abbas and Wali Muhammad as witnesses of the occurrence. Abbas has not been produced. He had not named Muhammad Amin as witness of the occurrence. Wali Muhammad and Muhammad Amin have not shown the presence of Abbas at the time of occurrence and that, in the circumstances of the case, there is no possibility of the defence version being true
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, the defence evidence and the circumstances appearing in the case, carefully
12. From the aforesaid state of affairs, it is very 'much obvious that there is no dispute with regard to the time of occurrence, place of occurrence identity of the murderer; and the weapons used in inflicting injuries on the deceased. While admitting to have killed the deceased with his hatchet, the appellant has raised plea of grave and sudden provocation. So it is a case of two versions. We propose to discuss the rival cases of the prosecution and defence by placing all factors favouring belief in the accusation in juxtaposition to the corresponding factors favouring the plea of defence We will then estimate the total effect in relation to the following two questions:
(1) Has the plea of the appellant satisfactorily been established by the evidence and circumstances'appearing in the case?
(2) If the answer to question No,1 is in the negative is there yet a reasonable possibility of the existence of the plea of grave and sudden provocation so as to cast a reasonable doubt upon the prosecution case?
13. Taking up the prosecution case first, we find that it is a case of promptly lodged F.I.R.
Muhammad Ramzan P.W. 6 had lodged the F.I.R. About 3 hours after the occurrence. There is nothing in evidence to show that the F.I.R. Was not recorded at the time and place as it purports. So much so, no suggestion was given to the Investigating Officer with regard to the registration of the F.I.R. After preliminary investigation. Adverting to the ocular evidence furnished by Muhammad Ramzan P.W. 6 and Rahim Bakhsh P.W.7 we find that name of Rahim Bakhsh P.W.7 is mentioned in the promptly lodged F.I.R. Muhammad Ramzan P.W.6, father of the deceased, and Rahim Bakhsh P.W.7 first cousin of the complainant, are also closely related to Muhammad Arshad appellant. The appellant is the maternal-nephew of Muhammad Ramzan complainant. He is son of the maternal cousin of Rahim Bakhsh P.W.7. The aforesaid two eye-witnesses had no motive to involve the appellant falsely in the case. They have successfully faced the test of cross-examination. They have given plausible cause of their presence near the spot at the time of occurrence. Except for minor and immaterial discrepancies here and there, learned counsel for the appellant has not been able to point out material discrepancies, major contradictions and dishonest improvements in their statements. We have been impressed by the straightforward manner in which they have given evidence against the appellants. There were 3 incised wounds on the person of Muhammad Aslam deceased. So they could easily assign one of the three injuries found on the person of the deceased to Muhammad Sardar appellant. But they did not do so. Their evidence is in consonance with the probabilities and fits in with the rest of the evidence and surrounding circumstances. Their evidence cannot be thrown out on account of their relationship with the deceased.
14. For all these reasons, we do not see any valid reason to exclude their evidence from consideration.
15. This brings us to the two questions formulated by us in the preceding para of this judgment. As for question at No,1 we feel that the plea of the self-defence has not satisfactorily been established by.The evidence and circumstances appearing in case. Mst. Irshad, the sister of the accused, has not been produced in defence. Wali Muhammad and Muhammad Amin do not appear to be truthful witnesses. In his statement recorded under section 342, Cr.P.C. Muhammad Arshad appellant stated that the two persons, namely, Abbas and Wali Muhammad had seen the occurrence and had caught hold of him on the spot and had subsequently produced him along with knife P.4 before the Police. Wali Muhammad and Muhammad Amin have not named Abbas as a witness of the occurrence. Muhammad Amin D.W.2 has been replaced for his brother Abbas named in the statement of the appellant recorded under section 342, Cr.P.C. The defence evidence thus contradicts the statement of the appellant recorded under section 342, Cr.P.C. It seems to us that since Abbas used to study in Bahawalpur (as stated by D.W.2) Muhammad Amin, has been substituted in his place and the two witnesses have given evidence with a motive other than that of telling the truth. So our answer to question No,1 is in the negative.
16. Coming to the second question as to whether there was/is reasonable possibility of the defence version being true, we find that the defence version was not disclosed by Muhammad Arshad appellant, to the Investigating Officer immediately after his arrest. That the Investigating Officer has categorically stated that Wali Muhammad and Muhammad Amin D.Ws. Had not appeared before him during the investigation. He has also denied the suggestion that the appellant was produced before him by the D.Ws. Or by Wali Muhammad and Abbas, as stated in statement recorded under section 342, Cr.P.C. The place of occurrence was cotton field of one foot height. The occurrence took place in the light of the day and as such there is no reasonable porbability of the defence B version that the deceased was seen in compromising position with his sister in the field, being true.
Furthermore, injury on the person of Mst. Irshad being nonexistent existent there is no circumstantial guarantee or judicial certainty of the defence version being true.
17. For all these reasons, we are convinced that the occurrence took place in the manner as stated by the two eye-witnesses and not in the manner as told by the appellant in his statement under section 342, Cr.P.C.
18. Despite believing the two eye-witnesses produced by the prosecution and disbelieving the version of the occurrence told by the accused/appellant, we feel inclined to give Muhammad Sardar benefit of doubt as a matter of abundant caution on the question of his vicarious liability.
He was empty-handed at the time of occurrence. He did not cause any injury to the deceased; there is no evidence of pre-consultation between him and the co-accused; there is nothing in evidence to show that he knew before the infliction of injuries by his co-accused that the latter was carrying knife with him and that in the circumstances of the case, Muhammad Arshad alone could inflict three injuries on the person of the deceased.
19. Pursuant to the above discussion, by giving benefit of doubt to him, we acquit Muhammad Sardar of the charge. He shall be released forthwith, if not required to be retained in some other case. The conviction of the appellant under section 302, P.P.C. For the murder of Muhammad Aslam recorded by the trial Court is maintained.
20. This brings us to the question of sentence of Muhammad Arshad appellant. We find that there are mitigating circumstances in his favour for lesser penalty. According to the prosecution, he was suspecting the deceased of having illicit relations with his sister and as such family honour was involved. So the sentence of death is altered to imprisonment for life. The tine imposed by the trial Court is maintained, in default he will suffer further R.I. For one year. He will get the benefit of the provisions of section 382-B, Cr.P.C. Death sentence is NOT CONFIRMED.