' Muhammad Amir, the appellant in this jail appeal stands convicted by Sessions Judge, Jhang under section 304(11) and section 307, P.P.C. And has been sentenced to rigorous imprisonment for 7 years and one year for the two offences respectively.
2. On the statement of Muhammad Bakhsh P.W.6 a case under sections 302, 307 read with section 34, P.P.C. Was registered by Muhammad Hussain Inspector P.W.10 at Police Station Kotwali District Jhang, vide F.I.R. Exh.P.tG. On 31st of March, 1986 at 11 p.m. Against Muhammad Amir appellant and his brother Muhammad Bakhsh sons of Mohabbat. On 20th of December, 198 7 the trial Court found the appellant guilty of having committed culpable homicide not amounting to murder of Allah Ditta and of having caused simple injuries to Mst. Tajan and convicted and sentenced him as earlier mentioned. Muhammad Bakhsh co-accused was, however, acquitted by the Sessions Judge.
3. The prosecution case in brief is that Muhammad Bakhsh son of Amir the complainant was residing at about 2 Killas away from the residence of Muhammad Bakhsh son of Mohabbat accused. On 31st of March, 1986, at Ishawela Muhammad Bakhsh accused requested Muhammac Bakhsh complainant to send his son Allah Ditta to the residence of the accuse as he had some urgent work with him. Muhammad Bakhsh complainant sent Allah Ditta to the residence of the accused but when he did not return, the complainant alongwith his son Allah Bakhsh P.W.7 went to the Dera of Muhammad Bakhsh accused. They saw Muhammad Amir accused giving three Phawra blows to Allah Ditta on his head while Muhammad Bakhsh accused gave two Sota blows to his daughter Mst. Tajan on her head. Allah Ditta later on succumbed to the injuries while Mst. Tajan became unconscious. The motive disclosed by the prosecution was that Muhammad Bakhsh accused had a suspicion that Allah Ditta deceased had illicit relations with Mst. Tajan daughter of Muhammad Bakhsh accused.
4. Apart from the formal witnesses, prosecution examined P.W.6 Muhammad Bakhsh complainant and his son Allah Bakhsh P.W.7 who are the only eye-witnesses. Mst. Tajan, injured, was medically examined by Lady Dr. Asmat Begum P.W.S, at 3 a.m. On 1-4-1986. According to the opinion of the Lady Doctor Mst. Tajan was used to sexual intercourse. Copy of the medico-legal report was produced as Exh.P.H. Two vaginal swa bs were taken by the doctor which were sent to the Chemical Examiner. P.W.9 Dr. Amanat Ali had conducted the post-mortem examination on the dead body of Allah Ditta. He found 8 injuries on the dead body and according to his opinion the death was caused by haemorrhage external and internal shock and injury to brain.
5. In his statement under section 342, Cr.P.C. Amir accused admitted having caused death of Allah Ditta by giving him blows with a Phawra but he stated that this, was done under grave and sudden provocation as at the time of incident when he came to the house of his brother Muhammad Bakhsh accused he found his niece Mst. Tajan in a compromising position with Allah Ditta and, therefore, he lost his self-control and had inflicted the injuries. Muhammad Bakhsh accused completely denied his presence at the spot.
6. The learned trial Court came to the conclusion that the motive as set up by the prosecution was proved but he found that the prosecution case regarding occurrence was not established. He came to the conclusion that the defence version as disclosed in the statement under section 342, Cr.P.C. Of the appellant Muhammad Amir was correct and that he while causing the injuries had acted under grave and sudden provocation caused on account of seeing his niece Mst. Tajan in an objectionable position. The co-accused Muhammad Bakhsh was acquitted as according to the learned Sessions Judge he was not present at the time of occurrence.
7. I have perused the record with the assistance of Mr. Muhammad Sharif Butt, who had appeared on behalf of the State and found that the prosecution had failed to prove its case. The only two eye-witnesses are P.W.6 Muhammad Bakhsh and his son Allah Bakhsh. Their testimonies, however do not inspire confidence and have rightly not been relied upon by the trial Court. According to the statement of Muhammad Bakhsh P.W.6, when he was asked by Muhammad Bakhsh co-accused to send his son Allah Ditta at about 9 p.m. In the night, he did not enquire the reason or purpose for which Allah Ditta was required which appears to be highly unnatural. Both the witnesses have stated that the injuries were caused to Allah Ditta by Muhammad Amir within their vision and when they were about 3 to 4 Karams away, but they did not try to intervene or stop Muhammad Amir appellant from doing so. If the real son of Muhammad Bakhsh complainant and the real brother of Allah Bakhsh, was being attacked, the natural reaction would have been to -intervene and to try to save Allah Ditta specially when the accused were not alleged to have been armed with any dangerous or lethal weapons. They also deposed that they did not try to apprehend the accused thereafter. According to their statement they had raised alarm but nobody was attracted to the spot though there were people residing nereby who subsequently came to the place of occurrence. P.W.6 Muhammad Bakhsh stated that Allah Ditta was attacked while he was sitting on a cot but P.W.7 Allah Bakhsh deposed that Allah Ditta was standing when Muhammad Amir accused attacked him. Another fact to be taken notice of is that if there was suspicion about illicit relations between Mst. Tajan and Allah Ditta, the complainant would not send his son to the residence of the accused. The prosecution has not been able to explain as to why Muhammad Bakhsh accused had attacked his daughter Mst. Tajan in presence of Allah Ditta or the two witnesses. Similarly if Muhammad Bakhsh or Muhammad Amir had any premeditated plans to murder or bodily harm Allah Ditta, they could have way laid him rather than asking the complainant to send him. It is also to be noted that both, according to Muhammad Bakhsh complainant, P.W.6 and Allah Bakhsh P.W.7 they went in search of Allah Ditta only about 15 to 20 minutes after Allah Ditta left for the residence of Muhammad Bakhsh accused. This period is too short to have caused any alarm in the mind of the complainant so as to oblige them to look for Allah Ditta.
8. Muhammad Amir appellant had admitted having caused the death of Allah Ditta and according to him he had acted under grave and sudden provocation on finding his niece Mst. Tajan and Allah Ditta in compromising position. According to statement of Lady Doctor Asmat Begum P.W.8, who had medically examined Mst. Tajan, she was used to sexual intercourse though she was still unmarried. The vaginal swa bs taken by P.W.8 Dr. Asmat Begum were found, according to the Chemical Examiner's report Exh.D.8 to be stained with semen. This aspect of the case, was not adverted to by the prosecution at all.
9. I, therefore, agree with the trial Court that the prosecution has not been able to prove its case and while causing injuries to Allah Ditta the appellant had acted under grave and sudden provocation. He was, therefore, rightly convicted under section 304(11) of P.P.C.
10. As regards the sentence awarded by the trial Court I find it to be excessive. According to the findings of the learned Sessions Judge himself, Muhammad Amir appellant had lost self-control after finding Allah Ditta deceased in compromising position with his niece Mst. Tajan in the house of his brother Muhammad Bakhsh co-accused and further that while causing the injuries he had acted with a view to vindicate the honour of his family. This being the position, the sentence awarded by him appears too harsh. I would, therefore, while maintaining the conviction reduce the sentence to rigorous imprisonment for three years with benefits of section 382-B, Cr.P.C. .