JAVED IQBAL, J.--Ahmad alias Ahmi son of Chakar aged 30 years and Rehman alias Rahmi son of Chakar aged 16/17 years, both brothers, have been convicted under section 302/34, P. P. C. For the murder of Muhammad Yaqub. . Ahmad appellant was sentenced to death whereas Rehman appellant was sentenced to transportation for life vide judgment dated the 28th of May 1970, of the Sessions Judge, Layallpur. Both the appellants were also sentenced to undergo five years' R. I. Each under section .449/31, P. P. C. For having committed house-trespass (into the house of Mst. Roshan P. W. 7) in order to commit the murder of Muhammad Yaqub with a direction that in the case of Rehman appellant the sentence of transportation for life and the sentence of imprisonment will run concurrently and that the sentence of imprisonment in the case of Ahmad appellant shall come into operation only after his death sentence was not confirmed. Their appeal as well as reference for the confirmation of death sentence awarded to Ahmad appellant are being taken up and disposed of together by this judgment.
2. According to the prosecution the occurrence took place at 10-00 a.m. On the 18th of June 1969, in the house of Mst. Roshan P. W. Within the area of Chak No. 228/R. B at a distance of 8 miles towards East, from the Police Station; Saddar, Layallpur. The F. I. R. (Exh. P. A.) was lodged on the same date at 1-30 p.m. By Shah Muhammad P. W. 10, brother of Muhammad Yaqub deceased and not an eye- witness of the occurrence.
It was recorded by Muhammad Iqbal Khan A. S. I. P. W. 12 at Police Station, Saddar, Layallpur.
3. The motive for offence as given in the F. I. R. Is that about one year prior to the occurrence Muhammad Yaqub deceased developed illicit relations with Mst. Bakho wife of Rehman appellant and that since the whole village came to know about it the deceased along with his brother Shah Muhammad P. W. Muhammad Hussain and Muhammad Younas left the village and started doing labour work in Dora Ghazi Khan. It is stated in the F. I. R. That the real reason for their departure from the village was the fear and apprehension that Muhammad Yaqub may lose his life.
4. The occurrence in the F. I. R. Is stated-to have taken place in the following manner: Muhammad Yaqub deceased was sitting in the house of his neighbour Allah Yar (not produced) when the appellants armed with hatchets trespassed into the house. Ahmad appellant gave a lalkara to the effect that today they would avenge the insult hurled at them and would finish Muhammad Yaqub who had been trying to save his life. Then Ahmad appellant gave a blow with his hatchet to Muhammad Yaqub which fell on his head and face. Rehman appellant also inflicted a hatchet blow on the person of Muhammad Yaqub who fell down and after a few minutes died. According to the F. I. R. The occurrence was witnessed by Mst. Sattan P. W. 9, mother of the deceased. Mst. Sakina P. W. 8, wife of Shah Muhammad P. W., the first informant and sister-in-law of the deceased, Mst.
Maryam daughter of Mst. Roshan P. W. (given up as having been won over) and A.I Muhammad, father of the deceased (given up as unnecessary) who also rescued the deceased. After the occurrence the appellants ran away.
5. Both the appellants were arrested on the 19th of June 1969, by Rana Abdul Rashid S. 1. P. W.11.
There is a recovery of hatchet P. 4 at the Instance of Ahmad appellant which was taken into possession vide memo. Exh. P. E. Dated the 19th of June 1969, attesting witnesses being Muhammad Iqbal Khan A. S. I. P. W., Dost Muhammad Lambardar (given a as having been won over) and Muhammad Bux, Member, Union Counsel (given up as having been won over). This recovery has been disbelieved by the trial Court because hatchet P. 4 was not found to be stained with blood according-to the report of the Chemical Examiner (Exh. P.).
6. Dr. Ghulam Rasool P. W. 1 performed the post-mortem examination on the dead body of Muhammad Yaqub at 7-00 a. m. On the 19th of June 1969, and found these injuries on his person:
(1) an incised wound bone deep cutting through and through the right parietal region of scalp above the right eye, the brain matter under this injury was cut; (2) an incised wound bone deep cutting the right side of the face going just below the right eye and the upper part of the nose; (3).
Multiple irregular contusion marks on the whole of the front of neck; (4) a contusion mark on the top of left shoulder; (5) a lacerated Wound on the front and middle' of the right middle finger; (6) an incise wound on the front of the distal part of the left thumb; and (7) an incised wound bone deep and cut on the outer side of upper part of left leg. The right parietal and adjoining part of the frontal bone were cut through and through as well as the brain was cut under injury No. 1.
According to injury to the brain caused by injuries Nos. 1 and 2. Both these injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2, 6 and 7 had been caused by sharp- edged weapon and the rest with blunt weapon. He stated in the cross-examination that injuries Nos. 3 and 4 could be possible by the compression of the neck or by continuous pressure of the fingers on the neck and that these injuries could also be caused by a blunt weapon. Injury No. 5 could be the result of fall.
7. The prosecution has produced three eye-witnesses of the occurrence, namely, Mst. Roshan P. W.
7, whose name as eye-witness was not mentioned in the F. I. R., Mst. Sakina P. W. 8 wife of Shah Muhammad P. W. The first informant and sister-in-law of Muhammad Yaqub deceased, and Mst.
Sattan P. W 9, mother of Muhammad Yaqub deceased. Two persons who were mentioned as eye- witnesses in the F. I. R., namely: A.I Muhammad and Mst. Maryam were not produced before the trial Court. A.I Muhammad father of the deceased was given up as unnecessary. It is pointed out by learned counsel for the appellants that this witness was given up probably because he had admitted in his statement recorded by the committing Magistrate that the "F. I. R. In this case had been recorded by the Investigating Officer on the spot. Mst. Maryam, daughter of Mst. Roshan P. W.
Bad been given up for having been won over. It is, therefore, clear that four persons were mentioned as eyewitnesses in the F. I. R., namely Mst. Sakina, Mst. Sattan P. Ws. A.I Muhammad and Mst. Maryam. Out of these four Mst. Maryam and A.I Muhammad were not produced before the trial Court and Mst. Sakina as well as Mst. Sattan P. Ws. Who were so produced were closely related to Muhammad Yaqub deceased. Mst. Roshan P. W., mother of Allah Yar, was produced as an eye- witness in the trial Court although her name was not mentioned in the F. I. R.
8. In his statement before the trial Court Ahmad appellant disowned hatchet P.
4. He stated that the P. Ws. Had deposed against him because he murdered Muhammad Yaqub, their relative.
According to him Rehman appellant was neither present at the spot nor he participated in the occurrence: He gave the following account of the occurrence:- "On the day of occurrence, I came to my house to take my wife with me to prepare fodder. But my wife was not in the house. A boy met me in the house, who told me that Bakho was proceeding towards the house of the Blacksmiths. Two sisters of Bakho are also married and reside near the house of Roshan. I went there to find Bakho, but she was not there. Then I went to the house of Mst.
Roshan to bring my toka which I had given a day earlier. I asked the sort of Yarn about Yarn and about my toka, who told me that Yarn had gone to the town. In order to find out my toka, I entered the room of Yarn. I saw that Yaqub and Mst. Bakho were busy in committing adultery. Yaqub on seeing me ran towards me. I caught him from his neck. We grappled with each other. We both came out of the room. I gripped him from his neck and threw him on the ground. Daulo a resident of that Ahata came there and raised alarm. Bakho came out from the room. I left Yaqub in order to catch Mst. Bakho, but she ran away. Yaqub caught me from my vest. I released myself and caught hold of a hatchet which was lying nearby and gave him injuries, as a result of which he died. I gave injuries to the deceased on his right temple leg and on the right side of the face and threw the hatchet there. The eye-witnesses produced by the prosecution were not there Muhammad A.I, Muhammad Bakhsh and another man of different village, arrived there when I came out of the house."
Rehman appellant in his statement before the trial Court stated that he had been falsely implicated. According to him his brother Ahmad appellant had killed Muhammad Yaqub on grave and sudden provocation and because of his relationship with Ahmad appellant he had been falsely involved.
9. The appellant also produced two D. Ws. Namely, Muhammad A.I and Muhammad Bux. Both the D.
Ws. Had been mentioned as P. W s., but were given up as having been won over. They supported the version of the appellants.
10. Ch. Nazir Ahmad Khan, learned counsel for the appellants argues that the ocular evidence against the appellants is highly interested and, therefore. It should be disbelieved. We note that although the motive for offence had been clearly stated in the F. I. R. By Shah Muhammad P. W. But subsequently in his statement before the trial Court this witness attempted to resile from the same by stating that after the murder the appellants had alleged that the deceased had illicit relations with Mst. Bakho, wife of Ahmad appellant. Again it may be noted that he did not mention the name of Mst. Roshan as one of the eye-witness in the F. I. R. But in his statement before the trial Court he disposed that he missed her name as eye-witness A because he was perplexed. Furthermore, in the F. I. R. He had stated that both the appellants were armed with hatchets and that Ahmad appellant inflicted a hatchet injury on the head of the deceased whereas Rehman appellant also gave a hatchet blow to the deceased; but. In his. Statement before the trial Court he deposed that he was told by the P. Ws. That Ahmad and Rehman appellants had murdered the deceased and that he was not told anything beyond that. He further stated that the eye-witnesses did not tell him that Rehman appellant pressed the neck of the deceased. He was neither told that Rehman appellant was empty-handed nor he was told that he was armed. He denied having stated in the F.
I. R. That Rehman appellant gave hatchet blow to the deceased. He also denied having stated in the F. I. R. That Ahmad and Rehman appellants armed with hatchets trespassed into the house of Allah Yar. Obviously shah Mohammad P. W. Is neither an eye-witness nor he claimed himself to be so. His account of the occurrence, therefore, depends on what he heard from the eye-witnesses.
Unfortunately the account of the occurrence given by Mst. Sakina and Mst. Sattan P. Ws. Who claimed to have witnessed the occurrence is not very convincing. Both these witnesses have stated that when they reached the place of occurrence the head of Muhammad Yaqub was bleeding because of the head injuries and he was in the process of climbing the heap of chaff. According to them it was there that Ahmad appellant gave a hatchet blow on bra left leg and when the deceased turned back to see, Rehman appellant caught him from his neck and pressed it throwing him on the ground. They further stated that it was thereafter that Ahmad appellant gave a hatchet blow on the face of the deceased. Learned counsel for the appellants has correctly pointed out that according to the testimony of these witnesses the deceased had sustained the head injury which hat cut the brain matter after having received that injury be certainly would have not been in a position to run or move away towards where the heap of chaff was placed and to climb the game. After having received such an injury he must have fallen down. We are therefore, of the view that no reliance can be placed on the testimony of these witnesses. Either, these witnesses did not see the occurrence or they are telling lies. The testimony of Shah Muhammad P. W. Is also not worthy of any credit. He is not an eye-witness, and he resiled from the motive of offence which he had himself stated in the F. I. R. As for the testimony of Mst: Roshan P. W. Although it is identical to that of Mst. Sakina as well as Mst. Sattan P. Ws., we discard the same because she has not been mentioned as an eye-witness in the F. I. R.
11. Learned counsel for the appellants further argues that in the F. I. R. The prosecution in order to implicate both the appellants advanced a case that they were both armed with hatchets and both inflicted hatchet blows to the deceased as a result of which he died. Rut at the trial to make the prosecution story conform with the medical evidence, the account was changed and it was stated that Ahmad appellant was armed with a hatchet whereas Rehman appellant was empty-handed and that whereas Ahmad appellant gave hatchet blows to the deceased, Rehman appellant squeezed has neck with his bare hands. Learned counsel points out that the version was changed because according to the medical evidence multiple irregular contusion marks were found on the whole of the front of neck of the B deceased as well as a contusion mark was found on the top of his left shoulder, and if these injuries had not been attributed to Rehman appellant, they would have remained unexplained. However hatchet P. 4 was recovered at the instance of Ahmad appellant. It is submitted that the recovery of hatchet P. 4 was of no use because it was not found to be stained with blood. It is further argued that the change in the version was made only in order to implicate Rehman appellant who was the brother of Ahmad appellant Learned counsel does not deny that the deceased bad been killed by Ahmad appellant. His submission is, the correct account of the occurrence is that which had given by Ahmad appellant himself. We agree with learned counsel that the correct version of appellant himself who has stated that is order to find his toka he entered the room of Allah Yar and saw there his wife Mst. Bakho in a compromising position with Muhammad Yaqub C deceased. M caught hold of the deceased by his neck and they grappled with each other while Mst. Bakho ran away and that thereafter he picked up a hatchet which was lying nearby and therewith inflicted injuries to the deceased which led to his death. The nature of the injuries caused to the deceased also indicate that they had been inflicted by a person was under a grave and sudden provocation. It is probable that the contusion narks on the neck of the deceased had been caused by Ahmad appellant who bad held him by his neck before picking up the hatchet with which he was subsequently killed. The version of Ahmad appellant is in conformity with the motive as stated in the F. I. R. And is also supported by the medical evidence.
We, therefore, have no doubt in our mind that only Ahmad appeal ant bad participated in the occurrence. Since we have accepted the defence version as correct, in our view the presence of Rehman appellant it the scence of occurrence is doubtful.
12. In our opinion since the presence of Rehman appellant at the scence of occurrence is doubtful he is given the benefit of doubt. His conviction as well as sentences under sections 302/34 and 449/34, P. P. C. Are hereby set aside and he is acquitted. His appeal is accepted. He shall tae released from jail forthwith if he is not wanted in any other case.
13. As for Ahmad appellant in the light of what has been discussed above we are of the considered view that his case is covered by Exception 1 to section 300, P. P. C. We saw his wife Mst. Bakho in a compromising position with the deceased. This grave and sudden provocation deprived him of the power of self-control so much-so that he fell upon the neck of the deceased while Mst. Bakho ran away and afterwards picked up a hatchet and caused therewith the death of Muhammad Yaqub.
In consideration of this circumstance we alter the conviction of Ahmad appellant from section 302, P. P. C. To section 304 (I), P. C. F
14. In respect of the conviction and distance of Ahmad appellant under section 449, P. P. C. We doubt if he had trespassed into the kotha of Allah Yar with the intention to commit the murder of the deceased. He had entered the kotha of Allah Yar only to find his toka and there he suddenly saw his wife Ma. Bakho in a compromising position with the deceased. Consequently in our opinion the prosecution did not succeed in establishing Ahmad appellant as having committed the offence under section 449, P. P. C. His conviction and sentence, therefore, under sec--petition 449, P. P. C. Is set aside and he is acquitted.
15. Regarding the question of sentence to Ahmad appellant under section 304 (1), P. P. C. Ever since his arrest on the 19th of June 1969, he has been confined to jail and was not released on bail at any stage. He was convicted and sentenced to death by the trial Court on the 28th of May 1970, and from that date onwards until now he must have remained in the con--demned cell. According to cur calculation, therefore, he has remained in jail for a period of about 3J years out of which 21 years were suffered by him in the condemned cell and we are of the view that in the circumstances of the case the sentence already undergone by him would be sufficient to meet the ends of Justice. His appeal is accepted to this extent. He shall, therefore, be released from jail forthwith if he is not wanted in. Any other case.
16. Reference for the confirmation of death sentence awarded to Ahmad appellant is rejected.