Ghulam Shabbir aged 23 years, a shopkeeper of Dora Ghazi Khan has appealed against his conviction under section 304, Part 1, P. P. C. And sentence of ten years rigorous imprisonment and a fine of Its. 4,000 or in default to undergo further rigorous imprisonment for two years. There is also a revision petition admitted to examine the legality of the acquittal of Ghulam Shabbir appellant under section 302, P. P. C. This judgment will dispose of the appeal as well as the revision.
2. The house of the complainant and the appellant was in the same lane almost opposite each other. On 18th of June 1969, at about 11 a. m. Sultan Mahmood who was at that time preparing for his Intermediate Examination was attending to the cattle and was providing them with water obtained in bucket from a water pipe at a public place adjoining the mosque a few feet away from his house. He was caught hold of by Haji Barkhurdar aged 65/70, his son Ghulam Shabbir aged 23 and the grandson, Bashir aged 26. They forcibly took him inside the Baithak. Saber (P. W. 12) and Bail (P. W. 14) saw such removal, the former rep-acted it to Muhammad Siddiq, the brother of the deceased at his house, and the latter to his own father Ghulam Farid (P. W. 15), Muhammad Siddiq rushed with Shabir to the house of the appellant and found him coming out of the house along with the two admitted accused and Karim and Ghulam arid (not produced). The two witnesses who were not produced at the trial told Muhammad Siddiq find Sabir that sultan Mahmood has been murdered. The appellant and his two associates admitted before Sabir (P., W. 12) and Muhammad Siddiq (P. W. 11) that they had murdered Sultan Mahmood because he was carrying on with a sister of the appellant. They went out of the house. Sabir and Siddiq entered the courtyard and, found Sultan Mahmood lying prostrate on the ground inside the Kotha. Siddiq left for the police station leaving at the spot Abdul Karim Ghulam Farid (not produced) wad Sahir (P. W. 12). The report was lodged at 12-30 p. m. At Police Station Dora Ghazi Khan. It was recorded by Riaz Ahmad S. I. (P. W.
16) who came tea the spot prepared the injury statement and the inquest report and sent the dead body for its post-mortem examination. He found chappal (Exh. P. 4) of the deceased lying near his dead body and another (Exh. P, 5) lying in the verandah. The appellant appeared with the blood- stained knife (Exh. P. 6) which was taken into possession. He had injuries on his person for which he was medically examined. His clothes bad soma blood stains which were taken into possession.
3. Dr. Ahmad Farooq (P. W. 1) performed the post-mortem examination and reported the- following injuries on -the dead body of Sultan Mahmood:-
(1) An incised (stab) wound, -- ' x -- on the right side of the chest cutting the eighth rib interiorly.
(2) An incised (stab) wound -- ' x -- ' x 3' lower and medial to injury No. 1 cutting the peritorium and anterior surface of the liver.
(3) An incised wound -- ' x -- ' on the left side of the chest 1-- lateral to mid-sternel-line cutting the.
5th rib interiorly.
(4) A cut -- ' x -- " inferior to injury No. 3.
(5) A cut -- ' x -- x 3' above iliac crest on the left side 1-1/3", deep into the muscular plain.
(6) A cut (stab) wound 1' x -- on the left lower chest posteriorly cutting the left lung, spleen stomach and the inferior surface of the heart.
(7) A stab wound -- " x -- ' on the back on the right, side 1' lateral to the spine cutting the surface of the spine.
(8) A stab wound -- x -- ' on the back 1' lateral to the spine 6` below injury No. 7.
(9) A cut vertical 1' above the ventral surface of the right wrist.
(10) A cut 1' at right angle to injury No. 9.
(11) A cut on the ventral side of the right thumb.
(12) A cut on the inner side of the second finger of the right hand.
(13) A cut on the lateral side of the right shoulder.
(14) A cut' -- on the right side of the back 1' lateral to midline. "
(15) A cut 1' x -- ' on the lateral side of the left arm.
(16) A bruise on the inner and outer side of the left thumb.
There was extensive internal damage to the spine, the rib and the cartilages, the pleura and the lung.
Dr. Muhammad A.I, Medical Officer, Muzaffargarh (P. W. 2) examined the appellant the next day at 1-30 p. m. And reported the following injuries:-
(1) An abrasion -- ' x -- on the back of the right elbow.
(2) A scratch 1" x 1/10" in front of right arm above the wrist and of regular shape.
(3) A scratch 1/10'x 1/10' in front of left ring finger and of regular shape.
4. The appellant in the commitment Court denied having forcibly taken the deceased inside the Kotha and to have killed him with the assistance of his two associates. There he stated 'I alone killed Sultan Mahmood in my house under grave and sudden provocation when I found him in a room of our house molesting my sister Mst. Saeeda Begum. The co-accused were not with me." At the trial he substantially stuck to the same plea but made Improvements in the same by stating as follows:- "At abut 10 a. m. On the day of occurrence, I came from my shop to my house which is about a few paws from there. I entered the courtyard and going further I saw the shutters of the door being opened and the deceased emerging out of the same. I fell upon him in between the shutters and confide him inside the room. In the heat of passion and grave and sudden Provocation I killed him there and then after picking up the knife which was lying on the deli. In the mean time my sister Saeeda who was inside with the deceased slipped out and went upstairs. I followed her but could not catch her. I then went to the police station and apprised them of the incident. They brought me to the spot and concocted the present case. The other two accused were not with me."
3. The trial Judge on a consideration of the evidence came to the conclusion that the two eye- witnesses in the case Abdul Karim and Ghulam Farid were not produced at the trial or in the commitment Court on the ground that they were declared hostile and the other witnesses of forcible removal i.e. Sabir (P. W, 12) and Bilal (P. W. 1.4) were chance witnesses and the other two also were held to have indulged in material suppression of their relationship and had made substantial improvements to further implicate the appellant and his associates. There was found no corrobora--petition of the improvements from the medical evidence. It was therefore held that the prosecution case was not free from doubt, the plea of the appellant was accepted in full and he was convicted under section 304, Part I, P. P. C. And sentenced. The other two accused were acquitted.
6. So far as the rejection of the prosecution case is concerned, I find that it is not open to any objection for there were named in the first information report two eye-witnesses none of them was produced at any stage of the trial or investigation and- the sole reason for declaring them hostile as disclosed or apparent from the record is that they did not care to appear during the investigation or afterwards. In case a person is believed to be an eye-witness of the occurrence he has to be examined unless some tangible factor is brought out showing that he has an interest prejudicial to the prosecution case or are interest in favour of the accused facing trial which might mail his testimony as such. Mere non-appearance of witness during the investigation is no ground for readily inferring that he is a hostile witness. It is for this reason that all authorities who are entrusted with the function of investigating the crime or trying the same have been conferred all the powers necessary for procuring the attendance of persons who are competent to be witnesses.
Therefore, in the circumstances of the case, the non-production of Abdul Karim and Ghulam Farid is a serious defect in the prosecution; case which cannot be readily condoned.
7. As regards the two witnesses who have stated about the forcible removal of the deceased by the appellant and his associates, they are chance witnesses and certainly they have not succeeded in accounting for their presence at the spot. Sabir (P. W. 12) says that he was in dire need of money which was owed by Siddiq (P. W. 11) for the denture which he had got prepared for his mother. He reached the house of Siddiq not from the shortest and the more convenient route. He could have obtained that money from the shop which Siddiq (P. W. 11) was running jointly with his brother and father and, in which either his brother or his father must have been present. As rightly observed by the trial Court that peak business hour, morning ins June, would not be the normal time when a person like Sabir would leave his shop or business for collecting a sum which in any case was not insecure. Similarly, Bilal (P. W. 14) by his statement before the trial Court and his statement under section 164, Cr. P. C. Clearly gave the impression that he was going to the shop of one Muhammad Ramzan for obtaining Atta and that the house of the accused-appellant or of the com--plainant did not ordinarily fall on the way but that he adopted this route because in the past also he had been adopting this route. Similarly, there was an effect on his part in the cross-examination to say that he had come to the appellant himself for purchasing Atta. These infirmities in the statement of the chance witnesses will make them highly undependable witnesses. They are not the natural witnesses and there should have been at that hour of the day no dearth of natural witnesses who could have stated about the forcible removal of the deceased from the water-pipe or elsewhere in the lane if it had been attended by such a violence. There has also been an effort on the part of these witnesses to suppress their relationship which makes their statement doubtful. The extra judicial confession has also come as a part of the same unbelievable story that the appellant along with his associates left the house to permit free access to every one.
8. As regards the location of the occurrence it is fully established that the deceased vas done to death inside the room in between two cots lying there. He was given numerous injuries. The learned counsel in revision on the basis of the large, number of injuries and the fact that one of the shoes of the deceased was recovered from the verandah suggested that more than one person was involved and that the entire occurrence had not taken place inside the room. The large number of injuries on the person of the deceased is quite consistent with the sudden and grave provocation of a single person. When a large number of persons have entered that room before the police reached it is not surprising that one of the slippers was, found just at the thresh-hold of the room. It has also been urged that as stated by the Investigating Officer the shalwar of the deceased being not blood-stained it is unlikely that he was given these injuries while standing. In the inquest report and in his recovery memo. Both the Investigating, Officer mentioned that the shalwar was blood- stained and it was blood-stained when it was produced in trial Court. His statement that it was not so blood-stained when he despatched the dead body is against the record and unbelievable in the circumstances because no more bleeding had taken place and Sultan Mahmood had died at the spot immediately on receiving these injuries. Therefore, there was no occasion for the shalwar to be stained with blood after the dead body had been despatched to the hospital.
9. I find that the prosecution case has rightly been disbelieved by the trial Judge and we are therefore left with the statement of the appellant. The learned counsel in the revision petition contended that the plea of sudden and grave provocation has not been consistent and by simply taking up that plea the necessary proof required under the law is not forthcoming. As I noted there is some improvement in the statement of the appellant but after the prosecution evidence has been rejected as untrustworthy we have to go by the statement of the accused and accept it as a whole. On that appraisal of it end keeping in view the circumstances. I find that the plea of the appellant is fairly consistent and has not only been believed by the trial Court but is one which should ordinarily be acceptable. As regards the sentence which hag been awarded the learned counsel for the appellant urged on the ground that if it be a case of sudden and grave provocation and the provocation quite consistent with mortality and the standards prevailing in our society then such a severe punishment is uncalled for. We cannot dispute such a proposition for by now it is clearly laid down that such a sudden and grave provocation has certain, mitigating factors in our society. Therefore I maintain the conviction of the appellant ends section 304, Part 1, P. P. C., but reduce the sentence to one already undergone which will be more than two years. The sentence of fine is set aside. The appeal is accepted to this extent only. The revision is dismissed.