' Appellant Juma Khan was tried by IInd Assistant Sessions Judge (South) Karachi, for making a murderous assault upon Khair Muhammad by means of hatchet, an offence punishable under section 307, P.P.C. He was, however, found guilty for the offence under section 326, P.P.C. And sentenced to suffer R.I. For four years and to pay a fine of Rs,2,000 or in default to suffer R.I. For six months. Rs,1,000 out of line, if recovered were ordered to be paid to injured Khair Muhammad. The appellant was also extended the benefit of section 382-B, Cr.P.C. This judgment, dated 15-3-1989, is the subject-matter of this jail appeal.
2. On 26-8-1983, at about 4-30 a.m. Complainant Gul Muhammad heard cries of his brother Khair Muhammad coming from the house of appellant Juma Khan. He rushed there and found the appellant causing injuries to Khair Muhammad by means of hatchet on his head. Ramzan and Giddu were also attracted on cries and they too saw the incident and thereafter the appellant bolted away. On the same day at 5-15 a.m. The F.I.R. Of this incident was lodged at Baghdadi Police Station. After usual investigation the appellant was sent up to stand trial for the offence under section 307, P.P.C.
3. At the trial the prosecution has examined Gul Muhammad (P.W.1), Mst. Khatoon (P.W.2), Mst.
Hawa (P.W.3), Khair Muhammad (P.W.4), Mst. Hakeema alias Haleema (P.W.5), Ramzan (P.W.6), Abdul Rashid SIP. (P.W.7) and Dr. Asoodomal (P.W.8).
4. In his statement recorded under section 342, Cr.P.C., the appellant has disputed the case of the prosecution. According to him Urs, father of injured Khair Muhammad wanted to get divorce from him for his wife Mst. Hakima, so that she should be married with complainant Gul Muhammad, and on his refusal to do so, he was involved in this case falsely.
5. The fact that Khair Muhammad (P.W.4) sustained simple and grievous hurt by means of hatchet is not in dispute. Besides the evidence of Gul Muhammad (P.W.1), Mst. Khatoon (P.W.2), Mst. Hawa (P.W.3), Khair Muhammad (P.W.4), Mst. Hakima alias Haleema (P.W.5) and Ramzan (P.W.6), there is evidence of Dr. Asoodomal (P.W.8) on this point. It is also clear from the record that the appellant
(sic) injuries to Khair Muhammad (P.W.4). Besides other witnesses, his own wife Mst. Hakeema alias Haleema (P.W.5) has supported the case of prosecution. The appellant has also not disputed this fact. He has simply questioned the quantum of sentence in memo of his appeal sent through Superintendent, Central Prison, Karachi.
6. I have heard the appellant in person and have gone through the record with the help of Mr. Jalaluddin Baluch, learned counsel for State, who is of the view that the sentence already undergone by the appellant will meet the ends of justice.
7. The appellant was unrepresented throughout the trial and except Khair Muhammad (P.W.4), who was subjected to cross-examination by defence Advocate, the evidence of remaining witnesses had gone unchallenged. The appellant took the plea of sudden and grave provocation in cross- examination made to Khair Muhammad (P.W.4). According to him he had surprised his wife Mst.
Hakeema who was found with Khair Muhammad (P.W.4) in his own house at odd hours. The learned Assistant Sessions Judge examined this plea of the appellant and rejected the same on the following reasoning:-- "In cross-examination of injured Khair Muhammad it was suggested that accused caused injuries to Khair Muhammad, as he saw Khair Muhammad sleeping with his wife and also attacked upon the accused.
' This suggestion in cross-examination by learned defence counsel clearly shows that at least accused admits the causing of injuries, but in self-defence and grave and sudden provocation.
The other eye-witnesses who have supported the prosecution case against the accused regarding causing injuries, have gone uncrossed. The accused in his statement under sections 340(2) and 342, Cr.P.C. Has totally changed his plea and has denied to have caused any injury to P.W. Khair Muhammad. Since causing of injuries to P.W. Khair Muhammad was admitted in cross- examination of injured Khair Muhammad, it was the duty of the accused to have proved that the injuries were caused by grave and sudden provocation and in self-defence. Instead of discharging the burden, accused has changed the plea into denial and he has also not led any witness in defence."
8. As observed in well-known case of Safdar Ali v. Crown, reported in PLD 1953 FC 93, in a criminal case, it is the duty of the Court to review the entire evidence in juxtaposition to the version made by the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. It is again well-settled that even if an accused does not plead the existence of facts, which may bring his case within any special exception or proviso, it is open to the Court to consider such a plea if the same arises from the materials on record. The burden of establishing the plea is, no doubt, on the accused, but that burden can be discharged by showing preponderance of probabilities in favour of that plea. The ascertainment of the truth is the primary duty imposed upon a Judge and he is not absolved from attempting to perform that duty merely because the defence has taken different stands at different times.
Criminal cases are decided on a broad view of the evidence and a consideration of the salient features of the case. The accused cannot be held guilty merely because he is giving a false explanation.
9. The evidence which is available on record lends support to the plea of sudden and grave provocation raised by the appellant. Admittedly the incident I C took place at about 4-30 a.m. In the house of appellant. The injured was found on the cot inside the house. The evidence of Mst.
Khatoon (P.W.2), Mst. Hawa (P.W.3) and Mst. Hakeema alias Haleema (P.W.5) is self-explanatory.
Gul Muhammad (P.W.1) who has not supported the contents of F.I.R. (Exh. 5), states as follows:-- "I know accused Juman present in Court as he resides in my Mohalla. About 6 or 7 months ago I and accused Juman were going together for work of fishing at about 4 a.m. Accused Juman told me that he has left his card at house and he went to take the same from his house and asked me to go on work. I then went to market. After half an hour P.W. Haroon came to me and informed me that accused Juman had caused hatchet blow on the head of my brother P.W. Khair Muhammad."
10. On the face of the above evidence, the explanation furnished by Khair Muhammad (P.W.4) about his presence in the house of appellant appears to be absurd. It will not be out of place to mention here that the house of appellant is about 1/2 furlong away from the house of Khair Muhammad (P.W.4). The presence of Khair Muhammad (P.W.4) with Mst. Hakeema at that odd hour must have provoked the appellant. The provocation was such which could upset not merely a hasty, hot tempered and hyper-sensitive person, but would upset also a person of ordinary sense and calmness. The case against the appellant would, therefore, fall under section 335, P.P.C. And not under section 326, P.P.C.
11. In the result the conviction recorded against the appellant is altered from 326, P.P.C. To 335, P.P.C., and the sentence is reduced to that already undergone. The appellant who is in custody be released forthwith, if not required in any other case. With this modification, the appeal is otherwise dismissed.