' MUHAMMAD AMIR MALIK, J.-- Liaqat (about 20 years) appellant, resident of Salimpur Pacca, a village one mile from Polic Station Mangtanwala, District Sheikhupura and connected by a Pacca Road, was held guilty by Additional Sessions Judge, Sheikhupura for the murder of Amir Ali (32 years) of his village. Vide judgment dated 27-9-1987 he was sentenced to suffer death and a fine of Rs, 10,000. Or in default thereof two years' R.I.Under section 302 P.P.C. The fine, if realised, was ordered to be paid to the heirs of the deceased as compensation. He has appealed against his conviction and sentence while the learned trial Judge has forwarded the case for confirmation of the death sentence under section 374 Cr.P.C.
2. The occurrence took place after Jumma prayers on 6-6-1986 at the Dera of Sultan Shah Lumbardar (P.W.2) in the village Abadi where preparations were afoot for cooking Degs on Niaz ceremony, it being the 27th of Ramzanul Mubarak. Bashir Ahmad complainant (P.W.1), the brother of the deceased, Jaffar Muslim Sheikh and Talib Kumhar (given up P.Ws.) of the village and the deceased were engaged in the preparations. Sultan Shah Lumbardar (P.W.2) was himself present nearby. Bashir Ahmad complainant and Sultan Shah Lumbardar reached the Police Station in the latter's car after the occurrence and on the statement of the former F.I.R. (Exh. P.A.) was registered by Muhammad Sharif, S.H.O.(P.W.8) at 4.10 p.m.
3. According to the statement in the F.I.R. Just along the gate of the cattle Haveli of Bashir Ahmad complainant, Hidayat, the father of the appellant, was running a shop. Women of the village visited shop for purchasing sundry articles. The appellant usually was present at the shop. Father of the appellant was asked by the complainant and the deceased that as his son i,e, the appellant, was not having good reputation, so he should not be present at the shop. On coming to know of it the appellant complained to the deceased. Five/six days before the occurrence the appellant was present at the shop when the complainant and the deceased again asked the father of the appellant as to why he was not desisting from being present at the shop. It was taken ill of by the appellant.
4. In the above background, the statement continues that when the deceased, the complainant and the abovementioned P.Ws. Were present at the Dera engaged in the preparation of the Degs for Niaz the appellant appeared on the scene from the north in the street carrying a Chhurri.
Abusing the deceased he assaulted him and gave a blow in the left ribs, the deceased fell down in bloodbath while the appellant made good his escape after extending threat to all present not to come near him. Sultan Shah Lumbardar had also reached on the alarm and witnessed the occurrence. The deceased expired at the spot.
5. Dr. A.R. Arain (P.W.3), Medical Officer, Tehsil Headquarters Hospital, Nankana Sahib, conducted the autopsy on the dead body of the deceased on 7-6-1986 at 8-00 a.m. It was having a stab wound 2-1/2 cm x 1/2 cm x cavity deep on the outer chest in the middle. It had cut the lower part of the heart. The injury was opined to be ante-mortem, by a sharp-edged weapon and sufficient to result in death in the ordinary course of nature. The death was stated to have occurred by the doctor within 15 minutes and the time between the death and the post-mortem was stated about 18 hours.
6. Muhammad Sharif, S.H.O.(P.W.8) after recording the F.I.R., as per his statement, reached the spot, prepared inquest report and injury statement (Exhs.P.F. And P.F./1) and despatched the dead body for post-mortem examination. On spot inspection he recovered blood-stained earth vide memo.
(Exh.PB/1) and sealed it into a parcel. He prepared rough site plan (Exh.P.G), and also got prepared site-plans (Exhs.P.E. And P.E/1) from Rab Nawaz Draftsman and gave his red notes thereon. He claimed to have arrested the appellant on 15-6-1986. On 17-6-1986 the appellant got recovered blood-stained Chhuri (P.1) from his shop which was secured vide memo. (Exh.P.B).
7. In his statement under section 342, Cr.P.C. When asked "Have you anything else to say"?, the appellant replied:-- "I am innocent. The fact of the matter is that on the day of occurrence I along with Jafar P.W. And the deceased Amir All were making preparation for Niaz. I was cutting the onions when Amir Ali deceased drank water. It was the month of Ramzan, I objected seriously. Amir Ali deceased took exception and after abuses a quarrel ensued. Amir Ali caught hold of me and during grappling he twisted my testicles, therefore, in order to defend my person I gave a Chhuri blow to the deceased which unfortunately proved fatal. It was a sudden quarrel. I never intended the death of the deceased. I then informed the police, the same day, who arrested me on that day and secured the Chhuri which was still lying at the spot. The police summoned the brother of the deceased Bashir Ahmad P.W. From Kot Piran and after due deliberation a false case was registered against me at the spot."
' He did not make statement on oath.
8. The prosecution called 8 witnesses. Bashir Ahmad complainant and Sultan Shah (P.Ws. 1 and 2) gave the ocular account of the occurrence and the motive part of the story. Waryam (P.W.5), the father-in-law of the deceased, deposed about the recovery of blood-stained earth from the spot and the recovery of blood-stained Chhurri (P.1) at the potation of the appellant from his shop. Dr. A.R. Arain (P.W.3) provided the medical evidence. The case was investigated by Muhammad Sharif, S.H.O. (P.W.8). The rest of the witnesses are of formal nature. Appreciating the statements of the abovementioned witnesses and considering the defence plea, the learned trial Judge answered the charge against the appellant.
9. Learned counsel for the appellant assailed the judgment on the ground that the F.I.R. Was recorded after deliberation and at the spot, the motive was not proved, the eye-witnesses had made contradictory statements and that reading the statements of the eye-witnesses in the light of the circumstances appearing on the record it could well be said that the occurrence had taken place in the manner as pleaded by the appellant. Learned counsel for the State defended the judgment. After hearing them and going through the record, we find much force in the submissions made by the learned counsel for the appellant.
10. Police station is only one mile from the .Village of occurrence and connected by a Pacca road.
Bashir Ahmad complainant and Sultan Shah (P.Ws.1 and 2) stated that the occurrence took place after Jumma prayers but no exact time is given by them. The latter further stated that they started for the police station after one hour of the occurrence. Warryam (P.W.5) is the father-in-law of the deceased and is resident of Qilla Mahin Singh, a place 6/7 miles from the spot as stated by him and he received the information of the murder at 4.00 p.m. All this would indicate that the occurrence took place, if not earlier at least at about 2-00 p.m. Sultan Shah Lambardar (P.W.2) had a car and he stated that he and the complainant reached, the police station in the car. They would have hardly taken 10/15 minutes to reach the police station from their village. The F.I.R. Therefore, seems to be certainly delayed. Not only this but it also seems to have been recorded at the spot.
Bashir Ahamd complainant simply stated that he made his statement before the `Thanedar' and thumb-marked it, but where and at what time, he did not indicate. Sultan Shah (P.W.2) stated that on reaching the police station, they informed the Inspector (the S.H.O.) about the occurrence, he came to the place of occurrence, recorded his statement as well as of Bashir Ahmad (P.W.1) and obtained the latter's thumb-impression. The first limb of the submission made by the learned counsel for the appellant is, therefore, factually correct.
11. As per the version in the F.I.R. The shop was of Hadayat, the father of Liaqat appellant, but it was the appellant who usually was present over there, the women-folk of the complainant and the village to purchase sundry articles from the said shop and the appellant being not of good character, the complainant and the deceased had asked the father of the appellant that he (the appellant) should not sit at the shop. There is no mention in the F.I.R. That even Sultan Shah (P.W.2) had been approached by the complainant and the deceased in this respect. At the trial Bashir Ahamd complainant (P.W.1) deposed that the appellant was working in a shop near their 'HavelP and their ladies had been passing in front of the shop to go to their house and so did the ladies of the village. The accused had a bad moral reputation. He and his brother Amir Ali (the deceased) approached the father of the appellant to restrain him from running the shop, but he (the father of the appellant) did not agree. He goes on to state that they then approached Sultan Shah, I ambardar (P.W.2) in this regard, yet the appellant did not desist from sitting at the shop. He was supported by Sultan Shah (P.W.2). In his cross-examination, the complainant claimed to have stated in the F.I.R. That their women folk used to pass near the shop, which was not the case and he was properly confronted and contradicted. He further replied that their ladies used to make purchase of daily needs from the shop of the appellant and they had never stopped their women folk from making purchase from the shop of the appellant. If the appellant was of such a bad moral character, that consistently the complainant and his brother (the deceased) approached his father with the plea that he (the appellant) should not sit at the shop, then there was no reason why the women folk of the house were not asked not to visit the shop of the appellant. The complainant claimed that he got it recorded in the F.I.R. That complaint was also made to Sultan Shah (P.W.2) which was not the case and on this as well he was confronted and contradicted.
Sultan Shah, Lambardar, (P.W.2) is the leading man of the village. The complainant admitted that he, Jaffer, Talib P.Ws, the appellant and his father were the employees of Sultan Shah, all the shops and the houses in the village were situated in the land of Sultan Shah. Had Sultan Shah, the landlord and the Lambardar of the village, asked the father of the appellant, who was his employee, that his son should not sit at the shop, there was no reason why it should not have been complied with. He could very well have removed the appellant and his father from his employment and even turned them out of the shop. During investigation no women or any other person from the village was produced in support of the version that the appellant was of bad moral character. B The motive part of the story seems to be a concocted one.
12. The ocular account of the occurrence is provided by Bashir Ahmad and Sultan Lambardar(P.Ws.
1 and 2). Previously there seems to be no illwill or grudge between them and the appellant family.
They are independent witnesses but nonetheless the inherent worth of their testimony must be tested to see if reliance can be placed upon them. Appreciating their statements in juxtaposition with the defense version, to us the latter seems to be more probable, if not the C actual truth.
13. As stated by the complainant, he, Jaffer, Talib, P.Ws. And the appellant and his father were all the employees of Sultan Shah, Lambardar (P.W.2) it was the 27th of Ramadhan-ul-Mubarik and `Daigs' for `Niaz' ceremony were to be cooked. The occurrence took place after Juma prayers and so the preparation for the same must have been afoot. The complainant stated that there were no Daigs etc. At the sopt nor any fire-wood or fire-place prepared. He is contradicted by Sultan Shah P..W., who deposed that there were Daigs, even onions were seen there and fire-place was being prepared. Keeping in view the social position of the appellant it was but expected that he too would have been present in the preparation for Niaz of their Lambardar and landlord i,e, Sultan Shah.
Sultan Shah P.W. In examination-in-chief stated that he came out of the mosque (which is just inside his Dera as per the site plan) on hearing the noise and saw the appellant coming armed with a Chhuri, abusing the deceased, he assaulted and p gave the Chhuri blow, passing 2/3 yards from him (while going to attack) but he could not say wherefrom the appellant made his exit and to which side he escaped. He denied the suggestion in cross-examination that he was attracted by the hue and cry raised by the deceased. In view of the motive part of the version given by the prosecution, if the appellant was to attack the deceased then the Dera of his landlord and employer was not the choice place for the same. Furthermore, if it was a premeditated attack the single blow would not have been caused, there being no active resistance from the deceased or interference by the witnessess present near the spot. Bashir Ahmad complainant (P.W.1) admitted that the deceased was not with fast. The suggestion was denied that when he took water, the appellant strongly objected, it being the 27th of Ramadhan- ulMubarik, then the two grappled, the deceased caught hold of the testicles of the appellant and he in turn picked up the Chhuri and gave the blow to the deceased. According to Sultan Shah himself, the onions were there at the spot, so Chhuri must have also been there. There being no previous enmity or grudge between the appellant and the deceased, the motive part of the story being not convincing and only one blow having been struck, that too at the Dera of the landlord- cumemployer, the probability is very much there that the occurrence took place in the manner as pleaded by the appellant. We are, therefore, inclined to agree with the learned counsel for the appellant.
14. The recovery of blood-stained Chhuri and the arrest of the appellant, as stated by Warryam and Muhammad Sharif, S.H.O. (P.Ws.5 and (8) seem to be doubtful affair. The S.H.O. Stated that he arrested the appellant on 15-6-1986 and on 17-6-1986 he led to the recovery of the Chhuri.
Warryam also told that Chhuri was got recovered after 8/10 days of the occurrence. Bashir Ahmad, complainant (P.W.1) says that on the very day of occurrence, the appellant was arrested by the police in the evening and he got recovered the Chhuri (P.1) which was secured vide Memo.
(Exh.P.B.), attested by him.
15. The upshot is that it was the appellant who gave the single fatal blow in the chest of the deceased, however, without pre-meditation and at the spur of the moment. He is, therefore, guilty of the offence of culpable homicide not amounting to murder. His appeal is accordingly accepted, conviction under section 302, P.P.C. Is set aside and he is convicted under section 304-1, P.P.C. He is sentenced to seven years' R.I. And a fine of Rs, 10,000 or in default thereof two years' R.I. As well as a compensation of Rs, 5,0(X) under section 544-A, Cr.P.C. To be paid to the heirs of the deceased. The compensation would be recovered as arrears of land revenue. We direct, under section 382-B, Cr.P.C., that he shall be entitled to have the period of detention during trial counted towards his sentence. The reference and appeal are disposed of accordingly. The death sentence is not confirmed.