' Appellants Muhammad Yusuf and Muhammad Umar both real brothers were tried by the learned Additional Sessions Judge, Sargodha along with their third brother Muhammad Yunas on the charge under section 302/34, P.P.C. For having caused the murder of Muhammad Ramzan deceased. Vide judgment dated 27th of October, 1985, the learned trial Judge acquitted Muhammad Yunas, but found the appellants guilty on the aforesaid charge. Accordingly, the appellants were convicted and sentenced to undergo life imprisonment each, and to pay a fine of Rs, five thousand each, or in default thereof, to suffer rigorous imprisonment for one year each.
2. Aggrieved by their conviction and sentences, the appellants have preferred this appeal, which shall be disposed of through this judgment.
3. The occurrence resulting into the death of Muhammad Ramzan took place on 30th of January, 1985 at 10-00 a.m. In front of Shalimar Restaurant within jurisdiction of Police Station Civil Lines, Sargodha situated at a distance of one mile from Police Station Cantt. Sargodha. The first information report Exh.P.D./I is based upon the complaint Exh.P.D. Sent by Muhammad Sarfraz Khan A.S.I. P.W.6. Formal F.I.R. Exh.P.D./I was drawn at the police station at 11-30 p.m. By Muhammad Ramzan P.W.
4. In brief, the prosecution case as disclosed by P.W.6 Muhammad Sarfraz Khan A.S.T. In his statment Exh.P.D. Was that on the fateful day after delivering the judicial record of the case registered vide F.I.R. No, 7/85 under section 379, P.P.C. In the Court of Mr. Muhammad Sidique Girwah, Additional Sessions Judge, Sargodha, he alongwith Khuda Yar H.C., Muhammad Mumtaz and Anwar-ul-Haq Constables was present near Shalimar Restaurant, when the appellants and the acquitted co-accused while raising Lalkaras armed with hatchets and revolver passed in front of them while chasing another person. Lalkaras were being raised to the effect that they would take revenge of the abduction of their sister Mst. Munawaran. The complainant A.S.I Muhammad Sarfraz and the constables ran after them, and within their sight, the appellant Muhammad Yusuf inflicted hatchet blow on the left side of the neck of Muhammad Ramzan, as a result of which, the latter fell down. Appellant Muhammad Umar then inflicted a hatchet blow on the left side of the jaw of Ramzan, and thereafter, both the appellants inflicted hatchet blows on the various parts of the body of Muhammad Ramzan. The acquitted co-accused Yunas kept on threatening the people standing around with dire consequences by holding revolver in his hand. The complainant A.S.I.
However managed to overpower all the three persons with the help of other constables, and snatched hatchets and revolver from them. Muhammad Ramzan succumbed to his injuries at the spot.
4. Muhammad Khan P.W.8, Sub-Inspector posted at Police Station Cantt. Sargodha on the receipt of the information about the occurrence reached the spot at 12-00 noon. Sarfraz Khan A.S.I. P.W.6, produced before him two blood-stained hatchets P.7 and P.8 recovered from both the appellants and a revolver P.9 snatched from the acquitted co-accused with six cartridges. The same were taken into possession vide memo. Exhs.P.F., P.G. And P.H. Respectively attested by Muhammad Sarfraz Khan A.S.I. P.W.6, Khuda Yar P.W.7 and Muhammad Khan Sub-Inspector P.W.B. A.S.I. P.W.6 also produced blood-stained clothes of the appellants before the Sub-Inspector P.W.B. Chaddar P.10 Kurta P.11 which were got removed from the person of appellant Yusaf were taken into possession vide memo. Exh.P.J. Chaddar P.12 and Kurta P.13 belonging to appellant Muhammad Umar were taken into possession through memo. Exh.P.K. While Kurta P.14 got removed from the person of the acquitted co-accused Yunas was also seized through Memo. Exh.P.L.
5. The blood-stained hatchets were sent to the Chemical Examiner, who opined that the same were stained with blood and the Serologist vide its report Exh.P.T. Opined that both these items were stained with human blood.
' On 31st of May, 1985, P.W.1 Dr. Altaf Hussain, Senior Medical Officer, D.H.Q. Hospital, Sargodha conducted the post-mortem examination on the dead body of the deceased and noticed the following injuries on his person:
(1) An incised wound 12 x 3 c.m. x cut of mandible hone through and through on the chin with the cut of muscles.
(2) An incised wound 10 x 2-1/2 c.m. x cut of left side of mandible on the left side of face with the cut of blood vessels and muscles. through and through and mendible on the right side of neck and face below the right car with the cut of blood vessel and muscle.
(4) An incised wound 10 x 2-1/2 c.m. x cut of skull bone on the left side back of head.
(5) An incised wound 10 x 3 c.m. x cut of glottis on the front and left side of upper part of neck with the cut of blood vessels.
(6) An incised wound 5 x 2 c.m. x cut of hyiod bone on the left side front of neck below injury No,5 with the cut of blood vessel.
(7) An incised wound 8 x 2 c.m. x bone deep on the outer side of left wrist and hand.
(8) An abrasion 3 x 3 c.m. On the front of right knee.
(9) An abrasion 6 x 2 c.m. On the outer side of left leg and lower portion.
' In the opinion of the doctor, death had occurred due to shock and hemorrhage caused by injuries Nos.1 to 6. Injuries Nos.1 to 7 were caused by sharp-edged weapon while injuries Nos.8 and 9 with blunt weapon. Injuries Nos.1 to 6 were sufficient in the ordinary course of nature to cause death.
7. To prove its case at the trial, the prosecution placed reliance upon the statements of two eye- witnesses namely Sarfraz Ahmad P.W.6 and Khuda Yar Head Constable P.W.7. These witnesses not only gave thc ocular account, but also deposed about the recovery. In addition thereto, the prosecution also placed reliance upon the reports of the Chemical Examiner and Serologist.
8. When examined under section 342, Cr.P.C. Appellant Muhammad Yusaf denied the recovery of blood-stained hatchet P.8 from his custody, and stated that the deceased had abducted his sister Mst. Munawaran, and in that connection, a case under the Hadood Ordinance was pending adjudication against the deceased. On the fateful day, the said case was fixed for hearing, and he had come to the Court to pursue the same. Appellant Yusaf further stated that he was standing at a hotel at some distance from the Court when the deceased passed by that way, and the appellant with folded hands in presence of Aman Ullah P.W.5, requested the deceased to restore his sister as they belonged to a respectable family and the deceased should not disgrace them.
According to the appellant, in response to his request, the deceased exposed his male organ to him, and remarked, that he would commit -Ana with his sister, and that nobody could stop him from doing so. The appellant on hearing this remark of the deceased lost his self control, and under sudden and grave provocation, picked up a hatchet from the hotel which was lying there for cutting the firewood, and gave blows with the same to the deceased. The appellant stated that his brothers had been falsely implicated in this case and the real facts had been distorted by the police. The appellant further stated that he had surrendered himself before the Police and had narrated the above facts. The police was hostile to him, because he had moved a number of applications against them regarding the investigation of the Hudood case. The appellant further stated that hundreds of people were present in District Courts including the shopkeepers to support his version, but the police did not cite any independent witness.
9. The appellant Muhammad Umar also during his examination under section 342, Cr.P.C. Denied his presence and participation, and stated that the police had falsely implicated him, because he had moved a number of applications against some pc'ice officials regarding the investigation of Hadood case.
10. Appellant Yusuf tendered in defence a copy of the judgment Exh.D.A. Proving the conviction of the deceased Ramzan in a case registered against him under the Arms Ordinance. Exh.D.B. Was the F.I.R. Of-that' case, and the postal receipts Exhs.D.C./D.D. And D.E. Showing that various applications by his brother Muhammad Yaqub were sent to the higher police officers regarding the investigation of Hudood case.
11. With the assistance of the learned counsel for the appellants and the State, I have carefully perused the entire record of this case, and I have also heard both the learned counsel at length.
Learned counsel for the appellants confined himself only to the question of quantum of sentence of this case. Learned counsel further argued that the defence vcrion of the appellants was nearer the truth. Learned counsel for the appellants alo criticized the reasons advanced by the learned trial Judge in discarding the defence plea. Learned trial Judge held that the provocation in this case was sustained one. The learned trial Judge observed that, it was an admitted fact, that a Hadood case was pending adjudication against the deceased in respect of the abduction of Munawaran Bib' real sister of the appellants. The learned trial Judge also observed, that since Munawaran Bibi was also an accused in the Hadood case, since, she was in, jail, therefore, the plea of the appellants as to the request for her restoration was improbable and farsighted. It further substantiates the attack under sudden and grave provocation. The learned counsel for the appellants drew thc attention of this Court to the statement of P.W.5 Aman Ullah, who in cross- examination supported the defence. The learned counsel further contended that the evidence of P.W.5 ought not to have been rejected by taking it as a concession. The learned trial Judge discarded his evidence on the ground that P.W.5 had appeared in the witness box to depose about the identification of the dead body, and in his cross-examination, to support the defence was nothing but concession.
12. After anxious consideration of the facts and circumstances of the case, I am of the view that some incident must have occurred motivating the appellants to launch an attack upon the deceased. Elopement of the sister of the appellants with deceased and the registration of Hadood case against the deceased and their sister must have been agitating the minds of the appellants.
Record proves that the appellants had been sending applications to the police officers regarding the investigation of Hadood case. However, none of the appellants took any drastic step, such as, which they took on the fateful day. It is therefore obvious that something must have preceded the occurrence, therefore, I am of the view, that the plea taken up by the appellant Yusuf as to the exposure of the male organ by the deceased is nearer the truth. The society in which we live attaches sanctity to its females and their disgrace and fornication is not at all tolerated. I need not cite number of judgments, because the law reports are full of it, according to which, disgrace of females is considered to be sudden and grave provocation. The learned trial Judge treated it a case of family honour and its vindication. No doubt, this element could not be totally ignored, but as already observed, some incident did precede, in which, the appellants lost their self-control.
Even if the appellant Muhammad Yusuf had not requested the deceased to restore his sister Munawaran because she was already in jail, as already observed by the learned trial Judge, but still some remark or the exposure of the male organ as stated by the appellant could not be ruled out. In this view of the matter, I hold that the B appellants acted under sudden and grave provocation, in this view of the matter, their case falls within the purview of exception 1 to section 300, P.P.C.
13. The next crucial question falling for determination is the quantum of sentence. Judicial precedents are not short of it that in such like cases short sentences are awarded. In this view of the matter, I am of the view, that the sentence already undergone by the appellants would be sufficient to meet the ends of justice. Sentence of fine is set aside. Appellants shall be released forthwith if not required to be detained in any other case. Appeal is allowed in the terms noted above.