Allah Yar appellant (30) alongwith four others was charged for the murder of Allah Bukhsh deceased (45). The appellant was convicted under section 304, Part 1, P.P.C. And sentenced to 7 years' R.I. And a fine of Rs.1,000 or in default thereof one year's R.I. He was also ordered to pay a compensation of Rs.10,000 to the heirs of the deceased or in default thereof 6 months' S.I. Under section 544-A Cr.P.C. The other 4 co-accused were convicted under section 323 P.P.C. The appellant has appealed.
2. The occurrence took place at 4-30 p.m. On 14-11-1984 in the area of Chak No. 706/G.B.
Muhammad Nawaz complainant (P.W.7) a cousin of the deceased, resident of Chak No. 660/6.13.
Lodged the F.I.R. The next day at 3-35 a.m.
3. The version given in the F.I.R. Was that the complainant alongwith his cousin Allah Bukhsh deceased and Allah Bukhsh's were Mst. Pathani (P.W.9) were harvesting rage crop in Killa No.21 of Square No.5 in Chak No.706/G.B. Where the appellant and his 4 co-accused armed with Sotas appeared on the scene. Sikander co-accused raised lalkara and the appellant gave two Sota blows on the head of the deceased who started running away but fell down. He was then given further Sota blows by the co-accused. The alarm, raised by the complainant and Mst. Pathani attracted Ahmad (P.W.8) and Hakim Ali (given up). The deceased died at the spot and the appellant and his co-accused ran away.
4. Motive given was that Mst. Janat were of Sikander co-accused was suspected of illicit connection with the deceased.
5. The appellant admitted his close relationship with his co-accused and made a statement on oath to give the details of the occurrence. He stated that Mst. Janat was his niece, daughter of his brother Inayat, whose Dhari was in Killa No. 19 of Square No.5. His own Dhari was in Killa No.3. Of Square No.21 at a distance of 1 Killa from the Dhari of Inayat. At Isha prayer time he was going to his Dhari after having a round of his paddy crop. Maize crop was shown in Killa No.22 of Square No.5 and while passing near it, he heard resulting inside the crop, went inside and saw the deceased and Mst. Janat in compromising position. Mst. Janat ran away but the deceased, who was armed with a Sota gave him two Sota blows and he raised alarm. Both of his hands were fractured. His co- accused Sikander also reached with Sota, was given a sota blow by the deceased and fell down.
Dad and Haq Nawaz also reached and they gave sota blows to the deceased. He was cross- examined.
6. The post-mortem examination on the dead body of the deceased was performed by Dr. Muhammad Idrees (P.W.1) on 15-11-1984 at 3-30 p.m The appellant and his co-accused Sikander were got medically examined by the police on 19-11-1984 from Dr. Muhammad Akhtar (P.W.2). The appellant and his co---accused were arrested on 18-11-1984. Their injuries were found to be of about 5/6 days duration. Two injuries to the appellant were grievous while the injury to Sikander co-accused was simple.
7. Muhammad,, Nawaz complainant (P.W.7) admitted in cross-examination that the Abadi of his Chak was 6/7 squares from the place of occurrence and not 3-1/2 miles. It (place of occurrence), according to him, was only 8/10 Karams from the Dhari of Inayat. He also told that when he went to the spot with the police, Anwar Chowkidar was also there. His version in the F.I.R. Was that leaving the dead body under the supervision of the chowkidar, he had reached the police station, he disowned this version at the trial and was confronted and contradicted. He had also not stated in the F.I.R. That leaving Mst. Pathani, Ahmad and Hakim P.Ws. Near the dead body, he had left for the police station. This he claimed at the trial and was confronted and contradicted. He denied to have given any beating to Allah Yar appellant and Sikander co-accused. He was then put the plea of the appellant, which he denied. Mst. Pathani (P.W.9) makes the version of the complainant doubtful. In examination-in-chief, she did not state about the presence of the complainant at the spot. In cross-examination she stated that police reached the spot before the sunrise, suggested to lodge the report on the basis of the Holy Qur'an, the complainant dictated his statement in her presence to the police and signed in her presence. She also deposed that the police suggested that they should give the names of sound witnesses, and then they gave the names of Ahmad (P.W.8) and Hakim Ali (given up). She admitted that the occurrence had taken place in the land of the accused.
She showed ignorance whether Mst. Janat was the were of Sikander accused. She had not seen any woman running away from the spot but could not deny the suggestion that Haq Nawaz and Dad gave injuries to the deceased. She remained silent on many relevant questions put in definite terms, which shows that she was suppressing the truth.
7. Learned counsel for the appellant in view of this evidence contended that the plea raised by the appellant was correct, he had seen the deceased and Mst. Janat in objectionable condition, challenged the deceased who gave him injuries and when Sikander co-accused reached he too was injured by the deceased and thereafter others reached who finished him. The deceased had as many as 12 injuries and the version that he was seen with Mst. Janat and had also injured the appellant and Sikander co-accused goes to support the defence plea that others on reaching the spot thrashed him. The deceased was done to death not only due to Ghairat, grave and sudden provocation but also in the defence of the appellant and Sikander co-accused. The contention in the circumstances of the case, seems to be well grounded.
8. The upshot is that the appeal succeeds. The conviction and the sentence recorded and passed against the appellant are hereby set aside. He stands acquitted. He is on bail and stands discharged of the bail bonds.