The present criminal appeal is directed against the judgment, dated 23-7-1985, whereby the learned Sessions Judge, Toba Tek Singh convicted the appellant under section 304, Part I, P.P.C. And sentenced him to 10 years' R.I. And a fine of Rs.2,000 or in default thereof to further one year's R.I.
And further directed that the appellant shall pay Rs.15,000 as compensation to the legal heirs of the deceased or in default thereof shall undergo six months' S.I. The appellant also was given the benefit of section 382-B, Cr.P.C.
The appellant was charged under section 302, P.P.C. Initially, but was convicted and sentenced as stated above under section 304, Part 1, P.P.C.
2. The prosecution story is that on I1-7-1984 at about 8-00 p.m. Complainant Abdul Ali (P.W.9), Muhammad Sarwar (P.W.10), Ghulam Rasool (given up P.W.) and Muhammad Sadiq (given up P.W.) were sitting on cots on a Tharra in front of house of complainant in Chak No.280/J.B. The deceased Ashiq Ali is son of complainant and according to F.I.R. After taking meal, he left the house without shirt' on his body and when he reached near the corner of house of Ghulam Rasool son of Allah Ditta, accused Khalid Mahmood was present in front of Baithak of his house and his father Muhammad Ishaq was also present there. As soon as the deceased reached the Tharra of said Ghulam Rasool accused Khalid Mahmood gave a Lalkara as to how the deceased had been helping Abdul Razaq Shah (P.W.2) and had been entertaining him in his house. It may be mentioned that there is common wall between the house; of deceased Ashiq Ali and the accused Khalid Mahmood. The accused and deceased exchanged abuses 'and accused Khalid Mahmood went running inside the house and came out armed with a knife and stabbed the deceased in the chest. The deceased fell down. The complainant Abdul Ali alongwith P.Ws. Reached the spot and accused Khalid Mahmood went inside of his house. Muhammad Ishaque father of the accused climbed on the roof of his house armed with gun and declared that if anybody came near, he will be fired at. The deceased succumbed to his injury at the spot.
3. The motive alleged behind the occurrence is that Abdul Razaq Shah (P.W.2) had teased Mst.
Yasmeen aged about 15 years sister of the accused and thereupon the accused had maltreated said Abdul Razaq Shah. Said Razaq Shah used to sit with deceased Ashiq Ali and that annoyed the accused. It is alleged in the FIX, that accused Khalid Mahmood asked the deceased to leave friendship with said Razaq Shah but the deceased told the accused that matter is between him and the said Razaq Shah. Ghulam Rasool Lambadar and others were left near the dead body and complainant Abdul Ali went to Police Station Nawan Lahore for recording F.I.R.
4. A.S.I. Muhammad Shah (P.W.6) recorded F.I.R. Exh. P.E. On 11-7-1984 at 11-00 p.m. And he proceeded to the spot. The dead body of the deceased was lying there and injury statement Exh.
P.F. And inquest report Exh. P.G. Were prepared and the dead body was handed over to F.C. Faqir Hussain (P.W.3) for post-mortem examination. Khan Muhammad (P.W.11) the then S.H.O. Police Station Nawan Lahore arrived at the spot after receiving information of murder on 12-7-1984 at 2- 00 a.m. He took the investigation in his hand. The blood--stained earth was secured and sealed into parcel vide memo. Exh. P.H. The place of occurrence was inspected and statements of P.Ws.
Were recorded. Accused Khalid Mahmood appeared before the Investigating Officer and produced blood--stained knife P.3 used in the commission of offence and the same was secured vide memo.
Exh. P.J.
5. On 12-7-1984 at 3-30 p.m. Dr. Muhammad Afzal performed post--mortem examination of the deceased. The dead body was of a well-built young man. Eyes and mouth were closed. Rigor mortis and post-mortem staining were present. Following injury was observed: An incised wound 2 c.m. x l c.m. x going deep into the chest on the front of right lower chest close to the right lower margin of the sternum on the casto chondral regions of the right fifth and sixth ribs.
Right fifth and sixth ribs were cut at the level of junction with the right eternal border. Pleura, larynx and trachea were pale. Right and left lungs were pale. Right chest cavity contained blood.
Paricardium was having incised wound on its right. It was full of dark coloured blood. There was an incised wound 2 c.m. x .6 c.m. x cavity of heart on the border of upper part of right vertical. Walls, peritonea, mouth, diaphragm, stomach, pancreas, small and large intestines, liver, spleen and kidneys were pale. The stomach was full of partly digested food. According to the doctor, the death resulted due to shock and haemorrhage as a result of injury No which was dangerous in nature and was ante-mortem and was sufficient to cause death in ordinary course of nature. The injury resulted from sharp-edged weapon. The probable time between injury and death was immediate to half an hour and between death and post-mortem examination 16--20 hours. Post-mortem report Exh. P.D. Was issued. After post-mortem examination F.C. Faqir Hussain (P.W.3) produced the blood-stained clothes of the deceased comprising Chaddar P.1 and Patka P.2 and these were secured vide memo. Exh. P.D. On 13-7-1984 the sealed parcels containing earth and knife were deposited with H.C. Silas Pervez (P.W.5). On 14-7-1984 Abdul Razaq (P.W.2) produced a. Coloured photograph Exh.P,A./1 and letters of Mst. Yasmeen and these were secured vide memo. Exh. P.A. On 14-7-1984 the place of occurrence was shown to Aurangzeb Draftsman (P.W.6) and he prepared the site plans Exh. P.C. And Exh.P.C./1. On 16-7-1984 the Investigating officer gave the marginal notes in red ink. Sealed, parcels were delivered in the office of Chemical Examiner by F.C. Ghulam Qadir (P.W.4). After necessary investigation, the challan was submitted against accused Khalid Mahmood alone.
6. During trial P.Ws. Haji Muhammad Afzal, Abdul Razaq Shah, F.C., Faqir Hussain, F.C. Ghulam Qadir, H.C. Silas Pervez, Aurangzeb Draftsman, Dr. Muhammad Afzal, A.S.I. Muhammad Shat, Abdul Ali, Muhammad Sarwar and Khan Muhammad Inspector were examined in support of the case. The reports of Chemical Examiner and Serologist were tendered in evidence as Exh. P.K. And Exh. P.L.
According to these reports, earth and knife were stained with human blood. Abdul Ali (P.W.9) and Muhammad Sarwar (P.W.10) are eye-witnesses of the occurrence. Dr. Muhammad Afzal (P.W.7) proved the post-mortem report Exh. P.D. Aurangzeb Draftsman (P.W.6) proved the site plans Exhs.
P.C. And P.C./1. Haji Muhammad Afzal (P.W.1) identified the dead body of the deceased at the time of post-mortem examination. Abdul Razaq Shah (P.W.2) was examined to prove his relations with Mst. Yasmeen. F.C. Faqir Hussain (P.W.3) escorted the dead body for post-mortem examination and produced the last-worn clothes of the deceased. H.C. Silas Pervez (P.W.5) kept the sealed parcels in his custody and F.C. Ghulam Qadir (P.W.4) delivered the sealed parcels in the office of Chemical Examiner. A.S.I. Muhammad Shat (P.W.8) and Khan Muhammad Inspector (P.W.11) investigated the case.
7. The accused/appellant in his statement denied the allegations and contended that he acted under sudden and grave provocation. The plea of the accused/appellant is reproduced below in his own words: "On the night of occurrence at about 10-11 p.m. I was present in front of my house, when I saw my sister Mst. Yasmeen in front of our cattle shed talking to the deceased. I told the deceased as to why he was talking to her and he replied that he was handing over a love letter of Razaq Shah to her. I got suddenly provoked and abused the deceased. The deceased started towards me to attack. I under grave and sudden provocation in that sudden flare up and in my defence gave him a knife blow losing the balance of my mind. I was student during those days. I produce a photo copy of my Matric certificate Exh. D.B. I belong to a respectable family. My father is a Naib-Tehsildar while my grandfather is a retired Tehsildar. Nobody saw the occurrence and I approached the father of the deceased and told him what had happened. I voluntarily appeared before the police."
The accused led no defence. However, he gave evidence on oath in disproof of the allegations and charges and in his deposition, he gave the same story which he had given in his plea in the statement under section 342, Cr.P.C.
8. The learned counsel for the parties were heard at length and the record of the case perused with their assistance.
9. The learned counsel for the appellant submitted that it is the case of the prosecution itself that the deceased had been helping Abdul Razaq Shah P.W.2 in his illicit affairs with the appellant's sister, Mst. Yasmin. In this respect, further submitted that even if the prosecution version was accepted in toto yet it is not clear as to what transpired between the appellant and the deceased before the fateful occurrence. Further pointed out that although the prosecution version is that the eye-witnesses were only few Karms from the spot and that they had heard the appellant and the deceased getting into arguments and subsequently indulging in exchange of abuses yet they had not come forth with the precise exchange which inflamed the appellant to attack the deceased.
Further pointed out that it was the prosecution itself which produced P.W.2 Abdul Razaq Shah to establish that the appellant/accused annoyance with the deceased stained from, the said P.W.
Visiting the house of the deceased and further, pointed out, in this respect, that although initially the prosecution had not disclosed the existence of the illicit relationship between the said witness and the sister of the appellant, yet later on they themselves produced the said witness to establish that the motive was that very illicit relationship, therefore, argued that under such circumstances, the grave and sudden provocation held out to the appellant by the deceased during the exchange of abuses etc. As alleged by the prosecution itself cannot be ruled out, and that the benefit of the same should go to the appellant in accordance with the established principle of fair administration of justice in such circumstances. Further pointed out that in this respect notice has to be taken of the fact that the complainant party has itself deposed that there was no prior enmity between the appellant and the deceased, and that even on the fateful day they had not alleged that the appellant bad premeditated the murderous assault on the deceased. Further submitted that another aspect to emphasize is that the prosecution itself has deposed to the effect that the appellant was initially empty-- handed and as he was standing on his own Thara, therefore, there was no possibility of his having known that the deceased would pass that way. Further pointed out that the appellant had only given one blow and had not repeated or made an attempt to repeat the blow.
10. After having made the above submissions, the learned counsel for the appellant, in the alternative, contended that under the facts and circumstances of the case as detailed above, he shall not press the present appeal if the conviction is maintained but the sentence is reduced to one already undergone.
11. On the other hand, the learned counsel for the State has opposed the present appeal and submitted that the appellant has already been given the benefit of grave and sudden provocation, and that under such circumstances, the conviction and sentence awarded to the appellant may be maintained.
12. However, in view of what has been stated above, as it is the case of the prosecution itself that there was no previous enmity between the appellant and the deceased, and that on the fateful day the occurrence resulted after the exchange of abuses between the appellant and the deceased and as the prosecution has left undisclosed as to what precisely transpired between the appellant and the deceased to provoke the murder of the deceased at the hands of the appellant, therefore, the conviction of the appellant is maintained under section 304, Part I, P.P.C. But under the facts and circumstances of the case the sentence is reduced to 8 years' R.I. The fine and compensation awarded is, however, maintained. The benefit of section 382-B awarded to the appellant is also maintained.
13. In accordance with the terms stated above, the present appeal is dismissed.