Learned Sessions Judge, Bhakkar vide judgment, dated. 26-7-1983 convicting the appellants Mst.
Ghulam Fatima aged 50 years, a widow and her daughter-in-law Mst. Amiran aged 22 years under section 304 Part I P.P.C. Sentenced each to 7 years' R.I. With a fine of Rs.10,000 each in default to serve another term of 2 years' R.I.; half of the fine, if recovered, to be paid to legal heirs of the deceased Ghulam Qadir; feeling aggrieved thereby the present appeal has been preferred.
2. Karim Bakhsh P.W.5, brother of Ghulam Qadir deceased a widower (40/45), on 15-3-1983 at 8-30 a.m. Recorded statement Exh. PA. With Zafar Ullah Khan P.W.8, S.I./S.H.O. Police station Sadar Bhakkar in Inayatabad where the latter was on patrol duty on the basis whereof formal F.I.R.
Exh.PA/1 on the same day at 10.45 a.m. Was registered at the police station by Ghulam Qasim Moharrir H.C. P.W.1, alleging that around preceding mid-night during the course of chatting in the courtyard of complainant's house in the company of the deceased and Allah Diwaya (not produced) his maternal-nephew Khadim Hussain P.W.6 complained of stomach ache, for the treatment thereof, the deceased was despatched to fetch "Ajwain" from the immediate neighbours i.e. The appellants; pursuant whereto addressing appellant Ghulam Fatima by name he knocked at the door, who upon answering the same taking offence to the call at odd hours in conjunction with appellant Amiran hurled abuses at him and with firmness asked him to depart, which compliment was returned by the deceased, and, attracted by the noise, the complainant, Khadim Hussain P.W.6 and Allah Diwaya (given up P.W.) scaled over the partitioning wall and in lantern light found the deceased lying on the floor of the Kotha, and was being given hatchet blows in quick succession by appellant Amiran while appellant Ghulam Fatima was cutting his throat with a Chhuri; subsequent whereto on their hue and cry, they vanished away from the scene extending life threats, and soon thereafter the deceased succumbed to the injuries at the spot. Qua the motive, it was asserted that the appellants suspected the deceased's visit in pursuit of illicit fornication.
3. Zafarullah Khan, S.I. After recording the statement proceeded to the spot, prepared injury statement and inquest report of the deceased Exh. P.H. And P.H./1 respectively, despatched the dead body to the mortuary through Amir Asghar F.C. P.W.2 who subsequently tendered the last- worn clothes of the deceased-shirt P.1, Chaddar P.2 and vest P.3, which were taken into possession vide memo. Exh. P.B.; secured into possession blood-stained earth from the spot vide memo. Exh.
P.D., lantern P.4 vide memo Exh. PE; effected arrest of the appellants who emerged on the spot and on their pointation took into possession blood-stained hatchet and Chhuri P.5 and P.6 respectively vide memo. Exhs. P.F. And P.G. Attested by Khadim Hussain P.W.6, Allah Diwaya (given up) in addition to the Investigating Officer; prepared rough site plan Exh. P.J got the formal site `plan Exh.
P.C. Prepared by Mirza Zahuruddin Draftsman P.W.3; recorded the appellants' statements Exh. D.B.
And Exh. DA. Respectively which were subsequently brought on the Sessions record.
4. Dr. S.M. Rafi Ullah P.W.4, the then Senior Medical Officer, Civil Hospital Bhakkar on 16-3-1983 at 9- 30 a.m. Performed autopsy on the dead body of the deceased, identified by Ghulam Yasin P.W.7 and vide post-mortem report Exh. P.D. Sketch whereof is Exhs.P.D/1 and 2, noticing the following injuries.
(1)An incised wound over the left side of the skull just above Left ear 7'c.m. x 1-1/4 c.m. x 2 c.m. A piece of bone was detached from the under-lying bones, which was lying in the depth of the wound.
(2)An incised wound over the left mastoid region just behind the left ear extending backwards 6- 1/2 c.m. x 1 c.m. x 3 c.m. Under-lying bones were cut completely.
(3)An incised wound over the left cheek below injury No.1, 2 c.m. x 1/4 c.m. x 1 c.m.
(4)An incised wound over the left parietal eminence 6 c.m. x 1/2 c.m. x 1 c.m.
(5)An incised wound over the right parietal region 3 c.m. Above the hair margin 5 c.m. x 1/2 c.m. x 1 c.m.
(6)An incised wound over the back of the neck 6 c.m. x 1/2 c.m. x 1 c.m.
(7)An incised wound over the back of the neck on right side 2 c.m. Behind right car 2 c.m. x 1/2 c.m. x 1/2 c.m.
(8)An incised wound (superficial) over the right cheek and adjacent part of the forehead somewhat interrupted at the level of right outer canthus 9 c.m. x 1/4 c.m. x skin deep.
(9)An abrasion over the right side of the forehead 2 c.m. x 1/2 c.m.
(10) An abrasion over the right corner of the forehead 1-1/2 c.m. x 1/2 c.m.
(11) An abrasion over the root of the nose 1-1/2 c.m. x 1 c.m.
(12) An incised wound over the front of the neck upper portion just below the level of the chin 19 c.m. x 5 c.m. x 4-1/2 c.m. Cutting the trachea oesophagus (save the posterior wall).
(13) An incised wound over the top of the left shoulder 7 c -m. x 1 c.m. x 2-1/2 c.m. Cutting the underlying bone completely.
(14) An abrasion over the left elbow 4 c. In. x 1 c.m. 1
(15) An abrasion over the left knee 2-1/2 c.m. x 1 c.m. observed body of a middle-aged stout built man rigor mortis and post-mortem staining present; mouth somewhat open and tongue caught in between the teeth; all organs of skull, thorax and abdomen healthy save for the injuries; great vessels of the neck on both sides completely cut; heart and stomach empty; large and small intestines contained faecal matter with two ounces of urine in the bladder; right and left parietal bones partially cut; spine of left scapula completely cut at the lateral end; a chip of bone cut from the left temporal bone and opined the cause of death to be shock and haemorrhage resulting from injuries 2 and 12 both of which were sufficient to cause death in the ordinary course of nature individually and collectively; injuries 9 to 11, 14 and 15 were abrasions, probably resulting from friction against hard surface, while rest of the injuries were caused by sharp-edged weapon and ante-mortem; duration between injuries and death few minutes and that between death and post-mortem about 28 to 30 hours.
5. Karim Bakhsh complainant P.W.5 reiterating the prosecution story, in cross-examination explained that the deceased was of 46 years, a widower for the last over one decade and was putting up with him; his were and children were sleeping in the courtyard while the appellants were asleep inside the room; about couple of days preceding the insidence Lalu husband of appellant Mst. Amiran and son of Mst. Ghulam Fatima appellants respectively had gone to visit his relations; the chat was about Bindow's fair which they had watched the night before the deceased called on the appellants' house bare-footed and so were they when they went to the scene of occurrence; however, controverted the suggestion as to the deceased having gone to the appellants' house for illicit fornication.
Khadim Hussain P.W.6 testifying to the same effect in addition to the recoveries stated that though he heard the noise but did not see the deceased knocking at the door; the metalled road is about 7/8 miles away from the place of occurrence, which they did not leave out of appellants' fear.
6. Zafarullah Khan, P.W.8 deposed to the investigation while the public prosecutor tendered in evidence Chemical Examiner's report Exh. P.K. Qua earth, hatchet and Chhuri opined to have been stained with blood, origin whereof was affirmed to be human by the Serologist vide Exh. P.L.
7. Appellant Ghulam Fatima in her statement under section 342, Cr.P.C. Stated that the deceased entered their house with a view to committing rape upon her daughter-in-law, appellant Amiran and in order to save their honour he was killed but the police twisting the facts gave it the colouration of murder, and, that, her statement recorded by the police Exh. P.B. Should be read in evidence. To the same effect was the statement of appellant Amiran, and, averred that her statement before the' police Exh. D.A. Should be read in evidence too.
8. The learned trial Court utterly disbelieving the prosecution story and working on the hypothesis that in the furtherance of illicit intimacy with appellant Amiran the deceased called on her and upon confrontation with her mother-in---law was done to death by the two treating it to be a case of sudden and grave provocation convicted and sentenced the appellants in the terms referred to supra; legality whereof has been assailed by virtue of the present appeal, forming enunciation of the law m Ghulam Qadir v. Esab Khan and others 1991 SCMR 61 and Mst. Nasim Akhtar v. The State PLD 1968 Lah. 841 holding that statement of the accused has to be accepted or rejected in totality, and pick and choose in terms of accepting only the inculpatory portion and rejecting the exculpatory part as incredible or false is impermissible, as sheet-anchor submitted that the trial Court having disbelieved the entire prosecution story should have either accepted or rejected the appellants' version in totality and lawfully could have not made a half way house and that too purely on the basis of conjectures, resultantly canvassed that it is a straightforward case of right of self-defence of honour against a rapist, squarely covered by the third description of section 100 of the P.P.C., in support whereof he has placed reliance on the case of Ashiq v. The State 1973 P Cr. L J 387 holding that even if she was a woman of lax moral, upon assault with the intendment of committing rape without consent, she or husband or any body for the matter had a right to commit death of such a person.
9. On the other hand, learned counsel appearing on behalf of the State joining issue with learned counsel for the appellants submitted that the latter exceeded the right of self-defence, which view, having gone through the entire evidence, I am not inclined to contribute, rather I am of the firm opinion that the trial Court having rightly disbelieved the prosecution story on account of its inherent improbabilities encompassing the entire spectrum viz. The pretext of their being awake together i.e. Discussing the tale of "Bindow" till late hours of the night; tendering of highly incredible pedantic excuse for the deceased's visit to the appellants' place at such an odd hour; his intrusion into the room despite abusive reception; acrobatic witnessing of the occurrence by the so-called eye-witnesses under proverbial lantern light; failing to launch rescue operation and to apprehend the appellants on the spot, and belated lodging of the F.I.R. After holding preliminary inquiry cumulatively amounting to unwitnessed occurrence; erred in partially discarding the appellants' version and only accepting part of it which, obviously, is an incurable legal infirmity
10. 1 have no doubt in my mind that the deceased trespassed into the appellants' living room like a stout bull in the furtherance of illicit pursuits and was appropriately dealt with by the appellants in lawful exercise of their right of self-defence of person and honour, further recovery of the dead body and the blood stained earth from inside the room clearly negates the plea of transgression of the right of self-defence which would have had some substance to consider had it been the case of causing injuries at the back while the deceased was running away from the scene near the outer door.
11. In view of the aforegoing, allowing the appeal, the impugned judgment is set aside and the appellants are acquitted of the charges, and, are discharged of their bail bonds.