Muhammad Amir was tried by Additional Sessions Judge, Jhang alongwith his brother Arif and Said Ahmad son for having murdered Muhammad Iqbal at sunset time on 22-8-1983 in the area of village Malkhiana at a distance of 11 miles from Police Station Massan, District Jhang.
2. The learned trial Judge vide judgment dated 16-10-1984 convicted Amir under section 304, P.P.C.
And sentenced him to undergo R.I. For 8 years plus to pay a fine of Rs.2,000 in default whereof to undergo R.I. For one year.His co--accused were acquitted vide same judgment.
3. The convict has filed appeal.
Ahmad father of the deceased has filed revision petition against the acquittal of all the accused under section 302, P.P.C. Both the matters are being disposed of together.
4. F.I.R. Exh. P.K. Was registered at the police station by Mukhtar Ali S.I. At 9-00 a.m. On 23-8-1983 on the statement of Ahmad P.W.11. According, to F.I.R. a quarrel had taken place between the complainant and the appellant a day before the last Eid-ul-Fitr on the appellant having dismantled the Wat (demarcation between the land cultivated by him and the complainant). The matter was patched up through the good offices of the Biratheri.
5. On the day of occurrence the deceased was coming home. It was sunset time. The deceased was 15/20 Karams away from the village when he was attacked by Amir and Said armed with Sotas accompanied by Arif empty-handed. Arif was alleged to have taken the deceased into clasp while Said was alleged to have given Sota blow on his head. Amir had given three Sota blows on his head whereafter he had fallen. He allegedly had given another Sota blow on the right elbow. The occurrence part from the complainant was witnessed by Muhammad Aslam and Iqbal son of Shahbaz also.
6. Mukhtar Ali S.I. Had investigated the case. During investigation he had taken blood-stained earth into possession from the spot and had got the dead body post-mortemed on coming to know on 24-8-1983 that Iqbal had died in Nishtar Hospital where he was taken from Civil Hospital Jhang.
Before sending the dead body for post-mortem he had prepared the injury statement and inquest report. The accused were arrested by him on 28-8-1983. Sotas P.1 got recovered by Said and P.2 got recovered by Amir were taken into possession vide memos, Exhs. P.F. And P.G. Respectively. He had submitted the challan to Court after completing the investigation.
7. Statements of 14 P.Ws. Were recorded.
8. Dr. Muhammad Afzal who had medically examined the deceased whilst alive on 23-8-1983 at 0- 15 a.m. At D.H.Q. Jhang had appeared as P.W.1. He had noted a contusion, 3 swellings and a lacerated wound on the body of the deceased. 4 injuries were on the head region. According to his opinion the injuries had been caused by a blunt weapon within a duration of six hours.
9. Dr. Syed Zia-ud-Din Zaidi who had performed autopsy on 25-8-1983 appeared as P.W.2. He had noted the same injuries as found by P.W.1. According to his opinion death had occurred due to injuries Nos.2 and 4.
10. Ocular account was deposed to by Ahmad P.W.11 Muhammad Aslam P.W.12, and Muhammad Hayat P.W.13. Ahmad stuck to the version given by him in the F.I.R. The other eye-witnesses corroborated his statement. Details of investigation including registration of case and the arrest of the accused were deposed by Mukhtar Ali P.W.12. The statements of the remaining witnesses are more or less of the formal nature.
11. The appellant during statement under section 342, Cr.P.C. Denied the prosecution version of the case and pleaded innocence. He stated as follows in answer to the question `why this case against your'?
"On the eventful night I was present at my Dhari which is at a distance of one square near from the Village Abadi. My were and my son Said Ahmad were at Jhang. I used to stay with the cattle but due to flood at about Sotayvela per chance I came to my house and saw Iqbal deceased in compromising position with my young unmarried girl Ghulam Sughra in a date palm tree. On seeing me he tried to run away. I had a Sota with me with which I inflicted injury on his person under grave and sudden provocation. The prosecution twisted the facts and falsely implicated us in this false case.
12. Arif and Said took up the stance that they had not participated in the occurrence. Said had examined Sabir Hussain Shah, Constable (D.W.4) in support of his plea of alibi. Muhammad Siddique M.H.C. Abdul Halim, Draftsman, and Ramzan were also examined in defence.
13. Learned counsel for the petitioner in the revision petition has not been able to rebut the reasoning of the trial Judge for acquitting the accused under section 302, P.P.C. He failed to say as to for what reason the complainant had not taken the deceased to the hospital till 12 mid-night if the occurrence had taken place at 7-00 p.m. (the sunset time during the days of occurrence). He also failed to rebut the reasoning of the trial Judge about the possibility of the witnesses having not witnessed the occurrence. The reasons given by the trial Judge for discarding the motive also could to be met with by the learned counsel for the petitioner. In that the learned trial Judge had placed reliance upon the statements of P.W.5 Patwari who had stated during cross-examination that no land of Sher Muhammad was being cultivated by Amir during the days of occurrence or the period preceding the days of occurrence. The statement made by the Patwari on the basis of documents could not be controverted by the prosecution at the trial nor the learned counsel for the petitioner has been able to prove otherwise before this Court. The revision petition which is till at motion stage, therefore, stands dismissed for being without merit.
14. The learned counsel for the appellant has not challenged the conviction of the appellant under section 304, P.P.C. He has, however, submitted that the sentence of 8 years' R.I. Was not in consonance with the facts and circumstances of the case. The learned counsel contended that the learned trial Judge after having accepted the stance of the appellant to have acted under sudden and grave provocation awarded absolutely disproportionate sentence.
15. The learned counsel for the State/complainant has defended the judgment of the trial Court and contended that the sentence awarded to the appellant was in consonance with the circumstances of the case.
16. Although learned counsel for the appellant has not challenged the conviction of the appellant under section 304, P.P.C., but I have gone through the evidence in order to find out whether conviction under section 304, P.P.C. Could be maintained or not. On having taken into consideration the plea put forth by the appellant, I do not find anything to differ with the view of the learned trial Judge in accepting the version put forth by him, what particularly impressed me, was, that the appellant straightaway gave the name of his daughter as well, with whom he claimed to have seen the appellant cohabiting. I do not think any father would name his young daughter for such thing, just only to set up a false plea. Those, who only, put up such pleas, to escape punishments, they do'nt name the girls. The conviction of the appellant under section 304, P.P.C. Is, therefore, maintained.
17. As noted above, it is not a case where the appellant can be deemed to have thrown a. Plea to escape conviction. The plea rather seems to be based on substance as the appellant did not grudge naming his daughter with whom the deceased allegedly was seen cohabiting. In the circumstances I feel sentence of 8 years' R.I. Is excessive. The same is reduced to R.I. For 3 years. The sentence of fine is, however, maintained. He shall be given benefit of section 382-B, Cr.P.C. As well.
18. The appellant is on bail. His bail bonds are cancelled. He shall be caused, to be arrested through non-bailable warrants and lodged in jail to undergo the remaining sentence of imprisonment.