KHIZAR HAYAT, J.---Muhammad Bashir son of Allah Ditta (35) with his father-in-law Eidu son of Sikandar (60) were tried by learned Additional Sessions Judge, Muzaffargarh, for having committed the murder of Muhammad Sarwar (deceased) and murderous assault on Muhammad Akram and Muhammad Ashraf P.Ws. Learned trial Court by its judgment dated 14-1-1985, convicted them under section 302/34, P.P.C. And sentenced Muhammad Bashir to death and Eidu to imprisonment for life plus a fine of Rs.2,000 each or in default to undergo further R.I. For six months each.
Muhammad Bashir appellant has been additionally convicted under section 307, P.P.C. And sentenced to seven years' R.I. The sentence of imprisonment awarded to Bashir has been ordered to run concurrently provided his sentence of death under section 302/34, P.P.C, was commuted to life imprisonment. Benefit of the provision of section 382-B, Cr.P.C. Is also granted to them. They have been further ordered to pay a sum of Rs.6,000 each as compensation to the legal heirs of the deceased or in default to undergo one year's R.I. Each. The convicts have preferred joint appeal (Criminal Appeal No. 13 of 1985) against their conviction and sentence and learned trial Court has submitted proceedings under section 374, Cr.P.C. For confirmation of the death sentence awarded to Muhammad Bashir. We propose to dispose of both these matters by this single judgment.
2. The prosecution case as disclosed at the trial was that Muhammad Sarwar (deceased) and Muhammad Ashraf (P.W.11) worked 'at Karachi as labourers. They came to their Chak No.622/TDA (district Muzaffargarh) a day before the occurrence. On the fateful day (21-11-1982) at 9 p.m. They were busy talking to their mother Mst. Sughran and brother Muhammad Akram P.Ws. In their house when Eidu (appellant) their co-villager visited them and told Sarwar (deceased) that he had seen partridges in his land, and his son-in-law Muhammad Bashir (appellant) had come from Toba Tek Singh with a .12 bore gun, therefore, he (deceased) should accompany them for shooting. At this Muhammad Sarwar took lamp from his house and went with Eidu appellant to his house. After a short while of departure of the deceased with Eidu appellant Mst. Sughran, Muhammad Akram and Muhammad Ashraf P.Ws. Heard alarm emanating from Eidu's house and rushed there. Nur Muhammad had also arrived. They saw Muhammad Bashir, appellant, inflicting blows to the deceased with knife, while Eidu appellant, holding a gun in his hands, was exhorting Muhammad Bashir to kill his enemy (Sarwar deceased). Muhammad Ashraf and Muhammad Akram P.Ws.
When tried to rescue Muhammad Sarwar deceased they were also injured by Bashir with knife. The deceased as well as Muhammad Ashraf and Muhammad Akram P.Ws. As a result of injuries fell down. Bashir appellant then took gun from Eidu and fired at the deceased hitting him on the head and killed him. Hearing the report of gunfire, many more residents of the locality gathered there seeing whom the appellants ran away from the scene carrying their weapons. Muhammad Ashraf and Muhammad Akram injured P.Ws. Were removed to the hospital for treatment while the complainant Mst. Sughran leaving dead body of Muhammad Sarwar, in the care of Sadiq (P.W.8) went in the company of Muhammad Yar to Police Post Chowk Munda and lodged report (Exh.P.M.) there at 6-00 p.m. Next morning which was recorded by A.S.1. Jan Muhammad (P.W.14). The motive was stated to be that Muhammad Bashir, appellant suspected the deceased as having illicit relations with Mst. Safia his were.
5. A.S.I. Jan Muhammad (P.W.14) after recording the F.I.R. (Exh.P.M.) sent it to Police Station Daira Din Pannah for formal registration of the case and himself left for the scene of offence. Reaching there he collected blood-stained earth, and after preparing injury statement and inquest report despatched the dead body to the mortuary for post-mortem examination under police escort. He picked up an empty lying on the spot and seized a lantern from there vide memo. Exh.P.G. He arrested Eidu and Muhammad Bashir (appellants) on 26-11-1982 and 30-11-1982, respectively.
Muhammad Bashir, appellant, while in custody, got recovered .12 bore gun (P.16) on 30-11-1982 which was seized with it's licence under memo Exh.P.J. On the same day he also got recovered blood-stained knife (P.18) from the heap of chaff belonging to Eidu appellant which was secured under memo. Exh.P.K. These recovery memos were attested by Muhammad Yar (P.W.9), Abdul Rashid P.W. (not produced) and Jan Muhammad, A.S.I. (P.W.14). After completing the usual investigation, the appellants were challaned to Court.
5. Dr. Saeed Ullah Khan Buzdar (P.W.5) conducted autopsy on the dead body of Muhammad Sarwar at 1-00 p.m. On 22-11-1982 and noted the following injuries on it:-
(1) One inlet firearm wound 2-1/2 c.m. x 2 c.m. x going in medially upwards just near tragus of right car. There was blackening around the wound. One cardboard was present over the wound.
(2) One outlet firearm wound 18 c.m. x 9 c.m. x brain matter coming out covering the left side of nose, left eye-brow, left side of forehead and head. The pieces of bone were present in the wound and in the brain matter. Two pellets were recovered from the brain matter alongwith cardboard.
(3) One vertical incised wound 3 c.m. x 1 c.m. x muscle deep over the left 7 inter-costal space 10 c.m. From the midline.
(4) One incised wound 3 c.m. x 1-1/2 c.m. x muscle deep on the left lower jaw obliquely placed.
(5) One oblique incised wound 1 c.m. x 1/2 c.m. x muscle deep on the front of upper part of neck 2 c.m. From the midline.
(6) One oblique incised wound 3/4 c.m. x 1/2 c.m. x muscle deep on the front of lower part of left side of neck.
On dissection both sides of frontal right temporal and left perietal bones were found fractured into pieces. The nasal bone was also fractured. Small intestine contained semi-digested food while large intestine contained faecal matter. In the opinion of the doctor, death occurred due to fracture of scalp bone resulting in avulsion of brain and control over the vital organs. All the injuries wereth ante---mortem which were sufficient to cause death in the ordinary course of nature. The probable time between injury and death was within 10 minutes and between death and post- mortem 15/20 hours. In cross-examination he stated that there was blackening over the wound and cardboard and two pellets were found inside brain of the deceased. He stated that the deceased took last meal about one hour before his death.
6. Dr. Capt. Muhammad Shat (P.W.13) on 22-11-1982 at about 2.45 a.m. Examined Muhammad Ashraf P.W. And found a stab wound 4 c.m. x 1-1/2 c.m. Going into (not probed) on the left iliac fossa. The intestine was bulging out from the wound. The injury was declared as dangerous to life, caused within six hours, with sharp-edged weapon. He also noted a stab wound 4 c.m. x 1-1/2 c.m.
Going into sixth inter-costal space of Muhammad Akram PW who was in shock with feeble pulse.
The injury was kept under observation and Dr. Bukhtiar Ahmad (PW.16) after X-ray declared it as grievous.
7. The prosecution examined 16 witnesses at the trial in support of its case. Mst. Sughran complainant (P.W.12) mother of the deceased, Muhammad Ashraf (P.W.11) brother of the deceased and Noor Muhammad (P.W.10) their co-villager, have furnished ocular testimony. Muhammad Yar (P.W.9) deposed about the incriminating recoveries. Dr. Saeed Ullah (P.W.5) proved injuries of Muhammad Sarwar (deceased) and opined that his death was result of violence. Dr. Muhammad Shat (P.W.I3) proved injuries found by him on the persons of Muhammad Ashraf and Muhammad Akram, P.Ws. Jan Muhammad, A.S.I. (P.W.14) narrated about the different stages of investigation carried out by him.
8. When examined under section 342, Cr.P.C., the appellants denied the allegations and asserted that they have been falsely roped in due to enmity, Muhammad Bashir, appellant denied the recovery of knife and .12 bore gun from him. In answer to question, as to why this case was brought against him, he stated as follows:- "I was a labour contractor at Lahore and was married to Mst. Sara daughter of Eidu accused who lived at her father's house in Chak No.622/TDA. I occasionally visit the same Chak. During my absence Mst. Sara, developed illicit relations with deceased Sarwar for which I had no knowledge.
On the night of occurrence at 11 p.m. I came from Lahore with my licensed gun to pay a visit to my father-in-law's house. It was dark night. When I entered the premises of house, I heard whisphering of a couple. One of them was my were and the other was Sarwar deceased. They were lying under the shade of a Sheesham tree. When I approached near them I found that they were in compromising position committing adultery. I gave Lalkara to them. On grave and sudden provocation, I fired at Sarwar deceased and afterwards I gave knife blows as I had only one cartridge. Then I chased Mst. Sara who made good her escape. The P.Ws. Had not witnessed the occurrence. They came after the occurrence when they heard about the death of Sarwar deceased. Akram and Ashraf P.Ws. Tried to attack me in retaliation of their brother's murder and also tried to snatch my gun. In exercise of my right of self-defence, I also injured them. Both were armed with knives. They tried to attack me one after another. I have killed the deceased due to Ghairat. I was all alone."
Eidu appellant pleaded alibi alleging that at the time of occurrence he was watering his lands and that he has been falsely involved in this case due to his relationship with Bashir appellant. They did not produce any witness in defence.
9. Learned trial Court on consideration of the material on record convicted and sentenced the appellants as indicated above.
10. Learned counsel appearing on behalf of the appellants has argued that the eye-witnesses in this case are related to the deceased and that the story narrated by them being improbable does not inspire confidence; that the special plea of grave and sudden provocation raised by Muhammad Bashir appellant appears to be reasonable possible and true and as such the same deserves to be accepted in preference to the prosecution story, and therefore, Muhammad Bashir appellant should have been convicted of committing the offence of `culpable homicide not amounting to murder' instead of offence of `murder'; and that involvement of Eidu appellant being highly doubtful, he should be acquitted. On the other hand, learned A.A.-G. Has supported the conviction as well as the sentence awarded to the appellants.
11. We have carefully considered the facts and circumstances of the case in the light of contentions raised by learned counsel for the parties, and perused the record.
12. This is a case: of two versions. One is that the appellants having decoyed deceased to their house on the pretext of shooting the partridges had killed him, while the defence version is that Bashir appellant on chance visit to his father-in---law's house found the deceased in compromising position with his were Mst. Sara, and then under grave and sudden provocation had killed him. It is common ground between the parties that the deceased was suspected of maintaining illicit relations with Mst. Sara; that Mst. Sara is daughter of Eidu appellant and were of Muhammad Bashir appellant; that the occurrence took place in the house of Eidu appellant at 9-10 p.m., and that Muhammad Akram and Muhammad Ashraf P.Ws. (brothers of the deceased) were also injured by Bashir appellant at the same time and place of occurrence. Use of his own licensed gun is also not denied by Bashir appellant.
13. The question which falls for our determination is whether the occurrence had taken place in the manner alleged by the prosecution, or the way the defence has alleged. Having carefully gone through the entire evidence and considering both versions in juxtaposition, we have formed the view that the prosecution version has been established beyond reasonable doubt, whereas the defence version does not appear to be reasonably even possible for which our reasons are as follows.-
14. Perusal of the inquest report (Exh.P.P.) shows that the Investigating Officer (P.W.14) reaching the place of occurrence found the dead body clad in 'Banyan', shirt, sweater and loin cloth. The doctor, who performed the autopsy on the dead body of the deceased has not noted if the private parts of the deceased were soiled with semen or other discharges. These facts belie the defence version that the deceased was found in compromising position with Mst. Safia, when Bashir appellant had fired at the deceased under gave and sudden provocation. Had Bashir appellant seen his were and the deceased `flagrante delicto then he would have shot at and killed him before he could have dressed up. Again his assertion that he had first fired at the deceased and that while the deceased lay on the ground, he caused him injuries with knife also appears to be improbable because m that case the incised injuries would have been much more deeper and extensive than their being only muscle deep injuries, noted by the doctor.
15. Another important feature of the defence version that Muhammad Ashraf and Muhammad Akram, P.Ws. Reached the spot after the occurrence and hearing about the death of the deceased and that they attacked him (appellant) with knives in retaliation and tried to snatch gun from him, whereupon he (appellant) exercising his right of self-defence had injured them, does not appear to be true for the reason; firstly that had the appellant killed deceased before the arrival of Muhammad Ashraf and Muhammad Akram, then there was no point in his remaining present at the place of occurrence, rather he would have disappeared in the darkness of night leaving everybody guessing as --o who murdered the deceased. Secondly; presence of injuries on the person of Muhammad Ashraf and Muhammad Akram, P.Ws., prove it beyond doubt that they reached the spot when Sarwar (deceased) was being injured and that in an attempt to rescue him, as stated by them they received injuries at the hands of Bashir (appellant). It is absolutely impossible that Bashir (appellant), while trying to keep possession of the gun with him. With one hand, was not only able to avoid injury on his person while being attacked by Muhammad Ashraf and Muhammad Akram, P.Ws. With knives but was also successful in causing them grievous /dangerous to life injuries. All these circumstances put together exposed the falsity of the defence version.
16. Coming to the prosecution story, we would say that the taking place of main part of the occurrence, in the manner as alleged by prosecution, stands fully proved as discussed above, but we hesitate to accept the first part of the story i.e. That Eidu (appellant) had called and brought the deceased to his house at 9-10 p.m. On the pretext of shooting partridges as correct, because it does not fit in with his (Eidu appellant's) subsequent conduct i.e. That he despite having a gun in his hands as stated by P.Ws. Did not fire at the deceased. This conduct of his negatives the inference that he shared common intention with Bashir (appellant) to kill the deceased. The allegation that he exhorted, Bashir, appellant, to kill the deceased appears to be an improvisation.
Eidu's presence on the spot is explainable as that is his house. He is an old man of sixty years age.
He is not proved to have played active role in the occurrence, therefore, in our estimation he deserves to be acquitted.
17. Our reading of the case is that the deceased having taken his dinner went for gossip to the house of Mst. Safia, where Bashir (appellant), husband of Mst. Safia, happened to come from Toba Tek Singh per chance, who took exception to the presence of the deceased suspected of his having illicit relations with Safia and quarrelled with him. Hearing the noise Muhammad Akram and Muhammad Ashraf and Noor Muhammad, P.Ws. Also arrived. Bashir appellant attacked Sarwar (deceased) with knife, whereupon Muhammad Ashraf and Muhammad Akram (brothers of the deceased) intervened to save him and in the process, the deceased, and P.Ws. Ashraf and Akram, having been injured by Bashir fell down. Thereafter, Bashir (appellant) picking up his gun had shot at and killed the deceased from a close range as found by the medical witness. We are, therefore, of the view that Muhammad Bashir (appellant) intentionally killed Sarwar (deceased) by firing at him with his gun and also attempted at the lives of Muhammad Ashraf and Muhammad Akram, P.Ws. Without any legal justification and has been rightly convicted under sections 302 and 307, P.P.C. And we uphold the same.
18. This brings us to the question of sentence. Seven years' R.I. Has been awarded to Bashir (appellant) by the learned trial Court under section 307, P.P.C. For having caused one injury each to Muhammad Ashraf and Muhammad Akram, P.Ws. Both the injuries arc on vital part and declared by the doctor as grievous/dangerous to life. Therefore, to our mind, the sentence of 7 years' R.I., in the circumstances, is quite appropriate which is maintained. As for death sentence awarded under murder charge, it is observed that since the deceased, who was suspected of having illicit relations with Mst. Safia, were of the appellant, was somewhat responsible for igniting the situation by having gone to Safia's house, therefore, extreme penalty in the case is not called for. Consequently, we commute death sentence awarded to Bashir appellant to imprisonment for life. The sentence of fine imposed by the trial Court is, however, maintained. Both sentences of imprisonment shall run concurrently and the appellant shall also get the benefit of the provisions of Section 382-B, Cr.P.C.
19. In the result, the appeal to the extent of Eidu (appellant) is allowed and qua Muhammad Bashir (appellant) is dismissed but his sentence is altered. Eidu (appellant) shall be released forthwith, if not required to be detained in any other case. The death sentence of Bashir is not confirmed.
N.H.Q./M-2448/L