' SARDAR MUHAMMAD DOGAR, J.---Muhammad Mansha aged 36 years, was tried by the Sessions Judge, Gujranwala, for having murdered Manzur Hussain on 7-12-1987 at 3-00 p.m. In front of his house in village Mangoke at a distance of 6 miles from Police Station Nowshchra Virkan, Distt.
Gujranwala.
' Learned trial Judge vide judgment dated 15-1-89 convicted him under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs,2,000 in default whereof to undergo R.I. -for one year. He was also directed to pay a sum of Rs,5,000 as compensation to the heirs of the deceased, in default whereof to suffer R.I. For six months.
2. Convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.
3. F.I.R. Exh.P.D./1 was registered at the Police Station by Rafi Ullah, A.S.I. P.W.5 at 5-00 p.m. On 7-12- 1987 on receipt of Exh.P.D. Statement of Saif Ullah P.W.8, recorded by Muhammad Hussain, S.I. P.W.11, at 4-30 p.m. At the spot.
' According to F.I.R. The houses of Manzur Hussain deceased and Mansha appellant were adjacent.
A wall intervened between the two houses. Manzur Hussain had demolished his Katcha house and had raised a Pacca house some time before the occurrence. The intervening wall had also been demolished. On the day of occurrence, Saif Ullah P.W., sister's son of Manzur Hussain who had come to pay a visit to Manzur Hussain, was sitting in his (deceased's) house at 3-00 p.m. Mst. Rasul Bibi wife of Manzur deceased and Mst. Sughran Bibi his daughter, started collecting katcha bricks of the demolished wall to reconstruct the wall. Mst. Sardar Bibi mother of Mansha appellant and Mst.
Sughran Bibi and Mst. Zohra Bibi his sisters stopped them from doing so and started hurling abuses. Mst. Rasul Bibi and Mst. Sughran Bibi (daughter of the deceased) returned the abuses. In the meantime Manzur Hussain came home. He admonished his wife and daughter as well as mother and sisters of Mansha, and separated them. Shortly thereafter Saif Ullah and Manzur Hussain came out of the house. Mansha appellant armed with a hatchet confronted Manzur Hussain by raising a Lalkara, saying, that he will teach him a lesson for having called filthy abuses to his mother and sisteRs, Hearing noise, Mst. Rasul Bibi and Mst. Sughran Bibi (daughter of the deceased) came out. Mansha gave a hatchet blow which fell on the nose of Manzur Hussain. He fell down, whereafter he gave him successive blows near the right eye and right upper arm. Manzur Hussain died at the spot, while writhing in pain. The occurrence, apart from the complainant, was witnessed by Mst. Rasul Bibi and Mst. Sughran Bibi P.Ws. It is stated in the end of the F.I.R. That Mansha had murdered Manzur Hussain due to the dispute that occurred between the ladies of the two houses.
4. Muhammad Hussain, S.I. (P.W.11) after despatching statement Exh.P.D. To the Police Station for the registration of case, examined the dead body and sent the same for post-mortem examination, after preparing injury statement Exh.P.G. And inquest report Exh.P.H. Thereafter he .Inspected the spot and collected blood-stained earth from there vide memo Exh.P.E. He also prepared rough sketch (Exh.P.J.) of place of occurrence.
' Mansha appeared before him at the spot on 14-12-87 and produced bloodstained hatchet P.4. He arrested him and took into possession hatchet vide memo Exh.P.F. Challan was submitted to Court after completion of necessary investigation.
5. Statements of eleven P.Ws. Were recorded at the trial.
' Dr. Muhammad Ramzan Parvez who had performed autopsy on 8-12-87 at 9-00 a.m., appeared as P.W.1. He had noted following injuries on the body of the deceased:-
(1) An incised wound 4.5 c.m. x 1.5 c.m. x 2.5 c.m. Oblique on bridge of nose with fracture of underlying nasal bone.
(2) A lacerated wound 3.5 c.m. x 1 c.m. x bone deep on right, temporal region just above and outerside of right eye-brow.
(3) A lacerated wound 2 c.m. x 1 c.m. x 2 c.m. On right side of face about 3 c.m. Below the right eye- brow.
(4) A contusion mark 4 c.m. x 1.5 c.m. On top of left shoulder.
' On dissection maxillary bone of right side of face was found fractured under injury No,3. Right temporal bone, right frontal bone and base of skull were found fractured under injury No,2, membranes and brain were found injured beneath the same injury. Injury No,1 was opined to have been caused by sharp-edged weapon while the rest were opined to have been caused by blunt weapon. Death was opined to have occurred due to shock and brain trauma as a result of injury No,2 which was opined to be sufficient to cause death in the ordinary course of nature. Time between injuries and death was opined to be half an hour while time between death and post- mortem was opined to be 18 houRs, During cross-examination, he denied the suggestion that injury No,1 could have been caused with a blunt weapon.
6. Ocular account was deposed to by Saif Ullah (P.W.8) and Mst Sughran (P.W.9). Saif Ullah while repeating the facts given by him in the F.I.R. Explained that he was posted at Bahawalpur and was on leave on the day of occurrence and had come to the house of his deceased maternal-uncle in village Mangoke to see him at 8/9 p.m. On 6-12-1987. During cross-examination he gave the distance of his residential village as 3 miles from the place of occurrence. He stated that he had come straightaway to village Mangoke from Bahawalpur on 6-12-1987. He admitted that he had availed 1-1/2 months leave one month prior to the occurrence and had come on seven days leave when the occurrence took place. He explained that he had travelled to Mangoke by buses. He denied the suggestion that brickbats were lying on the side of the house of the accused. He admitted that place of occurrence was surrounded by inhabited houses. However, he stated that no resident of the house had reached the spot during the occurrence, although many people had come there after the occurrence. He gave out that the police had recorded his statement after examining the injuries of the deceased. He added that his mother had reached village Mangoke after the occurrence.
' He gave out that he was engaged to Mst. Sughran Bibi his cousin before the murder of her father and their Nikah was performed after the occurrence.
' He admitted that the deceased and some others were involved in commission of Zina with one Mst. Surraya Bibi and later killing her. However, he added that they all were acquitted in that case.
He denied the suggestion that Manzoor Hussain was hardened criminal. He denied the suggestion that Manzoor Hussain deceased had belaboured Mst. Sughran Bibi and Mst. Nasim Bibi, sisters of the accused, with brickbats and Sotas when they had quarrelled with the ladies of his house. He also denied the suggestion that Mst. Sughran Bibi and Mst. Nasim Bibi, sisters of Mansha appellant, had inflicted blows with brickbats to Manzoor Hussain deceased in self-defence and that during that he had fallen on a Kassi lying there and suffered injury on the nose. He also denied the suggestion that the occurrence had taken place in the courtyard of the house of accused. He denied the suggestion that he had not witnessed the occurrence and had come from Bahawalpur on being informed of the occurrence and that the F.I.R. Was recorded at his instance on 8-12-1987 after his arrival.
7. Mst. Sughran Bibi daughter of the deceased corroborated the statement made by Saif Ullah (P.W.
8). On confrontation--, she was not found to have stated in her statement Exh.D.A. That a quarrel had taken place between the ladies. She stated that many persons had reached the spot after the occurrence. She declared that she had not seen the sister of the appellant appearing before the police. The suggestions put to Saif Ullah about the occurrence having occurred on account of the fight that had taken place between the wife and daughter of the deceased and the sisters of the appellant in a different manner were also put to her which she denied. She also denied the suggestion that she had made a false statement.
8. The evidence of production of blood-stained Kulhari P.4 by the appellant before the Investigating Officer during investigation was deposed to by Ataullah (P.W.10). During cross-examination, he admitted that he was married to the sister of Saifullah P.W. And was residing in a village 5/6 miles away from Mangoke village. He did not deny the presence of other persons at the time of production of Kulhari by the appellant before Investigating Officer.
9. Muhammad Hussain S.I. Who had investigated the case, arrested the accused, taken into custody blood-stained hatchet produced by the appellant, and submitted challan to the Court after completion of necessary investigation, appeared as P.W. 11 and gave the details of the investigation. During cross-examination he stated that he had learnt about the occurrence while being in the Chowk of Artali Virkan and had come to the spot. During cross-examination he denied the suggestion that bloodstained earth was collected from the courtyard of the accused. He denied the suggestion that actually the deceased had caused injuries to Mst. Nasim and Mst.
Sughran sisters of the accused and that they in self-defence had caused injuries to him. He denied the suggestion that he had kept them in custody and not permitted them to go for medical examination. The suggestion that he had investigated the case in a partial manner was denied by him.
10. The statements of the remaining P.Ws. Are more or less of a formal nature.
11. The appellant during statement under section 342, Cr.P.C, denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to question, "Why this case against you?": "On 7-12-87 my sisters Nasim Bibi and Sughran Bibi were abused by Rasulan Bibi widow of deceased and by Azra Bibi who was the keep of the deceased. My sisters also exchanged abuses with them. In the meanwhile Manzoor deceased arrived there and after entering our house he abused my said sisters and also caused them danda blows. My said sisters in their self-defence inflicted brickbat blows to Manzoor deceased after picking up the same from there which were lying there for the construction of the disputed wall intervening between two houses. Manzoor also fell down on the ground in that process and received a Kassi blow when he fell on the Kassi which was already lying there, on his nose. I learnt about the occurrence in the evening when the police apprehended me from the dera."
12. He examined in defence Dr. Ashfaq Ahmad Khan (D.W.1) and Mst Sughran Bibi, his sister as D.W.2.
' Dr. Ashfaq Ahmad Khan (D.W.1) stated that he had medically examined Mst Sughran Bibi daughter of Sardar Muhammad on 10-2-87 at 3 p.m. And had noted a septic wound 2-1/2 c.m. x 2 c.m. x skin deep on the left side of head, 1 c.m. Above left eye-brow. He gave the duration of the injury as about 5 days. He also claimed to have medically examined Mst. Nasim Bibi daughter of Sardar Muhammad on the same day at 3.10 p.m. And noted:
(1) Septic wound 4 c.m. x 3 c.m. x skin deep on top of head.
(2) Abrasion healed 3 c.m. x 1 c.m. On front of right leg. According to his opinion the duration of injuries was about 5 days.
' He opined that injuries to both the ladies had been caused by blunt weapon. During cross- examination he stated that one Nazir son of Muhammad Bakhsh had got the two ladies privately examined from him. During cross-examination, he stated that the injuries could not have been self-inflicted but could have resulted from a fall.
' Mst. Sughran Bibi (D.W.2) sister of the appellant corroborated the statement made by the appellant in answer to the question, "Why this case against you?" During cross-examination, she stated that she had put up the version for the first time on that day She denied that she had made a false statement. She also denied the suggestion that actually her brother Mansha had committed the murder of Manzoor Hussain.
12. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the eyewitnesses do not appear to have witnessed the occurrence; that a concocted version was reported to the Police and that the version put forth by the appellant at the trial was more probable and nearer the truth than the prosecution version.
Learned counsel argued that conviction of the appellant under section 302, P.P.C. Was not sustainable and that at the best the appellant can be held liable for having committed offence under section 304, Part I, P.P.C. In that connection he placed reliance on Mir Afzal v. The State 1972 P Cr. L J 1025.
' Lastly, learned counsel submitted that even if it is believed that the appellant was liable for having committed the offence under section 302, P.P.C., it is a case of awarding lesser penalty as even according to the prosecution the appellant had launched attack, on being aggrieved for his mother and sisters having been called filthy abuses.
13. Learned counsel for the complainant/State defended the judgment of the trial Court. Learned counsel for the complainant urged that no case for mitigation for awarding lesser penalty of imprisonment for life was made out.
14. Saif Ullah P.W. Was not residing in the village of the occurrence. He belonged to a village 3-6 miles away from village Mangoke and was stationed at Bahawalpur as he was serving in the Army.
However, during cross-examination, the defence failed to shake his stand that he was on leave and had come to see his maternal-uncle (to whose daughter he was engaged also). He had no axe of his own to grind against the appellant. In fact, except the incident which had taken place between the ladies of the two houses shortly before the occurrence of murder, there was no other difference or enmity between the members of the two families. They were neighbours since long and had been living peacefully.
15. Mst. Sughran Bibi P.W.9 being daughter of the deceased was a most natural witness as the occurrence had taken place just outside the house of the deceased. She was a young unmarried girl and could not have known the tactics of concocting false cases. Both the witnesses made forthright statements.
16. The version put forth by the appellant that the deceased had caused injuries to two of his sisters and that they had caused injuries to the deceased in self-defence by throwing brickbats and that the deceased had suffered injury on the nose as a result of a fall on a Kassi, in our view, is not worth acting upon. In that, both the ladies had not gone for medical examination till 5 days of the occurrence. There is nothing on record to hold that they had appeared before the Investigating Officer during the investigation and disclosed that version. The Investigating Officer was particularly asked during cross-examination about that but he categorically denied. The manner in which the occurrence took place, deposed to by DW2, does not fit in with the circumstances. If the injuries, other than the one on the nose, had been caused by throwing brickbats, the shape and dimensions of the injuries would have been different because a brickbat would cause a different type of injury than that by blunt or sharp-edged weapon. The claim made by the defence that the deceased had suffered sharp-edged weapon injury on the nose by a fall on a Kassi, does not inspire confidence at all, for the reason that as a result of a fall on a Kassi the deceased could not have received an injury found to have been suffered by him.
' The contention of the learned counsel for the appellant that the defence version finds support from the statement of P.W.7 during cross-examination that the bloodstained earth had been collected from the courtyard of house of the appellant, in our view, does not possess strength. In that, the Investigating Officer had clearly denied during cross-examination that the bloodstained earth was collected from the courtyard of house of the appellant. It seems that P.W.7 had made a concessional statement. Such a fact also does not find support from the site plan.
After having considered both the versions in juxtaposition, we feel no hesitation in saying that the version put forth by the defence was to at all worth acting upon. The prosecution version of the occurrence narrated by the eye-witnesses and corroborated by the evidence of recovery of blood- stained hatchet coupled with the evidence of motive, in our view, can be safely relied upon to hold that it was the appellant who had committed murder of the deceased.
17. The argument of learned counsel for the appellant that even if it be believed that it was the appellant who had inflicted injuries to the deceased, he cannot be held liable for having committed the offence under section 302, P.P.C. And at the best can be held liable for having committed an offence under Section 304, Part I, P.P.C, has also not impressed us. In that, the appellant had not stopped after having caused an injury. He had given as many as four injuries, two of which resulted in fractures of head and nasal bone. The incident which led the appellant to launch attack on the deceased, had happened prior to that. The facts of the authority relied upon by learned counsel for the appellant, are different from that of the case in hand. In fact learned Judges who delivered that judgment, themselves observed as follows:-- " It has not been laid down as a law that in all circumstances, including an abuse if it is of the filthiest kind and is given to a person who would normally not tolerate such abuse, the Courts should never treat it as capable of giving rise to grave provocation. Such questions cannot be resolved by any technical view of the matter. It all depends upon the circumstances of each case and a finding has to be given on this fact as in respect of any other fact. This supposition is supported by the explanation to Exception I, which provides; "Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
Therefore, while deciding this question of fact the normal practice of appreciation of evidence will have to be kept in view. The social and cultural background of the culprit; his family traditions, his education; his environments, his age, his own way of life and his relationship with the adversary, among other circumstances may have to be considered. Similarly the attending circumstances before the abuse and after the abuse will have to be taken note of."
For the reasons noted above, the appeal filed by the appellant is dismissed, and his conviction under Section 302, P.P.C, is maintained.
' We, however, find weight in the argument of learned counsel for the appellant that there were enough mitigating circumstances for awarding lesser penalty of imprisonment for life. In that, it is prosecution's own case that the appellant before having launched attack, had raised a lalkara that the deceased had abused his mother and sisters filthily. It is also on record that the ladies of the two houses had quarreled on the same day and the deceased had admonished the ladies of the house of the appellant as well. The sentence of death awarded to the appellant is, therefore, altered to imprisonment for life. The sentence of fine and the direction of payment of compensation to the heirs of the deceased are maintained. He shall be given benefit of the provisions of section 382-B, Cr.P.C. As well.
' Death sentence not confirmed. /Order accordingly.