The present appeal is directed against the judgment, dated 26-8-1986, by the learned Sessions Judge, Sargodha, whereby the appellant was convicted under section 304, Part 1, P.P.C. And sentenced to undergo R.I. For four years and to pay a fine of Rs.10,000, or in default thereof to undergo R.I. For further 2 years. It was further directed that the fine, if recovered, shall be paid as compensation to the heirs of the deceased.
2. Brief facts of the present case are that Muhammad Akram, deceased was sick on the day of occurrence. He, alongwith Muhammad Yar, complainant and Muhammad Nawaz, P.W. Went to Mitha Lak for his medicine. At 3-00 p.m. They started back and when they reached near the Dera of Anwar Shah, accused in the area of Chak No.32/NB Anwar Shah, Chanpir Shah accused armed with guns and Sikandar Shah accused armed with a Pahora had seen them, upon which Chanpir Shah accused raised a Lalkara and exhorted Anwar Shah and Sikandar Shah that they should not spare Muhammad Akram, upon which they ran after him. Anwar Shah threatened Muhammad Yar and Muhammad Nawaz, P.Ws. That if they stepped forward, they would be killed. At a distance of 1-1/2 Killas Sikandar Shah accused overtook Muhammad Akram and dealt a Pahora blow on his head upon which he fell down. Then Sikandar Shah and Anwar Shah continued injuring him. Meanwhile Chanpir Shah continued firing in order to harass them. Muhammad Akram died at the spot due to the injuries. Then the accused persons forcibly took Muhammad Yar and Muhammad Nawaz P.Ws.
At their Dera and confined them there. At about 7-30 p.m. Yousaf, P.W. Came there and on his request the accused persons released them. The occurrence was also witnessed by Bakhsh son of Ahmad, P.W.
3. Anwar Shah accused, etc. Had suspicion that Muhammad Akram, deceased had illicit relations with Mst. Shehnaz, daughter of their brother Sher Shah. After the release Muhammad Yar started for the police station to make the report. On the way S.I. Shafqat Ullah met him at the Railway Crossing Gillwala at 8-30 p.m. He made statement, Exh. P.C. Before him. S.I. Shafqat Ullah sent the said statement to the police station for the registration of the case. Thereafter, the police reached at the spot at 9-00 p.m. After covering a distance of about three miles. The Investigating Officer found the dead body of Akram lying at the spot and prepared the inquest report, Exh. P.H. And injury statement, Exh. P.J. In respect of the same and sent the dead body for the post-mortem examination through Allah Ditta F.C. He recorded statements of the P.Ws. Under section 161, Cr.P.C.
He inspected the spot on the following morning and recovered from there blood-stained earth. He took the same into possession, vide memo. Exh. P.E. After making it into a sealed parcel. On the same day Allah Ditta, F.C. Produced before him blood-stained last worn clothes of the deceased and he took the same into possession, vide memo. Exh. PA. He recorded the statements of the recovery witnesses under section 161, Cr.P.C. He had shown the spot to the Patwari. On 19-3-1985, he proceeded to Lahore to join a departmental course and handed over the investigation to Inspector Zahoor-ud-Din. On 26-11-1985, he put notes with red ink on the site plans, Exhs.P.D. And P.D./1.
4. Zahoor-ud-Din, Inspector P.W.10 partly investigated this case. He arrested Anwar Shah and Sikandar Shah accused on 29-3-1985. On 3-4-1985 Sikandar Shah accused while in his custody got recovered blood-stained Pahora, P.4 from his residential Kotha at his Dera. He took the same into possession, vide memo. Exh. P.F., after making it into a sealed parcel, in the presence of Muhammad Nawaz and Muhammad Sher, P.Ws. On 5-4-1985 Anwar Shah accused got recovered gun, P.5 alongwith ten live cartridges P.7/1-10 from a box lying in his residential Kotha at his Dera. He took the same into possession, vide memo. Exh. P.G. He handed over the parcel containing Pahora intact to Nazar Hussain, M.H.C.
5. Ch. Sher Muhammad D.S.P. C.W.2, also investigated this case. He ordered the S.H.O. To place Chanpir Shah accused in column No.2 as according to his investigation he was found innocent. Mr. Hamid Ullah. Inspector, C.W.1 in March, 1986 also investigated this case. He correctly recorded the statements of Muhammad Yar, complainant on 20-3-1986 and 6-3-1986 respectively of which Exhs. D.A. And D.B. Are the correct copies. He also found Chanpir Shah accused as innocent. In his opinion the deceased was found present near the house of Anwar Shah accused for meeting Mst.
Shehnaz, his niece alongwith Muhammad Ali and when he was present in the garden he was given blows by Sikandar Shah accused and Muhammad Shah with Pahora.
6. The prosecution had examined 11 witnesses to support its case. Allah Ditta, F.C. P.W.1 escorted and guarded the dead body of the deceased till the post-mortem examination on 18-3-1985.
Thereafter, he produced its last-worn clothes before the Investigating Officer and attested memo.
Exh. PA. Sardar Khan, F.C. P.W.2 delivered two sealed parcels of this case to the office of the Chemical Examiner, Lahore, which were given to him by M.H.C. Intact.
7. Dr. Muhammad Khalid Qureshi, P.W.3 on 18-3-1985 at 12-00 noon conducted the post-mortem examination on the dead body of Muhammad Akram deceased and found the following injuries on it.
(1)A contused swelling 8" x 6" on right shoulder external to neck with 6 blackish spots 1/2" x 2" contusion.
(2)12 contusions 1/2" x 1-1/2" blackish in colour with multiple contusions on upper half of chest on both sides of mid-line extending upto shoulder and whole upper part of chest was swollen.
(3) Contused swelling 4" x 4" on back of neck.
(4)Contusion 1" x 1" on front of left testical.
(5)Lacerated wound 1.3" x 0.7" on left side of skull 1-1/2" above left ear.
(6)Lacerated wound 2" x 3/4" on occiput on mid-line.
(7)Lacerated wound 1/2" x 1/2" on right side of skull near upper of right ear 1/3" behind ear with contusion 1" x 1" on right ear.
(8)A contused swelling 4" x 3" on left cheek.
(9)Abrasion 1" x 1/3" on back of right wrist joint.
(10) Two abrasions on back of left hand.
(11) Contusion 4" x 3" on front of abdomen on left side.
On dissection there was no fracture of skull bones. Blood was not collected below skull. Above cerebrum congested blood (fluid) collected around medulla and cera bellum. Left kidney was ruptured/teared and left side of abdomen contained lot of blood. All the other organs were healthy.
Bladder almost empty. Stomach contained little digested food. Small intestines and large intestines contained faeces matter. In his opinion, the death was occurred due to injury No.1 l by blunt weapon and ante-mortem causing haemorrhage and shock, which was sufficient to cause death in ordinary course of nature. The time between injuries and death was immediate and that between death and post---mortem examination was within 24 hours. Exh. P.B. Is the correct carbon copy of his post-mortem examination report.
Nazar Hussain, M.H.C. P.W.4 recorded formal F.I.R. Exh.P.C./1 on the basis of complaint, Exh. P.C. On 17- 3-1985. He handed over two sealed parcels of this case intact to F.C. Sardar Khan on 5-4-1985.
Muhammad Sharif, Patwari P.W.5 correctly prepared site plans, Exh. P.D. And P.D./1 of the place of occurrence to a scale of 40 Karams to an inch. Muhammad Yar P.W.6 and Muhammad Nawaz, P.W.7 gave the eye-witness account of the occurrence. Muhammad Nawaz has stated that Sikander Shah, accused got recovered blood--stained Pahora, P.4 from the eastern Kotha of his Dera, while Anwar Shah accused got recovered gun P.5 and the cartridges from a box lying in the western Kotha of his Dera and he attested memos. Exhs. P.F. And P.E. Respectively. Muhammad Yousaf, P.W.8 stated that he went to the Dera of the accused and found Muhammad Yar and Muhammad Nawaz, P.Ws. Detained there. He requested the accused to release them and they did so and he saw the dead body of Muhammad Akram lying at a distance of 1-1/2 Killas from there.
Muhammad Ashraf, P.W.9 identified the dead body before the doctor at the time of post---mortem examination. Zahoor-ud-Din, Inspector, P.W.10 S.I. Shafqat Ullah Khan, P.W.11, Mr. Hamid Ullah, P.W.1 and Ch. Sher Muhammad, D.S.P., C.W.? Investigated this case a summary of their evidence has been given above.
8. The Serologist found earth recovered from the spot and Pahora recovered at the instance of Sikandar Shah accused to be stained with human blood.
9. The accused persons while examined under section 342, Cr.P.C. Denied the allegations of the prosecution and Sikandar Shah accused stated as under:-- "On the day of occurrence I, alongwith my younger brother Muhammad Shah were coming from our cattle shed to our residential Dera and passed from the Kinno garden m which wheat crop had been sown. At that time I was holding a hatchet and my brother Muhammad Shah was holding a Pahora. We saw Muhammad Akram in an objectionable position in the said field in that garden with Mst. Shehnaz who is my cousin and was a grown up unmarred girl al that time. Muhammad Ali, carpenter, his friend was guarding them. Under grave and sudden provocation I and my younger brother Muhammad Shah gave injuries to the deceased. I had given injuries with the wrong side of the hatchet. Anwar Hussain Shah and Chanpir Shah accused were not present there.
Muhammad Ali and Mst. Shehnaz ran from the spot and thus escaped unhurt. None of the witnesses saw this occurrence. W e arc poor landless Syeds and the complainant party who are Zamindars of the Ilaqa have made out the above false case against us. We have shifted from our Dera near Chaukera to the present place, where the occurrence took place, because of the misconduct of Muhammad Akram, deceased who would not desist in following Mst. Shehnaz.
10. To support the present appeal, the learned counsel for the appellant submitted that the learned trial Court has given very well and cogent reasons for not believing the version of the prosecution.
In this respect, further pointed out, that the learned trial Court after appraising the prosecution evidence had come to the conclusion that the so=called eye-witnesses i.e. P.W.6, Muhammad Yar and P.W.7, Muhammad Nawaz had not accompanied the deceased at the time of the occurrence as claimed by them, that the said P.Ws. Had been forcibly taken to their Dera by the accused, and that they were ultimately rescued by Muhammad Yousaf, P.W.8, was totally false. Further submitted that the C.W.2 Ch. Slier Muhammad, D.S.P. Had deposed to the effect that the acquitted co- accused of the appellant were innocent, and that the deceased was carrying on illicit relationship with Mst. Shehnaz, the cousin of the appellant, and that as a result of the said illicit relationship, the accused party including the appellant had to leave their earlier place of residence and shifted to the Dera near which the present occurrence took place. Further submitted that the learned trial Court while placing reliance on the statement of the appellant under section 342, Cr.P.C., convicted him under section 304, Part 1, P.P.C. Only.
Therefore, in view of the contentions, stated above, argued that under the said circumstances, and in keeping with the principle of safe administration of criminal justice, his plea of grave and sudden provocation having been accepted by the learned trial Court, the appellant was entitled to the benefit thus arising, and that he should have been acquitted of the charge entirely. However, in the alternative, argued that under the peculiar circumstances of the case, arising from grave and sudden provocation as duly held by the learned trial Court, it shall meet with the ends of justice, if the appellant's sentence was reduced to one already undergone, as he has already suffered imprisonment of about two years.
11. On the other hand, the learned counsel for the State supported the impugned judgment and argued that the learned trial Court had already dealt with the appellant with great leniency as he had been sentenced to only four years' R.I. And a fine of Rs.10,000 or in default thereof to two years'
R.I. Under the facts and circumstances of the. Case as the statement of the appellant under section 342, Cr.P.C. Had been accepted in toto and prosecution evidence not relied upon for having failed to establish the charge. Further submitted that the sentence in question should be maintained to discourage the people from taking the law into their own hands.
12. After having heard the learned counsel for the appellant, and the State at length, and after having perused the record of the case with their assistance, the Court is of the view that as the conviction of the appellant is solely based on his statement under section 342, Cr.P.C., whereby he had admitted to have killed the deceased under grave and sudden provocation, and as in the instant case, the appellant and his acquitted co-accused had been forced to change their place of residence because of the illicit relationship of the deceased with Mst. Shehnaz, therefore, under such mitigating circumstances it shall meet with the ends of justice if while maintaining the conviction of the appellant, his sentence is hereby reduced to the period already undergone by him and the fine imposed is set aside. Therefore, the present criminal appeal is disposed of accordingly.
13. Here it shall be pertinent to record that the present criminal appeal was heard and decided on 30-3-1991 and it was announced in the open Court that the appeal was allowed and the appellant acquitted, but at the time of the writing of the judgment, the Court realised that as the plea of grave and sudden provocation was contended on behalf of the appellant and consequently the learned counsel appearing on his behalf had further contended for his sentence to be reduced as E result thereof, therefore, acquittal was not called for in the instant case Resultantly, the case was ordered to be listed for today (29-4-1991) for rehearing Therefore, after bringing the said fact to the notice of the learned counsel for the parties, and after affording them an opportunity to address