SH. KHIZAR HAYAT, J.--- Umar son of Abdul Aziz caste Bhatti, aged 26/27 years, resident of Mauza Nanak Chand, Tehsil and District Bahawalnagar, appellant herein was tried alongwith his father, Abdul Aziz and a relative, Muhammad Hassan, for the murder of Anwar Ali, their co-villager, by the learned Sessions Judge, Bahawalnagar, who vide his judgment, dated 1-11-1987 acquitted Abdul Aziz and Muhammad Hassan, giving them benefit of doubt but convicted Umar only under section
302. P.P.C. And sentenced him to death and a fine of Rs.5,000 or in default thereof to undergo one year's R.I. The convict has appealed and the trial Court has submitted the proceedings of the trial, under section 374, Cr.P.C. For confirming death sentence to this Court. By this single judgment we propose to dispose of the appeal as well as the murder reference.
2. The occurrence had taken place at about 9-00 a.m. On 24-3-1987 in the revenue limits of village Nanak Chand, 16 Kilometres away from Police Station Takht Mahal, District Bahawalnagar. Noor Ahmad (P.W.6), father of the deceased Anwar Ali, reported the matter at Police Station Takht Mahal, the same day at about 10-30 a.m. Whereupon Muhammad Ramzan, Inspector/S.H.O. (P.W.8) recorded the F.I.R. Exh. P.G.
3. The prosecution story is as follows: Noor Ahmad, complainant (P.W.6) lived in Mauza Nanak Chand and used to cultivate land with his sons, Asghar and Barkat whereas his third son, Anwar Ali (deceased) used to work as labourer at Karachi. Umar (appellant) alongwith his parents and other female members resided near the house of the complainant. Muhammad Asghar, a son of the complainant, was married with Mst. Ramzan Bibi, a year before the occurrence. Some two months after Asghar's marriage, Umar (appellant) allegedly developed illicit relations with Mst. Ramzan Bibi, which culminated in her divorce by her husband, Asghar. Anwar Ali (deceased) returned from Karachi about a month before the occurrence and started cultivation with his father and brother.
Two days prior to the occurrence, Abdul Aziz father of the applicant complained to Noor Ahmad, complainant, that his sons, Asghar and Anwar Ali (deceased) while working in fields had made indecent gestures to ladies of his family. The complainant after making inquiries from his sons, assured them of their innocence and the matter was apparently settled. At the fateful time, the complainant, Noor Ahmad, alongwith his sons, Anwar Ali (deceased) and Barkat Ali, and his grandson, Ashraf (P.V.7) were busy in cutting grass in their field, when Anwar Ali (deceased) at about 9-00 a.m. Left for his house for taking breakfast. He had covered some distance towards the house when the P.Ws. Heard shrieks of the deceased and rushed in that direction and saw Hassan, accused (since acquitted) taking Anwar Ali (deceased) in his grips while Umar (appellant) was inflicting dagger blows on his chest and shoulder, and Abdul Aziz, accused (since acquitted) armed with gun stood at a distance of 1 acre from there raising Lalkara that the deceased be taught a lesson for having insulted their womenfolk. The witnesses tried to intervene but the accused had threatened them with life and succeeded in escaping from the spot. Anwar Ali (deceased) succumbed to his injuries on the spot. Leaving Ashraf and Barkat Ali P.Ws. Near the dead body, Noor Ahmad went to the Police Station Takht Mahal and lodged F.I.R. Exh. P.G. As stated earlier.
4. Muhammad Ramzan, Inspector/S.H.O. (P.W.8) after recording the F.I.R. Exh. P.G., visited the spot.
He prepared inquest report, Exh. P.J. And sent the dead body to the mortuary for post-mortem examination under police escort. He secured blood-stained earth from the place of occurrence under memo. Exh. P.F. And recorded the statements of the P.Ws. He arrested the appellant on 27-3- 1987, who on the next day got recovered blood-stained clothes, Shalwar (P.6) shirt (P.7) etc. Belonging to him (appellant) at his pointation from his house. They were seized under memo.
Exh.P.E. The appellant then got recovered blood--stained dagger, P.10, concealed in a box in his residential room which was secured vide memo. Exh. P.F. The recoveries were attested by Atta Muhammad, P.W., besides the Investigating Officer.
5. Dr. Captain Abdul Majid (P.W.4) conducted the post-mortem examination on the dead body of Anwar Ali (deceased) and found the following injuries on it:-- (1)One stab wound 7 c.m. x 4 c.m. Pericardial cavity deep on the front of left side of the chest about 5 c.m. Below the left nipple. The direction was oblique. The shirt and Bunyan over the wound were cut and blood--stained and the underlying subcateneous tissues, muscles, nerves and blood vessels were cut and exposed. The underlying bone (4th rib) was fractured.
(2)An incised wound 5 c.m. x 2-1/2 c.m. x 1-1/2 c.m. On the top of the right shoulder joint. Direction is horizontal. The shirt over the wound cut and blood-stained.
(3)An incised wound 3 c.m. x 1-1/2 c.m. x I c.m. On the outer part of right upper arm about 6 c.m.
Below injury No.2. Direction is oblique. The shirt over the wound was cut and blood-stained.
The 4cause of death, in the opinion -of the doctor, was injury to the vital organs (heart), haemorrhage and shock as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by a sharp-pointed weapon. Death was stated to be instantaneous and time between death and post-mortem examination was said to be 18 to 24 hours.
6. At the trial the prosecution examined 9 witnesses in all and mainly relied on the ocular account and the motive told by Noor Ahmad (P.W.6) and Muhammad Ashraf (P.W.7), besides-the evidence of incriminating recoveries and the medical evidence. The appellant when examined under section 342, Cr.P.C. Denied the allegations and raised the plea of self-defence in the following words in reply to question No.13:-- "The real facts are that at the time of occurrence, I was going through the fields with a Parchee (sickle type weapon for cleaning sugarcane), when I heard shrieks of my sister and saw that deceased was forcibly making her lie on the ground for committing forcible adultery, when I lost temper and under grave and sudden provocation and in order to save the honour of my sister, I inflicted injuries with that Parchee on the person of the deceased at the stock of Bhoosa, where he was holding my sister and as a result of these injuries, he expired. This occurrence was not witnessed by anyone, and on the same day I myself went to the police station alongwith the alleged crime weapon and narrated the true facts but the police authorities, in collusion with the complainant party has given this new turn to the story and implicated me and my relatives in this case. They have implicated me in this case on the basis of suspicion of my illicit relations with Ramzan Bibi and they had divorced her:"
He himself appeared under section 340(2), Cr.P.C. And reiterated his plea on oath. Abdul Aziz and Hassan, co-accused denied their presence and participation. Learned trial Court believing the prosecution case qua Umar (appellant) convicted and sentenced him as indicated above, and acquitted others by way of abundant caution as Abdul Aziz standing at sufficient distance simply raised Lalkara but not used his gun, while Hassan was unarmed and was attributed minor role of gripping, the deceased. It may be mentioned that there is no appeal or revision against their acquittal.
7. Learned counsel appearing on behalf of the appellant argued that the eye-witnesses are closely related to the deceased and as such their testimony could not be relied upon without independent corroboration, which is badly wanting in this case. He further submitted that the presence of the eye-witnesses at the time of occurrence is highly doubtful inasmuch as they contradicted each other as to the place where they claimed to be present i.e. According to Noor Ahmad (P.W.6) they were cutting grass in Killa No.3 whereas Muhammad Ashraf (P.W.7) stated that they were present in Kill No.1. Lie next argued that the P.Ws. Did not physically intervene to save the deceased, which is also suggestive of the fact that they were not present. Regarding the motive, he submitted that it supports the defence story more than the prosecution case. He further argued that in the absence of reliable ocular evidence, the plea raised by the appellant must have been accepted in preference to the prosecution story as the same appears to be reasonably probable. Lastly he submitted that even if the prosecution story is accepted on its face value, it does not call for exacting the extreme penalty of death from the appellant as the motive here involves honour of the womenfolk of the appellant, which constitutes a mitigating circumstance. Learned counsel for the State defends the conviction and sentence awarded by the learned trial Court.
8. This is a case of two versions; according to the prosecution the deceased was waylaid and killed by the accused when he was going from the fields to his house for taking breakfast whereas according to the appellant he found the deceased trying to forcibly commit rape with his sister, therefore, he killed him in self-defence and also under grave and sudden provocation. The question for determination, therefore, is which of the two versions is true? It may be noted that there is no dispute about the time and place of occurrence. The prosecution case is supported by Noor Ahmad, father of the deceased (P.W.6) and Muhammad Ashraf (P.W.7), nephew of the deceased, whereas the appellant has examined no witness whatsoever in support of his plea.
Admittedly the occurrence took place at about 9-00 a.m. In the morning at a distance of 3/4 acres from the village Abadi. It is usually the time when the villagers/farmers start working in their fields, so presence of P.Ws. To fields as claimed by them cannot be doubted. The defence has failed to demonstrate that Killa'No.3. Where the P.Ws. Were allegedly present was never cultivated by them.
Further the place of occurrence is quite close to the village Abadi, therefore, it must be a witnessed occurrence. There is of course a little discrepancy about the number of the said Killa but it would not shake the veracity of the P.Ws.; firstly because it would be expecting too much from a farmer that he must correctly remember number of each and every acre of land he tills. Secondly, in the site plan (Exh. PA.) the P.Ws. Are shown in Killa No.3, which is not owned by them rather it is on lease with them. Thirdly, both the witnesses have stated that they were working in a Killa, which was 3/4 acres away from the village Abadi. By saying so their presence is correctly fixed to be in Killa No.3 as its distance from Abadi is 3/4 Killas. Again the prosecution version that Anwar Ali (deceased) was going home for taking his breakfast when he was waylaid and attacked by the appellant, is substantiated by the fact that the blood was removed from the pathway leading to the Abadi, as is shown in the site plan (Exh. PA) as also stated by the Investigating Officer. Both these witnesses no doubt are closely related to the deceased but mere relationship is not enough to discard their evidence as we have found their testimony was convincing and confidence inspiring because that is straightforward and free from any exaggeration. They avoided to implicate any other relative of the appellant to' be the assailant of deceased although they could do it easily as there were three injuries on the person of the deceased and they could place a knife in the hand of Hassan accused as well if they at all wanted to exaggerate the matter. The fact that Hassan and Abdul Aziz have been acquitted by the learned trial Court does not in any manner damage the testimony of the P.Ws. Because said accused were acquitted by way of abundant caution and due to insignificant role attributed to them. We are satisfied that the learned trial Court has not violated any principle of appreciation of evidence by accepting the evidence of Noor Ahmad (P.W.6) and Muhammad Ashraf (P.W.7) against the appellant. We have further considered the defence version juxtaposing it with prosecution version and have come to the conclusion that it is not reasonably probable for various reasons; Firstly it is not believable that on a thoroughfare in broad daylight, when farmers started working in the fields the deceased would have laid his hands on an unwilling girl to commit rape with, her when there was no suitable cover available for the purpose. Secondly, appellant has not produced his sister (said to have been assaulted by the deceased for committing rape with her at the time of occurrence) either during the investigation or at the trial in support of his plea. He did not even give out her name. In the circumstances the defence plea raised by the appellant appears to us as afterthought and absolutely incorrect. For the above discussion we hold that the learned trial Court correctly discarded the defence plea and rightly accepting the prosecution case convicted the appellant under section 302, P.P.C.
9. Next question is about quantum of sentence. The prosecution has itself shown that a couple of days before the occurrence the deceased was complained to have made indecent gestures towards the ladies of the appellant. The complainant admitted that he made inquiries from his sons and assured the appellant's father about innocence of his sons. It means that complaint made against the deceased was not altogether phoney, so Umar who is a young man would have earnestly believed his ladies and thought of revenging their insult which, to our mind, does constitute extenuating circumstance. Consequently, while maintaining the conviction of the appellant under section 302, P.P.C. We would commute the sentence of death imposed on him and substitute in its place imprisonment for life. The sentence of fine and imprisonment awarded in default thereof is however maintained. With this modification in sentence the appeal is dismissed.
The reference for confirmation of death sentence is also rejected. The death sentence is not confirmed