SARDAR MUHAMMAD DOGAR, J.- Muhammad Yasin aged 25 years was tried by the Additional Sessions Judge, Okara, for having murdered Muhammad Aslam on 16-5-88 at 5-00 p.m. In the house of the latter, in Chak No. 33, at a distance of 15 k.m. From Police Station Baseerpur, District Okara.
Vide judgment dated 7-10-89, he was convicted under Section 302 PPC and sentenced to death plus to pay a fine of Rs. 10,000/- in default whereof to undergo R.I. For 4 years. He was also directed to pay a sum of Rs. 10000/- as compensation to the heirs of the deceased, in default whereof to undergo R.I. For 6 months.
2. The appeal filed by the convict, the reference made by learned trial Judge for confirmation of death sentence and the revision petition filed by the complainant for enhancement of the amount of compensation are being disposed of together.
3. FIR Ex. PC was recorded by Ghulam Farid, Insp./S.H.O PW10 at the Police Station at 7-15 p.m. On 16- 5-88 on the Statement of Allah Ditta PW5.
According to FIR Muhammad Aslam deceased was taking bath at the water- pump installed in his house. Yasin appellant entered the house armed with a hatchet by scaling over the wall, and raised a lalkara that he will not be spared. Simultaneously he inflicted a blow with hatchet on the left side of his back. The complainant, his sister Mst. Jehangira and Bhabi Mst. Sughran wife of Muhammad Aslam raised Haal Bu. Whereupon Sattar and Faiz Ahmad also came there. Aslam ran towards the Chaputra (platform). Yasin followed him and inflicted another injury on the head. He fell down unconscious. Even when the witnesses were trying to rescue him, Yasin appellant hurled, more blows on him. The accused was caught at the spot along with the weapon of offence.
4. Motive for the occurrence was that Muhammad Aslam had abducted Mst. Sughran sister of Yasin and had married her, and she was living with him in his house.
5. Ghulam Farid, SHO, after registration of case, went to the spot and despatched the dead body for post-mortem examination after preparing necessary papers and collected bloodstained earth from there vide memo Ex. PF.
The appellant on being produced before him was arrested by him. Bloodstained hatchet P.2 snatched from Yasin was also produced before him which was taken into possession vide memo Ex. PE. As Yasin was found injured, he prepared his injury statement Ex. PG and sent him for medical examination.
Challan was submitted to Court after completion of necessary investigation.
6. Statements of ten P.Ws, were recorded at the trial.
Dr. Iqbal Shamim who had performed autopsy on 17-5-88 appeared as PW1. He had noted following injuries on the body of Muhammad Aslam deceased:-
1. Incised wound 10 cm x 2 cm x brain deep on the top of head, cm to the left half midline. The underline bone (left parietal) was cut through and through. The direction of the wound was verticle.
2. Incised wound verticle 13 cm long on the left side of back in the upper part. The wound was 4 cm wide and muscle deep in the lower 6 cm and half cm wide and skin deep in the upper part.
There was 13 cm long cut through and through on the left parietal bone. Right parietal bone had linear fracture. Membranes of the brain were cut through and through. Death was opined to have occurred due to shock and haemorrhage resulting from injury No.1. Injury No. 1 was declared dangerous, while No. 2 was opined to be simple. Both the injuries were opined to have been caused by a sharp-edged weapon. Probable time between injuries and death was opined to be within 5 minutes while the duration between death and postmortem was opined to be within 24 hours.
7. Dr. Shahid Faruq PW8 who had medically examined Yasin appellant on 17-5-88 at 1-00 p.m. Had noted following injuries on his person:-
1. Swelling measuring 7 cm x 7 cm on the back of right forearm near the right elbow joint.
2. A bruise 10 cm x 10 cm on the right scapula at its upper half.
3. A bruise 32 cm x 2 cm oblique in shape on the back of the patient on both sides of back right and left at about middle of both scapula.
4. An oblique bruise 8 cm x 3 cm on the posterior lateral aspect of lower half of upper left arm.
5. Complain of pain over left wrist joint.
6. An abrasion 2 cm x 1 cm over the upper part of right knee joint.
During cross-examination the doctor stated that he had not mentioned the duration of the injuries in the medicolegal report Ex. PG. However, he stated that the injuries could have been caused within about 24 hours.
8. Ocular account was deposed to by Allah Ditta PW5, Rehmat Ali PW6 and Mst. Jehangira PW7.
Allah Ditta while repeating the facts, explained that the accused had given the blow with hatchet on the head of the deceased when he had turned back after reaching near the wall. During cross- examination he admitted that Faiz P.W. Was his maternal uncle and Mst. Jehangira PW was his real sister. He stated that she was living at Baseerpur. According to. Him the Police had also taken into possession the piece of soap with which the deceased was taking bath. He gave out that his brother had developed illicit relations with Mst. Sughra sister of the appellant after she had been married to Iqbal Bhatti and had abducted her from there and then married her after getting her marriage with Iqbal Bhatti dissolved through a civil suit. He stated that the appellant had not got registered any case of abduction. He denied the suggestion that he had not witnessed the occurrence. The suggestion that the appellant had come to their house on being sent by his mother to bring back Mst. Sughran as she wanted to meet her because of coming Eid, was denied by him. He also denied the suggestion that the deceased on being asked by the accused, had declined to send Mst. Sughran with him and had called him as 'Beghairat', saying that he had sold his sister. He further denied the suggestion that a quarrel arose between them on account of that, as a result of which Muhammad Aslam (deceased) started beating the accused, whereupon the accused picked up a hatchet and caused injuries to the deceased in self-defence and under grave and sudden provocation.
9. Rehmat Ali while appearing as PW6 corroborated the statement made by PW5. He also claimed to have witnessed the collection of bloodstained earth and hatchet P.2 by the Police on reaching the spot. He denied the suggestion that he had made an incorrect statement and given a concocted version of the occurrence. The suggestion that the deceased had acted in self-defence, was also denied by him.
10. Mst. Jehangiran sister of the deceased while appearing as PW7 corroborated the statement made by her brother Allah Ditta PW5. Like her brother Allah Ditta she also denied the suggestion that the appellant had come to take back his sister on the asking of his mother and that the deceased had quarrelled with him and caused him injuries upon which the accused had acted in self-defence and caused injuries to the deceased.
11. Malik Ghulam Farid, SHO who had registered the case, investigated the same and submitted the challan to Court after arresting the accused and on completion of necessary investigation, appeared as PW10 and gave the details, which have been noted in the earlier part of the judgment.
During cross-examination he stated that he had not noted any trail of blood from point No. 1 to point No. 2 nor had taken into possession any piece of soap. He stated that the hatchet had been produced before, him by the accused. He denied the suggestion, that he had investigated the case dishonestly and suppressed the real facts. The suggestion that the appellant had inflicted injuries to the deceased under grave and sudden provocation, & in self-defence, was denied by him. The statements of the remaining P.Ws, are more or less of a formal nature.
12. The appellant during his statement under Section 342 Cr.P.C, did not deny the fact that the deceased had abducted his sister and married her thereafter. While pleading that he had committed no offence, he stated as follows in answer to the question, why the PWs have deposed against you and why this case against you?'
"In fact the PWs have deposed falsely against me due to their relationship with the deceased and complainant party. In fact Mst. Sughran my sister was married to Iqbal Bhatti of Mauza Jumoo Washal. Aslam deceased developed illicit intimacy with her and subsequently abducted her and took her to village Bailghang. Then deceased got filed a suit for dissolution of marriage against Iqbal Bhatti which was decreed. Then deceased got married with Mst. Sughran. She was abducted from the house of her husband from Mauza Jumoo Washal, while I and my parents were residing in Niyanan. I had no grievance against the deceased, therefore, I did not get a case registered against the deceased and I never initiated legal proceedings against the deceased in this behalf rather matter was settled between the deceased and us. However, we have no visiting terms with each other. After one year of the abduction my mother fell seriously, ill. The occasion of Eid was also near. So my mother desired to meet her daughter Mst. Sughran. I went to the house of the deceased in order to bring my sister as desired by my mother but the deceased refused to do so.
He abused me and said that you are Baigharal. He attempted murderous assault upon me. I lifted the hatchet from the spot, which was lying in the courtyard and injured the deceased in grave and sudden provocation and in exercise of my right of private defence. I lost my self control. The prosecution has suppressed the real facts and concocted a false story on twisted facts. The PWs were not present at the spot."
He neither adduced any evidence in defence nor made statement on oath.
13. We have gone through the evidence and considered the contentions raised by learned counsel for the parlies.
The time, the place of occurrence and the infliction of injuries by the appellant to the deceased are not in dispute in this case. The fact that the appellant had been arrested by the Police from the spot also is not in dispute. The only question which needs adjudication is, whether the version put forth by the prosecution is based on truth, or the version put forth by the appellant was correct, nearer the truth and more probable?
14. Mst. Sughran who was living as wife of-the deceased in his house, was sister of the appellant.
She was married to Iqbal Bhatti. The deceased developed illicit relations with her and abducted her. Thereafter he married her after getting a decree of dissolution of marriage. The appellant during all this had not .Taken any action against the deceased either by getting a case of abduction registered against him or by playing an active role to see that his sister does not leave the house of Iqbal Bhatti, nor marries the deceased. In fact, Allah Ditta PW5 brother of the deceased declared during cross-examination that family of the accused had accepted a sum of Rs.10000/- from the deceased by way of compromise. In these circumstances the claim of the prosecution that the appellant had entered the house of the deceased armed with a hatchet and launched attack on him to avenge the abduction of his sister, does not appear to possess substance. On the other hand, the stance of the appellant that he had gone to the house of the deceased on the asking of his mother to bring back Mst. Sughran (his sister) as she wanted to meet her because of coming Eid.
15. The stance of the appellant that the deceased had quarrelled with him, addressed him as a 'Beghairat' and had started beating him, whereafter he had caused him injuries after picking up the hatchet from there, finds support from the fact that the appellant was found to have suffered six injuries on being medically examined on the following day at 1-00 p.m. The said injuries according to the doctor had been caused to him within 24 hours. Apart from the medical evidence the S. H. O. Who had arrested the appellant from the spot, had also found him bearing injuries. He had prepared his injury statement as well. In fact, it was he who had got the appellant medically examined.
16. The prosecution neither at the time ok registration of case nor at the trial explained as to how the appellant was found to have suffered so many injuries. The contention of learned counsel for the complainant before us that he might have been caused injuries by some persons even including the PWs after he had been caught at the spot, has not impressed us for the reason that those very witnesses while making statement at the trial did not advert to state that fact, in fact the put up the case in the Court without explaining or even mentioning that the appellant had suffered injuries during the occurrence in any manner. The failure of the prosecution to do so casts heavy shadows on their version. On the other hand it lends reasonable support to the version put forth by the appellant.
17. The prosecution also failed to bring anything on record to prove that the deceased was taking bath at the time he was attacked. Although the complainant stated that the SHO had taken the soap into possession which was being used by the deceased for taking bath, yet the SHO categorically denied that.
The defence version examined in juxta-position with the prosecution version, appears to be more probable and nearer the truth. The appeal filed by the appellant, is therefore, allowed, and his conviction and sentences under Section 302 PPC are set aside. He is, instead, held guilty for having committed offence under Section 304 Part-1 PPC, convicted thereunder and sentenced to undergo R.I. For 10 (ten) years plus to pay a fine of Rs. 10,000/- in default whereof to undergo R.I. For one year.
He shall be given benefit of the provisions of Section 382-B Cr.P.C, as well.
18. Since the convictions and sentences of the appellant under Section 302 PPC have been set aside, the question of enhancement of amount of compensation does not arise. The revision petition filed by the complainant is, therefore, dismissed.