' MUHAMMAD NAWAZ ABBASI, J.---This judgment shall dispose of Murder Reference No,90 of 1991, Cr1. Appeal No,292 of 1991 and Crl. Revision No,260 of 1991.
2. Ghulam Muhammad son of Muhammad Sultan aged 26 years and Muhammad Rafiq son of Muhammad Hussain aged 28 years appellants faced trial for the charge under section 302/34, P.P.C. For committing the murder of Muhammad Hayat before the learned Additional Sessions Judg; Mianwali who vide his judgment dated' 3-34991, convicted Muhammad Rafiq appellant under Section 302, P.P.C. And awarded him death sentence with a fine of Rs,10,000 and in default of payment of fine to undergo R.I. For one year. Ghulam Muhammad appellant was convicted under section 304, Part I, P.P.C. And was awarded sentence of five years' R.I. Plus fine of RS.5,000 and in default thereof to suffer further R.I. For six months with benefit of section 382-B, Cr.P.C.
3. Precisely the allegations against the appellants as contained in the complaint Exh.PB lodged by Muhammad Ameer recorded by Muhammad Ashraf, S.I. P.W.13 on the basis of which formal F.I.R.
Exh.PB/1 was recorded, are that in the night between 25/26-5-1986 at about 11-30 p.m. The complainant alongwith his son Muhammad Hayat deceased and his wife Mst. Bhag Bhari were sleeping in their house, when Muhammad Rafiq appellant came there and took Muhammad Hayat deceased with him saying that the deceased was called by Ghulam Muhammad appellant to help him at his wheat thrasher. About an hour later, the complainant and his wife on hearing the noise and cries from the house of Ghulam Muhammad rushed to his house and saw that Muhammad Rafiq and Ghulam Muhammad appellants armed with knives were causing injuries to Mst.
Manzooran, niece of Ghulam Muhammad appellant who on receiving injuries ran towards the house of Umar Hayat. The appellants raising Lalkara warned the complainant and Mst. Bhag Bhari, his wife, to take care of their son Muhammad Hayat, as they had avenged from him for his carrying illicit relations with Mst. Manzooran injured. Alam Sher, son of the complainant and Jan Muhammad P.Ws. Also attracted to the spot and witnessed the occurrence. The complainant and the P.Ws.
Found the dead body of Muhammad Hayat lying in an injured condition in the duns of sand at a distance of about four furlongs from the Abadi.
4. The motive for the occurrence as disclosed in the F.I.R. Is that the appellants suspected illicit intimacy of the deceased with Mst. Manzooran, niece of Ghulam Muhammad. A separate challan under section 307/34, P.P.C. For causing injuries to Mst. Manzooran Bibi was prepared against the appellants but later on the injured compromised with them.
5. Dr. Muhammad Ayub P.W.2 conducted post-mortem examination on the dead body of Muhammad Hayat deceased on 26-5-1986 at 3-15 p.m. And found the following injuries on his person:-
(1) A stab wound of 1-1/2 x 1/2 c.m. In mid axillary line on the left of chest 12 cm from the left ilk crest and 14 cm from the front midline.
(2) A stab wound 1-1/2 x 1/2 c.m. On the left back 12 cm from midlim and 8 cm from the angle of left scapula.
(3) A stab wound of 1-1/2 x 1/2 c.m. On the left back 5 cm below injur No,2.
(4) A stab wound 1-1/2 x 1 c.m. On the back, 4 c.m. Below injury No,3.
(5) A stab wound 1 x 1/2 c.m., 5 c.m. Below the left posterior axillary line.
(6) A stab wound x 1 c.m. On the front of chest left side, 6 cm from nipple and 3 c.m. From the midline.
(7) A stab wound 2 x 1/2 c.m. In epigestrium, 1-1/2 c.m. To the right of midline, 11 c.f.i. Above, umbilicus.
(8) A stab wound 1 c.m. x 1 c.m., 4 c.m. From the right nipple, 10 c:m. From the right of midline in front of chest.
(9) A stab wound 2 x 1 c.m. On the outer aspect of right arm 7 c.m. Above the right elbow joint.
(10)An incised wound of 1 x 1/2 c.m. On the back of right arm 13 c.m. From the elbow.
(11)An incised wound 2 x 1 c.m. On the front of left thigh, 7 c.m. From patella.
' In the opinion of the doctor death was caused due to cardiac temponate due to puncture of the heart as a result of the injuries.
6. Muhammad Ashraf S.I. P.W.13 after registration of the case proceeded to the place of occurrence and prepared injury statement Exh.P.I and inquest report Exh. PJ of Muhammad Hayat deceased and despatched the dead body for mortuary. He picked up blood-stained earth from the place of murder of Hayat and took the same into possession vide memo. Exh. PE. He also visited the place where Mst. Manzooran was injured and secured bloodstained earth vide memo. Exh. PF. He arrested the appellants on 1-6-1986. Ghulam Muhammad appellant led to the recovery of Chhuri P.5 from the verandah of the house which was taken into possession vide memo. Exh. PG and Muhammad Rafiq appellant got reccvered blood-stained knife P. 6 from the place near the house of Umar Hayat which was taken into possession vide memo Exh.PH. After completion of investigation the appellants were challaned to face the trial.
7. Muhammad Ameer P.W.7, father of the deceased who lodged complaint, has witnessed the occurrence of causing injuries by the appellants to Mst. Manzooran. Alam Sher P.W.12 son of the complainant had seen the deceased with two appellants going together about an hour before the occurrence. He on hearing the noise reached the house of Ghulam Muhammad and saw the appellants causing injuries to Mst. Manzooran. He corroborated the prosecution story disclosed in the F.I.R. And narrated by P.W.7 at the trial. Falak Sher P.W.8 and Muhammad Khan P.W.9 claimed to have seen the appellants causing injuries to the deceased at 12-30 mid-night near the duns of sand at a distance of about three furlongs from the Abadi. Ghulam Muhammad P.W. 11 witnessed the recovery of blood-stained Chhurri P.5 and knife P.6. Muhammad Ashraf S.I. P.W.13 investigated the case and challaned the appellants to face the trial. The reports of Chemical Examiner and the Serologist qua blood-stained earth and weapon of offence were made part of the record.
8. The appellants denied the prosecution allegations. Ghulam Muhammad in his statement under section 342, Cr.P.C. Gave the following answer to question No,9: "It is incorrect. I myself had gone to the police station after the occurrence because I found Manzooran and Muhammad Hayat deceased in paridelicto and caused injuries under grave and sudden provocation."
' Muhammad Rafiq appellant pleaded false implication due to enmity. The appellants, however, did not appear in the witness-box or produce evidence in their defence.
9. Lady Dr. Mubashra Anwar D.W.1, medically examined Mst. Manzooran, injured on 26-5-1986 and found the following injuries on her person:
(1) An incised wound 5-1/2 c.m. x 1/2 c.m. x 4 c.m. Paritonium was ruptured and the intestines were visible on the apigastrium right half of the abdomen.
(2) A laceration 1 c.m. x 1 c.m. x 1/4 c.m. On the right lower chest lower 1/3rd on the anterior aspect.
(3) A lacerated wound 2 x 1/4 c.m. Skin deep medial to injury No,2 on the right lower chest.
(4) A lacerated wound 1 x 1/2 c.m. Skin deep on the right outer quardrin of right chest.
(5) An incised wound 1/2 c.m. x 1 c.m. x 2 c.m. On the posterior aspect of right shoulder joint.
(6) An incised wound 3 c.m. x 1/2 c.m. x 1 c.m. On the back of chest upper 1/3rd on the left side.
(7) An incised wound 3-1/2 c.m. x 1/2 c.m. x 1-3/4 c.m. On the back 5 c.m. Lateral and below injury No,6.
' She on the basis of report of chemical examiner found the swabs stained with semen and expressed the opinion that rape was committed with the injured within the duration of 48 hours.
10. Learned counsel for the appellants contends that after convicting Ghulam Muhammad appellant on the basis of plea of grave and sudden provocation taken by him, there was no justification for the trial Court to convict Muhammad Rafiq appellant under section 302, P.P.C. He argued that claim of two sets of witnesses to have witnessed the occurrence of causing injuries to the deceased and Mst. Manzooran in the night of occurrence being not plausible, their evidence is not confidence inspiring. He forcefully argued that the occurrence is unwitnessed and the defence version being more befitting in the facts of the case, is proved beyond doubt.
11. Learned counsel appearing on behalf of the State as well as the complainant argued that P.Ws.8 and 9 furnished direct evidence of causing injuries by the appellants to the deceased at a distance of about four furlongs from the house of Ghulam Muhammad and Alam Sher P.W.12 saw the deceased in the company of the two appellants an hour before the occurrence going towards the side of place of occurrence, whereas Mst. Manzooran received injuries in the house of Ghulam Muhammad appellant, therefore, the defence plea of grave and sudden provocation taken by Ghulam Muhammad appellant does not carry any weight. It has been argued that the conviction of Muhammad Rafiq is not liable to be interfered with and the sentence awarded to Ghulam Muhammad be .Enhanced.
12. We have considered the arguments advanced by the learned counsel for both sides and perused the record with their assistance carefully.
13. The acquittal of Ghulam Muhammad from the charge under section 302, P.P.C. Has not been challenged by the State. However, the complainant has preferred a revision for enhancement of his sentence without challenging his conviction which was ordered to be heard alongwith appeal without its formal admission.
14. Before proceeding further we would like to first point out the legal infirmity in the judgment committed by the trial Court by accepting both the versions of case for the purpose of conviction under section 304, P.P.C. And also under section 302, P.P.C. Of the two appellants who jointly caused the death of deceased. The learned trial Court after accepting the defence plea of Ghulam Muhammad convicted him under section 304, Part I, P.P.C. But strangely enough he at the same time convicted Muhammad Rafiq appellant under section 302, P.P.C. Holding that the plea of grave and sudden provocation was not available to him for want of any relation with Mst. Manzooran. The trial Court in fact by believing and disbelieving both versions passed a self-contradictory judgment, both on facts and law. Ghulam Muhammad appellant, maternal-uncle of Mst.
Manzooran, whom he gave paternal love and was keeping her in his protection as his daughter, when found her enjoying the company of her paramour for clandestine purpose out of the house at mid-night, losing his self-control, caused a number of injuries to the deceased in heat of passion and killed him. If this version is once believed, what is left to look for yet another story to be believed. Both these versions mutually destructive to each other, cannot go side by side. The plea of grave and sudden provocation excluded all possibilities of any other story of participation of Muhammad Rafiq appellant in the occurrence.
15. There is no cavil to the proposition that section 34, P.P.C. Can be made applicable for the purpose of section 304, P.P.C. But it is not possible for the Court after fmding verdict of slaughter and not murder qua one accused on the basis of his plea of grave and sudden provocation by virtue of Exception 1 to section 300, P.P.C. To convict him under section 304, Part I, P.P.C. And at the same time to convict his co-accused under section 302, P.P.C. Believing the prosecution case qua him in the case of the nature in hand. Thus either defence version is to be accepted in toto with its effect or after rejecting it the prosecution case is to be judged on the basis of facts and evidence produced on record as a whole since trial Court believed defence version, we proceed accordingly.
16. This is correct that benefit of grave and sudden provocation by virtue of section 304, P.P.C.
Cannot be extended to a person who does not fall within the prohibitory degree and was stranger to the lady especially when the woman who indulged in immoral act was not in the custody of the accused, however, the question of provocation being purely psychological one cannot always apply consideration of abovesaid morality to such question. Consequently, when a man who is otherwise stranger to a woman, sees her in the arms of another and loses control over the situation would be entitled to get benefit of this exception in a particular society where social norms are observed strictly everywhere with no distinction.
17. The sole question for determination is as to whether version given by the prosecution is correct or the one put by the defence is truthful and how the liability of the two appellants is to be fixed.
18. The prosecution case is that Muhammad Hayat deceased was called from his house by Muhammad Rafique at 11 p.m. And was later murdered by the appellants near the duns of sand at the distance of about four furlongs from Abadi and thereafter Mst. Manzooran was injured by the appellants at her house. The deceased and Mst. Manzooran were injured for their carrying illicit liaison. The prosecution to prove charge under section 302/34, P.P.C. Placed reliance on the evidence of Falak Sher P.W.8, Muhammad Khan P.W.9 and Alam Sher P.W.12 coupled with evidence of motive and medical. Similarly, Muhammad Amir P.W.7 and Alain Sher P.W.12 furnished evidence for the charge under section 307/34, P.P.C. For causing injuries to Mst. Manzooran supported by the recovery of Chhuri P.5 and knife P.6 in addition to the motive and medical evidence.
19. The illicit intimacy of deceased with Mst. Manzooran is not disputed. The taking place of the occurrence at mid-night and receiving of injuries by Mst. Manzooran is also not denied.
Muhammad Ashraf S.I. P.W.13 during cross-examination admitted that during investigation of the case he recorded the statement of Mst. Manzooran which was to the following effect: `That she in accordance with promise with Hayat deceased had gone to him and Ghulam accused on seeing us together killed Muhammad Hayat and injured me."
' The vaginal swa bs of Mst. Manzooran were taken and sent to Chemical Exa...Liner for detection of semen and the result was positive. The Lady Doctor who examined Mst. Manzooran stated that she was subjected to rape within 48 hours.
20. Admittedly, there is no direct evidence of causing injuries by the appellants to the deceased Muhammad Hayat. Falak Sher P.W.8 and Muhammad Khan P.W.9 as per their evidence could not identify Hayat deceased as victim and came to know about his having been murdered at 7 a.m. In the morning. The evidence of these two P.Ws. With their presence near the place of occurrence even if is believed, shall not be enough evidence to Ex the liability and make basis for conviction.
The last seen evidence provided by Alam Sher P.W.12 is not confidence inspiring. He did not bother either to watch the appellants and deceased or to know the purpose of the deceased going with the appellants at that hours of the night. The P.Ws. Claimed their presence at the respective places in connection with thrashing of wheat but thrashing of what etc. Is normally finished before the mid-night and the explanation for the presence of P.Ws. In the area being not satisfactory does not appeal to mind. The prosecution story and the evidence produced being full of probabilities is not confidence inspiring to be believed. There was no occasion for the appellants to call the deceased from the house at midnight time without earlier chalking out a programme with the deceased for thrashing of wheat during that night. If the deceased was to be done away as stated, the appellants without bringing him to duns of sand, could safely do their job at the house of Ghulam Muhammad where Mst. Manzooran is stated to have been injured by the appellant, to avail the benefit of Exception 1 to section 300, P.P.C. Without involving any risk but it is strange that the deceased was done to death at a place about four furlongs away from the Abadi and Mst.
Manzooran was caused injuries in the house of Ghulam Muhammad. After giving a thoughtful consideration to the facts and evidence of the case, what appeals to mind, is that the deceased and Mst. Manzooran as is stated by P.W.13 were enjoying the company of each other at the selected time and place but Ghulam Muhammad appellant on coming to know about missing of Mst. Manzooran, his niece, traced them in a compromising position and under grave and sudden provocation caused number of injuries to Muhammad Hayat deceased but in the meanwhile, Mst.
Manzooran escaped from the spot and ran towards the house who was also caused injuries by Ghulam Muhammad appellant. The occurrence was not witnessed by anyone except Mst.
Manzooran who was not examined as a witness in the case as she entered into a compromise with Ghulam Muhammad appellant, her real maternal-uncle.
21. The defence plea of Ghulam Muhammad appellant while putting in juxtaposition with prosecution story appears to be truthful and confidence inspiring. Resultantly we set aside the conviction and sentence of Muhammad Rafiq appellant and acquit him of the charge by accepting his appeal. He hall be released forthwith if not required to be detained in any other case.
The murder reference is answered in the negative with dismissal of the appeal of Ghulam Muhammad appellant. His conviction and sentence is maintained with benefit of section 382-B, Cr.P.C. Criminal Revision 260 of 1991 fails and is dismissed.