' The appellants have assailed the judgment dated 31-10-1989 passed by the learned Additional Sessions Judge, Bahawalpur, whereby the appellants were convicted and sentenced under section 302/34, P.P.C. To undergo life imprisonment each and a fine of Rs,4,000 each, in default whereof to suffer one year R.I. Each. The appellants were also ordered to pay compensation under section 544-A, Cr.P.C. Of Rs,2,000 each to the heirs of the deceased, in default whereof to further undergo 6 months' R.I. Each. Connected Criminal Revision No,80 of 1980/BWP was also filed by Elahi Bakhsh complainant-petitioner for enhancement of sentence awarded to the appellants. As both the criminal appeal and the criminal revision arise out of the same judgment, these shall be disposed of by this judgment.
2. The appellants alongwith Muhammad Kabir alias Kabiri, co-accused were tried for the murder of Muhammad Irshad deceased, but co-accused Muhammad Kabir alias Kabiri absconded during the trial and his case was separated by the learned trial Court on 23-10-1989.
3. Briefly the prosecution case is that P.W.9 Elahi Bakhsh, father of the deceased lodged F.I.R. Exh. PH on 22-10-1987 at 3-00 p.m. At Police Station Hasilpur to the effect that he was a cultivator. Munawar Zaman alias Ameeri and Muhammad Kabir (absconded co-accused) sons of Siraj Din suspected the illicit relations of their widow mother Mst. Faizan with deceased Muhammad Irshad. Rehmat Ali appellant, brother of Mst. Faizan also suspected her illicit relations with deceased Muhammad Irshad. On 22-7-1987 at about 2-30 p.m. Muhammad Irshad deceased son of the complainant was sleeping near his house on a cot in the cluster of palm trees. The complainant was taking bath in a nearby watercourse, whereas P.W.8 Khan Muhammad son of the complainant, brother of the deceased was watering the cattle at the watercourse. The complainant witnessed that appellant Munawar Zaman and absconding co-accused Kabir armed with pistols .12 bore and Rehmat Ali appellant armed with a hatchet were coming from their house towards the cot of Muhammad Irshad. Munawar Zaman appellant after keeping the pistol on the chest of Muhammad Irshad fired, Rehmat Ali appellant inflicted hatchet blows on the neck of Muhammad Irshad one after the other, Kabir absconder co-accused kept standing with the pistol nearby. The complainant P.W.9, P.W.8 Khan Muhammad and P.W.7 Abdul Rehman who were present nearby witnessed the occurrence and raised hue and cry. P.Ws.7 and 8 tried to apprehend the accused, but they threatened that if they would come near, they would be finished. The accused while raising Lalkaras stated that they had taken revenge of their insult and escaped from the scene brandishing their pistols and hatchet. On hue and cry, the males and females of the Ilaqa reached. Muhammad Irshad succumbed to his injuries at the spot. Leaving behind P.Ws.7 and 8, P.W.9 reached police station and lodged F.I.R. Exh. PH which was recorded by S.H.O. P.W.13 Bashir Ahmad.
4. The appellants alongwith the acquitted co-accused were challaned and sent up for trial. Charge under section 302/34, P.P.C. Was framed against the accused to which they denied and claimed trial.
5. The prosecution examined 13 P.Ws. In all to substantiate its case. The motive behind the occurrence, as stated by P.W.9 complainant in the F.I.R. Exh.PH was that the accused suspected illicit relations of the deceased with Mst. Faizan, the mother of appellant Munawar Zaman, absconding co-accused Muhammad Kabir and sister of Rehmat Ali appellant. P.W.8 Khan Muhammad has stated before the trial Court that after the occurrence, the accused raised Lalkaras at the P.Ws. And threatened them with murder and the accused further told that they had avenged their dishonour and the P.Ws. Were not aware of dishonour of the accused. Munawar Zaman appellant and Muhammad Kabir (absconder co-accused) had stated that they had avenged the dishonour of their mother Mst. Faizan, whereas Rehmat Ali accused spoke about the dishonour of his sister Mst. Faizan. P.W.9 also stated before the trial Court that after causing injuries to the deceased, the accused told that they had avenged their dishonour and he was not aware of any previous illicit relations and came to know about it on the same day and at the same time.
6. The ocular account on record has been furnished by the statements of P.W.7 Abdul Rehman, P.W.8 Khan Muhammad and P.W.9 Elahi Bakhsh complainant. P.W.7 was having round of watercourse, P.W. 8 Khan Muhammad was watering, his cattle on the watercourse and P.W.9 was taking bath in the same watercourse. At about 2/2-30 p.m. When they witnessed appellants Munawar Zaman and Rehmat Ali armed with pistols .12 bore and a hatchet respectively, whereas absconding co-accused Kabir was armed with pistol, reached near the cot of the deceased.
Munawar Zaman appellant fired with his pistol on the chest of the deceased, whereas Rehmat Ali appellant inflicted hatchet blows upon the neck of the deceased and Kabir accused kept standing with the pistol in his hand near the cot. P.Ws. Further stated that the accused had avenged their dishonour. P.Ws. 8 and 9 are brother and father of the deceased, whereas P.W.7 is not related to the deceased.
7. P.W.10 Dr. Syed Mushtaq All conducted autopsy on the dead body of the Muhammad Irshad deceased on 23-7-1987 and found the following injuries on his person:--
(1) An incised wound 11 c.m. x 3 c.m. x 4 cm in the middle and right side of the neck. Anteriorly cutting the trachea oesophavos, common carotid artery, jugular weighing and other structures of the neck. Bleeding from the wound and clotted blood present.
(2) An incised wound 4 c.m. x 1 c.m. Anterior wound No,1 in the middle of the neck and continuous with wound No,l.
(3) An incised wound 3.5 c.m. x 1 c.m. Anterior and right side of the wound No,1 and continuous with wound No,1.
(4) A circular fire-arm wound 2.5 cm x 2.5 cm, oblique in direction going upward 4.5 cm below the left nipple. Wound continuous between the 6th and 7th ribs of the chest on left side through the left lung damaging the left ventricle of heart.
' Injuries on the ribs and cartridges and pleura already described. Larynx and trachea were cut by injuries Nos.1, 2 and 3. These injuries were caused by sharp-edged weapon which cut the vital structures of neck and caused excessive haemorrhage. Injury No,4 was caused by firearm, hurt the left lung and completely damaged the left lung and ventricle heart which was sufficient to cause death. The injuries were ante-mortem. The probable time between injuries and death was within few moments and between death and postmortem was within 24 hours. Exh. PJ is the correct carbon copy of postmortem report.
8. P.W.13 Bashir Ahmad, Inspector/S.H.O. On 22-7-1987 visited the spot, prepared injury statement of Muhammad Irshad deceased Exh. PK and Inquest Report Exh.PL. P.W.13 collected blood-stained earth vide memo Exh.PD and one empty cartridge P-15 from the spot vide memo. Exh.PE. All the memos. Were attested by P.W.6 Muhammad Akbar and P.W.7 Abdul Rehman.
9. The recovery aspect of the case has been furnished on record by the statements of P.W.6 Muhammad Akbar, P.W.7 Abdul Rehman and P.W.13 Bashir Ahmad, S.H.O. The appellants were arrested by the S.H.O. On 23-7-1987. Appellant Munawar Zaman on 26-7-1987 while in custody led to the recovery of pistol P.16 which was secured by P.W.13 vide memo. Exh. PF attested by P.W.6 Muhammad Akbar and P.W.7 Abdul Rehman. On the same day appellant Rehmat Ali while in custody also led to the recovery of hatchet P.17 which was secured by P.W.13 vide memo. Exh.PG attested by the same P.Ws. It is pertinent to mention here that in memo. Exh.PG P.17 was mentioned to be stained with blood, whereas P.Ws.6 and 7 have not stated before the Court that the same was stained with blood. Muhammad Kabir absconder accused was arrested by P.W.13 on 31-7-1987 and had led to the recovery of pistol P.13 and two live cartridges P.14/I-II vide memo. Exh. PC attested by P.W.5 Qari Mumtaz Hussain.
10. Reports of the Chemical Examiner Exhs. PO and PR and that of the Serologist Exhs.P.Q. And P.S. In respect of the blood-stained earth and hatchet P.17 are positive. Pistol P.16 secured at the instance of Munawar Zaman appellant alongwith the empty cartridge P.15 which was secured from the spot by P.W.13 vide memo. Exh.PE, was not sent to the Forensic Science Laboratory.
11. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and also recovery of incriminating articles and had stated that they had been falsely implicated due to enmity. According to them, the P.Ws. Were interested and related with the complainant, and they were also inimical with them. The occurrence was unwitnessed one and they had been implicated merely due to suspicion. The appellants neither produced evidence in defence nor made statements on oath as envisaged under section 340(2), Cr.P.C.
12. I have heard the learned counsel for the appellants, learned State counsel assisted by the learned counsel for the complainant and have perused the record.
13. P.W.9 Elahi Bakhsh had lodged F.I.R. Exh. PH and specifically stated that the appellants suspected that Mst. Faizan, mother of appellant Munawar Zaman and sister of appellant Rehmat Ali had illicit relations with the deceased. P.W.7 Abdul Rehman stated that after the occurrence the accused stated that they were taking revenge of their dishonour, whereas P.W.8 Khan Muhammad has stated that Munawar Zaman appellant and Muhammad Kabir acquitted co-accused stated they had avenged the dishonour of their mother Mst. Faizan, whereas Rehmat Ali spoke about the dishonour of his sister Mst. Faizan. The motive as stated by P.W.9 Elahi Bakhsh complainant in F.I.R.
Exh.PH as well as by P.Ws.7 and 8 was that the appellants alongwith their co-accused suspected illicit relations between the deceased and Mst. Faizan.
14. The eye-witness account on record has been furnished by the statements of P.W.7 Abdul Rehman, P.W.8 Khan Muhammad and P.W.9 Elahi Bakhsh complainant. P.W.8 is brother whereas P.W.9 is father of the deceased. P.W.9 in the F.I.R. Exh. PH stated that Munawar Zaman appellant had kept the pistol on the chest of deceased Muhammad Irshad and thereafter had fired the same, whereas before the trial Court he stated that Munawar Zaman appellant fired a pistol upon the chest of the deceased. P.W.8 stated that Munawar Zaman fired pistol on the chest of Muhammad Irshad deceased and PW.7 has stated that Munawar Zaman had fired with his pistol on the chest of the deceased. P.W.7 also stated that Rehmat Ali appellant inflicted 2/3 hatchet blows upon the neck of Muhammad Irshad deceased, whereas P.W.8 Khan Muhammad had mentioned the name of one Abdul Rehman accused instead of Rehmat Ali, who inflicted 3 hatchet blows on the right side of neck of the deceased.
15. P.W.10 Dr. Syed Mushtaq Ali had not noticed any burning or tatooing or scorching on the dead body of the deceased. P.W.7 Abdul Rehman also recovery witness of the weapon of offence i,e, hatchet at the instance of appellant Rehmat Ali, stated ocular account of the occurrence. P.W.8 also stated that he had witnessed the recovery of pistol P.16 at the instance of Munawar Zaman appellant. The recovery of pistol P.16 was effected at the instance of appellant Munawar Zaman on 26-7-1987, whereas hatchet P.17 was secured by the S.H.O on the same day. It is pertinent to mention here that the occurrence took place on 22-7-1987 and the recoveries of P.16 and P.17 were effected on 26-7-1993. P.W.7 Abdul Rehman is stated to be present on all occasions, which clearly shows that he had some special interest in the case. P.W.7 had not stated that hatchet P.17 was stained with blood when it was secured by the police. P.W.8 is brother of the deceased, whereas P.W.9 complainant is father of the deceased. P.W.7 seems to be an interested witness. The statements made by P.Ws.7, 8 and 9 cannot be relied upon unless corroborated by very strong independent evidence.
16. The appellants had not specifically raised the plea of grave and sudden provocation during their trial, but when they were arrested by the S.H.O., they had specifically stated that they had killed the deceased on grave and sudden provocation. No doubt the plea of grave and sudden provocation was not raised by the appellants specifically before the trial Court, i,e, in cross- examination of P.Ws., in their statements under section 342, Cr.P.C., and they also never cared to make statements on oath as envisaged under section 340(2), Cr.P.C.
17. Even if the plea of grave and sudden provocation is not raised specifically by the accused during their trial, the appellate Court can otherwise A take into consideration the said plea, if it appears to be there i,e, from the circumstances appearing in the case and the evidence on record.
Keeping in juxtaposition the case of the prosecution with that of the appellants, it has been brought on the record by the statements of P.Ws. Even that the appellants suspected that the deceased had illicit relations with Mst. Faizan, who is mother of appellant Munawar Zaman and sister of Rehmat Ali appellant. The appellants at the time of their arrest had also stated before the S.H.O that they suspected illicit relations between the deceased and Mst. Faizan and the deceased was done to death due to that grievance. No doubt the occurrence is alleged to have taken place at the very odd hours of the day in the month of July i,e, about 2-30 p.m. Day time, but on the other hand, it is also seen in the daily routine life that in the month of July, people usually keep inside the houses at such hours to save themselves from the scorching heat, but in the instant case it can be visualized from the circumstances appearing in the case and the evidence on record that Mst.
Faizan was not found by the appellants in the house and as they suspected illicit relations between the deceased and Mst. Faizan, naturally they would have thought that Mst. Faizan must be with the deceased at such odd hours. The appellants left the house and found the deceased lying on the cot and Mst. Faizan present nearby. The deceased was done to death under grave and sudden provocation by the appellants. The plea raised by the appellants is spelt out from the circumstances appearing in the case and the evidence on record.
18. Pursuant to the above discussion, I am of the considered view that the appellants had committed the murder of deceased Muhammad Irshad under grave and sudden provocation and they were liable to be sentenced under Exception 1 to section 300, P.P.C. And their case falls under section 304, Part 1/34, P.P.0 and not under section 302/34, P.P.C. Resultantly I alter their conviction and sentence from section 302 to section 304, Part 1/34, P.P.C. And considering the nature of the provocation, in my view, the period of sentence already undergone by the appellants in jail as undertrial and convicts i,e, 6 years shall meet the ends of justice. . However, I maintain the sentence of fine of Rs,4,000 to each of the appellants and in case of default of payment of fine, they shall suffer two months' R.I. Each.