The appellant Qurban A.I was tried by the First Additional Sessions Judge Nawabshah, on a charge under section 307, P. P. C. And on being found guilty was by a judgment dated 15-11-1973 convicted of the said offence and sentenced to R. I for four years and a fine of Rs. 500(in default 6 months R.I.).
He has filed the present appeal through Mr. Muhammad Bux Dumrah, Advocate, who has appeared for him. The State vas represented before me by Mr. Muhammad Ramzan Kureshi, Advocate.
2. Briefly stated the facts of the prosecution case are that on 16-7-1972 at about 7-30 a.m. Injured Zahid Hussain came to the house of the appellant situated at Gharibabad, Nawabshah, and demanded Articles consisting of crockery, cots and beddings which had been borrowed by the appellant from the injured Zahid Hussain about a week before the happening of this incident for being utilised at the time of marriage of appellant Qurban A.I with Mst. Sughran. It is then stated that the appellant went inside the house rid brought a hatchet with which he caused an incised wound on the right wrist of injured Zahid Hussain. Immediately thereafter the appellant went inside is house, and caused an injury with the same hatchet to Mst. Sughran his wife, on the occipital region. The injured Zahid Hussain fell down in front of the house of the appellant and in the meantime prosecution witnesses Shah Nawaz and Hadi Bux who are also residing nearby and who had seen his incident came up. Thereafter, prosecution witness Altaf Hussain and several other people collected at the place where Zahid Hussain was lying in an injured condition. Altaf Hussain went and informed complainant Haji Muhammad Khan who is an uncle of injured Zahid.
Muhammad Khan came to the scene and carried Zahid Hussain in a tonga to the Civil Hospital at Nawabshah where Dr. Muhammad Saeed examined him. The other injured --Mst. Sughran was also brought to the Civil Hospital at almost the same time and she too was examined by the same Medical Officer.
Haji Muhammad Khan proceeded to Town Police Station, Nawabshah which is stated to be at a distance of about 5 furlongs from the scene of occurrence and lodged the report at 9-45 a.m. This report was recorded by S. H. O. Noon Hussain who thereafter visited the scene of occurrence in presence of mashirs A.I Nawaz and Muhammad Mithal. The Police Officer found blood marks outside the house of the appellant and also inside a room in the same house. The appellant was not available and could be arrested only on the following day and at the same time of his arrest he was wearing blood-stained clothes on his person which were secured by the Police Officer in presence of mashirs Nasrullahand Qurban A.I. The appellant also produced a blood-stained hatchet which was lying behind the door of his house and the sane was secured by the Investigating Officer in presence of the same mashirs. On completion of investigation the appellant was sent up to stand his trial which has resulted in his conviction and consequent sentence.
3. At the trial the prosecution examined injured Zahid Hussain as well as Mst. Sughran. Eye- witnesses Shah Nawaz and Hadi Bux as also the com--plainant Haji Muhammad Khan and Altaf Hussain were examined by the prosecution. 'Two mashirs namely, A.I Nawaz and Nooruddin were examin--ed in order to establish the circumstances in regard to the scene of occurrence as well as the incriminating recoveries from the appellant. The other witness examined was S. H. O. Noor Hussain while the evidence of Dr. Muhammad Saeed was brought on the record of Sessions Court under section 509, Cr. P. C.
4. While the appellant examined no defence witness in his defence, in his statement before the Committal Court and the Court of Sessions he set up a case for mitigating of the offence by pleading that he had caused injuries to Zahid Hussain and Mst. Sughran because he had found Zahid Hussain embracing Mst. Sughran in his house. In order to better understand the version of the appellant it will be of benefit to reproduce the following passage appearing in his statement before the Court of Sessions :--- ---On the play of incident Zahid Hussain came to my house as he was visiting my house being my relative, at that time my wife Mst. Sughran was sitting in the room anal my mother was an the kitchen. I was in the latrine. Zahid Hussain went to my wife in the room and forcibly embraced her and cut indecent joke with her. I pro--tested on coming out from latrine and saw Zahid Hussain trying to embrace my wife. Zahid Hussain instead of feeling ashamed on my protest he abused me and picked up a danda and actually tried to assault me. I in self-defence picked up a hatchet lying there and caused hatchet blows to Zahid Hussain. Meanwhile my wife intervened to save Zahid Hussain and during the intervention received hatchet blow on her head. I had not intentionally caused the hatchet blow to my wife, but it was by accident. I had good relations with my wife, After inflicting of the injuries injured Zahid ran out side and fell down in the street. I tried to lodge a report at the police station about this affair but the same was not recorded. Complainant Mohd. Khan had opposed this marriage with Mst. Sughran and had threatened me that he would take revenge: Complainant Mohd. Khan bars grudge against me and my parents and he had fabricated this false case against me.---
5. The learned Additional Sessions Judge came to the conclusion that injuries to Zahid Hussain and Mst. Sughran were inflicted by the appellant and or consideration of the circumstances the learned Additional Sessions Judge disbelieved the defence set up by the appellant to the effect that he had seen Zahid Hussain embracing Mst. Sughran.
6. On a reading of the evidence in this case together with the statement that the appellant made in the trial Court, I there could be little doubt that Zahid Hussain and Mst. Sughran received injuries at the hands of the appellant. The fact of Zahid Hussain, having received the injury at the hands of appellant is established by the evidence of Zahid Hussain and the eye-witnesses Shah Nawaz and Hadi Bux. Besides these witnesses, com--plainant Haji Muhammad Khan and Altaf Hussain have also substantially corroborated the prosecution story. The recovery of blood-stained clothes and hatchet from or at the instance of the appellant lend further support to the case of the prosecution.
7. The only question that deserves consideration in this case is whether the appellant committed this offence under strain of grave and sudden pro--vocation on account of his having seen Zahid Hussain embracing his wife Mst. Sughran. In such regard the learned Advocate for the appellant has strongly relied on the evidence of Mst. Sughran. This witness who is the wife of the appellant had stated in her examination in chief that while she was sitting in the house at about 7 a.m. The appellant inflicted a hatchet injury on her and thereafter ran away from the house. When cross- examined at the instance of the appellant she went on to state that injured Zahid Hussain had come to her house when the appellant had gone to latrine and at that time she shook hands with Zahid Hussain who tried to embrace her. She went on to state further that Zahid Hussain on seeing the appellant abused him and picked up a dandy to assault him. It seems that Mst. Muradian, the mother of appellant who had been examined in the Committal Court had also supported the appellant in his defence in the Committal Court so that she was not examined in the Sessions Court. The learned Additional Sessions Judge was of the view that Mst. Sughran had tried to oblige the accused by making admissions in his favour for the reason that she was the wife of the accused appellant. In my view such criticism of the evidence of Mst. Sughran was not only correct but completely justified in the circumstances of this case. First of all it cannot be overlooked that the time of the incident was about 7-30 a. m. In the month of July when the male members of the family would normally be, present in the house. Admittedly Mst. Muradian, the mother of the appellant and the appellant himself were present at that time in the house. The evidence of S. H. O.
Noor Hussain and mashir A.I Nawaz clearly discloses that some blood was found outside the house of the appellant and some more inside the room where Mst. Sughran received the injury. The witnesses were cross-examined and a suggestion was made to them that a trail of blood was found from the room in the house of the appellant to the place outside hip house where Zahid Hussain was found lying injured and to such suggestion the witnesses replied in the negative. If Zahid Hussain had gone inside the house of the appellant and had received injuries while in the house; normally a trial or at least some drops of blood should have been found as between the room in the house and the place outside the house where Zahid Hussain was lying and absence of blood at such intervening apace is of tale-tell significance. Such circums--tances clearly show that Zahid Hussain received an injury outside the house of the appellant and Mst. Sughran received the injury inside the house. There is a further circumstance of abscondence of the accused/appellant after causing injuries to the two injured in this case. In normal circums--tances people in the Muffasil look upon causing of murder for reason of grave and sudden provocation as an act of bravado if not honour, and they rarely abscond after commission of offence for reason of grave and sudden provocation and very often they themselves go to the Police Station together with the weapon of offence to surrender before the Police Authorities. The circums--tance of abscondence is in my view not meaningless in this case.
The learned Advocate for the appellant has attempted to give an explanation in regard to blood having been found outside the house of the appellant by stating that injured Zahid Hussain may have started running from inside the house after holding his arm tightly so that drops of blood may not have fallen. Alternatively he has contended that the appellant may have chased injured Zahid Hussain up to the road and caused him the injury. To say the least such explanation is not at all supported by the evidence and is belied by the established circumstances of this case.
The evidence of eye-witnesses Shah Nawaz and Hadi Bux has been attacked by the learned Advocate for the appellant only on the ground that both these witnesses are small Zamidars and were for such reason under the influence of complainant Haji Muhammad Khan who is a Supervising Tapedar. In my view the criticism is not well founded because there is nothing to indicate that Shah Nawaz or Hadi Bux had any animus against the appellant or were under the influence of Haji Muhammad Khan.
8. The last question that had engaged my attention is of sentence. The case set up by Zahid Husiain in regard to his going to the house of the appellant is that he had gone to collect the articles viz. Crockery, cots and beddings, which the appellant had borrowed from him about a week before the incident for use at the marriage of the appellant with Mst. Sughran. On such point of articles having been lent by Zahid Hussain to the appellant, there is no evidence in support of the bare word of Zahid Hussain. The evidence discloses that Zahid Hussain is himself a student aged 15 years and for such reason it is impossible to think that Zahid Hussain owned such articles so as to lend the same to the appellant. On the other hand Zahid Hussain had not disclosed if the articles belonged to any one other than him--self. It would thus seem that story in regard to lending of crockery and cots etc. By Zahid Hussain to tit; appellant is not reliable. What is more that eye- witnesses Hadi Bux and Shah Nawaz had had stated that Zahid Hussain went to the house of the appellant but the latter rebuked him on account of his frequent visits to his hour because the appellant suspected Zahid Hussain to be on terms of illicit intimacy with Mst. Sughran. It would thus seem that the motive for the assault, as is stated by Zahid Hussain, is dis--proved and there is good ground to assume that appellant suspected Zahid Hussain to be on terms of intimacy with his wife Mst. Sughran. I may also state that the age of Mst. Sughran as well as Zahid Hussain is 15 years. In such circumstances it seems to me that although the appellant had not been able to make out a case of grave and sudden provocation, the appellant did have a good reason to suspect that the frequent visits of Zahid Hussain to is house were for the purposes of carrying on a clandestine liaison with Mst. Sughran, the wife of the appellant. An element of provocation therefore, does prevail the transaction. I am of the view that the reason given by Zahid Hussain in regard to his visiting the house of the appellant is untrue. Under these circumstances I of the view that the sentence in this case is severe. I am further of the view that since only one injury has been caused by the appellant to each of the two injured, though he was armed with a hatchet and could have inflicted more injuries, he should properly have been convicted under section 326, P. P. C. And not under section 307, P. P. C.
9. In the circumstances I alter the conviction of the appellant from one under section 307, P. P. C. To one under section 326, P. P. C. And reduce the sentence to imprisonment imposed on the appellant to R. I for two years. The sentence of fine of Rs: 500 and imprisonment of six months in default of payment of fine is however maintained.