' This judgment shall also deal with and dispose of Cr. R. No,112 of 1992 for the enhancement of the sentence of Asghar Ali and Yaseen appellants, and Criminal Revision No,217 of 1992, challenging the acquittal of Channan and Muhammad Iqbal alias Bala, the acquitted co-accused, both brought by Nadir Ali complainant.
2. Asghar Ali and Yaseen appellants alongwith Channan and Muhammad Igbal acquitted co- accused were tried by the learned Additional Sessions Judge, Kasur, for committing the murder of Sabir Ali in furtherance of their common intention on 12-11-1989 at about Asarwela near the bus stand in. Basti Qadirabad, a suburb of Kasur Town. On the completion of the trial, where the two appellants were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs,10,000 each or in default to further undergo three years' R.I. Each, their two co-accused mentioned above were acquitted on benefit of doubt, vide judgment, dated 19-11-1991. Aggrieved by these findings, where the appellants have come up in appeal, Nadir Ali complainant has filed two revisions.
3. The prosecution story, as gleaning out from the evidence led by it, was that a few years prior to the occurrence, Sabir Ali (deceased) had abducted Mst. Saidi, the sister of Asghar Ali and Yaseen appellants. She was later divorced by him and he married Mst. Anwer Bibi. He, however, migrated from the house of his parents at Basti Qadirabad about two months prior to the occurrence and had settled in a locality at Lahore alongwith his wife Mst. Anwer Bibi. A day prior to the day of occurrence, he alongwith his wife had come to visit the house of his parents at Basti Qadirabad and on the following day i,e, 12-11-1989 at about Asarwela he planned to go back to his house at Lahore. He accompanied by his wife Mst. Anwer Bibi and his father Nadir Ali, besides his brother-in- law Allah Ditta and one Muhammad Sharif, left the house of his parents and went to the bus stand in Basti Qadirabad in order to catch a bus for going to his house at Lahore. When he accompanied by his companions reached near the bus stand, they were suddenly accosted by Asghar Ali and Yaseen appellants, who were armed with daggers, accompanied by Channan acquitted accused, who was armed with a pistol and a dagger. Opening the attack, Yaseen appellant thrusted his dagger in the chest of Sabir Ali (deceased) followed by Asghar Ali, who gave him dagger blow on his flank. Channan acquitted accused first fired in the air and then gave a dagger blow on his abdomen. He tried to run away but he was overpowered by the assailants, who caused him a few more injuries with their respective weapons. Nadir Ali complainant and other P.Ws. Tried to rescue him but could not render any help to him due to fear of the assailants. Sabir Ali died on the spot as a result of the injuries caused to him. Leaving his dead body at the place of occurrence under the care of his companions, Nadir Ali complainant left for Police Station Saddar, Kasur, where he lodged the report relating the abovementioned facts therein and also implicating Muhammad Iqbal acquitted accused for conspiracy.
4. S.I. Ilyas Hussain, after the registration of the case, took up its investigation. He went to the spot, carried out necessary formalities and despatched the dead body to the mortuary for post-mortem examination. He arrested all the accused on 25-11-1989 and effected recovery of blood-stained Chhuris from Asghar Ali appellant and Channan acquitted accused on 30-11-1989 and a pistol from Yaseen appellant a day earlier. On the completion of the investigation, he submitted the challan and sent up the appellants and their acquitted co-accused to the Court of Session.
5. On the commencement of trial, the learned Additional Sessions Judge charged the appellants and their acquitted co-accused for the murder of Sabir Ali in furtherance of their common intention. They pleaded not guilty to the charge, and the prosecution led evidence against them by producing as many as 14 witnesses. Prominent amongst them are Dr. Zia-ur-Rehman Khalid (P.W.6), who gave the details of 23 injuries on the dead body of Sabir Ali and proved his death, vide post-mortem report (Exh.PD).
6. Muhammad Sharif (P.W.11) was one of the eye-witnesses but he did not support the prosecution and after having been declared hostile, was cross-examined by the learned Prosecutor without gaining anything for the prosecution. Allah Ditta (P.W.12) and Nadir Ali complainant (P.W.13), however, gave the eye-witness account in line with the prosecution case.
7. S.I. Ilyas Hussain (P.W.14) gave the details of the investigation.
8. The rest of the prosecution witnesses were either formal or were otherwise not so important to be taken care of.
9. The appellants and their acquitted co-accused, in their respective statements recorded under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. Asghar Ali appellant, however, admitting his participation in the occurrence, gave his own version, while his remaining three co-accused resorted to total denial. He stated that Sabir Ali (deceased) had abducted his sister Mst. Saidi 6-7 years ago but she was brought back by her parents with the intervention of elders of the locality. According to him, the parties later lived peacefully in the same locality for a number of years and on the day of occurrence when at about Aserwela he went out of his house to have a cup of tea at the hotel of Muhammad Ashraf situated near the bus stand of the locality at a short distance from his house, he happened to see Sabir Ali (deceased) talking to his sister Mst. Said in a lighter mood. Probably they were planning to board the bus for some destination to repeat their misdeed. He stated that seeing all this he lost his self-control and picking up a Chhuri from the hotel of Muhammad Ashraf, under grave and sudden provocation, attacked Sabir Ali (deceased) and caused him a number of injuries. He alleged that he also wanted to kill his sister but she ran away.
10. On the conclusion of the trial, the appellants were convicted and sentenced in the manner aforesaid, while their two accused were acquitted on benefits of doubt by the learned trial Judge by the judgment now under challenge. Aggrieved by these findings, where the appellants came up in appeal, the complainant has filed two criminal revisions, which all are being disposed of the single judgment.
11. It is argued on behalf of the appellants that the place of occurrence was quite near to their house while it was sufficiently away from the house of the complainant and there was no good reason for the deceased to have come to the place of occurrence and chat with the appellants' sister with whom he had admittedly an old liaison which had already heeped sufficient disgrace on their family because of her elopement with him and subsequent restoration. According to the learned counsel, it is in evidence that a bus stand was located near the house of the complainant and there was no explanation as to why the deceased did not try to board a bus from there and came down to the place of occurrence near the house of the appellants after covering 10-12 acres.
He submits that Mst. Saidi was never married to the deceased and after her elopement she was restored to her parents and the story of her divorce and deceased having subsequently married with Mst. Anwar Bibi was concocted. In the opinion of the learned counsel, it was a case of grave and sudden provocation and Asghar Ali who admitted his participation in the occurrence, at the most, be convicted under section 304, Part I or Part II, P.P.C. And his brother Yaseen appellant is entitled to clean acquittal.
12. On the contrary, the learned counsel representing the State argues that the incident of abduction of appellants' sister by the deceased had taken place 5 or 6 years prior to the occurrence and the deceased, who had migrated to Lahore, was leading a peaceful life. According to him, the appellants did not forget the incident of elopement of their sister and nursing grudge against the deceased, who was done to death by the appellants under a well planned scheme when they found him near the bus stand of the locality in which the parents of the deceased also resided. In his opinion, the appellants were rightly convicted under section 302/34, P.P.C. And sentenced accordingly.
13. To me, the defence version, appears to be more plausible. It is an admitted position that the deceased had abducted the sister of the appellants and either she was restored to her parents with the intervention of the elders or, as alleged by the prosecution, she went back to the house of her parents after her divorce by the deceased as she had allegedly married her after abduction. In any case, during the days of occurrence she was residing in the house of her parents or with her brothers, the appellants herein. The record indicates that their house is situated at a sufficient distance from the house of deceased's parents and a bus stand was available near the house of the latter. If it was so, then there was no occasion for the deceased to have gone to the bus stand located near the house of the appellants for boarding a bus from there for some destination.
Obviously he went there in connection with his amorous relation with the sister of the appellants with whom he had old liaison. His mere presence in the vicinity of their house by itself was sufficient to provoke them and if he, as alleged by Asghar Ali appellant, was chatting with their sister, it certainly aggravated the situation and they killed him under grave and sudden provocation.
However, out of the two appellants, only Asghar Ali admitted his participation in the occurrence and since Yaseen appellant resorted to total denial and there is no independent evidence against the latter, he is entitled to acquittal on benefit of doubt.
14. In view of the above, where the appeal of Yaseen appellant is accepted in toto, his conviction and sentence are set aside and he is acquitted and should C be set at liberty immediately if no more required in any other case, the conviction of Muhammad Asghar appellant under section 302, P.P.C. Is converted into the one under section 304, Part I, P.P.C. And he is sentenced to seven years' R.I. And a fine of Rs,5,000 or in default to further undergo one year R.I. He shall, however, be entitled to the benefits of section 382-B, Cr.P.C. As a result, both the revision petitions filed by Nadir Ali complainant are dismissed.