' Lal Bakhsh alias Lalu son of Kamal alongwith his acquitted co-accused Ghulam Yasin was tried by the learned Additional Sessions Judge, Rahimyar Khan for the murder of Azim Bakhsh and murderous assault on Mst. Manzooran (P.W.7) and was convicted and sentenced under section 304, Part I, P.P.C. To undergo 10 years' R.I. And a fine of Rs,15,000 and under section 308, P.P.C. To undergo 4 years' R.I. In default of payment of fine the appellant was directed to suffer further R.I. For 2 years. Both the sentences were directed to run concurrently. The appellant was also awarded the benefit of section 382-B, Cr.P.C. He preferred this appeal to assail his conviction and sentence.
2. The prosecution case in brief as unfolded in the F.I.R. Exh.PK recorded on 27-11-1989 by Najam-ud- Din Inspector/S.H.O. (P.W.10) at Police Station Rukanpur on the statement of P.W.6 Rahim Bakhsh is to the effect that he was a cultivator and they were four brothers. Deceased Azim Bakhsh was his elder brother, whereas Karim Bakhsh and Abdul Sattar were his younger brothers. They lived together. There was suspicion that the deceased had illicit relations with P.W.7 Manzooran Mai and on the preceding night of registration of the case, deceased Azim Bakhsh left his house to have a round of cotton crop. At about 2-30 a.m. He heard a fire-shot whereupon he alongwith his younger brothers Karim Bakhsh and Abdul Sattar (not examined) ran towards their cotton fields under the impression that some thieves might have come, but when they reached their land situated in Killa No,2 of Rectangle No,27/10, they met Allah Wasaya P.W. (given up) and Mahboob Ahmad (P.W.8) who told them that they were also having a round of their cotton crop and heard fire and witnessed the appellant Lal Bakhsh alias Lalu running from the spot while armed with gun and they had a torch and in its light they had identified the appellant. They tried to apprehend him, who pointed his gun towards them and threatened them that who would come near, he would be shot and succeeded in running away. Azim Baldish deceased succumbed to his injuries at the spot. Mst.
Manzooran Mai (P.W.7) was present near the deceased, who was also injured. Mst. Manzooran Mai (P.W.7) was still alive. Leaving behind Mahboob Ahmad (P.W.8) etc. To guard the dead body, the complainant P.W.6 Rahim Bakhsh reached the police station. He further alleged that the deceased was done to death as well as P.W.7 Mst. Manzooran Mai was injured deceitfully.
3. P.W.10 Qazi Najam-ud-Din S.H.O. Recorded the F.I.R. Exh. PK, reached the spot, collected blood- stained earth vide memo Exh.PB, took into possession empty P.2 vide memo. Exh.PC and secured blood-stained Danda P.1 vide memo. Exh.PD. He had sealed the above articles, prepared injury statement Exh.PA/1 of P.W.7 Mst. Manzooran Mai and injury statement Exh.PH of the deceased and Inquest Report Exh.PJ. He arrested the appellant on 8-12-1989, who made a disclosure on 12-12-1989 and led to the recovery of an unlicensed gun P.13 from his residential Kodha, which he secured vide memo Exh.PF, and made it into a sealed parcel. After completion of the investigation he challaned the accused.
4. The appellant was charged under sections 302/34 and 307/34, P.P.C. Along with his co-accused, to which they denied and claimed trial.
5. The prosecution examined 11 P.Ws. In all to substantiate its case. P.W.6 Rahim Bakhsh complainant stated the motive behind the occurrence. P.W.7 Mst. Manzooran Mai stated the ocular account. P.W.8 Mahboob Ahmad stated that he had witnessed the appellant running from the spot alongwith a gun. P.W.4 Ahmad Yar stated recovery aspect of the case.
6. P.W.1 Dr. Aalia Rehman on 27-11-1989 at 4-30 p.m. Medically examined Mst. Manzooran Mai and found the following injuries on her person:---
(1) One fire-arm injury of about 4 c.m. In diameter from the centre of forehead extended upto both eyes. There is no burning, blackening or tattooing around the wound margins. The light reception of the right eye is negative and that of the left eye is positive. No exit wound, some hard pellets are palpable. This injury was kept by me under observation and X-ray of skull AP and lateral views was advised. I also referred her to eye specialist for expert opinion about the nature of the injury.
(2) No external marks of violence seen on the right tempromendibular joint. She opined that injury No,1 was caused by fire-arm within a period of about 18 hours. Exh.PA is a carbon copy of her medico-legal report.
' P.W.5 Dr. Muhammad Saddique on 27-11-1989 at 3-45 p.m. Conducted autopsy on the dead body of the deceased Azim Bakhsh and found the following injuries on his person:---
(1) Multiple pellet wound in the left eye, eye ball collapsed and pushed into skull.
(2) Multiple pellet wound on the left side of face, left cheek, left forehead and left parietal bone.
Margins blackened. Some pellets removed and sent to police.
(3) A swelling 4 c.m. x 4 c.m. On right parietal bone in posterior part.
(4) A fracture 5 c.m. Curved of right parietal bone in posterior part corresponding to injury No,3.
(5) Fracture at base of skull 4 c.m. x 3 c.m. Depressed posterior to left eye. Multiple through and through pellet wounds in this part. Some pellets from brain matter removed and handed over to police.
' In the opinion of the Doctor all the injuries were ante-mortem and injuries Nos.1, 2, 3, 4 and 5 of scalp, skull, meninges and brain were sufficient to cause death in due course of life by causing hemorrhage, pressure on brain of fractured skull and blood in cranial cavity. Injuries Nos.1 and 2 were caused by fire-arm while injury No,3 was caused by blunt weapon. Probable time that elapsed between injuries and death was within minutes while between death and post-mortem examination was within 20 hours.
7. The appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and also the recovery of gun P.13 and stated that the P.Ws. Had a grudge against him and due to their relationship with the deceased they had falsely deposed against him. In answer to the question "Do you want to say anything else?" he stated:- "I fired at the deceased Azim Bakhsh and Mst. Manzooran P.Ws. When they both were found by me lying together at the place of occurrence in a compromising position. I lost my self-control and fired at them out of sudden and grave provocation.
' He neither produced evidence in defence nor made statement on oath under section 340(2), Cr.P.C.
8. The learned trial Court after evaluating the evidence on record convicted and sentenced accordingly.
9. I have heard the learned counsel for the parties and have perused the record. It was vehemently contended by the learned counsel for the appellant that the appellant suspected that the deceased Azim Bakhsh and P.W.7 Mst. Manzooran had illicit relations and at the fateful time he witnessed them in a compromising position and under grave and sudden provocation fired a shot at the deceased and Mst. Manzooran (P.W.7), as she was sister's daughter of the appellant and was married to his nephew Khuda Bakhsh.
10. F.I.R. Exh.PK recorded on the statement of P.W.6 Rahim Bakhsh contains the motive behind the occurrence that deceased Azim Bakhsh was suspected to have illicit relations with Mst. Manzooran Mai (P.W.7). The appellant was arrested by Qazi Najamud Din, S.H.O. (P.W.10) and stated that he had seen the deceased with Mst. Manzooran Mai (P.W.7) in compromising position and under grave and sudden provocation had fired at the deceased and P.W.7 in consequence whereof Azim Bakhsh died on the receipt of injuries and P.W.7 Mst. Manzooran Mai was injured. The appellant also raised the plea of grave and sudden provocation in his statement recorded under section 342, Cr.P.C.
11. It was two versions case, one that placed by the prosecution and the other raised by the appellant, and placing both the versions in juxtaposition, it has been established on record by the circumstances appearing in the case and the evidence on record that Mst. Manzooran Mai (P.W.7) was witnessed by the appellant in compromising position with deceased Azim Bakhsh and being maternal-uncle of P.W.7 under grave and sudden provocation had fired at the deceased and P.W.7 and the deceased and P.W.7 were injured. P.W.7 was also found injured by the complainant P.W.6 Rahim Bakhsh at the spot. The doctor during post-mortem examination of the deceased had secured a wet underwear of the deceased and handed over the same to P.W.9 Abdul Jabbar Constable, who delivered the same to P.W.10 Qazi Najam-ud-Din Inspector/S.H.O. For sending it to the office of Chemical Examiner, but P.W.10 had not sent the same.
12. The appellant raised the plea of grave and sudden provocation from the very start i,e, the day he was arrested. P.W.7 Manzooran Mai was found lying injured near the dead body of the deceased at odd hour of the night. The A plea raised by the appellant is spelt out from the evidence on record and the circumstances appearing in the case. The appellant was rightly convicted. The learned counsel for the appellant has prayed for leniency in the matter of sentence.
13. The appellant has suffered in jail as undertrial and convict till today a period of 3 years and 8 months as calculated by the learned counsel for the parties. I am of the view that the period already undergone by the appellant in jail as undertrial and convict with a fine of Rs,10,000, in default whereof to suffer 6 months' R.I. Shall meet the ends of justic. The appellant is in jail, who shall be informed accordingly.
Sentence reduced.