AUSAF ALI KHAN, J.- This judgment shall dispose of Murder Reference No. 2 of 1992 and Criminal Appeal No.64 of 1992 as they arise out of the same judgment rendered by the learned Additional Sessions Judge, Bahawalpur on the 9th of July, 1992, whereby the appellant was found guilty of the offence under section 302 PPC and sentenced to death as qisas.
2. The occurrence took place in Basti Dhadian in revenue estate Bakhu Aarbi at a distance of about 12 kilometres from Police Station Sadar Ahmadpur East on the 4th of March, 1991 at about 10.00. a.m.
Siraj Din deceased left his Basti Nawan Khoh to fetch cigarette from nearby Basti Baqir Shah. The complainant also accompanied him as he wanted to visit another Basti Dhaban. The complainant accordingly stopped at the house of Shahru Faqir in Basti Dhaban and the deceased proceeded on. Suddenly the complainant heard shrieks of the deceased and rushed to the southern side of the Basti. He saw that Ghulam Rasool (acquitted accused) had caught hold of the deceased whereas the appellant thrust his knife in the left flank (Wakhi) while Muhammad Amin (acquitted co-accused) inflicted blow with Chhurri on the head of the deceased. Both the assailants fled away thereafter brandishing their weapons. The motive of the offence was that the appellant suspected the deceased having immoral liaison with his wife Mst. Shamim.
The complainant rushed to the Police Station where first information report Ex.PA, on basis of statement was recorded by Irfan Ullah, Inspector (P.W.8). The Inspector hurried to the spot and started investigation. He arrested the appellant on 6th of March, 1991 and on the 17th of March, 1991 blood stained knife P.4 as well as blood stained garments of the appellant that is Chadar P.I, shirt P.2 and Lakar P3 were recovered at the instance of the appellant in presence of Abdul Rashed (P.W3) and Muhammad Bakhsh (given up) who had duly attested the relevant recovery memos Ex.P.C. And Ex.P.D. Subsequently these articles were sent to the Chemical Examiner and Serologist who per reports respectively Ex.P.M. And P.N found them carrying blood which was of human origin.
The investigation was partly conducted by Ali Akbar, D.S.P. (C.W.1) and the only notable feature of his investigation was that he found Muhammad Amin nocent.
4. A few words about medical evidence. Dr. Mulazam Hussain (P.W.6) conducted autopsy on the dead body of Siraj Ahmad on the 4th of March, 1991 and found three incised wounds, out of which two were on fore-head and third injury ascribed to the appellant was:- "An incised penetrating wound about 3cmx 2cmx 8cm oblique in . , direction of the thigh just below the inguinal digament of left side."
The Doctor opined all the injuries to be anti-mortem, homicidal and sufficient to cause death in ordinary course of life.
5. The learned Additional Sessions Judge discredited the prosecution evidence, also disbelieving the eye-witnesses, namely, the complainant (P.W.2); Muhammad Ibrahim (P.W.4), nephew of the deceased and Abdul Rashed (P.W.5), first cousin of the deceased. He, therefore, acquitted both the co-accused but found the appellant guilty of Qati-i-and, treating his reply to question No.7 recorded under section 342 Cr.P.C, as confession. The answer of the appellant was:- "1 found my wife Mst. Shamim with Siraj Ahmad in objectionable position and lost my control. I caused the injuries to Siraj Ahmad with a pocket knife under the stress of sudden and grave provocation alone. The two co-accused Muhammad Ameen and Ghulam Rasool were not there at all."
6. After perusing the record and hearing the learned counsel for the parties, we are persuaded to agree with the learned trial Court that the prosecution had failed to prove its case and the ocular account was not worth reliance for reasons more than one.
7. The presence of the eye witnesses at the time of occurrence was unnatural. The deceased is stated to have left his Basti to purchase cigarette from Basti Baqir Shah although there was cigarette shop in his own Basti. All the eyewitnesses admitted that the appellant had dealt only one knife blow to the deceased and they were attracted after they heard alarm of the deceased. The alleged catching hold of the deceased by co-accused of the appellant and infliction of the solitary injury would not have consumed more than few seconds and the eye-witnesses could not possibly watch the assailants as they were only alerted after the deceased had raised hue and cry and that must have been done after he received the first injury. None of the eye-witnesses was present with the deceased at the time of attack. Muhammad Ibrahim and Abdul Rashed (P.Ws.) were respectively at a distance of 2 and 5 acres away when they heard the cries of the deceased and thereafter they rushed to the place of occurrence. The statements of the witnesses that they had seen solitary injury inflicted by the appellant, in circumstance of the case, do not inspire confidence and ring untrue. We also find their testimonies in direct conflict with the medical evidence. The Doctor is certain that injury No.3 ascribed to the appellant fell on the thigh of the deceased whereas the eye witnesses are unanimous that the appellant inflicted knife blow on below the left side of chest of the deceased (Wakhi). The learned Additional Sessions Judge, therefore, had rightly rejected the ocular account.
8. After the learned trial Court had disbelieved the prosecution version, he was left with no option but to accept the defence plea in toto. So was ruled recently by the Supreme Court in Muhammad Hanins case reported as 1992 SCM R 2047 reiterating its previous view on the subject in Faiz and another v. The State (1983 SCM R 76). While examining the effect of total rejection of prosecution evidence, the Supreme Court held:- "Where the prosecution evidence stands rejected in its totality, the statement of the accused has to be accepted in totality and without scrutiny."
Even if the prosecution evidence would have been of the category "partly reliable and partly not reliable", requiring corroboration in material particulars for the purpose of conviction, still we would have up-held the defence version as it carried possibility or probability of its correctness, It need not be gainsaid that when there are two versions; one set up by the prosecution and the other by the defence, the latter would be preferred if it has possibility or probability of correctness. We have to believe the appellant when he says that he found his wife Mst. Shamim with the deceased in objectionable posture. The complainant admitted in Ex.PA, that the appellant suspected the deceased carrying on with his wife and he took the matter to the respectables (Baradary) where he had warned the deceased not to visit his Basti in future.
9. We have no reason to disbelieve Ghulam Yasin appearing in defence of the appellant that after the occurrence the appellant came to him with knife in his had and his clothes besmeared with the blood and informing him that he had murdered the deceased after he had seen him with his wife in objectionable position. The witness is not only Lambardar and Councillor of the locality but also Sardar of Aarbi tribe to which the appellant and complainant party belong. Further the deceased was the son of father's sister of the said witness. He, therefore, was not supposed to favour the appellant in preference to complainant party who was closely related to him. The defence version, in the circumstances, has to be believed.
10. Now question arises as to what offence the appellant had committed by doing away with the deceased under grave and sudden provocation after he had seen him in objectionable posture with his wife. Here the learned trial Court grossly erred in holding that the said plea amounted to confession entailing punishable with death as qisas under section 302 PPC. The punishment of death as qisas could only be awarded if proof of Qati-i-and liable to qisas as envisaged in section 304 PPC was available. The provision of law reads:- "Proof of Qati-i-and liable to qisas shall in any of the following forms, namely:-
(a) the accused makes before a court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984).
(2) .... "
Admittedly the evidence in this case was not processed through Tazkiva-ul- Shahood. The defence plea did not amount to "voluntary and true confession of the commission of the offence". While the appellant was confronted with incriminating circumstances appearing against him during the trial, as required under section 342 Cr.P.C., he had only rendered his version of the incident with design to lesson the gravity of the offence. The appellant in circumstance of the case could not be punished with death as qisas. The learned counsel for the appellant has rightly canvassed that the case squarely fell under clause (c) of section 302 PPC which reads:- "Whoever commits qatl-i-and shall, subject to the provisions of this Chapter be
(a) ....
(b) ....
(c) punished with imprisonment of either description for a term which may extend to twenty i.e years, where according to the Injunctions of Islam the punishment of qisas is not applicable.
11. The deceased was not Maasoom-ud-dam as he was found engaged in indecent act with the wife of the appellant which was violative of Injunctions of Quran and Sunnah. The appellant in circumstance of the case has to be punished under clause (c) of section 302 PPC. As regards quantum of sentence, the learned counsel for the appellant referred us to couple of decisions, one of which is of this Court Re: Mst. Bashiran v. The State (1994 P.Cr.L.J. 908), where the appellant giving single blow to the deceased with kitchen knife under grave and sudden provocation was punished to sentence already undergone which was two years and two months. In the case The State v.
Muhammad Hanif and 5 others (1992 SCM R 2047) the Supreme Court upheld the sentence of 10 years under section 302 (c) PPC. In that case the accused had caused the death of the deceased under the state of grave and sudden provocation when the deceased had disgraced the wife of the accused.
12. In view of reasons afore-mentioned we partly accept the appeal and modify the impugned judgment and reduce the conviction and sentence to 7 years R.I. Under section 302 (c) PPC. The benefit under section 382-B Cr.P.C, shall also be admissible to the appellant. The death sentence is no confirmed.