' MUHAMM.AD MUNIR KHAN, J.---In the occurrence which took place on 23-5-1985 at 11-20 p.m. In front of house of Muhammad Nawaz situate in Chak No, 128/RB of Police Station Chak Jhumra, District Faisalabad, three persons namely, Shahbaz, Riaz Ahmad and Farooq Ahmad lost lives and two prosecution witnesses namely, Mst. Majidan (P.W. 9) and Rehmat Ali (P.W. 10) received serious injuries. On the basis of statement (Exh.PB) of Muhammad Nawaz (P.W. 8) recorded on 24-5-1985 at 7-30 a.m. At Pul-Sem-Nallah, Chak No, 129/RB, by Ghulam Abbas, S.I. (P.W.12) formal FIR Exh.PB/1 was registered on the same day at 8-30 by Munir Ahmad, Moharrir/Head Constable (P.W.2).
2. Ghafoor Ahmad and his father Faqir Muhammad were tried by the learned Additional Sessions Judge, Faisalabad who vide his judgment dated 1-10-1986 convicted and sentenced them as under:- ' Under section 302/34, P.P.C. Death and a fine of Rs,10,000 or in default of payment of fine one year R.I. To each, on three counts. They were also directed to pay Rs,10,000 each on each count as compensation to the legal heirs of the deceased persons or to suffer six months' R.I more, on each count.
' Under section 307/34, P.P.C. Seven years' R.I. And a fine of Rs,5,000 or in default of the payment of fine six months' R.I. To each, on two counts. They were also directed to pay Rs,5,000 each to the inured P.Ws. Or in default to suffer six months' R.I. Each, on each count.
3. During pendency of the appeal before the Lahore High Court, Lahore, Faqir Muhammad convict died. So, the appeal to his extent abated. The High Court, vide judgment dated 28-7-1990, while maintaining the conviction of Ghafoor Ahmad (appellant) on all counts has reduced the sentence of death to imprisonment for life on three counts and sentence of seven years' R.I. To three years'
R.I. On two counts, with the direction that all the sentences shall run concurrently. The fine awarded on all counts and sentence in default thereof was maintained. However, the order of the trial Court to the extent of payment of compensation on all the counts was set aside. The benefit of provisions of section 382-B, Cr.P.C. Was given to the appellant.
4. The parties are descendants of one grandfather namely, Sardar Muhammad. Shahbaz and Farooq Ahmad (deceased) are the grandsons and Riaz Ahmad (deceased) son of Sardar Muhammad. Farooq Ahmad is son of Rehmat Ali P.W. And Mst. Majidan P.W. Is the wife of Rehmat All P.W. Irshad Ahmad (not produced) is son of Rehmat Ali. Muhammad Nawaz P.W. Is also son of Rehmat Ali whereas Ghafoor Ahmad (appellant) and Faqir Muhammad are grandson and son respectively of Sardar Muhammad. Sardar Muhammad had three wives. Rehmat Ali P.W. Is from one wife; Riaz Ahmad (deceased) from the second wife; and Faqir Muhammad accused (since dead) from the third wife.
5. It is an admitted fact that three deceased had died and P.Ws. Rehmat Ali and Mst. Majidan had received injuries at the hands of the appellant and his father Faqir Muhammad. According to the prosecution it was a case of determined assault whereas Ghafoor Ahmad and his father (accused) claimed to have killed the three deceased and injured the P.Ws. In exercise of the right of self-defence and also on account of grave and sudden provocation. The prosecution case is that Sardar Muhammad died four years before the occurrence, leaving behind 17 acres of land.
There was a dispute between Rehmat Ali P.W. And Faqir Muhammad accused over the partition of the land. It so happened that on the fateful day Shagufta Parveen niece of Ghafoor appellant, summoned Irshad Ahmad to her house. They were sitting together on a cot in a room when Ghafoor appellant came there and bolted the chain of the door. In order to save his life, Irshad Ahmed broke open the door and ran away. Meanwhile, Ghafoor appellant and Faqir Muhammad accused reached there and on seeing the broken door, Ghafoor appellant took a hatchet and went to the house of the complaintant where he abused Mst. Nasreen, the brother's wife of the complainant. At the evening time a Panchayat was convened but it ended without amicable settlement. On the same night, at about 11-30 p.m., the three deceased, two injured P.Ws., Muhammad All and Zulfiqar were present in the house of the complainant when all of a sudden, Ghafoor appellant carrying a dagger in his hands and Faqir Muhammad accused armed with hatchet came there, launched attack and caused injuries to Shahbaz, Riaz Ahmad, Farooq Ahmad, Rehmat Ali and Mst. Majidan. Riaz Ahmad, Farooq Ahmad and Shahbaz succumbed to the injuries on the spot.
6. Disclosing the defence version, Faqir Muhammad (accused in his statement under section 342, Cr.P.C., stated that "my wife had died prior to the occurrence. My son Ghafoor was still bachelor. My other son Manzoor was employed at Lahore and was residing there. Few days prior to the occurrence, I requested my son-in-law Muhammad Rafique to send his daughter (my maternal granddaughter Mst. Shagufta Parveen) for cooking our meals. On the night of occurrence, it was slightly after mid-night when it was quite dark, I heard an alarm from my house being raised by my son Ghafoor. I reached there. Shagufta Parveen was weeping and I was informed that Irshad, son of Rehmat Ali P.W. Was committing Zina with her when she had been suddenly brought out by Ghafoor and overpowered Irshad and confined him in the room. We have a common wall with Rahmat Ali. Suddenly Rahmat Ali came armed with hatchet and he began to break the door. I and my son Ghafoor reprimanded him and we raised an alarm. In the meanwhile, Rahmat All assaulted my son Ghafoor. At that time, Shahbaz, Farooq and Riaz also entered the house armed with Dangs.
My son snatched a hatchet from Rahmat Ali. Shahbaz, Farooq and Riaz attacked us with their Dangs. My son Ghafoor acted in self-defence. I also picked up a Churri in order to save my own life.
The entire occurrence took place in darkness in our house, and subsequent story is a concoction because Rahmat Ali P.W. Is real maternal cousin of Muhammad Hussain who is Police Inspector and Muahmmad Aslam, their relative, is Member of District Council. They got the case registered after deliberation, and got false recoveries planted upon us." Ghafoor Ahmad (appellant) in his statement under section 342, Cr.P.C. Further stated that "actually I had suddenly come to my house and found Irshad committing Zina with my niece Mst. Shagufta Parveen. I had acted in self- defence and under the grave and sudden provocation. I had produced the hatchet before the police which I had snatched from Rahmat Ali P.W. I have been falsely implicated in this case with due deliberation".
7. Muhammad Nawaz (P.W.8) Mst. Majidan (P.W.9) and Rehmat All (P.W.10) have supported the prosecution case. The appellant and his co-. Accused did not produce any eye-witness of the occurrence. They, however, produced Lady Doctor Khalida Butt (D.W.1). Mst. Shagufta Parveen was examined by her on 26-5-1985. She stated that on examination she found that "Vagina admitted one finger easily. Hymen was torn. Tears were old. Two vaginal swabs were taken and sent the same to the office of Chemical Examiner for detection of semen. There were two scratches on her body. She was subjected to sexual intercourse." Chemical Examiner's Report (Exh. DE) reveals that the swa bs were stained with semen. It may be noted that Shagufta Parveen was brought before the Lady Doctor for examination by her maternal uncle Manzoor Ahmad, brother of Ghafoor appellant.
8. Believing the ocular account of the occurrence given by the three eyewitnesses, the incriminating recoveries from the appellant, motive and the medical evidence, and disbelieving the defence version, the trial Court convicted and sentenced the appellant and his co-accused as stated above. On appeal, the Lahore High Court was of the view that although the statement (Exh.
PB) of Muhammad Nawaz was not recorded at the time and place as it purports to be, the motive alleged by the prosecution was false and the investigation was not honest, yet there was no doubt that the appellant and his co-accused had killed the deceased persons and caused hart to Rehmat Ali and Mst. Majidan P.Ws. Substantially in the manner stated by the witnesses. The High Court rejected the defence version as improbable.
9. In the leave granting order dated 11-11-1992 it is stated that "a perusal of the judgment of the learned Judges shows that lodging of the F.I.R. At Seim Nullah was found to be false, investigation dishonest, motive alleged not believed, nor the place of occurrence; on the other hand, it was held that on account of Irshad (of the complainant party) being found with Mst. Shagufta Parveen in the house of the accused and he having locked in, the complainant party came and the incident then took place. The parties are closely related. In the circumstances though there are three deaths, yet it will be conducive to safe administration of justice that the case is given closer attention".
10. Mr. Muhammad Ibrahim Satti, Advocate, the learned counsel for the appellant mainly submitted that in view of its observations that the investigation was not honest; that the statement of complainant (Exh.PB) recorded by Ghulam Abbas S.I. At 7-30 a.m. At Seim Nallah, is a false story; that the land dispute was not the real motive; and that there was only one incident and that was that Shagufta Parveen and Irshad Ahmad were surprised by Ghafoor Ahmad appellant, the learned High Court was not justified in maintaining the conviction of the appellant under sections 302/34, P.P.C. And 307/34, P.P.C. The learned counsel contended that the appellant had acted in exercise of right of self-defence and also under grave and sudden provocation and at the worst he could be convicted under section 304, P.P.C.
11. Raja Abdul Ghafur, Advocate, learned counsel appearing for the State, has supported the judgment of the High Court.
12. Having given closer attention to the entire case, we, on our independent assessment of the evidence and circumstances appearing in the case, find that by the facts of injuries on their person, the presence of Mst. Majidan and Rehmat Ali P.Ws. Is very much established. Muhammad Nawaz is the resident of place of occurrence. So, his presence was quite natural. The three eye- witnesses have withstood the test of cross-examination. Except minor discrepancies here and there, the statements made by them do not suffer from any major contradiction or dishonest improvement. We are very much impressed by the straightforward manner in which they have named the two persons as accused. There were thirty injuries on the persons of three deceased and two P.Ws. So, they could easily involve more members of the family of the accused persons but they have not exaggerated the number of the accused. Prosecution version gains strength from the circumstance of the recovery of blood-stained earth from the place of occurrence alleged by the prosecution and from the circumstance of "no harm" to Irshad Ahmad. The infirmities in the prosecution case found by the High Court are not serious enough to warrant the rejection of the ocular evidence as wholly undependable.
13. Adverting to the rival case of the defence, we have placed all the factors favouring belief in the accusation in juxtaposition to the corresponding factors favouring the plea in defence and have estimated total effect in relation to two questions viz.--
(1) Is the plea of the accused satisfactorily established by the evidence and circumstances appearing in the case?
(2) If the answer to question (1) be in the negative, is there yet a reasonable possibility that -the defence version might be true, so as to cast a reasonable doubt upon the prosecution case?
14. In the present case the accused could easily produce Mst. Shagufta Parveen in proof of the plea of self-defence and of grave and sudden provocation. She is the niece of the appellant. She was the best witness of the allegation of rape by Irshad Ahmad with her and what happened thereafter in her presence. Strangely enough she has not been produced by the appellant/accused. So, the statement of the Lady Doctor Khalida Butt (D.W.1) that Mst. Shagufta Parveen was subjected to sexual intercourse will not take the case of the defence any further. The appellant and his father could also give evidence on oath in proof of the defence version but they have not done so. The answer to question (1) is, therefore, in the negative.
15. As regards question No, (2), we find that the circumstances appearing in the case rather negate the reasonable possibility of the defence case being true inasmuch as had the complainant party come to the spot duly armed fully determined to launch attack on the accused, then the accused must have suffered greater number of injuries, but factually minor injuries were found on their persons. On the other hand, the three deceased and the two P.Ws. Have suffered as many as thirty injuries. The minor injuries found on the persons of the accused do not seem to have been caused by an enemy hand. The Courts below have rightly found that the accused had received injuries during the scuffle. The absence of injury to Irshad Ahmad also falsifies the defence case. Had the appellant seen Irshad Ahmad committing Zina with Shagufta Parveen, then Irshad Ahmad would have been the target. The weighty circumstance of the non-recovery of the blood-stained earth from the house of the appellant where according to the defence version the entire occurrence had taken place would also exclude the reasonable possibility of the defence version being true.
Furthermore, the three deceased and the two injured P.Ws. Had not caused any provocation to the appellant and his father in any manner. So, the question of the appellant acting under grave and sudden provocation does not arise. For all these reasons, question No, (2) is also answered in the negative.
16. In the instant case the commission of deliberate murder is supported by the two eye-witnesses whose testimony shows evident aggression on the part of the appellant and his co-accused. On the other hand, the plea of self-defence and grave and sudden provocation is neither proved nor there is a reasonable possibility that the same might be true so as to cast reasonable doubt on the prosecution case. In this view of the matter, no exception can be taken to the conviction of the appellant under sections 302/34, P.P.C. And 307/34, P.P.C.
17. In the matter of sentence, we feel that the High Court has already shown much leniency to the appellant. Besides, the appeal is also barred by 310 days and no valid ground is made out for condonation of delay. Accordingly, the appeal is dismissed.