' RAO NAEEM HASHIM KHAN, J.--- Durri (25), Murid Husain (35) with Mahi and Karam were sent up for trial by Police Station Chotti, District D.G. Khan, for an offence under sections 302, 307, 34, P.P.C.
Additional Sessions Judge, D.G. Khan vide judgment, dated 10-6-1991 gave benefit of doubt to Karam, Mahi and acquitted them. Durri and Murid Hussain were, however, found guilty under sections 302, 307, 34, P.P.C. Durri was convicted and sentenced to death with a fine of Rs,15,000 or in default to undergo further R.I. For 6 months. He was also convicted under section 307/34, P.P.C. And sentenced to R.I. For seven years, with a fine of Rs,10,000 or in default to undergo R.I. For further four months. Murid Husain was convicted under section 302/34, P.P.C. And sentenced to life imprisonment with a fine of Rs,10,000 or in default to undergo R.I. For four years. Murid Husain was further convicted under section 307/34, P.P.C. And sentenced to R.I. For 7 years with a fine of Rs,10,000 or in default to undergo further R.I. For four months. The convict has appealed while State has sought confirmation of death sentence through Murder Reference No,567 of 1991. Both the matters will be disposed of by this single judgment.
2. The prosecution story in brief, as disclosed in F.I.R. Exh.P.E. By Nazir Husain P.W.9, was to the effect that appellant Durri suspected the illicit relations of Ghulam Husain deceased with his wife Mst.
Channo Mai and for that matter Durri appellant along with his father, co-accused Karam had stopped the Ghulam Husain from passing near their houses and lands.
' On 20-6-1989 at about 9-10 a.m. When Ghulam Hussain deceased alongwith Fida Hussain P.W.10 was standing at the Banna, the accused Karam by abusing both of them, asked them, as to why they had gone near to their houses, despite the restrain already communicated to them and at that Ghulam Hussain deceased replied that they were standing at the common Banna. Accused Karam then called the three accused Durri, Mahi and Murid Husain through Lalkara with the direction to bring the gun and kill both the Ghulam Husain and Fida Husain. Accordingly it was stated that the appellant Durri and Murid Hussain armed with gun and Mahi empty-handed reached there. The appellant Durri fired a shot with gun at Ghulam Husain as a result of which he fell down. In the meantime the accused Murid Husain fired the shot with the gun at Fida Hussain P.W.10 which hit him on his left arm. Being afraid of the accused Murid Husain started retreating but the accused Mahi snatched the gun from his hands, and by reloading the same, he fired the shot at injured Fida Husain P.W.10 which hit him on his right leg, he also fell down. The accused ran away towards their houses along with respective weapons. The occurrence was witnessed by Nazar Husain P.W.9, Ghulam Shabbir and Jan Muhammad, who were sitting nearby at Karyana shop of Jan Muhammad. They ran towards the place of occurrence and found Ghulam Husain dead.
Leaving the dead body of Ghulam Hussain under the watch of Abdul Rahim. And Allah Wasaya and after dispatching Fida Hussain 'to hospital, the complainant Nazar Hussain P.W.9 was going to police station to lodge the report, when he was informed on his way that in order to create defiance, the accused had injured each other. He then went to the police station lodged the F.I.R.
3. The occurrence took place on 20-6-1989 at about 9-10 a.m. In the area of Mauza Darkhawast Jamal Khan Janobi 12 miles from Police Station Chotti. F.I.R. Exh.P.E. Was lodged by Nazar Hussain P.W.9, the same day at 11-00 a.m. Which was recorded by Habib Ullah Inspector/S.H.O. P.W.11.
4. Habib Ullah Inspector/S.H.O. P.W.12, after the recording of F.I.R. Exh.PA., went to the spot and prepared the inquest report Exh.P.K. And then dispatched the dead body of Ghulam Hussain to hospital for post-mortem examination through Ghulam Farid Constable P.W.6. He then inspected the spot and took into possession blood-stained earth from the place where the dead body of Ghulam Hussain deceased was lying and sealed into parcel vide memo. Exh.P.F. He also took blood-stained earth from the place where Fida Hussain was injured vide memo. Exh.P.G. Three empty cartridges lying on the spot P.3 to P.5, were also taken into possession and sealed into a parcel vide Exh.P.J. He prepared site plan Exh.P.L. After post-mortem examination Ghulam Fareed Constable, produced before him last-worn clothes of deceased Ghulam Hussain shirt P.1, Lungi P.2 (both blood-stained) along with a sealed phial vide memo. Exh.P.C. On 21-6-1989 he recorded the statement of Fida Hussain P.W.10 in hospital. The injured produced before him medical certificate on that day. On 25-6-1989, copies of site plan Exh.P.B., Exh.P.B./2 were got prepared from Jamshed Ahmad, Patwari. All the above sealed parcels were handed over by him to Moharrir Constable. On 28-6-1989 when he was present along with his staff and P.Ws. Nazar Hussain P.W.10, Ghulam Shabbir at Habibabad Bus stop. The accused Durri, Murid Hussain and Mahi were produced by Allah Ditta, Member, Union Council. The accused Mahi produced his licensed gun. P.6 before Habib Ullah, Inspector/S.H.O. At that time. He took the same into possession vide memo. Exh.P.1. The gun was sealed by him into a parcel. Similarly Murid Hussain also produced licensed gun P.7 before him.
He took the same into possession and sealed the same into parcel vide memo. Exh.P.J. All these three accused were arrested by him then and there. On 4-7-1989 he arrested accused Karam. He recorded the statements of prosecution witnesses stagewise during the investigation and after completing the investigation he challenged the accused persons. The ocular account was furnished by Nazar Husain P.W.9 and Fida Husain P.W.10. Dr. Ghulam Rasool P.W.1 D.M.S. D.H.Q.
Hospital, D.G. Khan conducted the medical examination of Fida Husain injured P.W.10. Dr. Captain Ghulam Farid, M.O., D.H.Q. Hospital, Jampur had conducted the post-mortem examination of Ghulam Husain deceased.
5. At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. However, appellant Durri appeared in his defiance and stated that about two years back, he was sitting in house at about sunrise and the ladies of their houses were outside in the field busy in sowing the paddy crop. He heard the abuses being uttered by the women working outside in the field. He ran out and saw Ghulam Husain deceased doing obscene acts with the ladies. He was all alone at that time. He stopped him from his above acts and asked him to leave, but Ghulam Husain deceased started causing injuries with Lathi to him. He had been abusing Ghulam Hussain deceased while going from his house up to him. In the meantime Fida Husain P.W.10 also reached there on hearing the above act. He ran towards Durri's house and found his mother coming out with gun in her hand. He got the gun from the hands of his mother. Ghulam Hussain deceased and Fida Hussain P.W.10 (injured), both were following him and he then fired the shot with gun at Ghulam Husain deceased and both of them fell down. He went to the police station and reported the matter to the police. The gun was left by him at his house. The police instead of taking any action on his report registered a false case against him and his family in collusion with the complainant party. He had been kept in police station for 9 days and he was provided medical aid to his injuries during that period. He did the above act in self-defiance and on account of grave and sudden provocation. None of the other co-accused was present with him at that time. None of the P.Ws. Was present on the spot at that time and all the witnesses had given false evidence. The gun was licensed one of Mahi accused and the same was taken into possession by the police from his (Durri's) house, but the appellant did not produce any defiance evidence.
6. It is submitted by the learned counsel for the appellant that there is no pre-planning and premeditation. The occurrence took place on the spur of the moment; that eye-witnesses are interested, being related to the deceased and chance witnesses cannot be safely relied upon without independent corroborative evidence; that Durri appellant had suspicion of illicit relations of Mst. Channo Mai with Ghulam Husain deceased and Ghulam Husain was restrained from coming near to Durri's house. On the day of occurrence Durri appellant found Ghulam Hussain near his house and doing obscene acts with the ladies, acted on account of grave and sudden provocation which was beyond his control murdered Ghulam Hussain and injured Fida Hussain P.W.10 along with Murid Hussain. Learned counsel for the appellant has also requested for lenient view in favor of the appellant.
7. The contentions are opposed by the learned State Counsel.
8. We have heard the learned counsel for the parties at length and gone through the file. The prosecution in order to establish its case has mainly relied upon Nazar Hussain P.W.9 and Fida Hussain P.W.10. Both of them had given a detailed account of occurrence ascribing specific role to each accused. Each of them stated that they were present at the spot and witnessed the occurrence. Fida Hussain P.W.10 is injured P.W. His evidence cannot be brushed aside as Durri appellant caused fatal injury to Ghulam Hussain which ultimately resulted into his death. Murid Hussain caused injuries to Fida Hussain P.W.10. Both the witnesses were subjected to the test of lengthy cross-examination but nothing could be brought on record to suggest that they were not present at the spot and had not witnessed the occurrence. A convincing explanation with regard to their presence was given by each of them. The presence of Fida Hussain P.W.10 cannot be denied.
The manner in which the evidence was given inspires confidence. Therefore, it is held that the witnesses were present at the spot and could safely be relied upon. There is no pre-planning or premeditation. The occurrence took place on the spur of the moment. It is admitted fact that Ghulam Hussain deceased was restrained from coming near to the house and lands of the appellant a few days prior to this present occurrence. It is possible that Durri appellant found Ghulam Hussain deceased near his house and in the heat of passion murdered him. Therefore, it is held that Durri is guilty of offence under section 304, Part I, P.P.C. And Murid Hussain is guilty of offence under section 307, P.P.C. We are left with no alternate except to partly accept this appeal.
We, therefore, partly accept the appeal, conviction and sentence of death awarded to Durri appellant under section 302, P.P.C. Is converted to section 304, Part I, P.P.C. And reduced to 14 years'
R.I. And fine is maintained. If fine is recovered it shall be given to the legal heirs of Ghulam Hussain deceased under section 544-A, Cr.P.C. Murid Hussain is held guilty of murderous assault on Fida Hussain P.W.10, so he is convicted and sentenced to 7 years' R.I. Fine is maintained, if recover shall be given to Fida Hussain P.W.10 as compensation under section 5 r.P.C. Death sentence is not confirmed. The benefit of section 382-B, Cr.P.C. Is also given to the appellant.