' RAO NAIEEM HASHIM KHAN, J.--- Manzoor (33) was sent up for trial by Police Station Dehli Gate, Multan for an offence under section 302, P.P.C. Additional Sessions Judge, Multan vide judgment, dated 9-10-1991 convicted and sentenced him to death with a fine of Rs,20,000 or in default of payment of fine to further undergo R.I. For one year. The fine if recovered half of it would be paid to the legal heirs of the deceased. The convict has appealed while State has sought confirmation of death through Murder Reference No,60 of 1992. Both matters will be disposed of by this single judgment.
2. Prosecution story in brief as disclosed in F.I.R. Exh.P.A. Lodged by Talib Hussain son of Badar Din P.W.3 at Police Station Dehli Gate, Multan was to the effect that on 11-9-1989 at about 7-00 p.m. The complainant went to see his deceased brother Muhammad Din in Mohallah Ahmadabad, Multan who was informed by his sister-in-law Mst. Sharifan widow of the deceased that Muhammad Din had gone to Aastana Ghosia, as such he went to Aastana Ghausia and found Muhammad Din sitting at cot. The complainant also sat with him on the said cot and they started talking with each other. Ali Muhammad son of Ghulam Muhammad P.W.1, was also lying on another cot. Sardar Muhammad son of Farzand Ali was filling fire in Huqqa in said Aastana. When both brothers were talking, Manzoor appellant came from behind and inflicted Thappi blow on the head of Muhammad Din who fell down. Another blow was given on the forehead and third on the left leg.
The complainant raised hue and cry, which attracted Ghulam Muhammad and Sardar Muhammad P. Ws. Who tried to catch the appellant, but he ran away. Motive behind the occurrence was that accused because of his bad character, who in return abused the deceased and also felt insulted because of this reason, the appellant Manzoor killed Muhammad Din deceased. Muhammad Din was taken to Nishtar Hospital, Multan where he died after few minutes.
3. The occurrence took place on 11-9-1989 at about 7-00 p.m. In Aastana Ghausia 3-1/2 furlongs from Police Station Dehli Gate, Multan. F.I.R. Exh.P.A. Was lodged on the statement of Talib Ali P.W.3.
On the same day at 9-45 p.m. Muhammad Siddique Khan S.I. P.W.10 went to Emergency Ward of Nishtar Hospital, Multan, where he met Talib Hussain complainant P.W.3 and recorded his statement Exh.P.O.A.
4. Muhammad Siddique Khan, Additional S.H.O., Police Station Dehli Gate, Multan, after recording statement of Talib Ali, complainant P.W.3, sent it to police station for registration of case through Muhammad Ayub Constable. He also recorded the statement of Sardar Muhammad P.W.2 under section J61, Cr.P.C. In the Emergency Ward of Nishtar Hospital, Multan. He prepared injury statement Exh.P.H., inquest report Exh.P.J. And entrusted the dead body of Muhammad Din to Abdul Hameed Constable for post-mortem examination. Thereafter he went to the place of occurrence and prepared rough site plan Exh.P.K. He also took into possession blood-stained earth vide recovery memo. Exh.P.D. And secured the blood-stained cot from the spot vide recovery memo. Exh.P.E. He recorded the statements of recovery witnesses under section 161, Cr.P.C. On 12-9-1989 he arrested Manzoor appellant, who led to the recovery of blood-stained Thappi P.3, which was taken into possession through recovery memo. Exh.P.F. He prepared site plan Exh.P.F./1 of the recovery of Thappi P.3. On the same day Abdul Hameed produced blood-stained Dhoti P.1 which was taken into possession vide recovery memo. Exh.P.C. He recorded the statements of attesting witnesses of the recovery of Thappi P.3 and production of blood-stained Dhoti P.1 under section 161, Cr.P.C. He got prepared site plans Exh.P.B., Exh.P.B./1 and Exh.P.B./3 by Shaukat Hayat, Draftsman. The ocular account was furnished by Ali Muhammad P.W.1, Sardar Muhammad P.W.2 and Talib Hussain P.W.3, Syed Zia-ud-Din Zaidi, S.M.O. Civil Hospital, Multan had conducted the post-mortem examination on the dead body of Muhammad Din deceased on 12-9-1989.
5. At the conclusion of prosecution evidence, the appellant was examined without oath, he refuted the prosecution allegations and pleaded innocence. He stated in his statement under section 342, Cr.P.C. That the case had falsely been set up against him. The fact of the matter was that Muhammad Din deceased was debauch. Sometime after Eisha prayer on 11-9-1989, his wife Mst.
Bilqees had gone to Aastana Ghausia to obtain an emulet for his ailing daughter, where Muhammad Din invited her to adultery and on her refusal caught hold of her to commit Zina, upon which she raised hue and cry. He had gone out in connection with a piece of work and was about to enter his house, when on hearing the alarm of his wife he ran to Aistana Ghausia and finding his wife in the clutches of Muhammad Din deceased, who was attempting a criminal assault on her.
He in a fit of grave and sudden provocation, in order to save the honor of his wife, picked a Danda lying in the Aastana; gave injuries to Muhammad Din, succeeded in getting his wife released from his clutches and saved her honour. None of the P.Ws. Was present at the spot. He himself went to the police station along with aforesaid Danda and informed Muhammad Siddique Khan P.W.10 about the occurrence, but he put him in custody and did not record his information. Later on Muhammad Siddique S.I. P.W.10 registered a case of willful murder against him at the instance of complainant party and falsely challenged him in this case. The P.Ws. Had made false statements in order to strengthen the prosecution case. However, he did not appear in his defense on oath but produced his wife Mst. Bilqees as D.W.1 in his defense.
6. It was contended by the learned counsel for the appellant that F.I.R. Was recorded after preliminary investigation as such not admissible in evidence; that the motive is far-fetched, vague and shrouded in mystery, it is not known, what happened prior to the occurrence; that the appellant Manzoor found his wife in the clutches of Muhammad Din deceased, who was attempting criminal assault on her, he in fit of grave and sudden provocation in order to save the honour of his wife picked up Danda lying in the Aastana Ghausia, gave injuries to Muhammad Din deceased, saving her honor. Muhammad Din ultimately succumbed to Hs injuries. Learned counsel for 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 and gone through the file. The prosecution, in order to establish its case has mainly relied upon ocular account furnished by Ali Muhammad P.W.1, Sardar Muhammad P.W.2 and Talib.Hussain P.W.3. All of them had given a detailed account of occurrence, ascribing specific role to the appellant. Each of them stated that they were present at the spot, when the appellant Manzoor came there armed with Thappi and gave several Thappi blows on the different parts of the deceased Muhammad Din, who ultimately succumbed to his injuries. All the witnesses 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 or had not witnessed the occurrence. A convincing explanation with regard to their presence was given by each of them.
The manner in which the evidence was given by them, inspires confidence. Therefore, it is held that witnesses were present at the spot and could safely be relied upon. The defence plea is not plausible, which does not appeal to us. Mst. Bilquees D.W.1 is disbelieved. The prosecution has established its case against the appellant beyond any shadow of doubt. The appellant is held guilty of offence under section 302, P.P.C. As the motive is shrouded in mystery, the death sentence is altered to life imprisonment. Rest of the sentence is maintained. Consequently the appeal is dismissed. The benefit of section 382-B, Cr.P.C. Is also given to the appellant. The death sentence is not confirmed.
Sentence reduced.