' ZAKAULLAH LODHI, J.-The appellant was tried under section 302/34, P. P. C. By the learned II Additional Sessions Judge, Sukkur, who convicted and sentenced him to death penalty under section 302, P. P. C. And to one year rigorous imprisonment under section 324, P. P. C. The appellant has filed this appeal challenging the validity of the order of his conviction whereas the learned II Additional Sessions Judge, Sukkur has referred the case for confirmation of death sentence.
2. The facts giving rise to this case are that the appellant killed one Ramoo by means of a hatchet and caused a simple injury to one Deepoo on 7th June 1973, at 10-30 a.m. Of which a report was lodged in the nearby Police Station 'A' Section, Sukkur, at 11 a.m. The incident took place in Barrage Colony, Sukkur. The first information report was registered by P. W. Abdullah, A. S. I. At the instance of the deceased's brother Amar Singh. On the same day at 6 p.m. The appellant was arrested by the said A. S. I. According to the F. I. R. The complainant Amar Singh and the appellant are sweepers by profession and they live in the same colony. About two years back the appellant had been ousted from the "bradari" on account of his misconduct and since then he was having a grudge against the deceased. On the day of incident at about 10-30 a.m. The complainant P. Ws. Amar-Singh, Deepoo, Allanditto and Kali were sitting at the bridge of Electric Power Sub-Station when the appellant who was armed with a hatchet reached there. He abused the deceased and told him that it was on account of him that he had been ousted from the "bradari" and that he would not spare him. Saying so, he gave a hatchet blow on his head due to which the deceased fell down on the ground and went unconscious. The appellant then tried to make his escape good from the vardat but he was followed by the above-said witness. When P. W. Deepoo reached near him, he gave him a hatchet blow which hit him at his left arm and caused an injury.
3. After recording the F. I. R. P. W. Abdullah, A. S. I. Inspected the injuries on the person of the deceased Ramoo in the presence of mashirs P. Ws. Shev Charan and Daruoo and prepared a mashirnama of injuries Exh.
15. He then referred him to Civil Hospital, Sukkur for examination and treatment.
' He also recorded the statement of P. W. Deepoo and sent him to the Civil Hospital for examination and treatment. He also prepared inquest report Exh.
16. Thereafter he repaired to the vardat which was pointed out to him by the complainant P. W.
Amar Singh. It was situated near Electric Power House in a small bridge in Barrage Colony, Sukkur.
The blood-stained earth was found at the vardat and he secured and sealed some of it under mashirnama Exh.
13. He also recorded the statement of P. Ws. Allanditto and Kali. After that he went to search the appellant and arrested him on the same day at 6 p.m. Near Pirjo Goth Bus Stand. He secured blood-stained shirt and shalwar of the appellant and prepared a mashirnama of the same as Exh.
17. The appellant then led P. W. Abdullah, A. S. I. And mashirs to his quarter in a bungalow in Barrage Colony and from beneath a cot he took out a hatchet which was blood-stained. It was secured under Mashirnama Exh.
18. After completing the investigation P. W. Abdullah, A. S. I. Handed over the case papers to S. H. O.
Who prepared a challan and submitted the same to the Court.
4. Autopsy on the dead body was carried out by Dr. Muhammad Memon who found the following injury on the head of the deceased :- "An incised wound 8"X 12" brain deep extending from the left side of bridge of the nose and orbital margin to the left side of the occipital region with fracture of left side of frontal bone, left parietal and left side of occipital bone with prolapse of brain substance."
' According to the doctor's opinion the death was caused due to shock, haemorrhage, and brain damage resulting from the hatchet injury.
5. The appellant has not denied having committed the offence but he has stated that one Teeloo was a Choudhary of their "punchayat". The appellant was suspected of having illicit intimacy with his daughter Mst. Lali. Complainant Amar Singh and injured Deepoo were related to said Teeloo and therefore they bore a grudge against the appellant. At their instance he had been ousted from his `baradari" about two years prior to the incident. On the day of incident he was going to cut nim tree in Barrage colony and when he reached the bridge he found deceased Ramoo sitting there alongwith P. Ws. Deepoo and others. Deceased Ramoo and P. W. Deepoo abused him, his mother and sister and said that he had not yet amended his habits although he had lost his job on account of being ousted from the "baradari". Thereafter both of them spitted on his face, on account of which he lost his temper and committed murder of deceased Ramoo by causing him hatchet injury under grave and sudden provocation.
6. The prosecution has furnished occular testimony of P. Ws. Deepoo and Amar Singh who had witnessed the incident from a close distance. P. W. Allanditto has also corroborated the statements of P. Ws. Deepoo and .Amar Singh. The appellant has also not denied having killed the deceased Ramoo and caused injuries to P. W. Deepoo. The fact that he had been ousted from his "baradari" two years prior to the incident has also been stated by the complainant and other witnesses and admitted by the appellant. It is therefore evident that he had some grudge against the deceased and injured P. W. Deepoo whom he believed to be responsible for getting him ousted from the "baradari". But the fact that his ousting from the "baradari" could cause him grave and sudden provocation on the fateful day is not believable because on the day of the incident his ouster from the "baradari" was already two years' old matter. The point for determination therefore is as to what particular thing motivated the appellant to all of a sudden kill the deceased and injure P. W.
Deepoo. Naturally he could not do so unless he ' Zore Khan and Sher All accused. The complainant tried no rescue his sister Mst. Jawahar Khetun but he was injured by Muhammad Khan accused. Mst. Malkani P. W. Dost Muhammad P. W. Were also injured by the accused persons. After murdering Mst. Jawahar Khatun both the dead bodies were placed together.
' The complainant after the occurrence contacted Gul Muhammad, uncle of Shah Muhammad deceased, and they both boarded a bus and left for Police Station, Khushab but on the way at Khaliqabad they met S. I. Fida Hussain who recorded the statement of the complainant, as stated above.
3. The Sub-Inspector after recording the statement (Exh. P. A.), sent the same to the Police Station, Khushab where formal F. I. R. Was registered, as stated above. He himself proceeded to the spot and there prepared the injury statement and inquest reports in respect of both the deceased and then sent the dead bodies to the mortuary under the escort of F. C. Muhammad Khan. The Sub- Inspector found three empty cartridges (P. 16 to 18) at the spot which he secured vide different memos. He also took into possession five pellets from the spot.
4. Dr. Shahid Hussain Bokhari, Medical Officer, Civil Hospital, Khushab, on 21-7-1967 at 9 a.m.
Conducted the post-mortem examination on the dead body of Shah Muhammad and found as many as eleven gunshot injuries (both entrance and exit), two multiple abrasions and one lacerated wound.
' The death in the opinion of the doctor was due to destruction of brain and injury to spinal cord aggravated by shock and haemorrhage, as a result of injuries 1, 9 and 10 which were grievous in nature also. Injuries 5 and 11 were also grievous and the rest simple. Probable time between injuries and death was instantneous and between death and post-mortem was about 26 hours.
' The same doctor, the same day at 11 a.m. Conducted the post-mortem examination on the dead boby of Mst. Jawahar Khatun and found as many as 17 injuries on her body of whom four were gunshot injuries, one superficial lacerated wound and eleven injuries were multiple abrasions or abrasions.
' The death in the opinion of the doctor was due to shock and haemorrhage as a result of injury No, 1 which was sufficient in the ordinary course of nature to cause the death. This injury was grievous and the others simple but all were anti-mortem. Probable time between injuries and death was half an hour and between death and post-mortem was about 28 hours. Vaginal awabs of Mst.
Jawahar were found stained with semen.
5. The doctor also medically examined Dost Muhammad, Ata Muhammad and Mst. Malkani P. Ws.
And found simple injuries on their persons.
6. The investigating officer arrested Zore Khan, Ali Muhammad, Muzaffar Khan, Saadullah Khan and Qasim Ali appellants on 22-7-1967 while Muhammad Khan was arrested on 17-8-1967 by A. S. I.
Ghulam Rasul (not produced). Muhammad Khan appellant was handed over to A. S. I. Rafiq Ahmad (P. W. 9) on 18-8-1967. Muhammad Khan accused got recovered gun (P. 13) on 9-8-1967 vide recovery memo. Exh. P. F. Which was attested by Sherbaz (P. W. 8) besides the A. S. I. And Sher Din (given up). Sherbaz is a relation of Shah Muhammad deceased. The guns (P. 1 and P. 2) were got recovered by Zore Khan and Muzaffar Khan on 20-7-67.
' According to Mr. Shah Jehan Firearms Expert, he received three sealed parcels on 7-8-67 and two on 10-8-67 through F. C. Gul Sher. On 28-8-67 he received another sealed parcel of gun (P. 13) through F. C. Muhammad Yasin, who was not cited as a witness nor produced. According to the report of the Firearms Expert, the crime empty marked as C./2 was found to have been fired from the gun (P. 13) of Muhammad Khan accused. The remaining crime empties were not found to have been fired from any of the guns recovered by the police.
7. At the trial all the appellants excepting Zore Khan pleaded innocence and stated that they have been falsely implicated in the case because of their relationship with Zore Khan appellant. Zore Khan appellant made the following statement :- "I and Muhammad Khan accused live in the same house. He is my cousin. He is a licensee for a gun.
On the day of occurrence at early Nizamwala I set out for Naushera. I was carrying the licensed gun of Muhammad Khan accused. When I reached the hillocks I found Shah Muhammad deceased and Mst. Jawahar Khatun deceased in a compromising position. Mst. Jawahar Khatun deceased was my wife. I got provoked and in a fit of provocation killed the two deceased persons by firing at them. On the reports of the guns Ata Muhammad, Dost Muhammad and Mst. Malkani came to the spot and wanted to remove the dead body of Mst. Jawahar Khatun. I did not allow them to do so and thus they received minor bruises in the scuffle. I sat with the dead bodies so that the circumstances attending the killing may not be changed."
' They did not produce any defence.
8. I have heard the learned counsel for the appellants as also the State counsel and have gone through the evidence on record. It was contended by the learned counsel for the appellants that the occurrence was not seen by the witnesses because the occurrence took place very early, that the F. I. R. Was not only belated one but also recorded at the spot and that both the deceased were found in compromising position by Zore Khan who killed them under grave and sudden provocation.
9. I see force in the contentions raised by the learned counsel for the appellants. Ata Muhammad complainant has admitted in his cross-examination that till the day of occurrence he did not know that the accused were suspecting his sister of illicit intimacy with Shah Muhammad deceased. He has further stated that after he had dictated the F. I. R. And had accompanied the Sub-Inspector to the spot, it was for the first time that he learnt that the accused suspected Mst. Jawahar Khatun deceased of illicit intimacy with Shah Muhammad deceased but this fact finds mention in his statement (Exh. P. A.). This would clearly show that the statement of the first informant was recorded at the spot after due deliberations and consultations. He has also admitted that he was examined by the police at the spot. In his statement before the police this witness denied to have stated that Zore Khan and Sher Ali accused placed their guns against the person of Mst. Jawahar Khatun and then fired at her (confronted with Exh. P. A.) wherein it is so recorded). Moreover this fact is also in direct conflict with the medical evidence because the doctor in his re-cross- examination has admitted that the shots had been fired from a distance of 10/12 feet. I also find that this witness had no business to go to Nowshera to see Muhammad Ashraf, who was lying injured because he is neither his relation nor he had any connection with him. At the trial all the eye-witnesses have stated that they had chained the door from inside which was got opened by inserting a rod from outside. So far as Muhammad Azim P. W. And Mst. Nasim Akhtar P. W. Are concerned, it may be mentioned that they were examined by the police on the following day of the occurrence and this fact makes their presence doubtful at the spot at the relevant time. Moreover, I find that Muhammad Azim P. W. Is a close relation of Shah Muhammad deceased. One Mst. Sat Bhari is the wife of Dost Muhammad, who is brother of Shah Muhammad deceased and the mother of Mst. Sat Bhari is daughter of Mst. Nur Bhari, who is sister of the mother of the witness. Muhammad Azim witness has also admitted that he did not know who fired at Mst. Jawahar Khatun and caused injuries to her. Mst. Malkani (P. W. 11) has stated in her cross-examination that the occurrence lasted for about one Pehr. There are about 60/70 houses in the Abadi of village Potha, that all the people of the village continued witnessing the occurrence but none came near and that the whole of the village Abadi who saw the occurrence was examined by the police. But in spite of all this, it is strange; none has been cited as a witness of the occurrence. She has also stated that there was blood on the wall of the kotha and that it was shown to the Police which was collected by the police. But this fact has been contradicted by the Investigating Officer. The Investigating Officer has also admitted in his cross-examination that Zore Khan accused appeared before him on 22-7-67 and he made a statement telling him that he had killed Mst. Jawahar Khatun and Shah Muhammad when they are kissing each other and that Zore Khan took the plea of grave and sudden provocation. This plea of Zore Khan appellant stands corroborated by the report of the Chemical Examiner who had opined that the vaginal swabs were stained with semen. It also stands proved on the record that the statement (Exh. P. A.) was recorded after due deliberations and consultations and that it was written at the spot.
10. In the light of the above discussion the prosecution case against Slier Ali, Ali Muhammad, Qasam Ali, Saadullah, Muhammad Khan and Muzaffar Khan Appellants becomes highly doubtful. I, therefore, accept their appeal, set aside their convictions and sentences on all the counts and acquit them of all the charges. They shall be released forthwith provided they are not required for any other case. Ali Muhammad appellant is already on bail, he shall be discharged from his bail bonds.
' As far as Zore Khan appellant is concerned, I set aside his convictions and sentences under sections 148, 452/149, P. P. C. Because the other appellants have also been acquitted of these charges. However, I maintain his conviction and sentence under section 323, P. P. C. Having discarded the testimony of the eye-witnesses I have to take into consideration the statement of the appellant which he gave at the trial, which has been reproduced earlier. In view of the discussion above, I hold that Zore Khan appellant committed the murder of Shah Muhammad and Mst. Jawahar Khatun under grave and sudden provocation. Therefore, I set aside his convictions and sentences under section 302/149, P. P. C. On two counts) and convict him under section 304, Part I, P. P. C. (on two counts). So far as the sentence is concerned, in view of the chemical report in respect of the vaginal swa bs, which were found stained with semen, I think that the sentence already undergone would meet the ends of justice in the circumstances of this case. I .