' This criminal appeal calls into question the propriety and legality of the impugned judgment dated 5-10-1988 passed by the learned Sessions Judge, Sargodha, whereby he convicted Nabi Bakhsh and Ajmal Bukhsh, appellants, under section 302/34, P.P.C. And sentenced them to imprisonment for life with a fine of Rs,25,000 each and in default thereof to undergo R.I. For three years each. The fine, if recovered, was ordered to be paid as compensation to the legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. Was, however, extended to the appellants. Five co- accused of the appellants were acquitted of the charge.
2. The prosecution case is that on 11-11-1987 at about 6-30 a.m. When Nazar Muhammad, father-in- law of the complainant, went towards north to ease himself, suddenly, Muhand armed with a hatchet, Nabi Bakhsh, armed with a Soti, Ajmal armed with gun, Mushtaq armed with hatchet, Akbar and Zafar, both armed with guns emerged raising Lalkaras and attacked Nazar Muhammad.
Zafar Iqbal fired with his gun hitting on chest near the right shoulder of Nazar (deceased). The second fire was made by Ajaml which hit on the front side of his right Pindli. The deceased Nazar Muhammad fell down and in that position, Mahand gave a hatchet blow landing on the left side of his face. The occurrence was witnessed by the complainant, Muhammad, Mukhtar and Muhammad Yousaf. Nazar Muhammad after a short while succumbed to the injuries.
3. The motive was suspicion of illicit relations of Nargis wife of Muhammad Nazeer, the real sister of Mushtaq with Aslam Gondal. She had earlier to the incident passed on four tolas of golden ornaments to Aslam Gondal through Nazar Muhammad.
4. The complainant left the dead body of Nazar Muhammad with Yousaf and Mukhtar and proceeded to the Police Station and lodged the F.I.R.
5. Inspector Mushir Ali (P.W.9) then proceeded to the place of occurrence, prepared the injury statement (Exh.PK), inquest report (Exh.PL), took the blood-stained earth into possession vide Memo. Exh.PD) and took into possession the last worn clothes of the deceased. The police officer also recorded the statements of the witnesses under section 161, Cr.P.C.
6. Ajmal and Nabi Bukhsh, accused-appellants were arrested on 16-11-1987. At the time of arrest, Ajmal accused produced his licensed gun (P.4) before the witness who took the same into possession vide memo (Exh.PF) Nabi Bakhsh, accused also produced Lathi (P.7) which taken into possession vide Memo. (Exh.PG. The other acquitted co-accused were arrested on 21-11-1987 and while in police custody led to the recoveries. After the completion of the investigation Inspector Mushir Ali Shah, submitted the challan.
7. On 11-11-1987 Dr. Inayat Ullah, Medical Officer, Rural Health Complex, Farooka (P.W.1) conducted the post-mortem examination on the dead body of Nazar Muhammad and found six injuries on his person. Injuries 1, 2 and 6 were fire-arm and injury No,5 was also three fire-arm wounds. Injury No,3 was three bruises and injury No,4 was a cut wound. According to the opinion of the doctor, injuries 1, 2, 5 and 6 were fire-arm while injury No,3 was held to be inflicted by a blunt weapon and injury No,6 by a sharp-edged weapon. All the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. The probable time between the injuries and death was more than one hour.
8. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegations and professed innocence. In answer to question, why this case against him, Ajmal Bukhah deposed as under:-- "On the day of occurrence at about Sargiwela I alongwith Nabi Bukhsh were going to our lands where we saw that Aslam Condal was present in the fields of Nazar Muhammad deceased who was taking Mst. Nargis towards Aslam Gondal. I had my licensed gun with me while Nabi Bakhsh had hatchet for the use of his agricultural pursuits. We lost our temper and under grave and sudden provocation caused injuries to Nazar Muhamamd deceased. None else was present there.
Muhammad Aslam Gonda] and Mst. Nargis managed to run away."
' The statement of Nabi Bakhsh under section 342, Cr.P.C. Was also to the same effect.
9. The learned trial Judge disbelieved the prosecution evidence against 5 co-accused, viz, Fayyaz, Akram, Mushtaq, Zafar Iqbal and Mamand and acquitted them of the charge and believed the prosecution evidence in the case of the two appellants and convicted and sentenced them.
10. Learned counsel for the appellants vehemently contended that in keeping with the motive alleged in the F .I.R. And statements of the accused under section 342, Cr.P.C. It was a case of grave and sudden provocation; the ocular evidence highly interested due to relationship and that the learned trial Court could not properly appreciate the law of maintaining consistency and by giving the benefit of doubt acquitted accused Fayyaz, Zaffar, Mushtaq Mumand and by forming the same evidence convicted the appellants.
11. On the other hand the learned counsel for the State has submitted that acquittal of 5 accused and conviction of the appellants rather shows that the trial Court acquitted the innocent and convicted the guilty.
12. I have critically examined the submissions of learned counsel and have perused the record with their able assistance.
13. First of all the prosecution evidence that has come on the record is to be scrutinized. The prosecution has produced nine witness.. P.W.1 is Dr. Inayat Ullah who conducted the post-mortem examination on the dead body of Nazar Muhammad on 11-11-1987 at 2-30 p.m. He found the following injuries on the dead body:--
(1) Fire-arm wound of entry 4 c.m. x 3 c.m. Going deep in chest cavity on upper outer front right side of chest 6 c.m. Below and outer right clavical;
(2) Fire-arm wound of entry 2 c.m. x 2 c.m. On upper front outer right side of chest 1/2 c.m. Inner to injury No,1;
(3) Three bruises 2 c.m. x 12 c.m. On outer upper front aspect of right shoulder 4 c.m. Above injuries Nos.1 and 2;
(4) Cut wound 5 c.m. x 1 c.m. Bone deep on outer lower aspect of left lower jaw;
(5) Three fire-arm wounds of exit 1 c.m. x 1 c.m. On back middle left aspect of chest in an area of 8 c.m. x 6 c.m.;
(6) Fire-arm wound of entry 3 c.m. x 2 c.m. On front upper aspect of right fore-leg just below right knee. Injury was just bone deep.
' In his opinion injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature.
The death in this case has occurred due to haemorrhage and shock. He also gave the opinion that injuries Nos. 1, 2, 5 and 6 were inflicted by a fire-arm weapon while injury No,3 was by a blunt weapon and injury No,4 by a sharp-edged weapon. All injuries were ante-mortem. Three pellets were found in the body which were sealed into a phial. His post-mortem examination report has come on record as Exh.P.A. And diagram of injuries Exh.PA/1. PW.2 is Muhammad Yousaf Patwari who prepared the site plan on 18-11-1987 after seven days of the occurrence. P.W.3 is Muhammad Khan, FC, who escorted the dead body of the deceased Nazar Muhammad for post-mortem examination and produced before the Investigating Officer vide Memo. Exh.PC blood-stained shirt P.1, blood stained Chadar P.2, sealed phial of pellets P.3. He received the sealed parcel of blood- stained earth and delivered it further to the Chemical Examiner, Lahore. He was also given by the Moharrir parcel of blood-stained hatchet which he delivered to the Chemical Examiner, Lahore on 5-12-1987. P.W.4 is Muhammad Afzal who is brother of Nazar Muhammad deceased. He identified the dead body at the time of post-mortem examination on 11-11-1987. P.W.5 is Sarfraz alias Sher who witnessed the recovery of blood-stained earth from the spot vide memo. Exh.PD. P.W.6 is Muhammad Mumtaz and P.W.7 is Muhammad Mukhtar. They gave the eye-witness account. P.W.8 is Muhammad Nazir, A.S.-I. Who was handed over the sealed parcels said to contain blood-stained earth and blood-stained hatchet which he gave to Muhammad Khan, F.C. For onward delivery to Chemical Examiner. P.W.9 is Masheer Ali Shah, Inspector who investigated the case.
14. The first allegation in the F.I.R. Is that on the day of occurrence Nazar Muhammad deceased went for easing himself on the northern side of the village and suddenly Ajmal Bakhsh, Akram, Zafar Iqbal accused armed with guns, Mahand and Mushtaq accused armed with hatchets, Nabi Bakhsh and Fayyaz accused armed with Sotis came from the village side raising Lalkaras. At the trial the complainant appearing as P.W.6 did not mention of any Lakkara. Similarly, P.W.7 Muhammad Mukhtar has said nothing about the Lalkara. To this extent the prosecution version has not proved from the record.
15. The second allegation in the F.I.R. Is that the said seven accused attacked Nazar Muhammad deceased. Zafar Iqbal accused fired shot which hit the deceased on the right side of his chest.
P.W.6 and P.W.7 both have stated the same fact. The medical evidence shows that there were two fire-arm injuries on upper front right side of chest and these two injuries were sufficient to cause death in the ordinary course of nature. According to the record Lalkara was attributed to seven persons and first gunshot was attributed to Zafar Iqbal hitting on the, right side of the chest and the second gunshot attributed to Ajmal Bakhsh hitting on the right leg and hatchet below on left side of the face attributed to Mahand. The ocular evidence does not involve the appellant Nabi Bakhsh in any manner. Similarly the gunshot hit on the Pindli of the deceased is injury No,6. It is attributed to Ajmal Bakhsh. The medical evidence declared it not fatal. The learned Sessions Judge has also disbelieved the evidence of the eye-witnesses in respect of five co-accused and acquitted them giving benefit of doubt. In a case where the prosecution evidence has been disbelieved in respect of five accused the appellant could not be convicted merely on their own statement without corroboration and if it is to be believed then it must be believed in toto. In the present case the version of the accused-appellant Nabi Bakhsh is that he is innocent and the version of accused- appellant Ajmal Bakhsh is:-- "On the day of occurrence at about Sargiwela I alongwith Nabi Bakhsh were going to our lands where we saw that Aslam Gondal was present in the fields of Nazar Muhammad deceased who was taking Mst. Nartgis towards Aslam Gondal. I had my licensed gun with me while Nabi Bakhsh had hatchet for the use of his agricultural pursuits. We lost our temper and under grave and sudden provocation caused injuries to Nazar Muhammad deceased. None else was present there.
Muhammad Aslam Gondal and Mst. Nargis managed to run away."
16. In the present case except the statement under section 342, Cr.P.C., of appellant-accused Ajmal Bakhsh, there was no other circumstance direct or indirect connecting the accused with the commission of the offence. It is strange that the trial Judge has excluded the exculpatory part of the statement of the accused and based his judgment on the inculpatory part of it which is not the correct appreciation of the law. In the case of Sultan Khan v. Sher Khan PLD 1991 SC 520 the Hon'ble Supreme Court of Pakistan held that if the conviction of the accused is to be passed solely on his statement in Court, this statement should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case and in such a condition, the exculpatory part, if proved to be false, may be excluded.
17. As such, the exculpatory part of the statement of the accused Ajmal could not be excluded. The statement should be taken into consideration as a whole and the plea advanced by the accused was to be accepted. According to the complainant Muhammad Mumtaz (P.W.6), Mst. Narjis a sister of Mushtaq accused had illicit relations with Aslam Gondal of village Gondal and she had given four tolas of gold to said Aslam about 415 months prior to the occurrence and the accused persons had a suspicion that she had passed the gold to Aslam through Nazar Muhammad deceased due to the said reasons the accused persons had killed the accused. P.W.6 also admitted that the accused had suspicion that the deceased was a go-between Mst. Nargis (a sister of Mushtaq accused) and Aslam Gondal. He also admitted that about two months prior to the occurrence the ornaments were passed from Mst. Nargis to Aslam Gonda] through Nazar Muhammad deceased.
Thus, the illicit relations of Aslam Gondal with Mst. Nargis and the status of Nazar Muhammad deceased as an intermeddler; No untoward incident took place between these five months. It is the actual going of Mst. Nargis alongwith Nazar Muhammad and Aslam Gondal at Sargiwela seen by the appellants was sufficient to give them the provocation and to believe it as grave and sudden provocation is plausible as no reasonable man could maintain his self-control in such a circumstance. The Hon'ble Supreme Court of Pakistan in the case of Khuda Dad v. The State 1974 SCM R 485 observed, "among the agricultural tribes of West Pakistan questions of family honour, touching the females of the family are of almost overpowering importance, and to vindicate that honour they feel bound to go to very great lengths". Keeping in view the facts of this case as proved on the record and the law applicable in the said circumstances, the case of the appellants clearly falls under Exception 1 to section 300, P.P.C. And the accused-appellants could not be convicted under section 302, P.P.C. The conviction can be passed in such circumstance under section 304(I), P.P.C. As was observed by a Division Bench of this Court in the case of Muhammad Sadiq v. The State PLD 1966 (W.P.) Lahore 104) (D.B.).
18. Accordingly, the appeal is accepted to the extent that the sentence of the appellants is converted to fall under section 304(1)/34, P.P.C. They have already undergone rigorous imprisonment of four years, three months and four days as they were arrested on 18-11-1987 and bailed out on 22-2-1992 and I feel convinced that the sentence already undergone by them is sufficient. .