' Muhammad Hanif son of Nizam Din, caste Arain, aged 29 years, resident of Chak No, 8, Husain Kbanwala, Tehsil Pattoki, has submitted this appeal through Jail questioning the correctness of his conviction under section 302, P. P. C. With a sentence of life imprisonment and a fine of Rs, 500 ride the judgment dated the 11th of July 1974 of Raja Muhammad Khurshid, then Additional Sessions Judge, Lahore.
2. The incident involving the death of Muhammad Sadiq (deceased) at the hands of Muhammad Hanif appellant took place on the 15th of January 1972, at 9-00 a.m. In Chowk Masjid'ala of their Chak on a suspicion about his illicit liaison which his wife Mst. Sharifan as reported by Muhammad Sharif (P. W. 8) to Sub.Inspector Muhammad Yaqub (P. W. 12) who met him at the bridge of Rajban Karkani at 11-30 a.m. And recorded his statement (Exh. P. D.) about it which was forwarded to the Police Station, Pattoki for the registration of this case, Exh. P. D/1 being the formal first information report.
3. It was alleged that Muhammad Sharif complainant in his capacity of a Chowkidar was present with Ahmad All Lambardar (P. W. 7) in the Central Chowk of this Chak for collection of revenue and was deputed to call the assessees. As he reached the Chowk Masjidwala he found Muhammad Hanif appellant talking to Muhammad Siddique P. W. Not produced) near the tonga of Muhammad Sadiq (deceased) parked unattended there. The latter, however, appeared in the meanwhile from the side of his house when Muhammad Hanif appellant pulled out a country-made pistol '12 bore from under the woollen chaddar wrapped around him and fired a shot at Muhammad Sadiq (deceased) which hit him in his chest and felled him to the ground. He then reloading his pistol, warned that whosoever came near would meet the same fate and in order to scare away Muhammad Sharif complainant and Muhammad Siddique (P. W. Not produced) put through a second shot in the air. He then went near the injured and gave some blows on his head with butt ends of the pistol when Muhammad Sharif complainat and Muhammad Siddique (P. W. Not produced) caught hold of him and disarmed him of this pistol. Muhammad Yaqub and Muhammad Sharif P. W. And some others also witnessed this tragedy. Abmad Ali Lambardar was also attracted to the spot by the reports of these fire shots and taking him along Muhammad Sharif complainant proceeded towards the Police Station leaving the appellant and the dead body under the care of the other persons there. They, however, met Sub-Inspector Muhammad Yaqub (P. W. 12) alighting from a bus at the above-named bridge and reported the matter to him. A. S. I. Aziz Beg and Foot Constable Karim Bakhsh were also accompanying the A. S. I. At that time.
4. After sending the statement (Exh. P.D.) to the Police Station through Foot Constable Karim Bakhsh the S. I. Proceeded to the spot where Muhammad Siddique (P. W. Not produced) handed over the appellant to his custody along with pistol (P. 1) and envies (P. 2/1-2) which were sealed into a parcel vide memo. Exh. P. A.
' He also secured blood-stained earth from there vide Exh. P. B. And a niswari chaddar vide Exh. P. C.
He then despatched the dead body to the mortuary under the escort of Muhammad Sherif (P. W. 2) through application Exh. P. J. After preparing the necessary inquest report Exh. P. G. And the injury statement Exb. H.
The Sub-Inspector got prepared the site plan (Exh. P. F.) with its duplicate Exh. R F./l from Abdul Aziz Draftsman (P. W. 1) and putting his notes in red ink signed it in token of its correctness.
5. On 16th January 1972, at 9-00 a.m., Dr. Abdul Khaliq (P. W. 6) held autopsy on the dead body of Muhammad Sadiq (deceased) and found the following injuries vide Exh. P. F. : (1)One circular wound of entrance 4/10' x 3/10' on the front of left side of chest, 1/1-2 below and medial to the left nipple.
(2)One circular wound of entrance 4/10' x 3/10" in the middle of ebigastrium.
(3)One wound of entrance 4' x 4/10' on the outer side of the lower part of left chest. It communicated with injury No, 4.
(4)Wound of exit 4/10' se 4/10" with lacerated and everted margins on the outer side of lower part of left chest 24' from injury No, 3 communicating with it.
(5)Wound of entrance 3/10' x 2/10' on the upper part of left upper arm.
(6)Wound of entrance 3/10' x 2/10' on the back of left forearm at its upper part. Blackening was present around all these wounds except No, 4.
(7) An abrasion x 1/4' on the outer side of lower part of left upper arm.
(8) An abrasion r x 4" on the middle of front of left forearm.
(9) Contused wound 1'x 1/10 x skin deep on the interior right side of head.
(10) Contused wound 1' x 1/0 on the right side of the head injury No 9.
(11) Contused wound 1" x 1/10' on head, 34' tom the ear.
(12) Contused wound 1' x 1/10' on behind injury No, 11.
(13) Contused wound 1-2 x 1-4 on the head.
' In his opinion injury No, 1 was sufficient to cause death in the ordinary course of nature. Death occurred due to shock and haemorrhage. Injuries Nos. 1 to 6 were caused by a firearm while the rest with blunt weapon. The duration of the injuries and the death was within three minutes and between death and post-mortem was about 24 hours.
6. In addition to this medical evidence and that of recoveries the prosecution had relied for its case at the trial on the testimony of Muhammad Sharif complainant (P. W. 8), Muhammad Sharif son of Muhammad Yousaf (P. W. 9) and Muhammad Yaqub (P. W. 11) for the ocular account of the occurrence who have supported the above narration in a chorus manner. The last-named witness had also deposed about recoveries while Ahmad All Lambardar (P. W. 7) had been examined to corroborate the complainant about his despatch to collect the assessees of revenue and also about his accompanying to the Police Station for report.
7. The appellant in his turn had denied the allegations made against him by the prosecution witnesses and setting up a plea of grave and sudden provocation made the following statement under section 342 of the Criminal Procedure Code : "The facts are that I am a poor man and have an old father. I was married but my wife died leaving one child and I again married with Mat. Sharifan. She also gave birth to a child. We were living peacefully but Muhammad Sadiq deceased who had 4/5 houses of his relatives and himself was comparatively vigour and stout. Be started taking liberties with my wife before the occurrence who complained to me about this. Being a poor man I only entreated with the brother of the deceased and Ahmad All Lambardar who belonged to the party of the deceased to prevail upon the deceased not to play with the honour of a poor man like myself, but he remained adamant. On the day of occurrence my wife Mst. Sharifan came crying to me that she was caught by the arm by the deceased in the street who asked her that she should accompany him to Pattoki. She abused him, got rid of and ran to the house. On this I was enraged highly and I reached the village Chowk. Mat.
Sharifan followed crying and abusing the deceased. I asked the deceased as to why he had again tried to play with my honour but the deceased most arrogantly told me that he would do the same and that I could do whatever I liked. On this I lost my control and gave injuries to him with the butt of a pistol and then fired at him. He fell on the ground and I went to the Police Station to report about the occurrence. The Sub-Inspector took me to the place of occurrence. On the way Ahmed All Lambardar and Sharif P. W. Met us. The story as narrated by the P. Ws. Is absolutely Jalse because none of them was present there. The only persons present near the spot were the shopkeepers of the Chowk. I am a poor man and have no relative in the village. The oppasiteparty is strong and they were able to give twist to the story. My whole family has been ruined. My wife has been taken away by her parents and they do not allow her to meet me, while my child from the first wife has nobody to look after him except my old father who is about 80 years."
' He had taken almost the same defence in the grounds of appeal submitted through jail. The appellant had thereby admitted the occurrence with its time and place as also the weapon attributed to him adding the above detailed circumstances of grave and sudden provocation. The only point that requires determination is, which of the two rival versions is correct.
8. On his written request the appellant was sent for from the jail and heard in person, who had asserted that the Sub-Inspector had come to the spot on his report which was not recorded and a false case was fabricated against him by setting up imported witnesses after prolonged deliberations at the instance of MuhamrnadSharif complainant (P. W, 8) cousin of Muhammad Sadiq (deceased) who being a Chowkidar of the Chak had succeeded in prevailing upon him (the Sub-Inspector) through Ahmad Ali Lambardar (P. W. 7) to help him. On going through the record I am persuaded to agree with these contentions ' The close associations of a Chowkidar with his Lambardar and the S. H.
0. Of their Ilaqa cannot be denied and being hands-in-glove with each other it has in most of the cases earned them the epithet of stock witnesses of the police. I, however, do not want to look upon the case with doubt merely on this conjectural basis but there is unimpeachable testimony to support it. This assertion is rather confirmed from the concessions of Ahmad Ali Lambardar (P. W. 7) himself, who had deposed before the Committing Magistrate that on reaching the Pacca Road they met the Sub-Inspector who informed them, that he had already come to know about the occurrence. He had been duly confronted with this statement at the trial. He had further disclosed that on reaching the spot the Sub-Inspector recorded the statement of Muhammad Sharif complainant (P. W. 8) and that of other witnesses, whereafter the Sub-Inspector made a general announcement in the crowd gathered at the spot that he should be informed about the true facts and also interrogated some of the respectables present among them. Even the complainant had himself admitted in his cross-examination that the police obtained his statement at the place where the dead body was lying and appended his signatures under the same. These concessions made so boldly by the two concerned witnesses left no room for doubt that the first information report was recorded at the spot after a preliminary enquiry so it bad lost all sanctity attested to it in law as also its evidentiary value. Muhammad Sadlq's case (1) and Allah Bakhsh's case (2) are the authorities on the point. I have, therefore, to exclude the statement (Exh. P. D.) of Muhammad Sharif complainant from consideration in this case.
(1) PLD 1958 Lah. 601 (2) 1969 P Cr. L 11204
9. As regards the induction of the eye-witnesses the complainant had made another startling disclosure that the houses of Nazir Tarkhan, Hafiz Muhammad Amin, Muhammad All Arain and shops of Muhammad Husain and Sardar Lambardar were located near the place of occurrence and that the shop of Hafiz Muhammad Amin was open at that time and a number of persons came from these houses on hearing the first pistol shot who remained present there at the time of the second fire, that since none of them had sympathy with them they did not cite any of them as witnesses adding that they were confident about the present P. Ws. That they will not be won over, so they had installed them as witnesses.
' Muhammad Sharif (P. W. 10) son of Muhammad Yousaf disclosed that the police enquired from the persons assembled there as to who had seen the occurrence from amongst them. He also asked the heirs of the deceased as to who should be cited as witness from among them whereupon the heirs consulted some of them and gave their names as witnesses to the police. The S. I. After obtaining their consent about it registered the case. None of the above-named neighbours having been cited in the calendar of witnesses would indicate a deliberate shutting out of independent evidence from the vicinity of the alleged murder. Muhammad Sharif (son of Muhammad Yousaf (P. W. 9) and Muhammad Yaqub (P. W. 10) had admitted that they resided at a distance of two or three acres from the spot. They were thus imported from other parts of the Chak on the pretext of taking bath in the mosque though the normal routine of a villager is to go out to the fields early in the morning and then take bath at the wells. The statements of both these witnesses having varied about the sequence of their arrival at the mosque, their turn for taking the bath, the use of the particular bath-room by each of them and the stage when they came out of the mosque oven otherwise did not permit of any credence in the testimony of these self- condemned witnesses.
10. According to the first information report and the statement of Ahmad Ali Lambardar at the trial the latter had not witnessed at all any part of this deadly assault on Muhammad Sadiq (deceased), but the complainant for reasons best known to him had stated that Lambardar Ahmed All had himself seen the entire occurrence while the latter never made this claim.
Muhammad Siddique (their star witness' who was said to be standing with Muhammad Hanif appellant near the Tonga of Muhammad Sadiq (deceased) and in whose presence the former had shot down the latter whereafter he had apprehended the appellant at the spot along with pistol (P.
1) later produced before the Sub-Inspector along with the two empties (P. 2/1-2), had not entered the witness-box to lend support to this part of the story.
11. In the same way Muhammad Yaqub (P. W. 10) had let down the prosecution about the recovery of the pistol (P. 1) and the two empties by telling an altogether different tale about it. He had stated that Ahmad All Lambardar on reaching the spot had taken the pistol (P. 1) and the empties into his possession from Muhammad Siddique (P. W. Not produced) and then went to the Police Station with Muhammad Sharif (P. W. 8) to lodge a report. Muhammad Sharif (P. W. 11) had also deposed the same about it. If it was true the pistol and empties should have found mention in the first information report as Ahmed Ali Lambardar had taken the same along. Muhammad Sharif complainant had contradicted both the versions before the Committing Magistrate where he had deposed that the pistol was only recovered from the place of occurrence. I haw, therefore, to reject all the prosecution evidence about the occurrence and the incriminating recoveries.
The appellant had, of course, admitted at the trial that he had given injuries to Muhammad Sadiq (deceased) with the butt of a pistol and then fired at him. The law, however, does not permit the dissection of his statement under section 342, Cr. P. C. As it has to be accepted or rejected as a whole. In Rahim Bakhsh v. The Crown (I) it was laid down that if the conviction of an accused is to be based solely on his statement in Court it should be taken into consideration in its entirety (Abder Rashid, C. J.).
12. In the present case it rather finds ample corroboration from the statement of Lambardar Ahmed All (P.W. 7) who had stated before the Committing Magistrate that the appellant had complained to him that the deceased was in the habit of taking liberties with his wife. Muhammad Sherif complainant (P. W. 8) had admitted at the trial that just after the occurrence Muhammad Hanif appellant had stated before the persons assembled there that the deceased was having illicit relations with his wife. It could not, therefore, be dubbed as an afterthought. Muhammad Yaqub (P.
W. 11) had disclosed that the Thanedar came to the spat and enquired from the persons present there if the deceased used to take liberties with the wife of the accused-appellant which would confirm the stand taken by the appellant that he had informed the Sub-Inspector about it before he reached the spot. The Sub Inspector had, in fact, incorporated it in his final report under section 173, Cr. P. C. That Muhammad Hanif appellant had a suspicion that Muhammad Sadiq (deceased) had developed illicit relations with his wife, who had herself complained to her husband twice about it. On being confronted with the relevant portion about it he had added that Mst. Sharifan Bibi had herself disclosed that Muhammad Sadi' had taken liberties with her and that he had recorded her statement in this respect. The circumstances supporting the appellant's stand are thus established from the prosecution evidence itself which had laid foundation for the plea set up by him at the trial. In fact it would be the natural conclusion or corrollary that the deceased who had been wooing his wife earlier might have indulged in his evil persuit on the fateful morning as well and on its communication to the appellant by her it might have provoked a reprimand for Sadiq (deceased) on which the appellant might have followed him to the Chowk with that object only but the arrogant taunt of the deceased added fuel to the fire already ignited in his heart against the persistent misbehaviour of the deceased. I am fortified in this conclusion by the observations made in Shamshad's case (2) and it will not be out of place to reproduce the same here :- "It is clear that in making their final assessment of the case, the learned Judges in the High Court did not follow the principles and procedure laid down very clearly for application in cases of the present kind by the Federal Court in the case of Safdar Ali. When those principles are applied, it becomes plain that the explanation put forward by the accused for his conduct is at least as worthy of acceptance as that put forward by the prosecution. There are circumstances which support the accused's explanation which are not consistent with the story set up by the prosecution. That being the case, effect must necessarily be given to the accused's version as reasonably possible, which reacts 41) PLD 1952 FC 1 (2) PLD 1963 SC 740 upon the credibility of the prosecution case by creating reasonable doubt regarding the truth of the incidents upon which it rests,"
' Cornelius, J. Reiterated the same view in Fazle Malik v. The State (1). The latest judgment on the point is Nindo Mach' v. The State (2) by late Tufail Ali A. Rehman, J., who had expressed himself in the following terms "Where, however, there is some evidence that such could have been the case then the Court must consider that evidence and if there is any reasonable doubt upon the matter then the benefit of that doubt must go to the appellant. . . . . . . . . .
' Indeed the circumstances are such as would seem to lend support to what the appellant has said.
It is true that the appellant did not come upon his wife sitting with her lover but that is not a requirement of Exception I to section 300. That exception comes into play when the offender whilst deprived of the power of self-control by grave and sudden provocation' causes the death of person etc. Here was a case of a person whose wife had eloped before and who had suddenly disappeared ; he had gone in search of her and had spent some 18 hours trying to find her and comes back home to find her sitting in his house and I cannot but believe that the sight of her sitting like that must have caused him provocation which was both grave and sudden. In the class of society to which the appellant certainly belongs such a sight is one which is extremely likely to result in loss of self-control. I am, therefore, of the opinion that Exception I to section 300 applies and that the offence committed by the appellant is one punishable under section 304, Part I of the Pakistan Penal Code."
14. This assessm ent of the circumstances in the above case would aptly apply to the case of the appellant in the miserable situation he found himself on the eventful morning and the blashphemous arrogance exhibited by Muhammad Sadiq (deceased) in the resultant confrontation was not at all unnatural or improbable in the admittedly scandalous background of this occurrence. This taunting attitude of the deceased in a public place like the Chowk of the Chak must have deprived the appellant of self-control entitling him to the benefit of this exception. By no stretch of imagination his act could be regarded as culmination of a grievance nursed by the appellant for some time before he chose to kill Muhammad Sadiq (deceased) as remarked in Mukhtar Ahmad's case (3). It was rather a case of the last straw driving the camel's back being the height of his excesses towards his wife which spontaneously drove this impulsive youngman to take a serious notice of his misbehaviour, but on giving a hot chase to the deceased up to the Chowk he met with an outrageous taunt from his side resulting in this violent reaction.
15. There are no doubt some decided cases where, in the circumstances thereof, it was held that mere abuse or taunt by itself is no ground for invoking grave and sudden provocation. It has been laid down as a law that in all circumstances, including an abuse, if it is of the filthiest kind and is given to a person, who would normally not tolerate such abuse, the Courts should never treat it as capable of giving rise to grave provocation. Such questions cannot be resolved by any technical view of the matter. It
(1) 1969 SCMR. 364 (2) PLD 1975 Kar. 120
(3) 1975 SCMR 51 all depends upon the circumstances of each case and a finding has to be given on this fact as in rspect of any other fact. This supposition is supported by the explanation to Exception I, which provides "whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact." Therefore, while deciding this question of fact the normal practice of appreciation of evidence will have to be kept in view. The social and cultural background of the culprit ; his family traditions ; his education ; his environments ; his age ; his own way of life, and his relationship with the adversary, among other circumstances, may have to be considered Similarly the attending circumstances before the abuse and after the abuse will have to be taken note of as observed in Mir Afzal's case (t) of which I was member. The abuse hurled on the street in the presence of others coupled with assault was considered sufficient to cause grave and sudden provocation to the appellant keeping in view his social and cultural background in the above cited case.
' In the case in hand the appellant too hailed from that uneducated class of the society (moeen) who have their own notions of morality, self-respect and tender feelings about their woman-folk and are likely to flare up in such a situation entitling him to this concession.
' It would make no difference if he had himself not seen the deceased insulting his wife in that fashion as seeing or hearing about it from his wife would have provoked the same reaction which would certainly be covered under Exception Ito section 300, P. P. C. Being the result of a grave and sudden provocation. Muso's case (2) which was followed in Ghulm Husain v. The State (3). In the last-mentioned case too the appellant having reprimanded his sister on her elopment was confronted with an equally provocative diablerie.
16. The upshot of this discussion is that the conviction of Muhammad Hanif appellant is altered to that under section 304, Part 1 of the Pakistan Penal Code.
17. As regards the sentence this case is certainly not to be compared with one of those where a person comes upon his wife and her paramour in very act of intercourse without any previous suspicions and kills her so he will not deserve the leniency shown in such cases. I am, however, of the view that rigorous imprisonment for five years without any fine for awarding-compensation will meet the ends of justice in the circumstances of the present case. The appeal is dismissed with this modification in his conviction and sentence.
(1) 1972 P Cr. L J 1205 (2) PLD 1960 Kar. 966
(3) P L. D 1972 Lab. 153