' This appeal is directed against the judgment dated 15-10-1992 passed by Mr. Muhammad Saleem Qureshi, Additional Sessions Judge, Chiniot, whereby he convicted the appellants under section 302/34 P.P.C. And sentenced each of them to life imprisonment with a fine of Rs, 10,000 each or in default thereof to undergo further R.I. For 3 years each.
2. Briefly stated the facts are that Sardol complainant (P.W.1) and Mali father of accused/appellants own land adjacent to each other. They have got a joint tubewell. On 24-4-1991, complainant along with his son Zulfiqar aged 14/15 years were cutting fodder in their fields whereas Noora son of Amir and Hyder son of Mutalli were also present in their fields. At about 10.00 a.m., his son Zulfiqar went to the water-tap of Mali situated in his Dhari for drinking water. While he was drinking water, Akbar and Ashraf alias Hashoo son of Mali armed with a hatchet and Danda respectively emerged and Akbar raised Lalkaras that he (deceased) would not be allowed to go alive. On his (Akbar) Lalkara and hue and cry of Zulfiqar, the complainant as well as Noora and Hyder were attracted on the spot. The accused Akbar inflicted successive hatchet blows on the left and right side of head of Zulfiqar who consequently fell on the ground. Thereupon, Ashraf alias Hashoo accused inflicted Danda blows on the neck, back and other parts of his body. The complainant and others tried to catch hold of the assailants but they succeeded in decamping from there with their weapons. The motive behind this occurrence is that on the previous night, their wheat crop was, damaged by the accused and his son Zulfiqar had abused the accused, who in order to take revenge of their disgrace, murdered his son Zulfiqar. Leaving the dead body on the spot, he made for the police station to lodge F.I.R.
3. Muhammad Akram S.I. (P.W.8) recorded F.I.R. Exh.P.A. And then made for the place of occurrence.
He prepared injury statement Exh.P.H., inquest report Exh.P.J., rough site plan Exh.P.K. And secured bloodstained earth vide memo. Exh.P.C. On 25-41991, he secured blood-stained Chadar P.1 which was produced before him by Naseer Ahmad constable PW4 and prepared memo. Exh.P.B. On 26-4- 1991, he got the place of occurrence visited and got the site plans Exh.P.F. And P.F./1 prepared from Zulfigar All Patwari (P.W.) which bear his notes in red ink. On 10-5-1991, he arrested both the accused Akbar and Ashraf alias Hashoo. On 13-5-1991, accused Akbar led to the recovery of hatchet P2 which he secured vide memo. Exh.P.D. On the same day, accused Ashraf alias Hashoo led to the recovery of Danda P3 which he secured vide memo. Exh.P.E. After completing investigation he got the accused challaned.
4. A charge under section 302/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused, prosecution examined Sardol complainant as P.W.1 who corroborated his version appearing in F.I.R. Exh.P.A. Prosecution also examined Noora P.W.2 who is an eye-witness of this occurrence and who also attested the memos. Exhs.P.C., P.D. And P.E.
Regarding securing of blood-stained earth and recovery of hatchet P.2 and Danda P.3 respectively.
Khan Muhammad Headconstable P.W.3 deposed that on 18-5-1991, he was given three parcels containing hatchet, Danda and blood-stained earth for onwards transmission to the office of Chemical Examiner which he delivered there intact. Nasir Ahmad constable P.W.4 stated that he escorted the dead body of the deceased on 24-4-1991 and after the postmortem examination, was handed over one Chadar P.1 which he produced before the Investigating Officer who secured the same vide memo. Exh.P.B. Ghulam Murtaza Headconstable P.W.5 deposed that he was given parcels containing Wood-stained earth, blood-stained chadar, hatchet and Danda for keeping in safe custody, that on 18-5-1991, he handed over three parcels containing blood-stained earth, hatchet and Danda to Khan Muhammad constable P.W.3 for onwards transmission to the office of Chemical Examiner, Lahore, Zulfiqar Ali Patwari P.W.6 deposed about visiting place of occurrence and preparing site plans Exhs.P,F. And P.F,/1, Dr. Liaqat Ali P,W.7 conducted the post-mortem examination of Zulfiqar deceased on 25-4-1991 and found the following injuries in his person;
(1) A lacerated wound 6 c.m, x 2 c,m, bone deep slightly on back of right side of head.
(2) A lacerated wound 7 c.m. x 2 c.m. x bone deep slightly on right side of head above right ear. .
(3) A lacerated wound 6 c.m. x 2 c.m. Bone deep slightly on right side of head above right ear.
(4) A lacerated wound 3 c.m. x 1 c.m. x bone deep on left side of head 8 c.m. Above left ear.
(5) A contused swelling 8 c.m. x 6 c.m. On left side of neck upper part, just on back of left ear, with a lacerated wound 3 c.m. x 2 c.m. Bone deep in its contre. The neck was freely mobile and rolling about in all direction at this point.
(6) An abrasion 5 c.m. x 1 c.m. On outer side of left eye brow.
(7) An abrasion 5 c.m, x 3 c.m. On the left cheek upper part.
(8) A contusion 10 c.m. x 2 c.m. On back of right side of neck lower part and back of right shoulder.
(9) A contusion 12 c.m. x 3 c.m. On back of left upper chest in upper part of left scapula.
(10) A contusion 12 c.m, x 3 c.m. On back of left chest middle and lower part.
' In his opinion, death had occurred due to injury No,5 which was fatal in nature and was sufficient to cause death in the ordinary course of nature. All other injuries were simple and caused by blunt- weapon. Probable time between injuries and death was within a few minutes or so while between death and post-mortem examination was within 6 to 18 hours. He produced correct carbon copy of the post-mortem examination Exh.P.G, and diagram of injuries Exh.P.G./1 which bear his signature.
He also signed the injury statement Exh.P.H. And inquest report Exh.P.i. P.W.8 Muhammad Akram S.I.
Is the Investigating Officer whose evidence has already been discussed above. On 14-9.1992, the learned D.D.A. Produced report of Chemical Examiner Exh.P.L. And of Serologist Exh.P.M, and then closed the case for prosecution.
6. On 15-9-1992, statement of accused Akbar was recorded under section 342, Cr,P.C. Wherein he denied the prosecution version and in reply to question No,7 as to why this case against him, he replied as follows;-- "The P.Ws, are inter see related, They have falsely involved me and my brother in this case. In fact on the day of occurrence at noon time my sister Mst Mumtaz Bibi was washing the clothes alone on our Dhari near water pump. On account of summer season, none was present around. Zulfiqar deceased suddenly went there and caught hold of my sister, tried to drag her inside the Dhari. She resisted. Zulfiqar deceased removed his loin cloth and also removed the loin cloth of my sister, threw her on the ground and attempted to commit Zina-bil-Jabr with her My sister resisted and struck her head on the face of the deceased, raised alarm. I was grazing cattle at some distance.
On hearing the alarm of my sister reached there and finding the deceased and my sister in naked condition I became highly provoked, picked up a Sota from the water pump which was being used by my sister for washing the clothes and started giving blows on the back of the deceased while his face was downwards and he was lying on my sister under grave and sudden provocation.
During this process Zulfiqar deceased moved his head and his left side of neck struck against the stone lying at the water pump which was used for washing the clothes and, thus, he received injuries on the left side of his neck. I informed my father who accordingly informed the complainant party. There was no quarrel or no damage of wheat crop of the complainant and a false motive has been set up. The complainant or the P.Ws. We're not present at the time of occurrence. The case was registered after sunset on the manoeuvring of Shaukat alias Naseeb Gill who has friendly relations with the Investigating Officer. My brother Ashraf accused was not present at the spot."
' He also recorded his own statement on 17-9-1992 and produced his school leaving certificate Exh.D.A. Statement of Ashraf alias Hashoo accused was also recorded under section 342, Cr.P.C.
Wherein he denied the prosecution version and also adopted the reply to question No,7 as given by his co-accused Akbar. On 17-9-1992, his statement was also recorded without oath wherein he produced his school leaving certificate Exh.D.13, The trial Court examined Nasir Ahmad Secretary Union Council as C,W.1 who produced birth certificates of the accused Exhs,C,1 and C.2. Thereafter, statement of Akbar accused under section 342, Cr.P.C. Was again recorded on 28-9-1992.
7, After going through the record and hearing arguments of learned counsel for the parties, the trial Court convicted the accused/appellants vide judgment under appeal.
8. Arguments have been heard and record perused.
9. It is submitted by learned counsel for the appellants that according to prosecution version the deceased was done to death by the accused/appellants when the former visited the Dhari of the latter for drinking water and was attacked by them, that actually occurrence has not taken place in the manner as disclosed in F.I.R. Exh.P.A. But it occurred in the manner as disclosed in the statement of accused Akbar while replying to question No,7, that contention of the accused stands corroborated even from the evidence of prosecution which has come on record through the statements of P.W.1 Sardol complainant, P.W.2 Noora, P. W.7 Dr. Liaqat Ali and Muhammad Akram, S.1. P.W.8. He further argued that when Muhammad Akram SI P.W.8 visited the place of occurrence, he found that the dead body was lying on the spot with its back upward. He further found that the dead body was wearing a loin cloth around his waist but was without shirt and was not covered with any cloth at that time. He untied the loin cloth of the deceased and covered the dead body with the same. He submitted that this condition of the dead -body clearly shows that the deceased had tried to commit Zina-bilJabr with the sister of the accused as asserted by accused/appellant Akbar who out of sudden and grave provocation gave severe beating to the deceased. This contention of accused/appellant Akbar stands corroborated from cross-examination of Dr. Liaqat Ali P.W.7 who admits that the dead body was naked when the same was produced for postmortem examination and was covered with a Chadar. He (P.W.7) further admits that there is probability that injuries on the back side of the deceased had been caused while he was lying on the ground with his back upward. He further admits that injuries which are on the back side could not be caused from front side. This admission on the part of Medical Officer, he further argued, supports the defence version that the deceased was done to death when he tried to commit Zina-bil-Jabr with the sister of accused Akbar. He further submitted that so far as motive ascribed to the accused/appellants is concerned, that is also not proved from the record. According to the prosecution version, the present incident is the result of occurrence which had taken place a day earlier when the crop of the complainant was damaged by the accused party. Admittedly, no such damaged crop was shown to the Patwari who visited the place of occurrence on 264-1991. Similarly there is no mention of this fact in the inspection note which was prepared by Muhammad Akram, S.r (P,W.8) who visited the spot just after the alleged occurrence. Had the wheat crop been darns on the previous day of the caul-erect, it must have been shown to the Investigating Officer who prepared the site-plans on 2444991 as well as to the Patwari who specifically ,visited the place of occurrence on 26-4-1991. The non-mentioning of this fact either in the inspection note or in the site-plans Exh.P.F. And Exh.P.F./1 clearly belies the motive part of the prosecution version. He further argued that the accused/appellants were arrested on 10-5-1991 and since then are in jail. He submitted that it was only accused Akbar who caused injuries to the deceased out of sudden and grave provocation when he saw the deceased in objectionable condition with his sister, and accused/appellant Ashraf has been falsely involved. He submitted that under similar circumstances, the punishment awarded ranges from 3 to 5 years and the appellant Akbar has been in jail for about 8 years, as such the sentence awarded to the accused Akbar be modified to one which he has already undergone and accused/appellant Ashraf alias Hashoo be acquitted by giving benefit of doubt.
10. Conversely, impugned judgment has been supported by the learned State counsel. However, he candidly admitted that from the facts stated above, it appears that the defence plea has got force viz-a-viz the prosecution version.
11. As per prosecution version contained in F.I.R. Exh.P.A., the deceased was assaulted by Akbar and Ashraf accused when he visited the said Dhari for drinking water. Conversely, the stand of the defence is that the deceased had tried to commit Zina-bilJabar with Mst. Mumtaz Bibi, sister of accused Akbar, and it was only Akbar who caused injuries to the deceased out of sudden and grave provocation seeing him committing Zina-bil-Jabar with his sister. Thus, there are two versions of the occurrence and it is to be seen as to which of the versions stands proved from the evidence on record or appears reasonable, plausible and appeals to the mind of a prudent man. If both the pleas are examined in juxta position, then the defence version seems more plausible as it stands corroborated from the statement of Muhammad Akram, S.I. P.W.8 who visited the place of occurrence just after the incident and found that the dead body was lying wearing only loin cloth around its waist and was , without shirt. This defence version further stands corroborated from the statement of P.W.7 Dr. Liaqat Ali who has admitted in his cross-examination that when the dead body was brought for post-mortem examination it was lying naked and only Chadar was lying on it. If the stand of the prosecution, that deceased was attacked when he visited the Dhari for drinking water, is accepted as correct, then the question arises as to why the dead body of the deceased was lying naked with only loin cloth around his waist. The only logical inference which can be deduced from the condition of the dead body on the spot is, that the deceased had tried to commit Zina-bil-Jabr with the sister of the accused Akbar as asserted by him and who out of .Ghairat i,e, sudden and grave provocation caused injuries with the weapon which he found on the spot. The defence version appears more plausible than the prosecution contention. This being the factual position, the learned trial Court was not justified in discarding and disbelieving the defence version and awarding life imprisonment to the accused Akbar as in cases involving Ghairat, lesser punishment has always been awarded. Reliance is placed on Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Muhammad Ishaque alias Baig v. The State 1998 PCr.LJ 1110 (Lahore), wherein sentence of life imprisonment was reduced to two years and 5 years respectively.
12. In view of the above discussion, the conviction of appellant Akbar under section 302(b), P.P.C. Is altered to that under section 302(c), P.P.C. And sentence of imprisonment for life is reduced to one which he has already undergone, as he is in jail for about 8 years. However, sentence of fine is maintained. So far as the question of involvement of Ashraf alias Hashoo is concerned, his involvement is not proved from the evidence which has come on record. The accused Ashraf alias Hashoo has been attributed Danda blows on the person of deceased. However, it has come on record through the statement of Dr. Liaqat Ali P.W.7 that injuries which are on the back side could not be caused from front side. He has further stated that injuries which are on the back side of the dead body might have been caused while it was lying on the ground with his back upward. This admission clearly rules out possibility of infliction of injuries on the part of Ashraf alias Hashoo accused/ appellant. Thus, prosecution has failed to prove his presence on the spot at the time of occurrence beyond doubt. Accordingly, appeal to the extent of Ashraf appellant is accepted. His conviction and sentence is set aside and he is ordered to be released forthwith if not required in any other case.
13. With this modification in the sentence of accused/appellant Akbar, the appeal stands disposed of.