' ZAFAR PASHA CHAUDHRY Amanat Ali appellant has filed Criminal No,517 of 1993 being aggrieved for the judgment, dated 4-7-1993 passed by Mr. Saif-ur-Rehman Khan, Additional Sessions Judge, Faisalabad, camp at Samundari, whereby he was convicted under section 302, P.P.C. For committing the Qatl-e-Amd of Muhammad Sultan and sentenced to death as Ta'zir, and also to pay a compensation of Rs,10,000 to the heirs of the deceased.
2. The prosecution case in brief is that on 16-9-1991 at ' Zohar Vaila' appellant Amanat Ali visited the house of the complainant Muhammad Ghufran P.W.1 and asked Muhammad Sultan to accompany him to their Daira situated in Square No,56 Killa No,13. The complainant also accompanied him and after reaching the Daira, they were sitting near its gate on cots. Appellant Amanat Ali took a hatchet from inside the Daira and suddenly inflicted a hatchet blow on Muhammad Sultan on the left side of his head. He repeated the blow which also landed at the left side of the head. On alarm, Muhammad Yousaf and Muhammad Arshad who were passing by the Daira were attracted to the site.
' Amanat Ali fled away along with his hatchet. Muhammad Sultan was removed to the hospital but he succumbed to the injuries over there.
3. The motive was stated to be that one Alia Jhaidu was residing at the Diara of Amanat Ali appellant. Amanat Ali had illicit relations with daughters of Alia Jhaidu. Amanat Ali suspected that Muhammad Sultan visited the Daira in order to accomplish his illicit liaison with the doughter of Alia Jhaidu. On the statement of Ghufran, F.I.R. Exh.P.A. Was recorded at 7-00 p.m. With Police Station Samundri located at a distance of ten miles from the place of occurrence. Farooq Ahmed Inspector P.W.8 identified that Exh.P.A. Had been recorded by Ghazanfar Abbas S.-I. He conducted the investigation, got recovered hatchet P.1 at the instance of the appellant. He also performed other formalities necessary to complete the investigation.
4. The prosecution in order to prove its case examined eight witnesses. Dr. Hafeez Ullah P.W.7 initially examined Muhammad Sultan and prepared the medical legal report and found that following two injuries on his person:--
(1) An incised wound 8 c.m. x 1/2 c.m. x going deep into brain cavity. Brain membrane and brain matter were coming out. Cut was through and through. This wound was on left side of the head. X- Ray was advised.
(2) An incised wound 3 c.m. x 1/2 c.m. x going deep into brain cavity at head on left side. It was 2 c.m. Posterior from injury No,1 . Occipital bone was also cut through and through. Patient was pulseless. There was labored breathing. Patient was unconscious. The condition was very serious.
' Unfortunately, the victim expired at 6-45 p.m. On the same day i,e, 16-9-1991 and he conducted the post-mortem examination. The same injuries were again noted in the post-mortem examination. The injuries were found to be ante-mortem and sufficient to cause death in the ordinary course of nature.
5. P.W.1 Ghufran complainant and Muhammad Rashid P.W.2 furnished the eye-witness account.
Both the witnesses made consistent statements and reiterated the statement made by P.W.1 in the F.I.R. Exh.P.A. P.W.2 Muhammad Rashid made statement similar and identical to the of P.W.1. P.W.1 also attested the recovery of blood-stained hatchet P.1 which was taken into possession vide memo. Exh.P.B. On 22-9-1991 at the instance of the appellant from the corner room of his Daira. The remaining witnesses are of formal nature all of them supported the prosecution case and deposed about their respective functions performed by them during the investigation. The prosecution also rendered in evidence the Report of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.M. And with that closed the case for the prosecution.
6. After the close of the prosecution evidence, the appellant was examined under section 32, Cr.P.C.
In answer to Question No,7, he made the following reply:- "The case is false. The P.Ws. Had deposed falsely. Actual facts are that on the day of occurrence at about noon time, Sultan deceased came to the Derah of Haji Wali Muhammad, and that I used to live with Wali Muhammad, who was my maternal grand-father, temporarily. Actually I used to reside at Chak No,476/GB. Alia Jhaidu used to reside at the Derah of Haji Wali Muhammad, who was residing there along with his family members including his grown up daughters. Sultan deceased who had developed illicit relations with Mst. Bakht Bibi daughter of said Alia and started dragging her in order to abduct her and commit Zinabil-Jabar with her. On her cry, I came to the Deorhi of the said Derah from the cattle shed where I was serving fodder to the cattle and I intervened to save the honor of Mst. Bakht Bibi, whereupon, Sultan Ahmed deceased aimed his revolver at me, I picked up a small hatchet from the Deorhi which was already lying there and injured the deceased in order to save myself and to save the honor of Mst. Bakht Bibi in exercise of right of my self-defense and to save the honor of said lady. Mst. Bakht Bibi was to be married after few days after the occurrence. Hermit Ali Chowkidar and Alia Jhaidu also reached the place of occurrence after the occurrence was over. I appeared before the Police on the day of occurrence and produced the small hatchet before the Investigating Officer, Ghazanfar Abbas and made the statement which I am making today but the said Ghazanfar Abbas had connived with the complainant and he falsely got me challenged."
7. On conclusion of the trial, the learned trial Court, convicted the appellant and passed the sentence as noted above.
8. The learned counsel appearing on behalf of the appellant argued that the prosecution has not been able to establish the guilt of the appellant; that the prosecution version is not plausible; that the P.W.1 Muhammad Ghufran could not have accompanied the deceased at the instance of the appellant; that Muhammad Rashid P.W.2 is a chance witness being a passer-by. When confronted with the statement of the appellant, that he has admitted the occurrence and has come forward with the defense plea, therefore, killing of the deceased by the appellant is admitted, although he has urged his own explanation. The learned counsel, therefore, took up the plea that the case is of two versions and if both the versions are placed in junta-position, the defense version has taken up by the appellant is more plausible as compared with the prosecution version.
9. The learned counsel appearing for the prosecution has, however, controverted the submission and argued that the prosecution as produced truthful and reliable witnesses and neither of the eye-witnesses has any enmity gains the appellant and had no motive to falsely implicate him.
Their statements are supported by the medical evidence and with the fact of recovery of blood- stained hatchet at the instance of the appellant. Moreover, the appellant himself admits the killing of the deceased; therefore, the argument that the prosecution has not proved its case has no substance. Further, submits that the defense version on the face of it is not acceptable and has been rightly discarded by the learned Trial Court.
10. After going through the prosecution evidence, we feel that the prosecution witnesses have made consistent statements and the fact that Sultan deceased was done to death by Amanat Ali appellant has been proved beyond doubt. The statements of witnesses are supported by the medical evidence and also found corroboration from the recovery of blood-stained hatchet on the potation of the appellant. Their version is also supported by the admission of the appellant himself during the statement under section 342, Cr.P.C. To the extent that Muhammad Sultan deceased was done to death by him. However, with a view to consider and appreciate the defense version we have examined in detail the version put forward by the appellant.
11. The perusal of his statement reveals that he has come forward with two defense pleas. Firstly, that Muhammad Sultan deceased came to the Daira of Haji Wali Muhammad where the appellant was also putting up being his grandson. Alia Jhaidu also resided in the Daira along with his daughters. Muhammad Sultan developed illicit relations with Mst. Bakht Bibi daughter of Alia Jhaidu and she was being dragged in order to abduct her and commit Zina-bil-Jabr, the appellant intervened with a view to rescue her. The second part of the version is that when the appellant intervened Muhammad Sultan deceased took out his revolver and aimed at him, therefore, the appellant picked up a small hatchet lying in Deorhi and inflicted injuries on the deceased to save his life and also the honor of Mst. Bakht Bibi.
12. As regards the question that the appellant caused injury.To save his life as the deceased intended to fire at him with his revolver, is not acceptable. If Muhammad Sultan deceased was armed with revolver and intended to fire at the appellant then it is inconceivable that he would have permitted the appellant to pick up the hatchet and thereafter, to cause injury on his head.
The version is rendered still more unacceptable when after inflicting one injury the appellant tried to repeat the injury on his head but the deceased did not fire any shot at him.. Had the deceased been armed with the revolver, he would not have permitted the appellant to inflict the injuries one after the other on his head. This part of the defense version cannot be accepted being implausible and unreasonable.
13. The second part of the version that Amanat Ali appellant committed the murder in order to save the honor of Mst. Bakht Bibi who was being forcible dragged by the deceased in order to commit Zina-bil-Jabr, he intervened and to prevent the deceased caused injuries to him, is equally unconvincing and self-contradictory. It is inconsistent for the reason that on one hand it is alleged by the appellant that deceased developed illicit relations with Mst. Bakht Bibi and at the same time she was being dragged as if she was not a consenting party. If Mst. Bakht Bibi had an illicit liaison with the deceased she would have willingly accompanied him and there was no need of dragging her forcibly. This version is not acceptable because at the alleged time and place it is inconceivable that anyone would have made an attempt to forcibly drag a girl in order to commit Zina-bil-Jabr. Daira of Haji Wali Muhammad is in an inhabited place where inmates of the family including male and female resided. Alia Jhaidu had also his family. During the month of April at Zohar Vaila a number of people go round about in the streets, if the appellant at all had to abduct Mst. Bakht Bibi or to elope with her, the same does not appear to be possible at that time and place. The learned counsel, however, argued with vehemence that the appellant has taken up this version before the Police and P.W. During his cross-examination admitted that the version has been taken during the investigation as well. Further submits that it is admitted by the Investigating Officer that deceased used to visit the Daira of Alia Jhaidu frequently and had young daughters with whom deceased had developed illicit relations. The deceased did not stop even on the intervention of Alia Jhaidu. He, therefore, argues that the appellant, therefore, acted out of provocation and as such cannot be held guilty of offence under section 302(A) or 302(B), P.P.C.
Being a case of grave and sudden provocation he is entitled to get benefit of the same.
14. As already observed, we are of the view that the appellant may have taken this defense before the Investigating Officer and it seems to be true that the deceased might have been making indecent accesses towards the daughters of Alia Jhaidu, a worker or servant of his grand father Haji Wali Muhammad but it is not acceptable that a girl who stately has illicit relations with the deceased would have been forcibly dragged and as such provided an occasion for the appellant to intervene or to come to rescue her. No defense of grave and sudden provocation is as such available to the appellant, however, at the best these facts and circumstances may provide mitigating or extenuating circumstances .In favor of the appellant, as a result of which lesser penalty may be imposed. It has also come on record through the evidence of prosecution that the appellant had also been taking steps to develop illicit relations with the girls.
15. The upshot of the above discussion is that although the prosecution has proved its case beyond doubt and it is admitted fact that the deceased was done to death by the appellant, but he is not entitled to the benefit of grave and sudden provocation or self-defense. The facts and circumstances that the deceased was suspected to develop illicit relations, thus, furnish a valid ground for award of lesser penalty, we accordingly, hold the same. As a result thereof, the appeal is dismissed. However, the sentence of death is converted to that of 0 imprisonment for life under section 302(b), P.P.C. The benefit of section 382-B, Cr.P.C. Is also extended. The order relating to award of compensation ofRs,10,000 and in default thereof to suffer six months R.I. Is maintained.