' SH. GHULAM SARWAR, J.---Appellant, Munawar alias Shabboo was charged, for, having allegedly caused Qatl-i-Amd of intentional murder of Muhammad Mansha by inflicting knife blow upon his chest on 5th of May, 1992 in the area of Chak No,23/J.B. Within the limits of Police Station Chak Jhumra, District Faisalabad.
2. Manner and mode of commission of alleged crime set up by the prosecution, as reflected by, unfolded in an gleaned out, of statement Exh.PC made by Muhammad Ali complainant, brother of the deceased, and reiterated by him at the trial as P.W.6, succinctly stated, is as below.
3. On fateful and eventful day, at about 4 p.m., Muhammad Ali complainant, Ghulam Muhammad and Muhammad Mansha were cutting Barseem fodder in the field belonging to Nau-Bahar Noon.
Mazhar came there and wanted to extract sugarcane from the field, too, owned by Nau-Bahar Noon. Muhammad Mansha did not allow to do, causing annoyance, to Mazhar, who, went back.
Shortly thereafter appellant Munawar alias Shabboo reached there raising "Lalkara" to teach a lesson to Muhammad Mansha, as, he had forbidden Mazhar to extract sugarcane. Such voice of appellant attracted complainant Muhammad Ali and his companion Ghulam Muhammad and within their sight, appellant, caused two knife blows on chest of Muhammad Mansha, who, fell down on the ground. In the meantime, Nau-Bahar Noon also arrived there. However, appellant decamped/made good his escape alongwith weapon of offence and Muhammad Mansha succumbed to his injuries at the spot.
4. Leaving dead body of his brother Muhammad Mansha at the place of occurrence in care of P.W.7, Ghulam Muhammad and others, Muhammad Ali complainant, proceeded to report the matter to police. Maqsood Ahmad, Sub-Inspector (P.W.9) met him in Chak No,102/JB where he had gone in connection with patrol duty. Complainant made statement Exh.PC before P.W.9 Maqsood Ahmad, Sub-Inspector.
5. After sending it to Police Station Chak Jhumra through P.W.8 Manak Ali, Constable No,2560 for formal registration of the case, Maqsood Ahmad, Sub-Inspector went to place of occurrence, prepared injury statement Exh.PF and inquest report Exh.PF/1 of Muhammad Mansha deceased and despatched his dead body to morgue for autopsy, under the escort of P.W.2 Falak Sher, Constable No,3812. He also inspected the place of occurrence and collected blood-stained earth from the spot, made it into a sealed parcel, and secured it vide memo. Exh.PE duly attested by the witnesses.
Statements under section 161, Cr.P.C. Of witnesses were also recorded/taken down by him.
6. Post-mortem examination, Carbon copy Exh.PB, of dead body of Muhammad Mansha was conducted by P.W.3, Or. Abdul Shakoor Gill, who, found following three injuries, caused by sharp- edged weapon on the person of deceased:--
(1) A stab wound 1/2 c.m. x 1/2 c.m. Probe passed into chest cavity at front of left side chest 3-1/2 c.m. Below left nipple and 8 c.m. Away from midline. The stab injuries skin sub-cuteneous tissue intercastil muscles of left side of front of chest. Injured left pleura after passing through 10th intercostil past anteriorily. Then it injured left lung at front in middle. Left lung was congested. Left side of pleural cavity contained one litre of blood.
(2) A stab wound 1 c.m. x 1/2 c.m. x probe passed into chest cavity at front of left side of chest 3 c.m.
Below injuris Nos.1 and 6 c.m. Away from midline. It injured skin, soft tissue and passed through 11th intercostil space at front and injured pericardium. Anterolaterally and injured left ventricle. Both sides of empty of blood in heart.
(3) A stab wound 1/2 c.m. x 1/2 c.m. Muscle deep at front of right side chest 7 c.m. Above right nipple 5-1/2 c.m. Away from midline. It injured skin soft tissues and muscle at front of right side chest."
7. In the opinion of doctor, cause of death was haemorrhage and shock due to injuries Nos.1 and 2, which, were sufficient to cause death in the ordinary course of nature individually as well as collectively. Approximate and probable time elpasing between injuries and death was stated by the doctor to be "few minutes" and death and post-mortem about 18 hours.
8. After autopsy, Investigating Officer, took into possession last-worn clothes i,e, blood-stained shirt P-1 and Shalwar P.2 of deceased by means of memo. Exh.PA and got prepared formal site plan Exh.PH and Exh.PH/1 of place of occurrence from P.W.10 Muhammad, Javed Halqa Patwari.
9. Appellant/accused Munawar alias Shabboo was arrested on 13-5-1992. On next day i,e, 14-5- 1992, while in police custody, he led to the recovery of knife P.3 from the Dera of Ghulam Hassan Noon. It was made into a sealed parcel and secured by memo. Exh.PD. Rough site plan of place of recovery of knife, P.3 Exh.PG was also prepared.
10. As indicated above, proceedings commenced with framing of the charge with one head under section 302, P.P.C., to which, appellant pleaded not guilty and claimed trial.
11. To substantiate its version, ten witnesses, in all, were examined by the prosecution. Complainant Muhammad Ali (P.W.6) and Ghulam Muhammad (P.W.7) furnished ocular account, of the incident.
Motive set up in the case was also narrated by both'of them. They further testified about recovery knife P.3 at the instance of appellant. P.W.3, Dr. Abdul Shakoor Gill provided medical evidence.
Various steps taken by him during the investigation of this case were enumerated by Sub- Inspector Maqsood Ahmad P. W.9. Remaining evidence is more or less of formal nature.
12. In his statement under section 342, Cr.P.C. The appellant candidly confessed to have caused injuries to Muhammad Mansha, but, claimed to have been constrained to resort to this measure under the sting and impulse of grave and sudden provocation. While answering question No,6 therein, he maintained that:-- "I am innocent. The case against me is false. In fact on the day of occurrence it was near sunset time when I heard the shrieks of my Bhabi Mst. Halima and I ran towards the sugarcane field where I found the deceased had caught Mst. Halima and in order to save the family honour and in order to save Mst. Halima from being raped, I inflicted injuries upon the deceased."
13. However, he, opted not to appear and make any statement as envisaged by the provisions of law embodied in section 340 (2), Cr.P.C. Mst. Halima Bibi was produced in defence as solitary witness.
14. Being "two-version" case and placing both of it in juxtaposition, learned trial Court on culmination of trial, after passing usual phases, arrived at the following conclusions:-- ' "The further question arises as to whether the accused has been able to prove defence version or there is any reasonable possibility of his version being true. But the same seems to me a fabricated one afterthought and has been taken by the accused to save his kin, for the reasons that he did not state in his statement under section 342, Cr.P.C. That it was his first version which he disclosed before the Investigating Officer during the investigation in this case. After the murder of Muhammad Mansha deceased, knife P.3 was admittedly with the accused Munawar alias Shabboo and he did not produce the weapon before the police voluntarily to prove his bona fides. The accused himself did not surrender before the police, he was arrested by Maqsood Ahmad, S.I Investigating Officer of this case on 13-5-1992 after 8 days of the occurrence. These circumstances also implicate the accused with the commission of the crime. D.W.1, Mst. Halima although deposed in line of the defence plea but her statement is not worth reliance. She stated that she made a statement before the Investigating Officer in defence of the accused who did not, record her statement but she never made any application to the higher authorities of the police against the Investigating Officer. Furthermore, she did not lodge any report in the police station against Muhammad Mansha deceased. She appears to me a .Wholly tutored witness. Thus, I am convinced with the prosecution version of the occurrence which rings true and there is no reasonable possibility of the defence version being true which is concocted and afterthought."
15. Such inference/conclusion led to the conviction of appellant as under: ' "Munawar alias Shabboo accused is held guilty under section 302(b), P.P.C. Because the sentence of Qisas cannot be imposed as the evidence of the prosecution is not available in accordance with .The injunction of Islam as required under Article 17 of Qanun-e-Shahadat. Therefore, Munawar alias Shabboo accused is convicted under section 302(b), P.P.C. And is sentenced to death as Tazir and a fine of Rs,30,000, in default thereof to further undergo R.I. For 2 years. The amount of fine if recovered half of it shall be paid to the legal heirs of the deceased as compensation as required under section 544-A, Cr.P.C."
16. In wake thereof, details of recovery and other factors need not be recapitulated. Occurrence, its time and venue having gone undisputed, matter stands cut down to limited and solitary proposition, if the case falls within the ambit and compass of section 302(c) or section 302(b), P.P.C., under which, the appellant stands convicted and sentenced to "death" as detailed supra and against which he has preferred this appeal and the matter has been referred under section 374, Cr.P.C. Obviously quantum of sentence is also involved.
17. Salutary and cardinal principle of law for just decision of a case of "two versions" stands enunciated in Muhammad Yunis v. State (1992 SCM R 1592). Following illuminating observation made therein furnish guideline in this context:-- ' "It is by now well-established that in a situation like the one in hand, both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred to, if it gets support from the admitted facts and circumstances of the case and appeals to commonsense."
18. When tested on the touchstone, so laid, by august Apex Court, edifice erected by the prosecution crumbles down and falls to the ground like house of Cards and in no way; could be taken, to have been established by the data and material on record.
19. Very mode of occurrence disclosed by P.Ws. Looks doubtful. Both P.W. 6 and P.W.7 alongwith deceased were allegedly cutting Barseem fodder with sickles. In other words P.W.6, P.W.7 and even deceased were in possession of effective weapons to withstand attack of convict, who, was armed with small knife as borne out of sketch Exh.PG of knife P.3. He could easily be overpowered, but amazingly, he was allowed to accomplish his mission so conveniently and without any resistance and receiving any scratch. It has been rightly pointed out by learned counsel for the appellant that even clothes of any of P.Ws. Were not stained with blood. P.W.6 is real brother of deceased and two persons were on his flanks, but, astonishingly, all of them witnessed the occurrence as silent spectators. Prosecution story is rendered incredible on this score alone.
20. According to prosecution version, deceased and P.Ws. Were cutting Berseem fodder. In the natural course of events, assailant should have gone to that field and not sugarcane field, where, deceased is not supposed to await arrival of appellant by any stretch of imagination. Very venue of incident is sufficient to falsify prosecution version, which, even otherwise is belied by absence of any bushel on the spot. Undoubtedly, no fodder was taken into possession. These lapses go a long way to suggest that the incident had not takes place in the manner claimed by the prosecution and none of P.Ws. Was present there.
21. Even timing of 4 p.m. Lends fortification to this belief as no body cuts fodder in such agonising heat. Hence, presence of P.Ws. Looks highly doubtful particularly when compared to medical evidence, which, runs counter to ocular account relating to number of injuries.
22. There is yet another aspect of the matter. Deceased is alleged to have restrained Mazhar, who, took ill. But appellant is stated to have emerged on the Scene to teach a lesson to deceased.
Admittedly, no sugarcane was extracted, nor vestiges of extraction were shown to Investigating Officer. Moreover, Mazhar and not the appellant was restrained. But for retaliation only the convict chose to come, whereas, Mazhar disappeared. When dived deep, it comes on surface that extraction of sugarcane by Mazhar or that he was forbidden, which, by itself is of provocative nature, is manifestly a ruse conveniently tailored to put the rope around the neck of appellant and, in no way, could be the cause of such gruesome act and shoe pinched somewhere else. Nau- Bahar Noon also did not come forward to support the prosecution version and was given up as having been "won-over". On the other hand, Mst. Halima and the convict sprouted that Mansha deceased had attempted to outrage the modesty and chastity of Mst. Halima D.W.1, and pulled/dragged her to sugarcane field only shelter nearby for such a nefarious act. As testified by D.W.1, and claimed by appellant, her hue and cry, attracted the convict, who attacked Muhammad Mansha with small knife, he, was perhaps having at that time, to save family honour in the course of natural reaction. Needlesss to say that even attempt in this context furnishes provocation so as to bring the case under section 302(c), P.P.C.
23. Above enumerated factors and misty nature of such a trivial motive set up by prosecution leave no room for doubt that the prosecution story has no legs to stand, erected superstructure is full of crevices; prosecution version is replete D with discrepancies and contradictions, rampant with fabrications, patch work, and snags, and rather stands impaired beyond repair. In no way, it could provide and afford valid basis of conviction and sentence awarded to the appellant.
24. As against it, defence version is not only plausible but also sound and appeals to reason and commonsense. Mere fact that appellant chose not to go to police station after occurrence, surrender voluntarily with weapon of offence hardly go to discredit his confession or lend support to cause of prosecution any way. Claim of D.W.1, in clarion voice, of having divulged true facts to Investigating Officer, who, allegedly declined to record her statement is sufficient to categorise appellant's claim as to be his "first version".
25. Be that as it may, where prosecution evidence stands rejected in its totality, statement of accused has to be accepted in its entirety without scrutiny as held consistently by August Supreme Court. It has been expounded in Rahim Bakhsh v. Crown (PLD 1952 PC 1) where conviction is based entirely on statement of accused then that statement in toto should be taken into consideration.
26. Appearance of Mst. Halima as D.W.1 even at stake of exposure and great risk to the honour of her husband and parents, has the effect of putting last nail in the coffin of prosecution version.
27. Taking all these aspects into consideration, we are of considered opinion that the appellant acted under the impulse of grave and sudden provocation to cause death of Muhammad Mansha and denial of such plea to appellant by learned Trial Court, is palpably fallacious.
28. Resultantly, appeal is partly accepted, conviction of appellant is altered and converted from section 302(b) to section 302 (c), P.P.C. And sentence is reduced to the period already undergone by the appellant, who, seemingly, is behind the bars for the last more than six years. Sentence of fine imposed upon him is also set aside. Nevertheless, we do not feel any legal or moral compulsion to direct payment of compensation to legal heirs of deceased inasmuch as awarding thereof may tantamount to reward for an immoral act of their predecessor.
29. As a sequence thereto, appellant shall be released forthwith, if, not required to be detained in any other case.
30. Murder Reference No,301 of 1993 is, accordingly, answered in the negative.
Sentence reduced.