' This appeal is directed against the judgment dated 16-6-1992 passed by Ch. Ihsan Ahmad, Additional Sessions Judge, Samundri, whereby he convicted Majeed accused/appellant under section 302, P.P.C. And sentenced him to imprisonment for life and fine of Rs.20,000 or in default thereof to undergo R.I. For two years. He further convicted Sultan Mahmood appellant under section 325, P.P.C. And sentenced him to R.I. For four years and a fine of Rs.10,000 or in default thereof to undergo R.I. For six months. He further directed that Majeed appellant shall pay compensation of Rs.20,000 to the legal heirs of the deceased or in default thereof will undergo R.I. For six months.
Sultan Mahmood appellant was further directed to pay compensation uncle' section 544-A, Cr.P.C.
Or in default thereof to undergo R.I. For three months.
2. Alongwith this criminal appeal a Criminal Revision No,708/92 has been filed by Hamid Khan injured P.W. For the enhancement of sentence awarded to the appellants Sultan Mahmood and Majeed and which was ordered to be heard alongwith instant appeal. Accordingly, both the criminal appeal and criminal revision are being disposed of by this single order.
3. Briefly stated the prosecution case, as unfolded in F.I.R. Exh.PF/1 lodged on 23-5-1990 at 1-00 p.m.
On the statement of complainant of Zakir Hussain (P.W.9) is that about two years prior to occurrence i.e, 23-5-1990, Allah Rakha deceased abducted Mst. Amiran Bibi daughter of Sultan Mahmood appellant. However, as a result of Punchayat, a compromise was arrived at between the parties and Mst. Musarrat Bibi sister of Allah Rakha deceased was married to Majid appellant son of Sultan Mahmood appellant. Majeed appellant took away Mst. Musarrat Bibi to some unknown place to take revenge of the abduction of his sister Mst. Amiran Bibi. Mst. Musarrat Bibi was returned through Punchayat after about three days of her marriage. Mst. Musarrat Bibi then filed a suit for dissolution of marriage against her husband Majeed whereas Mk. Amiran Bibi started leading a happy life with her husband Allah Rakha. On 23-5-1990 at about 11/12-00 noon, Allah Rakha deceased was returning to his house from his lands and had reached near the house of Ramzan Baloch, when Sultan Mahmood; Majeed and Murtaza armed with Sarya, Barchi and Sota respectively came in front of him raising Lalkara that he would not be allowed to go alive. Allah Rakha deceased raised hue and cry, upon which, Majeed gave him a Barchhi blow on his chest, whereas Sultan Mahmood appellant inflicted a Sarya blow on his back. Zakir Hussain complainant, his brother Hamid Khan, Anwar and Allah Ditta P.Ws., were attracted on the cries of Allah Rakha and witnessed the occurrence. Hamid P.W. Tried to rescue Allah Rakha from the hands of the assailants when Sultan Mahmood appellant and Murtaza accused (since acquitted) caused him injuries on his head. Allah Rakha deceased succumbed to the injuries on the spot and assailants decamped from there. Hamid P.W. Was in serious condition and was referred to Civil Hospital, Tandlianwala. It is stated that Sultan Mahmood, Majeed and Murtaza (since acquitted) had committed the murder of Allah Rakha at the abetment of Mst. Azizan wife of Sultan and one Noor Muhammad (since dead) to take revenge of abduction of Mst. Amiran Bibi. Leaving the dead body on the spot, the complainant Zakir Hussain made for the police station and met Farooq Ahmad Inspector P.W.11 at 1-00 p.m. At Jhalla Chowk where he was present in connection with patrolling. On the statement of Zakir Hussain, he drafted the complaint Exh.PA and sent it to the police station for formal registration of F.I.R. He then made for the place of occurrence and prepared the injury statement of Allah Rakha deceased Exh.PA/3 and inquest report Exh.PA/2, collected blood-stained earth and made into sealed parcel vide memo. Exh.PI, despatched the dead body for post-mortem examination through Muhammad Yaqoob, Constable, secured MLR Exh.PB pertaining to Hamid Khan injured, produced by Zakir Husain. After the post-mortem examination, Muhammad Yaqoob Constable, produced before him last-worn clothes of the deceased which he secured vide memo.
Exh.PB. He prepared site plan Exh.PF. On 24-5-1990 Zakir Hussain complainant produced before him X-ray report Exh.PB/3 of injured Hamid Khan and result of injury Exh.PB/2 which he secured. He also got prepared site plan from Aurangzaib Draftsman. Later on, the investigation was conducted by Muhammad Baqir Inspector P.W.12 who on 1-6-1990 recorded the statement of Saeed and Naseer P.Ws. On 3-6-1990, he arrested all the accused. On 4-6-1990 he moved an application Exh.PB/4 with the Medical Officer to know if Hamid Khan P.W. Was fit to make a statement or not which contains his report Exh.PB/5 to the effect that the injured was fit to make a statement. He accordingly recorded the statement of Hamid Khan injured. On 8-6-1990 accused Sultan led to the recovery of Sarya P.4 which he secured vide memo. Exh.P.G. On the same day, Murtaza (since acquitted) led to the recovery of Sota P.5 which he secured vide memo. Exh.P.H. Muhamad Fazal, Inspector P.W.2 got a Barchhi P. 1 recovered at the instance of Majeed appellant on 9-6-1990 vide memo. Exh.P.C. After usual investigation, the case was sent up to the Court for trial.
4. A charge under sections 302/324/109, P.P.C. Was framed against the accused/appellants alongwith Murtaza, Mst. Azizan Bibi and Noor Muhammad (since acquitted) to which they pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused, prosecution examined P.W.1 Dr. Abdul Khalid who has deposed that on 23-5-1990 at 5-30 p.m. He conducted post-mortem examination of Allah Rakha deceased and found one stab vound and one contusion on his body. In his opinion the death was due to shock and heamorrhage as a result of injury No,1 which was due to sharp-edged veapon and was ante-mortem. The said injury was sufficient to cause death in he ordinary course of nature. He issued post-mortem examination Exh.PA and ketch of injuries Exh.PA/1. On the same day at 7-00 p.m., he medically xamined Hamid Khan son of Buland Khan and found eight injuries on his erson. He issued MLR Ex.P.B/1 and sketch of injuries Exh.PB/2. P.W.2 Muhammad Fazal, Inspector is a recovery witness whose evidence has already een discussed above. P.W.3 Aurangzaib Draftsman visited the place of ccurrence and prepared site plans. P.W.4 Muhammad Yaqoob, F.C. Escorted ie dead body of deceased on 23-5-1990 from the place of occurrence to Civil 'ospital, Tandlianwala.
After post-mortem examination, he produced last worn othes P.2 and P.3 of the deceased which were secured vide memo. Exh.PE. n 25-6-1990 he got a sealed parcel of Barchhi Exh.P1 from the Moharrir Head onstable, Tandlianwala and delivered the same intact in the Office of the Chemical Examiner, Lahore on 26-6-1990. P.W. 5 Riaz Ahmad, A.S.I, recorded formal F.I.R. Exh.PF on the receipt of complaint. On 24-5-1990 he received a parcel containing blood-stained earth which he delivered to P.W.6 Jamal Din, Constable on 28-5-1990 for onward transmission to the Office of Chemical Examiner. On 9-6-1990, he received an other parcel containing Barchhi which he handed over to Muhammad Yaqoob, Constable P.W.4 for its delivery in the Office of Chemical Examiner, Lahore. P.W.6 Jamal Din corroborated the statement of P:W.5 regarding the delivery of sealed parcel containing blood-stained earth in the Office of Chemical Examiner, Lahore. P.W.7 Bashir identified the dead body of Allah Rakha deceased at the time of post-mortem examination. P.W.8 Mahram Khan is a witness of recovery of Barchhi Exh.P.1 from Majeed, Sarya Exh.P.2. From Sultan and rota Exh.P.3 from Murtaza which were secured vide Memos. Exhs.PC, P.J. And P.H. Respectively. P.W.9 Zakir Husain is complainant who corroborated his version appearing in complaint Exh.PF/1 and P.W.10 Hamid Khan being an eyewitness, corroborated the prosecution version. P.W.11 Farooq Ahmad, Inspector and P.W. 12 Muhammad Baqir, Inspector are the Investigating Officers whose evidence has already been discussed above. The learned A.P.P. Closed the prosecution evidence on 4-6-1992 when he tendered in evidence reports of Chemical Examiner Exh.P.M. And Exh.P.M/1 and reports of Serologist Exh.PN and Exh.PN/1.
6. When examined under section 342, Cr.P.C. Appellant/accused Sultan Mahmood admitted the occurrence but gave his own version of the same. He stated that on the day of occurrence, he was going towards his field and by chance met Allah Rakha deceased and Hamid Khan P.W. Hamid P.W.
Suggested his son Allah Rakha to pay Salam to him being his father-in-law upon which Allah Rakha, tauntingly addressed him saying that he pays Salam to him every night when he goes to sleep with his daughter Mst. Amira Bibi at the time of cohabitation. On hearing these contemptuous and derogatory remarks, he lost his control and as a result of sudden and grave provocation, gave him injuries with a stick affixed with an iron spike which the farmers usually hold with them in the fields to protect themselves from the wild animals. Hamid P.W. Had a stick with him and he proceeded to assault him and apprehending danger to his life at his hands, he gave him a stick blow on his head to disarm him. He stated that the entire prosecution story was false and fabricated. He further stated that he had not taken any action earlier when his daughter was abducted, when a suit for dissolution was filed by Mst. Musarrat Bibi against his son and even when Mst. Musarrat Bibi obtained a decree for dissolution of marriage. He stated that his son Majeed and Murtaza were not with him at the time of occurrence. The accused/appellant Majeed when examined under section 342, Cr.P.C. Stated that he had been involved in this case falsely. He also denied the prosecution version including the factum of recovery of Barchhi P.1
7. After going through the evidence produced by the parties, the trial Court convicted the appellant vide judgment under appeal and acquitted Murtaza and Mst. Aziza Bibi.
8. The appellants have felt aggrieved of the said judgment and filed this appeal whereas Hamid Khan has filed criminal revision for the enhamcement of sentence awarded to the appellants
9. Arguments have been heard and record perused.
10. Contention of learned counsel for the appellants is that prosecution story has not been believed by the trial Court as is evident from the fact that while awarding sentence of imprisonment for life to Majeed accused, it has been found by the learned trial Court that he caused death of Allah Rakha deceased due to sudden and grave provocation. He further argued that since the trial Court has not believed the prosecution version and has accepted the defence version, so the trial Court was not justified in imposing sentence of life imprisonment to Majeed accused/appellant as under such circumstances, the maximum sentence awarded ranges from 3 to 5 years. He submitted that appellant Majeed was arrested on 23-6-1990. He was convicted on 15-6-1992 and was released on bail on 17-4-1996. In this way, he has remained in jail for five years, nine months and fourteen days.
He thus submitted that period of sentence already undergone by the appellant will meet the ends of justice and the sentence awarded to him may be modified to one which he has already undergone. So far as the sentence awarded to Sultan appellant is concerned, he submitted that he being father of Majeed accused has been adequately punished as he has remained in jail for sufficient long period. He submitted that he does not challenge the findings of the trial Court but only prays that the sentence awarded may be modified to one which both the appellants have already undergone.
11. On the other hand, learned counsel for the complainant has vehemently urged that the deceased Allah Rakha was done to death at day time and there was no justification for taking a lenient view on account of grave and sudden provocation. He submitted that Allah Rakha was done to death by the appellants with the assistance and connivance of their co-accused (since acquitted). He thus submitted that not only the sentence awarded be maintained but by accepting his criminal revision, the same be enhanced.
12. A perusal of F.I.R. Exh.PF/1 clearly show that Mst. Amiran Bibi daughter of accused Sultan Mahmood was abducted by Allah Rakha deceased and as a result of compromise, Mst. Musarrat Bibi sister of Allah Rakha deceased was married to Majeed appellant. It is admitted fact that later on Mst. Musarrat Bibi filed a suit for dissolution of marriage against Majeed appellant and succeeded in getting herself freed from his clutches, as a result of a decree of dissolution of marriage. However, it is fact that Mst. Amiran Bibi kept on living with Allah Rakha deceased. It has also come on record that neither Sultan Mahmood nor Majeed accused/appellant resorted to any action against Allah Rakha deceased for more than two years for abducting Mst. Amiran Bibi,so the stand of prosecution that both the appellants committed the instant incident on that account does not appeal to reason. Conversely, the defence version rings true and appeals to reason and that is why it has also found favour with the trial Court. Having believed the defence version, the trial Court was not justified in awarding sentence of imprisonment for life to Majeed appellant, as under such circumstances the maximum sentence awarded ranges between 3 to 7 years.
13. As per statement of Muhammad Baqir, Inspector P.W.12, the appellant Majeed was arrested on 3-6-1990. He was convicted vide judgment dated 15-6-1992. He was released on bail by this Court on 17-4-1996. Thus he has been in jail for about 5 years' 9 months and 14 days. As the usual sentence awarded in cases of sudden and grave provocation ranges from 3 years to 7 years, and appellant Majeed has been in jail for 5 years' 9 months and 14 days, so he has been adequately punished on that score. The sentence already undergone shall meet the ends of justice.
Accordingly sentence awarded to Majeed appellant is reduced to one which he has already undergone. However, sentence of fine imposed upon the appellant and compensation granted to the legal heirs of deceased under section 544-A, Cr.PC. Are maintained. So far as the accused/appellant Sultan Mahmood is concerned, he was arrested on 3-6-1990 and was released on bail on 20-10-1992. Thus he has been in jail for two years' four months and 17 days. He has been convicted under section 325, P.P.C. And sentenced to undergo R.I. For four years and fine of Rs.10,000 or in default thereof to undergo R.I. For six months and to pay compensation under section 544-A, Cr.P.C. He has also been given the benefit of section 382-B, Cr.P.C. Thus out of the sentence awarded to him he has been in jail for a major portion of the same. Under these circumstances, the sentence already undergone will meet the ends of justice. Accordingly, the sentence awarded to Sultan Mahmood appellant is reduced to one which he has already undergone. However, the sentence of fine and compensation are maintained.
14. With this modification in the sentences awarded to the appellants, the appeal is disposed of.
Both the appellants are on bail. Their bail bonds shall stand discharged on realization of amount of fine and compensation.
' Sentence reduced.