' Briefly stated the facts are that on 1-6-1992 at about 5-00 a.m., Sardar complainant alongwith his son Muhammad Hayat deceased, Ahmad and Munir P.Ws. Were going to the shrine of Mian Muhammad Siddique for offering Fateha. Muhammad Hayat was leading by 22/25 Karams ahead of them. When they reached near Post Office Chowk, they were challenged by Nazir Shahadat and Ahman who were armed with Sotas. They caught hold of his son Muhammad Hayat and dragged him to their house. They started inflicting Sota blows on his son Muhammad Hayat. On his hue and cry, they were attracted and saw that Nazir accused had given a Sota blow which hit on the chest of Muhammad Hayat. Ahman accused gave a Sota blow on his head whereas Nazir accused gave two successive Sota blows to the deceased hitting him on his left cheek and left eye. The deceased was also given Sota blow by Shahadat accused which landed on his face. As a result of said injuries, the deceased fell down and was subjected to successive blows by all the three accused.
The accused threatened the P.Ws. Of dire consequences if they tried to rescue him. The injured Muhammad Hayat was removed to Civil Hospital, Lalian. As the Medical Officer was not available there, so the injured was taken to Civil Hospital, Chiniot. After preliminary medical examination, he was sent to Allied Hospital, Faisalabad from where he was referred to Civil Hospital, Faisalabad where he was admitted for 2/3 days and was again referred to Allied Hospital, Faisalabad where he succumbed to the injuries on 6-6-1990. The complainant brought the dead body back to Civil Hospital, Chiniot. After leaving the same under the supervision of Mohla and Ahmad, made for the police station to lodge report.
2. Ashiq Ali, Inspector, P.W.6 was posted at Police Station Lalian, who on the statement of Sardara, recorded F.I.R. Exh.P.A. He thereafter, made for Civil Hospital and prepared injury statement Exh.P.D.
And inquest report Exh.P.E. He handed over the dead body to Talib Hussain, Constable for postmortem examination and made for the place of occurrence. Talib Hussain, Constable produced post-mortem examination report as well as last-worn clothes of the deceased which he took into possession. He also prepared rough site plan of the place of occurrence and also got prepared site plans Exhs.P.B. And P.B./1 from Abid Sherazi, Draftsman P.W.3. On 15-6-1990, he arrested Shahadat and Nazir accused whereas on 22-6-1990, arrested Ahmad accused. On 27-6- 1990, accused Ahmad led to the recovery of Danda P.1 from his house which he secured vide memo. Exh.P.C. And also prepared rough site plan of place of recovery Exh.P.C./1. After completing investigation, the challan was submitted by Munir Ahmad, S.H.O.
3. A charge under section 302/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
4. To prove its case against the accused, prosecution examined P.W.1 Sardara complainant, who corroborated his version appearing in F.I.R. Exh.P.A. Ahmad P.W.2 is an eye-witness of this case and has corroborated the prosecution version. Abid Sherazi, Draftsman P.W.3 deposed that he prepared site plans Exh.P.B. And Exh.P.B./1 on 10-6-1990 and handed over the same to the Investigating Officer.
Talib Hussain, Constable P.W.4 was handed over the dead body on 6-6-1990 for post-mortem examination which was conducted on 7-6-1990. He was given last-worn clothes of the deceased as well as postmortem examination report which he produced before the Investigating Officer.
P.W.5 Muhammad Khan, Head Constable was posted at Police Station Lalian on 27-6-1990. He deposed that the accused Ahmad led to the recovery of Danda P.1 from his residential room which was secured vide memo. Exh.P.C. P.W.6 Ashiq Ali, Inspector is the Investigating Officer of this case, whose evidence has already been discussed. P.W.7 Dr. Nasir Mumtaz deposed that on 1-6-1990 he was posted as Medical Officer, T.H.Q., Hospital, Chiniot. On the same day at 9-00 a.m. He medically examined Muhammad Hayat and found the following injuries on his person:--
(1) A lacerated wound 3 c.m. x 0.5 c.m. Mussle deep on right side of backside of scalp 4.5 c.m.
Above right ear.
(2) A lacerated wound 2 x 0.5 c.m. Skin deep on left cheek.
(3) A swelling 6 x 4 c.m. Around left eye with redness inside left eye.
(4) A swelling 10 x 6 c.m. On left cheek (mandibular region).
(5) A swelling 8 x 6 c.m. On right cheek.
(6) Marks swelling around neck. On examination subcudandous emphysema found.
(7) Multiple contusion on front and back of chest subcueandous and emphysema all over the chest on front and back.
(8) Multiple contusion on left arm.
(9) Multiple contusion on right arm.
(10) Multiple contusion on right buttock and right thigh.
(11) A contusion 12 x 2 c.m. On front of left thigh.
' He further, stated that injuries Nos.2, 8, 9, 10 and 11 were declared simple whereas injuries Nos.1, 3 to 6 were kept under observation. He also stated that duration between injuries was 8 to 12 hours and all of them had been caused by blunt weapon. He issued a correct carbon copy of medico-legal report Exh.P.F. And sketch of injuries Exh.P.F./1. He further deposed that on 7-6-1990 at 9-00 a.m., he conducted the post-mortem examination on the dead body of Muhammad Hayat and found the following injuries:--
(1) A stitched wound on right side of scalp above right ear.
(2) Neck swollen all around.
(3) A healed wound on left'cheek.
(4) Enterior and posterior chest walls swollen with faint contusion all over. Post-mortem staining on back of the chest.
(5) Faint contusion marks on right arm.
(6) Contusion on left arm;
(7) Faint contusion on right and left thighs.
(8) Contusion on right buttock.
(9) A dressing above right wrist. On venefection would for treatment.
(10) Right and left cheek swollen. All the vissras in abdomen were healthy. Stomach was empty.
Large intestines contained small quantity of faecal matter. Scale, membrane and brain were healthy.. Spinal card was not opened.
' In his opinion, cause of death was cardio pulmonary arrest due to chest injuries causing fracture of 8th and 9th ribs, injury to plaeura, lung collapsed and hydropnuma thorax. All the injuries were ante-mortem and had been caused by blunt weapon. He gave the time between injuries as 5 days and between death mad post-mortem examination as 18 to 24 hours. He produced post-martem examination report Exh.P.G. And sketch of injuries Exh.P.G./1. Thereafter, the learned Dy.D.A. Closed the prosecution case vide statement, dated 19-9-1992.
5. When examined under section 342, Cr.P.C., Nazir accused denied the prosecution version and in reply to question No,5 regarding registration of case, he stated as follows:-- "The P.Ws., are close relatives and they have deposed as such. Hayat deceased had illicit relations with Mst. Kaniz, my sister. He abducted her and was got restored. Again Hayat went to her in-laws where she was residing. The deceased was made to run from the house of her in-laws. On the fateful night Hayat deceased was spotted at mid-night on the cot of Mst. Kaniz in our house.
Ahmad co-accused on seeing Hayat at such odd hours present on the bed of Mst. Kaniz got infuriated and injured Hayat. Mst. Kaniz fled away from the spot. I and Shahadat accused did not participate in the occurrence and learnt about it later on."
' Similarly accused Ahmad while recording the statement under section 342, Cr.P.C. Denied the prosecution version and disclosed his involvement while replying to question No,5 which is as follows:-- "The deceased was seen by me on the night of occurrence at mid-night on the bed of my sister Mst. Kaniz. I lost my control and injured Hayat deceased. Mst. Kaniz escaped. After injuring Hayat deceased I confined him in my Kotha and in the morning I restored Hayat deceased to his father on the intervention of Mehr Sikandar Lali. Hayat deceased had earlier abducted my sister Mst. Kaniz and she was restored through the intervention of Khalid Lali. She was sent to her in-laws. Before the occurrence and even before that the deceased used to visit her wherever she was sent by us. The deceased had made our lives miserable and, thus, I injured him. Both my co-accused did not participate in the occurrence. After the occurrence I informed them."
' Accused Shahadat also denied the prosecution version and made a similar statement while giving reply to question No,5 which reads as follows:-- "The deceased has illicit relations with my daughter Mst. Kaniz. Because of this illicit relations Mst..
Kaniz was abducted by the deceased, restored, the deceased chased her even in the house of her in-laws and on the fateful night at about midnight Ahman my son on seeing the deceased on the cot of Mst. Kaniz, injured him. I and my son Nazir accused were not aware of the occurrence. The P.Ws. Are close relatives of the deceased."
' The accused Ahman closed his defence vide statement, dated 24-9-1992.
6. After going through the evidence produced by the prosecution, the trial Court while acquitting Shahadat accused convicted Nazir and Ahmad accused under section 302/34, P.P.C. And sentenced each of them to imprisonment for life and fine of Rs,10,000 each and in default thereof to suffer R.I. For one year each. The appellants have felt aggrieved and have filed instant appeal.
7. Alongwith this appeal, Criminal Revision No,750 of 1992 has been filed by the complainant/petitioner Sardara for the enhancement of sentence awarded to Nazir and Ahman and for providing compensation under section 544-A, Cr.P.C. Besides the said criminal revision, he also filed another Criminal Revision No,458 of 1994 against the acquittal of Shahadat accused. As the appeal and both Criminal Revisions arise out of the same judgment, so these are being disposed of by this single judgment.
8. Arguments have been heard and record perused.
9. It is submitted by learned counsel for the accused/appellants that according to the prosecution version, the deceased Muhammad Hayat was dragged inside that house by the accused/appellants while the complainant alongwith Munir and Ahman P.Ws. And the deceased were proceeding to the shrine of Mian Muhammad Siddique to offer Fateha. However, stand of the accused/appellants from the very inception is that on the fateful night the deceased was found on the cot of Mst. Kaniz, sister of Nazir and Ahman accused and daughter of Shahadat accused, that it was only Ahman accused who found the deceased on the cot of his sister and under the impulse of sudden and grave provocation caused him injuries, that neither Nazir nor Shahadat accused was present nor participated in this occurrence, that it has been admitted by Ashiq Ali, Inspector P.W.6 in his cross-examination that the first version of Shahadat accused was that Muhammad Hayat deceased had abducted his daughter Mst. Kaniz, that the deceased had come to their house for sexual intercourse with his daughter Mst. Kaniz on the night of occurrence, that his son Ahman saw the deceased there and got provoked and gave a brick blow to him on his head, that even according to his (P.W.6) investigation the version of Shahadat accused was found correct to the extent of Ahman accused had found his sister Mst. Kaniz sleeping with the deceased and gave him brick blow, that in view of this candid admission of P.W.6, it is clear that the deceased was done to death under sudden provocation on the part of accused Ahman. He next contended that under similar circumstances, the convictions recorded under section 302(b), P.P.C. Have been altered to section 302(c), P.P.C. And sentence awarded has been ranging from 3 to 5 years. He, thus, submitted that conviction be lateral accordingly. He next argued that the accused/appellants were convicted on 1-10-1992 and since then are in jail, as such they have been in jail for almost 6-1/2 years, as such they have adequately been punished and the sentence awarded be modified to one which they have already undergone.
10. Conversely, impugned judgment has been supported by the learned State Counsel assisted by learned counsel for the complainant. They canvassed that Sardara complainant (P.W.1) and Ahmad (P.W.2) have fully supported the prosecution version and nothing discrediting their credibility has been brought on record though both of them have been subjected to lengthy cross- examination, that ocular account stands corroborated by medical evidence of Dr. Nasir Mumtaz P.W.7, that defence plea is an afterthought, that both the accused/appellants deserve normal sentence, as such by accepting the criminal revision the same enhanced, that Trial Court was not justified in acquitting their co-accused Shahadat on the same evidence upon which majority of accused were convicted. He next urged that if the Court does not find favour with their submissions, then the complainant be awarded costs as stipulated under section 544-A, Cr.P.C.
11. The accused/appellants have been convicted under section 302/34, P.P.C. And have been sentenced to imprisonment for life and fine of Rs,10,000 each. According to the prosecution version, the deceased was waylaid when he alongwith his father and others was proceeding to the shrine of Mian Muhammad Siddique for offering Fateha. On the other hand, the stand of accused/appellants is that the deceased had been carrying on with their sister Mst. Kaniz and on the fateful night was found lying on her cot by Ahman accused/appellant who out of grave and sudden provocation gave brick blow on his head. This defence plea was suggested to the Investigating Officer since very inception and he has candidly admitted this fact. The complainant as well as Ahmad P.W.2 has also been suggested a similar defence plea which has been raised by the accused while recording their statements under section 342, Cr.P.C. According to the prosecution version, occurrence took place at 5 in the morning, which time also coincides with the version of the accused that the deceased had been present in their house on the cot of their sister Mst. Kaniz at the relevant time. It is also pertinent to mention here that prosecution version is not supported by any independent evidence, as such defence version which is more plausible and appeals to the conscience of a man of ordinary prudence. However, one point needs special attention. If the defence plea is accepted as correct, then it was only Ahman accused who caused brickbat blow on the deceased. This defence version is belied by medical evidence. According to the statement of Dr. Nasir Mumtaz, the deceased had received as many as 11 injuries on his person which fact further stands corroborated from the postmortem examination report which shows that he had received as many as 10 injuries on his person, the number and locale of injuries clearly shows that these could not be caused by one person. Thus, the stand of defence that it was only Ahman accused/appellant who is responsible for causing the death of deceased is also not correct and it is established from the ocular evidence supported by medical evidence that deceased was done to death not by one accused as suggested by the defence, but at least by two accused.
12. In the light of facts narrated above, it is proved that the deceased was not done to death as alleged by the prosecution in F.I.R. Exh.P.A., but he was killed by the accused/appellants under the impulse of grave and sudden provocation. Thus, the conviction of appellants Nazir and Ahmad under section 302(b)/34, P.P.C. Is altered to'that under section 302(c), P.P.C. In cases involving element of Ghairat, there is a tendency to justify imposition of lesser penalty as held in Muhammad Ayub v. The State 1997 PCr.LJ 2056, All Muhammad v. Ali Muhammad and others PLD 1996 SC 274, Saeed Ahmad v. The State 1999 PCr.0 1016 and Muhammad Ishaque alias Baig v. The State 1998 PCr.LJ 1110. The accused/appellants were convicted on 1-10-1992 and since then are in judicial lock- up. Thus, they are in jail for the last 6-1/2 years. Keeping in view the authorities referred above, the sentence of imprisonment for life of accused/appellants is reduced to one which they have already undergone. However, the sentence of fine of Rs,10,000 each or in default thereof R.I. For one year is maintained.
13. The trial Court has not awarded any compensation to the legal heirs of the deceased as contemplated by section 544-A, Cr.P.C., nor has recorded any reason for that. Accordingly, appellants are directed to pay compensation of Rs,10,000 each to the legal heirs of deceased as required under section 544-A, Cr.P.C. Or in default thereof, to further undergo R.I. For one year each.
14. With this modification in the conviction and sentence awarded to the appellants, the instant appeal as well as criminal revisions stand disposed of.