' This Judgment will dispose of Criminal Appeal No,785 of 1993 filed by Wazir and Rafique, appellants, who were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life by learned Additional Sessions Judge, Okara vide his judgment dated 13-12-1993, however, with the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case had taken place at 8 p.m. On 24-8-1992 within the revenue estate of Chak No,6/GD which is at a distance of 12 kilometres from Police Station, Chuchak, District, Okara while the matter was reported by Muhammad Aslam (P.W.8) on the same day and the formal F.I.R.
Exh . P. G . Was recorded by Muhammad Ashraf, S.-I./S.H.O. (P.W.13).
3. Briefly stated the facts of the case were that at about 8-00 p.m. On 24-8-1992, Muhammad Aslam, complainant (P.W.8) heard alarm from the Ihata of Javed Iqbal and he reached there alongwith Muhammad Sadiq, Khushi Muhammad, Muhammad Sharif and Nazeer Ahmad. They all saw Wazir, Rafique, Bashir and Kameer there. Wazir and Rafique were armed with hatchets while the remaining two were empty-handed. They fell down Talib Hussain on the ground, Bashir caught hold from his arms, Kameer caught hold him from his legs and in the presence of the complainant and others, Wazir gave a hatchet blow on the right mandible of Talib Hussain. Thereafter, Rafique gave a hatchet blow which hit Talib Hussain below his right ear. The complainant and his companions tried to step forward but the accused threatened them that if anybody came forward, he would meet the same fate. The accused after causing injuries to Talib Hussain ran away from the spot. Talib Hussain died at the spot.
' The motive for the occurrence was alleged to be that Talib Hussain had to get Rs,12,000 from Muhammad Rafique and due to this reason Talib Hussain was murdered by the accused.
4. After registration of the formal F.I.R. Muhammad Ashraf, Inspector, S.H.O. (P.W.13) proceeded to the spot, prepared injury statement Exh.P.I., inquest report Exh.P.J., took blood-stained earth into possession vide memo. Exh. P . A . And arrested the accused on 7-9-1992. Wazir accused while in custody led to the recovery of blood-stained hatchet P.3 which was taken into possession vide memo. Exh. P.C. On 10-2-1992, Muhammad Rafique while in custody led to the recovery of blood- stained hatchet P.4 vide memo. Exh.P.B. After completion of the investigation, the accused were challaned to face the trial.
5. At the trial, prosecution produced 13 witnesses in all. Thereafter, learned D.D.A. By tendering in evidence reports of the Chemical Examiner Exh.P.L., P.M. And P.N. And that of the Serologist Exh.PO, Exh.PP and Exh.P.Q. Closed the prosecution evidence. Then statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. After conclusion of the trial, Kameer and Bashir, co-accused of the appellants were acquitted while the appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the entire prosecution evidence, statements of the appellants and other material available on record submits that all the eye- witnesses produced by the prosecution are closely related to the deceased, occurrence had taken place in the Ihata where the appellant resided with his father, the first informant attributed one injury each to Wazir and Rafique on the person of the deceased but according to F.I.R., there were eight injuries on the person of Talib Hussain, deceased, Mst.Shamim Akhtar appeared as D.W.1 before the trial Court, she is real sister of Rafique appellant, Lady Doctor Shagufta Yasmeen who appeared as D.W.2 conducted medical examination of Mst. Shamim at the request of the Police, Rafiq had taken the plea of grave and sudden provocation; there are two versions on record, one put forward by the prosecution and the other put forth by the Rafique appellant and if both the versions are put in juxtaposition, the version put forth by Rafique is nearer to the truth and more plausible, recoveries have been planted upon the appellants and that on the same evidence two co-accused of the appellants have been acquitted.
7. On the other hand, learned counsel for the State admits that the occurrence had taken place in the Ihata of Rafique, appellant and that the version put forth by appellant is more plausible than the version put forward by the prosecution.
8. I have heard learned counsel for the parties and have gone through the evidence on record. In the instant case, occurrence had taken place at 8-00 a.m. In the Ihata where the appellant was residing. According to F.I.R., one injury each is attributed to the appellants on the person of the deceased but as per post-mortem examination conducted on the dead body of Talib Hussain by Dr. Muhammad Azam Khan, P.W.7 at 10.30 a.m. On 25-8-1992 there were 8 injuries. It means that six injuries have not been explained. Had the eye-witnesses been present at the spot, they must have mentioned the .Number and the seat of injuries. All the witnesses are closely related to the deceased inasmuch as Muhammad Aslam, complainant P.W.8 is brother-in-law (sister's husband of the deceased), Nazeer Ahmad, P.W.9 is maternal uncle of the deceased and similarly, Muhammad Sadiq, P.W.10 is maternal cousin of the deceased. In the post-mortem report which is Exh.P.E. No time of death has been given in the respective column. The doctor at the end of the report did not give the cause of death and in the column the probable time that elapsed between injury and death was deferred till the receipt of report of the Chemical Examiner and the same was given as 5 minutes after receipt of report of the Chemical Examiner. Mst. Shamim Akhtar, D.W.1 is real sister of Rafique appellant. The lady doctor who conducted medical examination on the person of Mst. Shamim, D.W.1, was produced as D. W.2 who on 1-9-1992 had medically examined Mst.Shamim and the duration of injuries which were two in numbers given by her on the person of Shamim was about a week which coincide with the time of occurrence. The Police did not get Mst.
Shamim medically examined on the date of occurrence. The version of the appellant Rafiq that he committed the murder of Talib Hussain deceased and injured Mst. Shamim, his real sister in grave and sudden provocation is more plausible than the version put up by the prosecution. The version put by the appellant Wazir was fully supported by Mst. Shamim during the course of investigation in this case. Version of Rafique appellant before the police was also to the effect that apart from dispute over money, Talib Hussain deceased had illicit relations with Mst. Shamim, his real sister. To the same effect was statement of the appellant Wazir while replying to question No,7: "Have you anything else to say?" which may be reproduced for reference:-- "I am innocent. I and my father Muhammad Shafi used to cultivate the land of Javed Iqbal P.W. I, my father and sister Mst. Shamim Akhtar used to reside in the Ihata in which occurrence took place and this Ihata is owned by Zafar Iqbal P.W. On the night of occurrence, leaving my father in the land, I reached at my house about 11 p.m. And saw Talib Hussain deceased and my sister Mst.
Shamim Akhtar kissing and embracing each other after the deceased had committed trespass into my house. On seeing them in such a shameful act, I lost self-control and under grave and sudden provocation and out of Ghairat and at the spur of moment, I caused injuries to my sister and the deceased with sharp and blunt side of the hatchet which I was carrying in my hand as usual... Mst. Shamim Akhtar ran away in an injured condition from the spot while Talib Hussain fell down. I had no intention to cause death of Talib Hussain but only wanted to teach him a lesson so that he may desist from the said shameful act.
' I am sorry to note here that the learned trial Court did not advert to the version put by the defence specially when 2 D.Ws. Were also produced. It was question of life and death of two persons and should not have been dealt with in such a manner as it appears after perusal of judgment of the trial Court.
Before parting with the case, I may also add here that the Investigating Officer, P.W.13, admitted during the cross-examination that none of the witnesses had explained the remaining six injuries on the person of the deceased. This admission on the part of the Investigating Officer lends sufficient support to hold the view that none of the alleged witnesses was present at the time of occurrence.
' The nutshell of the above analysis is that the version put forth by the appellant appears to be more plausible and near to reasons than the version introduced by the prosecution. So after rejecting the prosecution version and statements of the eye-witnesses, I believe the version of the appellant Rafique that he committed the murder of Talib Hussain, deceased due to Ghairat and grave and sudden provocation. In this view of the matter, the conviction of appellant Rafique is converted from section 302(b), P.P.C. To 302(c), P.P.C. And the period of sentence which he has already undergone which comes to about 4 years is treated to be sufficient to meet the ends of justice. So far as Wazir appellant is concerned, he is first cousin of Rafique appellant, so conviction against him is set aside as possibility of his false involvement cannot be ruled out. Both the appellants are on bail. They shall stand discharged from their bail bonds. Appeal stands disposed of in the above terms.