' MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,350 of 1998 directed against the judgment passed by the learned Additional Sessions Judge, Lodhran on 2-10-1998 whereby he convicted both the appellants under section 302(b), P.P.C. And sentenced them as under:---
(i) Muhammad Din appellant to death with direction to pay Rs,20,000 as compensation under section 544-A, Cr.P.C. Or in default 3 months' S.I.
(ii) Muhammad Ashraf appellant to undergo life imprisonment with compensation of Rs,20,000 under section 544-A, Cr.P.C. Or in default 3 months' S.I.
2. The occurrence in this case took place between the night of 22/23-10-1996 in the area of Chah Tranjanwala internal Mauza Rawani towards south-west at a distance of 4 k.m. From Police Station Galeywal, District Lodhran. Matter was reported to the police by Khair Din complainant on 13-10- 1996 at 4 a.m.
3. The brief facts as narrated by the complainant in the F.I.R. Are that at the time of occurrence he alongwith his two sons namely Habibullah and Attaullah were sleeping on their Dera at Chah Tranjenwala. At mid-night Muhammad Din called his son Habibullah to take a round of cotton crop.
A short while thereafter he and his son Attaullah heard Habibullah who was calling for help. They rushed toward the noise and saw Ashraf accused armed with a Tooki and Muhammad Din accused armed with a hatchet. They had overpowered Habibullah. In moon lit they saw that Muhammad Din inflicted a hatchet blow hitting left side of forehead of Habibullah who fell down on the ground and received a Tooki blow on his left temple and left ear from Ashraf accused. Then both the accused/appellants inflicted many blows with their respective weapons hitting him on head, left arm, thumb of left hand, left flank and other parts of Habibullah who died at the spot. The accused-appellants carried away the dead body of Habibullah nearby to their house. Motive behind this occurrence was that appellants had suspicion of illicit relation of Habibullah with Mst.
Sajida sister of Muhammad Ashraf and maternal niece of Muhammad Din appellant.
4. Police after completing all the legal formalities headed by Muhammad Nawaz, S.-I. P.W.8 visited the spot. Muhammad Nawaz, S.-I. Prepared the injury statement, Exh.P.H., inquest report Exh. P.I. He secured blood-stained earth vide memo. Exh. P.B. He also took into possession a pair of shoes P.1 and P.2 of deceased Habibullah vide memo. Exh.P.C. Blood-stained Jersey P.3, shirt P.4 and Shalwar P.5 with string P.6 were also taken into possession vide memo. Exh.P.B. On 16-11-1996 he arrested both the appellants and while in police custody Muhammad Din got recovered bloodstained hatchet P.7 vide memo. Exh.P.D. And Muhammad Ashraf, the same day, led to the recovery of Tooki P.8 vide memo. Exh.P.F. He completed the investigation and challaned the accused/appellants and submitted that challan for trial.
5. Prosecution in order to prove its case has produced as many as 8 witnesses including eye- witnesses, doctor and Investigating Officer etc. After tendering in evidence report of Chemical Examiner, Exh.P.M., report of Serologist Exh.P.N/1, report of Chemical Examiner Exh.P.N. And report of Serologist Exh.P.M./1, learned D.D.A. Closed the prosecution evidence.
' Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded not guilty.
6. After having gone through the entire prosecution evidence and other record available on the file learned counsel for the appellants submits that it was an unwitnessed occurrence having taking place in dead hours of night, that nobody had seen the occurrence, that the eye-witnesses namely }Chair Din and Atta ullah were real father and brother of Habibullah. They were not at the spot.
They did not try to save the deceased. Adds that the motive behind this occurrence, as the appellants had suspicion that the deceased had illicit relations with Mst. Sajida the real sister of Muhammad Ashraf appellant, that version of the appellant Muhammad Ashraf is more plausible and convincing one. It is stated that it is a case of two versions and the version put forward by the appellant appeals to reason.
7. On the other hand learned State Counsel submits that appellants are named in the F.I.R., specific role is attributed to them, that the prosecution has proved its case through ocular account corroborated with medical evidence. He supports the judgment of the trial Court.
8. We have heard the learned counsel for the parties and also have gone through the record available on the file. It is a case of two versions. The version of the complainant as stated in the F.I.R.
Is that the occurrence had taken place between the night of 22/23-10-1996 during looking after the cotton crop. The dead body had been recovered from the house of the appellants, even blood- stained earth was also taken from the said place. There is no mark of dragging from the place where according to the prosecution the deceased was murdered and then dead body was taken by the appellants to their house. No trail of blood is present between these two places. It falsifies the prosecution story, that the occurrence had taken place outside the house of the appellants and then dead body was taken by them to A their house. It is case of two versions. The version of the appellant Muhammad Ashraf has been given by him in his statement recorded under section 342, Cr.P.C. While replying Question No,7. The same is reproduced below:--- "Deceased Habibullah was carrying on illicit relation with my sister Mst. Sajida. In spite of the facts that the deceased was asked by me to abstain from such immoral activities but all invain. On the alleged night of occurrence, I was sleeping in the courtyard of the house where my cattle were tethered. My sister Mst. Sajida was sleeping in the room of the house as usual. During the late hours of the night I woke up to check my cattle. I suspected somebody else in the room where my sister Sajida was sleeping. I took up the hatchet which I used to keep with me during night time for security purposes and went to the room I saw Habibullah deceased and Mst. Sajida lying together whereas the deceased Habibullah was nacked. Finding me at the spot the deceased attempted to snatch hatchet from me and tried to run away. Under the situation, I flared up -under sudden provocation and in that situation I lost control of myself and caused injuries to the deceased with hatchet. Neither my co-accused Muhammad Din was present there, nor any P.W. Witnessed the" currence. While the deceased was attempting to snatch hatchet from me Mst. Sajida got opportunity and managed to slip away from the spot. Even she disappeared from the house. The occurrence was not witnessed by any body. The police reached the spot after consultation and preliminary inquiry. The prosecution story was cooked up with the connivance of local influenced person. I appeared before the police at the spot and produced the hatchet, whereupon I was arrested."
9. After having gone through the version of the appellant it seems to be more plausible and convincing one. We are satisfied in our minds that both the eyewitnesses who are real father and brother of the deceased were not at the spot. Had they been present at the spot, they must have tried to save the deceased and then to refrain them from shifting the dead body. The complainant himself has stated in the F.I.R. That Muhammad Ashraf appellant had suspicion that deceased had illicit relations with his sister. The version of the appellant Muhammad Ashraf that the deceased was found lying with Mst. Sajida in a room appeals to reason. Nature and numbers of the injuries also show that the occurrence had taken place under grave and sudden provocation because 12 injuries were on different parts of the body of the deceased. Greater the provocation, greater the number of injuries.
10. After having heard the learned counsel for both the parties and also going through the record, we are fully satisfied in our mind that the witnesses were not present at the spot so we are forced to accept the version of Muhammad Ashraf appellant and if the same is accepted then no case is made out against Muhammad Din appellant who is maternal uncle of Ashraf appellant, he is acquitted of the charge. Muhammad Ashraf appellant was arrested on 16-11-1996 and he is behind the bars since then. As he has committed the murder of Habibullah under grave and sudden provocation, his sentence which he has already undergone till today is treated to be sufficient to meet the ends of justice. Death sentence of Muhammad Din is not confirmed. Murder Reference is replied in the negative. Both the appellants are ordered to be released forthwith if not required in any other criminal case. Sentence of compensation is also set aside.
' Death sentence awarded to Muhammad Din appellant by the learned Additional Sessions Judge, Lodhran is not confirmed.