1. ' HAMID ALI MIRZA, J.---This criminal appeal by leave of this Court is directed against the judgment, dated 25-5-1995 passed in Criminal Appeal No,229 of 1991 by Lahore High Court, Multan Bench, whereby the conviction of the appellants under section 302, P.P.C. Was maintained, and Criminal Revision No,194 of 1991 preferred by the complainant for enhancement of the sentence of the appellants from imprisonment for life to death was also dismissed.
2. ' The appellants were tried on the charge of trespassing into the house of Muhammad Arif, P.W.5, on 15-4-1989 at about 11/12 a.m. In the area of Mouza, Noor Shah, Police Station Mitro who in furtherance of their common intention duly armed with Sotas murdered Muhammad Sadiq. The learned trial Court after recording the evidence and hearing the learned counsel convicted the appellants under section 302, P.P.C. And sentenced to each one of them to life imprisonment and fine of Rs,10,000 each and in default in payment of fine they were directed to undergo further two years' R.I. Each one of them was also directed to pay Rs,5,000 as compensation under section 544- A, Cr.P.C. And in default in payment of compensation to suffer further imprisonment for six months.
3. They were also convicted under Section 452/34, P.P.C. And sentenced to four year' R.I. And fine of Rs,1,000 each and in case of default in payment of fine- they were directed to undergo further imprisonment of six months' R.I. And both the sentences were directed to run concurrently and the amount of fine and compensation so recovered was to be paid to the legal heirs of Muhammad Sadiq deceased.
4. ' The facts of the case as per prosecution version are that at the relevant time the deceased alongwith Muhammad Nasar (P.W.6) was sitting in the compound of the house of Muhammad Arif (P.W.5)' when at about 11-00 a.m. The appellants armed with Sotas criminally trespassed into the house- and attacked Muhammad Sadiq with their Sotas. The blows hit Muhammad Sadiq on his head as well as on the back and neck and was seriously injured and fell unconscious and was removed to the hospital where he died on 10-4-1989, consequently, section 302, P.P.C. Was added to the F.I.R. Which was initially recorded under sections 451, 307/34, P.P.C. The motive for the murder is stated to be the illicit relation of deceased Muhammad Sadiq with Rehmat Bibi, the real paternal aunt of the appellants when the deceased before the incident had also eloped her and thereafter she was restored through Punchayat.
5. ' The prosecution examined Muhammad Arif (P.W.5), Muhammad Nasar (P.W.6) who furnished ocular account of the incident, Dr. Abdul Ghafoor (P.W.3) who examined the injured Muhammad Sadiq, Dr. Ziauddin Zaidi (P.W.4) who conducted the post-mortem examination upon the dead body of Muhammad Sadiq, Manzoor Hussain (P.W.8), Muhammad Yar (P.W.9) who deposed about the recovery of blood-stained earth and Sotas (Exh.P.3 to Exh.P.5) used in the commission of the offence, Bashir Ahmed (P.W.7) who deposed about the motive, and Ghulam Abbas (P.W.11) who conducted investigation of the case. After the examination of the prosecution witnesses, the appellants were examined under section 342, Cr.P.C. Wherein appellants Muhammad Ramzan and Muhammad Iqbal stated that they have been falsely implicated in the case. Appellant Bashir Ahmed stated that on the said date, time and place, he saw Mst. Rehmat Bibi and Muhammad Sadiq in an objectionable position, hence he picked up a Danda lying on the cart in front of the, room, lost his control and under the impulse of sudden and grave provocation inflicted injuries to both Muhammad Sadiq and Rehmat Bibi and when he was causing injuries to Muhammad Sadiq deceased Mst. Rehmat Bibi slipped away from the spot and that none was present at the place of occurrence. He further stated that it was the only incident wherein deceased Muhammad Sadiq and Rehmat Bibi were given Sota blows, but the police bifurcated the one occurrence into two.
6. Appellant Bashir Ahmad examined himself under section 340(2), Cr.P.C. Wherein he reiterated his defence as stated above. Appellants Muhammad Iqbal and Muhammad Ramzan denied to have committed the said offence and stated that they were innocent.
7. ' We have heard the learned counsel for the parties and have gone through the record and proceedings of the case.
8. ' It is contended by the learned counsel for the appellants that appellant Bashir Ahmed was the only person who had caused fatal injuries to Muhammad Sadiq and Mst. Rehmat Bibi on seeing them in an objectionable position, but the police, instead of showing as one incident, registered two separate incidents and in the first F.I.R. No,75 of 1989, dated 15-4-1989 the police did not state about causing of injuries of Mst. Rehmat Bibi, while in the second F.I.R. No,78 of 1989, dated 22-4- 1989 the fact of causing injuries to Muhammad Sadiq was not stated. It is further contended that deceased Rehmat Bibi is shown to have been murdered about a week after the murder of deceased Muhammad Sadiq but the post-mortem report belied the prosecution version, which supported the appellant's case that both the deceased were inflicted fatal injuries on the same date, time and place by appellant Bashir Ahmed, therefore, the conviction and sentence of the rest of the appellants were uncalled for. It is also argued that there is delay in lodging of F.I.R. Without any explanation, therefore, possibility of concoction cannot be ruled out.
9. ' The learned counsel for the State submitted that the plea of grave and sudden provocation is an afterthought because if appellant Bashir Ahmad had acted under the impulse of sudden and grave provocation, then he would have admitted this fact and stated so when the charge was read over to him but he pleaded that he was innocent and falsely implicated. The learned counsel further submitted that Dr. Ziauddin Zaidi (P.W.4) has shown probable duration between the injuries and death as 16 hours in the examination-in-chief while in the cross-examination he opined that it could be 15/16 hours whereas the Column in the post-mortem report Ex.h.P.B. In respect of the same mentioned that probable time that lapsed between injury and death was 15/16 hours and between death and post-mortem examination report was about 14 hours. He also submitted that Dr. Abdul Razzak whose statement was, brought on record as Exh.D.D by appellant Bashir Ahmed with his statement recorded under section 340(2), Cr.P.C. Has in his cross-examination made concessional statement in favour of the appellants that time period between the injuries and death of Mst.
10. Rehmat Bibi could be varied up to one week or 8 days while in the examination-in-chief he deposed that probable time between injury and death about two weeks while time between death and post-mortem report was about 24 hours. He also submitted that under Qisas and Diyat, there could not be grave and sudden provocation in case of the aunt. He also submitted that in view of the postmortem examination report brain matter of deceased Mst. Rehmat Bibi had come out, which would show that if she would have sustained such kind of injury on the vital part viz. The brain, she could not have been moved from the place of occurrence and the brain matter which was said to have come out would have dried within eight days and further the nature of injuries caused to deceased persons could not have been caused by one person/appellant (Bashir Ahmed) only but the nature of the injuries suggested that all the appellants inflicted injuries upon both the deceased at different places and times. He further submitted that admittedly the alleged elopement of Mst. Rehmat Bibi with deceased Muhammad Sadiq took place about ten days prior to the incident of Muhammad Sadiq, consequently, the appellants could not be said to have acted on the spur of moment due to grave and sudden provocation. He also submitted that there is no delay in lodging of the F.I.R., considering that the distance between the place of occurrence and the police station is 14 miles and in between the two places there was Kacha area, which would have taken sufficient time to the informant to reach the police station. He in the end submitted that the prosecution has proved the case against the appellants beyond reasonable doubt, but the trial Court has taken lenient view in not awarding capital punishment.
11. ' We do not find substance in the contention of the learned counsel for the appellants that appellant Bashir Ahmed acted under the impulse of sudden and grave provocation when he saw his paternal aunt in an objectionable position with Muhammad Sadiq deceased in the room stored with Boosa in the house of Muhammad Arif and inflicted Sota blows to both of them when Mst.
12. Rehmat Bibi in injured condition slipped away, hence, the conviction and the sentence passed against appellants Muhammad Iqbal and Muhammad Ramzan were unjustified and uncalled for and therefore, liable to be set aside.
13. ' The ocular testimony furnished by Muhammad Arif (P.W.5) is that he alongwith Muhammad Nasar (P.W.6) and Muhammad Sadiq deceased were sitting in the courtyard of house under the shadow of a Gondi tree when the appellants-accused armed with Sotas came there and gave Sota blows to Muhammad Sadiq on various parts of his body, who fell down. The ocular testimony furnished by Muhammad Arif (P.W.5) is corroborated by Muhammad Nasar (P.W.6). The ocular testimony of the above two witnesses is consistent with the contents of the F.I.R. And could not be discredited in their cross-examinations. There is nothing reliable on record to the effect that Mst. Rehmat Bibi deceased was seen in a compromising position and that only one appellant Bashir Ahmed gave Sota blows to both Muhammad Sadiq and Mst. Rehmat Bibi deceased at the same place and time.
14. F.I.R. No,75 of 1989, Exh.P.F/1, of Police Station Thangi is of 15-4-1989 wherein Muhammad Sadiq was done to death, while F.I.R. No,78 of 1989 is dated 22-4-1989 was with regard to the death of Mst.
15. Rehmat Bibi. Exh.D.D. Is the deposition/statement of Dr. Abdul Razzak who carried post-mortem examination upon deceased Mst. Rehmat Bibi, had deposed that the dead body of the said deceased was brought to him in the hospital on 22-4-1989 at 7-30 p.m. And he examined the dead body on 23-4-1989 at 8-00 a.m. He stated in his cross-examination that the column with regard to date and hour of the death was blank in Exh.P.A. The post-mortem examination report and that the probable time that might have elapsed between causing of injuries and death could be about two weeks, whereas the probable time that might have elapsed between the death and the post- mortem examination could be twenty-four hours. The post-mortem examination report mentioned the following external injuries on the person of deceased Mst. Rehmat Bibi:-- "(1) Lacerated wound 3 c.m. x 1/2 c.m. x bone deep within pusy granulation in the wound, on the right of the head 5 c.m. From right eyebrow near to mid-line.
(2) A lacerated wound 2 c.m. x 1/2 c.m. x bone deep on left and back side of head, 5 c.m. From left ear. The wound was gapped pusy granulation tissues. Surrounding tissues were edematous.
(3) Scalp membranes and brain were injured."
16. ' On discussion of skull injuries inflicted upon the person of Mst. Rehmat Bibi deceased showed meninges underline the injuries were congested so also brain matter, scalp membranes were injured, congested and edematous which injuries could not have permitted her to move or slip away from the place of occurrence, therefore, it belied the defence version that deceased Mst.
17. Rehmat Bibi was given Sota blows alongwith the deceased Muhammad Sadiq at the same time and place when she met with unnatural death after 8 days at different place and time. Besides, P.Ws. Muhammad Arif and Muhammad Nasar have deposed that the incident with regard to Muhammad Sadiq deceased took place on 15-4-1989, while the incident in which Mst. Rehmat Bibi is said to have been inflicted injuries was reported on 22-4-1989. There is no evidence on record to show that Mst. Rehmat Bibi was inflicted injuries at the same time and place where Muhammad Sadiq deceased was injured and thereafter was removed to the house of her brother in an injured condition and that she remained there till she succumbed to the injuries. In absence of such material in evidence, it could not be said that deceased Muhammad Sadiq was found in a compromising position with Mst. Rehmat Bibi in the Boosa store of Muhammad Arif and thereupon appellant Bashir Ahmed alone, due to sudden and grave provocation, inflicted injuries to both the deceased persons. If Mst. Rehmat Bibi was not found in an injured condition at the said place, how could it be said that appellant Bashir saw both of the deceased persons in compromising position and then he acted under the impulse of grave and sudden provocation. So far the opinion of Dr. Abdul Razak as per Exh.D.D. And P.A., same itself appear to be conflicting as in examination-in-chief he stated that time between the injuries and death could be two weeks while in cross-examination he stated that it could be one week or eight days. It has been observed by this Court that doctor's estimate is necessarily approximate and may be erroneous by two or three hours, but it is difficult to believe that competent doctor would be A wrong in his estimate if probable time of death by seven or eight hours is estimated. Reference may be made to Mardan Ali v. Gulistan (1980 SCM R 889). The said doctor has also not given the details of signs and symptoms for arriving at the said opinion in respect of age of the injuries. In the circumstances implicit reliance as to opinion of doctor cannot safely be made, considering the ocular testimony of P.Ws. 5 and 6, which appeared to be true and confidence-inspiring. It would appear that said doctor has given obliging statement in favour of the appellants. It would also be seen that when the charge was read over to appellant Bashir Ahmed, he did not confess/admit that he alone had inflicted injuries to Mst. Rehmat Bibi and Muhammad Sadiq when he found them in an objectionable position, but, instead, he denied the charge and desired to be tried. Appellant Bashir Ahmed in his 342, Cr.P.C. Statement under Question No,3 denied the fact that prior to the occurrence Muhammad Sadiq had eloped his paternal aunt Mst. Rehmat Bibi. In his statement under section 340(2), Cr.P.C., he denied to have caused any injury to Muhammad Sadiq and Rehmat Bibi but admitted in the later part of his statement that he had given Sota blows to her. It appears that the plea of grave and sudden provocation is an afterthought, considering that the alleged abduction of Mst. Rehmat Bibi by deceased Muhammad Sadiq took place 8/9 days prior to the incident of the case, therefore, it cannot be said that appellant Bashir Ahmed acted under the impulse of sudden and grave provocation and inflicted injuries upon the person of deceased Muhammad Sadiq. The defence theory set up is afterthought and unconvincing in the circumstances of the case.
18. The ocular testimony of P.Ws. 5 and 6 implicates all the appellants in the commission of crime which had taken place in day time, hence, there was no question of mistaken identity. The ocular version with regard to causing of injury with blunt weapon i.e, Sotas is confirmed by medical evidence so also is corroborated by motive. The defence theory set up is afterthought and improbable in view of evidence and circumstances of the case. Prosecution evidence is trustworthy and confidence-inspiring.
19. ' In the circumstances, there is no substance in the contentions of the learned counsel for the appellants that it was only appellant Bashir Ahmed who inflicted injuries to both Muhammad Sadiq and Mst. Rehmat Bibi deceased at the same place and time due to sudden and grave provocation and that there was one incident, consequently, the appeal is hereby dismissed.