' The appellant namely Muhammad Yaqoob was tried for the charge of murder of Abdul Waheed under section 302, P.P.C. By the learned Additional Sessions Judge, Rawalpindi, and upon conviction through judgment, dated 10-8-1993 was sentenced to imprisonment for life with a direction to pay Rs,25,000 as compensation to the legal heirs of the deceased and in default of payment of compensation was ordered to suffer imprisonment for 6 months' S.I.
2. The appellant being aggrieved of conviction and sentence has preferred this Criminal Appeal No,99 of 1995 before this Court, whereas Lal Khan complainant being dissatisfied with the sentence awarded to the appellant has preferred Criminal Revision No,68 of 1995 for enhancement of sentence of the appellant from life imprisonment to death. The criminal appeal and revision shall be disposed through this single judgment.
3. Briefly the facts narrated in the F.I.R. Exh.P.C./1 which was recorded on the basis of statement of Lal Khan complainant are that his son was engaged with Mst. Farzana daughter of Muhammad Saleem about a year prior to the occurrence but Muhammad Yaqub accused maternal-uncle of Mst. Farzana was against this engagement which was ultimately dissolved. On 10-8-1993 at about 8-00 p.m. The complainant alongwith his son Abdul Wahid deceased and Abdul Ghaffar visited the house of Muhammad Yaqub situated near Committee Chowk, Rawalpindi to offer condolence on the death of sister of Muhammad Yaqoob and remained present there till 10-30 p.m. And during this period they discussed family affairs including the engagement of Abdul Waheed with Mst.
Farzana. Muhammad Yaqoob during the course of discussion flared up and while picking up a cricket bat gave beating to Abdul Waheed and thereafter, while picking up a Chhuri caused a number of injuries to the deceased which proved fatal. The complainant tried to rescue his son but failed and the deceased having sustained injuries with Chhuri succumbed to the same at the spot.
The motive behind the occurrence was that the accused having developed grudge against Abdul Waheed deceased on the issue of his engagement with his niece had earlier lodged a report against the deceased at Police Station Waris Khan with a view to undo the proposal of marriage of his niece with the deceased. The complainant alongwith his deceased son and Abdul Ghafoor had gone to the house of Muhammad Yaqub so that the engagement of his son with niece of accused may be revived as the mother of girl was interested in its revival. The accused having not tolerated the visit of the deceased to his house with his father committed his murder.
3. Ikram Hussain Shah, S.-I. P.W.5 on receipt of complaint Exh.P.C. At about 12-30 a.m. On 10-8-1993 through S.H.O. Recorded formal F.I.R. Exh.P.C./1. This witness has identified the handwriting of Sh.
Muhammad Aslam, Inspector/S.H.O. Who investigated the present case but before commencement of trial died. The witness served with S.H.O. For a considerable time while being posted at Police Station Waris Khan as the subordinate of S.H.O. And thus, was familiar with the signature and handwriting of deceased S.H.O. He stated that the complaint Exh.P.C./1 recovery memo. Of blood-stained earth Exh.P.F., recovery memo. Of weapon of offence Cricket bat and Chhuri Exh.P.G. Injury statement of Abdul Waheed deceased Exh.P.H. Inquest report Exh.P.J. And notes in red ink on the site plan Exh.P.A. And Exh.P.A./1 and the recovery memo. Of bloodstained clothes of the deceased Exh.P.B. Were prepared by Muhammad Aslam, Inspector S.H.O. And all these documents bore his signatures. The rough site plan Exh.P.K. And report under section 173, Cr.P.C. Were also prepared by the late Inspector.
4. Dr. Munawar Hussain, Medical Officer, D.H.Q. Hospital, Rawalpindi P.W.6 conducted post-mortem examination of Abdul Waheed deceased and found the following injuries on his person:--
(1) Incised wound 3 x c.m. On left nipple.
(2) Incised wound 4 x 2 c.m. 3 c.m. Inframedial to injury No,1 and 4.5 c.m. Later to epigastrium.
(3) Incised wound 6 x 2 c.m. Muscle deep 3 c.m. Below the neck and 14 c.m. Above epigastrium. This injury had abrasion on both sides as shown in figure. Starting point was 9 c.m. Away from left nipple.
(4) Incised wound 9 x 1 c.m. From the neck, 3 c.m. Above the injury No,3.
(5) Contusion swelling 1 x 1 c.m. On right forehead 3 c.m. Above eyebrow.
(6) Right eye swelling close and both lids were blackened.
(7) Left eye lids (lowe) blackened swelling and eye closed.
(8) Both lips were contused on inner aspect swelling and mouth closed.
(9) Evidence of bleeding from both nostrils were present.
(10) Abrasion 1 x 25 c.m. On front of left shoulder.
(11) Lacerated wound 2 x 1 on right front of middle leg.
(12) Contusion 2 x 2 c.m. Just below injury No,11. (13) Abrasion 5 x 5 c.m. On left middle front of leg.
(14) Incised wound 4 x 1 c.m. On left posterior respect of mid thigh 21 c.m. Above knee.
(15) Contusion swelling .5 x .5 c.m. On left upper back of fore-arm 3 c.m. Below elbow.
(16) Abrasion 1 x .5 c.m. On right ear anteriorly.
(17) Contusion swelling 9 x 6 c.m. On right posterior aspect of thigh 19 c.m. Above knee joint.
' On opening thorax third left rib was cut by injury No,1 and Trachea was partially fractured by injury No,4. Left lung lower zone cut by injury No,1, left verticlex was cut through and through by injury No,2 rest was healthy. On opening abdomen every thing was healthy.
' In the opinion of the doctor the death was the result of injury No,2 which was caused by sharp- edged weapon and causing damaged the heart was sufficient to cause death in the ordinary course of nature. All injuries on the person of deceased were found ante-mortem and injuries Nos.1 to 4 were caused by sharp-edged weapon whereas injuries Nos.5 to 13 and 15 to 17 were caused with blunt weapon.
5. The prosecution in order to prove its case produced 8 witnesses in all including the doctor Qamdar Din, Draft man P.W.1 inspected the place of occurrence on 12-8-1993 and after taking rough notes on the pointation of the P.Ws. Prepared the site plan. Imtiaz Hussain P.W.2 identified the dead body of the deceased in the mortuary.
6. Ihsan Ellahi, A.S.-I., P.W.3 Muharer of the Police Station Waris Khan on 10-8-1993 received sealed parcels containing blood-stained cotton and blood-stained Chhuri which were kept by him in the Malkhana in safe custody. The abovesaid parcels were delivered by him to Mukhtar Ahmad, Constable on 17-8-1993 to take the same to the concerned Offices at Lahore.
7. Mukhtar Ahmad, constable P.W.4 escorted the dead body of the deceased to the mortuary for the post-mortem examination and produced last-worn clothes of the deceased viz. Shalwar P.1, Shirt P.2, Banian P.3 Pair of Joggers P.4/1-2, Socks P.5/1-2 and Blanket P.B. To the Investigating Officer which were handed over to him by the doctor and were secured through memo. Exh .P.B.
8. Since the Investigating Officer died before the commencement of trial, therefore, Ikram Hussain P.W.5 while identifying his handwriting proved the recoveries memos. And other documents prepared by the Investigating Officer during the investigation. Lal Khan complainant P.W.7 deposed in support of the prosecution story as narrated in the F.I.R. Whereas Abdul Ghaffar P.W.8 another eye-witness of the occurrence while making a similar statement fulls corroborated Lal Khan.
According to the eyewitnesses they alongwith Abdul Waheed went to the house of Muhammad Yaqoob accused at 8 p.m. For the condolence on the death of his sister and after saying Fatiha while sitting in a room of the house of accused during the general talk at about 10-30 p.m. Also discussed the matter relating to the engagement of Abdul Waheed with Mst. Farzana, niece of Muhammad Yaqoob accused. The accused suddenly being flared up picked up a cricket bat and started beating Abdul Waheed and on the cricket bat being broken the accused while picking up a Chhuri caused successive blows to the deceased with Chhuri on different parts of his body and fled away from the place of occurrence. The deceased succumbed to the injuries at the spot.
10. The accused in his statement under section 342, Cr.P.C. While denying the prosecution story pleaded innocence and admitted the occurrence in the following manner:- ' "That his sister Mst. Naseem Akhtar was married in village Gangootha Gujjran, Police Station Sahila.
She had died on Friday preceding the occurrence, on her sadful demise, he alongwith his family went to the said village to participate in the funeral of his sister and since their stay in the house of her late sister prolonged, therefore, with a view to take the necessary clothes of his children from his residence at Committee Chowk, he alongwith his daughter Alia reached his house in the evening and at about 10 p.m. He while leaving Mst. Alia in the house alone went to Bazar to fetch cigarettes and when at about 10-30 p.m. On coming back he saw that deceased was molesting his daughter with an attempt to overpower her for committing rape with her, whereupon he in grave and sudden provocation while picking up a cricket bat gave successive blows to Abdul Wahid deceased and when Abdul Wahid deceased picked up a Chhuri and attacked on him whereupon he while snatching the Chhuri from him in exercise of his right of self-defence gave Chhuri blows to him who succumbed to the injuries."
11. The learned counsel for the appellant contended that the presence of the eye-witnesses at the spot seemed to be highly doubtful as it is not acceptable that real father of the deceased would not interfere in the occurrence in which his young son was being caused injuries by the appellant.
He added that the witnesses being resident of Chakwal which is at a distance of 60/70 miles from the place of occurrence would not be normally present at the house of accused at the relevant time and, therefore, the explanation offered by them of their presence with the deceased at 10-30 p.m. In the house of the appellant for offering condolence on the death of his sister was not convincing. The learned counsel argued that it was an unseen occurrence and that except the admission of the appellant of taking place the occurrence in the manner as he described, there was no evidence in support of the prosecution version, and contended that learned trial Court has committed an illegality by excluding the defence version from considerations. The learned counsel submitted that since the deceased while trespassing into the house of appellant made an attempt to commit rape with her young daughter, therefore, he having lost self-control under grave and sudden provocation caused injuries to the deceased and, thus, was entitled to the benefit of section 100, P.P.C. In alternate the learned counsel argued that even in the light of prosecution story itself the appellant while suddenly flared up caused injuries to the deceased, and the defence version being amply supported by the prosecution story, the plea of grave and sudden provocation stood proved even by the prosecution version beyond doubt and consequently the conviction and sentence under section 302(b), P.P.C. Was bad in law.
12. Conversely learned counsel representing the complainant argued that the number of injuries caused to the deceased by the appellant would show the state of mind of the appellant with which he committed murder which would conveniently lead to an irresistible conclusion that it was an intentional murder. He submits that the visit of the P.Ws. To the house of appellant on the sad occasion of death of his sister for condolence was natural and during the general talk the issue relating to the engagement of the deceased with niece of the appellant was also discussed, therefore, the presence of the P.Ws. At the spot would not be challengeable and further they have narrated the occurrence in the manner in which it was admitted by the appellant. He argued the defence version of grave and sudden provocation was subsequently, introduced to get the benefit of truthfulness of the witnesses. The learned counsel while summing up submitted that in the given facts the conviction and sentence awarded to the appellant under section 302(b), P.P.C. Was unexceptional.
13. I have heard the learned counsel for the parties and perused the record with their assistance.
The material facts relating to the place and time of occurrence, the sustaining of injuries by the deceased at the hand of appellant with cricket bat and Chhuri in his house are not disputed.
However, it being a case of two versions the controversy was regarding the manner of taking place the occurrence. According to the prosecution the appellant during the course of discussion on the issue relating to the revival of engagement of the deceased with his niece suddenly flared up and while acting in a brutal manner started causing injuries to the deceased with cricket bat and then with Chhuri in the presence of eye-witnesses whereas according to the defence version the deceased while trespassing into the house of the appellant with intention to commit an offence of Zina with her young daughter was in process of molesting her when the appellant suddenly reached home and under grave and sudden provocation caused injuries to the deceased with bat and Chhuri who lost his breath at the spot.
14. The two versions while putting in juxtaposition would unambiguously suggest that it was a sudden occurrence. However, the factum of grave and sudden provocation as pleaded by the defence is not supported by any evidence direct or circumstantial except the statement (Exh.D.A.) of the appellant made before the police. According to the defence version except the deceased, the appellant and his daughter no one else was present in the house at the relevant time, but the appellant did not bother either to produce his daughter before the police in support of defence plea during the investigation or she was examined as defence witness at the trial. Thus, the appellant while withholding the best evidence in his defence would not be successful to establish the defence plea through his sole statement under section 342, Cr.P.C. The occurrence in the present case took place at 10-30 p.m. In the house of the appellant, the report of which was lodged by the father of deceased at the Police Station Waris Khan within two hours which would not possibly be done by him while residing at a distance of 60/70 miles away from the place of occurrence within two hours. If the complainant would not be present at the spot he would have no source of information about the sad occurrence at Chakwal shortly after the occurrence. It is also not acceptable that deceased would come all alone to the house of appellant at Rawalpindi during the night and stay there without the consent and knowledge of appellant or his daughter.
Therefore, the prosecution story that deceased came to the house of appellant in company of his father and another close relative for condolence was more natural and plausible. It is usual that people on such occasion after offering of the condolence also discuss their family affairs, therefore, the presence of the eye-witnesses in the circumstances in the house of the appellant and discussion of the issue relating to the engagement of niece of appellant with deceased was not unnatural. However, it is not clear from the prosecution story that why the appellant while discussing this issue with elders of the deceased would attack on the deceased and cause him successive injuries. The scrutiny of the counter-stories together would reveal that during the conversation deceased probably behaved in an abnormal manner which was not tolerated by the appellant and he while losing self-control at the first instance caused injuries to the deceased with cricket bat and then under the same state of mind inflicted injuries to the deceased with Chhuri which proved fatal. Thus, the circumstances would suggest that fateful occurrence was sudden and was not premeditated. It appears that both the parties deliberately withheld the truth, the immediate cause of sad incident with a view to cause maximum damages to each other. It is a proved fact that the parties were carrying grievance against each other over the engagement of niece of appellant with the deceased and it was the only cause behind the sad incident. The close scrutiny of evidence and analysis of the circumstances under which occurrence took place it can safely be said that although it was a sudden occurrence but was not a case of self-defence as pleaded by the appellant. The appellant while losing self-control during the discussion for some unknown reasons caused injuries to the deceased and, thus, it would not be a case of Qatl-e-Amd punishable under section 302(b), P.P.C. Rather would fall within the ambit of section 302(c), P.P.C.
For the purpose of punishment. Consequently, I while converting the conviction of the appellant from section 302(b), P.P.C. Convict him under section 302(c), P.P.C. And reduce his sentence from the imprisonment for life to 20 years. The appellant is, however, given benefit of section 382-B, Cr.P.C. With above modification in the conviction and sentence this appeal stands dismissed.