' This judgment will dispose of Criminal Appeal No,595 of 1993 filed by Safdar Ali, accused- appellant, Criminal Revision No,403 of 1993 and Criminal Revision No,552 of 1993 filed by Allah Ditta complainant as all are directed against the same impugned judgment.
2. Both the criminal appeal and criminal revisions call into question the legality and propriety of the judgment, dated 12-7-1991 passed by the learned Additional Sessions Judge, Gujrat, whereby he acquitted Muhammad Arshad, Atta Muhammad and Zaka Ullah giving them the benefit of doubt while convicted Safdar Ali, appellant under section 302, P.P.C. And sentenced him to life.
Imprisonment with a fine of Rs,20,000, in default of payment of fine to undergo R.I. For two years.
The benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
3. Briefly, the facts of the case are. That Allah Ditta (P.W.6) lodged report Exh.P.G. At Police Station Kunjah on 30-11-1991 at 8-45 p.m. Alleging that on the preceding night the complainant alongwith his two sons, viz., Irshad Ahmad and Riaz Ahmad and its daughter Razia Begum and one Rashid Ahmad son of Rehmat Khan resident of Kot Daro were present in the house of Barkat Ali for getting the hand of his daughter, Sajida, for Muhammad Iqbal the son of the complainant. At about 10-00 p.m., Muhammad Safdar and Muhammad Arshad came to the house of Barkat Ali and called Riaz, the son of the complainant, on the pretext that some guests have come from Village Chooknanwali and they are summoning him. On this, Riaz Ahmad went away with them and after sometime, the complainant alongwith other family members went to sleep. At about Sehriwela the complainant got up and found that his son Riaz Ahmad had not returned and he became worried. He alongwith Rashid, Irshad and Razia Begum reached in front of the house of Safdar to inquire about Riaz. The outer door was closed and on peeping over and above the outer wall found Muhammad Safdar armed with Toka and Arshad armed with dagger. Muhammad Khan, Atta Muhammad (acquitted accused) had caught hold of Riaz Ahmad from his legs and hands through the ropes and he was made to lie on the ground. Within the view of the complainant and others, Safdar gave successive Toka blows landing on the neck below the left ear on the jaw of Riaz. Irshad accused severed the neck of Riaz from the trunk by his dagger. On hue and cry the accused ran away and the son of the complainant succumbed to the injuries.
4. The motive alleged for the occurrence was that firstly ,Safdar accused had been demanding the hand of Mst. Sajida Bibi for his brother Mehdi Khan and now the complainant party was asking for her hand. Aggrieved by this, the accused have murdered the son of the complainant.
5. On 30-11-1991 Inspector Arshad Hussain, S.H.O. Police Station, Kunjah (P.W.9) proceeded to the spot, prepared the injury statement Exh.P.H., inquest report Exh.P.J. And sent the dead body to the mortuary to Aziz Bhatti Shaheed Hospital, Gujrat. He also collected blood-stained earth from the place where the dead body was lying, took the same into possession vide memo. Exh.P.C., blood- stained Toka Exh.P.6 vide memo. Exh.P.E. And the three blood-stained pieces of ropes Exh.P.5/1-3 vide recovery memo. Exh.P.E. The last-worn clothes of the deceased were taken into possession vide recovery memo. Exh.P.B., got prepared the site plan Exh.P.A. And Exh.P.A./1 from the draftsman and also recorded the statements of the P. Ws. Under section 161, Cr.P.C. On 11-12-1991 he arrested accused Muhammad Khan, Atta Muhammad and Safdar. On 12-12-1991 Muhammad Arshad joined the investigation and produced the defence evidence which was found cogent by the Police Officer and on the basis thereof Arshad accused was declared innocent. After the completion of the investigation, the Investigating Officer challaned the accused.
6. On 1-12-1991, Dr. Muhammad Munir Ahmad (P.W.5) conducted the post-mortem examination on the dead body of Muhammad Riaz and found the following injuries:--
(1) An incised wound 8 c.m. x 0.5 c.m. On left cheek bone deep.
(2) The neck is almost detached from the trunk, attached only by thin skin tag. All blood vessels spine and nerves were cut by a large lacerated wound 25 c.m. x 4 c.m. In size.
' The injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.
According to the opinion of the doctor, the cause of death was haemorrhage and shock due to injury No,2, which was caused by a sharp-edged weapon. The probable time between the injuries and death was immediate and between the death and post-mortem was 24 to 36 hours.
7. The appellant when examined under section 342, Cr.P.C. Denied the prosecution allegations and professed innocence. In answer to a question why this case against the accused, he submitted as under:-- ' "I have been falsely involved in this case. The complainant had fabricated a false story in league with the police. The real facts are that Fazilat Bibi is my real sister. The deceased Riaz developed illicit relations with her. I had requested the deceased many times that he should not play with my honour and reputation and he should desist from his nefarious activities but he did not pay any heed to my repeated requests. On the eventful night the deceased in continuation of his illicit relations with Fazilat Bibi managed to enter my house when no body was present. At the dead of night, I heard the whispering in a room of my house and so I became cautious and went towards that room. I knocked at the door but nobody opened the same and then I pushed my entry into the same and found the deceased and my sister Fazilat Bibi in an objectionable position. I could not bear the sight of it and was gravely and suddenly provoked and so managed to lay my hand on a Toka which I ordinarily use for cutting of fodder from adjacent room of my house and chased both Fazilat Bibi and deceased. The deceased came in the courtyard of my house and I succeeded in overpowering him and so out of Ghairat and grave and sudden provocation, I delivered Toka blows on the person of the deceased. Fazilat Bibi succeeded in making good her escape during this process and so disappeared from my house. I have committed no Qatal-1-Amd but have done to save my dignity honour and reputation out of Ghairat."
' The appellant also produced Ghazanfar Hayat, D.S.P. As D.W.1 who deposed that investigation of the case was entrusted to him and during the investigation, Arshad, acquitted co-accused produced defence evidence and relying on the same, the defence witness declared Arshad as innocent.
8. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellant as indicated above.
9. Learned counsel for the appellant vehemently contended that the learned trial Judge though disbelieved the motive the recovery witnesses and the eye-witnesses, yet recorded the conviction which is not warranted by law. The learned counsel for the State has on the other hand taken the stand that there was no justification in disbelieving the motive and the recovery witnesses and the ocular evidence and that it was a case of giving full conviction.
10. I have gone through the whole record with the able assistance of the learned counsel for the parties and have also heard them at length in respect of their respective contentions.
11. The motive as alleged by the prosecution was that firstly appellant Safdar had been demanding the hand of Mst. Sajida Bibi for his brother Mehdi Khan and now the complainant party was asking for her hand. On this point P.W.6 Allah Ditta admitted in his cross-examination that he did not produce anybody from the village of Safdar accused in order to prove his motive story. He could not deny that Sajida was married after the occurrence, and he had participated in her marriage.
He also admitted that his son was married to the daughter of Barkat Ali and so he had participated.
He had no knowledge since how long before the occurrence Safdar accused had demanded the hand of Sajida for his brother Mehdi. P.W.7 Muhammad Arshad stated in the examination-in-chief that the motive for the occurrence was that he demanded the hand of Mst. Sajida Bibi for his brother Iqbal while Safdar accused was demanding the hand for his brother Mehdi, and that Sajida Bibi is real sister of his wife. P.W.6 and P.W.7 are father and son inter se.
12. On the other hand the plea of the accused-appellant is that he saw the deceased and his sister Mst. Fazilat Bibi in an objectionable position and was gravely and suddenly provoked and gave Toka blows to the deceased while Mst. Fazilat Bibi succeeded in making good her escape and that this he did due to Ghariat.
13. Keeping in juxtaposition the evidence on record it appears that the motive as alleged by the prosecution is not plausible and the motive as alleged by the appellant is not only supported by the evidence but also appeals to the reason. The learned counsel for the State has taken the stand that the non-production of Mst. Fazilat Bibi negates the motive as alleged by the appellant. In our society family honour comes in the way of bringing a woman to the Court and some times it has got very serious and long way adverse effect on the life of the women in the society. Even otherwise the prosecution has to stand on its own legs and once it takes a stand regarding the motive the burden is cast on the prosecution to prove it to the hilt without any dent. The above resume of the evidence on the point of motive clearly shows that the motive as alleged by the prosecution is not proved. It is also an admitted fact that Mst. Fatima Bibi mother of Sajida Bibi and Mazhar brother of Sajida Bibi and even the Sajida Bibi herself were the best evidence which have not been produced before the police or at the trial for the reasons best known to the prosecution. The trial Court has very correctly drawn the presumption against the prosecution that had those persons appeared as P.Ws. They would not have supported the prosecution'on the question of motive.
14. The next point is the eye-witness account. According to complainant Allah Ditta (P.W.6) about one year and five months ago he, the complainant, alongwith Irshad, Riaz, Razia Bibi and Rashid Ahmad had gone to Village Dhudra in the house of Barkat Ali for asking the hand of Sajida Bibi daughter of Barkat Ali for Iqbal, the son of complainant. At about 10-00 p.m. Safdar and Arshad accused came to the house of Barkat Ali, Safdar told that two guests had come from Chooknanwali to his house and on this Riaz Ahmad (deceased) went away with Safdar and Arshad while complainant, Irshad, Riaz, Mst. Razia Bibi and Rashid Ahmad remained in the house of Barkat Ali and slept there. At ,about Sargiwela the complainant got up and found Riaz Ahmad not present on his cot. The complainant awakened Razia Bibi, Irshad Ahmad and Rashid Ahmad and they all went to the house of Safdar and found outer gate closed and looked from over the wall that light was on. They saw that Atta Muhammad was catching hold Riaz Ahmad from his legs and Muhammad Khan was catching him from his arms. Safdar inflicted a Toka blow on the neck of Riaz Ahmad and second blow on left side of the face of Riaz Ahmad. Arshad separated neck of Riaz with dagger. The complainant party raised hue and cry and on that the accused fled away. After opening the gate the complainant, Irshad Ahmad and Razia Begum entered in the house and untied the ropes from the hands and feets. In the cross-examination the complainant stated that the Haveli of Safdar is surrounded by forewalls by the height of five feet and that they saw the occurrence from the eastern side of the house by just standing besides wall and that the occurrence took place in the courtyard of the house which was of the area of 13/14 Marlas and at that time the accused were at a distance of 5/6 Karams from the eastern wall. The deceased Riaz Ahmad did not see them nor he cried for help. They also did not cry out at that time to the deceased that they were scaling over the wall. The complainant also stated that as they were not close to the deceased at that time so the complainant cannot say whether the deceased was asleep at that time or he was awaken. The complainant also stated that they did not awake or sought help from any of the neighbourers and that the occurrence lasted for about 2/3 seconds.
The complainant made certain improvements in his statement at the trial with which he was confronted and those improvements were that there was light at the time of occurrence, the first blow landing on the neck and the second blow at the jaw, his denial that blows were successive which landed on left ear and jaw. Muhammad Irshad (P.W.7) supported the complainant on the point that legs and hands of the deceased were tied by Atta Muhammad and Muhammad Khan and that Safdar inflicted Toka blows which landed on the neck of Riaz Ahmad and the second blow hit on the left side of the face of the deceased and Arshad accused severed the neck of Riaz from the rest of the body by the dagger, however, the neck was not completely separated. Safdar accused leaving Toka at the spot ran away while Arshad fled away from the scene alongwith dagger. He further stated that they entered in the house and at that time the deceased had already expired and that they untied the deceased from the ropes. He also stated that there was light as the day was dawning. He also stated that they raised hue and cry. Admittedly there is no mention of light in the F.I.R. Complainant says that they did not raise any cry while P.W.6 says that they raised hue and cry. Both P.W.6 and P.W.7 admitted that they were not close to the deceased and they cannot say whether he was asleep or had got up. It is also strange that the complainant's son was being murdered so brutally within his eyesight and he remained silent. The tying of hands and legs is also not proved by the medical evidence on the record and it appears that the murder has taken place much before the arrival of the two eye-witnesses. The learned trial Court has very correctly rejected their evidence. In the circumstance only the plea of the accused remained in the field on which the learned trial Court has passed the conviction and sentence. It is now well-settled that when the statement of the accused is the only basis then it is to be taken as a whole. The perusal of the statement of the accused clearly shows that he saw the deceased and his sister Mst.
Fazilat Bibi in an objectionable position and was gravely and suddenly provoked as a result of which he murdered the deceased.
15. In such a circumstance, the conviction under section 302, P.P.C. Is not maintainable. The ends of justice will meet by convicting the appellant under section 304(I), P.P.C. Accordingly, the conviction of the appellant under section 302, P.P.C. Is altered to section 304, Part I, P.P.C. He is sentenced to undergo R.I. For ten years and a fine of Rs,20,000 or in default to undergo further R.I. For one year.
Fine if recovered shall go to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Is also granted.
16. Both the Criminal Revisions Nos.403 of 1993 and 553 of 1993 are also disposed of in these terms.