1. Mukhtar Ahmad alias Tari has challenged judgment dated 3-6-2000 passed by the learned Additional Sessions Judge, Sargodha whereby he was convicted under section 302(b), P.P.C. For causing murder of Nasir Hayat and sentenced to life imprisonment and was ordered to pay compensation of Rs.30,000 to the legal heirs of the deceased with benefit of section 382-B, Cr.P.C.
2. Through the same judgment Sikandar Hayat co-accused of the appellant was acquitted of the charge.
3. Brief facts of the prosecution case are that F.I.R. No. 264 of 1997, dated 20-7-1997 Exh.P.G. Was got recorded by Manak P.W.7 at Police Station Kot. Moman at 3-45 p.m. On the same day alleging that at 3-00 p.m. Nasir Hayat was going ahead of the complainant in the main Bazar of Kot Moman and when he reached in front of crockery shop of Malhi Pawli he was attacked by the appellant who was armed with Chhuri and his co-accused Sikandar Hayat was empty-handed. Sikandar Hayat raised Lalkara to Nasir Hayat deceased That they have come to take revenge of insult caused by the deceased to Mukhtar Ahmad alias Tari and he would not be left alive on which Mukhtar Ahmad appellant by reaching near Nasir Hayat gave Chhuri blow hitting on back of his chest who fell down. The occurrence was also witnessed by Ghulam Shabbir P .W.8 and one Muhammad Aslam who was also present in the Main Bazar. They could not intervene as the accused had threatened for dire consequences. The accused fled away from the spot. The complainant and P.Ws. Removed Nasir Hayat in injured condition to the hospital but he succumbed to the injuries.
4. The motive for the occurrence was that few days before the fateful day Nasir Hayat and Akhtar Ahmad alias Tari appellant had a quarrel with each other and Nasir Hayat had slapped the appellant and the instant occurrence had been committed to take the revenge of the insult.
5. Malik Muhammad Farid, Inspector P.W.9 after registration of the case arrived at the spot and took the dead body of Nasir Hayat into possession and prepared injury statement vide memo. Exh.P.C.
6. And inquest report vide memo. Exh.P.C/1 and dispatched the dead body for post-mortem examination. He could not collect the blood-stained earth from the spot due to heavy rain. Last worn clothes of the deceased were produced before him which were taken into possession vide memo. Exh.P.F.
7. On 24-10-1997 he arrested the appellant and on 30-10-1997 while in police custody he led to the recovery of Chhrrui P.1 which was taken into possession vide memo. Exh.P.A. He got prepared the site-plan of the place of occurrence and recorded statements of the eye-witnesses under section 161, Cr.P.C. He prepared the final report under section 173, Cr.P.C. And submitted the challan in the Court.
8. The trial Court framed the charge which was denied by the accused and they claimed trial.
9. The prosecution examined as many as 9 witnesses to prove the guilt of the accused.
10. Medical evidence was furnished by Dr. Akhtar Mahmood P.W.3 who on 20-10-1997 conducted the post-mortem examination of deceased Nasir Hayat and found the following injuries on his body:-- A stab wound 3 x 2 c.m. Going deep in chest cavity on back of chest slightly on left side upper part corresponding cut present on shirt and Bunyan.
11. The ocular account was furnished by Manak complainant P.W.7. He supported the version of the F.I.R., narrated the motive of the occurrence. He was father of the deceased. Ghulam Shabbir P.W.8 was also an eye-witness of the occurrence. He supported the prosecution story and his statement is in line with the statement of Manak P.W.7. He removed Nasir Hayat to Civil Hospital, Kot Moman where Nasir Hayat succumbed to the injuries. Recovery memo. Of Chhuri P.1 was attested by Muhammad Mansha P.W.2. Prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.1 and that of the Serologist as Exh.P.J.
12. Statement of the accused-appellant was re-recorded under section 342, Cr.P.C. He denied the allegation and claimed innocence. In reply to Question No.11 that have you anything else to say, he replied as under:-- I am innocent. In fact on the day of occurrence at about 1-1/2/2 p.m. My sister Shamim was all alone in her house. Deceased Nasir Hayat had developed illicit relations with her. The house of Nasir Hayat deceased is situated in front of my house. I requested the deceased many times to desist from his immoral and shameful acts and also to discontinue his illicit intimacy with Mst. Shamim, my sister, but he did not bother about my request. On the fateful date I by chance when entered into my house I saw the door of the room slightly open and when I went inside saw the deceased and Mst. Shamim lying nude on one cot embracing and kissing each other. I lost my control upon my senses and also lost my temper and while under grave and sudden provocation went out of the room picked up a kitchen knife from nearby the Chulla and attempted to apprehend the deceased when he had come in the door of the room. The deceased grappled with me and in that process he suffered injury at my hand. The deceased fell down. Mst. Shamim my sister, in the meanwhile ran away. I followed her but could not capture her. I myself went to the Police Station and reported the occurrence. The Thanedar summoned the complainant later on and changed the venue of the occurrence and by twisting and fabricating the facts nominated me and other accused.
13. The trial culminated into conviction of the appellant as mentioned above. The appellant has challenged his conviction and sentence through Criminal Appeal No.891 of 2002 while the complainant has filed Criminal Revision No.519 of 2000 for enhancement of sentence. Both the matters are being decided by this single judgment.
14. Learned counsel for the appellant has argued that the occurrence took place inside the house of the appellant and he saw the deceased in compromising position with Mst. Shamim his sister on a cot and he lost control and senses and under grave and sudden provocation he picked up kitchen knife from the house and caused solitary injury to the deceased. The occurrence did not take place in the Bazar as alleged by the prosecution as no blood-stained earth was taken into possession by the Investigating Officer. No independent witness has been examined by the prosecution, therefore, the plea of the accused is more reasonable and sentence awarded to him is too harsh.
15. Conversely, the appeal has been opposed by the learned State Counsel, and complainant's counsel who has also pressed for enhancement of sentence to the appellant. Heard. Record perused.
16. The occurrence took place at 3-00 p.m. And F.I.R. Was recorded at the police station at 3-45 p.m.
17. The deceased Nasir Hayat was removed by the P.Ws. To the hospital in injured condition where he succumbed to the injury. The appellant was nominated in promptly recorded F.I.R. With specific role. Malik Muhammad Farid, Inspector P.W.9 has explained in his statement that he could not secure the blood--stained earth from the spot because of heavy rain. He was neither cross- examined by the defence nor suggestion was put to him or to the P.Ws. That the occurrence took place inside the house of the accused/appellant. The ocular account furnished by complainant P.W.6, Ghulam Shabbir P.W.7 has been fully corroborated by medical evidence. The occurrence has also been admitted by the appellant but with other version. Mere relationship of the P. Ws. With the deceased or inter se is no ground to discard their testimony as they have no previous enmity for false implication of the accused/appellant. The plea taken by the appellant has not been established by him through independent evidence or from the circumstances of the case. Had the occurrence taken place in the house of the appellant or under grave and sudden provocation, the deceased might have been caused more injuries and the complainant party could not have removed the deceased in injured condition. The deceased was not in naked condition at the time of post-mortem examination, therefore, the defence plea is afterthought.
18. The arguments of the learned counsel that the appellant was minor at the time when the alleged occurrence took place, therefore, his case falls under section 308, P.P.C. Instead of section 302(b), P.P.C. Has also no force as per law declared by the Honourable Supreme Court in 1999 SCM R 2652 and 1999 SCM R 2203.
19. After reappraisal of evidence I do not find any force in the instant appeal to interfere in the conviction recorded or sentence awarded to the appellant. This appeal is dismissed.
20. Criminal Revision No.519 of 2000 filed by the complainant is also dismissed having no force, as the trial Court has given sound reasons for awarding lesser penalty.