1999 P Cr (PLP)

3. At the trial the prosecution produced Faiz Muhammad P.W.8 and Mithhu P.W. 9 son of paternal uncle of Faiz Muhammad, as eye-witness. The motive part of the prosecution story was supported by Faiz Muhammad P.W.8 himself. The prosecution also relied upon on recovery of Chhurra Exh.P.3, taken into custody by Muhammad Sharif, S.-I. vide Exh.P.J. Last piece of evidence relied upon by, the prosecution is medical evidence in the form of medico-legal certificate of the deceased issued by Dr. Mahmood Ahmad P.W.7 who examined the deceased, when he was alive, in the Hospital. Dr. Ghulam Haider conducted the post-mortem of the dead body.

4. The Trial Court disbelieved the plea of the prosecution regarding motive. However, the eye-witness account as well as the recovery of the weapon of offence were mainly relied upon to pronounce judgment of conviction against the appellant.

5. I have gone through the record of the case with the assistance of the learned counsel for the parties. At the trial the appellant took plea of grave and sudden provocation as he, allegedly saw his mother and the deceased in objectionable position and he lost his senses and tried to grapple with the deceased who was carrying Chhurra in his Nepha which fell down and it is with the said Chhurra that he gave blows to the deceased. It may be noticed that this stand was taken by the appellant right from the beginning of the trial and Faiz Muhammad P.W. was specifically questioned about the illicit relationship of deceased with the mother of the appellant. In his statement under section 342, Cr.P.C., the appellant reiterated this stand. No defence evidence was led by him.

6. It is contended by the learned counsel for the appellant that it is an unwitnessed crime and that there is material available on the record strongly indicative of the fact that the occurrence took place in the manner as alleged by the appellant and not as per prosecution case. According to him the appellant was entitled to be acquitted.

7. There are serious flaws in the eye-witness account of the prosecution. According to Faiz Muhammad he was cultivating the land of Mukhtar Ahmad Qureshi at Chah Patherwala on tenancy basis and had gone there alongwith his children and the deceased on the fateful day to harvest the wheat crop and it was at about Maghrib Wela time that both he and the deceased were on their way back to home when the appellant confronted them near the Chhapper of Maula Bakhsh and assaulted the deceased. According to him the Girdawari of the crop was not entered in their names though they were tenants over the above-said land one year prior to the occurrence and that now they were not occupying that land on tenancy basis. Sickle is an instrument used to harvest the wheat crop. With a view to explain as to why they were empty handed at the time of occurrence, the explanation put forth by him is that the sickles had been earlier taken away by their children before they proceeded to their houses. This explanation seems to be a concoction and does not inspire confidence. He is contradicted on the point of his being tenant of Mukhtar Ahmad Qureshi by the S.-I. Muhammad Sharif (P.W.10) as according to him Faiz Muhammad himself owned some land. The version put forth by Faiz Muhammad of accompanying the deceased at the time when he was assaulted by the appellant is thus, rendered incredible. Significantly, the Investigating Officer did not probe into the question as to whether Faiz Muhammad and the deceased were tenants of Mukhtar Ahmad Qureshi or not. He also appears to have failed to pay visit to the fields where allegedly one Bigha of wheat crop has been allegedly harvested by them. Mukhtar Ahmad Qureshi was not produced in the witness-box to support the prosecution version that Faiz Muhammad and deceased were his tenant at the relevant time. It is with a view to cover up this fallacy that Faiz Muhammad hats deposed that though they were tenants under Mukhtar Ahmad Qureshi for one year prior to the occurrence yet the Girdawari was entered in his name. The very story of departure of Faiz Muhammad and deceased from the field and their proceeding towards their homes after the alleged job of harvesting the wheat crop was over for the day is, thus, rendered highly doubtful. Mithhu P.W.9 the other eye-witness is closely related to the deceased, he being son of his paternal aunt. According to him he was sitting at his Baithak at Maghrib Wela alongwith Imam Bakhsh (given up) when on hearing the alarm of Faiz Muhammad they rushed to the spot and it is there that they saw the appellant coming out of the Chhapper with Chhurra in his hand and in their view he inflicted three blows upon Pir Bakhsh falling him to the ground. He also claims to be witness of the recovery of Chhurra Exh.P.3 18119 days after the ccurrence. Re was confronted with his statement before Police under section 161, Cr.P.C. Exh.D.A. wherein he had not made a statement that he saw the appellant coming out of the Chhapper. His testimony is unnatural and no reliance can be placed on it. According to him he and Imam Bakhsh rushed to the spot only on the hue and cry of Faiz Muhammad and it is after they had reached the place of occurrence that the appellant inflicted Chhurra blows to the deceased. The infliction of blows by the appellant would not have taken more than a few moments and it is not credible that he would have flowed sufficient, time to elapse after confronting the deceased that Faiz Muhammad to enable Mithhu to rush to the spot so as to cause injuries in their view. Significantly, Faiz Muhammad does not say a word about raising hue and cry prior to infliction of injuries to the deceased. Though this witness has tried to do his best to lend support to the version of the prosecution yet his testimony lacks ring of truth. The only independent eye-witness was Imam Bakhsh but he has been with held by the prosecution.

8. I consider it unsafe to place reliance on the ocular account of the occurrence as rendered by Faiz Muhammad and Mithhu. The recovery of Chhurra Exh.P.3 after 18/19 days of the occurrence is of little consequence as with the passage of time the blood would disintegrate and to claim that it was still stained with blood at the time of recovery is nothing but a vain attempt on the part of the prosecution to implicate the appellant.

9. As mentioned in the opening part of the judgment the Trial Court has disbelieved the motive part of the prosecution story. The appellant was a youngster at the relevant time being 18/19 years of age and his father was Hafiz e-Quran and blind by birth. His mother was earlier married to someone else and it is after getting divorce from him that she had contracted second marriage with the father of the appellant. The possibility that taking undue benefit of the' disability of her husband the mother of the appellant had gone astray and' developed illicit liaison' with the deceased cannot be excluded. The manner in which the injuries were inflicted also shows that this was the act of a person in a state of frenzy. Appellant had put forth the plea of grave and sudden provocation in the initial stages of the trial and reiterated the same in his statement under section 342, Cr.P.C. The prosecution has failed to prove its plea as set up by it that it was a deliberate murder. The plea of the appellant that he killed the deceased under grave and sudden provocation is accepted as such. He is convicted under section 302(c), P.P.C.

10. As regards the sentence to be awarded, in the circumstances of the case, it may be noticed that the appellant was arrested on 29-2-1991 and bailed out by this Court during the pendency of the appeal on. 19-2-1996. He has already suffered five years in the Jail. In my view the sentence already undergone by him would meet the ends of justice.

11. For what has been stated above, this appeal is accepted and while altering the sentence of the petitioner from section 302, Qisas and Diyat Ordinance, it is altered to under section 302(c), P.P.C., and he is sentenced to one already undergone by him. Consequently the connected Revision Petition No. 136 of 1992 is dismissed. The appellant shall be set at liberty forthwith, if not required in connection with any other case. Q.M.H./M.A.K./M-670/L Appeal accepted.