1989 P Cr (PLP)

This is an appeal by Ahmad appellant 26 to challenge his conviction under section 302, P.P.C., by the learned Sessions Judge, Sargodha who vide judgment: dated 7‑1‑1986 sentenced him to imprisonment for life plus fine of Rs.2,000 or in default one year's R.I. with benefit of section 382‑B, Cr.P.C. Mumtaz 34 and Allah Bakhsh, 38, two co‑accused of the appellant were acquitted by the same judgment. Ghulam Muhammad complainant filed Criminal Revision No. 269 of 1986 for enhancement of the sentence of Ahmad and to challenge the acquittal of two accused. The revision was not admitted. It was ordered to be heard alongwith the connected appeal. This judgment will dispose of both the matters together.

2. The occurrence in this case took place at 7‑30 a.m. on 12‑6‑1985 at the Dera of War Hayat deceased in village Chackoka, about seven miles from Police Station Sahiwal District Sargodha. The F.I.R. Exh.P.C. was recorded at the police station by S.I. Muhammad Sarwar P.W.10 on the same day at 8‑35 a.m. at the instance of P.W.6 Ghulam Muhammad.

3. It was stated by Ghulam Muhammad complainant in the F.I.R. that their turn of water was from 4 a.m. to 6 a.m. On 12‑6‑1985. Zafar Hayat deceased alongwith his servant Ahmad son of Yara (accused) irrigated their fields. War Hayat after being free from irrigation slept under a Bakain tree at his Dera whereas Ahmad returned home. At about 7‑30 a.m. Ahmad and Mumtaz accused armed with Kassis went to the Dera of Zafar Hayat and inflicted injuries on his person with their respective weapons. The alarm attracted Ghulam Muhammad complainant. Muhammad Riaz P.W. and Saleh Muhammad P.W. who all witnessed the occurrence. At that time, Allah Bakhsh accused armed with gun kept standing nearby threatening the witnesses not to come near. It was stated by Ghulam Muhammad complainant that about 5 days earlier, Allah Bukhsh alias Bukhsha accused had come to his house to request that War Hayat deceased be asked, not to come to their house because of suspicion that he was having illicit relations with his wife.

4. The dead body of Zafar Hayat aged about 25 years was sent for post -mortem examination which was conducted on 12‑6‑1985 at 3 p.m. by Dr. Inayat Ullah P.W.1 who on external examination found 13 incised wounds of various dimensions on different parts of the dead body. On dissection, injury No.1 on left cheek was found going deep cutting the middle and internal ear bone and also cutting parotid gland and mandibular muscle of left side. Injury No.2 had cut vital internal organs of neck, carotid arteries, trachea, oesophagus, survical vertebrae. Injury No.3 went deep and cut left clavical. Injuries Nos. 4 and 5 cut the left hemerus bones and left scapula. All the injuries had been caused by the sharp edged weapons. The death was due to shock and haemorrhage as a result of injuries Nos. 2, 3 and 8 which were sufficient to cause death in the ordinary course of nature. The death occurred soon after receipt of injuries and post -mortem was conducted in about 7/8 hours of death.

5. Muhammad Sarwar S.I. P.W.10 on 12‑6‑1985 during inspection of the place of occurrence collected blood‑stained earth from the spot and also took in possession cot P.I. vide memo. Exh.P.D. Ahmad appellant was arrested on 21‑6‑1985. Ahmad accused on 27‑6‑1985 led to the recovery of blood‑stained Kassi P.4 from his house which was taken in possession by Muhammad Sarwar S.I. P.W.10 vide memo. Exh.P.F. in presence of Ali Muhammad P.W.9 and Muhammad Hayat P.W. (not examined) Kassi P.4 was found stained with human blood vide report of chemical examiner Exh.P.K. and that of Serologist Exh.P.L. The accused were challaned after completion of investigation.

6. In support of its case, prosecution examined ten witnesses in all. Ghulam Muhammad P.W.6 and Muhammad Riaz P.W.7 are eye‑witnesses of the occurrence. Saleh Muhammad, another witness named in the F.I.R. was given up. The recovery of crime weapon was witnessed by Dr. Inayat Ullah P.W.1 as given m detail above. The case was investigated by Muhammad Sarwar S.I. P.W.10. The evidence of rest of the witnesses was of formal nature.

11. Ahmad accused when examined after close of prosecution evidence denied the charge and pleaded innocence. It was stated by him that he was looking after the turn of water in the fields having Kassi in his hand; that he heard cries of his niece Mst. Naseem Akhtar and rushed to the Dera of Zafar Hayat deceased where he saw him molesting her and that he gave injuries to the deceased under grave and sudden provocation. The acquitted accused denied their presence at the spot. No evidence in defence was led by the accused. The learned Sessions Judge disbelieved the evidence on motive and the eye‑witnesses. He accepted recovery of Kassi P.4 and convicted the accused Ahmad on the basis of his statement as stated above.

7. I have carefully gone through the evidence on record and have heard the learned counsel appearing for the parties. The motive was stated to be that Zafar Hayat deceased was suspected of having illicit relations with the wife of Allah Bakhsh acquitted accused. It is in evidence that the said woman was aged about 45 years having grown up children whereas the accused was aged about 20 years. I have gone through paras. 18 and 19 of the judgment wherein the learned Sessions Judge has given detailed reasons to disbelieve the evidence on motive. The two eye‑witnesses Ghulam Muhammad P.W.6 and Muhammad Riaz P.W.7 were disbelieved firstly because they were related; secondly because they were chance witnesses; thirdly because they were under influence of Syed Inayat Ali Shah and his son Syed Nusrat Ali Shah M.N.A., fourthly that they made material improvements in their statements and fifthly that they did net try to rescue the deceased which made their conduct improbable. Besides this I find that even according to prosecution Zafar Hayat deceased and Ahmad accused irrigated fields from 4 a.m. on the morning of occurrence. If Ahmad accused had really intended to murder War Hayat, he could easily have committed the crime at that time. In my view, the evidence of eye‑witnesses was rightly excluded from consideration by the learned Sessions Judge. The motive was also rightly not believed. The accused in his statement after close of prosecution evidence admitted to have caused injuries to War Hayat deceased with kassi. It was stated by him that he was attracted to the place of occurrence on hearing the cries of his niece Mst. Naseem Akhtar. He went to the Dera of Zafar Hayat and saw him molesting her. He therefore gave injuries under grave and sudden provocation. As the prosecution evidence has been disbelieved, the statement of accused has to be accepted as a whole. In view of the above discussion, I hold that the conviction of Ahmad appellant under section 302, P.P.C. could not be maintained. I alter his conviction from section 302, P.P.C. to section 304(1), P.P.C. Ahmad accused/appellant is sentenced to seven years' R.I. under section 304(I), P.P.C. He will be allowed benefit of section 382‑B, Cr.P.C. In the circumstances of this case, the sentence of fine is remitted. This appeal is dismissed subject to above modification.

8. In view of the above decision in the appeal, the connected revision is dismissed in limine. H.B.T./A‑559/L Order accordingly.