1985 P Cr (PLP)

(3) A contusion of 1 c.m. diameter at the base of the nose. (4) A contused wound 2 c.m. x 1 c.m. x bone deep on the lower medial part of the left leg. (5) Contusion with swelling 10 c.m. x 8 c.m. on the lower half of the right leg on its front. (6) Contusion 5 c.m. x 4 c.m. on the area of right lateral mabolus. (7) Contusion 5 c.m. x 5 c.m. in front of the chest on the right side close to the right nipple. Injuries Nos.3 and 7 were simple and the rest were kept under observation. The injuries had been caused by blunt weapon within a duration of eight to twelve hours. On 25th January, 1981 the same doctor conducted the autopsy on the dead body of Muhammad Saleem deceased and found the injuries referred to above on it. There was a widening gap of sagital suture at the top of the skull and fracture of left parietal bone under injuries Nos. 1 and

2. The brain membranes were ruptured. In the opinion of the doctor death was due to shock and haemorrhage resulting from injuries Nos. 1 and 2 which were individually sufficient to cause death in the ordinary course of nature. On 23rd January, 1981 the same doctor examined Arif Naeem P.W. and found a contusion 6 c.m. x 4 c.m. on his left forearm.

5. In support of its case the prosecution examined three eye‑witnesses, namely, Abdul Latif complainant, Raja Muhammad Ayub and Arif Naeem P.Ws. It also relied on the evidence relating to recovery of Sotas from the accused persons.

6. The appellants pleaded not guilty to the charge. Ghulam Sarwar appellant when asked to explain why this case against him, made' the following statement: ‑ "The facts of the case have been twisted, dishonestly. In fact I was attending to my buffalo in my Cattle Haveli opposite to the place of occurrence while my sister Mat. Shereen was going from my cattle Haveli to our residential house. Saleem deceased was loitering in the street. On seeing my sister passing near him in the street, the deceased cut indecent jokes with her. She protested loudly, whereby I was attracted to the spot and remonstrated him. But he instead of feeling sorry, taunted me and proclaimed that Mst. Shereen was his friend and I need not interfere. I lost self‑control on account of grave and sudden provocation caused by the deceased and gave some Danda blows to the deceased with the Danda which I had in my hand for driving the buffalo. Sultan alias Suleman accused was not present at the spot. He has been falsely roped in. Arif Naeem P.W. was also not present there. His injury has been fabricated to put him up as a false eye‑witness." Sultan alias Suleman alias Sulla appellant stated that he was not present at the spot and had no motive against the deceased. No evidence was led in defence.

7. After examining the evidence on the record, the learned trial Judge observed that the version of the accused was absolutely unnatural. Relying on the prosecution evidence he convicted and sentenced the appellants as mentioned above.

8. The learned counsel for the appellants has raised the following contentions :‑ (a) Abdul Latif and Arif Naeem are real brothers of the deceased and Raja Muhammad Ayub is a chance‑witness of the occurrence; (b) there is nothing on the record to show that the alleged eye‑witnesses tried to rescue the deceased, therefore, their conduct was highly unnatural; (c) the defence version gets support from the prosecution evidence and is otherwise plausible. In the alternative, he argued that the facts and circumstances of the case clearly indicate that the appellants had no intention to kill the deceased therefore, the offence at best falls under section 304, Part II, of the P.P.C. The learned State counsel, on the other hand, submits that the prosecution evidence is supported by three independent eye‑witnesses, therefore, the appellants have been rightly convicted.

9. At the trial Abdul Latif, Arif Naeem and Raja Muhammad Ayub supported the prosecution version as detailed in the earlier portion of this judgment and their statements need not be recapitulated here. Abdul Latif and Arif Naeem are brothers of the deceased but mere relationship of a witness with the victim is no ground to discard his A evidence. Their statements find full corroboration from the evidence of Raja Muhammad Ayub who is an independent and disinterested witnesss having absolutely no motive to falsely implicate the accused persons in a case involving capital punishment. In the English record he has been mentioned as resident of 75‑S.B. but this is not true. In cross examination he stated that he was residing at his Dera in the area of Chak No.72‑S.B. In the Urdu record his residence has been given as Chak No.72‑S.B where the occurrence took place. His presence in the Chowk of the Bazar of his Chak at 9/10.00 a.m. was neither unnatural nor unusual. He was cross‑examined at length but nothing useful to the defence could be elicited from his statement.

10. The record shows that Raja Muhammad Ayub and Abdul Latif P.Ws. had no opportunity at all to rescue the deceased. Arif Naeem P.W. stated that both of them were attracted to the spot on his alarm and on seeing them both the accused ran away taking their Lathis alongwith them. The statements of Abdul Latif and Raja Muhammad Ayub also show that they raised alarm, upon which both the accused ran away from the spot. The contention that their conduct was unnatural, is misconceived.

11. The learned counsel for the appellants could not point out any convincing circumstance in support of the plea of grave and sudden provocation. It is highly unnatural that the deceased would cut indecent jokes with the sister of Sarwar appellant when the aforesaid appellant C was also quite near. This plea was taken at a belated stage and there is nothing on the record to support it. Sarwar appellant did not even bother to produce his sister in defence. Having juxtaposed both the versions, I am satisfied that the occurrence had taken place in the manner as alleged by the prosecution.

12. Now I proceed to consider the question what offence was committed by the appellants. The evidence on 'the record shows that they gave one blow each on the head of the deceased with ordinary sticks and thereafter avoided to give blow on any vital part. Abdul Latif complainant admitted that before the occurrence there had never been any untoward incident between the complainant party and the accused on account of the suspicion of illicit relations or for any other reason. In view of these circumstances, the appellants cannot be said to have intended to cause the death of the deceased. They can, however, safely be burdened D with the knowledge that a blow on the head was likely to cause death. I am, therefore, of the view that the offence committed by the appellants falls under Part II of section 304, P.P.C. Accordingly, their conviction under section 302/34, P.P.C. is altered to section 304 (Part II) of the Pakistan Penal Code and their sentence is reduced to rigorous imprisonment for seven years' and a fine of Rs.10,000 each. In default of payment of fine, they shall undergo further rigorous imprisonment for two years each. This sentence has been passed after taking into consideration the provisions of section 382‑B of the Code of Criminal Procedure. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. Sultan appellant is on bail. He shall be arrested and sent to jail to serve out the unexpired portion of his sentence. The appeal stands disposed of. M. Y. H. Appeal partly allowed.