1989 PLP 4396 (MLD)

Dr. Muhammad Tasleem (PW.3) had done laparotomy. He had found small intestine coming out of the stab wound, with three perforations close to each other. He had produced notes of the operation as Ex.PC. Dr. Wasim Ahmad, who had performed autopsy on 25‑6‑1985 appeared as PW‑He had noted following injuries on the body of the deceased:‑‑ (1) Stitched wound, 15 cm in length with 13 stitches intact, vertical in direction, 2 cm outer to umblicus on right side extending from 9 cm below from zypisternum to 9 cm above symphisis pubis. (2) Stitched wound, 8 cm in length with 5 stitches intact, vertically oblique in direction 4 cm to left of umbilicus and extending into injury No.1. (3) Stitched wound 6 cm in length with 5 stitches intact, horizontally oblique in direction on back of left arm, 15 cm below left shoulder and muscle deep. On exploration, he had noted loops of intestines matted together and covered with yellowish puss, 15 cm long segment of small intestine was gangrenous; which showed evidence of repair. According to his opinion, the deceased had died due to injury on the abdomen, resulting into peritonitis. Injury No.1 was opined to be due to surgical intervention while injuries 2 and 3, which corresponded with the injuries of MLR No.1083 dated 22‑6‑1985, were opined to have been caused by sharp‑edged weapon. Time between death and injuries was opined to be 2 to 4 days and between death and post‑mortem within 24 hours.

7. The ocular account was deposed to by Muhammad Aslam complainant (PW 7) and Mahmood Ahmad (PW 8). Muhammad Aslam repeated the facts given by him in the FIR. During cross -examination, he admitted his relationship with PWs Allah Rakha and Sanaullah. About PW Mahmood, he stated that he belonged to the brother‑hood of the deceased. He denied the suggestion that father of the deceased and Mahmood PW were cousins. HC admitted that he had not participated in the Punchayat held in the house of PW Javid Anwar. He, however, added that the deceased had informed him about what happened in the Punchayat. In answer to another question, he stated that the deceased had not given abuses to the accused at the time of occurrence. He added that no exchange of abuses had taken place between the deceased and the appellant immediately before the occurrence. He denied the suggestion that he had not witnessed the occurrence and that he had concocted a false version of occurrence. Mahmood Ahmad (PW‑8) corroborated the statement made by PW‑

7. During cross‑examination he stated that he had seen the accused abusing the deceased just before the occurrence. Although he denied that deceased had abused the accused at that time, but on confrontation with his statement (Ex.DA) before the police, he was found to have stated so. He denied the suggestion that he had not witnessed the occurrence and had made a false statement. Javid Anwar (PW‑9) deposed about the proceedings of the Punchayat which was held in his house 5/6 days prior to the occurrence. The statement made by him that the accused after termination of the proceedings of the Punchayat had pronounced that he will take revenge from the deceased was not found to have been recorded, on confrontation with his statement (Ex.DB) before the police. He admitted that he was Khalazad of the deceased. According to him, father‑in -law of the deceased and the appellant had participated in the Punchayat. Rehmat Khan, ASI, who had recorded the statement of the complainant and had got registered the case and partly investigated the same appeared as PW‑

12. Muhammad Adrees Malik, SHO, who had partly investigated the case and had arrested the appellant on 7‑7‑85 appeared as PW‑

10. He deposed about appellant having led to the recovery of blood‑stained knife (P‑2) on 10‑7‑85 and the same having been taken into possession. He admitted that he had not examined the father‑in‑law of the accused and his wife during investigation regarding motive for the occurrence. His statement about recovery of knife has been corroborated by Ghulam Rasul (PW 6). The statements of other witnesses are more or less of a formal nature. Positive reports from the office of the Chemical Examiner and that of the Serologist about stains of human blood on the earth and the knife were also tendered in evidence.

8. The appellant during his statement under section 342, Cr.P.C. admitted that he had exchanged abuses with the deceased 5/6 days prior to the occurrence in the Punchayat held in the house of PW Javid Anwar. In answer to the question that he had undertaken to take his wife to his house by way of compromise, he stated that he was always willing to take his wife to his house. He denied that he had threatened to take revenge from the deceased at the termination of he Punchayat. While denying the prosecution version of the occurrence and recovery of knife (P.2 while being in custody of police, he stated as follows: in answer to the question, "Why this case against you?: ‑ "The deceased used to take undue interest in my personal affairs and used to mislead my in‑laws. In any case it was decided that I will take my wife to my house and for that purpose at about 12‑00/1‑00 p.m. I was going to the house of my in‑laws to bring my wife as agreed upon. The deceased met me in the street. He started quarrelling with me probably that I did not take my wife back. On this a quarrel arose and the deceased grappled with me. He was stronger than me and younger in age. In my defence I took out the knife from the fold of my Shalwar and gave only one injury to the deceased to save my skin. I never intended to cause the death of Sarfraz deceased. I only acted in self‑defence. The prosecution story is concocted one. The PWs were never there. I appeared before the police myself and produced the knife, which I used, before the police. My arrest was not shown by the police on that day." He declined to make statement on oath.

9. Learned counsel for the appellant after taking us through the evidence criticised the impugned judgment and contended that the prosecution version of the occurrence was incorrect and was deposed to, by unreliable witnesses and that the version put forth by the appellant was more probable and nearer the truth. According to him, the case fell within Exception 4 of section 300 P.P.C. Lastly, he contended that even if the conviction of the appellant is maintained under section 302 P.P.C., the sentence of death awarded to him should not be confirmed as even per prosecution case the appellant appeared to have acted under some provocation and so does not deserve extreme penalty.

10. Learned counsel for the State supported the impugned judgment.

11. It is an admitted fact in this case that the deceased and appellant both were married to real sisters. The appellant did not deny that he was having unhappy relations with his wife and she had returned to her parents' house. He also did not deny the convening of Punchayat in that connection and the deceased having also participated in the Punchayat. In fact, he admitted that they had exchanged abuses also in that Punchayat.

12. Out of two eye‑witnesses, i.e. PWs. 7 and 8 Mahmood is not related in any manner to the deceased or the complainant. He belonged to the Beradari of the deceased but that did not make any difference as the appellant also belongs to the Sheikh Beradari. Although PW‑7 is admittedly paternal‑uncle of the deceased but no personal animosity with the appellant. He had no personal axe to grind against him. The venue of occurrence also stands established. The appellant did not even deny the occurrence resulting in the death of Sarfraz, nor the venue of occurrence. 13 The only point which needs consideration is this case is, whether reliance can be placed on the prosecution version or the version put forth by the appellant is more probable and nearer the truth.

14. The plea taken by the appellant about the manner of the occurrence does not find support from anything on record. In fact, there are pieces of evidence, which contradict his statement. In that reference can be made to the fact that the deceased was found to have suffered two knife blows while according to the appellant he had given only one blow. It seems that the appellant had made C this statement to take advantage of the concession given by Dr. Muhammad Arif Sheikh (PW‑11) during cross‑examination that possibility of two injuries having resulted from one blow cannot be ruled out. We have examined the statement of this doctor, after noting the scats of injuries. It is clear that single knife blow could not have perforated the large intestine on the abdomen and at the same time caused injury on the left upper arm. It was not a fire‑shot which by way of spreading of pellets could have caused injuries on different parts of the body. The doctor obviously seems to have over acted. The other fact which negates the worth of appellant's version is that he was not found to have suffered any injury. In fact, he did not make any claim of that. The deceased was not armed with anything at the time of occurrence. The appellant did not allege anything in this regard. Even according to him, the deceased had just grappled with him where after he had given injuries to the deceased.

15. In the circumstances, we find no difficulty in expressing the view that the version put forth by the appellant is absolutely without any basis and was an afterthought. In this connection no question was put to the Investigating Officer also of his having taken such a plea at the time of his arrest or investigation. The statements of the eye‑witnesses, which find corroboration from the evidence of recovery of blood‑stained knife (P.2) and the medical evidence, conclusively proves the case under section 302 P.P.C. against the appellant. The conviction of the appellant, therefore, under section 302 P.P.C. is maintained.

16. We are, however, of the view that it is not a case warranting extreme penalty of death, in view of the fact that the occurrence resulted from a family dispute involving the family life of the appellant. In that it is prosecution's own case that the deceased was not only taking active part in the matter but was also pursuing the matter of differences of the appellant with his wife and of her having returned to her parents house. He had exchanged abuses with him during Punchayat also. Even at the time of occurrence also abuses were exchanged. The appellant had not straightaway launched the attack. He had launched the attack after the exchange of the abuses. In the circumstances, we are of the view that he might have felt humiliated that the deceased was interfering in his family affairs in a way, which was bringing him to shame. The sentence of death awarded to the appellant, therefore, is not confirmed. The same is altered to imprisonment for life. The sentence of fine and the direction regarding its payment as compensation is maintained. He shall be given the benefit of the provisions of Section 382‑B, Cr.P.C. S.A/E‑15/L Sentence altered.