1986 PLP 1542 (MLD)

(4) An incised wound, 8 c. m. x 1 c. m. bone deep, on left side of back of head. (5) An incised wound, 5 c. m. x .3 c. m. cutting the hyoid bone, on front of neck. (6) An incised wound transverse, 11 c. m. x 2 c. m. cutting deep the fourth cervical vertebra, blood vessel (main artery) on the front and side of neck. (7) An incised wound, 13 c. m. x 9 c. m. cutting the trachea, eosophagus and blood vessels (common carotid artery) on the front of the neck starting from the chin to front of the neck above the hyoid bone. (8) An incised wound, 4 c. m. x 2 c. m. cutting the 3rd and 4th metacarpal bones, on the back of left hand. (9) An abrasion, 2 c.m. x c.m. on top of right shoulder. Dr. Ishfaq Ahmad Khan opined that death had occurred due to haemorrhage and shock as a result of injuries Nos. 1 to 7 which were sufficient in the ordinary course of nature to cause death. According to him, injuries Nos.l to 8 were caused by sharp‑edged weapon while injury No.9, which was simple, was caused by blunt weapon. All the injuries were ante‑mortem. In cross‑examination he admitted that he has not given the time of death in the post‑mortem report Exh . P. D as no time was mentioned in the police papers. He conceded that in the inquest report, time of death appeared to be over‑written. He disclosed that there were possible chances that injuries Nos.1 to 8 could be caused by one type of sharp‑edged weapon. 8. ‑ The appellant as also his two co‑accused appeared before the police on 7‑7‑1981 and were arrested by Muhammad Riaz Khan S.1 P.W.9. On the same day Javed Iqbal, acquitted accused, led to the recovery of Darant P.4 (bloodstained) by digging earth in the nearby Agricultural Farm vide memo Exh.P.E. attested by Muhammad Aslam P.W.6, Eid Muhammad (not produced) and Muhammad Riaz Khan S. I. P.W.9. Abbas appellant led to the recovery of Toka P.5 on the same day vide memo Exh . P. F from a Peti in his house in the presence of them aforementioned witnesses. Vide Chemical Examiner's report Exh.P.N and Serologist's report Exh . P.O . both the Darant and Toka were found to be stained with human blood. Honda motor‑cycle belonging to the deceased was recovered from the place of occurrence vide memo Exh . P. G in the presence of Arif Ali P.W.7, Muhammad Hussain P.W.8 and Muhammad Riaz Khan S.1 P.W.9. Blood‑stained earth was recovered from the alleged place of occurrence, viz. thoroughfare road in Mohallah Shaheen Abad vide memo Exh.PH in the presence of aforesaid Arif Ali, Muhammad Hussain and Muhammad Riaz Khan S.I. Blood‑stained earth was also recovered from the house of the accused where the dead body of the deceased was lying when the police reached there vide memo Exh.P.K attested by Arif Ali P.W.7, Muhammad Hussain P.W.8 and Muhammad Riaz Khad S.I. P.W.9. A shoe belonging to the deceased and his glasses were recovered lying near his dead body in the house of the accused vide memo Exh.P.J in the presence of aforesaid Arif Ali, Muhammad Hussain and Muhammad Riaz Khan S.1. At the trial Arif Ali P.W.7 (brother of the deceased) and Muhammad Hussain P.W.8 (maternal‑uncle of the deceased) testified as eye‑witnesses to furnish the ocular account of the prosecution version.

10. While the acquitted co‑accused, namely, Muhammad Ashraf and Javed Iqbal totally denied their participation in the occurrence, Abbas appellant in reply to question No.9 while recording his statement under section 342, Cr. P. C. stated:‑ "As I had seen Asghar Ali deceased in a compromising position with my sister Mst. Akhtar Bibi in my bouse, I under grave and sudden provocation after picking .up a Toka from there gave certain injuries to the deceased with the Toka who died there. Later on I searched for my sister because I also wanted to kill her but she had run away and while running from there she had hit with the Honda motor‑cycle lying outside the house. On that day my father, mother, brothers Javed Iqbal and Sarfraz had already gone to the house of my maternal uncle in Village Dhulay and they were not present in the house. I and my sister were only present in my house on the day of occurrence." Regarding recovery he stated that it was incorrect that he led to the recovery of blood‑stained Toka on 7‑7‑1981, but in fact on 30‑6‑1981 he was present in the house near the dead body alongwith the Toka P.5 and he produced the same before the police on the same day in the evening when the police came there. In reply to question No.12 "have you anything else to say"? he answered:‑ "Whatever; I have done I have done under grave and sudden provocation as at that time I was not in my senses due to the reason that I saw my real sister Mst. Akhtar Bibi in a compromising position with the deceased." No evidence in defence, however, has been led.

11. It has been contended on behalf of the appellant that the learned trial Judge has come to the conclusion that Arif Ali and Muhammad Hussain, the only two eye‑witnesses in fact were not present at the time of occurrence and that they have not seen the occurrence. He has further found that Toka P.5 was not recovered on 7‑7‑1981 in the presence of Muhammad Aslam and Eid Muhammad P.Ws. as alleged by the prosecution and that it was found lying on the spot near the dead body of Asghar Ali in the house of the accused on the very first day of the occurrence. It has further been urged that in view of the findings of the learned trial Court, the prosecution failed to establish its case against the appellant as alleged in the F.I.R. and the learned trial Judge has convicted the appellant on the basis of his own statement that he had done the deceased to death but at the same time the learned trial Court disbelieved the version of grave and sudden provocation of the appellant. It has been argued that legally in the absence of ocular evidence if the conviction was to be based on the statement of the accused, then the entire statement should have been accepted and it was not permissible to believe only the inculpatory part of the statement and to disbelieve the exculpatory part of the statement.

12. We have thoroughly and minutely analysed the contentions raised on behalf of the appellant. We have also independently appraised the prosecution evidence. The only two eye‑witnesses, namely, Arif Ali P.W.7 and Muhammad Hussain P.W.8, the real brother and the real maternal uncle, respectively, of the deceased, who according to prosecution's own version were inimically disposed towards the appellant and his family have contradicted each other in respect of many material details of the occurrence. For instance Arif Ali has stated that he did not know personally Allah Ditta Bhatti; he had not even seen his shop and that he could not say that if Muhammad Hussain had seen his shop or not. Muhammad Hussain on the other hand has disclosed that Arif Ali knew the shop of Allah Ditta Bhatti situated in Mohallah Shaheen Abad and he had accompanied him as he knew the shop of Allah Ditta Bhatti. According to Arif Ali they kept sitting in the Rickshaw at a distance of J or 3/4 Killa from the place of occurrence and that there were some shops in that Bazar and some of them were open and some of them were closed at that time and they remained near the place of occurrence for about 20/30 minutes. Conversely Muhammad. Hussain has disclosed that they were at a distance of about 3/4 Acres, where they stopped and saw the occurrence. He could not give the description of the clothes of the accused which they were wearing at that time. He did not state that there were shops around the place of occurrence. Muhammad Hussain also stated that the Toka was also lying on' the wall of the Khura in the house of the accused where the dead body was lying. He has further disclosed that the S.H.O. had sent the Toka to the police station on the same day i.e. on the day of occurrence. Muhammad Riaz Khan, the Investigating Officer, has admitted that Shaheen Abad was a populous locality and the population of that Mohallah was about 50,000/60,000 people. He categorically disclosed that ther was no shop near the place of occurrence and he did not see any shop existing on the Kacha road of Mohallah Shaheen Abad. We have also considered this aspect of the matter that the place of residence of Arif Ali and Muhammad Hussain in Bagh Kanaya Lal is at a pretty long distance from the place of occurrence, viz. Mohalla hl Shaheen Abad. According, to their own showing they could reach from their residence to the place of occurrence in a rickshaw in half an hour's time. If they were to participate in compromise talk, then these two witnesses ordinarily should have left with Ashar Ali deceased and Ghulam Haider Lambardar. They claimed that they left subsequently at 8‑00 a.m. while the deceased had already left for Shaheen Abad at 7‑00 a.m. He had told them to come to the shop of Allah Ditta Bhatti but both Arif Ali and Muhammad Hussain had stated that they had not seen the shop of Allah Ditta Bhatti. Their presence at the time of occurrence is, therefore, highly imporbable. Ghulam Haider Lambardar has been given up as having been won over. No person hailing from Shaheenr Abad has been cited as an eye‑witness. In the above circumstances I, the learned trial Court was justified in coming to the conclusion that the only two eye‑witnesses in this case, namely, Arif Ali and Muhammad Hussain were not present at the time of occurrence and had not witnessed the occurrence.

13. So far as the recovery of ‑Toka, the weapon of offence from the appellant is concerned, Muhammad Hussain P.W.8 has admitted that Toka was lying near the Khura in the house of the accused near the dead body when the police visited the place and that on that very day the Toka was sent to the police station by the Investigating Officer. P.W.6 Muhammad Aslam who .has testified as witness to the recovery has stated that he and Eid Muhammad went to the police station early in the mornjng at about 7 a.m. or so. They accompanied the police to the house of the accused and they were free at about 12 noon or 12‑30 p.m. Muhammad Riaz Khan S.I. P.W.9 on the other hand has stated that Muhammad Aslam and Eid Muhammad joined him near the Agricultural Farm when he was on his way to the place of occurrence. They me him at about 3‑00 p.m. Recoveries were effected thereafter. In the light of these contradictions, the alleged recovery of Toka from th appellant in the manner disclosed by the prosecution has not bee proved‑.

14. In view of the above circumstances, it can be safely concluded that the prosecution has utterly failed to establish its case against the appellant, who has, of course, admitted that while under grave and sudden provocation he killed the deceased when he saw him and his sister Mst.Akhtar Bibi in a compromising position. The learned trial Judge has come to the conclusion that the version of compromising position of the deceased and Mst. Akhtar Bibi and that the death of the deceased was caused by the appellant while under grave and‑ sudden provocation, was not believable and that since he had admitted of having killed the deceased, therefore, he was liable to be convicted under section 302, P.P. C.

15. We have also taken note of the fact that the alleged .two‑fold motive has also not been proves: in this case. Muhammad Saleem from whom bus was alleged to have been purchased and who allegedly returned the advanced amount and took back the bus has not been produced, although Muhammad Hussain P.W.8 has admitted that he was alive. Similarly, no documentary evidence to this effect has been brought on the record that Asghar Ali had obtained warrant under section 100, Cr.P.C. for the recovery of Mst.Akhtar Bibi. In the F.I.R. it has been alleged that Asghar Ali had obtained warrant under section 100, Cr.P.C. but at the trial Arif Ali P.W. has made an improvement and has stated that with the help of Asghar Ali, Sarwar Ali obtained the warrant under section 100, Cr.P.C. for the recovery of Mst. Akhtar Bibi. In Rahim Bakhsh v. Crown P L D 1952 F C 1, it was held that if the conviction of the appellant was to be based solely on his statement in Court, it was obvious that his statement should be taken into consideration in its entirety. In Mr. Abbas v. Amanullah Khan and another 1985 P Cr.L J 173,, it has been ruled by the Peshawar High. Court that in a case where the prosecution fails to establish its case on its own side and bases its conviction on the admission of the accused, it becomes all the more pertinent to either believe the statement of the accused in its totality or to reject it straightaway. In Muhammad Hanif v . State P L D 1977 Lah. 1253, it was held by this Court that if the conviction of the accused was sought to be based solely on his statement in Court then his statement should be taken into consideration in its entirety.

16. In the present case, as already held, the prosecution has utterly failed tq establish its case against the appellant. He has however, himself admitted that he killed the deceased, but at the same time he claimed that he did so under grave and sudden provocation as he saw the deceased and his sister in compromising position. His entire statement has to be taken into consideration and the exculpatory part cannot be taken out of consideration. In this view of the matter we hold that the appellant killed the deceased Asghar Ali under grave and sudden provocation when he saw the deceased and his sister in compromising position. We, therefore, allow his appeal partly, alter his conviction from section 302 P.P.C. to section 304, P.P.C. and award him a sentence of ten years RBI. and a fine of Rs.10,000 (rupees ten thousand only) as already imposed by the trial Court. In default of payment of fine he shall suffer two years R.I. The death sentence is not confirmed. In view of the conduct of the deceased, we do not deem it expedient to make any direction regarding payment of compensation to the heirs of the deceased. S. A. Conviction altered.