1985 PLP 1684 (SCMR)

2. The prosecution case as disclosed at the trial briefly narrated is that Asghar Ali (deceased) was running a retail shop of commission agent in Bazar at Jalalpur Jattan District Gujrat. On 24‑8‑1975, at about Peshiwela, when his brother Noor Muhammad and one Abdul Majid were sitting at his shop, petitioner Muhammad Sharif and Riaz Ahmad came there and took him to their village Behalpur for purchase of ghee. Asghar Ali took Rs.700 and accompanied Muhammad Sharif and Riaz Ahmad on a bicycle. Since he did not return home throughout the night, his brother Noor Muhammad went out in search for him, and on reaching village Behalpur he learnt from the villagers that the two accused had killed one man. Noor Muhammad then went to the house of Muhammad Sharif where he noticed the dead body of his brother lying in the courtyard. He then went and lodged report of the crime with Jalalpur Jattan Police Station which was recorded at 10‑00 a.m. on 25‑8‑1971.

3. The Investigating Officer went to the place where the dead body of the deceased was lying. It was the courtyard of Muhammad Sharif. On search of the body the police officer took among other articles, key of the lock of the bicycle which was, however, recovered on 31‑8‑1971 in a field at a distance of about 400 paces from Muhammad Sharif's courtyard.

4. The motive alleged is that Asghar Ali (deceased) has illicit relations with appellant's wife Mst. Hameeda and he, therefore, killed Asghar Ali. At the trial, prosecution case was sought to be proved against the accused on the basis of testimony of Noor Muhammad and Abdul Majid who had last seen the deceased in the company of the accused and also by the circumstantial evidence of recovery of the body of the deceased from the courtyard of the accused and also the injuries noticed on the persons of both the accused at the time of their arrest on the same day of the registration of the crime.

5. Noor Muhammad, brother of the deceased stated that he carries on cloth business in the shop adjacent to the shop of his deceased brother in the Bazar of Jalalpur Jattan. On 24‑8‑1971 while he and Abdul Majid were sitting at the shop of his brother, the two accused came and told his brother that he should accompany them for the purchase of ghee which was available in their village. His brother therefore, took Rs.700 and accompanied them on his bicycle. Abdul Majid fully corroborated this version. What transpired later was stated by Noor Muhammad. He further deposed that his brother and Muhammad Sharif accused were very close friends and used to visit each other very frequently. He produced several letters and also two photographs to show that the deceased had illicit relations with Mst. Hameeda, wife of Muhammad Sharif appellant. In fact this part of the case has remained unchallenged. According to Noor Muhammad, since his brother did not return home during the night, he became anxious and went out for his search. On his arrival in village Behalpur he came to know from that the two accused had killed a person. On reaching the house of Muhammad Sharif, he found the dead body of his brother lying in the courtyard and thereafter rushed to the police station for lodging report of the crime.

6. In defence both the accused pleaded not guilty. Muhammad Sharif accused however admitted that his wife had illicit relations with the de ceased. According to him when he reached his village from Karachi on 25‑8‑1971 he was falsely implicated in the case due to the bad character of his wife. According to him, the deceased visited his house at night and tried to scale the wall of his house when some one noticed him and cried 'thief, thief' and the villagers assaulted the deceased and inflicted injuries on his person.

7. The co‑accused Riaz Ahmad admitted the illicit relationship of Mst. Hameeda with the deceased which according to him was well‑known in the village. He however denied the* prosecution case and explained that the injuries on his person were sustained by him during the Zamindari work.

8. Learned Sessions Judge held that the case against both the accused was proved from the testimony of Noor Muhammad and Abdul Majid, the circumstantial evidence of the injury on the persons of the accused, and also the recovery of the dead body of the deceased from the house of Muhammad Sharif accused. On this view of the case, he convicted both the accused under section 302/34, P.P.C. and sentenced each to life imprisonment.

9. On a joint appeal filed by the convicts, learned Judges of the Division Bench of the Lahore High Court who dealt with the case however held only Muhammad Sharif guilty on the same views that prevailed with the trial Judge, but they held that the case of the conviction of Riaz Ahmad was distinguishable for the reason which may be reproduced in their own words: "The case of Riaz Ahmad appellant is distinguishable. According to the very allegations of prosecution he accompanied Muhammad Sharif appellant and alongwith him took the deceased to village Behalpur. He had no motive of his own and there is no evidence that he was aware of the intention of Muhammad Sharif appellant at that time. He is shown to be a neighbour of Muhammad Sharif appellant. There is no evidence that he was with Muhammad Sharif appellant when the crime was committed and the mere fact that he was injured will not connect him with the crime. On the evidence on record, Riaz Ahmad appellant is entitled to benefit of doubt."

10. Leave to appeal from the judgment of the High Court was granted to Muhammad Sharif appellant in order to consider the plea that it was probable that Muhammad Sharif appellant, on surprise visit to his own house, found the deceased with his wife at the night and had done him to death under grave and sudden provocation, and that his conviction could not be sustained under section 302, P.P.C. It was argued that even if this defence was not specifically pleaded at the trial, yet on the facts and circumstances appearing in the prosecution case itself, the appellant is entitled to the benefit of this plea even at this stage.

11. Mr. Ijaz Hussain Batalvi; learned counsel for the appellant referred to several pieces of evidence, firstly that there can be no doubt from the prosecution case itself that the deceased was on illicit terms with Mst. Hameeda, wife of Muhammad Sharif appellant for even Noor Muhammad, brother of the deceased, not only testified to this effect but he also produced the two photographs which clearly show that Hameeda was on close terms with the deceased.

12. This aspect of the case admits of no doubt. The question then is whether the deceased was taken from his shop by both the accused on the pretext of purchase of ghee from their village. On this aspect of the case, prosecution produced two eye‑witnesses Noor Muhammad brother of the deceased and Abdul Majid who admittedly was very friendly with both Noor Muhammad and the deceased. If they are the believed, then it is strange that both the accused came to fetch the deceased at about mid‑day in order to cause his murder during the night in house of Muhammad Sharif. Yet the fact remains that the body of the deceased was found from the courtyard of Muhammad Sharif Then, if the two aforesaid witnesses are to be believed, in the normal course of human conduct and affairs, the deceased should have been killed at any other place rather than in the house of Muhammad Sharif. Learned Sessions Judge as well as the learned Judges in the High Court believed this aspect of the case without considering the essential details of the testimony of P.Ws. Noor Muhammad and Abdul by which cast serious doubts as to the veracity of the version given them in essential details. When questioned with regard to his association with Abdul Majid, P.W. Noor Muhammad was hesitant and staled elf he might be belonging to Ludhiana. When pointed out that he has to came from Ludhiana, he admitted that "now I know that he belo0 at Ludhiana. I also belong to Ludhiana city." Abdul Majid's house was a distance of two furlongs from the shop and he used to purchase the cloth from him for sale in villages as Pheriwala. The shop of the deceased was situated in the central place in the Bazar but a2 at to Noor Muhammad and Abdul Majid there were not many persons the time when the accused came to take the deceased with them Village Abdul Majid himself admitted that the deceased belonged to his village the and he was on friendly terms with him. The significant fact of the prosecution story is that when Noor Muhammad visited the will been the accused, he came to know from several persons that a man had been the killed by the accused persons. It is significant that no one from the village was examined as to the circumstances in which the body Mpg to deceased was found lying in the house of the appellant. According to the Investigating Officer, Raja Muhammad Saleem, Muhammad Sharif accused stated before him that the deceased scaled over the wall of his the house and there were many signs of struggle in the courtyard of the house of the accused. The key to the lock of the cycle was recovered from the person of the deceased, whereas the cycle was found to be lying in a field at some distance. There is therefore great force in the argument of the learned counsel for the appellant that the deceased had gone during the night of occurrence on one of his usual visits to Mst. Hameeda for illicit connections and he had locked his cycle in a field at a distance from the house and was he was surprised by the husband Muhammad Sharif appellant who killed him under sudden and grave provocation. As many as 19 injuries caused by two different types of weapons were noticed on the person of the deceased which would show that there were more than one assailant, but this aspect is not material for the purpose of this appeal because the co‑accused has already been acquitted by the High Court, and there is no grievance from any quarter regarding his acquittal.

13. Since the evidence produced by the prosecution itself sufficiently sustains the defence plea now advanced that it was on account death sudden and grave provocation that the appellant had caused the death of the deceased, we cannot withhold the benefit of doubt regarding this plea to him. On this view of the case we reduce his conviction from section 302/34, P.P.C. to one under section 304, P.P. and since he has already undergone jail custody for more than 7 years, which we feel should meet the ends of justice, we reduce the sentence of life imprisonment imposed upon him to the one already undergone by him. Accordingly he shall be released forthwith unless required in some other connection. M.I. Appeal allowed.