1988 P Cr (PLP)

4. Dr. Syed Sohail Hassan, P.W.1, conducted post‑mortem examination on the dead body of Muhammad Yousaf on 1‑10‑1982 at 4‑00 p.m. He found following injuries:‑

(1) Incised wound 1 x c.m. x chest cavity deep on the front of left chest .at its lower part, 7. c.,m.. from the midline. It was verticle in direction. (2) Incised wound 1 x c.m. x abdominal cavity, deep on the lateral aspect of left chest at its lower most part, verticle in direction. (3) Incised wound 3/4x x c.m. x skin deep on the back of left chest at its lower most park. In his opinion, the death was due .to shock, and hemorrhage as a result of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 were dangerous to life. Injury No. 3 was simple. The injuries were inflicted by sharp‑edged weapon. The time between death and injuries was a few minutes and between death and post‑mortem was 8 to 1,4 hours.

5. The appellant and Muhammad Aslam, acquitted accused were arrested on 2‑10‑1982 by Nazir Ahmad A.S.I.P.W.6. On 4‑10‑1982 the appellant led to the recovery of blood‑stained chhuri Ex.P4 from his house which was taken into possession vide memo Ex,.PF, attested by Bashir Ahmad P.W.5, Zafar Ahmad (not produce) and. Nazir Ahmad A.S.I. P.W.6. The Serologist Report Ex,PL ,shows that chhuri Ex:P4 was stained with human blood.

6. To prove its case, prosecution produced as many as six witnesses. Muhammad Ishaq P.W.4;' Bashir Ahmad P.W.5 have given the ocular account of the occurrence. They supported the story of the prosecution. They claim to have seen Muhammad Salim appellant causing three injuries with chhuri on the person of the deceased. They have. also deposed about' the immediate cause of the attack on the deceased by the appellant and his co‑accused. Bashir Ahmad P.W.5 and Nazir Ahmad A.S.I. P.W.6 have‑supported the recovery of blood‑stained chhuri Ex.P4 from the appellant. Dr. Syed Sohail Hassan has proved post‑mortem examination report. The rest of the evidence is more or less of formal nature.

7. When examined under section 342 Cr.P.C. Muhammad Aslam co‑accused denied all the incriminating circumstances. Muhammad Salim appellant raised the plea of grave and sudden provocation as well as of self‑defence. He stated:‑-- "I am innocent. On the day of occurrence, at about 7‑30 a.m., the deceased Muhammad Yousaf cut dirty jokes with my younger sister Mst. Kausar, aged about 15 years. She resented and exchanged hot words with him. On hearing that, I reached there. My sister apprised me of that incident. I objected to the conduct of the deceased, who hurled dirty abuses at me. The deceased caught hold of me and threw me on the ground. He wanted to throttle me from my neck. In order to save my life and also under grave and sudden provocation, I caused injuries to the deceased Muhammad Yousaf with a knife who died of the injuries there. The incident was witnessed by Muhammad Shafi son of Imam Din Ex. D. B. Member of the village. We took up the same stand before the police during the investigation. The eye‑witnesses examined by the prosecution were not present there. Muhammad Aslam co‑accused was also not present there." He produced Muhammad Shafi D.W.1 in his defence who supported the defence version taken up by the appellant.

8. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt, inasmuch as, the F.I.R. was recorded on the spot; that Muhammad Ishaq P.W.4 is brother of the deceased that Bashir Ahmad P.W.5 belongs to brotherhood of the deceased; that independent and disinterested witnesses although available yet were not produced; that statements made by the eye‑witnesses are contradictory and that Muhammad Shafi D.W.1 who is a quite independent witness has supported the defence version. Learned counsel argued that in any case there was a reasonable possibility of the defence version being true. Learned counsel for the State has supported the judgment of the trial Court.

9. I have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution; statement made by the appellant under section 342 Cr. P.C. and the statement made by Muhammad Shafi D.W., carefully. I feel persuaded to agree with the learned counsel for the appellant. There is no dispute that the FIR was recorded on the spot after half an hour of the occurrence. The circumstances in which Nazir Ahmad, A.S.I., P.W.6 conveniently reached the spot within half an hour of the occurrence, throws doubt on the genuineness of the statement Ex.PC of Muhammad Ishaq P.W.4. He might have left the place of occurrence immediately after the occurrence and before the arrival of Nazir Ahmad A.S.I. on the spot, and as such, his statement could not have been recorded on the spot at 9‑30 a.m. Muhammad Ishaq P.W.4 and Bashir Ahmad P.W.5 are related to the deceased. Muhammad Ishaq is brother of the deceased. Bashir Ahmad belongs to his brotherhood. They have no injury on their person. Had they been present on the spot they would have naturally interfered and would have tried to save the deceased when Muhammad Saleem appellant was inflicting 3 injuries with chhuri and as such would have received some injuries during the process. Be that at it may the fact remains that there is no circumstantial guarantee or judicial certainty of their presence on the place of occurrence. Although the people of different castes live near the place of occurrence yet not a single disinterested person of the locality was produced by the prosecution. So much so, Mushtaq Ahmad and Zafar Ahmad, the two eye‑witnesses mentioned in the F.I.R, were also not examined. For all these reasons, I am of the view that no implicit reliance can be placed on the statements of the two eye‑witnesses. This brings me to the plea raised by Muhammad Aslam appellant in his statement recorded under section 342 Cr.P.C. Muhammad Shafi D.W.1 is ex‑member of the village. He is quite independent person. He has supported the defence version. I do nor see any reason to disbelieve him. Furthermore, the prosecution evidence having been discarded, the statement of the appellant has to be accepted as a whole. In his statement the appellant claims to have killed the deceased in self‑defence of person and under grave and sudden provocation as well. His statement accepted as a whole does not make out a case of self‑defence extending to the causing of the death of the deceased. At the best it can be said that he has exceeded the right of self‑defence. The statement, also, shows that the appellant had caused the death of the deceased under grave anti sudden provocation. In both cases, the appellant would be guilty of offence punishable under section 304 (1) P.P.C.

10. A's a consequence to the above discussion, the conviction and sentence of the appellant under section 302, P.P.C. is set aside. Instead he is convicted under section 304 (1) P.P.C. and sentenced to 7 years' R.I. and a fine of Rs.5,000, in default thereof one year R.I. The fine when recovered be paid to the legal heirs of the deceased. M.Y.H/M‑592/L Appeal partly allowed.