1983 PLP 912 (SCMR)

NASIM HASAN SHAH, J.‑This appeal by leave of this Court is directed against the judgment of a Division Bench of the Lahore High Court passed in Criminal Appeal No. 742 of 1974 and Murder Reference No. 14 of 1975, whereby the conviction and sentence of the respondent under section 302, P. P C. was set aside and instead he was convicted under section 304, Part 1, P. P. C. and sentenced to 7 years R. I. The relevant facts briefly are that Nasir Ahmad alias Heera, the accused‑respondent No. 1, was tried alongwith his mother, Mst. Irshad Begum alias Khurshid, by the Sessions Judge, Sialkot for committing murder of Muhammad Ali deceased, real brother of the appellant herein. The learned trial Judge acquitted Mst. Irshad Begum but convicted respondent No. 1 under section 302, P. P. C. and sentenced him to death vide his judgment dated 30‑9‑1974. On appeal and reference, the Lahore High Court partly accepted the appeal and set aside the conviction and sentence under section 302, P. P. C. and instead convicted the accused‑respondent under section 304, Part 1, P. P. C. and sentenced him to seven years R. I. The case of the prosecution was that sometimes ago respondent No. 1 in order to participate in the procession of Eid Milad‑un‑Nabi took a horse on hire from Muhammad Ali deceased but did not pay the charges of the said horse amounting to Rs.

20. On 16‑4‑1973, which again was the day of Eid- Milad‑un‑Nabi, the accused‑respondent went to the dera of the deceased at about 7‑00 a.m. and again demanded a horse in order to join the procession. The deceased refused to do so, as the accused‑respondent had not cleared the previous account. On this the accused‑respondent felt offended and abused and slapped the deceased and went away saying that he would deal with him after the said procession. While the deceased was away to the Railway Station respondent No. 1 again visited the dera of the deceased in his absence and took away the horse in order to participate in the procession. After having done so, the horse, however, was returned in an injured condition. The deceased reprimanded respondent No. 1 as to why he had taken the horse in his absence and also injured it. The accused‑respondent went to his house abusing the deceased and after a short while came back with a khanjar in his hand. Mst. Irshad Begum was, allegedly, following him. She abused and exhorted her son to kill the deceased whereupon the accused respondent attacked the deceased and inflicted four injuries on his person with the khanjar. The occurrence was witnessed by Zulfiqar (P. W. 9), Hafizullah (P. W. 10) and one Qasim. The deceased was taken to the hospital by Hafizullah, P. W. where he was medically examined. The doctor informed the Police about the arrival of Muhammad Ali in the hospital in an injured Condition whereupon A.‑S.I. Muhammad Latif came to the hospital and recorded the statement of Muhammad Ali at 1‑45 p.m. respondent No. 1 and his co‑accused Mst. Irshad Begum alias Khurshid were arrested on 16‑4‑1973, Muhammad Ali died in the hospital three days later on 19‑4‑1973 and his statement was treated as a dying declaration. Respondent No. 1 admitted having killed Muhammad Ali but pleaded grave and sudden provocation. According to him, the deceased had an evil eye on Mst. Irshad Begum, his step‑mother who was in her early thirties and it was his case that on the day of occurrence he killed Muhammad Ali when the deceased attempted to outrage her modesty. The learned Sessions Judge did not accept the defence plea and held that the prosecution case was fully established and the charge of murder against the respondent also stood fully proved. He, therefore, convicted him under section 302, P. P. C. and sentenced him to death. Mst. Irshad Begum was, however, acquitted. On appeal before the Lahore High Court, the learned Judges held that the two eye‑witnesses were interested and their evidence could not be relied upon. The plea raised by the accused‑respondent that Muhammad Ali deceased had an evil eye on Mst. Irshad Begum and he was killed when he attempted to outrage her modesty was considered to be probably true. There was doubt also with regard to the exact spot where the occurrence had taken place. Accordingly, the case, as set up by the prosecution, did not inspire confidence and that the plea of the accused‑respondent could be accepted. Accordingly, the conviction and sentence of the respondent was altered from section 302, P. P. C. to section 304 (Part 1), P. P. C. and his sentence reduced from death to seven years R. I. Leave was granted on the petition of the appellant herein as the pleas raised by him that the findings of the learned Judges of the High Court that the plea of the accused‑respondent that be had committed the crime on account of sudden and grave provocation was based on conjectures and there was no evidence in support of it except the bare statement of the accused‑ respondent himself and the production of the khanjar (Exh. P. 1) by the accused‑respondent before the Investigating Officer, in fact, militated against the plea of grave and sudden provocation and further that the dying declaration of the deceased had incorrectly been discarded. We have, therefore, reconsidered the whole case again with the help of the learned counsel for the appellant, Raja Muhammad Muzaffar, who supported the appeal somewhat half‑heartedly and without much enthusiasm. The de novo examination of the case has, however, satisfied us that the view formed by the High Court about the circumstances in which the respondent attacked the deceased and killed him is well‑founded. The ocular evidence in this case consisting of the testimony of Zulfiqar and Hafizullah, P. Ws. who were more or less employees of the deceased and directly under his influence could hardly be given much weight on account of their interest in the deceased. Even their testimony, so far as Mst. Irshad Begum alias Khurshid co‑accused was concerned, had been disbelieved by the trial Court. The effect of the failure of the Investigating Officer to take into possession the blood‑stained earth from the spot which would have established the exact place of occurrence resulted in the place of occurrence not being established the effect was that a doubt arose as where the occurrence took place, which was an important circumstance for determining the nature of the offence committed. The view of the High Court that the dying declaration could not be relied upon as it was made in the presence of several people including the P. Ws. who could have influenced and tutored the deceased is also plausible. In these circumstances, the view taken by the High Court that the version of the incident as put forth by the prosecution was not established beyond reasonable doubt and that the version given b, the accused‑respondent, namely, that the deceased, who was widower, ha an evil eye on his step‑mother Mst. Khurshid, who was only 32 years of and the appellant had stabbed him to death when. he was outraging he modesty could be accepted, appears to be nearer the mark. In these circumstances, we do not think that any interference in the judgment of the Lahore High Court is called for. This appeal is, accordingly, dismissed. M.Z. M. Appeal dismissed.