P L D 1986 Lahore 120 (PLP)

MUHAMMAD MUNIR KHAN, J.‑This Criminal Appeal No. 635‑82, con nected Murder Reference No 9 of 1983 and Criminal Revision No. 273 of 1983 by Hamman arise from the judgment of learned Additional Sessions Judge, Sheikhupura, whereby he on 6‑11‑1982 while acquitting Muhammad Sharif, convicted Muhammad Hanif appellant under sec tion 302, P. P. C., and Muhammad Yaqoob and Yousaf respondents Nos. 3 and 4 in the criminal revision were acquitted of the charges under section 302/307/34, P. P C. and were convicted under section 323, P. P. C. for causing hurt to Muhammad Aslam P. W. and sentenced to imprison ment already undergone by them and a fine of Rs. 500 in default thereof one month's R. I. each. It may be noted that Muhammad Yaqoob and Yousaf have not filed appeal against their convictions.

2. The occurrence took place on 20‑1‑1981 at 10‑00 a. m. in a lane outside the house of Muhammad Yaqoob situated in village of Bagri of Police Station Barha Ghar of District Sheikhupura. The distance between the place of occurrence and the police station is 4 miles. The F. I. R. Exh. P. H. was lodged by Harriman P. W. 8, brother of the deceased at 1‑30 p. m. on the same day and recorded by Amanat Ali S. I. P.W.11.

3. The motive alleged by the prosecution was that Muhammad Yaqoob co‑accused, father of Muhammad Hanif appellant suspected that Amin son of Hamman had illicit relation with his daughter Mst. Malkani. About two months before the occurrence, Muhammad Sharif, acquitted accused and Muhammad Hanif appellant gave beating to said Amin because of this suspicion. Thereafter, Muhammad deceased gave beating to Muhammad Hanif appellant, hence this occurrence.

4. As far the main occurrence, it has been stated thkt just before the occurrence Hamman, complainant, Muhammad Aslam P. W. 9 and Muhammad deceased were present in their houses. Muhammad left for Bucheki to purchase grossary. Four/five minutes, thereafter, the complainant and Muhammad Aslam P. W. heard noise coming from infront of the house of Muhammad Yaqoob co‑accused. They rushed to the scene of occurrence‑ It was within, their sight that Muhammad Hanif appellant gave Pawrha blow on the back side of the head of Muhammad. Hamman and Muhammad Aslam P. W. 9 tried to intervene. Muhammad Yaqoob and Yousaf co‑accused gave Dang blows on the head of Hamman while Muhammad Sharif co‑accused gave hatchet blow on the finger of Muhammad Aslam. The appellant and the co‑accused ran away taking their weapons with them. Muhammad succumbed to the injuries on the spot. The occurrence was also seen by Falak Sher and Sarja (both not produced).

5. Dr. Muhammad Athar Hussain, on 21‑1‑1981 at 11‑00 a. m. conducted post‑mortem examination on the dead body of Muhammad deceased. He found following injuries :‑ "(1) Contusion 8 cm. on the left occipital region of skull 15 c.m. from left ear. Bone credipitus was present. Clinically fractures of the bone under the contusion. (2) A contused wound 5 c.m. x 5 c.m. on the right occipital region of skull with bone crepitus underneath. (3) A swelling 6 c.m. x 6 c.m. on the left frontal region of skull." In his opinion, the death had occurred due to excessive haemorrhage and shock. The injuries were individually sufficient to cause death in the ordinary course of nature. The time between injury acid the death was instantaneous. On the same day, he examined Muhammad Aslam P. W. 9 and Harriman P. W.

8. He found one incised wound on the left index finger of Muhammad Aslant P. W. and 3 simple injuries caused with blurt weapon 4, on the bead of Harriman complainant.

6. On 30‑1‑1981. Muhammad Hanif appellant, Muhammad Yaqoob and Muhammad Sharif co‑accused got recovered Pawrha Exh. P. 9, Sota Exh. P. 10 and hatchet Exh. P. 11 which were taken into. possession, vide memos. Exhs. P. E., P. F. and P. G. respectively attested by Eisa P.W. 7 and Falaksher (not produced). On 12‑'_'‑2981, Muhammad Yousaf co‑accused F got recovered Sota Exh. P. 12 which was taken into possession, vide memo. Exh. P. 1. attested by Hashim P. W. 10 and Bashir Ahmad (not produced). It may be noted that Pawrha Exh. P.

9. Sota Exh, P. 10, Sota Exh P. 12 and hatchet Exh. P. 11 were not stained with blood.

7. To prove its case, prosecution examined 11 witnesses. Harriman P. W, 8 and Muhammad Aslam P. W. 9 have given the ocular account of the occurrence. They claim to have seen Muhammad Hanif appellant causing injuries to Muhammad with Pawrha resulting in his death and the co‑accused namely, Muhammad Yaqoob, Muhammad Sharif and Yousaf causing injuries to them. Harriman also supported the alleged motive. Eisa P. W. 7 and Hjshim P. W. 10 have supported the recoveries of Pawrha Exh. P. 9, Sota Exh. P. 10, hatchet Exh. P. I 1 and Sota Exh. P. 12 from Muhammad Hanif appellant, Muhammad Yaqoob. . Muhammad Sharif and Yousaf co‑accused, respectively. Dr. Muhamma6 Athar Hussain has proved the post‑mortem examination report and the medico legal reports relating to Muhammad Aslam and Harriman P. Ws. Amanat Ali S. I., P. W. 11, had effected the recoveries from the appellant and the co ‑accused. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr. P. C., Muhammad Yaqoob, Muhammad Sharif and Yousaf denied all the incriminating circumstances. They raised the plea of false implication. Muhammad Hanif appellant while admitting his participation in the occurrence raised the plea of grave and sudden provocation and self‑defence. In reply to the question, "As to why the case against you?" He stated :‑ On the fateful day of occurrence my sister. Mst. Malkani, who is unmarried was all alone in the house. Deceased trespassed into our house and tried to outrage the modesty of my sister. but he was rebuked by my sister and asked to leave the house. In the mean time I entered the house and saw that the deceased was embracing my sister forcibly. The Pawrha was lying nearby. I picked it up and inflicted only one injury on the person of the deceased under grave and sudden provocation and in order to protect the modesty of my virgin sister. Muhammad deceased expired at the spot inside our house." In defence no witness was produced

9. Learned counsel for the appellant contended that the occurrence did not take place in the manner as stated by Hamman P. W. 8 and Muhammad Aslam P W 9 : that there is reasonable possibility of the version of the occurrence as given by Muhammad Hanif being true and that Muhammad deceased. in fact, was killed in the house of the appellant when he was outraging the modesty of the sitter of the appellant. Conversely, the learned counsel for the State supported the judgment of the trial Court. Learned counsel for the complainant submitted that Muhammad Yaqoob, Muhammad Sharif and Yousaf co‑accused have been acquitted of the charges under section 302/ 307, 34, P. N. C. without and legal and factual justification.

10. We have considered the arguments advanced by the learned counsel for the parties with care. We have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that the F. I R. Exh. P. H. is a genuine document. It contains the name of the eye‑witnesses, name of the appellant and the co‑accused, the weapon used by them and the manner in which occurrence. took place. There is nothing on record to indicate that the F. I. R. Exh. P. H. which was promptly lodged was not recorded at the time and place mentioned therein. The F. I. R. thus can be used to corroborate the version given by Harriman P. W. 8 the complainant. The two eye‑witnesses namely Haminan P. W. 8 and Muhammad .‑Islam P. W. 9 are the injured witnesses.. By the facts of injuries on their person, their presence on the spot is very,4 much established. They have successfully faced the test of cross‑examina tion. We do not see any inherent infirmity in their statements. The evidence given by them is in consonance with the probabilities and material fits in with other evidence more particularly with the medical evidence and the circumstances of the case. The number of the injuries found on the person of the deceased and the prosecution witnesses common surates with the number of the assailants named by the eye‑witnesses. The statements of these witnesses do not suffer from material contradictions or discrepancies. Since Muhammad deceased had given beating to Muhammad Hanif appellant before the occurrence. therefore. Muhammad Hanif appellant and his co‑accused had a motive to attack him. We do, not see any reason to disbelieve the account of the occurrence given by the eye‑witnesses.

11. This brings us to the plea of grave and sudden provocation and self‑defence raised by Muhammad Hanif appellant in his statement record ed under section 342, Cr. P. C. There are reasons to doubt that the occurrence took place in the manner as alleged by Muhammad Hanif appellant. According to the plea taken by him the occurrence took place inside the house whereas the bloods‑tained earth was collected from the lane and not from inside the house. Since the death of Muhammad was instantaneous, therefore, had the occurrence taken place inside the house then the dead body as well as the blood‑stained earth would have been and in the house of the appellant and not outside the house in the lane. Furthermore, the defence version does not explain the injuries fround on the person of Hamman P. W. P. W. 8 and Muhammad Aslam P. W.

9. This shows that the occurrence did riot take place in the marines as stated by Muhammad Hanif and had in fact taken place in the marines as alleged by the prosecution. The aforesaid circumstances do falsify the exculp atory part of the statement of Muhammad Hanif appellant. Strangely enough, Mst. Malkani the sister of appellant was not produced in support of defence version. From the evidence and circumstances on record, we are convinced that there is no reasonable possibility of the defence version being true. ' For all these reasons we are of the view that the learned trial Court has rightly convicted Muhammad Hanif appellant.

12. This brings us to the question of sentence. We find that there are mitigating circumstances in favour of the appellant for lesser penalty inasmuch as the eye‑witnesses were present in their house and were attracted to the spot on hearing the noise coming From in front of the house of the accused and as such they did not see the origin of the attack, and only saw the appellant and his co‑accused causing injures to the deceased.

13. The upshot of the above discussion is that while maintaining the conviction of Muhammad Hanif appellant under section 302, P. P. C. the sentence of death is altered to imprisonment for life and a fine of Rs. 10,000 in default thereof one year's R. I. There being no merit, the connected revision is also dismissed. Appeal partly accepted.