1982 P Cr (PLP)

4. Dr. Muhammad Afzal Mian, Medical Officer, Civil Hospital, Lodhran on 11th May, 1974 at 8 a.m. conducted the post-mortem examination on the dead body of Muhammad Afzal and found the follow ing injuries :- Injury No. 1 was caused by sharp-edged weapon and the rest by sharp-pointed weapon. The stomach and large intestines were found to be empty. Small intestine was containing viscid liquid but no food and urinary bladder was empty. The right femoral vessels were injured under Injury No.

4. In his opinion the cause of death was haemorrhage and shock due to injury No. 4 which was sufficient to cause death in the ordi nary course of nature. Probable time between injuries and death was 5 to 10 minutes and between death and post-mortem about 24 hours. According to the reports of the Chemical Examiner and the Serologist Exh. P. G. and Exh. P. H. the earth, the clothes of the accused and the weapon of offence were found to be stained with human blood. After completion of the investigation the accused were challaned.

5. At the trial the accused pleaded not guilty and denied the alle gations. Muhammad Ali admitted that his wife was abducted by the deceased and she was restored to him through the intervention of Pan chayat and stated that he pocketed this insult and brought her to village Gogran and lived with his brother-in-law Ahmad Din Lambardar in order to live there peacefully. Explaining the case against him he stated as under :- "The Police has fabricated evidence to make it a case of intentional murder against me and my co-accused. My co-accused Ramzan was not present at all at the time of occurrence at the spot. I had brought my wife from Danwaran to Gogran to keep her away from the deceased. During the days of occurrence, deceased, his brothers and mother were not living at Gogran. They had earlier shifted to Lodhran Town where Muhammad Afzal deceased used to instal water pumps. On 10th May, 1974 in the late hours of the night I found my wife Mst. Zahoor Mai absent from her bed. I came out of the house to search her taking with me a chhuri utilized for cutting of vegetables for my protection as it was dark hours of the night. I found the deceased taking away my wife in an objectionable manner. I challenged them whereupon the deceased abused me and assaulted me and at that time under grave and sudden provocation and under apprehension that the deceased may not kill me after snatching chhuri from me, I caused him injuries with that churri." Muhammad Ramzan pleaded false implication and made the following statement :- It is correct that Muhammad Nawaz was convicted and sentenced to imprisonment for life for the murder of Abdul Khaliq my maternal-uncle. I nourished no grudge against Muhammad Afzal deceased because I was not a witness against Muhammad Ramzan brother of the deceased ; besides there were 2 other accused persons alongwith Muhammad Nawaz. The brothers and sons of Abdul Khaliq deceased are also living. I had no special interest in Abdul Khaliq." The accused led no evidence.

6. The trial Court did not accept the plea of self-defence and grave and sudden provocation of Muhammad Ali for the reason that he did not take up this plea before Committing Magistrate and that the pro bable time of death as given by the doctor would not fall at night. The prosecution alleged that the occurrence took place at 8 or 9 a. m. and autopsy was held the following day at 8 a. m. and according to the doctor about 24 hours elapsed between death and post-mortem exami nation.

7. The learned counsel contended that the aforesaid reasons were not enough to discard the plea of the accused because in the first instance the doctor had calculated the approximate time of death from the pre sence of rigor mortis only which according to the Modi lasts in hot region from 18 to 36 hours and as such there was a margin of 12 hours in this case. The possibility of the occurrence having been taken place at night could not be excluded. It was further argued that since the eye witness account did not fit in which the medical evidence, it therefore, indicated that they were not witnesses of truth. We have considered the matter and find that Mst. Salamat Mai had stated that Muhammad Ali inflicted hatchet blow to the deceased on the back side of the head with full force and the broken piece of the handle had fallen on the ground while the blade and the remaining part of the handle remained to hand. She further stated that after the receipt of first blow the deceased got up and ran towards the school while Muhammad Ramzan accused pursued him and inflicted injuries to him with the dagger on the chest. The deceased continued running while Muhammad Ramzan continued giving him dagger blows and there was a trail of blood from the chair to the gate of the school. Muhammad Ali accused had also given blows with hatchet to the deceased when he was running. The part attributed to Muhammad Ali that he gave more hatchet blows to the deceased when he was running is contradicted by the medical evidence as there was only one incised injury on the person of the deceased. The above description of the assault as deposed to by Mst. Salamat Mai is got consistent with the medical evidence. It is also not believable that the broken part of the handle fell down and the blade and the other part remained in the hand. It would be just the reverse. Though it is alleged that there was a trail of blood from the chair to the gate of the school yet no trail of blood had been found on the spot. The part attributed to Muhammad Ramzan accused is also not consistent with the medical evidence. There is no injury on the chest of the deceased. There are 13 superficial cuts on the thumb, finger and palm of the deceas ed from which it can be inferred that the deceased tried to ward off the attack. Dagger Exh. P. I. which is a heavy and formidable weapon if wielded as alleged by the prosecution would have caused much more damage. It is opined by the doctor that the injuries of the deceased except injuries No. 1 could be caused by a knife of half inch blade. Mst. Salamat Mai categorically stated that the deceased did not fall on the ground after receipt of hatchet blow and received the rest of the injuries while he was running but she is contradicted by P. W. 9, Muhammad Iqbal who stated that on receipt of hatchet blow the deceased fell down on the ground slowly and the other accused had caused injuries to him while he was lying on the ground. Muhammad Iqbal further contradic ted Mst. Salamat Mai when he stated that Muhammad Ali accused gave a second blow with his hatchet which hit at the right arm of the deceased and that it was at that moment when the handle of the hatchet was broken. But according to Mst. Salamat Mai the handle of the hatchet was broken after the first blow. As already mentioned P. W. 9, Muhammad Iqbal stood contradicted by the medical evidence as there was only one incised injury on the person of the deceased and none at all on his arm. In these circumstances the ocular evidence does not fit in with the medical evidence and does not inspire confidence. Not only that the eye-witness account is not in line with the medical evidence even otherwise the story put by Mst. Salamat Mai mother of the deceased does not appeal to reason that her son had gone to exchange the bicycle with a radio from Muhammad Akbar who did not appear as a witness to support her version and was given up as having been won over. Though the accused was said to have gone to Muhammad Akbar to exchange bicycle with a radio and return to his mother as they were ready to go to Lodhran yet we find that the deceased was said to have been sitting at the shop of Muhammad Akbar whereas normally he should have come back with the radio without delay. It appears that the presence of Mst. Salamat Mai was stage managed. It may b: mentioned here that Mst. Salamat Mai tried to conceal that she and her deceased, son had shifted to Lodhran because of the theft case against him. This she had admitted before the Committing Magistrate though denied by her at the trial. P W. 9, Muhammad Iqbal also admitted that they had shif ted to Lodhran. Admittedly several persons from the locality had come to the spot but the prosecution has failed to produce any one out of them. In view of the inconsistencies of the ocular evidence with the medical evidence and the material contradictions in the statements of the witnesses as indicated above, vie are of the view that the probability that these witnesses did not see the occurrence cannot be ruled out and no reliance can be placed on their evidence.

8. As regards the evidence of recovery of incriminating articles we are of the opinion that it is no better than the ocular evidence and moreover it also reflects on the investigation of the case. Muhammad Akbar one of the recovery witnesses of the blood-stained clothes of the accused was not produced as having been won over. P. W. 9, Muhammad Iqbal is the other witness who was also a witness of the occurrence. His evidence has not been relied upon in respect of the occurrence. Like wise Faiz Bakhsh one of the recovery witnesses of the weapon of offence was not produced as having been won over. P. W. 7, Karim Bakhsh is the other witness. He stated before the Committing Magistrate that his signatures were obtained by the `thanedar.' on blank papers with which he was confronted. This also reflects upon the investigation of the case particularly when Karim Bukhsh was not declared hostile. In these circumstances the statement of Investigating Officer cannot be relied upon to prove the recoveries as it also stood contradicted by other evidence.

9. For the foregoing reasons we are not satisfied with the prosecu. tion case. The participation of Muhammad Ramzan in the commission of the crime in this case is doubtful and we acquit him by giving him the benefit of doubt. In so far as the case of Muhammad Ali accepting his plea that he acted under grave and sudden provocation we alter his A conviction to one under section 304 (I), P. P. C. He was convicted on 15th May, 1976 and has served about 18 months' R. I which in our view would meet the ends of justice. We therefore, reduce his sentence to one the period already undergone. The death sentences are not confirmed. The sentence of fine of both the appellants is remitted. Order accordingly.