1977 PLP 117 (SCMR)

ANWARUL HAQ, J.--‑The four respondents, named Ali Nawaz, Yasin, Noor Din and Nasar Din, residents of village Wasu in the jurisdiction of Police Station Mandi Bahauddin in the District of Gujrat, were tried by the learned Additional Sessions Judge, Gujrat, under section 302/34 of the Pakistan Penal Code for causing the death of Muhammad Inayat, half brother of Gulla (P. W. 6) and acquitted by his order dated the 26th of November 1968. The complainant Gulla challenged the acquittal by filing a revision petition before the Lahore Bench of the former High Court of West Pakistan but the same was dismissed in limine by a learned Single Judge of that Court by his order dated the 17th of November 1969. Leave to appeal was granted in this case to consider the contentions that the learned Judge in the High Court had dismissed the appellant's revision petition by reference to an inadmissible statement made by the Investigating Officer during the course of his cross‑examination to the effect that he was told in the village that the respondents had acted under grave and sudden provocation when they found the deceased inside the house of respondent Ali Nawaz in a compromising position with his sister Mst. Nuran ; and that in any case the respondents could not be entitled to acquittal on this plea. The relevant facts may briefly be stated. It was alleged that the respon dent Ali Nawaz suspected that the deceased Inayat had established an illicit liaison with his sister Mst. Nuran. Ali Nawaz had forbidden the deceased to come to the lane where his house was situated, and in this connection a quarrel had taken place between the deceased and Ali Nawaz ten days prior to the present occurrence, but on that occasion the parties were separated by Shera (P. W. 5). The present occurrence is said to have taken place between 3 and 4 p.m. on the 18th of January 1967. At that time the deceased was walking in the main street of the village from the side of Mandi Bahauddin. When he reached the point where the lane of Ali Nawaz meets the main street, he found Ali Nawaz standing there armed with a sota. The respondent abused the deceased saying that he had already warned him not to pass by his house. The deceased is said to have returned the abuse, at which juncture the other three respondents also appeared on the scene, armed with sofas, and shouting a lalkara that the deceased was not to be spared. Thus cornered, the deceased run for his life but was given a lathi blow at his back by Ali Nawaz, followed by a similar blow by Yasin. On receiving these two blows the deceased fell down, whereupon all the four respondents belaboured him with their sotas Gulla (P. W. 6), Salehon (P. W. 7) and another Salehon son of Fazal Din, who was given up by the prosecution, reached the scene of offence and rescued the deceased from the clutches of the respondents. The injured Inayat was taken to Civil Hospital, Mandi Bahauddin, where he was medically examined. Thereafter, Gulla lodged the first information report at Police Station Mandi Bahauddin, at 7‑40 p.m. It was recorded by Assistant Sub‑Inspector Muhammad Zar (P. W. 9). The deceased expired at 10‑30 p.m. that very night. According to the injury statement prepared at the time of the admission of the deceased at Mandi Bahauddin Hospital, as well as post‑mortem examination conducted after his death, the deceased had sustained a large number of blunt weapon injuries on practically all parts of his body. Although the medico‑legal report put the number of these injuries at 19, yet many of them are described as multiple contusions, thus showing that the assailants had made a determined and prolonged attack on the deceased. One of the injuries had resulted in the rupture of the right lung. In the opinion of the Doctor death was due to shock and haemorrhage caused by this injury to the lung, and other multiple injuries, though simple, had enhanced the process of shock collectively. The injuries were sufficient to cause death in the ordinary course of nature. No blood was found at the alleged place of the killing. The four respondents were arrested the next day, but no incriminating recoveries were made from them or at their instance. The respondents pleaded not guilty at the trial and asserted that they had been falsely implicated due to enmity, although they did not give any details thereof. However, the respondent Ali Nawaz gave an alternative version to the effect that on returning to his village on the 19th of January 1967, along with his wife, he was informed by his father and his brother Shamas Din that while his sister Mst. Nuran was all alone in the house, the deceased had visited her, and that they found them in a compromising position when they came home. At this sight they lost their self‑control and belaboured Inayat. However, Lambardar Saee came to their house, along with some relatives of the deceased, and requested them to hand over the person of Inayat so that they might get him treated. The father and brother of Ali Nawaz agreed and handed over the injured Inayat to the said lambardar, but they retained his tehband, shoes and head‑gear, and these articles were later seized from their house by the Investigating Officer. Ali Nawaz ended his statement by saying that although Mst. Nuran was married, she used to reside in her father's house. He asserted that he had been, falsely in implicated. The remaining three respondents denied all the allegations made by the prosecution. The learned Additional Sessions Judge did not accept the correctness of the motive suggested by the prosecution, and in this behalf he doubted the statement of Shera (P. W. 5) regarding the earlier incident between the deceased and Ali Nawaz. He also took pains to bring out certain discre pancies and contradictions between the statements of the eye‑witnesses, as regards certain details of the incident, and arrived at the conclusion that the prosecution case was not established beyond reasonable doubt. He was particularly influenced by the discrepancies as to the order in which blows were given by the various respondents and as to the juncture at which the lalkar a was raised by the companions of Ali Nawaz. Finally, he also took note of t he fact that at the time of the inquest and the post‑mortem examina tion the lower garment was missing from the body of the deceased, and only his shirt and bunyan were found on his person. In this connection, the learned trial Judge also referred to the fact that the Investigating Officer had admitted that when he reached the village the accused persons had stated that the actual occurrence had taken place in the house of Ali Nawaz because Inayat had come there in connection with his love affair with Mst. Nuran. While dismissing the appellant's revision petition the learned Judge in the High Court has also referred to this statement of the Investigating Officer, and has further observed that there were indications on the record to show that the venue of the incident had been shifted from the house of Ali Nawaz to the lane. Or this view of the matter, the learned Judge considered that the finding of acquittal recorded by the trial Court could not be said to be unreasonable or erroneous, and had not resulted in a grave miscarriage of justice. It is submitted by the learned counsel for the appellant that the learned trial Judge as well as the learned Judge in the High Court have fallen in grave error in rejecting the ocular testimony of Gulla and Salehon, as these two persons had no motive whatsoever to falsely implicate any of the respondents. It is submitted that Gulla may be related to the deceased, but Salehon is not so connected, and that neither of them had any previous enmity or friction with the respondents. It is further submitted that in view of the admission made by Ali Nawaz himself to the effect that he had been told by his father and brother that the deceased was killed inside the house when he was found by them in a compromising position with Mst. Nuran, the view of the learned trial Judge that even the motive was not satisfactorily established, was clearly untenable on the record. It is said that on the admission made by Ali Nawaz, the motive suggested by the prosecution stood more than established on the record. Finally, it is contended that even if the position taken up by the defence be conceded, namely, that the killing was done under grave and sudden provocation when the deceased was found flagrante delicto with Mst. Nuran inside the house of Ali Nawaz, it would not be a case of acquittal, but the respondents would be guilty of culpable homicide not amounting to murder and punishable under Part I of section 304 of the Pakistan Penal Code. After examining the evidence brought on the record, and hearing the learned counsel for the appellant, the respondents and the State, we have reached the conclusion that this is indeed a case where the High Court should have set aside the acquittal of the respondents and ordered their re‑trial for the reason that the acquittal was the result of an unrealistic appraisal of the evidence and had caused a grave miscarriage of justice. We do not wish to make any detailed observations on the merits of the case, lest they might prejudice one party or the other, but would briefly spell out our reasons for the view we have formed. It will be seen that the deceased Inayat was murdered in broad daylight, he having been brought to the Hospital at 6‑40 p.m. and the matter having been reported at Police Station Mandi Bahauddin at 7‑40 p.m. It was, therefore, a witnessed crime, and the evidence of Gulla and Salehon could not be rejected on the basis of inconsequential contradictions and discre pancies as to the manner in which the blows were showered or the lalkara was raised by the various respondents. There was no previous enmity between the parties and the eye‑witnesses had no motive to falsely implicate any of the respondents, who were not related to each other but who lived in adjoining houses in the same gali. We also find that the motive suggested by the prosecution stood amply proved by the suggestions put by the defence in the cross‑examination of prosecution witnesses, and also by the statement made by the respondent Ali Nawaz himself, when examined under section 342, Cr. P. C. The learned trial Judge, therefore, clearly misdirected himself not appraising the evidence in a judicial and realistic manner. In any case, the learned counsel for the appellant is right in saying that even if the ocular account is not accepted, and the alternative version put forward by the defence is preferred to the effect that the killing was don under grave and sudden provocation, then the case would fall under section 304, P. P. C., and the Court would have to determine whether Part I or Part II of the said section was applicable. In any event, there could be no question of the acquittal of the respondents. In the present case, we find that the Courts below have failed to advert to this aspect of the matter. For all these reasons eve would accept this appeal, set aside the order of acquittal passed by the trial Court, as well as the order of the High Court dismissing the appellant's revision petition against acquittal, and direct that the respondents be retried for the murder of Inayat deceased. The trial shall be held by the present Sessions Judge of Gujrat or by an Additional Sessions Judge nominated by him. As the occurrence took place as long ago as 18th of January 1967, the trial must be held expeditiously. During the pendency of the trial, the respondents shall continue to remain on bail already allowed to them by this Court. Appeal allowed. Retrial ordered.