1989 PLP 4457 (MLD)

5. Dr. Khalid Qureshi PW.1 conducted autopsy on the dead body of Allah Bakhsh deceased and found the following injuries on his person:‑‑ (1) An incised wound 1‑1/2" x 1‑1/2" on the top of head. (2) Depression 3"x3" on nose and right cheek. (3) Stab wound 1‑1/2" x 1/2" on the outer side of right eye with injury to right eye. (4) Incised wound 1/2" x 1/4" on right side of nose with cut to cartilage of nose. (5) Incised wound 1‑1/2"x1/2" on the base of right side of nose with cut on upper jaw and septum of nose. Injury No.1 was inflicted by sharp‑edged weapon and was fatal. Injury No.2 was caused by blunt weapon and injury No.3 was caused by sharpe edged weapon. Both were grievous, time between injuries and death was immediate.

6. The prosecution produced Muhammad PW.8 and Muhammad Hussain PW.9 as eye‑witnesses. Manak PW.7 was produced to prove the recoveries of blood‑stained hatchet P.6 and Sota P.7 from Muhammad Ameer accused and Umar Hayat appellant respectively. Muhammad Aslam Inspector/SHO PW.10 investigated the case.

7. Muhammad Ameer accused made a total denial of the occurrence and pleaded innocence. Umar Hayat appellant gave following account of the occurrence:‑ "I am innocent. On the day of occurrence I went to my field having a hatchet with me to cut the branches of trees standing in my field. My field is adjacent to the sugarcane crop of one Shera. I noticed some movement in the sugarcane crop and I went there. I saw my sister Mst. Fattain in objectionable position with the deceased. I lost my temper and control of myself and under grave and sudden provocation I inflicted injuries with the right and wrong side of the hatchet to the deceased in the heat of passions. Meanwhile, my sister managed to run away Muhammad Ameer accused was not on the spot." No evidence was called in defence. The learned trial Court found the motive to be proved. As regards the eye‑witnesses the learned trial Court held that the presence of Muhammad Hussain PW.9 at the spot was doubtful, being a resident of another chak he had no reason to be present at the spot. He was further held to have made dishonest improvements in his statement and suppressed the fact that he was a servant of the complainant. The presence of Muhammad P.W. 8 was also held to be doubtful and the statements of the eye-witnesses were found to be in conflict with the medical evidence. The F.I.R. was also found to be delayed. The recoveries of weapons of offence were also disbelieved on the ground that no person from the vicinity of the place of recoveries was produced by the prosecution. Manak PW.7 who testified to the recoveries was not found to be an impartial witness being a close relation of the deceased.

8. The plea raised by Umar Hayat appellant of having acted under grave and sudden provocation on seeing his sister in a compromising position with the deceased was accepted.

9. Learned counsel for the appellant contends that the appellant was entitled to a lesser sentence for having acted under grave and sudden provocation on finding his sister in a compromising position with the deceased in a sugarcane field. He further states that legally the appellant could not be convicted on the basis of his admission alone.

10. Learned counsel for the State submits that the ocular testimony had been wrongly discarded and that the eye‑witnesses had given a consistent account of occurrence. So far as the motive is concerned it was found to be proved by the trial Court, it is added.

11. The main thrust of the learned counsel for the appellant is on reduction of sentence. According to him even the case of the prosecution was that the deceased was maintaining illicit intimacy with the appellant's sister. The occurrence had taken place in the field at 1‑2.00 P.M. in the month of June when normally people relax and do not work. It was, therefore, probable that the deceased selected that hour and place for satisfying his lust. The presence of the eye witnesses could not be completely ruled out. They might not have been able to see Mst. Fattain running away but the other details furnished by them generally fit in with the medical evidence. The appellant was, therefore, rightly convicted but so far as the punishment is concerned I think that he is entitled to leniency for having acted under grave and sudden provocation on surprising the deceased in a compromising position with his sister. Accordingly I reduce the period of imprisonment to four years R.I. plus a fine of Rs.15,000 or in default to undergo one year R.I. with benefit of section 382‑B Cr.P.C. The fine, if recovered shall be paid to the heirs of the deceased as compensation. For the reasons discussed above the revision filed by Muhammad for conviction of the accused under section 302 P.P.C. fails and is dismissed accordingly. S.A./U‑34/L Sentence reduced.