1976 P Cr (PLP)

The motive given in the F. I. R. was that Karim Bakhsh appellant suspected illicit liaison between Wahid Bakhsh deceased and sister of the appellant named Mst. Rajan. It was on account of that grievance that the appellant caused hatchet blows to the deceased which resulted in his death. Muhammad Saeed (P. W. 12), who was then posted as A S. I. at the Police Station, Mailsi, after recording the F. I. R. at the Police Station, went to the spot where be prepared the inquest report and injury statement of the deceased and sent his dead body to the mortuary for autopsy. He secured blood‑stained earth from the spot, vide memo. Exh. P. E. On the following day the Investigating Officer arrested the appellant who while in custody led the police to the recovery of blood stained hatchet (P. 1) from near his residential house where it was lying in a sarkanda bush and secured it, vide memo Exh. P. F. The Investigating Officer also took into possession the last worn clothes of the, deceased. He got prepared the site plan. After completion of investigation the appellant was challaned in Court.

3. Dr. Muhammad Aslam (P. W. 13), conducted post‑mortem examin ation on the dead body of Wahid Bakhsh deceased, aged 25 years, on 15‑6-1973 at 5 p.m. when he recorded two incised wounds on his dead body. Injury No. 1 was an incised wound on the back half of the right side of the lower jaw and adjoining part of the neck while injury No. 2 was also an incised wound on the right side of the neck below the back and of injury No.

1. On dissection he deposed that the stomach was full of half‑digested food and the bladder contained 8 ounces of urine. Both the injuries were ante‑mortem caused with a sharp‑edged weapon but injury No. 1 was fatal individually. In the opinion of the doctor death had been caused due to bleeding from the vessels of the neck which injury was sufficient to cause death in the ordinary course of nature. The doctor deposed that the deceased died instantaneously while 24 hours elapsed between death and post‑mortem examination. He was re‑called at the trial and was cross‑examined by the defence counsel to explore the point of time of death of the deceased.

4. At the trial the prosecution examined 13 witness in all including the doctor who had conducted the post‑mortem examination. Faiz Bakhsh complainant (P. W. 7), Allah Wasaya (P. W. 8) and Allah Yar (P. W. 3) were examined as eye‑witnesses and also gave the motive. The recoveries of blood‑stained earth from the spot and of blood‑stained hatchet at the instance of the appellant were proved by Manzoor Ahmad (P. W. 5), Muhammad Murad (P. W. 6) and the Investigating Officer, Muhammad Saeed A. S. I. (P. W. 12). Other formal witnesses were also examined. 'They all supported the prosecution case. The statement of Dr. Muhammad Aslam before the committing Magistrate was transferred to the Sessions record and he was recalled at the trial when the learned counsel for the appellant cross‑examined him. According to the report of the Serologist the earth recovered from the spot and scrapping from the hatchet of the appellant were found stained with human blood which report does not appear to have been exhibited.

5. The appellant pleaded not guilty to the charge. When examined under section 342, Cr. P.C. he denied the allegations of the prosecution; also denied the recovery of hatchet at his instance and the motive alleged against him. The appellant gave his own version of the occurrence which 13 reproduced below:‑ "The case is false and the witnesses have deposed falsely. The facts are that on the day of occurrence, at Isha time, I went to get bundle of fire wood which I had left earlier in the day in the We bushes on the bank of the river, I was carrying a hatchet in my hand as usual. On my way back, I found my sister and the deceased together in an indecent and compromising position. I became blind with rage and lost my self‑control and gave blows to the deceased. In tae meantime my sister escaped."

6. The learned trial Judge believed the ocular evidence and after Going through the medical evidence and the statement of the appellant tic arrived at the conclusion that although the appellant appeared to have had entertained the suspicion that the deceased had developed illicit liaison with the sister of the appellant and killed the deceased under that suspicion as reported in the F. I. R. yet the appellant was guilty of offence under section 302, P. P. C. and sentence him as aforementioned. The learned counsel for the appellant argued that the evidence of prosecution was suspect; the ocular evidence could not be relied upon because their testimony was contradictory inter se the eye‑witnesses and was also contradictory against their statements before the Committing Magistrate and in the F. I. R., that the conduct of the three eye‑witnesses including one real brother of the deceased not to intervene to rescue the deceased although each one of the eye‑witnesses was armed with a kassi made the presence of the eye‑witnesses at the spot at the time of occurrence improbable ; and that because of discrepancies and improvements in their testimony the eye‑witnesses were liars, their presence at the spot at the time of occurrence was doubtful and they did not witness the occurrence. Lastly, he argued that in the circumstances of the case the plea of the appellant that he committed the offence under grave and sudden provocation having lost self‑control after seeing the deceased in compromising position with the sister of the appellant at about Isha time be believed. The learned counsel for the State submitted that the conviction and sentences of the appellant awarded by the learned trial Judge be maintained for the cogent reasons given by him.

7. I have been taken through the entire evidence which I have perused and considered in the light of the submissions of the learned counsel for the parties. It is a common ground that the deceased died of violence as a result of sharp weapon injuries. The real and only point for determination in this case is as to whether the prosecution has successfully proved its version of that the defence version is probable or not. The prosecution examined Faiz Bakhsh, Allah Wasaya and Allah Yar as eye witnesses out of whom Faiz Bakhsh complainant was the real brother of the deceased but the remaining two eye‑witnesses were not related with the deceas ed. It is in evidence that about a year before the occurrence father of the appellant had brought a case under section 377, P. P. C. against the deceased but it did not succeed. It is undisputed that the deceased and all the three eve‑witnesses were employees of Muhammad Murad P. W. according to the prosecution evidence. The complainant deposed at the trial that he and his brother were collaterals of the appellant being descendants of common grand‑father and further admitted the enmity aforementioned. It was the complainant who lodged the F. I. R. in which he gave the solitary motive as suspicion of the appellant about illicit liaison of the deceased with his sister but at the trial the complainant went back to deny such a suspicion although the other two eye‑witnesses admitted that the appellant did suspect illicit liaison between the deceased and his sister. The testimony of the eye‑witnesses contained discrepancies and improvements which were noticed but were wrongly treated by the trial Court to be insignificant particularly in the background of some enmity between the complainant and the deceased and ail the eye‑witnesses alongwith the deceased being employees of the same landlord, Muhammad Murad, Lambardar P. W. According, to the complainant and Muhammad Murad P. W. immediately after the occurrence which took place on 14‑6‑1973 at degarwela of the day the complainant left for the Police Station in the Jeep belonging to and borrowed from Muhammad Murad, Lambardar P. W. and travelled by canal service road to reach the ‑Police Station, Mailsi after covering 12 miles which fact was contradicted by Allah Wasaya P. W., an eye‑witness, according to whom the complainant travelled by a hired tongs while according to the Investigating Officer, Muhammad Saeed, A. S. I. P. W., he borrowed a Jeep landlord at Mailsi and travelled by it from Mailsi to the spot. The learned trial Judge observed that degawela time on 14‑6‑1973 was about 7 p. m. but on consulting Calendar I find that sunset time at Lahore on 14‑6‑1973 was 7‑10 p. m. and at the spot it would be about 7‑20 pm. Evidently, the learned trial Judge was wrong in considering the degarwela time on that day as 7 p m. It is to point out that in villages and in areas like the spot people call degarwela and Jhikki degarwela when Jhikki degarwela time is after degarwela but before the sunset. The medical evidence showed that there was semi‑digested food in the stomach of the deceased and I do not agree with the learned trial Judge that positively it was the food taken earlier in the day by the deceased which was found in his stomach. It is probable that the semi‑digested food in the stomach of the deceased was the food taken in the evening. It is claimed that the complainant was having round of the field to find out if it was fit for sowing while the other two eye‑witnesses were at the fields right from 6 4, m. of the day of occurrence busy in irrigating their respective fields. According to the eye‑witnesses they were employees working in the fields belonging to Muhammad Murad P. W. No evidence was led to show that any of the eye‑witnesses including the complainant was employed at the fields where they claimed to be at the time of occurrence although the landlord, Muhammad Murad P. W., was examined as a recovery witness alone. Again no evidence was led to show that it was the turn of water for irrigating the fields in which the eye‑witnesses were working. There appears delay in the despatch of dead body from the spot because post mortem examination was contended on 15‑6‑1973 at 5 p. m. although prosecution claimed to have despatched the dead body to the mortuary on trolley tractor on the night of the same day of occurrence. On the evidence on record and in the circumstances of the case, I am of the view that none of the eye-witnesses was present at the spot at the time of occurrence and the prosecution version was made out against the appellant on account of mere suspicion also because the F. I. R. appears to have been lodged with a delay which time was availed of for deliberation and consultation because if the complainant had travelled by a Jeep of Muhammad Murad P. W. before sunset as claimed by him F. I. R. would h Ave been lodged at the Police Station by 6 or 7 p. m.

8. The prosecution having failed to prove the guilt of the appellant I am left with the defence version alone which appears probable. It is a common ground that the deceased was suspected of illicit liaison with Mst. Rajan, sister of the appellant and tile complainant for about a year prior to the occurrence but no immediate cause of occurrence was given by the prosecution which remained shrouded in mystery, it is an established principle of law that the defence version has to be accepted or rejected as a whole. The appellant admitted having caused the murder of the deceased on losing self‑control on account of grave anti sudden provocation after seeing the deceased in compromising position with they sister of the appellant at about Isha time. I am of the view that his case is covered by Exception I to section 300, P. P. C. and the appellant is liable for conviction under section 304, Part I, P. P. C.

9. As a result of above discussion, the conviction of the appellant is altered from section 302, P. P. C. to section 304, Part 1, P. P. C. and his sentence is reduced to rigorous imprisonment for seven years and the fine imposed on him by the learned trial Judge is reduced to Rs. 500 or in default of its payment to further undergo R. I. for six months. With this modification, the appeal is dismissed. Appeal dismissed.