1976 P Cr (PLP)

(1) The left side of lower portion of lower jaw and side of neck including a little on front was swollen and blue in an area of 5 ' x 4. (2) An incised wound with tails 1 x x muscle deep on the back of left ear. Its enterior no was just a line. There was bleeding frown, left ear. The injury was oblique in direction. (3) Abrasion with contusion 4' x 1' on the back of left lower jaw and side of neck. In its posterior region was an incised wound ' as 1/6" x skin deep. Ire line with it was a scratch 4' long obliquely horizontal in direction. (4) An abrasion with a straight one edge 3 x x ' with incised wound 3' x ' x skin and muscle deep on the top of area between root of neck (posterior edge) and shoulder on left side. It was oblique ill direction. (5) An incised wound with abrasion (one Edge) 6' x ' x partly skin deep and some area was just a line on the upper portion of back of left shoulder. (6) Scratch with abrasion (one edge clean and straight) with partly skin deep incised wound on the back of left shoulder oblique in direction. It was paralled to the injury No. 5, and ' below it. (7) An incised wound 6 ' x 1/6' x partly skin deep and one edge abraded on the back of left shoulder, almost parallel to injury No. 6. (b) An abrasion 1' x 1' on the back of left shoulder behind and below injuries No. 5, 6 and 7. (9) An abrasion 2' x 1 ' with one edge clean cut on the side of back of left shoulder. The structure in head and neck was healthy and congested. In thorax the pleurae were healthy but congested. The larynx and tracheae were healthy. There was no fracture of any bone and cartilage. The mucus membrane was greatly congested and swollen. it was covered with bloody mucus with froth. Both lungs were congested. There were areas of emphyseme and inflated lung with bullee formation. The heart was healthy. The right vide was full of dark blood. The left side contained less blood. The blood vessels of the neck were healthy. The carotids on left side were contused and showed extensive haemorrhage in the coats. In the opinion of the doctor, death had occurred due to suffocation on account of external pressure applied or, the front left side of neck (and probably by closure of Pips and nose) due to injury No. 1 which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was 3 to 7 minutes and that between 'death and post‑mortem within 36 hours.

5. The case of the prosecution mainly rests on the ocular account furnished by Saeed Ahmad, Muhammad Ali and Mst. Ghulam Zohran P. Ws. The prosecution also relied on the motive and the recovery of blood stained kassi at the instance of the appellant.

6. The appellant pleaded not guilty to the charge. He admitted having killed the deceased but gave a counter‑version of the occurrence follows :‑ "The prosecution witnesses are related to the deceased and Rashid Ahmad and they have deposed against me falsely. Rashid Ahmad, a relative of Mst. Sharifan deceased, had illicit connections with her. On the night of occurrence I found him in a compromising position with Mst. Sharifan deceased, wife of my brother Hanif. I was provoked and in a fit of grave acrd sudden provocation I ran to the cot. Rashid Ahmad fled away and in the fit of grave and sudden provocation attacked Mst. Sharifan and put her to death due to Ghairat. Mst. Zohran, Said and Muhammad Ali P. Ws. were not present there. I had attacked her with Kassi lying there, as a result of which site died."

7. The learned trial Judge believed the ocular account and found its corroboration in the motive and the medical evidence. He also believed the recovery of blood‑stained hatchet at the instance of the appellant, and on the basis of all these pieces of evidence found him guilty for the murder of Mst. Sharifan.

8. The learned counsel for the appellant contended that the presence of Saeed Ahmad complainant and Mst. Ghulam Zohran P. W. at the spot was extremely doubtful as both of them belonged to district Lyallpur while the occurrence had taken place at Chah Khichhianwala in Sahiwal district. He further argued that Muhammad Ali P. W. being a relative of Mst. Ghulam Zohran, mother of the deceased, was an interested witness, therefore, no reliance could be placed upon him. The prosecution version that the appellant had killed the deceased with Kassi blows was assailed on the ground that it was at variance with the medical evidence which shows that death had occurred due to suffocation. The veracity of the P. Ws. was also challenged on the ground that in the F. I. R. and at the trial the complainant had stated that the appellant had killed the deceased by inflicting Kassi blows on her left shoulder and neck, but the other two eye‑witnesses introduced gagging as the cause of death in order to bring their testimony in conformity with the medical evidence. It was further argued that the statement of the appellant that he killed the deceased by Kassi blows being in conflict with the medical evidence, was incorrect, therefore, he was entitled to acquittal,

9. We have given our careful consideration to the contentions raised by "the learned counsel for the appellant. No doubt, Saeed Ahmad Complainant and Mst. Ghulam Zohran P. W. were residents of district Lyallpur, but they had given a satisfactory explanation for their presence at the spot. According to them they had come to village Hoshnak Singh before the occurrence in order to participate in the marriage ceremony of the sister of shah nawaz P. W. Shah Sawar (P. W. 8) stated at the trial that he had invited his Biradari and relatives, including Saeed Ahmad, Mst. Ghulam Zohran P. Ws and Rashid Ahmad, on the marriage ceremony of his sisters. Shah Sawar P. W. is the husband of the s star of the deceased. Saeed Ahmad complainant is his brother‑in law anti Mst. Ghulam Zohran P. W. is his mother‑in‑law, therefore, in view of this close rela tionship, they were expected to participate in the marriage ceremony of his sisters. Even the appellant in his statement under section 342, Cr. P. C. admitted that Saeed Ahmad complainant and Mst. Ghulam Zohran P. W. had come to village Hoshnak Singh to join the marriage ceremony of the sisters of Shah Sawar. He further admitted that Rashid Ahmad had come to that village about seven days before the marriage. It is, therefore, fully established that Mst. Ghulam Zohran, Saeed Ahmad P. Ws. and Rashid Ahmad had come to village Hoshnak Sing h to join the marriage ceremony of the sisters of Shah Sawar. Mst. Sharifan deceased was residing in the same village at a short distance from the house of Shah Sawar After the marriage ceremony her brother Saeed Ahmad complainant and her mother Mst. Ghulam Zohran were expected to visit her and stay with him. The argument of the learned counsel for the appellant that the presence of Said Ahmad complainant and host. Ghulam Zohran at the spot was doubtful, therefore, does not carry any weight. Muhammad Ali P. W. was residing in the 1hata of occurrence, therefore, his presence at the spot at the time of occurrence was also natural. In the F. I. R. Saeed Ahmad complainant stated that he woke up on hearing the alarm and saw the appellant giving Kassi blows on the left shoulder and left side of neck of the deceased. At the trial, he stated that he saw the appellant giving Kassi blows to Mst. Sharifan without mentioning the parts of the body on which the Kassi blows were inflicted. Muhammad Ali P. W. stated that he saw the appellant gagging Mst. Sharifan with his one hand and giving Kassi blows to her with the other. Mst. Ghulam Zohran gave out that she saw the appellant giving Kassi blows to Mst. Sharifan and also gagging her mouth. It was contended that gagging was brought in after the post‑mortem report had been made available and Muhammad Ali and Mst. Ghulam Zohran had introduced gagging to bring their testimony in line with tire medical evidence. The post‑mortem examination was conducted on 8th September 1971 at 10 a.m. The Investigating Officer recorded the statements of the prosecution witnesses, including Mst. Ghulam Zohran, on the following day. The statement of Muhammad Ali T. W. was also recorded at the same time. The post‑mortem report was not available when these P. Ws. were examined by the police. There is nothing on the file to show that they had made improvements on their previous statements so as to introduce gagging at the trial. The fact, however, remains that in the F. I. R. it is not mentioned that the appellant had gagging the deceased. The appellant admitted having killed the deceased by Kassi blows. According to the medical evidence, the death occurred due to injury No. 1 which was described as "left side of lower portion of lower jaw and side of neck including a little on front was swollen and blue in an area of 5 ' x 4'. In the opinion of the doctor, death had occurred on account of suffocation due to external pressure applied on the front and left side of neck. and probably by closure of lips and nose. Gagging is not the only means for causing suffocation. A violent blow on the front of neck may also cause suffocation. According to Modi's Medical Jurisprudence and Toxicology, Thirteenth Edition, Page 268, "A forcible blow on the front of the neck may cause unconsciousness of even death by a reflex inhibitory action or by fracture self the larynx usually involved and the thyroid and nevoid cartilages. And consequent suffocation from haemorrhage or oedema of tree laryx." In the were vase, the carotids on left side were contused and showed extensive haemorrhage. The medical evidence in this case shows that it was a case of suffocation by haemorrhage resulting from a blow on the neck. In Lyon's Medical Jurisprudence, Eighth Edition at page 2:8 it is stated that "strangulation by compression of neck with a stick or other hard substance, is often met with in India". In view of the above, we do not find any conflict in the statement of the complainant and the medical evidence because a violent blow on the neck can cause suffocation resulting in death. For the carne mason, there is no conflict in the statement of the appellant and the medical evidence when be says that he caused the death of the deceased by Kassi blows. From the prosecution evidence and the statement of the appellant it is established beyond any shadow of doubt that it was the appellant who caused the death of the deceased by giving her blows with a Kassi.

10. There are two versions of the occurrence, one presented by the prosecution and the other pleaded by the appellant, and the only question that requires determination in this case is as to which of them is nearer to truth and more plausible. There is abundance of evidence on the file to show that Rashid Ahmad had come to village Hoshnak Singh in order to participate in the marriage ceremony of the sisters of Shah Sawar and this fact is also admitted by the appellant. The controversy. starts from the point of the alleged visit of Rashid Ahmad to the house of the deceased on the invitation extended to him by the. deceased. Rashid Ahmad (P. W. 9), Muhammad Ali (P. W. 10) and Mst. Ghulam Zohran (P. W. 11) stated that Rashid Ahmad was invited by the deceased and. her husband for evening meals. He came to take his evening meals at the house of the deceased and the appellant objected to his visit saying that Rashid was their enemy and why he had been invited. The deceased replied that his (Appellant's) brother had never prevented her from inviting Rashid Ahmad, therefore, be had no right to object to his visit, upon which the appellant got infuriated and threatened the deceased that he would teach her a lesson. However, the evidence on this point is inconsistent. In cross‑examination Saeed Ahmad complainant stated that the husband of the deceased "Hanif was also present at the time the meals were taken by Rashid Ahmad in the house of Mst. Sharifan. Hanif had uttered at that time that the relatives of his wife would visit him and that he would not prevent the visits of the relatives of Mst. Salma, wife of the accused." On the other hand, Muhammad Ali P. W. stated that "Hanif was not present at the time when this altercation had taken place in the house. He was at his Behk at a distance of one or It Killas from the house." In examination‑in‑chief the complainant further stated that "Muhammad Tufail further said that Rashid Ahmad alongwith others had taken out the eyes of Abdul Hassan, brother of the wife of accused (Muhammad Tufail), and so he should not have been invited." in cross‑examination he stated that "Muhammad Tufail accused did not under at that time that Rashid Ahmad and others had removed the eyes of the brother of his wife and so he should not have been invited". After this, there is a note of the learned trial Judge that when the witness was confronted with his statement in the examination‑in‑chief he again stated that the accused had stated so at that time. Similarly, in examination‑in‑chief Muhammad Ali (P. W. 10) stated that on hearing the noise of altercation between the accused and Mst. Sharifan deceased he proceeded there and "the accused stated that Rashid Ahmad was his enemy and why she had prepared meals .for swim.". He was confronted with his statement before the police where objection ,about the preparation of meals by the deceased was not mentioned. The witness further stated that the appellant had added that Rashid Ahmad had taken out the eye of his cousin Abdul Hassan. He was confirmed with his statement before the committing Magistrate: where this fact was not mentioned. In view of these discrepancies and contradictions in the statements of the prosecution witnesses, it is difficult to say that Rashid ,Ahmad P.W. had visits the house of the deceased for evening meals. The prosecution produced a copy of the F.I.R. (Exh. P. O.) which shows that a case under sections 325, 326, 307 and 392 read with section 34 of the Pakistan Penal Code was registered against aforesaid Rashid Ahmad at the instance of Abul Hassan. This Abul Hassan is the brother of the wife of the appellant while Rashid Ahmad is the son of the maternal uncle of the deceased. This shows that there was enmity between Abul Hassan and Rashid. In cross‑examination the complainant admitted that "Rashid Ahmad P. W. usually visits the house of Hanif". If this was the position them despite enquiry between Rashid Ahmad and Abdul Hassan; the appellant had apparently no reason to raise objection are visit to the house of Hanif on the day preceding the night of occurrence. hive conduct of Rashid Ahmad after the occurrence was very suspicious All the eye‑witnesses are unanimous that after taking the evening meals Rashid Ahmad left for the house of Shah Sawar P. W. Shah Sawar P.W. stated that after taking the meals Rashid Ahmad came lack to his place. He further stated ".Myself and Rashid Ahmad slept in my house. At about midnight we heard alarm. I alone proceeded towards that place but Rashid Ahmad remained asleep in my house. I found Mst. Sharifan lying murdered " Saeed Ahmad complainant stated that "Rashid Ahmad did not come at the time of occurrence or even afterwards when the people had gathered there'". Muhammad Ali P. W. stated that "Rashid Ahmad did not come there for the whole night". Mushtaq Hussain Shah Inves tigating Officer (P. W. 12) stated that he examined Rashid Ahmad on 14th September 1971. He further stated that a search was made for him but he was not available. Rashid Ahmad was very closely related to the deceased. He was the son of tier real maternal uncle and his mother was the real sister of the father of the deceased. If he had been sleeping at the house of Shah Sawar P. W. he roust have accompanied him to the spot on hearing the alarm, particularly when, according to the prosecution's own showing, he had cordial relations with the deceased and her husband. His disappearance from the village after the occurrence points to his guilty conscience and lends support to the plea of the appellant. The learned trial Judge was of the view that the disappearance of Rashid Ahmad was due to the fear of the appellant who had already committed the murder of Mst. Sharifan deceased. He observed that "Rashid Ahmad P. W. naturally disappeared to save his own life because the altercation had developed on account of invitation thrown by the deceased so him and he could have been the next target of the accused". We do not feel persuaded to agree with the above finding of the learned trial Judge. The appellant was arrested can the next day of the occurrence and after that Rashid Ahmad had no reason to entertain any apprehension at the hands of the appellant but we find that the police had to go in search for him and he was not available before the 14th of September 1971. The appellant stated that on the night of occurrence he found Rashid Ahmad in a compromising position with Mst. Sharifan deceased and in a fit of grave and sudden. provocation he ran to her cot but Rashid Ahmad fled away and he attacked the deceased. It goes without saying that the eye‑witnesses had awakened on hearing the shriek of the deceased and since they were sleeping before the actual assault on her, therefore, they could not see as to what had happened before the assault.

11. For all the foregoing reasons we feel inclined to the view that the possibility of the appellant having killed the deceased under grave and sudden provocation as alleged by him cannot he excluded. Consequently a as we alter his conviction from section 302 to section 304, (Part 1), P. P. C. and sentence him to three years' R. I. The sentence of fine is maintained. With this modification in the conviction and sentence, the appeal is dismissed. The death sentence is not confirmed. Order accordingly.