1985P Cr (PLP)

4. Head Constable Khuda Bakhah (P.W.12) after registering the case proceeded to the spot. Reaching there he prepared the inquest report Exh. P. N. and sent the dead body for post‑mortem examination under police escort. He arrested both the appellants on 8‑12‑1976. Dilloo produced blood‑stained hatchet P.5 and Faqiroo produced blood stained Dang P.6 at the time of their arrest which were sealed and secured under separate memos. Exh. P.G. and Exh. P.H. respectively. Blood‑stained shirt P.7, Lungi P.8 of Dilloo and blood‑stained shirt P.9 and Chaddar P.10 of Faqiroo were removed from their persons and seized under memos. Exh. P.J. and Exh. P.K. He got site plan Exh. P.E. prepared from Manzoor Ahmad, Patwari (P.W.7). Hatchet P.5 and stick P.6 and clothes P.7 to P.10 were found as stained with human blood vide Chemical Examiner's report Exh. P.O. and that of Serologist Exh. P.Q. After completing usual investigation the appellants were challaned to Court.

5. Dr. Hasnain Pitafi (P.W.1) who performed autopsy on the dead body of the deceased noted following injuries:‑ (1) An incised wound 9 x 4" x brain cut on back of middle of head starting from just in front of middle of head going backward and downward ending above the lower part of back of skull. (2) A contusion 3" x 1" on anterior side of middle of head above forehead. (3) A contusion 2" x on right side of forehead 1" above right eye‑brow. (4) Contusion 2 x on back of neck.

6. In the opinion of the doctor the injuries were ante‑mortem. Injury No.1 was caused with sharp‑edged weapon and rest with blunt weapon. Injury No.1 was found to be fatal and sufficient to cause death in ordinary course of nature. Duration between infliction of injuries and the death was 10/20 minutes and between death and post‑mortem examination 16‑18 hours. According to the doctor injuries No.2 to 4 could be caused with wrong side of a hatchet and injury No. 1 with its right side.

7. Prosecution relied on the ocular testimony furnished by Wazir Hussain (P.W.10) and Nazar Hussain (P.W.11); incriminating recoveries deposed to by Allah Ditta (P.W.9) and the Investigating Officer (P.W.12); motive as narrated by Wazir Hussain P.W. and the medical evidence. In his statement under section 342, Cr.P.C. Faqiroo appellant denied his presence and participation in the occurrence, wheres Dilloo appellant pleaded to have caused death of the deceased under impulse of grave and sudden provocation in the following words:‑ "The occurrence took place in this manner that on the day of occurrence at about Maghrib time, I was present at Bazar. It was open at that time. Allah Rakha deceased came there and taunted me by calling me a bad character, catamite and Beghairat. Prior to this occurrence I had been declared Kala by my Brathery and a case under section 302, P.P.C. has been registered in which the alleged motive was that I had illicit relations with a woman. Therefore, I was keeping a hatchet at that time with me for my self‑protection. I produced copy of that F.I.R. marked D.C. I was provoked by the taunt of the deceased and‑acting under grave and sudden provocation I used my hatchet with right and blunt side in the heat of passion " No witness was examined in defence except that a certified copy Exh.D.C. of F.I.R. 268, dated 15‑11‑1976 under section 302, P.P.C. registered at Police Station Rojhan was produced to show that Mat. Giran Naz was murdered by her husband Nauzani for she was "Kalil' (adulteress) with Dilloo appellant so fearing attack on him by Mst. Giran Naz'z relations, the appellant was carrying hatchet for self‑protection.

8. Learned trial Judge considering material on record held that although motive was weak, but this weakness had paled into insignificance in view of ocular testimony of Wazir and Nazar Hussain P.Ws. Relying on their evidence coupled with the medical evidence and the incriminating recoveries, he found both the appellants responsible for killing Allah Rakha Shah deceased; but refrained from exacting capital sentence on them as according to him the incident took place all of a sudden on chance meeting and without there being any evidence as to "how the occurrence started".

9. I have heard learned counsel for the appellants and the State and also perused the record, with their assistance.

10. Wazir Hussain (P.W.10), brother of the deceased, while explaining motive stated that they were in possession of a plot adjacent to their house from the time of their forefathers and have raised wall thereon some 20 years ago but Dilloo appellant, who lived 3J acres away from their house started laying claim on that plot for the last 4/5 years. However, there had been neither any fight nor any proceedings (litiga tion) between them over it and the parties lived peacefully. In the circumstances it is not believable that this old and stale dispute of Plot had impelled the appellants to waylay and kill the deceased. Nobody knows, what preceded between the deceased and the accused immediately before the attack. Wazir Hussain Shah P.W. tried to supply the omission by saying that when he challenged the assailants, Dilloo appellant shouted that he had taken revenge from the deceased for not vacating his land. Had this been the reason then Wazir Hussain (P.W.10), who lived with the deceased in the same house and was equally to blame for not vacating the plot also would have not been spared being available at hand. I would, therefore, hold that motive for offence is a mystry in this case.

11. Of the two eye‑witnesses, Wazir Hussain is real brother of Allah Rakha Shah deceased and Nazar Hussain is from his brotherhood. The occurrence took place at evening time in the bazaar of the village. Both the eye‑witnesses lived at distance of one to two furlongs away from the spot. They claimed to have met each other in the bazaar by chance and went to Shabbir's hotel for taking tea, where the deceased was already sitting and just after their arrival he left the hotel and immediately after his departure they heard alarm, and coming out of the hotel (as stated in F.I.R.) they saw the appellants dealing blows to the deceased. According to them there are 50/60 shops in the bazaar, which were closed before the time of occurrence. Nobody from the passersby stopped there and none from the hotel of Shabbir came there either. Wazir Hussain P.W. stated that he had placed order for tea but according to Nazar Hussain P.W. the table‑boy told him that Shabbir would serve them tea on his return. Admittedly the witnesses met each other per chance and made a programme to take tea. It was again a coincidence that they visited Shabbir's hotel just near the place where the deceased was attacked and killed 2/3 minutes after their arrival. If all the shops in the bazaar had closed before the occurrence and the people in the village had gone indoors then it is not believable that Shabbir's hotel was open at the relevant time. The Investigating Officer stated that the table‑boy of Shabbir's hotel did not verify the occurrence. It may be noted that the place of occurrence is 7/8 Karams away from his hotel. Had the occurrence taken place while Shabbir's hotel was open, then it would be unimaginable that the table‑boy of that hotel remained unaware of the occurrence. Again if the appellants had planned to kill the deceased, then the appellants seeing Shabbir's hotel open would have allowed the deceased to go another 40/50 Karams away from there and then attacked him. Further more, Nazar Hussain P.W. stated that he was examined at Isha prayers' time although H.C. Khuda Bakhsh reached the spot within minutes of the occurrence. Isha prayers is normally said 1 hours after Maghrib prayers. In these circumstances, I find that neither Shabbir's hotel was open nor the eye‑witnesses were present there at the time of occurrence. Their claim of having seen the occurrence is further belied by the medical evidence. According to the eye‑witnesses, Dillo, appellant gave hatchet "blows" to the deceased but the doctor found only one injury caused with sharp‑edged weapon on his person and remaining three were the result of blunt weapon attributable to Faqiroo, appellant, who was armed with a stick. It is also not believable that Dilloo who was directly aggrieved of the behaviour of the deceased rest contended by giving only one blow and his cousin Faqiroo who had no motive whatsoever would cause 4 injuries. For all these reasons I find it difficult to accept Wazir Hussain and Nazar Hussain P.Ws. as eye witnesses of the occurrence and their testimony is not of the quality to provide safe basis for conviction of the appellants on capital charge.

12. As for incriminating recoveries, they are of no help so far as Dilloo's case is concerned because he has admitted his participation pleading grave and sudden provocation. Regarding Faqiroo, tae prosecution story that blood‑stained clothes and the weapons of offence were produced by him voluntarily on the following day of occurrence before the Investigating Officer is not believable. It does not sound to reason that this appellant was carrying tell‑tale articles till second day of the occurrence and without washing off the blood from those articles would hand them over to the police. I am not, therefore, prepared to rely these recoveries against Faqiroo, appellant.

13. After discarding the prosecution evidence there remains Dilloo's statement in the field, which is to be accepted as a whole unless some part of it is found palpably false. The next question which arises for determination is, whether the deceased by calling Dilloo "a bad character catamite and a Beghairat" caused to the appellant grave and sudden D provocation. To answer the question, the appellant's occupation, age and social set‑up in which he lived have to be considered. Dilloo, appellant, belongs to Gerani branch of a Baloch tribe from the interior of district D.G. Khan, which has the influence of customs prevailing in Baluchistan Province being contiguous to that part of the country. In a case decided by Baluchistan High Court reported as Bahawal Khan v. Crown P L D 1953 Bal. 7, the accused who shot dead the deceased on being taunted by him as "catamite" was held to have acted under grave and sudden provocation and the offence committed was held to be one of culpable homicide not amounting to murder. In another case Muhammad Hayat v. The State P L D 1977 Lah. 222, the accused stabbed the deceased who cut a dirty joke with him and was convicted by the trial Court under section 304, P.P.C. and sentenced to 10 years' R.I. On appeal a learned Judge of this Court observing;‑‑ "It will be not unsafe to presume that the dirty joke must have caused extreme annoyance to the appellant which had resulted in the loss of self‑control because the attack had been sudden." reduced the sentence from 10 years to 7 years. These precedents are applicable on all fours to the facts of the case in hand. The injuries found on the person of the, decease can be caused with blunt as well as sharp sides of hatchet, as admitted by the doctor. I would, therefore, E 4old that Dilloo, appellant, on being called as "catamite" and "Beghairat" lost self‑control and under fit of grave and sudden provocation attacked with right and wrong sides of the hatchet and killed him. Consequently, accepting the appeal, conviction and sentence of Faqiroo, appellant, is set aside and he is acquitted. He is on bail. He is discharged of his bail‑bonds. The conviction of Dilloo, appellant, is altered from section 302, Part‑I, P.P.C. and his sentence is reduced to 10 years' rigorous imprisonment. It is further directed that benefit of section 382‑B, Cr.P.C. shall be allowed to him while computing his sentence of imprisonment. Dilloo, appellant, is on bail. His bail is cancelled. He shall be taken in custody and sent to jail to serve out the remaining part of his sentence. The trial Court shall take necessary steps for committing Dilloo, appellant, to jail, as directed. M. A. K. Order accordingly.