1997 P Cr (PLP)

5. Ch. War Iqbal, D.D.A. gave up Faiz Bukhsh, Talib Hussain and Mst. Naziran Mai P. Ws. as having been won-over by the accused. Rab Nawaz, Ashiq and Muhammad Yar P.Ws. were given up as unnecessary. He made the statement on the basis of application. He tendered in evidence report of the Chemical Examiner Exh. P.S., Exh. P.T., Exh. P.U. and Exh. P.V. and copy of Jamabandi Exh. P.W. and Exh. P.X and Exh. P.Y. and closed the case for the prosecution on 25-9-1991.

6. The accused was examined under section 342, Cr.P.C. In his statement he admitted that he doubted Mst. Parveen his sister of having illicit relations with Allah Dawaya. He denied that he gave injuries to Allah Dawaya deceased at Pulli Shankar Wali. He also denied that he had picked up the cycle of Allah Dawaya and rushed to his own house. He however, raised a plea of grave and sudden provocation. He stated that he gave injuries to Allah Dawaya and Mst. Parveen in his house when they were found lying together in objectionable condition, under grave and sudden provocation and that deaths were not caused intentionally. He, stated that he had voluntarily appeared before the police and had produced dagger P.6. He denied that any blood-stained earth was collected from Pulli Shankarwali and stated that as both the deceased were done to death in the house of the accused the blood-stained earth was collected from his house. He offered to make a statement under section 340(2), Cr.P.C. He also had stated that the police being in league with the complainant party made a case of grave and sudden provocation into a case of wilful murder by splitting up one occurrence into two occurrences. The accused appeared in the witness-box and made statement under section 340(2), Cr.P.C. on oath. He stated that on the day of occurrence he saw Mst. Parveen deceased his sister and Allah Dawaya were lying together on a cot. . He took up a Chhuri from the room and killed Mst. Parveen and Allah Dawaya as he could not control his passions. He did that on account of his family honour and under grave and sudden provocation. He appeared before the police alongwith the weapon of offence at the police station. The story of the prosecution was fabricated and the occurrence was also witnessed by his father. He produced Talib Hussain in his defence 'as D.W.1. He stated that during the days of occurrence he used to reside in village Saidanwali. He heard that murder had been committed in the house of Riaz accused. He went there. There were 30/35 persons present. He saw two dead bodies lying in the house of the accused, which were of Mst. Parveen and Allah Dawaya. Mst. Parveen was the sister of the accused. Police took blood-stained earth from underneath the dead bodies and they also got his thumb-impression at police station. The accused had not picked up any cycle from his shop at the time of occurrence. He did not own any cycle shop nor he gave any cycle to Allah Dawaya deceased on that day. He was illiterate and had not produced any register regarding any hire of cycle to the police. During the cross-examination he denied that register P.13 belonged to him and that he produced the same before the police. He denied the suggestion that both the deceased were not done to death in the house of the accused or that Allah Dawaya was done to death at Pull! Shankarwali. Muhammad Muzammal D. W.2 stated that Riaz accused was their tenant during the days of occurrence. He owned land at Chah Marriwala where the accused and his father Faiz Bukhsh and other family members resided. He went to the house of father of the accused at about 9/10 a.m. some 3/4 years ago where he saw police in the house of Faiz Bukhsh and two dead bodies of Allah Dawaya and Mst. Parveen in the said house. The police took into possession blood-stained earth from under both the dead bodies. Talib Hussain P.W. was also present. The police recorded his statement and got his signatures. He came to know at the spot that the accused had murdered both the deceased in his house under grave and sudden provocation.

5. I have heard the learned counsel for the appellant, learned counsel for the State and learned counsel appearing on behalf of the complainant.

6. It was contended by the learned counsel for the appellant that the alleged, eye-witnesses were related inter se. Rahim Bukhsh P.W.6 was the father of the deceased. The younger brother of Rab Nawaz P. W was married to the daughter of P.W.6 i.e. the sister of the deceased. P.W.5 Sarfraz was the maternal-uncle whereas Hakimuddin P.W.4 admitted that he was close friend of the father of the deceased since after partition. They were on mutual visiting terms and participating in all occasions of happiness and demises. Sardar Bukhsh P.W.2 was the cousin of the mother of the deceased and Khan Muhammad also was closely related. He further contended that motive as set up in the F.I.R. Exh. P.K. was abundoned by P.W.6 while appearing in Court. In Exh. P.K. he had stated that the accused had suspected both the deceased to be carrying on whereas in his statement P.W.6 had stated that his son was done to death due to pigeons fight and the accused had murdered his sister only to save himself. No independent evidence was collected by-the Investigating Officer who conducted the investigation in a mala fide manner and had wrongly shown the place of presence of dead body of Allah Dawaya at Pulli Shankarwali. The facts of the case had clearly shown that it was a case of grave and sudden provocation and that the accused had vindicated his family honour by doing to death both of the deceased who had brought disgrace to his family and that it was in the heat of passion that the accused was deprived of his self-control who was young man and that the offence under section 302, P.P.C. was not made out. Learned counsel for the State and the learned counsel for the complainant however, supported the impugned conviction and stated that the number of injuries on the person of both the deceased clearly indicate that the accused, even if single occurrence be admitted, had sufficient time, to collect himself and that the intention to cause death could be inferred from number of injuries and weapon used by the accused.

7. I have given my anxious consideration to the facts of the case and the points of law raised at the bar. -

8. The place of residence of the accused was Chah Marriwala. The first informant and the deceased also belonged to Chah Marriwala whereas Rab Nawaz P.W. was resident of Syedwala. Sarfraz P.W. was resident of Syedwala and Hakimuddin was resident of Sunarwala Mouzia Neel Kot as mentioned in Exh. P.K. Rab Nawaz was given up. All the. P.Ws. were stated present at bus stop of Pulli Shankarwali where they were waiting for the bus. Rahim Bukhsh was also with them. When they saw the accused giving dagger blows to Allah Dawaya deceased, the P. Ws. were at a distance of about 40/50 Karams from the place of occurrence as stated by P.W.5 whereas distance between the place of occurrence and the presence of the P.Ws: was 17/18 Karams according to P.W.5 and according to P.W.6 the distance was .of about 35/40 Karams. It was admitted by the P.Ws. that the Pulli where they were standing had a few shops and there were also shops between Pulli Shankarwali and the place where they had been standing. None of the residents of Syidanwala, shopkeepers of the bus stop and the others whose shops were scattered around had allegedly seen the occurrence at Pulli Shankarwali. All the four witnesses of the alleged occurrence at Pulli Shankarwali were not supposed to be there in the ordinary course and the contention of the learned counsel for the appellant that they were all chance witnesses even if they be believed to have seen occurrence, and therefore, were not reliable as also they were the interested witnesses.

9. The second part of the occurrence as stated by the prosecution if seen in context of narration of first occurrence appears to be absolutely not plausible. P.W.4, P.W.5 and P.W.6 had admitted that the accused had given blows to Allah Dawaya in their presence while they were at a distance of 20/25/30 Karams from him and that they did not attempt to separate the accused and the deceased out of fear of injuries. P.W.4 and P.W.5, as alleged by them, followed the accused. It is not understandable as to why they opted to chase the accused who was still armed with a dagger while all the three had not dared earlier to intervene or to go near the accused. It would require a fool to believe that four P.Ws. closely knitted together, of whom three were very closely related to the deceased, did not try to overpower the accused while he was giving injuries to Allah Dawaya. The number of injuries on the person of Allah Dawaya suggests that the accused took some time inflicting those injuries. The closely related P.Ws. who did not dare to save their own kin could not be expected to follow the accused to witness the occurrence in the house of the accused himself, simply on the ground that the accused had exclaimed that he was going to teach the lesson of his "Kunjari" sister who was having illicit relations with Allah Dawaya. The narration of the occurrence of causing of injuries to Allah Dawaya and then following the accused by three P.Ws. to his house while he was armed with a .blood-stained dagger was not probable even. The normal human behaviour for the close relation of the deceased Allah Dawaya was to care for his life, look after him and to lift him for some medical aid or at least to be present by his side while he was dying instead of opting to witness yet another occurrence with regard to a lady who was not related to them in any case. P.W.4, P.W.5 and P.W.6 were not natural witnesses of the alleged occurrence at Pulli Shankarwali, the conduct of Rab Nawaz P.W. Hakimuddin P.W.4 and Sarfraz P.W.5 in following the accused to his house and never attempting to apprehend him was inexplicable and only conclusion that could be drawn in the circumstances was that none of the 4 persons had seen any of the alleged occurrences. They are closely related inter .se and Hamiduddin P.W.4 had admitted very close terms with the father of the deceased and as such they are not only chance witnesses but are interested against the accused and to ensure his conviction they opted to have seen an occurrence some 2/2-1/2 miles away from Pulli Shankarwali. All the three P.Ws. are not deposing the truth and are therefore, disbelieved. The occurrence did not take place as narrated by the aforesaid three P.Ws.

10. The Investigating Officer had allegedly taken into possession Register P.8 and Cycle P.9 from Talib Hussain who was named as prosecution witness. Talib Hussain appeared in Court and denied that he ever produced P.8 and P.9. He stated that he was an illiterate man and was not running any shop for giving on hire the cycles to the intending users. I have seen Exh. P.J., which states that Talib Hussain aforesaid had produced P.8 and P.9 but he was not made a witness to the recovery memo. The witnesses of recovery memos. are one Ashiq resident of Basti Sharif Pura, Multan and Khan Muhammad P.W.3 who was resident of Hasan Abad, Multan. None of the witnesses of recovery memos. belonged to the place where P.8 and P.9 were produced. The fact that Talib Hussain was not made a witness of recovery memo. and subsequently was given up as having been won-over sufficiently suggests and I have reason to presume that, if produced, he would not have supported the prosecution case. Similarly the memo. of recovery of cycle P.7, Exh. P.H. was also witnessed by Khan Muhammad P.W.3 and Ashiq aforesaid. The accused, while in police custody, had allegedly got recovered P.7 from his house. He was interrogated before. He led to the recovery. Similarly Dagger P.6 was allegedly got recovered by the accused while in police custody from a Bhana in his house. Ashiq and Khan Muhammad were the witnesses of both these recovery memos. Both the P.Ws. were not residents of the locality and the Investigating Officer has not explained as to why he did not join the respectable residents of the locality and as to what compelled him to deviate from the mandatory provision of section 103, Cr.P.C. The proceedings of the recovery being violative of mandatory provisions are shady and I disbelieve the prosecution evidence to the extent of recovery of dagger P.6 and cycle P.7. Talib Hussain who allegedly produced P.8 and P.9 appeared as D.W.1 and contradicted the prosecution story. He was an independent witness. There was no reason to disbelieve him as against those witnesses who were the relatives of the deceased and were not residents of the locality.

11. Having disbelieved the eye-witnesses' account as given by P.W.4 and P.W.5 of both the alleged occurrences and of P.W.6 regarding occurrence of Pulli Shankarwali and disbelieving the recovery of P.6, P.7, P.8 and P.9 as described by P.W.3 and the Investigating Officer I have left only with the prosecution evidence of recovery of blood-stained earth from Pulli Shankarwali and from the house of the accused. The recovery memo. are Exhs. P.C. and P.D. respectively. The marginal witnesses to these recovery memos. are Ashiq P.W. (not produced) and Sardar Bukhsh P.W.2. Sardar Bukhsh P.W.2 had admitted in the cross-examination that:-- "I reside in Hasan Abad situated at 6/7 miles from the place where Allah Dawaya was murdered and the blood-stained earth was collected. The place where Parveen was murdered and blood-stained earth was secured is about 8 miles from my residence." None of the marginal witnesses was resident of the locality from where the blood-stained earth was collected. Sardar Bukhsh P.W.2'was informed about the occurrence by one Yasin who was resident of a village 7 milts away from his place of residence and who was not related to Allah Dawaya, his cousin's son. He was informed at about 7-15' a.m. and that he reached at Pulli Shankarwali where the dead body was lying and the police had not yet arrived. He admitted that about 20/25 persons were present there and that 10/15 persons were present in the house of Mst. Parveen deceased. None of those persons who were present at the place of occurrence, wherefrom the blood-stained earth was collected, was not made to witness the recovery memo. The Investigating Officer admits that many persons were collected at both the places but it is evident that he did not join any of the residents of the Abadi, where the occurrence allegedly took place. The version of the prosecution is not supported by the natural witnesses who could be presumed to be present at the time of collecting and securing of blood-stained earth at two places. P.W.2 Sardar Bukhsh was admittedly a close relation of the deceased. I disbelieve this part of the investigation also and I am of the view that the prosecution has failed to prove that blood-stained earth was collected from Pulli Shankarwali and from the house of the accused, which was two miles away from each other.

12. Having disbelieved the prosecution version to the extent of investigation and securing the blood-stained from the two places I am left with the defence version of the accused. It is admitted by Muhammad Wazir, S.-I./S.H.O. P.W.12, who had investigated the case and had arrested the accused on the very day of occurrence, that the accused at the time of arrest, had come out with his own version and the first version of the accused was that he had committed the murder of Allah Dawaya and his sister Mst. Parveen to vindicate the family honour both of them were found in objectionable condition.

13. In cases where the accused takes plea in his own defence the Court is to appreciate the evidence of the prosecution produced at the trial and place the defence plea in juxtaposition of the prosecution case and see which of the two was more plausible.

14. Before proceedings to come to the conclusion which of the two versions was more plausible I am to record that the prosecution in all cases was supposed to stand on its own legs. In a case where the accused takes version in defence he still remains most favourite child of law and the prosecution is not exonerated from the onus to prove the prosecution story beyond all reasonable doubt. In the present case .the prosecution as observed ibid failed to prove its case through independent and disinterested witnesses. The version regarding two occurrences was inexplicable and especially so when P.W.6 abundonad the motive as set up in his first statement before the police i.e. Exh. P.K. It is not necessary to hold an accused not guilty of such an offence in the absence of a motive but where the motive was set up it was the duty of the prosecution to prove it and the precedents of the superior Courts are innumerable in this behalf. In the present case the position is worst for the prosecution. The motive was set up at the first instance but then it was absolutely disowned and that too without a reason. The first informant P. W.6- was aware of the fact that the accused would, in the circumstances of the case, gain some support from the defence plea and therefore, the motive as set up was discarded. The attitude of P.W.6 in discarding the motive earlier set up by him indicates mala fides on his part. Khan Muhammad P.W.3, Hakimuddin P.W.4 and Sarfraz P.W.5 had made improvements upon their previous statements. They were duly confronted with Exh. D.A., Exh. P.B. and Exh. D.C. P.W.6 was also confronted with Exh. P.K. regarding the improvements etc. The fact that the prosecution witnesses made improvement over their previous statements lends me support in concluding that the witnesses were withholding the truth. The prosecution story when put in juxtaposition to the version of the defence loses its veracity and probability of its being true in the circumstances of the case.

15. In view what has been stated above I have to see as to what offence has been committed by the appellant according to his own version if believed in entirety. Exception 1 to section 300, P.P.C. reads as under:-- Exception 1: When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. " Provisos 1, 2 and 3 are not applicable in the present case however, explanation is important for the determination of liability in the present case. It reads as under:-- "Explanation.

Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."

16. The facts as narrated by the prosecution have been disbelieved. The accused had not only caused the death of Allah Dawaya but also the death of his real sister Mst. Parveen. The swabs taken from the penis of Allah Dawaya deceased had shown that they were stained with semens. The swabs taken from the vagina of Mst. Parveen were found negative but I am of the view in our society only sexual intercourse was not the only cause to provoke a brother to cause culpable homicide. It was sufficient in the circumstances of the case for a younger brother to get provoked and to be deprived of power of self-control. In the rural society family honour was-of prime importance and lying together in a cot was sufficient to provoke the accused and deprive him of his self-control and in the circumstances I am of the view that the conviction of the appellant under section 302, P.P.C. was not justified. His conviction under section 302, P.P.C. by the trial Court is, therefore converted into one under section 304, Part I, P. P. C. 117 Coming to the quantum of punishment I take due notice of the number of injuries on the person of both the deceased. The appellant is, therefore, awarded maximum sentence of imprisonment of 10 years on two counts. It is noteworthy that sentences awarded by the trial Court were ordered to run concurrently. The sentence therefore, on both the counts shall run concurrently and the appellant is declared entitled to the benefit of section 382-B, Cr.P.C. The appellant shall also pay fine of Rs.2,000 under each count and in case the fine be not recovered the appellant shall undergo further R.I. for 3 months on each count.

18. The appellant is further declared to be entitled to all concessions won by him so far during his incarceration in jail. He shall be released by the jail authorities on the completion of sentences mentioned aforesaid.

19. The jail authorities shall release the appellant on the completion of the sentences mentioned above if not required to be detained in any other case.

20. The appeal is accordingly dismissed with the above modifications. N.H.Q./R-17/L Order accordingly.