1993 PLP 546 (MLD)

3. The prosecution had examined 9 P.Ws. in all to substantiate its case. P.W.1 Ata Muhammad constable had escorted the dead body of the deceased to the mortuary from the police station and after post-mortem examination he had produced last worn clothes of the deceased namely, shirt P.1, Shalwar P.2 alongwith a sealed packet of pellets before P.W.9 Shaukat Ali, S.H.O. who secured the same vide memo. Exh.PA attested by him. P.W.L Amir Abdullah Khan, M.H.C. received one sealed parcel containing blood-stained earth on 3-8-1985 from P.W.9 and on 10-8-1985 handed over the same to Sher Muhammad constable for delivering the same to the Chemical Examiner, Lahore. P.W.3 Dr. Sher Anwar Khan Niazi conducted the autopsy on the dead body of the deceased on 3-8-1985 at 3-00 p.m. and found the following injuries:-- (1) A burning area 4 x 3 c.m. with an entry wound 2-1/2 x 1-1/2 c.m. on the outer aspect of left side of chest, 4 c.m. below the axilla and 10 c.m. from the left nipple. An exit wound 1 c.m. x 1/4 c.m. on the right side of the back of the chest. 5 c.m. from mid line and 5 c.m. below the lower margin of right scapula. A lacerated wound 3 c.m. x 1/2 c.m., muscle deep on the left side of chin. (4) A laceration hx 1 c.m. on the left cheek with partial loss of skin, 3 c.m. above the left angle of mouth. On internal examination of canium and spinal cord, fifth thoraxic vertebra was found fractured. Spinal cord was crushed at the level of 5th thoraxic vertebra. On opening the thorax he found on the left side the fourth, fifth and sixth ribs fractured. Three pellets were recovered from right side of chest wall close to the spinal cord. Right lung was punctured. Left lung was also punctured. In his opinion cause of death was severe haemorrhage and shock, which was caused by injuries Nos.1 and

2. These injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. Injuries Nos.1 and 2 were caused by fire-arm, while injuries Nos.3 and 4 were inflicted with blunt object or weapon. Probable time that elapsed between injuries and death was within one hour, while that between death and post-mortem was within 12 hours.

4. P.W.5 Sher Khan on 16-8-1985 witnessed the recovery of gun Exh.P.3 alongwith two live cartridges Exhs.P/1-2 at the instance of the appellant, which were secured by P.W.9 Shaukat Ali vide memo: Exh.PD attested by P.W.5 Sher khan and P.W. Ilasnain Khan (given up). P.W.6 Abdul Aziz had witnessed i aking into Ix)ssession of blood-stained earth from the spot vide memo. Exh.PE -which was made into a sealed parcel. Exh.PE was thumb-marked by him and ilso was signed by P.W. Ghulam Oadir (given up). P.W.7 is the complainant and brother of the deceased who narrated the contents of F.I.R. Exh.PF. He is an eye-witness and also stated about the motive. P.W.8, who is sister's son of the deceased, corroborated the contents of the F.I.R. P.W.9 Shaukat Ali, S.I. while working as S.H.O. Police Station Mochh on 3-8-1985 had recorded f.I.R. Exh.PF on the statement of P.W.7. He prepared injury statement Exh.PG and inquest report Exh.PH of the deceased and despatched the dead body to the mortuary of D.H.Q. Hospital, Mianwali under the escort of P.W.1 Ata Muhammad constable for post-mortem examination. P.W.9 recorded the statements of P.Ws. in the police station, preceded to the spot, secured blood stained earth vide memo. Exh.PE and made it into a sealed parcel. He also recorded the statements of P.Ws. at the spot. P.W.1 produced before him last worn clothes P.1, P.2 and a sealed packet containing pellets P.5 and secured the same vide memo. Exh.PA. On 6-8-1985 Mirza Zaheer-ud-Din, Draftsman (P.W.4) was summoned by P.W.9 at the spot, who prepared site plans Exhs.PC and PC/1 in the scale of 15 feet = 1 inch. On the same day the appellant was produced before P.W.9 Shaukat Ali, S.H.O. in the police station and was arrested. P.W.9 obtained physical remand of the appellant and interrogated him, who on 16-8-1985 led to the recovery of gun P.3 and two live cartridges P.4/1-2 secured vide memo. Exh.PD. After the completion of the investigation P.W.9 challaned the accused.

5. It has been urged before me that the sentence awarded to the appellant is not in accordance with law and the case of the appellant falls under section 304, Part Il, P.P.C. Learned counsel for the complainant argued that the appellant was not rightly convicted and sentenced and stressed that he be awarded normal penalty of death as prayed in Criminal Revision No.560 of 1988.

6. The complainant P.W.7 only has stated about the motive. The appellant on 2-8-1985, i.e. one day preceding to the present occurrence in the absence of P.W.7 Ghulam Sarwar passed from near their hotel and the deceased had admonished him not to pass by that way as the appellant had illicit relations with the wife of the deceased. The appellant and the deceased had exchanged abuses. Exchange of abuses between the deceased and the appellant on 2-8-1985 was stated by the deceased to P.W.7 and no one has come forward to support the statement of P.W.7 and moreover there is difference of ages between the appellant and the wife of the deceased, i.e. she was about 45 years of age, whereas the appellant was of 22 years. The motive behind the occurrence has not been proved on record as also held by the trial Court. The ocular testimonies have been furnished by the statements of P.W.7 Ghulam Sarwar complainant, real brother of the deceased and P.W.8 Zia Ullah Khan, nephew of the deceased. P.W. Sultan Khan named in the F.I.R. Exh.PF has not been produced by the prosecution. P.Ws.7 and 8 have corroborated each other and have made, consistent statements. P.Ws.7 and 8 have no animus against the appellant and have no motive whatsoever to falsely A involve him in the present case and their statements cannot be thrown away or brushed aside on account of their close relationship with the deceased. No doubt the occurrence took place in broad daylight in the Bazar and no witness from the -vicinity had been produced by the prosecution, but these days people do not come forward to make statement against the accused persons especially in murder cases for fear of inviting enmity and reprisal.

7. The medical evidence furnished by the statement of P.W.3 Dr. Sher Anwar Khan, who conducted the autopsy on the dead body of the deceased, found four injuries on his person, which are in conformity with the ocular account furnished by the statements of P.W.7 and P.W.8. The appellant had fired one shot only, which proved fatal.

8. The appellant was produced before P.W.9 Shaukat Ali, S.H.O. who arrested him. On 16-8-1985 the appellant made a disclosure in presence of P.Ws. and led to the recovery of .12 bore gun P.3 alongwith two live cartridges P.4/1-2 which were secured by P.W.9 vide memo. Exh.PD. P.3 was not sent to the Forensic Science Laboratory as no empty was secured from the place of occurrence. Recovery of gun P.3 has no corroborative value. The appellant raised the plea of false involvement in the present case while making his statement under section 342, Cr.P.C. and also stated that the wife of the deceased was of his mother's age and the motive was fabricated to conceal the true facts of the case and he was implicated due to enmity. In answer to the question, "have you anything to say", the appellant replied:

"I am innocent. The P.Ws. have fabricated the present case and have concealed the true facts of the occurrence which took place at 5 a.m. in the morning. The deceased while armed with fire-arm was the aggressor and he initiated the attack. During the investigation it was also found that motive as alleged by the complainant was false and occurrence was result of a sudden quarrel in melee." The appellant neither produced defence evidence nor made statement on oath as envisaged under section 340(2), Cr.P.C.

9. The oral testimonies furnished by the statements of P.W.7 and P.W.8 are in conformity with the medical evidence, and although the accused had not raised the plea of gave and sudden provocation, but it is the duty of the Court to review the entire evidence and to see the reasonable possibility of the truthfulness of some plea which is evident from the circumstances appearing m the case and the evidence on record. The reasonable possibility of the existence of certain facts can be gathered after reviewing whole the evidence. P.W.7 Ghulam Sarwar stated that as admitted during cross-examination that the deceased had taunted the appellant that his father who was an old person was getting unnatural act committed with him by young boys on payment. This was not only provocative but insulting as well. The utterance of such words in the area especially like Mianwali cannot be tolerated. The appellant has not produced any evidence in support thereof but from the circumstances appearing in the, case and evidence on record, it can be said that the appellant had murdered the deceased Shah Ullah Khan under sudden and gave provocation. There is evidence to the effect that the appellant was provoked by uttering the words i.e." his father inviting the young boys to commit sodomy with him". Such plea has not been raised in defence, but it appears from the evidence on record and the circumstances appearing in the case. There is possibility of the existence of gave and sudden provocation.

10. I am, therefore, of the view that the appellant had caused death of the deceased under gave and sudden provocation and was entitled to the benefit of Exception 1 to section 300, P.P.C. Hence his case would fall under D section 304, Part-I, P.P.C. and not under section 302, P.P.C. Consequently, I alter the conviction of the appellant from under section 302, P.P.C. to one under section 304(1), P.P.C. and considering the nature of the provocation received by him, in my view, the sentence of 10 years' R.I. would be sufficient to meet the ends of justice. Accordingly, the sentence of the appellant is reduced to 10 years' R.I. However, I maintain the sentence of fine of Rs.10,000 and in default of payment thereof to suffer further R.I. for si,c months. The fine if realized, half of it shall be paid to the legal heirs of the deceased as compensation. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C. The appellant is on bail he shall be arrested and sent to jail to undergo the imprisonment awarded to him. The connected revision petition has no merits and is dismissed. N.H.Q./M-689/L Order accordingly.