2001 P Cr (PLP)

5. Motive behind this occurrence was that Salamat Ali accused had borrowed the money from Muhammad Akram deceased but Salamat Ali accused falsely took the defence that he had murdered Muhammad Akram due to the outraging of the modesty of his minor daughter.

6. After registration of the formal F.I.R. Ahmad Ali, S.-I., P.W. 13 reached the spot, prepared inquest report Exh.P.G. and injury statement Exh.P.J. He also took into possession blood-stained earth from the place of occurrence vide memo. Exh.P.B. On 21-4-1998 he arrested Satamat Ali accused/appellant who while in police custody led to the recovery of Bugda p.3. which was taken into possession vide memo. Exh.P.E. After completion of investigation, accused/appellant was challaned to face the trial.

7. Prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned S.P.P. tendered in evidence reports of Chemical Examiner Exh.P.M. and Exh.P.N. respectively and closed the prosecution case then the statement of the appellant was recorded under section

342. Cr.P.C., in which he pleaded innocence and took the plea of grave and sudden provocation.

8. After reading the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record submits that it was a case of grave and sudden provocation, that learned trial Court was wrong in convicting the appellant under section 302(b), P.P.C. and the offence if any is under section 302(c), P.P.C. He further submits that appellant was the real brother of Muhammad Akram deceased and it is not possible that without any rhyme and reason Salamat Ali appellant could have murdered the deceased. He further submits that Mst. Sajida Bibi was medically examined by Mst. Shahnaz Javed W.M.O. P.W.11. He further submits that none of the eye-witnesses was present at the spot and it is a case of two versions i.e. one put forward by the prosecution and the other put forward by the appellant, that the version put forward by the appellant is more plausible and convincing one

9. On the other hand, learned counsel for the State submits that Mehraj Din complainant is father of the appellant and the deceased and there was no need on his part to tell a lie, that ocular account is corroborated by medical evidence. He supports the judgment of learned trial Court.

10. I have heard learned counsel for the parties at a great length and have also gone through the record of the learned trial Court very minutely with their assistance. In the instant case, occurrence took place early hours of the morning. Muhammad Akram deceased was the real brother of the present appellant, appellant has suspected illicit relations between Muhammad Akram and Mst. Sajida Bibi. Mst. Sajida Bibi was medically examined by Mst. Shahnaz Javed, W.M.O. P.W.11 on 21-4-1998 at 3-10 p.m. her statement is reproduced below:-- "On 21-4-1998 at 3-10 p.m. I conducted medico-legal examination of Mst. Sajida Bibi daughter of Salamat Ali, aged about 9 years, resident of Nathay Khalsa who was brought by police. My observations are as under:-- Per Vagina internal examination. Very difficult and painful, cannot be done completely. Half little finger can go with difficulty. Per Vagina examination external. Slight injury seen. I cannot give the final and expert opinion about rape. Exh.P.F. is the correct carbon copy of M.L.R. which is in my hand and signed by me." By Mr. Gulzar Ahmad Butt, Advocate learned counsel for the accused. It is correct that the victim was produced before me through police. It is correct that I obtained the right thumb-impression of the victim. It is correct that slight injury was seen outside the vagina. It is incorrect to suggest that I am deposing falsely."

11. Bare perusal of the above statement shows that there was slight injury and was seen at the time of examination of the victim, this shows that an attempt was made by the deceased Muhammad Akram to commit "Zina bil-Jabr" with Mgt. Sajida Bibi daughter of the appellant, it was natural on the part of the appellant to lose his temper so he picked up the Bugda and caused injury on the person of Muhammad Akram deceased. I have also gone through the statement of the appellant recorded under section 342, Cr.P.C., question No.7 and its answer are reproduced below:-- Q.7. Have you anything else to say? , "I am innocent. The prosecution has concocted the version and had distorted the real facts of the occurrence. The real facts of the occurrence are that on the day of occurrence, my wife co-accused was not present at the time of occurrence. I had gone out to ease myself early in the morning. The deceased used to stay in my house and my daughter Mst. Sajida, aged about 9 years at that time was very much close to him and occasionally used to sleep with the deceased. No sooner I entered my house, than I saw that deceased was trying to commit Zina-bil-Jabr with his minor niece who is my daughter. I lost my self-control on seeing the accused committing this heinous offence and thus, under grave and sudden provocation, I lost my senses and self-control, picking up ' Bugda' which was lying very close to the place of occurrence. I gave blows to my brother Muhammad Akram deceased which hit on his person and he died at the spot. None of the eye-witnesses was present at that time. I myself informed the complainant about the real facts of the occurrence and brought them to the spot and had shown them the injury on' the private parts of Mst. Sajida Bibi victim of Zina-bil Jabr. The witnesses have deposed a false motive which is afterthought. The Investigating Officer had fabricated. distorted and concealed the real version of the occurrence, and had falsely challaned me and my co-accused in connivance with the complainant party. The occurrence took place in my house."

12. If both the versions are put in juxtaposition the version put forward by the appellant seems to be more plausible and convincing one and I accept the same. In this view of the matter, 1 alter the conviction of the appellant A from section 302(b), P.P.C. to section 302(c), P.P.C. and accordingly reduce the term of imprisonment from life to seven years' R.I. without any fine and compensation with the benefit of section 382-B, Cr.P.C.

13. With the above said modification in the sentence, this appeal stands disposed of. Q. M. H. /M. A. K./S-104/L Sentence reduced.