1993 PLP 1372 (MLD)

(2) An incised wound 9 c.m. x 8 c.m. on the anterior and medial aspect of right elbow joint, it was muscle deep. Both the injuries were opined to have been caused by a sharp-edged weapon. Death was opined to have occurred due to shock and haemorrhage, resulting from injury No.l. Injury No.2 was declared simple. Time between the injuries and death was opined to be instantaneous, while the duration between death and post-mortem was opined 10 to 16 hours.

7. Ocular account was deposed to by Shabbir Ahmad P.W.6 and Salamat Ullah P.W.7 Shabbir Ahmad while repeating the facts given by him in Exh.PA, stated about motive for the occurrence, in a somewhat detailed manner. In that, he stated that the deceased had talked to his friends about the affair of Mst. Rasheda, who was real sister of Nadeem (acquitted accused) and wife of elder brother of Muhammad Elahi and Muhammad Jamil accused. During cross-examination, he stated that Muhammad Jamil and Muhammad Elahi were sons of Bashir and Muhammad Parvez was son of Abdul Aziz who was maternal-uncle of the above-named Bashir. He admitted that Mst: Rasheda was married to Ehsan, elder brother of Muhammad Jamil and Muhammad Elahi, a year before the occurrence. He stated that they had witnessed the occurrence from a distance of one kanal. He expressed ignorance about Sagheer Ahmad having said in the presence of Riaz P.W. that Mst. Rasheda had managed illegal abortion. He denied the suggestion1hat he had given a fabricated story and that actually the occurrence had taken place when the deceased had taunted Muhammad Jamil about the affair of his brother's wife, who according to him, had undergone illegal abortion, and that Muhammad Jamil on hearing this had caused him injuries under grave and sudden provocation. The suggestion that he had not witnessed the occurrence, was also denied by him.

8. Salamat Ullah P.W.7 corroborated the statement made by P.W.6, in so far as it pertained to the actual occurrence. During cross-examination he denied the suggestion that he was related to the complainant in an% manner. He gave out that he did not know about motive for the occurrence. He denied the suggestion that he had not witnessed the occurrence and had made a false statement due to relationship with the complainant.

9. Muhammad Sarwar who had witnessed the recovery of blood-stained Chhuri at the instance of Muhammad Jamil appellant, claimed so while appearing as P.W.4. During cross-examination he stated that he was residing in a village, situated close to the village of the accused. He stated that he had joined the recovery proceedings on being asked by the Police.

10. Muhammad Tufail Hayat, SHO who had recorded complaint Exh. PA, and had submitted the challan to Court after arresting the accused, taking into possession Chhuri P.3 got recovered by Muhammad Jamil, and on completion of investigation, appeared as P W.11 and deposed those facts. During cross- examination he denied the suggestion that statement Exh.PA was not recorded at 8-35 p.m. and that it was, in fact, recorded after mid-night, after consultations. He denied the suggestion that the version given in the F.I.R. was a fabricated one and that actually it was Muhammad Jamil accused only who had attacked the deceased under grave and sudden provocation. The statements of the remaining P.Ws. are more or less of a formal nature.

11. The appellants as well as the acquitted accused denied the prosecution case, during their statements under Section 342, Cr.P.C. and pleaded innocence. Muhammad Jamil appellant while denying that he had got recovered blood-stained Chhuri P.3 from his house, took up the stance that he had produced the same of his own when he was arrested. He stated as follows in answer to the question, `have you anything else to say'?:- "I am innocent. The fact of the matter is that the deceased openly said provocative things about Rasheda, wife of my real brother and he used to say this thing openly. About few minutes before the occurrence, he again repeated in my presence that my brother's wife had illegal abortion, and when I was proceeding towards my house. I was provoked and under grave and sudden provocation, I brought the Chhuri from the house and approached Saghir deceased while he was passing to the Garden of Saleem and under that condition, I gave him injuries. None of the co-accused was present there. I never called him from his house as alleged by the prosecution. This part of the story of the prosecution is fabricated. When the Police came, I appeared before the Police and gave my chhuri at that time." He repeated the same stance while making statement on oath under section 340(2), Cr.P.C. During cross-examination he stated that the deceased was his friend and he had talked about illegal abortion of Mst. Rasheda, in the chowk of the village, some 15 days prior to the occurrence. He denied the suggestion that he had made a false statement in order to escape punishment. He also examined in defence his brother Ehsan Elahi. Ehsan Elahi while appearing as D.W.1 stated that he had married Mst. Rasheda on 28-10-1988 and that she had given birth to a son who was about 2 months old. He declared that she had never undergone abortion.

12. Learned counsel for the appellants after having taken us through the evidence, criticised the-impugned judgment and contended that the statements of P.W.6 and P.W.7 do not inspire confidence and were not worth acting upon; that the version put forth by Muhammad Jamil was more probable and nearer the truth and that the prosecution had failed to prove the culpability of Muhammad Parvez appellant in the occurrence.

13. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that the statement of Shabbir Ahmad PW6 brother of the deceased inspired confidence as he had no enmity whatsoever with the appellants/accused, prior to the occurrence; that Salamat Ullah was an independent witness, as he was neither related to the deceased nor inimical to the accused and so his testimony lends sound corroboration to the testimony of P.W.6. Learned counsel contended that the evidence of recovery of Chhuri P.3, coupled with the medical evidence has gone a long way to prove the case against the appellants. Learned counsel for the petitioner (in the revision petition) sought not to press the revision petition, and so did not advance any arguments in that regard.

14. In this case Muhammad Jamil appellant did not deny infliction of injuries, which proved fatal. While admitting so, he put up his own version and pleaded that he had done so under grave and sudden provocation. Since two different versions of the occurrence have been put forth, it has become necessary to examine the versions put forth by both the parties in juxtaposition, so as to reach a conclusion whether the version put forth by Muhammad Jamil appellant was more probable, nearer the truth and worth acting upon or the version put forth by the complainant was correct and worth acting upon.

15. Muhammad Jamil appellant while putting forth the background and the circumstances, which impelled him to launch attack and inflict injuries to the deceased, took up different stands at different stages of the trial. While cross-examining Shabbir Ahmad P.W.6 (the complainant) it was suggested on his behalf, " .that the deceased taunted him that he should look after his brother's wife who had got illegal abortion. While making statement under section 342, Cr.P.C. he stated as follows in answer to question No.8:

"The fact of the matter is that the deceased openly said provocative things about Mst. Rasheda wife of my real brother and he used to say things openly. About few minutes before the occurrence he again repeated in my presence that my brother's wife had illegal abortion." While making statement on oath under section 340(2), Cr.P.C. he stated during cross-examination that Sapheer (deceased) had talked about illegal abortion of Rasheda in the chowk of the village, 15 days prior to the occurrence. It is obvious from the above, that Muhammad Jamil appellant had not taken a consistent stand. Even otherwise if he had not felt provoked, when the deceased had uttered such words some 15 days prior to the occurrence, there was no special reason for him to have been so provoked on the day of occurrence that he should have run to his house, bring a Chhuri from there and then launch attack, resulting in death of the deceased.

16. The stance of Muhammad Jamil appellant that after the deceased had uttered insulting sentences, he had gone to his house and returned to the spot armed with a Chhuri and then launched attack, even otherwise does not advance his case, for the reason that the deceased could not have been so unwise to have remained standing at the spot and waited for the appellant to come and attack him. Had such event occurred, he would certainly have slipped away. In the circumstances, we feel no hesitation in holding that the version put forth by Jamil appellant was neither probable nor worth acting upon.

17. The ocular account in this case was deposed to at the trial, apart from the brother of the deceased, also by another witness (i.e. P.W.7) who was neither related to the deceased in any manner nor had any animosity with him. His testimony, therefore, cannot be dubbed as questionable on any count and the same is enough to lend corroboration to the ocular account furnished by the complainant.

18. The motive alleged for the occurrence, was rather admitted by Muhammad Jamil. Apart from the fact that the evidence of recovery of blood stained Chhuri at the instance of Muhammad Jamil inspires confidence, the other important aspect is that he himself did not deny that Chhuri P.3 was the) one which he had used for the commission of crime. In the circumstances, we are convinced that the prosecution has been able to prove the case against Muhammad Jamil appellant beyond reasonable shadows of doubt.

19. The case of Muhammad Parvez appellant, however, stands on a different footing. In that, even according to prosecution, he was not armed with anything. The role of japha assigned to him, appears to be contradictory to the manner in which the deceased was caused injuries. Had the deceased been caught in japha, Muhammad Jamil would not have been able to inflict the injuries on the parts of the body, the deceased was found to have suffered. Apart from that if he had been holding the deceased into jLnha, his clothes must also have been found stained with blood. Not only his bloodstained clothes were not taken into possession during the investigation, but also no evidence was led that his clothes had been stained with blood during the occurrence. In the circumstances, grave doubts have arisen in our mind about participation of Muhammad Parvez in the occurrence. He is, therefore, 1 extended the benefit of doubt and is acquitted. He shall be released forthwith if not required in any other case.

20. The conviction of Muhammad Jamil appellant under section 302, P.P.C. is maintained. However, the sentence of death awarded to him is not E confirmed, as even according to the prosecution the occurrence had erupted due to involvement of family honour. Apart from that, he was stated to be fifteen at the time of trial, which had taken place one year after the occurrence. He would, thus be 14 years old at the time of occurrence. Keeping in view the above facts, the sentence of death awarded to him is altered to imprisonment for life. He shall be given benefit of the provisions of section 382-B, Cr.P.C. The sentence of fine is maintained. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. Order accordingly.