1985 P Cr (PLP)

(2) A lacerated wound 3 x 2 x bone deep on back of left forearm, underneath bone was fractured. (3) Three lacerated wounds in the area of 3 x 2‑3/4" in the right armpit. (4) A contused wound 1 x x skin deep on right side of the head. (5) A lacerated wound 1 x 1" x deep on right shoulder which communicated with injury No.3 (6) Four lacerated wounds in the area of 2 x 1" x skin deep on middle of right shoulder. Death was due to shock and haemorrhage. Injuries Nos. 1, 2, 3 and 5 were sufficient to cause death in the ordinary course of nature. Learned counsel who took me through the evidence argued that the prosecution version was not reliable. Learned counsel submitted that, the eye‑witnesses were not present. The presence of Ghulam Muhammad was doubtful. Both the witnesses were brought to the scene to create evidence. It was further submitted that as a matter of fact the incident took place as stated by Zafar Iqbal in his statement before the trial Court. Thereafter, learned counsel argued the case on the basis of two fold plea taken by the appellant in his statement under section 342 Cr. P. C. Muhammad Yaqub admitted that he took his dinner at 6‑00 p. m. in the canteen of the Mills where he was working. He left the Mills after he finished his duty at 1‑00 p.m. He travelled up to Jauharabad in the bus and then to Bola on cycle. The distance between village Abadi and Mills was about 3 miles. He said that when the occurrence took place, his duty was 2‑00 to 10‑00 P.M. He further admitted that in the year 1969‑70, his maternal‑uncle Sultan was murdered and Ghulam Muhammad elder brother of Ata Muhammad, his brother‑in‑law Azmat, Noor Muhammad father of Azmat and Sher Muhammad father of the wife of Ata Muhammad were challaned. The Investigating Officer admitted that in the inquest report Exh. P.L., in column No.1, provided for showing the place of death or the place from where dead body was recovered he had written the courtyard of Haji Ahmad accused. Similarly the officer also admitted that in column No.7 he did not show the shoes of the deceased alongwith clothes. In column No.12, the Investigating Officer only mentioned fire‑arms. He did not mention the type of arm i.e. the gun nor did he mention about Lathi and hockey. Zafar Iqbal made the following statement:‑ "The actual facts are that the deceased had sneaked into our house and was attempting to kidnap again my unmarried sister Mst. Haleem Khatoon. When I heard his whistling and some sounds, I came out carrying a gun under suspicion that there was something in the courtyard but I found that deceased Muhammad Azam was standing bare footed near the eastern wall of our Haveli. I protested to him but he taunted me that 1 being a shameless person had no right to protest after having brought back Mst. Haleem Khatoon from Gujrat after he had been enjoying her. He fired at me from a pistol, which he was holding. On grave and sudden provocation and in my self defence I fired at him and also gave him a blow on his head with the butt of my gun. I informed the police who accompanied me to the spot and we reached the spot at about 2‑30 a.m. The D.S.P. also arrived at the spot on the following day and it was there after that the complainant party was summoned by the police. After investigation the actual facts were concealed and a false story was fabricated by putting up eye witnesses in order to make it a murder case. A twisted F.I.R. was drawn up on the following evening. No one had actually seen the occurrence. The venue of occurrence was also dishonestly changed." I am to make sure as to which version is to be accepted, the story of the prosecution or the statement of Zafar Iqbal. If I have to accept the statement of Zafar Iqbal then I have also to make sure whether he has succeeded in establishing both the pleas or only one, if one, which one and ultimately its effect on the prosecution case. Prosecution case started with the fact that the younger sister of the two appellants was abducted by the deceased. She remained with him for some time. She was restored due to the intervention of certain respectables. This is an important factor to be considered while examining the plea of appellants. I am not prepared to accept the prosecution story to the extent that in the middle of the night in the month of January which is the p coldest month in our country, the party went out and walked some distance simply to pass water. Another important fact to be noted is that the prosecution had not brought any evidence to show that the accused party knew that at that particular hour the complainant party especially the deceased would be out for toilet. The explanation given by Yaqub for his presence at the spot is not convincing. It does not fit in the circumstances of the case that he came all the way just for a gossip. Ghulam Muhammad's evidence does not inspire confidence. The police involved the entire family including 70 years old father of the appellants. This shows mala fide of the prosecution. I have, therefore, no option but to reject the entire prosecution evidence. As such I accept the statement of Zafar Iqbal appellant. It is now to be seen as to which plea he has been able to make out. Zafar Iqbal stated that he was first fired at and it was in retaliation that he killed Azam. But this plea does not find any support p from any evidence on the record. Hence the plea of self defence is rejected. There appears to be good deal of force in the other plea which is of grave and sudden provocation and this finds support from circumstantial evidence. Admittedly the deceased was carrying out with sister of the appellants. As such he must have sneaked into the house of the appellants at that odd hour to meet his beloved, whom he either wanted to take away with him or to have good time with her. Situation like this leads to grave and sudden provocation. Therefore, I accept this plea. Hence conviction under section 302 P.P.C. is not maintainable. The same is set aside. In the alternative the appellant is convicted under section 304 Part‑II P.P.C. and sentenced to 5 years R.I. He is given the benefit of section 382‑B, Cr. P. C. The sentence of fine is remitted. I have accepted the statement of Zafar Iqbal. He denied the presence of his brother Muhammad Iqbal at the spot. There is no reason to disbelieve him. His participation as such becomes doubtful. Hence Muhammad Iqbal is given the benefit of doubt and acquitted. He is on bail. His bail bond stands discharged. S. A. Appeal Partly Accepted.