1989 P Cr (PLP)

2. The prosecution story in brief is that Mubarak Ali had four sons, out of which two sons, namely, Muhammad Yousaf and Ishtiaq Ahmad were in the Army whereas the other two Muhammad Younis and Zulfiqar are doing agriculture. In front of the house of Mubarik Ali, first informant his brother Noor Muhammad had installed a wheat machine in spite of the opposition of the first informant. The installation of the said machine resulted in bad feelings between the parties and, therefore, they were not on speaking terms. Three days before the incident, first informant's son Zulfiqar Ali and Ghulam Muhammad, appellant, exchanged hot words. On 8‑6‑1984 at 6‑30 a.m., the first informants' son Zulfiqar was going towards his fields; when he reached near the machine of Noor Muhammad, suddenly Ghulam Muhammad armed with Dattar, Muhammad Hussain armed with hatchet, Nazar Ali empty' handed, sons of Noor Muhammad, and Noor Muhammad armed with Lathi, and his wife Mst. Siddiqan empty‑handed, came Nazar Ali held Zulfiqar in his clasp and Ghulam Muhammad gave him a Dattar blow on his head. Thereafter. Ghulam Muhammad gave an her blow on the right leg: resultantly it was cut. On the noise of Zulfiqar. Ishtiaq Ahmad and the first informant came to the spot. Muhammad Hussain appellant gave a hatchet blow 'on the right shoulder of Ishtiaq Ahmad. The first informant out of fear did not go near. The commotion attracted Safdar Ali and Rustam Ali, P.Ws., who rescued the injured from the clutches of the accused persons. F.I.R. Exh.P.E./1 was lodged by Mubarik Ali, P.W. It was recorded by Shehbaz Khan, A.S.I. on 9‑6‑1984 at 10‑30 a.m. with regard to the occurrence which took place on 8‑6‑1984. The case was initially registered under section 307/326/148/149, P.P.C. but on the death of Zulfiqar on 29‑6‑1984 section 302, P.P.C. was added.

3. After the recording of the complaint Exh.P.F., Shehbaz Khan A.S.I. visited the spot and recorded the statements of the witnesses. Blood‑stained earth from the spot was secured vide memo. Exh.P.H. He arrested Ghulam Muhammad and Muhammad Hussain, appellants the same day. Dattar P.4 and hatchet P.3 were secured on the pointation of Ghulam Muhammad and Muhammad Hussain, respectively, vide memos. Exhs.P.K. and P.L. On 29‑6‑1984, he received information regarding the death of Zulfiqar Ali, therefore, he came to the hospital and prepared the inquest report Exh.P.O. and injury statement Exh.P.P. in respect of the deceased. Thereafter, he sent the dead body for post mortem examination. On 6‑7‑1984, he got the site plan Exh.P.E. and. Exh.P.E./1 prepared from the draftsman and gave his notes in red ink thereunder. He arrested Ghulam Muhammad and Muhammad Hussain. Thereafter, he handed over the investigation to Munir Ali Shah, S.I. P.W.13, who arrested the accused Noor Muhammad and Nazar Hussain on 13‑6‑1984. He partly investigated the case and submitted the challan against the accused under section 302/324/34, P.P.C. Name of Mst. Siddiqan Bibi was placed in column No.2 of the challan.

4. Dr. Muhammad Ajmal, S.M.O., D.H.Os. Hospital Faisalabad medically examined Zulfiqar on 8‑6‑1984, at 10‑45 a.m., and found 22 injuries on his person. On the same day the said doctor also examined Ishtiaq Ahmad P.W. and found three injuries on his person. The said injuries were declared simple. The same doctor on 29‑6‑1984, at about 8‑30 a.m., conducted the post- mortem examination on the dead body‑and found 17 injuries in all. 1n his opinion the death had occurred due to shock and haemorrhage resulting from injuries Nos. 10, 11 and 15 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 to 15 were caused by sharp‑edged weapon while the rest were with blunt weapon. All the injuries were anti‑mortem.

5. The prosecution in support of its case has produced 14 witnesses in all. Dr. Muhammad Ajmal, P.W.1 examined both the injured namely, Zulfiqar and Ishtiaq Ahmed on 18‑6‑1984 and thereafter he conducted the post‑mortem examination on the dead body of Zulfiqar on 29‑6‑1984. Aurangzeb, Draftsman, P.W.2 prepared the site plan on the pointation of the witnesses. Mubeen Ahmed, H.C. P.W.4, recorded the formal F.I.R. Exh.P.F./1. Khan Muhammad P.W.7, a recovery witness did not support the prosecution case, therefore, he was declared hostile. Akhtar Ali, P.W.8 deposed about the recovery of blood‑stained earth from the spot. The eye‑witness account has been furnished by Mubarik Ali, Ishtiaq Ahmed and Rustam Ali P.Ws. 9, 10 and 11 respectively. Muhammad Ilyas P.W.12 witnessed the recovery of Dattar and hatchet at the instance of Ghulam Muhammad and Muhammad Hussain. He also signed the recovery memos. The case was partly investigated by Munir Ali Shah, S.I. P.W.13 and Shahbaz Khan, A.S.I. P.W.14. The rest of the witnesses are of formal nature, therefore, need not be discussed. The prosecution gave up Rashid, Yousuf, Mukhtar and Safdar as having been won over.

6. At the conclusion of the prosecution case the appellants were examined under section 342, Cr.P.C. wherein they denied the' entire prosecution evidence. However, Ghulam Muhammad stated that Zulfiqar Ali deceased and Ishtiaq Ahmed P.W. his real cousins, had bad reputation. According to him, three months before the incident Zulfiqar deceased tried to molest his sister Mst. Sughran Bibi when she had gone to the fields. Noor Muhammad father of the appellant complained to Mubarik Ali complainant, his real brother. Six days before the occurrence Zulfiqar deceased again attempted to molest Mst. Kubran Bibi, younger sister of the appellant, and a complaint to that effect was also made to Mubarik Ali complainant. He has further stated that instead of being ashamed Zulfiqar Ali deceased used to taunt them. On the day of incident, Zulfiqar Ali deceased entered the Ihata of the appellants where the machine was installed, soon after the Fajar prayers, and tried to molest Mst. Kubran Bibi, sister of the appellants, who raised alarm. Mother of the appellant Mst. Siddiqan woke up on the alarm whereupon Ghulam Muhammad and Muhammad Hussain appellants also rushed to the Ihata and found Zulfiqar Ali deceased, armed with hatchet, grappling with Mst. Kubran. Muhammad Hussain caught hold of Zulfiqar Ali deceased in Japhha and threw him on the ground. Throughout, Zulfiqar deceased kept on taunting them, whereupon Ghulam Muhammad appellant picked up the hatchet of Zulfiqar deceased and gave him two blows with its wrong side on his shoulders. Zulfiqar deceased, in spite of receiving two injuries, kept on taunting them, therefore, he lost his senses and became mad with rage and started giving him injuries on his shoulders and legs. While he was giving injuries to Zulfiqar, Ishtiaq P.W. also came there armed with a dattar and tried to strike Ghulam Muhammad. Ghulam Muhammad in order to save himself caused him injuries. He has further stated that he became mad with rage because of the behaviour of Zulfiqar deceased and his taunts. All the accused made, the similar statements. All of them appeared in their defence on oath and corroborated the statements made under section 342, Cr.P.C. The accused also produced seven defence witnesses. D.W.1 Mst. Sughran Bibi, real sister of both the appellants, has stated that about 5/6 months before the occurrence she had gone to the fields where Zulfiqar deceased tried to molest her. Her alarm attracted one Inayat and Mushtaq who escorted her to her house. D.W.2 Mst. Kubran has stated that on the day of incident early in the morning she was sweeping in the room where flour machine was installed. Zulfiqar deceased entered the room and held her in Japha, whereupon she raised alarm which attracted her brothers Ghulam Muhammad and Muhammad Hussain, appellants. She has further stated that her father Noor Muhammad and brother Nawaz were not in the house, as they had gone to the fields. Her brother Muhammad Hussain, appellant rescued her from Zulfiqar, whereupon she ran inside the house. D.W.3 Saeed Ahmad proved the record of WAPDA whereby Noor Muhammad had given an application for electricity connection for his flour machine. D.W.4 Altaf Hussain Sub‑Engineer, WAPDA, has stated that on the receipt of an application for electricity connection he visited the spot in order to ascertain if anybody had any objection to the sanctioning of electricity connection at the spot. He has further stated that he came to know that the Ahata where machine was to be installed was joint property, therefore, he asked Noor Muhammad applicant to produce N.O.C. According to him, he visited the spot thrice but nobody objected to the installation of the said machine. D.W. 5 Abdul Rehman Raza, Deputy Director G.S.O., Cricket House, Lahore, who was working as S.D.O., WAPDA, processed the case for the electricity connection to Noor Muhammad. According to him, nobody objected to the grant of electricity connection to Noor Muhammad, acquitted accused, Barkat Ali D.W.6, has stated that he had thumb-marked the N.O.C. He has further stated that in his presence nobody objected regarding the installation of flour machine. Mushtaq Ahmad, D.W.7 stated that 5/6 months before the occurrence he had gone to the fields where he heard the noise being raised by Mst. Sughran. He rushed to the spot and saw Zulfiqar deceased running away. Thereafter he took Mst. Sughran to her house. Learned trial Court while convicting the appellants has not relied upon the evidence of motive as well as recoveries effected at the instance of the appellants. He has only relied upon the eye‑witness account.

7. It is contended by learned counsel for the appellants that on the same evidence three accused have been acquitted and there is no other evidence to corroborate the statements of said witnesses qua the appellants, therefore, the conviction is bad in law. Submits that P.Ws.9 and 10 Mubarik Ali and Ishtiaq, respectively, are real brothers of the deceased, whereas Rustam Ali, P.W.11, admittedly is an interested witness, therefore, may not be relied upon there is very strong corroboration available. Contends that the origin of fight could not be witnessed by Mubarik Ali and Ishtiaq P.Ws. Submits that according to the site plan Exh.P.H. both the witnesses were sitting inside their house from where the place of occurrence is not visible at all. Submits that if the defence version which was taken at the very out‑set is kept in juxtaposition with the prosecution case, it becomes more plausible. The contentions of the learned counsel for the appellants have been controverted by learned counsel for the State. According to the counsel for State, both the parties are inter‑related therefore, the chances of false involvement of any of the accused can safely be ruled out. The learned State counsel has controverted the contentions of counsel for the appellants.

8. I have heard the learned counsel at length and perused the record. The motive as given by the prosecution is that about two years before the occurrence, the co‑accused of the appellants had installed a flour machine in front of the house of the complainant. Resultantly, the door of the house of the complainant was closed. He had raised an objection to the installation of said machine, therefore, their relations became strained. When cross‑examined, he has admitted that during the period of two years no unpleasant incident ever took place. According to the site plan, the machine installed was far away from the door of the house of the complainant. According to the defence evidence produced by the appellants, the officials of the Electricity Department visited the spot number of times but at no stage the complainant or any of the P.Ws. raised any objection. In these circumstances, I hold that the learned trial Court has rightly ruled out of consideration the motive as set up by the prosecution.

9. The ocular account has been furnished by Mubarik Ali, Ishtiaq Ahmad and Rustam Ali, P.Ws. As far as Mubarik Ali and Ishtiaq P.Ws. are concerned. They could not possibly have seen the origin of fight, as is clear from the site plan. Therefore, their assertion that they saw the occurrence from the very outset is belied by the site plan. It is the consistent story that they were sitting inside their house when they heard the alarm, and thereafter they came to the spot. Both the witnesses are belied by the site plan which was prepared at their pointation. As far as Rustam Ali is concerned he has given a plausible explanation that he had come to the spot for getting some flour from the machine of the accused persons and within his presence he saw the occurrence. But, when cross‑examined, he was confronted with his earlier statement wherein he had not stated that he had gone to the machine of the. appellants for grinding wheat. He has also stated that he did not see Zulfiqar deceased coming out of his house or going into the house of the appellants. Admittedly, the occurrence had taken place inside the house of the appellants. In such circumstances, the chances are that the witness was either not present at the spot or he came later. He has further stated that Ishtiaq P.W. came when Zulfiqar had already been given some injuries. In such circumstances, this witness in his statement contradicts the other P.Ws. A perusal of his statement indicates that even if he had reached the spot it was after the occurrence had started. If, Its claimed by him he was already present at the spot, he should have seen when and from where Zulfiqar deceased came to the house of the appellants. Ishtiaq P.W. is injured, therefore, his presence at the scene of occurrence cannot be denied, but the vital question in this case would be when he arrived at the spot. According to the statement of Rustam Ali, P.W., he arrived when Zulfiqar deceased had already been, given some injuries. According to the statement of Ishtiaq, he came and in his presence Zulfiqar deceased was injured but, as already discussed earlier, this part of the statement is belied by the site plan. For what has been discussed above, it is clear that even if the eye‑witnesses had seen the occurrence, they were not in a position to know what was the origin of fight. All of them are unanimous that they were attracted to the spot when they heard the alarm from Zulfiqar deceased.

10. On the other hand, Noor Muhammad co‑accused, from the very out‑set had taken the plea that Zulfiqar deceased had tried to molest his daughter, whereupon the appellant Ghulam Muhammad came with his brother Muhammad Hussain and caused injuries to Zulfiqar. In support of the defence version. Mst. Sughran Bibi and Mst. Kubran Bibi, both real sisters of the appellants, have been produced as D.Ws.1 and 2 Mst. Kubran has stated in clear terms that on the day of incident while she was sweeping the room where flour machine had been installed, Zulfiqar entered the room and held her in his Japha. Her alarm attracted the appellants. She has been cross‑examined at length but nothing has come on the record that she is not a truthful witness, or has deposed falsely in the Court. As a matter of fact, it is very rare that an accused would bring forth his real sisters in his defence where the family honour is involved. In the instant case both the sisters have appeared as defence witnesses and have stated that Zulfiqar deceased tried to molest them. The number and nature of injuries on the person of Zulfiqar deceased also indicate that he was given injuries by a person under grave provocation. There is no evidence which could, corroborate the statements of the eye‑witnesses against the appellants. If the defence version is kept in juxta position with the prosecution evidence, it appears to be more plausible. On the other hand, the appellant has admitted having‑caused death of Zulfiqar, but it is to be seen whether he acted within limits prescribed by law or has exceeded. The nature of injuries certainly indicates that he acted much beyond the limits prescribed by law. As far as the involvement of Muhammad Hussain appellant is concerned, there are the statements of the eye‑witnesses. which has already been held that they cannot be relied upon unless corroborated which is not available.

11. For what has been discussed above, I hold that the prosecution has not been able to prove its case beyond reasonable doubt against Muhammad Hussain, therefore, he is acquitted and shall be released forthwith unless required in some other case. However, case against Ghulam Muhammad is proved, but his case falls under section 304, Part II, P.P.C. As, far as the quantum of sentence is concerned, he acted under grave and sudden provocation, therefore, his conviction under section 302, P.P.C. is converted to conviction under section 304, Part II, P.P.C., and the sentence of imprisonment for life is reduced to 10 years' R.I. The sentence of fine is however; maintained. Conviction under section 324, P.P.C. is also maintained. He shall also be given the benefit of section 382‑B, Cr.P.C. The appeal is disposed of in the terms stated above. Complainant's revision is accordingly disposed of for the reasons stated above. H.B.T./M‑1171/L Appeal partly accepted.