1976 P Cr (PLP)

(1) "Semi healed wound on "the right side of head occipital region 2 from the right pinna. (2) Multiple contusion on both buttocks. On opening the skull, occipital bone was found fractured underneath injury No. In the opinion of the doctor the cause of compression of' the brain was due to extra‑ducal collection of blood, due to injury No.

1. This injury was sufficient to cause death in the ordinary course of nature. The A. S. I. on the death of Mst. Bhirwan added section 302, P. P. C.

7. Ghulam Husain, Muhammad Nawaz ‑and Allah Dad appellants denied their guilt and stated that they had no enmity with any of the witnesses and the case has been concocted by the police. Jumma appellant, however, denied his guilt and stated as follows: ‑ "I was employed as a servant by P. W. Muhammad Ahmad. At the time of occurrence I returned home from my field in the company of my brother Ahmad Bakhsh and when we reached there, I found my children weeping and when I entered my house, 1 found my wife missing. I looked for her inside the Bhana and found Mst. Bhirwan and Muhammad Ahmad P. W. in a compromising position. I lost self‑control and under grave and sudden provocation I and my brother gave blows to Muhammad Ahmad Mst. Bhirwan with Danda. Then I went to Basti Shah Habib to inform her brother Shah Muhammad P. W. Then I appeared at the Police Station. The case prepared by the police is false. The witnesses are telling lies. I have no enmity with any of the witnesses." They did not produce any defence.

8. I have heard the learned counsel for the appellants, learned counsel appearing for the state and also counsel appearing for Muhammad Ahmad P. W. in the revision petition and have also gone through the evidence on record with their help. The prosecution case against the appellants rests on the ocular testimony of Mirza Muhammad Afzal Beg, Sher Din, Muhammad Ahmad and Fazal Din, P. Ws. 9, 10, 12 and 13 respectively, and the recovery of blood‑stained panda at the instance of Jumma appellant which was found to be stained with human blood.

9. Learned counsel for the appellants contended that the eye‑witnesses excepting Muhammad Ahmad injured did not witness this occurrence and they being liars should not be relied upon. I see force in this conten tion. Muhammad Afzal Beg (P. W. 9) has stated at rue trial that Mst. Bhirwan deceased was at that time sitting on a cot nearby and after giving beating to Muhammad Ahmad P. W. the accused started beating the deceased. But in the F. I. R. the fact of beating of Mst. Bhirwan deceased does not find mention at all. This witness has also admitted in his cross‑examination that except Jumma appellant he did not know any of the other accused before the occurrence nor the name of the father of Jumma appellant and that names of the accused were told to him by one Bahadur, who is a servant of Muhammad Ahmad P. W. But in the F. I. R. he has not mentioned about the presence of Bahadur at the spot. He further stated in his cross‑examination that it was Bahadur who gave him the names of the accused. But according to the Investigating Officer said Bahadur is a lunatic while his mother was a blind. This witness has definitely made improvements at the trial because he has stated that he did see the place where Muhammad Ahmad P. W. received injuries and that blood was also present there. But according to the Investigating Officer no blood was found at the spot. The conduct of this witness also appears to be unnatural because he never intervened to save his maternal uncle with whom he had accompanied to the village.

10. Sher Din (P. W. 10), the ‑next eye‑witness, has stated that on the day of occurrence he alongwith his brother Fazal Din was watering their wheat crop when they heard the cries from the house Jumma accused and they went in that direction but the accused threatened them not to approach them and they remained standing at a safe distance. The accused were armed with sticks and they found Muhammad Ahmad lying on the ground with his face downwards and all the accused were beating him with sticks and later on beating was given to Mst. Bhirwan, wife of Jumma appellant and they carried her away to Basti Shah Din. This witness also denied to have stated in his statement before the police about the parentage of the accused and also denied that the name of Ghulam Hussain accused was mentioned by him as Muhammad Husain alias Chun. But he was duly confronted with Exh. D. A. wherein it is so recorded. The witness also admitted in his cross‑examination that he came to know about the suspicion of illicit relations between the deceased and P. W. Muhammad Ahmad from Jumma accused.

11. Fazal Din (P. W. 13) has stated that Mst. Bhirwan at the time they reached the place of occurrence was lying injured on a cot and in his cross‑examination he has stated that they did not themselves see the accused giving beating to Mst. Bhirwan. He has also admitted in his cross- examination that his statement was recorded by the police on the second or third day of the occurrence and so was the case of his brother Sher Din P. W. 10 whose statement was also recorded the same time.

12. Lastly we have the testimony of Muhammad Ahmad (P. W. 12). He has stated that he went to his land, on the day of occurrence at about 9 a. m. and he found Jumma accused‑appellant watering the land and noticed that water was being wasted by the accused. He protested and told him that he was not in a position to manage and should be provided some assistance of any servant, which resulted in exchange of hot words and that Jumma accused told him that he was not prepared to serve him and would leave his service. Jumma accused also told him to settle his accounts. The accused Jumma also told the witness that he was taking his children and would come back in the evening along with his men to settle his accounts and accordingly took away his two children but left his wife and three children. At about 6 p. m. be along with Muhammad Afzal Beg P. W , went on a scooter at about 6‑31) p in. when the present occurrence took place and all the four accused came there and gave beating and he fell down unconscious. In cross‑examination this witness has admitted that he did not know the parentage of the accused and did not mention the same to the police. He also denied to have told to the police that Nawaz and Dad were sons of Cullu and Ghulam Hussain alias Chun was son of Khuda Bakhsh. He was duly confronted with Exh. D. B wherein it is so recorded. He has further stated that because Ghulam Husain was not known to him by this name or by the name of Muhammad Husain, but by the name of Chun and that he did not give his name to the police as Ghulam Husain alias Muhammad Husain alias Chun son of Khuda Bakhsh, but he was duly confronted with his police statement wherein it is so recorded. He further stated that he did not know the father's name of Jumma accused nor he tell it to the police that the father's name of Jumma was Zaman. This witness was confronted with Exh. D. B wherein it is so recorded. He stated that he did not recollect whether he told the police that Mst. Bhirwan was not prepared to go away with the accused but it is so recorded in his police statement with which he was duly confronted. He has, however denied the suggestion that Jumma accused returned to his house along with his brother Ahmad Bakhsh and on finding him and Mst. Bhirwan in an objectionable position gave danda blows to both of them.

13. In view of the above discussion of the testimony of the eye witnesses, I am of the‑firm opinion that Muhammad Afzal Beg, Sher Din and Fazal Din P. Ws. were not present at the spot at the time of occurrence and their testimony cannot he accepted because if they had been present they would have captured the appellants who were not armed with formidable weapons. Moreover, in the site plan there is no mention at the mames of the eye‑witnesses from where they saw the occurrence and where they were present.

14. As regards the recovery of danda (P. 1) from Jumma appellant, Matlub (P. W. 7), who attested the recovery memo. is a resident of Leiah and the house of Jumma accused‑appellant is one mile away. No witness from the locality was made to join the police investigation for recovery purposes as provided by section 103, Cr. P. C. Thus the recovery of danda is of no consequence.

15. The upshot of the above discussion is that the prosecution case against Ghulam Husain aliaf Chun, Muhammad Nawaz and Allah Dad appellants is highly doubtful. I, therefore, giving them the benefit of doubt and acquit them of the charges. So far as Jumma appellant is concerned, I think that he acted under grave and sudden provocation and therefore, I alter his conviction from section .325, P. P. C. to section 304, Part I, P. P. C. and instead of two: years' R. I. substitute the sentence already undergone. All the appellants are on bail. They shall be discharged from their bail bonds. The appeal stands accepted to the above extent.

16. The revision petition, in view of the above conclusion, stands automatically dismissed. Petition dismissed