1984 P Cr (PLP)

The learned trial Court taking into consideration the evidence adduced before it convicted the respondent abovenamed under section 3040), P. P. C. and 13-D, Arms Ordinance only and sentenced him, as herein before mentioned and consequently State as well as complainant have filed the above Acquittal Appeal and Cr. Revision Petition, respectively, for altering the conviction of the respondent from 304 (1), P. P. C. to one under section 302, P. P. C. and under section 307, P. P. C. in accordance with law, on the grounds mentioned in the memo. of above two matters. Since above two matters arise out of one common judgment, we pro pose to dispose of both the matters by this common judgment, The learned Advocate appearing for the State in support of Acquittal Appeal submitted as under :- (a) That the judgment passed by the learned Judge is against the law and facts of the case. He submitted, that the learned trial Judge seems to have been carried away by the idea, that among Balochis, Karo has to compensate and bear the expenses. (b) That the reasoning of the learned Judge for arriving at the con clusion that the respondent was guilty of offence under section 304(I), P. P. C. are neither cogent nor convincing. It is submitted that the learned trial Judge has seriously erred in placing reliance upon the F. I. R. and its contents which is not proper. (c) That the learned Judge has seriously erred in placing reliance upon the statements under section 161, Cr. P. C. in preference to the evidence recorded in Court. (d) That the learned Sessions Judge has not applied his mind to the medical evidence fully and the conclusions arrived at by him are not correct. (e) That the learned Judge has also erred in dealing with the recovery of the gun. The learned Advocate for complainant and applicant in Cr. Revi sion Petition, in support of said petition submitted as under (a) That there is no evidence at all on record to prove alleged plea of grave and sudden provocation and as such the trial Court has erred in coming to conclusion, that offence committed by Respon dent was culpable homicide not amounting to murder. (b) That learned trial Court has erred in acquitting the respondent for charges under section 307, P. P. C. in respect of the injuries given by him to P. Ws. Manzoor Hussain and P. W. Mst. Noor Sain in spite of the prosecution evidence brought on record. (c) In the alternative sentences awarded to respondent are com pletely inadequate. In support of his above contentions, the learned counsel for com plainant relied upon cases reported in P L D 1977 S C 14/153 and e L D 1975 S C

275. The learned Advocate for respondent on the other hand submitted, that learned trial Court has rightly held on evidence on record, that offence committed by respondent falls under section 304(I), P. P. C. as far as death of deceased Mst. Bhirawan is concerned and rightly acquitted the re spondent for charges under section 307, P. P. C. as far as injuries received by P. Ws. Manzoor Hussain and Mst. Noor Sain. He further submitted that sentences awarded to respondent in view of the facts on record are adequate. 1n support of these contentions the learned counsel for respon dent relied upon cases reported in 1980 P Cr. L J 106, 1979 P Cr. L J 816, 1975 P Cr. L J 548 and 1983 P Cr. L J 1365/927. He further submitted, that respondent has already served out the sentences awarded to him. learned counsel for respondent further submitted, that at the very outset respondent in his judicial confession as well as his state ment under section 342, Cr. P. C. admitted firing of two shots and causing death of Mst. Bhirawan and injuries to P. Ws. Manzoor Hussain as well as Mst. Noor Sain by gun of his brother, for which he had no licence. However he explained that all this was due to grave and sudden provocation which he received by seeing his wife and P. W. Manzoor Hussain in objectionable position, just before the incident, and as such he lost self-control and acted in the manner which resulted in death of Mst. Bhirawan and caused injuries to P. Ws. Manzoor Hussain and Mst. Noor Sain and consequently learned trial Court rightly convicted respondent under section 304(1), P. P. C. only, as judicial confession of the respondent and his statement under section

342. Cr. P. C. is fully corroborated by the statements of P. Ws. Darvesh and Mst. Noor Sain and others under sections 164, Cr. P. C. and 161, Cr. P. C. We have carefully considered the above submissions made by the learned Advocates before us and have gone through R & P of the learned trial Court as well as impugned judgment and cases cited by the learned counsels before us. We have carefully gone through the statements of P. W. 3 Manzoor Hussain, P. W. 4 Mst. Noor Sain, P. W. 5 Nawab and P. W. 6 Darvesh as well as P. W. 7 Alidad, the alleged eye-witnesses of both the incidents. It may be noted, that P. W. 3 Manzoor Hussain has given a different motive for alleged incident in which he was injured by respon dent. Similarly P. W. 4 Mst. Noor Sain has given a different motive for the incident in question. P. W. 2 Khuda Bux has changed the motive given in the F. I. R. by him, in his statement before the learned trial Court. It is clear from the prosecution evidence on record, that both the shooting incidents were in sequence to each other, but it seems that the prosecution witnesses have given different motives for the same, in order to save the reputation of P. W. 3 Manzoor Hussain and P. W. 4 Mst. Noor Sain. The statement of prosecution witnesses Manzoor Hussain, Mst. Noor Sain P. W. Nawab, P. W. Darvesh as well as P. W. Alidad do not inspire confi dence, as these witnesses have tried to deny certain facts mentioned by them in their earlier statements under section 164, Cr. P.C. as well as 161, Cr. P. C., which contradictions have been brought on record. Presence of P. W. 7 Alidad at the time of alleged injuries received by P. W. 3 Manzoor is doubtful, as the motive for his presence does not inspire confidence. We find that statement of P. W. 6 Darveshunder section 161, Cr.P.C. the portions of which have been brought on record by way of contradiction clearly supports the version of the incident as given by the appellant in his confession as well as in his statement under section 342, Cr. P. C., in respect of the appellant having followed his wife Mst. Noor Sain to the field and the manner in which deceased Mst. Bhirawan the mother of Mst. Noor Sain received injuries, at the hand of the appellant. In the face of this state of affairs, the version of the incident given by the appellant in this judicial confession and under section 342/Cr. P. C. statement look more plausible, that on account of grave and sudden provocation received by him on seeing his wife P. W. Mst. Noor Sain with P.W. 3 Manzoor Husain he lost his control and after taking up the gun from the house of his brother, he first fired at P. W. 3 Manzoor Husain and in the meantime P. W. 4 Mst. Noor Sain ran away from the place, where they were found together by the respondent and consequently respondent followed her in the field and fired at her, when deceased Mst. Bhirawan came between the said firing Mst. Noor Sain and received the injuries in her chest and as a result of that she died on the spot. It may be noted, if P. W. 3 Manzoor Hussain received gun-shot injuries in a separate and distinct incident as alleged by him, there is no explanation why he did not lodge a separate F. I. R. for the same. This lends support to the contention of the respondent, that it was one incident in which he fired two shots one at P. W. 3 Manzoor Hussain and the second shot at P. W. 3 Noor Sain, which hit the deceased Mst. Bhirawan. It is obvious from the statement of P. W. 2 Khuda Bux (complainant) the husband o: the deceased, that he has tried to change the motive given by him in F. I. R. in order to save the reputation of his daughter P. W. and he paramour P. W. 3 Manzoor Hussain. Therefore, we see no reason to disagree with the conclusions and findings of the learned trial court, that the offence committed by the respondent falls under section 304 (1), P.P.C. and not under section 302, P.P.C. as asserted by the State and the learned counsel for the applicant. This conclusion has been arrived at by the learned trial Court after due appraisal of the state ments of the prosecution witnesses and on the basis of cogent reasons. with which we are in full agreement. It may further be noted, that the learned Advocate for the respondent has made a statement at the be that the respondent has served out sentences awarded to him and the sentences awarded to the respondent were adequate, in view of the facts of the present case. In support of this the learned counsel fore respondent relied upon cases reported in 1980 P Cr. L J 1061, 197 P Cr. L J 816, 1975 P Cr. L J 548 and 1983 P Cr. L J 1365/927. We have carefully gone through these cases and keeping in view the cogent reasons given by their Lordships in these cases, in respect of the sentences awarded in the said cases, the sentences awarded to the appellant by the impugned judgment dated 10th May, 1980 in our opinion was adequate and we see no reason to interfere with said sentences as well as conclusions and findings arrived at by the learned trial Court. Regarding injuries received by P. W. Manzoor Hussain and Mst. Noor Sain, even if the learned trial Court would have convicted respondent, the sentences coal d not have been more than 5 years, in view of the facts of the present case and would have run concurrently with main sentence under section 304 (1), P.P.C. and as such we see no reason to upset judgment of learned trial Court on this account as well as result would be same. In view of our above conclusions, we find no force in the contentions urged by the learned Advocate for the State as well as the complainant. The cases cited by the learned Advocates for complainant as well as State are based on different facts and as such not at all applicable to the facts of the above matters. Therefore, we dismiss both the above acquittal appeals as well as Cr. Revision Petition filed by the complainant and discharge the bail bonds, if any, executed by the respondent in both the above matters. M. Y. H. Appeal dismissed