1976 P Cr (PLP)

2. The occurrence took place on 28th of October 1968 at 10 a.m. in village Missarwala, Police Station, ,Kalabagh in the District of Mianwali The report is based on statement Exh. P. A. made by Saadat Khan (P. W. 11) to S. I. Muhammad Afzal (P. W. 17) at Kacha Bhangi Khel at 1 p.m. Distance of Kacha Bhangi Khel from the place of occurrence is 9/10 miles whereas the police station is at a distance of eighteen miles from the place of occurrence.

3. The, prosecution story is that Mst. Nur Jahan (P. W. 12) as married to Gulmar Din, the younger brother of the appellant v ho is a scout posted in South Waziristan. In the absence of her husband Mst. Nur Jahan was residing with the appellant. Six or seven days before the occurrence, the appellant sent word through Muhammad Yunas (P. W. 14) who was then a school boy of fifteen years of age, to Saadat Khan (P. W. 11) the father of Mst. Nur Jahan that she was disobedient to hire and that she should be taken away from his house. On the day of occurrence Saadat Khan (P. W. 11), his brother Isa Khan deceased, Ali Khan P. W. a first cousin and the sister's husband of the deceased and Muhammad Yunas (P. W. 14) a grandson of Ali Khan came to the house of the appellant. They questioned the appellant as to what was the gravamen off the charge against Mst. Nut Jahan and as to in what manner she was showing disobedience to him. The appellant was not able to give a definite answer and asked them to put the same question to Mst. Nur Jahan herself. Mst. Nur Janan there upon disclosed that the appellant wanted to develop illicit liaison with her and after she refused to yield to his wishes he had become against her. While this tats. was going on, Abdul Ghalfar (P. W. 1) who is a cousin of the. wife of Saadat Khan P. W. and Abdullah Jan, whose brother is married to the daughter of Saadat Khan P. W. also came up. They took away Mst. Nut Jahan from the house of the appellant but they had hardly gone about fifty yards when the appellant followed them raising lalkaras saying that he would not allow them to go alive. He was armed with a gun which he fired at Saadat Khan (P. W. 11). A pellet hit the witness on the right arm. The appellant then whipped out a knife and gave a blow to lea Khan in his abdomen. Isa Khan fell down. The appellant also gave Mst. Nut Jahan an injury within same knife on the back side of her head. Saadat Khan and Isa Khan were being taken to the police station when the Sub‑Inspector met them on their way and report was dictated by Saadat Khan as stated above. Isa Khan expired to the hospital at Kalabagh on the same day at 10‑50 p. m.

4. Muhammad Afzal S. H. O., Kalabagh carne to the spot and took blood‑stained earth from the place of occurrence. '1 he accused was arrested on 30th of October 1968, ffom the Civil Hospital, Kalabagh where he had gone for medical examination. On 3‑rd of November the appellant led to the recovery of his licensed gun P. 1 and his licence P. 7 from his house, He also led to the recovery of churra P. 2 from under the heap of stones from his courtyard on the same day. Since no empty was found at the spot, the recovery of the gun appears to he inconsequential. The recovery of churra P. 2 was not believed by the trial Court as it observed that the witnesses of the recovery were chance witnesses and were discrepant in their statements. Nothing has been urged to persuade me to disagree with the trial Court in this behalf.

5. At the trial, Saadat Khan (P. W. 11), Mst. Nur Jehan (P. W. 12), Abdul Ghaffar (P. W. 13) and Muhammad Yunas (P. W. 14) appeared to support the prosecution story. Ali Khan and Abdullah Jan were given up as unnecessary. The complainant party and the P. Ws. belong to village Darga which is at a distance of five miles from village Missarwala where the appellant resided this village appears to have a big population as it was stated by Abdul Ghaffar (P. W. 13) before the committing Magistrate that it had about 500 houses, although at the trial he tried to minimize the effect of his statement by saying that there were only fifty houses.

6. Mr. Inayatullah the learned counsel for the appellant has 'submit ted that the motive part of the story has not been satisfactorily proved; that there were twelve injuries on the person of the appellant which had not been satisfactorily explained by the prosecution; that the occurrence ac tually took place in the house of the appellant when the deceased and his companions wanted to take away forcibly his brother's wife and that the story that the occurrence took place at a distance of fifty yards from the house of the appellant is false.

7. The position of the prosecution is so far as the motive part of the story is concerned is that the appellant had sent a message through Muhammad Yunas P. W. six or seven days before the occurrence that Mst, .'fur Jahan was showing disobedience to him. Now this Muhammad Yunas was a boy of about fifteen years reading in a school in village Shakar Data which is at a distance of six or seven miles from the place of occurrence. It is not known why tile appellant did not choose to go to village Darga to talk to Saadat Khan P. W, or Isa Khan deceased directly which is at a lesser distance of five miles. The story regarding the selection of a boy in his teens to impart this important communication appears to be too thin to be believed. Then again the prosecution has said that the message was conveyed to Isa Khan six or seven days before the occurrence. Mst. Nur Jahan on the other hand said that it was only three days before the occurrence that the appellant had tried to make indecent overtures to her. It cannot therefore be believed that any message was sent six or seven days before the occurrence through Muhammad Yunas to the complainant. The learned counsel urged that the motive was with the complainant party to be aggressive. He said that Mst. Nur Jahan had been married to the brother of the appellant in consideration for its. 9501 and since the spouses were not pulling on well the father wanted to take away the girl from the house of her husband in order to dispose her of to some body else. Having found the prosecution story is regard to the motive as incorrect, it is not possible for me to say that what the learned counsel urges is without substance.

8. Now we come to the ocular testimony. All the eye‑witnesses are related to the deceased and in view of the circumstances of the case it can not be said that they are not affected by a partisan spirit.

9. The learned trial Judge in analysing the evidence regarding the venue of the crime relied very much on the presence of the blood at point No. 1 which is decidedly in the street at a distance of about fifty yards from the house of the appellant. According to memo, Exh. P. D. the blood stained earth was collected from point No. 1 on the very day of the occur rence i e. 28th of October 1968. According to Amanullah Khan Patwari (p, W. 8) who prepared the plan of the spot, he visited the spot on the second or third day of the occurrence and it was in his presence that the S.H.O. took possession of the blood‑stained earth the time and the day of the reco very of the blood‑stained earth is stated differently by one of the prosecution witnesses. It therefore, becomes doubtful if on the day of the occurrence blood‑stained earth was collected from point No. 1 which is in the street. The prosecution witnesses were agreed that in the house of the appellant there was no altercation and the appellant had raised no objection to Use. Nut Jahan's accompanying her father and other relatives. It looks unnatural that within a moment of the departure of the complainant party the appellant should become so aggressive as to follow the witnesses armed with a gun and a chhurra and kill one of the complainant party and injure the other two.

10. The appellant's case was that Isa Khan deceased was armed with a gun and Saadat Khan P. W. was armed with a hatchet and a knife, that he was attacked by Saadat Khan with the blunt side of the hatchet and by Isa Khan deceased with the butt of his gun, that Isa Khan had pressed hi; testicles and fearing that he might die he snitched the knife from the hand' of Saadat Khan and gave a blow to Isa Khan to rescue himself from his grip. He sail; that Saadat Khan had received the pellet wound when Isa Khan had fired and .1fst. Nur Jahan accidentally received an injury during the tight which went on his house. It may be mentioned here that in the F.

1. R lodged by Saadar Khan there was no mention what soever of the injuries on the person of the appellant. At the trial these in juries were explained by saying that when the appellant followed the complainant party Mst. Nur Jahan pelted stones at him and thus injuries were caused to him. Mst. Nur Jahan has given the order in which the com plainant party was proceeding after coming out of the house of the appel lant. Saadat Khan had described this order differently. There were in all twelve injuries on the person of the appellant out of which eight were in the region of the head. One of these injuries was on the back of the head. Another injury was on the back of the lumber region. Injury No. 11 is des cribed as a slight swelling on the right testicle and injury No. 12 was caused with a sharp‑edged weapon. The trial Court observed that injury No. 11 was fabricated later on by the appellant, as the prosecution witnesses never owned that they had caused such an injury to the appellant. In the medical certificate injury No. 10 has been repeated and perhaps when the learned trial Court referred to injury No. 11 it actually meant injury No. 12 which had been cause by a sharp-edged weapon. There is no material to support its conclusion that this injury was fabricated. The prosecution wit nesses would naturally be inclined to minimize the part they played in inflict ing injuries on the appellant. Even if we believe that Mst. Nur Jahan was such a good masks woman that she could hit the appellant for eight times in the region of his head, the existence of the injuries on the back of the head and the back of lumber region as also injury on the testicle and the incised wound remain unexplained.

11. Saadat Khan and Mst. Nur Jahan bear the stamp of injuries on their persons and their presence at the spot cannot be denied. It is, how ever, doubtful if Abdul Ghaffar and Muhammad Yunas were present at the spot. Abdul Ghaffar stated that he had gone out of his village to pur chase goats and after an unsuccessful visit to village Vaggi, went to the house of the appellant in order to purchase goats. He was accompanied by Abdullah Jan the given up witness. Muhammad Yunas also claims to have accompanied his grandfather Ali Khan to the house of rte appellant, Saadat Khan (P. W. 11) said that Abdul Ghaffar had accompanied him to the hospital. The Investigating Officer said that he had not recorded the statement of any eye‑witnesses at the time of the recording of the F.

1. R. If Abdul Ghaffar had accompanied the injured person as claimed by Saadat Khan, the Sub‑Inspector must have recorded his statement there and then. It is also unlikely that Muhammad Yunas P. W., if he was actually accompanying his grandfather and his brother both of whom were injured in his presence, would have lagged behind. In order to get rid of a difficult situation both the witnesses stated that they had accompanied the injured persons to some distance and then came back. It is also ,significant that Mst, Nur Jahan was also not taken to the hospital at the same time but she claims to have gone herself to the house of her parents after the incident and was medically examined on 30th of October 1968.

12. The appellant's case was that he himself had gone to the police in an injured condition and had asked them to take down his report. He in this connection was supported by F. C. Rabnawaz (P, W. 4) who stated that the appellant was one of the injured persons who had met the police at Kacha Bhangi Khel. The appellant after the incident put in an application for action against the complainant party under sections 394/452/307/354 and 325, P. P. C. to the Superintendent of Police on 1st of November, 1968. The S. P. passed orders forwarding the same to the Inspector of Police, Kalabagh for necessary action. We find from the statement of Muhammad Afzal (D. W. 1) that Muhammad Afzal Khan Investigating officer reported that this application may be filed. It is not known whether any fur ther action was taken on this application S. I. Muhammad Afzal Khan the Investigating Officer after making his statement before the committing Magistrate had disappeared and the appellant had no opportunity to cross examination at the trial can this aspect of the case. It was after the appellant had filed an application before the Additional District Magistrate, Mianwali, that he was medically examined by the Doctor of the Civil Hospital, Kalabagh, on 10th of October, 1968. It, therefore, appears that the appellant's side of the case did not get proper treatment and he had to resort to present the applications to the higher authorities.

13. The question which falls for determination is as to what offence, if at all, the appellant had committed in view of the facts given above. It appears to me that there was a sudden quarrel between the parties in the house of the appellant which was followed by a fight and in the heat of the passion the appellant whipped out a knife and gave the fatal injury to Isa Khan. There is no convincing evidence that the gunshot injury on the person of Saadat Khan P. W. was caused by the appellant as alleged by the prosecution. Apparently, if he had a gun there was no occasion for him to use a knife, The injure on the person of Mst. Nur Jahan remains unexplained by him. It is on the back of her head and it appears that while she was leaving the house with her father and other relatives the appellant in a fit of rage caused this injury. The case in my view so far as the death of Isa Khan is concerned, fails within the purview of Exception IV to section 300, P. P. C. The conviction is, therefore, altered from section 301 to 304, Part I, P. P. C. I think the sentence of eight year R. I. will be sufficient to meet the ends of justice. The conviction and sen tence under section 326, P. P. C. for causing a grievous injury to Mst. Nur Jahan is maintained. The conviction and sentence of the appellant under section 324, P, P. C. is set aside for want of convincing evidence. The sentence of imprisonment awarded to the appellant under section 326, P. P. c. will run concurrently with that award to him under section 304, part 1, P. P. C. The appeal is decided accordingly. order accordingly.