2000 PLP 1246 (YLR)

This judgment will dispose of Criminal Appeal No. 13 of 1995 filed by Wali Muhammad, appellant, who was convicted and sentenced by learned Additional Sessions Judge-I, Bahawalnagar vide his judgment, dated 15-1-1995 to undergo imprisonment for life with a compensation of Rs. 30,000 under section 544-A, Cr.P.C. and in default S. I. for 3 months for committing the murder of Gohar Ali. Conviction was recorded under section 302, P.P.C. with the benefit of section 382-B, Cr.P.C.

2. Occurrence in this case had taken place at Asarwela on 10-3-1993 within the revenue limits of mauza Habibka at a distance of 14 kilometers from Police Station Ghamandpur, District Bahawalnagar while the matter was reported by Muhammad Mukhtiar (P.W.1) at 9-00 night on the same day through complaint Exh. P.A. and the formal F.I.R. Exh. P.A./1 was recorded by Muhammad Farooq, Moharrir (P.W.7) in the Police Station at 9-30 p.m. under section 324, P.P.C. Gohar Ali, later on, died and offence under section 302, P.P.C. was added.

3. Prosecution story as narrated by Muhammad Mukhtiar in written complaint Exh. P.A. were that on 10-3-1993 at Asarwela, after saying prayer, father of complainant was coming to his house; the complainant was also behind him at some distance and when Gohar Ali, father of the complainant reached near the house of Wali Muhammad, he (Wali Muhammad) while armed with a hatchet came out of his house. Father of the complainant had complained to Wali, appellant that you were not doing the good by cutting the fodder stealthly. During the conversation, an altercation took place between Gohar Ali and Wali Muhammad appellant upon which Wali Muhammad gave a hatchet blow on the head of father of the complainant when in the meanwhile. Sardar Ali, uncle and Falak Sher came at the spot. In the vision of the complainant party, Wali Muhammad caused repeated injuries on the person of Gohar Ali, deceased. On raising the lalkara by the complainant party, Wali Muhammad ran away from the spot by brandishing his hatchet. The complainant alongwith his companion took Gohar Ali to hospital where he was out of senses.

4. After registration of the formal F.I.R. Exh. P.A./1 Muhammad Jehangir A.S.I. (P.W.4) recorded the statements of Safdar Ali and Falak Sher and on 11-3-1993 visited the place of occurrence, collected blood-stained earth from the spot and took the same into possession vide memo. Exh. P.B. After the death of Gohar Ali, investigation was taken over by Syed Shabbir Hussain, Inspector/S.H.O. (P.W.11) who arrested the appellant on 13-3-1993 who while in Police custody led to the recovery of hatchet blood stained P.1 which was taken into possession vide memo. Exh. P.G. After completion of the investigation, report under section 173, Cr.P.C. was submitted and the appellant was to face the trial.

5. Prosecution in order to prove its case produced 11 witnesses in all out of whom Muhammad Mukhtiar (P.W.1) and Falak Sher (P.W.3) were eye-witnesses of the occurrence while the doctor who conducted the post-mortem examination. on the dead body of Gohar Ali was examined as P. W .5. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. in which he pleaded innocence and claimed false implication due to enmity. Reports of the Chemical Examiner are Exh. P.M. and Exh. P.N. while that of the Serologist is Exh. P.O. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as stated above.

6. Learned counsel for the appellant who was appointed at State expense submits that all the eye-witnesses are close relations of the deceased inasmuch as Mukhtiar Ahmad, complainant, is son of the deceased while Falak Sher in uncle of the complainant. Further submits that occurrence had taken place in front of house of the appellant and in fact it was a un-witnessed occurrence because according to the F.I.R. it was alleged that the appellant gave hatchet blows on the person of the deceased which landed on head and different parts of body of the deceased but after getting the medico-legal report of the deceased, eye-witnesses changed their version and stated that the appellant allegedly used wrong side of the hatchet. Learned counsel has drawn my attention to columns Nos. 12 and 20 of the inquest report Exh. P.J./2 to submit that in column No.12 the word " have been cut and words have been made while in column No.20, words mentioned are. Learned counsel submits that the appellant has been made a scape-goat and he has also drawn my attention to last paragraph of judgment of the trial Court which reads as under:-- "It seems that both the parties have not taken the Court into confidence as to what in fact immediately led to the altercation and the occurrence and the possibility could not be ruled out that the deceased might have uttered any nasty words enraging the accused which led to this occurrence." Further submits that recovery of hatchet has been planted upon the appellant and that the recovery witnesses are the same who are the eye-witnesses of the case and are closely related to the deceased. Learned counsel lastly submits that the appellant was taken into custody on 13-3-1993 and the judgment was announced on 15-1-1995 and since then appellant is behind the bar. He submits that case of the appellant, if any, falls under section 302(c), P.P.C. and not under section 302, P.P.C.

7. On the other hand, learned A.A.G. submits that appellant is named in the F.I.R., occurrence had taken place at Asarwela when the sun was there, so there was no question of mistaken identity; question of substitution does not arise, ocular account is corroborated the medical evidence and recovery of the hatchet with the positive report of the Chemical Examiner and that of the Serologist regarding human blood and that it was not possible that the witnesses could have seen as to which side of the hatchet was used by the appellant.

8. I have heard learned counsel for parties and have gone through the prosecution evidence recorded by the learned trial Court. In the instant case, it is no denied that he occurrence had taken place in front of house of the appellant; appellant could not know that the deceased had to pass through his house at the time of occurrence; it has not been proved on record that what transpired between the deceased and the appellant prior to the occurrence; the leaned trial Court, as submitted by learned counsel for the appellant, remarked in his judgment that both the parties did not approach the Court with clean hands; according to F.I.R., appellant allegedly caused injuries with hatchet but it seems that after getting the medico-legal report and the report of the post-mortem examination words; were changed in place of in column No. 12 of the inquest report and that the motive as alleged by the prosecution that the deceased used to cut the fodder stealthily is not worthy of credence because no independent witness was produced by the prosecution in this regard and no report or complainant was lodged against the appellant, was ever brought on record. Injury on the head of the victim proved fatal while rest of the injuries were not grievous.

9. Taking into consideration the facts and circumstances of the case, evidence of the prosecution, observations made by the learned trial Court and the occurrence having taken place in front of house of the appellant, possibility of provocation given by the deceased cannot be ruled out, so conviction and sentence of the appellant is altered from section 302-B, P.P.C. to one under section 302(c), P.P.C. and the period of 7 years for which he had remained behind the bar is considered to be sufficient to meet the ends of justice. Similarly, sentence of compensation awarded by the trial Court is also set aside. Appellate is in jail and he shall be released forthwith, if not required to be detained in any other case. H.B.T./W-4/L Order accordingly.