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Criminal Appeal No. 67 of 1973/8WP and Murder Reference No. 3 of 1.974/BWP, decided on 7th November 1974.

‑‑ Ss. 302 & 304, Part I, read with S. 300, Exception I‑Grave and sudden provocation ‑Accused finding deceased attempting to commit adultery with his wife, giving him hatchet blows, proving fatal--- Conviction under S. 302, P. P. C. altered to one under S. 304, Part I, P. P. C. in circumstances.‑[Grave and sudden provocation]

‑‑ S. 302‑Conviction, propriety of‑Evidence appreciation of‑ Benefit of doubt‑---F. I. R. recorded by Investigating Officer after spot inspection‑Prosecution witnesses unreliable and their testi mony full of material discrepancies and without any corroboration by any independent evidence‑Prosecution story improbable and unnatural while defence version that murder was work of co‑accused alone and accused roped in for their close relationship with co -accused, not only plausible but probable‑Accused given benefit of doubt and acquitted, in circumstances.‑[Evidence‑Benefit of doubt].

Malik Muhammad Din for Appellants.

Sardar Najamudain for the State.

‑Khandoo son of Qaim aged 35 years armed with & hatchet, Mahmood son of Ali Mohammad aged 55 years, armed with a hatchet, Ghulam Qadir son of Qaim aged 30 years armed with a hatchet, Taj Mohammad son of Amir Hamza aged 33 years armed with a hatchet and Sher Mohammad son of Nasir Ahmad aged 28 years armed with a gun have been convicted under sections 302/149, P. P. C. for the murder of Khandoo Khan vide judgment dated the 26th for the murder of Mudho Khan vide judgment dated the 26th of November 1973, of the Sessions Judge, Rahimyar Khan, and Khandoo, Mahmood. Ghulam Qadir and Tai Muhammad were sentenced to death as well as fine of Rs. 5.000 each or in default to undergo one: year's R. I. whereas Sher Muhammad was sentenced to imprisonment for life plus fine of Rs. 5,000 or in default to undergo one years R. I. They were also convicted under section 364, P. P. C. and sentenced to seven years' R. I. each. Similarly they were also convicted under section 148, P. P. C. and sentenced to six months' R.I. each. Similarly, they were also convicted under section 148, P. P. C. and sentenced to six months' R. I. each the sentences sere ordered to run concurrently in the case of the convicts and reference for the confirmation of death sentence awarded to them except Sher Muhammad are being taken up and disposed of together by this judgment.

2. The occurrence took place at fajarwela on the 21st of March, 1912, in Bani Nasir Khan village Kotla Khan Lar at a distance of 13 miles from Police Station Saddar Khanpur, District Rahimyar Khan. F. I. R. (Exh. P. A.) was lodged by Rukan Din (P. W. 6). uncle of the deceased at 9‑00 a. m: on the some day and it was recorded by Muhammad Siddiq A. S. I. (P. W. 10).

3. The motive for crime as set up by the prosecution is that the deceased was suspected of carrying on illicit liaison with Mst. Qasim Khatoon wife of Khandoo appellant.

4. The prosecution has produced four eye‑witnesses of the occurrence, namely, Rukan Din (P. W. 6) uncle of the deceased, Ghulam Murtaza (P. W. 7) brother of the deceased, Qamar Din (P. W. 8) another uncle of the deceased and brother of Rukan Din P. W. and Muhammad Musa (P. W. 9) another brother of the deceased. They all belong to a village, which is at a distance of 1 miles from the place of occurrence according to Noor Ahmad Patwari (P. W. 4). Ahmad Bakhsh was mentioned as an eye witness in the F. I. R. but he was not produced. Anyway, he was also a cousin of the deceased. It may be mentioned here that the appellants are also closely related to each other. Khandoo and Ghulam Qadir appellants are both brothers. Sher Mohammad appellant is brother of Mst. Qasim Khatoon wife of Khandoo appellant. Mahmood and Taj Muhammad appellants are their relatives. Khandoo, Mahmood, Ghulam Qadir and Taj Muhammad appellants were stated to have been armed with hatchets whereas Sher Muhammad appellant was stated to have been armed with a gun.

5. Khandoo appellant was arrested on the 24th of March, 1972, by Mohammad Siddiq A. S. I. (P. W. 10). The other appellants were arrested by him on the 30th of March, 1972. There are the following relevant recoveries in this case:

(i) Blood‑stained hatchet P. 10 and blood‑stained shirt P. 11 recovered from Khandoo appellant and taken into possession vile memo. Exh. P. E., dated the 24th of March, 1972, the attesting witness being Shamas Din (P. W. 5) and Rustam (not produced) besides the investi gating officer.

(ii) Blood‑stained hatchet P. 12 produced by Mahmood appellant and taken into possession vide memo. Exh. P. H. dated the 30th of March, 1972, the attesting witnesses being Mullan Kamal and Hazoor Bakhsh (both not produced) besides the investigating officer.

(iii) Blood stained hatchet P. 3 produced by Taj Muhammad appellant and taken into possession vide memo. Exh. P. L, dated the 30th of March 1972 the attesting witness being the same.

(iv) Blood‑stained hatchet P. 14 produced by Ghulam appellant and taken into possession vide memo. Exh. P. W. dated the 30th of March 1972, the attesting witness being the same. No recovery was made from Sher Mohammad appellant.

Although the above articles were recovered on the dates mentioned in their memos., their scrapings were sent for chemical examination many days after on the 14th of April, 1972. Anyway, according to the report of the Serologist (Exh P. N/1) scrapings from all the above articles were found to he stained with human blood. We want to make two observations about these recoveries. First, Kamal and Hazoor Bakhsh the attesting witnesses of the recoveries made from Mahmood, Taj Muhammad and Ghulam Qadir appellants were not produced. So far as the recoveries made from Khandoo appellant are concerned, he does not deny these. On the contrary he had stated in iris statement before the trial Court that he himself produced blood stained hatchet P. 10 and blood‑stained shirt P. 11 before the police on the 21st of March. 1972. Second, there was so much delay in sending the scrapings of the above‑mentioned articles for chemical examination that it is doubtful if they could have been found stained with human blood after 4o many days

6. Dr. Muhammad Asghar (P. W. 1) conducted post‑mortem examina tion on the dead body of the deceased at 4‑00 p.m. on the 21st of March, 1972 and found on his person 14 incised wounds on the back, right side of neck, skull, right ride of head, upper part of the neck, chin, face etc. In his opinion death was due to shock caused by external haemorrhage and injury to brain. Six out of fourteen injuries sustained by him were sufficient to cause death in the ordinary course of nature.

7. Khandoo appellant ire his statement before the trial Court did not deny the occurrence. He owned hatchet P. 10 and shirt P. 11 and gave his own version of the incident. He stated before the Committing Magistrate that on the fateful night he woke up on the cry of one of his children and saw the deceased who was trying to commit adultery with his wife Mst. Qasim Khatoon. He picked up hatchet P. 10 and killed him under sudden and grave provocation. He then reported the matter to Ghulam Nabi Lambardar (D. W. 1) who produced hire before the police where he presented blood-stained hatchet P. 10 and blood‑stained shirt P. 11. He further stated that he killed the deceased under sudden and grave provocation due to ghairat and that the other appellants were not present there but had been falsely implicated. Before the trial Court he made the same statement except that he added' that he woke up on the cry of a child and alarm raised by his wife and saw a man trying to commit rape with his wife and that in order to avert this attempt he took up hatchet and gave injuries to the deceased therefore, discovering that the culprit was Mahdoo Khan who had trespassed into his house. He produced Ghulam Nabi (D. W. 1) in support of his version It may be pointed out that Ghulam Nabi Lambardar has been cited as witness in the F. I. R. but was not produced by the prosecution anyway, he was produced by the defence and the supported the version given by Khandoo appellant. So far as the other appellants are concerned in their statements before the trial Court they totally denied having participated in the occurrence. They disowend hatchets recovered from them and stated that they a ere not present at the time of occurrence and that the deceased was killed out of 'ghairat' by Khandoo appellant but they had been roped in only because of their close relationship with Khandoo appellant or his wife.

8. In the F. I. R. the occurrence is reported to have taken place in the following manner. Ghulam Murtaza (P. W. 7) brother of the deceased and nephew of Rukan Din (P. W. 6) was very fond of gambling. Two days prior to the occurrence be lost Rs. 500 in gambling. On the day of occurrence, clearly at dawn the deceased came to Rukan Din P. W. and informed him that Ghulam Murtaza P. W. had picked up Rs. 100 just then and had run away towards the Basti of Lutaf Ali in order to spend it on gambling. On hearing this Rukan Din P. W. and the deceased ran after Ghulam Murtaza P. W. The deceased was running ahead of Rukan Din P. W. and was calling Ghulam Murtaza P. W. to stop. When the three of them running in the field at dawn time reached near the village of the appellants, the appellants suddenly emerged from a deserted canal. Khandoo, Taj Mohammed, Ghulam Qadir and Mahmood appellants were armed with hatchets whereas Sher Muhammad appellant was armed with a gun. They ran after the deceased. The deceased ran ahead of them in a wheat field. But the appellants encircled him and caught hold of him. Thereafter they dragged him to Basti Nasir Khan, which was nearby. On seeing this Rukan Din P. W. raised alarm and Ghulam Murtaza as well as Qamar Din P. W. and Mohammad Musa P. Ws. Nos. 7, 8 and 9 also arrived on the spot. They had attempted to rescue the deceased. But Sher Mohammad appellant fired in the air and held out a threat that if any one of them came near, he would be killed. The other appellants who were armed with hatchets also gave a lalkara to a similar effect to the P. Ws, warning them to keep off. The P. Ws. kept standing there out of fear. The appel lants took the deceased dragging to the house of Khandoo appellant and when they reached there, they started giving him blows with their hatchets. Rukan Din P. W. along with others stood by the wall and saw the occur rence. Sher Muhammad appellant stood in the courtyard with a gun in his hard telling the other appellants that they should murder the deceased who had been playing with their honour. In the meantime, within the sight of the P. Ws. the other appellants gave hatchet blows to the deceased until he lay dead on the spot. The P. Ws. raised alarm bit out of fear no one from the Basti came there. While the deceased was being given blows, he pleaded that he was innocent and that his life should be spared. But the appellants did not listen to him and murdered him. Rukan Din P. W further stated in the F. I. R. that the appellant had murdered the deceased because they suspected him for carrying on illicit liaison with Mst. Qasim Khatoon wife of Khandoo appellant. He stated that the appellants knew that the deceased was fond of gambling and had been passing through this way. Consequently they caught him on the fateful day, took him to the house of Khandoo appellant and murdered him. The dead body of the deceased was lying in the house of Khandoo appellant and it was being produced by Ghulam Nabi Lambardar (D. W. 1) who was present there.

9. We have heard learned counsel for both the side and have carefully perused the record. We may point out at the oustet that on the very face of it the version of the occurrence given in the F. I. R is really strange. Firstly, it is strange because ordinarily one would not go to gambling at the time of dawn from one village to another. Secondly, if Ghulam Murtaza P. W. had picked up Rs. 100 from his house and had run away early in the morning, it does not have any sense as to very he should be chafed by Rukan Din P. W. and the deceased. Thirdly, the F. I. R. does not mention that the deceased was also fond of gambling and that he was in the habit of going for gambling early in the morning at dawn. Fourthly, it is difficult to understand as to how the appellants knew that he would pass by their village at dawn on the day of occurrence and that this would be a proper occasion to get hold of him. Fifthly, it is further strange that they would catch the deceased in a field and in order to murder him would take him inside the house of Khandoo appellant. An inference can be drawn from these points that this F. I. R. does not give a true version of the occurrence. Anyway, Rukhan Din P. W. has slated lit his cross‑examination that in his statement before the Committing Magistrate he admitted that the F. I. R. was recorded by the investigating officer after spot inspection and obtained his thumb‑impression much later in the night. All the eye‑witnesses are closely related to the deceased. They have come forward in support of the prosecu tion version. They resided at a distance of 1 miles from the place of occur rence. Apart from material discrepancies in the statements of eye‑witnesses, the version that they sere chasing one another and running at dawn appears difficult to accept and doubtful. It seems as if a story has to be made in order to show tat the appellants saw the deceased running and encircled him, then caught him and dragged him to the house of Khandoo appellant in order to murder him. It may be pointed out here that there are no signs of dragging indicated in the site plan or noted by the investigating officer. The recoveries in this case except the ones, which have been owned by Khan doo appellant are not of much help. Their attesting witnesses were not produced by the prosecution and they were not supported by any other person except the investigating officer who is reported to have recorded the F. I. R. on the spot after preliminary investigation. The police officer kept the recoveries with him for more than a fortnight and then the, e were sent up for chemical examination. Therefore, they could be tampered with. We doubt if any reliance can be placed on his testimony. The defence version has been given by Khandoo appellant who has stated that he had killed the deceased with a hatchet as he found him in the company of his wife at the dead of night. His version is that he killed the deceased out of grave and sudden provoca tion and on account of ghairat and that the other appellants were not present at that time nor any P. W. was present at the scene of crime. His version is not only plausible but probable. It seems that the other appellants bad been falsely implicated in this case only because they were close relatives of Khandoo appellant. We have carefully examined the statements of the eye‑witnesses produced by the prosecution in this case and we are of the considered view that it would not be safe to place any reliance on their testimony. They are not a type of people on whom reliance could possibly be placed. Rukan Din P. W. is a previous convict. Similarly, Ghulam Murtza P. W. is an ex‑convict as well as habitual gambler. The other P Ws. are also not of any status or substance and their testimony is full of material discepancies In our view, it is doubtful if they had seen the occurrence. But they made out a story in order to involve not only Khandoo appellant but also his relatives i.e. the other appellants. The reasoning of the trial Court that to cause 14 incised injuries on the person of the deceased was not the act of one man is defective reasoning. If a person was suddenly and gravely provoked, the number of injuries which he is likely to cause would be many and not few. We are convinced in our mind that the injuries caused to the deceased in the present case could have been caused by a single person i e. Khandoo appellant who on seeing him attempting to commit adultery with his wife must have list the balance of his mind anti being suddenly and gravely provoked, he inflicted as many as 14 incised injuries to him. Some of the eye‑witnesses have stated that Sher Muhammad appellant caused him injuries with the butt of his gun. But their testimony is contradicted by the medical evidence, which does not show that the deceased had any blunt weapon injury on his person. Anyway, we are of the view that no reliance can be placed on the testimony of the eye‑witnesses, which is not even corroborated by any independent evidence particularly in respect of the appellants other than Khandoo. So far as Khandoo appellant is concerned he does not deny having participated in the occurrence. He gives a very plausible explanation, which is an acceptable version because he could have woken up early at dawn on hearing cry of a child and thus found the deceased in his house with his wife. The account given by the eye‑witnesses that they were running after one another at dawn in the fields because Ghulam Murtaza P. W. was interested in gambling and had run away with Rs. 100 was not only improbable but un natural. In the light of what has been discussed above we are of the view that in the circumstances the conviction as well as sentences of the appellant were not proper. The trial Court should have given the benefit of doubt to the appellants other than Khandoo appellant and it should have also accepted the defence version of Khandoo appellant, which was reasonable and pros able. The result is that so far as Khandoo appellant is concerned we are of the considered view that in the circumstances his case is covered by Exception I to section 300, P. P. C. and that he should have been convicted under section 304 (I), P. P. C. He caused culpable homicide of the deceased not amounting to murder whilst deprived of the power of self‑control by grave and sudden provocation. We accordingly alter his conviction from section 302, P. P. C. to section 304 (I), P. P. C. and also alter his sentence that of death to imprisonment for a period which he has already under gone as sufficient to meet the ends of justice. (Khandoo appellant was arrested on the 24th of March, 1972, and bad since remained in jail .e. now for a period of about 2 years. His other convictions and sentences are hereby set aside. His appeal is accepted to his extent. He shall therefore he released from jail forthwith if not wanted in any other case. As fox the other appellants we are of the considered view that it is doubtful if they participated in the occurrence and that in the circumstances they should have been given benefit of doubt. Their convictions and sentences are set aside and they are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case.

10. The sentence of death awarded to Khandoo, Mahmood, Ghulam Sadiq and Taj Muhammad appellants is not confirmed.

Order accordingly.

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