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Criminal Petition No. 371 of 1979, decided on 25th October, 1980.

(On appeal from the judgment and order of the Lahore High Court dated 28-1-1979 in Criminal Appeal No. 15 of 1978).

-- Ss. 304, Part I & 300, Exception I--[Murder-case;-Grave and sudden provocation-One out of several accused accepting responsibility for murdering victim and pleading grave and sudden provocation on seeing deceased in compromising position with his sister in her own kotha-Body of deceased having been found outside kotha of such accused's sister, compound wail being low enough to allow entrance and no marks of dragging of deceased being found between ihata of petitioner and kotha of woman, deceased apparently went to such kotha of his own and such could only be in pursuance of illicit intercourse with woman allegedly in illicit connection with deceased-High Court, in circumstances, held, correctly accepted version of confessing accused as against prosecution version of all accused having killed victim while he went out for urination in early hours of night.

Jari Ullah Khan, Advocate with Abdul Karim, Advocate-on-Record for Petitioner.

Nemo for Respondents -Nos. 1 to 3.

Major Nazar Mahmud, Advocate and Ijaz Ali, Advocate-on-Record for the State.

Date of hearing : 25th October, 1980.

Petitioner Waryam seeks leave to appeal against an order made by a learned Judge of the Lahore High Court on the 28th of January, 1979, whereby the conviction and the sentence of life imprisonment recorded against respondents Muhammad Akbar, Zulfiqar and Ilyas by the learned Additional Sessions Judge, Jhang, for the murder of the petitioner's brother Ghulam were set aside. Whereas Zulfiqar and Ilyas were acquitted altogether, respondent Muhammad Akbar was instead convicted under Part I of section 304 of the Pakistan Penal Code, and sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs. 1,000, or in default to undergo further rigorous imprison ment for six months. The revision petition filed by the petitioner for the enhancement of the sentence of the respondents was, as a consequence, also dismissed.

The allegations made by the petitioner in the F. I. R. lodged by him at 3-00 a.m. on the 6th of April, 1976, at Police Station Mochiwala, were that the respondents had a suspicion that the deceased Ghulam had developed illicit relations with respondent Muhammad Akbar's sister Mst. Mondan, and for it his reason they murdered him, when he had gone out for urination at about 8-00 p.m. on the 6th of April, 1976. According to Waryam, the deceased and other members of the family including the petitioner, his brother Muhammad (P. V. 8), Muhammad's wife Mst. Bakhtan, and Bakhtan's brother Malla (P. W. 7) were sitting together in the courtyard of the house of Waryam, and when the deceased did not return for quite sometime, then Waryam went out and heard the cries of the deceased from the house of respondent Muhammad Akbar. Waryam and his companions went into the Ahata of Muhammad Akbar, and. they saw the respondents causing injuries to the deceased with hatchets.

All the three respondents were produced before the Police by Mahni Lambardar, and they led to the recovery of blood-stained hatchets. At the trial, eye-witness account of the occurrence was given by Waryam, his brother Muhammad and Muhammad's brother-in-law Malla.

While respondents Zulfiqar and Ilyas denied any connection with the incident, respondent Muhammad Akbar claimed responsibility for killing the deceased on the ground that he had surprised him in a compromising position with his sister Mst. Mondan in the latter's kotha. He stated that he picked up a small hatchet lying in the courtyard, and caused injuries to the deceased under sudden and grave provocation. After killing the deceased he placed his body on a cot, and sent for his relations.

While the learned trial Judge accepted the ocular evidence, and also the factum of recovery of blood-stained hatchets at the instance of all the three respondents, the learned Judge in the High Court has taken a different view. He has observed that the prosecution case was belied in material particulars by the fact that there were no marks of dragging of the deceased across the wide bazar, which separates the ahata of the deceased from that of the respondents; and that if the deceased wanted to urinate, he could not have crossed the road and urinated next to the gate of the ahata of the respondents, so as to be easily dragged into their ahata. The High Court has further observed that although the three respondents, along with their blood-stained hatchets, were produced before the Police by Mahni Lambardar, yet this man was not examined as a witness at the trial, and it was left only to the Investigating officer to prove the recoveries. The learned Judge has expressed doubts about the veracity of the second recovery witness Hapal (P. W. 5), who admitted some sort of an enmity with the father of respondent Muhammad Akbar. Lastly, he has expressed the view that the alternative version given by respondent Muhammad Akbar right from the start appeared to be probable, as the dead body was found lying at a distance of 1 feet from the door of the kotha and there were no marks of dragging from the door of the ahata of the deceased to the door of the ahata of the respondents, and then from the door of the ahata of the respondents to the kotha outside which the body was found. It appeared to the learned Judge that apparently the deceased had gone to visit Mst. Mondan, and he was found there by respondent Muhammad Akbar.

Leave to appeal is sought on the ground that the learned Judge in the High Court has acted on mere conjectures in rejecting the ocular account of the eye-witnesses, and he was also in error in disbelieving the recoveries. The learned counsel submits that there was no material on the record to come to the conclusion that the eye-witnesses were falsely implicat ing the respondents or that they had not seen the occurrence.

After examining the entire evidence brought on the record, particularly the site plan, and giving our due consideration to the submissions made by Mr. Jari Ullah, we are of the view that this is not at all a fit case for our interference.

The fact cannot be denied that the body of the deceased was found outside the kotha of Mst. Mondan, which is sufficiently inside the ahata of the respondents, quite away from their entrance door. It appears, however, that the compound wall adjoining the kotha of Mst. Mondan is only 21 feet high, and one could easily enter from that side. As no mark of dragging were found by the Investigating Officer between the shat of the petitioner and the kotha of Mst. Mondan, it is clear that the deceased had gone to the kotha of his own, and that could only be in pursuance of his illicit intrigue with Mst. Mondan. The alternative version given b respondent Muhammad Akbar being probable, in the circumstances of the case, the Learned Judge in the High Court was right in accepting the same. On this view of the matter, he was right in acquitting respondents Zulfiqar and Ilyas, and convicting Muhammad Akbar only under section 304-I of the Pakistan Penal Code. .

The petition, therefore, fails and is hereby dismissed.

Petition dismissed.

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