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Criminal Appeal No. 338 of 1984, decided on 29th January, 1936.

‑‑‑Ss. 302 s 304, Part II‑‑Plea of sudden and grave provocation‑‑No evidence existing to show that it was pre‑planned attack and accused was carrying weapon of offence‑‑Motive story as set up by prosecution was not given in F.I.R. but was an afterthought and was brought in to justify presence of deceased in house of accused where occurrence took place‑‑Dead body found by side of house of accused‑‑High Court giving preference to accused's statement after considering prosecution version and comparing it with defence plea Conviction of accused altered to S. 304, Part II, P.P.C. in circumstances.

‑‑‑S. 304, Part II‑‑Accused murdering deceased under sudden and grave provocation‑‑Conviction altered from S. 302, P.P.C. to S 104, Part II, P.P.C. and accused sentenced to five years R.I. with benefit of S. 382‑B, Cr.P.C.‑‑Sentence of fine also remitted.

Ch. Muhammad Hussain Chichar for Appellant.

Farooq Bedar, Asstt .A.‑G. for the State.

Date of hearing: 29th January, 1986.

Muhammad Ashraf son of Muhammad Siddique, resident of Naqi Nagar, Police Station Hujra, Tehsil Depalur District Okara was tried under section 302, P.P.C. for the murder‑of Muhammad Ali by the Additional Sessions Judge Okara, who by judgment dated 19‑5‑1984 convicted and sentenced him to life imprisonment under section 304, P.P.C. and a fine of Rs.10,000 or in default to undergo R.I for one year 3/4th of the fine, if recovered, was ordered to be paid to the heirs of Muhammad Ali deceased.

2. The occurrence in which the appellant is involved was alleged to have taken place on 8‑3‑1982 at 12‑00 noon in the house of the appellant situate in village Naqi Nagar which falls within the jurisdiction of police Station Hujra Shah Muqeem, Report was lodged by Ahmad Din real brother of Muhammad Ali deceased. It was recorded by Zafar Ali Inspector Police Station Hujra Shah Muqeem. The motive was that the appellant suspected that the deceased had illicit relations with his wife. Prosecution examined Ahmad Din the first informant and Muhammad Yahya as the eye‑witnesses. Reliance was also placed on the recovery of Kassi and the medical evidence.

3. The appellant in his statement under section 342, Cr.P.C. admitted that the Kassi belonged to him. He also admitted to have hit the deceased but raised the plea of sudden and gave provocation. I shall refer to his statement after I have discussed the ocular account.

Ahmad Din said that he alongwith his brother Muhammad Ali and Muhammad Yahya went to the house of the appellant. Yahya had bargained about a buffalo. He wanted to cancel that. That is why the party went to the house of appellant. They called appellant and entered his compound. The appellant was present in the door of his house. He caught hold of a Kassi and hit Muhammad Ali with that on his head and said that "you have brought my enemy in my house". Muhammad Ali started running. He was chased. Ashraf caught hold of him and gave a Kassi blow on the back of Muhammad Ali who fell down. The appellant gave number of blows on his neck and a blow on the head. All this was seen by Muhammad Idrees who was coming from Rajowal. Muhammad Ashraf with the Kassi returned to his house. Muhammad Ali died at the spot. Thereafter, Ahmad Din deposed about the motive.

Muhammad Yahya corroborated the statement of Ahmad Din. He said that he alongwith Ahmad Din and Muhammad Ali went to the house of Sarwar brother of Muhammad Ashraf for the return of buffalo purchased by them four days before the occurrence. Sarwar refused to get back the same. He said that they had brought this enemy before him. He picked up Kassi and gave a blow on the head of Muhammad Ali. Thereafter, Yahya repeated what Ahmad Din had deposed.

On 9‑3‑1982, Dr. Zakir Hussain, Medical Officer, Primary Health Centre Hujra conducted the post‑mortem examination on the dead body of Muhammad Ali. He found 8 incised wounds, two lacerated wounds and one multiple abrasion in front of upper chest around clavical. In the opinion of doctor the following injuries were sufficient to cause death in the ordinary course of nature:‑

(1) An incised wound in front of neck just above the roid cartilage wound is 10 x 2 c.m. and 3 c.m. deep cutting down the trachea and oesophagus as well.

(2) An incised wound on occiput 21 x x 2 c.m. x 2 c.m. cutting the skull and brain as well.

(3) An incised wound in skull running anteroposteriorly 8 c. m. from left pinna wound is 15 x 1 c. m. x 4 c. m. deep cutting skull and brain matters as well.

The appellant in his statement under section 342, Cr.P.C. said that the deceased had illicit liaison with his wife. On the day of occurrence he found the deceased with his wife in an objectionable condition. He lost self‑control. He came to know of these illicit relations on that very moment, when he saw the deceased and his wife in a compromising Position in his house when the occurrence took place. He admitted that the Kassi belonged to him. But the mode of recovery and its date were fictitious. According to him he voluntarily produced the Kassi before the Investigating Officer on the day of occurrence. When questioned "do you have anything to say" he gave the following answer:‑-

"I am innocent, in fact on my arrival in my house I found the deceased and my wife in objectionable condition. I lost my self -control and out of grave and sudden provocation caused injury on the person of my wife. In due course deceased Muhammad Ali tried to escape. I chased him and caused injuries on his person under sudden and grave provocation at the spur of moment. None of the eye‑witnesses was present there."

There are two versions of the incident. One by the prosecution as given by the brother of the deceased and Muhammad Yahya. The other by the appellant but what is common in both the version is that the accused suspected that the deceased had illicit relations with his wife.

4. Muhammad Yahya the independent eye‑witness gave the story of purchase of buffalo before the trial Court but he admitted that he did not say so before the police. It is, therefore, obvious that the story of buffalo was an afterthought and was brought in to justify the presence of the deceased in the house of the appellant. According to the eye‑witnesses the occurrence took place in the compound of the A appellant. The dead body wag found by the side of the house of the appellant.

5. After considering the prosecution version and comparing it with the appellants statement, I am inclined to give preference to the statement of the appellant because of the motive alleged by the prosecution. There is no evidence that it was a pre‑planned attack and the appellant was carrying a Kassi. According to the prosecution it was lying in the compound of the house of the appellant. I, therefore, accept the statement of the appellant. As such the conviction is altered to section 304, Part II, P.P.C. The sentence is reduced to 5 years. The sentence of fine is remitted. The appellant shall also be given benefit of section 382‑B, Cr.P.C.

6. With this modification the appeal stands disposed of.

H.A.K. Appeal partly accepted.

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