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Criminal Appeal No.69 of 1984 and Murder Reference No.80 of 1985, heard on 8th June, 1987.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Prosecution story as put in first information report highly improbable‑‑Statement of eye‑witnesses incredible‑‑None from locality appearing to support prosecution case‑‑Motive story also appearing to have been put up‑‑Recovery not attested by any person belonging to the locality‑‑Presence of eye‑witnesses at scene of crime doubtful‑ Plea of accused as to grave and sudden provocation caused by the scene of criminal assault on his wife by deceased remaining uncontradicted‑‑Nothing found in statement of accused and his wife to show that his wife was a consenting party to sex with deceased‑ Killing of deceased by accused being justified in circumstances, conviction and sentence were set aside.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Criminal Procedure Code (V of 1898), S.103‑‑Recovery‑ Investigating Officer not joining any person from locality to attest recovery‑‑Recovery evidence disbelieved and investigation not considered above. board.‑‑[Recovery]

(c) Penal Code (XLV of 1860)‑‑

‑‑‑S. 300, Exception (I)‑‑Right of defence, not to be weighed in golden scale.‑‑[Private defence, right of].

Mohammed Yousaf Saraf for Appellant. Muhammad Nawaz Abbasi A.A.‑G. for the State. Zafar mahmood for the Complainant. Dates of hearing: 7th and 8th June, 1987.

MAZHARUL HAQ, J. ‑‑Rozi Khan, a Store Keeper, in the Wah Cantt. Factory and his wife Mst. Sultan Zeba were tried for the murder of Sultan Mehmood by the Additional Sessions Judge, Rawalpindi. On 24‑6‑1984, Rozi Khan was convicted under section 302 P.P.C. and sentenced to death with a fine of Rs. 30 0001‑ in default to undergo two years' R.I., out of the fine, Rs.20,000/‑ was ordered to be paid as compensation to the heirs of the deceased. Mst. Sultan Zeba was acquitted. Appeal of the convict, the connected murder reference and Fazal Karim, petitioner's revision against the acquittal of Mst. Sultan Zeba are before us.

2. Rozi Khan accused was in debt to Sultan Mehmood (deceased), in order not to pay it back, both accused planned to kill him. Prosecution case is that during the days of occurrence, Fazal Karim, informant, resident of Hazru District Attock was putting up with his brother‑in‑law (hum zulf) Sultan Mehmood, he had come over in search of a job. On 20‑8‑1982, Fazal Karim and Ajoon Khan were in the house of the deceased. At about five in the evening Rozi Khan came there and asked Sultan Mehmood (deceased) to accompany him to his house for settling the debt, upon this, Fazal Karim, Ajoon Khan and Sultan Mehmood accompanied Rozi Khan to his house. At about "nimashan wela", they reached there. Rozi Khan asked Fazal Karim and Ajoon Khan to stay outside, he took Sultan Mehmood into the eastern room of his house. Within their sight, Rozi Khan and his wife Mst. Sultan Zeba opened the attack on Sultan Mehmood with knives causing injuries on the left cheek and left neck, he fell down. Rozi Khan cut his neck, thereafter, he undressed him and 'inflicted more injuries on his left shoulder, arm and right thigh. During the attack, Sultan Mehmood tried to catch hold of the knife and received injuries on his fingers. Sultan Mehmood died at the spot. Rozi Khan fled away with the knife. Fazal Karim went to Police Post No.l and made statement Ex.P.D. to PW 13 Muhammad Yusuf ASI, the same evening at 7.45 p.m. on the basis of which formal FIR Ex.PD/1 was registered at Police Station Wah Cantt. Thereafter, the ASI went to the place of occurrence, arrested Mst. Sultan Zeba, prepared the necessary documents and sent the dead body for its post‑mortem examination.

3. On the following day at 9.30 a.m. PW 2 Dr. Abdul Aziz Tarar, Medical Officer held the autopsy on the dead body of Sultan Mehmood aged about 34/35 years. The doctor found the following injuries on it:‑

(1) Incised wound irregularly present in front of neck from below the chin upto base (super sternal notch) and on the side upto sterno mastoid‑muscles on both sides of neck.

(2) Three incised wounds with continuity of injury No.l was present towards the left postero‑lateral side of neck.

(3) Incised wound 3 cm x 1 em x subcutaneously tissue deep on left eyebrow.

(4) Incised wound on left cheek on the lower part measuring 2 em x 1 cm x muscle deep.

(5) Incised wound 3 cm x em x muscle deep in front of left ear.

(6) Eleven incised wounds from 2 em to 1 cm x cm x muscle deep over and in front of right shoulder.

(7) Incised wound in front of right middle ring and little finger on middle part of these fingers which were muscle deep.

(8) Incised wound 4 cm x 1 cm x muscle deep x in between left thumb and index finger.

(9) Incised wound in front of left middle ring and little finger with muscle deep.

(10) Incised wound six in number in front and on lateral side of left thigh.

(11) Incised wound 3 cm x cm x muscle deep on the back of right buttocks lower part.

(12) Abrasion on right forearm 4 cm x cm

(13) Incised wound in front of left forearm on the lower part 3 cm x cm x muscle deep.

In his opinion, death occurred due to shock and haemorrhage caused by injury No.l which was fatal and had cut oesophagus, trachea and blood vessels both external and internal jugular and caroidos.

Same day at 6.40 p.m. the doctor also examined Mst. Sultan Zeba and found "an incised wound cm x cm x subcutaneous tissue deep on the distal front of right index finger." The injury was simple caused by a sharp‑edged weapon.

4. On 23‑8‑1982 Rozi Khan appeared before PW 13 Muhammad Yusuf, ASI, and produced the blood‑stained knife P.1 which he took into possession through memo Ex.PE attested by PW 4 Muhammad Rafiq and Taj (given up as unnecessary). Since Rozi Khan was injured, he was medically examined. In the afternoon on 24‑8‑1982, same doctor found an incised wound on the back of his left hand at the base of ring finger which was muscle deep. The doctor also found four minor abrasions on his person.

5. On 25‑8‑1982, Mst. Sultan Zeba in custody led to the recovery of blood‑stained chhuri P.2 from within her residential quarter, it was made into a sealed parcel through memo Ex.P.F. attested by PW 6 Faqir Ullah and Fazal Dad (given up as unnecessary). The same day, blood‑stained clothes of Rozi Khan were also taken into possession through memo Ex.P.G. After completing the investigation, the accused were tried in due course.

6. Both accused denied guilt. Explaining the case against him, Rozi Khan said that he was drawing a salary of Rs.1,000/‑ and had never borrowed any money from the deceased. He added that the deceased worked with him in the same factory and had been making indecent advances towards his wife which she never disclosed to him out of fear so that it may not take a serious return. On the day of occurrence in the morning, he left for his native village to attend a marriage and he told his wife that he would return the same night. In case he was held up, he may come home the following morning. However, he returned the same evening, as he reached home, he heard the alarm raised by his wife. The door was latched from inside, he managed to open it and went in, he saw his wife naked. She told him that the deceased had criminally assaulted her, upon this grave and sudden provocation, he picked up a kitchen knife and attacked Sultan Mehmood. While grappling, he and the deceased both suffered some injuries. The deceased picked up a stick lying nearby with which he hit Rozi Khan. Upon this, he inflicted injuries to the deceased. Mst. Sultan Zeba tried to intervene but sustained injuries on her hand. Mst. Sultan Zeba supported her husband's statement, No accused led evidence in defence.

7. Trial Court found the presence of the two eye‑witnesses unnatural. It disbelieved them for good reasons but it also disbelieved the defence version and came to the conclusion that since the accused had admitted the killing and had failed to prove that he had acted in defence of his wife or had acted under grave and sudden provocation, he was, therefore, guilty of murder.

8. Criticizing the finding, learned counsel for the appellant contended that having disbelieved the presence of the eye‑witnesses, trial Court should have accepted the statement of the accused as a whole. It could not pick and choose a portion of his statement and come to a conclusion without corroborative evidence that the statement was false.

9. We have considered the matter. It may be mentioned at the outset that the prosecution story as put up in the FIR and the evidence of the two eye‑witnesses was highly improbable because it is not conceivable that the appellant who intended to kill Sultan Mehmood in his house would ask the two eye‑witnesses to accompany him to the scene of the crime. Their presence there was even otherwise doubtful because had they been there, they would not have been silent spectators. It may be mantioned here that PW 8 Fazal Karim (informant) was a close relation of the deceased and PW 9 Ajoon Khan admittedly lived at a distance of two miles away from the place of occurrence and had cordial relations with the deceased and PW 8 Fazal Karim for the last about twelve years. Admittedly, there were other houses around but none from the locality appeared to support the prosecution case. In so far as the motive story was concerned, although, the informant claimed to have disclosed the debt amount in the FIR but the same has not been mentioned therein. On the other hand, PW Ajoon Khan made no mention of the debt amount. It appears that the motive story too has been put up.

10. As to the recovery of weapons was concerned, although, Mst. Sultan Zeba was said to be present in her house on the arrival of the police and was arrested then and there, her house was searched but nothing was recovered. But we find that knife P.2 was got recovered by her five days later from her house. It also cannot be overlooked that the investigating officer did not join any person from the locality to attest the recovery. PW 6 Faqir Ullah a resident of Ismailabad situated at a distance of ten miles from the place of occurrence appeared to attest the recovery in this case. According to this witness, Mst. Sultan Zeba produced the key of her house before the investigating officer but according to the investigating officer Mst. Sultan Zeba's daughter was present at the house and opened the door. Trial Court rightly disbelieved the recovery evidence and did not consider the investigation above board.

11. Sole question for determination in this case would be whether there was any reliable evidence to show that any portion of accused's statement was false. In our opinion, there was none, because the presence of the eye‑witnesses at the scene of the crime was highly doubtful. On the other hand, there are no such circumstances appearing in the statement of the accused which could reasonably be said to have contradicted his plea. Mere fact that Mst. Sultan Zeba bore no injuries on her breast and other parts of her body would not go to show that the deceased had not criminally assaulted her. The next argument that had Mst. Sultan Zeba raised a hue and cry, she would have collected neighbours for help, since none appeared there indicated that she was not criminally assaulted by the deceased. She may have been afraid to put a violent resistance. It is in the statement of the appellant that when he reached home, he heard the alarm raised by his wife, he managed to open the latch and made his entry. The appellant's sudden appearance there was nothing unnatural. It is also in appellant's statement that he had told his wife that he may come back the same evening. We find that a portion of Mst. Sultan Zeba's statement weighed much with the trial court that she did not cause any injury to the deceased rather had been trying to save him on human grounds. If she really did act in this manner, she may have done so to avoid the killing thinking that it may land her husband in trouble, as such, her intervention can lead to no adverse inference. But assuming that she had an affair with the deceased and he had come over that evening upon her invitation and on her husband's sudden appearance, she treacherously turned around and behaved in the manner, to make believe her husband that she was being ravished and also raised hue and cry. Even in this situation, the question would be what her husband saw, and in good faith believed it to be true. On the contrary, we find, there was nothing in the statement of the appellant and his wife to show that Mst. Sultan Zeba was a contesting party to sex with the deceased. Had it been so, then in all probability, Rozi Khan would not have spared her. At this stage, it may be mentioned that according to Rozi Khan, he heard the alarm of his wife while he was still outside the house trying to open the latch of the outer door. This in our opinion, clinches the matter because had Mst. Sultan Zeba been a consenting party and wanted her husband to believe that she was being ravished then she would have raised the alarm only on seeing him and not before that. We are satisfied that Mst. Sultan Zeba did resist the deceased and what her husband saw was an attempt by the deceased to ravish her. Under these circumstances of the case, the killing was justified in law. Before parting with the judgment, we would like to reiterate the well‑known principle of law that the right of defence is not to be weighed in the golden scale. We accept the appeal, set E aside the conviction and sentence of the appellant and acquit him. The death sentence is not confirmed. He be released forthwith if not required in any other case.

M.Y.H./R‑42/L Appeal allowed.

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