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Criminal Appeal No.50 and Criminal Revision No.108 of 1985, decided on 30th March, 1987.

---S.302--Grave and sudden provocation--Plea of--Accused admitting time and place of occurrence and also his attacking deceased with Bailcha--Motive alleged by prosecution being illicit relations of deceased with sister of accused--Accused and deceased living in adjacent houses--No quarrel ever taken place between them--Nothing on record showed suspicion by accused of illicit connections of deceased with his sister--No complaint. ever made by him to father or family- of deceased--Story of deceased going to shop for purchases found doubtful--Accused losing self-control on complaint by his sister and deceased coming over there soon after--Accused causing injuries to deceased with Bailcha when cleaning rain water--Plea taken at earliest opportunity before police--Plea of grave and sudden provocation accepted and conviction altered from S.302, P.P.C. to 304, Part 1, P.P.C. in circumstances.

Sardar Muhammad Ishaque Khan for Appellant.

Muhammad Aslam Malik for the State.

Date of hearing: 30th March, 1987.

Ishfaq Hussain son of Allah Ditta, aged 22 years, a student of 2nd year, r/o Kaluwal district Jhelum has been convicted by Sessions Judge, Jhelum for murdering Sajad Mahmud, aged 24 years and sentenced to imprisonment for life and a fine of Rs.10.000/- in default of payment of fine to undergo further R.I. for two years, vide judgment dated 14-3-1985. The fine, if realized, was ditected to be paid to the heirs of the deceaed as compensation. The convict has challenged his conviction and sentence by filing Criminal Appeal No.50 of 1985 while Khushi Muhammad, father of deceased, has filed Criminal Revision No.108 of 1985 seeking enhancement of sentence of the appellant. Both Criknal Appeal as well as Criminal Revision are being disposed of by this single judgment as they arise out of the same judgment.

2. The occurrence took place on 2-4-1984 at 6.30 p.m. in village Kaluwal at a distance of 5 miles from police station Dina and the F.I.R. Ex.PG was made by Khushi Muhammad (PW. 9) father of the deceased recorded by Ch. Nadir Ali SHO (PW. 11) at 8.15 p.m. the same day.

3. The prosecution case as set up in the F.I.R. Ex.PG is that on 2-4-1984 at 6 p.m. Sajad Mahmood (deceased) having taken his evening meals went to a nearby shop of Wasif. The complainant Khushi Muhammad (father of the deceased) came out of the house and stood in front of his Baithak. Ishfay Hussain (appellant) at that time was present on the western corner of the road carrying a Bailcha. The deceased while returning from Wasif's shop when passed by the appellant the latter attacked and inflicted blow on his head with Bailcha as a result of which he fell down. Thereafter, the appellant gave 5/6 more Bailcha blows to him which landed on his head, neck and forehead. Khushi Muhammad complainant (PW. 9) raised alarm which attracted Faiz Muhammad PW. 10) and Muhammad Zaman PW (given up) who also witnessed the occurrence. The complainant immediately removed the deceased in injured condition-in a wagon to Civil Hospital Jhelum for treatment where he died before any medical and was given to him. Leaving the dead body at the hospital in the care of Fazal Karim and Javed Zaman the complainant went to police station Dina and lodged report Ex.PG there. The motive behind the attack was stated to be that the appellant suspected the deceaesd as having illicit connection with his sister Mst. Zahida.

4. S.I. Ch. Nadir Ali (PW. 11) after recording F.I.R. reached Civil Hospital,V4olum at 9.30 p.m , and prepared injury statement Ex.PH and inquest report Ex. PJ of the deceased and sent the dead body for post-mortem examination under the police escort. 0n 3-4-1984 he inspected the spot and collected blood-stained earth vide memo Ex.PE. On the same day he prepared injury statement Ex.PK of Faiz Muhammad P.W. and got him medically examined. He arrested Ashfaq Hussain (appellant) on 8-4-1984 who got recovered blood-stained Bailcha P.4 from courtyard of his house which was secured under memo Ex.PF. On completion of investigation challan was submitted in Court for trying the appellant.

5. Dr. Tahir Shabbir, Medical Officer, D.H.Q. Hospital, Jhelum (PW. 1) who performed post-mortem examination on the dead body of Sajad Mahmood (deceased) on 3-4-1984, found 9 injuries on the dead body. According to him deceased's death occurred within half an hour of receipt of injuries and time between death and post-mortem was within 18 hours. It may be stated that mainly the injuries are on the head. Injuries Nos.l 'to 5, in the opinion of doctor, were sufficient to cause death in ordinary course of nature.

6. Faiz Muhammad P.W. was also examined medically by the same doctor on the same day who found on his person a linear abrasion measuring 1 x 1/8" on palmer side of left hand in proximale part and on unler side which was simple in nature caused by blunt weapon within the duration of 18 to 24 hours.

7. At the trial 11 witnesses were examined by the prosecution. Of them Khushi Muhammad (PW. 9) and Faiz Muhammad (PW. 10) furnished ocular account of occurrence while Ashiq Hussain (PW. 8) and S.I. Nadir Ali (PW.11) proved the incriminating recovery of Bailcha P.4 affected from the appellant and Dr. Tahir Shabbir (PW. 1) proved that Sajad Mahmood (deceased) had died of violence.

8. The appellant admitting the occurrence raised plea of self defence in the following words: --

"The fact of the matter is that on 72-4-1984 at about 9 p. m. my sister Mst. Zahida Perveen had gone to ease herself in the nearby hill and deserted area. While she was coming back to the house, Sajid Mahmood deceased attempted to outrage her modesty and also tried to commit rape on her. On her hue and cry I reached there and to save her honour and prestige, I gave injuries to the deceased with a Bailcha, which I was using at that time, to clear the rainy water which had collected in front of my house."

He led no evidence in defence.

8. Learned trial Court rejected the defence plea observing that there is no evidence that rainy water had collected near the place of occurrence; that the rainy water could not be removed with a Bailcha; and that the appellant's plea that he was attracted by the hue ar4 cry raised by his sister and then he attacked the deceased was not believable because if it were so then other people would have also heard the cries of the girl and reached. Learned.trial Court thus believing the version given by Khushi Muhammad complainant and Faiz Muhammad PWs though closely related to the deceased, convicted the appellant under section 302 of the P.P.C. and inflicted lesser penalty on him as the deceased was accused of having illicit relations with sister of the appellant. Feeling aggrieved thereby the instant appeal has been filed.

9. Khushi Muhammad complainant (PW. 9) father of the deceased at the trial deposed that Sajid Mahmood (deceased) was his son who was mechanic by profession and worked in Dina. On the fateful day at 6 p.m., after taking his evening meals he went to the shop of Wasif at a distance of 25 Karams from his house for purchasing something. After about 15 minutes of his departure he came out of the house and stood in front of his Baithak. At that time Ashfaq Hussain (appellant) who lived in the adjoining house armed with a "Bailcha" was standing in front of his house across the road. The deceased while returning home when passed by the appellant the latter gave him a blow on the head with Bailcha as a result of which he fell down. The appellant gave him further 5/7 Bailcha blows which landed on his head, neck and forehead. The occurrence was witnessed by Faiz Muhammad and Zaman PWs. Faiz Muhammad PW tried to snatch the Bailcha from the appellant but he having got released from him ran into his house. He immediately rushed his son in a wagon to Civil Hospital Jhelum. As soon as they arrived the hospital the deceased died. In cross-examination he asserted that he mentioned in the F.I.R. that Faiz Muhammad PW tried to snatch Bailcha from the appellant but un confrontation it was not found recorded in the F.I.R. Ex.PG. He stated that he reached Jhelum hospital at 7.15 p. m. he admitted that they had no dispute or quarrel with the appellant or his father before the occurrence. He denied be at he was not present at the time of occurrence or that having learnt subsequently about the death of his son he had reached the spot. He parried the suggestion that the appellant's sister Mst. Zahida had gone to ease herself in the nearby hillock where the deceased triea to outrage her modesty and that on her hue and cry Ashfaq Hussain (appellant) reached there and in order to save the honour of his sister had injured the deceased. The other eye-witness Faiz Muhammad (PW 10) grandson of the complainant made a similar statement. He stated that at the time of occurrence he had gone at the shop of Wasif for purchasing a match box where the deceased was also present. The deceased in his presence went towards his house and the appellant attacked him at a distance of 10/11 Karams from the shop with a Bailcha. In cross-examination he stated that the Thanedar had inquired from the people living around the place of occurrence as to how the occurrence had taken place, but the police did not inquire from him about the occurrence at that time. It may be mentioned that the Investigating Officer S.I. Nadir Ali (PW. 11) admitted that on the north-western side of the place of occurrence there was depression in the road and rainy water had collected there in an area of 10/11 Marlas. He admitted that Wasif shopkeeper, Akram and other residents of the place of occurrence were not cited as prosecution witnesses. According to him, shop of Wasif was about 13 Karam away from the place of occurrence. Police Station Dina is 4/5 miles away from the place of occurrence while Civil Hospital Jhelum is at a distance of 6/7 miles from there.

10. Learned counsel while arguing the case for the appellant submitted that he had caused the death of the deceased under fit of grave and sudden provocation and not in the exercise of right of private defence of person of his sister. He submitted that at the earliest possible opportunity the appellant had raised this plea before the Investigating Officer and that for the just decision of the case Inspector Nadir Ali (PW. 11) the Investigating Officer may be recalled and examined in this Court. This is vide his application dated 28-3-1987. This application was not opposed by the other side, therefore, I allowed the same and examined Inspector Nadir Ali in this Court on 30-3-1987 wherein he stated that the appellant was arrested by him on 8-4-1984 who stated before him that on the fateful day he was clearing rainy water in front of his house with a gailcha at the time of occurrence. When his sister Mst. Zahida returned from the fields after answering the call of nature and told him that that Sajid Mahmood (deceased) had made indecent assault on her. At this, he was gravely provoked. Mst. Zahida had hardly entered the house when Sajid Mahmood passed by him whom he attacked with Bailcha and inflicted injuries therewith in "Ghairat". lie proved Ex.DB as correct copy of the statement made before him by the appellant. Learned State counsel objected to the admissibility of this statement as the same was made before a police officer. The objection is devoid of merit in view of the dictum laid down by learned Division Bench of this Court in Muhammad Yaqub's case P L D 1969 Lah. 548 as under:

"11. We would like to make it clear that under section 25 of the Evidence Act, confession is not to be received or treated as evidence against the person making it, if it criminates him, but if the accused himself, wishes to rely on his statement which exculpates him he cannot be deprived of the right to make use of such a statement."

I am, therefore, clear in my mind that the statement made by an accused at the earliest opportunity during the investigation if relied upon by him can be legally read in evidence.

11. A comparison of two statements of the appellant one made at the trial and the other (Ex.DB) made by him during the investigation would show that in both the statements the appellant admitted the time and place of occurrence and also his having attacked the deceased with a Bailcha with the only difference that during the investigation his plea was one of grave and sudden provocation while at the trial he pleaded the exercise of right of private defence of person of his sister Mst. Zahida. Now learned counsel for the appellant relies on appellant's earlier statement Ex.D.B., therefore, main question for determination is whether from the circumstances of the case and the evidence on record the plea of grave and sudden provocation can be reasonably spelled out

12. The question arises whether the deceased at the relevant time was returning home after making purchases from the shop of Wasif and that was he attacked by appellant for taking revenge of his maintaining illicit relations with his sister Mst. Zahida; as stated by the prosecution or that he attacked him in 'Ghairat' as narrated by B the appellant in Ex.D.B It is in evidence that the deceased and the appellant lived in adjacent houses. No quarrel whatsoever had taken place between them before the instant occurrence. There is nothing on record to show that appellant had any suspicion about deceased's illicit connection with his (appellant's) sister. He never complained of it to father or other family member of the deceased. If the appellant armed with a 'Bailcha' waited for deceased in front of his house for attacking him, then nothing could prevent him from launching the attack when deceased went towards Wasif's shop from his house a few minutes earlier. The story of deceased's going to Wasif's shop for making purchases immediately before occurrence is highly doubtful for variety of reasons, i.e., Wasif, shopkeeper has not appeared to C support this story; Khushi Muhammad, father of the deceased, has not stated that what article the deceased had gone to purchase from the shop of Wasif; and Faiz Muhammad P.W. who stated that in his presence the deceased left the shop of Wasif has also not told that what he had actually purchased from there. This would show that this story has been cleverly introduced, to counteract the appellant's expected defence plea, by the complainant who is a retired Head Constable of Police. To the contrary version of appellant that he was clearing rainy water with Bailcha in front of his house at the relevant time stands established in view of the Investigating Officer's admission that there was a depression on the road in front of appellant's house and rainy water had collected there. It is, therefore, legitimate to accept appellant's version that when he was busy clearing rainy water, his sister coming from the fields complained to him against the deceased having made indecent assault on her, which gravely provoked him and immediately thereafter finding the deceased passing nearby he lost self-control and attacked and killed him. The plea besides being reasonably probable deserves great weight as it was raised during investigation at the earliest opportunity, no matter if Mst. Zahida has not appeared in its support in Court because in our society it is very rare that women are brought in Court to make such statements to avoid infamy and ignominy. Consequently, accepting plea of grave and sudden provocation I would alter the conviction of the appellant from sections 302 to 304 Part I, P.P.C. and sentence him to 7 years' R.I. and a fine of Rs.10,000/- or in default of payment of fine to undergo further R.I. for 2 years. The fine, if realised, shall be paid to the heirs of the deceased as compensation. Criminal revision, seeking enhancement of sentence of the appellant for the same reasons, fails and is hereby dismissed.

S. A. /I-28/L Order accordingly.

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