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Criminal Appeal No. 32 of 1984, decided on 10th November, 1986.

---S. 302/34--Ocular testimony, appreciation of--All witnesses related to deceased as well as inter se--Once witness claiming accused his real nephews, conceded that their father was his first cousin and were engaged in cross-litigation--Witness found inimical and interested and his testimony found not worthy of reliance--Other two eye-witnesses contradicting each other and also their statements made soon after occurrence--Testimonies of eye-witnesses, held, were not confidence inspiring and their presence at spot could not be accepted as cogent fact in circumstances.

---S. 302/34--Recoveries--Blood-stained clothes of accused recovered at instance of co-accused--Only Investigating Officer produced as witness to recovery--Uncorroborated evidence of Investigating Officer, held, was rightly discarded by Trial Court.

---S. 302/34--Recovery of weapons of offence--Evidentiary value--Only witness of recovery, a person in whose house deceased was living- Witness maternal uncle of deceased thus admittedly interested--Recovery effected from jointly occupied house--No evidence showing places of recovery to be in exclusive possession of concerned accused--Opinion of serologist regarding blood on weapons not produced--Held, though importance of evidence of recovery of blood-stained Chhuris, would diminish to great extent in absence of evidence of Chhuris being stained with human blood--Evidence, therefore, was not confidence inspiring in circumstances.

---S. 302/34--Grave and sudden provocation--Self-defence--Version of one of accused--Versions put in juxtaposition- Both parties admitting suspicion and misgivings about illicit relations of deceased with sister of accused--Place of occurrence admittedly roof top of house of neighbour--Prosecution story of deceased being chased and his running to roof top found false--Deceased meeting sister of accused at roof, spotted by accused who having seen them together, attacked and injured deceased seemingly probable--Accused suffering no injury---Story of accused being attacked first by deceased and acting in self-defence, ringing not true--Benefit of having acted in self-defence, held, could not be given to accused in circumstances, accused however, might have felt provoked on seeing his sister with deceased, case of extremely grave provocation was not made out though case of acting in provocation would be made out and he could not be burdened with responsibility of committing culpable homicide amounting to murder--Accused was, therefore, held guilty under S. 304. Part I, P.P.C., conviction and sentence under S. 302/34, P.P.C. was set aside and other two accused acquitted in circumstances.

Muhammad Latif Khosa for Appellants.

Irfan Qadir for A.-G. for the State.

Date of hearing: 10th November, 1986.

Muhammad Asghar, aged 18 years Muhammad Bashir, aged 20 years, Muhammad Shabbir, aged 21 years and Muhammad Ansar, aged 19 years, real brothers, sons of Ali Asghar, were tried for having murdered Muhammad Yunus, aged 25/26 years, at 8 a.m. on 2-7-1983, at the roof of the house of Sarwar, of Chak Bagga, at a distance of 7 k.m. from Police Station. Head Maraia, district Sialkot.

F . I . R . Exh . P . B . was registered at the police station on the same day at 9 a. m. by Rehmat Ali M . H . C. , on the statement of Muhammad Riaz (P.W.2) first cousin of the deceased.

2. The learned Sessions Judge, Sialkot, who had tried the accused acquitted Muhammad Ansar but convicted the other three under section 302/34, P.P.C. and sentenced each of them to undergo imprisonment for life, plus a fine of Rs.5,000 in default whereof to suffer R.I. for one year, vide judgment dated 20-12-1983.

A sum of Rs.10,000 on realization of the fine has been directed to be paid as compensation to the heirs of the deceased.

3. The convicts have filed appeal.

4. According to the F. I. R. , the occurrence had taken place in the following manner:-

The deceased who was living in the house of his maternal-aunt in Chak Bagga, was going in the street after coming out of the house. Appellants Muhammad Asghar, Muhammad Shabbir and Muhammad Bashir, armed with Chhuris accompanied by their brother Ansar, empty handed, launched an attack on him. He ran up the roof of house of Sarwar son of Muhammad Bakhsh. The accused chased him upto the roof. Ansar caught him from the waist, whereafter Shabbir gave a Chhuri blow on the left side of the lower part of the back; Muhammad Asghar gave a Chhuri blow on left side of his neck. Thereafter, Muhammad Bashir, gave a Chhuri blow on the left collar bone. Muhammad. Yunus fell down and died at the spot.

The occurrence was witnessed by Muhammad Riaz P.W.2, his brother Muhammad Ashiq P.W.4, Muhammad Malik P.W.3, and given up P.W. Muhammad Hussain.

The accused suspected Muhammad Yunus (deceased) of having illicit relations with their sister Mst. Nasreen, aged 20/22 years, who had been married 9/10 months before the occurrence. On account of this Shabbir etc. had quarrelled with Muhammad Yunus (deceased) a day before the occurrence.

5. The appellants were arrested on 4-7-1983 by Rana Mushtaq Ahmad, S.I. P.W.11. On the same day Muhammad Asghar led to the recovery of his shirt P.7 and Dhoti P.8 from his house. At the same time he had also led to the recovery of Shalwar P.9, shirt P.10 and Banyan P.11 of Shabbir; shirt P.12 and Shalwar P.13 of Bashir; shirt P.14 and Shalwar P.15 of Ansar accused. All these clothes were blood-stained and were taken into possession, vide memo. Exh.P. K. It was attested by Abdul Latif P.W.5 and Rana Mushtaq Ahmad, S.I. P.W.11, apart from Muhammad Yusuf given up P.W.

On 9-7-1983, Muhammad Bashir led to the recovery of Chhuri P.4. It was taken into possession vide memo Exh.P.E. On the same day Muhammad Asghar led to the recovery of Chhuri P.5, which was taken into possession vide memo. Exh.P.F. Shabbir had got recovered Chhuri P.6 on 18-7-1983. It was taken into possession vide memo. Exh.P.G. All the Chhuris were blood-stained. The memos. were attested by Muzammal Hussain, A.S.I P.W.9, Abdul Latif P.W.5 and given up P.W. Muhammad Yusuf.

Rana Mushtaq Ahmad. S.I. on spot inspection had also taken blood-stained earth into possession vide memo. Exh.P.C. from the place of occurrence.

6. At the trig prosecution in all examined eleven P.Ws.

7. Dr. Syed Sajid Ali Tirmizi P.W.1 performed the autopsy on the dead body of Muhammad Yunus on 3-7-1983 at 9-30 a.m. He noted following injuries on the body _of the deceased: -

(1) An incised wound, l " 1/8" on the top of left shoulder joint.

(2) An incised wound, 3/4" x "on root of left side of neck.

(3) An incised wound, 1 " x 2 " on back of right lumber region, at the level of second lumber vertebrae, 1 " lateral to the spine right side. "

According to his opinion, the deceased had died as a result of injury No.3. The other two injuries were declared simple.

8. The ocular account was deposed to, by Muhammad Riaz P W.2, first cousin of the deceased, Muhammad Ashiq P.W.4, his real brother and thus, first cousin of the deceased, and Muhammad Malik P.W.3, whose daughter is married to Altaf, a brother of Riaz complainant.

9. Complainant Muhammad Riaz P.W.2 repeated the facts given by him in F.I.R. Exh.P.B. He also added, that he had gone to the house, where the deceased was living to inquire from him as to why the accused had quarrelled with him on the previous. day and that the deceased had told him that the accused were suspecting him of having illicit relations with their sister, Mst. Nasreen, but he was innocent in that matter. He also stated that Muhammad Yunus had left the house to bring Muhammad Malik P.W. to verify his statement, when the accused chased him and attacked him.

Muhammad Ashiq P.W.4 made similar statement and corroborated the account of the occurrence given by Muhammad Riaz P.W.

Muhammad Malik P.W.3 stated that he was present in his house alongwith Muhammad Hussain given up P.W. when they heard an alarm from the roof of the house of Ghulam Sarwar and that they had ascended the roof and seen the occurrence in which the appellants had given one injury each with their Chhuris to the deceased while he was in the clasp of their acquitted brother Ansar.

All the three stated that the accused suspected the deceased of having illicit connection with their sister, Mst. Nasreen.

Abdul Latif P.W.5, in whose house the deceased used to live, (deceased was son of sister of wife of this witness) deposed about having witnessed the recoveries of Chhuris P.4 to P.6 at the instance of the appellants.

Muzammal Husain, A.S.I. P.W.9 corroborated his statement.

Rana Mushtaq Ahmad, S.I. P.W.11, who had arrested the appellants and the acquitted accused made statement about Muhammad Asghar appellant having led to the recovery of his shirt P.7 and Dhoti P.8 and of his also having led to the recovery of Shalwar P.9, shirt P.10 and Banyan P.11 of Shabbir and of shirt P.12 and Shalwar P.13 of Bashir as well as shirt P.14 and Shalwar P.15 of Muhammad Ansar, acquitted accused.

10. Appellants Muhammad Bashir and Muhammad Shabbir during their statements under section 342, Cr.P.C. denied the prosecution allegations. In answer to the question, 'why this case against you' and why the P.Ws. have deposed against you, both stated that they have been involved in the case by Muhammad Malik P.W. because of his inimical relations with their father. Although Muhammad Shabbir did not make a statement that he would produce evidence in defence, but statement of one Muhammad Ramzan was recorded as D.W.2, wherein he stated that Shabbir had accompanied him from his village to Sialkot town at about 7 a.m. and was with him at Sialkot at 8-30 a.m.

Muhammad Asghar while taking up similar plea, in answer to the question, "Do you want to say anything else'", stated as follows:-

"I am innocent. As a matter of fact on 2-7-1983, at about 8 a.m. I was alone present at my house. Shabbir accused had gone out of the house in the company of our brother-in-law Muhammad Ramzan. Muhammad Bashir and Ansar co-accused were busy in the fields. Our sister Mst. Nasreen after her marriage came back to our house about two days back. At that time, she was going to see her girl friend. While passing through the roof top of the house of Ghulam Sarwr son of Muhammad Bakhsh. Muhammad Younis deceased waylaid her and started molesting her. She raised alarm and so I was attracted to that place. Muhammad Younis deceased attacked me with a Chhuri in his hand but my sister Mst. Nasreen caught hold of his hand and averted the attack. When Muhammad Yunus was going to attack me again, I in my self-defence and also on being provoked inflicted 3 injuries on his person with a knife in my possession as a result of which he died on the spot. Muhammad Malik P.W. in collusion with the other P.Ws. falsely involved us in this case."

In defence, he examined Mst. Nasreen, his sister, as D.W.3. She stated that on the day of occurrence, she was going to the house of Fazal Hussain in order to see her girl friend over the roof tops of the houses and that when she reached on the roof of Ghulam Sarwar, the deceased appeared there and caught her from the arm, whereupon she raised an alarm, which attracted her brother Muhammad Asghar. The deceased attacked him with the Chhuri but she caught hold of his hand. The deceased, however, after getting himself released again tried to attack her brother, but he in self-defence, gave injuries to the deceased with a knife. According to her, the occurrence was witnessed by her mother, Muhammad Tufail and Ghulam Sarwar. According to her, the witnesses, who had appeared at the trial as eye-witnesses were not at the spot. She stated that she had no illicit connections with the deceased, but in cross-examination she conceded that her brothers suspected the deceased of having illicit liaison with her.

Barkat' Ali, S.H.O. was also examined as D.W.1. He deposed about the investigation of the case in spite of the fact that he had not investigated the case. His statement obviously in inadmissible.

11. Learned counsel for the appellants contended that none of the eye-witnesses appeared to have witnessed the occurrence, that their statements do not inspire confidence and that the recoveries of the clothes as well as the Chhuris were planted. Learned counsel argued that the version put forth by Muhammad Asghar appellant was more plausible and nearer the truth.

12. Learned counsel for the State defended the judgment of the trial Court.

13. Since one of the accused has given his own version of the occurrence, both the versions will have to be judged and assessed by placing them in juxtaposition. Before taking up the defence version, I would like to assess the prosecution story first.

14. Muhammad Riaz P.W.2 is real brother of Muhammad Ashiq P.W.4. Both are first cousins of the deceased. Admittedly both were not residents of the village of occurrence.

A daughter of Muhammad Malik P.W.3 is married to Altaf, first cousin of the deceased and brother of P.Ws. 2 and 4.

Muhammad Hussain named as an eye-witness, but not produced at the trial, is married to the sister of Muhammad Malik P.W.3. Muhammad Hussain's daughter is married to Muhammad Ashiq P.W.4.

Muhammad Yusuf, who had attested the recoveries, is real brother of Muhammad Malik P.W.

The wife of Abdul Latif P.W.5 is real sister of the mother of the deceased.

According to the prosecution, the deceased was living in the house of Abdul Latif P.W. during the days of occurrence. According to his own statement, he was posted as Secretary Union Council Chaprar during the days of occurrence.

15. It is apparent from the above position that all the witnesses who appeared at the trial and the ones who were not produced, were related to the deceased as well as inter se. Although Muhammad Malik P.W. claimed that all the four accused were his real nephews, but in cross-examination he conceded that father of the appellants was his first cousin. He also conceded that Ali Asghar, father of the appellants, had got a case registered against him and his son Ghafoor under section 307/325134, P.P.C. at Vehari. He stated that, in fact, there were cross criminal cases. He, however, added that the cases ended in compromise. In the same breath he conceded that he was not on speaking terms with Ali Asghar, father of the appellants, for the last about fifteen years. Obviously, he is an inimical and interested witness.

16. Muhammad Riaz P.W.2 during cross-examination on confrontation with his statement Exh.D.B. was not found, to have stated the story of his having come to the village alongwith his brother Muhammad Ashiq P.W., to inquire from the deceased as to why the accused had quarrelled with him a day before the occurrence. He was also not found to have stated about the deceased having told him that the accused suspected him of having illicit connections with their sister, Mst. Nasreen and of his having told him to be innocent in this matter. He was also not found to have stated that the deceased had gone out of his house to bring Muhammad Malik P.W. to corroborate his statement about his innocence when he was attacked.

Muhammad Ashiq, who had corroborated the statement of his brother Muhammad Riaz at the trial, was no' found to have stated any such thing before the police in his statement Exh.D.A. under section 16, Cr.P.C. In fact, he was found to have stated therein that he alongwith his brother Muhammad Riaz was present with a tractor for sowing paddy in their fields, at a distance of one Killa from village Bagga and that they had seen the accused chasing the deceased in the street and having caused injuries to the deceased by ascending the roof of the house of Ghulam Sarwar, where he had run to. Obviously, the statement made by this witness on the day of occurrence soon after the occurrence, is contradictory to what he stated at the trial. The testimonies of these two witnesses, as such, do not inspire confidence. They are interested witnesses and their presence at the spot cannot be accepted as a cogent fact.

The statement of Muhammad Malik P.W. is also not worthy of reliance because of his inimical relations with the appellants and because of his being more closely connected with the deceased.

17. The learned trial Judge did not believe the evidence of recoveries of clothes at the instance of Muhammad Asghar and I have no reason to differ with the finding of the trial Judge in this regard. The only witness, who deposed about this at the trial, is Mushtaq Ahmad, S.I. His statement has rightly been discarded for lack of corroboration.

18. With regard to the Chhuris said to have been recovered at the instance of the appellants, no evidence was produced at the trial about the opinion of the Serologist. Although report of the Chemical Examiner was produced, yet there being no evidence that the Chhuris were stained with human blood, the importance of the evidence of recoveries of Chhuris diminishes to a great extent. Even the evidence of recoveries of Chhuris does not inspire confidence. Apart from the fact that it came from the mouth of an interested witness, i.e. Abdul Latif P.W.5,, it is also in evidence that the recoveries were effected from jointly occupied house. The other brothers of the appellants and their father was also living in the same house. It has also not been explained, whether the Chhuris were recovered from the same room. None stated at the trial that the place of recoveries were in exclusive,, possession of the concerned persons.

19. Coming to the version put-forth by Muhammad Asghar appellant, it has to be conceded that both the parties, i.e. the prosecution as well as the appellants, had suspicions and misgivings about the illicit relations of the deceased with Mst. Nasreen. Even Mst. Nasreen appearing as D.W.3 conceded that her brothers suspected the deceased of having illicit connections with her. The plea taken by Muhammad Asghar appellant will have to be assessed and weighed with this background in view.

20. Although it does not appeal that the deceased would have gone up the roof to meet Mst. Nasreen for any malicious intention of having, a go, with her or of making love with her, but the possibility cannot be ruled out that he might have gone there just to talk to her and to ask for time for appointment. I am fortified in this view, particularly for the reason that admittedly the deceased was done to death on the roof top of Ghulam Sarwar. The possibility of his having gone there, on being chased by assailants seems to be far off. If he had to run for safety on attack, as alleged, firstly he would have tried to reach his own house which was only 4/5 houses away, and, secondly, if he had run to the house of Ghulam Sarwar, he would have tried to hide himself 'in the house and get the protection of the inmates of the house than to go up alone, where there could be none to save him from the assailants.

21. As observed earlier, what appears to me is that the deceased had met Mst. Nasreen at the roof and Muhammad Asghar appellant, brother of Mst. Nasreen, who already suspected their relations spotted them and came there and having seen them together attacked him and caused the injuries. The story that the deceased had attacked him first and that he acted in self-defence, does not ring true, for the reason that, in that case, Muhammad Asghar would have also suffered some sort of injury. To say the least, at least Mst. Nasreen, who claimed to have caught hold of the deceased, would have definitely suffered some injury. In this view of the, matter, no benefit of having acted in self-defence can be given to him.

However, he must have felt provoked on having seen the deceased with his sister. A case of having acted in extremely grave provocation may not appear to have been made out, but a case of having acted under provocation is made out. In the circumstances, he cannot be burdened with the responsibility of having committed culpable homicide amounting to murder. He is, therefore, held guilty of having committed an offence under section 304, Part I, P.P.C. He is sentenced to undergo R.I. for seven years. His conviction under section 302, P.P.C. is set aside. He is on bail. He shall be caused to be arrested through non-bailable warrants and shall be lodged in jail to undergo the remaining sentence.

He shall be given the benefit of the provisions of section 382-B, Cr.P.C. also.

Since the prosecution evidence has not been considered worth reliance, the appeal of Muhammad Bashir and Muhammad Shabbir is accepted. They are acquitted. Muhammad Bashir is already on bail. His bail bonds shall be discharged. Muhammad Shabbir shall be released forthwith, if not required in any other case.

S.A. Appeal partly accepted.

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