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Criminal Appeal No. 101 of 1985, heard on 22nd March, 1987.

‑‑‑Ss. 302, 148 & 149‑‑Grave and sudden provocation, plea of‑‑Two versions in juxtaposition‑‑Prosecution alleging occurrence in village Abadi near water pond and then dragging of deceased into house of one accused‑‑Dead body admittedly found in house of accused‑‑Blood stained earth collected from house of accused from under cot where dead body was found‑‑No blood stains found from place where deceased allegedly was injured by accused though injury with spear was also caused‑‑F.I.R. lodged on following morning of occurrence‑‑Ocular account furnished only by two brothers‑‑No one from village produced as witness‑‑Two real brothers of deceased not raising any hue and cry for help from co‑villagers for release of deceased from accused‑‑Only person allegedly approached, also refused to help‑‑None of weapons of offence found stained with blood‑‑Sole witness of recovery, closely related to deceased‑‑Weapons not recovered but allegedly produced by accused‑ Accused denying production of weapons‑‑Incised injuries on person of ,deceased, caused by sharp weapon and not by sharp‑pointed weapon‑ Accused allegedly armed with spears and not with hatchets‑‑Body of deceased found naked when sent for post‑mortem examination‑‑No evidence showing deceased having stripped off after infliction of injuries‑‑Prosecution version, held, was highly doubtful and only alternative left was version put forty one accused of having acted under grave and sudden provocation getting support from fact that dead body was found in his house and was naked‑‑Accused claiming benefit of exception was convicted under S. 304, Part 1, P.P.C. and others acquitted in circumstances.

Dr. Khalid Ranjha, Hasnaat Ahmad and Ch. Muhammad Younus for Appellants.

Dil Muhammad Tarrar for the State

Date of hearing: 22nd March, 1987.

F.I.R. Exh. P.B. was registered at Police Station Midh Ranjha, District Sargodha on 31‑7‑1981 at 6‑30 a.m. by Rabnawaz, S.I. P.W. 2, on the statement of Yara P.W. 12, under section 302/148/149, P.P.C. about the murder of his brother Dosa.

2. According to FIR., Dosa had three daughters and two sons, from his previous wife Mst. Sardaran. The Nikah of his two daughters, namely Mst. Ruqaiyya Begum and Mst. Shamim Begum was performed with Muhammad Khan son of Ghulam Ali and Akbar son of Dosa respectively. Akbar son of Dosa was sister's son of Muhammad Khan. In exchange, the Nikah of Mst. Bashiran daughter of Dosa was performed with Dosa deceased. Nikah of all the three was performed 6‑7 years before the occurrence but Rukhsati had not taken place yet. A month before the occurrence, Muhammad Khan entered into Nikah with Mst. Shado, daughter of Shahu, a brother of Mst. Sardaran, previous wife of Dosa deceased. Rukhsati also took place. As Muhammad Khan's Nikah with Mst. Ruqaiyya Begum, daughter of Dosa deceased was still in vogue, Dosa deceased felt dishearted. He asked Muhammad Khan that since he had married the daughter of Shahu, he should divorce his daughter Mst. Ruqaiyya so that he is able to marry her somewhere else. He also proposed that the other two Nikahs be also finished by way of pronouncing Talaqs. Muhammad Khan felt annoyed over this and he became inimical to Dosa deceased.

On the evening preceding the day of registration of F.I.R. Muhammad Khan, sent for, Dosa deceased near the village pond, on the pretext of dialogue about the finishing of relationships (the previous Nikhas). Dosa went to the pond. The complainant and his brother Sultan followed him. Muhammad Khan armed with a spear, Mian Khan son of Ghulam Ali, Sahib Khan son of Ghulam Ali and the other Muhammad Khan armed with Sotas, Inayat son of Qadir armed with a spear, Inayat son of Muhammad Ali armed with a Sota, Saee armed with a Sota, Afzal armed with a gun, Ahmad son of Saee armed with a Sota, another Ahmad son of Ziada armed with a Sota, Muhammad Khan son of Ziada, Dosa son of Murad, Muhammad Ali son of Murad, Nawaz son of Dosa and Akbar son of Dosa armed with Sotas, Ashraf son of Dosa armed with a gun, were already sitting there. All of them surrounded Dosa deceased. Muhammad Khan gave a spear blow on the left leg of Dosa deceased. Sahib Khan gave a Sota blow on the left leg of Dosa, resulting into fracture of the leg. He fell down. Inayat son of Qadir gave a spear blow on the right leg near ankle. Inayat son of Muhammad Ali gave a Sota blow on the right leg near the ankle, as a result of which the leg was fractured. Dosa deceased raised noise but the accused continued giving him blows with Sotas and spears on legs, ankles, hip, arms and head. The complainant and his brother continued entreating the accused not to give him injuries but they raised Lalkaras saying that if anybody intervenes, he will meet the same fate. In the meantime all the accused dragged the deceased while giving injuries, to the residential Kotha of Mian Khan son of Ghulam Ali. The P.Ws. went home. During night, the complainant learnt that Dosa had died.

About the delay, in lodging the F.I.R. he explained that he did not dare travel during night because of fear of the accused.

3. Rabnawaz, S.I. P.W. 2 after recording the statement Exh. P.B. reached the spot. He saw the dead body of Dosa deceased, lying inside the Kotha of Mian Khan accused. After completion of injury statement and the inquest report, he despatched the dead body for post‑mortem examination. He collected blood‑stained earth from beneath the dead body of Dosa deceased. Blood‑stained Cot P. 1 was also taken into possession by the Police.

In cross‑examination, the Sub‑Inspector stated that he had not noted blood at any other place than beneath the Cot, which was lying in the residential Kotha of Mian Khan accused.

4. All the accused appeared before Muhammad Ishaq, Inspector of Police on 17‑8‑1981. Mian Khan, Sahib Khan, Saee and Inayat son of Ghulam Qadir produced Sotas P.6, P.8, P.9 and spear P.11 respectively before the Police Inspector at the time of their arrest, which were taken into possession vide memos. Exh. P.H, P.K., P.L. and P.N. respectively. Nawaz son of Dosa produced on the same day, Sotas P.7 and P.10 which were taken into possession vide memos. Exh. P.J. and P.M. respectively. The memos. were attested by Sultan Ahmad P.W.9 and given up P.W. Sultan Mahmud, apart from Muhammad Ishaq, Inspector of police P.W.6. None of these weapons were stained with blood.

After completion of necessary investigation, Muhammad Ishaq, Inspector P.W.6 prepared report under section 173 of the Code of Criminal Procedure in which he placed the names of all the accused in column No.2 of the challan, except Mian Khan, Nawaz son of Dosa, Sahib Khan, Saee, Inayat son of Ghulam Qadir and Ahmad Khan son of Ziada. This report was exhibited as Exh. D.E.

5. At the trial, prosecution in all examined thirteen witnesses. The ocular account was deposed to by Yara complainant P.W.12 and Sultan P.W.13. The evidence of prosecution of arms by five persons, named above on 17‑8‑1981 was deposed to by Sultan P.W. 9 and Muhammad Ishaq, Inspector P.W.6.

Muhammad Ishaq, Inspector P.W.6 during cross‑examination stated about having placed the names of nine persons in column No. 2 of report under section 173, Cr.P.C. on their having been found innocent.

6. Muhammad Aslam, D.S.P. who appeared as P.W.7, stated that on having been entrusted with the investigation of this case by the D.I.G. he had directed the S.H.O. to submit challan against all the accused. During cross‑examination he admitted that he had formed the opinion of submitting challan against all the accused on the basis of evidence already collected by the police. He stated that he had also examined the witnesses himself but conceded that he had not examined any new witness than the ones, cited in the challan.

7. Dr. Mumtaz Ahmad, who had performed autopsy on the dead body of the deceased on 1‑8‑1981 at 6‑00 a.m. appeared as P.W.1. He noted 6 multiple contusions, 10 contusions, 3 multiple abrasions, 5 abrasions, 4 incised and one lacerated wounds. The doctor found in all 29 injuries on the arms, legs, hip, head, hands, knee joints, thighs, shoulders, and lumber region of the deceased.

Injuries Nos. 4, 7, 12, 13, 15, I6, 20, 21 and 22 were declared grievous. Death was opined to have occurred due to them. Injuries Nos. 3, 14, 17 and 23 were caused by sharp‑edged weapon and the rest were by a blunt weapon.

During cross‑examination, the doctor stated categorically that injuries Nos. 3, 14, 17 and 23 were incised wounds and were not punctured ones. According to him they were caused by sharp‑edged weapons and not by sharp‑edged pointed weapons.

The doctor at the time of autopsy had noted that the body of the deceased was naked.

8. Yara complainant while appearing at the trial, re‑narrated the facts given by him in Exh.P.B. However, his statement that Muhammad Khan himself had taken Dosa deceased from his house to the village Pond, was not found to have been stated in Exh. D.A. on confrontation. In cross -examination, he admitted that none else than himself and his brother Sultan, had witnessed the occurrence. He expressed inability to state whether the blood had fallen at the place of occurrence near the village pond or that there was any trail of blood whereby the deceased was dragged. He added that the deceased was dragged through the pond. In answer to question, he stated that he had not contacted any person from the village to find out the fate of his brother Dosa, except Manzur Shah who had refused to interfere in the matter. He denied the suggestion that Mian Khan accused on having spotted the deceased in a compromising position with his wife in his house, had given him injuries and that Mian Khan himself had informed the police.

Sultan P.W.13 corroborated the statement made by P.W. 12. He also denied the suggestion that Mian Khan on having found the deceased in a compromising position with his wife, had given him injuries under grave and sudden provocation.

Sultan Ahmad P.W. 9, who had attested the recovery memos. of Sotas and spear produced by Mian Khan, Sahib Khan, Saee, Inayat and Nawaz on 17‑8‑1981, stated about having witnessed the production of weapons by them. During cross‑examination he admitted that wife of the deceased was his sister. His statement in this regard was corroborated by Muhammad Ishaq, Inspector P.W. 6. ‑.

9. All the accused, except Mian Khan, during their statements under section 342 of the Code of Criminal Procedure, denied the prosecution case as a whole and pleaded false implication.

Mian Khan son of Ghulam Ali in answer .to the question, why this case against you', stated as follows:‑‑

"In fact on the night between 30/31‑7‑1981, Dosa deceased went to my residential Kotha in my absence when I was sleeping in my cattle Haveli which is separate from my residential house and was guarding the cattle tethered there. Late at night I felt thirsty and went to my house and found Dosa deceased in compromising position with my wife. I lost self‑control and on grave and sudden provocation, I injured Dosa deceased while my wife slipped away in the meantime. Some other persons also reached there and they also caused some injuries to the deceased to punish him for his misdeed. I informed the police about the occurrence and the brothers of the deceased, namely Yara and Sultan P.Ws. learnt about the occurrence after the arrival of the police. The real facts were, however, distorted and false F.I.R. was recorded after preliminary investigation. My co‑accused are innocent and they were falsely implicated".

None of the accused produced defence.

10. The learned trial Judge acquitted nine accused considering the face that no weapon of offence was recovered from them and that they had been found innocent during the investigation. Ahmad Khan, the 10^th accused was acquitted by the trial Judge considering the fact that there was no corroboration of the ocular account furnished against him.

10‑A. The trial Judge did not accept the plea set up by Mian Khan accused, and vide order, dated 18‑2‑1984 convicted Muhammad Nawaz, Mian Khan, Sahib Khan, Inayat son of Ghulam Qadir and Saee under section 302/149, P.P.C., considering the fact that the ocular account stood corroborated by the recoveries of weapons of offence from them. They were sentenced to imprisonment for life and to pay fine of Rs.10,000 each, in default whereof to suffer further R.I. for 2 years. They were also convicted under section 148, P.P.C. and sentenced to undergo R.I. for 2 years each. Half of the fine, on realization, has been ordered to be paid as compensation to the heirs of the deceased.

11. Since one of the accused/appellants has set up his own versions, the prosecution version shall have to be examined in juxtaposition with the version putforth by Mian Khan appellant.

12. The dead body of the deceased, admittedly was found in the house of Mian Khan appellant. The prosecution case is also that after infliction of injuries by the accused, the deceased was dragged to the house of Mian Khan appellant.

13. The F.I.R. was lodged on the following morning of the occurrence. The ocular account has been furnished only by two real brothers. It is prosecution's own case that the occurrence had taken place in the village Abadi. Even if the version of the two eye‑witnesses that the occurrence was not witnessed by anyone from the village, is believed for the sake of argument, it seems very hard to believe that they would not have raised hue and cry for help from the co‑villagers for release of the deceased from the accused, when they had taken him to Mian Khan's house. Thestatement of Yara P.W. that they had only approached one Manzur Shah and he also had refused to interfere, does not seem to be credible, Why, after all, they should not have gone to the other co‑villagers There were two Lumberdars in the village. There must be other respectable persons. Even if Manzur Shah had refused to interfere, they should have gone to other villagers. It appears from the statement of the witnesses that it was a big village.

14. The other important aspect of the case is that no blood stains were found at the place where the deceased was allegedly given injuries near the village pond. It is prosecution's own case that one of the injuries inflicted at that time also was with a spear. At least that injury would have bled. The blood‑stained earth was found from the house of Mian Khan appellant only from beneath the cot, where the dead body of the deceased was lying.

15. The evidence of the recoveries of Sotas from Mian Khan, Sahib Khan, Saee and Nawaz son of Dosa, is also not of much consequence for three, reasons. Firstly, none of the weapons was stained with blood, secondly that the only attesting witness produced from the public was closely related to the deceased, and thirdly that these weapons were riot recovered from the accused. They are stated to have been produced by them, which they categorically denied during their statements under section 342 of the Code of Criminal Procedure.

15‑A. Yet, the other important factor, is, that the doctor who performed autopsy on the dead body of the deceased, categorically stated that he had not noted any injury on the body of the deceased which could have been caused by a sharp‑edged pointed weapon. According to him, incised injuries were caused by sharp‑edged weapons like hatchet. The eye‑witnesses have emphatically stated that two persons were armed with spears. None of the witnesses stated that any of the accused not to speak of the appellants, was armed with a sharp‑edged weapon.

16. The statements of the eye‑witnesses about specific injures said to have been caused by four of the accused, was not believed by the trial Judge in case of two. (In that four accused, namely Muhammad Khan, Sahib Khan, Inayat son of Qadir and Inayat son of Muhammad Ali are stated to have caused specific injuries, while the two out of them were acquitted.

17. The last but not the least fact which attracted the attention is that the body of the deceased was naked when it was sent to the doctor for post‑mortem examination. None appeared at the trial to state that his clothes had been removed after the infliction of injuries or after his death.

If that had been the case, some effort should have been made by the Police Officer for recovery of the clothes. The position explained above makes the prosecution version highly doubtful. That being the position, the only alternative left is the version, put forth by the appellant This version gets support from the fact that body of the deceased was found from his house. It was a naked dead body. Although it seems improbable that he alone could have caused such a larged number of injuries, but his stance that some other persons had also come there and they caused injuries to the deceased, cannot be lost sight of. The statement of Yara P.W. that Manzur Shah had refused to interfere with the matter, also gives inkling to the effect that something untoward had happened, as a result of which nobody was prepared to interfere.

In the circumstances, the appeal of Muhammad Nawaz, Sahib Khan, Inayat son of Ghulam Qadir and Saee appellants is accepted and they are acquitted. They shall be released forthwith if not required in any other case.

The conviction of Mian Khan appellant under section 302, P.P.C. is set aside. He is, instead convicted under section 304, Part I, P.P.C. and sentenced to undergo seven years R.I. He shall also be given the benefit of provisions of section 382‑B of the Code of Criminal Procedure.

S.A./M‑139/L Appeal partly accepted.

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