(a) Penal Code (XLV of 1860)--
---S. 302 read with Ss. 300, Exception 1 & 304, Part I--Conviction, alteration of--Sudden and grave provocation--Prosecution as well as defence having common version that wife of accused was carrying on illicit relations with deceased--Accused while making statement under S. 342, Cr.P. C. also disclosing to have seen his wife and deceased in compromising position at time of occurrence--Defence version as pleaded by accused further finding support from eye-witness account of prosecution witnesses--Accused having killed deceased under grave and sudden provocation conviction under S. 302, PPC, altered to an offence under S. 304, Part I, P.P.C. in circumstances.
(b) Penal Code (XLV of 1860)--
---S. 307/34 read with S. 323--Conviction, alteration of--Accused causing simple blunt weapon injuries to a prosecution witness- Conviction of accused under S. 307/34, P.P.C., altered to one under S. 323/34, P.P.C., in circumstances.
Rafiq Ahmad Bajwa and Shaukat Rafiq Bajwa for Appellants.
Mohammad Ashraf Khan for the State.
Raja Mohammad Sabir for the Complainant.
Date of hearing: 3rd October, 1987.
AJMAL ALIAS LITTI AND 2 OTHERS VS THE STATE1988 P C r. L J 1[Lahore]Before Qurban Sadiq Ikram and Afrasiab Khan, JJAJMAL alias LITTI and 2 others--AppellantsversusTHE STATE--RespondentCriminal Appeal No. 713 and Murder Reference No. 177 of 1984, decided on 03/10/1987.
(a) Penal Code (XLV of 1860)--
---S. 302 read with Ss. 300, Exception 1 & 304, Part I--Conviction, alteration of--Sudden and grave provocation--Prosecution as well as defence having common version that wife of accused was carrying on illicit relations with deceased--Accused while making statement under S. 342, Cr.P. C. also disclosing to have seen his wife and deceased in compromising position at time of occurrence--Defence version as pleaded by accused further finding support from eye-witness account of prosecution witnesses--Accused having killed deceased under grave and sudden provocation conviction under S. 302, PPC, altered to an offence under S. 304, Part I, P.P.C. in circumstances.
(b) Penal Code (XLV of 1860)--
---S. 307/34 read with S. 323--Conviction, alteration of--Accused causing simple blunt weapon injuries to a prosecution witness- Conviction of accused under S. 307/34, P.P.C., altered to one under S. 323/34, P.P.C., in circumstances.
Rafiq Ahmad Bajwa and Shaukat Rafiq Bajwa for Appellants.
Mohammad Ashraf Khan for the State.
Raja Mohammad Sabir for the Complainant.
Date of hearing: 3rd October, 1987.
JUDGMENT
AFRASIAB KHAN, J.--The appellants Ajmal alias Litti, son of Sadullah, aged 28 years, Sadullah, son of Alia, aged 60 years, and Sikandar, son of Aqil, aged 18 years, were convicted under section 30?./307/34, P.P.C. by the learned Additional Sessions Judge, Jhang, vide his judgment dated 23-9-1984. Ajmal appellant was sentenced to death plus fine of Rs.10,000 and in default to suffer three years' rigorous imprisonment and also to pay a sum of Rs.5,000 as compensation to the heirs of deceased Ghaus, son of Ismail., aged 35 years, and in default to suffer further two years' R.I. under section 302/34 P.P.C. The remaining two appellants, namely, Sadullah and Sikandar were sentenced under section 302/34 P.P.C. to imprisonment for life each plus fine of Rs.5,000 each and in default thereof- to suffer further rigorous imprisonment for two years each. Both these appellants were directed to pay a sum of Rs.5,000 each as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased Land in default thereof they were ordered to undergo further rigorous imprisonment for two years each. Regarding appellants Sadullah had Sikandar, the learned trial Court observed that benefit of section 382-B, Cr.P.C. shall be given to them. All the three appellants were sentenced to undergo seven years' rigorous imprisonment each under section 307/34, P.P.C. plus fine of Rs.1,000 and in default thereof they were further ordered to undergo rigorous imprisonment for two years each for causing injuries to Karam (P.W.7). All the three appellants have challenged their convictions and sentences by filing Criminal Appeal No.713 of 1984. The complainant Muhammad Nawaz (P.W.8) has moved Criminal Revision No.368 of 1985 against tie judgment dated 23-9-1984 for enhancement of the sentence of the two appellants, namely, Sadullah and Sikandar, and for enhancement of the sentence of fine of all the three appellants. The proceedings for the confirmation of death sentence awarded to Ajmal appellant and also before us under section 374, Cr.P.C. It may be mentioned here that the co-accused of the appellant namely, Afzal alias Habbi was given the benefit of doubt and acquitted by the learned trial Court vide the same judgment. We propose to dispose of these connected matters together by our consolidated judgment.
2. Briefly stated, the facts of the prosecution case as narrated by Muhammad Nawaz complainant (P.W.8) in the F.I.R. (Ex.P.A.,) are that Ghaus and Karam sons of Ismail, caste Aahir, residents of Chak No.452/JB are his cousins and live in the same residential Ihata of the above referred Chak. The complainant stated that at about 12 p.m. at the night preceding 24-2-1983, he was sleeping in his room alongwith other members of his family, whereas Ghaus and Karam P.W. were also sleeping in their respective rooms. At about midnight the door was knocked at and the complainant along with Karam P.W. got up. They saw in the moonlit night that the appellants Sikandar, son of Aqil, Sadullah son of Alia, Ajmal alias Litti, son of Sadulleh, armed with sticks, and Afzal alias Habbi, son of Allah Ditta armed with hatchet, all caste Aahir, broke open the door of the room wherein the above-mentioned Ghaus was sleeping. The appellant Sadullah shouted that Ghaus shall be taught a lesson for keeping with him Mst. Gamon and for committing adultery with her. Upon this, appellant Ajmal gave a stick blow which landed on the head of Ghaus. Second stick blow was given by Sadullah appellant which also landed on the head of Ghaus. The third stick blow was given by Sikandar appellant which again landed on the head of Ghaus. On the receipt of these injuries, Ghaus fell down and Afzal alias Habbi gave a hatchet blow from its wrong side on Ghaus who had already fallen by. that time which blow landed on the forehead of Ghaus. Thereafter, all the three appellants gave successive stick blows which hit Ghaus on his right eye, right shoulder, on the right chest and other various parts of his body. Karam P.W. stepped forward in order to save Ghaus but Afzal gave him 'a hatchet blow on his head. Appellant Sikandar also gave a stick blow on the head of Karam P.W. Similarly, appellant Ajmal gave him a sota blow on his forehead. Sadullah appellant also gave him a blow by a stick. All the appellants thereafter gave successive stick blows on the person of Karam P.W. The occurrence was witnessed by Rustam, son of Rajab, and Qadir Bakhsh son of Pathana. The witness stated that he did not go near the deceased because of fear of being attacked.
About the motive, the complainant stated that Mst. Gamon, wife of appellant Ajmal, had illicit relations with deceased Ghaus. The complainant stated that because of illicit relations, Mst. Gamon used to visit the house of the deceased. Appellant Sadullah, father of appellant Ajmal, was warned by the complainant that Mst. Gamon should be prevented from coming to the house of the deceased. However, she did not care for that and on the night of occurrence Mst. Gamon had come to the room of Ghaus deceased. The appellants had come to know that Mst. Gamon had come to the house of the deceased Ghaus. For this motive in view, the appellants had done Ghaus to death and caused injuries to Karam P.W.
3. Saifullah (P . W . 10) S. H . O . Police Station Mochiwala conducted the investigation of the case. On 24-2-1983, he visited the spot and prepared the rough plan of the place of occurrence (Ex.P.M.). He got the site plan (Ex.P.H.) prepared from Abdul Halim Latifi Draftsman (P . W .5) . On the same day he prepared the injury statement (Ex . P . N . ) and the inquest report of the deceased (Ex.P.O.) and the dead body was entrusted to Faizullah F.C. (P.W.2) for the purposes of post mortem examination. The last worn clothes of the deceased P.4 to P.7 were taken into possession vide Memo. Ex.P.D. Blood-stained earth from the spot was taken into possession in the presence of Ahmad (not produced) and Ghulam Hussain P.W.3 vide Memo. Ex.P.C. The appellants were arrested on 16-3-1983. The appellant Ajmal led to the recovery of stick P.8 from his Dhari which was taken into possession vide Memo. Ex.P.E. Sadullah appellant while in custody, led to the recovery of stick P.9 from his residential house which was taken into possession vide Memo. Ex.P.F. Similarly, Sikandar appellant led to the recovery of stick P.10 from his Dhari which was taken into possession vide Memo. Ex.P.G. All these recovery memos. were attested by Allah Bakhsh (P.W.4) and Ghulam Farid (not produced). The report of the Chemical Examiner (Ex.P.Q.) was positive and according to the report of the serologist (Ex.P.R.), Item No. 281/1 was stained with human blood.
4. Dr. Saleem Akhtar Zaheer (P.W.6) on 24-2-1983, medically examined Karam (P.W.7) and found the following injuries on his person:--
(1) A lacerated wound 8 x 1 cm. x bone deep on the top of left side of head.
(2) An incised wound 6x 1/2 cm. x muscle deep on the top of head.
(3) A lacerated wound 4 x 1 cm. on top of left forehead.
(4) A painful swelling 6 x 6 cm. on the occipital region of the head.
(5) A black swelling 8 x 7 cm. involving the whole left eye with congestion conjunctive.
(6) A painful reddish contusion 12 x 3 cm. on the inner surface right forearm.
(7) A painful swelling 12 x 10 cm. on the back of left elbow-joint.
Injuries Nos. 1, 2, 3, 4, and 7 were kept under observation, whereas the rest were declared simple. Injury No.2 was declared to have been caused by a sharp-edged weapon and the rest were declared to have been caused by blunt weapon.
5. On the same day, the same doctor medically examined Ghaus (when he was still alive) and found the following injuries on his person:----
(1) A lacerated wound 8 x 1 cm. x bone deep on top of left side of head.
(2) A lacerated wound 6 x 1 cm. x bone deep on the extreme top of head.
(3) A lacerated wound 5 x 1 cm. x bone deep on the top of right half of head.
(4) A lacerated wound 4 x 1/2 cm. x skin deep on the top of right half of forehead.
(5) A contused swelling 7 x 7 cm. with sub-conjunctival haemorrhage, both on nasal and temporal side of right eye.
(6) A bluish contusion mark 8 x 4 cm. with a swelling 9 x 7 cm. on the top of right shoulder.
(7) A bluish contusion with swelling 22 cm. x 16 cm. involving the whole right upper arm in front.
(8) A bluish contusion 16 x 10 cm. on the latteral side of right chest involving the area of last two ribs and the kidney region.
(9) A bluish contusion 8 x 6 cm. on the right iliac region.
(10) A swelling 12 x 12 cm. on the back of left chest.
According to the doctor, the patient was unconscious and blood was coming through vomiting. The patient was referred to D.H.Q. Hospital Jhang for X-ray, but he expired on his way to D.H.Q. Hospital and the dead body was brought to Rural Health Complex, Mochiwala. Thereafter post-mortem examination of the deceased Ghaus was conducted by the same doctor on the same day. The doctor 'opined that the cause of death was the head injuries which resulted in a long skull fracture and big sub-dural haemetoma which pressed the vital centre of brain and the patient expired. Ex.P.L. is the carbon copy of the post-mortem examination report.
6. The eye-witness account was provided by Karam (P.W.7), Muhammad Nawaz complainant (P.W.8) and Mst. Sattan (P.W.9). The complainant Muhammad Nawaz P.W. has supported the prosecution story exhaustively. He has stated that on the night of occurrence, he was sleeping in his residential room while the deceased Ghaus was sleeping in his own residential room. Mst. Sattan (P.W.9) wife of deceased Ghaus and other members of his family were also sleeping in that room. At about midnight, the witness got up on account of noise which came from outside. It was a moonlit night. Karam P.W. also came out. The witness alongwith others saw the appellants Sikandar, Sadullah and Ajmal while armed with sticks and Afzal acquitted co-accused armed with hatchet. They entered into the house by breaking open the door of the room of Ghaus deceased. Sadullah appellant shouted that they had come to teach Ghaus deceased a lesson for having illicit relations with Mst. Gamon, wife of appellant Ajmal. Ajmal appellant gave a stick blow on the left side of the head of Ghaus deceased. Sadullah appellant gave a blow with his weapon on the head of the deceased. Sikandar appellant inflicted a stick blow on the right side of the head of the deceased. On the receipt of these stick blows, Ghaus deceased fell down. Thereupon, Afzal acquitted co-accused caused a hatchet blow from its wrong side on the forehead of the deceased. Thereafter, all the appellants gave successive blows to the deceased. Karam (P.W.7) tried to rescue the deceased whereupon Afzal acquitted co-accused gave him a hatchet blow on the left side of his head. Sadullah appellant also inflicted stick blow on the head of Karam P.W. Similarly, Sikandar Ajmal appellants inflicted stick blows on the head of Karam P.W. On the receipt of these injuries Karam P.W. fell down on the ground and thereafter all the appellants gave one blow each to Karam (P.W.7). On the alarm being raised Khuda Bakhsh and Rustam (not produced) were also attracted to the spot. Mst. Sattan P.W. and Zafar (not produced) also witnessed the occurrence. About the motive, the complainant stated that the appellants had suspicion that Mst. Gamon wife of appellant Ajmal was carrying on illicit relations with deceased Ghaus. Both the injured Ghaus and Karam were shifted to Mochiwala hospital. The witness conceded that Mst. Sattan P.W. is his sister and is the wife of deceased Ghaus the statement of the complainant Muhammad Nawaz (P.W.8) was materially supported by Karam (P.W.7) and Mst. Sattan (P.W.9). These eye-witnesses have supported the case of the prosecution in its minor details.
7. The appellants while making statements under section 342 Cr. P. C . denied the prosecution allegations against them. Appellant Ajmal made a detailed statement in Court. He stated that there were some rumours in the village about the illicit relations of his wife Mst. Gamon with Ghaus deceased. He stated that on the assurance of his wife and Ghaus deceased, he was satisfied about their innocence. He had gone outside the village and came late at his Dhari and found that his wife was not present in the house. He straight went to the village and enquired about her whereabouts from her parents. They also expressed their ignorance about her. He was coming back to his Dhari and was passing in front of the house of deceased Ghaus and he heard whispering from inside the room. While peeping through the door he was shocked and surprised to see his wife in compromising position with the deceased Ghaus. On this, he gave a severe push and opened the door and picked up a small hatchet lying in the room and under grave and sudden provocation gave injuries to Ghaus deceased. However, he stated that his wife ran away and he followed her in the courtyard. He was confronted with Karam P.W. and was attacked and in order to save his life, he also gave some injuries to Karam P.W. in self-defence. He stated that the co-accused were not with him and were falsely involved in the case because of his relationship with them. He stated that there was nobody else in the room except Ghaus deceased and his wife. He further stated that the wife of the deceased and her children had strained relations with the deceased Ghaus and they had gone to the house of the parents of Mst. Sattan P.W. The appellant stated that he had gone mad with anger and shock and used the blunt side of the hatchet.
8. Learned counsel for the appellants forcefully contended that from the evidence available on record it is established beyond any shadow of doubt that Ghaus was done to death under grave and sudden provocation by the appellant and, therefore, obviously the case fa11S under section 304, Part I, P.P.C. The learned State counsel as well as learned counsel for the complainant have also supported the view that from the evidence on record, the case in hand was a case of grave and sudden provocation. We have heard learned counsel for the parties at some length and have perused the record very minutely. We are of the view that the prosecution has not been able to prove a case of premeditated murder of Ghaus deceased. From the eye-witness account provided by Karam (P.W.7), Muhammad Nawaz (P.W.8) and Mst. Sattan (P.W.9), it is established beyond doubt that it were the appellants who came at the house of deceased Ghaus in the midnight in search of Mst. Gamon, wife of Ajmal appellant, and they broke open the door and attacked the deceased and Karam P.W. They caused a number of injuries on the persons of the deceased and Karam P.W. We are persuaded under the facts, the circumstances and the available evidence on record that it were the appellants who came and attacked the deceased in the mid of night. The question is as to what offence has been committed by the appellants. The case of the prosecution is that appellant Ajmal and his co-accused had suspicion that his wife Mst. Gamon was carrying on illicit relations with deceased Ghaus. This is in the evidence of the prosecution that even on the night of occurrence Mst. Gamon, wife of appellant Ajmal, had come to the house of the deceased Ghaus and the appellants were searching for her. Thus, from the evidence of the prosecution as well as from the statement of Ajmal appellant it is established beyond doubt that Mst. Gamon, wife of Ajmal appellant, was present in the house of deceased Ghaus at the time of occurrence and the appellants while seeing her presence in the house of the deceased, lost self-control and opened an attack upon the deceased and Karam P.W. under grave and sudden provocation. They caused injuries on the person of Ghaus deceased and Karam P.W. As a result of those injuries, Ghaus later on died. It may be noted that this is common version of the prosecution as well as the defence that Mst. Gamon, wife of Ajmal appellant, was carrying on illicit relations with deceased Ghaus. The defence version made by Ajmal appellant while making a statement under section 342, Cr.P.C. further discloses that at the time of occurrence he heard whispering between the deceased and his wife Mst. Gamon inside the residential room of the deceased. He also saw his wife in compromising position with Ghaus deceased. This defence version pleaded by Ajmal appellant finds further support from the eye-witness account provided by the prosecution witnesses. Additionally, learned counsel for the complainant as well as the State have also supported this view that the case of the appellants was a case of grave and sudden provocation. In view of this position having been taken by the parties, we need not go into the details of the prosecution case as well as that of the defence. The motive for the commission of crime between the parties is common inasmuch as Mst. Gamon was having illicit relations with deceased Ghaus. We are, therefore, of the considered view that the appellants have committed the murder of Ghaus on account of grave and sudden provocation.
Thus, the appellants could not be convicted and sentenced under section 302/34, P.P.C. We, therefore, set aside the conviction and sentence awarded to Ajmal appellant under section 302/34, P.P.C. and alter the same from section 302, P.P.C. to section 304, Part, I P.P.C. and sentence him to the period of imprisonment already undergone by him. He is acquitted from the charge under section 307, P.P.C. He shall be released forthwith from the prison if not required in any other criminal case. The sentence of fine as well as of compensation are also set side. The death sentence is not confirmed. Sadullah and Sikandar appellants are acquitted from the charges under section 302/34 and section 307/34, P.P.C. and instead they are convicted under section 323/34, P.P.C. for causing simple blunt weapon injuries to Karam (P.W.7), and are sentenced to the period of imprisonment already undergone by them. Their sentence of fine and compensation are also set aside. Both these appellants are on bail. Their bail bonds and surety bonds shall stand discharged.
9. In view of the above discussion, we find no merit in Criminal Revision No.368 of 1985, and dismiss the same in limine.
S. G. D. /A-204/LOrder accordingly.
AFRASIAB KHAN, J.--The appellants Ajmal alias Litti, son of Sadullah, aged 28 years, Sadullah, son of Alia, aged 60 years, and Sikandar, son of Aqil, aged 18 years, were convicted under section 30?./307/34, P.P.C. by the learned Additional Sessions Judge, Jhang, vide his judgment dated 23-9-1984. Ajmal appellant was sentenced to death plus fine of Rs.10,000 and in default to suffer three years' rigorous imprisonment and also to pay a sum of Rs.5,000 as compensation to the heirs of deceased Ghaus, son of Ismail., aged 35 years, and in default to suffer further two years' R.I. under section 302/34 P.P.C. The remaining two appellants, namely, Sadullah and Sikandar were sentenced under section 302/34 P.P.C. to imprisonment for life each plus fine of Rs.5,000 each and in default thereof- to suffer further rigorous imprisonment for two years each. Both these appellants were directed to pay a sum of Rs.5,000 each as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased Land in default thereof they were ordered to undergo further rigorous imprisonment for two years each. Regarding appellants Sadullah had Sikandar, the learned trial Court observed that benefit of section 382-B, Cr.P.C. shall be given to them. All the three appellants were sentenced to undergo seven years' rigorous imprisonment each under section 307/34, P.P.C. plus fine of Rs.1,000 and in default thereof they were further ordered to undergo rigorous imprisonment for two years each for causing injuries to Karam (P.W.7). All the three appellants have challenged their convictions and sentences by filing Criminal Appeal No.713 of 1984. The complainant Muhammad Nawaz (P.W.8) has moved Criminal Revision No.368 of 1985 against tie judgment dated 23-9-1984 for enhancement of the sentence of the two appellants, namely, Sadullah and Sikandar, and for enhancement of the sentence of fine of all the three appellants. The proceedings for the confirmation of death sentence awarded to Ajmal appellant and also before us under section 374, Cr.P.C. It may be mentioned here that the co-accused of the appellant namely, Afzal alias Habbi was given the benefit of doubt and acquitted by the learned trial Court vide the same judgment. We propose to dispose of these connected matters together by our consolidated judgment.
2. Briefly stated, the facts of the prosecution case as narrated by Muhammad Nawaz complainant (P.W.8) in the F.I.R. (Ex.P.A.,) are that Ghaus and Karam sons of Ismail, caste Aahir, residents of Chak No.452/JB are his cousins and live in the same residential Ihata of the above referred Chak. The complainant stated that at about 12 p.m. at the night preceding 24-2-1983, he was sleeping in his room alongwith other members of his family, whereas Ghaus and Karam P.W. were also sleeping in their respective rooms. At about midnight the door was knocked at and the complainant along with Karam P.W. got up. They saw in the moonlit night that the appellants Sikandar, son of Aqil, Sadullah son of Alia, Ajmal alias Litti, son of Sadulleh, armed with sticks, and Afzal alias Habbi, son of Allah Ditta armed with hatchet, all caste Aahir, broke open the door of the room wherein the above-mentioned Ghaus was sleeping. The appellant Sadullah shouted that Ghaus shall be taught a lesson for keeping with him Mst. Gamon and for committing adultery with her. Upon this, appellant Ajmal gave a stick blow which landed on the head of Ghaus. Second stick blow was given by Sadullah appellant which also landed on the head of Ghaus. The third stick blow was given by Sikandar appellant which again landed on the head of Ghaus. On the receipt of these injuries, Ghaus fell down and Afzal alias Habbi gave a hatchet blow from its wrong side on Ghaus who had already fallen by. that time which blow landed on the forehead of Ghaus. Thereafter, all the three appellants gave successive stick blows which hit Ghaus on his right eye, right shoulder, on the right chest and other various parts of his body. Karam P.W. stepped forward in order to save Ghaus but Afzal gave him 'a hatchet blow on his head. Appellant Sikandar also gave a stick blow on the head of Karam P.W. Similarly, appellant Ajmal gave him a sota blow on his forehead. Sadullah appellant also gave him a blow by a stick. All the appellants thereafter gave successive stick blows on the person of Karam P.W. The occurrence was witnessed by Rustam, son of Rajab, and Qadir Bakhsh son of Pathana. The witness stated that he did not go near the deceased because of fear of being attacked.
About the motive, the complainant stated that Mst. Gamon, wife of appellant Ajmal, had illicit relations with deceased Ghaus. The complainant stated that because of illicit relations, Mst. Gamon used to visit the house of the deceased. Appellant Sadullah, father of appellant Ajmal, was warned by the complainant that Mst. Gamon should be prevented from coming to the house of the deceased. However, she did not care for that and on the night of occurrence Mst. Gamon had come to the room of Ghaus deceased. The appellants had come to know that Mst. Gamon had come to the house of the deceased Ghaus. For this motive in view, the appellants had done Ghaus to death and caused injuries to Karam P.W.
3. Saifullah (P . W . 10) S. H . O . Police Station Mochiwala conducted the investigation of the case. On 24-2-1983, he visited the spot and prepared the rough plan of the place of occurrence (Ex.P.M.). He got the site plan (Ex.P.H.) prepared from Abdul Halim Latifi Draftsman (P . W .5) . On the same day he prepared the injury statement (Ex . P . N . ) and the inquest report of the deceased (Ex.P.O.) and the dead body was entrusted to Faizullah F.C. (P.W.2) for the purposes of post mortem examination. The last worn clothes of the deceased P.4 to P.7 were taken into possession vide Memo. Ex.P.D. Blood-stained earth from the spot was taken into possession in the presence of Ahmad (not produced) and Ghulam Hussain P.W.3 vide Memo. Ex.P.C. The appellants were arrested on 16-3-1983. The appellant Ajmal led to the recovery of stick P.8 from his Dhari which was taken into possession vide Memo. Ex.P.E. Sadullah appellant while in custody, led to the recovery of stick P.9 from his residential house which was taken into possession vide Memo. Ex.P.F. Similarly, Sikandar appellant led to the recovery of stick P.10 from his Dhari which was taken into possession vide Memo. Ex.P.G. All these recovery memos. were attested by Allah Bakhsh (P.W.4) and Ghulam Farid (not produced). The report of the Chemical Examiner (Ex.P.Q.) was positive and according to the report of the serologist (Ex.P.R.), Item No. 281/1 was stained with human blood.
4. Dr. Saleem Akhtar Zaheer (P.W.6) on 24-2-1983, medically examined Karam (P.W.7) and found the following injuries on his person:--
(1) A lacerated wound 8 x 1 cm. x bone deep on the top of left side of head.
(2) An incised wound 6x 1/2 cm. x muscle deep on the top of head.
(3) A lacerated wound 4 x 1 cm. on top of left forehead.
(4) A painful swelling 6 x 6 cm. on the occipital region of the head.
(5) A black swelling 8 x 7 cm. involving the whole left eye with congestion conjunctive.
(6) A painful reddish contusion 12 x 3 cm. on the inner surface right forearm.
(7) A painful swelling 12 x 10 cm. on the back of left elbow-joint.
Injuries Nos. 1, 2, 3, 4, and 7 were kept under observation, whereas the rest were declared simple. Injury No.2 was declared to have been caused by a sharp-edged weapon and the rest were declared to have been caused by blunt weapon.
5. On the same day, the same doctor medically examined Ghaus (when he was still alive) and found the following injuries on his person:----
(1) A lacerated wound 8 x 1 cm. x bone deep on top of left side of head.
(2) A lacerated wound 6 x 1 cm. x bone deep on the extreme top of head.
(3) A lacerated wound 5 x 1 cm. x bone deep on the top of right half of head.
(4) A lacerated wound 4 x 1/2 cm. x skin deep on the top of right half of forehead.
(5) A contused swelling 7 x 7 cm. with sub-conjunctival haemorrhage, both on nasal and temporal side of right eye.
(6) A bluish contusion mark 8 x 4 cm. with a swelling 9 x 7 cm. on the top of right shoulder.
(7) A bluish contusion with swelling 22 cm. x 16 cm. involving the whole right upper arm in front.
(8) A bluish contusion 16 x 10 cm. on the latteral side of right chest involving the area of last two ribs and the kidney region.
(9) A bluish contusion 8 x 6 cm. on the right iliac region.
(10) A swelling 12 x 12 cm. on the back of left chest.
According to the doctor, the patient was unconscious and blood was coming through vomiting. The patient was referred to D.H.Q. Hospital Jhang for X-ray, but he expired on his way to D.H.Q. Hospital and the dead body was brought to Rural Health Complex, Mochiwala. Thereafter post-mortem examination of the deceased Ghaus was conducted by the same doctor on the same day. The doctor 'opined that the cause of death was the head injuries which resulted in a long skull fracture and big sub-dural haemetoma which pressed the vital centre of brain and the patient expired. Ex.P.L. is the carbon copy of the post-mortem examination report.
6. The eye-witness account was provided by Karam (P.W.7), Muhammad Nawaz complainant (P.W.8) and Mst. Sattan (P.W.9). The complainant Muhammad Nawaz P.W. has supported the prosecution story exhaustively. He has stated that on the night of occurrence, he was sleeping in his residential room while the deceased Ghaus was sleeping in his own residential room. Mst. Sattan (P.W.9) wife of deceased Ghaus and other members of his family were also sleeping in that room. At about midnight, the witness got up on account of noise which came from outside. It was a moonlit night. Karam P.W. also came out. The witness alongwith others saw the appellants Sikandar, Sadullah and Ajmal while armed with sticks and Afzal acquitted co-accused armed with hatchet. They entered into the house by breaking open the door of the room of Ghaus deceased. Sadullah appellant shouted that they had come to teach Ghaus deceased a lesson for having illicit relations with Mst. Gamon, wife of appellant Ajmal. Ajmal appellant gave a stick blow on the left side of the head of Ghaus deceased. Sadullah appellant gave a blow with his weapon on the head of the deceased. Sikandar appellant inflicted a stick blow on the right side of the head of the deceased. On the receipt of these stick blows, Ghaus deceased fell down. Thereupon, Afzal acquitted co-accused caused a hatchet blow from its wrong side on the forehead of the deceased. Thereafter, all the appellants gave successive blows to the deceased. Karam (P.W.7) tried to rescue the deceased whereupon Afzal acquitted co-accused gave him a hatchet blow on the left side of his head. Sadullah appellant also inflicted stick blow on the head of Karam P.W. Similarly, Sikandar Ajmal appellants inflicted stick blows on the head of Karam P.W. On the receipt of these injuries Karam P.W. fell down on the ground and thereafter all the appellants gave one blow each to Karam (P.W.7). On the alarm being raised Khuda Bakhsh and Rustam (not produced) were also attracted to the spot. Mst. Sattan P.W. and Zafar (not produced) also witnessed the occurrence. About the motive, the complainant stated that the appellants had suspicion that Mst. Gamon wife of appellant Ajmal was carrying on illicit relations with deceased Ghaus. Both the injured Ghaus and Karam were shifted to Mochiwala hospital. The witness conceded that Mst. Sattan P.W. is his sister and is the wife of deceased Ghaus the statement of the complainant Muhammad Nawaz (P.W.8) was materially supported by Karam (P.W.7) and Mst. Sattan (P.W.9). These eye-witnesses have supported the case of the prosecution in its minor details.
7. The appellants while making statements under section 342 Cr. P. C . denied the prosecution allegations against them. Appellant Ajmal made a detailed statement in Court. He stated that there were some rumours in the village about the illicit relations of his wife Mst. Gamon with Ghaus deceased. He stated that on the assurance of his wife and Ghaus deceased, he was satisfied about their innocence. He had gone outside the village and came late at his Dhari and found that his wife was not present in the house. He straight went to the village and enquired about her whereabouts from her parents. They also expressed their ignorance about her. He was coming back to his Dhari and was passing in front of the house of deceased Ghaus and he heard whispering from inside the room. While peeping through the door he was shocked and surprised to see his wife in compromising position with the deceased Ghaus. On this, he gave a severe push and opened the door and picked up a small hatchet lying in the room and under grave and sudden provocation gave injuries to Ghaus deceased. However, he stated that his wife ran away and he followed her in the courtyard. He was confronted with Karam P.W. and was attacked and in order to save his life, he also gave some injuries to Karam P.W. in self-defence. He stated that the co-accused were not with him and were falsely involved in the case because of his relationship with them. He stated that there was nobody else in the room except Ghaus deceased and his wife. He further stated that the wife of the deceased and her children had strained relations with the deceased Ghaus and they had gone to the house of the parents of Mst. Sattan P.W. The appellant stated that he had gone mad with anger and shock and used the blunt side of the hatchet.
8. Learned counsel for the appellants forcefully contended that from the evidence available on record it is established beyond any shadow of doubt that Ghaus was done to death under grave and sudden provocation by the appellant and, therefore, obviously the case fa11S under section 304, Part I, P.P.C. The learned State counsel as well as learned counsel for the complainant have also supported the view that from the evidence on record, the case in hand was a case of grave and sudden provocation. We have heard learned counsel for the parties at some length and have perused the record very minutely. We are of the view that the prosecution has not been able to prove a case of premeditated murder of Ghaus deceased. From the eye-witness account provided by Karam (P.W.7), Muhammad Nawaz (P.W.8) and Mst. Sattan (P.W.9), it is established beyond doubt that it were the appellants who came at the house of deceased Ghaus in the midnight in search of Mst. Gamon, wife of Ajmal appellant, and they broke open the door and attacked the deceased and Karam P.W. They caused a number of injuries on the persons of the deceased and Karam P.W. We are persuaded under the facts, the circumstances and the available evidence on record that it were the appellants who came and attacked the deceased in the mid of night. The question is as to what offence has been committed by the appellants. The case of the prosecution is that appellant Ajmal and his co-accused had suspicion that his wife Mst. Gamon was carrying on illicit relations with deceased Ghaus. This is in the evidence of the prosecution that even on the night of occurrence Mst. Gamon, wife of appellant Ajmal, had come to the house of the deceased Ghaus and the appellants were searching for her. Thus, from the evidence of the prosecution as well as from the statement of Ajmal appellant it is established beyond doubt that Mst. Gamon, wife of Ajmal appellant, was present in the house of deceased Ghaus at the time of occurrence and the appellants while seeing her presence in the house of the deceased, lost self-control and opened an attack upon the deceased and Karam P.W. under grave and sudden provocation. They caused injuries on the person of Ghaus deceased and Karam P.W. As a result of those injuries, Ghaus later on died. It may be noted that this is common version of the prosecution as well as the defence that Mst. Gamon, wife of Ajmal appellant, was carrying on illicit relations with deceased Ghaus. The defence version made by Ajmal appellant while making a statement under section 342, Cr.P.C. further discloses that at the time of occurrence he heard whispering between the deceased and his wife Mst. Gamon inside the residential room of the deceased. He also saw his wife in compromising position with Ghaus deceased. This defence version pleaded by Ajmal appellant finds further support from the eye-witness account provided by the prosecution witnesses. Additionally, learned counsel for the complainant as well as the State have also supported this view that the case of the appellants was a case of grave and sudden provocation. In view of this position having been taken by the parties, we need not go into the details of the prosecution case as well as that of the defence. The motive for the commission of crime between the parties is common inasmuch as Mst. Gamon was having illicit relations with deceased Ghaus. We are, therefore, of the considered view that the appellants have committed the murder of Ghaus on account of grave and sudden provocation.
Thus, the appellants could not be convicted and sentenced under section 302/34, P.P.C. We, therefore, set aside the conviction and sentence awarded to Ajmal appellant under section 302/34, P.P.C. and alter the same from section 302, P.P.C. to section 304, Part, I P.P.C. and sentence him to the period of imprisonment already undergone by him. He is acquitted from the charge under section 307, P.P.C. He shall be released forthwith from the prison if not required in any other criminal case. The sentence of fine as well as of compensation are also set side. The death sentence is not confirmed. Sadullah and Sikandar appellants are acquitted from the charges under section 302/34 and section 307/34, P.P.C. and instead they are convicted under section 323/34, P.P.C. for causing simple blunt weapon injuries to Karam (P.W.7), and are sentenced to the period of imprisonment already undergone by them. Their sentence of fine and compensation are also set aside. Both these appellants are on bail. Their bail bonds and surety bonds shall stand discharged.
9. In view of the above discussion, we find no merit in Criminal Revision No.368 of 1985, and dismiss the same in limine.
S. G. D. /A-204/LOrder accordingly.
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