FAZAL DIN Versus STATE

Fazal Din appellant was tried by the learned Additional Sessions Judge, Faisalabad, under section 302, P. P. C. for having caused the murder of Abdur Rashid. He was found guilty of the said offence and accordingly the learned trial Judge vide his judgment dated 26th October, 1980 convicted him for the said offence and sentenced him to imprisonment for life and a fine of Rs. 2,000 or in default to undergo imprisonment for a further period of six months.

2. The occurrence in this case took place on 21st July, 1979 at sunset time in the area of Chak No. 536/GB, District Faisalabad, the report whereof was lodged by Abdul Hamid brother of the deceased on the following day at 8-20 a.m. at Police Station Rajana, five miles away from the place of occurrence. According to the first statement, on the day of occurrence, he alongwith his brother Abdul Rashid (deceased) was coming back to their house from village Dhop Sarri, when near Pulli Ghulam Muhammad wali, he sat down for urinating and in the meantime Abdur Rashid had gone one killa ahead of him. When he got up, he saw Fazal Din appellant emerging out of a sugarcane field with a knife in his hand. He raised a lalkara challenging Abdul Rashid that he would not leave him alive for having illicit relations with his sister and started giving successive knife injuries on the different parts of the body of Abdur Rashid who fell down and succumbed to the injuries. Khushi Muhammad and Umar Din who were present at the nearby Dhari was also attracted to the spot and saw the occurrence. No one dared to chase the appellant due to fear.

The motive alleged is that a few days earlier, the appellant had for bidden the deceased from keeping relations with his sister. The delay in lodging the F. I. R., as stated by the first informant is that it was raining during the previous night and, as such, he could not report the matter to the Police until morning.

3. Prosecution has produced Abdul Hamid first informant and the real brother of the deceased as P. W. 6, and Khushi Muhammad a real first cousin of the deceased as P. W. 7 as eye-witnesses of the incident.

4. The appellant in his statement under section 342, Cr. P. C. stated that he was going from his fields to the village and when he passed by the sugarcane field near the dhari of the deceased, he found Mst. Rashidan his sister and Abdul Rashid deceased in a compromising position, he lost his self-control and due to grave and sudden provocation he caused injuries to Abdul Rashid, with a knife but Mst. Rashidan escaped.

5. I have gone through the evidence on record with the assistance of the learned counsel for the parties. The appellant has admitted having caused the injuries to the deceased, but his version is that he caused these injuries when he found, while returning from the fields to the village, Mst. Rashidan his sister and Abdul Rashid, deceased, in a compromising posi tion, and he lost self-control. As against this, the prosecution case is that the appellant suspected that Abdur Rashid, deceased, had illicit relations with his sister Mst. Rashidan, and a few days prior to the incident had forbidden Abdul Rashid from carrying on relations with his sister and that he waylaid the deceased and had murdered him to wreak vengeance. In support of the prosecution. version, there is only the evi dence of Abdul Rashid (P. W. 6) real brother of the deceased and Khushi Muhammad (P. W. 7) the real first-cousin of the deceased. The occurrence took place at sunset time of 21st July, 1978 but the information report was lodged next day at 8-20 a.m., though the Police Station Rajana is situated at a distance of five miles only. The reason given for lodging the F. I. R. with such a delay is that it was raining that night. Another important fact to be noted is that the dead body was received by the doctor in the hospital on 23rd July, 1978 at 12-30 noon. Admittedly, the dhoti of the deceased and a pair of shoes was lying near, the dead body. Moreover, the doctor found 26 injuries on the person of the deceased. The two eye-witnesses claim to have seen the occurrence from a close distance. Had they been present at the scene of the occurrence, the F. I. R. would not have been lodged with such a long delay. The occurrence according to the prosecu tion version took place at sunset time but the report was lodged next morning at 8-20 a.m. at the police station which is at a distance of five miles from the place of occurrence. It is not the case of the prosecution that since the time of occurrence it was raining which prevented them from lodging the report earlier. The delay in lodging the report was thus not satisfactorily explained. Again, the dead body was sent for post-mortem examination and was received on 23rd July, 1978 at 12-30 noon. This will also show that deliberations were going on. Again, the appellant caused 26 injuries to the deceased with a knife. It is strange that a real brother and a real first-cousin took no steps to apprehend the appellant at the spot or to overpower him. This conduct is unnatural. Had they been present they would not have let the accused escape from the spot. It is unfortunate that the learned trial Judge did not go into the aforesaid aspects of the case. The number of injuries found on the person of the deceased would show that the same were caused in a fit of franzy and the number of injuries do support the version of the appellant. Had he intended only to avenge the family honour on account of the suspicion that Abdur Rashid, deceased, was carrying on with Mst. Rashidan, her sister, he would have ordinarily given him a few blows which were sufficient to take his life. The causing of injuries repeatedly and 26 in number, would show that the appellant had lost self-control and also had sufficient time to give the number of injuries. I am, therefore, of the considered view that the offence committed by the appellant falls under - section 304, Part I, P. P. C. and I accordingly alter his conviction from S. 302 to 304, Part I. In the circumstances of the case, sentence of five years' R. I. and a fine of Rs. 2,000 and in default of payment thereof to suffer further rigorous imprisonment for a period of six months will meet the ends of justice. The fine, if recovered, will be paid to the heirs of the deceased. The appellant shall also be entitled to the benefit of section 382-B, Cr. P. C. and the period spent by him in Jail before the conviction shall be deducted from his sentence.

Order accordingly.