Nasim Sabir, J.--Mazhar, Said and Ali Sher, sons of Nazar were tried by a learned Additional Sessions Judge, Vehari, in case F.I.R. No, 112, dated 28.03.1996, registered under Sections 302/34 P.P.C., with Police Station Luddan, District Vehari, for committing Qatl-e-Amd of Islam deceased. By virtue of judgment dated 07.09.2000 the learned trial Judge declaring Mazhar-appellant guilty of the said charge, convicted and sentenced him as under:-- UNDER SECTION 302(B) PPC Mazhar-appellant to death with further direction to pay a sum of Rs, 40,000/- to legal heirs of Islam deceased by way of compensation as envisaged by the relevant provisions of Section 544-A Cr.P.C. or in default thereof to further undergo six months Rigorous Imprisonment.
UNDER SECTION 449 PPC Mazhar-appellant to undergo five years' Rigorous Imprisonment and fine of Rs, 10,000/- or in default thereof to further undergo six months Rigorous Imprisonment. The said amount in ' case of realization was directed to be deposited in State Treasury.
The learned trial Judge by giving benefit of doubt to Said and Ali Sher, acquitted them of the said charge.
2. Murder Reference No, 440 of 2000 pertaining to death sentence awarded to Muzhar-appellant has been sent to this Court for confirmation or otherwise of the same. The appellant has approached this Court by filing Criminal Appeal No, 422 of 2000 to call in question conviction and sentence passed against him by the said learned Judge. Both these matters are being disposed of together through this single judgment.
3. The brief facts of the instant case emanating from the FIR. (Exh.PE) are that on 27.03.1996 at about 8.00 p.m. Ghulam Faridcomplainant (P.W. 5) Tauraiz Son of Azam and Allah Ditta son of Khaliq were present in the house of the complainant and finalizing their programme to attend the Mizar of Sakhi Sarwar. Islam deceased and Muhammad Ikram, son of the complainant, were sleeping in the said Courtyard on their cots at a short distance. Electric bulb was on, when they saw that Mazhar-appellant armed with dagger and Said armed with a knife, were present on both sides of the cot of Islam. The complainant inquired from them about their presence at the spot. In their view Mazhar-appellant gave a dagger blow on the person of Islam hitting left side of his chest. In the meanwhile, Said accused inflicted knife blow on Islam hitting on left side of his ribs. All of them tried to apprehend Mazhar-appellant and Said, when in the meanwhile, Ali Sher co-accused-, who was armed with 12-bore gun and present in the street opened fire and threatened them of dire consequences in case they followed them. So, all the three accused managed to run away from the spot. Islam was taken to the hospital in an injured condition, but he-- succumbed to his injuries while on the way to hospital.
Motive behind the occurrence was that on the same evening at about 6.00 p.m peoples of the. village were gathered in the house of Allah Bukhsh, son of Bahadur and were depositing their expenses and other articles in connection with "Manats" to be presented at the Shrine of Sakhi Sarwar where .a quarrel took place between Islam deceased and Mazhar-appellant. Muhammad Yar son of Shahadat and Falek Sher son of Wali Dad separated both of them. Mazhar-appellant took it as his insult and threatened to avenge his disgrace.
4. Investigation into the crime was carried out by Muhammad Akbar SI (P.W. 9), after completion whereof challan against the appellant and his co-accused was prepared and submitted before the trial Court for their trial in accordance with law.
5. The learned trial Court on receipt of challan, framed charge against the appellant and his co- accused to which they pleaded not guilty and claimed to be tried.
6. In order to prove the case against the appellant and his acquitted accused, the prosecution has examined as many as nine witnesses and gave up Allah Ditta and Falak Sher PWs as being unnecessary on the application of the complainant. The prosecution produced Dr. Muhammad Amjad (P.W. 1), who conducted postmortem on the dead body of Islam deceased, found following injuries on his person:--.
(i) A stab wound 3 cm x 1 cm on the left side of the front of the chest 6 cm from the left nipple towards the left boder of the sternum in between the second and third intercostal space.
Coagulated blood was present in the wound under section. The wound was deep to the heart stabing the pericardium and rupturing the right side of the heard. This injury was ante mortem and `Jaifah' in nature. Another stab wound on the left axillary region between the second and third intercostals space 5 cm x 2 cm deep to the left lung cavity. Coagulated blood was present in the wound, that ruptured the lung tissue. Lung tissue was present in the wound. This injury was 5 cm from the left nipple to the axillary region. Injury was ante mortem and `Jaifah' in nature. CRANIUM AND SPINAL CARD: Healthy Artificial fracture of the left temporal region occurred during autopsy procedure.
THORAX: Walls, ribs and cartilages were healthy except injured by the Injuries Nos, 1 and 2.
PLAUREA: Right was healthy, left was injured by Injury No,
2. LAYRNX AND TRACHEA AND RIGHT LUNG: Healthy.
LEFT LUNG: Ruptured by Injury No, 2 clotted blood was present in the pericardial cavity. Chambers were empty. Blood vessels were healthy except injured by the Injury Nos, 1 and 2.
ABDOMEN: Walls, peritorium, mouth, pharynx, oesphagus, diapharam, stomach, pancreas, small intestine, large intestine, liver, spleen, kidney, bladder and organs of generation external and internal were healthy, 3/4 Pao' of freshly taken rice were present in the stomach. Bladder was empty.
MUSCLES, BONES AND JOINTS: Healthy except injured by the Injuries Nos, 1 and 2.
According to opinion of the doctor, the death had occurred by internal haemorrhage, shock and haemophenomothora by the Injuries Nos, 1 and 2. Each one of these injuries was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within a few minutes and that of death and postmortem examination was within twelve hours, Muhammad Mazaffar Constable (P.W. 2) escorted the dead body of Islam for its postmortem examination. After postmortem examination, the doctor handed over to him blood stained Chaddar (P1) and, underwear (P2). These articles were handed over to the investigating officer, who took into possession vide recovery memo (Exh.PD)..
In order to prove the ocular account, the prosecution had produced Ghulam Farid-complainant (P.W. 5) an eyewitness of the occurrence, who fully tried to reiterate in all four corners the contents of the F.I.R. (Exh.PE)
Tauraiz (P.W.3), another eyewitness of the case, had also supported complainant's version. He had further stated that Mazhar-appellant while in police custody led to the recovery of dagger (P3) from the residential room of his house from an iron, box, which was taken into possession vide recovery memo (Exh.PF). He also attested the recovery memo. He had further stated that he identified the dead body of Islam at the time of postmortem examination.
Muhammad Ikram (P.W. 4) brother of Islam deceased, and eyewitness of the occurrence had also supported the complainant's version.
Muhammad Yar (P.W. 6) stated that he and Falek Sher (given PW) had gathered in the house of Allah Bukhsh at about 6.00 p.m. to finalize the arrangements for visiting/paying homage to Saint Said Sarwar. Mazharappellant and Islam deceased quarreled with each other over there. They were separated and sent to their houses. Mazhar-appellants asked Islam deceased that he would take revenge of his insult and due to this grudge Mazhar-appellant and Said committed Qatl-e- Amd of Islam.
Muhammad Akbar SI (P.W 9) deposed about the duties performed and acts done by him during course of investigation.
The evidence of remaining witnesses Khalid Mehmood (P.W. 7) and Muhammad Aslam ASI (P.W. 8) was of formal nature, so their statements do not require to be brought under discussion in detail.
The prosecution after tendering in evidence reports of Chemical Examiner (Exh. PJ & PK), reports of Serologist (Exh.PJ/1 & PK/1) respectively closed its case.
8. The appellant and his co-accused were examined under Section 342 Cr.P.C.
Mazhar-appellant in an answer to the question why the case against him and why the PWs have deposed against him?, made a statement, which is reproduced here in extenso:-- "PWs are interested and inimical towards me therefore, they have involved me and my family in this case. I am innocent".
The appellant and his acquitted co-accused did not opt to make their statements on oath as provided under Section 340(2) Cr.P.C., in disproof of the accusations brought against them. They had not produced any defence evidence.
The trial Court after recording evidence of both the parties came to the conclusion that the prosecution had brought home guilt of the appellant beyond any shadow of doubt and convicted and sentenced the appellant as aforementioned.
10. Learned counsel appearing on behalf of Mazhar-appellant has strongly argued that there was a delay of eight hours in lodged the first information report, therefore, possibility cannot be ruled out that the same had been lodged after deliberation, consultation and preliminary investigation; that F.I.R. was recorded in the hospital and not at the police station; that inquest report does not contain the number of F.I.R. which shows that complaint was lodged after preliminary inquiry; that motive part of this case had not been proved by the prosecution; that witnesses of the ocular account are interested and related inter-se as well as with the deceased, therefore, their testimony was untrustworthy; that electric bulb which was claimed to be on at the time of occurrence had not been taken into possession; that identification of the assailants was not possible at .the time of occurrence; that the appellant had allegedly inflicted a single blow without repeating the same and that, there was no previous enmity between the parties. Lastly, submits that this is a case of mitigation where extreme penalty of death should not have been awarded.
11.Learned counsel appearing on behalf of State has controverted the contentions raised by learned counsel for the appellant and has contended that the appellant has been specifically nominated in the F.I.R; that he was armed with dagger with which he had inflicted the injuries on the person of Islam deceased; that weapon of offence was recovered on his pointation, which was blood-stained, but had not strongly opposed the argument with regard to sentence, as this was a case of single blow without any repetition and there was no strong motive for the occurrence.
12.We-have heard the learned counsel for the parties and perused the prosecution evidence on record carefully with the able assistance of both the learned counsel. Admittedly, occurrence took place on 27.03.1996 at 8.00 p.m. when Islam deceased was sleeping and was attacked by the assailants and report was lodged on the next day at 4.15 a.m. without plausible explanation for the delay. The motive as set up by the prosecution in the F.I.R. was that on X7.03.1996 at about 6.00 p.m. when the people were collecting cash, wheat and clothes in order to pay homage to the Saint, Sakhi, Sawar, in the house of Allah Bukhsh, Islam deceased and the appellant exchanged hot words and thereafter grappled with each other, but were separated by the persons, who were present there. Out of this grudge, the appellant had attacked Islam deceased. There was no other motive stated or existed between the parties for the commission of this offence.
13.As far as delay is lodging of the F.I.R. is concerned, the prosecution had explained this fact that they took the injured first to the hospital as he was in serous condition and thereafter they lodged the F.I.R. It is on record that the statement was recorded at the hospital. Perhaps that was the reason that after medical check up they found two injuries on therson of Islam deceased, accordingly, they attributed, one injury to the appellant and other to Said, who was subsequently found to be innocent by the police during investigation.
14.As far as the motive part is concerned, this stand proved by statement of Muhammad Yar (P.W. 6), who had stated that in his presence Mazhar appellant and Islam deceased had a quarrel in the house of Allah Bukhsh where the former was slapped by the latter.
15.As far as the medical evidence is concerned. In the F.I.R. one injury had been attributed to the appellant on left side of chest of Islam deceased and other was attributed to the Said acquitted co-accused on left side ribs of the deceased. According to the postmortem, there were two injuries one on the chest and other on the left side ribs caused by sharp edged weapon, therefore, medical evidence fully supported the prosecution version of ocular account.
16.We have noticed that both the co-accused of the appellant, namely, Said and Ali Sher were declared innocent by the police during investigation and were subsequently acquitted by the trial Court by giving them the benefit of doubt. It is on record that there was no previous enmity between the parties to falsely involve the appellant in this case. The eyewitnesses have fully supported the prosecution version. If the deceased, in fact, had been murdered by some unknown persons, how grievance of the complainant, who is father of the deceased, could be redressed by involving some other persons, who had not murdered his son, therefore, false involvement or substitution is out of question in this case. In our view, the prosecution had produced sufficient evidence against the appellant to prove the commission of Qatl-e-Amd of Islam deceased. The ocular account alongwith medical evidence fully supports the prosecution version. The motive as stated in the'F:I.R. also stands proved. The recovery of weapon of offence, namely, dagger was also made on the pointation of the appellant from his house in presence of Tauraiz and Allah Ditta PWs.
Out of them Tauraiz appeared as PW.3 who was also an eyewitness of the occurrence as well as that of motive part, where he had stated that Islam deceased being of a strong physique as compared to Mazhar-appellant gave slaps on the face of the appellant. Also stated that he took the injured to the hospital where Thanedar also came and recorded his statement. Further stated that 13/14 days after the occurrence, when he alongwith Allah Ditta (given up PW) went to the police station from where they had accompanied the police party alongwith the appellant, who led to the recovery of dagger (P3) from his residential room of his house from an iron box and same was taken into possesion vide recovery memo (Exh. PF). He admitted that Islam deceased was my BHANJA and BHATEEJA of Allah Ditta (given up PW) and son of Ghulam Farid-complainant (P.W. 5).
17.The thorough scanning of the prosecution evidence proves that by producing sufficient evidence, the prosecution had established its case against the appellant for committing Qatl-e- Amd of Islam deceased beyond any reasonable shadow of doubt. The motive part of the incident also support the prosecution version. The medical evidence corroborated the version of the PWs, who had witnessed the occurrence. The recovery of weapon of offence affected on the pointation of the, appellant is also another, piece of corroboration and prosecution had brought home guilt of the appellant beyond any reasonable doubt. The appellant had rightly been convicted under Section 302(b) P.P.C. by the learned trial Court, but as far as the quantum of sentence is concerned, that needs serious consideration, according to the prosecution's own version, the appellant had inflicted a solitary blow without repeating the same. The prosecution's own case is that there was no serious enmity between the parties prior to this incident and only about 7/8 hours before the occurrence Islam deceased and the appellant had exchanged hot words and grappled with each other and the appellant threatened to take revenge of his insult, which had resulted into this occurrence where the deceased had lost his life. What preceded the exchange of hot words and grappling between the deceased and the appellant is shrouded in mystery. It is a case of solitary blow without any previous enmity and as a result of exchange of hot words and grappling few hours earlier to the occurrence definitely provides mitigating circumstance. In the case reported as "Hassan Muhammad versus The State" (1994 S.C.M.R. 1212) where sentence of death awarded to the accused by the trial Court had been reduced to imprisonment for life by the High Court on the ground of affair being sudden and without premeditation. Accused had given only one blow to the deceased could not be said to have taken any undue advantage of the situation or acted in a cruel or unusual manner. Conviction and sentence was altered accordingly. Motive alleged by the prosecution could not be established and both the parties appeared to have withheld from the Court the real cause leading to the incident. Penalty of death was not justified in the circumstances. In another case reported as "Imran Tajarnal Khan versus Mumtaz Ahmad alias Kaka and others" (2002 S.C.M.R. 1217) where lenient view was taken by the High Court in the matter of sentence because the murder was preceded by a quarrel between the parties and firing was made by the accused during the process of grappling between him and the deceased, where it has been held by the august Supreme Court that High Court has rightly altered the death sentence into life imprisonment.
18.Keeping in view the facts and circumstances of this case and seeking guidance from the judgments cited above, we are of the considered opinion that case for mitigation with regard to sentence is made out, therefore, awarding the death was an extreme penalty in this case, as there was and previous enmity between the parties and incident was preceded with a quarrel and grappling between the parties over some minor issue, which is A shrouded in mystery. According to the prosecution's own version, the appellant had inflicted a solitary blow and had not repeated the same, therefore we are convinced that there is a mitigation for lesser punishment. Accordingly, we maintain the conviction under Section 302(b) P.P.C. and convert the death sentence of the appellant into life imprisonment. The compensation awarded by the trial Court is maintained. The conviction and sentence under Section 449 P.P.C. is, however, maintained. Both the sentences shall run concurrently. Benefit of Section 382-B Cr.P.C. is also extended to him.
19.With the above modification in sentence only Criminal Appeal No, 422 of 2000 filed by Mazhar- appellant is dismissed. Death sentence of Mazhar-appellant is NOT confirmed and Murder Reference No, 440 of 2000 is answered in the negative.