' MUHAMMAD FARRUKH MAHMUD, J.--- Fateh Sher appellant was tried by the learned Additional Sessions Judge, Mianwali, in lieu of case F.I.R. No,318 registered at Police Station City Mianwali on 16- 7-2002 for offence under section 302, P.P.C. For having caused the murder of Muhammad Sultan.
Vide judgment, dated 21-4-2003, the learned trial Judge found the appellant guilty of the aforesaid offence and accordingly convicted him for offence under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay rupees one lac to the legal heirs of the deceased.
2. Aggrieved by his above said conviction and sentence, the appellant has filed the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No,287 of 2003, seeking confirmation or otherwise of death sentence. Both these matters are being decided through this consolidated judgment.
3. Briefly, the facts of the prosecution case per F.I.R. Exh.P.G. Lodged at the instance of Soofi Amir Abdullah Khan, complainant/ P.W.8, are that on 16-7-2002 at 7-00 p.m. When the complainant along with Muhammad Sultan (deceased), while on his way to his house, reached near the house of Fateh Sher, appellant, all of a sudden Fateh Sher, while armed with knife, came there raising Lalkara that he would teach a lesson to Muhammad Sultan for effecting compromise with the murderers of his sons and then gave a knife blow hitting Muhammad Sultan on the left side of his back, as a 'result of which Muhammad Sultan fell down. On the alarm raised by the complainant, Ghulam Khawaja and Mst. Sarwar Bibi/P.W.9 were attracted to the spot and had witnessed the occurrence, as they were present near the place of occurrence. Some other persons also gathered there. On catching sight of the P.Ws. Fateh Sher made good his escape. Muhammad Sultan succumbed to the injury at the spot.
' The motive as set up in the F.I.R. Was that three sons of Muhammad Sultan were murdered and about one month earlier, he had effected compromise with the culprits of the murder of his son Muhammad Anwar without the consent of his brothers Fateh Sher etc. And Fateh Sher had demanded share from the Diyat amount received by the deceased in lieu of compromise but as this demand was not fulfilled by the deceased, the appellant committed his murder.
4. The F.I.R. Exh.P.G. Was recorded by Hafiz Muhammad Rustam, S.-I./S.H.O./P.W.10, at the instance of Soofi Amir Abdullah Khan, complainant/P.W.8, on 16-7-2002 at 8-00 p.m. Thereafter, the Investigating Officer went to the spot, prepared injury statement Exh.P.F. And inquest report Exh.P.E.
Of the deceased and sent the dead body for post-mortem examination. On spot inspection, he collected blood-stained earth and sealed the same into parcel vide memo. Exh.P.H. He prepared the site plan of the place of occurrence Exh.P.J. On the pointation of the witnesses. After post- mortem examination, he took into possession the post-mortem report and the last-worn clothes of the deceased, i,e, Shalwar P.1, Qameez P.2 and Baniyan P.3 (all bloodstained) vide memo. Exh.P.A.
Attested by Muhammad Ramzan Constable/P.W.3. The appellant was arrested on 18-7-2002 and knife was recovered from his possession which was taken into possession by the Investigation Officer vide memo. Exh.P.C. Attested by Zahoor Ahmad/P.W.5 and one Latifullah (not produced during trial). After completion of investigation, the appellant was challaned to face the trial.
5. In order to prove its case, the prosecution produced ten witnesses. Amir Abdullah Khan and Mst.
Sarwar Bibi, P.Ws.8 and 9, furnished the ocular account. They also stated about the motive. Dr. Muhammad Farooq P.W.7 conducted post-mortem examination on the dead body of the deceased and found one incised wound of 4 c.m. x 1/2 c.m. On the left side of neck, 2-1/2 c.m. Below to left ear. In the opinion of the doctor, the cause of death was due to the aforesaid injury which was sufficient to cause death in the ordinary course of nature. Duration between the injury and death was 3 to 5 minutes and between the death and post-mortem examination was 4 to 8 hours.
Hafiz Muhammad Rustam, S.-I./P.W.10, stated about the registration and subsequent investigation of the case. After placing on record the reports of Serologist Exh.P.L. And that of Chemical Examiner Exh.P.M., the prosecution closed its side. The rest of the evidence was formal in nature and need not be discussed.
6. In his statement recorded under section 342, Cr.P.C. The appellant pleaded his innocence and false implication in the case by the legal heirs of the deceased being beneficiaries. Neither the appellant appeared as his own witness as enjoined by section 340(2), Cr.P.C. Nor did he produced any witness in his defence. He, however, produced in his defence birth certificate Exh.D.A., copy of Register Haqdaran Zameen for the years 1999-2000, Exh.D.B., copy of challan of F.I.R. No,373 of 1992, Exh.D.C. And copy of judgment, dated 28-5-2001 Exh.D .D .
7. Learned counsel for the appellant has submitted that the prosecution has failed to prove the motive; that both the eye-witnesses namely Soofi Amir Abdullah and Mst. Sarwar Bibi were related to the deceased and were chance witnesses; that the two witnesses lived at a distance of two furlongs and could not plausibly explain their presence at the time of occurrence. The learned counsel has lastly argued that in any case, it was not a case of extreme penalty. He has referred to the age of the appellant as well as motive on that regard. The learned counsel appearing on behalf of the State has submitted that as long as conviction of the appellant was being maintained, he had nothing much to say about the quantum of sentence, as the same lied within the discretion of the Court.
8. We have heard the learned counsel for the parties and have also gone through the record.
9. Muhammad Sultan deceased was brother of Fateh Sher appellant. P.W.8 Soofi Amir Abdullah and Mst. Sarwar Bibi P.W.9 were not only related to the deceased but were also related to the appellant.
There was no earthly reason for the P.Ws. To substitute the appellant for the real killer. Both the P.Ws. Were cross-examined at great length but they remained consistent on all material aspects of the case. They stood the acid test of cross-examination. Their statements are also corroborated by the circumstances of the case; as the matter was reported at the police station, which was at a distance of five kilometers, within an hour. The ocular account is also supported by the medical evidence. Appellant was arrested within two days of the occurrence, i,e, on 18-7-2002 and during search knife was recovered from the right side pocket of the shirt worn by the appellant. However, Exh.P.C. Or the statement of P.W.10/Investigating Officer does not reveal that the knife was blood- stained. Hence, this piece of evidence does not advance the case of prosecution. The explanation offered by the appellant in answer to question No,6 put to him, while his statement under section 342, Cr.P.C. Was being recorded, is far-fetched and is devoid of any force. The prosecution has successfully proved its case against the appellant through ocular version which is trustworthy and confidence-inspiring. It also finds support from the medical evidence and the circumstances of the case, specially lodging of F.I.R. Promptly. Having come to this conclusion, we have given our serious and considerate thought to the quantum of sentence. It has been noticed by us that the appellant was elder brother of the deceased and was aged about more than eighty-two years on the date of occurrence, as according to Birth Register Exh.D.A., he was born on 1-4-1920 and is more than eighty-six years now. According to the motive set up by the prosecution itself, the appellant, being elder brother of the deceased, felt aggrieved over acceptance of blood money by Muhammad Sultan, whose three sons, who were nephews of the appellant, were murdered. The version of the prosecution that the appellant used to demand his share out of the blood money, seems to be exaggerated, as the appellant was not a legal heir and had no right to inherit. It is also noteworthy that the appellant caused a single blow with knife and did not repeat the same. Due to his act, the appellant has lost his own brother.
10. In the above noted circumstances, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C., we reduce the sentence to life imprisonment. The amount of compensation imposed upon the appellant by the learned trial Court is maintained. In default of realization or payment thereof, the appellant would suffer simple imprisonment for six months.
Benefit of section 382-B, Cr.P.C. Is extended to the appellant.
11. With the above modification and reduction in sentence, this appeal is partly allowed. The death sentence is NOT confirmed. The murder reference is answered in the negative.