' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,831 of 2001 filed by Muhammad Yasin, who was convicted and sentenced by the learned Sessions Judge, Pakpattan, in case F.I.R. No,292, registered at Police Station Malka Hans, on 4-12-2000, for offences under sections 302/109, P.P.C., vide his judgment dated 25-10-2001 as under:-- Death with compensation of Rs,50,000 or in default six months' S.I. Under section 302(b), P.P.C.
' Murder Reference No,751 of 2001 for confirmation or otherwise of death sentence of the appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated in F.I.R. Exh.P.A. By Munir Ahmad complainant (P.W.1) are that he was resident of village 6-EB, and had five sons and three daughters. About 5/6 years ago he married his daughter Mst. Abida deceased with Muhammad Yasin accused; while sister of Yasin namely Mst. Allah Rakhi was married with Rashid Ahmad son of the complainant. At the time of marriage Mst. Abida was minor. Two years ago, after attaining puberty, she was sent to the house of Yasin. Out of wedlock of Rashid Ahmad, son of the complainant, two sons and one daughter were born and were living in his house. Yasin was employee of one Khalafat Ali Ranggar and wanted to settle at the tube-well of Khalafat Ali along with his wife Mst. Abida but she refused. On the day of occurrence, while the complainant along with his sons Saeed Ahmad and Rashid Ahmad was present and sitting inside the house of Muhammad Yasin, an altercation took place between Mst. Abida and Yasin. Muhammad Yasin within the view of the complainant and other P.
Ws. Started causing hatchet blows to Mst. Abida. Two blows landed on her head, whereas third on her right side of neck, who fell on the ground. Thereafter Yasin caused more injuries on her chest.
She also received abrasions and scratches on her right arm near hand and left knee. Hue and cry of the complainant party attracted many persons of the locality. Yasin made good his escape along with hatchet. Mst. Abida succumbed to the injuries at the spot. It is also mentioned in the F.I.R.
That Yasin murdered Mst. Abida with consultation of Suleman.
3. After registration of formal F.I.R. The investigation of the case was taken over by Kamal Din, S.- I./P.W.7. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.H. And inquest report Exh.P.J. He collected blood-stained earth from the spot vide memo. Exh.P.C. On 6-12-2000 he arrested Muhammad Yasin accused. On 14-12-2000 at instance of Muhammad Yasin, Shahid Abbas, S.-I./P.W.6 recovered blood-stained hatched P.1 and took the same into possession vide memo. Exh.P.B. Suleman was on pre-arrest bail so he could not be arrested. However, after completion of investigation, both the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 7 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.K. And Exh.P.L. And that of Serologist Exh.P.M. And Exh.P.N. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Suleman convicted and sentenced Muhammad Yasin accused as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record , at the very outset, both the learned counsel for the appellant submit that it was not a case of capital punishment and in this regard they referred to the report of Chemical Examiner, wherein the hatchet was found to be stained with alcohol. They further referred to the statement of doctor, report of post-mortem examination as well as injury statement prepared by P.W.7, wherein corresponding cuts on the clothes worn by the deceased were not shown. They further submit that both the witnesses lived at a distance of three miles from the spot that there was no occasion for the witnesses to be present in the house of the appellant on the day of occurrence; that the time of occurrence was not mentioned in the F.I.R.; that time of arrival of the witnesses at the house of the appellant was also not mentioned; and that the corresponding cut marks on the clothes of the deceased were not mentioned in the postmortem report and in the injury statement prepared by Kamal Din, S.-I./P.W.7.
6. The learned counsel appearing on behalf of the State have contended that it is a daylight occurrence; that Munir Ahmad and Rashid Ahmad though related to the deceased were also related to the appellant and had no motive to falsely implicate him; that the ocular account is supported by the medical evidence and corroborated by the evidence of recovery; that the appellant had acted in a callous manner and did not deserve any leniency. They support the judgment passed by the learned trial Court.
7. We have heard the learned counsel for the parties and gone through the record carefully.
Undeniably both the P.Ws. Munir Ahmad A and Rashid Ahmad lived at a distance of three miles from the place of occurrence. In F.I.R. Neither time of occurrence nor time of arrival of the witnesses in the house of the appellant was mentioned. Both the P.Ws. Miserably failed to explain their presence at the time of occurrence, as there was no special occasion for them to go to the house of the deceased on the fateful day. According to F.I.R., the deceased received four injuries caused by hatchet on her person. Two of the injuries were caused on the head, while third on the neck and the fourth on the back of the deceased were caused. As against that, according to doctor, the deceased had received two incised wounds on her head. One incised wound, which was 10 x 10 c.m.
In dimension, was caused on the neck. Another incised wound was observed on the left side of back by the doctor. Most importantly, according to doctor, the deceased received an incised wound on tibia which caused fracture and she also received an incised wound on the middle of left shin. Both these injuries were not mentioned in the F.I.R. It is also noteworthy that neither the complainant, who was father of the deceased,. Nor Saeed Ahmad and Rashid Ahmad, who were brothers of the deceased, tried to rescue Mst. Abida deceased. They were three in number; if they would have been present there they would have certainly tried to save the, life of their sister. In these circumstances, we have concluded that both the P.Ws. Were not present at the time of occurrence and were subsequently summoned. However, in the light of circumstances for the following reasons, the prosecution case stands proved against the appellant:--
(1) that admittedly the occurrence took place inside the house of the appellant, blood-stained earth was also collected from there and this factum has not been challenged by the appellant;
(2) that the appellant, who was husband of Mst. Abida deceased could not come out with any plausible explanation about unnatural death of his wife in his house;
(3) that after his arrest the appellant led to the recovery of bloodstained hatchet from his residential room, which was found to be stained with human blood;
(4) that the appellant did not inform the police or the parents of the deceased about murder of Mst. Abida rather he decamped and was arrested after two days of the occurrence i.e. 6-12-2000; and
(5) that the case of the prosecution is proved through circumstantial evidence, hence, both the learned counsel have rightly not pressed for acquittal of Muhammad Yasin appellant.
8. Having come to this conclusion we have given our considerate and anxious thought to the quantum of sentence. It has been noticed by us that according to report of the Chemical Examiner Exh.P.L. Alcohol was detected on the hatchet along with human blood. Dr. Shamim Akhtar P.W.5, who conducted the post-mortem examination on the dead body, did not mention any corresponding cut marks on the shirt and Shalwar worn by the deceased in her post-mortem report Exh.P.F. During cross-examination she stated that there was a cut mark on Qamiz of the deceased but she did not remember. She did state, in cross-examination about the cut marks on the left lower leg of Shalwar. However, as noted above, corresponding cut marks are not mentioned in the post-mortem report. Perusal of the post-mortem report further reveals that there should have been corresponding cut marks on the back of the shirt as well as Shalwar. It is also noteworthy that according to inquest report the police came to know about death of the deceased at 3-00 p.m., while during trial the P.Ws. Mentioned the time of death as 2-30 p.m. And the doctor observed that the death had taken place at about 11-00 a.m.
9. Upshot of the whole discussion is that it was not determinable as to under what circumstances the occurrence took place. In these circumstances, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. We reduce his sentence to life imprisonment.
Benefit of section 382-B, Cr.P.C. Is given to the appellant. Order passed by the learned trial Court under section 544-A, Cr.P.C. Is maintained.
10. With the above modification in the sentence this appeal is partly allowed.
11. Murder Reference is answered in negative. Death sentence is not confirmed.