' HASNAT AHMAD KHAN, J.---By this single judgment, we intend to dispose of Murder Reference No.637 of 2002 and Criminal Appeal No.231-J of 2002.
2. Muhammad Asghar-appellant was reported against at Police Station, Chak Jhumra, District Faisalabad, for the murder of Allah Rakha son of Piran Ditta. Learned Addl. Sessions Judge, Faisalabad, vide judgment, dated 29-4-2002 awarded death sentence to the appellant under section 302(b), P.P.C. With a direction to pay Rs.50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased-Allah Rakha.,
3. Prosecution story in brief, as disclosed in the F.I.R. (Exh.PE/1) lodged by complainant Khadim Hussain (P.W9), was to the effect that on 4-10-2000, at about 12-30 p.m., the deceased was sitting near the haveli of Lakha Dogar (P.W.7), when the appellant reached there and hastened Allah Rakha's end by inflicting a Kassi blow on the back of his head.
' Motive behind the occurrence was stated to be estranged relations between the spouses, on account of which, wife of the accused (daughter of the deceased) had gone to her parental.
House.
4. On the receipt of the information regarding the said crime, Muhammad Anwar, S.-I., P.S. Nishatabad/the investigating officer, P.W.10, reached at the place of occurrence, recorded statement (Exh.PE) of Khadim Hussain-complainant (P.W.10), examined the dead-body of the deceaced and prepared injury statement (Exh.PC) as well as inquest report (Exh.PD). After dispatching the dead-body for its autopsy, he inspected the place of occurrence and took into possession the bloodstained earth from the spot vide recovery Memo. Exh.PG. He also recorded the statements of P.Ws., Lakha, P.W.7, and Saifullah, P.W.8, under section 161, Cr.P.C. Further he recorded the statements of Mehmood Hussain and Qasim, P.Ws., regarding identification of the dead-body.
Rough site plan (Exh.PJ) of the venue of the crime was also prepared by him.
5. After arresting the accused-appellant on 7-10-2000, the investigating officer obtained his physical remand from the concerned Magistrate. On 9-10-2000, the accused-appellant allegedly led to the recovery of weapon of offence, i.e. Blood-stained Kassi (P.4) from the store of his residential house, buried under the timber. The same was taken into possession by the said investigator, vide Memo. (Exh.PH) and was sealed into parcel. After due investigation, he submitted report under section 173, Cr.P.C. Against the appellant.
6. The appellant was indicted by the trial Court on the charge of murder of Allah' Rakha (slain).
During the trial, the prosecution, in support of its case, produced as many as ten witnesses. Talib Hussain Halqa Patwari, appeared as P. W.1 and proved site plan (Exh.PA) and (Exh.PA/1) of the occurrence, prepared by him on the instructions of the investigating officer. Dr. Arshad Masood, who had conducted autopsy on the dead-body of Allah Rakha (deceased) appeared in the witness box as P.W.2 and, gave the detail of the injuries on the dead-body of the deceased as under:-- "(1) a chop incised wound 17 x 4 c.m. On the back and base of the head. On the upper part of the neck. It was 4 c.m. Back to the left ear, 2 c.m. Back to the right ear and about 5 c.m. Deep. The weapon had damaged the scalp on lower most part of occipital bone, then it penetrated deeply downward along with occipital bone uptil the first vertebra. It cut the vertebral posterior side along with spinal crod. The local neck muscle and blood vessels were also damaged.
(2) An incised wound 4 x 2 c.m, bone exposed on the left side of forehead. It was 3 c.m. Outer to the maid forehead line and 5 c.m. Above left eye brow. Down to this injury there was swelling of left eye (black eye) measuring 7 x 8 c.m. On opening the scalp, fluid and collected blood was present in the epidural and subdural spaces on the front of brain, in between both hemispheres and on the base of skull. There seem of a fracture on the base of scalp on left side."
' In his opinion, the death had occurred due to neurogenic shock caused by injury Nes.1 and 2 (collectively as well as individually), which was sufficient to cause death in ordinary course of nature.
7. Mehmood Hussain, who had identified the dead-body of Allah Rakha, slain, came forward as P.W.3. Ghulam Qadir, Head Constable, who, on the receipt of complaint Exh.PE, had recorded a formal F.I.R. (Exh.PE/1), appeared before the trial Court as P.W.4 and proved the fact of recording the said F.I.R. He further proved receipt and dispatch of sealed parcels of blood-stained earth and Kassi, the weapon of offence for their onward transmission to the Office of Chemical Examiner.
Zulifqar Ali, Constable-4121 appeared as P.W.5 and stated that on 24-10-2000, Ghulam Qadir, Moharrir had handed him over two sealed parcels, containing blood-stained earth and blood- stained Kassi, which were dispatched by him to the Office of Chemical Examiner at Lahore on 25- 10-2000, without tampering by him or anybody else. Lakha son of Ghulam Din stepped forward as P.W.7 and besides giving the ocular account of the occurrence ventured to prove recovery of Kassi on the pointing out of the appellant, Saifullah son of Babu came forward as P.W.8 and furnished the ocular account of the crime in question. Khadim Hussain son of Piran Ditta, who had triggered off the legal machinery into motion by making a statement Exh. PE, which culminated into the F.I.R., Exh.PE/1, appeared before the learned trial Court as P.W.9 and reiterated his version as given in F.I.R.
But with some improvements. Besides it, he appraised the Court how the appellant led to the recovery of weapon of offence, Kassi.
8. Muhammad Anwar, S.-I., showed up as P.W.10 and furnished the detail of investigation conducted by him. According to him, after due investigation, the appellant was found guilty by him whereupon he submitted the report under section 173, Cr.P.C., on the basis of which the appellant was indicated on the charge of murder of Allah Rakha (deceased).
9. After rendering reports of Chemical Examiner and Serologist regarding blood-stained Kassi as well as blond-stained earth as Exh.PK, Exh.P.M., Exh.PN and Exh.P0 respectively, the learned S.P.P.
Opted to close the prosecution's evidence, whereafter, the appellant was called upon to respond to questions put to him while recording his statement under section 342, Cr.P.C. While making the said statement, the appellant denied the prosecution version and gave his own version, while responding to question No.7, he stated as under:-- "Deceased Allah Rakha was a short-tempered man and due to this he kicked his wife out about one year prior to this case and she returned to her house on the eve of death of the deceased, along with her brother. The deceased was having no son and he used to compel me to start living with him, which was not acceptable to me and to this grudge, he was not letting his daughter Zarina (my wife) to live with me and he was creating hurdle in smooth sailing of our matrimonial relations. On the fateful day, after getting my salary from my job, I went to the house of deceased for the purpose of compromise, from where I came to know that deceased and my son, Akhtar, were in the fields where deceased used to work and I straightaway went there, where I gave some money to my son and kissed him on which, short-tempered deceased flared up and started abusing and slapped Akhtar, my son on which hot words were exchanged between deceased and me. Deceased picked up a brick from the ground and threw it on me but luckily escaped. Again deceased assaulted on me with his Kassi (with whom he was working in the fields) but I snatched the same Kassi from him and threw it away. Afterwards, deceased grappled with me and in my defence, I slapped and punched him on which deceased reiterated but unfortunately fell on the said Kassi which was lying on the ground after receiving injuries on the back side of his head near neck, he died. My son Akhtar is the sole witness of this case. I went to the deceased for compromise and I with no pre-meditation have committed the murder of the deceased. It was a matter of grave and sudden provocation and it was coincident that he received injury from kassi which was lying on the ground and died. P.W. Khadim is the real younger brother of deceased while deceased was employee of Lakha P.W. While Saif Ullah P.W. Is neighbourer of Khadim P.W. In this view all the P.Ws. Have deposed against me."
' The appellant, however, denied to appear as his own witness.
' Learned defence counsel while arguing the jail appeal filed by the appellant, contended that the occurrence was neither witnessed by the complainant nor by the eye-witnesses produced by the prosecution; that the prosecution did not come up with the real story and the prosecution version is nothing but a cooked book; that the F.I.R. Was recorded at the spot after preliminary investigation, therefore, one would take the same with a pinch of salt; that the case being of two version has to be decided after keeping both the versions in juxtaposition; that the defence version being natural, probabale and nearer to the truth is more reliable than the prosecution's version, that the appellant is entitled to benefit of doubt and that in any case the fact of the case do not justify the confirmation of the death penalty awarded to appellant.
11. Conversely, learned DPG, argued that the prosecution proved its case beyond any shadow of doubt and the trial Court was quite justified to award the capital punishment to the appellant, who had murdered his father-in-law in a callous, brutal and ruthless manner; that during his statement recorded under section 342, Cr.P.C., the appellant had, in fact, confessed his guilt, as he did not deny the occurrence; that neither the complainant nor the other eye-witness had any enmity or to falsely implicate the appellant in the case which warranted the death penalty; that the prosecution story was corroborated by the medical evidence as well as by the motive, which was not even denied by the appellant.
12. After hearing the parties at length we have straightaway observed that certain facts viz. Place of occurrence, time of occurrence, presence of the accused at the time of occurrence and the apple of discord behind the occurrence are admitted on both the ends. However, both the parties have their own version regarding the manner in which the deceased had kicked the bucket. So primarily, it is a case of two versions. For coming to the conclusion as to which of the versions is more probable, plausible and nearer to the truth, we have to place the two versions into juxtaposition.
According to the prosecution's version as mentioned in the F.I.R., which was lodged by the complainant, who is admittedly not an eye-witness of the occurrence, the appellant inflicted a kassi blow on the head of the deceased which immediately shortened his life. As against it the appellant while making statement under section 342, Cr.P.C., stated that during the grappling between him and the deceased the latter fell on the kassi which was lying on the ground and after receiving injuries on the back side of his head he died. According to the appellant, the occurrence was witnessed only by his son Akhtar and the eye-witnesses were not there. However, the manner of the occurrence as stated by the appellant does not fit in the scheme of things inasmuch as according to Dr. Irshad Masood, P.W.2, whe had conducted autopsy on the dead-body of Allah Rakha (deceased), he had received as many as two injuries. After going through the nature and gravity of the injuries the defence version appears to be economical with truth. Though the doctor during his cross-examination apparently gave a concession by stating that injury No. I could be result of forceful fall on a line of kassi but to us said concession does not appear to be reasonable or plausible. The length and depth of the incised wound of the penetration of the injuries inflicted on the head of Allah Rakha (deceased) appears to be result of a forceful blow. The head and neck of the said deceased was almost smashed. Therefore, we are not inclined to accept the version of the appellant regarding the manner of the occurrence. We have further noticed that though there are certain contradictions in the evidence provided by P.W.7 and P.W.8 but we cannot reject their evidence, as they had no enmity to falsely implicate the petitioner in a case punishable with maximum penalty. Both the witnesses are natural witnesses. Lakha, P.W.7, in fact is owner of the Haveli, which is the place of the occurrence. Besides that, it is a case, which was reported to the police quite promptly which, prima facie, excludes the possibility of false implication of the petitioner. Moreover, the ocular evidence has further been strengthened by the appellant himself by admitting the place, time of occurrence, motive and his presence at the spot. Therefore, we have no doubt in our mind that prosecution has proved its case beyond shadow of doubt.
13. Now comes the question, as to whether the sentence of death awarded to the petitioner, is worth confirmation or not. In this regard we have. Concluded that there are certain mitigating circumstances necessitating the reduction of death sentence into the lesser sentence, i.e., imprisonment for life. The apple of discord behind the occurrence, as stated by the prosecution itself was that the wife of the appellant, who had tied the knot with him ten years before the occurrence, was living with her father due to some matrimonial disputes. The said motive has not been denied by the appellant, rather according to him also, the -aid dispute had become a cause of trouble between the parties. According to the appellant, the deceased, who was a short- tempered man, was creating hurdles in smooth matrimonial relations between the spouses. He further stated that, as the deceased had no son, he had been compelling the appellant to live with him and, on the refusal thereof by the appellant, Allah Rakha (slain) had not been letting his daughter to live with the appellant. On the day of occurrence, according to the appellant, he had gone to visit his father-in-law for effecting a compromise. He further stated that the deceased was accompanied by appellant's son to whom he offered some money, which infuriated Allah Rakha (slain), who slapped Akhtar, son of the appellant, whereupon the parties exchanged harsh words.
The statement of the appellant got support from the evidence of eye-witnesses as well as the complainant on certain points. For instance Saif Ullah P.W.8 during his examination-in-chief admitted that when he saw the occurrence, Allah Rakha (slain) and the appellant were already exchanging harsh words. While Khadim Hussain P.W.9 during his cross-examination admitted that the deceased was a short-tempered man P.W.8 also admitted during his cross-examination that he and the other eye-witnesses had heard the exchange of harsh words between the accused and the deceased, at the time of occurrence. As far as presence of Akhtar, son of appellant is concerned, Lakha P.W.7, Saif Ullah P.W.8 and Khadim Hussain P.W.9 during their cross-examination candidly admitted that said Akhtar, son of the appellant, was present at the time and place of occurrence. As far as strained relationships between Zareena, wife of the appellant with him, is concerned, that is also an admitted fact. The Investigating Officer during his cross-examination admitted that during the investigation it was brought to his notice that Allah Rakha (deceased) was not letting his daughter to live with her husband and was a hurdle in this regard. There is yet another fact, which is leading us to conclude that occurrence was not a premeditated one, rather it was a sudden affair, as it was not the case of the prosecution that the appellant had reached the place of occurrence after arming himself with kassi, i.e, weapon of offence. It appears that under sudden impulse, due to the exchange of harsh words, the petitioner picked up the kassi from the spot and caused the injuries with the same to the deceased. All the said facts make us believe that something untoward happened between the parties, which became the cause of unfortunate death of Allah Rakha (deceased) at the hands of the appellant. As admittedly the eye-witnesses had not seen first part of unfortunate occurrence, therefore, they were not in a position to state that, as to what happened between the parties immediately before the occurrence. Besides that, the occurrence took place out of sheer frustration, which was apparently caused by the deceased by not sending his daughter, wife of the appellant, along with him. The said facts are sufficient to show that there are mitigating circumstances justifying the alteration of death sentence to one of life imprisonment. While doing so we are relying upon the case of Qambar Ali v. The State (PLJ 1974 Cr1. C. (Lah) 474). In the said case also a son-in-law had murdered his father-in-law in similar circumstances and fashion, upon which the death sentence awarded to him was converted into imprisonment for life. We are further placing reliance on the case of Adil v. The State (1971 PCr.LJ 292). In the said case, while converting death sentence into life imprisonment, it was held as under:-- "It is a case where the appellant had been driven to commit the crime not by his evil and reckless disposition or bad motive, but he might have been induced to do it on account of the misconduct of the deceased. In this case, there was no premeditation on the part of the appellant. The number of injuries on the deceased goes to show that the appellant was highly excited at the time of the incident. It appears that he lost his balance of mind and the sudden impulse proved too strong for him to resist and it was under that impulse that he acted quite abnormally and committed his act in a moment of extreme excitement."
' Besides said cases we are pinning our faith on the cases of Rehmat Ali v. The State (1983 SCM R 922), Ansar Ahmad Khan Barki v. The State and another (f993 SCMR 166o), Rasool Bux and another v. The State (1980 SCM R 225), Mubarak Ali v. The State (1980 SCM R 176), Chand Khan v. Akbar and others (1986 SCM R 1878), Iftikhar Ahmad alias Gulla and another v. The State and another (PLD 1990 SC 820), Abbas Hussain and another v: The state and another (1992 SCM R 320), Noor Ahmad and another v. The gfate (1986 PCr.LJ 703) and Muhammad Sharif v. State 1990 ALD 749 for converting the death penalty into the life imprisonment. In the last case, the death sentence was altered on the ground that the murder was committed in utter frustration resulting from the misdoings of the deceased.
14. For all the reasons stated above, we decline to confirm the sentence of death and, instead alter the same to imprisonment for life. However, the appellant is directed to pay compensation of Rs.1,00,000 (Rupees one hundred thousand) to the legal heirs of the ceased.
' The appellant shall also be given benefit of the provisions of section 382-B, Cr.P.C. The murder reference is answered in negative.