Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 53/2006 filed by Nazakat Hussain alias Rambo, appellant, who was convicted and sentenced to death by learned Sessions Judge, Chakwal vide impugned judgment dated 4.02.2006.
Murder Reference No, 101 of 2006 for confirmation or otherwise of death sentence of Nazakat Hussain alias Rambo appellant and Criminal Revision No, 60 of 2006 filed by Mst. Ghulam Bushra widow of deceased Azhar Abbas, against respondent for enhancement of amount of compensation shall also be disposed of through this single judgment.
2. Brief facts of the case are that on 13.10.2005, Sajjad Haider complainant and his maternal uncle (Mamoo) Raja Azhar Abbas were getting the pipes of water supply fitted in his house from plumber Nazakat Hussain alias Rambo. The work was not done up to their satisfaction, so he asked him to again repair the pipe. He refused to do so and also asked for the payment of his charges. On this a quarrel took place between his Mamoo and Nazakat Hussain. Meanwhile, Muhammad Ismail son of Mureed Khan resident of the village also came there. He cooled down Nazakat Hussain and also separated them. Nazakat Hussain went home stating that he would not leave Raja Azhar Hussain alive. They were still present there and Raja Azhar Abbas was busy in his work when at 3.30 p.m.
Nazakat Hussain armed with hatchet came from his house and inflicted a hatchet blow upon Azhar Abbas on left side of his neck near his ear. He became injured and fell down while Nazakat Hussain fled away from the spot. They were taking Raja Azhar Abbas to Civil Hospital Chakwal for medical treatment when he succumbed to the injuries.
3. The investigation of this case was taken over by Noor Khan SI PW., who on receiving information regarding the occurrence, reached Civil Hospital, Chakwal, where complainant met him and got recorded his statement Ex.PG. After that he inspected dead body of Azhar Abbas deceased, prepared injury statement Ex.PD, inquest report Ex.PE. He recorded statements of PWs u/S. 161 Cr.P.C.
He also secured last worn clothes of the deceased i,e, shalwar P-2, Qamiz P-3 along with postmortem report vide memo. Ex.PH. He inspected place of occurrence and prepared rough site- plan Ex.PJ. He secured blood stained earth from place of occurrence vide memo. Ex.PB. On 16.10.2005, he arrested Nazakat Hussain accused and on 19.10.2005, accused got recovered hatchet P-1 from his house which was taken into possession by him vide memo. Ex.PF. After completion of formal investigation the accused was sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced eleven prosecution witnesses in all, thereafter, learned District Attorney after tendering in evidence report of Chemical Examiner Ex.PK, Ex.PL and that of Serologist Ex.PM and Ex.PN closed the prosecution case, then, the statement of the accused was recorded u/S. 342 Cr.P.0 in which he pleaded false implication. However, after conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.0 and other relevant material available on record, learned counsel for Nazakat Hussain alias Rambo appellant submits place of occurrence is doubtful; that eye-witnesses were not present at the place of occurrence; that it was an un seen occurrence; that no body had seen the arrival of accused in the street; that no one tried to stop the accused or apprehend him at the time of occurrence; that in the site plan there is no mentioning of two occurrence; that there is no repetition of injury on the person of the deceased and only single injury has been inflicted; that there was no intention on the part of the appellant to kill the deceased; that it is a case of highly doubtful in nature. He has relied upon 1996 S.C. 122 and 1983 SCM R 922; that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
6. On the other learned DPG assisted by learned counsel for complainant submits that date, time and place of occurrence have been admitted by the appellant and there is no mitigating circumstance in this case but the appellant has denied the occurrence in his statement recorded u/S. 342 Cr.P.C; that the appellant caused fatal injury on the person of the deceased; that vital organs were cut due to the injury caused by the appellant; that it is a case of premeditation and pre-consultation because the appellant came at the spot with hatchet with the intention to kill the deceased; that the appellant had taken un due advantage of situation and caused fatal blow on the person of the deceased; that the deceased was an educated man and was professor in the college and the appellant had killed the deceased without any cause; that learned defence counsel has not raised any point to prove that there are mitigating circumstances for awarding lesser sentence to the appellant; that the prosecution has proved its case against the appellant beyond any shadow of doubt and the appeal filed by the appellant is liable to be dismissed.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence had been taken place on 13.10.2005 at 3.30 p.m, matter was reported to the police by complainant Sajjad Haider real nephew of the deceased in the Civil Hospital Chakwal at 4.40 p.m. and formal FIR was recorded at 5.00 p.m. Two eye-witnesses namely Sajjad Haider PW-5 and Muhammad Ismail PW-6 have appeared before learned trial Court. Appellant was arrested on 16.10 2005 and recovery of blood stained hatchet was effected from him on 19.10.2005. The report of chemical examiner and Serologist are positive in nature.
Doctor Ikram ul Haq PW-3, on 13.10.2005 at 5.00 p.m. conducted post-mortem examination on the dead body of the deceased. He gave the time between injury and death within 15 minutes and between death and post-mortem within three hours which also coincide with the ocular account.
8. We have gone through eye-witness account and we have no hesitation to state that it was the appellant who committed the murder of the deceased. Both the eye witnesses though related to the deceased but had no enmity against the appellant. It is a case of single accused and it is a broad day light occurrence. There is no question of mistaken identity. There is no question of substitution because substitution is a rare phenomenon. The occurrence had taken place in front of the house of the deceased and presence of eye-witnesses especially the complainant is natural.
Ocular account is fully corroborated by medical evidence. However, as far as sentence is concerned, it needs our consideration. While cross examining PW-5 it was brought on the record by the learned defence counsel which is at page 24 that: "there was no previous enmity, between the parties and it was sudden incident".
At page 26 in the cross examination of PW-6, it was stated that the deceased and accused were abusing each other and they were having an altercation."
Then the suggestion was put to the witness that "it is incorrect to suggest that in the meantime, to save himself, the deceased picked up the hatchet from Irfan and dealt the solitary blow.
9. As the prosecution witnesses themselves had stated that there was no previous enmity between the parties, therefore we are of the view that there were not two occurrences as has been mentioned by the complainant and it was only one occurrence in this case. The appellant had caused single injury and he had not repeated the injury. Moreover as has been mentioned above, there was no previous, background of enmity between the parties, so it is a case where death sentence is not called for and mitigating circumstances are available in this case, so though we maintain the conviction u/S. 302(b) PPC but convert his sentence from death to imprisonment for life with benefit of Section 382-b Cr.P.C. Death sentence is not confirmed and murder reference is replied in negative.
The revision petition filed by Mst. Ghulam Bushra widow of deceased Azhar Abbas against Nazakat Hussain alias Rambo is dismissed for the reasons mentioned above.