RAUF AHMAD SHEIKH, J.---The appellant has challenged the vires of the judgment dated 16-11- 2005, passed by the learned Sessions Judge, Faisalabad, in case F.I.R. No, 174 dated 5-5-2002 Police Station Dijkot Faisalabad (Sessions Trial No, 62 of 2005), whereby he was convicted under section 302(b), P.P.C. and was sentenced to death with an order to pay Rs,100,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default to undergo SI for six months. The learned trial Court has also submitted Murder Reference No,75 of 2006 seeking confirmation or otherwise of the death penalty awarded to the appellant. As both these matters are inter linked so are being decided through this single judgment.
2. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PB/1) recorded on the statement (Exh.PB) of Muhammad Yousaf son of Nikah, caste Malik, resident of Chak No,253/RB Nai Abadi Mazhabi Wala District Faisalabad is that on 5-5-2002 at about 11-00 a.m. his brother's son Muhammad Irshad alias Bodi after doing labour came at 'Adda Mazhabi Wala' and slept on a cot.
At about 11-00 a.m. the complainant along with his brother Khurshid Ahmad and Sher Muhammad resident of Chak No, 253/RB Nai Abadi Mazhabi Wala came to the 'adda' in order to purchase household goods, when suddenly Farooq Ahmad son of Muhammad Aslam caste Rajput resident of Chak No, 253/RB Jahangir Kallan armed with 'Bugda' (Chopper) and one unknown person, who was armed with hatchet arrived there. Farooq Ahmad gave two repeated blows with "Bugda" to Muhammad Irshad on the left side of his neck and right side of shoulder. Thereafter the unknown person gave three hatchet blows, one after other on right calf and left calf of Muhammad Irshad.
Then Farooq Ahinad gave a blow with "Bugda' which hit him on the right hand which was amputated from the wrist. Then the unknown person gave a hatchet blow which hit Muhammad Irshad on his right wrist. The complainant, Khurshid Ahmad and Sher Muhammad witnessed the occurrence but due to fear of life did not proceed ahead to intervene. On alarm raised by them, many men and women gathered there, whereupon both the accused fled away while brandishing their "Bugda" and hatchet. He, Khurshid Ahmad and Sher Muhammad tried to give support to Muhammad Irshad who died at the spot. The motive was stated to be a quarrel, which took place 4/5 days back between the appellant and Muhammad Irshad in which they had exchanged abuses.
3. After investigation the appellant was sent up to face trial. He was charged under section 302, P.P.C. He pleaded not guilty and claimed the trial. His co-accused Muhammad Arshad alias Achi was declared as proclaimed offender.
4. The prosecution has examined 12 witnesses in support of its case. Doctor Parvez Akhtar Anjum, who conducted autopsy of the body of the deceased in RHC Dijkot on 5-5-2002 at about 6-00 p.m. appeared as P.W.9 and stated that he found following injuries on the person of deceased:--
(1) An incised wound on the right side of neck starting from the right angle of mouth and upper lip and went to the right side of back of head while cutting the skin, muscle, blood vessels, mandible bone. All the bones of neck, (hyoid bone), there was multiple attack of sharp weapon, having measurement of 22 cm x 8 cm. It was also cutting the oesophagus, trachea, larynx.
(2) Incised wound 10 cm x 8 cm on the top of right shoulder joint which also damaged the skin, muscles, blood vessels and fractured the scapula and clavical bone.
(3) Multiple incised wound on the anterior lateral side of right arm measuring 2 1/2 cm x 1/2 cm, x muscle deep, 2 x 1 x muscle deep, 2 x 1 cm x muscle deep. Corresponding cuts were present on the kameez.
(4) An incised wound 12 cm 1 cm x muscle deep on the postero lateral side of right arm 10 cm from the top of right shoulder end.
(5) An incised wound 10 cm x 3 cm x muscle deep on front and back side right forearm 1/2 cm above the right wrist joint.
(6) An incised wound 6 cm x 1 cm x muscle deep on the back of right leg middle part.
(7) Cutting the whole left hand at the wrist joint and only two small pieces of hand were attached to the left forearm with skin.
(8) An incised wound 10 cm x 3 cm on the front of left leg 3 cm above the left ankle joint.
He opined that probable time between injuries and death was immediate and that between death and postmortem examination was about 8 hours. He has proved the postmortem report Exh. PE and pictorial diagrams Exh.PE/1 and Exh.PE/2.
5. The ocular account is furnished by Muhammad Yousaf P.W.10 and Sher Muhammad P.W.11.
Muhammad Yousaf P.W.10 almost reiterated the contents of complaint Exh.PB and added that the same was read over to him and he thumb-marked the same in token of its correctness. P.W.11 Sehr Muhammad stated that about three years ago at about 11 a.m. he, Khurshid Ahmad and Muhammad Yosuaf went to Adda Mazhabi Wala to purchase household articles. When they reached at the Adda, the deceased Muhammad Irshad was sleeping under 'Jaman tree'
Muhammad Farooq, appellant armed with "Bugda" and Arshad alias Achi (proclaimed offender) armed with hatchet came there. Muhammad Farooq gave a "Bugda"" blow which hit on the right side of the neck of Muhammad Irshad. The second blow hit on the right shoulder of Muhammad Irshad. Thereafter Arshad alias Achi gave three hatchet blows on the right and left calfs and right wrist of deceased. Then Muhammad Farooq, appellant gave "Bugda" blow on Irshad which hit right hand which was chopped off. Then Arshad gave a hatchet blow on the left wrist of the deceased.
He, Muhammad Yousaf and Khurshid Ahmad witnessed the occurrence. He stated that 2/3 days prior to occurrence hot words were exchanged between deceased and accused and due to grudge over it, the accused persons committed qatl-e-amd of the deceased.
6. Sardar Ali P.W.6 stated that on 25-6-2003, Muhammad Farooq appellant was brought to 'Jahangir morr', where he produced "Bugda" after digging earth on canal bank which was secured by the I.O. through recovery memo Exh.PD attested by him and Sardar Ali P.W. Sher Muhammad P.W.2 has proved the recovery of blood stained earth and blood-stained cot P-5 through recovery memo Exh.PH. P.W.2 has proved the report Mark A/1 on the warrant of arrest Mark A. P.W.3 Allah Rakha has proved the site plan with scale Exh.PA and Ex.PA/1. Muhammad Aslam P.W.4 has proved the F.I.R. Ex.PB/1. Munawar Hussain P.W.5 proved the memo of recovery Exh.PC through which the last worn clothes of the deceased were secured. Ghulam Rasool S.-I./P .W.8 stated that on 23-6- 2003, investigation of the case was entrusted to him. On 24-6-2003, the accused made a disclosure and led to the recovery of "Bugda" after digging earth which was secured through recovery memo. Exh.PD. he has also proved site plan Exh.PD/1.
7. Mukhtar Hussain P.W.12 stated that on 5-5-2002, after receiving information about the occurrence he arrived at the place of occurrence. Muhammad Yousaf, complainant got recorded statement Exh.PB which was read over to him and in token of its correctness he put thumb-mark on the same. He proved the injury statement Exh.PB, inquest report Exh.PG, memo of recovery Ex.Ph, whereby the blood stained earth was secured, rough site plan Exh.PK, notes in read ink on the site plan Exh.PA/ Exh.PA/1 and memo of recovery Exh.PC through which last worn clothes of deceased were secured. The prosecution has produced the report of Chemical Examiner Exh.PL and report of Forensic Science Laboratory Exh.PL/1.
8. The appellant in his statement under section 342, Cr.P.C. has denied the correctness of the prosecution allegation and truthfulness of the witnesses produced by it. It is stated that the false recovery was planted, that the P.Ws. are very closely related to each other and are interested persons so have deposed falsely; that he had no motive to commit the offence; that the deceased was an addict and trouble maker; that he and his father were persons of chequered character. He has produced copies of F.I.R. No,140 of 1997 Police Station Dijkot Exh.DA, F.I.R. No,259 of 1999, Police Station Dijkot Exh.DB, F.I.R. No,331 of 1999 Ex.DC, F.I.R. No, 264 of 1999 Exh.DD, F.I.R. No, 164 of 2000 Exh.DE, F.I.R. No, 153 of 2001 Exh.DF, F.I.R. No, 105 of 2004 Exh.DG, F.I.R. No, 351 of 1985 Exh.DH. He opted neither to appear as witness on oath under section 340(2), Cr.P.C. nor to produce defence evidence.
9. We have heard the arguments advanced by the learned counsel for the appellant, learned counsel for the complainant and learned D.P.-G. for the State and have also perused the record with their able assistance.
10. Learned counsel for the appellant in support of this appeal has contended that as a matter of fact, the alleged occurrence took place much prior to the time mentioned in the F.I.R.; that the F.I.R. was registered after due deliberations and consultation; that both P.Ws. 10 and 11 are chance witnesses as they are not residents of the place, where the occurrence took place and have not been able to give explanation for their presence there; that there are contradictions in their statements; that no independent witness from the area has been produced by the prosecution although both the eye-witnesses stated that many persons were attracted to the scene of occurrence; that the specific motive was alleged in this case i,e, a quarrel took place between the deceased and the accused persons 4/5 days prior to the occurrence in which hot words were exchanged between them but while appearing in the court, the complainant changed the motive and stated that there was a dispute over pigeons 2/3 days prior to the occurrence and no independent witness for this changed motive was produced; that alleged recovery of Bughda from the appellant vide recovery memo Exh.PD is of no avail for the prosecution because in the memo it is not mentioned that it was blood-stained and even otherwise there is no report of Chemical Examiner and Serologist in this regard; that this recovery of Bughda has also not been proved in accordance with law and that prosecution case is highly doubtful in nature so the appellant is entitle to the acquittal.
11. Learned D.P.-G. for the State assisted by learned counsel for the complainant vehemently opposed the appeal on the ground that there is no delay in lodging the F.I.R. as occurrence took place at 11-00 a.m. and the matter was reported at 12-30 noon and the formal F.I.R. was registered at 1-00 p.m. on the same day; that even postmortem was conducted on the same day at 6-00 p.m. and in his report, P.W.9. Dr. Parvez Akhtar Anjum has stated probable time between death and postmortem examination as 8 hours; that both the eye-witnesses are residents of the area having no enmity with the appellant so there was no reason for them to involve him falsely and have given plausible explanation for their presence at the spot so they cannot be termed as chance or interested witnesses; that the ocular account furnished by P.Ws. 10 and 11 is fully corroborated by the medical evidence; that the appellant remained proclaimed offender for about 2 months and his absconsion has been proved by the P.W.2.; that recovery of Bughda from appellant has been proved which further strengthens the prosecution case; that the prosecution has proved its case to the hilt and that there is no mitigating circumstances in favour of the appellant.
12. In this case occurrence took place on 5-5-2002 at about 11-00 a.m. The matter was reported to the police on the same day at Mazhabi Adda Wala at about 12-30 noon and formal F.I.R. was registered on the same day at 1-00 p.m. The name of appellant and manner of commission of offence are mentioned in the F.I.R. An other important aspect of the case is that postmortem was conducted on the same day at about 6-00 p.m. and the probable time between death and postmortem as given by the Doctor Parvaiz Akhtar Anjum P.W.9, was 8 hours which reconciles with the time of occurrence given in the F.I.R. and in these circumstances there is no delay in reporting the matter to the police. Muhammad Yousaf complainant (P.W.10) is real uncle of the deceased, however other eye witness namely Sher Muhammad P.W.11 has no relationship with the deceased or the complainant. Both the witnesses have given explanation for their presence at a distance of 1-1/2 acre from the house of complainant. They are residents of the same locality, therefore, under the circumstances they cannot be termed as chance witnesses. The ocular account is fully supported by the medical evidence. The minor differences in the statements of the P.Ws. 10 and 11 are so insignificant that the same do not take away the intrinsic value of their evidence, which inspires confidence. Muhammad Yousaf is father's brother of the deceased. There was no reason for him to involve the appellant falsely and leave any other person; Sher Muhammad P.W.11 is an independent, natural and disinterested person, who has narrated the occurrence in a straight forward and natural manner. They are therefore reliable and confidence inspiring witnesses. The appellant remained fugitive from law and this fact also corroborates the prosecution version.
13. As far as motive part is concerned, a specific motive was set up in the F.I.R. that 4/5 days prior to occurrence a quarrel took place between deceased and the appellant but while appearing before the court, Muhammad Yousaf (P.W.10) changed motive and stated that 2/3 days prior to occurrence, a quarrel took place between the deceased and the accused over pigeons but no witness in this respect has been produced. We are conscious of the fact that no report of chemical examiner or Serologist is available on the record so the recovery of "Bugda" is of no avail to the prosecution but even if the motive part and recovery are excluded from the case, there remains sufficient evidence in form of the evidence of P.Ws. 10 and 11 who have no enmity with the appellant and no reason for false implication of the appellant has come on the record. The ocular account is fully supported by the medical evidence. However, we have noted that there are strong mitigating circumstances in favour of the appellant i.e, (a) specific motive which was set up in the F.I.R. i,e, a quarrel but while appearing in the court the same was changed to the effect that they had dispute over pigeons, (b) that the appellant was armed with Bughda which was recovered but it was not stained with blood and there is no report of Chemical Examiner and Serologist on the record. (c) we have also noted that specific suggestions were given to the P.Ws. regarding the character of deceased for his involvement in certain criminal cases which were registered against him. The copies of F.I.Rs, are on the file. Learned counsel for the appellant has gone through the same and conceded that deceased was involved in the criminal cases but contended he has not been convicted in any case. In these circumstances we are of the considered view that the capital punishment was not attracted in the given circumstances of the case and imprisonment for life would meet the ends of justice.
14. In view of above discussion, while maintaining the conviction of the appellant under section 302(b), P.P.C., his sentence is reduced into imprisonment for life with benefit of section 382-B, Cr.P.C. and the amount of compensation and sentence in case of not payment of he same are maintained. The murder reference is answered in the negative.