KAZIM ALI MALIK, J. --- We find it convenient to dispose Murder Reference No. 876 of 2001 and Crl.
Appeal No. 941 of 2001 by this single judgment as these interconnected matters have arisen of of the judgment dated 12.12.2001 by a learned Addl. Sessions Judge, Vehari passed in case F.I.R. No. 49 of 1996 registered with Police Station City Boorcywala. Distt. Vehari whereby Abdul Majeed, appellant was convicted under Section 302(b), P.P.C, and sentenced to death with a time of Rs.
50,000/- and in case of default thereof to suffer rigorous imprisonment for three years.
2. The prosecution case set up in the F.I.R., in brief is that Fateh Muhammad, complainant attracted to the house of his relative Khadim Hussain (deceased) on 29.2.1996 at 6.30 p.m. On hearing the alarm and found him in clutches of Abdul Majeed (appellant) and Jan Muhammad (acquitted accused), In the meantime Shamas-ud-Din and Muhammad Yousaf, P. W.s. Also reached there.
Khadim Hussain (deceased) .Offered resistance and made good his escape. He entered into a nearby house and bolted its outer door from inside. Abdul Majeed, appellant and Jan Muhammad, acquitted accused armed with hatchet and stick respectively also entered the said house by scaling boundary wall. Abdul Majeed, appellant delivered hatchet blow which landed on the head of Khadim Hussain (deceased) who fell down. Jan Muhammad, acquitted accused gave stick blows to Khadim Hussain (deceased) on his forehead. Khadim Hussain (deceased) was removed to Booray Wala Hospital in an injured condition from where he was referred to Multan Hospital for better treatment. Motive for the occurrence was stated to be a quarrel between women-folk of both the sides.
3. The occurrence took place on 29.2.1996 at 6.15 p.m. Inside the village Abadi of Chak No. 445 E.B.
Distt. Vehari three miles away from Police Station Saddar Booray Wala and was reported to the police on 1.3.1996 at 6.15 p.m. By Fateh Muhammad, complainant. On 2.3.1996 Khadim Hussain died of his injuries in the hospital and the case initially registered on the. Charge of attempted murder became a case of murder.
4. On 29.2.1996 Dr. Muhammad Ramzan Khan, P.W-1 medically examined Khadim Hussain while being alive and found the following injuries on his person:-
(i) Incised wound 7 cm x 4 cm on the right side of head 3 cm above right ear. Brain matter exposed.
(ii) A lacerated wound 1.5 cm x 1/4 cm x skin deep on left side of forehead.
(iii) A lacerated wound 1 cm x % cm x skin deep on left upper eye lid.
(iv) A lacerated wound V4 cm x Va cm x skin deep on left lower eyelid.
The examinee was in a state of shock. He was referred to Nishtar Hospital, Multan where he breathed his last. On 2.3.1996 P.W. 1 made autopsy on the dead-body and found the injuries already noted by him vide medicolegal report.
On dissection, haematoma under scalp and under duramater was found. Skull was fractured.
Membranes were cut and brain matter was lacerated. The cause of death in this case was damage to the brain matter. Injury No. 1 caused by sharp-edged weapon proved fatal to life. The post-mortem examiner certified under his report Ex.PB that Khadim Hussain died of above-said incised wound, which exposed his brain matter.
5. Ali Muhammad, A.S.I., P.W.7 conducted investigation in this case and got challaned the appellant and the acquitted accused Jan Muhammad to stand trial on the charge of murder. At the inception of trial, the accused persons were charged under Section 302 read with 34 of the P.P.C, for having committed Qatl-i-Amd of Khadim Hussain in furtherance of their common intention. They denied the charge and claimed trial.
6. The prosecution examined eight P.Ws, in all of of whom Fateh Muhammad, complainant, P.W.3 and Muhammad Yousaf, P.W.4 furnished ocular account of the incident. They improved upon their previous stance qua the motive by saying that Abdul Majeed appellant suspected illicit intimacy of his sister with Khadim Hussain, deceased.
7. When examined under Section 342, Cr.P.C, the appellant denied each piece of prosecution evidence put to him. In an answer to a question as to why this case against him, Abdul Majeed, appellant put forward his defence version as under:- "I am innocent. The. Fact of the matter is that on that day I suspected Mst. Bashiran Bibi my sister having entered in the house of Abdul Sattar when the female members of the house of Abdul Sattar were not there. I just went into courtyard to see as to whether Mst. Bashiran had gone and found that she was making love with Khadim Hussain, deceased in the cattle pen of Abdul Sattar's house. I could not resist my temptation and the power of Gharit. I picked up a hatchet lying there near the fodder machine of Abdul Sattar and losing power of restraint I gave a blow with the same to Khadim Hussain, deceased who fell on the spot with his face downward and again got up and escaped from there. I tried to locate my sister Mst. Bashiran in the Havali of Abdul Sattar but by then she had made good her escape. I am a poor respectable and could not see my married sister making love with a stranger and thus I have trapped in this case."
8. This is a case of version and counter version. After arguing the matter at some length, learned counsel for Abdul Majeed. Appellant on re-consideration opted to accept the conviction on the charge of murder and requested for lesser penalty with the plea that motive part of the incident escaped notice of the learned Trial Court while determining quantum of sentence. We have carefully examined the argument in the light of available material. While lodging the F.I.R, as well as during course of investigation the P.Ws, concealed and suppressed the actual motive, which prompted Abdul Majeed, appellant to kill Khadim Hussain, but at trial they were left with no other option but to admit that Khadim Hussain, deceased had been carrying on with a sister of Abdul Majeed, appellant which provoked the appellant. For facility of reference relevant portions of statements of Fateh Muhammad, P.W.3 and Muhammad Yousaf, P.W. 4 regarding the motive are reproduced below in verbatim:- Fateh Muhammad P.W. 3 says: "Motive behind the occurrence was that Jan Muhammad and Abdul Majeed, accused suspected that deceased Khadim Hussain had illicit connection "with the sister of Abdul Majeed, accused who is wife of Jan Muhammad, accused.--After the occurrence I had heard that Khadim Hussain had illicit relations with Mst. Bashiran sister of Abdul Majeed. It was told by the relative of Abdul Majeed, accused I came to know this fact after registration of the case, It was already in my knowledge that Khadim Hussain had illicit relations with Mst. Bashiran."
Muhammad Yousaf, P.W.4 says: "Motive behind the occurrence was that the women of . The deceased family and accused family quarreled 15/20 months prior to occurrence and a protest was made that deceased Khadim Hussain had illicit connection with sister of Abdul Majeed who was the wife of accused Jan Muhammad.----------- Before murder of Khadim Hussain, it was not in my knowledge that he was suspected to have illicit relations with Mst. Bashiran. I came to know this fact after two days of the occurrence.---I had heard about illicit relations of Mst. Bashiran with the deceased suspect about two days after my statement before the police."
9. A combined examination of the above-said statements of the two eye-witnesses would show that they made sell contradictory statements regarding the motive. They admitted that the deceased had been carrying on with Mst. Bashiran and in the same breath took somersault by saying that the appellant suspected illicit intimacy of his sister with the deceased. Be that as it may it has been established on record in the light of counter claims of both the sides that illicit intimacy of Khadim Hussain, deceased with a sister of Abdul Majeed, appellant was the only bone of contention. Here we may add that Khadim Hussain deceased himself invited the trouble by developing illicit intimacy with the sister of the appellant and in this way contributed towards his killing to some extent. We, therefore, are in agreement with the learned counsel for the appellant that normal penalty of death in the circumstances is not warranted by law.
10. We, therefore, commute death sentence of the appellant to imprisonment for life with the benefit of Section 382-B, Cr.P.C, In the light of statements of the two eyewitnesses it is not difficult to infer that the deceased was immoral and, therefore, his legal heirs are not entitled to any compensation.
11. With the above-said modification in the sentence of the appellant, Crl. Appeal No. 941 of 2001 is dismissed.
12. Murder Reference No. 876 of 2001 is answered in negative.
13. Death sentence imposed on the appellant by the learned Trial Court is NOT CONFIRMED.