JAVID IQBAL, J.-Muhammad Afzal son of Fateh Muhammad, age, 27, armed with kassi, has been convicted under section 302, P. P. C. For the murder of Mushtaq Ahmad, aged 28 years, his Khalazad, and was sentenced to death plus fine of Rs. 5,000 or in default to undergo one year rigorous imprisonment with a direction that if the fine was realised from him, it should be paid as compensation to the heirs of the deceased vide judgment dated 20th April, 1978 of the Additional Sessions Judge, Sargodha. Fateh Muhammad son of Badar Din, father of the present con--vict, who is stated to be 75 years old and was empty-handed was acquitted. The appeal of the convict is being taken up alongwith Reference for the confirmation of death sentence awarded to him and these are being disposed of by this judgment.
2. The occurrence took place at 9-00 a.m. On 31st August, 1975 within the area of village Lalyani, at a distance of six miles from Police Station Kot Momin, District Sargodha. F. I. R. Exh. P. G. Was lodged by Altaf Ahmad P. W. 8, real brother of the deceased, at 11.00 a.m. On the same day and it was recorded by Gul Sher Khan Niazi S. I. P. W. 10.
3. The motive for crime, as stated in the F. I. R. Is that the maternal grandfather of the deceased as well as of the appellant did not have any male issue and on his death he was succeeded only by three daughters, one of them being the mother of the deceased and the other being mother of the appellant. The third daughter was married to the paternal uncle of the deceased. The landed property of the maternal grandfather was distributed amongst the three daughters and the widow Mst. Bhari, who was Naani of both the parties. It is stated that the claim of the appellant was that 1/3rd share of Mst. Bhari be also given to them. But this was resisted by the deceased-party. A day prior to the present occurrence at 8-00 a.m. There took place an altercation between the deceased and the appellant alongwith his father and it is stated that the appellant gave a warning to the deceased that he would teach the deceased a lesson and soon settle the matter of inheritance of the share of Mst. Bhari.
It may be pointed out at this stage that the motive in general is admitted by both the sides.
However, the witness produced of the earlier altercation between the deceased and the appellant is only Altaf Ahmad P. W. Real brother of the deceased.
4. The prosecution has produced two eye-witnesses of the occurrence, namely, Altaf Ahmad P.
W..8, real brother of the deceased, and Dalli P. W. 9 tenant/servant of the deceased.
5. The appellant was arrested on 7September, 1975 whereas Fateh Muhammad, acquitted co- accused, was arrested on 8th September 1975, by Gul Sher Khan Niazi, S. I. P. W.
10. The appellant led to the recovery of blood-stained kassi, P. 1 which was taken into possession vide memo Exh. P. E.
Dated 7th September 1975. The attesting witnesses are Khuda Yar P. W. 7, stated to be related to the deceased, Jahanan (not produced) and Gul Sher Khan Niazi, S. I. P. W.
10. According to the Serologist's report Exh. P. N. The scrapings from Kassi P. 1 were found to be stained with human blood.
6. In the F. I. R. The occurrence is reported to have taken place in the following manner. Altaf Ahmad P. W. 8, who lodged the F. I. R. Stated that he was a practising Advocate at Sargodha and on the day of occurrence was present in his village because it was Sunday. On the day of occurrence at 9'C0 a.m. It was the turn of the complainant-party to take the water from the Khal for irrigating their land. Therefore the deceased, Altaf Ahmad P. W. And Dalli P. W. 9 were proceeding towards their land in order to irrigate the field. The deceased was about 10 Karams ahead of them and the two eye-witnesses were behind him. When the deceased reached near the Khal, the appellant armed with a Kassi and his father empty-banded, who were hiding in the nearby kinno garden, suddenly appeared and the appellant raised a lalkana to the effect that he would teach a lesson to the deceased for having taken illegal possession of the share of Mst. Bhari in the landed property.
Thereafter he gave a Kassi blow which fell on the head of the deceased and the deceased fell down. On seeing this the two eye-witnesses rushed towards the deceased and heard the voice of Fateh Muhammad, acquitted co-accused, raising a lalkara to his son, the appellant, that he should not spare the deceased. In the meantime, while the two eye-witnesses rushed towards the deceased the appellant managed to give 6/7 Kassi blows respectively to the deceased on the head. The deceased died few minutes thereafter on the spot and the appellants as well as his father ran away towards their dera, Thereafter Altaf Ahmad P. W. Proceeded to lodge the report.
7. Dr. S. Rafiullah P. W. 1 conducted post-mortem examination on the dead body of the deceased at 7-00 a.m. On Ist September, 1975 and found on his person seven lacerated wounds on the head, left temporal region, left occipital region, forehead, and right outer canthus, an incised wound over the right mastoid region behind right ear, a punctured wound over the head and an abrasion on the left chest. The cause of death, in his opinion, was heamorrhage and shock resulting from the bead injuries which had caused fracture of the skull bone and which were sufficient to cause death in the ordinary course of nature. One injury was caused by sharp-edged weapon anal another by a sharp-pointed weapon having a cutting edge. All the rest of the injuries were caused by blunt- weapon. About the punctured injury he stated in the cross-examination that he could not rule out the possibility that this injury could be possible with Kassi P.
1. If it peneterated one inch into the body and the cutting as well as non-cutting sides of the blade had entered the body. He also stated that he could not rule out the possibility that this injury could have been caused by a Ballam as a Ballam usually caused a penetrating wound.
8. The appellant, in his statement before the trial Court, admitted the motive in general. He, however, stated that Mst. Bhari used to live with the accused party whereas her land was in possession of the complainant-party. He denied having participated in the occurrence andth disowned kassi P.
1. He pleaded innocence and stated that the land belonging to his grandmother Mst. Bhari was in possession of the complainant-side whereas she was residing with the accused party. The complainant-side did not give any produce to her and the accused-party had been pressing them to give something to the old lady whereupon the complainant-party became annoyed and they falsely implicated in this case the appellant and his father due to that grudge.
He also produced Exh. D. C. In order to show that the family of the deceased had other enemies as well.
9. We have heard learned counsel for the parties and have care fully perused the record with their assistance. The case of the defence is that it was an unwitnessed occurrence and that since the deceased and his family had other enemies, some of the other enemies might have caused the murder of the deceased. But as there was background of enmity between the parties, the appellant and his father were falsely implicated. It was argued that the eye-witnesses produced in the instance case, were interested as Altaf Ahmad P. W. Was real brother of the deceased and inimical towards the accused-party whereas Dalli P. W. Was servant of the complainant-party. It was also pointed out that the only public witness, who had attested the recovery of human blood-- stained kassi P. 1 was Khuda Yar P. W who was also related to the complainant-side. In order to show that the deceased and his family had other enemies reliance was placed on Exh. D. C. At page 49 of the Paper Book.
We have considered the arguments of learned counsel but find them without any force. The admitted position in this case is that the lazed of Mst. Bhari was in illegal possession of the complainant-party It was claimed by Altaf Ahmad, P. W. That Mst. Bhari was staying with them and that she started living with the accused-party 3/4 months from the date of the recording of his statement before the Additional Sessions Judge, on 19th April 1978. On the other hand, the appellant, in his statement before the trial Court, had stated that she was residing with the accused-party whereas her land was in possession of the complainant-party and they were not giving her any produce of the same. Mst. Bhari has not been produced by either side to state the correct position. At any rate, there is nothing on the record to prove that at the time of the occurrence Mst. Bhari was residing with the complainant-party and that it was the accused-party who were demanding 1/3rd share of her land despite the fact that she herself was alive. It is, therefore, reasonably probable that Mst. Bhari was staying with the accused-party whereas her land was in posse---ion of the complainant-party who were not giving anything to her. The record further shows that the parties are not only related from the maternal side but they are also closely related from the paternal side, The matter in dispute between the two parties was that the land belonging to Mst. Bhari was in possession of the complainant-party who were resisting to give any produce thereof of Mst. Bhari and therefore, the relations between both the sides became strained.
It was argued by 'learned counsel for the appellant that there was no independent witness of the occurrence of the earlier altercation between the deceased and the appellant on this issue and that it was being claimed only by Altaf Ahmad, P. W. An interested witness that he was told by the deceased about the earlier altercation. But we are of the view that since the motive had been admitted by both the sides in general, it is not relevant as to whether earlier altercation between them took place or not in which the appellant is stated to have given a definite threat to the deceased that he would soon settle the issue. About the argument of learned counsel that it was as un-witnessed occurrence, we note that on the day of occurrence it was in fact Sunday. Altaf Ahmad, P. W. Is a practising Advocate and since on Sunday in those dais the Courts used to be closed, it was reasonably probable that he was in the village on the fateful day. It was argued that even if he was in the village, there was no reason why Altaf Ahmad, P. W. Accompanied by Dalli P.
W. Should go to the field alongwith the deceased in order to take their turn of water. It was pointed out that they did not go together and that according to the testimony of Altaf Ahmad, P. W. He and Dalli P. W. Followed him after some time. The reasoning of learned counsel is that both being interested witnesses, having motive to falsely implicate the accused-party, might have not followed the deceased and, there--fore, they did not witness the occurrence as the punctured wound in the person of the deceased is not explained. We have gone through the statements of Altaf Ahmad and Dalli. P. Ws. The discrepancies pointed out by learned counsel in their statements are not really material to raise a doubt in our mind to the effect that they might have not accompanied the deceased. It was a day-time occurrence as it took place at 9.00 a. m. The F. I. R was lodged promptly by 11-00 a. m. And furthermore there was no reason why the appellant should have been substituted for the real culprits. The father of the present appellant was acquitted for the reason that he had been described as having been empty-handed and only lalkara was attributed to him. But so far as the appellant is concerned, it was stated by the eye-witnesses that he gave Kassi blows to the deceased on the head. Here the ocular testimony is being supported by the medical evidence as most of the injuries sustained by the deceased were on the head and could have been possibly caused by kassi P.
1. The ocular testimony is further corroborated by the recovery evidence in the instant case. The appellant was arrested on 7September 1975, and on the same day he led to the recovery of human blood-stained kassi P.
1. Even if Khuda Yar P. W. Be considered as related to the complainant-party, there is nothing on the record to show that Gul Sher Khan Niazi, S. I. P. W. Had conducted the investigation of this case dishonestly and, therefore, we have no reason to disbelieve his testimony as an attesting witness of this recovery. So far as Ex.
D. C. At page 49 of the Paper Book is con--cerned, it does not indicate that the deceased had also other enemies besides the appellant. It is a statement of a witness in a civil dispute which was instituted on behalf of Ahmad Bakhsh minor as against Motalli, who had sold some land, which was claimed to be the ancestral property of the minor to Ghulam Hussain, father of the deceased and Khushi Muhammad, uncle of the deceased. The deceas--ed was not a party to that suit and the sale of the land in that case had taken place many years before the present occurrence. In any case, it is difficult to infer from Ex. D. C. That the deceased could have been murdered by some other enemies. In our considered opinion, therefore, Ex. D. C. Does not improve the case of the defence in any manner. We have already pointed out that the ocular testi--mony, in the instant case, is reliable on the face of it and it is corroborated not only by the recovery evidence but also supported by the motive as well as medical evidence. We are, therefore, of the view that the prosecution has succeed in establishing its case as against the appellant beyond any shadow of doubt. Consequently, the conviction of the appellant under section 302, P. P. C. As quite proper and is accordingly maintained. However, there remains the question of sentence. It is evident from the record that the deceased and his family were in possession of the land of Mst. Bhari who was not being given any share of the produce. It further appears that Mst. Bhari was staying with the appellant and his father. Since the parties are closely related maternally as well as paternally, the appellant and his family demanded from the deceased and his family that they should give the share of produce to Mst. Bhari who was herself alive and that they were not entitled to take possession of her land. It was in this background that the act of the appellant is to be examined.
The relations between the parties were strained before the occurrence took place on this account.
Consequently, it is in this background that the appellant caused the injuries to the deceased and killed him Thus, in our view in the light of the background of motive, there is mitigating circumstance calling for the award of lesser penalty in the instant case, which, in our view, would be sufficient to meet the ends of justice in the peculiar circumstances of this case.
The result is that the conviction of the appellant under section 302, P. P. C. Is maintained but the sentence of death is altered to that of imprisonment for life. The sentence of fine is maintained.
With this modification the appeal is dismissed.
The death sentence awarded to the appellant is not confirmed.th