' CH. MUHAMMAD TARIQ, J.---By way of filing this criminal appeal, Muhammad Ismail son of Allah Wassaya has assailed the judgment dated 9-6-2005 passed by Mr. Muhammad Yunus, learned Sessions Judge, Rajanpur who convicted the appellant under section 302(b), P.P.C. In case F.I.R. No. 120 of 2002, dated 20-8-2002 registered with Police Station Umer Kot and sentenced him to death with payment of Rs.50,000 as compensation to legal heirs of the deceased as required under section 544-A, Cr.P.C. And in default thereof, to undergo six months' S.I.
2. Murder Reference No.343 of 2005 forwarded by learned trial court under section 374, Act V of 1898 for confirmation or otherwise of death of Muhammad Ismail, appellant-convict will also be replied through this judgment.
3. The prosecution story as contained in the F.I.R. Lodged on the complaint of Mst. Bachi Mai w/o of Liaqat (deceased) is that on the fateful day, i.e. 20-8-2002 at about 6-00 a.m., when the complainant was present with her husband Liaqat in their Havelli, Ismail (appellant) armed with a hatchet along with Khalil, empty-handed, came there. Ismail raised a lalkara that they had come there to teach a lesson to Liaqat deceased for not giving Rishta. Khalil clasped Liaqat while Muhammad Ismail inflicted hatchet repeated blows on the person of Liaqat which landed on his forehead below right armpit and above the right ear as a result of which Liaqat fell on the ground.
On hue and cry, Sumar son of Budha and Salam son of Lal Bakhsh reached at the spot and saw the occurrence. Thereafter, the accused decamped from the scene. Liaqat while on his way to hospital succumbed to the injuries. The motive behind the occurrence as per F.I.R. Is that Ismail etc. Had asked Liaqat to give Rishta of her daughter Mst. Ashru to Talib and on refusal, Ismail etc. Murdered Liaqat deceased.
4. After completion of investigation, the police submitted report under section 173, Cr.P.C. Since the accused Khalil absconded, proceedings under sections 87/88, Cr.P.C. Were initiated and ultimately accused Khalil was declared P.O. On 8-9-2003. Formal charge under section 302 read with 34, P.P.C.
Was framed which was denied by the appellant who pleaded his innocence and claimed trial. In order to prove its case, the prosecution produced as many as 9 witnesses.
5. During the trial, the ocular account was furnished by the complainant Mst. Bachi Mai (P.W.6) and Sumar, P.W.7 who narrated the story as contained in the F.I.R.
6. P.W.8, Rahim Bakhsh, A.S.-I./ 1.0. Deposed that after receipt of the complaint, he proceeded to the place of occurrence, inspected the place of occurrence, prepared rough as well as scaled site plans (Exh.PJ, Exh.P.A., Exh.PA/1), Prepared injury statement (Exh.P.G.) and the inquest report (Exh.
P.H.) and sent the dead body of the deceased to the mortuary for postmortem examination. He secured the blood-stained earth from the place of occurrence vide recovery memo. Exh.P.E. After the postmortem examination, he also took into possession the blood-stained last worn clothes of the deceased vide recovery memo. Exh.P.C. The I.O. Further deposed that on 28-8-2002, he arrested Ismail and on pointation of the appellant Ismail recovered hatchet P-3 from his residential room in the presence of the P.Ws. And secured it through recovery memo. Exh.P.F; The I.O. Also recorded the statements of the P.Ws. Under section 161, Cr.P.C. And found the appellant Ismail guilty of the charge.
7. P.W.2 Dr. Mohabbat Ali, Medical Officer conducted the post mortem examination on the dead body of Liaqat deceased and found the following injuries on his person:- "(1) A horizontal cut wound about 11 multiple x 3 cm at the middle of scalp. Brain matter was coming out of the wound. Membranes (meninges) were also cut. Wound was about 7 cm away from left ear.
(2) A horizontal cut wound about 12 x 3-1/2 cm right temple towards right ear, which was on the right occipital region. Bones and meninges were also cut. Brain matter was coming out from the right ear. Right ear was also really cut.
(3) A cut wound about 2 x 1 c.m. About 4 c. m. Above right ear. Bone was also cut.
(4) A horizontal cut wound 5 c.m. Below the right armpit (axilla) and was about 5 x 1-1 /2 c.m. And was about 9 c.m. Away from right nipple. .(5) Scratch mark about 2-1/2 c. m. On the right side of chest on the back. Postmortem staining was also present on the back."
' The doctor also deposed that pleura were cut due to Injury No.4. He opined that the death of the deceased occurred due to injury to vital organs brain, excessive bleeding from brain matter, vasovagul shock and injuries Nos.1 and 2 were sufficient for cause of death in ordinary course of nature.
8. The other witnesses being formal in nature are not required to be discussed here.
9. After close of prosecution evidence, the appellant Ismail was examined under section 342, Cr.P.C.
The appellant Ismail himself admitted that he had committed the murder of his brother Liaqat with hatchet and that he is making the statement without any coercion or pressure. About the motive, he, however, stated that he does not want to disclose the motive.
10. On 26-5-2005, Allah Wassaya, father of Liaqat deceased, appeared in the trial court and deposed that he had entered into a compromise with Ismail accused with his free-will, pardoned the accused in the name of Allah and waived his right of Qisas and Diyat. He also produced his affidavit Mark-A.
11. After culmination of the trial, the learned trial court convicted and sentenced the appellant Muhammad Ismail as given in para 1 above. Hence this criminal appeal.
12. Learned counsel for the appellant-convict has chiefly argued that though the appellant-convict has admitted the commission of offence in his statement recorded under section 342, Cr.P.C. But one of legal heirs of deceased namely Allah Wassaya, father of the deceased, has pardoned the appellant and waived his right of Qisas and Diyat, therefore, neither the capital punishment could be awarded to the appellant-convict nor the case against the appellant is covered by section 302- A, P.P.C. In this behalf, learned counsel for the appellant has relied on the ratio decidendi laid down in case titled as, "Muhammad Nawaz and 12 others v. The State", reported as 2005 YLR 2640 and has prayed that the appeal in hand be accepted, the appellant be acquitted of the charge, or, at least, the sentence of death of the appellant be converted into life imprisonment.
13. Conversely, learned Deputy Prosecutor-General has vehemently opposed this criminal appeal on the grounds that it was a broad-daylight occurrence. The appellant-convict was as nominated in the F.I.R. With specific rule and he himself lias confessed his guilt in his statement under section 342, Cr.P.C. Learned Law Officer avers that the ocular account is consistent and in line with the medical evidence. The weapon of offence was recovered on the pointation of the appellant. The appellant-convict has brutally murdered Liaqat deceased who suffered as many as 5 hatchet blow injuries and succumbed to those injuries, therefore, the appellant does not deserve to any leniency. Learned Law Officer further avers that there is even no mitigating circumstance, therefore, the instant appeal be dismissed.
14. We have heard the arguments put forth by learned counsel for the parties at a considerable length and have also perused the record.
15 The occurrence had taken place on 20-8-2002 at about 6-00 a.m. In the morning. It was a broad-daylight occurrence. The F.I.R. Had been promptly lodged. The convict-appellant was nominated in the F.I.R. With a specific role. The motive as explained in the F.I.R. Is that the appellant- convict: demanded the hand of Mst. Ashru, daughter of Liaqat deceased, for one Talib and on refusal by Liaqat, the appellant-convict committed murder of Liaqat deceased brutally.
16. The ocular account of the case was furnished by Mst. Bachi Mai, P.W.6 and Sumar, P.W.7. Both the prosecution witnesses explained the occurrence in detail. After the occurrence, on 28-8-2002, the appellant was arrested by Rahim Bakhsh, A.S.-I./1.0. (P.W.8). During investigation, on pointation of the appellant-convict, the I.O. Recovered the blood-stained hatchet (Exh:PF/1) from the residential room of the appellant-convict. The recovered hatchet was sent to Chemical Examiner as well as to Serologist. The report (Exh.PK) submitted by Chemical Examiner and that of Serologist (Exh.PK/1) confirmed the presence of human blood on the recovered hatchet. Despite lengthy cross- examination, the defence has failed to shatter the prosecution witnesses. The appellant and deceased are stated to be brothers.
17. During his statement under section 342, Cr.P.C. Recorded on 29-4-2005, the appellant-convict himself confessed that he committed the murder of Liaqat deceased on the fateful day at about 6-00 a.m.
18 . The place of occurrence is house of the complainant from where the bloodstained earth was recovered. Doctor Mohabbat Ali (P.W.2) conducted the postmortem examination on the dead body of the deceased Liaqat. He noted 5 injuries on the person of the deceased which shows that the appellant-convict has brutally murdered Liaqat deceased with repeated hatchet blows, therefore. .The appellant does not deserve to any leniency. Even otherwise, there is no circumstance for mitigating the sentence of the appellant-convict because occurrence was not denied. Presence of eye-witnesses at the place of occurrence was not challenged. Manner in which the occurrence took place was not disputed, rather it was admitted. Occurrence had taken place in the manner as suggested by the prosecution. Plea of partial compromise and relationship inter se with the accused could hardly be a consideration for mitigating sentence. Respectful reliance is placed on the law laid down in case titled as, "Muhammad Yaqoob and others v. The State", reported as 2009 SCM R 527.
19. In our view, the prosecution has been .Successful in proving its case beyond any shadow of doubt while the defence even after lengthy cross-examination, could not shatter the evidence of the prosecution witnesses. Law relied upon by learned counsel for the appellant-convict is not applicable in the circumstances of this case.
20. ' The epitome of whole discussion is that the appellant-convict has brutally murdered Liaqat , deceased by causing repeated hatchet blows on his person. The prosecution has proved its case beyond any shadow of doubt. On the other hand, learned counsel for the appellantconvict/defence has miserably failed even to point out any mitigating circumstance.
Therefore, the Criminal Appeal in hand having no force is DISMISSED. The Murder Reference No.343 of 2005 sent by learned trial court for confirmation of death or otherwise of the appellant is answered in AFFIRMATIVE and death sentence awarded to the appellant-convict is CONFIRMED.