' SYED MUHAMMAD KAZIM RAZA SHAMS, J. --The appellant Allah Ditta son of Sardar Khan was tried in case F.I.R. No, 464, dated 25.8.2007, registered under Section 302, P.P.C. With Police Station City Lodhran for the charge of Qatl-i-Amd of his brother Ghulam Murtaza. The learned Court, after conclusion of the trial, vide judgment dated 22.12.2008 convicted the appellant under Section 302(b), P.P.C. And sentenced to death as Ta'zir with a direction to pay Rs, 50,000/- to the legal heirs of deceased as required by Section 544-A, Cr.P.C. And in default whereof to undergo six months' simple imprisonment.
2. M urder Reference No, 20/2009 has been sent by the learned Trial Court as required under Section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Allah Ditta.
3. The appellant Allah Ditta being aggrieved of his conviction and sentence has sent his appeal (Crl. Appeal No, 105/2009) through the Jail authorities, which is being disposed of alongwith Murder Reference No, 20/2009, by this single judgment.
4. The prosecution story as narrated by the complainant Sardar Khan son of Muhammad Ramzan (PW.8) in his written statement (Ex.PD/1), on the basis of which F.I.R. (Ex.PD) was that on 25.8.2007 at about 6.00 p.m., he on having information about quarrel between his sons Allah Ditta and Ghulam Murtaza reached the house of Ghulam Murtaza and saw that his both sons were abusing to each other. The complainant, his son Allah Dad and Sardar son of Ghulam Rasool, father-in-law of Ghulam Murtaza, who had come to see his daughter, made them to understand but Allah Ditta, who was very angry went to his house and came back with a hatchet. The complainant, Allah Dad and Sardar Khan tried to apprehend Allah Ditta but he threatened to kill them and within their view Allah Ditta inflicted consecutive blows with hatchet which landed on the back side head left side of head, left side of forehead and on the wrist of left hand of Ghulam Murtaza, whereafter Allah Ditta fled away from the scene. The complainant and others attended the injured but he succumbed to the injuries at the spot.
' The motive behind the occurrence was that a short-while before the occurrence son of Ghulam Murtaza had slapped the child of Allah Ditta and for this grudge Allah Ditta wilfully killed Ghulam Murtaza.
5. After registration of the F.I.R., Nazir Ahmad, Sub-Inspector/Investigating Officer (PW.9) visited the place of occurrence, inspected the dead-body of Ghulam Murtaza, prepared inquest report Ex.PF, injury statement Ex.PF/1, dispatched the dead-body to the hospital for post-mortem examination in the escort of Abdul Shakoor 479/C, took into possession blood-stained earth vide recovery memo.
Ex.PG, prepared rough site plan Ex.PH and recorded the statements of the PWs under Section 161, Cr.P.C. The Investigating Officer arrested the accused Allah Ditta on 28.8.2007, who got recovered blood-stained hatchet (Ex.P.2) from his house situated in Kundi, which was taken into possession vide recovery memo. Ex.PC. On 12.9.2007 the Investigating Officer got prepared scaled site plan (in triplicate) Ex.PA, PA/1 & PA/2 from Abdul Karim, Draftsman. During the investigations Allah Ditta was found guilty, consequently report under Section 173, Cr.P.C. Was submitted in the Court for his trial, where he was charge-sheeted. The accused professed innocence and claimed trial.
6. The prosecution in order to bring home the charge against the accused Allah Ditta had examined nine witnesses in all. The ocular account mainly based upon the statements of PW.6 Mst.
Amana Bibi, widow of Ghulam Murtaza, PW.7 Sardar Khan son of Ghulam Rasool, father-in-law of deceased Ghulam Murtaza, PW.8 Sardar Khan son of Muhammad Ramzan (complainant) and PW.9 Nazir Ahmad, Sub-Inspector/Investigating Officer. The medical evidence was furnished by Dr. Shaukat Ali ljaz, Medical Officer, DHQ Hospital, Lodhran (PW.5), who conducted post-mortem examination of the dead-body of deceased Ghulam Murtaza and found the following injuries:--- " (1) There was an incised wound 7 cm x 1.5 cm x bone deep (skull fracture of frontal bone), could be seen.
(2) There was an incised wound 9 cm x 4 cm x bone deep (Sterno clavicles mussels cut could be seen, mastoid bone cut could be seen), below the left ear going towards neck.
(3) There was an incised wound 11 cm x 3 cm x bone deep (Fracture of occipital bone could be seen) on back of skull. On occipital region going towards back of neck.
(4) There was an incised wound 3 cm x 1 cm x bone deep on lateral aspect of left wrist joint. "
' In his opinion the death was resulted due to head injury (fracture of skull). Injuries No, 1, 2 & 3 were most likely sufficient to cause death in ordinary course of nature. The probable time between injuries and death was immediate and between death and post-mortem was about 14 hours.
7. The prosecution closed its evidence by giving up Shaukat Ali 228/C as well as Allah Dad PWs being unnecessary and by tendering reports of Chemical Examiner Ex.PJ and Ex.PK, reports of Serologist Ex.PJ/1 and Ex.PK/1.
8. The prosecution evidence so recorded was confronted to Allah Ditta accused/appellant, who made his statement under Section 342, Cr.P.C. And while replying question No, 9 "Why this case against you and why the PWs have deposed against you? " deposed as under:--- "I have been falsely implicated in this case due to previous enmity. All the PWs are inter se related to each other hence they have falsely deposed against me. "
9. The appellant neither opted to make statement under Section 340(2), Cr.P.C. To disprove the allegations levelled against him in the prosecution evidence nor produced any evidence in defence.
10. It is pertinent to mention here that on 28.11.2008 Sardar Khan complainant made statement on oath mentioning that due to compromise being one of the legal heirs of the deceased had forgiven Allah Ditta accused by waiving his right of Qisas and Diyat and had no objection on the acquittal of Allah Ditta.
11. Learned counsel for the appellant has, inter alia, contended that there was a glaring contradiction in the statements of complainant (PW.8) and Investigating Officer (PW.9) regarding recording of the statement of the complainant which indicates that at the time of occurrence the complainant as well as the witnesses were not present at the spot witnessing the occurrence; that the real culprit was substituted by the complainant with the appellant as the F.I.R. Had been lodged with unexplained delay of two hours; that the appellant had been pardoned by the complainant while making his statement as PW.8, therefore, the appellant is liable to be acquitted on this statement; that the weapon of offence allegedly recovered on the pointation of the appellant has been planted upon him with malice, that the occurrence which had taken place was not result of premeditation and it took place at the spur of the moment due to grave and sudden provocation; that PWs are highly interested and partisan, therefore, their testimonies cannot be relied upon without other independent corroboration; and that the prosecution has further failed to establish the motive for the occurrence as such on this account the appeal is liable to be accepted.
12. The submissions so made by the learned counsel for the appellant have been controverted by learned Deputy Prosecutor General by arguing that it is a case in which one brother had killed his other brother in the house and the occurrence had been witnessed by their real father, who is the complainant of the case, therefore, it is not probable that the complainant had mistakenly booked his other son for the murder of his deceased son Ghulam Murtaza. It is further submitted that the contradictions pointed out by the learned counsel for the appellant in the statements are minor in nature and do not have any bearing upon the genesis of the occurrence, which was duly supported by the statements of PW.6 and PW.7 in clear terms and their testimonies are quite consistent with each other on material points. Regarding statement of PW.8 that he had pardoned the appellant in the name of Allah Almighty is concerned, according to the learned counsel that cannot be considered as the deceased was a married person having his children also, who did not compound the offence nor made any statement in this regard. Lastly, it is argued that the prosecution by producing cogent and confidence inspiring evidence had established the identity of the appellant that he is the person who was present at the place of occurrence with weapon with which he had inflicted injuries at the vital parts of the body of the deceased resulting into his death which infliction of the injuries is further supported by the fact of recovery of crime weapon at the instance of the appellant thus the appeal is liable to be dismissed.
13. Arguments heard and record perused.
14. It is a case in which the complainant PW.8 being crest-fallen father of the deceased as well as appellant, has informed the Police about the incident with the assertion that within his view his one son Allah Ditta with hatchet inflicted injuries to his other son Ghulam Murtaza, which landed on his head due to which he succumbed to the injures. He mentioned that the motive of the occurrence is a quarrel between the children of two brothers in which infuriated appellant had killed his real brother. These facts have been established by the prosecution by producing PWs 6 to 8, who in their testimonies remained consistent with each other in respect of the identity of the appellant, his presence at the house, time and date at which the incident had taken place, the weapon with which the appellant was armed and infliction of the injuries. Although an attempt was made by the appellant side to dismental the credibility of the witnesses but he remained miserably failed to establish as to why PWs were interested in his prosecution. All the PWs are inmates of the house and closely related to both persons i,e, the deceased as well as appellant and in the absence of any animosity and with the appellant it cannot be observed that their testimonies suffer from some malice or afterthoughts. Even there appears no reason for falsely substituting the appellant with some other person by a person who is father of both. The promptitude in lodging the F.I.R. Also negates the fact of substitution or mistaken identity of the appellant. The depositions so made by the PWs are also found quite in line with the medical evidence furnished by PW.5 Dr. Shaukat Ali ljaz, which indicates that the injuries were received by the deceased on his head with sharp-edged weapon, the nature of which weapon had already been mentioned by the PWs in their testimonies that the appellant was armed with hatchet at the time of occurrence thus a cogent corroboration has been furnished in this respect. Similarly the recovery of the hatchet at the instance of the appellant is another factor, which goes to establish that it was the same weapon, which was used by the appellant for killing his brother.
15. So far as the contention of the learned counsel that PW.8, father of the deceased as well as of the appellant, in his statement had forgiven the appellant in the name of Allah Almighty is concerned, that cannot be considered for the simple reason that PW.8 is not the sole legal heir of the deceased, who was also having his wife and children. Neither the widow of the deceased nor his children had come forward for effecting any compromise with the appellant, therefore, on the solitary statement of PW.8 offence cannot be compounded.
16. From the close examination of the record, it is found that the incident had taken place over a quarrel between the children of two brothers and appellant had killed his brother with hatchet over such a petty dispute. It is further evident that it was not a premeditated occurrence nor two brothers had any previous ill-will and animosity against each other. It appears that the occurrence had taken place at the spur of the moment and the appellant in the heat of passions took the law into his own hand and killed his brother. Further, although the other legal heirs of the deceased have not compounded the offence with the appellant but one of the legal heirs i,e, the father (PW.8) has sworn an affidavit in this respect stating that he had pardoned his son in the name of Allah Almighty. It would be very difficult situation for PW.8 to see the death of another son i,e, appellant particularly when he had already lost his one son in whatever circumstances. He is a person having the age of 58 years at present and perhaps he may not sustain the shock of death of his another son. Keeping in view all these peculiar circumstances, we are inclined to commute the death sentence into one imprisonment for life.
17. As already observed above, the prosecution has succeeded in bringing home the guilt of the appellant by producing credible evidence on the record, therefore, we are not inclined to accept this appeal.
18. For what has been discussed above, the appeal in hand is dismissed with the modification that the death sentence awarded to the appellant Allah Ditta is commuted to imprisonment for life with benefit of Section 382-B, Cr.P.C. The remaining sentences are maintained. Consequently, Murder Reference No, 20/2009 sent by the learned Trial Court under Section 374, Cr.P.C. Seeking confirmation of death sentence awarded to appellant Allah Ditta is answered in NEGATIVE and death is not confirmed. Sentence reduced.