SADAQAT ALI KHAN, J.---Appellant (Muhammad Yasin) has been tried by learned trial Court in case FIR No.169 dated 28.02.2016 offences under sections 302/109, P.P.C. registered at Police Station Luddan, District Vehari and was convicted and sentenced vide judgment dated 27.10.2016 by the learned trial Court as under:-- Under sections 302(b)/149, P.P.C.
Sentence to death as Ta'zir for causing Qatl-e-Amd of Mst. Ayesha Bibi along with compensation of Rs. 2,00,000/-to be paid by him to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof to further undergo 6-months S.I.
Appellant has filed this Criminal Appeal against his conviction whereas learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
2. The facts of the case have been stated by Muhammad Imran complainant (PW-7) in his statement (examination-in-chief) before the learned trial court which is hereby reproduced for narration of the facts:- "States that on 28.02.2016 at about 1:30 P.M I along with my wife Mst. Shahnaz Bibi was cutting grass from the field of wheat crop near my house. My daughter Mst. Ayesha Bibi aged about 8/9 months was sleeping in a cloth made baby cot (Jhula) in the courtyard of my house. All of sudden we heard the voice of crying of our daughter from my house side. I and my wife saw that accused Yasin son of Abdul Rehman caste Bhatti present in the court was armed with Toki while taking my daughter Mst. Ayesha Bibi towards the wheat crop field of Shaharyar Khan Khakwani. On that I and my wife ran towards the accused. Accused Yasin started successive Toki blows on my daughter Mst. Ayesha Bibi. In our view accused Yasin threw my daughter in wheat crop. When accused saw that we were near to him he fled away from the spot along with weapon of offence. Haji Manzoor Ahmad son of Manzoor, Muhammad Noor son of Nawaz and my brother Muhammad Ramzan also came at the spot and saw the occurrence. The PWs chased the accused Muhammad Yasin and caught him along with his weapon of offence near the spot. My daughter Mst. Ayesha Bibi succumbed the injuries at the spot. When PWs caught the accused, he made resistance and due to that the accused sustained injuries. I and other PWs saw whole the occurrence with our own eyes. The motive behind the occurrence was that my chachazad (cousin) Javed son of Sheikh Muhammad contracted marriage with Mst.Mumtaz Bibi niece, of accused Muhammad Yasin against the wishes of her family. Due to that grudge accused Muhammad Yasin committed brutal murder of my daughter. Police came at the spot and I.O. recorded my statement Ex.P-C which was read over to me and I also put my thumb impression on said statement for its correctness.
On the same day, PWs produced accused Muhammad Yasin before I.O. of the case along with weapon of offence i.e. Toki blood-stained P-6 in my presence. I.O. took into possession the said Toki vide recovery memo. Ex.P-K. I.O. also prepared sketch of Toki vide sketch recovery memo. Ex.P- K/ 1. I and PWs Noor Muhammad and Haji Manzoor put our thumb impressions for its correctness.
My statement under section 161, Cr.P.C. was recorded by I.O. in this regard."
3. We have heard the learned counsel for the parties as well as learned D.P.G, and on perusing the record with their assistance observed as under:-- i. Ayesha Bibi aged about 8/9 months was done to death in the field on 28.02.2016 at 1.30 p.m., FIR was lodged on the same day (28.02.2016) at 3.30 p.m. on the statement of her father Muhammad Imran, complainant PW7, who along with Haji Manzoor PW9 while appearing before the learned trial Court stated in their statements that on 28.02.2016 at about 1:30 p.m., all of sudden they heard hue and cry, saw Muhammad Yasin appellant while armed with Toki took Ayesha Bibi (deceased) outside the house of the complainant, threw her in the wheat crop of Shahryar Khan Khakwani, in their view, inflicted successive "Toki" blows upon her. Haji Manzoor PW9 and Noor Muhammad given up PW caught hold of the appellant, red handed along with blood-stained Toki P6. Due to resistance, appellant also sustained few injuries, who was medically examined by Dr. Hammad Bashir PW1 observing four injuries i.e. two lacerated and two reddish bruises on his person. Both these two witnesses have absolutely no grudge or to falsely implicate the appellant in the present case. They were cross-examined at length but evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring. The discrepancies pointed out in the statements of the PWs by the learned counsel for the appellant are minor and general in nature, occur in every case when the witnesses (who are human being) are cross-examined after a long time of the occurrence as in the present case, are not fatal to the prosecution case. ii. Medical evidence has been furnished by Dr. Tahmina Zafar PWS who during postmortem examination observed injuries on the person of Ayesha attributed to .appellant which were ante- mortem in nature and was sufficient to cause death in ordinary course of nature, therefore, medical evidence has fully supported the ocular account discussed, above. iii. On arrival of the police at the place of occurrence, Muhammad Imran complainant PW7 produced snatched (from the appellant) Toki P6, blood stained, before Muhammad Amin Abid S.I.
PW-11," who took the same into possession vide recovery memo. Exh.PK. Report of Punjab Forensic Science Agency Exh.PS in this respect is positive. This witness (Muhammad Amin Abid S.I. PW-11) stated in his cross-examination that when accused was produced before him he was in injured condition, he, after providing him alternate clothes, took his blood-stained clothes into possession vide recovery memo. Exh.PO. iv. Muhammad Imran stated regarding motive of the occurrence that his cousin Javed son of Sheikh Muhammad contracted marriage with Mumtaz Bibi, niece of the appellant, against the wishes of her family but said Javed has not been produced to establish this motive which is not believable. v. The appellant while denying his involvement in the occurrence in answer to a question No.8 of his statement under section 342, Cr.P.C., has stated that instant case was registered against him only on the basis of suspicion. He neither opted to appear as witness under section 340(2), Cr.P.C. nor produced any defence evidence. Considering above, it is included that appellant has failed to prove his defence plea and learned trial Court has rightly discarded the same with sufficient reasons. vi. In view of the above discussion, if evidence of motive is excluded from consideration, even then the prosecution has proved its case beyond shadow of doubt against the appellant through the evidence discussed above.
4. Coming to the quantum of sentence, we have discarded the motive with the reasons mentioned in sub-para (iv) of Para-3 of the judgment. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. (2009 SCMR 1188 Mir Muhammad alias Miro v. The State) and (2014 SCMR 1227 Zafar Iqbal and others v. The State).
5. Considering above, conviction of appellant in offence under section 302(b), P.P.C. for committing the murder of Ayesha Bibi is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default whereof awarded by the trial court through the impugned judgment are maintained and upheld. Benefit of section 382-B, Cr.P.C. is also extended in favour of the appellant.
6. Consequently, with the above said modification in the impugned judgment, instant Criminal Appeal is hereby dismissed. Murder Reference is answered in NEGATIVE and death sentence of the appellant (Muhammad Yasin) is NOT CONFIRMED.