SHAUKAT ALI, J.-Ramzan (26), was prosecuted under section 302, P. P. C. For having caused : the death of his uncle Muhammad, an old man of 60 years, on the night intervening 26th and 27th of February 1967, in village Massan, District Jhang. The learned Additional Sessions Judge, who tried him, sentenced him to death. He has come up in appeal to this Court and there is a usual reference for the confirmation of the sentence of death.
2. Briefly summarized, the case of the prosecution is this. The appellant is a bachelor. He approached his brother Kamir and his wife Mst. Phaphan P. Ws. To arrange for his marriage. Both promised to do so. On the 26 of February 1967, Kamir P. W. Had gone to Mochiwala. In his absence the appellant at about noon the had a row with Mst. Phaphan as she had failed to arrange for his marriage. He threatened Mst. Phaphan that he would outrage her modesty that night. Mst.
Phaphan apprised Shamir P. W. And her father Muhammad deceased of this fact. Shamir P. W.
Detailed his son Amir P. W. To sleep in the house of Mst. Phaphan that night. Muhammad deceased to decided: to sleep there. At about midnight the appellant came there. He peeped through the door where Mst. Phaphan was feeding her baby. She recognised him. In the meantime, the appellant delivered to blows with the pestle to Muhammad who was smoking bubble near the door of the room where Mst. Phaphan was asleep. Mst. Phaphan awoke Amir P. W. And raised alarm.
Shamir and Allah Bakhsh P. Ws. Reached there. They wanted to apprehend the appellant who threatened them and decamped. The occurrence was witnessed by Mst: Phaphan, Amir, 'Shamir and Allah Bakhsh P. W's. Muhammad succumbed to the injuries at the spot.
3. The first information report Exh. P. B. Was made at b a.m. By Shamir P. W. At. Police Station Mochiwala, which is at a distance of three miles from the place of occurrence: Talib Hussain; Headth Constable P. W. 5 who recorded the first information report proceeded to the spot. He prepared the injury statement and the inquest report and despatched the dead body to the mortuary for autopsy. He took into possession blood-stained earth from underneath the cot of the deceased and made it into a sealed parcel vide memo. Exh. P. D. Ch. Ata Muhammad Sub-Inspector P. W. 13, reached the spot at noon the on the 27th of February, 1967, and took charge of the investigation from Talib Hussain M. H. C. Nawab Aziz Ullah Khan P. W. Produced the appellant before him. He arrested him. The appellant led to the recovery of the wooden pestle P. 1 from a sugarcane field. It was taken into possession vide memo. P. C.
The Serologist to the Government of Pakistan in his report Exh. P. K. Stated that the blood on the pestle had been disintegrated.
4. The post-mortem report shows that the deceased suffered to lacerated wounds on the right side of the head. These injuries were sufficient in the ordinary course of nature to cause death and were caused with a blunt weapon.
5. The defence of the appellant was a bare denial. No evidence was called in defence.
6. Four eye-witnesses were examined in support of the prosecution case. They are Mst. Phaphan P.
W.
9. Amir P. W. 10, Shamir P. W. 11 and Allah Bakhsh P. W.
12. Mst. Phaphan is the daughter of the deceased Shamir P. W. Is the cousin of the appellant and his sister's husband. Amir P. W. Is the son of Shamir P. W. Allah Bakhsh P. W. Is the husband of the maternal aunt of the appellant. As such all these eye-witnesses are closely related to the appellant and the deceased. These witnesses support the prosecution case. Mst. Phaphan is the star witness. She says that the appellant delivered to blows, with the wooden pestle on the person of her father. She awoke Amir P. W. And raised alarm which attracted Shamir and Allah Bakhsh P. Ws. To the spot. Amir P. W. Says that he got up and saw the appellant delivering a blow with a wooden pestle to the deceased and on the alarm of Mst. Phaphan P. W. His father Shamir and Allah Bakhsh P. W. Carne there immediately after the occurrence. Shamir P. W. Says that his house is in front of the house of Mst. Phaphan at a distance of five karams and he was asleep inside his kotha and nn hearing the alarm of Mst.
Phaphan he rushed to the spot and found Muhammad lying dead. He states that his son and Mst.
Phaphan told him that Ramzan had killed Muhammad with a wooden pestle. Allah Bakhsh P. W.
Says that he bad gone to the house of Shamir P. W. At digarwela to enquire about the health of his ailing son and was asleep in his house on the night of the occurrence. On hearing the alarm he and Shamir P. W. Went to the house of Mst. Phaphan and saw Ramzan hitting a blow with a wooden pestle to Muhammad deceased.
7. The presence of Mst. Phaphan, Amir and Shamir P. Ws. Is quite natural. We have in evidence that Amir P. W. Who is 13/14 years of age, was detailed by his father Shamir P. W. To sleep in the house of Mst. Phaphan in the absence of her husband. The house of Shamir P. W. Is at a distance of five karams from the house of Mst. Phaphan P. W. These eye--witnesses gave a consistent account of the occurrence. Surprisingly, Shamir P. W. Was declared hostile and was cross---examined by the Public Prosecutor, because he, did not state that he saw the appellant actually inflicting blows but saw him escaping from the spot. This statement of his at the trial rings true. It is difficult to believe that he would have seen the assailant actually hitting the deceased as the assailant would have inflicted these to blows in a twinkling of an eye.
We are not impressed with the testimony of Allah Bakhsh P. W. Who claimed that he had witnessed the occurrence and had seen the appellant delivering blows to the deceased. He had no particular reason to be there on the night of the incident and has been falsely introduced as eye-witness of the incident. Shamir P. W. Did not state at the trial that he stayed that night with him. As such, as a matter of abundant caution, we exclude the evidence of Allah Bakhsh P. W. From consideration.
8. Mst. Phaphan, Amir and Shamir P. Ws. Had no motive to falsely charge the appellant for the murder of Muhammad. Their evidence has been affirmed by the doctor's evidence.
We need not scan to the evidence of recovery of pestle P. 1, as it is in the evidence of Mst. Phaphan and Shamir P. Ws. That the appellant left the wooden pestle at the place of occurrence. As such the recovery of the pestle from the sugarcane field is a fabrication.
9. There is enough evidence on the record to show that the appellant attacked the deceased. The appellant is, therefore, clearly guilty of murder and is liable to be punished under l section 302, P. P.
C.
10. As regards the sentence we think that the lesser sentence provided by law would be sufficient to meet the ends of justice. We are led to this conclusion by several factors. There is no evidence that the appellant brought the pestle with him. If he had come with the intention of causing the murder he would have armed himself with some different type of weapon. He had no motive to kill the deceased. The motive, as alleged by the prosecution, to is not convincing. It may be that the appellant had evil eye on Mst. Phaphan and on the day of the occurrence in the absence of her husband came with evil design to have sex with her, but found Muhammad there. Possibly, I there was an altercation between the to and at the spur of moment he picked up the pestle and hit the old man.
11. The result, therefore, is that we dismiss the appeal with the modification that instead of the sentence of death, we award sentence of transportation for life on 'the appellant. The reference is rejected.