' ABDUL WAHEED, J. -Muhammad Idrees, aged 20 years, has preferred an appeal against the judgment of the learned Additional Sessions Judge, Sheikhupura, dated 5th March, 1980, whereby he was convicted under section 302, P. P. C. For committing the murder of Zulfiqar Ali, aged 22 years, his cousin, with a Khanjar P. 7 at about: mid-night on the night between 5th and 6th September, 1977 in their common courtyard situated in the area of village Khunda, Police Station Narang, District Sheikhupura, and sentenced to death and also to pay a fine of Rs, 2,000 or in default to undergo rigorous imprisonment for one year with a direction that the fine, if realized, be paid to the legal heirs of the deceased. The learned trial Court also has submitted a reference under section 374, Cr. P. C. For confirmation of the sentence of death. This judgment shall dispose of both the matters.
2. The occurrence was reported at Police Station. Narang about three miles away from the spot, on 6th September, 1977 at 8-00 a. m. By Muhammad Safdar P. W. 11, a brother of the deceased, vide F. I.
R. Exh. P. G. Which was recorded by A. S.-L Muhammad Rafique P. W.
13. It was alleged that about 10/12 days prior to the occurrence an altercation took place between the deceased and the appellant who, as pointed out above, were cousins on the utilization of water. The deceased gave slaps to the appellant. Muhammad Tufail P. W. 10 separated them. The deceased after the above incident left for Gujranwala on that day to see his aunt. He returned on the day preceding the night of occurrence at 2-00 p. m. On the night of occurrence the deceased was asleep alongwith his brothers including Muhammad Safdar P. W. 11 and his mother, namely Mst. Bashiran P. W. 12 on one side of the common courtyard and on the other the appellant and his family members were asleep. At about 12-00 in the night, Muhammad Safdar P. W. 11 woke up and saw in the light of a bulb that the appellant was standing by the cot of the deceased with a khanjar in his hand. When Muhammad Safdar P. W. Called out the appellant his mother also got up. The appellant at once gave a blow with his khanjar on the neck of the deceased and started running away. Muhammad Safdar P. W. And his mother tried to intercept the appellant but he waving his khanjar and hurling abuses made good his escape. One Arshad, an uncle of the deceased, also tried to apprehend the appellant while he was running away but when the appellant aimed his khanjar at him also he got back. The deceased died at the spot.
3. A. S.-I. Muhammad Rafique P. W. 13 after recording the F.1. R. Left for the spot reaching there at 9- 00 a. m. He prepared inquest report Exh. P. H. And injury statement Exh. P. H./1 in respect of the dead body and despatched the same to the mortuary for post-mortem examination. He collected from the'spot blood-stained earth, vide memo. Exh. P. D. And blood-stained cot, pillow and chadar, vide memo. Exh. P. E. The appellant was arrested on 9th September, 1977. On 17th September, 1977 the appellant while in custody led to the recovery of blood-stained khanjar P. 7 from the straw lying in a room of his dera. S.-I. Nasim Ahmad Bhatti P. W. 14 took the same into possession, vide memo. Exh.
P. F. In the presence of Manzoor Hussain P. W. 9 and Muhammad Ali (given up at the trial as unnecessary). According to the report Exh. P. L. Of the Chemical Examiner and report Exh. P. M. Of the Serologist, the khanjar was stained with human blood. After the completion of the investigation, the appellant was challaned under section 302, P. P. C.
4. The post-mortem examination on the dead body of the deceased was performed on 6th September, 1977 at 5-15 p. m. By Dr. Abdul Mujeeb Khan who was then posted as Medical Officer, District Headquarters Hospital, Sheikhupura. Since he bad proceeded abroad and his return was not likely in the near future, the post-mortem report Exh. P. A. Issued by him was proved by Muhammad Yasin P. W. 1 who was working with him as his dispenser. The Medical Officer observed the following injury on the dead body :- "An incised wound oblique in direction extending from upto downwards 5" x 1" x 1' in length deep in the centre size 1.1" x I" x on the front and right side of neck lf" above the right clavicle. On dissection blood clotted under the wound, big blood vessel on right side of neck cut through and through and there was also cut mark on the 5th cervical vertebrae lateral side but not through and through."
5. In the opinion of the Medical Officer, the death had occurred due to severe shock and haemorrhage from big blood vessel of the neck as a result of the above injury which was ante- mortem and grievous caused by a sharp-weapon and was sufficient to cause death in the ordinary course of nature. The probable interval between the injury , and the death was immediate and between the death and the post-mortem examination from 15 to 19 hours.
6. The appellant pleaded not guilty to the charge framed against him under section 302, P. P. C.
When examined under section 342, Cr. P. C., he denied the prosecution case and the recovery of the blood-stained khanjar P. 7 ascribed to him. While admitting his relationship with the deceased, he pleaded at follows :- "The complainant and his mother alongwith his father had disputes with my father about the Chah and the land of Sultan, brother of my grand father and it is for this reason that they have falsely implicated me in this case."
' He adduced no evidence in defence.
7. At the trial, the ocular testimony of the main occurrence was furnished by Muhammad Safdar P.
W. 11 and Mst. Bashiran P. W. 12 who, as already mentioned above, are brother and mother respectively of the deceased. Muhammad Safdar P. W. Deposed that on the night of occurrence, he, Mst. Bashiran his mother, and Zulfiqar deceased his brother were sleeping in their courtyard. At about mid-night, he woke up and in the light of an electric bulb he saw that the appellant with a dagger in his hand was standing on the pillow side of the cot of the deceased. He inquired from the appellant as to what was he doing. His mother also woke up on his voice. The appellant gave a khanjar blow on the neck of the deceased. He and his mother tried to catch hold of the appellant but he waving the khanjar ran away. The deceased died at the spot. So was the deposition of Mst.
Bashiran P. W.
12. They were cross-examined at length but their veracity remained unimpaired. No doubt they are brother and mother of the deceased, nevertheless they were natural witnesses and their presence at the spot at the time of the occurrence was indubitable. Moreover, there did not exist between the parties any animosity which could motivate them to falsely substitute the appellant for the real culprit. Their statements inspire confidence and prove beyond any doubt that it was the appellant who inflicted the fatal injury on the deceased. In fact, the learned counsel for the appellant has not, in his arguments, assailed the conviction of the appellant under section 302, P. P. C. For the murder of the deceased.
8. However, his only contention is that extreme penalty of death Is not called for in this case as the motive for the attack by the appellant on the deceased is shrouded in mystery. According to the F.
I. R. Exh. P. G. About 10/12 days before the occurrence the deceased and the appellant fell out with each other on the turn of water {{URDU TEXT}} and In the altercation the deceased gave slaps to the appellant. Muhammad Tufail etc. Intervened and separated them. The appellant harboured a grudge against the deceased on this account. Muhammad Tufail appeared as P. W.
10. He gave a different version of the above incident. He said that about 10/12 days before the occurrence the deceased and the appellant fought with each other over a dispute of water. The appellant was giving the water to the field. The water was of rain and the deceased had diverted it to the field of the appellant due to which they fought and slapped each other. The deceased had given more slaps to the appellant. In his cross-examination, he explained that it had rained during the night. It rained so heavily that the villagers diverted the rain water from their fields to save their crops. As is evident, his statement at the trial was at variance with the allegation as made in the F. I.
R. In this respect. Muhammad Safdar P. W. 11 admitted in his cross-examination that it was not his turn of water when the deceased, his brother, fought with the appellant. If it was not so, what was then the bone of the contention between the appellant and the deceased. It is not clear from the record. Even if the statement of Muhammad Tufail who was the sole eye-witness of the incident of motive is believed, the altercation being trivial in nature could not reasonably provoke the appellant to kill the deceased, especially when a period of 10/12 days had gone by to pacify the excitement caused by the first incident. In these circumstances, we feel inclined to agree with the learned counsel for the appellant that the motive for the offence is shrouded in mystery and, therefore, the extreme penalty of death is not warranted.
9. In the result, while the conviction of the appellant under section 302, P. P. C. Is maintained, his sentence is altered from death to imprisonment for life. The sentence of fine is, however, upheld.
The jail authorities are directed to grant to the appellant the benefit of the provisions of section 382-B, Cr. P. C. At the time of computation of his sentence of imprisonment for life,
10. With the above alteration in the sentence, this appeal is dismissed. The sentence of death is not confirmed.