' Javid lqbal, J.--Yaseen son of Ismail, aged 30, armed with knife, had been convicted under section 302, P.P.C. For the murder of Nazeer, aged 20 his Khalazad and Hamzulf, and was sentenced to death plus fine of Rs, 5,000 or in default to undergo six months' rigorous imprisonment with the direction that if the fine was realized from him, it should be paid as compensation to the heirs of the deceased. Judgment has been passed in the case by the Additional Sessions Judge, Kasur, on 4th July, 1979. The appeal of the convict as well as Reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place at 3-30 p.m. On 17th December, 1975 within the area of Mauza Rakhanwala at a distance of nine miles from Police Station Lalyani, District KasNr. Statement Exh.
P.F. Was made by Ilam Din P.W.7, father of the deceased at 4-30 p.m. On the same day and it was recorded by Anwar Hussain Shah S.I. P.W.13, who arrived at the spot as he happened to be present in the village in connection with the investigation of another case. On the basis of the aforesaid statement formal F.I.R. Exh. P.F/1 was registered at the Police Station by Muhammad Riaz 5.1. P.W.9.
3. The motive for crime, as stated in the F.I.R. Is that Mst. Sakeena Bibi P.W.12, wife of the deceased, had gone to visit her sister Mst. Inayat Bibi, wife of the appellant, three months prior to the occurrence. The deceased had been married to Mst. Sakina Bibi about a year before the occurrence. During these three months while Mst. Sakina Bibi P.W. Was staying there the deceased went to the house of the appellant in order to bring her back to his house. But the appellant would not let her go to the house of the deceased, because he had developed illicit relationship with his Sali, namely, Mst. Sakina Bibi P.W. Wife of the deceased. About 2/3 days prior to the occurrence the appellant and the deceased exchanged hot words on this very issue. But Muhammad Alam P.W.
Brother of the deceased, intervened and separated them. The witnesses of the motive are Mst.
Sakina Bibi P.W. Ilam Din P.W. As well as Muhammad Alam P.W. The occurrence is reported to have taken place in the background of this motive which has been relied upon by the trial Judge.
4 . The prosecution has produced three eye-witnesses of the occurrence namely, Ham Din P.W. 7, father of the deceased, Muhammad Alam P.W.10, brother of the deceased, and Taj Din P.W. 11 about whom it is stated that Ham Din P.W. Was his Saipi. Rehmat was cited as an eye-witness of the occurrence in the F.I.R. But was given up as won over.
5. The appellant was arrested on 22nd December, 1975 by Anwar Hussain Shah, S.1. P.W.13 and on the very same day blood-stained knife P.7 was recovered at his instance and taken into possession vide memo. Exh. P.J., dated 22nd December, 1975. The attesting witnesses are Muhammad Aslam P.W.5, who turned hostile, Sahib Din P.W.6, who also turned hostile and Anwar Hussain Shah S.I.
P.W.13. Thus, so far recovery of blood-stained knife, P.7 is concerned, it is not being supported by Muhammad Asiam and Sahib Din P.Ws. But it is being supported by Anwar Hussain Shah, S.I. P.W.
According to the report of the Serologist Exh. P.L at page 6 of the Paper Book, the scrappings from knife P.7 were found to be stained with human blood.
' The Investigating Officer, namely, Anwar Hussain Shah, 5.1. P.W. Not only picked up and took into possession blood-stained earth from the spot but he also secured two battery cells Exhs. P.5 and P.6 from the place of occurrence and took them into possession vide memo. Exh. P.D. The prosecution version was that the deceased had gone to purchase battery cells for his radio transistor when he had been attacked by the appellant.
6. The appellant, in his statement before trial Court, denied having participated in occurrence. He disowned the recovery and stated that he had been falsely implicated due to suspicion and enmity. He also denied the motive and stated that Mst. Sakina Bibi P.W. Had been brought up by him like a daughter and he had always treated her like a daughter.
7. Dr. Zafar lqbal Ch.Audhary P.W.8 conducted post-mortem examination on the dead body of the deceased at 8-30 p.m. On 18th December, 1975 and found on his person a stab wound 1k" x k" front of left chest on the nipple. In his opinion, the deceased died of haemorrhage and shock as a result of this injury which was sufficient to cause death in the ordinary course of nature. In the cross- examination he stated that he could not state definitely that the weapon used, in the instant case, had a double edge and that the knife present in the Court had only one sharp edge with the other side as blunt.
8. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day the deceased had gone to the village Bazar for purchasing battery cells for his transistor radio and was returning home thereafter. When he reached near the wood-stall and Bhoosa shop as well as Dera of Babu Rafique, at that time Ilam Din P.W.7, Muhammad Alam P.W.10, Rehmat (not produced) and Taj Din P.W.11 were also present at the said stall. They saw the appellant coming from the front side and as he arrived, he warned the deceased that he would not send Mst. Sakina Bibi P.W. Back to him and that he was also going to teach him a lesson for the abuses which he gave to him. Thereafter, right under the eyes of the P.Ws. The appellant suddenly gave a knife blow to the deceased on the left side of his chest under the nipple. The deceased fell down on the ground and died on the spot. The occurrence was witnessed by Ilam Din, Muhammad Alam, Taj Din P.Ws. And Rehmat (not produced). The P.Ws. Tried to apprehend the appellant but he managed to escape. While Ilam Din P.W. Was planning to proceed towards the police station in order to lodge the report, the police officer arrived on the spot on hearing about the occurrence and recorded his statement.
9. We have heard learned counsel for both the sides and carefully perused the record. The motive has been correctly relied upon by the trial Judge, in the instant case. The prosecution case is based on the ocular testimony of Ilam Din, Muhammad Alam arid Taj Din P.Ws. As corroborated by the recovery evidence and further supported by the medical evidence and motive. We have no hesitation in accepting the recovery evidence, in the instant case, because there is nothing on the record to indicate that Anwar Hussain Shah S.I. P.W. Had conducted the investigation of this case in any objectionable manner. Consequently, if he is the sole attesting witness of the recovery, in the instant case, we consider the evidence reliable.
' In the light of what has been discussed above, we are convinced in our mind that prosecution has succeeded in establishing its case as against the appellant and in the circumstances his conviction under section 302, P.P.C. Was quite proper and is accordingly maintained.
' However, there remains he question of sentence. About that it may be pointed out that an application under section 561-A, Cr.P.C. Has been placed on the record before us on behalf of the complainant party consisting of Ilam Din P.W.7, father of the deceased, Muhammad Alam P.W.10, real brother of the deceased, Mst. Sakina Bibi P.W.12, widow of the deceased, as well as Mst. Faizan, mother of the deceased. Out of them Mst. Sakina Bibi P.W. Is witness of motive whereas Ilam Din and Muhammad Alam P.Ws. Are eye-witnesses of the occurrence. They also appeared before us and supported the said application which is accompanied by the sworn statement of Ilam Din P.W.
They stated that a compromise had been arrived at between the appellant on one side and the applicants on the other and the applicants have pardoned the appellant as the parties were very closely related to each other, mothers and fathers of the appellant and the deceased being sisters and brothers. Learned counsel for the appellant also placed reliance on a judgment of the Supreme Court of Pakistan, namely, criminal Appeal No, 85 of 1979 decided on 9th December, 1981 (NLR 1982 Criminal 190; PLD 1982 SC 139) in which such a compromise was held as an extenuating circumstance and the sentence of death was altered to that of imprisonment for life. He also relied on a High Court judgment made on 2nd November, 1981 in Criminal Appeal No, 950 of 1979 in which also due to compromise between the parties the extreme penalty provided by law for offence under section 302, P.P.C. Was not imposed and the sentence of death was altered to that of imprisonment for life. It was argued that in the instant case the accused as well as the complainant parties are closely related and the members of the complainant party have forgiven and pardoned the appellant and that since this was the position, it was not a fit case where the extreme penalty provided by law should be imposed and that considering the compromise as an extenuating circumstance the sentence of death be altered to that of imprisonment for life and that the sentence of the be set aside. It was also urged that while computing the sentence of life imprisonment of the appellant if such an alteration was made, he be given the benefit of the provisions of section 382-B, Cr. P.C.
We have heard learned counsel on this point. The parties have compromised and the members of the complainant party, who have pardoned the appellant, have also appeared before us in support of the aforesaid application. In the circumstances, we are of the view that it would be sufficient to meet the ends of justice if the conviction of the appellant under section 302, P.P.C. Is maintained but his death sentence is altered to that of imprisonment for life. We . The result is that B the conviction of the appellant is maintained but his sentence is altered from death to imprisonment for life. The sentence of fine is set aside. We further direct that in computing the .Life sentence of the appellant, he should be given the credit for to period which he has spent under custody before his conviction and the period during which he had undergone his sentence after conviction as provide by section 382-8, Cr. P.C. With this modification the appeal Is disposed of.
' The death sentence awarded to the appellant is not confirmed.