IJAZ NISAR, J.-- Ghulam Hussain (35) son of Feroze Hussain was tried for the murder of Alamdar Hussain (60/65) by the learned Additional Sessions Judge, Multan. By his judgment dated 13-12- 1982 he convicted him under section 302 P.P.C. 'and sentenced him to death and to pay a fine of Rs 10,000 or in default to undergo three years' R.I. Half of the fine was ordered to be paid to the heirs of the deceased as compensation under section 544-A Cr.P.C.
2. This judgment will dispose of the appeal filed by Ghulam Hussain appellant and the connected murder reference.
3. The prosecution case is that two years prior to the occurrence Alamdar Hussain deceased had promised to give the hand of his daughter Mst. Raeesa Begum in marriage to the appellant but later on he backed out due to the immoral activities of the appellant and instead married her to his brother Fida Hussain. The appellant bore a grudge against the deceased on that score.
On 1-10-1980 at about 7 P.M. Alamdar Hussain deceased was lying on a cot in his house while Karam Hussain PW 8 and Nathu Khan P.W (not examined) were present near him. Suddenly the appellant armed with a Chhuri came there and raising Lalkara attacked the deceased giving blows on his chest, left knee and right palm as a result of which he fell down. The P.Ws tried to apprehend him but he threatened them and succeeded in running away. Alamdar Hussain deceased was removed to Civil Hospital, Multan where he was medically examined by Dr. Riaz Uddin PW 4 on 1-10-1980 at 7 P.M. On his advice he was removed to Nishtar Hospital where he succumbed to the injuries on the following day.
Dr. Riaz Uddin PW 4 found the following injuries on Alamdar Hussain deceased (then injured):
(1) An incised wound on the lower part of outer side of right chest 3 cm x 1 cm x not probed below the axilla. The wound was bleeding profusely and there was a corresponding cut on the shirt.
(2) An incised wound on the centre of chest at the xiphisterum 1-- cm x 2 cm x skin deep.
(3) An incised wound on the right knee cap 9 cm x 2-- cm x bone deep. There was corresponding cut on Shalwar.
(4) An incised wound on the back of right index finger U shape 4 cm x -- cm x bone deep.
After examination he was removed to Nishtar Hospital, Multan. Noroze Khan S.I. PW 10 reached the hospital and enquired from the doctor vide ruqqa Exh. PM as to whether Alamdar Hussain was fit to make a statement and on getting reply in the affirmative recorded his statement Exh. PA (F.I. R. And dying declaration) on 1-10-1980 at 8 P.M. His thumb-impression was obtained thereon in token of its correctness. It was sent to the Police Station for formal registration of the case. Formal F.I.R. Exh. PA/1 was recorded by Ghulam Shabbir A.S.I. PW 1 of P.S. Haram Gate; Multan on 1-10-1980 at 8.25 P.M.
After recording the statement of Alamdar Hussain, Noroze Khan S.I. PW 10 proceeded to the spot and took into possession blood-stained earth through Memo. Exh. PH. On 2-10-1980 he received information from the hospital regarding the death of Alamdar Hussain whereupon he left for the hospital and prepared the injury statement Exh. PE and inquest report Exh. P.O. Of the deceased.
Ghulam Hussain appellant appeared before him at the spot along with blood-stained Chhuri P.4.
He took it in possession through Memo. Exh. P.K. He also removed his blood-stained shirt P.5 through memo. Exh. PL attested by Umar Draz PW 7 and Khalil-ur-Rehman (not examined). Chhuri P.4 and shirt P.5 were sent for chemical examination and vide Serologist's report Exh. P.S human blood was founts on them.
4. Dr. Riaz Uddin PW 4 conducted autopsy on the dead body of Alamdar Hussain deceased on 3- 10-1980 at 9 A. M. And found almost the same injuries as already described above. On dissection under injury No. l inter-costal muscles were found cut. 9th rib was partially cut. Death occurred due to injury No. l which was individually sufficient to cause death. Time between injuries and death was about 19 to 20 hours and that between death and post-mortem about 19 hours.
5. The -appellant pleaded not guilty to the charge and denied the prosecution allegations. He denied that he wanted the hand of Mst. Raeesa Begum, daughter of the deceased and bore grudge against him over his refusal to do so. According to him, he was already married to Mst. Amir Begum two years earlier to the marriage of Mst. Raeesa Begum and thus the question of nursing grudge against the deceased did not arise. He gave the following version of the occurrence:- "Alamdar Hussain deceased was a bad character. He was challaned in a murder case during his lifetime. He used to tease and developed illicit relations with my mother who is blind. At the time of occurrence, I came to my house and found Alamdar Hussain deceased in a compromising position with my mother. I lost my self-control on hearing the shrieks of my mother, and under grave and sudden provocation I picked up a Chhuri lying nearby and caused injuries to the deceased Alamdar Hussain without knowing the result of my acts. This occurrence was not witnessed by any body. My mother was present at the time of the incident. She was not examined by the police in spite of her presence. I made this statement before the police but the complainant party is influential one. My courtyard and that of Alamdar Hussain (deceased) has no partition wall and is a common one. After the occurrence, I appeared before the police along with the Chhuri and narrated the whole occurrence. The Police and the complainant party later on, fabricated the story against me and falsely involved me in this case."
No evidence was called by him in defence.
6. The prosecution case rests on the dying declaration made by the deceased before S.I. Noroze Khan PW 10, Karam Hussain PW 8 (eye-witness) and Umar Draz PW 7 the attesting witness of the recoveries of blood-stained Chhuri P.9 an4 shirt P.5 from the possession of the appellant.
7. Relying on the ocular testimony furnished by Karam Hussain PW 8 the dying declaration, the motive and recoveries of blood-stained Chhuri and shirt of the appellant, the trial Court convicted and sentenced the appellant as described above.
8. Criticising the judgment, learned counsel for the appellant has argued that it was an unwitnessed occurrence and the deceased who was a bad character was indulging in immoral activities with the appellant's mother who lost control of himself and under grave and sudden provocation killed him. Therefore, he was not liable for the murder and deserved lesser sentence.
9. Since the occurrence is not disputed by the appellant, the point that falls for consideration is as to whether it had taken place in the manner as alleged by the prosecution or as stated by the appellant. The prosecution case is that the appellant bore a grudge against the deceased over the refusal of the hand of his daughter Mst. Raeesa Begum to him and murdered him while he was lying on a cot in the courtyard of his house in the presence and sight of Karam Hussain PW 8 and Nathu Khan (not examined). Karam Hussain PW 8 is uncle of the deceased while Nathu Khan PW is brother of the deceased. The former lived at a distance of about 20 paces from the spot. The narration of the occurrence given by him tallies with the medical evidence. Since he lived in the close proximity of the place of occurrence his presence at the spot at the relevant time was quite natural. His presence is also mentioned in the dying declaration Exh. PA recorded immediately after the occurrence. The occurrence had taken place at 7 P.M. While the dying declaration was recorded at 8 P.M. All the necessary details including the particulars of the eye-witnesses are mentioned in it and there is nothing to doubt its genuineness. It was recorded after obtaining certificate of fitness from the doctor. There is nothing to indicate that it was a tutored statement or somebody had prompted the deceased to make it. The deceased would not have faced any difficulty in the identification of his assailant because of previous acquaintance with him. Even otherwise, the occurrence being admitted the question of substitution does not arise. The ocular testimony stands corroborated by the recovery of blood-stained Chhuri and blood-stained shirt from the possession of the appellant. Umar Draz PW 7 who proved the recoveries is a witness of the locality having no reason to falsely depose against the appellant.
10. As regards motive the prosecution version is that the deceased had promised the hand of his daughter Mst. Raeesa Begum to the appellant and due to his immoral activities refused to do so and instead married her to his brother Fida Hussain. The appellant has denied it and stated that since he was already married to Mst. Amir Begum the question of his marrying Mst. Raeesa Begum did not arise. Though it stands proved through the evidence of Mst. Amir Mai CW 2 that she was no longer the wife of the appellant at the time of occurrence because of having been divorced by him but nevertheless the motive set up by the prosecution does not appeal to reason. The prosecution case is that the deceased had married his daughter Mst. Raeesa Begum to the appellant's brother in preference to him about three years prior to the occurrence. It has come in evidence that Mst.Raeesa died about 3/4 months before the occurrence. No untoward incident is said to have taken place during the period intervening the marriage of Mst. Raeesa Begum with the appellant's brother and her death. If the appellant had been really annoyed over the refusal of the deceased to marry Raeesa Begum to him he would have reacted either at the time of the refusal or at the time of her marriage to his brother and would not have waited till her death. His grievance, if any, should have ended with the death of Mst. Raeesa Begum. There is nothing on the record to indicate that the appellant had been expressing his annoyance or grievance against the deceased after the marriage of Mst. Raeesa Begum to his brother. In this view of the matter, we think that the motive is shrouded in mystery and the prosecution has not come forward with the true story leading to the murder of Alamdar Hussain. But at the same time, we are not inclined to accept the defence plea advanced by the appellant. There is no circumstance on the record supporting his plea of having acted under grave and sudden provocation. The occurrence is said to have taken place in an open courtyard at about sunset time. The deceased who was an old aged person was not expected to indulge in immoral activities with the mother of the appellant. What to talk of the deceased making indecent advances towards her, even her presence at the spot at the relevant time is not proved from the material on record. No effort was made by the appellant to prove it. For these reasons, the defence plea was rightly rejected by the trial Court.
11. Since the motive set up by the prosecution is obscure and the real cause of murder is shrouded in mystery we think that the ends of justice will be met if the appellant is awarded the lesser penalty provided for the offence of murder. We order accordingly and while maintaining his conviction alter his sentence from death to imprisonment for life plus fine already awarded.
With the above modification in the sentence, the appeal is otherwise dismissed.
12. The death sentence of the appellant is NOT confirmed.