FAIZ MUHAMMAD KHAN, J.--Three persons, namely, Gulab son of Muqarab Khan, Caste Awan aged 30-32, resident of Doga, Iqbal Shah son of Abdul Latif Shah, Caste Syed aged 32, resident of Talhattan-cum-Ghari Habibullah and Mst. Gulshan daughter of Gohar Khan, Caste Swati, aged 40, resident of Shatai, stood trial in the Court of Sessions Judge, Mansehra, on a charge that they, in furtherance of their common intention, on 14-11-1981 at about 1.00 P.M., committed within the precincts of the Court of Senior Civil Judge, Mansehra, the murder of Kishtiaz son of Abbas, aged 48, resident of Village Darmang. On conclusion of the trial, the learned Sessions Judge, Mansehra, by order dated 20-9-1985, finding Gulab accused guilty of committing the said offence, convicted and sentenced him to suffer death under, section 302 PPC and to pay a fine of Rs.10,000 in default of payment of which he has to suffer six months S.I. Upon realization, the whole amount of fine is directed to be paid to the legal heirs of Kishtiaz deceased as compensation under section 544-A Cr.P.C. Gulab accused was also tried for the offence under section 13 of the Arms Ordinance 1965 but was acquitted of that charge while he was extended the benefit of doubt. Similarly, Iqbal Shah and Mst. Gulshan accused, who were tried for the murder of Kishtiaz, were also extended the benefit of doubt and acquitted.
2. The convict Gulab has filed this appeal against his conviction and sentence aforesaid and the learned Sessions Judge, Mansehra has forwarded the case to this Court for confirmation of the death sentence under section 374 Cr.P.C. The appeal and the murder reference would be disposed of by this single order.
3. The prosecution case at the trial, in brief, was that on the fateful day three suits, relating to the dissolution of marriage, maintenance and restitution of conjugal rights pending between Kishtiaz deceased and Mst. Gulshan, were heard by the learned Senior Civil Judge/Family Court, Mansehra and the parties were directed to wait outside the Court for receiving orders in those suits. As the parties came out of the Court room, Mst. Gulshan signalled Gulab and Iqbal Shah whereupon they both attacked Kishtiaz; Iqbal Shah taking hold of him and Gulab appellant inflicting stab wound on him in the chest with Chhuri. Kishtiaz (deceased) after getting injured ran into the Court room of Senior Civil Judge, Mansehra and succumbed to his injury there. The report of the occurrence was made by Jehangir Khan (PW 6), the brother of the deceased, to Syed Farman Shah (PW 11), S.H.O., Police Station, Mansehra, inside the Court room, who recorded the same in the form of Murassala (Ex . P.A./1) and sent it to the Police Station for registration of the case. On receipt of the Murassala, Moharrir Head Constable Ghulam Mustafa (PW 3) registered the case vide F.I.R. Ex.P.A. In the first report, Mohammad Aslam and Javed Khan were mentioned as eye-witnesses to the occurrence.
The motive for the offence was also given therein, which was that the appellant wanted to marry Mst. Gulshan and the object could only be achieved by killing Kishtiaz, the husband of Mst. Gulshan.
4. S.H.O. Syed Farman Shah (PW 11) investigated the case. After preparing the injury sheet Ex.P.D. And the inquest report Ex.P.E. Of Kishtiaz he sent the dead body for post-mortem examination.
Thereafter he prepared the site plan Ex.P.B., recovered blood, vide memo. Ex.P.G., from the place where the dead body was lying. He also arrested all the accused produced before him. Gulab appellant, who was apprehended by Mohammad Ishaque (PW 5), after chase, with the blood- stained dagger EX.P.1 was produced by the said Mohammad Ishaque before him. The dagger Ex. P.1 was secured by the S.H.O. Vide recovery memo. Ex.P.F/Ex.P.H. The Burqah Ex.P.2 worn by Mst.
Gulshan, having bloodstains on it, was also secured by the S.H.O. Vide recovery memo. Ex.P.J., and so was secured blood-stained shirt Ex.P.3 of the deceased, vide memo. Ex.P.K. These recoveries were made in presence of the marginal witnesses to the said memos. Who testified to their correctness at the trial. The S.H.O. Also recorded statements of the prosecution witnesses and sent the incriminating articles to the expert for report, whose positive report on the record is Ex.P.M.
5. At the trial the prosecution mainly relied on the ocular evidence furnished by the eye-witnesses, namely Jehangir Khan (PW 6), Mohammad Javed (PW 7) and Mohammad Aslam (PW 9), the circumstantial evidence in the form of recoveries, the statement of Syed Maroof Shah (PW 4), the then Senior Civil Judge, Mansehra, the medical evidence, the expert evidence and the motive for the crime. The learned Sessions Judge while accepting this evidence against the appellant and basing his order thereon convicted and sentenced him as aforesaid. In respect of the other two accused, namely Iqbal Shah and Mst. Gulshan, the learned Sessions Judge found that the evidence led at the trial did not prove the charge framed against them beyond reasonable doubt, and giving them the benefit of doubt he acquitted them of the charge. The State has not come in appeal against their acquittal, nor has any revision been filed by the complainant in respect ofthem.
6. By the evidence furnished by Doctor Shafiq-ur-Rehman (PW12) it is established that Kishtiaz had died of stab wound which he received on the chest. The prosecution alleged and the eye- witnesses named above stated at the trial that this wound was caused to Kishtiaz deceased by Gulab, appellant herein, but the learned counsel appearing for the appellant contended that the prosecution story was false and so were the statements of Jehangir Khan (PW 6), Mohammad Javed (PW 7), Mohammad Aslam (PW 9) and Mohammad Ishaque (PW 5), who had allegedly arrested Gulab and recovered from him the blood-stained dagger Ex.P.l. The learned counsel also contended that the learned Sessions Judge was wrong in believing the prosecution story as correct and the prosecution witnesses as truthful witnesses.
7. The three eye-witnesses named above have in clear terms charged the appellant for giving fatal dagger blow to the deceased and Mohammad Ishaque (PW 5) has stated at the trial that he apprehended the appellant with the blood-stained dagger Ex.P.l in his hand when after the occurrence he was running away from the spot. This evidence is supported on record by the medical evidence, the recoveries proved at the trial and the expert's report Ex.P.M. In the opinion of the learned trial Judge the prosecution witnesses were disinterested, having no motive of their own to falsely implicate the appellant in the crime. Their presence on the spot at the relevant time was also found as natural.
8. In order to convince us that the prosecution story was false the eye-witnesses were not telling the truth and the conviction of the appellant for the murder of Kishtiaz was unfounded, the learned counsel for the appellant, while elaborating his arguments further, contended that it was an unseen occurrence because the eye-witnesses, namely, Jehangir Khan (PW 6) , Mohammad Javed (PW 7) , and Mohammad Aslam (PW 9) were attracted to the spot when something had already happened and in such a situation they could not have seen the person who had given stab blow to the deceased. He contended that in the site plan Ex. P. B., which was prepared at the instance of the eye-witnesses, the places of the accused charged for the murder of Kishtiaz before the occurrence were not shown, and this was so because, as stated by the I.O., the eye-witnesses did not point out those places to him when he was preparing the site plan. He further contended that although it was alleged that Kishtiaz deceased was stabbed when he was at point 'C' shown in the site plan, but no blood was found at that place, and the blood having been found at point 'D' shown in the site plan for which no explanation was forthcoming on the record, it was doubtful whether the occurrence had taken place in the manner stated by the prosecution witnesses, or the eye- witnesses were present on the spot at the time of occurrence. He contended that since point 'D' where the blood was found could not have been visible to the so-called eye-witnesses, so the place where the deceased was allegedly dealt dagger blow was shifted to point 'C' for the convenience of the eye-witnesses. He contended that there was no explanation available on the record as to how blood was found on the Burqa of Mst. Gulshan (acquitted accused) and that this made the prosecution case doubtful. In these circumstances, he urged, the presence on the spot of the persons claiming to be eye-witnesses could conveniently be doubted. He also submitted that not chasing the appellant by Jehangir Khan (PW 6), the brother of the deceased, after the occurrence in order to apprehend him was not a natural conduct which created doubt as to his presence on the spot at the relevant time. According to the learned counsel, the three accused in this case were not known to Muhammad Aslam (PW 9) and still his charging them by name at the trial was a circumstance which clearly indicated that he was a tutored witness. The learned counsel also attacked the character of Muhammad Javed (PW 7) for his involvement in two cases, and urged that he was not a reliable witness. The recovery of the weapon of offence from the appellant and his arrest by Muhammad Ishaque (PW 5), according to the learned counsel, was also doubtful. As there was no complaint or report made to any quarter preceding the occurrence regarding the motive for the crime, the learned counsel argued, the motive would be deemed not to have been proved and the solitary statement given by Jehangir Khan (PW 6) in that respect was, not sufficient. For all these reasons, the learned counsel for the appellant contended, the conviction of the appellant for the crime was not well founded.
9. We have considered the arguments of the learned counsel for the appellant in the light of the evidence brought on the record and in our view there is no substance in them. The venue of crime undisputedly was the Court premises of the Senior Civil Judge, Mansehra, before whom three suits between the deceased and Mst. Gulshan, who were husband and wife, were pending and heard on the fateful day. The deceased had also breathed his last inside the Court room of the said officer, where his dead body was found lying by the I.O. The time of occurrence was about 1.00 P.M. And to these facts Said Maroof Khan (PW 4), the then Senior Civil Judge Mansehra and Shafiq-ur-Rehman (PW 8), the then Reader to the said officer, totally disinterested witnesses, have testified at the trial.
To same effect was the first report promptly lodged by Jehangir Khan (PW 6). The ocular evidence furnished by him. Mohammad Javed (PW 7) and Muhammad Aslam (PW 9) also pointed to the same direction. These facts, therefore, stood established on the record. The fact that the first report was lodged on the spot by Jehangir Khan (PW 6) within 15 minutes of the occurrence established beyond doubt his presence on the spot at the relevant time. The fact that on the fateful day the orders were to be announced by the Senior Civil Judge, Mansehra in three matters between the deceased and his wife Mst. Gulshan (acquitted accused) made probable and natural the presence of Jehangir Khan (PW 6) with his brother on the spot at the relevant time. The presence of the other two eye-witnesses, namely, Muhammad Javed (PW 7) and Muhammad Aslam (PW 9) on the spot at the relevant time was also natural because they both were then working as agents to the Advocates named in their statements, who were practising at Mansehra, and they also had, as stated by them, cases fixed before the Court on that day. None of the three witnesses named above was having enmity of his own with the appellant and could, therefore, not be regarded as interested witness. Jehangir Khan (PW 6), being brother of the deceased, was, no doubt, related to the deceased but the other two eye-witnesses, namely, Muhammad Javed (PW 7) and Muhammad Aslam (PW 9), had no relationship with the deceased. The lengthy cross-examination to which these witnesses were subjected by the defence could not shake their credibility. They all have in unequivocal words assigned to the appellant the role of giving fatal dagger blow to the deceased. Their presence on the spot and having seen the occurrence, as also their veracity could not, therefore, be doubted by us, and in this regard we are in complete agreement with the learned trial Judge. It was, therefore neither an unseen occurrence, nor an untrue story disclosed by the' prosecution at the trial. The fact that the places where the accused were before the actual assault were not shown to the 1.0. And were thus not mentioned in the site plan Ex. P.B. Was not fatal to the prosecution case, inasmuch as this fact, being not of any significance before the occurrence, might not have, probably, been noted by the eye-witnesses. The material fact in this case was as to who had stabbed the -deceased and at what place, and to this fact all the three eye-witnesses, named above, have in unanimity testified at the trial. The prosecution story at the trial was that after receiving stab wound the deceased ran into the Court room of-Senior Civil Judge, Mansehra, where he fell down and died. That being so, no blood could have been at point 'C' shown in the site plan Ex.P.B. After receiving injury, the deceased, in the state of desperation and helplessness, might have first run towards the side of point 'D' where blood was found sprinkled by the I.O. And might have later thought the Court of Senior Civil Judge to the place where he could take refuge. In this way drops of blood could have fallen at the place marked 'D' in the site plan. This fact, therefore, did not harm the prosecution case. As stated by the I.O. , point 'D' was visible from the places were the eye-witnesses were at the time of occurrence. There was no evidence on the record to the contrary. That being so, there was no point in shifting the place of occurrence from point 'D' to point 'C'. The fact that no explanation was forthcoming on the record as to how blood was found on the Burqa of Mst. Gulshan (acquitted accused) was not fatal to the prosecution case because after the occurrence Mst. Gulshan, who was up to then wife of the deceased, might have gone near the deceased and the drops of the blood might have thus fallen on the Burqa which according to the evidence on the record she was then wearing. Not chasing the appellant by Jehangir Khan (PW 6) after the occurrence in order to apprehend him was a circumstance which by itself did not make the prosecution case doubtful because on account of fear or lack of courage he might not have given the chase. The naming of the three accused by Muhammad Aslam (PW 9) could have been possible, as he might have learnt about their names after the occurrence when all the three accused were arrested on the spot in his presence. No question was put to him by the defence in this regard. The involvement of Muhammad Javed (PW 7), one of the three eye-witnesses, in two criminal cases per se was not sufficient to make him an unreliable witness. His presence on the spot and having seen the occurrence was not shattered by the lengthy cross-examination to which he was subjected by the defence. The recovery of the blood-stained dagger Ex.P.l from the appellant by Muhammad Ishaque (PW 5), who apprehended him soon after the occurrence, was proved at the trial and in that respect the statement of Muhammad Ishaque (PV, 5) could not be doubted. The motive for the crime also stood proved by the statement of Jehangir Khan (PW 6).
The inadequacy of the motive for the murder of the deceased had no significance because motiveless murders are also committed.
10. We are, therefore, of the view that on the basis of the evidence available on the record already referred to, the conviction of the appellant by the learned trial Judge under section 302 P.P.C. Was well founded. The same is, therefore, maintained.
11. The question of sentence remains to be considered. The contention of the learned counsel for the appellant in this regard was that in the circumstances of the case the appellant may not be visited with the normal penalty of death. He contended that the motive for the crime alleged by the prosecution, even if it be taken to have been proved at the trial, was not such as would have prompted the appellant to commit the murder of Kishtiaz against whom in a suit for dissolution of marriage the orders were yet to be announced by the Court, which could also end in the dissolution of marriage. He contended that the immediate motive for the commission of the offence remained shrouded in mystery and when such be the position, even in a proved case, the normal penalty of death is not awarded, especially when the assailant causes only one stab wound to the victim, as in this case. He also contended that if the appellant had pre-planned the murder for the motive alleged by the prosecution, then he would have selected some other place for that purpose where his act could have gone unwitnessed, and not the premises of the Court where during working hours many persons are present. The arguments of the learned counsel for the appellant in this regard are not without force. We have noticed on the record that the appellant had been coming with Mst. Gulshan to the Court on earlier dates of hearing and no untoward incident had happened on those dates. The orders in all the three cases pending before the Family Court on the fateful day were not yet announced when the occurrence took place. In the circumstances, it appears that something had preceded the occurrence between the parties which became the immediate motive for the crime. What was that, has remained shrouded in mystery. The appellant also caused one blow to the deceased which proved fatal. In the circumstances, we are of the view, the extreme penalty of death should not be exacted from the appellant. We would, therefore, while maintaining his conviction under section 302 P.P.C. Alter the sentence of death to that of imprisonment for life. The sentence of fine, the order of payment of compensation and sentence flowing therefrom, awarded by the learned trial Judge, are also maintained. With this modification in the sentence, the appeal is dismissed. The Murder Reference is answered in the negative.