' SARDAR MUHAMMAD DOGAR, J.--Gulzar Masih alias Dhooli. Aged 25 years, was tried by the Additional Sessions Judge, Sahiwal for having committed the murder of Hameed alias Mullan, at 2.00 p.m. On 29-6-1984 when he was sleeping under a chhappar in front of his house in Basti Isayan, Sahiwal. Learned trial Judge vide judgment dated 9-3-1985 held him guilty under Section 302, P.P.C., convicted him accordingly and sentenced him to death plus to pay a fine of Rs,10,000 in default whereof to suffer R.I. For 11 years. He has been further directed to pay a sum of Rs,10,000 as compensation to the legal heirs of the deceased, in default whereof to suffer R.I. For six months.
2. The convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.
3. F.I.R. Ex.PC/1 was registered at Police Station 'A' Division, Sahiwal, by Muhammad Arshad M.H.C.
P.W.6 at 3 p.m. On the same day on receipt of Ex.PC, statement of Rashid Masih P.W.4, recorded on the same day at 2.30 p.m. At the spot, by Salabat Khan, S.I. P W .10.
' According to F.I.R. Hameed alias Mullan Masih (deceased) was sleeping under a Chhappar in front of his house in Bast Isayan, Sahiwal. His wife Mst. Kishwar P.W.7 was washing utensils near the outer door of her house. Rashid Masih complainant P.W.4, Yunas Masih P.W.5 and given up P.W. Nazer Masih, residents of the Basti were standing and talking in the chowk, a few paces away from the house of Hameed Masih. At 2.00 p.m. Appellant Gulzar Masih alias Dhooli came there armed with a kassi from the western side. Immediately, on arrival, he gave a kassi blow on the face of Hameed alias Mullan, while he was asleep, which struck him on the left side of neck. The P.Ws. Ran towards him whereupon the appellant threatened them with dire consequences and gave two more blows striking his left jaw, chin and head. The. P.Ws. Tried to catch the appellant but he succeeded in running away. Hameed died on the spot.
4. Motive for the occurrence was suspicion of the appellant against Hameed alias Mullan Masih of having illicit relations with Mst.Bashiran wife of Ashiq Masih. (It may be noted that although it is recorded in the F.I.R. About Mst. Bashiran to be the 'bharjai' of the complainant, but at the trial she had been stated to be the 'bharjai' of the accused).
5. Salabat Khan, S.I. Who had reached the spot on having learnt about the incident, while being on patrol at Goal Chakkar, Sahiwal, after recording statement Ex.P.C., despatched the dead body of the deceased for post-mortem examination, after preparing necessary papers. He also collected blood-stained earth from the spot. The appellant was arrested by him on 1-7-1984 when he was produced before him at the Police Post by Nasar Parvez councillor. Kassi P.4 produced by the appellant at the time of his arrest was taken into possession by the S.I. Vide memo Ex.P.F. The memo was attested by Rashid Masih P.W.4 and Yunas Masih P.W.5. Shirt P.5 and Shalwar P.6 both blood-stained, worn by the appellant at the time of his arrest, were taken into possession by the S.I.
After removing the same, vide memo Ex.PG. It was also attested by Rashid Masih and Yunas Masih P.Ws.
' The S.I. During cross-examination stated that he was at a short distance from the place of occurrence and had not recorded statement of the person who had informed him about the occurrence. He stated that he had not obtained the signatures of Nasar Parvez councillor on recovery memos. Ex.P.F. And P.G. As Rashid Masih and. Yunas Masih were available being present at the police post. He admitted that both the memos do not bear the date, but explained that it happened inadvertently. He denied the suggestion that he had planted the recovery of Kassi and blood-stained clothes. He denied the suggestion that he had joined Lal Masih, Wirsa Masih and Fajja Masih as suspects for the murder of Hamid Masih.
6. At the trial, eleven P.Ws. Were examined in all, including Salabat Khan, S.I., gist of whose statement has been noted above. Blood on blood-stained earth, Kassi P.4, shirt P5 and Shalwar P.6, from the office of the Chemical Examiner and that of the Serologist were also tendered in evidence.
' Dr. Aziz-ur-Rehman, who had performed autopsy on the dead body of the deceased, was examined as P.W.1. He had noted following injuries on the body of the deceased:-
(1) Incised wound 20 c.m.x. 6 c.m.x. Bone cut on left mendible extending the chin.
(2) Incised wound 8 c.m.x.3 c.m.x muscle deep on left side of neck 2 c.m. Below injury No,1.
(3) Incised wound 16 c.m.x. 5 c.m.x. Deep going cutting the subclavian and carotid of left side of neck and cutting the cervicle vertebra Nos.1 and 2.
' Blood vessels, first and second cervicle vertebras were found cut. All other organs were healthy.
The doctor opined that death was due to shock and haemorrhage caused by injuries No,1 to 3, which were caused by a sharp edged weapon and were sufficient to cause death in the ordinary course of nature.
' Rashid Masih P.W.4, real brother of the deceased, Yunas Masih P.W.5 and Mst. Kishwar P.W.7 wife of the deceased deposed the ocular account. Rashid Masih P.W.4 and Yunas Masih P.W.5 also deposed about having witnessed the recovery of Kassi P.4, shirt P.5 and Shalwar P.6 from the appellant at the police post at the time of his arrest and of having attested the recovery memos.
Ex.PF and PG.
' Rashid Masih P.W.4 while re-narrating the facts given by him in the F.I.R. Stated that out of the last two injuries given by the appellant to the deceased, one had struck on the jaw and the other on the neck. He denied during cross-examination that he had stated that one of the blows had struck the deceased on the head. While stating the motive for the occurrence, he stated that the appellant suspected that the deceased was having illicit connections with the wife of his brother. P.W.5 and P.W.7 corroborated his statement. P.W.5 was also confronted with his statement before the police, about the injury on the head. Both P.W.4 and P.W.5 denied that they were not residing in Basti Isayan and were residing in the quarters officially allotted to them. P.W.5 explained that he had been allotted a quarter but he had "left the same about 2 months prior to the occurrence, and had taken up residence in Basti Isayan. All the three denied the suggestion that Fajja, Wirsa and Lal Masih had been associated in the investigation as suspects. Each one of them stated that the S.I.
Had come to the spot of his own and they had not sent any information. It has been admitted by them that the place of occurrence was situated in a thickly populated area. P.W.4 stated that his house and the house of Yunas Masih were near the place of occurrence. All of them denied the suggestion that they had not witnessed the occurrence and had falsely named the appellant.
' Mst. Kishwar P.W.7 denied that she was away in the house of her parents at Gojra on the day of occurrence and she had named the appellant because she had quarrelled with the wife of the appellant prior to the occurrence.
' The suggestion put to P.W.4 that the deceased was carrying on with the sister of Lal Masih, who is alleged to have been joined as a suspect, was denied by him. P.W.5 denied the suggestion that Kassi P4, shirt P5 and Shalwar P6 have been planted on the appellant and that the same had not been produced by the appellant before the S.I. In their presence. The statements of all other witnesses, are more or less, of a formal nature.
7. The appellant in his statement under section 342 of the Code of Criminal Procedure, denied the prosecution case as a whole and stated as follows, in answer to the question, '.Why this case against you., and why the P.Ws. Have deposed against you':- "I have been falsely involved in this case due to enmity and suspicion. It was an unseen murder and the Police joined so many persons as suspects in this case. The P.Ws. Have deposed falsely against me due to relationship with the deceased."
' He also denied having produced Kassi P4 or having appeared before the Police while wearing blood-stained shirt P5 and blood-stained Shalwar P.6. Although he opted to produce defence yet later he opted not to produce defence. Arguments heard.
' Out of the three witnesses who deposed the ocular account, Mst. Kishwar is wife of the deceased and was residing in the house in front of which the occurrence took place. Her presence in her house near the place of occurrence cannot be doubted by any means. There is nothing unusual in her statement that she was washing utensils outside the house on a drain, in view of the fact that people of low class generally do avail the opportunity of washing utensils etc. on the drain for lack of drainage system in their houses. The suggestion that she had come on call from Gojra from the house of her parents, is a far fetched idea. Had she been so far away, her name would not have been mentioned in the F.I.R. Which was lodged promptly. The mere suggestion that she deposed against the appellant on account of having quarrelled with his wife, a few days before the occurrence, cannot be given any importance because she would not have substituted the murderer of her husband for such a trivial matter. Moreover, the suggestion was denied by her.
' The other two witnesses, i,e, Rashid Masih and Yunas Masih also were residing nearby. They have given reasonable explanation for their presence near about the place of occurrence, at the relevant time. The suggestion that since they were serving in the District Courts and so they could not have been present at the spot, seems to have been put at random without caring to find out that the occurrence had taken place on Friday which is a close holiday.
' Mere relationship of Mst. Kishwar P.W.7 and Rashid Masih P.W.4 with the deceased is not enough to discard their testimonies keeping in view the fact that they were not inimically disposed towards the appellant in any manner prior to the occurrence. Yunas Masih was not connected in any manner with the deceased. He was not inimical to the appellant. He is, therefore, an independent witness by all means. The statements of the eye-witnesses, as such, inspire confidence.
9. Although it does not sound well to believe that the appellant would have appeared before the police on 3rd day, wearing blood-- stained clothes along with the Kassi, yet we are prone to believe the evidence of recovery considering the fact that both the witnesses who had attested the recovery memos. Were not inimical to the appellant. Although one of them i,e, Rashid Masih was related to the deceased being his brother yet the other one i,e, Yunas Masih was not connected with the deceased or the complainant in any manner. Moreover, their statements find corroboration from the statement o the Sub-Inspector 'against whom no bias has been alleged, and above all, all these articles were:found stained with human blood, by the Serologist.
10. There is no reason to discard the evidence of motive. In fact learned counsel for the appellant himself did not question this portion of the evidence, rather he prayed for alteration of sentence of death to imprisonment for life on the basis of the motive for the occurrence. We are, thus, convinced that the ocular account which finds corroboration from the medical evidence, evidence of recoveries, and evidence of motive, is sufficient to sustain the conviction of the appellant. His conviction under Section 302 P.P.C. Is, therefore; maintained.
11. Since it is prosecution's own case that the appellant had suspicions against the deceased of having illicit relations with his brother's wife, we find no hesitation in agreeing with learned counsel for the appellant that it was a case of family honour. We, therefore, are not inclined to confirm the sentence of death. The same is altered to imprisonment for life.
12. There is nothing on record to consider that the appellant had a sound financial position to pay enough amount as compensation. According to the record, he was a labourer. We, therefore, reduce the sentence of fine from Rs,10,000 to Rs,5,000 (Rs,five thousand) and the amount of compensation from Rs,10,000 to Rs,5,000 (Rs,five thousand). In default of payment of fine, he will undergo R.I. For one year while in default of payment of compensation amount, he will suffer S.I. For six months. The amount of fine, on recovery, shall also be paid as compensation to the heirs of the deceased.
' The appellant shall also be given benefit of the provisions of Section 382-B of the Code of Criminal Procedure.