MUHAMMAD ILYAS, J.--This appeal has been preferred by Manu son of Rehman, aged 40 years, caste Jat Gondal, resident of village Bosal Masoor, Police Station Mian Gondal, District Gujrat, against, judgment, dated 11th April, 1983, whereby the Sessions Judge, Gujrat, convicted him, under section 302 of the Pakistan Penal Code, for intentionally causing death of his co-villager, Sardara and sentenced him to death and to pay a fine of Rs.5,000 (Rs.Five thousand only) or in default of payment thereof, to suffer rigorous imprisonment for one year. Half of the fine, if recovered, was ordered to be paid to the I legal heirs of Sardara deceased. Two brothers of the appellant, namely, Bhatti, aged 39 years, and Nazira, aged 32 years, who also stood trial along with the appellant for the above murder, were, however, acquitted by the learned Sessions Judge by giving them the benefit of doubt. The learned Sessions Judge has made a reference for confirmation of death sentence awarded to the appellant. This judgment shall dispose of the appeal as well as the reference.
2. It is alleged that during the night intervening 29th and 30th June, 1981, Sardara was sleeping in the courtyard of his house when the appellant and the two acquitted accused came there. The appellant was armed with a gun while the acquitted accused had Sotas with them. The appellant fired at Sardara when the acquitted accused raised Lalkaras that nobody should come near them.
The occurrence was witnessed by the wife and son of Sardara, namely, Mst. Tali (P.W.8) and Ijaz (P.W.9) who were attending to Mst. Nasrin (not produced), an ailing daughter of Sardara, in the light of Lantern which was burning. They raised alarm whereupon the assailants took to their heels.
Faiz Ahmad (P.W.10) saw them running away. Sardara died at the spot due to the injuries caused to him by the appellant with his fire-arm.
3. Motive for the offence is said to be dispute relating to land jointly owned by the deceased and Rehman, the father of the appellant, and the supply of canal water to said land. It was also alleged that at Degarwela of the day immediately proceeding the night of occurrence the deceased removed a branch from a Bair tree growing in one of the fields. The appellant the acquitted accused and their father claimed that the said tree belonged to them and they threatened to teach a lesson to the deceased for cutting a branch therefrom.
4. Murder of Sardara was reported to the police on the following day i.e. 30th June, 1981 , at 6-30 a.m. By Mst. Tali (P.W.8), widow of the deceased, by making statement, Exh. P.D. It was recorded by an Assistant Sub-Inspector, Mahmood Khan (P.W. 11), who was present in a nearby locality known as Dera Hanjana Mahmood Khan A.S.I. Despatched the said statement to the Police Station of Miana Gondal. Through Muhammad Asghar, Foot Constable (P.W. 2), where formal F.I.R., Exh. P.D/I was drawn up by Sher Muhammad, Foot Constable (P.W.5). The Assistant Sub---Inspector himself went to the spot and prepared Inquest Report, Exh. P.G and injury statement Exh. P.H. Relating to injuries suffered by Sardara deceased. He then despatched his dead body for post-mortem examination. The Assistant Sub-Inspector took into possession blood--stained Chadar of Sardara, Exh. P.1 and made it into a sealed parcel, vide memo. Exh. P.B. He collected blood-stained earth from the spot, vide memo. Exh. P.E. He also took into possession Khais and Sharpat vide a memo.Exh. P.F. Memo. Exh. P.B. Was attested by Muhammad Aslam, Foot Constable, (P.W.3). Malka (P.W.7) and Mushtaq Ahmad (not produced) attested memoranda Exhs. P.E. And P.F. According to the report of the Chemical Examiner, Exh. P.J., the said articles were stained with blood. In his report, Exh. P.K., it was opined by the Serologist that blood on the earth collected from the spot was of human origin. The accused was arrested by the said Assistant Sub- Inspector on 5th July, 1981.
5. Post-mortem examination on the dead body of Sardara was conducted by Dr. Nazir Ahmad Anwar (P.W.1). He found thereon a fire--arm wound of inlet 2-1/2 c.m. x 2-1/2 c.m. x going into the chest over the front of the chest slightly on the left side of the mid-line. On dissection, it transpired that right side of the heart was perforated in an area of 3 c.m. x 3 c.m. About four pints of blood was present at the left side of the chest. Three pieces of vade were recovered from the left side of the chest. Five large size pellets were recovered from the sub-contaneous tissues on the left side of back of the chest. All the organs of the body were healthy. The stomach contained about two ounces of digested food material. The intestines contained gases and faecal matter. The bladder contained about three ounces of urine. In the opinion of the said Medical Officer, death of Sardara occurred due to the above injury as a result of haemorrhage and shock and it was sufficient to cause death in the ordinary course of nature and time. It was also reported by him that the injury was caused with fire--arm and was ante-mortem. According to him, the death occurred instantaneously. Exh. P.A. Is copy of post-mortem examination report. Exh. P.A./1 is the sketch of the injuries which was prepared by the Medical Officer.
6. Inayat Ali Patwari (P.W.4) prepared site plans, Exhs. P.C. And P.C./ 1 at the instance of the police.
7. After necessary investigation, the appellant and the acquitted accused were challaned.
8. The appellant and the acquitted accused denied having taken part in the occurrence.
9. The witnesses referred to above were examined by the prosecution to prove its case.
10. In his statement, under section 342 of the Code of Criminal Procedure, the appellant refuted the allegations levelled against him. When asked as to why the case was brought against him, it was explained by the appellant that Mst. Tall, who was wife of the deceased, wanted to give the hand of her daughter to a person outside the family but the deceased did not agree to it. This gave rise to a dispute between the spouses which lasted for one year. Ultimately Sardara was killed with the connivance Mst. Tall. The appellant and his brothers were, however, falsely involved in the case of his murder. Same plea was raised by the acquitted accused. Only one witness namely, Sher Bakhsh (D.W.1) was examined in defence. He deposed that he was serving as Station House Officer of Police Station Miana Gondal when he prepared report under section 173 of the Code of Criminal Procedure, in respect of the present case, and completed the challan. It was further stated by him that on 4th June, 1981, six persons appeared before him at the police station in defence of the accused and claimed that all the accused were innocent. The said six persons were Muhammad son of Waris, Rehma son of Ali. Roshan son of Ghulam Muhammad, Saeed Muhammad son of Shah Muhammad, Jahana son of Mahla and Salehon son of Jalal. None of them were, however, examined in defence.
11. As indicated at the outset, out of the three accused who faced trial before him, the learned Sessions Judge convicted the appellant and sentenced him as aforesaid but acquitted the other two accused
12. In this case, main stay of the prosecution is ocular evidence consisting of the statements of Mst.
Tall (P.W.8) and Ijaz (P.W.9), who supported the prosecution story as spelt out earlier. In regard to their evidence, it was submitted by learned counsel for the appellant that since they were closely related to the deceased, their evidence could not be relied upon without independent corroboration. We are unable to agree with him because it has been repeatedly held by the Superior Courts that mere relationship of a witness does not mate him an interested witness. Mst.
Tali and Ijaz are natural witnesses of the occurrence because being members of the family of the deceased, they could be expected to be with him on the night of occurrence. By stating that they were looking after the ailing daughter of the deceased, Mst. Nasrin and that they saw the occurrence in the light of the lantern which was then burning. They gave a convincing explanation of their being awake at the time of occurrence. According to them the deceased was sleeping at the time when he was attacked. We find nothing wrong with the testimony of the eye-witnesses. It is a strong piece of evidence which, by itself, constitutes valid basis for the conviction of the appellant.
13. Evidence of the witnesses also derive support from medical evidence furnished by Dr. Nazir Ahmad Anwar, (P.W.1). According to him, the deceased died due to fire-arm injury. The ocular account is also to the effect that he lost his life due to firing by the appellant.
14. Another piece of evidence which connects the appellant with the offence is statement of Faiz Ahmad (P.W.10). He saw the appellant running away from the spot after committing the offence.
There is nothing against Faiz Ahmad except that he is brother of the deceased; but, as stated above, this, by itself is no sound reason for discarding his testimony.
15. The defence version is that there was dispute between the deceased and his wife, Mst. Tali (P.W.8) regarding the marriage of their daughter and that due to the said dispute Mst. Tali got him killed by his son, Mukhtar. There is no evidence to substantiate this plea. The only defence witness in this case, namely, Sher Bakhsh (D.W.) did not utter a word regarding the said marriage dispute.
Also, the appellant took different positions, from time to time, in regard to the above version. It was suggested to Mst. Tali (P.W.8) that she was trying to engage her daughter, Mst. Nasrin with Ghulam Hussain son of Ahmad Din, the Mutwalli of the Darbar of Shah Suleman but her husband (deceased) did not agree. As against this, it was suggested to Ijaz (P.W.9) that she wanted to engage. Mst. Nasrin with Qamar son of Muhammad Hussain. According to another suggestion made to Ijaz, Muhammad Hussain was a Pir who is since dead and his Darbar is in Bhalwal. No suggestion in the matter was made to Faiz Ahmad (P.W.10) who is brother of the deceased, when examined, under section 342 of the Code of Criminal Procedure, the appellant did not name the person to whom Mst. Nasrin was sought to be engaged by Mst. Tali. This omission was, perhaps, deliberate on his part in view of contradictions pointed out in the suggestions made to Mst. Tali and Ijaz. It was also suggested to Mst. Tali and her son, Ijaz, that the deceased was killed by her other son Mukhtar, but Mukhtar was not named by the appellant in his own statement. All suggestions relating to the defence version were refuted by Mst. Tali as well as Ijaz. We are, therefore, not impressed by it.
16. In view of the ocular statements by Mst. Tali (P.W.8) and Ijaz (P.W.9), medical evidence furnished by Dr. Nazir Ahmad Anwar (P.W.1) and the statement of Faiz Ahmad (P.W.10) we are perfectly satisfied that the appellant was responsible for taking the life of Sardara. We, therefore, maintain his conviction under section 302 of the Pakistan Penal Code.
17. In regard to the sentence of death awarded to the appellant, it was submitted by his learned counsel that since immediate motive for causing the death of Sardara had not been established by the prosecution and the stand of the prosecution was also not consistent in regard to dispute relating to land and the supply of water, it was not I a case of capital punishment. In the F.I.R. Exh.
P.D/l, it was stated that out of the land jointly owned by them, the appellant's father, Rehman, had with him more land than his entitlement and, therefore, the deceased wanted to have his due share. It was, however, stated by Inayat Ali Patwari (P.W.4) that there was no dispute between Rehman and the deceased regarding the land. In her statement as P.W.8 it was deposed by Mst.
Tali, the wife of the deceased, that he filed suit against the accused for distribution of water as well as for trees. According to her, he had also brought a civil suit for the return of land, against the accused. In his examination-in-chief, it was stated by Ijaz (P.W.9) that the dispute was pending between the deceased and the accused over the distribution of water and the trees. However, when cross-examined, it was stated by him that the only dispute between the parties was about the trees. Thus, according to his statement in cross--examination, there was no dispute relating to land or distribution of water The prosecution could easily produce documentary evidence relating to the above suits if they had been instituted but no such evidence was brought on the record.
According to the F.I.R., immediate motive for the offence was the cutting of a branch of a tree by the deceased in the afternoon of the day immediately preceding the night of occurrence. The appellant, his brothers (acquitted accused) and their father (Rehman) claimed that the said tree belonged to them and they threatened the deceased to teach him (deceased) a lesson for cutting its branch. There is not an iota of evidence in regard to this incident. We, therefore, agree with learned counsel for the appellant that the prosecution evidence regarding dispute in respect of land and supply of canal water is faulty.
Even if, it is believed that there was dispute with regard to land and distribution of water, as alleged in the F.I.R., the prosecution has totally failed to prove immediate motive for the offence, namely, cutting of branch of the disputed tree in the after-noon preceding the night of occurrence. Thus, immediate motive for the occurrence is shrouded in mystery. This lacuna in the prosecution case was also appreciated by learned counsel for the State, and in view thereof it was frankly conceded by him that this case did not call for imposition of extreme penalty provided for the offence of murder. We are, therefore, not inclined to confirm the death sentence awarded to the appellant and alter the same to imprisonment for life. Order of the learned Sessions Judge regarding the sentence of fine is, however, maintained in all respects.
18. The appeal is dismissed except to the extent of above modification in the sentence. Death sentence awarded to the appellant is not confirmed. The reference is disposed of accordingly.