1. GHULAM MUJADDID MIRZA, J.--Muhammad Boota son of Ahmad Khan (18), Sepoy in Medical Regiment, Sialkot Cantt., resident of village Bhakhrewali and his mother Mst. Sardaran Bibi were tried for the murder of Barkat Ali. The trial Judge, by judgment, dated 14-3-1981 acquitted Sardaran Bibi but convicted her son Muhammad Boota, under section 302, P.P.C. He was sentenced to death and a fine of Rs. 5,000 or in default six months' R.I.
2. The convict and the State have filed appeals; the former against his conviction and sentence and the latter against the acquittal of Sardaran Bibi. Reference of confirmation of death sentence of Boota is also before us. All these matters shall be decided by this judgment.
3. The occurrence took place on 7-6-1980 at 2-30 p.m. In the area of Majra Kalan. Report Exh. P.B. Was lodged by Muhammad Mukhtar son of Barkat deceased. It was recorded by Nazir Ahmad, Sub- Inspector, Police Station, Sambrial.
4. The motive by appellant Boota to kill his real uncle was that he had promised to marry his daughter Ghulam Zohra aged 14/15 to Boota in lieu of which Mst. Sardaran promised to give her two daughters to the sons of Barkat. Sardaran's daughter Ghulam Fatima was wedded to Mukhtar Hussain brother of the complainant but Ghulam Zohra was minor. Therefore, she could not be married to Muhammad Boota. Nevertheless, Sardaran Bibi insisted that she must be married to her son Boota. This led to a dispute between the parties.
5. On the day of occurrence, Barkat accompanied by his son Muhammad Mukhtar came to Sambrial.
6. They purchased some fertilizer. It was loaded on a cart and sent to their village. Barkat himself got into a Tonga and left for village. Muhammad Mukhtar, Muhammad Fazil and Ghulam Nabi got another Tonga. They, too started for their village. They left the Tonga at village Majra Kalan and started walking to their village. Barkat too got down and was on his way to the village, on foot. He was ahead of them. When he reached near the well Daulaywala, Boota armed with Sota along with his mother emerged out from the reeds.
7. Prosecution case is that the mother raised Lalkara 'that his son-in---law was there, was he willing to send her daughter or not'. Sardaran incited her son to kill Barkat. Barkat ran for life. Boota chased him. He overtook him at a distance of 15/20 Karams and then gave beating to Barkat with Danda.
8. Sardaran caught hold of Barkat from his legs. Boota went on hitting on head and other parts of the body.
9. Muhammad Mukhtar, Fazil and Ghulam Nabi rushed to the scene of occurrence whereas Boota and his mother ran towards the East leaving the Danda at the spot. Barkat died there and then.
10. In support of this story, prosecution examined Muhammad Mukhtar, Fazil and Ghulam Nabi as eye- witnesses. Reliance was placed on the recovery of Danda P. 4 taken into possession vide memo. P.E.
11. Attested by Muhammad Mukhtar and Fazil, found to be stained with human blood by the Serologist as well as the post-mortem report.
12. The appellant when examined before the trial Court denied all the allegations; pleaded not guilty; disowned Danda P. 4 and said that he had been falsely implicated due to suspicion and family dispute. When questioned if he was to say anything else, he said that he was innocent. He was not present on the spot at the time of occurrence but was on duty in his Unit.
13. In defence he examined Muhammad Ibrahim, a pensioner Sub---Major Clerk and Hafiz Wazir Ali, Naib-Subedar/Naib-Khateeb, 69 Medical Batallian, Sialkot Cantt.
14. Muhammad Mukhtar the first informant after having deposed about the incident narrated the motive which has been referred to above. The part attributed to the mother of Boota was that she held Barkat by legs and the appellant went on giving him blow after blow with Danda.
15. Muhammad Mukhtar was duly supported by Muhammad Fazil a nephew of Barkat. His version was that he had gone to Sambrial. Barkat and Mukhtar met him there. They sent fertilizer in a Rehra to the village. Barkat also left for the village in a Tonga. Fazil and Mukhtar stayed back. Then they along with Ghulam Nabi left Sambrial in a Tonga. They got down at village Majra Kalan because the Tonga driver was of this village. They started on foot to their village. It was near Nulla Neelway when they saw, Boota and Sardaran. They came out from Saroot bushes. Barkat was ahead of them. The rest of the story is the same which Mukhtar stated and need not be repeated.
16. Ghulam Nabi has corroborated Mukhtar and Fazil. His version is the same as that of his companions.
17. The next piece of evidence is the recovery of Danda P.
4. It was taken into possession from the spot vide memo. P.E. Attested by Muhammad Fazil and Ghulam Nabi. It was found to be stained with human blood by the Serologist.
18. On 8-6-1980 at 12-42 p.m., Dr. Rizwan Ali, Medical Officer Allama Iqbal Memorial Hospital, Sialkot, conducted post-mortem examination. He found 13 injuries. Out of these, four were lacerated wounds, others were contusions. The following injuries were grievous and dangerous to life:-----
(3) Lacerated wound 2.5 c.m. Posterior to injury No. 2 and 2 c.m. x 1 c.m.
(12) Three contusions each of 12.5 x 2 c.m. On the area of 15 c.m. x 10 c.m. Over the lateral aspect of right chest 13 c.m. From the nipple.
(13) Contused wound 10 c.m. x 2.5 c.m. On the left parietal bone.
19. According to the doctor these injuries were sufficient to cause death in the ordinary course of nature.
20. We have also gone through the defence evidence. This was an attempt on the part of the appellant to establish the plea of alibi.
21. Learned counsel appearing for the appellant first tried to argue that the plea of alibi has been duly established; the appellant as such was entitled to acquittal. In the alternate, learned counsel argued that two of the eye-witnesses were relatives of the deceased. They were close relations; hence interested. The fact that the parties were not on pleasant terms has been admitted by the prosecution witnesses. Their evidence as such could not be relied upon unless duly supported by other independent evidence of unimpeachable character which, according to the counsel, was not forthcoming. He, therefore, contended that on this ground as well the appellant is entitled to acquittal.
22. We have also heard learned counsel who appeared in support of the State appeal. He supported the impugned judgment so far as Boota was concerned. Regarding Mst. Sardaran he submitted that the case has been proved against her. She incited her son to kill an innocent person. She deserved to be convicted and sentenced like her son.
23. It was a broad day occurrence. The eye-witnesses gave sound explanation of their presence at the spot. Their presence as such cannot be doubted. Although Muhammad Mukhtar and Muhammad Fazil were close relations of the deceased but their evidence is not to be rejected on the ground of relationship because they are also related to the appellant. The ocular version is duly corroborated by the recovery and the medical evidence.
24. When the arguments concluded, mother of the appellant present in Court submitted that the parties have compromised, therefore, her son has been pardoned by the deceased's sons and brothers. We asked her if she could bring the first informant. She sought time. The case was adjourned. On 2-2-1983 the first informant along with his brother and uncle appeared before us.
25. They submitted a written compromise and said that they have voluntarily pardoned the appellant.
26. This has been done in order to have cordial relations in the future. The written compromise has been placed on record.
27. In view of this, the maximum concession which we can give to the appellant, under the law, is to commute the death sentence to life imprisonment. We order accordingly. He shall further be given the concession under section 382-B, Cr.P.C. His appeal stands disposed of.
28. The appeal filed by the State has no merit. It is dismissed in limine.