RAJA AFRASIAB KHAN, J.--The learned Sessions Judge, Mianwali, vide his judgment, dated 3-9- 1984, convicted the appellant. Shaukat Masih son of Hidayat Masih. Aged 24/25 years, under section 302, P.P.C. And sentenced him to death for the intentional murder of Shamaun Masih son of Sardar Masih. Aged 22 years, by inflicting Chhuri blows on 15-3-1982, at 7-00 a.m., in the area of Wandhi Ghund Wali, Tehsil and District Mianwali. He was also fined a sum of Rs.3,000 or in default thereof to undergo one year's rigorous imprisonment. It was ordered that he shall also pay a sum of Rs.5,000 as compensation under section 544-A, Cr.P.C. To Mst. Kalsoom (P.W.3), widow of deceased Shamaun Masih. The appellant has come before us in appeal against his conviction and sentence and the reference under section 374, Cr.P.C. Is also before us for confirmation of the sentence of death. The appeal as well as the murder reference shall be disposed of together by this judgment.
2. Hameed Masih (P.W.2), the complainant, made a statement (Exh.P.B.) at 7-45 a.m. On 15-3-1982 before Khadim Hussain A.S.I. (P.W.9) m which he stated that he was a sweeper and worked as such in Civil Hospital, Mianwali. His daughter Mst. Kalsoom was married five months ago to Shamaun Masih, resident of road near Recruiting Office, Multan Cantt. And in exchange of the said marriage Mst. Shakila, the sister of Shamaun Masih deceased was married to the appellant, Shaukat Masih However, the Rukhsati of Mst. Shakila did not take place. The complainant stated further that Shamaun Masih deceased along with his wife Mst. Kasloom (P.W.3) came to visit-him fifteen days ago. On the 15th of March 1982 at 7-00 a.m., he, Shamaun Masih deceased and Mst. Kalsoom were present in the drawing room wherein suddenly appellant Shaukat Masih armed with a Chhuri, came and immediately thereafter attacked Shamaun Masih deceased and caused injuries with a Chhuri which landed on his abdomen, left shoulder and right hand. On the receipt of the injuries, Shamaun Masih deceased fell down on the ground and his intestines came out. Shamaun Masih died at the spot as a result of the injuries. About the motive, the complainant disclosed that appellant Shaukat Masih demanded from deceased Shamaun Masih that Mst. Shakila be sent with him. However, the deceased refused to send Mst. Shakila with the appellant. In view of this, the appellant nourished a grudge against the deceased and murdered him accordingly. On the basis of the statement (Exh.P.B.) of the complainant, formal F.I.R. (Exh.P.B./1) was registered by Ghulam Yasin M.H.C. At 8-05 a.m. The same day, i.e. 15-3-1982.
3. Khadim Hussain A.S.I. (P.W.9) stated that he was posted as A.S.I. At Police Station City, Mianwali, in March, 1982. On 15-3-1982, at 7-25 a.m. He was present at Bus-stand Mianwali along with other police constables in connection with his patrol duty. He deposed that complainant Hameed Masih (P.W.2) approached him there and made the statement (Exh. P.B.) which was recorded by him. He sent the same report through Ghulam Qasim Constable to the police station for recording formal F.I.R. The witness proceeded to the spot. On reaching the spot, he examined the dead body and prepared the injury statement (Exh. P.F.) and the inquest report (Exh.P.G.) and sent the dead body for post-mortem examination under the custody of Amanullah Constable (P.W.7). He also recorded the statements of witnesses at the spot. He took blood-stained earth into possession vide memo.
Exh. P.H. Amanullah Constable produced before him blood--stained Shalwar (Exh. P.2) which was taken into possession. On 16-3-1982, on the direction of the witness, Mirza Zahiruddin Draftsman (P.W.1) prepared the site plan (Exh.P.A.) of the place of occurrence. On 17-3-1982, the Investigating Officer went to Multan to arrest the appellant, Shaukat Masih, but he did not find him there and he returned on 18-3-1982. The witness further stated that on 19-3-1982, he obtained warrants of arrest of Shaukat Masih appellant under section 24 of the Police Act and deputed Nawab Khan Constable (P.W.6) for execution of the said warrants. The warrants could not be executed and later on a proclamation under section 87/88, Cr.P.C. Was obtained and Nawab Khan Constable was deputed for the execution of the said proclamation. On 24-3-1982, the investigation of the case was transferred to Muhammad Saadullah S.I. (P.W.8). The witness further stated that he was in the company of Muhammad Saadullah S.I. On 24-3-1982, when appellant Shaukat Masih was arrested from bus-stand Mianwali near Octroi post. He also witnessed the recovery of Chhurri (Exh. P.1) which was led by accused on 28-3-1982 and the same was taken into possession vide Memo. Exh.
P.D. He also stated that Ghulam Yasin, M.H.C., who prepared the formal F.I.R. (Exh. P.B./1), was undergoing training course at Sihala. He disclosed that he was conversant with the handwriting and signature of Ghulam Yasin. He also confirmed that Exh. P.B/I was in his hand and bears his signatures. Muhammad Saadullah S.I. (P.W.8) also partly investigated the case. He stated that he was the Incharge of City Police Post, Mianwali. The said witness received an information at about 2- 00 p.m. On 24-3-1982, about the appellant and he along with police constables rushed to the Octroi Post. On seeing him, the appellant tried to run away but he was apprehended at the spot.
The recovery memo. (Exh. P.D) of Chhuri (Exh. P.1) was attested by Khadim Hussain, A.S.I. (P.W.9) and Ghulam Qasim H.C. (not produced). The blood-stained earth as well as blood-stained Shalwar (Exh. P.2) were sent to the Chemical Examiner for determination of the origin of blood. The reports of the Chemical Examiner as well as of the Serologist are Exhs. P.J., P.K. And Exh. P.K./I, respectively.
According to the reports of the Serologist Chhuri (Exh. P.1), Shalwar (Exh.P.2) and the earth were found stained with human blood.
4. Dr. Muhammad Rafique (P.W.4) conducted the post-mortem examination on the dead-body of Shamaun Masih deceased on 15-3-1982, and found the following injuries on his person:--
(1) An incised wound 6-1/2 c.m. x 5 c.m. With burlging out a mass of gastro intestinous contents.
Wound was in the epigestrum just below the lower end of sternum.
(2) An incised wound 4 c.m. x 2 c.m. On the left side of back, 13 c.m. Below left scapula and 4 c.m.
Lateral to midline.
(3) An incised wound 3 c.m. x 1 c.m. On the posterior surface in the middle of left upper arm.
(4) An incised wound 2-1/2 c.m. x 1 c.m. On the anterior surface of left upper arm.
(5) An incised wound 2 c.m. x 1/2 c.m. On the dorsal surface of middle phalynx of right index finger.
It was found by the doctor that stomach of the deceased was empty. It was stated by the doctor that all the injuries on the person of the deceased were caused by a sharp-edged weapon and in his opinion cause of death was haemorrhage and shock which was caused by injury No. 1, and which in his opinion was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2 to 5 were found simple in nature and duration between the injuries and death was within half an hour and time between death and post-mortem examination was less than 12 hours.
5. The appellant in his statement under section 342, Cr.P.C. Before the trial Court denied the prosecution allegations. He admitted that Hameed Masih (P.W.2) is his real uncle and Mst. Kalsoom (P.W.3) is his cousin sister. The appellant, however, made a detailed statement whereby he gave his own version of the occurrence and submitted that Mst. Jamila, the mother of the deceased, is a woman of bad character and she prevailed upon Mst. Kalsoom P.W. And Mst. Shakila, his wife, to lead an immoral life, which he did not like. He further stated that he as well as Shamaun deceased had beaten Mst. Shakila and Mst. Kalsoom P.W. Because of their immoral character. In view of this, Mst. Kalsoom was annoyed with her husband Shamaun deceased. He disclosed that Mst. Kalsoom P.W. Came to live with her parents whereupon Shamaun deceased came to his in-laws to reconcile with Mst. Kalsoom P.W. The appellant submitted that Mst. Jamila, mother of the deceased, also reached the house of Hameed Masih P.W. One day prior to the occurrence in connection with the aforesaid reconciliation. Mst. Kalsoom did not wish to go back and the same was the desire of her parents. Because of this, Shamaun deceased threatened his wife as well as her parents with dire consequences. The appellant proceeded further to state that Mst. Kalsoom in order to get rid of her husband Shamaun deceased, hired the services of her old bad character male friends for murdering him. The appellant clearly stated that during the night of occurrence at about 3-30 a.m.
Some unknown person under the conspiracy, knocked at the door of the drawing room in which Mst. Kalsoom and Shamaun deceased were sleeping and Shamaun deceased opened the door, but before that Mst. Kalsoom P.W. Had gone to wake her father who was sleeping in the courtyard.
In the meantime, when Hameed Masih and Mst. Kalsoom P.Ws. Reached, the deceased was already lying dead there. The appellant concluded by saying that in order to save their own skins under the pressure of Mst. Jamila, involved him in the present case. The object of the conspiracy was that Mst. Jamila might be able to get Mst. Shakila, her daughter, free from her husband so that she may be used for prostitution purposes.
6. We have heard learned counsel for the parties at some length. It is contended by learned counsel for the appellant that the occurrence in hand had taken place in the mid of night which has not been witnessed by any competent witnesses. It is next contended that the appellant had no motive whatsoever to kill Shamaun. It has vehemently been argued by the learned counsel that the recovery of Chhuri (Exh. P.1) is highly doubtful, inasmuch as the place from where, i.e. From a pit in Wandhi Ghundwali near the Thal Project Canal, the recovery was effected, was not in possession and ownership of the appellant. It is maintained that there is no evidence whatsoever produced by the prosecution to justify the conviction and sentence imposed upon the appellant and as such, the appellant is entitled to acquittal forthwith. The learned counsel for the State submitted in his arguments that the lodging of the F.I.R. With the police station was immediate and prompt. It is next stated that the instant case was a case of single accused and at any rate, this cannot be a case of substitution. He has strongly supported the conviction and sentence awarded to the appellant by the trial Court.
7. We have very minutely considered the entire prosecution evidence and have considered deeply the contentions raised by learned counsel for the parties.
It may be pointed out at the very outset that the occurrence under consideration took place on 15- 3-1982 at 7-00 a.m. And the F.I.R. Was lodged with City Police Station Mianwali, at a distance of 2-1/2 kilometres, on the same day at 8-05 a.m. This shows that the occurrence was reported to the concerned police immediately without wasting any time. Thus, there was absolutely no time left with complainant party for deliberations for false implication of the appellant. Hameed Masih P.W.
And Mst. Kalsoom P.W. Widow of Shamaun deceased, are the two most important natural and truthful witnesses in the case. After considering all the facts and circumstances of the instant case, we are of the firm view that Hameed Masih and Mst. Kalsoom P.Ws. Have deposed truthfully about what they had seen with their own eyes. They had no axe to grind in falsely implicating the appellant in the case. It may be observed that the appellant is the real nephew of Hameed Masih P.W. The statements of the witnesses are true and straightforward. Hameed Masih P.W. Submitted in his statement that deceased Shamaun Masih was his son-in-law and that Mst. Kalsoom P.W. Is his daughter. He clearly stated that a sister of his son-in---law Shamaun Masih deceased, namely, Mst. Shakila, was married with Shaukat Masih appellant in exchange. He further stated that his daughter was living with her husband happily, whereas Mst. Shakila who was married with the appellant, was not living with him and in fact no Rukhsati after the solemnization of her marriage had taken place. The witness deposed that the appellant had a clear grievance against Shamaun Masih deceased, inasmuch as he was not allowing his sister Mst. Shakila to go and live with the appellant as his wife. The witness has given the whole description of the gruesome murder of his son-in-law at the hands of the appellant. He stated that he along with his daughter Mst. Kalsoom P.W. And deceased Shamaun Masih were present in his drawing room wherein the appellant armed with a Chhuri appeared at the scene and caused successive injuries on the person of Shamaun Masih deceased and killed him there and then. The statement of Mst. Kalsoom P.W. Has in all material terms, supported the statement of Hameed Masih P.W. She has stated that Mst.
Shakila, a sister of deceased Shamaun Masih, was married with the appellant and that she was not willing to go to live with the appellant as his wife and the deceased also supported his sister and as such, the appellant had murdered her husband because of this grudge. She further stated that she married Shamaun deceased with her own consent and also with the willingness of her parents. She deposed that appellant Shaukat Masih was holding Chhuri (Exh. P.1) with which weapon he inflicted injuries on the person of the deceased. It may be pointed out that the occurrence in hand admittedly took place in the drawing room of Hameed Masih P.W. Early in the morning and as such, the presence of Hameed Masih and Mst. Kalsoom P.Ws. Could not be doubted under any circumstances because their presence at the spot, keeping in view the time of occurrence, was nothing but natural. Possibly there could not be any other witness except Hameed Masih and Mst.
Kalsoom to witness the occurrence. This is a case in which the occurrence took place within the four walls of the house and as such, there could not be any strangers to witness the occurrence in hand. In view of these circumstances, Hameed Masih and Mst. Kalsoom P.Ws. Have been rightly believed by the trial Court and we accordingly confirm his finding on the truthfulness of these two witnesses; The eye-witness account is wholly in line with the-medical evidence inasmuch as Dr. Muhammad Rafiq P.W. Deposed in his evidence that on post-mortem examination he found the stomach of the deceased empty. This will show that the occurrence had taken place at the time as disclosed in the F.I.R. It is clear from the prosecution case that the complainant as well as the deceased belonged to a labour class and generally the people of this class take their meals of the day before going to their work early in the morning. It is, therefore, quite natural and reasonable that deceased Shamaun Masih might not have taken his meals at 7-00 a.m. Because yet the other family members, including Hameed Masih P.W. Had to go to their work after taking the necessary meals. In the circumstances of the case, the medical evidence is wholly in agreement with the prosecution evidence. There is absolutely no force in the contention of the learned counsel for the appellant that the occurrence had not taken place at 7-00 a.m. But the same had taken place at about 3-30 a.m. In the night. There is nothing on the record to show that the eye-witnesses have deposed falsely with some ulterior motive. The prosecution evidence is clear on the subject that there was no dispute whatsoever on the marriage of Mst. Kalsoom P.W. With Shamaun Masih deceased and that the couple was living happily as husband and wife. The defence had subjected Mst. Kalsoom P.W. As well as Hameed Masih P.W. To a lengthy cross-examination but they have miserably failed to bring out something favourable to their case, After scrutinizing the evidence of the two P.Ws. We find that there were no suggestions put to them that Mst. Kalsoom P.W. And Shamaun deceased was not a happy-wedded couple. It is in the evidence that both husband and wife came from Multan to Mianwali to live with Hameed Masih P.W. On the contrary, the very trend of the statement of the appellant will show as if he has known the whole occurrence himself and further as if he was himself present there seeing the whole occurrence with his own eyes. The appellant stated in his statement that during the night of occurrence at about 3-30 a.m., some person under the plan, knocked at the door of drawing room in which Mst. Kalsoom P.W. And deceased Shamaun Masih were sleeping. Shamaun deceased opened the door but before that Mst. Kalsoom P.W. Had gone to wake her father Hameed Masih P.W. Who was sleeping in the courtyard and that when they returned, the deceased was already lying dead. This reproduction from the statement of the appellant clearly reflects his mind about the occurrence. This statement on the part of the appellant clearly involves him in the commission of the crime. The learned counsel for the appellant has pointed out during the arguments certain discrepancies in the statements of Hameed Mashi and Mst. Kalsoom P.Ws. And on very deep scrutiny of the evidence we do not find any such material discrepancies in their statements. Minor discrepancies in the statements of the eye-witnesses here and there are natural because the examination of these witnesses before the trial Court took place after about 2-1/2 years, and secondly, during the trial it appears from evidence that there was a some sort of compromise between the parties but the same did not materialise. The minor discrepancies in the statements of the witnesses might be the result of the aforesaid compromise. But at any rate, learned counsel for the appellant has not been able to demonstrate before us the portion of the evidence of Hameed Masih and Mst. Kalsoom P.Ws. Which destroys the case of the prosecution in any way. The version that it was Mst. Kalsoom P.W. Who had conspired with her male friend to murder her husband, is not substantiated from record. This is just a sort of imaginary plea on the part of the defence without any basis. As stated earlier, Mst. Kalsoom P.W., was living a happy married life with her husband. Learned counsel for the appellant placed heavy reliance on the statement of Dr. Muhammad Rafique P.W. To contend that since the time between death and post-mortem examination was within 12 hours, therefore, according to him, the murder must have taken place in the mid of night somewhere at about 3-30 a.m. This contention of learned counsel is without force for the simple reason that the assessment of time about the occurrence, according to the doctor, is tentative. There is no specific observation of the doctor that the occurrence had taken place at such and such time. Therefore, the observation of the doctor is not at all harmful to the prosecution case. Learned counsel argued that the recovery of Chhuri (Exh. P.1) is not free from doubt because the said recovery was made after about 13 days. He states that the recovery of the weapon of offence was not witnessed by competent witnesses. No independent witnesses were cited as recovery witnesses and only the police officials were produced to prove the recovery of the weapon of offence. The argument of learned counsel is devoid of force because the recovery was made at the pointing out of the appellant and there is no reason to disbelieve the police officials who had witnessed the same.
Learned counsel has drawn our attention to the statement of Mst. Kalsoom P.W. Wherein she has stated that Mst. Shakila after her marriage went along with the appellant and she remained in his house for about two months. On the basis of this statement the learned counsel contended that the motive part of the prosecution story becomes highly doubtful. We do not agree with the learned counsel on the point. The prosecution story as mentioned in the F.I.R., shows that the deceased Shamaun Masih was not willing to send his sister Mst. Shakila with the appellant. Mst.
Shakila might have lived as wife with the appellant for some time and then she might have gone back to her parents' house. From the evidence it appears that Mst. Shakila, the wife of the appellant, was not ready to go with the appellant and that the deceased Shamaun was also not willing to send Mst. Shakila with the appellant. Therefore, there is nothing wrong with the motive part of the prosecution story.
8. The upshot of the above discussion is that the learned trial Court has rightly convicted the appellant under section 302, P.P.C. By placing reliance on the statements of Hameed Masih and Mst. Kalsoom P.Ws. Coupled with the medical evidence and the recovery of weapon of offence. We, therefore, maintain the conviction of the appellant under section 302, P.P.C. However, regarding the sentence, we find some mitigating circumstance in the form of slight doubts in the genuineness of the motive for the commission of crime. In view of this, we are persuaded to award lesser penalty to the appellant. Accordingly, while maintaining the conviction of the appellant under section 302, P.P.C., we alter his sentence of death to imprisonment for life. The sentence of fine is, however, maintained.
The sentence of death imposed upon him is not confirmed.