DASHIRUDDIN AHMAD, J.-Ishaq (24) was tried for the murder of Sarja on May 29, 1967, by the learned Sessions Judge, Sahiwal, who convicted him under section 302, P. P. C. And sentenced him to suffer death.
2. The condemned person has appealed and the case is also before us on reference under section 374, Cr. P. Code, for confirmation of the death sentence. We propose to dispose of the appeal and the refer-rice by a single judgment.
3. The prosecution case, shortly stated, is that on the eventful day at about. Sunset, the appellant fatally assaulted the deceased inside the ihata of his father in Jhugian Marok by means of a hatchet with the result that the unfortunate man died at the spot. Sher Muhammad, Muhammad Nawaz, Ghumman, Pir Muhammad Anwar and Allahditta witnessed the occurrence.
The motive for the murder was the suspicion that the deceased prosecuted a love intrigue with the sister of the appellant.
4. Leaving Muhammad Nawaz and others to guard the dead body, Sher Muhammad, a brother of the deceased, proceeded to Hujra Police Station, seven miles from the scene of the tragedy, and reaching there at 9-30 p.m: lodged the report Exh. P. A.
5. After scribing the report, A. S. I. Umar Hayat (P. W. 12) proceeded to the spot. He reached there at 12-15 a.m. The dead body of Sarja was lying in the ihata of the father of the appellant. The Investigating Officer prepared the injury-sheet and the inquest report and then despatched the dead body to the mortuary for post-mortem examination. He collected blood-stained earth from the spot and sealed it into a parcel. On May 30, 1967, Muhammad Alam Lambardar produced the appellant before the Investigating Officer who removed blood--stained ,shirt, Exh. P. 2 and chaddar, Exh. P. 3 from his person and sealed the same into a parcel. On the same day, the appellant led to the recovery of blood-stained hatchet, Exh. P. 1, from his residential kotha, which was taken into possession and sealed into a parcel. Zubair (P. W. 9) and Sher Muhammad son of Hayat (not produced) witnessed the recoveries besides the Investigating Officer. The appellant was arrested on 30-5-1967.
6. Dr. Aftab Ahmad (P. W. 1) performed the post-mortem examination on the dead body of Sarja deceased on May 30, 1967 at 6-00 p.m., and found the following injuries: -
(1) An incised wound 3 >" in diameter on the posterior part of the right side of the head, a flap of scalp along with parietal and occipital bones was -- raised. Brain membrane and the brain were cut underneath.
(2) An incised wound 1" x 1", a flap of scalp raised on the posterior part of left side of head, 2" behind the left car.
(3) A V-shaped incised wound with each limb 5" and 31' on the back of head, and the upper part of back of neck, right side occipital and right mastoid bones were cut underneath. The membrane and the brain were cut underneath the left limb:
(4) An incised wound 5" x 1--," on the upper part of left side of neck, angle of mandible and second cervical vertebra were cut. All the blood vessels in the left side of the neck were cut.
(5) A n incised wound 4" x 1--" on the left side of neck, just below injury No. 4, third cervical vertebra was cut.
(6) An incised wound 1 -- x 1/6" skin deep on the back of the left thumb.
(7) Index finger of the left hand was cut --" from its base.
(8) An incised wound --" x 1/6", skin deep, on the back of middle finger of left hand, 1" below its base.
The cause of death, according to the doctor, was shock and haemorrhage resulting from injuries Nos. 1, 3, 4 and 5, which were sufficient to cause death, collectively and individually, in the ordinary course of nature.
7. The defence of the appellant was a bare denial. He asserted that the case against him was fabricated at the instance of Pir Anwar Shah, but did not produce any evidence in his defence.
At the trial Sher Muhammad (P. W. 2), Pir Muhammad (P. W, 3), Allahditta (P. W. 10) and Ghumman (P. W. 11) furnished direct evidence. The gist of their evidence is that they were present in the ihata of the father of Ishaq at Jhugian Marok when the appellant attacked the deceased with the hatchet, Exh. P. 1, causing him numerous injuries of which Sarja died at the spot. Sher Muhammad is a brother of the appellant. It is no doubt interested, but is certainly not inimical towards the appellant. It is in evidence that six months prior to the occurrence, under consideration, Sarja had shifted from village Nadha Kamboh to Jhugian Marok. Sher Muhammad deposed that Sarja fell out with his father and shifted to the neighbouring village. This is borne out from the statement of Imam Din (P. W. 7). He stated in cross-examination that the deceased had quarrelled with his brother and left the village. The discrepancy is too minor .To be taken notice of. However, it is immaterial whether Sher Muhammad was sent by his father or had gone of his own to persuade the deceased to return to the village. Sher Muhammad learnt of the presence of the deceased in the ihata of Sardata, where Pir Muhammad Anwar had arrived. Sher Muhammad accompanied by Muhammad Nawaz (not produced) went to the ihata of the father of the appellant. Pir Muhammad Anwar was sitting on a cot. Sarja deceased together with Allahditta and Ghumman P. Ws. Were sitting on a mat. Suddenly Ishaq appellant entered the lhata through the main gate armed with hatchet, Exh. D. 1, and gave a violent blow on the head of Sarja who fell down on the ground. Sher Muhammad and others raised an alarm. The appellant, however, succeeded in giving 7 or 8 injuries with the hatchet to the deceased. Sher Muhammad mentioned in his report to the police that the appellant gave 3 or 4 blows to the deceased by means of a hatchet. Sher Muhammad deposed at the trial that the deceased was given 7 or 8 injuries. The inconsistency is not such as to affect the prosecution case on merits. Similarly, it is not material whether at the relevant time the deceased lived in the kotha of Khushi or Sultan at Jhugian Marok. The deceased received injuries on his left hand, but Sher Muhammad said in his statement, at the trial, that Sarja was injured on the finger of the right hand. We do not attach any importance to this discrepancy which is not material. Pir Muhammad Anwar, Allahditta and Ghumman fully corroborated the prosecution story as regards the actual occurrence. Pir Muhammad Anwar had come from village Badri Dass to Jhugian (blarok the same day. Allahditta and Ghumman had met him at Badri Dass also. Pir Muhammad Anwar had been invited to a meal by the mother of the appellant. Since Allahditta and Ghumman had gone to the house of one Raheem Bakhsh to see him, they were also invited by the mother of the appellant. Pir Muhammad Anwar did not say so in his statement before the police. He stated therein that only Sarja had gone to the house of Mst. Nur Sain for a meal. Pir Muhammad Anwar was unable to say on what part of the body of the deceased, the appellant caused the injuries. The witness gave the number of the injuries as one or two. The attack on the deceased was so sudden that the witnesses were taken by complete surprise and if some of them made a mistake about the actual number of blows given or injuries inflicted, it is under standable. Pir Muhammad Anwar is in no way proved to inimically disposed towards the appellant. He is the Pir of the father of Ishaq and was invited to a meal by the mother of the appellant. There is not a scintilla of evidence that Pir Muhammad Anwar had a liaison with Mst. Bakhan, a sister of the appellant and out of rivalry he killed Sarja or got him killed and then involved the appellant in the case falsely. Pir Muhammad Anwar got so much frightened on seeing the occurrence that he immediately went to the house of Aslam at Janpur, from where he was called by the police for a statement. Allahditta and Ghumman both are the disciples of Piri Muhammad Anwar, but that, by itself, is wholly in sufficient to come to a finding that they decided to depose falsely against the appellant at the instance of their spiritual leader. A discrepancy here or a discrepancy there in the statements of witnesses is not sufficient to discard their evidence or throw out the prosecution case. There are discrepancies of truth as well as of falsehood, but in the instant case, the more we read the evidence, the more we get convinced that Allahditta and Ghumman are truthful witnesses. We believe the ocular evidence and proceed to act oil it.
9. The recovery of blood-stained garments from the person of the appellant and the production of blood-stained hatchet. Exh. P. 1, by Ishaq from his kotha is sufficiently proved by the statements of Zubair and the Investigating Officer. The prosecution did not examine Sher Muhammad son of Hayat as a witness. There is a discrepancy about the exact time of recoveries, but that is probably due to the lapse of time. The trial Judge believed the evidence of recoveries and we have no reasons to distrust it. The clothes of the appellant as well as the weapon of offence were found by the Serologist to be stained with human blood.
10. There is thus overwhelming evidence connecting the appellant with the commission of the crime. The deceased was done to death in the ihata of the father of the appellant shortly before sunset. It cannot be held that nobody saw the occurrence. It is not the defence case that the deceased was put to death by some unknown thieves during the night. The omission on the part, of the appellant to call his family members, particularly his father in defence, if the occurrence had not taken place in the manner alleged by the prosecution is significant.
11. For all these reasons, we maintain the conviction of Ishaq under section 302, P. P. C. As regards the sentence, we are of the view that the appellant committed the crime from a sense of honour, as the deceased prosecuted a love intrigue with Mst. Bakhan, a sister of the appellant. In the circumstances, a we feel that the lesser punishment provided under section 302, P. P. C. Would be the appropriate punishment in this case. Accordingly, we replace the sentence of death with transportation for life. The appeal is accepted to this extent only. The death sentence is not confirmed.