' The appellant Hayat Ullah son of Amir Abdullah Khan was tried by the learned Additional Sessions Judge at Bhakkar on the charge under section 302, P.P.C. For having committed the murder of Saad Ullah. Vide judgment dated 12th of November, 1983, the learned trial Judge found the appellant guilty on the aforesaid charge, and accordingly convicted and sentenced him to undergo life imprisonment, and to pay a fine of Rs,five thousand, or in default thereof, to suffer rigorous imprisonment for a term of two years. Aggrieved by his conviction and sentences, the appellant has preferred this appeal, and the complainant has also filed a revision petition praying therein that the sentence of life imprisonment awarded to the appellant he enhanced to death, and a direction also be issued to the appellant to pay the compensation. This judgment shall dispose of the appeal as well as the Revision.
2. The unfortunate occurrence resulting into the death of Saad Ullah deceased took place at 1-00 p.m. On 24-4-1982 in the house of Muhammad Azeem Khan in Chak No,2 Rakh Dulay Wala in District Bhakkar situated at a distance of 35 kilometres from Police Station Darya Khan. The first information report Exh.P.F. Was lodged by P.W.9 Dost Muhammad father of the deceased at 3-10 p.m. At the police station, and the same was recorded by P.W.12 Mushtaq Ahmad Sub-Inspector Police Station Darya Khan.
3. In brief,' the prosecution case as stated in the F.I.R. Was that on 22-4-1982 the appellant gave beating to her grandmother namely Mst. Bibo over a domestic dispute, and she out of resentment left the house of the appellant, and started living with Muhammad Azeem Khan a cousin of her deceased husband. On 23-4-1982 Amir Abdullah son of Mst. Bibo and father of the appellant went to the house of Muhammad Azeem to bring back Mst. Bibo. Azeem Khan did not send her back with Amir Abdullah because of the ill-treatment meted out to her by the appellant. On the fateful day at about 1-00 p.m. The appellant went to the house of Azeem Khan to bring back Mst. Bibo, and at that time, deceased Saad Ullah son of the cousin Azeem Khan i,e,, the son of the complainant was also present in the house of Azeem Khan. Since, Azeem Khan was absent, therefore Saad Ullah deceased restrained the appellant from taking Mst. Bibo with him. The appellant caught hold of Mst. Bibo .To take her with him, but the deceased intervened, and told the appellant, that since Azeem Khan was not present in the house, therefore, she could not he sent with him. The appellant was infuriated and brought out a knife, and inflicted a blow with the same on the chest of the deceased, who fell down, and succumbed to his injury at the spot.
4. On 25-4-1982 Dr. S.M. Rafi Ullah, Senior Medical Officer conducted the post-mortem examination on the dead body of the deceased, and noticed the following injury on his person:-
(1) A stab wound over the left side of the chest 6 c.m. To the left nipple and in its line 2 x 3/4 c.m.
Into going deep into the chest cavity in the fourth intercostal space.
' Cause of death in the opinion of the doctor was hemorrhage and shock resulting from injury No,1 which was sufficient in the ordinary course of nature to cause death.
5. In Court, a suggestion was given to the doctor that the injury had been caused with a sickle and not with knife, but this suggestion was denied with reasonable explanation.
6. On 29-4-1982, the appellant was arrested, on the same day the appellant while in custody led the police and got recovered a blood-stained knife P.4 from his residential house, and the same was taken into possession vide Memo Exh.P.D. Attested by Khuda Yar P.W.7 and uncle of the deceased, Mushtaq Ahmed P.W.12 and Abdul Rashid (not produced).
7. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Munawar Khan P.W.10 a brother of the deceased and Ata Muhammad P.W.11 whose sister is married to the brother of the deceased. In addition to the ocular testimony, the prosecution also placed reliance upon the recovery of blood-stained knife as corroborative evidence.
8. With the assistance of the learned counsel for appellant and, the complainant, I have carefully gone through the entire record, and I have also heard the learned counsel at length.
9. It was vehemently argued by the learned counsel for the appellant that both the eye-witnesses in this case were closely related to the deceased, and the natural witnesses i,e,, the inmates of the house were not produced by the prosecution, therefore, an adverse inference should be drawn against the prosecution, because it has withheld the best possible evidence.
10. Learned counsel further argued that, in fact, the deceased was killed by Azeem Khan and his family members, as they suspected the deceased of having illicit liaison with Anar Bibi a widow daughter of Azeem Khan, and the appellant had been substituted by the complainant on account of strained family relations. A careful perusal of the record shows that this was never put to any of the eyewitnesses, no suggestion whatsoever on these lines was given to the P.Ws. Even the suggestion for strained relations between the family of Azeem Khan and that of the appellant was also not given to any of the witnesses. On the other hand, the suggestion given to P.W.10 indicated that the appellant was present at the time of occurrence, and was a party to the fight in which the deceased was injured. Vague suggestion was given to P.W.10 about the illicit liaison, but without naming Anar Bibi. In this view of the matter, the defence has not been able to substantiate its case.
11. The learned counsel for the appellant also contended, that both the witnesses were chance witnesses and thus no reliance could be placed on their testimony. Munawar Khan P.W.10 was in fact proceeding to Dullawala for making certain purchases, and enroute he opted to visit the house of Azeem Khan. The metalled road to Dullawala is situated at a distance of 80 Karams from the house of Azeem Khan. It was further brought on the record, that the house of P.W.10 Munawar Khan is situated at a distance of 67 Karams to the east of the house of Azeem Khan. According to the witness he was passing by the house of Azeem Khan, when he saw the appellant and the deceased grappling with each other. Dullawala is also towards cast of the house of the witness, it is therefore, obvious, that while going to Dullawala, house of Azeem Khan falls in the way, therefore, it is obvious that there was nothing unusual to pay a visit to the house of his uncle i,e, Azeem Khan, while proceeding towards Dullawala.
12. P.W.9 Dost Muhamniad deposed, that he had taken land on lease towards the east of the house of Azeem Khan. P.W.11 Ata Muhammad cultivated the said land, and had come to harvest the crop.
According to P.W.9, house of Ata Muhammad P.W.11 was at a distance of 2/3 furlongs from the place of occurrence. Record further reveals that P.W.11 is a tenant of Azeem Khan although the land belongs to the wife of Azeem Khan. P.W.11 himself deposed that his land was adjacent to the house of Azecm Khan, he further deposed that he did not know whether the land belonged to Azeem Khan or his wife. Statements of P.Ws. 9, 10 and 11 clearly show that Ata Muhammad was cultivating the land of Azeem Khan in the vicinity, and in connection with the harvesting of crop, he was present near the house of Azeem Khan when he saw the occurrence. He further explained that he had taken water from the hand pump installed in the house of Azeem Khan and was sitting there alongwith Munawar Khan when the appellant arrived, and the occurrence took place.
13. After careful consideration of all the facts of this case, I am of the view, that P.W.11 Ata Muhammad was a tenant of Azecm Khan, and was harvesting the land of Azeem Khan near his house where the occurrence took place. He being a tenant could have been present there, and there was nothing odd about his visit to the house of his landlord Muhammad Azeem Khan to take water. Thus, I hold that both the eye-witnesses were present and had seen the occurrence.
14. The defence relied upon the Khasra Girdawari Exh.D.F. According to which, the land was in self- occupation of Mst. Aisha wife of Azeem Khan. This entry does not help the defence at all, because Aisha alone could not harvest the land without the assistance of the male. Ata Muhammad had no motive to falsely implicate the appellant, and it is not unusual if he cultivates the said land under the supervision of Mst. Aisha wife of Azeem Khan and gets Bitai.
15. Learned counsel for the appellant further argued that according to the prosecution story, the deceased had gone to the house of Azeem Khan with his child so that the child could play, but his own house was nearer, and he could have gone there to hand over the child to his own wife. In cross-examination P.Ws.9 and 10 deposed that womenfolk of the house were busy in harvesting the crop. In this view of the matter, there was nothing odd for the deceased to have taken his minor son with him to the house of Azeem Khan, because the womenfolk of his house were not present in his house as stated above.
16. It was further contended by the learned counsel for the appellant that two wives and a daughter of Azcem Khan were admittedly present in the house, where the occurrence took place, and the Investigating Officer did not make them to join the investigation, nor they were produced therefore, the prosecution story was highly doubtful. The contention has no force, because Azeem Khan was related to both sides. It is natural that he may not have desired to take side of either party, and that is why, he did not let his womenfolk to do so. Hence, it cannot be said that the prosecution has withheld the best possible evidence.
17. Learned counsel also criticized the recovery of knife and argued that P.W.7 Khuda Yar was a close relation and the statement of the witness of recovery was discrepant as to the time and position of the shutters of the residential rooms from where the knife was recovered. I have gone through the statement of the recovery witness and that of the Investigating Officer. The cumulative effect of their evidence is that there is nothing wrong with the recovery. The Investigating Officer could not be considered to be inimical to the appellant so as to plant the false recovery on him.
Hence, this contention has no force, and the same is repelled.
18. Upshot of the above discussion is that prosecution has proved its case beyond any reasonable doubt against the appellant. Hence, this appeal must fail, E and is dismissed accordingly.
Conviction and sentences of the appellant are maintained.
19. Adverting to the revision petition seeking enhancement of the sentence from life imprisonment to death. The occurrence was sudden, and had taken place over Mst. Bibo grandmother of the appellant. Only a single blow was inflicted which proved fatal. In this view of the matter, the lesser penalty was justifiably awarded by the learned trial Judge, and the same does not warrant interference by this Court. Accordingly, the revision petition is also dismissed.
Appeal and .