' SARDAR MUHAMMAD DOGAR, J.--- Khalid, aged 18 years, was tried by Additional Sessions Judge, Faisalabad, under section 449, P.P.C. For having trespassed into the house of the complainant during night and under section 302, P.P.C. For having murdered Mst. Kaniz, at 1 a.m. During the night between 16/17th of May, 1984, in the house of her father Rehmat Ali (P.W.6) in Thatha Salooka Dakhli, Chak No, 633/GB, at a distance of eight miles from Police Station Lundianwala.
' The learned trial Judge held him guilty under sections 449 and 302, P.P.C., convicted him accordingly vide judgment, dated 16-3-1986 and awarded sentence as follows:-- for two years. He has also been ordered to pay Rs,4,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C.
Under section 449, P.P.C: Sentenced to undergo seven years' R.I., plus to pay a fine of Rs,2,000, in default whereof to undergo R.I. For one year.
2. The convict has filed appeal. The learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.
3. F.I.R. (Exh.P.C./1) was registered at the police station by Allah Ditta, M.H.C. (P.W.3) at 3-30 a.m. On 17-5-1984, on receipt of statement (Exh.P.C.) of Rehmat Ali (P.W.6), recorded by Muhammad Zaman, S.I./S.H.O. (P.W.8), at 315 a.m. On 17-5-1984 at Chakoo Morr, two miles away from the police station.
' According to F.I.R., the complainant had five daughters. He had engaged his deceased daughter with Khalid, his nephew (appellant), four/five years prior to the occurrence. Since Khalid had developed bad habits, the comlainant refused to give the hand of his daughter to him. He settled the marriage of his deceased daughter with Fazil son of Shamma and fixed coming 15th of the month of Jaith. Khalid felt aggrieved due to the break of his engagement and was annoyed. He came to the complainant 2/3 days prior to the occurrence and told him that if the hand of Mst.
Kaniz was not given to him, he will murder her.
' On the night of occurrence, the complainant was sleeping in his house alongwith his wife, Mst.
Sakeena (given up P.W.), Mst. Bilqees (P.W.7), his daughter, and Mst. Kaniz, his deceased daughter. It was a moonlit night and a lantern was also burning. The appellant entered the courtyard armed with a Kulhari after scaling over the wall at 1 a.m. And gave 2/3 Kulhari blows on the neck of Mst.
Kaniz while asleep. The complainant, his daughter Bilqees and wife Mst. Sakina tried to catch him, but he succeeded in running away. Mst. Kaniz died at the spot.
4. Muhammad Zaman, S.I. After recording the statement (Exh.P.C.) reached the spot. After preparing injury statement (Exh.P.J.) and inquest report (Exh.P.K.), he despatched the dead body for post-mortem examination. He collected blood-stained earth from the spot, vide memo. Exh.P.E. He also took into possession blood-stained pillow, bed sheet and Charpoy vide memo. Exh.P.F.
' The appellant appeared before him on 18-5-1984, and produced hatchet (P.10). He was arrested and the hatchet was taken into possession vide memo. Exh.P.G. Blood-stained shirt (P.11) worn by the appellant at the time of his arrest was also taken into possession vide memo. Exh.P.H.
' After completion of necessary investigation the challan was put to Court.
5. Statements of eight P.Ws. Were recorded at the trial. Positive reports about the stains of blood on clothes, earth etc. From the offices of the Chemical Examiner and the Serologist were also tendered in evidence.
6. Dr. Muhammad Afzal, who had performed autopsy on 17-5-1984 at 8 a.m. Appeared as P.W.1. He had noted following injuries on the body of the deceased:---
(1) An incised wound, 9 c.m. x 2 c.m. x bone underneath cut, 3 c.m. Below left ear.
(2) An incised wound, 10 c.m. x 3.5 c.m. ,x bone underneath cut, just below injury No,1 .
(3) An incised wound 9 c.m. x 4 c.m. x bone underneath cut, just below injury No,2.
On internal examination, he had found arteries, veins and nerves cut, muscles, cervical, 3rd and 4th vertebrae were found cut.
' According to his opinion, the deceased had died due to shock and haemorrhage, resulting from injuries 1 to 3. The injuries were opined to have been caused by a sharp-edged weapon. Probable time between injuries and death was opined to be half an hour and between death and post- mortem was opined to be 12 hours.
7. Rehmat Ali complainant while appearing as P.W.6 repeated the facts given by him in the F.I.R.
During cross-examination, he stated that Khalid was his nephew and was 18 years of age at the time of occurrence. He gave out that one of his daughter, Mst. Fatima, was married and was living at Kamalia while his other daughter Mst. Naziran had gone to see her on the day of occurrence. He conceded that the appellant was not involved in any criminal case but added that he used to commit theft of fodder etc. He denied the suggestion that Mst. Bilqees was engaged with one Sharfoo Khichi or that her Nikah had also been performed. He also denied the suggestion that he had thereafter performed the marriage of Mst. Bilqees with one Allah Ditta. The suggestion that Mst.
Bilqees was engaged once with Arif was also denied by him. He conceded that Anwar P.W. Was son of the sister of his wife. He denied that Sarang P.W. Was related to Fazil, to whom the deceased was engaged. He stated that after the murder, almost all villagers were attracted to his house on hearing hue and cries. He denied the suggestion that he had told Sarang and other co-villagers that somebody had murdered Mst. Kaniz, or that he had only suspicion against the appellant. He added that the marriage of the deceased was due to fall 11 days after the occurrence. Acccrding to him, it was 15th night of the moon. In answer to another question, he stated that the report was written by the police in Chak No, 633/GB after recording the statements of his daughter, wife and after examining the injuries on the body of the deceased. He denied the suggestion that Nikah of Khalid appellant had been performed with the deceased and that he had named the appellant as accused merely on account of suspicion.
' Mst. Bilqees (P.W.7), daughter of the complainant and sister of the deceased, corroborated the statement made by the complainant. During cross-examination, she denied the suggestion that her father had told the villagers on query that somebody had murdered the deceased. She denied the suggestion that Nikah of the deceased had been performed with the appellant by Maulvi Mansha. She denied that she was engaged to Sarfa or was married to Nawaz, or that later was engaged to Arif, her cousin. She denied the suggestion that her deceased sister had illicit relation with Maulvi Manzur, a co-villager. She stated that at the time of occurrence, they were talking about the marriage matters and purchase of goods in that regard.
' Sarang (P.W.5) deposed about having witnessed the recoveries of bloodstained earth from the spot, cover of pillow and cot, on which the deceased was murdered. He also claimed to have witnessed the production of hatchet (P.10) by the appellant and taking into possession of his shirt (P.11) by the police. During cross-examination, he conceded that he did not own any land in Chak No, 633/GB and that there were three Lambardars in the village. He stated that police had come on a wagon on the spot and the complainant was with the police. He denied the suggestion that he had made a false statement.
' Muhammad Zaman, S.I. (P.W.8), gave the account of registration of the case, the investigation conducted by him, the arrest of the appellant and the recoveries effected. During cross- examination, he stated that the complainant had ,met him at Chakoo Morr when he was on patrol duty. He expressed lack of knowledge about the existence of three Lambardars in the village. He denied that it had come to his notice during investigation that the complainant used to engage his daughters after obtaining money and then used to break the engagement and engage them with others for money.
' The statements of the remaining P.Ws. More or less are of formal nature.
8. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case as a whole. He denied that he had produced Kulhari or that his shirt stained with blood had been taken into possession by the police. He conceded that he was nephew of the complainant and cousin of the deceased. He claimed that he was engaged with the deceased and his Nikah had also been performed with her. Although he opted to produce defence but later refused to do the same.
9. Learned counsel for the appellant after having taken us through the evidence contended that the F.I.R. Was lodged after preliminary investigations and the occurrence does not appear to have taken place at the time it is alleged, that the eye-witnesses do not appear to have witnessed the occurrence and have apparently made statements because of suspicion. The evidence of recovery has also been dubbed by him to the discrepant and unreliable. Lastly, learned counsel submitted that in case the convictions of the appellant are maintained, the sentence of death awarded to him for having committed the murder, be altered to imprisonment for life, in view of the compromise arrived at between the parties.
10. Learned counsel for the State defended the judgment of the trial Court and submitted that the ocular account has been deposed to by natural witnesses, the evidence of motive undeniably stands admitted and there is hardly any sufficient ground to discard the evidence of recovery of weapon of offence.
11. The occurrence had taken place in the house of Rehmat Ali complainant (P.W.6). Since the occurrence had taken place during night, the inmates of the house could be the only natural witnesses. It is too much to expect that persons other than the residents of the house would be present at that hour of the night unless someone had come to stay there for the night. Their testimonies, therefore, cannot be down-graded merely for the reason that they are residents of the house and are related to the deceased.
' Apart from that Rehmat Ali is real paternal-uncle of the appellant. Mst. Bilqees P.W. Is his first cousin. There is hardly anything on record to consider that Rehmat Ali would have involved falsely his own real nephew in a case warranting death sentence merely on suspicion, nor it is expected that Mst. Bilqees P.W. Would have made statement against the appellant, who is son of her real paternal-uncle.
' There could be no doubt about the identification of the culprit even. Firstly, for the reason that light was available and it was a moonlit night also (it was 15th of the lunar month) and secondly, for the reason that the appellant was too well-known to both the witnesses, being their close relative. They could not have made any mistake in identifying him.
12. The ocular account finds corroboration from the evidence of motive as well. In that, the stance taken by the complainant that he had engaged his deceased daughter with the appellant but had later cancelled the same and had not only betrothed her to other person but also had fixed the date of her marriage, finds corroboration from the statement made by the appellant as well. In that, he not only did not deny specifically about his engagement with the deceased and fixation of her marriage with Fazil, but also took up the stand that his Nikah with the deceased had also been performed. He failed, however, to prove the stance that the Nikah of the deceased had been performed with him by producing Nikahnama or Nikahkhawan.
' In the above circumstances, the appellant would have been feeling aggrieved and annoyed of the programme made for the marriage of his fiancee with someone else. In the circumstances, even if the complainant had not specifically alleged this motive, it could be assumed that the appellant would have that motive.
13. The argument of the- learned counsel that the F.I.R. Was lodged after deliberations and consultations is mainly based on the opinion expressed by the doctor about the duration of injuries.
In that, he had mentioned 12 hours time that elapsed between death and post-mortem. The post- mortem was performed at 8 a.m. On 17-5-1984. Learned counsel by calculation of timings advanced the argument that the occurrence in that case should be deemed to have taken place at 8 p.m. On 16-5-1984.
' Learned counsel failed to take into account the fact that the doctor had not mentioned the elapsed time to be 12 hours. He had mentioned the probable time between death and post- mortem 'to be within 12 hours'. By this, he could mean four hours, six hours or eight hours. By such calculation it can easily be assumed that the occurrence could have taken place at 1 a.m. As stated by the eye-witnesses because in that case the duration of the period between death and post-mortem would be seven hours, i,e, within 12 hours from post-mortem.
' Still another point which has led us to come to that conclusion is that if the occurrence had taken place at 8 p.m., as the learned counsel for the appellant wanted us to believe, then there could have been no reason for the eye-witnesses to have given the time of occurrence as 1 a.m. During midnight. The time of 8 p.m. Occurrence would have been more suitable to the prosecution. Neither the complainant nor the Police Officer registering the case would have changed the time to create inconveniences for them.
' Nothing else particular was pointed out by the learned counsel in support of the argument that the F.I.R. Was lodged after consultations and deliberations.
14. We have examined the point raised by the learned counsel in support of the argument that the evidence of recovery of blood-stained hatchet (P.10) and blood-stained shirt (P.11) of the appellant was not worth believing. In that, the particular piece of evidence he pointed out was that Saroo (Sarang P.W.5), who witnessed the recoveries, made statement during cross-examination giving impression that the blood-stained hatchet and blood-stained shirt of the accused were taken into possession by the police at the time the blood-stained cot etc. Were taken into possession by the Investigating Officer from the spot. Bloodstained cot etc. Were taken into possession on the day of occurrence, i,e, 17-5-1984.
' Apart from the fact that there are on record recovery memos. (Exhs.P.G. And P.H.) prepared on 18- 5-1984, and attested by Sarang P.W. Showing the taking into possession of Kulhari (P.10) on production by the appellant on that day and of his shirt, which he was wearing at the time of appearing before Investigating Officer, another important aspect, which has weighed with us in this regard is, that the appellant himself while denying the production of hatchet and shirt did not claim that he had appeared before the police on 17-5-1984. During his statement under section 342, Cr.P.C. He was specifically asked the question. It is in evidence that blood-stained hatchet (P.10) was produced by you while you surrendered yourself before the Police Officer on 18-5-1984?" The answer be gave was, 'I did not produce blood-stained hatchet P.10 before the police'. Had he appeared before the police on 17-5-1984 or had he been taken into custody on 17-5-1984 instead of 18-5-1984, he would have contradicted the fact of having surrendered himself before the police on 18-5-1984; the way, he denied the production of blood-stined hatchet. In the circumstances, we think that the discrepant statement made by Sarang P.W. About taking into possession of the articles at one and the same time seems to be a genuine mistake. The statement of the Investigating Officer in this regard is in line with the prosecution case that these articles were produced by the appellant while surrendering himself on 18-5-1984.
15. For all the reasons noted above, we have no doubt in holding that the prosecution has succeeded in proving the case against the appellant. The convictions of the appellant under sections 302 and 449, P.P.C. Are, therefore, maintained.
16. The sentence of death awarded to the appellant under section 302, P.P.C. Is, however, altered to imprisonment for life, in view of the compromise entered into between the parties. The sentence of fine of Rs,5,000 on that count is also reduced to Rs,1,000 for the same reason. In default of payment of fine, appellant shall suffer R.I. For three months. Since the complainant has forgiven the appellant, the direction for payment of compensation of Rs,4,000 to the heirs of the deceased is set aside. The sentence of seven years' R.I. For conviction under section 449, P.P.C. Is maintained. The fine of Rs,2,000 awarded in that connection is reduced to Rs,500 in default whereof he will undergo R.I. For three months. Both the sentences shall run concurrently. Benefit of the provisions of section 382-B, Cr.P.C. Shall be given to him.
Sentence altered.