' ABDUL WAHEED, J.--- Muhammad Ajmal alias Gullo (17) was tried for the murder of Muhammad Younsaf (18) by the Additional Sessions Judge, Jhang who vide his judgment dated 3rd of April, 1986 convicted him under section 302, P.P.C. And sentenced him to death and to pay a fine of Rs,10,000 or in default to undergo R.I.For a further period of two years. He was further directed under section 544-A, Cr.P.C. To pay Rs,10,000 as compensation to the heirs of the deceased or in default to suffer R.I. For a further period of two years. He has filed an appeal against his conviction and sentence. There is also a reference under section 374, Cr.P.C. For confirmation of the sentence of death. This judgment will dispose of the appeal as well as the reference.
2. The occurrence took place on 29th of June, 1985 at 10-00 a.m. In front of the house of Habib Shah P.W.6, father of the deceased, at Mohallah Jogianwala, three furlongs away from Police Station Kotwali, District Jhang. It was reported by Habib Shah P.W.6 vide statement Ex.P.D. On the same date at 11-00 a.m. To A.S.I. Ashiq Hussain P.W.9 at Chowk Saddar where he was present at that time on patrol duty. This place is at a distance of about one furlong from Police Station Kotwali. On the basis of the statement, a case under section 302, P.P.C. Was registered at Police Station Kotwali on the same date at 11-05 a.m. Vide formal F.I.R. Exh.P.D./1 drawn by M.H.C. Ghulam Murtaza Shah P.W.4.
3. The prosecution case briefly was that the deceased had lent to the appellant a sum of Rs,40,000 which was given to him by his father after selling his house. The deceased was demanding the re- payment of the loan but the appellant procrastinated the same. A day before the occurrence, there had occurred an altercation between them on this account.
4. On the day of occurrence, Habib Shah P.W.6 was present in his house long with the deceased. At about 10-00 a.m. There was a knock at the door. As oon as the deceased went out, the appellant who was present outside gave a ,hhuri blow to him on his forehead. Habid Shah P.W.6 rushed outside. The ppellant inflicted three more Chhuri blows on the deceased hitting him on the hest and left forearm. The deceased fell down. Besides Habib Shah P.W. 6, this occurrence was seen by Sardar Ali P.W. 7 and Imam Din (given up as necessary) and Muhmmad Riaz (given up as having been won over) who appended to be passing in the street at that time. Habib Shah and Sardar Ali tarted carrying the deceased in an injured condition in a Tonga to the Civil hospital. On the way when they reached Bhattian Choonaywali, the deceased uccumbed to the injuries.
5. It was alleged that the appellant had attacked the deceased as a sequel of c altercation which had taken place between them a day before the occurrence n the re-payment of the loan.
6. After recording the F.I.R. A.S.I. Ashiq Hussain P.W.9 went to Bhattian hoonaywali where the dead body was lying. He prepared injury statement xh.P.H. And inquest report Exh.P.J. In respect of the dead body and dispatched e same to the mortuary for post-mortem examination under the escort of F.C. Muhammad Aslam P.W.3. He then repaired to the spot and on reaching there collected blood-stained earth vide memo. Exh.P.E. And made it into a sealed arcel. On the same day he raided the house of the appellant and arrested him on there. He was wearing blood-stained Shalwar P.4 and shirt P.S. He took em into possession vide memo Exh.P.F. However, he did not make them into a aled parcel nor sent them to the Chemical Examiner. On 4th of July 1985, the ppellant while in custody got recovered from his house blood-stained Chhuri P.B. Spector Javed Ali Mirza P.W.8 took the same into possession and made it into a ale parcel vide memo Exh.P.G. In the presence of Habib Shah P.W.6 and ardar Ali P.W.7. The blood-stained Chhuri and the blood-stained earth were and stained with human blood by the Chemical Examiner vide his reports xhs.P.L. And P.M. And the Serologist vide his reports Exhs.P.N. And P.O. On the nclusion of the investigation, the appellant was challaned under section 302, P.C.
7. On 29th of June, 1985 at 3-30 p.m. Dr. A.B. Saleem, Medical Officer, 'strict Headquarters Hospital, Jhang performed post-mortem examination on c dead body of the deceased and found the following injuries:
(1) An incised wound 2 c.m. x 0.5 c.m. x bone deep on the left side of forehead 1 c.m. Above the left eyebrow.
(2) A stab wound 1.5 c.m. x 1 c.m. On the left side of the chest 5 c.m. Away from the left nipple. On dissection it was found piercing the walls of chest, upper and lower lobe of left lung and finally into left atrium of heart.
(3) A stab wound 1.5 c.m. x 1 c.m. On the left side of the chest 1 c.m. Below injury No,2. On dissection it was found piercing the walls of the chest, upper and lower lobe of the left lung and finally into the left atrium of heart.
(4) An incised wound 6 c.m. x 2 c.m. x bone deep on the outer side of the left forearm, middle part.
(5) An incised wound 4 c.m. x 1 c.m. x muscle deep on the back of the left upper arm upper part.
8. In the opinion of the Medical Officer, the cause of death was internal and external bleeding due to puncture of heart and shock as a result of injuries Nos.2 and 3 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and had been caused by sharp-edged weapon. The probable interval between the injuries and the death was about 1/2 hour and between the death and the post mortem examination about 5-1/2 hours. Exh.P.A. Is the post-mortem examination report and Exh.P.A./1 and Exh.P.A./2 are the sketches showing the locale of the injuries. The Medical Officer in his cross-examination stated that injuries Nos.1, 4 and 5 were simple in nature and injury No,1 could be caused in a scuffle.
9. The appellant was charged under section 302, P.P.C. To which he pleaded not guilty.
10. The prosecution in suport of its case examined nine witnesses who included Habib Shah P.W.6 and Sardar Ali P.W.7 who deposed to the occurrence and the recoveries effected in this case. Habib Shah P.W.6 also deposed to the motive.
11. The appellant in his statement under section 342, Cr.P.0 denied the prosecution case and the recoveries effected in this case. He raised the following plea:-- "I have been falsely involved in this case. In fact the deceased had attacked me when I was passing in front of his house, we grappled with each other and during the scuffle he sustained injuries. The police has given a wrong twist to the facts of this case during investigation. So many persons appeared as eye-witnesses before the I.O. But dishonestly they have not been cited as eye-witnesses because they corroborated my version. The close relatives of the deceased reside at distant places and have been made witnesses of the occurrence."
12. The conviction of the appellant has been assailed on the grounds that the evidence in support of the motive is unsatisfactory, that the ocular account has been furnished by the witnesses who are related to the deceased and that the plea raised by the appellant was taken by him at the earliest opportunity during investigation. It is further argued that since the motive in this case is shrouded in mystery, the extreme penalty of death is not called for. Learned counsel for the State has controverted these contentions.
13. Habib Shah P.W.6 deposed to the motive. He stated that he sold his house and got a shop for the deceased, his son, for carrying on the business of spare parts. His son, however, sold the shop and gave the amount of Rs,40,000 to the appellant as debt. Subsequently in spite of the demands of the deceased, the appellant did not re-pay the loan. There was exchange of hot words between them and it was for this reason that the appellant committed the murder of the deceased. In cross-examination he stated that the appellant had not executed any receipt acknowledging the debt and further that he did not witness the exchange of hot words between the deceased and the appellant and it was his guess that the appellant had committed the murder of the deceased for the above reason. The statement in cross-examination does not dilute his testimony in examination-inchief, rather it fortifies his veracity and reveals his morality to speak unadulterated truth. No doubt, there is no corroboration of his testimony on the motive, nevertheless it does not smack of a contrivance. Moreover, the appellant while pleading that it was the deceased who attacked him when he was passing in front of his house did not give any reason for the attack.
Some suggestions were put to Habib Shah P.W.6 and Sardar Ali P.W.7 in their cross-examination reflecting on the character of the deceased. They refuted the suggestions. Nothing was brought on record to pursue and sustain those suggestions. Therefore, the statement of Habib Shah P.W.6 on the motive deserves credence.
14. As mentioned above, the ocular account was provided by Habib Shah P.W.6 and Sardar Ali P.W.7.
They deposed that on the day of occurrence at about 10-00 a.m. The appellant knocked at the door of the house of the deceased. As soon as the deceased came out of his house, the appellant gave a Chhuri blow hitting him on his left eye-brow. The appellant inflicted 3/4 more Chhuri blows on the deceased hitting him on the chest and left upper arm. The deceased fell to the ground. The appellant ran away from the spot with the Chhuri. According to them, Imam Din and Riaz also saw this occurrence. They further stated that the deceased was carried to the hospital in an injured condition in a tonga but he expired on the way at Chowk Choona Bhattian.
15. Habib Shah P.W.6 is the father of the deceased. He is a natural witness because the occurrence took place in front of his house. Sardar Ali P.W. 7 also is related to the deceased being the cousin of his father. As stated by him in his cross-examination, his house is only about one hundred yards away from the spot. His presence too at the spot at the time of occurrence, albeit by chance, was not unnatural. Besides, they were ascribed no animus or grudge to falsely depose against the appellant. The appellant in his statement did not completely deny the occurrence. According to him, when he was passing in front of the house of the deceased, the deceased attacked him, they grappled with each other and it was during the scuffle that the deceased sustained the injuries. He gave no explanation as to why he was passing in front of the house of the deceased, why did the deceased attack and grapple with him, how was it that in the scuffle he remained unscathed while the deceased received as many as five incised and stab wounds, two out of which proved fatal and who caused the injuries and with what weapon. The silence of the appellant on these material points speaks loudly that his plea is suppression of facts. According to him, many persons had appeared during investigation in support of his plea. However, none of them was examined at the trial in defence.
16. For the foregoing reasons, the learned trial Court was justified in relying upon the ocular account and holding the appellant guilty of the murder of the deceased. Therefore, the conviction of the appellant under section 302, P.P.C. Is maintained.
17. As regards the sentence, learned counsel for the appellant has argued that the extreme penalty of death is not warranted in this case as the immediate cause of the murder is shrouded in mystry.
According to the evidence on record, there was no hostility between the deceased and the appellant except the bad feelings generated by the failure of the appellant to repay the loan due to the deceased. The appellant acted in a cruel manner inasmuch as he inflicted five incised/stab wounds on the defenceless deceased. In this view of the matter, there is no extenuating circumstance for awarding lesser punishment to the appellant. We, therefore, maintain the sentence of death. However, the sentence of two years' R.I. In default of payment of compensation being in violation of subsection F (2) of section 544-A, Cr.P.C. Is reduced to imprisonment for six months.
18. In the result, this appeal is dismissed with the above modification in the quantum of the imprisonment in default of payment of compensation.
19. The sentence of death awarded to the appellant is confirmed.