' MUHAMMAD RAFIQ TARAR, J.--Muhammad Ashraf (20) son of Ghulam Muhammad, cultivator, resident of Bheni Joyanwali, was tried by the Additional Sessions Judge, Okara, on the allegation that on 13th April, 1983 at Degarwela he committed the murder of his co-villager Maji in the area of Bheni Joyanwali, tehsil Depalpur, district Okara. By judgment dated 7th May, 1986 he was convicted under section 302 P.P.C. And sentenced to death subject to confirmation by this Court plus fine of Rs,10,000. He has appealed and the case is also before us on reference for confirmation of his death sentence. The appeal and the reference are being disposed of by this judgment.
2. The brief facts of the case are that the house of Ashraf accused was close to the house of Maji deceased. Both of them used to graze their cattle in the same area. They quarrelled with each other on two/three occasions. On 12th April, 1983 they again had an altercation, during which Ashraf accused abused the deceased and also slapped him. They were separated by Saeed Ahmad PW, paternal-uncle of the deceased. On 13th April, 1983 at about Peshiwela Sardar All complainant, father of the deceased, Bagh All and Basara (given up PW) were cutting reed-plants when all of a sudden Ashraf accused, armed with a hatchet, came there raising Lalkaras and gave a hatchet blow on the head of the deceased who was sitting nearby to keep watch over his cattle which were grazing there. Sardar Ali complainant, Basara and Bagh All proceeded ahead to rescue the deceased but the accused threw a challenge that whosoever came near would be done away with and took to his heels taking the hatchet with him. The deceased suffered a very severe wound on the head. There was a lot of blood from the wound. He was put on a cot and carried to the Bheni but on the way he breathed his last. Leaving the dead body with Muhammad Saeed, Mahmood and Basara, Sardar All complainant started for the police station. Bashir Ahmad, S.I/SHO, P.S. Mandi Heera Singh, met him on the way at Khola Jemal and he reported the occurrence to him at 7 p.m.
Vide his statement Ex.PA, on the basis of which formal FIR (Ex.PA/1) was recorded at the police station at 9 p.m.
3. After recording the statement of the complainant, the Sub-Inspector reached the spot for investigation. He prepared the injury statement (Ex.PF) and inquest report (Ex.PG/1-Ex.PG/2) of the dead body and despatched it to the mortuary for post-mortem examination. On the following day he secured some blood-stained earth from the spot and made it into a sealed parcel vide memo Ex.PB. On the same day he arrested Ashraf accused who made a disclosure that he could lead to the recovery of hatchet and consequently he led the police to a bush and from there got recovered blood-stained hatchet which was made into a sealed parcel vide memo Ex.PC. After the investigation, the accused was challaned.
4. On 14th April, 1983 at 3 p.m. Dr. Muhammad Afzal Malik, S.M.O., Civil Hospital, Depalpur, conducted the autopsy on the dead body of Maji deceased and found a big cut 12 cm x 1 cm x bone deep obliquely placed on the top of head. Anterior end of the wound was on the left side and posterior one on the right side of middle. Right and left parietal bones were cut and gapped, irregular fracture lines extended forward and outward at both ends involving frontal bone on the front and right parietal bone at the back. Frontal suture close to the anterior end of cut bone was partly gapped. Membranes and brain were cut and injured. In the opinion of the doctor, death was due to shock and haemorrhage resulting from fracture of skull and injury to the brain which was sufficient to cause death in the ordinary course of nature.
5. In support of its case the prosecution examined ten witnesses in all, including Sardar All and Bagh Ali, who furnished the ocular account. The prosecution also relied on the evidence relating to motive and recovery of bloodstained hatchet from the accused.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He admitted having injured the deceased but gave a counter-version of the occurrence as under:- "The PWs are closely related to the deceased and the complainant party. Due to enmity and relationship with the deceased, they have falsely deposed against me. In fact, on the day of occurrence, my sister Rani came to give me meal. Maji deceased caught hold of her, and tried to commit rape upon her. My sister raised alarm. On her alarm, I was attracted to the spot and in grave and sudden provocation and to save the honour of my sister, I inflicted injury on the person of Maji deceased".
' He made a similar statement on oath in disproof of the allegations made against him. He examined his sister Mst. Rani in his defence who supported his plea.
7. After examining the evidence on the record, the trial Judge came to the conclusion that the prosecution version was supported by ocular evidence as well as medical evidence whereas the plea of the accused was most unreasonable, unnatural and improbable. He, therefore, convicted and sentenced him as mentioned above.
8. Learned counsel for the appellant contends that the FIR was lodged at the spot after the preliminary investigation, therefore, the entire prosecution version is doubtful. He further submits that presence of the eye-witnesses at the spot is not at all established and in the circumstances of the case possibility of defence version being true cannot be ruled out, therefore, the appellant is entitled to acquittal. In the alternative, he submits that the motive is shrouded in mystery, only one blow is attributed to the appellant and at the time of occurrence he was in his teens, therefore, it was not a case of capital punishment.
9. The motive alleged by the prosecution was that a day before the occurrence Ashraf appellant abused the deceased who slapped him in return. This version is supported by Saeed Ahmad, PW.3, who claims to have intervened and separated them. There is a note by the Court that despite repeated questions the witness could not tell why the accused abused the deceased. It was a petty quarrel. According to the complainant, the deceased and the appellant had such type of altercation with each other even earlier on two/three occasions. The motive alleged by the prosecution is thus weak and inadequate.
10. At the trial Sardar All and Bagh Ali PWs supported the prosecution version of the occurrence.
Sardar Ali PW is the father of the deceased and Bagh Ali is nephew of aforesaid Sardar Ali. Another eye-witness, namely Basara, first-cousin of Sardar Ali, was not produced. It was contended on behalf of the appellant that if the eye-witnesses who were closely related to the deceased had been present at the spot they must have intervened and tried to apprehend the appellant who was not armed with any firearm but they did nothing, therefore, their presence at the spot appears to be doubtful. It was further pointed out that their statements were discrepant with regard to the time and place where they chalked out a programme for cutting the reed-plants; the draftsman/patwari, on his visit to the place of occurrence, did not find any reed-bush having been cut nor the investigating officer made any mention about the same in his inspection note, and all these facts indicated that nobody was present at the spot for cutting reed-plants and this version was introduced only to support the presence of the so-called eye-witnesses. After carefully scanning the evidence on the record we do not find any substance in these contentions. The appellant inflicted a single blow on the head of the deceased and simultaneously took to his heels, therefore, there was no occasion for the eye-witnesses to intervene or apprehend him. In cross- examination the complainant stated: "When the deceased received injury and raised alarm, we went to him. On our arrival the accused left the deceased and B went away'. Bagh Ali PW said: "We could not fmd time to save the situation as the accused immediately gave a hatchet blow after Lalkara raised by him". The deceased was having a very serious wound on the most vital part of his body. The first and foremost anxiety of the PWs who were closely related to him was to save his life.
Both the eye-witnesses stated that when the deceased received blow, they immediately proceeded towards him. There was no occasion for them to chase the accused leaving the injured unattended who was then in a very precarious condition.
Learned counsel pointed out a few discrepancies in the statements of the eye-witnesses with regard to the time and place where they assembled to chalk out a programme for cutting of reed- plants. The witnesses appeared in the witness-box about three years after the occurrence. They were not expected to remember such minor details after such a long period. For the same reasons, we do not attach any importance to the statement of Muhammad Hanif patwari that no reed-bush was found cut when he visited the place of occurrence. Furthermore, he was a formal witness and seems to have made this concession to oblige the accused. The omission of the investigating officer to make mention of cut bushes in the inspection note also cannot harm the prosecution.
11. It is true that in this case the FIR was not recorded at the police station and in that view of the matter the ordinary presumption is that it was recorded at the spot. If the contention of the learned counsel, that there is no FIR in this case, is accepted even then, in view of the circumstances of the present case, it is not of much consequence. It is the case of .a single accused. The occurrence took place in the broad daylight and prosecution version is supported by two eyewitnesses who had absolutely no motive to falsely implicate the appellant in a heinous crime like murder. Their evidence cannot be thrown away merely for the reason that they are related to the deceased.
There is no dispute over the time and place of occurrence. The defence plea that the deceased caught hold of the sister of the appellant and tried to commit rape upon her and the accused under grave and sudden provocation and to save his sister caused injury to the deceased, was taken at a very belated stage. This version was not taken during the investigation nor was put to the eye-witnesses in cross-examination. The suggestion put to Sardar All complainant rather was that the deceased "lost his life under unknown circumstances". We have endeavoured to reconstruct the scene narrated by the appellant but it is difficult to believe it. The appellant claims to have reached the spot within no time on hearing the alarm raised by his sister. It is not possible to believe that the deceased would catch hold of his sister and try to commit rape on her in the broad daylight when the appellant was grazing his cattle at that distance from where he could reach to rescue her within seconds. In cases of grave and sudden provocation generally the accused, deprived of the power of self control, would cause a large number of injuries. The single injury on the person of the deceased rather suggests that due to the presence of other persons the appellant had no opportunity to repeat the blow and this fact lends support to the presence of the eye-witnesses. In the circumstances, we are satisfied that there is no possibility of the defence version being true and the appellant has been rightly convicted under section 302 of the Pakistan Penal Code.
12. Now we proceed to consider the question of sentence. In his statement dated 24th April, 1986 the appellant mentioned his age as 20 yeaRs, The occurrence took place on 13th April, 1983, meaning thereby that at the time of occurrence he was 17 years of age. He gave only one blow to the deceased which unfortunately proved fatal. We have already observed that the motive alleged by the prosecution is inadequate. The real motive for the occurrence seems shrouded in mystery. In the circumstances, we feel inclined to the view that it was not a case of capital punishment, therefore, while maintaining the conviction of the appellant under section 302 P.P.C. We reduce his sentence to imprisonment for life and a fine a Rs,10,000. Which shall be paid as compensation to the legal heirs of the deceased. In default of payment of fine the appellant shall undergo further rigorous imprisonment for three years, as ordered by the trial Court. With the above modification in the sentence, the appeal is dismissed.
' The death sentence is not confirmed.