' Saeed appellant was convicted under sections 302 and 452, P.P.C. And respectively sentenced to death and a fine of Rs,10,000 or in default thereof to six months' R.I. As well as to seven years' R.I. And a fine of Rs,5,000, in default whereof to six months' R.I. By the learned Sessions Judge, Okara, vide judgment, dated 7-4-1986. He has come up in appeal (Criminal Appeal No,25/J of 1986) and the case is also before us for confirmation of death sentence under section 374, Cr.P.C. (Murder Reference No,164 of 1986).
2. The occurrence took place on the night intervening 7/8-4-1978 at the house of Noor Muhammad deceased in village Hyderabad, at a distance of four and a half miles from Police Station Haveli, District Sahiwal (now Okara). Muhammad Sadiq complainant (P.W.7) reached the police station and F.I.R. (Exh.P.C.) was recorded at 6-10 a.m. On 8-4-1978 by Muhammad Abbas, S.H.O. (P.W.9). The version given was that Mst. Rani (given up P.W.), the wife of the appellant, was living with her brother Noor Muhammad deceased alongwith her son Muhammad Yar (P.W.13) aged 12/13 years and daughter Mst. Khurshid Bibi due to estrangement with her husband. Mst. Khurshid Bibi was married to Manzoor Ahmad, the son of the deceased, by her mother Mst. Rani about 8/9 months back to which the deceased was not agreeable as he wanted to marry his daughter somewhere else. The story proceeds that at the fateful night the complainant was sleeping in the courtyard and so were Noor Muhammad deceased, his wife Mst. Amir Mai and Mst. Rani and a lantern was on.
The complainant got up on dog bark and so did Mst. Rani. The appellant raised a Lalkara that he would not leave Noor Muhammad deceased alive as he had married Mst. Khurshid Bibi with his son. On this alarm Ali Ahmad also reached. The appellant fired his .12 bore pistol at Noor Muhammad who was sleeping and he expired at the spot. Nearby Ahmad, Saee and Hussain, the relatives of the appellant, were also standing raising Lalkara. The appellant took away his son Muhammad Yar as well. While leaving, three shots had also been fired in the air.
3. Muhammad Abbas, S.H.O. (P.W.9), after recording the F.I.R., reached the spot. He prepared injury statement and inquest report (Exh.P.J.) and sent the dead body for post-mortem examination. He inspected the spot and secured one crime empty (Exh.P.1) vide memo. Exh.P.D. And threF, crime empties lying at a distance of sixty feet from the dead body vide memo. Exh.P.F. As well as the lantern (P.2) vide memo. Exh.P.E. And sealed the empties into separate parcels. He also recovered quilt (P.3) perforated by fire shot and took the same into possession vide memo. Exh.P.F. He arrested Saee, Hussain and Ahmad accused on 29-4-1978 while the appellant was not available.
He got him declared a proclaimed offender as, in spite of his efforts, he was not traceable.
Muhammad Yar P.W. Was produced before him by one Khizar Hayat Wattoo on 1-5-1978 and on the next day he got his statement recorded from a Magistrate under section 164, Cr.P.C. He also got prepared site plans (Exhs.P.A. And P.A./1) from Farooq Ahmad, Draftsman (P.W.2) and gave his red notes thereon.
4. The post-mortem examination on the dead body of Noor Muhammad deceased was performed by Dr. M.A. Rauf Bhatti (P.W.10) on 9-4-1978 at 7-30 a.m. It was clad in a turban, blood-stained shirt and Chaddar and having a firearm wound of 3" x 2" omentum protruding out on the front and lower part of right chest 1-1/2" from the midline. The edges of the wound were inverted and ecchymosed.
A piece of wad was also found and removed. Stomach was healthy and contained about four ounces of semi-digested food. Three pellets were also removed from the right pelvis. The injuries were ante-mortem, by a fire-arm and had resulted in death within few minutes while the time between death and postmortem was stated to be within 30 to 36 hours.
5. Ahmad, Saee and Hussain were tried and acquitted by the learned Additional Sessions Judge, Sahiwal, vide judgment, dated 19-3-1981. Ghulam Ali, the then S.H.O. Of the police station arrested the appellant on 15-8-1982 and submitted supplementary challan against him.
6. Muhammad Sadiq complainant, Mst. Sharifan and Muhammad Yar (P.Ws.7, 8 and 13) respectively the brother, the sister and nephew of the deceased, provided the ocular account of the occurrence as well as the motive part of the story. Muhammad Yar is the son of the appellant Zulfiqar, Head Constable, (P.W.6) deposed about the absconsion of the appellant and Dr. MA. Rauf Bhatti (P.W.10) was examined to provide the medical evidence. Relying upon the same, the charge was concluded against the appellant with the sentences, as indicated above.
7. The appellant when asked 'why this case against you', replied: 'My wife Mst. Rani had strained relations with me and she got me falsely involved in this case by her brothers'. As to his absconsion from 8-4-1978 to 15-8-1982, his version was that he had been getting religious education in the Madrassa at Baseerpur and Malka Hans and had not absconded. He also appeared in his defence (D.W.1). In cross-examination he submitted that Saee Hussain and Ahmad (acquitted accused) were his distant relations and not first cousins though they were the descendants of one grandfather. He also told that he learnt about the murder of Noor Muhammad after three years when he was in the village. He also deposed that his wife was living with her parents for about 4/5 years before the murder. He learnt that some thieves had broken into the house of Noor Muhammad and murdered him. He goes on to tell that his co-accused were challaned for the murder of Noor Muhammad and acquitted. He had been living in his house during all this period, but did not know that he was also involved in the murder case.
8. Learned counsel for the appellant contended that the eye-witnesses were not reliable, the occurrence had taken place in the darkness of night, just on suspicion the appellant was involved and that even no absconsion was proved. After having heard the learned counsel for the parties at length and gone through the record, we do not see any force in the contentions. Admitttcdly, Mst.
Rani (given up P.W.) is the sister of Moor Muhammad deceased and she was married to the appellant. Muhammad Yar (P.W.13) and Mst. Khurshid Bibi were their son and daughter. Mst.
Sharfan (given up P.W.) is the wife of the deceased and Maznoor is their son. It is the case of the eye-witnesses and so is the version of the appellant that Mst. Rani alongwith her son and daughter was living with her parents since 2/4 years before the occurrence. The eye-witnesses have clearly stated that she was estranged with her husband and, therefore, was living at the house of Moor Muhammad deceased. Mst. Khurshid was married with Manzoor by Rani, and to this the appellant was not agreeable, and on this point the eyewitnesses are consistent. One can well understand the feelings of the appellant whose daughter had been taken away by his wife and without his consent, had been married to the son of the deceased. The three eye-wtinesses have clearly stated that a lantern was on in the house. The witnesses got up on the dog bark, though the version of Muhammad Yar P.W. Is that he got up on the report of fire shot and the dog hark, i,e, not before the actual shot was fired. He claims to have gone under the cot and then taken away by the appellant after the occurrence. He was aged about 8/10 years at the time of occurrence and when he appeared at the trial against the appellant, i,e, his father, he gave his age as sixteen years. He was, therefore, sufficiently mature and we cannot reconcile ourselves to the fact, that he would have made a false and incorrect statement against his father knowing full well the consequences of his statement. The lantern was recovered by the police from the spot. Of course, it was a dark night, but it is not something unusual that in such like nights the villagers keep lanterns on. The shot, according to the medical evidence, was fired from a close range and even a wad was found.
' The cots of the family members were lying nearby and they all seem to have got up on the dog bark. Four empties were recovered from the spot and so the witnesses are believable that they had got up by the time the appellant left the spot. It is very significant that Muhammad Yar was taken away, as per his own statement as well as the statements of the other two eye-witnesses, by the appellant just after the occurrence and he was produced before Muhammad Abbas investigator on 1-5-1978, i,e, after about 24/25 days of the occurrence, and the latter got his statement recorded under section 164, Cr.P.C. He also appeared at the trial against the co-accused. It is also in the F.I.R.
That on the night of occurrence the boy had been taken away by the appellant. His statement rings true. The ocular account is corroborated by the motive part of the story as well as by the absconsion of the appellant. Zulficiar, Head Constable, (P.W.6) deposed that on 6-5-1978 he was deputed to serve the warrant of arrest of the appellant. He searched him but could not trace and returned the warrant on 14-5-1978, whereafter obtained a proclamation and pasted one copy at the gate of the house of the appellant and the other outside the Court room. He proved his report (Exh.P.B./1). Though the proceedings under section 87/88, Cr.P.C. Have not been fully proved for getting the appellant declared a proclaimed offender, nevertheless, he disappeared from his house from the time of occurrence till his arrest by Ghulam Ali, S.H.O. (P.W.1) on 15-2-1982. As per his own statement as taken note of above, the appellant was present in the village, and had learned that his brother-in-law, i,e, Noor Muhammad deceased, had been murdered and a case had been registered against his three co-accused who had been put on trial and yet he ventures to say that he did not come to know that he was also involved in the murder case. His stand is, therefore, fallacious and false. The evidence was thus sufficient to clinch the matter against the appellant.
We hold accordingly.
9. In spite of the charge having been proved against the appellant beyond) any shadow of reasonable doubt, we are not inclined to confi rm the death sentence. Addmittedly, Mst. Rani, the wife of the appellant, had left him about 2/4 years before the occurrence alongwith their son and daughter, and even married the daughter to the son of the deceased without the consent of the appellant. In the circumstances, the appellant felt enraged against the deceased which can be an extenuating circumstance and we take the same into consideration. We, therefore, upholding the conviction alter the sentence to imprisonment for life. The sentence of fine of Rs,10,000 or in default thereof to undergo six months' R.I. Is maintained. The sentence under section 452, P.P.C. Is also maintained. Both the sentences shall run concurrently. The appellant would have the benefit of the provisions of section 382, Cr.P.C. The whole of the fine under section 302, P.P.C. If recovered, shall he paid to the heirs of the deceased as compensation.