KHIZAR HAYAT, J:-- Allah Bachaya son of Allah Bakhsh (40), caste Laskani, resident of Bhinda Nau Baramdah, has been tried and convicted vide judgment, dated 8-4-1986 by learned Additional Sessions Judge, Muzaffargarh, under section 302, P.P.C. For the murder of Mst. Sharama Mai were of Ghulam Rasool and sentenced to death and a fine of Rs.5,000 or in default to undergo one year's R.I. It was further directed that the fine, if realized shall be paid to the legal heirs of the deceased as compensation. The convict feeling aggrieved thereby has preferred this appeal (Criminal Appeal No.60 of 1986) and the learned trial Court has submitted reference (Murder Reference No.197 of 1986) under section 374, Cr.P.C. For confirmation of the death sentence. We propose to dispose of both the matters by this single judgment.
2. The occurrence took place on 28-9-1982 at 8 a.m. In the house of -Mst. Sharama (deceased) in village Bhinda Nau Baramdah, some 18 miles away from Police Station Jatoi, Tehsil Alipur, District Muzaffargarh. F.I.R. Exh.P.C. Was lodged by Ghulam Rasool, complainant (P.W.3), at the said police station which was recorded by A.S.I. Muhammad Khalid (P.W.8), the same day at 4 p.m.
3. Ghulam Rasool, complainant (P.W.3) was sitting in the courtyard of his house on the fateful day (28-9-1982) which was Eid day and his were Mst. Sharama (deceased) was washing clothes on the hand-pump. At about 8 a.m. Allah Bachaya (appellant) armed with a hatchet came there and shouting a Lalkara that he would teach the deceased a lesson for not giving hand of her daughter to his brother, inflicted a hatchet blow on her left wrist. She tried to escape but he gave her second hatchet blow on back side of her head. He then caught hold of her by her hair in the lane, threw her down, and inflicted hatchet blow on her neck. Ghulam Qadir (not produced),and Nazar (P.W.4) also arrived in the meantime and saw the occurrence. The deceased succumbed to the injuries on the spot. Leaving the dead body of Sharama in the care of the witnesses, Ghulam Rasool, complainant went to the police station and lodged the F.I.R. Exh.P.C.
4. Motive for the offence was stated to be that about 5 months prior to the occurrence, the appellant demanded from the deceased, hand of Mst. Lal Mai, her daughter, for his brother Abdullah. The deceased rejected the demand whereupon Allah Bachaya (appellant) felt annoyed, hence this occurrence.
5. A.S.I. Muhammad Akhlaq (P.W.8) having registered the case visited the spot and after preparing necessary documents despatched the dead body to the mortuary for post-mortem examination.
He collected and secured blood-stained earth from the spot under memo. Exh.P.F. He arrested the appellant on 10-11-1982 and recovered blood-stained hatchet (P.4) from his house at his pointation and seized it under memo. Exh.P.B.; attested by Nazar Hussain (P.W.4) and Imam Bakhsh (given up P.W.). This hatchet was found smeared with human blood vide reports of Chemical Examiner and Serologist (Exhs.P.G./1 and P.H./1).
6. Dr. Muhammad Afzal (since dead) conducted autopsy on the dead body of Mst. Sharama on 29- 9-1982 at 8 a.m. And found the following injuries on it:--
(1) A big deep incised cut wound 6" x 2" and whole thickness of neck, is present in continuation of front of neck cutting trachea oesophagus and cervical vertebrae.
(2) An oblique deep cut wound 4" x 2" x 3" on left side of neck just below left ramus of mandible.
(3) A small cut 1" x 1/4" x 1/4" on right side of chin.
(4) A small cut 1-1/2" x 1/4" x 1/4" above and to the right side of injury No.1.
(5) An oblique cut 1-1/2" x 1/2" x 1/2" in the middle of left forearm.
7. In all nine prosecution witnesses were produced at the trial. Ghulam Rasool (P.W.3), Nazar Hussain (P.W.4) are eye-witnesses who narrated about the occurrence and the motive. Dr. Muhammad Afzal who conducted post---mortem examination had died vide report of Amir Bakhsh F.C. (P.W.1), therefore, the post-mortem examination report Exh.P.E./1 was got proved through Dr. Amir Bakhsh (P.W.6) who claimed to be acquainted with handwriting and signatures of late Dr. Muhammad Afzal. Nazar Hussain (P.W.4) and A.S.I. Muhammad Akhlaq (P.W.8) stated about recovery of blood-stained hatchet from the appellant.
8. When examined under section 342, Cr.P.C., the appellant denied the allegation. He also denied the motive as well as recovery of blood-stained hatchet. In reply to a question that why this case was brought against him, he replied as under:-- "The complainant himself got the deceased murdered and entangled me in this case in collusion with the Thanedar. The fact of the matter is that the complainant wanted to marry one Mst. Bakho but the deceased resisted his idea of bringing a rival were and refused to give her consent for second marriage. The deceased was my real maternal-aunt. Therefore, my mother and I also strongly opposed complainant's lust in his old age. The complainant got her eliminated from his way and on account of animosity nursed against my mother and me on account of our opposition, made me a scapegoat, in order to save his skin from the clutches of law. Six months after the murder of the deceased the complainant who was of 82 years at the time of occurrence solemnized his marriage with Mst. Bakho."
He examined Constable Atta Muhammad (D.W.1) in defence who produced copy of Daily Diary Register No.19 of Police Station Jatoi. He stated that according to report No.3 there was no entry of case F.I.R. No.179 upto 16-10-1982 and also there was no entry showing that Ziminis regarding this case were sent by the Investigating Officer, A.S.I. Muhammad Akhlaq, to the higher authorities. He further stated that upto 5-12-1982 no property other than the blood-stained hatchet and last worn clothes of the deceased of this case were present in the Malkhana.
9. Learned trial Court on consideration of the material on record found the appellant guilty and convicted anti sentenced him as indicated above, hence this appeal.
10. Learned counsel appearing on behalf of the appellant submitted that the motive is false.
Abdullah brother of the appellant, was about 28 years old while Mst. Lal Mai, daughter of the deceased, was 11/12 years old during the days of occurrence, therefore, in view of such disparity in their ages it was not expected of the appellant to have demanded the hand of Mst. Lal Mai for Abdullah. Furthermore, the deceased had allegedly rejected the said demand of the appellant a week before the occurrence, according to the F.I.R., but the complainant had stated at the trial that it happened five months before the occurrence. Next contended that there is conflict in the medical and ocular evidence i.e. The eye-witnesses stated that the appellant inflicted hatchet blows on the wrist and head of the deceased but the doctor did not find such injury on the person of the deceased which means that the prosecution witnesses had not seen the occurrence.
Further, argued that prosecution story is highly improbable inasmuch as the complainant's five sons and four daughters were present at the time of occurrence but none of them had intervened physically to rescue the deceased and that non-appearance of Ghulam Qadir (son of the deceased) at the trial suggests that he was given up for he was not prepared to implicate the appellant falsely. The explanation of the appellant that the deceased had been done to death by her husband (the complainant) for marrying Mst. Bakho, learned counsel argued, finds support from the fact that the complainant (as admitted by him) had married said Mst. Bakho 6 months after the occurrence. Learned Assistant Advocate-General replied that prosecution has successfully proved the murder charge against the appellant through reliable ocular testimony of complainant Ghulam Rasool and Nazar P.W. Whose presence at the relevant time cannot be doubted because the occurrence had taken place in the house of the complainant while Nazar Hussain furnished reasonable explanation for his being present there. According to him, the conviction and sentence do not call for interference.
11. We have considered the facts and circumstances of the case in the light of the arguments addressed by learned counsel for the parties and also perused the record.
12. Death of the deceased is not disputed. No serious objection is raised about the time and place of occurrence either. The fact that blood-stained earth was found and removed from the house of the deceased establishes that the occurrence had taken place there. It is admitted that the deceased had a daughter by the name of Mst. Lal Mai who was unmarried and was 11/12 years old during the days of occurrence. It is common knowledge that in this part of the country minor girls are betrothed to aged persons but Rukhsati of such girls takes place after they attain puberty. The argument that because of disparity in ages of Lai Mai and Abdullah the appellant could not demand hand of Lai Mai for Abdullah, has no force. It is true that Ghulam Rasool complainant (P.W.3) had deposed to at the trial that the deceased had refused to give hand of Mst. Lai Mai for appellant's brother, 5 months before the occurrence but in the F.I.R. It is mentioned that a week before the occurrence the deceased refused to give the hand of Mst. Lai Mai for Abdullah. But the appellant cannot get benefit of this discrepancy because Ghulam Rasool (P.W.3), the maker of the F.I.R., had not been confronted with the relevant portion of F.I.R. (when he appeared before the trial Court) in accordance with Article 140 of Qanun-e-Shahadat, 1984. We, therefore, hold that the appellant had a motive to attack the deceased, who had refused to give the hand of her daughter to his brother.
13. The main stay of the prosecution is the ocular testimony furnished by Ghulam Rasool (P.W.3) and Nazar Hussain (P.W.4). It may be pointed out that their names find mention in the F.I.R.
(attached with original record) but their names are misprinted in the F.I.R. (at page 43 of the paper book) i.e., Ghulam Qadir has been printed as Ghulam Khalid and Nazar Hussain P.W. As Faqir Hussain. Ghulam Rasool P.W. Lives in the house where the occurrence took place. Nazar Hussain (P.W.4) is complainant's sister's son who gave out reasonable explanation of his being present there saying that he had taken bullock alongwith Ghulam Qadir (complainant's son) from the cattle-shed to the Dera of the complainant for sacrificing it on that day being the Eid day. The P.Ws., no doubt, have stated that the appellant inflicted hatchet blow on the wrist of the deceased but contention of the appellant's learned counsel that there is no such injury on the wrist is not correct. Injury No.5 is seated on the middle of the left forearm which can be well described to be near the wrist of the deceased and is so shown in the diagram Exh.P.E./2. According to Ghulam Rasool (P.W.3) the appellant `gave second hatchet blow on the back side of the head of the deceased', who walked out in the lane. Nazar Hussain (P.W.4) did not say that injury was inflicted on the `back side' of the deceased's head. The doctor has not noticed any injury on head of the deceased. It, therefore, appears that the appellant aimed a blow on the back side of the head of the deceased while chasing her into the lane but as she (deceased) was moving away it is just possible that the blow had not landed on the back side of her head. Therefore, absence of injury on the back of the head of the deceased, cannot be treated to be in conflict with ocular evidence thereby rendering the case against the appellant as doubtful.
14. The explanation of the appellant, that the deceased had been got killed by the complainant himself in order to remove her from his way for marrying Bakho, is also not convincing. The complainant was admittedly 82 years old in the days of occurrence. He must be literally a wreck. It is not believable that at this stage of age, appellant was so much influenced by desire of marrying Mst. Bakho (not a young lady) that he got his were (deceased) murdered, particularly when there is nothing on record to suggest that he (complainant) had flair for women or that he used to be sex debauch even in his youth days. Therefore, the question of appellant or his mother opposing the complainant from taking second were does not arise. Had it been so then the appellant would have produced his mother in defence to say so. Her failure to appear in defence of the appellant knocks down the explanation given by the appellant as being baseless. The reason for complainant's marrying Mst. Bakho seems to be that his children had not satisfactorily looked after him in his old age. Ghulam Qadir P.W. Has been given up as unnecessary so his non-appearance does not affect the prosecution case adversely. Had Ghulam Qadir considered the appellant as innocent then the appellant would have certainly produced him in his defence. Statement of Atta Muhammad Constable (D.W.1) too is of n6 avail to the appellant. He made a confused statement.
We have, therefore, seen the original daily diary report No.10, dated 27-9-1982 (Exh.D.A.) which is to the effect that F.I.R. No.179, dated 27-9-1982, was registered at the instance of Ghulam Rasool at 4 p.m., against the appellant who committed murder of Mst. Sherman.
15. The evidence of recovery of blood-stained hatchet P.4 said to have been made at pointation of the appellant after about 1-1/2 months of occurrence is ignored as it cannot be safely relied upon.
The sum total of the above discussion is that learned trial Court rightly believing the evidence of motive, ocular testimony and medical evidence convicted the appellant under section 302, P.P.C.
And we maintain the same. Sentence of death awarded to the appellant is also appropriate as there is no extenuating circumstance for awarding lesser penalty.
16. In the result, we dismiss the appeal. The sentence of -death awarded to the appellant IS confirmed.
N.H.Q./A-1108/L