TANVIR AHMAD KHAN, J.- Imdad Ullah has filed criminal appeal No.35 of 1986 against the judgment dated 23.2.1986 passed by learned Additional Sessions Judge, Khanewal whereby he convicted the appellant under section 302 PPC for the murder of Abdul and sentenced him to death with a fine of Rs.5000/- or in default to undergo R.I. For two years. It was further ordered that in case of realization of fine, half of the fine shall be paid as compensation to the legal heirs of the deceased. M.R. 71/86 has also been referred to this Court under section 376 Cr.P.C, for the confirmation of death sente ce.
Both these matters shall be decided by this judgment.
2. Brief facts of the case are that an FIR Ex.PB was recorded at the instance of Mst. Hamidan Bibi PW by Anwar Ali SI/SHO (PW8) at Police- Station Jahanian on 16.6.1984 at 8.00 a.m. For an occurrence stated to have taken place at 6.00 a.m. In the field belonging to one Abdur Rehman in Chak No.l36/10-R which was at a distance of 10 miles from the Police-Station. It was her case that on the fateful day i.e. 16.6.1984 she was going alongwith her deceased husband Abdul towards the brick kiln of one Muhammad Ashraf to work at about 6.00 a.m. Hardly they reached the cotton field of Abdur Rehman when the appellant came from behind having a hatchet in his hand. Reaching there he raised a Lalkara that he would take revenge from her deceased husband for beating his mother and insulting her. Thereupon the appellant inflicted a hatchet blow on the head of the deceased who fell down on the ground and became unconscious. On her cries, Ghulam Ali, Munshi Khan, Muhammad Aslam and Muhammad Ali PWs were attracted to the place of occurrence. The appellant gave two more hatchet blows on his head while the deceased was lying in an injured condition on the ground. Though the witnesses tried to intervene but they could not do the same because of the threats of dire consequences. After the occurrence the appellant decamped alongwith hatchet. Her husband succumbed to his injuries at the spot.
3. The motive for the occurrence according to the prosecution was that Abdul deceased and the mother of the appellant had a quarrel at the brick kiln 4/5 days prior to the occurrence. The mother of the appellant abused the deceased whereupon he gave her beating. The Investigating Officer, after recording the FIR, reached the spot and prepared the injury statement Ex.PM and inquest report Ex.PH of the deceased. He also took into possession blood-stained earth from the spot vide recovery memo Ex.PC. The pair of shoes P6 and P7 was also taken into possession vide recovery memo Ex.PD. One of the shoes was stained with blood. The appellant who was arrested the same day was wearing blood-stained shirt PI and Chadar P2 which were taken into possession vide recovery memo. Ex.PE. He also led to the recovery of blood-stained hatchet P3 which was taken into possession from his house vide recovery memo. Ex.PF. These recoveries were witnessed by Ghulam Ali (PW6) and Munshi Khan (given up PW) apart from Anwar Ali SI (PW8). Site plan Ex.PA, PA/1 and PA/2 were got prepared through Ahmad Din Patwari on 24.6.1984. The postmortem examination of the deceased was conducted by Dr. Khurshid Ahmad Khan (PW10) Medical Superintendent DHQ Hospital, Okara on 16.6.1984 at 4.30 p.m. Who found the following injuries:-
1. Incised wound 9 cm x 2 cm x brain deep on right forehead and head verticle in direction.
2. Incised wound 9 cm x 2\ cm x brain deep on left forehead and head verticle in direction.
3. Incised wound 11 cm x 2 cm x brain deep on top of head and extents towards back of head, it is in line with injury No.2.
All the injuries were caused with sharp edged weapon. The death was due to shock and haemorrhage due to bleeding from injuries No.1,2 and 3, which were antemortem. Ex.PN is the correct carbon copy of inquest report.
4. The prosecution examined ten witnesses in all to establish its case. The ocular account of this case has been stated by Mst. Hamidan PW5, the widow of the deceased, Ghulam Ali PW6 and Muhammad Ali PW7. Mst. Hamidan, in her deposition before the learned Trial Court, reiterated her stance earlier taken by her in the FIR. She has described the manner in which three injuries were inflicted on her deceased husband. She has also stated about the motive of this occurrence pointing out that 4/5 days earlier her deceased husband had a quarrel with the appellant's mother at the brick kiln over the preparation of bricks. The lady scolded the deceased whereupon the latter gave her beatings. Similarly, Ghulam Ali PW6 had corroborated the ocular account in a manner stated by the complainant. He also deposed that the appellant was produced before police by Ch. Yaseen on the day of occurrence. He had also witnessed the recovery of incriminating articles during the course of investigation. Particularly the bloodstained shirt PI and Chadar P2 from the appellant. He had also witnessed the recovery of blood-stained hatchet P3 which was taken into possession from the residential accommodation of the appellant at his pointation vide recovery memo. Ex.PF. These incriminating articles, according to the Chemical Examiner's report Ex.PO dated 26.6.1984 have been found to be stained with human blood. Muhammad Ali PW7 is a completely independent witness. He has satisfactorily established his presence when he stated that he was returning to his' house after urinating. There he saw the deceased and his wife Mst. Hamidan PW5 going towards brick kiln. He saw th& appellant emerging from behind the deceased with a hatchet in his hand and raising lalkara that he would not spare him because he had insulted his mother. He described the manner in which the injuries were inflicted upon the deceased.
5. When the appellant was examined under section 342 Cr.P.C, he denied his participation as well as the recovery of the incriminating articles from his possession. He attributed his involvement due to enmity. He also made a statement under section 340 (2) Cr.P.C, denying his involvement. He further stated that 5/6 months prior to the occurrence Ghulam Ali and Mst. Hamidan PWs had demanded the hand of his sister Mst. Surraya for Hakim Ali, the maternal uncle of Ghulam Ali PW to which he and his father flatly refused. As far Muhammad Ali Pw was concerned he stated that he used to run a samosa shop. He and his father did not pay Rs.200/- respecting the Samosa purchased by him and for that reason he had implicated them. Learned counsel appearing for the appellant has criticised the ocular account as being based upon the testimony of inimical, interested and chance witnesses. He has doubted the very presence of the eye witnesses at the spot. According to him, had the witnesses been present over there, they would have certainly tried to catch hold of the appellant. He has further stated that it was an unseen murder and the medical evidence belies the prosecution case respecting the time of occurrence. To substantiate this he had stated that according to the medical report the time between death and postmortem was within l2 hours and this would make the occurrence near about 4.30 a.m. And on the basis of same it has been argued that it was a blind murder and no body had witnessed the same. The present appellant has been implicated because of enmity. He has also challenged the motive on the ground that it has simply been alleged by Mst. Hamidan PWS and no other independent witness has come forward to establish the same.
The learned State counsel has supported the conviction of the appellant.
6. We have considered the contentions and perused the record. The ocular account has been established in all its material particulars through the testimony of Mst. Hamidan PW5, Ghulam Ali PW6 and Muhammad Ali PW7. Mst. Hamidan has meticulously narrated the manner in which the three hatchet injuries were cause to her deceased husband by the appellant. Her testimony cannot be rejected simply on the ground of her close relationship with the deceased. She has got no motive to falsely implicate the appellant. She has successfully established her presence at the place of occurrence. It has come on record that this witness was working at the brick kiln alongwith) her deceased husband. Even the appellant in his statement under section 342(2) Cr.P.C, had admitted that this witness alongwith her husband used to work at the kiln.
7; Ghulam Ali PW6 is a cousin of the appellant. He had categorically denied that he ever demanded the hand of Mst. Surraya, the appellant's sister for Hakim Ali, his maternal uncle. There is nothing well convincing on record for this witness to involve the appellant in a case entailing capital punishment. Muhammad Ali PW7 is a completely independent witness. He has got no relationship whatsoever with the either party. The plea of the appellant that since he and his father could not make payment of Rs.200/- for the Samosas taken from this witness is devoid of any force. He has fully corroborated the ocular account. The recovery of incriminating articles have been established beyond doubt. The report of the Chemical Examiner Ex.PO goes a long way in establishing the case of the prosecution. The motive have also been established on record through the testimony of Mst.
Hamidan PW5. Keeping the ocular account, the medical evidence, the recovery of incriminating articles into consideration we are of the view that the prosecution has fully established the case against the appellant. As far as the sentence of death is concerned it has come on record that the appellant inflicted these injuries because of the disgrace caused to his mother. In this view of the matter the extreme penalty of death would not be appropriate. Accordingly, we convert the sentence of death to that into imprisonment for life and with this modification we dismiss this appeal. The death sentence is not confirmed.