RAJA AFRASIAB KHAN, J.-- Mehr Khan (40) son of Samundar Khan was tried by Mr. Azad Muhammad Awan, learned Additional Sessions Judge, Attock, for the murder of Haji Ghulam Muhammad (57). By judgment dated 24-5-1988, the learned trial Judge convicted and sentenced the appellant under section 302, P.P.C. To death plus a fine of Rs.20,000 or in default to undergo rigorous imprisonment for two years. He was also directed to pay Rs.20,000 as compensation to the legal heirs of the deceased or in default to suffer 6 months' R.I. The convict has challenged his conviction and sentence by filing Criminal Appeal No.648 of 1988. The learned trial Judge has sent a reference under section 374, Cr.P.C. For confirmation of death sentence of Mehr Khan. Sanchi Khan, complainant, has filed Criminal Revision No.606 of 1988 praying that the sentence of fine and the coin ensation awarded to the convict may be enhanced suitably to meet the ends of law. We propose to dispose of the above matters together by this judgment.
2. The prosecution case is that the complainant Sanchi Khan is a resident of village Ahmadal. His elder brother Haji Ghulam Muhammad (deceased) purchased 118 Kanals of Banjar land from Mehr Khan, appellant, in Chak Sapial. Haji Ghulam Muhammad hired a Bulldozer from the Agricultural Department to develop the said land. He also built two rooms on the land. On 19-7-1987 at 10-00 a.m. Haji Ghulam Muhammad was busy in levelling the land with the Bulldozer when Mehr Khan came at the spot. Mehe Khan told Haji Ghulam Muhammad that the land, which had already been levelled by him was not in fact sold by him and that the land sold to him was situated on the Northern side of his house. Mehr Khan took Haji Ghulam Muhammad about 100 yards away towards Northern side of his house to show the land sold to him. He also asked Haji Ghulam Muhammad to give up the land for the above reason. However, Haji Ghulam Muhammad declared that he would not give up the land because it was developed by him by spending a lot of money. A quarrel between them ensued. On hearing the noise, Sanchi Khan, Fateh Khan and Muhammad Safdar reached the spot. Before their arrival, Mehr Khan gave a hatchet blow on the head of Haji Ghulam Muhammad who on receipt of injury fell down. On alarm Mehr Khan ran away. Ghulam Muhammad died on the spot. Motive is that Haji Ghulam Muhammad purchased Banjar land at a throw away price from Mehr Khan and developed it by using a Bulldozer. On seeing that the land had been converted into a cultivable land, Mehr Khan changed his mind and with ulterior motive asked Haji Ghulam Muhammad to give up the said land and get another piece of land. Haji Ghulam Muhammad, however, did not agree. In view of this grudge, Mehr Khan inflicted a hatchet blow, which resulted in the death of Haji Ghulam Muhammad. On statement Exh PA. Of Sanchi Khan (P.W.10), Muhammad Siddique, A.S.I. (P.W.1) recorded the formal F.I.R. Exh.P.A./1.
3. Muhammad Sheraz, A.S.I. P.W.13 recorded statement of Sanchi Khan on 19-7-1987. He investigated the case. The Police Officer visited the spot and prepared injury statement Exh. P.G. And inquest report Exh. P.H. Of the deceased. Dead body was sent to mortuary for post-mortem examination under the escort of Fateh Khan Constable P.WA Blood-stained earth from the place of occurrence was collected and was sealed into a parcel vide Memo. Exh. P.E. Mehr Khan was arrested on 20-7- 1987. On 25-7-1987 while in police custody, he led to the recovery of a blood-stained hatchet P.4 from the ceiling of the house of Sardar Fateh Khan P.W.11 which was taken into possession vide Memo. Exh. P.F. Site plans Exh. P.C. And Exh.P.C./1 were got prepared from Muhammad Akram, Patwari P.W.5. Positive reports of the Chemical Examiner and the Serologist on hatchet and earth were tendered in evidence.
4. Dr. Tariq Mehmood P.W.6 conducted the post-mortem examination upon the dead body of Haji Ghulam Muhammad on 19-7-1987 at 2-15 p.m. And noted the following injuries on it:
(1) A cut wound at left side of fronto temporal region cutting bone of skull and brain matter 2 c.m. x 7 c.m.
(2) A cut wound at left side of skull continuous with injury No. 1 from fronto parietal (left side) bone area cutting the skull bone and brain also 2-1/2 c.m. x 13 c.m.
(3) A contusion on right scrotum 4 c.m. x 5 c.m.
All injuries were ante-mortem. Injuries Nos. 1 and 2 were caused with sharp-- edged weapon and injury No. 3 was inflicted with a blunt weapon. In the opinion of the Doctor, death occurred due to shock and haemorrhage resulting from injuries Nos. 1 and 2, which were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within two hours and between death and post-mortem examination was 5 hours. In cross-examination, it was disclosed by the Doctor that the injury No. 3 on the dead body could be caused with a stone or a stick.
5. Eye-witness account was furnished by Sanchi Khan P.W.10 and Fateh Khan P.W.11 Safdar Khan, another eye-witness was given up by the prosecution. The appellant while making a statement under section 342, Cr.P.C. Denied the allegations levelled against him. He pleaded his innocence. He stated that the prosecution witnesses were closely related with the deceased and that he had been falsely involved in the case. The appellant also made a statement on oath under section 340, Cr.P.C. Wherein he deposed that he had cordial relations with Haji Ghulam Muhammad. He denied that he had enmity with the deceased. He further stated that hatchet P.4 was not recovered from him. He disclosed that he gifted away 6 Kanals 10 Marlas of land in favour of the deceased about 20 days earlier to the occurrence. The appellant produced Muhammad Ameen D.W.1 and Faqir Muhammad D.W.2 in support of his defence.
6. Learned counsel contends that Sanchi Khan P.W.10 and Fateh Khan P.W.11 were standing far away from the place of occurrence and as such they were not in a position to hear the crucial talk having taken place between the appellant and the deceased. It is maintained that by the time, the witnesses reached the spot, the alleged offence had already been committed and as such their evidence is of no avail to the prosecution case. Learned counsel urges that possibility of grappling between the appellant and the deceased cannot be ruled out in the given circumstances. On this basis, learned counsel argues that this is not a case of murder pure and simple. He submits that it appears that the incident took place suddenly as a result of the hot words and abuses having been exchanged between the appellant and the deceased. Learned counsel says that case of the appellant falls under exception (4) of section 300, P.P.C. Learned State counsel and the learned counsel for the complainant have defended the conviction and sentence of the appellant. Dr. Khalid Ranjha, learned counsel for the complainant argues that deadly weapon like hatchet was used in the commission of the crime and that it is established that Sanchi Khan P.W.10 and Fateh Khan P.W.11 were in a position to witness the occurrence. Learned counsel forcefully argues that admittedly, Ghulam Muhammad deceased built a house at the spot three months earlier and there is nothing in the evidence to suggest that the appellant and the deceased were standing in a depression or in a low-lying place from where they were invisible.
7. We have heard the learned counsel for the parties and have read the record with utmost care.
We are fully convinced by the evidence of Sanchi Khan P.W.10 and Fateh Khan P.W.11 and accordingly proceed to hold that it was the appellant who committed the murder. Sanchi Khan P.W. 10 categorically deposed that the deceased purchased 118 Kanals of land from the appellant in the name of his son. A bulldozer was hired by him from the Agricultural Department in order to make the land cultivable. Two rooms were built on the site by the deceased. In our view, on the day of occurrence at 10 a.m., above-said witnesses were present at the spot. Mehr Khan while armed with a hatchet came to the spot and took Haji Ghulam Muhammad to another piece of land where hot words were exchanged between them. Sanchi Khan deposed clearly that within his view, a hatchet blow was caused on the left side,, of head of Haji Ghulam Muhammad by Mehr Khan, appellant. This statement,, of Sanchi Khan was substantially supported by Fateh Khan P.W.11. Sanchi Khan P.W.10 is real brother of the deceased whereas Fateh Khan P.W.11 is his son-in-law. The witnesses are no doubt closely related to the deceased but they were expected to be present on the spot to render assistance because Banjar land purchased by the deceased was being levelled and was being made cultivable. On such like occasion, the deceased needed help of his close relatives like the two witnesses. The presence of these witnesses, therefore, on the spot at the time of occurrence was most natural. We, therefore, hold that the witnesses witnessed the occurrence. Recovery of hatchet P.4 at the instance of appellant is proved by the evidence of Haji Karam Khan P.W.9 and Muhammad Sheraz, A.S.I. P.W.13 Vide reports of the Chemical Examiner and the Serologist, hatchet P.4 was found to be stained with human blood. The evidence of Dr. Tariq Mehmood P.W.6 also corroborates the eye-- witness account. This is a day time occurrence and is also a case of single accused. It is established beyond doubt that the appellant committed the murder of Haji Ghulam Muhammad by inflicting a hatchet injury on his head with full force knowing fully well that death would follow.
The medical evidence shows that: "Injury No. 1 is a cut wound at left side of fronto temporal region cutting bone of skull and brain matter and is of the dimension of 2 c.m. x 7 c.m. Similarly, Injury No. 2 is a cut wound at left side of skull continuous with injury No. 1 from fronto parietal bone area cutting the skull bone and brain also with a dimension of 2-1/2 c.m. x 13 c.m:"
The nature of these injuries shows that the appellant was determined to make short work of the deceased. According to Sanchi Khan P.W.10 second, injury with hatchet was caused by the appellant when the deceased had already fallen on the ground. The infliction of second injury by the appellant to the deceased who had already fallen on the ground would demonstrate that he had intention to murder. There is thus no substance in the argument of the learned counsel that the case falls under exception (4) of section 300, P.P.C. And as such it is repelled. There is no evidence to attract the said provision of law in this case. The prosecution has been able to prove its case under section 302, P.P.C. Against the appellant beyond doubt. The conviction of the appellant under section 302, P.P.C. Therefore, is justified and as such is maintained. The nature of abuses and hot words having taken place between the appellant and the deceased could not be overheard by the eye-witnesses because they were standing at some distance from the place of actual occurrence. We are of the view, that the appellant did not come initially with an intention to commit murder. The incident took place because of some abuses and hot words having taken place between them. The appellant was already armed with hatchet P.4. However, it is common knowledge that the villagers like the appellant do hold hatchets when they go out to their fields. As observed earlier, the recovery of blood-stained hatchet is proved beyond doubt. It is in the evidence that the deceased accompanied the appellant to another piece of land from his Derv willingly. The nature of the hot words and abuses is shrouded in mystery. We, therefore, refrain from confirming the death sentence of the appellant. Death sentence of the appellant is altered to life imprisonment. The sentence of fine and compensation is, however, maintained. Death sentence of the appellant is not confirmed. The murder reference is answered in negative. With this modification in the sentence, appeal is dismissed.
8. In view of our above judgment in the main appeal, there is no substance in the revision petition, which is dismissed.