' This judgment shall dispose of Criminal Appeal No,665 of 1983 and Criminal Revision No, 756 of 1983, both arising out of the judgment, dated 7-11-1983, by which the learned Sessions Judge, Khushab, convicted Muhammad Bakhsh appellant under section 302, P.P.C. For the murder of his cousin Allah Diwaya and sentenced him to imprisonment for life and a fine of Rs,30,000 or in default to further undergo five years' R.I. The fine, if realised, was directed to be paid as compensation to his legal heirs.
2. The prosecution story is that Allah Diwaya (deceased) was son of Khan Muhammad while Muhammad Bakhsh appellant was son of Muhammad Ramzan. Khan Muhammad, Muhammad Ramzan and Ghulam Rasool were real brothers, jointly owning a piece of land in the area of village Sidha. Khan Muhammad died a few years prior to the occurrence when Allah Diwaya (deceased) was a minor. On attaining majority, he demanded the share of his father in the land from his uncle Muhammad Ramzan, the father of the appellant. This caused annoyance to the appellant who determined to take the life of the deceased.
3. In this inimical background on 28-10-1982 at 4.30 p.m. When Ahmad Ullah complainant, accompanied by Jan Muhammad (P.W.8) and Ghulam Rasool (given up P.W.) was going on a pathway towards their village and reached near the Dera of Khan Muhammad, the father of the deceased, they saw the appellant grappling with the deceased. The former, after throwing the latter on the ground, was dragging him. Then suddenly the appellant picked up a Vohala lying nearby and started giving blows with it on the already fallen deceased on different parts of his body including head, neck and face, threatening at the same time the aforesaid three witnesses not to come to the rescue of the deceased. They felt scared and could not rescue the victim. The appellant then ran away with the Vohala. The victim expired on the spot after a while. Ahmad Ullah P.W. Leaving his two companions to -watch over the dead body, left for the police station to lodge the report but on his way he came across S.I. Abdul Hamid and at 8 p.m. Lodged the report with him.
4. After the registration of the case, S.I. Abdul Hamid accompanied the complainant to the spot, prepared the inquest report and injury statement of the dead body and, after sending it to the mortuary for post-mortem examination, collected the blood-stained earth and completed other formalities. He arrested the appellant on 30-10-1982, he led to the recovery of blood-stained Vohola (P.4) from the spot. After the completion of investigation, he sent up the accused to the Court of Session for trial.
5. On the commencement of trial the appellant was charged for the murder of Allah Diwaya and on his pleading not guilty the prosecution produced as many as ten witnesses. To be a little more precise F.C. Abdul Rauf F.C. Muhammad Latif (P.W.2), Muhammad Ramzan (P.W.3), Ata Muhammad (P.W.4), H.C. Nazar Muhammad (P.W.6) and Lashkar Ali Patwari (P.W.9) were the formal witnesses.
6. Dr. Assad-ud-Din Butt (P.W.5) gave the details of 13 injuries, out of which 12 were incised wounds and one was multiple abrasion. He proved the post-mortem report (Exh.P.D.). In his opinion, injuries Nos. 2, 3, 5, 6 and 7 were sufficient individually as well as collectively, to cause death in the ordinary course of nature, being grievous and ante-mortem.
7. Ahmad Ullah complainant (P.W.7) and Jan Muhammad (P.W.8) gave the eye-witness account.
Their testimony finds reflection in the above narration of the prosecution case and shall be commented upon in due course, where necessary. The last witness was S.I. Abdul Hameed who gave the details of the investigation.
8. Ghulam Rasool given up eye-witness, who was the real uncle of the accused and the deceased, was examined as a Court witness.
9. The appellant, when examined under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against him in the prosecution evidence and alleging his fale implication, professed innocence. He, however, did not produce any defence.
10. On the conclusion of the trial the appellant was convicted and sentenced in the manner aforesaid and aggrieved by it he came up in appeal to this Court. Ahmad Ullah complainant filed revision for the enhancement of his sentence.
11. It was argued on behalf of the appellant that Ahmad Ullah complainant and Jan Muhammad (P.W.8), who claimed themselves as eye-witnesses of the occurrence, were never present there because had they been present, they would not have allowed the appellant to kill the deceased so mercilessly and then allowed him to escape. According to the learned counsel, their claim as eyewitnesses stood amply falsified even by the statement of Ghulam Rasool (C.W.1) who was real uncle of the appellant as well as the deceased because he deposed that on the day of occurrence the appellant himself had told him in the village that he had killed Allah Wasaya on account of his having stripped his sister half-naked and then dragging her to his house for immoral purpose.
12. It was contended that the occurrence took place at a distance of about 11/2 miles away from the village and there was no occasion for the eye-witnesses to have seen it at a deserted place where there were only two dcras of the parties. According to the learned counsel, both the eye-witnesses were more closely related to the deceased than with the appellant and they were naturally inclined to side with the former as compared to the latter. It was urged that the parties had compromised due to their close relationship as it appears from the statement of Ghulam Rasool (C.W.1) but the complainant party despite receiving a big chunk of land and Rs,30,000 in cash, went back its commitment because the land and the money was misappropriated by Ata Muhammad, the maternal-uncle of the deceased, and the complainant party allegedly could not get any benefit out of it though the accused party was deprived of the property and money. Finally, it was urged that if the appellant was to be convicted he had at the most committed the offence under grave and sudden provocation, as it appears from the statement of Ghulam Rasool (C.W.1), with reference to what he was told by the appellant when he came to the village after the occurrence and met him. This statement of the appellant could at the most be taken as a confessional statement had it to be read as whole, the learned counsel added.
13. Though the appellant in his statement recorded under section 342, Cr.P.C. Denied incriminating circumstances and did not put forth his defence version yet from the trend of the cross- examination coupled with the statement of Ghulam Rasool (C.W.1), who was equally related to the appellant as well as the deceased, the defence case was that the appellant had seen the deceased outraging the modesty of his sister and due to grave and sudden provocation caused thereby he picked up a Vohala and killed him on the spot. But had it been so, there could be no possibility of Mst. Fazan, the sister of the appellant, sitting and weeping near the dead body of Allah Diwaya when. Ghulam Rasool accompanied by Ahmad Ullah complainant, after hearing the details of the occurrence from the appellant, went to the spot. How could the girl sit by the side of the deceased and bewail over his death when he had outraged her modesty by stripping her half- naked and her brother had killed him for that reasons. This could not be the reason behind the murder of Allah Diwaya and the only possibility that could be the one alleged by the prosecution, i.e, dispute between the deceased, who after the death of his father, being the eldest male member of the family had demanded from the appellant and his father the share of his deceased father in the land and because of this background there were strained relations between them. Ahmad Ullah complainant and Jan Muhammad (P.W.8), who claimed themselves as the eye-witnesses deposed that when they accompanied by Ghulam Rasool went to the place of occurrence they saw the appellant and the deceased already grappling with each other. Thus nobody knows what had actually transpired between them which led to the scuffle resulting in the death of Allah Diwaya. In other words, the immediate motive was shrouded in mystry, the appellant on that account at the most deserved lesser penalty and it could not bring down the offence to the one punishable under section 304, P.P.C.
14. The story of compromise that the father of the appellant having paid some money to Ata Muhammad, the maternal-uncle of the deceased, besides transferring a piece of land to him appears to be unfounded. If the piece of land and the money were to form as consideration for the compromise then the land must have been mutated in the name of the mother, brother and the sisters of the deceased and not in the name of his maternal-uncle Ata Muhammad. The explanation of Jan Muhammad (P.W.8) appears to be reasonable that the father of the deceased had sold the land to Ata Muhammad for paying installments of the tractor purchased by him to the Agricultural Bank and it was not a consideration for the compromise.
15. For various reasons stated above, there is no force in the appeal and the same is dismissed.
16. As the appellant was rightly convicted and sentenced, the revision for enhancement of his sentence filed by Ahmad Ullah appellant also fails.