RIAZ AHMAD, J.--- Washal son of Shera alias Sheru was tried by the learned Additional Sessions Judge, Rajanpur on the charge under section 302, P.P.C. For having caused the murder of Dili Jan.
Vide judgment dated 22nd of December, 1988, the appellant was found guilty on the said charge and was thus convicted and sentenced to death, and to pay fine of Rs. Five thousand, or in default thereof, to suffer SI for a period of two years. The learned trial Judge further directed the appellant to pay compensation amounting to Rs. Ten thousand under section 544-A, Cr.P.C to the legal heirs of the deceased, or in default thereof, to suffer six months S.I.
2. Aggrieved by his conviction and sentences, the appellant has filed this appeal, while the case has also been referred to us for the confirmation of death sentence under section 374, Cr.P.C. This judgment shall dispose of both the appeal as well as the Reference.
3. The unfortunate occurrence resulting into the death of deceased Dili Jan took place on 23rd of May, 1982 at Nimaz Wela in Basti Asral situated at a distance of 8 Kms from Police Station Dajal district Dera Ghazi Khan. F.I.R. Exh.P.H. Was lodged by Suba son of Ali Bakhsh at 10-50 a.m. At the Police Station, which was recorded by Muhammad Saleem Khan S.I./S.H.O. P.W.10.
4. The prosecution case in brief as disclosed in the F.I.R. Exh.P.H. By the first informant was, that six months ago he alongwith the deceased had come to Basti Dar for harvesting alongwith their family. Two years before the occurrence, Mamdan son of Ali Han a relative of the appellant had abducted Mst. Tagi wife of the deceased, who had been seeking the restoration of his wife from the appellant, but the appellant kept on putting off the same on one pretext or the other. On the day preceding the occurrence at Degarwela, the appellant visited the Jhuggis of the complainant, and stated that he would get Mst. Tagi Mai restored. Hence, the complainant alongwith Dili Jan, Rind Ali, and Mazari Khan accompanied the appellant and proceeded to Basti Asral. After taking the meals, the deceased Dili Jan and the appellant quarrelled with each other, but the complainant and others intervened, and both were pacified, and then all went to sleep. On the fateful day at about Nimaz Wela, the complainant heard the hue and cry raised by the deceased, and he alongwith Rind Ali and Mazari Khan saw, that the appellant had given a Wahola blow on the head of the deceased, who fell down. Thereafter, the appellant inflicted another Wahola blow on the neck of the deceased, and then again gave repeated blows with the Wahola on the various parts of the body of the deceased. The complainant and the P.Ws. Came forward to rescue the deceased, but the appellant threatened them with dire consequences, and, therefore, they could not dare to intervene on account of fear. Deceased Dili Jan succumbed to the injuries at the spot, while the appellant decamped with the weapon of offence.
5. On 24-5-82 P.W.9 Dr. Husnain PitaG, Senior Medical Officer T.H.Q. Hospital Jampur conducted the postmortem examination on the dead body of the deceased, and noticed the following injuries on his person:
(1) Multiple incised wounds on anterior side of neck cutting the blood vessels, wind pipe and oesophagus.
(2) An incised wound 4" x 1" x cutting the bone over right lower jaw.
(3) Multiple incised wounds on upper part of right side of neck and head behind the right ear cutting the portion of ear.
(4) A cut 1/2" x 1/4 " x cutting the tip of nose.
(5) Multiple incised wounds on back of upper part of neck.
(6) Multiple superficial cuts over outer side of right elbow.
(7) Multiple incised wounds over upper part of abdomen.
(8) A cut 1" x 1/4" x 1/4" over palm of left hand.
In the opinion of the doctor injuries Nos.1 to 8 were caused by sharp edged weapon. Injury No.1 was fatal, injury No.2 was grievous, while the rest were simple. Death was due to shock and haemorrhage consequent upon injury No.1 which was sufficient to cause death in the ordinary course of nature.
6. On 24-5-82 the appellant was produced before the Investigating Officer, who arrested him at the spot. On the same day, appellant in custody led to the recovery of bloodstained Wahola which was taken into possession vide Memo. Exh.P.D. Attested by Ghulam Hussain P.W.5 and Guhram P.W.6 besides the Investigating Officer P.W.10. Wahola P.3 was sent to the Chemical Examiner and the Serologist. According to the report of the Serologist, the same was stained with human blood.
7. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Mazari Khan P.W.7 and Rind Ali P.W.f Complainant Suba was not produced. The eye- witnesses, however, also deposed about the motive.
8. When examined under section 342, Cr.P.C., the appellant denied the charge, and stated that Suba complainant had got the case registered against Ahmadan for the murder of his cousin Dodha. Since, the appellant had bees helping the accused side, therefore, on account of such grouse, he had bee involved falsely in this case.
9. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the evidence on the record, and we have heard them at length.
10. The learned counsel for the appellant argued that the ocular testimony in this case does not inspire confidence as both the witnesses are related interse and were also close relations of the deceased, therefore, their testimony was unworthy of belief.
11. As far as the recovery of Wahola P.3 is concerned, the same was criticised on the ground that the witnesses to the recovery were also closely related, and the prosecution had failed to bring forth some independent or the best possible evidence, therefore, an adverse inference should be drawn against the prosecution.
12. After anxious consideration, we have noted that both the eyewitnesses were cross-examined at a considerable length, but the defence failed to bring anything material on the record so as to give rise to believe that the prosecution story was false. On the other hand, both the witnesses remained so consistent on each minute particular whereby it is difficult to disbelieve them. They were unanimous as to the mode of going to Basti Asral and as to the mode of taking the meals as well as going to sleep. In such like cases, it is very difficult to collect the evidence, because the occurrence had taken place in the bunch of small Jhuggis, where only kith and kin of the appellant were living. In the light of this situation, it is not possible to discard the testimony of the eye-- witnesses, unless, it is shown that they had any motive to falsely implicate the appellant, or their testimony was so inherently defective that the probability or the truth of the prosecution version becomes clouded with doubts. Hence, we hold that the witnesses were reliable and their testimony was above board-- Similarly, evidence as to the recovery cannot be doubted, because the same has been proved through disinterested witnesses.
Furthermore, the Investigating Officer had no axe of his own to grind. Hence, the recovery at the instance of the appellant stands proved on the record, which corroborates the prosecution version as to its use and the nature of injuries sustained by the deceased. In this view of the matter, we hold that, the prosecution has proved its case beyond any shadow of doubt, and the guilt has been brought home to the appellant.
13. However, after anxious consideration, we are of the view that in the circumstances of the case capital punishment cannot be imposed. Admittedly, the appellant had himself visited Basti Dar where the deceased and the complainant etc had gone for the harvesting, and on the assurance of the appellant that the wife of the deceased will be restored to him, the complainant side accompanied him. Undisputedly, the complainant and the witnesses stayed outside the Jhuggi of the appellant. Evidence further reveals that all of them had taken meals together, and had slept outside the Jhuggi of the appellant. The evidence also reveals that the complainant and the accused side had gathered outside the Jhuggi of the appellant in good faith for getting back the wife of the deceased from Mamdan. Obviously, the appellant was not the abductor, and had only to use his good offices for the restoration of Mst. Tagi wife of the deceased. In this view of the matter, we are of the view that the appellant could not have entertained any such motive or ill will so as to kill the deceased. Occurrence had taken place when the first informant and the witnesses were sleeping; we are therefore, not prepared to believe that outside the Jhuggi of the appellant, the appellant and the deceased had altercated with each other. Because in our view, there was no cause to quarrel as Tagi Mai was not with the appellant, nor does the record show that he had played an active role in her abduction. In the light of these circumstances, we are of the view that the prosecution has not taken the Court into confidence for throwing light, as to what had immediately preceded the occurrence; the immediate cause' therefore is shrouded in mystery, and for this reason we are not inclined to' confirm the death sentence awarded to the appellant by the trial Court. Consequently, we dismiss this appeal with the modification in the sentence.' Instead of death sentence, we award the lesser penalty to the appellant, who shall now suffer life imprisonment. Sentence of fine and the direction as to the compensation are maintained. Death sentence is not confirmed. Reference is answered accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.