MIAN ABDUL KHALIQ, J.-This appeal assails the judgment of the learned Sessions Judge, Rahimyar Khan, dated 9.4.1991, by which the appellant was convicted under section 302 P.P.C, for committing the murder of deceased Mithal Khan and was sentenced to death plus fine of Rs 5,000/-, in default whereof to suffer R.I. For one year. He was also directed to pay Rs. 5,000/- as compensation to the heirs of the deceased, in default whereof to undergo R.I. For one year. He was also convicted under section 307 P.P.C, for murderous assault on P.W.9 Mst. Bhirawan and was sentenced to suffer R.I. For 5 years plus payment of fine of Rs. 1,000/- as compensation to P.W.9 Mst. Bhirawan and in case of default in its payment to undergo four their R.I. For 3 months. The co-accused Phuloo Khan was convicted under section 323 P.P.C, and sentenced to a period of his detention as under trial from 28.2 1989 Jo 3.5.1989 and also to pay a fine of Rs. 500/-, in default whereof to suffer S.I. For fifteen days. He was also directed to pay Rs. 500/- to Mehar Khan as compensation, or in default thereof to suffer S.I. For fifteen days. Phuloo Khan was not filed appeal against his conviction and Muhammad Sharif, cor accused was acquitted of the charge.
2. The trail Court has sent murder reference for confirmation. Both the murder reference and the criminal appeal arising out of the same matter shall be disposed of by this judgment.
3. Briefly the prosecution case is that P.W.8 Manzoor Ahmad complainant on 16.2.1989 at 5.30 p.m.
At Adda Sheikh Dahan, police station Abadpur, District Rahimyar Khan made statement Exh.PH/1 before P.W.12 Muhammad Zafarullah Khan, Inspector/S.H.O. To the effect that he was resident .Of Thul Hassan and was a cultivator, his sisters Mst. Haliman and Mst. Bhirawan Mai (P.W.9) were married in village Fatehpur Tiwana. On the Watta of . Mst. Bhirawan, the brother of the complainant Mithal deceased was married with Mst. Anwar Mai daughter of Phuloo Khan, and the deceased was residing with his father-in-law as Ghar Damaad. On the previous Monday evening, Mst. Haleeman Mai's mother-in-law namely Mai Saleemo died and on the day of occurrence there was her condolence; meeting and to join the same the complainant along with his father; paternal cousins Molazim Hussain and Muhammad Hussain sons of Sahib Khan and Siddique son of Kalu Khan, caste Gopang, residents of Thul Hassan, had come to Mauza Fatehpur Tiwana. At Fateha Khawani they were sitting in the house of Umaid-Khan son of Fazal Khan, sister's husband of the complainant and from there at a distance of one acre, the other sister of the complainant Mst.
Bhirawan (P.W.9) and deceased Mithal resided. At Zohar-wela on hearing their hue and cry Mehar Khan, father of the Complainant. Rushed to their house a bit earlier. The complainant along with Umaid Khan, Molazim Hussain, Muhammad Hussain, Muhammad Siddique and Sahib Khan, eye* witnesses (given up) also reached and within , their sight the appellant Faqir .Bakhsh was beating Mst. Bhirawan (P.W-9). The deceased Muthal stepped ; forward to rescue P.W.9, whereupon the appellant went running to his residential hut and brought a hatchet. He attacked the deceased and inflicted hatchet blow from its right side on the head of Mithal. Deceased, who fell down and became unconscious. To save him P.W.9 Mst. Bhirawan forwarded, and the appellant also gave hatchet blow on her head fr6m the right side, who was injured and fell down. The father of. The complainant wanted to go near, on which Phuloo Khan, co- accused inflicted soti blow on his head and Muhammad Sharif (acquitted eo- accused) gave soti blows on his back and legs. The P.Ws had witnessed the Occurrence and rescued the injured from the accused persons. P.W.9 Mst.
Bhirawan had told the witnesses that Mithal deceased wanted to bring her to the house of Mst.
Halima Mai for Condolence, but her husband (appellant) had stopped them. P.W.9 insisted, on which the appellant started giving her beating and when the deceased Mithal forwarded to save her, the appellant from inside his hut brought a hatchet with which he had injured, her and. The deceased. The complainant further stated that as the appellant was not enjoying good reputation, due to that the people of the Bratheri did not allow him to come to their houses and that is why the appellant did not permit his wife. P.W.9 to go for condolence. Due to that grievance the appellant had injured Mithal deceased and P.W.9 with the intention of causing their murder. Muhammad Sharif (acquitted co-accused) and his father Phuloo Khan had also injured the father of the complainant Mehar Khan (P.W.10). The: complainant PW.8 hud taken along his deceased brother in injured condition while he was unconscious on a cot along his sister P.W.9 Mst. Bhirawan and P.W.10 Mehar Khan in injured condition in the company of Molazim Hussain, Muhammad Hussain, Umaid Khan, Siddique and Sahib Khan P.Ws (given up) and made his statement Exh.PH/1.
4. P.W.12 Muhammad Zafarullah, Inspector/S.H.O. Was present on patrol duty as bus stand Sheikhwan on 16.2.1989 at about 5.00 p.m. When P.W.8 complainant Manzoor Ahmad met him and made his statement Exh.PH/1. He sent the same to the police station for registration of the formal F.I.R., where P.W.7 Safdar Hussain H.C. Received it and on its basis correctly recorded the F.I.R. Exh.PH.
P.W.12 prepared injury statement of Mithal, Mehar Khan, Mst Bhirawan Exhs.PJ/1, PL/1 and PK/2 respectively and sent them for medical examination. Mithal deceased was injured and was unconscious at that time. P.W.12 proceeded to the spot, inspected the locale, secured blood- stained earth from the place where Mithal deceased had fallen in injured condition and prepared sealed parcel vide memo Exh.PC. P.W.12 recorded the statements of P.Ws and then proceeded to the Rural Health Centre, where he recorded the statements of Mehar Khan (P.W.10) & Mst. Bhirawan (P.W.9). On 18.2.1989 Mithal injured succumbed to his injuries and P.W.12 prepared his injury statement Exh.PA/1 and inquest report Exh.PA/2 and despatched the dead body for autopsy. On 28.2.1989 P.W.12 arrested the appellant Faqir Bakhsh and co- accused Muhammad Sharif and Phuloo Khan from their houses. On 4.3.1989 appellant Faqir Bakhsh led to the recovery of blood- stained hatchet P.3 which was made into a sealed parcel and secured vide memo Exh.PE. On the same day Muhammad Sharif (acquitted co-accused) while in custody led to the recovery of soti P.4 which was secured vide memo Exh.PF. On that very day Phuloo Khan, co- accused led to the recovery of soti P.5 secured by P.W.12 vide memo Exh.PG. P.W.12-deposited the sealed parcels with the Duty Officer on their respective dates for their safe custody and after completion of-the investigation submitted the challan.
5. The prosecution examined 12 P.Ws in all to substantiate its case. On 16.2.1989 at about 7.20 p.m.
P.W.11 Dr. Muhammad Ramzan Arif medically examined Mithal in injured condition and found the following injury on his person:- "An incised wound 6 " x 2 1/8" x bone cut and brain matter coming outside from the wound in the left front of parietal region of the head."
The patient was unconscious. B.P.90/40 MMHG. Pulse was 94 p.m. Breathing was difficult and froth was coming out from the mouth. Pupils were slightly dilated. The injury was grievous and dangerous to life caused by a sharp edged weapon within six hours of the examination. Exh.PJ is the carbon copy of medico legal report.
On the same day at about 7.35 p.m. P.W.11 Dr. Muhammad Ramzan Arif medically examined P.W.9 Mst. Bhirawan Bibi and observed an incised wound 2 x 1/8" x scalp deep on the frontal region of the head on left side from the mid line". The injury was caused by sharp edged weapon within six hours of the examination.
On the same day, at about 7.40 p.m. P.W.11 medically examined P.W.10 Mehar Khan and observed a contusion 1" x 1/2" and abrasion 1/4" x 1/4" over the wound n the right frontal region of his head caused by blunt weapon within six hours of the examination. The injury was simple in nature.
6. On 18.2.1989 Dr. Zafar Iqbal, (P.W.1) conducted post-mortem examination upon the dead body of Mithal Khan and found .................................. The following injury:- An incised wound 6" x 2" x bone deep and brain matter coming out from the wound from left parietal region of the head.
On dissection of the head, all the layers of the brain were found to be congested. There was extra vasation of the blood in the brain due to sharp injury. All the. Layers and the brain matter had been cut down below the wound. In the opinion of the Doctor, the death was caused due to internal bleeding, hypovolemic shock. The head injury was sufficient to cause death in the ordinary course of nature and was anti mortem. The autopsy was conducted after about 12- 18 hours of the death.
Exh.PA is the carbon copy of the post-mortem examination report.
7. P.W.2 Siraj Ahmad, F.C. On 8.3.1989 delivered two sealed parcels obtaining bloodstained earth and bloodstained hatchet to the office of Chemical Examiner intact which he had received from P.W.3 Muhammad Hussain H.C. P.W.3 Muhammad Hussain H.C. On 18.2.1989 had received one sealed parcel containing bloodstained earth and a parcel containing bloodstained hatchet on 4.3.1989 which he handed over to P.W.2 on 8.3.1989 for onward delivery of the same in the respective offices. P.W.4 Muhammad Aslam Shahid, Revenue Patwari had prepared site plans Exh.PB and PB/1 on the direction of the police and upon pointation of P.Ws in the scale of 40 karams to an inch. P.W.5 Khadim Hussain had witnessed taking into possession of bloodstained earth vide memo Exh.PC attested by him and the last worn clothes of the deceased bloodstained Chadar P.2 and shirt P.I which a constable produced before P.W.12/I.O. After post-mortem examination of the deceased secured vide memo Exh.PD also attested by P.W.5. He also witnessed the recovery of bloodstained hatchet P.3 from the residential sahal (hut) of the appellant at his instance which was secured by P.W.12 vide memo Exh.PE attested by him and made into a sealed parcel.
Muhammad Sharif (acquitted co-accused) had also led to the recovery of stick P.4 from his residential hut in the recense of P.W.5 secured by P.W.12 vide memo Exh.PF attested by him. On the same day, Phuloo Khan, co-accused while in custody led to the recovery of stick P.5 from his residential hut, which was secured by P.W.12 vide memo Exhorting attested by him. P.W.6 Mukhtar Ahmad, I.C. Escorted the dead body of the deceased to the mortuary and after post-mortem examination the Doctor handed him over the bloodstained last worn clothes of the deceased P.I and P.2, which he produced before PW12, who secured the same vide memo Exh.PD. P.W.7 Safdar Hussain H.C. On 16.2.1989 at about 5.30 p.m. While working as Duty Officer received complaint Exh.PH/1 and on its basis correctly recorded F.I.R. Exh.PH. P.W.8 Manzoor Ahmad complainant of the present case narrated the facts mentioned by him in the complaint Exh.PH/1 and further stated that on the direction of the Medical Officer of Mianwali Qureshian Rural Health Dispensary, due to precarious condition of Mithal deceased he took him to the D.H.Q Hospital, Rahimyar Khan, where he expired on the third day. P.W.9 Mst. Bhirawan stated that she was married to the appellant about 5/6 years back and had been putting up within him in his house and her sister Mst. Haleeman was married to P.W. Umaid Ali (given up), who is resident of Mauza Fatehpur Tiwana and in exchange of P.W's marriage Mst. Anwar Mai, a sister of Faqir Bakhsh appellant was married to her brother Mithal deceased who was also putting up with his father-in-law i.e. Accused Phuloo Khan as Khanadamad. The mother-in-law of Mst. Halima Bibi namely Salim Mai died and whose house was situated in their village at a distance of about one acre from the residence of P. W.9's in-laws. On the day of occurrence, it was a condolence meeting of said Salimo Mai and there was a Khairat in that connection. The persons from P. W.9's paternal family namely Mehar Khan, her father (P.W.10), her brother Manzoor Ahmad (P.W.8), her uncle Sahib Khan, Molazim Hussain, Muhammad Hussain and Muhammad Siddique, P.Ws (given up) had also come there to participate in the condolence meeting. P.W.9 wanted to go the said condolence meeting along with her brother Mithal deceased to the house of their sister Mst. Halima Mai, but the appellant did not allow them to go. When P.W.9 insisted, the appellant started belabouring her with fist blows. Her deceased brother Mithal came to rescue her. The appellant brought out a hatchet from his residential sahal (hut) and inflicted a blow with it on her head. On the intervention of Mithal the appellant Faqir Bakhsh landed a hatchet blow upon his head, who fell injured on the ground and became unconscious. P.W.9 also fell on the ground after receiving injury. Upon their alarm,- their father P.W.10 Mehar Khan meanwhile arrived, who witnessed the occurrence. He was. Followed by Sahib Khan, Umaid Khan, 'Manzoor Khan, Muhammad Hussain and Siddique P.Ws (given up). P.W.10 Mehar Khan was the first who arrived at the spot, tried to rescue them, whereupon Phuloo Khan have stick blows on different parts of his body. Muhammad Sharif (acquitted co-accused) also reached the spot and landed injuries with his stick on P.W.10. Mithal injured was referred for medical treatment to the Hospital at Rahimyar Khan, where he succumbed to his injuries on the third day of the occurrence. P.W.9 was taken to the Rural Health Centre, Mianwali Qureshian, where she was medically examined and was treated for her injuries and remained admitted, and after receipt of information of the death of her deceased brother Mithal she left the Hospital despite her injuries
8. P.W.10 Mehar Khan, father of the deceased corroborated the statements of P. Ws.8 and 9 in minute details and also stated that the appellant after bringing out a hatchet gave a hatchet injury on the head of Mithal deceased, who was putting up in the house of Phuloo Khan, co-accused as his Khana- Damad. P.W.lO's daughter Mst. Bhirawan (P.W.9) went ahead to rescue her brother, whereupon the appellant also gave a hatchet blow on "her head. Mithal deceased had fallen on the ground unconscious. Muhammad Sharif (acquitted co- accused) also gave blows on the back and legs of P.W.10. Mithal was transported to the Hospital at Rahimyar Khan, where he expired on the third day of the occurrence. P.W.10 was also medically examined along with P.W.9.
9. P.W.12 Muhammad and Zafarullah Khan, Inspector/S.H.O recorded complaint Exh.PH/1 on the statement of P.W.8 on 16.2.1989 and after completing the formalities challaned the accused persons.
10. The appellant Faqir .Bakhsh when examined under section 342 Cr.P.C, denied the prosecution evidence against him and recovery of hatchet P.3 at his instance, and also pleaded alibi. In answer to a question "why this case against you and why the P.Ws have deposed against you?" he replied as under:- " I have been falsely implicated in this case. Deceased Mithal had illicit connection with his uncle's daughter Mst. Sarwar Mai. Mithal was however engaged to said Mst. Sarwar Mai, but since he developed illicit connections with the lady prior to the marriage his relatives and relatives of Mst.
Sarwar Mai nursed grudge against him and started quarrelling with Mithal who came to me with his sister P.W. Mst. Bhirawan and thus he married Mst. Bhirawan with me and in exchange thereof my sister was married to Mithal. Mithal accordingly started living with me against the wishes of his relatives and did marry his sister Mst. Bhirawan with me against the will of her parents and other relatives. Accordingly, the relatives of the deceased did not participate in the marriage. Mithal and his sister had been amicably living with us for 7/8 years. On the night preceding the day of Khairat held in connection with the death of Mst. Saleemo aforesaid the mother, sister and brother of Mithal stayed in our house and had been persuading Mithal to participate in the Khairat and to accompany them back to their home, but Mithal flatly refused to oblige them. After the sunrise I went Zahirpir for the purpose aforementioned. I returned from Zahirpir at evening time and learnt that Mithal and P.W Mst. Bhirawan were taken along by their aforesaid relatives. On the third day Allah Bachaya Gopang, who is an elder and Sardar of ' our bradari had sent for me and my father/co-accused Fullan to. Settle the dispute about Mithal and for restoration of my wife to my house. Our said Sardar made us to sit there. He had perhaps already arranged for the police who arrived there and Allah Bachaya Gopang produced me and my father before the police. Since Mithal and Mst. Bhirawan were putting up in our house against the wishes of their parents and uncle, who had taken them back, I cannot tell who murdered Mithal but we have been falsely involved."
He further stated that he was innocent. He had not made statement on oath as envisaged under section 340(2) Cr.P.C, but produced three D.Ws in defence. D. W.l Abdul Ghafoor stated that he was present at his tubewell along with Phuloo Khan and Muhammad Sharif on the day of occurrence.
They heard alarm from the place of occurrence, rushed there and witnessed Mithal in injured condition. Faqir Bakhsh appellant was not present there. Phuloo and Sharif accused were with him from 1.00 p.m. To 3.00 p.m. D.W.2 Muhammad Sharif stated that the appellant used to work as Mistri at his tubewell and on the day of occurrence, D.W.2 sent him to Zahirpir to purchase spare parts and he returned at 6.00 p.m. D.W.3 Sohanra stated that on the day of occurrence, he went to Zahirpir and the appellant also travelled with him in the same bus for Zahirpir and they returned after purchasing some spare parts at 6.00 p.m. On return D.W.3. Came to know about the occurrence.
11. The prosecution case rests upon motive, eye-witness account, medical evidence and the recoveries.
12. The motive behind the occurrence has been stated by P.W.8 complainant Manzoor Ahmad and P.W.9 Mst. Bhirawan. P.W.8 in his statement Exh.PH/1 on the basis of which formal F.I.R. Exh.PH was recorded had narrated that Mst Saleemo, mother-in-law of Mst. Halima Mai sister of P.W.8 and P.W.9 died and on the day of occurrence there was a Khatam ceremony and the P.Ws had come to attend the same. He further stated that Mst. Bhirawan (P.W.9) told that Mithal deceased wanted to take her (P.W.9) to the house of Mst. Halima Mai for condolence, but the appellant had stopped them, and due to her insistence, the appellant started beating her, and as the appellant did not command good reputation, the persons of his Bratheri did not allow him to visit their homes and he also did not permit his wife P.W.9 to go for condolence. P.W.8 and P.W.9 corroborated each other on the point of motive.
13. The ocular testimony has been furnished on record by the statements of P. Ws.8, 9 and 10.P.W.8 is brother of the deceased, P.W.9 is his sister, and P.W.10 is the father of the deceased, whereas they are wife's brothers and father- in-law of the appellant respectively. P.W.8 and P.W.10 were present in the house of late Mst. Saleemo at a distance of one acre when they heard shrieks of P.W.9 and reached the place of occurrence one after the other, i.e. P.W.10 reached earlier and then P.W.8.
P.W.8 and P.W.10 witnessed the receipt of one injury each by the deceased and P.W.9 Mst. Bhirawan on their heads at the hands of the appellant. P. Ws.8, 9 and 10 are closely related inter se and also with the appellant and they made corroborative and consistent statements. Implicit reliance can be placed on their testimony.
13. Medical testimony has been furnished on record by the statements of P.W.11 Dr. Muhammad Ramzan Arif who had medically examined the deceased Mithal in injured condition, P.W.9- Mst.
Bhirawan and P.W.10 Mehar Khan. P. W.l Dr. Zafar Iqbal conducted autopsy on the dead body of the deceased. The medical evidence furnished by the statements of P.W.11 and P. W.l is in complete consonance with the oral testimony of P.W.8,......... P.W.9 and P.W.10.
14. Recovery aspect of the case has been placed on record by the statement of P.W.5 Khadim Hussain, in whose presence appellant Faqir Bakhsh led to the recovery of bloodstained hatchet P.3 from his residential hut, which was secured by P.W.12 vide memo Exh.PE attested by him and P.W.
Umaid Ali (given up). P.W. 12 had prepared sealed parcel of P.3. P.W.5 also witnessed the recovery of bloodstained earth from the spot vide memo Exh.PC attested by him and P.W. Umaid Ali (given up) and secured by P.W.12 in a sealed parcel. The reports of the Chemical Examiner Exhs.PN, PO and that of the Serologist Exh.PN/1 and PO/1. In respect of bloodstained earth and bloodstained hatchet P.3 are positive. The recovery aspect of the case has been proved on record.
15. The ocular testimony furnished by the statement of P. Ws.8 and 10 is in conformity with the medical evidence brought on record by P.W.11 and P.W.1, and they are in consonance with each other. The motive behind the occurrence coupled with the recovery aspect of the case has been proved on record and excepting minor discrepancies here and there, nothing has been brought on record by the defence that the P.Ws had made dishonest improvements in their statements or had animus against the appellant. The plea of alibi raised by the appellant has not been established on record.
16. The appellant Faqir Bakhsh is closely related to the deceased Mithal and eye-witnesses i.e. The deceased was the sister's husband of the appellant, PW.8 is wife's brother of the appellant, P.W.9 is wife of the appellant, whereas PW.10 is father-in-law of the appellant. The deceased was brother of P.W.8 and P.W.9 and son of P.W.10. The parties are closely related inter se. P.W.9 during cross- examination has stated that when they arrived at the spot, he witnessed the appellant Faqir Bakhsh delivering slaps to P.W.9 and he was empty handed at that time. The deceased Mithal intervened to the rescue of PW.9 from the beating being given to her by the appellant, when the latter went inside his sahal (hut) and returned with a hatchet. The appellant was abusing Mst.
Bhirawan (P.W.9) and appeared fairly angry and was in high temper. There was no serious dispute between P.W.9 and the appellant, but there had been some quarrel between them on account of restrictions being imposed by the appellant on, P.W.9 during cross- examination has stated that there was discussion/arguments between the appellant and herself for about half an hour regarding her desire to visit the house of late Mst. Saleemo and except for the question of visit, there was no other dispute on the day of occurrence between the appellant and herself. She further stated that it was correct that the discussion was in loud tone between her and the appellant and within the view of the deceased, the appellant had slapped her. The sahal (abode) from where the appellant had brought out hatchet was at a distance of 5/6 karams or so from the said place the appellant had slapped her. P.W.10 during cross-examination stated that it was correct that the deceased had no enmity or dispute with the appellant and vice versa. It was correct that Mithal deceased was happily residing in the abuse of the appellant as Khana-damad before the actual occurrence. P.W.10 and other P.Ws were at reacted to the house of the appellant and accused persons on hearing the alarm of P.W.9. P.W.8 and P.W.10 were present in the house of late Mst. Saleemo at that time. P.W.10 further admitted that P.W.9 was weeping when the appellant was beating her. It is pertinent to mention here that there was no previous enmity between the parties and due to the insistence of P.W.9 to join the Khatam ceremony at the house of late Mst.
Saleemo, the mother-in-law of P. W.9's sister, a dispute had arisen between the appellant and P.W.9. The appellant slapped her in presence of the deceased and on hearing shrieks P.W.8 and P.W.10 were attracted to the spot. Mithal deceased intervened, on which the appellant flared up and in the heat of. Patience went to his sahal (hut) and brought out hatchet and inflicted one injury each on the deceased and P.W.9. The appellant had not repeated hatchet blows either on the deceased or on P.W.9. There was no previous enmity between the parties and there was also no premeditation. It was a sudden flare up in which the appellant could not control his passions.
17. Pursuant to the above discussion, while maintaining the conviction and sentence of the appellant Faqir Bakhsh under section 302 P.P.C, we alter it to imprisonment for life. The sentence under section 307 P.P.C, for 5 years R.I. Is maintained. The fine imposed under section 302 P.P.C, shall also be paid as compensation to the legal heirs of the deceased along with Rs. 5,000/- as compensation already awarded by the trial Court. The sentence under section 302 P.P.C, and section 307 P.P.C, shall run concurrently with the benefit of section 382-B Cr.P.C. The sentence of death is NOT confirmed. 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.