' KHALIL-UR-REHMAN RAMDAY, J.--- One Ghulam Rasool had been tried by a learned Additional Sessions Judge of Lahore on the charge of having committed the murder of one Muhammad Sharif. Through its judgment, dated 3-1-1989, the said learned Court found him guilty of the charge and after convicting him under section 302, P.P.C. Punished him with death and a fine of Rs,20,000 or sufferance of two years' R.I. In default of payment of fine. Half of the amount of fine was directed to be paid to the heirs of the deceased, as compensation.
2. Murder Reference No,7 of 1989 seeks confirmation of the said sentence of death while Ghulam Rasool appellant impugns the said conviction and sentences recorded against him through Criminal Appeal No,1/J of 1989. Criminal Revision No,512 of 1989 filed by Barkat Ali complainant prays for enhancement of the amount of compensation directed to be paid to the heirs of the deceased.
3. All these three matters are being disposed of together through this single judgment.
4. The occurrence in question had taken place on the night between 25th and 26th of August, 1986 in the cattleshed of Sharif deceased situate in BAKKAR MANDI OF KOT KAMBOH KHURD, two and a half kilometres away from Police Station Nawankot of District Lahore and had been reported to Habib-ur-Rehman S.I. (P.W.11) at 4-00 a.m. On 26-8-1986 by Barkat Ali complainant while the former had reached Mayo Hospital on receipt of information about the said occurrence.
5. Barkat Ali complainant had informed the said S.I. That he was a resident of KOT KAMBOH KHURD where he was maintaining buffaloes for the purposes of his business of milk-selling; that in the cattleshed, his nephew Muhammad Sharif deceased was also keeping his buffaloes and that the said deceased was also engaged in the business of selling milk but since both the legs of the said deceased were invalid, therefore, he had employed one Ghulam Rasool as a servant for the last 8/9 months. He had added that the said Ghulam Rasool had gone to his village on the occasion of Eid-ul-Azha but did not return for 3/4 days whereupon, Sharif deceased sent a man to call the said Ghulam Rasool who finally came back on 25-8-1986 at about 4-00 p.m. The complainant had further claimed that when the said Ghulam Rasool came back, he informed Sharif deceased that he was not interested in continuing his employment with the said deceased and that his unpaid salary should be paid to him at which Sharif deceased replied that although he had been giving cash to the said Ghulam Rasool for the purposes of purchasing fodder but he had been getting the said fodder from the shopkeepers on credit which shopkeepers were in turn claiming this amount from the deceased and further that the said Ghulam Rasool should settle the account with the said shopkeepers and then take his outstanding salary from him.
6. The complainant had alleged that this led to an altercation between Sharif deceased and the said Ghulam Rasool but the complainant and others patched up the matter at which, Ghulam Rasool stated that he would settle the account by the morning.
7. The complainant had further reported that he alongwith Sharif deceased, Mst. Jannat Bibi (P.W.5)
(the mother of Sharif deceased), Mushtaq and the said Ghulam Rasool went off to sleep at their cattleshed but woke up on hearing the alarm of Sharif deceased at about 11-30 p.m. And saw that Ghulam Rasool appellant was inflicting injuries on the person of Sharif deceased with a Chhuri who then managed to escape from the place of occurrence.
8. Sharif deceased was carried to Mayo Hospital where he remained admitted till 30-8-1986 when he was referred to General Hospital on 9-9-1986 for further treatment and surgery but where he finally died on 9-9-1986.
9. During the course of investigation, Ghulam Rasool appellant had been arrested on 27-8-1986 by Habib-ur-Rehman S.I. (P.W.11) whereafter, he led to the recovery of a blood-stained Chhuri P.2 on 31-8-1986.
10. When confronted with the prosecution case, the appellant denied his participation in the occurrence in question; claimed that the person nominated as the assailant in the F.I.R. Was some other Ghulam Rasool and that he was not the one who had been accused of the murder in question; that the occurrence in question was a blind murder which had not been witnessed by any one and finally that since the actual accused was not traceable, the police had falsely implicated him in connivance with the complainant. The appellant had denied having ever been employed by Sharif deceased as a servant to look after the buffaloes.
11. Canvassing acquittal for the appellant, his learned counsel contended that the occurrence in question was an unwitnessed occurrence; that the present appellant had been involved in this case only as a case of mistaken identity and that the two eye-witnesses who had offered the ocular testimony were closely related to the deceased.
12. The occurrence in question had taken place at the cattleshed of Barkat Ali complainant who is a real paternal-uncle of Sharif deceased and where both of them were keeping their buffaloes. The members of the complainant's family staying at the said cattleshed is not an unreasonable claim as the necessity of not only looking after but even guarding the said buffaloes hardly needs any emphasis. It is true that Barkat Ali P.W. Is the real paternal-uncle of Sharif deceased and Mst.
Jannat Bibi P.W. Is the mother of the said deceased but that by itself is not sufficient to cast doubts about the veracity of their statements because nothing exists on record and nothing had in fact even been suggested that they had any motive whatsoever to falsely implicate Ghulam Rasool appellant in the occurrence in question. About Mst. Jannat Bibi's presence at the place of occurrence, suffice it to say that as has been noticed above, the stay of some members of the complainant's family at the place of occurrence was a reasonable claim and in any case, if an eye-witness had to be planted, then the complainant party could have easily picked on some other male member of the family and did not have to offer one of their females to enter the witness-box and to stand the cross-examination.
13. In the circumstances, the presence of Barkat Ali complainant and Mst. Jannat Bibi P.W. At the place of occurrence at the relevant time is not open to any doubt. They are both independent witnesses of the occurrence having no enmity or ill-will against the appellant.
14. It may also be mentioned here that the defence had itself brought on record that the complainant party had enmity with the other persons, including enmities arising out of the murder of a real brother and a step-brother of Sharif deceased. If the occurrence had gone unwitnessed and if the complainant party had to implicate some one out of mere suspicion and enmity, then the above-mentioned enemies of the complainant party should and would have been the obvious target and an allegedly unknown stranger from Sargodha or Gujranwala would not have been selected to become the scapegoat.
15. It is on record that the person who had murdered the deceased was a person who had remained employed with the deceased at the cattleshed in question for about 8/9 months. The eye-witnesses would, therefore, be more than sufficiently familiar with his face. Thus, the claim of the appellant that it was some other Ghulam Rasool son of Muhammad, caste Bhatti resident of Mauza Saala Miani in District Sargodha who was the culprit and not the appellant who admitted to be Ghulam Rasool son of Muhammad but claimed that his caste was Khokhar and he was a resident of a village situate in Pindi Bhattian of District Gujranwala, is a claim which does not deserve any credit. In any case, no evidence had been led, except a bare suggestion to the I.O., that the appellant was a person different from the person who was the actual murderer.
16. In this view of the matter, the appellant's plea of mistaken identity is only a bald and unsubstantiated assertion, which is accordingly rejected.
17. The learned counsel for the appellant finally argued that the offence committed by the appellant did not fall within the purview of section 302 of the P.P.C. As Sharif deceaed had died on account of septicemia (brain abscess) and not on account of the injuries caused by the appellant which were on the face of the deceased.
18. This contention of the learned counsel is also without force. It is true that no injury had been found on the head of the deceased but it had been specifically declared by Dr. Saleh Yousaf (P.W.6) that septicemia was a complication which had developed on account of the injuries which the deceased had received on his face. The death of the deceased being a direct result of the injuries caused by the appellant, it cannot be said that the case did not fall within the purview of section 302 of the P.P.C.
19. Consequently, the conviction of the appellant under section 302 of the P.P.C., as recorded by the learned trial Court, is not open to any doubt and is accordingly maintained.
20. But the confirmation of the sentence of death awarded to him has engaged our attention. It is the prosecution's own case that there was no previous enmity or ill-will existing between the appellant and the deceased. The appellant was a labourer/servant who was employed by the deceased and was being denied his wages. The possibility of the appellant having acted in the manner that he did, only on account of frustration as a result of denial of salary to him, cannot be ruled out.
21. These circumstances then warrant a lenient treatment to the appellant. Consequently, the sentence of death awarded to him is NOT CONFIRMED and the appellant is instead directed to suffer imprisonment for life on account of his conviction under section 302, P.P.C. The punishment of fine as awarded by the learned trial Court is, however, maintained but it is directed that the entire amount of fine, if realised, shall be paid to the heirs of the deceased. The appellant shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
22. Murder Reference No,7 of 1989 and Criminal Appeal No,1 /J of 1989 are disposed of in the above terms.
23. It is not denied on behalf of the complainant that the appellant was only a labourer. Nothing was brought on record by the prosecution to demonstrate that the financial status of the appellant would be in consonance with a direction to him to pay any amount beyond Rs,20,000. In any case, the heirs of the deceased would be adequately compensated by our above direction regarding payment of the entire amount of fine to them, as compensation.
24. Resultantly, we find no merit in Criminal Revision No,512 of 1989 which is accordingly dismissed.
THE SENTENCE OF DEATH IS NOT CONFIRMED.