' SARDAR MUHAMMAD DOGAR, J.--- Muhammad Nawaz (18-19) and Muhammad Ashraf (35) were tried by the Additional Sessions Judge, Kasur, for having murdered Muhammad Boota at 5-30 p.m.
On 19-10-1986 in front of the house of Muhammad All alias Manda Jat, in village Bakhoke, at a distance of 10 miles from Police Station Kanganpur, District Kasur.
' Learned Trial Judge, vide judgment, dated 8-2-1989 convicted Muhammad Nawaz under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs,5,000 in default whereof to undergo R.I. For 2 years. Whole of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.
' Muhammad Ashraf co-accused was acquitted vide same judgment.
2. Convict has filed appeal. Learned trial Judge has made a reference for confirmation of death sentence. Both the matters are being disposed of together.
3. F.I.R. Exh.P.C./1 was registered at the Police Station by Allah Din, M.H.C. P.W.3 at 9-5 p.m. On 19-10- 1986 on receipt of statement Exh.P.C. Of Muhammad Sharif P.W.5, recorded by Muhammad Ikram S.I. P.W.9, at 8-00 p.m. At Chowk Thing Moar on the same day.
' According to F.I.R. Muhammad Ashraf had abducted Mst. Sheeman daughter of Muhammad Boota 1-1/4 years before the occurrence. She was returned to Muhammad Boota 8-10 days after the abduction. Thereafter Muhammad Ashraf and his uterine brother Muhammad Nawaz appellant used to press Muhammad Boota to give the hand of Mst. Sheeman to Muhammad Ashraf but he had been refusing persistently. 9-10 months before the occurrence Muhammad Boota (deceased) married Mst. Sheeman with Muhammad Sadiq resident of Mauza Murali. After the marriage Muhammad Nawaz used to pester Muhammad Boota that he should marry Mst. Sheeman with Muhammad Ashraf after obtaining her divorce, but he (Muhammad Boota) remained adamant.
' On the day of occurrence the complainant was standing in front of the house of Muhammad Ali alias Manda at 5-30 p.m. Alongwith Muhammad Boota and Zulfiqar. Muhammad Nawaz and Muhammad Ashraf came there. Muhammad Ashraf asked Muhammad Boota, 'will he marry Mst.
Sheeman with him'? On refusal by Muhammad Boota, he caught him from behind, whereafter Muhammad Nawaz appellant brought out a Khanjer from his fold and stabbed Muhammad Boota on the left flank. Muhammad Boota fell down. P.W. Ghulam Qadir came there hearing the alarm, raised by the complainant and Zulfiqar, and witnessed the occurrence. The accused ran away raising Lalkaras. Muhammad Boota was taken to the Civil Dispensary at Bakhoke. He died soon after reaching there.
4. Muhammad Ikram S.I. After despatching the statement to the Police Station for registration of case, visited the spot and collected blood-stained earth from there. Thereafter he went to the hospital and despatched the dead body for post-mortem after preparing inquest report.
' Both the accused were arrested by him on 21-10-1986. Khanjer P.3 got recovered by appellant Muhammad Nawaz on 21-10-1986, lying buried in his courtyard, was taken into possession vide memo. Exh.P.F. The challan was submitted to Court after completion of necessary investigation.
5. Statements of nine P.Ws. Were recorded at the trial.
' Dr. Muhammad Ashraf, who had performed autopsy at 10-00 a.m. On 10-00 a.m. 20-10-1986, appeared as P.W.1. He had noted a stab wound 3 x 1 c.m. On left side of chest lower part along the costal margin, spleen underneath was perforated. Spleen vessels were injured.
' On internal examination stomach was found perforated. Death was opined to have occurred due to shock and haemorrhage, resulting from the injury which was opined to have been caused by a sharp-edged weapon.
' Time between the injury and death was opined to be immediate while the time between death and post-mortem was opined to be within 12 to 24 hours.
' During cross-examination he stated that the cause of death was perforation of spleen.
6. Ocular account was deposed to by Muhammad Sharif P.W.5 and Ghulam Qadir P.W.6.
' Muhammad Sharif while repeating the facts given by him in the F.I.R. Did not name the eye- witnesses, i,e. Ghulam Qadir and Zulfiqar, during examination-in-chief. However, he stated during cross-examination that they had reached the spot hearing his cries. He also did not specifically mention during the examination-in-chief that Muhammad Boota had married Mst. Sheeman 9-10 months before the occurrence. He admitted that the place of occurrence was surrounded by residential houses. He did not deny that they had felt insulted due to the abduction of Mst.
Sheeman. However, he denied that they had involved the accused falsely due to enmity. He denied the suggestion that he had not witessed the occurrence and that the police had recorded his statement at the spot.
' He admitted that Hanif P.W. Was step-son of the deceased but denied that Ghulam Qadir P.W.
Was nephew of widow of Boota.
7. Ghulam Qadir P.W.6 corroborated the statement made by Muhammad Sharif P.W.S. During cross-examination he stated that 5-6 persons had reached the spot hearing their cries. He, however, expressed inability to give their names. He gave out that he was a member of the Punchayat which had worked for the return of daughter of Muhammad Boota. He denied the suggestion that he had not witnessed the occurrence.
8. The evidence of recovery of Khanjer P.3 at the instance of Muhammad Nawaz appellant was deposed to by Muhammad Hanif P.W.7. During cross-examination he stated that Chowkidar of the village was also with the police party at the time of recovery. He stated that Amjad Shah Councillor and other respectables of the village were not asked by the police to join them for effecting recovery. While admitting that the deceased was his step-father, he denied that he had made a false statement.
9. Muhammad Ikram, S.I. Who had recorded statement Exh.P.C. On the basis of which formal F.I.R.
Exh.P.C./1 was recorded at the police station, had visited the spot, investigated the case, arrested the accused on 21-10-1986 and got the accused challaned after effecting recovery at the instance of Muhammad Nawaz appellant, appeared as P.W.9 and gave those facts. He stated that he had firstly visited the spot and had gone to the hospital thereafter, to despatch the dead body for post- mortem examination after preparing necessary papers.
' During cross-examination he admitted that he had not joined Lumberdar, Councillor and other respectables of the village, at the time of recovery of Khanjer from Muhammad Nawaz. However, he denied the suggestion that he had conducted the investigation in a dishonest manner. He also denied the suggestion that he was told that Yunas and Bashir had committed the murder of Muhammad Boota.
' Statements of the remaining P.Ws. Are more or less of a formal nature.
10. The appellant and the acquitted accused during their statements under section 342, Cr.P.C.
Denied the prosecution case as a whole and pleaded innocence. Both of them stated that daughter of Muhammad Boota deceased had come to their house, of her own accord but she was returned to the deceased. They admitted that Muhammad Boota had married his daughter 1-1/2 years before the occurrence. However, they denied the allegation that they had been pestering the deceased to obtain divorce of his daughter for marriage with Muhammad Ashraf. None of them made statement on oath under section 340(2), Cr.P.C. Muhammad Ashraf produced in defence copy of Nikahnama of Mst. Sheeman with one Sadiq.
11. Learned counsel for the appellant criticised the impugned judgment after having taken us through the evidence. According to him the prosecution had failed to prove motive for the occurrence and the eye-witnesses do not appear to have witnessed the occurrence. Learned counsel contended that the ocular account as well as the evidence of recovery of Khajer at the instance of the appellant was deposed to by related and interested witnesses.
' Lastly, learned counsel submitted that even if the conviction of the appellant under section 302, P.P.C. Is maintained, the sentence of death be not confirmed as he had no direct interest of marrying the daughter of the deceased, nor had taken any undue advantage.
12. Learned counsel for the State defended the judgment of the trial Court.
13. Although the appellant had denied that Mst. Sheeman was abducted by his brother Muhammad Ashraf yet, he had admitted that Mst. Sheeman had come to their house. The same was the stance of Muhammad Ashraf. It was, also, never the case of the defence that the girl had not been restored to the deceased through Punchayat. The appellant also did not deny that the deceased had married his daughter with one Sadiq. In fact his co-accused had produced in defence the Nikahnama of daughter of the deceaseed.
' In the circumstances, we find no justification to discard the evidence of the prosecution that the appellant had been asking the deceased to obtain the divorce of Mst. Sheeman for her marriage with Muhammad Ashraf, his brother. We do not think that such a story would have been fabricated by the complainant. In the circumstances the argument of learned counsel for the appellant that the prosecution had failed to prove the motive for the occurrence, in our view, does not possess any force.
14. P.W.5 was only distantly related to the deceased while P.W.6 was not related at all. He, of course, belonged to the Bratheri of the deceased. That alone is not sufficient to discard his testimony.
' Both the witnesses were residents of the same village. The occurrence had taken place in the evening. It is time, when the villagers are back to their homes after day's work. The presence of the witnesses, therefore, at the place of occurrence, cannot be denied. They have given reasonable explanation for being near the spot. No doubt, one of them admitted that they were unhappy with the accused for their having abducted the daughter of the deceased but that does not prove that they had gone so inimical to the accused that they would substitute the appellant for the real murderer. In fact, even a stranger on hearing that somebody's daughter is abducted by someone, would feel perturbed and aggrieved as this is an act of social injustice. Whether one is related or not, such a thing would cause pain to anyone. If the witnesses had not been at the spot, the complainant would not have moved so quickly to the hospital nor the occurrence could have been reported so promptly. The testimony of both the eye-witnesses inspires confidence and appears to be worth acting upon.
15. The evidence of recovery of Khanier at the instance of the appellant from his own house, lends reasonable corroboration to the ocular account. Although the witness examined for recovery was step-son of the deceased yet he was not the only one who deposed about that. The Investigating Officer also verified that fact. There is nothing on record to consider that the Investigating Officer was partial or inimically disposed towards the appellant and so might have fabricated the evidence of recovery.
16. The ocular account which stands corroborated by the evidence of recovery of weapon, coupled with the evidence of motive also finds corroboration from the medical evidence.
' In the circumstances we feel no hesitation in saying that the prosecution had successfully brought home charge under section 302, P.P.C. Against the appellant. His conviction under section 302, P.P.C. Is, therefore, maintained.
17. The appellant had first played role in the abduction of a young unmarried daughter of the deceased. The deceased, instead of proceeding against him legally, laid stress on having back his daughter through Punchayat. He did not report the matter against the appellant even after that, and proceeded to settle his daughter by marrying her to a person belonging to a different village. The appellant did not let him live in peace and started pestering him to obtain the divorce of his daughter for her marriage to his brother. On his refusal he committed his murder. He thus, deserves no leniency. No case for awarding lesser sentence of imprisonment for life is made C out. The sentence of death awarded to him by the trial Court is, therefore, confirmed. The sentence of fine and direction of the same to be paid as compensation to the heirs of the deceased, after recovery, are also maintained.
' Sentence of death is confirmed.
Death confirmed.