' SH. IJAZ NISAR, J.---Rehmat Ali son of Allah Ditta (40) was tried for the murder of Akhtar Browno alias Pappu deceased. By judgment dated 24-11-1990, the learned Additional Sessions Judge, Lahore convicted him under section 302, P.P.C. and sentenced him to death plus a fine of Rs,10,000.
In case of default in the payment of fine, he was ordered to undergo two years' R.I. The amount of fine was ordered to be paid to the mother of the deceased as compensation.
2. Challenging his conviction and sentence, Rehmat All appellant has filed this appeal while the learned trial Court has made a reference for confirmation of his death sentence. Both the matters shall be disposed of by this judgment.
3. Briefly stated, the prosecution case is that after the death of her first husband, namely Barkat Alex, Mst. Venus P.W. embraced Islam and contracted marriage with Rehmat Ali appellant on 7-11- 1983. Akhtar Browno deceased, the son of Mst. Venus from her first husband Barkat Alex, felt offended and had asked the appellant not to visit their house. After some time, the relations between Mst. Venus and the appellant became strained and she filed a suit for dissolution of marriage against him. The deceased was cited as a witness in the said case on behalf of Mst.
Venus.
4. On 3-7-1984 at mid-night time, Akhtar Browno deceased, his brother Akhtar Refile C.W.1 and his paternal uncle Inayat Masih P.W.8 were sitting in the courtyard of their Quarter No,241, Block No,3, Sector B-1, Township, Lahore. The appellant came there. Akhtar Browno deceased objected to his visit upon which the appellant attacked him with a Chhuri and caused two injuries one on the chin and the other on the neck. Thereafter, he ran away alorgwith Chhuri. The deceased was removed to the Clinic of Dr. Nisar near his house but he expired before any medical aid could be given to him. The occurrence was also witnessed by Inayat Masih P.W.8, Mst. Venus P.W.9 and Mangal Masih C.W.2. Inayat Masih P.W.8 reported the matter to the police by lodging F.I.R. Exh.PD at mid-night time.
5. After recording the F.I.R., Muhammad Ashraf Inspector P.S. Township, proceeded to the spot and prepared the inquest report Exh.PE and injury statement Exh.PF of the deceased. He collected blood-stained earth from the spot through memo. Exh.PC. He arrested the appellant on 4-7-1984.
On the following day, the appellant got recovered blood-stained Chhuri Exh.P.5 from underneath a cot lying in his house vide memo. Exh.PG. On completion of the investigation, he challaned the appellant.
6. Dr. ZA. Sherazi conducted the post-mortem examination on the dead body of Akhtar Browno deceased and found penetrating wound 2.5 c.m. x 1.25 c.m. x going into neck and an incised wound 4.5 c.m. x 1.5 c.m. on right side of chin. Both the injuries were caused by a sharp-edged weapon.
Injury No,1 was sufficient to cause death in the ordinary course of nature. He could not be personally examined as he was reported to have gone abroad. His handwriting and signatures were proved through secondary evidence by Muhammad Shah, Record-Keeper, Department of Forensic K.E.M.C., Lahore P.W.12. Blood-stained Chhuri alleged to be recovered at the instance of the appellant was sent for chemical examination and vide report Exh.PK of the Serologist was found to be stained with human blood.
7. To prove its case, the prosecution examined eleven witnesses. Of them, Sajjan Masih P.W.7, Inayat Masih P.W.8 and Mst. Venus P.W.9 deposed about the occurrence. Sajjan Masih stated that he resided in the adjoining house of the deceased and proceeded there on hearing the noise and saw the occurrence. Inayat Masih P.W.8 is uncle of the deceased. According to him, he was present in the courtyard of the deceased alongwith Asghar Refile when the occurrence in question had taken place. Mst. Venus stated that she was also present in the house alongwith her children and Inayat Masih P.W. when the appellant attacked the deceased.
8. Although Asghar Refile and Mangal Masih were also mentioned as eye-witnesses in the F.I.R. besides Inayat Masih and Sajjan Masih and were cited as prosecution witnesses in the calendar of witnesses but their statements were not recorded by the learned trial Court. Considering them as material witnesses and their examination necessary for the just decision of the case, we directed the learned Sessions Judge, Lahore to summon them and record their statements under section 428, Cr.P.C. In compliance of our order, the learned Sessions Judge recorded their statements in the presence of the appellant and other parties. Asghar Refile appeared as C.W.1 and fully supported the occurrence. He is brother of the deceased and furnished all the necessary details of the occurrence. Mangal Masih C.W.2 denied to have witnessed the occurrence.
9. The appellant denied the prosecution allegations and stated that he was involved on account of enmity. He, however, admitted to have married Mst. Venus after the death of her former husband.
He got his statement recorded under section 340(2), Cr.P.C. He admitted that Mst. Venus had filed a suit for dissolution of marriage prior to the occurrence. No evidence was led by him in defence.
10. Relying on the motive, the ocular testimony and the recovery of blood stained Chhuri at the instance of the appellant, the learned trial Court convicted and sentenced him, as described above.
11. Criticizing the judgment, learned counsel for the appellant argues that it was an unwitnessed occurrence and the appellant had been involved on account of grudge, borne by the sons of Mst.
Venus on account of contracting marriage with her which ultimately did not prove to be successful.
12. It is an admitted position that the relations between the appellant and Mst. Venus became strained and she had filed a suit for dissolution of marriage and that she was living with her sons at the time of occurrence. Asghar Refile C.W.1 lived in the house where the occurrence in question is stated to have taken place. Being a natural witness, his presence at the spot cannot be doubted.
He stands corroborated by Sajjan Masih P.W.7 who lived in the adjoining house and is an independent witness having no animus against the appellant. Inayat Masih P.W.8 is another eye- witness who claims to have witnessed the occurrence. According to him, he was sitting in the courtyard of the house of the deceased when the appellant attacked the deceased. His evidence is assailed on the ground that he lived about one Killa away from the place of occurrence. Although he has corroborated Sajjan Masih and Asghar Refile P.Ws. on all material particulars yet even if his evidence is not taken into consideration being a chance witness the prosecution case, neverthless, stands established against the appellant by the unimpeachable evidence of Sajjan Masih and Asghar Refile P.Ws. Both are mentioned in the F.I.R. which was promptly lodged. Being a case of single accused, there was no question of substitution nor could any question of mistaken identity arise. The recovery of blood-stained Chhuri at the instance of the appellant lends further corroboration to the prosecution case.
13. The learned trial Court had rightly kept the statement of Mst. Venus out of consideration because she was not named in the F.I.R. and her statement was recorded by the police on 21-8- 1984 whereas the occurrence had taken place on 3-7-1983.
For the foregoing reasons, the prosecution case stands fully established against the appellant. He was, therefore, rightly convicted. As regards sentence, we consider him entitled to leniency because of the conduct of the deceased in refusing the appellant to visit their house after he had contracted a legal marriage with his mother after the death of her former husband. We are, therefore, of the view that ends of justice will be met if the C appellant is awarded lesser sentence provided for the offence of murder. We and alter the sentence from death to imprisonment for life plus the same fine, as awarded by the learned trial Court with benefit of section 382-B, Cr.P.C. The death sentence is not confirmed and the reference is answered in the negative.
Sentence reduced.