' MIAN ABDUL KHALIQ, J.---Amir Bakhsh (40 years) was tried for the murder of Karim Bakhsh and was sentenced to death under section 302, P.P.C. By the learned Additional Sessions Judge, Rahimyar Khan vide his impugned judgment dated 30-4-1992. The appellant has come up in appeal against his conviction and sentence and the learned Additional Sessions Judge has sent a reference as laid down under section 374, Cr.P.C. The appeal and the reference shall be disposed of together by this judgment.
2. The facts of the present case as unfolded in FIR. No,231 of 1989 Exh.PG/1 recorded by P.W.11 Muhammad Ismail, Head Constable at Police Station Bhong, District Rahimyar Khan on 29-10-1989 at 4-15 p.m. On the basis of a complainant Exh.PG drafted by P.W.12 Muhammad Anwar, S.H.O. On the statement of P.W.9 Khuda Bakhsh complainant at Mauza Jamaldin Wali are that P.W.9 complainant was resident of Mauza Sher Bhakkar and a cultivator. He was a tenant of Ch. Rafi-ud- Din. His father at about 12-00 noon had gone to Ch. Rafi-ud-Din in Basti 11am Din Dakhli, Mauza Sher Bhakkar to inquire about the place where the rice was to be kept. P.W.9 Khuda Bakhsh alongwith Muhammad Bakhsh P.W. (given up) and Muhammad Ibrahim (P.W.10) were harvesting the rice and Karim Bakhsh deceased, father of the complainant after passage of sufficient time had not returned. Ali the said P.Ws. Left the place to inquire about Karim Bakhsh and started towards Basti Ilam Din Wali at about 1-00 p.m. And were about one Bigha short of deserted Kotha of the mangoes garden of Muhammad Akhtar Sheikh. They witnessed Karim Bakhsh coming back near the Kotha and within their sight from the eastern window of the Kotha (without door), Amir Bakhsh appellant armed with a hatchet alongwith Muhammad Hayat (acquitted co-accused) empty handed, emerged, Muhammad Hayat raised Lalkara that Karim Bakhsh should not be spared, on which Ameer Bakhsh inflicted hatchet blows one after the other on the head and back of the father of the complainant. The abovementioned three P.Ws. While raising hue and cry reached near them. The appellant and the acquitted co-accused threatened that if someone would come near, he would also not be spared and along with the crime weapon (hatchet) they succeeded in running away towards the east. P.W.9 Khuda Bakhsh complainant along with the P.Ws. Witnessed Karim Bakhsh lying smeared in blood, who had succumbed to his injuries. The motive behind the occurrence was that about 8/9 years earlier the said Amir Bakhsh had murdered Msd Izzat Mai, in which case Karim Bakhsh deceased and Muhammad Ibrahim (P.W.10) were the witnesses. Amir Bakhsh had a grievance and due to that Amir Bakhsh and Muhammad Hayat accused after making mutual consultation had killed father of the complainant after inflicting hatchet blows. Leaving behind Muhammad Ibrahim (P.W.10) and Muhammad Bakh.Sh P.W. (given up), Khuda Bakhsh complainant (P.W.9) alongwith Jan Muhammad and Nawaz was proceeding to the police station when P.W.12 Muhammad Anwar, S.H.O. Met him, who recorded the statement Exh.PG of complainant P.W.9 The accused were challaned and sent up for trial. A charge under section 302/34, P.P.C. Was framed against them, to which they denied and claimed trial.
3. The prosecution had examined 13 P.Ws. In all to substantiate its case. P.W.1 Dr. Muhammad Saleem Akhtar on 30-10-1989 at 8-00 a.m. Conducted autopsy on the deadbody of Karim Bakhsh deceased and found the following injuries:---
(1) Six incised wounds 3" to 7" x 1" to 3" x bone deep on the left side and back of head, face and neck.
Cutting the left ear, skull, cervical vertebrae, spinal cord, blood vessels and brain. Brain matter coming out. Neck is attached only with skin.
(2) Three incised wounds 2" to x 1/2" x bone deep on the back of left shoulder and chest scapular region. Scapula cut.
(3) An abrasion 3" x 1" on the left arm upper part outer side.
(4) An abrasion on the back of lumber region.
(5) An incised wound 3/4" x 1/4" x skin deep on the back of left hand on the middle finger.
' In the opinion of the Doctor the cause of death in this case was the cutting of spinal cord and vertebrae and skull from Injury No,1 was sufficient to cause death in the ordinary course of nature.
Injuries Nos.1, 2 and 5 were caused by sharp-edged weapon and Nos.3 and 4 by blunt weapon. Ali the injuries were ante-mortem. Probable time between injuries and death was instantaneous and between death and post-mortem 12 to 24 hours. Exh. PA is the carbon copy of post-mortem examination and Exh.PA/1 is the carbon copy of pictorial diagram.
4. P.W.2 Bashir Ahmad, Revenue Patwari had prepared site plans Exh.PD and PD/1 on 4-2-1990 on the direction of the police and on the pointation of the P.Ws. P.W.3 Abdul Rashid H.C. On 30-10-1989 was working as Moharrir Head Constable at Police Station Bhong and on the same day P.W.12 Muhammad Anwar S.I. Delivered him a sealed parcel containing bloodstained earth for safe custody in the Malkhana. On 8-11-1989 P.W.13 Malik Khuda Bakhsh S.I. Handed him over another sealed parcel containing the crime weapon and on 24-11-1989 he delivered both the sealed parcels intact to P.W.7 Haqnawaz Constable for delivering the same in the respective office. P.W.4 Ghulam Haider was the nephew of the deceased who identified his dead body at the time of autopsy. P.W.5 Muhammad Bux joined the investigation on 29-10-1989 and the Investigating Officer in his presence collected blood-stained earth from the place of occurrence vide memo. Exh.PE attested by him. He also made it into a sealed parcel. P.W.6 Manzoor Ahmad joined the investigation of the case on 8-11-1989 and in his presence appellant Amir Bakhsh had produced blood-stained hatchet P.1 before the S.H.O. (P.W.12), who made the same into a sealed parcel and secured it vide memo Exh.PF attested by him P.W.7 Haq Nawaz Constable on 24-11-1991 received two sealed parcels containing blood-stained earth and the crime weapon by P.W.3 Abdul Rashid M.H.C. For onward transmission of the same in the office of Chemical Examiner, Lahore. On 29-10- 1989 Muhammad Anwar S.I. (P.W.12) handed him over the dead body of Karim Bakhsh deceased which he escorted to the mortuary and after post-mortem examination the Doctor handed him over the dead body, post-mortem report, police papers and the last-worn clothes of the deceased i,e, P.2 to P.5, which he produced before P.W.12 Muhammad Anwar S.H.O. Who secured the same vide memo Exh.PH attested by him. P.W.8 Ghulam Ilyas on 29-10-1989 had witnessed collection of bloodstained earth from the spot vide memo. Exh.PE attested by him and the S.H.O. Had prepared sealed parcel of the same. P.W.9 Khuda Bakhsh is the complainant of the present occurrence and son of the deceased, who corroborated the contents of the complaint Exh.PG, on the basis of which formal F.I.R. Exh.PG/1 was recorded. He is an eye-witness and has also stated about the motive behind the present occurrence. P.W.10 Muhammad Ibrahim is an eye-witness and he is also a witness of motive. He was also a witness of the murder of Mst, Izzat Mai committed by the present appellant alongwith others and he was a P.W. Along with the deceased in the said case. He corroborated the statement of P.W.9 Khuda Bakhsh complainant in minute details P.W.11 Muhammad Ismail H.C. Had drafted the formal F.I.R. Exh.PG/1 on the basis of complaint Exh.PG.
P.W.12 Muhammad Anwar, S.I./S.H.O. On 29-10-1989 had recorded the statement Exh.PG of the complainant, Khuda Bakhsh (P.W.9) at Mauza Jamaldin Wala. He visited the place of occurrence, prepared injury statement Exh.PB inquest report Exh.PC and despatched the dead body to the mortuary. He inspected the spot, secured blood-stained earth vide memo. Exh.PE and made it into a sealed parcel. He had secured last-worn clothes of the deceased P.2 to P.5 vide memo. Exh.PH. He deposited the case property with the Moharrir. He recorded the statements of the P.Ws. And thereafter handed over the investigation to P.W.13 Malik Khuda Bakhsh, S.H.O. P.W.13 Malik Khuda Bakhsh S.H.O. Was entrusted with the investigation of the case on 8-11-1989 on the orders of D.S.P.
And on the same day the accused were produced before him by Muhammad Nawaz Jhullan, a Zamindar of Jamal-ud-Din Wali. He arrested them and on the same day Amir Bakhsh appellant produced before him blood-stained hatchet P.1 which he secured vide memo. Exh.PF and made it into a sealed parcel. He deposited the sealed parcel with the Moharrir. He also recorded the statements of recovery witnesses of the hatchet. On 9-11-1989 he prepared an incomplete challan of the case and submitted the same before the Ilaqa Magistrate. He also got the site plans of the place of occurrence prepared from the Patwari. He completed the investigation and challaned the accused and also submitted complete challan.
5. The appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and also production of blood-stained hatchet P.1 by him before P.W.13. In answer to a question "Why this case against you and why the P.Ws. Have deposed against you?" he replied:- "I have been falsely involved into this case due to enmity and party faction. The P.Ws. Belong to a different group which is inimical to me and are also related with each other and that is why they have falsely deposed against me due to enmity."
' He neither produced evidence in defence nor made statement on oath as envisaged under section 340(2), Cr.P.0
6. We have heard the learned counsel appearing for the parties and have perused the record.
7. The motive behind the occurrence was stated by P.W.9 Khuda Bakhsh complainant in his statement Exh.PG on the basis of which formal F.I.R. Exh.PG/1 was recorded to the effect that about 8/9 years earlier, Amir Bakhsh appellant had murdered Mst. Izzat Mai. Karim Bakhsh deceased and Muhammad Ibrahim (P.W.10), paternal-cousin of P.W.9 and nephew of the deceased were P.Ws. In that case. The appellant had grudge and due to that he and Muhammad Hayat (acquitted co- accused) connived with each other and killed the deceased by inflicting repeated hatchet blows.
P.W.9 Khuda Bakhsh complainant had also stated about motive behind the occurrence as stated by him in his complaint/statement Exh.PH. P.W.10 stated that about 8/9 years back the appellant committed the murder of his brother's wife named Mst. Izzat Mai. The deceased Karim Bakhsh and he was prosecution witnesses in the case, for which the appellant nursed the grudge. P.Ws.9 and 10 have corroborated each other on the point of motive.
8. The learned counsel for the appellant has urged before us that the deceased and the appellant lived in the same village, but no untoward incident had occurred within 8/10 years i,e, the acquittal of the appellant in the murder case of Mst. Izzat Mai. The murder case of Mst. Izzat Mai was compromised and the appellant was acquitted. It was also urged before us that Mst. Izzat Mai was the brother's wife of P.W.10 and if there was any motive, the appellant must have killed Ibrahim (P.W.10). P.W.10 Muhammad Ibrahim was the nephew of the deceased and the appellant had a grudge against the deceased and P.W.10. The deceased had met him all alone, whereas P.W.10 along with P.W.9 Khuda Bakhsh and Allah Dawaya P.W. (given up) were at a distance of one Bigha when the appellant had launched assault on the deceased. The appellant had opportunity to take revenge.
9. The eye-witness account has been furnished by the statements of P.W.9 and P.W.10. P.W.9 in his statement Exh.PG on the basis of which formal F.I.R. Exh.PG/1 was recorded, had specifically stated that the appellant within his sight and that of P.W.10 had inflicted repeated hatchet blows on the head and back of the deceased. P.W.10 stated that on the fateful day at about noon time he alongwith P.W.9 Khuda Bakhsh and P.W. Muhammad Bakhsh (given up) went after the deceased and had witnessed the appellant armed with a hatchet, who gave hatchet blows on the deceased's head and back. P.Ws. 9 and 10 have unanimously stated that the appellant had given hatchet blows on the head and back of the deceased. No doubt P.Ws.9 and 10 are son and nephew of the deceased respectively, but their statements cannot be thrown away or brushed aside on account of their relationship with the deceased. It was a broadday murder, the appellant was previously known to P.Ws.9 and 10 and they have no motive whatsoever to' falscly involve the appellant Amir Bakhsh in the present case. The defence has not been able to shatter their testimony during cross-examination. The learned counsel has urged that the statement of P.W.10 was not recorded on the day of occurrence i,e, on 29-10-1989, but the same was recorded on 30- 10-1989. P.W.12 Muhammad Anwar, S.I. Has stated during cross-examination that it was incorrect that he did not record the statement of P.W. 10 Muhammad Ibrahim on the day of occurrence and recorded the same on 30-10-1989 because he was not present at the time and place of occurrence. He had volunteered that he did not record the statement on 29-10-1989 because P.W.1Q had accompanied the dead body and went to the Hospital.
10. The medical aspect of the case has been furnished on record by the statement of P.W.1 Dr. Muhammad Saleem who on 30-10-1989 at 8-00 a.m. Had conducted autopsy on the dead body of the deceased and had found six incised wounds on the left side and back of head, face and neck; three incised wounds on the back of left shoulder and chest, scapular region; an abrasion on the left arm upper part outer side; an abrasion on the back of lumber region and an incised wound on the back of left hand on the middle finger. The medical evidence furnished on record is in consonance with the ocular account stated by P.Ws.9 and 10.
11. The appellant was produced before P.W.13 Malik Khuda Bakhsh S.H.O. On 8-11-1989 and at that time the appellant produced blood-stained hatchet P.1 in presence of P.W.6 Manzoor Ahmad which was secured by P.W. 13 vide memo Exh.PF. P.W.13 had prepared its sealed parcel. No doubt P.W. 6 is the maternal-cousin of the complainant (P.W.9) and refuted the suggestion that he had deposed falsely. The defence had not brought on record anything i,e, P.W.6 had any motive to falsely involve the appellant or had enmity with him. The statement of P.W.6 has been corroborated by the statement of P.W. 13 S.H.O. Who has also no motive to falsely involve the appellant. The reports of the Chemical Examiner Exh.PK and that of the Serologist Exh.PM are positive. The recovery aspect of the case has been proved on record.
12. The appellant had neither produced evidence in defence nor made statement on oath. F.I.R.
Exh.PG/1 recorded on the basis of statement of the complainant P.W.9 Exh.PG, contains the name of the accused/appellant, the weapon carried by him, the names of the witnesses, the motive behind the occurrence and the manner in which the occurrence took place, all are given in the F.I.R. The occurrence took place at about 1-00 p.m. (day time) on , 29-10-1989 and on the same day F.I.R.
Exh.PG/1 was recorded at the police station at 4-15 p.m. The distance between the place of occurrence and the police station is 33-1/2 kilometres. Nothing was brought on record by the defence that the F.I.R. Was recorded after preliminary investigation and deliberations, rather it was recorded with promptitude.
13. The motive behind the occurrence stands proved, the ocular testimony furnished on record by the statements of P.Ws. 9 and 10 is in consonance with the medical evidence stated by P.W.1. The recovery of blood-stained hatchet, the weapon of offence at the instance of the appellant stands established and except minor discrepancies here and there the defence has been unable to point out the material discrepancies in the statements of the P.Ws. Or dishonest improvements therefrom. The P.Ws. Have made their statements in a straightforward manner and implicit reliance can be placed on their testimony. The prosecution has succeeded in establishing the case beyond doubt against the appellant. His death sentence is confirmed. The appellant shall pay Rs,10,000 as fine and in default of its payment to suffer one year R.I. He shall also pay compensation of Rs,20,000 under section 544A, Cr.P.C. To the legal heirs of the deceased and in default whereof to undergo 6 months' R.I. The appeal filed by the appellant is dismissed.