' Imam Bakhsh alias imaman (35) resident of Qadirpur, District Rahirnyarkhan was convicted and sentenced to death and to a fine of Rs, 5,000 in default one year R. I. Under section 302, P. P. C. By the Sessions Judge Rahimyarkhan for committing the murder of Faqir Bakhsh (26) a resident of Mauza Chandia. The appeal of the convict and the connected murder reference are before us.
2. Nihal, a cousin of the appellant was said to have been murdered about 12/13 years prior to the occurrence in this case and Ghulam Qadir, a cousin of Faqir Bakhsh deceased was tried alongwith two others for the murder, but they were acquitted. In order to avenge the murder of Nihal the appellant attacked Faqir Bakhsh deceased with a hatchet at about 6.00 p. m. On 23-2-74 near Ajmal Bagh situated in the area of Rahimabad. On the alarm of Faqir Bakhsh P. W 7 Saboo P. W. 8 Ghulam Haider and P. W. 9 Bakhar were attracted to the spot who saw the occurrence. On seeing them, the appellant ran away, Faqir Bakhsh died on the spot. P. W. 7 Saboo went to Police Station Bhong, situated at a distance of four miles from the place of occurrence. He made the F. I. R. (Exh. P.
4) to P. W.
10. Rana Abdul Ghafoor A. S. I. At 7-00 p. m. After registering the case, the A. S. I. Went to the spot, prepared the necessary documents and sent the dead body for its post-mortem examination. 1 he next day, he collected the bloodstained earth from the spot and arrested the accused, his worn clothes i,e, shirt P. 2 and chaddar P. 3 were blood-stained. The S. I. Got them removed and made them into a sealed parcel. The same day, appellant led to the recovery of blood-stained hatchet P.
4 from his house (Sahal), the A. S. I. Made it into a sealed parcel. These recoveries were witnessed by P. W. 8 Ghulam Haider and P. W. 9 Bakhar. The appellant was challaned and prosecuted in due course.
3. On 24-2-74 at 10 a.m. P. W. I Dr. Syed Talib Hussain Medical Officer, Civil Hospital, Sadiqabad held the autopsy and found the following injuries on the dead body of Faqir Bakhsh
(1) Incised wound 3' x 1 bone deep transversely on the back of neck, left side starting middle line and passing 1/2' below left ear and ending If from angle of left mandible.
(2) Incised wound 5i' x 2' bone deep obliquely on the back of neck starting from angle of right mendible going upward backward to left side, behind ear to occipital region, cutting soft tissues upper cervical vertebra spinal cord, occipital bones and modulls oblongate etc.
(3) Incised wound 3i" x 1' bone deep on occipital region transversely placed cutting left occipital bones and underlying occipital lobs memberane.
(4) Incised wound 411" x 11.' bone deep on right occipital temporal region, starting from injury No, 3 going forward and ending just above and input of right ear pinna.
(5) Incised wound q. x 1' x bone deep on right Mastroid region, starting from top of right mastroid process cutting roots of right pinna, going upward, backward and joining injury No, 2.
(6) Incised wound r x I on margin of right ear pinna.
(7) Abrasion 3' long on back of right chest starting from middle line along spine of scapula.
(8) Incised wound 1' x x muscle deep 1' abrasion on each end, on back of right chest below level of inferior angle of scapula.
(9) Abrasion 1" x 3/4' on left mazilla.
(10) Abrasion x on left eye brow. Death was instantaneous caused by injuries to the brain and the spinal cord.
4. The appellant denied guilt and ascribed the case to enmity with Saboo P. W.
7. Denying the story of the motive he took up the plea of grave and sudden provocation which he explained in the following words at the trial.
"The occurrence did not take place in the manner as stated by the prosecution. I live near the garden of Sardar Sabub. After sunset when it was dark, I was coming from Bhong and was going to my house, the hatchet was with me which I usually carry whenever I go out. When 1 was passing through the garden, I saw the deceased and my wife in a compromising position. I lost self-control and on grave and sudden provocation attacked the deceased who in order to save himself ran towards the road. I followed him and inflicted injury to him and on the infliction of last injury he fell down and died. The witnesses were not present there. My wife ran away, I searched for her for some time but she was not available so I went to the Police Station alongwith the hatchet, After some time, Saboo Khan and Umaid All came there and then in order to involve me in a case under section 3U2, P. P. C. Saboo Khan and the Police fabricated false motive and story."
5. In his defence, the appellant produced D. W. 1 Umaid Ali. He deposed that P. W. Saboo Khan (informant) met him after the occurrence at Isha prayer time and asked him to accompany him to the Police Station for making a report, because Faqir Bakhsh had been murdered but he did not mention the name or his assailant, nor he mentioned the name of the witnesses who saw the occurrence. He went to Police Station alongwith Saboo Khan P. W. Where the appellant was present wearing blood-stained clothes, and had a hatchet in his hand. Further according to Umaid Ali, the A. S. I. Did not record the report instead asked them to reach the spot where he would proceed in the matter. Consequently, they went there with him.
6. To prove its case, the prosecution relied on the evidence of three eyewitnesses namely, P. Ws.
Saboo Khan, lantern Haider and Bakhat, The deceased was a nephew of P. W. 7 Saboo Khan. He is the only witness who deposed about the motive for the crime. Learned counsel contended that a , false story about motive has been put up to make out case of a pre-meditated murder. In support of his contention, he argued that the earlier murder of Nihal (a cousin of the appellant) could have been proved by documentary evidence because three persons were said to have been tried for it and acquitted. He next contended that under cross-examination, Saboo admitted that Nihal was murdered by Qadira (a cousin of Faqir Bakhsh deceased) and one Ahmada and he did not remember the name of the third assailant. The witness had also admitted that Qadira was alive but he did not know about the others. Learned counsel concluded that the appellant who was said to be a cousin of Nihal and not a closer relation such as a brother or a father and if at all he had intended to avenge the murder of Nihal that too after 12 years there he would have taken the revenge from Qadira and Ahmed, assailants of Nihal. We have considered the matter. There is force in these contentions. However since Saboo admittedly was not on speaking terms with the appellant on account of the murder of Nihal and because he is uncle of Faqir Bakhsh deceased, we, therefore, consider it unsafe to rely on his solitary statement in so far as it relates to the story of the motive. We are of the opinion that the prosecution has not satisfactorily proved the motive for the crime.
7. We now come to the ocular evidence: the three eye-witnesses and residents of Mahmoodabad a village three miles away from the place of occurrence. They have deposed that on the day of occurrence, they were going together to Rahima bad to meet Mahboob Khan Leghari and at about sunset when they reached near the tube-well of Allanddin, they heard an alarm upon which they rushed towards the place of occurrence and saw Imam Bakhsh appellant attacking Faqir Bakhsh deceased with a hatchet. When they went closer the appellant fled away with the hatchet and the deceased died soon thereafter. It was contended that the eye-witnesses should not be relied upon because they were chance witnesses and they could not satisfactorily explain their presence at the spot. Learned counsel argued that Saboo was uncle of the deceased and was inimical towards the appellant on account of the earlier murder of Nihal and the Behar P. W. Had told the committing Magistrate that the deceased was related to him (He next contended that the ocular account given by the eye-witnesses was not consistent with the medical evidence because according to Dr. Syed Talib Hussain the deceased received ten injuries out of which seven were incised wounds. But according to the eye-witnesses, they saw the appellant inflicting only three hatchet blows to the deceased. We have considered the matter. It is clear from the evidence of the eye-witnesses that they did not see the attack from the very beginning. They only saw the later part of the attack. This also shows that the witnesses had not tried to add anything more to what they actually saw. The discrepancy in their statements about the posture of the deceased when he was injured is not a material discrepancy. No doubt Bakhat P. W. Told the committing Magistrate that Saboo was related to him but the exact relationship was not suggested to him. Moreover at the trial, he explained that both the deceased and the appellant belonged to his braderi. This is not enough to show that he was an interested witness. Ghulam Haider P. W. Has no connection with either the deceased or the appellant. He is also a disinterested witness like Bakhat and since these two witnesses have corroborated the statement of Sabo. P. W., we would, therefore, rely on his statement also in so far as it relates to the actual occurrence. True the witnesses do not live near the place of occurrence, but we have no reason to doubt them when they say they were going to Rahimabad to meet Mahmood Khan Leghari and saw the occurrence on their way.
8. Learned counsel further argued that assuming without conceding that the eye-witnesses did see the occurrence then admittedly they only saw the later part of the attack, therefore, the statement of the accused be accepted that he acted under a grave and sudden provocation and then went to the police station on his own, where he was seen by D. W. Umaid Ali. We did not accept this contention because there is nothing to show that the appellant saw his wife with the deceased in a compromising position. The witnesses also did not say that they saw a woman running away from the place of occurrence. Ghulam Haider P. W. Was suggested the defence version but he denied it.
The defence version was not even put to the other two witnesses. So much so that D. W. La maid Ali also did not mention a word about the plea of the accused. He simply stated that the accused was at the police station with a hatchet when he went there. Saboo P. W. Admitted that he took Umaid Ali with him to make a report. The S. I. Also admitted that the defence witness came there with Saboo P. W. The presence of Umaid All at the police station alone did not prove that what Umaid Ali said was true, because his statement was contradicted by Saboo P. W. And the Investigating Officer and also by the witnesses of the recoveries made from the appellant. For these reasons, we are also not prepared to accept the statement of P. W. 2 Imam Bakhsh foot-constable who appears to have made a concession in favour of the appellant under cross-examination by admitting that when they started from the police station for the place of occurrence the appellant was present at the police station. It may also be mentioned at this stage that according to Umaid Ali, Saboo P. W. Did not tell him who had murdered the deceased and who saw the murder. In view of the overwhelming evidence of the prosecution witnesses, we are not prepared to accept the statement of Umaid Ali. We are satisfied with the guilt of the appellant. We therefore, maintain his conviction.
9. As to the sentence, since the immediate cause of the attack is not known and we have not considered it safe to rely on the story of the motive we would, therefore, reduce his sentence to life imprisonment. The sentence of death is not confirmed.