' RAO NAEEM HASHIM KHAN, J.--- Ghulam Rabbani (25) was sent up for trial by Police Station Haram Gate, Multan to face the charge of murder of Mst. Miryyam Bibi. Additional Sessions Judge, Multan vide his judgment, dated 27-10-1991 convicted and sentenced him under section 302, P.P.C. To death with a fine of Rs,50,000 (Rupees fifty thousand only) or in default three years' R.I. It was further directed that the fine, if recovered, entire would be paid to the legal heirs of the deceased as compensation. The convict has appealed. The case is also before us for confirmation of death. Both these matters shall be disposed of by this judgment.
2. Prosecution story as disclosed in F.I.R. Exh.P.G. Lodged by Ghulam Mohy-ud-Din was to the effect that he was resident of Sultan Colony. His father was "Khateeb" in Janazgah Mosque Nishat Road, outside Harram Gate, where he lived with first informant's mother Mst. Miryyam Khatoon and younger brothers and sisters on the upper story of a house built within the mosque. On the night of 19-9-1989, the first informant visited the house of his parents. His father had gone to Jhelum for preaching. At night first informant with his brother Muhammad Zain-ul-Abideen slept on the ground floor in Hujra. Mother of the first informant with his sister Mst. Zeenat Fatima and younger brother Muhammad Fakhar-ud-Din slept inside the courtyard of the house. At night he heard alarm of his mother whereupon both the brothers came inside the house and saw in the electric light Ghulam Rabbani grappling with his mother. Within their view, he gave a dagger blow in the abdomen whereupon she fell down. First informant tried to apprehend Ghulam Rabbani who threatened them and ran down the stairs. Occurrence was witnessed by first informant and his younger brother Zain-ul-Abideen and Muhammad Fakhar-ud-Din. While running away, the student of mosque Muhammad Iqbal also tried to apprehend but the accused escaped.
3. Motive for the occurrence was that Ghulam Rabbani brother of Amir Hussain being husband of first informant's sister had asked for the hand of Mst. Zeenat Fatima, another sister of the first informant for marriage. It was refused by the first informant's mother. Therefore, she was done to death. She was transported to hospital, where at 5-00 in the morning she expired.
4. Occurrence had taken place on 20-9-1989 at 1-00 a.m. Inside the house situated in mosque Janazgah, Nishat Road, Harram Gate, three furlongs from Police Station Harram Gate, Multan. F.I.R.
Exh.P.G. Was got registered on the same day at 5-45 a.m. On the statement of Ghulam Mohy-ud- Din P.W.6, which was recorded by Abdul Aziz, S.H.O./Inspector P.W.9.
5. Abdul Aziz, Inspector/S.H.O. P.W.9 after registering F.I.R. Exh.P.G. Came to the hospital and prepared injury statement Exh.P.C./1 and inquest report Exh.P.D. Of the deceased and sent the dead body for post-mortem examination. Blood-stained shirt and Dopatta P.3 and 4, respectively of the deceased were produced by the complainant which were secured vide memo. P.8. From the spot he collected blood-stained earth vide memo. Exh.P.A. He arrested the appellant on 20-9-1989. On 22-9-1989, the accused while in custody led the police party to the recovery of dagger P.5 from a Nali which was secured vide memo. Exh.P.I. Duly attested by the witnesses. Site plan Exh.P.A. And P.1/2 were got prepared by draftsman and he gave his notes with red ink thereunder. At the conclusion of the investigation he challaned the accused.
6. Dr. Zulfiqar Hussain, Casualty Medical Officer, Nishtar Hospital, Multan P.W.3 at 2-05 a.m: examined Mst. Miryyam Khatoon and found following injury:- "An incised oblique wound 12 c.m. x 6-1/2 c.m. Viscera deep (intestines protruded from the wound) located over left side of the abdomen. The wound was 8 c.m. Above and away from the umbilicus.
A profuse bleeding from that wound." which was caused with a sharp-edged weapon and dangerous to life.
(i) Dr. Noor Ahmad Medical Officer, Civil Hospital, Multan P.W.2 conducted the post-mortem examination on the 'dead body of Mst. Miryyam Khatoon and found the same injury which was observed by the doctor who examined her. In his opinion death was occurred on account of shock and hemorrhage because of injury No,1 which was sufficient to cause death in the ordinary course of nature. Injury was caused with sharp-edged weapon and was ante-mortem.
7. The prosecution in support of its case produced 9 witnesses. The doctors who appeared as P.W.2 and P.W.3 have already been discussed. Shaukat Hayat, Draftsman P.W.1 had prepared site plan Exh.P. And P.1 on the direction of police. Ocular account was furnished by Ghulam Mohy-ud-Din, Mst. Zeenat Fatima and Muhammad Iqbal P.W.6, P.W.7 and P.W.8, respectively. The case was investigated by Abdul Aziz, Inspector/S.H.O. P.W.9. Rest of the witnesses are formal, therefore, need not to be discussed:
(i) At the conclusion of the prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He, however, did not appear in his defense on oath but produced two defense witnesses.
(ii) Ghulam Yasin D.W.1 has produced register pertaining to Blood Transfusion Department, Nishtar Hospital, Multan and Dr. Allah Dad Shahid D.W.2 working in Blood Unit, Nishtar Hospital, Multan stated that on the fateful day blood was obtained from different people for the deceased.
8. It was contended by the learned counsel for the appellant that prosecution had not been able to establish its case beyond doubt. The presence of Ghulam Mohy-ud-Din P.W.6 was extremely doubtful and he was not a natural witness. As far the remaining witnesses are concerned, there were discrepancies in their statements, therefore, could not be relied upon. The recovery of Chhuri could not be used as corroboration, because, it was recovered from thoroughfare from sewerage pipe line and could not be possibly be stained with blood. It was lastly argued that in any case sentence of death could not be awarded on account of failure to prove the motive. The prosecution could not disclose what transpired between the parties immediately before the occurrence and in such circumstances capital punishment could not be awarded.
9. The contentions are vehemently opposed by the learned counsel for the complainant as well as learned counsel for State.
10. We have heard the arguments and gone through the file. Prosecution in order to establish its case has mainly relied upon Ghulam Mohy-ud-Din, Mst. Zeenat Fatima, Muhammad Iqbal P.W.6, P.W.7, P.W.8 respectively and sought corroboration from the recovery at the instance of the appellant. All the witnesses on oath gave a detailed account of the occurrence duly corroborating their statements made before the police during investigation. They were put to the test of lengthy cross-examination. Nothing could be brought on record that they were not present at the spot or had any motive to falsely implicate the appellant. Occurrence had taken place at 1-00 at night and in such circumstances inmates of a house were natural witnesses. Mst. Zeenat Fatima a girl of 15 years of age had to be present in the house and was sleeping on the cot adjacent to the cot of her mother. We have noticed that she was not even suggested that she was not present at the spot and had not witnessed the occurrence. It is a case of single accused and in such like circumstances substitution can safely be ruled out. Muhammad Iqbal P.W.8 student in the mosque was not related to either side. He was the most disinterested person. He had given evidence in a very convincing manner which would be difficult to ignore. In these circumstances we are of the considered view that eye-witnesses are trustworthy, independent and can safely be relied upon.
10-A. The last contention of learned counsel for the appellant that the origin of fight is shrouded in mystery, therefore, death sentence may not be confirmed, requires consideration. There is no evidence of enmity or bad blood between 'the parties. Appellant is real brother of Ameer Hussain, husband of real sister of first informant. In cross-examination, the witnesses had stated that when we woke up, saw deceased and the appellant standing. Thereafter he gave a blow with dagger.
What transpired between them before the witnesses reached the spot is not known. In these circumstances, we feel that imprisonment for life can meet the ends of justice.
11. The upshot of above discussion is that the prosecution has established its case beyond reasonable doubt. Therefore, the appeal is dismissed. However, sentence of death is converted into imprisonment for life. Sentence of fine or in r.' default thereof is, however, maintained. He shall also be entitled to the benefit u of section 382-B.
Sentence reduced.