' TASSADUQ HUSSAIN JILANI, J.---Criminal Appeal No,836 of 1990 and the connected Murder Reference No,231 of 1991 arise from the judgment of the learned Additional Sessions Judge, Lahore whereby he on 5-12-1990 while convicting Muhammad Hayat appellant under section 302, P.P.C.
For the murder of Muhammad Arif sentenced him to death and a fine of Rs,10,000 in default whereof to undergo two years' R.I. The fine, if recovered, was directed to be given to the legal heirs of the deceased.
2. The prosecution story as given in the F.I.R. (Exh.PA/1) registered by Khushi Muhammad S.I.(P.W.), at 6-35 a.m. In the police station on the statement of Inayat Ali (P.W.5) which was recorded by Rashid Ahmad, S.I. (P.W.11) at 6-30 a.m. At Moor Singhpura is that the complainant Inayat Ali resides with his brother Muhammad Arif deceased. Muhammad Bashir (P.W.6) who is brother-in-law of the complainant resided at Mohallah Rehmatpura Kot Khawaja Saeed. Muhammad Hayat appellant was neighbour of Bashir. He asked Bashir P.W. To give his grown up daughter Mst. Samina in marriage to him. He refused but Muhammad Hayat persisted with his demand. On being consulted the complainant and his brother Muhammad Arif deceased persuaded Muhammad Bashir P.W. To shift to Gujjarpura from Rehmatpura where the complainant and Muhammad Arif deceased resided. As Muhammad Bashir P.W. Shifted to the afore-referred place, Muhammad Hayat appellant started visiting him even there. Muhammad Arif forbade him in consequence of which they exchanged hot words and Muhammad Hayat appellant once threatened that in case Mst.
Samina was not given in marriage he shall teach him a lesson. About 7/8 days prior to the occurrence, appellant came to Muhammad Din, complainant's uncle, and repeated the threat, Muhammad Din appraised the complainant, Muhammad Arif deceased and his own son about the afore referred incident. Mst. Samina was consquently married to somebody else on 23-6-1989. On 25th June, 1989 at 4-30 a.m. As Muhammad Arif deceased was asleep and the complainant and Muhammad Ashiq P.W. Were sitting on a cot nearby and having some conversation when Muhammad' Hayat appellant entered the courtyard by scaling over the outer wall. He proclaimed that he will teach lesson for the marriage of Mst. Samina. Muhammad Bashir P.W. Also woke up.
Within their view appellant gave a Chhuri blow to Muhammad Arif deceased which hit him on his right flank. The complainant, Muhammad Ashiq and Muhammad Bashir P.W. Raised hue and cry that the appellant threatened that in case anybody tried to come near him he shall also be treated in the same manner. Having said this, he decamped by scaling Over the wall. Muhammad Arif (deceased) was immediately shifted to the hospital but he succumbed to the injury on the way. He was initially taken to Allama Iqbal Medical College, Hospital where P.W.9 Dr. Syed Bilal Hussain declared him dead. Thereafter at King Edward Medical College, Dr. Babar Nasir P.W.8 examined Muhammad Arif deceased on 25-6-1989 at 3-30 p.m. He found the following injuries on his person:-- "External injuries were stab wound horizontally placed on right outer side of abdomen going deep, 3 x 1 c.m. In size, which was 13 c.m. from right anterior superior illiac spine and 30 c.m. Below right axilla (tailing was present on outer side of stab wound."
' According to him this injury was sufficient to cause death in the ordinary course of nature and the probable time between death and post-mortem examination was within twelve hours.
3. Having scribed the statement of the complainant (Exh.P.A.) P.W.11 Rashid Ahmad sent the same to police station for formal registration of the case. Thereafter he went to Mayo Hospital, Lahore, prepared inquest report (Exh.P.H.) and statement of injuries (Exh.P1). From the hospital, he went to the spot and took into possession blood-stained earth and Gada (P1) vide recovery memo. Exh.PC.
He also took into possession the last worn clothes of the deceased vide recovery memo. Exh.PB.
These clothes were bed sheet (P3), Dhotis (P4) and (P5), Parna (P6) and Bunyan (P7). He arrested the accused on 27-6-1989 and the same day he led to the recovery of blood-stained Chhuri (P2) from Kachi Abacii Gujjarpura vide recovery memo. Exh.PD. The attesting witnesses of Exh.PD are Muhammad Ashiq (P.W.7) and Muhammad Bashir (P.W.6).
4. During trial, the prosecution examined eleven witnesses including the doctor and the Investigating Officer. P.W.S. Lnayat Ali narrated the occurrence which account was consistent with the prosecution story given in the F.1.R. (Exh.PA/1). Muhammad Bashir appeared as P.W.6. He is brother-in-law of Inayat Ali complainant and lived in the same courtyard where Inayat and Arif (deceased) resided. He corroborated the statement of P.W.5 Inayat Ali. On all material particulars Muhammad Ashiq who is the first cousin of Inayat Ali appeared as P.W.7. He is yet another eye- witness who corroborates the statements of P.W.5 and P.W.6.
5. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity.
6. In support of this appeal, the learned counsel for the appellant has urged following pleas:--
(i) That the motive as per the prosecution story was against Muhammad Bashir as he had married his daughter to somebody else, despite the strong desire allegedly expressed by Muhammad Hayat appellant for her hand. If the prosecution story for motive is believed there was no reason for Muhammad Hayat to murder Muhammad Arif deceased;
(ii) that the prosecution story is unnatural inasmuch as if all the prosecution witnesses i,e, P.W.5, P.W.6 and P.W.7 were present at the spot, they made no effort to defend Muhammad Arif deceased;
(iii) that it was a night occurrence and the identification is doubtful.
7. Learned State Counsel has defended the impugned judgment by submitting that the F.I.R. Was lodged promptly; that the ocular account consists of natural witnesses which stood the test of cross-examination and that the appellant had kstrong motive to kill the deceased.
8. We have heard learned counsel for the parties and have also gone through the record.
9. The prosecution case consists of the ocular account, motive, medical evidence and the recoveries. P.W.5 Inayat Ali, P.W.6 Muhammad Bashir and P.W.7 Muhammad Ashiq had furnished the ocular account. Although they are related with Muhammad Arif deceased but they are the natural witnesses of the occurrence and in absence of any enmity with the appellant, their testimony cannot be disbelieved. Their statements are consistent and despite a lengthy cross- examination. To which they were subjected no inconsistency could be brought on record to discredit them.
The delay of two hours in lodging the F.I.R. Is explainable as the immediate concern of the complainant party was to provide medical aid to Muhammad Arif (deceased), to shift him to the hospital and then at More Singhpura statement of Inayat Ali (P.W.5) was recorded by Rashid Ahmad S. I. /S .H .0. Which formed basis of F . I. R . (Exh. PA/1).
' The appellant had a motive to launch the attack. The argument of the learned counsel for the appellant that the grudge, if any, which formed basis of the alleged motive was against Muhammad Bashir P.W. And not Muhammad Arif deceased and therefore, motive was non- existent, is not tenable for two reasons:--
(a) It is in evidence that it was Muhammad Arif deceased who had asked Muhammad Bashir, father of Mst. Samina Bibi, to shift to Gujjarpura to avoid the persistent demands of Muhammad Hayat appellant for hand of the afore-referred Mst. Samina Bibi. Muhammad Bashir shifted as advised and therefore Mst. Samina was married with somebody else two days prior to the occurrence. Thus, the appellant must have had a grouse against Muhammad Arif deceased that it was he who was solicited Muhammad Bashir for shifting and for marrying Mst. Samina with another person; and
(b) the question whether the particular fact could become a motive for the assailant is partly relatable to the subjective response of the persons concerned, therefore, it cannot be generalized.
10. Coming to the medical evidence we find that the stab wound given by the appellant was found to be sufficient to cause death in the ordinary course of nature. The post-mortem examination of Muhammad Arif deceased was conducted at 3-30 p.m. The probable time given between death and the post-mortem examination is 12 hours which is consistent with the time of occurrence i,e, 4- 30 a.m. Again the nature of the injury caused shows that Muhammad Arif deceased made no attempt to ward off the attack otherwise he could have received injuries on the hands or arms. This further leads support to the ocular account that the ,deceased was asleep when he was given the stab wound.
' So far as the recovery of blood-stained Chhuri is concerned, the same is not free from doubt as it was recovered from a public place which according to P.W.11 Rashid Ahmad was accessible to general public. It was allegedly witnessed by Muhammad Bashir P.W.6 and Muhammad Ashiq P.W.7. None from the locality was made to join the recovery proceedings and when cross- examined the Investigation Officer did not remember even the time of the recovery. The absence of unimpeachable evidence of recovery would be a rather weak link in the chain of prosecution case yet this by itself would not off set the effect of the overwhelming direct ocular account corroborated by the medical evidence and the evidence qua motive. We are, therefore, of the view that the prosecution has proved its case -against the appellant without a shadow of doubt and the appeal against conviction of Muhammad Hayat appellant, must fail.
11. Coming to the question of sentence we find that there are extenuating circumstances which warrant lesser penalty. Muhammad Hayat appellant, at the time of occurrence, was a young man of 18 years of age. Only two days prior to the occurrence, the girl to whom he dreamt of being his wife i,e, Mst. Samina had been given in marriage to somebody else. It must have caused some provocation. He gave a single stab wound to Muhammad Arif deceased. An element of mystery surrounds as to why Muhammad Bashir against whom Muhammad Hayat appellant had direct motive, was not the victim of attack.
12. In these circumstances, we are of the view that extreme penalty of death may not be consistent with the principles of safe administration of justice. Therefore, while maintaining the conviction of the appellant under section 302, P.P.C. We convert the sentence, to life imprisonment and a fine of Rs,10,000 in default whereof to undergo further R.I. For two years. The fine, if realised, shall be given to the legal heirs of Muhammad Arif deceased. Benefit of section 382-B, Cr.P.C. Shall also be extended to him.
13. Murder Reference No,231 of 1991 and Criminal Appeal No,836 of 1990 are disposed of in the above-noted terms.