' KHALIL-UR-REHMAN RAMDAY, J.--- One Kaloo had been tried by a learned Additional Sessions Judge at Layyah for having committed the murder of one Mst. Naziran and for having launched a murderous assault on Muhammad Afzal P.W. Through his judgment dated 30-9-1992 of the said learned trial Judge, the said Kaloo was convicted under section 302(a), P.P.C. And was punished with death as Qisas. He had also been convicted under section 324, P.P.C. And was sentenced to suffer seven years' R.I. And Qisas or Arsh.
2. Murder Reference No.361 of 1992 seeks confirmation of the said sentence of death while Criminal Appeal No.275 of 1992, filed by Kaloo convict calls in question the abovenoted conviction and sentences recorded against him. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 4-10-1991 at about 2-30 p.m. In the house of the complainant party situated in Ward No.5 Karor about one kilometre from Police Station Karor and had been reported at the said police station at about 3-00 p.m. By Ghulam Hussain complainant who is a brother of Mst. Naziran deceased as also a brother of Afzal, the injured P.W.
4. Narrating the occurrence and the background leading thereto, Ghulam Hussain complainant had mentioned that at the time of occurrence he was present in his house along with his maternal-uncle namely, Barkhordar (given up), his brother Muhammad Afzal P.W. And Muhammad Bakhsh while the women-folk of the family were involved in house-hold work on account of a marriage in the family. He had added that at the said time Mst. Naziran Mai deceased was preparing cow-dung cakes while his other sister Mst. Kalsoom (P.W.8) was preparing tea. The complainant had further alleged that Kaloo appellant suddenly entered their Haveli and rushed into a room of the same from where he picked up a hatchet and declaring that he would kill Mst.
Naziran, inflicted a blow which landed on the back of right side of her head as a result of which she fell down. He had further claimed that Afzal (P.W.9) and Muhammad Bakhsh and Barkhordar (given up) managed to overpower Kaloo appellant and while doing so Afzal P.W. Also received an injury in his ribs. The complainant had further mentioned that Mst. Naziran died at the spot.
5. Disclosing the motive for the said occurrence, Ghulam Hussain complainant had divulged that he had betrothed his sister Mst. Sakina Mai with Kaloo appellant and that on the day of occurrence he had also decided to marry his other sister, namely, Mst. Kalsoom (P.W.8) with one Nawaz; that Kaloo appellant had asked for the hand of the said Mst. Kalsoom for his younger brother, namely, Dadoo and that it was on account of this grievance for not agreeing to this marriage proposal that the appellant had done the above-noticed damage. The complainant had added that the appellant had attacked Mst. Naziran deceased because she had also opposed the marriage of Mst. Kalsoom Mai with the appellant's younger brother.
6. It may be mentioned here that on the complainant's side Ghulam Hussain, Mst. Kalsoom (P.W.8), Muhammad Afzal, the injured P.W. And Mst. Naziran deceased are real brothers and sisters inter se.
The complainant party is also closely related to Kaloo appellant inasmuch as Afzal, the injured P.W.
Is a son-in-law of the appellant while a sister of the complainant party, namely, Mst. Sakina Mai had been engaged to be married to the appellant.
7. As has been mentioned above, the appellant had been apprehended at the spot immediately after the occurrence who had then been handed over to Muhammad Rafiq S.-I./Investigating Officer (p.w.Io) when he reached the place of occurrence after recording of the F.I.R. A blood- stained hatchet (P.5) which was the weapon of offence in the present case and had been seized from the appellant had also been handed over to the abovementioned Investigating Officer which he had taken into his possession vide memo. (Exh.P.E.). While inspecting the place of occurrence the said Investigating Officer had also found blood-stained earth which he seized vide memo.
(Exh.P.D.).
8. When confronted with the prosecution case under section 342, Cr.P.C. Kaloo appellant pleaded that on the day of occurrence he had come to see his daughter Mst. Sakina (the wife of Muhammad Afzal P.W.) at the house of the complainant party where he found his said daughter weeping. He had added that, on inquiry, his said daughter had disclosed that one Shafi Pavli had tried to commit rape with her and that the said Shafi was present inside the Kotha alongwith Mst.
Naziran deceased. The appellant had further pleaded that he picked up a Soti and called out Mst.
Naziran who came out and gave him a slap at which he inflicted Soti blow upon her where upon she fell down and that in the meantime the said Shafi Pavli also came out from the said Kotha after arming himself with a hatchet and dealt a hatchet blow on the appellant which however, missed and struck Mst. Naziran deceased.
9. The time and the place of occurrence were not controverted by the appellant. It had also come on record that on the day preceding the day of occurrence, a marriage of a close relative had taken place in the house of the complainant party and it is thus not unreasonable to believe that members of the complainant party and some other guests would also be available in the complainant's house at the time of occurrence which was 2-30 p.m. In the circumstances it could not be believed that the house of the complainant at the relevant time would be deserted or that even the inmates of the house would not be there and consequently it is not believable that the said Shafi Pavli would, in the given circumstances and at the time in question, try and commit rape with the daughter of the appellant who was wife of Afzal P.W. Or that the said Shafi Pavli who was a stranger would be alone in a Kotha with Mst. Naziran deceased. The defence plea thus does not inspire confidence.
10. Ghulam Hussain complainant, Mst. Kalsoom Mai P.W. And Afzal P.W. Are natural witnesses of the occurrence in question being the inmates of the house where the murder in question had taken place. Needless to mention here that Muhammad Afzal P.W. Was the injured P.W. Thus, the presence of these three eye-witnesses at the place of occurrence and their claim of having witnessed the murder in question was not open to any exception. It has also come on record that the appellant had been apprehended at the spot alongwith the weapon of offence which had been seized. As has been mentioned above the appellant is rather closely related to the complainant-party. Thus, nothing exists on record which could even remotely indicate any motive on the part of the eyewitnesses to falsely implicate the appellant in the occurrence in question.
Consequently, the guilt of Kaloo appellant is not open to any doubt and the finding of the learned trial Court about his guilt is, therefore, maintained.
11. The quantum of punishment deserved by the appellant, however, warrants further consideration.
The appellant was a close relative of the complainant party and thus his coming to the place of occurrence is not unusual especially because of the marriage which was going on in the complainant's house. It was the prosecution's own case that the appellant was empty-handed when he had come to the complainant's house and that he had picked up the hatchet from the place of occurrence. The prosecution has not been able to establish the motive set up by it and in any case if the appellant had any grievance with respect to the refusal of Mst. Sakina Mai's hand for the. Appellant's brother then the appellant's real grievance would be against the male members of the complainant party and not against a sister of the said Mst. Sakina. It had also come on record through Dr. Muhammad Munir (P.W.6) that besides an incised wound on her head, Mst. Naziran deceased had also received contusions on her left thigh and on her chest which had been caused by the blunt weapon. All these facts and circumstances lead us to hold that the genesis of the occurrence in question was hazy and the murder in question being result of some C sudden flare up could not be ruled out.
12. Consequently, we find that it would be unsafe to impose death penalty on Kaloo appellant.
Therefore, the sentence of death awarded to the said appellant is not confirmed and he is instead punished with imprisonment for life under section 302(b) of the P.P.C.
13. No order had been passed by the learned trial Judge under section 544-A of the Cr.P.C. A notice was issued by us to the appellant to show cause why he should not be ordered to pay compensation to the heirs of the deceased as required by law. This notice was accepted by the learned counsel and having heard the parties we direct the appellant to pay Rs.5,000 to the heirs of the deceased or to undergo one months' S.I. In default of payment of the said compensation.
14. According to the provisions of section 324, P.P.C. As the same existed at the time of occurrence, the appellant could be punished only with the sentence prescribed for the injury actually caused by him. Resultantly, the appellant's conviction and punishment under section 324, P.P.C. For assault on Muhammad Afzal P.W., are set aside and for the injury in question received by the said P.W. The appellant is convicted under section 337-F(i) of the P.P.C. And he is ordered to pay Rs.1,000 as Daman and also to suffer rigorous imprisonment for six months.
15. Both the sentences imprisonment as above-awarded shall run con-currently and the appellant shall also be entitled to the benefit of the provisions of section 382-B, Cr.P.C.
16. Murder Reference No.361 of 1992 and Criminal Appeal No.275 of 1992 are answered in the above terms.
' Sentence of death not confirmed.