1. MANSOOR ALAMGIR QAZI, J.---Nasir and Abdul Sattar appellants were challaned in the said case and sent up for trial before the Sessions Judge, Rajanpur, who vide judgment dated 30-8-1994 convicted both the appellants under section 302/34, P.P.C. and sentenced them to death. Both of them were directed to pay Rs, 20,000 each as compensation to the legal heirs of the deceased or in default of payment of the said compensation to further undergo S.I. for 5 months each.
2. 2.The State has filed Murder Reference No,197 of 1994 praying for the confirmation of the death sentence awarded to the appellants while the appellants have challenged the impugned judgment and have prayed that they be acquitted of the charge. Through this single judgment the murder reference and the criminal appeal are proposed to be disposed of.
3. 3.The unfortunate occurrence took place on 10-3-1993 at 7.30 a.m. in the area of Mauza Shikarpur at a distance of 16-1/2 Km. from Police Station Saddar Rajanpur, in which Sobedar son of the complainant was murdered by the appellants. F.I.R. Exh.P.F. was lodged by Bashir Ahmed P.W.7 (father of the deceased) at the said police station which was reduced into writing by Ashiq Hussain S.I./S.H.O. on 10-3-1993 at 9.30 a.m. and the same was read over to the complainant who thumb marked it in token of its correctness.
4. 4.Briefly the facts as narrated by the complainant in the F.I.R. are that early in the morning my sons Islam-ud-Din and Sobedar (deceased) and my relative Abdur Rehman and I were going to our land in Chah Nai Wala from our house in Shikarpur Town. When we reached near one deserted Khola of Raunaq Shah in the limits of Shikarpur estate at about 7.30 a.m. my son Sobedar stopped behind with an urge to urinate but we three of us moved ahead. We had hardly taken a few steps ahead, when attracted by alarm raised by Sobedar. We looked behind and saw that Abdus Sattar armed with hatchet and Naser armed with Sota, who are sons of Jameel Rajput had launched attack upon my son Sobedar. In our view Abdus Sattar gave hatchet blow to Sobedar which hit on his head on the front side. He fell down after receiving the injury and when he was so lying, Naser gave him many blows with Sota and these hit Sobedar on the shin of his left leg and on the right arm. We tried to seize the accused but they threatened if any body came near, he would also meet the same fate. Both the accused, alongwith their weapons of offence fled away towards West. We propped Sobedar. He was drenched in blood but due to these injuries, he died.
5. Motive for this offence is that about four or five days back, an altercation had taken place over the turn of water between the aforesaid accused and my son Sobedar and this had culminated into a fight and for this reason, the accused nursed a grudge against Sobedar. Due to this grudge, both the accused as a result of premeditation have murdered my son with hatchet and Sota blows.
6. After leaving my companions at the spot with the custody of dead body I reached the police station for making the report and lodged report Exh.P.F.
7. 5.Dr. Azhar Hussain, Medical Officer appeared as P.W.5 and stated that he conducted autopsy on the dead body of Sobedar deceased on 10-3-1993 and found the following injuries on his person:-- (1)An incised wound 6 c.m. x 1 c.m. x bone deep lying obliquely on the right side of the head front to it. Three c.m. above the anterior air line. The margins were clearly cut and there was gapping in between the edges.
8. (2)Three small lacerated wounds 1 c.m. x 1 c.m. each on the outer aspect of the right arm. It was muscle deep. The margins were lacerated.
9. (3)Three small lacerated wounds on the front and on the medial side left leg with multiple fractures (deformity) of a leg.
10. In his opinion death occurred in this case due to severe shock and haemorrhage and a result of injuries Nos.1 to 3. All these injuries were collectively sufficient to cause death in the ordinary course of nature. Injury No,1 was caused by sharp-edged weapon while injuries Nos.2 and 3 were caused by blunt weapon.
11. All these injuries were ante-mortem in nature. The duration between injuries and death was half to one hour that between death and post-mortem examination was 4 to 4-1/2 hours.
12. He also medically examined Naser accused on 18-3-1993 and found the following injury on his person:--
(1) An old lacerated scar mark 3 c.m. in length on the left side of the head above the left ear.
13. It was caused by blunt weapon. The duration between the injury and the medical examination was 14 to 15 days. Exh.P.L. is the medico-legal certificate issued by him.
6. In course of investigation the injury statement Exh.P.D. and inquest report Exh.P.E. in respect of the dead body were prepared and the same was sent for post-mortem examination. The blood- stained earth was collected from the spot. It was made into a sealed parcel and taken into possession vide memo. Exh.P.H. which was attested by Abdur Rehman and Islam-ud-Din P.W.B.
14. Naser appellant appeared before Ashiq Hussain S.I./S.H.O. (P.W.9) on 17-3-1993 and he produced blood-stained Sota P.1 which was made into a sealed parcel and taken into possession vide memo.
15. Exh.P.B. in presence of Abdul Latif P.W.3 and Bashir Ahmed P.W.7. On 21-3-1993 Abdul Sattar appellant was arrested by Ashiq Hussain S.I./S.H.O. and in course of investigation the accused/appellant while in police custody led to a place situated in Rakh Kotla Hussain Shikarpur and from a bush got recovered blood-stained hatchet P.2. It was made into a sealed parcel and taken into possession vide memo. Exh.P.G. in presence of Abdur Rehman and Islam-ud-Din P.W.B.
16. All these articles were sent to the office of Chemical Examiner. After completion of the investigation the appellants were challaned and sent up for trial. Formal charge under section 302/34 P.P.C. was framed against the appellants. Both of them pleaded not guilty and opted to be tried. To prove the prosecution case 10 witnesses were produced. The prosecution case was closed and the reports of the Chemical Examiner Exh.P.M. and Exh.P.N. while that of the Serologist Exh.P.O. and Exh.P.P. were tendered in evidence. Both the accused were examined under section 342, Cr.P.C. and they denied the prosecution case. Both of them in answer to question why this case against you and why the P.Ws. deposed against you they have replied separately as under:-- "I am quite innocent person. I have been falsely involved due to our enmity with Latif Lambardar on the flow of our dirty water through the house of Latif Lambardar as we live on the upper story while the said Latif live on the ground of the said house. The said Latif is the most influential person. He and the complainant who is his close relative, have involved us in this false case. All the P.Ws. are closely related inter se and also with the deceased, so they have deposed against me."
17. They did not produce any defence evidence nor did they appear as their own witnesses as required under section 340(2), Cr.P.C.
18. 7.With the assistance of the learned counsel for the appellants we have gone through the paper book and scrutinised and perused the entire record of the case.
19. 8.Learned counsel for the State has argued and prayed for upholding of the judgment of the learned lower Court. He has supported Me judgment of the learned trial Court.
20. 9.Learned counsel for the appellants has argued that in the present case the motive is not established on record and is not proved beyond doubt. The quarrel took place before 4/5 days prior to the occurrence on account of turn of water between the deceased and the accused and had ended in grappling. There is no evidence adduced on record to prove whether the accused and the complainant party are having the facility of irrigating their lands through the same water channel nor any Warabandi has been produced neither 'any witness has been produced who had witnessed this quarrel and separated the parties. Thus, from these circumstances merely that Naser accused bore one injury on his person and merely because it was 14/15 days old cannot be connected as to have been sustained by him in course of that grappling with the deceased and ha in no way be attracted to establish and prove the motive adduced by the prosecution. Arguing his case further the learned counsel has very candidly submitted that since the medical evidence does not specifically state as to which injury was the cause of death although the death has resulted as a cumulated effect of all the injuries. Thus, it is not a case where sentence of death could be awarded to both the appellants and that in absence of motive too the sentence of death cannot be imposed. Learned counsel for the appellants has not contested his case for the acquittal of the appellants but has prayed that he would be satisfied if the sentence of death is not confirmed and is reduced to imprisonment for life under the present circumstances.
21. 10.We have given anxious thought to the arguments advanced by the learned counsel for the parties and we find that the medical evidence does not specify as to which injury was the cause of death nor do we find the motive to have been established beyond doubt on record of the case and it is mere wild assertion' and attribution made by the complainant who was not even present when the said quarrel took place between the accused and the deceased 4/5 days prior to the occurrence.
22. 11.It is well established principle of law that when the motive is not proved beyond doubt the capital sentence of death should not be imposed. Be that as it may, in the present case it is also the prosecution case that both the accused caused injuries on the person of the deceased but the death according to C the opinion of the Doctor occurred as a result of the collective effect of all the three injuries, and, thus, none of them can he individually, independently attributed or burdened for causing the death and awarded the maximum sentence of capital punishment. Under these circumstances, we are of the confirmed view that it is a case where the conviction of the appellants is proved beyond doubt and should be maintained under section 302/34, P.P.C. while the sentence of death awarded to the appellants cannot be confirmed. It is a case where the sentence of imprisonment for life to each appellant would adequately meet the ends of justice so we order accordingly. The appellants are directed to pay Rs,20,000 each as compensation to the legal heirs of the deceased, in default of payment of the said compensation to further undergo S.I. for 5 months. Both the appellants are extended the benefit of section 382-B, Cr.P.C. With this modification in the quantum of sentence the appeal of the appellants is dismissed. The murder reference is answered in the negative.