MUHAMMAD NAWAZ ABBASI, J.- Mir Hassan alias Piazal son of Khair Muhammad alias Khairoo appellant was tried for the charge under Section 302, PPC for the allegation of committing murder of Muhammad Khaliq deceased, in the area of Kotli Sattian District Rawalpindi, by the learned Judge, Punjab Special Court for Speedy Trials, Rawalpindi, who having found the appellant guilty of the charge convicted and sentenced him to death under Section 302, PPC with a fine of Rs.50,000/- or in default thereof to suffer R.I. For two years vide judgment dated 15.1.1989. The appellant was also directed to pay Rs,50,000/- as compensation under Section 544-A, Cr.P.C, to the legal heirs of the deceased and in default thereof to suffer R.I. For six months.
2. ' The appellant has challenged his conviction and sentence through Criminal Appeal No. 9 of 1989, whereas Muhammad Younas complainant in the case has find Criminal Revision No. 8 of 1989 for enhancement of the fine and the amount of compensation. We propose to dispose of both the matters through this single judgment.
3. The conviction and sentence awarded to the appellant by the learned Judge, Special Court constituted under the Special Courts for Speedy Trials Ordinance, 1987, was challenged before the Supreme. Appellate Court established thereunder but before disposal of the appeal, the law, under which the said Courts were established, expired with the result that the cases pending in trials before Special Courts and the appeals against the judgments of the said Courts pending disposal were transferred to the Sessions Courts and the High Courts for disposal of Sessions Trials and appeals with Murder References, respectively.
4. The brief facts of the case as contained in the F.I.R. (Ext.PF), registered on the basis of report lodged by Muhammad Younus, complainant (PW 8) at 12.50 p.m. (noon) on 10.7.1988 at Police Station Kotli Sattian to the effect that on said day at about 12.30 (noon), the complainant alongwith Muhammad Khaliq son of Balouch Khan (deceased), Muhammad Sheraz and Sher Ali when reached Kotli Bazar in a Suzuki in front of the shop of Gul Asghar, the accused, namely, Mir Hassan alias Piazal (appellant) armed with hatchet raising Lalkara attacked upon Muhammad Khaliq, who taking tum ran away but the accused within the sight of the complainant and the witnesses inflicted two successive hatchet blows on the deceased, which landed on the back of neck on the spinal cord and on the back of the right ribs. The accused with the weapon of offence ran away from the place of occurrence, whereas Muhammad Khaliq succumbed to the injuries at the spot.
5. The motive behind the occurrence as stated was that three years prior to the occurrence the niece of the complainant was engaged with accused but later this engagement came to an end and the accused took the impression that Muhammad Khaliq (deceased) was instrumental in the revocation of this engagement.
6. Dr. Tanveer Ahmad (P.W.1) conducted the post-mortem examination on the dead-body of Muhammad Khaliq on 8.10.1988 and found the following injuries on his person:-
(1) An incised wound on the back of mid of the chest 12 cm x 5 cm.
(2) An incised wound 3 cm x 2 on the back of the right chest 5 cm below the inferior angle of scapula.
According to the opinion of the doctor, death occurred due to the damage caused to the vital organs of the body as a result of the injuries on the person of the deceased, which were sufficient to cause death in the ordinary course of nature.
7. The Investigating Officer collected the blood-stained earth from the spot and upon arrest of the accused on 9.10.1988 at his instance recovered bloodstained hatchet (Exh. P4) from his house, which was taken into possession through memo. Exh. PE by him. After completing formal investigation, the investigating officer submitted the challan against the appellant to face trial for the charge under section 302, P.P.C. Muhammad Younas (PW 8), complainant of the case, and Muhammad Sheraz (PW 9) are the eye-witnesses of the occurrence, who have narrated the prosecution story at the trial as contained in the F.I.R.
8. The accused in his statement under Section 342, Cr.P.C, denied the charge and pleaded that he was involved falsely in the case with a view to grab his property. He also denied the recovery of hatchet from him and stated that the witnesses have falsely deposed against him. He, however, has not appeared in the witness-box under Supreme Court. 340 (2), Cr.P.C, or produced any witness in his defence.
9. Learned counsel for the appellant with reference to the minor contradictions in the statements of the eye-witnesses challenging their presence at the spot argued that both the eye-witnesses being closely related to the deceased were interested. He argued that despite the fact that the occurrence took place in Bazar, no person from the said Bazar or any shopkeeper including the one, in front of whose shop the occurrence has taken place, was produced and it was evidently suggested that the independent and natural witnessed having withheld, they were introduced as eve-witnesses of the occurrence. Learned counsel next contended that the two injuries on the person of deceased being of different size sufficiently indicate that the weapon of offence used in the occurrence was a light sharp-edged weapon like Churri and not the hatchet and consequently it can safely exclude the presence of the witnesses at the spot.
10. Conversely, learned counsel for the complainant argued that it was a 'broad day light occurrence, which took place in the Bazar situated near the Village Abadi and, therefore, the presence of the witnesses was free of doubt. He next argued that the witnesses apart from being natural were independent as they have no enmity or malice against the appellant and had no reason to involve him falsely in the case. He concluded that the appellant having caused murder of Muhammad Khaliq in a brutal manner did not deserve any lenience in the matter of sentence.
11. We have heard the arguments advanced by the learned counsel for the parties at length and also perused the record with their assistance. The examination of the evidence of two eye- witnesses does not indicate any material contradiction to exclude their evidence from the consideration. The contention of the learned counsel that the two eye-witnesses have contradicted each other on the point of their reaching in the Bazar and the story of their coming to the Bazar through Suzuki with the complainant has no substance. It is not material and relevant that how and in what maimer the witnesses reached at the place of occurrence from their houses, as they being resident of the locality could come to Bazar at any time either through a Suzuki or otherwise and thus their presence at the time of occurrence in the Bazar, a public place, at noon time is not questionable. The relation of witnesses with the deceased is an undeniable fact, but mere relationship would not enough to suggest that the witnesses sparing the real culprits will substitute the innocent person. They were neither inimical towards the appellant nor nursing any grudge against him and similarly the deceased had no enmity with the appellant. Thus, there could be no reason with the PWs to falsely name him as accused. The appellant as stated was aggrieved of the refusal of the hand of the nite of deceased, but except the wrong impression to suggest that the deceased was instrumental in the revocation of the engagement of appellant with the niece of the complainant, there was nothing on record in proof thereof. It is stated that the appellant developing strong suspicion against the deceased of doing some mischief made unaware attack upon him.
12. The defence having denied the motive has not suggested any plausible reson for false implication. The motive of grasping the property of the appellant confidence inspiring, therefore, there is no reason to disbelieve them for the minor contradictions and discrepancies as pointed out by the learned defence counsel.
13. The contention of learned counsel that different size of injuries would indicate that hatchet was not used as weapon of offence in the occurrence also did not receive weight. The eye-witnesses have categorically stated that the appellant used the hatchet as weapon of offence and the same upon recovery was found stained with blood. The incised wounds on the person of the deceased of different size could be caused with hatchet and, therefore, the arguments of the learned counsel being without any substance are repelled.
14. The analysis of the evidence and the attending circumstances under which the occurrence took place, we being in agreement with the Trial Court confirmed the conviction of the appellant under Section 302 PPC. However, taking into consideration the question of sentence, we find that the motive set up by the prosecution is belied by the suggestion of the appellant. The fact that the deceased was instrumental in revocation of the engagement of appellant with the niece of the complainant was not proved beyond doubt and the motive being shrouded in mystery, the capital punishment is not warranted. The two successive injuries caused by the appellant to the deceased with hatchet would not, by itself, be considered a brutal act as contended by the learned counsel for the complainant to be sufficient for confirmation of the death sentence at this stage, when the appellant upon conviction on 15.1.1989 is in the Jail, for the period more than ten years. We, therefore, in the circumstances are not in favour of confirming the death sentence awarded to the appellant. However, we maintaining the sentence of fine and compensation altered the sentence of death given to the appellant into imprisonment for life with benefit of Section 382-B, Cr.P.C.
15. With the above modification in the sentence, this criminal appeal as well as the criminal revision are dismissed.