' KH. MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,7 of 1996 and Criminal Appeal No,33 of 1996 filed by Muhammad Asif appellant, who was convicted and sentenced by learned Additional Sessions Judge, Bahawalpur on 18-3-1996 for the murder of Asif Mahmood, who was the real brother of his sister's husband namely Nisar Ahmad, P.W. To undergo death sentence under section 302(b), P.P.C., with a further direction to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of- the deceased, in default two years'
R.I. Appellant was also convicted and sentenced under section 449, P.P.C. To undergo 10 . Years' R.I., with a fine of Rs,10,000, in default one year R.I. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. The occurrence in this case took place on 28-2-1995 at 2-00 a.m. In the .House of the deceased situated in Chak No,107/DB, which falls within the area of Police Station, Yazman, District Bahawalpur. Matter was reported through complaint Exh.PA. By Nisar Ahmad P.W.3, real brother of the deceased and sister's husband of the appellant, at 5-45 a.m. On 28-2-1995 at the Hospital, Yazman, while the formal F.I.R., Exh.PA/1 was recorded by Liaqat Ali Moharrir on the same day in the Police Station; Yazman at 6-30 a.m. . 3 Briefly stated the facts of the prosecution case as narrated in the F.I.R. By Nisar Ahmad was that he lived in Chak No,107/DB alongwith his brother namely Muhammad Asif, on the night of occurrence., he was sleeping in his bed-room when at about 2-00 a.m., he heard hue and cry on which he came to the courtyard of the house and saw that in front of the bed room of Asif Mahmood, deceased; Muhammad Asif accused (appellant) was quarrelling with his brother Asif Mehmhod. Mushtaq Ahmad and Muhammad. Ayub residents of the same village also came to the spot, after hearing the noise. In their sight, Muhammad Asif accused (appellant) took out knife from. The "Nefa" of his Shalwar and caused injuries simultaneously on the abdomen, flank and neck of Asif Mehmood. All the P.Ws. Intervened and separated the deceased' from Muhammad Asif accused (appellant). Muhammad Asif accused (appellant) brandishing his knife went on the roof of the house through stairs. Complainant along with P.Ws. And other co-villagers followed him and tried to apprehend him but Muhammad Asif accused (appellant) jumped from the roof of the said house, where he also received injuries. Muhammad Asif accused (appellant) was apprehended at the spot and was confined in the "Baithak" . Asif Mahmood was taken to Yazman Hospital in an injured condition.
4. The motive behind the present occurrence was that accused Muhammad Asif now appellant was married in Chak No,107/DB but his wife came to the house of her parents due to strained relations with the. Accused and she was sent to Gilgit by her parents on the asking of Asif Mahmood, deceased and due to this grudge, Muhammad Asif accused (appellant) committed - the murder of Asif Mahmood, deceased.
5. The Investigation Officer after registering the F.I.R. Came to the spot, collected blood-stained earth vide memo. Exh.PD. Complainant produced the appellant along with knife P.3, before the Investigating Officer, who arrested him and took his knife into possession vide . Memo. Exh.PC.
According to the report of Chemical Examiner which is Exh.PO and that of Serologist Exh.PN, the knife was stained with human blood. P.W.5 Dr. Sher Muhammad, M.O had conducted the postmortem examination on the dead body of the deceased Asif Mahmood. The said doctor had also medically examined the appellant on 28-2-1995 at 6-00 a.m. P.W.6 Dr. Muhammad Zaman Bhatti, M.O. Has medically, examined the deceased when he was taken into an injured condition at Yazman Hospital on 28-2-1995 at 4-45. a.m. And found five sharp-edged weapon injuries on his person.
6. Prosecution in order to prove its case produced nine witnesses. Thereafter, the statement of the appellant was recorded under section 342, Cr.P.C., who pleaded innocence and claimed false implication.
7. Learned counsel for the appellant after going through the prosecution evidence and statement of the appellant recorded under section 342, Cr.P.C. Makes the following submissions. He submits that appellant has been falsely implicated in this case, that it was 28th of February, 1995, the winter season was on its height, appellant could have killed the deceased in his bed-room, there was no reason to kill him in the courtyard. He further submits that according to the F.I.R., both the deceased and the appellant were quarrelling with each other and there was hue and cry but nobody knew what happened before infliction of injuries by the appellant to the deceased. He further submits that according to the F.I.R., appellant had jumped down from the roof in the courtyard of Amir Ahmad but neither Amir Ahmad nor any person from his house was produced. He submits that motive introduced by the complainant in the F.I.R. And also before the learned trial Court does not appeal to the reason because if the wife of the appellant was sent to Gilgit, that must have been sent by her parents. Appellant could have become annoyed with his in-laws and not with the deceased. He submits that origin of this murder is shrouded in mystery. He has also relied upon 1998 SCMR 115 and 1980 SCMR 215.
8. On the other hand, learned counsel for the State, assisted by learned counsel for the complainant submits that appellant was named in the F.I.R. He was armed with knife, he caused injuries on the person of the deceased, that ocular account is corroborated by medical evidence and the recovery of blood-stained knife. Lastly, they submit that sentence awarded to the appellant is a proper one and there is no mitigating circumstance in his favour for awarding him lesser sentence.
9. We have heard the learned counsel for the parties and have also gone through the F.I.R., statements of the P.Ws. And the appellant recorded under section 342, Cr.P.C. Very minutely and carefully. According to the F.I.R., it was stated by the complainant, that he heard a quarrel between the deceased and the appellant before his arrival at the spot. He did not state before the learned trial Court or in the F.I.R., that on that matter deceased and the appellant were quarrelling at mid of the night. It was the house of the appellant's sister, who was married to Nisar Ahmad complainant.
There is no evidence on record coming from the mouth of any P.W., that he had seen the deceased telling, in the presence of the appellant, to his in-laws that they may send the wife of the appellant to Gilgit. It is the prosecution story, that wife of the appellant was sent by his in-laws and so they were the real cause of annoyance to the appellant, not the deceased, Asif Mahmood.
10. We are not convinced with the motive given by the First Informant in F.I.R. And the P.Ws. In their statements before the learned trial Court which may be a concocted one. In our view, appellant before committing the murder of the deceased would have thought for hundred times because his real sister was married to the brother of the deceased, namely Nisar Ahmad complainant in this case. He must have thought, that if he commits the murder of the deceased, not only he will go to gallows but the house of his sister, who was married with the complainant, would also be disturbed and she will be divorced by the complainant. In our considered view, origin of this murder is shrouded in mystery. Real cause of murder is not know to anybody. Nobody come forward to tell the Court what had happened immediately before the occurrence. We think, this is a mitigating circumstances in favour of the appellant. We also rely upon 1995 SCMR page 1007 titled as Nawaz Khan and another v. Ghulam Shabbir and another. Reliance is also placed on 1988 SCMR 115 titled as Javed v. The State, the said judgment has also been cited by learned counsel for the appellant before us. Relying on these two judgments, we maintain the conviction of appellant under section 302(b), P.P.C. But convert his sentence into life imprisonment. However, sentence of compensation as awarded to the appellant by the learned trial Court is maintained, in default six months S.I.
Sentence under section 449 P.P.C. Is set aside because it was house of the sister of the appellant so in our view, appellant had not criminally trespassed in that house. Murder Reference is replied in negative. Death sentence is not confirmed. Benefit of section 382-B, Cr.P.C. Is also granted to the appellant.
11. With the above said modification, Murder Reference and Criminal Appeal are disposed of.
Death sentence awarded to the appellant is not confirmed.