GHULAM SARWAR SHEIKH, J.- Story I of woe, as narrated, unfolded in, and reflected by statement/F.I.R. Ex.PD, which, of-course, set the law into motion,, made/lodged by Sher Muhammad (PW-7), the complainant, and recorded by PW. 9 Altaf Ahmad Gondal, Inspector/SHO, Police Station Katha Saghral District Khushab, succinctly stated, is, that, thd complainant, a cultivator, is a resident of village Nari within the limits of said Police Station. His house comprises three rooms, besides, a thatched hut, and is surrounded by a boundary wall. One of the rooms fell to the lot of Muhammad Hayat, and, of the complainant, serving in the Army and residing with his family at Lahore. This room was licensed to appellant, Noor Muhammad, who, is related to the complainant as his first cousin.
2. On eventful and fateful day i.e. 12.7.1993, at about 6.30 A.M; the complainant, was present on roof- top ,of his house, when, his wife Mst. Badshahi (since deceased) was kneading clay to plaster roof of the house. Accused Noor Muhammad not only remonstrated her for removing earth from his demolished house, despite having been forbidden by him but also, picked up a "Pickaxe (Kassi)" lying there and inflicted an incised would on her head, to which, she, succumbed on the spot, after few minutes. The complainant came down/alighted from roof-top and witnessed the occurrence, which, was seen by Dost Muhammad PW8 and Nawaz (given up) as well. The appellant fled/decamped from the scene with weapon of offence.
3. Motive as disclosed and claimed in FIR Ex.PD was an earlier incident, in which, Noor Muhammad, the accused, had warned Mst.. Badshahi not to use earth of his dilapidated house for plastering her own house or she would bear the consequences.
4. After registration of the case. PW.9 Altaf Ahmad Gondal, Inspector/SHO inspected the place of occurrence, prepared its rough sketch Ex.PL examined the dead body, prepared injury statement Ex.PG, inquest report Ex.PH, secured blood-stained earth therefrom vide memo. Ex.PE, after making it into a sealed parcel, and sent/despatched the dead body to morgue for autopsy. PW. 6 Ahmad Hussain Constable, who, escorted the dead body on the same day, produced Iasi worn clothes of deceased before him and same i.e. Chaddar P-1 and Shirt P-2 were taken into possession by means of Memo. Ex.PC. On 16,7.1993, accused was arrested from village Bus-Stand. He led to the recovery of pickaxe P.3 from his residential room and the same was taken into possession through memo. Ex.PF. Statements under Section 161 Cr.P.C, of witnesses were also taken down/recorded by the Investigating Officer. PW. 4, Muhammad Saleem a Draftsman, prepared site plan of place of occurrence F..PA and Ex.PA/1. Upon conclusion of investigation, final report, under Section 173 Cr.P.C, was submitted in Court against the accused, who. Pleaded not guilty to the charge under one head and claimed trial.
5. As many as nine witnesses, in all. Were examined by the prosecution. Slier Muhammad, the complainant PW. 7 and Dost Muhammad PW. 8 furnished ocular account of gory incident as set up in FIR Ex.PD. They also testified about motive and recoveries, to have been effected in their presence. Various steps taken during investigation were enumerated by PW.9 Ahraf Ahmad Gondal, Inspector/SHO. PW. 5 Dr. Muhammad Sarfraz. Proved post-mortem report Ex.PB, in which, he had found/noticed following ante-mortem injury on the dead body:- " Longitudinal wound measuring 5 cm x 1 cm on the top of the skull, 2 cm left from the centre of the skull. 8 cm from the left ear, 12 cm from the forehead, underlying bone was fractured. Haematoma was present on the brain. Skull bone was fractured. Rest of the organs were found normal."
6. In the opinion of the doctor, death, was due to concussion of brain shock, as result of injury No. 1, which, was sufficient to cause death in ordinary course of nature. Probable and approximate time, which elapsed, between injury and death was immediate, while, between death and post-mortem examination was staled to be 6 to 12 hours. Remaining prosecution evidence is more or less of formal nature.
I 7.- While examined under Section 342 Cr.P.C, appellant denied all incriminating material and circumstances, figuring against him and professed innocence. Question No. 7 was answered as follows: ( "Due to enmity. The witnesses are inimical towards me and have implicated me falsely. In fact, complainant with the help of PW Dost Muhammad committed the murder of deceased and involved me in the case on account of enmity."
However, he opted not to appear as his own witness in disproof of allegations against him as envisaged by the provisions of law embodied in Section 340(2) Cr.P.C. No witness in defence was produced either.
8. Qn culmination of trial, appellant/accused was found to be guilty of the offence, and awarded capital punishment under Section 302 PPC as "Tazir". He was ordered to be hanged by his neck till he be dead. Fine to the tune of Rs. 15.000/- was imposed upon him. Besides compensation of Rs.
20.000/- as provided by Section 544-A Cr.P.C, was directed to be paid to legal heirs of deceased. In default of payment of fine and, compensation he was ordered to undergo and suffer R.I. For one year and six months respectively. Seeking confirmation of "Death", reference under Section 374 Cr.P.C, has been made.
9. Convict has also challenged and assailed his conviction and sentence through jail appeal and this judgment shall dispose of, both of it, together.
10. Learned Counsel appearing on behalf of convict has lambasted the verdict and conviction with the assertions that ocular account as furnished by Sher Muhammad PW. 7 and Dost Muhammad PW.' 8 neither inspires confidence nor sounds probable and no credence can be attached to it.
According to him, three able-bodied eye-witnesses, could not allow the accused to flee from the scene of occurrence and recovery of pickaxe (Kassi) is not believable, because, it is against the human nature that accused, after, murdering the mistress of house would return to a room of the same house just to hide pickaxe, the weapon of offence. Motive has been branded to be too weak and conveniently tailored to put the rope around the neck of appellant. It has, therefore, been impressed that whole of prosecution case is rendered doubtful. Accordingly acquittal of appellant has been urged and emphasized.
11. On behalf of State, learned Counsel has inter-alia, contended that ocular account has come out of mouth of natural witnesses, no animosity against the accused to substitute him for a real culprit has even been suggested; appellant is closely related to deceased and her family as being first cousin of her husband and the family had no reason to falsely implicate him. He has, however, scrupulously conceded that the incident cannot be taken to be pre-meditated affair and might be the result of a situation developed at the spur of moment.
12. Arguments have been thrashed in the light of the record, which, too has been scanned.
Occurrence took place in the house of Sher Muhammad PW. 7 Dost Muhammad PW. 8 is his neighboured None-else than both of them could have ample opportunity and occasion to witness such an occurrence so closely. Not only convincing account of the incident, in detail, has been deposed by them, but also, they have successfully withstood hard test of cross examination. No rancour towards appellant stands ascribed to any one of them. As such mere relationship of PWs and deceased with each other is, by itself, not sufficient to discredit or discard their testimony. The complainant is rather benefactor of convict, as, he has provided him shelter in his own house. He is also closely related to him, "being his cousin. So there is nothing on record to support the idea of substitution of accused with real culprit, if any. Even otherwise, it is a rare phenomenon inasmuch as screening out of the real culprit by the husband of the deceased or his close relative without any deep-rooted cause cannot even be dreamt of. Sprouting of the appellant that the deceased fell victim to her own husband otherwise, looks bereft of any veracity and mere figment of his imagination. There is not an iota or scintilla of evidence to make head or tail of this counter version/allegation as neither matrimonial divergence, domestic acrimony or die slightest altercation between the spouses prior to incident is, in any way, spelt out. Ocular account by these P.Ws derives full fortification from Medical Evidence and attending circumstances. As a necessary corollary, there is nothing to create any crevice in the edifice erected by adducing over-whelming evidence. Irresistible conclusion is that the appellant was rightly adjudged to be guilty of Qatl-i-Am of Mst. Badshahi and convicted under the provisions of law, with, which he was charged. To that extent, findings of learned Trial Court are un- exceptionable and un-assailable.
13. Never-the-less, quantum of sentence, awarded to appellant is palpably fallacious and does not commensurate with the act of the appellant, who, seemingly, resorted to this measure on account of impulsive re-action and, any way, without any pre-meditation. It goes without saying that no blow was repeated by him and only single blow proved to be fatal. Unfortunate incident appears to have occurred in peculiar circumstances, which, caused the appellant to act on indignation.
Salient features, enumerated above, sufficiently provide mitigating circumstances in his favour.
Some appear to have escaped the notice of learned Trial Court and concomitantly were neither taken into account nor adverted to. It rather lend support to the belief that extreme penalty could not be visited and awarding there-of to appellant by learned Trial Court cannot be taken to be just under any cannon of law. Lesser penalty in wake there of and trivial motive, misty nature of recovery and relationship of parties, in particular, is not only apt, but also, in terms of principle of safe administration of justice as expounded in Alam Khan v. The State (1989 P.Cr.L.J. 729) and Basharat Ahmad v. The State (1993 P.Cr.L.J. 2036), plethora of authorities and galaxy of rulings on the point/subject.
14. As a sequel there-to, "Death Sentence" is NOT confirmed and the same is converted and altered into imprisonment for life. Sentence of fine imposed upon the appellant is not sustainable having not been provided in relevant provisions of law, and is accordingly set aside. However, compensation awarded to legal heirs of deceased is up-held and maintained. But sentence, in default, there-of can only be Simple and not Rigorous Imprisonment. Benefit of provisions of Section 382-B Cr.P.C, shall also be extended to the convict, while, computing the period of his sentence.
8. Appeal is disposed of with above modifications and Reference is answered in the negative.