' MUHAMMAD NAWAZ ABBASI, J.--- Umar Gul son of Muhammad Nawaz aged 31 years was tried by the learned Sessions Judge, Attack, for the charge of committing murder of Muhammad Ijaz aged about 28/30 years and having found guilty was convicted under section 302(b), P.P.C. And sentenced to death with the direction to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default of payment thereof to undergo R.I. For six months through judgment, dated 8-9-1994.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No,109 of 1994, whereas the learned Sessions Judge, Attack, has sent the Murder Reference No,220 of 1994 under section 374, Cr.P.C. For confirmation of death sentence awarded to the appellant. This judgment will dispose of both the matters together.
3. The brief facts in the background as supplied by the prosecution through statement (Exh.P.C.) made by Ghulam Habib P.W.8, the complainant of the case, on the basis of which the formal F.I.R.
Exh.P.C./1 was registered under section 302, P.P.C. At Police Station Rango, District Attack, are to the following effect:-- "That on the eventful day Umar Gull appellant protested that the copies of the identity card and the driving license delivered to him by the deceased did not belong to him, whereupon the deceased insisted that the same belong to the appellant and in consequences thereof there was an exchange of hot words between the appellant and the deceased. At about 7-30 a.m. Muhammad Ijaz son of the complainant was present in the street, when Muhammad Nawaz son of Abdul Aziz directed Umar Gull and Fojoon Khan to teach a lesson to the deceased. Muhammad Nawaz and Fojoon Khan allegedly caught hold of the deceased from his arms whereupon Umar Gull inflicted five successive blows on the chest and belly of the deceased in presence of the complainant and his son Taj Bar. On the hue and cry of the complainant and Taj Bar, Mumraiz Khan also reaching from the nearby, witnessed the occurrence. The accused after causing injuries to the deceased ran away from the spot."
4. The motive introduced by the prosecution was that wife of Umar Gull appellant having strained relations with him left for the house of her father for Haiderabad and Umar Gull appellant suspected that Muhammad Ijaz the uncle of his wife had a hand in disturbing his family life. The appellant allegedly in furtherance of common intention with his co-accused namely Muhammad Nawaz and Futon Khan committed the murder of Muhammad Ijaz.
5. The Investigating Officer during the spot inspection secured bloodstained earth from the spot and arrested the accused after a few days after the occurrence and recovered Chhuri Exh.P.F. On the potation of the accused on 6-11-1993 and deposited the same with Muharrer Malkhana on 10- 11-1993 to be sent to the Serologist. The report of the Chemical Examiner, in respect of bloodstained earth, and the weapon of offence i.e. Chhuri and the report of the Serologist are Exhs.P.J., P.K., P.L.
And P.M., respectively.
6. The deceased in injured condition was removed to the hospital but succumbed to the injuries before receiving medical aid.
7. The post-mortem examination was conducted by Dr. Ali Asghar (P.W.1) on 9-10-1993, who traced the following injuries on the person of the deceased:--
(1) An incised wound 5 c.m. x 3 c.m. On the upper part of the left chest cavity deep.
(2) An incised wound 7 c.m. x 3 c.m. On the middle of the left chest cavity deep, with fracture of 7th rib penetrating pericardium and heart.
(3) An incised wound 4 c.m. x 2 c.m. On the lateral part of the lower left chest with fracture of 4th rib going obliquely penetrates into the spleen with rupture.
(4) An incised wound 6 c.m. x 3 c.m. Penetrating muscles, peritoneum on left lateral side of the abdomen in the middle. Momentum was coming out from the wound.
(5) An incised wound 3 c.m. x 2 c.m. On the right side, mid in genial region, muscle deep.
(6) Small laceration on right chest.
8. According to the doctor five penetration wounds caused with sharp-edged weapon were collectively result of death.
9. The prosecution in order to prove the charge against the appellant produced 12 witnesses at the trial including the eye-witnesses and apart from the ocular account and motive the case also rests upon the evidence of recovery and the medical.
10. The accused in his statement under section 342, Cr.P.C. Denying the charge replied to the question No,3, as under:- "Ghulam Habib complainant is the step-brother of my father Muhammad Nawaz. It is correct that I am married with Mst. Afzana and my sister is married with Ghulam Mustafa but my sister is not allowed by Ghulam Habib and his family to meet my parents."
' He further in reply to question No,4 answered that:-- "My wife is a daughter of my wealthy uncle. She used to remain annoyed with me. Four years prior to the present occurrence on her instance and the insistence of her grandfather Ghulam Habib, I left the house of my father and started living in the house of my father-in-law All Akbar at village Nimat Abad. Ghulam Habib complainant and his wife were not happy over their marriage and wanted divorce of my wife. Ijaz deceased absolutely had no hand in the estrangement of my wife."
11. The trial Judge having found the appellant guilty of the charge and not considering it a case of lesser penalty convicted him under section 302(b), P.P.C. And sentenced the appellant to death with payment of Rs,50,000 as compensation to the legal heirs of the deceased.
12. Learned counsel for the appellant contended that:--
(a) Notwithstanding the arrival of the eye-witnesses at the spot after the occurrence and the receiving of the injuries by the deceased, they did not see the occurrence as claimed by them;
(b) The alleged recovery of the Cheri from the house of the appellant after one month of the occurrence and further considerable delay in its dispatch to the Chemical Examiner being unexplained has no evidentiary value;
(c) The prosecution having introduced two motives firstly, the occurrence was the result of exchange of hot words over the dispute of identity card and the driving license between the deceased and the appellant, and secondly the appellant suspected that the deceased was responsible for desertion of his wife, has itself created a serious doubt about the origin of the incident and consequently, prosecution miserably failed to prove the charge of murder against the appellant for capital punishment;
(d) The occurrence having not taken place in the manner as narrated by the prosecution and the motive being shrouded in mystery, the alleged offence is not definable as Qtal-e-Amd punishable under section 302(a) or 302(b), P.P.C. And that it being not known that how and for what reason it happened and, thus, offence falling under section 302(c), P.P.C. Is of nominal penalty; and
(e) The parties are closely related to each other and that appellant and his wife namely Mst.
Afzana are continuing peaceful marriage union.
13. It is argued on behalf of the appellant that in the. Circumstances of the case the extreme penalty of death will spoil the family consisting upon the young lady and the innocent children of the appellant. The learned counsel next argued that the co-accused of the appellant namely Muhammad Nawaz and Fojoon have been acquitted on the basis of the same evidence, therefore, the appellant also deserves acquittal. The learned counsel in support of the contentions raised herein before placed reliance on Muhammad Aslam v. The State 1995 PCr.LJ 293 and Muhammad Younas alias Bahu v. The State 1996 PCr.LJ 109.
14. The learned Assistant Advocate-General, on the other hand, vehemently argued that the appellant having inflicted successive Cheri blows on sensitive part of the body was not entitled to any leniency in the matter of sentence. He argued that the parties being closely related, the witnesses apart from being natural were quite independent, and therefore, the eye-witnesses account in the present case independently is sufficient to sustain the conviction.
15. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate- General at length and perused the record with their help. The ocular account furnished by Ghulam Habib and Sabir Hussain P. Ws. Nos.8 and 12, respectively, the residents of the adjacent houses to the house of the deceased are natural witnesses of the occurrence. They have no enmity or grudge against the appellant to make a false statement against him. Umar Gull is brother of Futon, the acquitted accused Ghulam Habib is grandfather of Mst. Afzana wife of Umar Gull and Mst. Noon Feroza daughter of Haq Nawaz accused is married with Ghulam Mustafa another son of Ghulam Habib and Taj Bar P.W.9 is son of the said Ghulam Habib P.W.8. The parties being closely related to each other have no background of any grudge or enmity between them.
16. Ghulam Habib P.W.8, while repeating the story of the F.I.R. In his statement at the trial stated that Mst. Afzana wife of Umar Gul accused had gone to her father's house at Hyderabad and Umar Gull suspected Muhammad Ijaz deceased to having a hand in dispatching her to Hyderabad and responsible for causing disturbance in his family live committed his murder.
17. The evidence of this witness except minor discrepancies and contradictions having no material effect is consistent to the contents of the F.I.R. And also is fully corroborated by the statement of Ghulam Hussain. The defense has not been able to prove either his absence at the spot or of having not seen the occurrence. Similarly Taj Bar the other witness corroborating the P.W.8 has fully supported the prosecution case on each material point.
18. The defense, hesitatingly questioning the claim of presence of the witnesses at the place of occurrence at the time of murder, made fruitless efforts e to dislodge the evidence. The occurrence took place in the street in the broad daylight near the house of the deceased and the P.Ws. The parties are closely related inter se and there was no serious dispute or reason to make false charge of murder against the appellant. The presence of the witnesses at the place of occurrence at the time of fateful incident in the manner is unchangeable. Further their evidence being free of any material contradiction creating slight dent or doubt in the prosecution story is confidence inspiring.
19. The five sharp-edged injuries on the person of the deceased as described by the eye-witnesses in their statements have been located by the doctor in the post-mortem examination. Therefore, the ocular account is fully corroborated by the medical evidence to the extent of seat and nature of the injuries and the weapon used. However, the recovery of Chhuri P.4 after a considerable period after the arrest of the appellant and its dispatch to the Chemical Examiner with a considerable unexplained delay diminish the force of Expert's opinion, therefore, the same could not be safely relied upon and used as evidence against the appellant.
20. Admittedly the appellant along with his brother and father was living jointly in the house from where the alleged recovery of the Chhuri P.4 was affected and the same being not presumed in the exclusive possession and knowledge of the appellant having no evidentiary value was of no consequence.
21. The prosecution being not definite about the actual reason behind the occurrence pleaded two contradictory motives as cause of murder. The trivial dispute over the driving license and identity card could not possibly lead to such a serious incident between the parties closely related to each other. However, the motive regarding the suspicion of the appellant that the deceased was causing disturbance in his family life could be the reason of hatred in the mind of the appellant against the deceased and consequently, he being revengeful could not digest the conduct of the deceased.
22. Be that as it may, the prosecution being confused about the exclusive reason for the fateful incident whether the dispute of driving license and identity card or the suspicion that the deceased was responsible for creating trouble in his family life. The clear motive behind the occurrence not known and the same being shrouded in mystery would provide a mitigating circumstance in favor of the appellant in the matter of sentence. The learned trial Court without considering this aspect of the matter awarded the extreme penalty of death to the appellant. In addition to the above, we also take notice that there being no serious enmity between the parties the restoration of family life of the appellant has brought hatred between the parties to an end and consequently, in the circumstances the sentence of death will definitely be injurious to the life of a young lady and innocent children. We, therefore, taking into consideration the circumstances under which the occurrence took place and the real cause of the occurrence being not known, in addition to the fact that the parties have background of enmity, are not in favor of confirming the death sentence awarded to the appellant by the trial Court and altering the same into life imprisonment under section 302(b), P.P.C. Maintaining the order for payment of Rs,50,000 as compensation to the legal heirs of the deceased dismissed this appeal. However, the appellant will be entitled to the benefit of section 382-B, Cr.P.C. With the above modification in the sentence of the appellant, the murder reference is answered in negative.
Sentence reduced.