' MUHAMMAD ROSHAN ESSANI, J.---The appellant Ghulam Murtaza has been sentenced to death under section 302, P.P.C. By the learned Additional Sessions Judge, Kandiaro, on the charges of committing murder of Muhammad Pathan. The appellant has preferred an appeal against his conviction and sentence and his case is also before us for confirmation of the capital sentence awarded to him. This judgment will dispose of both the appeal and reference of confirmation. It may be pertinent to point out here that this appeal was earlier heard by a Division Bench of this Court and it was allowed and the Reference for confirmation of death sentence was also rejected.
This appeal was, however, remanded for fresh hearing by the Hon'ble supreme Court upon an appeal preferred by complainant Sojhro Khan vide their reships judgment date 16-2-1992. It is in these circumstances that we have again heard this appeal and reference for confirmation of death sentence awarded to the appellant.
2. The incident resulting in the murder of the deceased Muhammad Pathan occurred on 19-12-1983 at 6-20 p.m. In the hotel of Hafiz Shahmir Ali Solangi near village of Sobedar Muhammad Hussain Solangi in Deh Kandiaro. The first information of this incident was lodged promptly the same day at 7-30 p.m. At Police Station Kandiaro, District Nawabshah, which is at a distance of six miles from the scene of offence. On the day of incident the deceased Muhammad Pathan was watching television at the hotel of Hafiz Shahmir Ali along with prosecution witnesses Muhammad Uris and Shafi Muhammad. The deceased Muhammad Pathan and his cousin Muhammad Uris and Shafi Muhammad had gone together to the hotel of Hafiz Shahmir Ali on the day of incident. While they were watching television, appellant came over there and caused a sharp-sided hatchet blow on the head of Muhammad Pathan. The P.Ws. Muhammad Uris and Shafi Muhammad tried to apprehend the appellant but, he ran away. After leaving Shafi Muhammad with injured Muhammad Pathan, Muhammad Uris left for his village to inform his father Sojhro Khan, who came to the scene of offence and found Muhammad Pathan lying unconscious. The complainant and P.Ws. Named hereinabove then took injured Muhammad Pathan to Medical Officer, Kandiaro P.Ws.
Muhammad Uris, Shafi Muhammad and Haji Bagh, father of Muhammad Pathan, remained at the hospital and P.W. Sojhro Khan went to Police Station Kandiaro to lodge report. Injured Muhammad Pathan, however, succumbed to injuries on the next day of incident.
3. A.S.-I. Abdul Rehman, who also recorded statements of two P.Ws, Muhammad Uris and Shafi Muhammad, recorded the F.I.R. Of this incident. He also arrested the appellant from a bus stand on 12-12-1983. The appellant volunteered to produce hatchet used by him in commission of this crime.
The said hatchet was secured in presence of A.S.-I, Abdul Rehman and Mashirs Sanwan and Jan Muhammad. The hatched was found to be blood-stained. This hatchet was secured on the potation of the appellant from the hedge on the eastern side of cattle pen of his house.
4. Dr. Khaliq-uz-Zaman performed the autopsy on the deceased on 19-12-1983 at Tehsil Headquarters Hospital, Kandiaro. He found the following external injury on the body of deceased: "Incised wound on right parietal region parallel to mid-line 4 c.m. Away from it (mid-line) Bone was cut size 10 c.m. x 2-1/2 c.m. x brain deep."
5. The injury was grievous in nature and it was caused by a sharp weapon. On internal examination he found digested material in stomach which was otherwise healthy and normal from the external and internal examination of the deceased Muhammad Pathan, the medical officer was of the opinion that death was result of injury on vital organ like brain. It resulted into hemorrhage and shock.
6. The appellant denied the prosecution allegations and alleged that he had been falsely implicated. He further stated as follows in Sessions Court:-- "Deceased Muhammad Pathan was on illicit terms with Mst. Zareena wife of Razo, brother-in-law of complainant. Razo had complained to complainant. The complainant had restrained Muhammad Pathan from visiting the house of Razo. But Muhammad Pathan did not abstain from visiting her. My father has four acres of agricultural land near the house of the complainant, who wants to purchase the land from my father. On his refusal he was annoyed and I have been falsely implicated in the case. I was lying ill prior to the incident and was admitted to hospital from where police brought me and implicated me in this false case. I produce hospital admission slip as Exh.
31. I am innocent."
7 . We have also examined himself on oath in disproof of charges levelled against him, In the said statement the appellant reiterated the same facts, which were stated by him in his statement under section 342, Cr.P.C.
8 . We have been taken through the evidence in the case by Mr. A. Q Halepota, learned counsel for the appellant and also Mr.Khalid Shah, learned counsel for the complainant Sojhro Khan. However, none appeared on behalf of the State, although actual date was fixed for hearing of this appeal, which pertained to the year 1988 in relation to this incident, which occurred in 1983. The primary evidence against the appellant consists of the ocular testimony of P.Ws. Muhammad Uris and Shafi Muhammad. Both these P.Ws. Were present at the hotel of Hafiz Shahmir Ali along with deceased Muhammad Pathan at the time or the incident. Both the eye-witnesses, stated in the trial Court that it was the appellant who caused a sharp-sided hatchet blow on the head of Muhammad Pathan who fell down on the ground as a result of blow sustained by 'him. The ocular testimony of these two eyewitnesses was corroborated by the testimony of the first informant Sojhro Khan who came to the scene of offence upon information given to him by his son Muhammad Uris, who as stated above, was one of the eyewitnesses in this case. Sojhro Khan found Muhammad Pathan lying unconscious when he reached at the scene of the offence and got him removed to Medical Officer Kandiaro for treatment and then left for Police Station Kandiaro, where he lodged first information report of this incident. The F.I.R. Was lodged on the same day at 7-30 p.m. Where the incident occurred only one hour earlier at 6-30 p.m. Since Muhammad Pathan was injured at the time of lodging of F.I.R., it was registered against the appellant under section 307, P.P.C., which was later converted to section 302, P.P.C. The evidence of the above three witnesses was supported by recovery of hatchet on the pointation of appellant from the hedge on the eastern side of his cattle pen on 21-12-1983. This hatchet was found blood-stained by the chemical analyser. This hatchet was said to have been voluntarily produced by the appellant soon after his arrest on the same day.
' It was pointed out by Mr. A. Q. Halepota, learned counsel for the appellant, that there are material contradictions between the statements of two eye-witnesses Muhammad Uris and Shafi muhammad, which made their presence at the hotel of Hafiz Shahmir Ali at the time of incident doubtful. In this regard he referred to the cross-examination of P.W. Muhammad Uris wherein he stated that Shafi Muhammad and Muhammad Pathan were sitting on the same bench ahead of him and that both of them i,e, Muhammad Pathan and Shafi Muhammad were sitting on a bench immediately in front of him and further that two or three other persons were also sitting with Muhammad Pathan and Shafi Muhammmad. In his cross-examination P.W. Shafi Muhammad, however, stated that Muhammad Pathan was sitting on a bench with one person, who he did not know. He further stated that he was sitting on a separate bench towards east of deceased Muhammad Pathan. It was, thus, argued by Mr. A.Q. Halepota, that none of these two eye- witnesses namely Muhammad Uris and Shafi Muhammad were present at the scene of offence at the time of incident. There were so many other persons present at the hotel. The television was on.
It was evening time. Many villagers must have made their way to the hotel of Hafiz Shahmir Ali around the time of incident to sip a cup of tea and watch television. Unfortunately, the prosecution did not examine any one of those customers and/or Hafiz Shahmir Ali who is said to be owner of hotel, In such a situation, it is argued by Mr. A. Q. Halepota, that testimony of these two eye- witnesses could not be relied upon. As regards recovery of hatchet, it is vehemently argued by Mr. A. Q Halepota, that this piece of evidence is also fit to be discarded. In his cross-examination ID A.S.I.P. Abdul Rehman very candidly admitted and even produced a copy of letter dated 22-12-1983 wherein a request as made by him to request further time in police custody of the appellant as hatchet used in the commission of crime was to be recovered from him . The original of this letter appears to have been presented before Resident Magistrate Kandiaro. Wherein request for fourteen days' remand in police custody of the appellant as prayed for. The A.S.I.P. Abdul Rehman admitted his signature on the said remand report/letter. Now, if the hatchet used in the commission of offence was actually recovered on the pointation of the appellant as stated above on 21-12-1983 soon after his arrest, there was no need to obtain remand of the appellant on 22-12- 1983 for among other thing hatchet was recovered from him. It is thus argued by Mr. A. Q. Halepota, that the evidence regarding recovery of hatchet from the appellant is, therefore, liable to be rejected as being highly doubtful. As regards motive, Mr. A. Q. Halepota, argued that motive is flimsy and it is so trifling and inadequate that it could not prompt any one to kill his adversary.
Besides, the motive was not put to the appellant in his examination under section 342, Cr.P.C. In the circumstances evidence regarding motive could not be used against the appellant.
10. Mr. Khalid Shah, learned counsel for the complainant referred to some portions of judgment of Hon'ble Supreme Court and argued that even testimony of a solitary witness was sufficient for conviction of the appellant. He referred to 1985 PCr.LJ 1580 in this regard.
11. We have carefully examined the evidence of two eye-witnesses and corroborative evidence of P.W. Sojhro Khan, who was informed about this incident by his son Muhammad Uris, who is one of the two eye-witnesses in this case. We find that the ocular evidence has a ring a truth about it. This is a case of single accused. Substitution in a case of this nature would be rare. No doubt motive was not put to the appellant while his statement was recorded under section 342, Cr.P.C. This piece of evidence cannot, therefore, be used against the appellant in view of a number of authorities of this Court as well as Hon'ble Supreme Court. It would, however, suffice if reference is made to the case of Rasool Muhammad v. Asal Muhammad and others 1995 SCM R 1373 with relevant observation at page 1376 and to the case of Sheral alias Sher Muhammad v. State 1999 SCM R 697.
In the latter authority since motive was not put to accused under setting 342, Cr.P.C. It was not considered as piece of evidence against him. As regards recovery of hatchet secured on the pointation of appellant, no doubt the Investigating Officer admitted that he did ask for remand of appellant in police custody on 22-12-1983. The copy of letter Exh.28 also bears his signatures as admitted by him. We do not agree with the finding of the learned trial Judge that A.S.I.P. Has given obliging admission in this regard. The learned trial Judge has, however, observed in the impugned judgment that even if it was presumed for the sake of argument that recovery was doubtful even then the appellant could be convicted on the basis of ocular evidence alone which was found by him to be convincing and trustworthy. We are, however, of the view that even if the evidence of recovery of hatchet is ignored, the testimony of child witness Muhammad Uris, who was about 13 years of age at the time of incident coupled with the testimony of eyewitness Shafi Muhammad and the corroborative testimony of P.W. Sojhro Khan was sufficient to prove that the appellant did cause hatchet blow to the deceased Muhammad Pathan. This is an incident of 19-12-1983 the eye- witnesses were examined by trial Court on 16-1-1988 after a lapse of more than four years. This long delay in the examination of witness was sufficient to explain discrepancy in their evidence with regard to location of seats on benches where they were sitting at the time of incident.
12. The only question, which has engaged our serious consideration, is, as to what offence was committed by the appellant and what should be the sentence in this case.
13. We have given our anxious thought to this aspect of the case. Admittedly, this is a case of single blow with hatchet although on the head of deceased. The appellant did not repeat the blow with the hatchet, which he was having. The encounter was sudden as the appellant saw the deceased Muhammad Pathan by chance at the hotel of Hafiz Shahmir Ali, There was no premeditation on the part of the appellant. The motive was suggested by the prosecution was that there was exchange of hot words between the appellant and the deceased over rotation of water about one month before this incident. This could hardly be the reason for the appellant to cause hatchet blow to the deceased with intention to kill him. The F.I.R. Was lodged under section 307, P.P.C. Initially. The injured Muhammad Pathan died in the hospital on the next day. In such circumstances knowledge could be imputed to the assailant but not intention. Reliance is placed on the case of Emmanuel Bahadur Joseph v. Paul Jackson and another 1981 SCM R 663. Reliance is also placed on an unreported Division Bench decision of this Court dated 4-12-1982 in Confirmation Case No,20 of 1984 (Criminal Appeal No,69 of 1984) wherein their Lordships of this Court as they then were converted the sentence of death awarded to the appellant Abdul Rashid and substituted it by a sentence of 7 years' R.I. With compensation of Rs,10,000 (ten thousand) to the heirs of deceased, failing which he was to suffer R.I. For two years. The conviction of the appellant in the above confirmation case was altered from section 302, P.P.C. To section 304(11), P.P.C. In the unreported D.B. Decision, referred to herein, the deceased was given two Churri blows on chest and hip, which caused internal damage to heart. The learned counsel for the appellant also referred to another unreported judgment of this Court passed in Criminal Appeal No, 41 of 1985 of Baboo wherein also the appellant Baboo was sentenced to suffer R.I. For eight years with fine of Rs,1,000 (one thousand) and in default to suffer R.I. For six months. The sentence of life imprisonment awarded to the appellant was substituted by the sentence of eight years as stated hereinabove and the conviction was altered from section 302 to section 304(11), P.P.C. And it was held that this was not a case of culpable homicide amounting to murder.
14. Looking to the facts and circumstances discussed above, we are of the considered view that the appellant had no intention to cause death of the deceased Muhammad Pathan. He can, however, be burdened with such knowledge only. We, therefore, alter the conviction of the appellant from section 302, P.P.C. To section 304(I1), P.P.C. And substitute the sentence of death awarded to the appellant with a sentence of ten years' rigorous imprisonment. Apart from the sentence of ten years rigorous imprisonment the appellant shall pay compensation of Rs,1,00,000 (one hundred thousand) to the heirs of deceased and in case of default in such payment he will undergo rigorous imprisonment for two years more. The benefit of section 382-B, Cr.P.C. Is given to the appellant. With this modification in the conviction and sentence the appeal stands dismissed and the reference for confirmation of death sentence is also rejected.
15. The appellant y was released on account of earlier judgment passed by this Court on 22-2-1989, whereafter the Hon'ble Supreme Court remanded his appeal for rehearing/reappraisal of evidence vide their Lordships' judgment dated 16-2-1992, passed in Criminal Appeal No, 20-K of 1990. The appellant was, however, allowed to continue on bail granted to him by the Hon'ble Supreme Court, so the appellant is still on bail. He will now surrender to his bail bond and he will have to serve the sentence of rigorous imprisonment of ten years awarded to him and pay compensation as ordered by us hereinabove.