' M. DILAWAR MAHMOOD, J.-Abdul Ghaffar son of Fateh Muhammad aged 20 years was tried by the Additional Sessions Judge, Multan under section 302, P. P. C. For the murder of Ghulam Muhammad deceased. The learned Additional Sessions Judge vide his judgment dated 7th of June 1916, convicted him under section 302, P. P. C. And sentenced him to death. He was further ordered to pay Rs, 1,000 as compensation which was to be paid to the heirs of the deceased. The learned Additional Sessions Judge has referred this case for confirmation of the death sentence under section 374, Cr. P. C. While Abdul Ghaffar has also filed an appeal against his conviction. This judgment will dispose of both the Reference and the Appeal.
2. The report of the incident was lodged by Dur Muhammad (P. W. 6), a real brother of the deceased, at Police Station, Mailsi at 6-30 a m. On 1st August 1974. The occurrence had taken place on the night between 31st of July 1974, and 1st of August 1974, at about mid-night. F. I. R. Exh. P. D.
Was recorded by Muhammad Anwar-ul-Haq A. S. I. (P. W. 10). Dur Muhammad (P. W. 6) along with his brother Manzoor Ahmed (P. W. 7) and Ghulam Muhammad deceased were residing in Basti Dur Muhammad Sindi in Mauza Chadhar Bindah in their respective Sahals (kachha residential houses).
Their houses were adjacent to each other. On the night between 31st of July and 1st of August 1974, they were sleeping in front of their residential houses when at about mid-night they woke up on hearing the barking of dogs from the side of the house of Ghulam Muhammad deceased. It was a moonlit night. They rushed to the house of Ghulam Muhammad and in their view Abdul Ghaffar accused inflicted a hatchet blow on the neck of Ghulam Muhammad deceased who was asleep.
They tried to apprehend the appellant but he fled away brandishing his hatchet. Ghulam Muhammad succumbed to the injury there and then. He left Manzoor Ahmed (P. W. 7) with the dead body and himself went to Police. Station, Mailsi on foot which was nine miles away.
3. According to Dur Muhammad (P. W. 6) the complainant, Muhammad Amir a maternal cousin of Ghulam Muhammad deceased and this witness was undergoing sentence of life imprisonment in a murder case. In his absence Ghulam Muhammad deceased was looking after his daughter Mst.
Faiz Elahi and other members of the family. The appellant had demanded the hand of Mst. Faiz Elahi which was refused by Ghulam Muhammad deceased and he gave her hand to one Zahoor Ahmad. It is alleged that the appellant nourished a grudge against Ghulam Muhammad deceased on that account. This is the motive for the present occurrence.
4. Muhammad Anwar-ul-Haq A. S.
1. (P. W. 10) recorded the F. I. R. Exh. P. D. At 6-30 a.m. On 1st of August 1974 and then proceeded to the place of occurrence. He reached there at about 7-00 a.m. He collected the blood-stained earth from the spot vide Memo. Exh. P. A. Dated 1st of August 1974. This recovery was attested by Sher Muhammad (P. W. 8), Allah Dad P. W. (not produced) and Muhammad Anwar-ul-Haq A. S. I. (P. W.
10). The Investigating Officer searched for the appellant and arrested him on 3rd of August 1974, at 8-00 a.m. Sher Muhammad (P. W. 8) had Produced him. The appellant led to the recovery of a blood-stained hatchet Exh. P. 5 from the residential quarters at the tubewell of Haji Khuda Bakhsh.
This hatchet was taken into possession vide Memo. Exh. P. E. In the presence of Sher Muhammad (P.
W. 8), Muhammad Anwar-ul-Haq A. S. I. (P. W. 10) and Falak Sher P. W. (not produced). His shirt Exh.
P. 4 was recovered from the appellant vide Memo. Exh. P. C. Dated 3-8-1974. The witnesses to the recovery were Amir Bakhsh (P. W. 9), Muhammad Aawar-ul-Haq A. S. I. (P. W. 10) and Ghulam Haider P. W. (not produced).
5. The blood-stained hatchet P. 5 and shirt P. 4 were sent to the Chemical Examiner and according to the report of the Serologist Exh. P. L. These articles were found to be stained with human blood.
6. Dr. Muhammad Aslam (P. W. 5), Medical Officer Mailsi, conducted the post-mortem examination on the dead body of Ghulam Muhammad deceased. He found the following injury on his person :- "An incised wound 4i" x " x 3" on the front and left side on the neck at its junction with the chin almost in transverse direction just above the thyroid cartilage 3i" of the injury was on the left side while the rest was on the right side of the middle line. The larynx between the thyroid cartilage and the hyroid bone had been cut. The body of the fifth spine of the neck, the spinal cord, the gullet and the blood vessels of the neck on the left side were cut.
' According to him the injury was fatal individually. Death had been caused as a result of injury to the spinal cord and blood vessels of the neck. This injury was sufficient to cause death in the ordinary course of nature. The injured had died instantaneously. The doctor also found that the deceased had taken his last meal two or three hours prior to his death."
7. The appellant when examined by the Sessions Court stated that the case was false and that he was innocent. He added :- "I am innocent. The fact of the matter is that a few years ago my father was asked by Dur Muhammad to contribute some money in order to get a share in the land upon which Dur Muhammad and his relatives had filed a pre-emption suit against one Ghulam Hussain. My father advanced about Rs, 3,000 to Dur Muhammad. The suit was won by Dur Muhammad. We made repeated requests for the share in land but of no avail. About a week before there was a quarrel on this score and I used strong language against Dur Muhammad. Ghulam deceased was a bad character. He had many enemies. He was murdered by some unknown man and I being a poor have been made a scapegoat."
' The appellant also produced Ghulam Haider (D. W. 1) in his defence. This witness deposed that father of the appellant Fateh Muhammad Sindi had given 3,000 rupees to Allah Ditta father of the deceased in connection with a pre-emption suit on the understanding that on the successful completion of the pre-emption suit a tract of land measuring about 11 bighas from the suit land would be given to him. This witness further stated that Allah Ditta and his sons had not honoured this commitment and had not given any land to Fateh Muhammad, father of the appellant.
8. The case of the prosecution rests upon the ocular testimony of two eye-witnesses, namely Dur Muhammad (P. W. 6) and Manzoor Ahmed (P. W. 7), the recovery of blood-stained hatchet P. 5 and shirt P. 4, the motive and the medical evidence.
9. The two eye-witnesses Dur Muhammad (P. W. 6) and Manzoor Ahmed (P. W. 7) are brothers of the deceased. Dur Muhammad has given detailed description of the occurrence as detailed in para. 2 of the judgment. He stated that he along with his brothers Ghulam Muhammad, Manzoor Ahmed and Nur Muhammad live in their residential houses in Basti Dur Muhammad Sindi of Mauza Chadhar Bindah. Their houses are adjacent to each other and were partitioned by a wall which was about 2 feet high. On the night of occurrence he was sleeping in front of his Sahal (house) while Ghulam Muhammad deceased and Manzoor (P. W. 7) were asleep in front of their respective houses. At about midnight he and Manzoor (P. W. 7) were awakened from their sleep by the barking of the dogs from the side of the house of Ghulam Muhammad. They got up and ran towards the house of Ghulam Muhammad deceased. When they reached near the cot of Ghulam Muhammad deceased they saw Abdul Ghaffar appellant who was standing near the charpai of Ghulam Muhammad deceased. The appellant was armed with a hatchet. They were still at a distance of three karams from the cot of Ghulam Muhammad deceased when the appellant gave a hatchet blow on the neck of Ghulam Muhammad deceased. They tried to capture him but he threatened them not to come near. He made good his escape with the weapon of offence. Ghulam Muhammad died at the spot. It was a moonlit night and they could easily identify the appellant besides he was previously known to them as he was son of their maternal aunt's daughter (bhanja).
10. Manzoor Ahmed (P. W. 7) also a brother of the deceased supported Dur Muhammad (P. W. 6) in all particular details and gave as graphic picture of the occurrence as had been given by Dur Muhammad (P. W. 6). These two eye-witnesses were subjected to lengthy cross-examination but their veracity had not been shattered in any manner. Their testimony inspires confidence. No doubt these two eye-witnesses are real brothers of the deceased but there is nothing on the record to suggest that these eye-witnesses were screening the real culprit and substituting the appellant instead.
11. The evidence of these eye-witnesses is fully corroborated by the evidence of the recovery of blood-stained hatchet P. 5 and blood-stained shirt P. 4 of the appellant. These recoveries are supported by the evidence of Sher Muhammad (P. W. 8) and Muhammad Amir (P. W. 9) besides the Investigating Officer Muhammad Anwar-ul-Haq, A. S. I. (P. W. 10). No infirmity has been pointed out by the learned counsel for the appellant in this evidence.
12. The nature and seat of injury fully corroborates the testimony of the eye-witnesses. Doctor's finding that the deceased had taken his last meal about two or three hours prior to his death also demonstrated that the occurrence took place at about mid-night as alleged by the eye-witnesses.
1 here is, however, a slight variation in the evidence with regard to motive. The Investigating Officer found that Mst. Faiz Elahi had only been betrothed to one Zahur Ahmed and that the date had been fixed for her Nikah during the days of occurrence. It is, therefore, established on the record that the appellant wanted the hand of Mst. Faiz Elahi who was a ward of Ghulam Muhammad deceased.
The deceased rejected the proposal of marriage of the appellant and instead arranged her marriage with one Zahur Ahmed. This naturally was the cause of grievance of the appellant against Ghulam Muhammad deceased.
13. The learned counsel for the appellant submitted that no doubt the murder took place at mid- night as alleged by the eye-witnesses but no one was present and the occurrence was not witnessed by anyone. He also submitted that the conduct of the two eye-witnesses is not natural.
Their story that they got up on hearing the barking of dogs is not natural because if these two prosecution witnesses could wake up due to barking of dogs then it was difficult to believe that the same barking of dogs would not or did not wake up Ghulam Muhammad deceased. The learned counsel then argued that the deceased was a notorious bad character and had many enemies and had been done to death by one of them. And that recovery witnesses are not reliable. He also submitted that the appellant had a motive to kill Mst. Faiz Elahi or her mother but not the deceased.
According to bim the appellant has been involved in this case due to early litigation regarding pre- emption suit wherein Allah Ditta the father of two eye-witnesses and the deceased had agreed to give a certain portion of land to Fateh Muhammad, father of the appellant. We are afraid that all these contentions of the learned counsel for the appellant are without any force. The nature and depth of sleep varies from person to person. Some persons may enjoy deep sleep and do not wake even when there is a beating of drums while there are others who wake up by slightest noise or rustle.
' In the routine of living there are regular gradations in the depths of slumber. The nightly sleep of a person varies with the physical, mental and temperamental characteristics of the individual which in turn is influenced by age, sex and day-to-day fluctuating environmental factors. Fatigue is an important factor in this routine. Therefore, there is nothing unnatural in the conduct of the two eye- witnesses when they say that they woke up on hearing of the barking of dogs and that the same barking did not wake up Ghulam Muhammad deceased. It was the 12th of lunar month and moon rise on that day was at 5-15 p.m. While the time for moon set was at 3-45 a.m. In other words at about mid-night, there was enough moonlight to enable the eye-witnesses to clearly see and identify the assailant. Besides, the appellant was previously known to the eye-witnesses as he was the son of their maternal aunt's daughter (bhanja). There is nothing on the record to support the contention of the learned counsel for the appellant that Ghulam Muhammad deceased was a notorious bad character and that he had many enemies and had been done to death by one of them. No such question was put to Dur Muhammad (P. W. 6). A few such suggestions were put to Manzoor Ahmed (P. W. 7) but were vehemently denied by the said witness.
14. The learned counsel for the appellant criticised the recovery witnesses as unreliable. But he was unable to point out any infirmity in their testimony. There is nothing on the record to suggest that they had any motive or interest to falsely implicate the appellant.
15. As regards the motive, suffice it to say that motive is not a necessary ingredient of the crime.
Indeed the prosecution need not establish a motive, which must necessarily be in the mind of the appellant. The evidence of motive in the present case however is not tainted with any infirmity, because this much is established that Mst. Faiz Elahi was betrothed to one Zahur and that the appellant's offer to marry her had not been accepted.
16. In the result we are of the view that the prosecution has successfully established its case against the appellant beyond any reasonable doubt and by upholding his conviction and sentence we would confirm the death sentence.
17. Criminal Appeal No, 983 of 1976 of the appellant is accordingly dismissed.
' Death sentence is confirmed.