' ABDUL HAMEED DOGAR, J.---This appeal by leave of the Court has arisen out of judgment, dated 11-2-1996 of Lahore High Court, Multan Bench, whereby appellant Muhammad Hussain's conviction and sentence of death under section 302, P.P.C. Awarded to him for committing murder of Muhammad Ramzan by the learned Additional Sessions Judge, Muzaffargarh was upheld. His conviction and sentence under section 307, P.P.L. For causing injuries to complainant Ghulam Rasool and murderous attack on P.W, Pir Bakhsh was also maintained.
2. Leave to appeal was granted by this Court to examine as to whether in view of circumstances as lesser penalty can be awarded to the appellant as urged in leave granting order.
3. The case of prosecution as narrated in the F.I.R. Was that on 7-4-1990 at about 4-00 p.m.
Complainant Ghulam Rasool and his brother Ghulam Hussain were present at Basti Chah Bahariwala when absconding accused Ghulam Hussain and appellant Muhammad Hussain, real brothers came there and asked Muhammad Ramzan to allow Mst. Zarina the wife of absconding accused Ghulam Hussain to go with them,. The talks failed as such appellant and his brother Ghulam Hussain got annoyed and left for their house. It was on the same day at about 6-00 p.m.
They armed with 'Dang' and his hatchet again went to the house of Muhammad Ramzan deceased and entered in his Haveli and raised Lalkara saying that he would be taught a lesson for not sending Mst. Zarina with them. Absconding accused Ghulam Hussain gave a Dang blow to Muhammad Ramzan who fell down and the appellant Muhammad Hussain inflicted repeated hatchet blows on his neck. On intervention of P.W. Pir Bakhsh, Muhammad Hussain appellant gave him also a hatchet blow on his left arm. He also caused hatchet blow on the head of complainant.
On seeing P.Ws. Coming Ghulam Hussain managed to run away whereas appellant was apprehended at the Wardat alongwith crime weapon who also suffered injuries in scuffle.
Muhammad Ramzan succumbed at the spot. The motive behind the incident was that Mst. Zarina daughter of deceased and wife of Ghulam Hussain had gone to the house of father Muhammad Ramzan due to estrange relations and appellant accused Ghulam Hussain wanted to take her back but deceased refused to send her with them.
4. At the very outset Ghulam Hussain absconded and did not face the trial as such the case proceeded against the appellant only.
5. In support of appeal learned counsel for the appellant based his arguments mainly on leave granting order. He additionally contended that the incident in this case took place all the sudden and flared up only on the refusal of hand of Mst. Zarina the wife of brother of appellant which in the circumstances of the case is sufficient mitigating circumstances to reduce the sentence from death to imprisonment for life. He drew our attention to the pleas taken by the appellant in his statement under section 342, Cr.P.C. Whereby appellant has stated that on the day of incident at about 6-00 p.m. He and his brother Ghulam Hussain had gone to persuade Muhammad Ramzan to allow Mst. Zarina to live in their village and while they were having talks Pir Bakhsh and Ghulam Rasool came there. At that time Ghulam Rasool became harsh, he and Pir Bakhsh attacked upon them with Sotas. One hatchet and Sota were lying near them which were picked up by them and they in exercise of their right of self-defence caused injuries to Muhammad Ramzan and others.
According to the learned counsel this all goes to show thai there was only matrimonial disputes and weak motive as such this is a fit case to award lesser punishment.
6. On the other side Mr. Chaudhry Muhammad Akrarn learned counsel for the State vehemently controverted the contention of the appellant's counsel and argued that appellant has acted brutally by severing the neck of deceased Muhammad Ramzan and causing injuries to complainant and P.W. Pir Bakhsh as such he does not deserve any leniency in the sentence.
7. After going through the record and hearing learned counsel for the parties we are of the considered opinion that appellant's conviction under section 302, P.P.C. Is in conformity with law and does not merit interference. The question whether in the circumstances of the case the sentence of death awarded to the appellant deserve any leniency is also without any substance for the following reasons:--
(i) Firstly that the appellant and absconding accused Ghulain Hussain his brother had gone to the house of deceased Muhammad Ramzan with full knowledge and intention that they will not spare him in case the hand of Mst. Zarina is not handed over to them for taking her to their village.
(ii) Secondly that they immediately on their arrival in the house of Muhammad Ramzan threatened him to be prepared to face the consequence about refusal of the hand of Mst. Zarina his daughter and attacked upon him. The appellant admittedly caused him several sharp side blows from hatchet on the neck of deceased Muhammad Rarrizan resulting in complete severing of his neck.
From such brutal act nothing but an intention to commit Qatle-Amd can be gathered. For proper perusal of this aspect of the matter reference is given to the injuries on the person of deceased, Muhammad 1B Ramzan:-- ' A vast irregular incised wound (combination of multiple small incised wounds) of front of neck, extending to laterally as well as posteriorly 24 c.m. x 7 c.m. All the vessels nerves assophagus, trachea and boney parts (survical spines) cut and badly smashed. Right ear was completely cut from its lower part. Only a small muscular twig adjoining to its other parts on left lateral side which was 20 c.m. x 11 c.m. Cutting almost whole side of neck including all vessels, nerves, muscles, and bones which was extending posteriorly. This wound was on the front-mid and upper part of neck.
(ii) A small incised wound 3 c.m. x 1 c.m. On left base of neck. On front with slight abrasion adjoining to it, about 4 c.m. In length. Wound going deep cutting all the muscles, nerves and vessel.
(iii) An incised wound 10 c.m. x 1-1/2 c.m. On inner side of left cheeck with lower part of left side of nose, going deep up to bones.
(iv) An incised wound 2 c.m. x 1/2 c.m. Muscle deep on the upper top of right shoulder.
(v) Abrasion 3 c.m. x 2 c.m. In front and upper part of chest on mid-line.
8. From what has been discussed above, we feel there is hardly any extenuating circumstances to award lesser sentence to the appellant. Accordingly appeal is dismissed. The sentences awarded by the High Court are maintained.