' KIIAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No, 4 of 1997 and Criminal Appeal No, 16 of 1997 filed by Umar Hayat, appellant who was convicted and sentenced by learned Additional Sessions Judge, Rahimyarkhan vide his judgment, dated 8-12- 1997 to death under section 302(b), P.P.C. For the murder of Hamad Sarwar son of Muhammad Sarwar, complainant.
2. Occurrence in this case took place on 23-4-1995 at 7 p.m. In the land of Haji Bashir Ahmad situated in Chak No, 132/P12 kilometers from Police Station Sadar Sadiqabad.
3. Brief facts of the case as disclosed by Muhammad Sarwar, complainant (P.W.4) in complaint Exh.
P.G. Were that he alongwith his son Hamad Sarwar went to Sadiqabad on a motorcycle for the purchase of house-hold articles where Ch. Muhammad Yousaf and Asghar Ali met them. In the meanwhile, Umar Hayat, an ex-employee of the complainant also came there. The complainant sent his son Hamad Sarwar on the motorcycle in the company of said Umar Hayat to purchase house-hold articles and after a short while, complainant alongwith Ch. Muhammad Yousaf and Asghar Ali when reached on Pucca road at 7 p.m. In Chak No,132/P while returning back to their house on a motorcycle, they saw that motorcycle of the complainant was lying on the ground and purchased articles were scattered. Both the complainant and Asghar Ali further witnessed that in the land of Haji Bashir Ahmad, Umar Hayat was strangulating the deceased Hamad Sarwar with his Safa after throwing the deceased on the ground. The complainant and the P.W. Raised Lalkara on the appellant Umar Hayat upon which he succeeded in running away from the spot. Hamad Sarwar had succumbed to the injury at the spot.
4. After registration of the formal F.I.R. Exh. P.C./1, Ijaz Hussain. A.S.I. (P.W.6) went to the place of occurrence and prepared the injury statement Exh. P.A./1, inquest report Exh. P.A./2, took into possession motorcycle. P.4 and also the purchased articles P.5/1 to P.6 vide memo. Exh. P.D. And recorded the statements of P. Ws. Under section 161, Cr. P. C. On 24-4-1994. He also took into possession last worn clothes of the deceased P.1 to P.3 vide recovery memo. Exh.P.E. He also arrested Umar Hayat appellant on 6-5-1995 who on 10-5-1995 led to the recovery of Safa P.6, registration book, P.7 from the house of his relative situated in Ilyas Colony which were taken into possession vide memo. Exh. P.F. After completion of investigation, Umar Hayat appcilant was challaned to face the trial.
5. At the trial, prosecution in order to prow. Its case produced 7 witnesses in all. Dr. Muhammad Ishfaq who conducted postmortem examination on the dead body of Hamad Sarwar deceased was examined as P.W.I while Muhammad Sarwar, complainant, an eye-witness of the occurrence arid Asghar Ali, also an eye-witness were examined as P.Ws.4 and 5 respectively. Muhammad Yousuf was given up. Thereafter, statement of the appellant under section 342, Cr.P.C. Was recorded and on conclusion of the trial, appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant has read before us the prosecution evidence recorded by the learned trial Court, statement of the appellant recorded under section 342, Cr.P.C. And submits that motive in this case has not been proved for the reason that it cannot be believed because, as stated by the complainant, there was an altercation between the deceased and the appellant over return of an amount of Rs,2,000 which the appellant had taken from the deceased as loan, one month prior to the occurrence, complainant would not have sent his deceased son with the appellant on a motorcycle to purchase the house-hold articles and infact appellant and his parents used to work with the complainant as labourers and the complainant party did not use to pay their labour charges. Further, submits that both the eye-witnesses produced by the prosecution are not resident of place of occurrence and according to their statements they had seen the occurrence from a distance of 40/45 Karams which comes to about 200/225 feet and from a such distance at 7 p.m. It was not possible that the witnesses had seen the occurrence.
Adds that deceased was a young man and a rich person while the appellant was a poor labourer and it was not possible that the deceased would allow the appellant to commit the murder by putting a Safa in his neck. Learned counsel further submits that had the eye-witnesses been present at the spot, they must have intervened to save the deceased but they did not play any role in order to save the deceased from the hands of the appellant, and infact it was an unwitnessed occurrence. Also submits that there is no eye-witness of the motive in this case before whom Rs, 2,000 was given by the deceased to the appellant and that the story put by the prosecution is improbable. Learned counsel further submits that the deceased and the complainant had come from the village in order to fetch household articles on a motorcycle which was driven by the deceased but from the city the complainant allowed the deceased to go with the appellant Umar Hayat who was their servant and had met the complainant in the city although articles collected from the spot by the Investigating Officer are not of such nature that it required the services of another person to lift the same while sitting behind the motorcycle. Learned counsel lastly submits that F.I.R. Was lodged after due deliberation and consultation and that the appellant has been implicated in this case falsely due to suspicion.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R. Substitution is a rare phenomenon, there was no previous enmity between the parties and that the prosecution has proved its case through ocular account corroborated by medical evidence and the recovery of Safa on the pointation of the appellant.
8. We have heard learned counsel for the parties and have gone through the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. Carefully. In the instant case, no witness was produced by the prosecution before whom Rs, 2,000 was given by the deceased to the appellant as a loan to prove the motive. Moreover, if the said money was to be paid back to the deceased and on its demand there was an altercation between the deceased and the appellant and the matter was settled but how father of the deceased would send his son the deceased alongwith Umar Hayat, appellant. The story set up by the prosecution cannot be believed without a pinch of salt. So, the motive as set by the prosecution in our view is not proved. Now, we take up the eye-witness account. Two eyewitnesses have been produced by the prosecution. One is Muhammad Sarwar who was examined as P.W.4 and other is Asghar Ali, P.W.S. It has not been proved on record by the appellant that why he was falsely implicated in this case. There was no background of enmity between the parties. Appellant has admitted that he and his parents were working with the complainant party as labourers and this fact has also been admitted by the complainant party. Over and above this, report of the doctor who was examined as P.W.1 makes the things clear which is reproduced: "On 24-4-1995 at 8-30 a.m. While I was posted as Medical Officer in Civil Hospital, Sadiqabad. I conducted the post-mortem examination on the dead body of Hammad Sarwar aged 23 years, brought by Ejaz Hussain, A.S.I. And identified by Shafique Ahmad and Mehboob Sultan P.Ws.
' It was a dead body with medial body During the post-mortem, I noted as under:--- ' There was yellowish brown bruise marks of ligature which encircled the neck horrizently completely. On disection, the ligature mark, subcutaneous tissues and muscles were injured and ecchymosed/tracia and larynax ecchymosed.
' On examination ..................................
' According to my opinion, the cause of death was strangulation, leading to suffocation and cardiac inhimitation. Probable time that elapsed between injuries and death was immediate while between death and post-mortem was 10-12 hours ' A bare perusal of statement of the doctor would show that ocular account is corroborated by medical evidence and we hold that the witnesses were present at the spot and they had seen the occurrence and that it was the appellant who committed the murder of deceased but the Safa which has been used in the commission of the offence is not of such type of weapon which is used in murder cases like fire-arms, hatchet and knife etc. Nobody knew or stated before the trial Court that what transpired between the deceased and the appellant before the actual occurrence.
' Keeping in view, the overall facts and circumstances of the case, the submissions made by learned counsel for both the sides and the fact that prosecution has failed to prove the motive in this case, the appeal filed by the appellant is dismissed with modification in the sentence which is converted from death to life imprisonment with the benefit of section 382-B, Cr.P.C. Murder Reference is answered in the negative.
' We have given notice to learned counsel for the appellant that why legal heirs of the deceased should not be awarded the compensation as required under section 544-A, Cr.P.C. Who has accepted the same, so we also award compensation of Rs,10,000 to be paid to the legal heirs of the deceased and in default of payment thereof, to undergo 6 months R.I.
' Death sentence is not confirmed.
Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.