' MUHAMMAD NAWAZ ABBASI, J.---The appellant namely Mumraiz Khan alias Bhutto was tried by the learned Sessions Judge, Attock, for committing the murder of Sikandar Khan. The learned trial Judge vide judgment dated 5-6-1995 having found the appellant guilty of the charge convicted and sentenced him to death under section 302(b), P.P.C. With the direction to pay Rs,25,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default in payment of compensation, he was directed to undergo R.I. For six months. The appellant was separately convicted under section 449, P.P.C. And sentenced to seven years' R.I. With a fine of Rs,5,000 and in default of the payment of fine to undergo R.I. For one year. The benefit of section 382-B, Cr.P.C. Was allowed to the appellant.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No,109 of 1995 whereas the learned Sessions Judge has sent the Murder Reference bearing No,140 of 1995 under section 374, Cr.P.C. To this Court for confirmation of the death sentence awarded to the appellant. The appeal as well as the Murder Reference are proposed to dispose of through this single judgment.
3. The occurrence in this case took place in the house of the deceased at Sehrivela on 25-6-1994, the report of which was lodged on the same day at 7-30 a.m. Vide F.I.R. Exh.P.D. On the statement made by Muhammad Amir, real brother of Sikandar Khan deceased.
4. The brief facts as contained in the F.I.R. Are that on the fateful day, i,e, 25-6-1994 the deceased Sikandar Khan along with his family and mother was sleeping in his Hevali whereas Muhammad Ilyas, the first informant, in the company of his family was sleeping in his Haveli adjoining to the Haveli of the deceased. The first informant on hearing the noise from the Haveli of Sikandar Khan at Sehrivela rushed towards the Haveli of Sikandar Khan and saw him lying in an injured condition on his cot. The deceased had sustained an injury on the throat as a result of which he died at the spot.
Mst. Qamar Sultana, wife of. Sikandar Khan deceased, and her mother-in-law who were sleeping in the courtyard of the Haveli disclosed to the first informant that on hearing' the cries of Sikandar Khan, they woke up and saw that Mumraiz alia Bhutto while pulling out the hatchet from the neck of the deceased escaped through the window in the outer wall on the northern side of the courtyard of the Haveli. Mst. Qamar Sultana, her son Shafaat Ali and Mst. Roshanai, mother of the deceased witnessed the occurrence. The motive behind the occurrence as stated in the F.I.R. Was that Mumraiz Khan having abducted Mst. Noor Bhari performed Nikah with her and then kept her in the house of Sikandar Khan deceased for a few days. The appellant having developed suspicion that Sikandar Khan deceased disgraced his wife was revengeful against the deceased.
5. Ghazanfar Ali S.I./Additional S.H'O. After spot inspection prepared injury statement Exh.P.F. And inquest report Exh.P.G. Of Sikandar Khan deceased and dispatched the dead body to the mortuary for post-mortem examination. During the spot inspection, he prepared site-plan Exh.P.H. And also took into possession blood-stained earth from the spot through memo. Exh.P.F. The Investigating Officer having recorded the statements of P. Ws. Made the same part of the record. He took into possession bloodstained Shalwar P.1 and Qamiz P.2. Of the deceased which was produced before him by a constable and handed over the same to the Moharrir of the Police Station. The accused was arrested on 1-7-1994 who got recovered blood-stained hatchet from the cattle shed of his house on 5-7-1994 which was taken into possession by the Investigating Officer vide memo.
Exh.P.C. By preparing rough sketch Exh.P.C./1 of the place of recovery of weapon of offence. The S.H.O: got prepared site-plans Exh.P.B. And Exh.P.B./1 from the draftsman and after completion of formal investigation, challaned the appellant to face the trial.
6. Dr. Muhammad Sohail Ahmad P.W.1 conducted the post-mortem examination on the dead body of Sikandar Khan on the same day and found the following injury on his person:-- "An incised wound 17 c.m. x 4 c.m. x cavity deep (8 c.m.) with clean cut margin, extending 4 c.m.
Above the right mid clavicular line to the right sternoclavicular joint including sternal notch with chip fracture of medical tubercle of right clavicle at right sterno clavicular joint. The wound was extending deep cutting skin, subcutaneous tissue, platysma muscle, sterno masterno mastoid, and sterno hyoid muscles."
7. In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of the injury, which was inflicted with sharp-edged weapon. The injury was ante-mortem and was sufficient to cause death in the ordinary course of nature.
8. Mst. Qamar Sultan, widow of the deceased and Shafaat Ali son of the deceased were examined as eye-witnesses of the occurrence in addition to Muhammad Ilyas, the first informant. These witnesses while repeating the prosecution story as contained in the F.I.R. Fully supported the same at the trial.
9. The appellant in his statement under section 342, Cr.P.C. While denying the charge stated that Amir Khan having married his daughter Mst. Noor Bhari with him withheld the Rukhsatti and later Mst. Nook Bhari voluntarily joined him and since a criminal case was registered against him and his family members including Mst. "Noor Bhari, therefore, she was temporarily kept as stop-gap arrangement in the house of the deceased. The appellant further stated that Mst. Qamar Sultan, wife of deceased on suspicion of illicit relations of the deceased with Mst. Noor Bhari demanded her ouster from the house and disgraced the deceased in the Village and that he was not responsible for the murder of Sikandar Khan.
10. Learned counsel for the appellant therefore, the allegation against the has raised the following contentions appellant of committing the murder
(a) That according to the prosecution story, the appellant was revengeful against the deceased for disgracing his wife during her stay in the house of the deceased whereas the appellant in his statement under section 342, Cr.P.C. Has stated that Mst. Qamar Sultana wife of the deceased disgraced her husband by levelling allegation of his committing Zina with Mst. Noor Bhari, wife of the appellant.
(b) That Mst. Qamar Sultana who claimed to be the eye-witness of the occurrence had personal grudge against the appellant and that the motive set up by the prosecution being of double- edged weapon would not be as such as an incriminating evidence against the appellant.
(c) That admittedly, the occurrence took place at Sehrivela when there was still dark and the story of identifying the appellant in the electric light being not supported by the attending circumstances, the identification of the appellant was doubtful.
(d) That the first informant was not an eye-witness of the occurrence and has lodged report on the information given to him by Mst. Qamar Sultana, wife of the deceased and her on Shafaat Ali who admittedly were sleeping in the courtyard of the house at the time of occurrence. And had neither seen the assailant inflicting the injury to the deceased nor could identify him in the dark, of the deceased was not proved beyond doubt.
11. The learned counsel representing the complainant and the State, on the other hand, having argued that the eye-witnesses, being inmates of the house while sleeping in the same courtyard along with the deceased could easily identify the appellant in the electric light which was available in the courtyard. They submitted that the occurrence was witnessed by the natural witnesses who had no enmity against the appellant to substitute him for unknown culprit.
12. We have heard the learned counsel for the parties at length and perused the record with their assistance. The fact relating to taking place of the occurrence in the house of the deceased at Sehrivela and the recovery of the dead body from the courtyard of his house are not denied. The witnesses namely Mst. Qamar Sultana and Shafaat Ali being wife and son of the deceased were sleeping in the same courtyard on separate cots near the cot of the deceased whereas Muhammad Ilyas complainant, who is brother of the deceased, was sleeping in Haveli with his family adjoining to the Haveli of the deceased, therefore, the presence of these natural witnesses at the spot would not be questionable. The report of the fateful occurrence was lodged at the Police Station containing all the material facts relating to the occurrence including the actual scene of running of the appellant from the spot after inflicting the injury the injury to the deceased and the identification of the appellant in the electric light. The defence despite lengthy cross- examination has not been able to dislodge the eye-witnesses on any material point. The perusal of their statements would show that Mst. Qamar Sultana and her son on hearing the cries of the deceased saw the appellant pulling out the hatchet after inflicting the injury on the neck of the deceased in the electric light available in the courtyard and then made an escape through the window in the courtyard. Muhammad Amir P.W.7 in his cross-examination stated that the electric light was available during he night in the courtyard of the Haveli of the deceased. Ms/. Qamar Sultana has denied the suggestion that she blamed her husband that he was committing Zina with Mst. Noor Bhari and she for the said reason involved the appellant in a false case. The first informant on hearing the cries immediately rushed towards the house of the deceased and stated that the deceased shortly after having sustained the injury on his neck expired. The eye-witnesses being inmates of the house are the natural witnesses and they have no enmity whatsoever against the appellant either to falsely implicate him or to substitute him for the real culprit. The eye-witness account is supported by the medical evidence according to which the deceased sustained injury on his neck with hatchet. The recovery of bloodstained hatchet at the instance of the appellant from his house would also be another independent source of corroboration to the ocular account.
The motive for the occurrence according to the prosecution was that the appellant being revengeful against the deceased for disgracing his wife committed his murder whereas the appellant in his statement under section 342, Cr.P.C., stated that Mst. Qamar Sultana wife of the deceased made a propoganda that the deceased was committing Zina with his wife Mst. Noor Bhari. Thus, the common feature of the two versions of the motive brought on record was the illicit connections of the deceased with Mst. Noor Bhari. Therefore, notwithstanding the source of disclosure of illicit relations of the deceased with Mst. Noor Bhari, the appellant definitely having felt insulted developed grudge against the deceased and due to the said reason was inimical towards the deceased, who was mixed up with his wife for the last more than six months, but it was not known that what happened on the day of occurrence which prompted the appellant to take extreme step of taking the life of the deceased. The immediate reason behind the fateful occurrence being not known and the motive set up by the prosecution involving the element of Ghairat would definitely create a mitigating circumstances in favour of the appellant in the matter of sentence.
14. The scrutiny of the prosecution evidence would establish that the charge against the appellant under section 302(b), P.P.C. Is proved beyond doubt. The evidence of Mst. Qamar Sultana and her son Shafaat Ali having seen the appellant running from the courtyard with hatchet in his hand after inflicting the injury to the deceased cannot be disbelieved or doubted as they being the inmates of the house were sleeping near the cot of the deceased and it was natural for them to woke up on hearing his cries. Therefore, the ocular account of natural witnesses in the present case would need no corroboration to establish the charge against the appellant but still it is supported by the medical evidence and the recovery of hatchet.
15. We, therefore, for the foregoing reasons while maintaining the conviction awarded to the appellant by the learned trial Judge are not in favour of extreme penalty of death and taking into consideration the mitigating circumstance as pointed out in the preceding paragraph reduce the sentence of the appellant from death to imprisonment for life. We, however, without interfering in the compensation awarded by the learned trial Judge for payment to the legal heirs of the deceased under section 544-A, Cr.P.C. And also the conviction and sentence awarded to the appellant under section 449, P.P.C., dismiss his appeal with reduction of sentence under section 302(b), P.P.C . The separate sentences under sections 302(b), P.P.C. And 449, P.P.C., however, shall run concurrently and the appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.
16. With the above modification in the sentence, we while dismissing this the Murder Reference in the negative. The death sentence is not confirmed.
Sentence reduced.