' SHAMEEM HUSSAIN KADRI, J.-Nazar Hussain was tried by the learned Additional Sessions Judge, Lyallpur, for the murder of his cousin Manzoor Hussain and was sentenced to death under section 302, P. P. L. With a fine of Rs. 5,000, out of which half was ordered to be paid as compensation to the heirs of the deceased. In default of payment of fine he had to further undergo R. I. For two years.
2. The occurrence in this case is alleged to have taken place on 7th April 1974 at 4 a.m. In Chak No. 23 J. B. Situate at a distance of six miles from Police Station, Chak Jhumra. F. I. R. (Exh. P. E.) was lodged by Noor Muhammad (P. W. 7), brother of the deceased at 6-15 a.m.
3. On 10th April, 1974, on the pointing out of the appellant, bloodstained toka (Exh. P. 5) was recovered buried near the mosque Darbar Miran Shah, which was taken into possession vide recovery Memo. (Exh. P. F.) by Ata Ullah Khan Sub-Inspector (P. W. 10). The recovery was attested by Muhammad Ali, who has not been produced and Saifullah (P. W. 8). The toka was sent to the Chemical Examiner who vide report (Exh. P. M.) stated that it was blood-stained. The Serologist's report (Exh. P. N.) reveals that the toka was stained with human blood.
4. The prosecution story narrated by brother of the deceased runs as follows: Marriage of brother and sister of the deceased was to be celebrated. There was music and dance till midnight.
Thereafter, the deceased, Saifullah, one Ashiq Hussain and Noor Muhammad brother of the deceased went to sleep. Ashiq Hussain was sleeping at a distance of 15-20 Karams in an open place. At about 4 a. In. The shrieks of the deceased were heard by the first informant. He saw the appellant, who is also a maternal cousin brother of the deceased and Nur Muhammad, giving toka blows to the deceased. The witnesses challenged the appellant who threatened them not to come near otherwise they will meet the same fate. Thereafter, he ran away.
5. The motive for the crime described is that a year and half ago the deceased Manzoor Hussain had married Mst. Doulan widow of Sultan (aunt of the appellant) after having illicit relations with her. This was resented by the appellant. Thereafter on the intervention of the panchayat. Of the baradari Mst. Doulan was divorced, but she gave 21 kilos of land to the deceased for cultivation and continued her liasion with him.
6. Dr. Gulsher Khan (P. W. 1), performed post-mortem examination on 7th April, 1974, at 4 p.m. He found four incised injuries on the vital parts of his body, one of which had cut lower teeth and mandible, the other had cut trachea oesphagus vertebra and spinal cords on the upper front and right side of neck, the third was cutting trachea oesphagus and vertebra below injury No. 2 and the fourth was cutting trachea oesphagus and vertebra below injury No.
3. All the injuries were sufficient to cause death in the ordinary course of nature.
7. Excepting one Ashiq the other two eye-witnesses of the occurrence, Noor Muhammad (P. W. 7) brother of the deceased and Saifullah (P. W. 8) cousin of the deceased were produced at the trial.
The appellant denied his guilt, pleaded his innocence and said that he was implicated due to enmity. He refused to produce any evidence.
8. Dr. Khalid Ranjha learned counsel for the appellant argued that the occurrence had taken place in the night and the identity of the appellant could not be established and in any case the witnesses are hostile and they should not be relied upon. In the alternative he argued that this was not a case for confirmation of sentence of death.
9. We have perused the evidence and heard arguments of learned counsel for the appellant. We are of the confirmed view that the appellant is the assailant of the deceased. There is sufficient evidence on the record to convict him. The recovery of blood-stained toka corroborates the oral testimony. The argument of the learned counsel that the witnesses are inimical has little force because the deceased, the eye-witnesses and the appellant are related inter se. There is no reason for them to implicate one cousin o their's for the murder of another.
10. The motive in this case, to our mind, is the real cause of crime. The land of Mst. Doulan having remained in cultivation with the deceased and her continuous illicit relations with him were certainly obnoxious to the appellant. It was an insult which was disliked by him. We are, therefore, unable to agree with the first submission of the learned counsel for the appellant. However, we are inclined to convert the sentence of death to life imprisonment, which in our view, is a mitigating circumstance for doing so on account of motive described above. We direct that a sum of Rs. 2,500 which the learned Additional Sessions Judge has ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C. Will have to be paid by the appellant, but an amount of Rs. 2,500, which is described as fine, would not be. Recoved. The appeal is accepted to this extent. Sentence of death is not confirmed.