' This judgment shall decide Criminal Appeal No,298 of 2000 and Criminal Revision No,111 of 2000 as both these proceedings arise out of common judgment of a learned Additional Sessions Judge, Jhelum.
2. Ghulam Hussain, appellant was accused of commission of offence under section 302, P.P.C. Vide case F.I.R. No,151 dated 4-8-1999 at Police Station Pind Dadan Khan, District Jhelum. According to the contents of the F.I.R. Exh.P.D. Haji Fazal Ellahi laid information at the said police station at 12-55 p.m. That he and his brother Qurban Hussain and Manzoor Ellahi are residents of Katchi Basti Dhamraya Kheora and all the three brothers are labourers. Qurban Ilussain often remains ill and occasionally goes for labour. On that day at 8-30 a.m. He, Manzoor Ellahi and Qurban Hussain came to settle said date of marriage of the daughter of Muhammad. Bashir, Qurban Hussain went to the house of his daughter and thereafter he was coming alongwith his grandson to the house of Muhammad Bashir when Ghulam Hussain (the appellant) who lives in front of the house of the daughter of Qurban Hussain was coming out of his house. Ghulam Hussain was armed with a hatchet who raised a Lalkara to Qurban Hussain that he will teach him a lesson for abusing his wife.
Upon the said Lalkara the complainant and his brother Manzoor Ellahi looked back when Ghulam Hussain gave two blows repeatedly which hit Qurban Hussain at his head and he fell down. The complainant and Manzoor Ellahi went near and found him unconscious. He was brought to Civil Hospital where he succumbed to his injuries. After the investigation the appellant was sent up for trial before a learned Additional Sessions Judge, Jhelum who charged him under section 302, P.P. C.
At the close of trial the learned Additional Sessions Judge found the appellant to be guilty of Qatl- e-Amd of Qurban Hussain' under section 302(b) P.P.C. He sentenced him to life imprisonment and also to pay Rs,1,00,000 by way of compensation to the legal heirs of the deceased or else to serve six months' imprisonment.
3. Learned counsel for the appellant contends that the prosecution had failed to establish a motive for the crime, that the medical evidence is in conflict with the ocular evidence inasmuch as the bladder and stomach of the deceased were found to be empty on post-mortem whereas it is in evidence that the brothers had left the house after taking breakfast. According to the learned counsel the hatchet was recovered four days after the occurrence simultaneously with the arrest of the appellant and as such the recovery is not believable. Learned counsel for the complainant, on the other hand, argues that the prosecution has not set up motive at all and it was the word of the appellant which was repeated regarding the abuse to his wife by the deceased. According to the learned counsel the prosecution is required to establish the motive only where it sets up one and not where direct evidence is available. In reply to the said second contention, states that there is no conflict and that there is no evidence that the deceased 'had taken breakfast. He pressed Criminal Revision No,111 of 2000 stating that the case had been proved without any doubt and that there were no mitigating circumstances. Learned counsel appearing for the appellant feels rather at a disadvantage having himself argued that the prosecution had not proved the motive.
4. I have examined the records. The case set up in the original report has been duly proved through Fazal Ellahi, complainant as P.W.9 as also Manzoor Ellahi, the other eye-witness as P.W.10. The medical evidence in the form of Medico-legal Report Exh.P.A. Proved by Dr. A Fakharuz Zaman, P.W.I is in complete accord with the said ocular evidence. So far as the said contention of the learned counsel regarding conflict between the ocular and medical evidence is concerned, I have examined the statement of P.W.9 Fazal Ellahi who has mentioned the taking of breakfast in his statement. Now I find that P.W.9 does state that he took breakfast along Manzoor Ellahi but he has stated that the deceased Qurban Hussain had not taken the breakfast. This explains the empty stomach and bladder. At this stage, learned counsel for the appellant tried to argue that there had been a delay in the lodging of the F.I.R. Now the occurrence took place at 8-30 a.m. While the report was made at 12-55 p.m. However, it is apparent on the face of the record that the deceased was rushed to the hospital where he was attended to by the doctors who ultimately succumbed to his injuries. These proceedings do explain the passage of said time in between the occurrence and the report. The delayed arrest and the consequent recovery of the hatchet would not matter at all as name and particulars of the accused are very much present in the first report Exh.P.D. And the manner in which the occurrence had taken place has also been stated. The prosecution evidence is consistent. I, therefore, do not find any merit in the contention of the learned counsel that since the hatchet was recovered four days after the occurrence, the delayed recovery was to be of no avail to the prosecution.
5. Having thus examined the evidence with the assistance of the learned counsel I am satisfied with the conclusion of the learned Additional Sessions Judge that the offence as alleged had been committed by the appellant and it has been so proved by the prosecution.
6. Coming to the criminal revision, now the learned Additional Sessions Judge has proceeded to give lesser punishment on the ground that it cannot be ruled out that the appellant did act under the said impact of the factum of abusing to the wife of the convict by the deceased.
7. Notwithstanding the conflicting position taken by the learned counsel for the appellant vis-a-vis motive, I find it is but evident on record that the said motive was duly set up and it was sought to be proved in the course of evidence. This is to be found in the statements of both Fazal Ellahi and Manzoor Ellahi, P.Ws./eye-witnesses. Now to my mind, the motive in this case has not been proved.
P.W.9 has sought to state that it was a dispute between the wife of the convict and daughter of the deceased and Qurban Hussain deceased had rather condemned both the ladies for quarrelling.
The motive, therefore, remained shrouded in mystery. This, however, would not be a sine qua non for recording of conviction but in the circumstances would be a relevant factor in the matter of award of sentence. To my mind, the sentence has been properly awarded by the learned Additional Sessions Judge in the circumstances of C this case. In view of the above discussion Criminal Appeal No,298 of 2000 as well as Criminal Revision No,111 of 2000 are dismissed. The record be sent back immediately.
Appeal and .