1976 P Cr (PLP)

Piran Ditta has been convicted by the Sessions Judge, Sahiwal, under section 302, P. P. C. for the murder of Pahlwan deceased and sentenced to transportation for life and to pay a fine of Rs. 50) or in default of payment thereof, to further R. I. for one year. He has filed an appeal through the jail authorities. I have also before me Cr. Revision (No. 241/1972) filed by the complainant party, praying that sentence of the respondent be enhanced to death, and compensation be awarded to the complainant party under section 544‑A, Cc. P. C. The prayer for enhancing the sentence was rejected on 26‑4‑1972, but the revision a was admitted to consider only the question of awarding compensation under section 545‑A, Cr. P. C. Notice was duly given to the appellant. By this judgment, I proceed to dispose of the appeal as well as the revision.

2. The prosecution story is that Mst. Sakina, sister of Pehlwan deceased, 'was married to Piran Ditta, appellant in exchange for the marriage of the latter's sister Mst. Bharawan with Lal, brother of the deceased. Some six months prior to the occurrence the appellant divorced Mst. Sakina and, demanded that his sister Mst. Bharawan be also divorced by Lai which was, however, resisted. This had led to a quarrel in which the appellant and his brother Allah Ditta had inflicted injuries to Lal and a case under section 324, P. P. C. had been registered against the appellant and his brother, and later, proceeding under section 107/151, Cr. P. C. was also started, which were pending at the time of the occurrence. The occurrence, itself took place on 11‑5‑1970. On that date, at peshiwela, the deceased, his elder brother Khan and others were returning from the graveyard after the burial of Mst. Khairan wife of one Allu of their village. When they reached near the Chak, the appellant appeared from behind, armed with knife, and suddenly stabbed the deceased in the right flank and then., brandishing his knife at the witnesses, managed to escape. The deceased, in an injured condition, was removed to the District Headquarters Hospital, Sahiwal where he was medically examined. On the receipt of information from the hospital A. S. I. Muhammad Ameer came there and: upon his inquiry the doctor informed him that the injured was not fit to make a statement. A. S. I. Muhammad Ameer again made inquiry the next day i.e. 12th March, 1970, and was given the same reply. He then came to know of the presence at the Hospital of Khan P. W. whose statement he recorded at 5 p. m. on the basis of which a formal F. I. R. was entered at the Police Station under section 307, P. P. C.

3. On the receipt of the report, A. S. I. Ghulam Haider proceeded to the spot and took up investigation of the case. On 13‑3‑1970, at his inquiry, the Medical Officer certified that the deceased was in a fit condition to make a statement. He, thereupon, recorded his statement (Exh P. K.). The deceased expired in the Hospital on 23‑3‑1970. On the receipt of the information the offence was converted to one under section 302, P. P. C. On the same day, the police arrested the appellant who was produced by Mokhay Khan who had apprehended him in the area of Chak No. 84/5‑L. Knife (Exh. P. 5) found in possession of the appellant was recovered.

4. The medical examination of the deceased at the time of his admission in the hospital on 11‑3‑1970, at 8 a. m., had disclosed the presence of a stab wound 2" x " on the right side of the abdomen in right iliac fossa. The injury was found to be dangerous and had been caused be a sharp‑edged weapon. The presence of the injury was confirmed in the post‑mortem examination conducted on 23‑3‑1970. Death, in the opinion of the Medical Officer, bad been due to haemorrhage and shock being the result of toxaemia and adhesions formed in the intestines due to the injury which was sufficient to cause death in the ordinary course of nature.

5. Apart from the medical evidence, the case of the prosecution was supported by three ocular witnesses, namely Khan (P. W. 10), Muhammad (P. W. 11) and Allah Dad (P. W. 12). The statement of the deceased (Exh. P. K.) was proved by A. S. I. Muhammad Ameer (P. W. 8). Ali Muhammad (P. W. 4) and Mokhay Khan (P. W. 5) deposed to the arrest and recovery of the knife (Exh. P. 5), while Lal (P. W. 7) furnished the evidence of motive. He stated that a case under section 324, P. P. C. and security proceedings under section 107/151, Cr. P. C. had been initiated against the appellant. The appellant admitted the relationship with the com plainant party through inter‑marriage but denied that he had divorced Mst. Sakina or had demanded the divorce of Mst, Bharawan. He, however, admitted that the aforesaid criminal proceedings were pending against him. He also admitted that he had been apprehended and produced before the police by Mokhay Khan (P. W. 5) but denied the ownership as well as the recovery of the knife (Ex. P.

51. He gave his own version of the occurrence in the following words:

"I was present in the funeral procession of Mst. Khairan. After her burial we were returning. On the way, Lal P. W., Khan P. W. and Pehlwan deceased asked me to divorce their sister. I refused. They took up quarrel with me. Pehlwan deceased grappled with me. Lal P. W. whipped out a knife and said that I shall not be saved on that day. He aimed a blow at me but unfortunately it landed on Pehlwan who was grappling with me. I have not used knife against the deceased." The learned trial Judge discarded the evidence relating to the recovery of the knife (Exh. P. 5). He was also not satisfied that the appellant had been demanding divorce of Mst. Bharawan. He was of the view that the appellant had been rather insisting on the return of Mat. Sakina. He, however, believed the prosecution version of the occurrence and, accordingly, held the appellant guilty of the murder. The reason for awarding the lesser penalty was that the appellant had resorted to violence on account of the refusal of the complainant party to return Mst. Sakina and because only one injury had been inflicted.

6. In his memorandum of appeal, the appellant reiterates the same version of the occurrence as had been given him under section 342, Cr. P. C. He has also pointed out to the delay in lodging the report. He has alleged that Muhammad and Allah Dad were interested witnesses.

7. I have carefully examined the record with the help of Mr. Muhammad Yamin, learned counsel appearing on behalf of the State. I see no reason to disbelieve any of the three ocular witnesses in regard to the manner of the occurrence. Khan (P. W. 10) is the elder brother of the deceased. He had been returning from the graveyard when the occurrence took place. Muhammad (P. W. 11) and Allah Dad (P. W. 12) are independent persons belonging to castes other than that of the appellant or the deceased.

8. The statement (Exh. P. K.) of the deceased recorded in the hospital gives clear detail of the circumstances leading to the occurrence and is in complete accord with the evidence furnished by the witnesses. The statement is, therefore, relevant.

9. This is not a case of 'no motive'. There had been dispute between the appellant and the complainant party regarding the break‑up of the inter‑marriage between their families. The appellant himself says that the complainant party had been asking him to divorce Mst. Sakina whereas, according to the complainant party, it was the appellant who had been demanding the divorce of Mst. Bharawan. In any case, the existence of enmity between the parties is in evidence. There were criminal proceedings pending between them at the time of the occurrence. Learned counsel for the revision‑petitioners has furnished a certified copy of the judgment passed by Magistrate 1st Class, Sahiwal on 29‑4‑1972 in the case under section 324/34, P. P. C., which shows that the appellant and his brother were both convicted. The material on record does not support the version of occurrence as given by the appellant. He has not come out with that version at any early stage. The suggestions put to the witnesses in line with that version, were consistently denied. All the three ocular witnesses denied that there had been any grappling between the deceased and the appellant. The appellant is related to the complainant party and as such there is no reason to suspect that the was falsely involved in the case even though the death was accidental. A conviction can be based upon the ocular testimony event without corroboration. In the circumstance, I am satisfied that the prosecution version was true and had been rightly believed by the learned Sessions Judge. The petitioner has already been awarded the lesser penalty and as such no interference is called for in the matter of punishment either. His appeal is, therefore, dismissed.

10. As regards the revision, the compliance of the provision of section 544‑A Cr. P. C. is mandatory. There is also no objection on the record, taken by the appellant to the revision petition of which he had due notice. The deceased, as stated in the revision petition, left behind his widow and six minor children. Considering the fact that a fine of Its. 500 has ready been imposed on the appellant in addition to the sentence of trans portation for life, I am of the view that it would meet the ends of justice if compensation of Rs. 1000 is a warded under section 544‑A Cr. P. C. I accordingly order the appellant to pay Rs. 1000 as compensation to the heirs of the deceased or in default to undergo further R. I. for one year. The revision petition is disposed of in these terms.

11. The decision in the appeal and the revision shall be communicated to the appellant through the jail authorities. Order accordingly.