1994 P Cr (PLP)

M1AN ABDUL KHALIQ, J.

Abdul Aziz appellant was tried by the learned Additional Sessions Judge, Rahimyar Khan, who vide his impugned judgment convicted and sentenced him under section 302, P.P.C. to death and a fine of Rs.30,000, in default whereof to suffer 4 years' R.I. The fine, if realized, half of it was directed to be paid to the legal heirs of the deceased. The appellant has come up in appeal against his conviction and sentence and a reference has been sent by the Additional Sessions Judge. Criminal Appeal No.48/J of 1992/BWP has become infructuous as the appellant had also filed appeal through his counsel. This criminal appeal and the murder reference shall be decided together by this judgment.

2. The prosecution case as unfolded in the F.I.R. Exh.P.B. recorded by P.W.7 Muhammad Abdul Rehman, A.S.I. on the complaint of P.W.2 Nabi Bakhsh at Police Station Sadar, Rahimyar Khan on 4-4-1990 at 7-00 p.m. is to he effect that the complainant was resident of Mauza Noorewali and was a cultivator and at about 6-00 p.m. he alongwith P.W.4 Ghulam Hussain and P.W.3 Muhammad Hafeez were talking on a Pacca Road leading towards Tajgarh, and meanwhile Ahmad Din deceased son of the complainant reached on a cycle from the side of City Rahimyar Khan and as soon as he arrived near them, appellant Abdul Aziz and co-accused Talib Hussain armed with Khanjers suddenly came on the Pacca Road, who raised Lalkara to the deceased Ahmad Din that he would not be spared. Ahmad Din was perplexed and fell from the cycle. Talib Hussain co-accused caught hold of him and Abdul Aziz appellant inflicted a Khanjer blow on the left side of chest of Ahmad Din, who was smeared in blood. Ghulam Hussain (P.W.4) and Muhammad Hafeez (P.W.3) tried to rescue the deceased, on which Abdul Aziz appellant inflicted Khanjer blow on the left hand of P.W.4 and Talib Hussain co-accused inflicted Khanjer blow in the abdomen of P.W.3. On hue and cry P.W.5 Muhammad Amin who was passing nearby reached. The P.Ws. tried to apprehend the accused, but they while brandishing their Khanjers and raising Lalkaras escaped. The complainant alongwith the P.Ws. lifted Ahmad Din injured and started towards the Police Station C-Division and while reaching near the Police Station Ahmad- Din succumbed to his injuries. The accused after making mutual consultation murdered the deceased and also made murderous assault on P.W.3 Muhammad Hafeez and P.W.4 Ghulam Hussain. The motive was that Ahmad Din deceased used to commit unnatural offence with Talib Hussain accused and the same was not correct. The dead body was lying there and leaving behind Muhammad Hafeez and Ghulam Hussain, P.Ws.3 and 4 the complainant reached the police station.

3. The appellant alongwith his co-accused Talib Hussain was challaned and sent up for trial. A charge under sections 302/34/307/34 and 307/34, P.P.C. was framed against the appellant and co-accused Talib Hussain, to which they denied and claimed trial. Talib Hussain co-accused was acquitted under section 302, P.P.C., but was sentenced under section 307, P.P.C. to undergo 5 years' R.I. and a fine of Rs.3,000, in default whereof to suffer further R.I. for 9 months. The fine, if realized, whole of it was directed to be paid to Muhammad Hafeez, injured P.W.3. He was also extended the benefit of section 382-B, Cr.P.C. He has not filed any appeal against his conviction and sentence. Neither a revision has been filed for enhancement of his sentence nor State has filed appeal against his acquittal under section 302, P.P.C.

4. The prosecution examined 12 P.Ws. in all to substantiate its case. P.W.1 Dr. Razi-ud-Din Siddiqui on 4-4-1990 medically examined P.W.3 Muhammad Hafeez and had found the following injury on his person:-- (1) An incised wound at left lower chest (lateral aspect) size 4 c.m. x 1 c.m. deep going slightly bleeding is there. Kept under observation. X -ray of chest advised. The injury was caused by sharp-edged weapon within a duration of 3 hours. In the opinion of the doctor, the injury was found dangerous to life and it was accordingly declared as such. P.W.12 Dr. Muhammad Azhar Iqbal on 5-4-1990 medically examined P.W.4 Ghulam Hussain and found the following injuries on his person:-- (1) An incised wound (non-bleeding) wound on the first cleft between first finger and thumb left side of size 2 c.m. x 2 c.m. x 3 c.m. (2) An incised wound (non-bleeding) on the palmer surface of right middle finger of size 1 c.m. x 1/2 c.m. x surface sealed. Both the injuries were simple caused with a sharp-edged weapon within the duration of 12 to 18 hours. P.W.11 Dr. Abbas Ali Khan, on 5-3-1990 conducted autopsy on the dead body of Ahmad Din and observed the following injury on his person: -- (1) Incised wound 4 c.m. x 2 c.m. x deep on the left front chest at a distance of about 5 c.m. below left nipple at about 7-00 o'clock. and had opined that injury No.l was sufficient to cause death in the ordinary course of nature due to haemorrhage and shock. The injury was ante-mortem and caused by sharp-edged weapon. The probable time between death and injury was within few minutes whereas time between death and post-mortem examination was within few minutes whereas time between death and post-mortem examination was within about 24 hours.

5. P.W.7 Muhammad Abdul Rehman, A.S.I. after recording the F.I.R. Exh.P.B. on the statement of P.W.2 Nabi Bakhsh, reached the hospital, where he prepared injury statement Exh.P.G. Inquest Report Exh.P.H. and despatched the dead body to the mortuary. He prepared injury statement Exh.P.J. of Ghulam Hussain (P.W.4) and that of P.W.3 Muhammad Hafeez Exh.P.K. He recorded the statements of the P.Ws. and proceeded to the spot, prepared the site plan and collected blood-stained earth from the spot vide memo. Exh.P.C. On 10-4-1990 he arrested Abdul Aziz appellant on 15-4-1990 who led to the recovery of Khanjer P.5 which he secured vide memo. Exh.P.F. After completion of the investigation he had challaned the accused.

6. P.W.2 complainant Nabi Bakhsh, P.W.3 injured Muhammad Hafeez, injured P.W.4 Ghulam Hussain and P.W.5 Muhammad Amin stated the ocular account as well as about the motive.

7. The recovery aspect of the case was stated by P.W.5 Muhammad Amin in whose presence the appellant led to the recovery of blood-stained dagger P.5 which was secured by P.W.7, Muhammad Abdul Rehman, A.S.I. vide memo. Exh.P.F. The other P.Ws. are of formal nature.

8. The appellant when examined under section 342, P.P.C. had denied the prosecution evidence against him as well as recovery of dagger P.5. In answer to the question "Why this case against you?" he replied as follows:-- "Due to suspicion. The deceased and his father Nabi Bakhsh P.W. had previous enmity with their relative Wahid Bakhsh. Said Wahid Bakhsh and his son Faizullah were aggrieved against Ahmad Din and to my information, they have murdered him. The complainant party compromised with Wahid Bakhsh and took Rishta of the daughter of Wahid Bakhsh who was married with brother of the deceased. I am totally innocent." He further stated that the witnesses were relatives of the complainant and also due to suspicion they deposed against him. He neither made statement on oath nor produced evidence in defence. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant.

9. We have heard the learned counsel for the parties and have perused the record. The learned counsel for the appellant has vehemently contended that the motive and the recovery aspect of the case has not been proved and the same was disbelieved by the trial Court. Moreover, the eye-witnesses are closely related to the deceased and no independent person has been produced to substantiate the prosecution case. Statement of P.W.4 Ghulam Hussain injured was not believed by the trial Court. The co-accused Talib Hussain was acquitted of the charge under section 302, P.P.C. on the same evidence and lastly it is a case of lesser penalty.

10. No doubt the motive and the recovery aspect of the case has not been believed by the trial Court, but the trial Court relied on the eye-witness account furnished by the statements of P.Ws.2, 3 and

5. P.W.2 is the father of the deceased, P.W.3 is the maternal-cousin of the deceased, whereas P.WS is the brother of the deceased, and all of them unanimously stated that the appellant had inflicted Khanjer blow on the left side of the chest of the deceased and their statements are in consonance with the medical evidence furnished on record by the statement of P.W.11 Dr. Abbas Ali Khan, who A conducted autopsy on the dead body of the deceased. They have no motive whatsoever to falsely involve the appellant Abdul Aziz in the present case and they had made statements in a straightforward manner and an implicit reliance can be placed on their testimony.

11. The appellant was armed with an awful weapon i.e. Khanjer and he inflicted one blow on the left side of chest of the deceased. He did not take unfair advantage of his position as an armed person, as against his unarmed victim and did not act cruelly in inflicting multiple injuries. He could inflict more harm to the deceased, but he refrained from doing so and did not repeat the injuries. The occurrence took place suddenly, and how the occurrence started, is shrouded in mystery. The accused launched attack on the deceased suddenly finding him present at the scene of occurrence. The motive and the recovery aspect of the case was disbelieved by the trial Court, except that the appellant had suddenly attacked the deceased and inflicted one injury only and did not repeat the same. There was no pre-meditation and it is shrouded in mystery that what prompted the appellant to cause death of the deceased.

12. Keeping in view the above discussion, we are of the view that the appellant was rightly convicted by the trial Court and while maintaining his conviction we alter his sentence of death to imprisonment for life and sentence of fine of Rs.30,000, in default whereof to suffer further R.I. for 4 years, is maintained. The fine, if realized, half of it shall be paid to the legal heirs of the deceased as directed by the trial Court. He shall also be extended the benefit of section 382-B, Cr.P.C.

13. With the above modification in the sentence, the appeal is dismissed and the death sentence is not confirmed. N.H.Q./A-556/L Sentence reduced