2005 PLP 477 (MLD)

5. The learned 1st. Additional Sessions Judge Thatta tried the appellant, convicted and sentenced him as mentioned above under the impugned judgment, hence the present appeal.

6. Mr. Mehmood. A Qureshi learned Advocate for pauper appellant has stated that the story narrated by the complainant is false and unbelievable; that all the witnesses are related inter se; that there is enmity between the appellant and the complainant over a dispute of labour charges; that the conduct of the witnesses was unnatural as they had not tried to save the deceased when the alleged incident took place. He has further stated that the extra‑judicial confession is also false. Alternatively, he has stated that the incident was sudden and without premeditation, therefore, lenient view may be taken in awarding the sentence. He has relied upon the case of Muhammad Sharif v. State (2004 SCMR 8).

7. On the other hand the learned State counsel Mr. Sayed Sabir Hussain Cheepa has stated that the complainant Ali Akbar Shah and eye witness Usman Shah have fully supported the prosecution case which is corroborated by R.W. Karim Dino Shah; that the ocular testimony is supported by the medical evidence and the appellant had made extra judicial confession before P.W. Yakoob Shah who has also supported the case of the prosecution; that the witnesses are natural and the case has been proved against the appellant. However, he has stated that as the incident took place in a heat of passion without premeditation, therefore, lenient view may be taken in awarding the punishment.

8. We have given due consideration to the arguments, gone through the evidence available on the record and find that the case rests upon ocular testimony and extra judicial confession of the appellant. The ocular testimony consists of two witnesses, viz. complainant Ali Akbar Shah and P. W. Usman Shah, Both are brothers. The complainant gave the same details of the incident as mentioned above. The statement of the complainant is corroborated by P.W. Usman Shah who deposed that the complainant informed him that Hassan Shah, brother of Abdul Rahman Shah (husband of Mst. Billo) was relying to beat her on a dispute' over preparation of breakfast, therefore, she had come to his house. Thereafter, he had accompanied the complainant and Mst. Billo to the place of incident where the appellant armed with hatchet caused five hatchet injuries to the deceased and on their cries P.W. Karim Dino Shah arrived there. P.W. Karim Dino Shah corroborates their evidence. He disclosed that he was present in his house at 9:00 a.m. when he heard cries coming from the house of the deceased, therefore, he went there and saw the appellant armed with a hatchet running away toward western side. The complainant and P.W. Usman Shah were present whereas Mst. Billo was lying on the ground. Their evidence is further corroborated by Dr. Abdul Haleem Palijo who found the following injuries on the person of the deceased:

1. Incised wound 12 cm x 4 cm x 3 cm over left parietal region, Bone was cut. Brain matter was out.

2. Incised wound 8 cm x 2 cm x 1.5 cm over mouth, both lips and side of mouth was cut.

3. Incised wound 10 cm x 5 cm x 4 cm over front of neck forwarded to left side of the neck.

4. Incised wound 8 cm x 2 cm x 2 c.m. over right side of neck towards mandible.

5. Incised wound 9 cm x 2 cm x 2 cm over right side of neck towards chest sternum bone.

9. The doctor has opined that the deceased had died on account of the said injuries.

10. From the above evidence it is clear that the appellant had caused hatchet injuries to the deceased and the deceased had died on account of the said injuries. All the witnesses were cross‑examined by the appellant but nothing came on the record to discredit their evidence. No doubt all the 3 witnesses are related inter se but the appellant is also related to the complainant party, as he is brother of the wife of the complainant. The dispute alleged by the appellant in his statement recorded under section 342, Cr.P.C. is that he had demanded his hardship share from the complainant on which the complainant was annoyed and threatened him. The said dispute has been admitted by one of the P.Ws. Yakoob Shah. The dispute between the appellant and the complainant is not such where the complainant and his two brothers would try to implicate their own kith and kin in the heinous murder case leaving the real culprit of the crime. Thus the ocular testimony is confidence‑inspiring and there is no reason to disbelieve the same.

11. The prosecution also examined P. W. Yakoob Shah on the question of extra‑judicial confession. His evidence reveals that on the day of incident at about 10‑00 a.m. he was working in the land when he saw the appellant running away towards eastern side. On his inquiry, the appellant disclosed to him that he had committed the murder of the wife of his brother, therefore, he was running away. His 164, Cr.P.C. statement was recorded. The witness was cross‑examined by the appellant but he did challenge the above piece of evidence in the said cross‑examination. There is no enmity whatsoever in between the P.W, Yakoob Shah and the appellant nor any enmity was suggested in between them. On the contrary he admitted the plea of the appellant about the dispute between him (appellant) and the complainant. As such he appears to be natural and straightforward witness. Thus the prosecution have also roved the extra‑judicial confession of the appellant.

12. After considering the material available on the record, we are of he considered view that the appellant had committed the murder of the deceased, therefore, he is guilty of the offence punishable under section 302(b), P.P.C.

13. As regards the sentence, the allegation of the prosecution is that n the morning the deceased complained to her brother that the appellant vas relying to beat her over preparation of breakfast affairs and when they reached the house of the deceased the appellant was present and caused hatchet injuries to the deceased. If the appellant wanted to kill the deceased then he could have easily killed her in the morning and would have not allowed the deceased to complain against him to her brother. However, when the appellant saw the deceased coming along with her brother, it appears that then he became furious and the incident took ace in a heat of passion therefore there was no premeditation or pre-concert for committing the offence. The Hon'ble Supreme Court of Pakistan considered the above aspect in the case of Muhammad Sharif v. State (2004 SCMR 8) and observed that the occurrence apparently was not the result of pre‑concert and premeditation but was a sudden affair and occurred due to annoyance and heat of passion of the appellant; that there was no previous enmity between the parties except for the annoyance of the appellant due to the grazing of deceased's cattle in his fields, therefore, the sentence of death was modified to sentence for imprisonment for life. The above rule, laid down by the Hon'ble Supreme Court of Pakistan, is fully applicable to the facts and circumstances of the present case, therefore, this is a fit case here the sentence of death can be altered and modified to imprisonment for life.

14. For the above reasons, by our short order dated 16‑9‑2004, we had dismissed the confirmation case and the appeal with modification in the sentence, from death to imprisonment for life, and directed the appellant to pay Rs.100,000 (Rupees one lac) as compensation under section 544‑A, Cr.P.C. to the legal heirs of the deceased. H.B.T./H‑33/K Order accordingly.