1999 M (PLP)

SH. GHULAM SARWAR, J.--Story of woe, as narrated, unfolded in, and reflected by statement/F.I.R. Exh.PD, which, of course, set the law into motion, made/lodged by Sher Muhammad (P.W.7), the complainant, and girded by P.W.9 Altaf Ahmad Gondal, Inspector/S.H.O., police station Katha saghral, District Khushab, succinctly stated, is, that, the complainant, a cultivator, is a resident of village Nari within the limits of said police station. His house comprises three rooms, besides, a thatched hut, and is surrounded by a boundary wall. One of the rooms fell to the lot of Muhammad Hayat, a son, of the complainant, serving in the Army and residing with his family at Lahore. This room was licensed to appellant, Noor Muhammad, who, is related to the complainant as his first cousin.

2. On eventful and fateful day i.e. 12-7-1993 about 6.30 a.m. the complainant was present on roof-top of his house when his wife Mst. Badshahi (since deceased) was kneading clay to plaster roof of the house. Accused Noor Muhammad not only remonstrated her for removing earth from his demolished house, despite having been forbidden by him but also, picked up a "pickaxe (Kassi)" lying there and inflicted an incised wound on her head, to which, she, succumbed on the spot, after few minutes. The complainant came down/alighted from roof-top and witnessed the occurrence, which, was seen by Dost Muhammad P.W.8 and Nawaz (given up) as well. The appellant fled/decamped from the scene with weapon of offence.

3. Motive as .disclosed and claimed in F.I.R. Exh.PB was an earlier incident, in which, Noor Muhammad, the accused, had warned Mst. Badshahi not to use earth of his dilapidated house for plastering her own house or she would bear the consequences.

4. After registration of the case, P.W.9 Altaf Ahmad Gondal, Inspector/S.H.O. inspected .the place of occurrence, prepared its rough sketch Exh.Pl, examined the dead body, prepared injury statement Exh.PG, inquest report Exh.PH, secured blood-stained earth therefrom vide memo. Exh.PE, after making it into a sealed parcel, and sent/despatched the dead body to morgue for autopsy. P.W.6 Ahmad Hussain-Constable, who, escorted the dead body on the same day, produced last-worn clothes of deceased before him and same i.e. Chaddar P-1 and shirt P-2 were taken into possession by means of memo. Exh.PC. On 16-7-1993 accused was arrested from village Bus-stand. He led to 'the recovery of pickaxe P.3 from his residential room and the same was taken `into possession, through memo. Exh.PF. Statements under section 161, Cr.P.C. of witnesses were also taken down/recorded by the Investigating Officer. P.W.4, Muhammad Saleem a Draftsman, prepared site plan of place of occurrence Exh.PA and Exh.PA/1. Upon conclusion of investigation, final report, under section 173, Cr.P.C. was submitted in Court against the accused, who, pleaded 'not guilty to the charge under one head and claimed trial.

5. As many as nine witnesses, in all, were examined by the prosecution. Sher Muhammad, the complainant P.W.7 and Dost Muhammad P.W.8 furnished ocular account of gory incident as set up in F I.R. Ezh.PD. They, also testified about motive and recoveries, to have been effected in their, presence. Various steps taken during investigation were enumerated by P.W.9 Altaf Ahmad Gondal, Inspector/S.H.O. P.W.5 Dr. Muhammad Sarfraz proved post-mortem report Exh.PB, in which, .he had found/noticed following ante-mortem injury on the dead body:- "Longitudinal wound measuring 5 c.m. X 1 c.m. on the lop of the skull; 2 c.m. left from the centre of the skull, 8c.m. from the left ear, 12 c.m from the forehead, underlying bone was fractured. Haematoma was present on the brain. Skull bone was fractured. Rest of the organs were found normal."

6. In the opinion of the doctor death was due to concussion of brain shock, as result of injury No. 1, which was sufficient to cause death in ordinary-course of nature. Probable and approximate time, which elapsed, between injury-and: death was immediate, while between death and post-mortem examination, was stated to be-6 to l2 hours. Remaining prosecution evidence is more or less of formal nature.

7. While examined under section 342, Cr.P.C. appellant deified all incriminating material and circumstances, figuring against him and professed innocence. Question No.7 was answered as follows:-- "Due to enmity. The witnesses are inimical towards me and have implicated me falsely. In fact, complainant with the help of P.W. Dost Muhammad committed the murder of "deceased and involved me in the case on account of enmity." However, he opted not to appear as his own witness in disproof of allegations against him as envisaged by the provisions of law embodied in section 340(2), Cr.P.C. No witness in defence was produced-either.

8. On culmination of trial, appellant/accused was found `to be guilty of I the offence, and awarded capital punishment, under-section 302, P. P. C. as "Tazir.". He was ordered to be hanged by his neck till he be dead. Fine to the tune of Rs.15,000 was imposed upon him. Besides compensation .of Rs.20,000 as provided by section 544-A, Cr.P.C. was directed to be paid to legal heirs of deceased. In default of payment of fine and, compensation, he was ordered to undergo and suffer R.I. for one year .and six months respectively. Seeking confirmation of "death", reference under section 374, Cr.P.C. has been made.

9. Convict has also challenged and assailed his conviction and sentence through jail appeal and this judgment shall dispose of, both of it, together.

10. Learned counsel appearing on behalf of convict has lambasted the verdict and conviction with the assertions that ocular account as furnished by Sher Mute P. W .7 and Dust Muhammad P.W.8 neither inspires confidence nor sounds probable and no credence can be attached to it. According to him free able-bodied eye-witnesses, could not allow the accused to flee from the scene of occurrence very of pickaxe (Kassi) is not believable, because, it is against the human nature that accused after murdering the mistress of house would return to a room of the same house just to hide-pickaxe the weapon of offence. Motive has been branded to be too weak and conveniently tailored to put the rope around the neck of appellant. It has therefore, been impressed that whole of prosecution case is rendered doubtful. Accordingly 9m of appellant has been urged and emphasized.

11. On behalf of State, learned counsel has inter alia, contended that ocular aunt has come out of mouth of natural witnesses, no animosity against the accused to substitute him for a real culprit has even been suggested; appellant is closely, related to denied and, her family as' being first cousin of her husband and the family had no reason to falsely implicate him. He has, "however, scrupulously 'conceded that the incident cannot be taken to be premeditated affair and might be the result of a situation developed at the supr of moment.

12. Arguments have been thrashed in the light of the record, which, too has been scanned. Occurrence took place in the house of Sher Muhammad P.W.7. Dost Muhammad P.W.8. is his neitghbourer. None else than both of them could have ample opportunity and occasion to witness such an occurrence so closely. Not only convincing account of the incident, in detail, has been deposed by them but also, they have successfully withstood hard test of cross-examination. 'No rancour towards appellant stands ascribed to any one of them. As such, mere relationship of P.Ws, and deceased with each other is, by itself, not sufficient to discredit or discard their testimony. The complainant is rather benefactor of convict, as he had provided him shelter in his own house. He is also closely related to him, being his cousin. So, there is nothing on record to support the idea of substitution of accused with real culprit, if any. Even otherwise, it is a rare phenomenon inasmuch as screening out of the real culprit by the husband of the deceased or his close relative without any deep-rooted cause cannot even be dreamt of. Sprouting of the appellant that the deceased fell victim to her own husband otherwise, looks bereft of any veracity mere figment of his imagination. There is not an iota or scintilla of evidence to make head or tail of this counter version/allegation as neither matrimonial divergence, domestic acrimony or the slightest altercation between the spouses prior to incident is, in any way, spelt out. Ocular account by these P.Ws. derives full fortification from medical evidence and attending circumstances. As a necessary corollary, there is nothing to create any crevice in the edifice erected by adducing overwhelming evidence. Irresistible conclusion is that the appellant was rightly adjudged to be guilty of Qatl-i-Amd of Mst. Badshahi and convicted under the provisions of law, with which he was charged. To that extent, findings of learned Trial Court are unexceptionable and unassailable.

13. Nevertheless, quantum of sentence, awarded to appellant is palpable, fallacious and does not commensurate with the act of the appellant, who, 11 seemingly, resorted to this measure on account of impulsive reaction and, and way, without any premeditation. It goes without saying that no blow was repeated by him and only single blow proved to be fatal. Unfortunate incident' appears to have occurred in peculiar circumstances, which, caused the appellant to act on indignation. Salient features, enumerated above, sufficiently provide mitigating circumstances in his favour. Same appear to have escaped the notice of learned trial Court and concomitantly were neither taken into account nor adverted to. It rather lends support' to the belief that extreme penalty could not be visited and awarding thereof to appellant by learned trial Court cannot be taken to be just under any canon of law. Lesser penalty in wake thereof and trivial motive, misty nature of recovery and relationship of parties, in particular, is not only apt, but also, .in terms of principle of safe administration of justice as expounded in Alam Khan v. The State (1989 PCr.LJ 729) and Basharat Ahmad v. The State (1993 PCr.LJ 2036), plethora of authorities and galaxy of rulings on the point/subject. ,

14. As a sequel thereto, "Death Sentence" is Not confirmed and the same is converted and altered into imprisonment for life. Sentence of fine imposed upon the appellant is not sustainable having not been provided in relevant provisions of law, and is accordingly set aside. However, compensation awarded to legal heirs of deceased is upheld and maintained. But sentence, in default, thereof can only be simple and not Rigorous Imprisonment. Benefit of provisions of section 382-B, Cr.P.C. shall also be extended to the convict, while, computing the period of his sentence.

15. Appeal is disposed of with above modifications and Reference is answered in the negative. N.H.Q./N-113/L. Sentence reduced.