P L D 1988 Lahore 485 (PLP)

IJAZ NISAR, J.‑‑Rashim Khan son of Mawaz Khan (58) was tried by the learned Sessions Judge, Chakwal for the murder of Mansab Khan deceased. Vide judgment dated 6‑10‑1986. He was convicted under section 302, P.P.C. and sentenced to death plus a fine of Rs.10,000 or in default to undergo two years' R.I. The fine, if realised, was ordered to be paid to the legal heirs of the deceased as compensation. This judgment will dispose of the appeal filed by Rashim Khan appellant and the connected murder reference.

2. The prosecution case is that on the day of occurrence i.e. on 16‑12‑1984 at about 11 a.m. Mst. Saleem Jan wife of the appellant wanted to cut Beri tree belonging to the complainant party. Mansab Khan deceased forbade her from doing so which offended the appellant and when in the evening at about 4‑30 p.m. Mansab Khan deceased was proceeding towards his house taking water on a donkey the appellant who was sitting in ambush near the house of' Sikandar Khan suddenly carries out armed with a hatchet and declared that he would teach the deceased a lesson for preventing his wife from. Cutting the tree and attacked him. The alarm raised by the deceased attracted his sister's son, Muhammad Ehsan P.W.12, his mother Mst. Malkani P.W.13 and Mst. Bevi (not produced). The appellant inflicted hatchet blows on the deceased on head and right leg within their sight. On hearing the alarm many residents of the village were attracted to the spot. On seeing them the appellant fled away taking his hatchet with him. Mst. Malkani P.W. left for Police Post Buchal Kalan for reporting the incident but was told to get her son medically examined first whereupon she went back to the spot and took Mansab Khan deceased to Primary Health Centre, Buchal Kalan where he was medically examined by Dr. Muhammad Nazir P.W.9. On the following day at 11‑30 a.m. she lodged the report Exh. P.B. with S.I. Nazir Ahmad P.W.12 at Miani Adda. The S.I. left for Rural Health Centre, Buchal Kalan for recording the statement of Mansab Khan deceased and enquired from the doctor about his fitness to make a statement to which the doctor replied in the negative. He then left for the spot and took into possession blood‑stained earth. As the condition of Mansab Khan became precarious he was removed to Civil Hospital, Chakwal where he succumbed to the injuries on 23‑12‑1984. On receiving intimation about his death S.I. Nazir Ahmad proceeded to the hospital and prepared the inquest report Exh.P.H. On 19‑7‑1985 Maqsood Ahmad A.S.I. P.W.11 arrested the appellant who had been declared as a proclaimed offender. On 22‑7‑1985 the appellant led to the recovery of hatchet P.3 from his cattle shed through memo. Exh.P.D. attested by Malik Khan P.W.7 and Rashim Khan (not produced).

3. Muhamad Nazir P.W.9 medically examined Mansab Khan deceased on 16‑12‑1984 at 11‑45 p.m. and found the following injuries on his person: (1) An incised wound 3" x 1 deep cutting skin fascia and muscles upto the bone on the Centre of the scalp. 'Wound penetrating in all the layers of skull. (2) An incised wound 1 x deep on the interior surface of skin bone of right lower extremity. Injury No.1 was grievous while injury No.2 was simple. Both of them had been caused by sharp‑edged weapon. The time between injuries and examination was about 6 hours. On 23‑12‑1984 at 9 a.m. Dr. Shahid Nawaz Malik P.W.10 conducted autopsy on the dead body of Mansab Khan deceased and found the following injuries thereon: i) Stitched lacerated wound 2 x bone deep. This injury was 1 behind hair margin to the left of mid line. ‑ ii) Swelling 4 x 3 on left side of parietal area 3 inches above and in front of left ear. (iii) Swelling 4 x 3 on right parietal area 3 above right ear, iv) Stitched incised wound 1 x bone deep on front of right leg below middle. According to the doctor the deceased died due to haematoma caused by compression of right and left cerebral and temporal due to extra dural haemorrhage. All the injuries were ante‑mortem and caused by blunt weapon except injury No.4 which was caused by a sharp‑edged weapon. The time between injuries and death was 6 to 7 days and that between death and post‑mortem about 9‑30 hours.

4. At the trial the appellant denied the prosecution allegations. He also denied having absconded after the occurrence and stated that he used to reside at Tibba Shah Balawal within the jurisdiction of Police Station, Pindi Bhattian, District Gujranwala and that he himself appeared before the police on learning about the registration of the case. According to him, the deceased had many enemies and probably he was done to death by some unknown persons during the dark hours of the night. He attributed the case to enmity. He did not call any evidence in defence.

5. The prosecution produced 14 witnesses to prove its case. Muhammad Ehsan P.W.12 and Mst. Malkani P.W.13 furnished the ocular account. Malik Khan P.W.7 proved the recovery of hatchet P.3 from the appellant.

6. A.S.I. Maqsood Ahmad P.W.11 arrested the appellant who according to him was a proclaimed offender and effected‑ recovery of hatchet P.3 at his instance. 7. . Relying on the motive, the ocular evidence and the recovery the trial Court convicted and sentenced the appellant as described above.

8. Learned counsel for the appellant contends that there is a delay of 19 hours in lodging the F.I.R., that both the eye‑witnesses are interested being closely related to the deceased, that there is a conflict between the ocular account and the medical evidence and that the evidence of the eye‑witnesses is bristling with material contradictions. The recovery of hatchet which was not blood‑stained does not advance the prosecution case, it is added. As regards abscondence of the appellant it is argued that it does not stand proved by any documentary evidence.

9. Mst. Malkani P.W.13 is mother of the deceased while Muhammad Ehsan P.W.12 is his nephew but despite this they cannot be termed as interested witnesses because they had no direct enmity with the appellant to falsely involve him in case of the present nature. The appellant was known to them previously and being a daylight occurrence they would not have faced any difficulty in identifying them Furthermore, being a case of single accused there was absolutely no chance of substitution. The eye‑witnesses would not have let off the real culprit and instead falsely involved the appellant against whom they had no motive or malice. No doubt, the assertion of the eye‑witnesses about the head injury having been caused by sharp side of hatchet does not fit in with the medical evidence but that fact alone would not make their testimony as unreliable because in such a fearful and shocking situation when they themselves may be apprehending danger to their lives they might not have observed the side of hatchet being used by the Assailant in inflicting blows on the deceased. As regards delay in the F.I.R. it stands fully explained. Since the deceased was still alive it was quite natural for the police to have asked the complainant to produce his medical certificate before recording her statement. Mst. Malkani being mother of the deceased would have been naturally interested in saving the life of her son rather than reporting the matter to the police. She may be even conscious of the effect of delay in this behalf. In this view of the matter, no adverse inference can be drawn against her on this account. Being a case of single accused and the occurrence having taken place in broad daylight she would not have been in need of fabricating a false story for which time may be required. The discrepancies pointed in the statement of the eye‑witnesses are of minor nature and do not have any material bearing on their testimony.

10. As regards abscondence of the appellant we agree with the learned counsel for the appellant that it does not stand proved because no documentary evidence was produced by the prosecution in this behalf. if proceedings under sections 87 and 88 Cr.P.C. were taken)_ against the accused and proclamations were issued against him there was no reason for withholding them. The recovery of hatchet P.3 is also of not any significance because it was not blood‑stained.

11. The motive set up by the prosecution was that the deceased had objected to the cutting of his Beri tree by Mst. Saleem Jan wife of the appellant. But it is not clear under what circumstances the deceased had forbidden Mst. Saleem Jan from doing so because Mst. Malkani P.W.13 admitted that she was not present when the said incident had taken place. Likewise, Muhammad Ehsan P.W.12 also does not claim to have witnessed the said incident and stated that he had learnt after the occurrence that the deceased had a quarrel with the wife of Rashim Khan appellant over the ownership of Beri tree. Since nobody had seen the said incident nothing can be said with certainty about its genesis or who was at fault and to what extent. Be that as it may the prosecution case stands fully established against the appellant on the basis of unimpeachable ocular account. He was, therefore, rightly convicted. As regards sentence we think that the ends of justice will be met if he is awarded lesser sentence provided for the offence of murder because the motive is shrouded in mystery. Accordingly, we alter his sentence from death to F imprisonment for life but maintain the sentence of fine. With the above modification in the sentence the appeal is otherwise dismissed. The death sentence is NOT confirmed. M. Y. H./R-81/L Appeal dismissed.