P L D 1966 (W (PLP)

ABDUL GHANI KHAITAK, J.‑Khushi Muhammad, son of Ghulam Muhammad, aged 46 years, was tried under section 302, P. P. C., for the murder of Fazal Din, aged about 64/65 years and by his order of 9th January 1965, the 2nd Additional Sessions Judge, Multan, convicted and sentenced him to death. In case the sentence of death having not been confirmed, he was also fined Rs. 500 or in default to further rigorous imprisonment for six months. He has come in appeal through Jail against his conviction and sentence. The reference for confirmation of death sentence is also before us. This judgment will dispose of both the appeal and the reference.

2. The facts and the motive for the occurrence as narrated in the report Exh. P. F. made by Abdus Sattar (P. W. 15) at police post village Abdul Hakim; at 7‑30 p.m. on the 13th of October, 1963, recorded by Sh. Akhtar Hussain, A, S. I., are as follows : Dil Muhammad, a brother of the appellant had married a beggar woman Mst. Sakina whom Dil Muhammad after his marriage with Mst. Munawar, daughter of Fazal Din (deceased) turned out from his house.,‑ The appellant suspected the deceased and Abdus Sattar (P. W. 15) as being instrumental in turning out Mst. Sakina by Dil Muhammad and that he (accused) on this account nursed a grudge against Fazal Din deceased. On the day of occurrence Abdus Sattar (P. W. 15) came to the shop of his brother Muhammad Rafiq (P. W. 19) who informed him that his father‑in‑law Fazal Din (deceased) had come from Multan and that he was at that time in the house of Khushi Muhammad. Muhammad Sarwar (P. W. 6) was detailed by Abdus Sattar to ask Fazal Din to come. After a short while Muhammad Sarwar returned and told Abdus Sattar that the latter was wanted by Khushi Muhammad in his house. Abdus Sattar accompanied by Khadim Hussain (P. W. 17) went to the house of Khushi Muhammad where Abdus Sattar left his cycle in the custody of Khadim Hussain outside the house in the lane. When Abdus Sattar entered the house the appellant charged him and the deceased for tie sale of Mst. Sakina. The allegation was denied by Abdus Sattar, etc. but the appellant got dared up and picked up an axe and aimed a blow at Abdus Sattar but missed him and then he started giving blows with the axe in quick succession to the deceased. Abdus Sattar shielded himself with a cot lying there, and came out with a fracas "mar dia, mar dia". At the bidding of the Khushi Muhammad, his brothers Qasim Ali and Ali Muhammad emerged from the room of the house and chased Abdus Sattar and gave him blows with a piece of iron and stick, respectively, on his shoulder and nose. Abdus Sattar came running to the lane where he met Muhammad Rafiq (P. W. 19). Allah Ditta (P. W. 9) and Sher Muhammad (not produced). The statement Exh. P. F. of Abdus Sattar was incorporated in Exh. P. F/1 by Muhammad Abdullah S. I. (P. W. 14).

3. Dr. Muhammad Ikram Qureshi (P. W. 1) conducted the post‑mortem on the dead body of Fazal Din, deceased, on the 14th of October 1963, at 4‑30 p.m. and found the following injuries: (1) An incised wound 3 x " x 1 ", over the left side of the head, 2 " above the left ear and 3" from the left eye brow with cutting of the left parietal bone. (2) An incised wound 2 x " x bone deep with cutting of, the occipital bones over the back and central part of the head. (3) An incised wound 5" x 1" x 3" over the right side of the face extending from the right nostril to the right side 2" below the right ear with cutting of the underline bones. (4) An incised wound 3" x 1 " x 3" over the left side of the face extending from the left corner of the mouth outwards with cutting of the bone. (5) An incised wound 3" x 1 x 3 " over the left side of the neck at its middle part. with cutting of blood vessels. (6) An incised wound 6" x 2' x 3 " over the right side of the face extending from the chin outwards, 2", from the right ear with cutting of the bones. (7) An incised wound 5" x " x 2" over the right side of the neck meeting the injury‑No. 6 at its middle and 3" below it on its outer side. There was infiltration of blood over the left side and back of the head. There was cut of the left parietal, occipital and fracture of the occipital bone. On the memberance of the brain co‑agulated blood was present over the back part of the head. Over the brain co‑agulated blood was present over the back part. The left lung was adherent with the chest wall. Stomach was healthy and empty. The bladder was healthy and 8 ounces urine was present in it. Injuries Nos. 1 to 6 were grievous, and injury No. 7 was simple, caused by sharp‑edged weapon, and were ante‑mortem in nature. In the opinion of the doctor the death was caused due to shock, haemorrhage and cutting of head bone due to injuries Nos. 1, 2 and

5. These injuries were sufficient in the ordinary course of nature to cause death individually and collectively. The probable time that had elapsed between the injuries and death was within a few hours and between the death and post‑mortem was 1 to 2 days.

4. On the 13th of October 1963, at 8 P.M. Dr. Ghulam Ahmad (P. W. 2) examined Abdus Sattar P. W. and found the following injuries on his person:‑ (1) Lacerated wound " X " X 1/6" on the front of nose X " below the roof of the nose. (2) Contusion 1" X " on the top of left shoulder. Both the injuries were simple and caused by blunt edged weapon within approximately three hours duration.

5. The axe P. 4 was recovered from the accused in the police post by A. S. I. Akhtar Hussain, vide recovery memo. Exh. P. G. witnessed by Murad (P. W. 16) and Abdus Sattar (P. W. 15). P. W. Murad stated that the hands of the accused were smeared with blood and the A. S. I. removed the blood with a swab and made it into a sealed parcel vide memo. Exh. P. H. Bloodstained shirt P. 6, bloodstained loin cloth P. 7 were also removed from the person of the accused and were made into a sealed parcel vide memo. Exh. P: J. Bloodstained earth was recovered by Akhtar Hussain, A. S. I. from the courtyard of the house of Khushi Muhammad, accused, vide recovery memo. Exh. P. K. A cot P. 8 which was bloodstained was also taken into possession vide memo. Exh. P. L. and a pair of shoes of the deceased P. 10/1‑2 were taken into possession from the courtyard of the house of Khushi Muhammad, accused. All the memos were attested by Murad (P. W. 16) and Abdus Sattar (P. W. 15).

6. Abdus Sattar (P. W. 15) is the son‑in‑law of the deceased. Muhammad Rafiq (P. W. 19) is brother of Abdus Sattar, Sher Muhammad P. W. (since abandoned) is father‑in -law of Muhammad Rafiq and Khadim Hussain (P. W. 17) is the sister's son of Abdus Sattar and Muhammad Rafiq P. Ws.

7. Abdus Sattar (P. W. 15) gave the ocular version of the occurrence. Allah Ditta (P. W. 9), Muhammad Sadiq (P. W. 7) and Abdul Haq (P. W. 8) saw the accused armed with the hatchet decamping from the spot. Murad P. W. along with Suleman (not produced) took the accused person to the police post. The statements of Muhammad Sadiq, Allah Ditta, Murad and Abdul Haq P. Ws. are not of less importance who saw the accused while leaving his house having the axe in his hand. As regards the extra judicial confession of the accused, we are not going to accept it because no question as to the extra judicial confession made by him before the witness was put to him at the trial. An objection was raised by the learned counsel that the presence of the wife of the appellant is established on the spot but she had not been examined. In the larger interest of peace to the society law gives protection to such a witness, therefore, we do not draw an adverse inference from Mst. Sakina's not having been produced against her husband, but she was not produced in defence either.

8. The result of the bloodstained articles from the Serologist is not placed on file, therefore, adverse presumption can be drawn to hold that the articles were not stained with human blood. This, however, does not create any doubt as to the guilt of the accused.

9. As regards motive, all that we have before us is the statement of Abdus Sattar (P. W. 15), whose version requires minute consideration. He is directly responsible for having passed on Mst. Sakina as his sister to Faruq Ahmad (P. W. 13) in consideration of certain amount. If the sale of the unfortunate girl in fact prompted the appellant, in that event Abdus Sattar should have been the victim and not the deceased who only played a second fiddle by having affirmed the misrepresentation of Abdus Sattar.

10. Sarwar (P. W. 6) who was detailed by P. W. Abdus Sattar to the house of Khushi Muhammad had come back with the message that Abdus Sattar was wanted by Khushi Muhammad to the latter's house. He did not speak of having seen or heard of any trouble at the‑house of Khushi Muhammad. It appears that so long as Abdus Sattar did not go, there were no signs of any trouble, otherwise Sarwar must have noticed it. Moreover, the two brothers of Khushi Muhammad who according to Abdus Sattar were present and who ultimatly at the instance of Khushi Muhammad chased Abdus Sattar do not appear that they were privy to the designs of Khushi Muhammad, otherwise Abdus Sattar would not have come out of the place with just a scratch on his face. There is still another circumstance. When Abdus Sattar joined the talk the appellant was not having the axe in his hand and it was at subsequent stage that the appellant picked it up and killed Fazal Din with it.

11. All these facts lead us to the conclusion that whatever the matter was, it sprang up all of a sudden at which the appellant flared up, and gave fatal blows to an aged person with a dangerous weapon which the appellant must have known that it was so imminently dangerous that in all probabilities it would cause the death of Fazal Din. Accordingly while maintaining the conviction under section 302, P. P. C. we alter the sentence from death to transportation for life. The sentence of fine as ordered by the learned trial Court is maintained. The appeal is accepted to this extent only. The sentence of death is not confirmed. K. B. A. Appeal partly accepted.