1991 P Cr (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

One Akram, his father Rehmat, his two brothers, namely, Munawar and War Iqbal and one Mst. Naziran widow of Inayat deceased were tried, for the murder of Inayat, by a learned Additional Sessions Judge at Sialkot who vide his judgment, dated 14-3-1988, extended the benefit of doubt to Rehmat, Munawar, War lqbal and Mst. Naziran and acquitted them accordingly whereas Akram was found guilty of the charge; was convicted under section 302, P.P.C. and was sentenced to death with a fine of Rs.10,000 and to suffer one year's R.I. in case of default of payment of the said fine. Half of the amount of fine was directed,, to be paid to the heirs of the deceased.

2. Murder Reference No.170 of 1988 seeks confirmation of the death sentence imposed on Akram convict who, in turn, challenges the conviction and sentences recorded against him as above noticed through Criminal Appeal No.458 of 1988.

3. Both these matters are being disposed of together through this single judgment.

4. Bashir complainant who is a brother of Inayat deceased had disclosed through F.I.R. No.402, dated 31-8-1987 of Police Station Uggoki of District Sialkot that since about 1-1/2 years prior to the occurrence, Akram appellant herein had developed immoral liaison with his Bhabhi Mst. Naziran (acquitted accused) which affair had even become publicly known in the village. He had further disclosed that the complainant, his deceased brother Inayat and their relatives and respectable of the village had repeatedly told Mst. Naziran and Akram appellant to desist from such an immoral conduct but they persisted in their said relationship and in fact demanded that Inayat deceased should divorce Mst. Naziran so that she could marry Akram appellant.

5. The complainant had alleged that two days prior to the occurrence in question, he had heard alarm in the house of his deceased brother at which he reached there and found that Inayat deceased and Akram appellant were quarrelling with each other whereafter Inayat deceased had pushed Akram appellant out of his house who went away after extending threat that he would marry Mst. Naziran at any cost and would not even hesitate murdering Inayat deceased, if need be.

6. Bashir complainant had further alleged that on 31-8-1987, his deceased brother left his house at about 8-30 a.m. for Sialkot City where he used to do labour work and that the complainant, Sanaullah (P.W.9) and Shafi (given up) were also on their way to Sialkot City for various personal errands and just as they had gone about two furlongs out of the village, Akram appellant, his brothers Iqbal and Munawar armed with Chhuris and their father Rehmat accused empty handed emerged from the paddy field of one Ghulam Oadir and on a Lalkara raised by Rehmat accused, Akram appellant and his two brothers attacked Inayat deceased with their respective Chhuris who died on the spot as a result of the injuries so received by him.

7. This murder, according to the complainant, had been committed in connivance with and at the instance of Mst. Naziran abovementioned.

8. The accused, when examined, attributed their involvement to suspicion and enmity and their plea was thus one of a denial simpliciter. Akram appellant had even entered the witness-box under section 340, Cr.P.C. and has repudiated, on oath, the charges levelled against him.

9. The learned counsel for the appellant contends that both the eye witnesses of the occurrence in question were closely related to the deceased; that both of them were chance witnesses whose testimony did not inspire confidence; that the prosecution story in respect of three accused persons had been found to be false; that the occurrence had taken place in the darkness of the early hours of the morning which had gone un-witnessed and the present appellant and his family had been implicated on account of mere suspicion and malice.

10. It is true that one of the eye-witnesses is a real' brother of the deceased whereas the other is his first cousin but that by itself is 'not sufficient to discard their testimony especially when the defence did not demonstrate any ill-will- or malice on the part of these two witnesses to falsely implicate the appellant.

11. The occurrence in question had taken place on a public thoroughfare. There were no shops or houses in the immediate vicinity of the place of occurrence and the nearest Dera was more than on Acre away from the spot. In the circumstances, .the only persons who could have witnessed the occurrence in question could be the passers by and their testimony could not be discarded on the ground that they were chance witnesses.

12. The deceased was undeniably going out of the village in the earlier part of the day and no exception could be taken to the eye-witnesses also coming out of the village in connection with various personal matters at that hour of the day.

13. The contention that the occurrence had taken place in the early hours of the morning, the same had gone un-witnessed and the time of occurrence had been shown as 8-30 a.m. only to make the occurrence in question a witnessed occurrence, has no force either.

14. The occurrence had taken place in the month of August when the sunrise would be around 5-30 a.m. Thus, sufficient daylight would be available at the place of occurrence at any time around 6-00 a.m. and thereafter. In the circumstances, even if the time of occurrence had to be delayed to make the same a daylight occurrence then the prosecution did not have to extended it to 8-30 a.m. unless it was the actual time of occurrence. Semi-digested food had been found in the digestive system of the deceased which further indicates that the time of occurrence was not the early hours of the morning but a couple of hours thereafter.

15. The motive for the occurrence in question was specifically pleaded since immediately after, the occurrence. The defence has not been able to create any dent or doubt with respect to the said motive. No reason has been offered for the complainant party to have maligned and prosecuted their,, own Bhabhi to fabricate a motive for the occurrence in question unless the same was true.

16. Having thus analysed the entire evidence available on record, we are of the view that no exception can be taken to the finding of guilt recorded by the learned trial Court against Akram appellant.

17. No circumstances exist on record which could warrant the imposition of lesser penalty on the appellant and which could dissuade us against the Il confirmation of the death sentence awarded to the appellant.

18. Consequently, we hold that Akram appellant stands rightly convicted under section 302, P.P.C. and has been justifiably sentenced to death.

19. The conviction under section 302, P.P.C. and the sentences awarded to him therefore are maintained. The death sentence imposed on him is E confirmed.

20. Criminal Appeal No.458 of 1988 is dismissed and Murder Reference No.170 of 1988 is answered in above terms. N.H.Q./M-2752/L. Appeal dismissed.