1985 PLP 625 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑ This is an appeal by special leave from the judgment by a Division Bench of the Lahore High Court, Bahawalpur Circuit, Bahawalpur, dated 14‑4‑1980 whereby the conviction of the appellant under section 302 of the Pakistan Penal Code was upheld, the death sentence awarded to him was confirmed and his appeal was dismissed. The occurrence in this case took place on 31‑7‑1976 at Asar prayer time in the area of Mozah Jampur, Tehsil Khanpur, District Rahimyar Khan in which Muhammad Sadiq deceased was done to death by hatchet blows. The prosecution case is that the deceased alongwith his brother Muhammad Ashiq, complainant, and Muhammad Naziq (minor not examined) and their mother Mst. Anwar Khatun were returning home from Basti Naveen of Mozah Jampur after picking dates from the trees. It is stated that the deceased was proceeding ahead of others by ten karams and carrying a basket full of dates on his head. On the way as he was crossing over a watercourse on a culvert formed out of a tree trunk, the appellant suddenly emerged out of ambush from a Jawar field and inflicted a hatchet blow on his neck as a result of which he collapsed on the western side of the watercourse. The appellant then gave the deceased two more blows, which landed on his face and neck as a result of which he breathed his last at the spot. Muhammad Ashiq, complainant, Mst. Anwar Khatun, P.W. and Naziq rushed to the spot in aid of the deceased but the appellant made good his escape. On their alarm Allah Bakhsh and some other persons from the locality were attracted and came to the spot. One Rashid Ahmad a cousin of the deceased stated the motive for the offence to be the murder of Muhammad Hussain the uncle of the appellant about twenty days prior to the occurrence. Muhammad Ashiq, brother of the deceased, lodged the F.I.R. The appellant was arrested on 1‑8‑1976 who, while in custody, led to the recovery of blood‑stained hatchet from his house, but this recovery is of no significance as it has been disbelieved by the trial Court as well as the High Court. The prosecution case accordingly rested on the ocular testimony and motive. Muhammad Ashiq brother of the deceased and Mst. Anwar Khatun furnished his mother the ocular version. Allah Bakhsh was not examined as in any case he came after the occurrence and was not an eye‑witness. During the post‑mortem examination, as testified by doctor Muhammad Afzal Hashmi, Medical Officer, the deceased had the following injuries on his person:‑ (1) "One incised wound 8" x 3" vertebrate deep on the front of neck directed downward and to the right. It was at the level of middle of sound box. The air, passage, the food pipe and the big blood vessels of the two sides were cut across. The upper and the lower margins of the wound were smooth. An incised abrasion was present on the left side of chin which measured 1/3" x 1/311. (2) One incised wound 5" x 1" bone deep on the right‑ side of the face above the angle of the jaw. It was directed downward and backward. The jaw bone was incised underneath into pieces.,, In the opinion of the doctor injury No.l could be caused by the assailant In the opinion of the doctor injury No.l could be caused by the assailant while standing in front of Mohammad Sadiq deceased. The learned Additional Sessions Judge, Rahimyar Khan convicted the appellant and sentenced him to death and to pay a fine amounting to Rs.1,000 or in default to suffer R.I. for six months. The fine if realized was ordered to be paid to the heirs of the deceased. On a reference by the trial Court and appeal filed by the convict the High Court re‑examined the evidence and affirmed the finding of the trial Court. In the result the appeal of the convict was dismissed and his death sentence was confirmed. While granting leave this Court noticed certain features of the case which required examination to see whether the ocular testimony was consistent as to the point of place and time of the occurrence and whether this was an un witnessed crime. We have heard Mr. Nemat Khan on behalf of the appellant and with his assistance have gone through the evidence on record. His main contention is that there is conflict in the evidence of the eye‑witnesses and the medical evidence, which seriously reflects upon the veracity of the ocular account as to the manner in which the deceased received injuries resulting in his death. The submission was that this was an un witnessed occurrence and the appellant was involved on account of suspicion and enmity. In this connection learned counsel has invited our attention to the version given in the First Information Report in which complainant Mohammad Ashiq stated that the assailant came out of the field from behind the deceased and gave hatchet blow to him on his neck on account of which he fell on the ground, where after two more injuries were inflicted to the deceased. However, as mentioned earlier the medical evidence revealed only two injuries. The other point emphasized was that the nature of injuries falsifies the version that the first injury was inflicted from the back side to the deceased. So far as the direction from which the injury was inflicted may be pointed out that the complainant did not state in the F.I.R. that the appellant inflicted the first injury to the deceased from the, back side. All that he stated was that the appellant emerged from the Jawar field from behind. In any case this statement in the F.I.R. was not confronted to complainant Muhammad Ashiq and consequently no significance could be attached to this so‑called contradiction. As to the number of injuries, no doubt Mohammad Ashiq stated that there were three blows given by the appellant and according to him the second blow fell exactly at the place where the first injury was inflicted. In the F.I.R. Mohammad Ashiq had merely stated that after the deceased fell down the appellant gave him two more blows with the hatchet. The explanation sought to be given by the witness that the third blow fell on the same site as that of the first one which was inflicted on the deceased in the standing position, no doubt, is a bizarre explanation and highly coincidental rarely to be encountered in real life. To us it appears that most probably injury No.2 was inflicted first and injury No.l was inflicted subsequently when the deceased fell on the ground. There is no indication of a third injury from the medical examination. But this discrepancy does not, in the circumstances of this case, detract from the testimony of Mohammad Ashiq and Mst. Anwar Khatun whose evidence is natural and has been believed by the Courts below. The presence of Mohammad Ashiq and Mst. Anwar Khatun, being the brother, and mother of the deceased, and having regard to the surrounding circumstances cannot be doubted. Their testimony cannot be thrown overboard only on account of this discrepancy as it is quite possible that in the dramatic situation where injuries were given in quick succes sion they may have made an honest error to say that three injuries were inflicted. There are no other circumstances on the record indicating that they had any enmity or grudge to falsely implicate the appellant. The enmity pleaded by the appellant relates to the fact that some days before the cousin of the deceased had murdered the occurrence Mohammad Hussain uncle of the appellant. In that case it is the accuser s side, which had a grudge against the complainant side and not vice versa. No other circumstances had been brought out on the record to show why of all people the appellant would' be made the target of this enmity if this was an un witnessed crime. The place of occurrence is not disputed, which fell on a path near the Basti crossing over watercourse from which the deceased would naturally have passed along with the witnesses after collecting the dates from the garden. There is no other inconsistency between the evidence of the eye‑witnesses and the version in the F.I.R. or inter se between them. None has been pointed out which could indicate that the witnesses were not present at the time of the occurrence. The guilt of the appellant is therefore, fully borne out by the evidence on record. So far as the sentence is concerned, however, we think that in the circumstances of this case the appellant did not deserve the extreme penalty of death. In this connection it was urged that the appellant was a youth of about thirteen to fourteen years at the time of the commission of the offence. Reference was made to the age disclosed by the appellant during his 342, Cr.P.C. statement recorded on 17‑7‑1978 as fifteen sixteen years. However, in the judgment the trial Court put his age as twenty‑five years. The High Court has referred to the' search‑slip where his age was shown as twenty/twenty‑one years. In this state of the record we are left with no exact data to determine the real age of the appellant at the time of the commission of the offence. However, on an overall consideration of the circumstances of the case, it appears to us that the appellant on account of his inexperience and young age acted in an emotional manner to take upon himself the indiscre tion of taking revenge for the murder of his uncle with which the cousin of the deceased was charged. In the circumstances, in our view the ends of justice would be fully met if he is awarded the lesser penalty provided by the law. In the result the sentence of death of the appellant is altered to imprisonment for life. The fine is enhanced to Rs.10,000 or in default he is to undergo three years' R.I. Fine if recovered shall be paid to the heirs of the deceased. The benefit of section 382‑B, Cr.P.C. shall be extended to the appellant while computing his period of imprisonment. With these modifications the appeal is dismissed. M . Z . M Appeal dismissed