P L D 1969 Lahore 733 (PLP)

MUHAMMAD SIDDIQ, J.

‑Muhammad Hussain (25 years) was convicted under section 30? of the Pakistan Penal Code and sentenced to death for the murder of Muhammad Ismail on the night between the 28th and 29th of August 1966, in the abadi of Chak No. 522/TDA, Police Station Daera Din Pannah. He was sentenced to death subject to confirmation by this Court: Muhammad Hussain has come in appeal against his conviction and sentence. The case is also before us under section 374, Cr. P. C. for the confirmation of the sentence of death. This order will dispose of the criminal appeal as well as the murder reference.

2. According to the prosecution, the sister of the appellant was betrothed with Khushi Muhammad (P. W. 7). After some time the engagement broke off at the instance of the parents of the appellant as Khushi Muhammad P. W. owned no land. Instead, the girl Mst. Inayat Bibi was engaged to Muhammad Inayat son of Muhammad Ismail deceased and his who owned some land. Khushi Muhammad had developed illicit relations with Mst. Inayat Bibi. Muhammad Ismail deceased and his wife Mst. Jiwan (P. W. 8) came to know of the same and broke off the aforesaid engagement. The appellant took it as a disgrace. About a week before the occurrence, Muhammad Ismail deceased had gone for a condolence along with Jindwadda (P. W. 10) on the death of a son of Malang, a servant of the appellant's father, who had previously been employed as a servant of Muhammad Ismail deceased. On that occasion, the appellant and his mother, Mst. Hakim Bibi are alleged to have insulted Muhammad Ismail deceased and had even assaulted him but the situation was saved through the intervention of Jindwadda P. W. The appellant had, on that occasion, expressed his extreme resentment at the disgrace to which they had been put by the action of Muhammad Ismail deceased and had threatened to take revenge. Muhammad Ismail deceased had probably advanced a sum of Rs. 1,000 to the appellant and his parents and after the incident mentioned above, had filed a complaint under section 420, P. P. C. in respect of Rs. 1,000 (vide statements of Mst. Jiwan P. W. 8 and the appellant at the trial).

3. On the night between 28th and 29th of August 1966, Muhammad Ism,iil was sleeping in front of his house along with his wife (Asst. Jiwan P. W. 8) and children. Similarly, his brother Khushi Muhammad (P. W. 8) was sleeping in the same courtyard in front of his own house. At about midnight, Mst. Awan was awakened by the cry of "hai" raised by her husband and the saw the appellant aiming a blow at Muhammad Ismail with a hatchet. She raised an alarm shouting that Muhammad Hussain had murdered Ismail, The appellant without striking the aimed blow ran towards the door. Khushi Muhammad P. W. also woke up on the alarm raised by her and ran after the appellant. Mst. Jiwan approached her husband and saw him with a deep wound on his neck, which was bleeding profusely and he was almost on the point of death. Khushi Muhammad P. W. pursued the appellant to some distance and overtook him. When he tried to apprehend and overpower the appellant, the latter aimed a hatchet blow at him and Khushi Muhammad P. W. gave up the pursuit for fear of his life. He, however, continued to raise alarm and Ali Muhammad P. W. 9 who was returning home after irrigating his fields also heard the shouts raised by Khushi Muhammad and Mst. Jiwan P. Ws. He saw Muhammad Hussain passing by him and tried to secure him. The appellant however aimed a hatchet blow at him also and thus made good his escape. Muhammad Ismail died soon after. Khushi Muhammad P. W. left for Police Station Deera Din Pannah where lie lodged the F.

1. R. Exh, P. A. on the morning of 29th of August 1966, at 4 a.m. after covering a distance of fourteen miles. The F. I. R. was recorded by Sub- Inspector Ramzan Ali (P. W. 11).

4. After recording the E' I. R., Sub‑Inspector Ramzan Ali left for the spot and reached there at 6 a.m. He found the dead body of Muhammad Ismail lying on a cot at the place of occurrence. Ho. prepared the injury statement Exh. P. G. and the inquest report Exh. P. F. in respect of the dead body and despatched the same to the mortuary for post‑mortem examina tion. He collected some blood‑stained earth from underneath the cot of the deceased and made the same into a sealed parcel vide memo. Exh. P. B. He arrested the appellant the same day. The appellant after his interrogation, led the Sub‑Inspector to his residential kotha from where he got recovered the blood‑stained hatchet Exh. P. 1, which was sealed into a parcel vide Memo. Exh. P. C On the same day, the appellant also led to the recovery of t1w blood‑‑stained shirt Exh. P. 2 and the blood‑stained chadar Exh. P. 3 from his residential kotha. They were also taken into possession and sealed into a parcel vide memo. Exh. P. D.

5. According to the report of the Chemical Examiner (Exh. PK) and that of the Government Serologist (Exh. PL), the blood‑stained earth recovered from the spot, and the hatchet Exh. P. 1, the shirt Exh. P. 2 and the chadar Exh. P. 3, recovered at the instance of the appellant, were all found to be stained with human blood.

6. Doctor Ashfaq Ahmad (P. W. 1) performed, on the 30th of August 1966, at 2‑30 p.m., the post‑mortem examination on the dead body of Muhan mad Ismail and found the following injury on his person :‑ "An incised wound, 3J'` x 1'x 2J on, the right side of the neck in between the clavicle and the lower jaw. All the soft structures along with the vertebral column were cut at the level of fifth cervical vertebra which was also cut through." The membranes of the vertebral canal along with spinal card were also cut at the level of fifth cervical vertebra. Trachea was also cut below the level of adam's apple. The oesophagus was also cut. The stomach contained four ounces of semi‑digested food. In the doctor's opinion, injury No. 1, was caused by some sharp weapon and was sufficient to cause death in the ordinary course of nature. Exh. PJ is a correct carbon copy of the post mortem report.

7. The appellant in his statement before the committing Magistrate generally denied the prosecution allegations. With regard to the motive alleged in the case he promised to explain the position in the Court of Session and also to explain at that time why he had been involved in the case.

8. At the trial, he generally denied the prosecution allega tion, although he admitted that he was the son of the maternal uncle of Mst. Jiwan P. W. He gave the following version regarding the motive for the occurrence etc. "Ahmad was never a servant a with us. He is a professional beggar. The fact is that eight brothers had become enemy of the deceased for two reasons. Firstly, not helping Khushi Muhammad in getting hand of my sister as Muhammad Ismail refused to give any land to Khushi Muhammad and my father was not prepared to betrothe my sister with a young man of no property. Secondly, Muhammad Ismail had purchased land with the money of the joint family during the lifetime of his father. He got the whole land mutated in his name and was not prepared to give any share to his brothers. The eight brothers were pressing the deceased to break the betrothal of my sister with his son, but the deceased was not prepared for it. On account of the fear of his brothers as they were threatening him with dire consequences, he put in a complaint in the Court of Additional District Magistrate for certain happenings which never happened. He told me in confidence and my father also that he will turn out his brothers from the land and then marry my sister to his son." He did not produce any evidence in defence.

9. The points for determination are‑ (1) Whether the appellant had committed the murder of Muhammad Ismail? and (2) Whether the sentence awarded to him calls for any interference?

10. With regard to the death of Muhammad Ismail, it is clear from the medical evidence that he had died as a result of the injury inflicted on his neck at about the time in question. The appellant had not examined any evidence in defence and there is not the slightest suggestion in cross‑examination that Muhammad Ismail had not died as a result of the injury received by him on his neck or that the occurrence resulting in the death of Muhammad Ismail was the doing of any one else. The prosecution witnesses repelled the suggestion that the land owned by Muhammad Ismail deceased had been purchased from the joint family funds or that there was any dispute or ill‑feelings between the deceased and his brothers regarding the distribution of that land. The prosecution case is supported by Khushi Muhammad (P. W. 7), Asst. Jewan (P. W. 8) and Ali Muhammad (P. W. 9) who are quite natural witnesses of the occurrence. Mst. Jewan P. W. was sleeping for the night close to her deceased husband and claimed to have been awakened by the cry of "Hai" raised by her husband presumably on receiving the injury on his neck. The doctor was not cross‑examined as to whether or not the deceased was incapable of raising any cry on receiving the injury which had been received on the right side of the neck. The occurrence had taken place at about mid‑night and the night was the 11th of the lunar month and was as such a moon‑lit night. Mst. Jewan P. W. identified the assailant and shouted that the appellant had murdered her husband. These outcries awakened Khushi Muhammad P. W., who saw the appellant running out of the court‑yard with a hatchet. He pursued the appellant and overtook him at a distance of about one acre, but was frightened away when the appellant aimed a hatchet blow at him. Ali Muhammad P. W. similarly, on hearing the outcry of Mst. Jewan and Khushi Muhammad P. W. rushed in the direction and met the appellant who again threatened him by aiming a kulhari blow at him. Khushi Muhammad P. W. is the real brother of the deceased. Usr. Jewan P. W. is the widow of the deceased and Ali Muhammad P. W. is the sister's husband of the deceased. They are, however natural witnesses of the occurrence and there is not the slightest suggestion that they were in any way inimical towards the appellant or had any motive to implicate the appellant falsely in this case of murder. In fact, they are equally closely related to the appellant. Khushi Muhammad P. W. says that "the appellant is the son of my father's sister's daughter". He claimed to have developed some illicit relations with the appellant's sister who had been originally betrothed to him and this relationship might also give an assurance that he had no reason to implicate the appellant falsely to this case. Mst. Jewan P. W. says that "Muhammad Husain is the son of my maternal uncle." Ali Muhammad P. W. similarly says that "the accused is my maternal uncle's son." We are satisfied that these three witnesses were natural witnesses of the occurrence They have not tried to over state the ease for the prosecution and have come up with the barest evidence that they possessed in respect of the appellant. They were in no way inimical towards the appellant and were in fact closely related to him. We agree with the learned Sessions Judge in accepting the testimony of these three witnesses.

11. The testimony of P. Ws. 7, 8 and 9 is amply corroborated by tire recovery of the hatchet Exh. P. 1. at the instance of the appellant from his residential kotha. Similarly, the shirt, Exh. P. 2 and the chadar Exh. P. 3 were recovered by the police at the instance of the appellant from his residential house. The hatchet as well as the shirt and the chadar which were recovered on the day following the occurrence, have all been found stained with human blood. These recoveries made under memos. Exhs. P. C. and P. D. are supported by Mithu Khan (P. W. 5) and Sub‑Inspector Ramzan Ali (P. W. 11). We have no reason to disbelieve Mithu Khan P. W. who is quite independent, nor is there any suggestion that the investigating police was in any way inimically disposed towards the appellant. We have therefore no reason to discount the testimony of Sub‑Inspector Ramzan Ali with regard to the recoveries made at the instance of the appellant.

12. Further corroboration is available from the motive evidence furnished in this case by Khusht Muhammad (P. W. 7), Mst. Jiwan (P. W. 8) and Jindwadda (P. W. 10). It is also stated by Mst. Jiwan P. W. that apart from the breaking off of the engagement between her son and the appellant's sister and the reasons given therefor and the incident mentioned by Jindwadda (P. W. 10), her husband "had riled a criminal complaint in respect of the sum of Rs. 1,000 and this fact is also stated by the appellant in his statement at the trial. We are satisfied that the appellant had a motive against the deceased.

13. In the result, we are satisfied that the appellant has been properly convicted under section 302, P. P. C. for the murder of Muhammad Ismail deceased. Since the murder was premeditated and pre‑planned, the sentence awarded to the appellant also calls for no interference. This appeal therefore fails and is hereby dismissed. The sentence of death imposed upon the appellant is accordingly confirmed. S. Q. Appeal dismissed.