1976 P Cr (PLP)

M. S. H. QURESHI, J.‑--Sabir Ali appellant was convicted by the Additional Sessions Judge, Layallpur of the murder of Mst. Shamim deceased the wife of his brother Muhammad Rafiq, and sentenced to death, and to a fine of Rs. 100 or in default in payment thereof, to undergo R. I. for two months. The sentence of imprisonment in default of payment of the fine was to have effect only in the event of the death sentence not being con firmed. A sum of Rs. 50 out of the fine, if realized, was ordered to be paid to the complainant as compensation. He was further convicted under section 307, P. P. C. for attempt to murder his brother Muhammad Rafiq for which he was sentenced to undergo R. I. for 2 years. We have now before us his appeal as well as the Reference for the confirmation of the death sentence.

2. Muhammad Rafiq complainant, Sabir Ali appellant and Muhammad Jamil are real brothers: They had their house in Ansar Colony. Gojra. Muhammad Rafiq and Muhammad Jamil, lived at Layallpur in connection with their employment in some factories. Mst. Shamim also resided there with her husband. The appellant, his mother Mst. Edoo who was a lunatic, and his uncle Fateh Muhammad lived in the house in Ansar Colony, Gojra. The factories being closed on account of strike on 6‑9‑1972, Muhammad Rafiq and his wife had came to their house at Gojra. In the evening, the family talked about the marriage of Muhammad Jamil to which the appel lant objected demanding that as he was older in age he should be married first. He also threatened them of dire consequences in case he was by‑passed in the matter of the marriage. After this, they all went to sleep. A dia was burning in the house. On waking up at sehri wela the complainant and his wife resumed the talk about the marriage. At the protest of the appellant, the deceased told him that Muhammad Jamil's marriage would be solemnized first at which the appellant took out a chhuri and attacked the complainant who raised alarm. The appellant then gave a chhuri blow which landed on the neck of the deceased. He attacked the complainant for the second time with the chhuri and in his attempt to ward off the blows the complainant suffered injuries on his hand with the knife. The appellant ran away carrying the chhuri with him. The occurrence was also seen by Fateh Muhammad and the neighbours Bashir Ahmad and Nizam Din P. Ws. The deceased was removed to the hospital, but she died there half an hour later. On receipt of information from the hospital, Abdul Ghafoor A. S. I. went there and recorded the statement of the complainant at 4‑55 a.m. (7‑9‑1972) on the basis of which a formal F. I. R. was recorded at 5‑10 a.m. at the police station.

3. During the investigation of the case, the appellant was arrested on E‑9‑1972 and be led to the recovery of blood‑stained chhuri (Exh. P. 2) from under sarkinda bushes near the level crossing of Samundari Road, Gojra.

4. The medical evidence supported the prosecution case. The post mortem examination revealed the presence of S shaped incised wound, 1 ' x 1 " x 3' (Probe) on the left side of the upper neck and lower edge of mandibular region. It went obliquely down and backwards on dissection. It had cut the stern mastoid and internal jugular vein and branches of external carotid artery. The injury which in the opinion of the Doctor bad been caused by sharp‑edged weapon had been sufficient and responsible for the death.

5. Muhammad Rafiq complainant, who was examined for his injuries on 8‑9‑1972 was found to have suffered four incised cuts on the fingers of his right hand. All the injuries, which were simple, had been caused by sharp- edged weapon.

6. The ocular testimony was furnished by Muhammad Rafiq (P. W. 8), Bashir Ahmad (P. W. 9) and Nizam Din (P. w. 10). Muhammad Rafiq and Nizam Din fully supported the prosecution case but Bashir Ahmad was declared hostile and his statement made before the Committal Court was transferred under section 288, Cr. P. C. In that statement, Bashir Ahmad had supported the prosecution story. The recovery of the chhuri was proved by Muhammad Sharif (P. W. 6) and Ahmad Khan S. H. O. (P. W. 5) The appellant who had pleaded not guilty to the charge had generally denied the allegations and had stated: "my brother Muhammad Rafiq com plainant killed his wife Mst. Shamim himself. Mst. Shamim had come from somewhere from outside in the morning. I do not know from where she had come. The complainant killed her." The suggestion put in this time to Muhammad Rafiq had been denied by him: Another suggestion put to him that he had wanted to sell the house, which was under joint ownership, had likewise been denied by him. The learned trial Judge had believed the prosecution evidence and had accordingly found the appellant guilty of the murder.

7. Learned counsel for the appellant urged that the ocular account was not worthy of credence. He pointed out that Muhammad Rafiq had made conflicting statements regarding the place where Muhammad Jamil lived. In the F.I.R. Muhammad Rafiq had stated that Muhammad Jamil worked with him at Layallpur and lived there, but in his evidence, he had stated that Muhammad Jamil lived at Gojra. This discrepancy even though present is not on a material point. It was also pointed out that Muhammad Rafiq stated that the appellant had bolted the outer door of the house on the night preceding the occurrence, and that as no one had opened the door, Bashir Ahmad and Nizam Din, who were sleeping in the street outside, could not have entered the house and seen the occurrence. The question as to how Bashir Ahmad and Nizam Din had entered the house had not been put to them. There is also no specific statement that no one had opened the door in the morning. Muhammad Rafiq is a natural witness being present in the house at the time of the occurrence and having received injuries during the occurrence. We find no material to support the appel lant's plea that it was Muhammad Rafiq who had killed the deceased. Bashir Ahmad and Muhammad Rafiq are close neighbours, and according to the site plan, had been sleeping in the street at a distance of 32' respec tively from the complainant's house. Muhammad Rafiq had stated: "The accused all of a sudden rose up and attacked us. The entire occurrence was over in about 2/3 minutes". It was urged on this basis that the two neighbours could not have reached the place of occurrence in time to see the injury on the deceased being inflicted by the appellant. There is no force in the contention because the attack had first been made on Muhammad Rafiq who had thereupon raised the alarm. We are, therefore, satisfied that the conviction of the appellant of the murder is fully justified on the basis of the material on record.

8. The question of the sentence has, however, given us anxious moments. A question about the mental condition of the appellant had been raised on his behalf at the inception of the trial and the learned trial Judge 9 had referred the matter to the Government Mental Hospital, Lahore where the Board of Certification had opined that the appellant was fit to stand trial. It may not, therefore, be said that he suffered from insanity. The fact, nevertheless, remains that there is insanity in the family, Mst. Edoo the mother of the appellant being admittedly a lunatic. Then there is the fact that the appellant was not employed anywhere, like his younger brother Muhammad Jamil was, nor had he been getting any proposal for his marriage. Muhammad Rafiq had stated: "The persons in whose house Muhammad Jamil was proposed to be married bad indicated that they will not give the hand of their daughter to Sabir Ali accused". These two facts have not been explained by the prosecution. The possibility, therefore cannot be ruled out that the appellant suffered from some sort of mental imbalance or was prone to overact in a given situation on account of which he could neither get a job nor a match. Even otherwise he is not deserving of the extreme penalty because he had no particular enmity against the deceased, and he had committed the offence on the spur of the moment at the provocation caused to him by the decision to by‑pass him in the matter of the marriage. Moreover he had inflicted only one injury on the deceased. We are, therefore, satisfied that the lesser penalty will meet the ends of justice.

9. We, therefore, while maintaining the conviction of the appellant under section 302, P. P. C. substitute his sentence of death by a sentence of imprisonment for life. The sentence of fine Imposed by the learned trial Judge and his order for, payment of compensation are maintained. The conviction and the sentence of the appellant under section 307, P. P. C., are also maintained. The appeal is disposed of in these terms. The death sentence is not confirmed. Appeal dismissed: Sentence seduced.