1988 PLP r (PCRLJ)

RIAZ AHMAD, J.‑‑Appellant Khalid son of Sultan, Baluch by caste, aged 19 years, a cultivator by profession was tried by the learned Additional Sessions Judge at Jhang on a charge under section 302 of the Pakistan Penal Code for having caused the murder of woman Zahida aged 18/19 years. The learned Additional Sessions Judge, vide his judgment, dated 30‑1‑1985, found the appellant guilty on the said charge. Accordingly, appellant was convicted and sentenced to death, and to pay a fine of Rs.5,000 or in default of the payment of fine, to suffer further rigorous imprisonment for a term of two years. It was directed that the fine, if recovered, shall be paid as compensation to the heirs of the deceased. The appellant assails his conviction through this appeal, the case has also been referred to us under section 374, Cr.P.C. The complainant has also filed a revision petition bearing No. 402/85, seeking enhancement of compensation. This judgment shall dispose of both the appeal and the reference and the revision petition filed by the complainant.

2. The occurrence resulting into the death of Mst. Zahida took place on 16‑1‑1984 at 11‑00 a.m. in the Dhari of Muhammad Khan P.W.5 father of the deceased, in the area of village Nekay Balochan Tehsil and District Jhang situated at a distance of .18 miles from Police Station Masan. The occurrence was reported on the same day at the police station vide F.I.R. Exh.P.D. lodged at 1‑00 p.m. by Muhammad Khan P.W.5 father of the deceased, and the said F.I.R. was recorded by Mukhtar Ali Sub‑Inspector S.H.O. Police Station Masan, who appeared at the trial as P.W.9. In brief, the prosecution case as narrated by the first informant was, that on the fateful day at about 11 a.m. the first informant alongwith Amir Khan Lambardar were sitting at a distance of 20 Karams from his Dhari and were talking with each other. At that time, the deceased Mst. Zahida was sitting in front of the residential Kotha on a cot in sunshine, while Mst. Farzana, daughter‑in‑law of the complainant, wife of Khalid son of the first informant, was sitting on another cot near the cot of the deceased, when suddenly the appellant armed with a hatchet emerged, Zahida deceased at once remarked addressing the appellant as to why he had come to their house. The remark of the deceased attracted the attention of the first informant and Amir Khan, Lambardar, when all of a sudden, the appellant inflicted a hatchet blow on the head of Mst. Zahida, as a result of which she fell on the cot. It was further alleged that while Mst. Zahida was lying on the cot, the appellant repeatedly inflicted three further blows with his hatchet on the head and the left ear of the deceased. The first informant and Amir Khan, Lambardar raised Lalkara and ran towards the cot of the deceased, when again, the appellant inflicted another hatchet blow on the left shoulder of the deceased and, thereafter, again, inflicted a blow from the wrong side of the hatchet on the left arm of the deceased. Amir. Khan, Lambardar snatched the hatchet from Khalid, while Mst. Farzana caught hold of the appellant. Deceased Zahida succumbed to her injuries at the spot. Motive for the commission of crime was, that Mst. Zahida had been betrothed in the family of their relatives living in Lahore, while the appellant was keen to have the hand of the deceased in marriage for himself. The complainant and his family did not agree to the said proposal of the appellant, therefore, on account of the said grudge, the appellant had killed the deceased. Leaving the appellant and the weapon of offence in the custody of Amir Khan, Lambardar and one Hakim Baluch and Mst. Farzana, the first informant appeared at the Police Station Masan, and lodged the F.I.R. After recording the F.I.R., the investigating officer reached the scene of occurrence, and sent the dead body to the mortury for post‑mortem examination.

3. On 17‑1‑1984, Dr. Muhammad Latif Malik, Medical Officer, District Headquarters Hospital, Jhang conducted the post‑mortem examination on the dead body of deceased Mst. Zahida, and noticed following injuries on her dead body: ‑ (1) An incised wound 10 x 3 c.m. bone deep situated on the left side of the head and ear, which was verticle in position and cutting the underlying bone of the skull in full thickness and underlying brain matter was cut. (2) An incised wound 11 c.m. x 2 c.m. on the left side of the head behind left ear, verticle in position underlying bone of the skull and brain matter was cut. (3) An incised wound 17 c.m. x 4 c.m. on the left side of the head horizontal in position and cutting the left ear and under lying bone of skull and brain matter. (4) An incised wound 8 c.m. x 1 c.m. x bone deep on the right side of head, 9 c.m. backward from the right eyebrow and underlying bone of skull and brain matter was cut. (5) An incised wound 6 c.m. x 2 c.m. x muscle deep on the left scapular region upper part corresponding cut present on the shirt. (6) An incised wound 7.5 c.m. x 1 c.m. x muscle deep on the left back of chest lower part, corresponding cut was present on the shirt. (7) Contused swelling 10 c.m. x 9 c.m. on the front, outer and lower part of the left upper arm underlying bone (left humerus) was fractured. Skull bone was cut underneath the injuries. Membranes and brain matter was also found cut underneath. In the opinion of the doctor, death occurred due to shock and haemorrhage from injuries 1, 2, 3, 4 and

7. All the injuries, except injury No. 7, were caused by sharp‑edged weapon, while injury No. 7 was caused with blunt weapon. Injuries Nos. 1, 2, 3 and 4 were sufficient individually as well collectively in the ordinary course of nature to cause death.

4. The appellant and the weapon of offence were produced before the Investigating Officer. The appellant was arrested and the blood stained hatchet P.3 produced by Amir Khan P.W.6 was taken into possession vide memo. Exh.P.F. attested by Hakim Khan P.W.8 and Muhammad Aslam (not produced) besides 'the Investigating Officer. The blood‑stained cot P.4 on which Mst. Zahida was murdered was also taken into possession vide memo. Exh. P.G. attested by Hakim Khan, Muhammad Aslam (not produced) besides the Investigating Officer. Hatchet was sent to the Chemical Examiner and the Serologist. Vide report of the Serologist, Exh.P.K. the hatchet was found to be stained with human blood.

5. At the trial, the prosecution sought to establish its case by placing reliance upon the ocular testimony furnished by Muhammad Khan P.W.5 father of the deceased, Amir Khan L2mbardar P.W.6 a relative of the complainant and Mst. Farzana P.W.7 wife of the brother of the deceased and the son of the first informant. Besides the ocular testimony, the prosecution also led evidence as to the motive and the recovery of blood‑stained hatchet P.3.

6. The appellant when examined under section 342, Cr.P.C. to explain the evidence adduced against him made the following statement: ‑ "Muhammad Khan complainant is maternal uncle of my father. Since his retirement from service, I lived with Muhammad Khan complainant as his child. I respected Mst. Zahida deceased as my elder sister. I could not think of marrying her. On the day of occurrence, Muhammad Khan complainant had come to his son Khalid Mehmood in Jhang, where Khalid Mehmood reside; with his family. At Fajjar prayer time, as usual I went to the house of Muhammad Khan complainant. I found Mst. Zahida and Iqbal son of Mukhtar present together in the room in compromising position. On having seen me Iqbal ran away. The deceased tried to escape. I took up hatchet lying there under grave and sudden provocation at a distance of 5/6 feet away from the room caused injuries to the deceased. At that time I had no control over myself. After having caused injuries to Mst. Zahida, I myself appeared before the police. Muhammad Khan complainant and his son Khalid Mehmood had reached the place of occurrence after the occurrence. The F.I.R. was recorded by the police at the place of occurrence."

7. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the record of this case, and we have also heard the various contentions raised by both the learned counsel. It was strenuously argued by the learned counsel for the appellant that the motive as set up by the prosecution is not such as would compel the appellant to have committed the murder of Zahida deceased, therefore, the prosecution case is false, and the defence plea raised by the appellant was true. We have anxiously considered this aspect of the case, but unfortunately we do not find any substratum of truth in this contention. It may be stated that the appellant is a close relative of the complainant being the son of the nephew of the first informant Muhammad Khan P. W.5. We are not prepared to believe, that the motive in this case is false. The motive being cause of the crime is in fact the thinking propensity of an individual, and it varies from individual to individual. As it is stated that the facts are stranger than fiction, therefore, the motive has to be examined and analysed in the context of the evidence which is led by the prosecution to establish it. The first informant Muhammad Khan P.W.5 the father of Mst. Zahida deceased is the best person to know the desire of a relation to marry his daughter. Similarly, Mst. Farzana, the wife of the brother of the deceased being inmate of the house cannot be expected to have been unaware of the marriage proposal of Mst. Zahida deceased the sister of her husband. Both these eye‑witnesses have emphatically deposed that after the engagement of the deceased Zahida at Lahore, the appellant sought the hand of the deceased in marriage for himself, but the said proposal was turned down. It was argued by the learned counsel for the appellant that Mst. Farzana P.W.7 had made improvement in her statement, inasmuch as, after the deceased having seen the appellant in her house had remarked as to why the appellant had come, the appellant replied that he had come to teach a lesson for refusing to marry him. It was stated by the learned counsel for the appellant that reply to the remark of Farzana on the part of the appellant was an improvement and subsequent introduction, therefore, the entire evidence should be rejected. We regret our inability to do so, because, the presence of Mst. Farzana in the house being the inmate of the house cannot be disbelieved. What to talk of the male, the appearance of a female in a witness‑box is not an easy experience, particularly when the witnesses appear after the lapse of a year or so. After careful consideration, we do not attach any importance as to the reply of the appellant to the effect that he had come to teach a lesson. The remark of the deceased on seeing the appellant in the house goes a long way to speak for itself, because such remark cannot be uttered while seeing a relation in one's house, unless there is a background of some facts. The remark by the deceased itself shows that the deceased knew fully well that the appellant was keen to marry her and that is why she expressed her resentment o seeing the appellant in her house. The defence plea which was pressed hard by the learned counsel for the appellant is unnatural and unworthy of belief, because at the very outset it is belied by the blood‑stained hatchet snatched from the appellant and produced before the Investi gating Officer. The hatchet bears the name of the father of appellant. This fact by itself shows that the appellant after having prepared himself had reached the scene of occurrence. In ordinary course of things, this hatchet could not be lying in the house of the deceased and, therefore, the plea of having seen the deceased with her paramour in an objectionable condition is preposterous, and in our view the defence attempted to create a scandal, which has to be discouraged. It may be mentioned here, that the occurrence took place at 11‑00 a.m. and the F.I.R. was lodged at 1‑00 p.m. after covering a distance of 18 miles by the first informant. According to the first informant, he had proceeded to the police station on a tractor trolley on a Katcha path, because only a very small portion of the road was metalled leading to the police station. We are not prepared to believe that at 11‑00 a.m. in the morning the deceased would dare to meet her paramour in her own house. It was vehemently argued that the time of occurrence as narrated by the prosecution was not correct, because, the stomach of the deceased was empty, and hence the occurrence might have taken place in the early hours of the morning. The contention is devoid of truth, inasmuch as by the time, the occurrence took place at 11‑00 a.m. the food taken by the deceased must have been digested, and that is why the stomach was empty. For the reasons stated above, we have no hesitation to reject the defence plea as well as the various contentions raised by the learned counsel for the appellant.

8. Adverting to the ocular testimony, the same in our view is quite natural. Presence of Mst. Farzana P.W.7 cannot be disbelieved, similarly, the other two eye‑witnesses, one being the father of the deceased, their presence is also established on the record of this case. Amir Muhammad Khan P.W.6 resides at a very short distance from the place of occurrence. He had satisfactorily explained that he had come to receive an amount of Rs.200 from the first informant. Muhammad Khan P.W.5, who had borrowed this amount in connection with the engagement of the deceased. In our view, such transaction in village is common, therefore, presence of Amir Khan P.W.6 with Muhammad Khan the first informant at a short distance from the cot of the deceased rings true. Even otherwise, Amir Khan P.W.6 had no background and enmity with the deceased nor he would volunteer to become a witness on a capital charge against the appellant. The first informant is a relation of the appellant, because the appellant is the son of his nephew, therefore, he would not falsely implicate him by allowing the real culprit to go scot free. It is a case of single accused, and the occurrence had taken place in broad daylight and, therefore, we are not prepared to believe that the prosecution has substituted the appellant with the actual culprit.

9. The ocular testimony stands fully corroborated by the recovery of blood‑stained hatchet snatched from the appellant and produced before the Investigating Officer. The recovery was attested by Hakim Ali P.W.8 and Mukhtar Ali P.W.9 the Investigating Officer. P.W.8 Hakim Ali is also a resident of the village and has no enmity with the appellant, therefore, we do not find any infirmity in the evidence of the recovery furnished by the prosecution. Recovery of blood stained cot P.4 is another piece of corroborative evidence coupled with the recovery of blood‑stained earth underneath it. This recovery amply corroborates the prosecution evidence as to the deceased having, been killed on the cot as deposed to by the eye‑witnesses: The medical evidence and the nature of the dimension of injuries also lends support and the manner of occurrence as narrated by the prosecution .

10. For the reasons stated above, we are of the view that the prosecution has successfully established its case against the appellant beyond any shadow of doubt. Accordingly, we have no hesitation to reject the appeal preferred by the appellant. Accordingly, we reject the appeal preferred by the appellant, sentence of death awarded to the appellant is hereby confirmed. Sentence of fine awarded to the appellant is also maintained. Reference is answered accordingly.

11. The revision petition preferred by the complainant seeking enhancement of compensation has not merit in it, inasmuch as, nothing has been brought on the record to show that the appellant has sufficient resources justifying the enhancement of the compensation. Accordingly the aforesaid revision petition is also dismissed. S.A./K‑99/L Death confirmed.