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Criminal Appeal No. 1408 of 1980 and Murder Reference No. 55 of 1982, heard on 26th March, 1984.

--S. 302/34-Murder-Appreciation of evidence-Natural witness, having no enmity against accused to falsely implicate him, corro borated by another natural witness, held, could not be discarded merely because such witness was relative of deceased.-[Witness].

---S. 302/34-Murder--Appreciation of evidence-Eye-witnesses--corroborated by medical evidence- Minor discrepancies about taking of deceased to dispensary or to police station-Occurrence taking place in 1972 and because of absconsion of accused such witnesses examined in 1980-Such discrepancies, held, were bound to occur due to lapse of time and, therefore, could not demolish pro secution's case.

-- S. 302/34-Motive-Prosecution's version that accused nursed a grudge against deceased because he was opposed to deceased's engagement with his relative girl--Such motive established by evidence of prosecution witness, another relative of that girl-Non-examination of girl in question or for that matter her father, held, would not disprove motive in circumstances.-[Motive].

---S. 302/34-Abscondence of accused after occurrence-Accused not been able to explain abscondence for a period of eight years-- Brothers of accused tried and convicted in his absence-Accused, held, could not say that he did not know occurrence and lend corroboration to prosecution case against accused in circumstances. [Abscondence].

---S. 302/34-Murder-Both parties injured-Parties in such a case, held, never came out with true story and there was always an attempt to minimise one's own role.

---Ss. 302/34 & 304, Part I--Murder-Physical contest between parties on coming across each other in street-Prosecution witness, brother of accused, and deceased injured in said contest-Accused, in heat of passion caused solitary blow to deceased which proved fatal-Fact that accused did not repeat blow although there was nothing to prevent him from doing so, held, led to conclusion that accused's intention was not to kill deceased but to teach him lesson as indicated in F. I. R.--Offence of accused, therefore, would more appropriately fall under S. 304, Part I, P. P. C. instead of S. 302, P. P. C. in circumstances.

Mian Aftab Farrukh for Appellant.

Muhammad Khalid Alvi for A. G. for the State.

Date of hearing: 26th March, 1984.

Muhammad Amin son of Shahab Din (40), Caste Dogar, resident of Khairpur Sadat, Tebsil Alipur, District Muzaffargarh was tried alongwith Muhammad Siddique, Abdul Ghani and Fazal Din for the murder of Roshan Din on 15th October, 1972 at 4 p. m. with a hatchet and for causing hurt to Ilam Din P. W. The learned Sessions Judge, Muzaffargarh vide his order dated 4th December, 1980 convicted the appellant under section 302, P. P. C. and sentenced him to death and a fine of Rs. 2,000 or in default to suffer R. I. for one year. The fine, if realized was ordered to be paid to the heirs of the deceased as Com pensation.

We have before us the appeal and the connected murder reference.

2. About two months before the occurrence one Qadir Bakhsh pro mised to give the hand of his daughter Mst. Sattaran to the appellant. Roshan Din deceased and members of his brotherhood opposed the said proposal.

On the fateful day, the appellant and his companions attacked the deceased while he was coming out of the mosque alongwith Ilam Din P. W. 7. The appellant who was armed with a hatchet inflicted a blow on the head of the deceased-as a result of which he fell injured. Abdul Ghani co-accused held Ilam Din P. W. in Japha while Siddique co-accused caused a hatched blow to him. Fazal Din accused gave a stick blow to him. The occurrence was witnessed by Muhammad Ismail P. W. 6, Ilam Din P. W. 7, Mehar and Maqbool (given up). The deceased was removed to Alipur dispensary in a Tonga where he succumbed to the injuries. Ilam Din P. W. 7 lodged the F. I. R. Exh. P. H. with A. S. I. Muhammad Bakhsh at the outer gate of P. S. Alipur on the same evening at 7-45 p. m. The dead body of Roshan Din deceased was lying outside Police Station at that time. A. S. I., Muhammad Bakhsh prepared the injury statement Exh. P. K. and the inquest report Exh. P. L. of the deceased.

S. I. Ghulam Siddique P. W. 12 investigated the case. He took into possession blood-stained turban P. 4 from the spot through memo. Exh. P. G. He arrested Muhammad Siddique and Abdul Ghani on 18th October, 1972. Fazal Din was arrested on 4th January, 1973. The appel lant who was absconding could not be arrested. He was arrested on 4th January, 1982 by Vehari Police. In his absence, his co-accused were tried and convicted on 30th July, 1974 by the learned Sessions Judge, Muzaffargarh under section 302, 307/34, P. P. C. and sentenced to imprisonment for life and two years' R. I. each. On appeal, however, their conviction was altered to one under section 324/34, P. P. C. and their sentences reduced to the imprisonment already undergone by them.

3. Dr. Saeed Ahmad Choudhry P. W. 5 conducted autopsy on the dead body of Roshan Din deceased on 16th October, 1972 at about 8 a. m. and found the following injuries:-

(1) An incised wound 5 " x 1' on the left side of top of the head oblique going towards middle, cavity deep, brain coming out.

(2) An abrasion " x ' in front of right shoulder.

There was a 5 " long fracture of the skull underneath injury No. 1. Stomach contained two ounces of food. Small intestine contained digested food and the large intestine contained faecal matter.

Death occurred due to shock and haemorrhage due to injury No. 1 which was fatal caused by a sharp-edged weapon. Injury No. 2 was simple caused by blunt weapon. The time between injury and death was one hour and between death and post-mortem about 12 to 18 hours. Exh. P. C. is the post-mortem report while Exhs. P. C./1 and P. C./3 are the diagrams of the injuries.

The same doctor medically examined Ilam Din P. W. 7 on 15th October, 1972 and found the following injuries on his person:-

(1) An incised wound " x ' x muscle deep on the left buttock upper part 1f from the middle line.

(2) A contusion on the left side of the top of the head, half inch away from mid line 3/5" x .

(3) Scratch 2' x 1/8' in front of the lower part of left upper arm.

(4) An abrasion ' x 1/2' inner side of right ankle.

(5) Scratch " x 1/8" of an inch inner side of the right heal of head.

Injury No. 1 was caused by sharp-edged weapon and rest by blunt weapon. The injuries were simple in nature. Exh. P. D. is the medico-legal report and Exh. P. D./1 is the diagram of the injuries.

The same doctor also examined Abdul Ghani co-accused on 19th October, 1972 and found the following injuries on his person:-

(1) A lacerated wound with scrab formation ' x " on the top of skull.

(2) An abrasion with soap 5" x 1/8" on the back of the right elbow.

(3) An abrasion with scap 5" x " on the back of right forearm middle.

(4) A lacerated wound 1' x ' on the back of lower part of right scapula.

(5) An abrasion ' x 1/3' in front of middle finger of right hand.

The injuries were simple in nature caused with blunt weapon within period of 3 to 4 days.

4. The appellant pleaded not guilty to the charge and denied the prosecution allegations. He denied having absconded after the occurrence. As to his involvement he stated "that his brother Abdul Ghani was suspected by the complainant party of having illicit intimacy with their women and assaulted him on that score on 15th October, 1972 while he was on his way to his land and that he had been implicated being a brother of Abdul Ghani and for being prominent and physically strong member of his family".

5. He produced certified copies Exhs. D. B. and D. C. of the state ments of Hassan and Muhammad Ramzan F. Cs. to show inconsistency between the statements of the P. Ws. about the taking of the deceased to the Police Station at the time of making the F. I. R.

6. At the trial, the prosecution examined Muhammad Ismail P. W. 6 and Ilam Din P. W. 7 as ocular witnesses. The absconsion of the appel lant was proved by Ghulam Haider F. C. P. W. 4 and Ghulam Siddique S. I. P. W. 12.

7. Relying upon the ocular testimony, the motive and the circum stance of the abscondence of the appellant the trial Court convicted and sentenced the appellant as stated above.

8. Assailing the judgment, the learned counsel for the appellant contends that the conclusion derived by the learned trial Court is not supportable by the evidence on record, that the witnesses being interested should not have been relied upon without any corroboration and further that the motive is very weak.

9. Ilam Din P. W. 7 besides being injured is a natural witness because he is the resident of the same street in which the occurrence had taken place. His evidence cannot be discarded merely because of his relationship with the deceased. He stands corroborated by Muhammad Ismail P. W. 6 who is an independent witness. He too is a natural witness as he was coming out of the mosque after saying the prayer with the deceased when the occurrence took place. He had no enmity against the appellant to falsely implicate him. Ilam Din P. W. 7 also had no enmity or grievance against the appellant. Both the eye-witnesses stand corro borated by the medical evidence. The minor discrepancies in their state ments about the taking of the deceased to the dispensary or to the Police Station cannot demolish the prosecution's case. The occurrence too place in 1972 and because of the abscondence of the appellant the P. Ws, were examined in 1980. Due to lapse of time minor discrepancies were bound to occur. The motive also stands proved. From the very beginning the prosecution version is that the appellant nursed a grudge against the deceased because he was opposed to his engagement with his relative Mst. Sattaran. The non-examination of Mst. Sattaran or her father Qadir C Bakhsh will not disprove the matter particularly, when it stands established by the evidence of Ilam Din P. W. 7 a relation of Mst. Sattaran. The abscondence of the appellant after the occurrence ends further corrobora tion to the prosecution case. The appellant has not been able to explain lo his abscondence for such a long time. He cannot say that he did not know the occurrence because in his absence his brothers, namely, Siddique and Abdul Ghani were tried and convicted. .

10. The prosecution case is that the appellant had declared that the deceased and llam Din would be taught a lesson for disfavouring his marriage with Mst. Sattaran and saying this caused a solitary blow on the bead of the deceased. According to Ilam Din P. W. the news about the proposed marriage between the appellant and Mst. Sattaran became public about two months prior to occurrence. There is nothing on the record to show the manner and the extent to which the deceased had resented to the marriage between them and what was the reaction of the father of Mst. Sattaran, had he agreed to it or not. Even, no evidence has been led to show whether the proposal had been dropped or retained. However, since the prosecution's consistent stand is that the deceased was opposed to this tie the appellant being directly concerned would not have been happy with him. In this case both the parties are injured and it is g well-settled that in such a case parties do not come out with the true story and there is always an attempt to minimise one's own role. The prosecu tion has not explained the injuries of Abdul Ghani brother of the appellant. He had five injuries on his person. Keeping this circumstance in view we think that in all probability, hot words were exchanged between the parties when they came across each other in the street followed by a physical contest in which Abdul Ghani aforementioned and the deceased were injured. In the heat of passion the appellant caused a solitary blow to the deceased which proved fatal. The fact that he did not repeat the blow although there was nothing to prevent him from doing so leads to the conclusion that his intention was not to kill the deceased but to teach a lesson to him as is the case of the prosecution in the F. I. R. In the circumstances the offence committed by him would more appropriately fall under section 304, Part-I, P. P. C. instead of section 302, P. P. C.

11. Accordingly, we alter his conviction from section 302, P. F. C. to section 304, Part-1, P. P. C. and sentence him to 10 years' R. I. and a fine of Rs. 2,000 or in default to undergo R. I. for one year. He is further directed to pay Rs. 10,000 as compensation to the heirs of the deceased or in default to undergo six months' R. I. under section 544-A, Cr. P. C.

The appellant shall be given the benefit of section 382-B, Cr. P. C.

12. The appeal is accepted to the above extent.

13. The death sentence is not confirmed.

M. Z. M. Appeal partly accepted.

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