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Criminal Appeal No. 662 and Murder Reference No. 204 of 1983, heard on 8th June, 1987.

---S.302--Ocular evidence--Whether can form safe basis for conviction--Occurrence near house of deceased--Complainant real brother of deceased and other witness both explaining purpose of their visit to place of occurrence--Presence of witnesses found probable and natural--Witnesses having no motive to falsely implicate accused- No previous enmity between parties--Evidence inspiring confidence- Ocular evidence, held, was rightly believed by Trial Court--Conviction under S.302, P.P.C. maintained in circumstances.

---S.302--Question of sentence--Complainant and deceased making sudden programme for going to Bazar--Accused having no knowledge of such programme--Weapon of offence an ordinary Chhuri used in houses--House of accused near place of occurrence--Accused picking up Chhuri from his house and causing injuries to deceased, could be justifiably inferred--No previous history of serious enmity betw6en parties--Occurrence ensuing on chance meeting--Accused causing one fatal injury during altercation--Held, there was no possibility of accused sitting in ambush for attacking deceased and it was not a premeditated attack and thus was not a case of extreme penalty--Death sentence altered to imprisonment for life in circumstances.

Raja Muhammad Anwar, Zia-ud-Din and Mian Ahmad Sher Lall for Appellant.

A.K. Chaudhry for A.-G. for the State.

Allah Yar Malik for the Complainant.

Date of hearing: 8th June, 1987.

.--Khalid son of Ahmad Khan, aged 18 years, resident of Mohallah Chandanwala, Jhang Sadar, was tried by Sessions Judge, Jhang for the murder of Muhammad Fazil aged 32 years, who vide his judgment dated 11-12-1983 convicted him under section 302, P.P.C. and sentenced him to death and a fine of Rs. 10,000 or in default to undergo three years' rigorous imprisonment. The fine, if recovered, was ordered to be paid to the widow of the deceased as compensation under section 544-A Cr.P. C. against his conviction and sentence, the convict has filed appeal (Criminal Appeal No. 662 of 1983) and the trial Court has sent reference (Murder Reference No. 204 of 1983) to this Court under section 374, Cr.P.C. for confirming death sentence awarded to the appellant. We propose to dispose of both these matters by this single judgment.

2. The occurrence took place on 7th March 1983, at 9-30 a.m. in the area of Mohallah Chandanwala, Jhang Saddar at a distance of about one mile from police station Jhang. The incident was reported at the police station by Manzur Ahmad (P.W.6), elder brother of Muhammad Fazil (deceased), the same day at 9-55 a.m. vide F.I.R. Exh. P.D., which was recorded by Muhammad Hanif Sub-Inspector (P.W.10).

3. Prosecution case briefly is that the appellant resided near the house of Muhammad Fazil (deceased) who was carpenter by profession. The appellant started visiting the house of the deceased frequently on the pretext of getting some woodwork done by the deceased and availing these occasions he tried to develop illicit connection with Mst. Sakina, wife of the deceased, who complained to her husband against the appellant. A day before the occurrence the appellant again visited the house of the deceased. At that time Muhammad Fazil (deceased) and his elder brother Manzur Ahmad (complainant) were present there. He asked the deceased to do some work for him, whereupon the deceased refused telling him that he should not visit his house in future. This led to exchange of abuses between them. The appellant left the place threatening the deceased that he would avenge the insult. On the next day i.e. 7-3-1983, Manzur (P.W.6) in order to enquire after the health of deceased's daughter paid visit to his house. At about 9-30 a.m. both brothers went towards Bazar to make certain purchases. When they reached near the house of Master Khuda Bakhsh, the appellant armed with Chhuri emerged from behind the boundary wall of 'Nai Eidgah' and attacked and injured Fazil deceased with a Chhuri. One of the blows that landed on the chest proved fatal. The deceased died on the spot. The occurrence was witnessed by Nur Muhammad (P.W.8) husband of the sister of deceased's brother-in-law and Muhammad Ali (not produced), besides Manzur Ahmad complainant (P.W.6). The appellant was seen running away from the spot by Mst. Sakina (P.W.9) wife of the deceased. Leaving the dead body in the care of the P.Ws., Manzur Ahmad P. W.6 went to the police station and lodged report Exh. P. D. with Muhammad Hanif Sub-Inspector (P.W.10).

4. Muhammad Hanif, Sub-Inspector (P.W.10) after recording the F.I.R. Exh. P.D. reached the Dlace of occurrence at 10-a0 a.m. He prepared injury statement Exh. P. G. and inquest report Exh. P. G. /1 of the deceased and sent the dead body for post-mortem examination under police escort. He also removed blood-stained earth from there and made its sealed parcel vide memo Exh. P.F. He arrested the appellant on 8-3-1983, who on the following day (9-3-1983) led to the recovery of blood-stained Chhuri (P.5) from a grove of trees near 'Nai Eidgah' which was seized after making its sealed parcel vide memo. Exh. P.C. in the presence of Muhammad Charagh (P.W.5). Blood-stained earth as well as Chhuri Exh. P.5 were found as stained with blood of human origin vide Chemical Examiner's report Exh. P.J. and Serologist's report Exh. P.K.

5. Dr. Muhammad Afzal, Medical Officer, D.H.Q. Hospital, Jhang who conducted autopsy on the dead body of Muhammad Fazil on 7-3-1983 at 3-15 p. m. found the following injuries on it:

(1) A stab wound 2.5 c.m. x 1.0 c.m. x 11 c.m. deep on left side of chest, 6 c. m. from left nipple on outer side.

(3) A stab wound 0.5 c.m. x 0.3 c.m. x 0.5 c.m. on left lateral side of chest, 6 c. m. above injury No.1.

(3) Incised wound 3 c.m. x 2 c.m. skin deep on left side of abdomen 7 c. m. from umblicus.

(4) Incised wound 4 c.m. x 1 c.m. x skin deep in the mid line of abdomen 1 c. m. above umblicus.

(5) Superficial cut 6 c.m. x 0.5 c.m. on outer side of thigh.

According to the doctor, all the injuries were ante mortem caused with sharp-edged weapon. Injury No.l was found fatal which was sufficient to cause death in the ordinary course of nature. Rest of the injuries were simple. The deceased had died of the injuries immediately and the time between death and post-mortem was about 5 hours. He further stated that injuries No.l and 2 were result of one blow and also injuries No.3 and 4 were result of one blow.

6. At the hearing, the prosecution examined 10 witnesses in support of its case. Manzur Ahmad (P. W.6) and Nur Muhammad (P. W.8) narrated the occurrence while Chiragh (P.W.5) proved the recovery of blood-stained Chhura (P.5) from the appellant made at his pointation while Dr. Muhammad Afzal (P.W.7) proved that the deceased had died of the injuries caused on his person with sharp-edged weapon.

The appellant, when examined under section 342 Cr.P.C. denied the allegation of murder and also recovery of blood-stained Chhura (P.5) and examined no witness in his defence.

8. Learned trial Court on consideration of the material on record believed the ocular testimony, recovery of the weapon of offence coupled with the evidence of motive and held the charge of murder as established beyond reasonable doubt against the appellant and convicted him under section 302, P.P. C. and sentenced him as indicated above. It may be pointed out that the trial Court while dealing with the occurrence in para. 7 of the judgment observed as under:

"It is correct that the accused was not in the know at the time of departure of the deceased and P.W.6 from their house and the act of the accused cannot be termed as a pre-planned act, but again a reference to Exh. P.H. and Exh. P.B. and Exh. PB/1 would show that the outer door of the house of the deceased quite visible from Toba Station Road because there is only agricultural land in between the house of the deceased and the said road excepting a 3 to 4 feet high boundary wall of the Eidgah. The possibility of the accused, therefore, having seen the deceased alongwith his brother proceeding through the lane towards, the said road, when this accused per chance happened to be present at the said road cannot be ruled out. For the purpose of committing murder, it is not necessary that an accused should have pre-planning and such things be at the spur of moment when a person happens to see his opponent coming on a thoroughfare."

9. Learned counsel for the appellant at the outset submitted that he did not challenge the conviction of the appellant on merits and would address on the point of sentence only. Relying on the above quoted finding of the trial Court he submitted that appellant was entitled to lesser penalty for the reason that he on the day of occurrence was young boy of about 17 years age; that there was no pre-planning or premeditation on his part to commit murder of the deceased rather it all happened on their meeting each other per chance and that since the motive lay on the side of the deceased, the possibility of his having abused the appellant causing provocation to him was also not ruled out. Learned counsel appearing on behalf of the State assisted by learned counsel for the complainant submitted that the sentence of death awarded to the appellant was quite justified in the circumstances of the case and need not be interfered with.

10. We have carefully considered the contention of the learned counsel for the parties and also perused the record. Although the learned counsel for the appellant has not challenged the conviction of the appellant on merits yet we thought it proper- to go through the evidence of the eye-witnesses in order to satisfy ourselves if the same was reliable and can form safe basis for conviction on a capital charge. The occurrence took place near the house of the deceased. Manzur (P.W.6) is the real brother of the deceased who stated to have paid visit to the house of the deceased in order to enquire after the health of ailing daughter of the deceased and from there both the brothers made a programme to go to the Bazar to make certain purchases. Nur Muhammad (P.W.8) stated to have come to Mohallah Chandanwala (the place of occurrence) at the relevant time for contacting Mistry Muhammad Hanif whom he wanted to engage for doing some masonry work for him and saw the occurrence. Presence of these two eye-witnesses on the spot thus appears to be quite probable and natural. They have no motive to falsely implicate the appellant and their evidence inspires confidence. We therefore, find that the learned trial Court rightly believed ocular testimony and on its strength convicted the appellant under section 302, P.P. C. Consequently, we maintain the conviction of appellant recorded by the trial Court on murder charge.

11. This brings us to the question of sentence. Having considered the entire evidence on record we are inclined to agree with the finding of the learned trial Court quoted in para 8 above that since the complainant and the deceased had suddenly made a programme to go to the Bazar for making certain purchases at the fateful time o which the appellant had no knowledge therefore it was not possible for the appellant to have sat in ambush behind the boundary wall of Nai Eidgah for attacking the deceased, hence it was not a premeditated or pre-planned attack, rather it appears to have happened at the "spur of moment" when both deceased and the appellant came across each other per chance "on a thoroughfare". It, therefore, seems to us that on account of previous day's quarrel, the deceased and the appellant coming across each other might have exchanged hot words leading to the instant occurrence. The assertion by the prosecution witnesses that the appellant used a "Chhura" (big dagger) for causing injuries to the deceased appears to be an exaggeration on their part, because in that case there would have been more than one extensive and serious injuries on the person of the deceased but the medical evidence shows that excepting one fatal injury in the chest the rest (mostly in the abdominal region) are skin deep or superficial in nature. We have seen the weapon of offence (P.5) which appears t be an ordinary Chhuri commonly used by villagers in their houses, which by no standard, can be called a "Chhura". Mst. Sakina (P.W.9) stated that the house of the appellant is near her house, therefore, it can be justifiably inferred that during the altercation the appellant picked up the Chhuri from his house and caused injuries to the deceased. There is no previous history of serious enmity existing between the parties. The element of premeditation is also absent. S causing of one fatal injury (others being simple) to the deceased by., the appellant during course of altercation ensued on a chance meeting, we find that it is not a case for awarding extreme penalty. Therefore, while maintaining conviction of the appellant under section 302, P.P.C. we hereby alter the sentence of death awarded to him to imprisonmen for life. The sentence of fine imposed on him by the trial Court is however, maintained. With this modification in sentence we dismiss the appeal. Benefit of the provision of section 382-B, Cr.P.C., shall be given to the appellant.

12. The death sentence awarded to the appellant is not confirmed.

S.A./K-26/L Sentence altered.

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