' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,674 of 2000 filed by Riaz Hussain-appellant and Criminal Appeal No,9 of 2001 filed by Sadiq Hussain and Ashiq Hussain-appellants, who were convicted and sentenced by the learned Sessions Judge, D.G. Khan, vide his judgment dated 15-12-2000 as under:-- ' Riaz Hussain, death and compensation of Rs,20,000 or in default six months' S.I. Under section 302(b), P.P.C. Ashiq Hussain and Sadiq Hussain, imprisonment for life each,compensation of Rs,20,000 each or in default six months' S.I. Each under section 302(b), P.P.C. They were also convicted under section 324, P.P.C. And sentenced to ten years' R.I. And compensation of Rs,5,000 each or in default imprisonment for two months.
' Murder Reference No,96 of 2001 for confirmation or otherwise of death sentence of Riaz Hussain shall also be replied through this single judgment.
2. Brief facts of the case as mentioned in F.I.R. Exh.P.E., are that two days prior to the occurrence the complainant was present with Ellahi Bakhsh near their house when Ashiq Hussain, Riaz Hussain and an unknown person having 'Gandami' colour, round faced, normal physique, tall in height and with small moustaches passed near them. Ellahi Bakhsh objected that passage due to young female house inimates whereupon all the three threatened with dire consequences if they were again refrained to pass therefrom. The complainant and his father got terrified and the accused daringly went northwards. The complainant reported that yesterday evening he accompanied by Ellahi Bakhsh and Allah Bakhsh, uncle, went to the houses of the accused and complained to their parents who promised to instruct the accused who were not present in the houses. According to F.I.R., on 24-1-1997 at about 2-00 p.m. The complainant with his brother Abdul Karim and Ellahi Bakhsh were working in the vegetable field near their house when Ashiq Hussain and Riaz Hussain both armed with Chhuries and unknown person armed with Sota emerged from north side. Riaz Hussain raised lalkara for teaching them a lesson for objecting their passage and for having complained to their parents and inflicted a Chhuri blow to Ellahi Bakhsh at his right side of the neck, who fell down bleeding. The complainant rushed to rescue Ellahi Bakhsh whereupon unknown person gave him a Sota blow at his left side. The complainant snatched the Sota and inflicted Sota blows at the head of Ashiq Hussain who fell down and then got up and caused Chhuri blow at his right upper arm. The complainant again, in self-defence, gave Sota blows to Ashiq Hussain, who again fell down. Meanwhile, Allah Bakhsh got attracted on alarm and reached the spot and witnessed the occurrence. The complainant and Abdul Karim tried to catch hold of the accused but Riaz Hussain and unknown person ran away. They supported Ellahi Bakhsh and found that he had succumbed to the injuries. According to F.I.R., Riaz Hussain and Ashiq Hussain etc., notorious vagabonds in the area, oftenly evil intentioned used to pass near their houses which was objected and complained. On account of aforesaid grievance, the F.I.R. Recited that, the accused murdered Ellahi Bakhsh and caused injuries to the complainant. The complainant leaving behind Abdul Karim and Allah Bakhsh with the dead body proceeded to the Police Station and reported the matter.
3. After registration of the formal F.I.R., investigation of the case was taken over by Mohib Ali Baloch, Inspector/S.H.O./P.W.10. He proceeded to the place of occurrence, took over the dead body of the deceased, prepared injury statement Exh.PB/4 and inquest report Exh.PB/3. He also prepared injury statement of Ashiq Hussain and got him medically examined. He took into possession Chhuri P.6 lying near Ashiq Hussain vide memo. Exh.P.H. He collected blood-stained earth from the spot vide memo. Exh.P.H. And also taken into possession Sota P.7 and P.8 (to pieces) vide memo. Exh.P.G.
Ashiq Hussain was formally arrested on 6-2-1997 after his discharge from the Hospital. On 24-2- 1997 Riaz Hussain was arrested, who produced blood-stained Chhuri P.9, which was taken into possession vide memo. Exh.P.K. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 10 witnesses in all, thereafter, the learned DDA tendered reports of Chemical Examiner Exh.P.N. And Exh.P.O. And the reports of Serologist Exh.PP and Exh.PQ and closed the prosecution case. In their statements recorded under section 342, Cr.P.C. The accused pleaded innocence. Dr. Muhammad Ashfaq, who examined Ashiq Hussain, was produced as D.W.1.
5. The learned counsel for Riaz Hussain-appellant submits that it is a case of two versions; that Ashiq Hussain received five injuries and remained in Hospital for 13 days; that Ashiq Hussain had pleaded the right of self-defence; that the injuries on the body of complainant are self-suffered; that the story of prosecution is highly improbable; and that Riaz Hussain was arrested after one month of the occurrence and recovery was effected after one month. The learned counsel placed reliance on the case reported as 1985 SCM R 1573 and submits that the motive is shrouded in mystery. He also relied upon the case reported as PLD 1962 SC 502. The learned counsel further contends that P.Ws.6 and 7 are real brothers and no independent witness has been produced. Riaz Hussain is behind the bars for more than nine years; that the mitigating circumstances exist in favour of the appellant and death sentence is not called for as far as Riaz Hussain-appellant is concerned.
6. The learned counsel for Ashiq Hussain submits that he received injuries during the occurrence and due to those injuries he became disabled that he has already undergone 2-1/2 years of his sentence, according to learned counsel, that sentence is sufficient. The learned counsel appearing on behalf of Sadiq Hussain-appellant submits that as far as Sadiq Hussain is concerned, he was not named in the F.I.R,; that no identification parade was held; that he was arrested after two years of the occurrence, no case is made out against him.
7. The learned counsel for the State submits that it is a case of promptly lodged F.I.R.; that the accused party was aggressor in this case; that recovery was effected from Riaz Hussain; and that the ocular account is corroborated by the medical evidence and supports the prosecution case.
8. We have heard the learned counsel for the parties at length and scanned the entire record of the case minutely. The deceased in this case is Elahi Bakhsh. Out of three appellants Riaz Hussain has been awarded death sentence, while Ashiq Hussain and Sadiq Hussain life imprisonment. The occurrence took place on 24-1-1997 at about 2-00 p.m. And the matter was reported to the police at about 3-00 p.m. According to F.I.R., it was Riaz Hussain, who had caused injury with knife on the neck of the deceased, while Ashiq Hussain caused injury with knife on the right arm of Ghulam Yasin-complainant/P.W. The unknown accused, who was later on named as Sadiq Hussain, gave sota blows to Ghulam Yasin. Ghulam Yasin was examined' by Dr. Abdul Ghafoor Leghari/P.W.1 on the day of occurrence, who observed two incised wounds and multiple abrasions on the lower part and right chest on the body of Ghulam Yasin. The findings of the learned trial Court that these injuries on the person of Ghulam Yasin are self-suffered, we are not going to believe. Although during cross-examination the Doctor has stated that possibility that the injuries might be caused by friendly hands, but there is no conclusive finding of the Doctor in this regard. Riaz Hussain caused only one injury and did not repeat. The motive is shrouded in mystery. Ashiq Hussain co- accused had also received five injuries. Four are on his head, though none was declared dangerous to life. Passing reference was also given in the first information report by the complainant that in self-defence Ashiq Hussain was also injured but it was not stated specifically that where those injuries were caused on the person of Ashiq Hussain.
9. As far as Sadiq Hussain is concerned, his name was not mentioned in the F.I.R. He was arrested after two years of the occurrence, so the case of Sadiq Hussain is totally different from the case of Ashiq Hussain and Riaz Hussain. Hence, while giving the benefit of doubt to him, he is acquitted of the charge. He is on bail; his bail bonds are cancelled and the sureties are discharged.
10. As far as Riaz Hussain is concerned the motive is shrouded in mystery. Only one injury is attributed to him. Ashiq Hussain co-accused has also received five injuries, so in the circumstance's of the present case death sentence is not called for which is converted into life imprisonment under section 302(b), P.P.C. With benefit of section 382-B, Cr.P.C. As far as the compensation is concerned, the same would remain intact along with default. Death sentence is not confirmed. Murder Reference is answered in the negative.
11. As far as Ashiq Hussain is concerned, he received five injuries, four injuries were on his head, the most vital part of the body of a person. He remained behind the bars for a period of about 2-1/2 years. Thus, we are of the opinion that in the circumstances of the case the sentence which he has already served out, would meet the ends of justice. Thus, he is sentenced to the period already undergone by him. He is on bail; his bail bonds are cancelled and the sureties are discharged.
12. Both the appeals stand disposed of.