' MUHAMMAD AHSAN BHOON, J.--- Criminal Appeal No,853 of 2002 is directed against the judgment dated 16-5-2002 passed by the learned Addl. Sessions Judge, Sialkot whereby the appellants were convicted for causing the murder of Muhammad Pervaiz deceased and sentenced as under:-- ' Ansar Mahmood under section 302(b), P.P.C. Death sentence and compensation of Rs,100,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to undergo 6 months' S.I.
' Muhammad Mushtaq under section 302(b), P.P.C. Imprisonment for life and compensation of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C., in default whereof to undergo 6 months' S.I. Benefit of section 382-B, Cr.P.C. Was extended to him.
' Shafaqat Ali under section 302(c), P.P.C. Imprisonment for 7 years and compensation of Rs,20,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to undergo 1 month's S.I. Benefit of section 382-B, Cr.P.C. Was extended to him.
' Apart from the above said appeal, learned trial Court has submitted Murder Reference No,404 of 2002 for confirmation of death sentence of Ansar Mahmood or otherwise as required under section 374, Cr.P.C. We propose to dispose of both the matters through this single judgment.
2. Initially in this case F.I.R. No,99 dated 21-6-1997 under sections 302/34/109, P.P.C. Was lodged by complainant Muhammad Rafique at Police Station Phalora District Sialkot stating therein that about one month ago a quarrel took place between Muhammad Pervaiz son of complainant and Ansar Mahmood son of Mushtaq caste Jat while they were grazing cattle and Ansar Mahmood accused kept a grudge. On 21-6-1997 at about 6-30 p.m. The complainant along with his brother Muhammad Bashir and Muhammad Bashir son of Rehmat Ullah caste Arain were going on Pakka road to the village. Muhammad Pervaiz deceased was ahead of them at 10/15 Karams. Haveli of Rafiq was situated on western side of road. On the eastern side of road Ansar Mahmood son of Mushtaq, Mushtaq son of Muhammad Hussain accused armed with Chhuris, Shafqat Ali son of Mukhtar resident of Chak No,427/JB armed with pistol who was close relative of Mushtaq Ahmed, with their common intention waylaid Muhammad Pervaiz, Mushtaq Ahmad and Ansar Mahmood gave Chhuri blows to Muhammad Pervaiz deceased which hit him on left flank, left wrist, back of chest and different parts of his body. During the occurrence Shafaqat accused brandished his pistol, due to which the complainant and the witnesses could not save the deceased. Muhammad Pervaiz deceased succumbed to the injuries at the spot. On raising noise by the complainant and witnesses, the accused fled from the scene while brandishing their respective weapons. It is further stated in the F.I.R. That Muhammad Pervaiz deceased was murdered on the instigation of Khalid son of Ahmad caste Jat resident of Sayyewdaywali.
3. During the investigation the police declared Muhammad Khalid and Mushtaq Ahmad accused innocent. After submission of challan in the Court when this fact came to the notice of the complainant, he filed a private complaint against Ansar Mehmood, Muhammad Mushtaq, Shafqat Ali and Muhammad Khalid accused persons and challan case was tried along with complaint. In order to substantiate its case, the prosecution examined eight witnesses and ten Court witnesses (C.Ws.).
4. The appellants were examined under section 342, Cr.P.C. Ansar Mahmood appellant in answer to question No,9 replied as under:--- "All the P.Ws. Are inter see related while P.Ws. Sharif and Bashir son of Rehmat are the tenants of Muhammad Rafique complainant. P.W. Bashir son of Jalal is the real brother of the complainant while Ghulam. Haider P.W. Is his chachazed.
' Previously Bhanji of Mushtaq accused namely Mst. Uzma Bibi was abducted by Iftikhar and Javed accused along with their co-accused and an abduction case was registered. Iftikhar and Javed were from the brothary of Pervaiz (deceased) and were also his close friends. Mst. Fahmeeda is my Chachi and her husband Abbas Ali has been residing abroad. Pervaiz (deceased) made a plan to abduct Mst. Fahmeeda. His friends joined this plan. On the day of occurrence, Pervaiz (deceased) came along with his friends on motorcycle and tried to abduct Mst. Fahmeeda when she was going to the field for easement. Pervaiz (deceased) was armed with pistol while his friends were armed with Chhuri. Mst. Fahmeeda resisted and on her hue and cry I came at the spot and scuffled with Pervaiz (deceased) along with his friends. During this, my right hand was injured. During the scuffle pistol in the hands of Pervaiz (deceased) fell down on the ground. In the meanwhile I snatched Chhuri from the friend of Pervaiz (deceased) and in order to save my life and to save the honour of Mst. Fahmeeda and by exercising the right of self defence I injured Pervaiz from the spot on motorcycle. The police took into possession the pistol of Pervaiz (deceased) from the spot and planted the same on Shafqat accused. Fake recovery was shown. Shafqat accused is brother-in- lawof Mst. Uzma Bibi. Neither any other accused was present at the spot at the time of occurrence nor they had participated in the occurrence. No eye-witness was present at the time of occurrence." {{URDU TEXT}} ' Muhammad Mushtaq appellant in answer to question No,9 replied as under:-- "All the witnesses are inter se related. Sharif and Bashir son of Rehmat P.Ws. Are the tenants of Muhammad Rafique complainant. P.W. Bashir son of Jalal is the real brother of the complainant and Ghulam Haider P.W. Is chachazad of the complainant.
' Neither I was present at the place of occurrence at the time of occurrence nor I participated in the occurrence. I have been involved in the case just because I am the father of Ansar Mehmood accused."
' In answer to question No,9 Shafaqat Ali appellant replied as under:--- "All the witnesses are inter se related. Sharif and Bashir son of Rehmat P.Ws. Are the tenants of Muhammad Rafique complainant. P.W. Bashir son of Jalal Din is the real brother of the complainant while Ghulam Haider is his Chachazad.
' Neither I was present at the place of occurrence at the time of occurrence nor I participated in the occurrence. I have been involved in the false case just due to my relationship. On 19-6-1997 I was not present in my village. I was at Faisalabad, therefore, the question of my participation in the conspiracy does not arise.
' All the three appellants opted to appear as their own witnesses in disproof of the allegations levelled against them as required under section 340(2), Cr.P.C. But they did not appear and only produced Mst. Fahmeeda Kausar as D.W.1. The learned trial Court after hearing the parties passed the above said convictions and sentences which are being assailed through this criminal appeal."
5. Learned counsel for the appellants contended that Muhammad Mushtaq was found innocent and even he was not arrested by the police and nothing was recovered from him but he being father of Ansar Mehmood appellant was falsely roped in the case. Similarly, no role was attributed to Shafaqat Ali he being close relative of the main accused was involved in the case. Recovery on Muhammad Mushtaq was planted one whereas the occurrence was committed by Ansar Mehmood accused in his self-defence when deceased tried to abduct her paternal aunt. Mst.
Fahmeeda and she appeared as D.W.1 and supported the defence version.
6. On the other hand, learned D.P.-G. On behalf of the State supported the impugned judgment and contended that all the three eyewitnesses were consistent and there is no contradiction in their statements and recoveries were effected from Ansar Mehmood and Muhammad Mushtaq. Hence no lenient view should be taken.
7. Heard. Record perused.
8. The ocular account in this case was furnished by Muhammad Rafiq complainant (P.W.5), father of the deceased. Muhammad Bashir son of Rehmat Ullah, a tenant of the complainant and Muhammad Bashir son of Jalal, a brother of the complainant and paternal uncle of the deceased.
In the F.I.R. The role attributed to Ansar Mahmood and Muhammad Mushtaq appellants was that they simultaneously inflicted Chhuri blows on the person of Muhammad Pervaiz deceased and same was the deposition of Muhammad Bashir (P.W.3) son of Rehmat Ullah and Muhammad Bashir (P.W.4) son of Jalal Din in their statements under sections 161, Cr.P.C. But during the trial they improved their version and gave specific role of giving Chhuri blows by Ansar Mahmood appellant on the left flank and right flank of the deceased whereas two Chhuri blow were attributed to Muhammad Mushtaq appellant. Said improvements were duly confronted during the cross- examination, hence in this case the principle of sift grain from the chaff would be applicable qua improvements and role ascribed to the appellants. In this case during the investigation Muhammad Mushtaq appellants was found innocent and even he was not arrested by the police and he is also father of the principal accused Ansar Mahmood and that is the reason that the complainant party being dissatisfied with the investigation filed private complainant. It would be important to note here that when Muhammad Mushtaq appellant was not arrested during the investigation then the recovery of Chhuri from him does not appeal to reason and plantation of the same on Muhammad Mushtaq appellant cannot be ruled out being head of the family. Similarly it is an admitted fact that appellant Shafaqat Ali was not attributed any role for causing injury to deceased or any P.W. And nothing was recovered from him and it is evident from the evidence of Riaz Ahmad S.-I. (C.W.8) that Shafaqat had not participated in the occurrence rather he was on a Tanga when the occurrence did take place which did not stop at the place of occurrence.
9. In view of the above discussion while applying the principle of sift grain from the chaff we disbelieve the ocular account to the extent of Muhammad Mushtaq and Shafaqat Ali appellants as there is no other independent corroboration against them whereas the ocular account to the extent of appellant Ansar Mahmood is confidence inspiring.
10. The motive in the alleged occurrence could not be proved as there was no direct evidence of motive. However, Ansar Mahmood took the plea that the occurrence took place when Muhammad Pervaiz deceased tried to forcibly abduct Mst. Fahmeeda Bibi and in self defence to save the honour of Mst. Fahmeeda Bibi he committed the murder but that plea is not borne out from the evidence except the statement of Mst. Fahmeeda Bibi (D.W.1) who is real paternal aunt of Ansar Mahmood appellant and in our view she came forward just for the rescue of his nephew as the same plea never surfaced in the investigation as well.
11. The medical evidence shows that the deceased was done to death by a sharp edged weapon as is evident from the statement of Dr. Bashir Ahmad Mughal (C.W.3) who found seven sharp edged injuries on the body of Muhammad Pervaiz deceased as per postmortem report (Exh.P.K).
The Chhuri was recovered from Ansar Mahmood appellant and causing of Chhuri blows was also admitted by him so the recovery of Chhuri P.2 which was found blood-stained according to report of Chemical Examiner, is a further piece of corroboration against the said appellant.
12. In view of above discussion, we are of the considered view that the prosecution has proved its case beyond any shadow of doubt against Ansar Mahmood appellant whereas the case against Muhammad Mushtaq and Shafaqat Ali appellants is doubtful without any independent corroboration. Appeal to their extent is allowed, their convictions and sentences are set aside and they are acquitted of the charge. They shall be released forthwith, if not required in any other case.
13. As far as the sentence of Ansar Mahmood appellant is concerned, we have found that the occurrence in this case took place on 21-6-1997 whereas his statement under section 342, Cr.P.C.
Was recorded on 9-2-2000 wherein age of appellant was recorded as 21/22 years, which fact would show that at the time of occurrence he was below the age of 18 years and this fact is also supported by a document Exh.D.D which is School Leaving Certificate, according to which the date of birth of Ansar Mahmood appellants was 4-6-1981, meaning thereby that at the time of alleged occurrence he was about 16 years of age. Similarly it was also an admitted fact that the occurrence took place on a thoroughfare and it was admitted by Riaz Ahmad (C.W.8) that the occurrence took place due to exchange of hot words between Ansar Mahmood appellant and Muhammad Pervaiz deceased when Ansar Mahmood appellant was passing nearby the deceased on a Tanga, so this fact would show that the occurrence did not take place in the manner as alleged by the prosecution, hence the actual cause of occurrence which triggered the incident stood shrouded in mystery. In our view there are above explained mitigating circumstances in favour of Ansar Mahmood appellant, so we convert the death sentence of Ansar Mahmood appellant into life imprisonment with benefit of section 382-B, Cr.P.C. However, the sentence of compensation shall remain intact. With the above said modification this appeal is disposed of.
14. Murder reference is answered in the negative.