' TARIQ SHAMIM, J.--- Mohabat Ali son of Muhammad Ismail and Muhammad Aslam, Qurban Ali and Amanat Ali son of Muhammad Ismail were tried by the learned Additional Sessions Judge, Sheikhupura, in case bearing F.I.R. No:20 of 2002, dated 18-1-2002, registered with Police Station Bhikhi, for offence under sections 302 and 34, P.P.C. The learned trial Judge by virtue of his judgment dated 30-10-2002 found them guilty of the murder of Muhammad Ashiq, deceased and convicted and sentenced them as under:-- Muhammad Aslam Under section 302(b), P.P.C. Sentenced to death.
Mohabbat Ali, Qurban Ali and Amanat AliUnder section 302(b)/34, P.P.CImprisonment for life with a and. Direction to pay Rs,50,000 iich as compensation to the gal heirs of the deceased under section 544-A, Cr.
P.0 . And in default thereof to undergo rigorous imprisonment for six months.
2. The appellant by filing this appeal have called in question the conviction and sentences awarded to them vide the impugned judgment, whereas the learned trial Judge has sent Murder Reference No,788 of 2002 for confirmation of death sentence awarded to Muhammad Aslam, appellant No,1.
3. Precisely the allegations against the appellants, according to the F.I.R. Which was got registered on 18-1-2002 by Muhammad Yaqoob (P.W.8), are that sister of the complainant namely Balqees Bibi was married with one Sakhawat Ali son of Muhammad Ismail for the last 9/10 years who was living amicably with her husband. Ashiq (deceased), brother of the complainant, developed relations with Fazeelat daughter of Muhammad Ismail and sister of said Sakhawat Ali and when they asked for the hand of Fazeelat Bibi, her family members refused. The relations between Muhammad Ashiq and Fazeelat Bibi developed and he got married with Fazeelat Bibi three years prior to the occurrence. From the wedlock, a male issue was born. Ashiq (deceased) and Aslam, Amanat Ali, Qurban Ali, appellants, Sakhawat Ali and Naziran Bibi wife of Muhammad Ismail used to quarrel with each other. A few days before the occurrence, it came to the knowledge of the complainant that Muhammad Ismail, Naziran Bibi (father and mother in law respectively of Ashiq deceased) and Sakhawat Ali brother in law of the complainant had instigated Muhammad Aslam, Amanat Ali, Qurban Ali and Mohabat Ali to commit the murder of Muhammad Ashiq and they became alert. On 17-1-2002, at evening time, Muhammad Aslam, Amanat Ali, Qurban Ali and Mohabat Ali came to the house of Ashiq, where the complainant, Abdul Mannan son of Nazir Ahmad and Abdul Rashid son of Ibrahim were already present. They kept to chatting till late at night and then went to the adjacent room to asleep. On 18-1-2002, at Fajar Waila, they hear shrieks of Ashiq and Fazeelat Bibi. The complainant and Abdul Mannan etc. Came out of their room and saw Muhammad Aslam armed with Chhuri, Amanat Qurban and Mohabat running out of the house. They bolted the house from outside and ran away. The complainant, Abdul Mannan and Abdul Rashid saw Ashiq smeared in blood with a noose around his neck.
4. At the trial the prosecution examined as many as 10 witnesses. Muhammad Yagoob complainant appeared as P.W.8 and averred on the same lines as the F.I.R. Mst. Fazeelat Bibi, wife of the deceased, being an eye-witness stated that her father Ismail, mother Naziran Bibi and brother Sakhawat conspired with Muhammad Aslam, Amanat Ali. Qurban and Mohabat Ali and also abetted them to commit the murder of Ashiq. About nine months back the appellants came to her house. They kept on having conversation- in an amicable atmosphere and did not display any bad intention. She, Amanat, Qurban, Aslam, Mohabat, Ashiq and her son slept in the same room. At about Fajar Waila, she heard the shriek of her husband, she got up and saw Aslam inflicting Chhurri blows at the belly of her husband, Amanat and Qurban were holding a noose around his neck while Mohabat was h.Olding his legs in a firm grip. On her hue and cry, Muhammad Yagoob, Rashid and Abdul Mannan came out of the room: All the four accused managed to escape. Yagoob, Abdul Rashid and Abdul Mannan entered in the room and saw that there was a rope around the neck of the deceased and his intestines were protruding from the injury on his abdomen. Dr. Munir Ahmad (P.W.6) conducted the post-mortem examination of Muhammad Ashiq, deceased on 18-1-2002. He proved Exh.P.D. As the correct carbon copy of the post-mortem report and Exh.P.D./1 as diagrams of the injuries. Muhammad Ajmal Constable appeared as P.W.1 who along with Riaz Constable had escorted the dead-body of the deceased to the mortuary of D.H.Q. Hospital, Sheikhupura. Ishrat Nawaz Head Constable appeared as P.W.2 to whom the Investigating Officer had handed over sealed parcels containing blood stained earth and Chhurri. On 2-2-2002, he handed over one parcel to Guizar Constable and on 9-3-2002 he handed over the second parcel containing Chhurri to Muhammad Younis Constable for onward transmission to the office of the Chemical Examiner, Lahore. Abdul Ghafoor draftsman (P.W.3) had visited the place of occurrence on 19-1-2002 and had prepared site plan Exh.P.B. And Exh.P.B./1. Guizar Ahmad Constable appeared as P.W.4 and Riaz Ahmad Constable appeared as P.W.S. Abdul Rashid and Abdul Mannan P.Ws. Were given up being unnecessary. Abbas Ali, S.-I. (P.W.10) had inspected the dead-body of the deceased and prepared inquest report Exh.P.G., injury statement Exh.P.F. And drafted an application Exh.P.E. For the post- mortem examination. He took into possession blood-stained earth from the place of occurrence and secured it vide memo. Exh.P.K. He also took into possession rope P.4 vide recovery memo.
Exh.P.J. He recorded the statements of the P.Ws. And prepared rough site-plan of the place of occurrence Exh.P.L. Reports of the Chemical Examiner Exh.P.M. And Exh.P.N. And that of the Serologist Exh.P.O. And Exh.P.P. Were tendered in evidence.
5. On the conclusion of the prosecution evidence, statements of the accused/appellants under section 342, Cr.P.C. Were recorded by the learned trial Court. In answer to the question as to why the case against him and why the P.Ws. Had deposed against him, Muhammad Aslam appellant No,1 replied:-- "I have been falsely involved in this case. Fazeelat Bibi is tool in the hands of the complainant. The deceased Ashiq was a hardened criminal and desperate. He was involved in many cases of dacoity and robbery. He had enmity with different people of the area. His brother Muhammad Yousaf was murdered during the dacoity. The P.Ws. Have falsely deposed againk us in order to blackmail us. The complainant Muhammad Yaqoob was not on speaking terms with us. It was a blind murder. I have no grudge or ill will against the deceased. 1 am innocent."
' Muhammad Aslam appellant tendered in evidence F.I.R. No,178 of 1994 (Mark "A"), F.I.R. No,33 of 1999 (Mark "B") and F.I.R. No,5 of 1995 (Mark "C") The learned trial Court after hearing the arguments of the learned counsel for the parties convicted and sentenced the appellant as aforementioned.
6. The learned counsel for the appellant has argued that since no ligature mark was found on the neck of the deceased, therefore, the medical evidence is in conflict with the ocular account; that in fact it was a blind murder which had not been witnessed by any person which is evident from the fact that the complainant and the eye-witnesses all belong to Warburton and not to the place where the occurrence took place; that the F.I.R. Was registered with a delay at the spot by the Investigating Officer; that the same was lodged after consultation which is apparent from the testimony of. Mst. Fazeelat Bibi (P.W.9); that there were improbabilities and self-contradictions in the evidence of the witnesses adduced at the trial; that the factum of conspiracy was not found to be correct by the police during investigation; that Chhuri, the weapon of offence, when recovered was not stained with blood, hence, of no consequence; that the learned trial Court had not appraised the evidence in a proper manner as the aspect regarding murder on account of Ghairat was not considered by the learned trial Court and that the appellant was entitled to a lesser sentence as the deceased was not Masoom-ud-Dam.
7. Conversely, Qazi Zafar Iqbal Ahmad, Additional Prosecutor-General had argued that star witness of the prosecution is Mst. Fazeelat Bibi (P.W.9), the wife of the deceased, who had witnessed the occurrence take place and being the real sister of Muhammad Aslam, Qurban Ali and Amanat Ali appellants and first cousin of Muhabat Ali appellant had no reason to falsely implicate them in the crime; that the medical evidence is in conformity with the ocular account and further corroboration thereto has been provided by the medical evidence as well as the evidence of recovery of Chhuri on the pointation of Muhammad Aslam appellant which was found to be stained with blood and that the conviction and sentence of the appellants as recorded by the learned trial Court is in accordance with law as the same is based on proper appraisal of evidence, thus, the same does not call for any interference by this Court.
8. We have heard the learned counsel and have gone through the record with their assistance.
9. The ocular account in the instant case was furnished by Mst. Fazeelat Bibi (P.W.9) who happened to be the wife of the deceased and real sister of Muhammad Aslam, Qurban All and Amanat Ali, appellants and first cousin of Mohabat Ali appellant. In her statement before the trial Court she disclosed that she and Ashiq deceased had developed liking for each other and in consequence thereto, three years, prior to the occurrence, they had contracted marriage against the wishes of her family. A male child was also born from the wedlock. Her father Ismail, mother Mst. Naziran Bibi and brothers Amanat, Qurban, Sakhawat and Aslam were annoyed with her on account of the said marriage and used to admonish her for bringing disgrace to the entire family. A few days prior to the occurrence, while she was present in the house of her parents at Muridke, a conspiracy was hatched by her father, mother and brothers to commit the murder of Ashiq. She beseeched them not to commit the murder of her husband as she was leading a happy matrimonial life with him.
Thereafter she returned to her own house at Bahrinwala. A day prior to the occurrence, Muhammad Yaqoob, Abdul Rashid and Abdul Mannan, prosecution witnesses, had come to visit the deceased and in the evening Amanat Ali, Mohabat Ali, Muhammad Aslam and Qurban Ali appellants also arrived at their house. They all continued to have casual conversation in an amicable atmosphere till late at night whereafter Muhammad Yaqoob, Abdul Rashid and Abdul Mannan, P.Ws. Went to asleep in an adjacent room whereas the witnesses, the deceased and the appellants slept in the room where the murder took place. At about Fajar Waila she heard shrieks of her husband whereupon she got up and witnessed Muhammad Aslam appellant inflicting Chhurri blows on the belly of her husband while Amanat and Qurban appellants were holding a rope around the neck of the deceased and Mohabat appellant was holding the legs of the deceased in a firm grip. On hue and cry raised by her, Muhammad Yaqoob, Abdul Rashid and Abdul Mannan were attracted to the scene who saw Muhammad Aslam appellant outside the room holding a Chhurri in his hand. When they entered the room they saw the deceased lying in a pool of blood with a noose around his neck. Muhammad Yaqoob (P.W.8) in his testimony before the learned trial Court has corroborated Mst. Fazeelat Bibi (P.W.9) on all material aspects of her testimony except the actual murder, which was only witnessed by Mst. Fazeelat Bibi. The evidence furnished by Mst. Fazeelat Bibi (P.W.9), who is also the real sister of three appellants and cousin of fourth appellant namely Mohabat Ali, has a ring of truth and is credible in all respects. There is absolutely no reason for this witness to falsely implicate her real. Brothers and first cousin in the murder of the deceased. On proper appraisal of evidence adduced at the trial by the prosecution, the learned trial Court felt convinced of the veracity of the statements of both the eye-witnesses. The testimony of the said witnesses has also inspired our confidence to the extent of involvement of Muhammad Aslam appellant in the crime.
Mst. Fazeelat Bibi (P.W.9) has provided graphical details of the events leading to the main occurrence as well as the main incident in which her husband Ashiq was stabbed to death by Muhammad Aslam appellant. Insofar as Mohabat Ali, Qurban Ali and. Amanat Ali appellants are concerned, we carry some doubts in own minds regarding their involvement in the crime in as much as the murder took place in the early hours of the morning when the deceased was asleep in his bed. The injury suffered by the deceased resulting in his death was caused by a Chhuri blow by Muhammad Aslam appellant for which he did not require any assistance from his co-convicts. The post-mortem report of the deceased reflects that there were no ligature marks on the neck of the deceased implying that he had not been strangled. Therefore, the stand taken by Mst. Fazeelat Bibi (P.W.9) regarding active assistance extended by co-convicts of Muhammad Aslam B appellant does not carry much weight and in fact it is belied by the medical evidence. On sifting of grain from the chaff we are of the considered view that with the exception of Muhammad Aslam appellant who is directly responsible for the murder of the deceased the involvement of other appellants in the crime is not free from doubt.
10. The evidence of motive was furnished by Muhammad Yaqoob (P.W.8) and Mst. Fazeelat Bibi (P.W.9) which according to the said witnesses was marriage of Mst. Fazeelat Bibi and Ashiq deceased three years prior to the occurrence. The Witnesses of motive are consistent in their stance before the learned trial Court which even otherwise was not seriously questioned by the defence at the trial.
11. The medical evidence in this case was furnished by Dr. Muneer Ahmad Ghori, Medical Officer, R.H.C. Baddo Malhi (P.W.6) who had conducted the post-mortem examination on the dead-body of the deceased on 18-1-2002 at 8-00 p.m. He found an incised wound 10 c.m. x 1 c.m. On the front right side of the abdomen at medial side of width of 2.5 c.m. Loops of small intestine were coming out of the injury. The evidence furnished by this witness has provided full support to the ocular account furnished by Mst. Fazeelat (P.W.9) as to the date and time of occurrence, the weapon used and the locale of injury suffered by the deceased.
12. Insofar as the testimony of Mst. Fazeelat Bibi (P.W.9) regarding conspiracy hatched by her parents and brothers for the murder of the deceased is concerned, we are not impressed with the same. There is nothing on the record to suggest that on her return from the house of her parents she had communicated the factum of conspiracy to her husband. Even for the sake of arguments if it is accepted that she had informed Muhammad Yaqoob (P.W.8) about the said conspiracy, the fact remains that on the night of the murder all the P. Ws. And the accused were sitting amicably having casual conversion before retiring to their respective rooms for the night. Therefore, to the said extent the evidence furnished by the witnesses is not believable although there is no denying the fact that Muhammad Aslam appellant continued to carry a grudge against the deceased for having developed relationship with his sister and for subsequently contracting marriage with her against the wishes of the family.
13. Much emphasis has been laid by the learned counsel for the appellant on the argument that the deceased was a desperate person against whom a number of criminal cases were registered and since he was not an innocent person, his murder did not call for imposition of death sentence. We are afraid the argument has no merit as mere registration of criminal cases against a person does not ipso facto give license to a person to take his life. The appellant No,1 in the given circumstances cannot claim to have been absolved of his liability of committing murder of the deceased on that score alone.
14. The weapon of offence i.e. Chhuri (P.3) was recovered from the possession of Muhammad Aslam appellant on 20-2-2002. Although the weapon was purported to be stained with blood but Abbas Ali SubInspector/Investigating Officer (P.W.10) in his cross-examination admitted that Chhuri (P.3) was not stained with blood at the time of recovery and that the same had been washed by the accused to conceal his crime. It is worthwhile to note that the occurrence took place in this case on 18-1-2002 whereas the weapon of offence was recovered from Muhammad. Aslam appellant on 20-2-2002 which is more than a month after the occurrence. It is inconceivable that an accused person would retain in his possession weapon of offence for such a long time and also keep it blood-stained. In view of the foregoing we are not convinced about the veracity of the recovery of weapon of offence from appellant No,1, thus, the same is disbelieved.
15. Although we have given our anxious consideration to the question of sentence but have failed to find an: -lausible mitigating circumstance for reduction in his sentence. It is oncL again reiterated that the fatal injury to the deceased was caused by Muhammad Aslam appellant No,1 who had the motive to commit the murder of the deceased. The medical evidence is in consonance with the eye-witness account which even otherwise has been found by us to be credible to the extent of complicity of appellant No,1 in the crime. The normal sentence for the crime of murder is death and in the abovementioned circumstances Muhammad Aslam appellant deserves no less. However, as stated earlier the involvement of appellants Mohabat Ali, Qurban Ali and Amanat Ali in the murder of the deceased is not free from doubt. Consequently, in furtherance of safe administration of justice while extending the benefit of doubt to them we acquit them of the charge of murder of the deceased Ashiq.
16. As a sequel to the discussion above, Criminal Appeal No,2050 of 2002 is partly allowed to the extent of conviction and sentence awarded to Mohabat Ali, Qurban Ali and Amanat Ali appellants and their conviction and sentence is set aside. Since they are on bail, their bail bonds are discharged. Insofar as Muhammad Aslam appellant No,1 is concerned, to his extent the appeal stands dismissed, the death sentence awarded to him by the learned trial Court is confirmed.
' The murder reference is answered in the affirmative.