' TARIQ SHAMIM, J.---The appellants, namely, Abdul Majeed and Muhammad Arshad sons of Abdul Rasheed, were tried by the learned Additional Sessions Judge, Faisalabad in case bearing F.I.R. No. 88 of 2001, dated 1-2-2001, registered with Police Station Ghulam Muhammad Abad, Faisalabad, for offences under sections 302, 364 and 34, P.P.C. The learned trial Judge by virtue of his judgment, dated 23-7-2002 found Muhammad Arshad guilty of committing the murder of Ramzan, deceased, convicted him under section 302(b) read with section 34, P.P.C. And sentenced him to death. He was further directed to pay a sum of Rs.50,000 to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C. And in default thereof to undergo simple imprisonment ' for six months. He was also convicted under section 364, P.P.C. And sentenced to rigorous imprisonment for 10 years with a direction to pay a fine of Rs.10,000 and in default thereof to undergo simple imprisonment for two months. Abdul Majeed appellant was convicted under section 302(b) read with section 34, P.P.C. And sentenced to imprisonment for life. He was directed to pay a sum of Rs.50,000 to the legal heirs of the deceased under section 544-A, Cr.P.0 and in default thereof to undergo simple imprisonment for six months.
2. The appellants by filing this appeal through Jail have called in question the conviction and sentence awarded to them vide the impugned judgment, whereas the learned trial Judge has sent Murder Reference No.110 of 2004 for confirmation of death sentence.
3. Precisely the allegations against the appellants according to the F.I.R. Recorded by Mst. Ulfat Bibi complainant, are that she had two sons; that 1-1/4 years before the occurrence her younger son namely Ramzan alias Jana contracted marriage with Mst. Safia Bibi daughter of Abdul Rasheed; that on 1-2-2001 at 7-00 p.m. Ramzan was standing in Street No.16 Faiz Abad Chowk along with Muhammad Yaqub and Muhammad Boota when Muhammad Arshad son of Abdul Rasheed arrived there who took Ramzan to a distance where an altercation took place between them; that meanwhile Abdul Hameed brother of Arshad also reached there and both of them after overpowering Muhammad Ramzan abducted him with the intention to murder him and took him to their house; that Muhammad Yaqub came to the complainant and informed about the incident whereupon she along with Muhammad Yaqub reached the place of occurrence where Muhammad Boota was already present; that they witnessed Muhammad Arshad armed with chhurri and Abdul Majeed armed with bala beating Ramzan; that Muhammad Arshad inflicted chhurri blow to Ramzan which hit on the right side of his chest and right scapula while Abdul Majeed gave bala blows to him, as a consequence of which his legs were fractured and he fell down; that Abdul Majeed also gave bala blow on the head of Ramzan; that thereafter both the appellants inflicted a number of blows with their respective weapons on different parts of the body of the deceased; that on the hue and cry of the complainant people gathered there and the appellants made good their escape from the place of occurrence and that Ramzan, deceased, was shifted to Allied Hospital, Faisalabad in an injured condition but he succumbed to the injuries.
4. At the trial the prosecution examined as many as 10 witnesses. Mst. Ulfat Bibi (P.W.7) narrated the occurrence as stated in the F.I.R. Muhammad Yaqub (P.W.8) is the other eye-witness of the occurrence. Muhammad Asghar Constable (P.W.), Abdul Hameed (P.W.2), Ahmad Nawaz (P.W.3) and Muhammad Younis (P.W.9) appeared as formal witnesses. Aurangzeb draftsman (P.W.4) inspected the place of occurrence on instructions of the police and on pointation of P.Ws. He prepared scaled site plan Exh.PB (duplicate Exh.PB/1) and produced the same before the Investigating Officer. Sub-Inspector Ali Asghar (P.W.10) while posted at Police Station Ghulam Muhammad Abad on 1-2-2001 reached the place of occurrence along with Muhammad Saleem, Shahbaz and Muhammad Younis Constables. He received application Exh.PA from the complainant and after endorsement transmitted the same to the Police Station for registration of formal F.I.R.
Thereafter he inspected the place of occurrence, prepared visual site plan without scale Exh.PL., collected blood-stained earth from the spot and made it into sealed parcel. The same was secured vide memo. Exh.-PK. On being informed that Ramzan had succumbed to injuries in the hospital he reached there, inspected the dead body of the deceased, prepared injury statement Exh.PD and inquest report Exh.PE, handed over the dead body of the deceased to Muhammad Younis Constable and after post-mortem examination the said Constable handed over last-worn clothes of the deceased which were taken into possession by him vide recovery memo. Exh.PI. He thereafter recorded the statement of all the relevant witnesses and launched search for the accused. On 6-2-2001 he arrested both the accused, obtained their physical remand and on pointation of Abdul Majeed got recovered the weapon (bala) from his house which was secured through recovery memo. Exh.PG. On 8-2-2001, Arshad appellant while in custody made disclosure and led to the recovery of blood-stained chhurri P-2 from the courtyard of his house which was taken into possession vide recovery memo. Exh.PH. He prepared visual site plan of both the recoveries and lodged a separate case against Muhammad Arshad appellant for retaining an unauthorized weapon in his possession and after completion of investigation he submitted report in terms of section 173, Cr.P.C. In the trial Court. Dr. Khalid Rafiq, C.M.O., Allied Hospital, Faisalabad (P.W.6) medically examined Ramzan deceased on 31-1-2001 at 8-10 p.m. And found 23 injuries on the person of the deceased. Dr. Arshad Masud, Demonstrator, P.M.C., Faisalabad (P. W.5) conducted post-mortem examination on the dead body of the deceased at 3-45 p.m on the same day.
5. On the conclusion of the prosecution evidence, statements of the accused 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 Arshad appellant replied:-- "I and my co-accused are innocent. There are major contradictions in the statements of the P.Ws.
In respect of time of death and place of occurrence. P.Ws. Have improved their evidence dishonestly. F.I.R. Is delayed and the case was registered after preliminary investigation. P.Ws. Are not residents of the locality where the alleged occurrence is stated to have taken place. No person from the locality has been cited as a witness, despite the fact the place of occurrence is surrounded by the factories and houses. There are major contradictions in between the ocular account and the site place and evidence of the I.O. Investigating Officer had dishonestly investigated the case in connivance with the complainant. The recoveries are fabricated and concocted one and have been planted to strengthen the unwitnessed occurrence. Section 364, P.P.C. Had not been proved through ocular account through any cogent and incriminating evidence. P.Ws. Could not prove the presence of the deceased in my house. No dragging marks were found on the body of the deceased, as per medical evidence. The prosecution story is full of contradictions. The Court has to consider the entire evidence on the record led by the prosecution which is doubtful."
' In answer to the question as to why the case against him and why the P.Ws. Had deposed against him, Abdul Majeed appellant adopted the same reply as of Muhammad Arshad appellant.
6. Muhammad Arshad and Abdul Majeed, appellants, did not appear as witness in their own defence to disprove the allegations/ charges levelled against them as required under section 340(2), Cr.P.C. On the conclusion of the trial and after the hearing arguments of the parties the learned trial Court convicted and sentenced the appellants as aforementioned vide its judgment, dated 23-7-2002.
7. It has been argued by the learned counsel for the appellants that the motive alleged by the prosecution was false and could not be proved at the trial; that the statements of eye-witnesses of the occurrence are full of contradictions and, therefore, are not confidence inspiring; that the eye- witnesses are closely related to the deceased and their testimony cannot straightaway be accepted without corroboration from some independent source; that the allegation of abduction of the deceased by the appellants could not be proved, hence, conviction and sentence on account thereof was unsustainable under the law; that the place of occurrence was apparently surrounded by factories and houses but none from the locality was cited as an eye-witness of the occurrence; that conviction under section 364, P.P.C. Was also not sustainable in view of contradictions in the statements of the eye-witnesses made before the Investigating Officer and at the trial in which they had taken divergent stands; that both the eye-witnesses had made dishonest improvements in their statements and if the eye-witnesses had actually witnessed the occurrence, such contradictions and improvements would not have been made; that it was a night time occurrence and from the divergent stand taken by the eye-witnesses it was apparent that the occurrence was an unwitnessed one; that the recoveries effected from the appellants were fake and planted; that no private witness was associated with the recovery proceedings by the Investigating Officer and that at the time of occurrence the age of Muhammad Arshad appellant was 18 years implying that at the time of occurrence he was a minor and, therefore, he deserved a lesser sentence.
8. Conversely, the learned Deputy Prosecutor-General has contended that the eye-witness account furnished by the eye-witnesses was credible and in consonance with the medical evidence; that the recovery of weapons from the appellants had been proved by the prosecution at the trial which provided corroboration to the eye-witness account; that the motive had been proved at the time trial by the witnesses; that the abduction of the deceased by the appellants had also been established by the prosecution through cogent evidence and that the judgment of the learned trial Court was in accordance with law and, therefore, it did not call for interference by this Court.
9. We have heard the learned counsel and gone through the record with the able assistance.
10. It has been noticed that the motive for the occurrence i.e. Marriage of the deceased with Mst.
Safia Bibi, sister of the accused, without their consent, is admitted by the accused side inasmuch as in the first statements made before the Investigating Officer the appellants admitted that their sister had contracted marriage with the deceased without their permission and that when their sister was pregnant, she was thrown out of the house by the deceased. Mst. Ulfat Bibi (P.W.7) in her statement before the learned trial Court has categorically stated that the appellants were annoyed with the deceased on account of marriage with their sister. The testimony of this witness to the extent of motive has remained unshaken and consequently the learned trial Court accepted the motive as urged by the prosecution. We do not find ourselves in disagreement with the conclusion drawn by the learned trial Court as to the motive which prompted the appellants to commit murder of the deceased.
11. The eye-witness account in the case was furnished by Mst. Ulfat Bibi (P.W.7), the mother of the deceased, and Muhammad Yaqoob (P.W.8), a cousin of the deceased. Both these witnesses have stated that the appellants while armed with churri and bala inflicted injuries on the person of the deceased Ramzan which landed on different parts of his body. As to the injuries inflicted by Arshad appellant with chhurri the witnesses are specific inasmuch as according to the witnesses the injuries were inflicted on the chest and upper part of the body of the deceased. Insofar as the injuries caused by Abdul Majeed appellant are concerned, the witnesses are consistent in their stand that the same were caused on the legs and head of the deceased. Although each and every injury has not been specifically mentioned/attributed in the F.I.R. Nor in the testimony before the learned trial Court but the fact remains that in such type of occurrence it is not humanly possible for the witnesses to count and ascribe each the ever injury to the accused persons. Although the witnesses are related to the deceased, but solely on account thereof, their testimony cannot be discarded. The witnesses are natural witnesses whose presence at the spot cannot be doubted.
The account furnished by these witnesses is credible and although some minor discrepancies and improvements have been pointed out in their testimony by the learned counsel for the appellant, however, in our view the same are trivial in nature and, therefore, do not have any negative bearing on their evidence. The medical evidence furnished by Dr. Khalid Rafiq (P.W.6) who had first examined the deceased in an injured condition and Dr. Arshad Masud (P.W.5) who had conducted the post-mortem examination on the deceased is in line and in consonance with the ocular account furnished by the aforesaid eye-witnesses. Thus, the medical evidence supports the prosecution version as to the time of occurrence, locale of injuries and weapons used in commission of offence.
12. The other piece of evidence which lends support to the eyewitness account is the recovery of chhurri P-2 at the instance of Muhammad Arshad appellant taken into possession vide memo.
Exh.PH and bala P-1 at the instance of Abdul Majeed appellant taken into possession vide memo.
Exh.PG. The chhurri P-2 was recovered from the house of Muhammad Arshad appellant whereas the bala was recovered at the instance of and pointation of Abdul Majeed from his residential house. The witnesses of recovery of weapons are Muhammad Yaqub (P.W.8) and Ali Asghar, Sub- Inspector, the Investigating Officer of the case (P.W.10). Both these witnesses have provided an accurate account of the recovery proceedings and have corroborated each other on all material particulars. The weapons when recovered were found stained with blood and were, therefore, sent for chemical analysis to the Chief Chemical Examiner, Government of the Punjab who vide reports Exh.PP and Exh.P0 confirmed that the chhurri recovered at the instance Muhammad Arshad and bala at the instance of Abdul Majeed were stained with blood. The Serologist, Government of the Punjab, in its opinion recorded in reports Exh.PR and Exh.PS concluded that the articles/weapons were stained with human blood. Thus, the account furnished by Muhammad Yaqub (P.W.8) and Ali Asghar (P.W.10) finds further support from the expert opinion given in the reports referred to above.
13. From the foregoing discussion it is evident that the prosecution has proved its case against the appellants through credible ocular account corroborated by the medical evidence and supported by the evidence of recovery of weapons from the appellants as well as the motive behind the murder of the deceased. Insofar as the conviction of Muhammad Arshad appellant under section 364, P.P.C. For abduction of the deceased is concerned, the learned trial Court disbelieved the same to the extent of Abdul Majeed appellant and consequently acquitted him of the charge. In view of the contradictory stand taken by the witnesses in their statements recorded under section 161, Cr.P.C. Before the Police and subsequently in their testimony before the learned trial Court we are inclined to set aside the conviction of the appellant Muhammad Arshad recorded under section 364, P.P.C. By extending him the benefit of doubt.
14. We have noticed that Muhammad Arshad appellant's age is recorded as 18 years at the time his statement in terms of section 342, Cr.P.C. Was recorded. Since the occurrence in the case took place on 31-1-2001 and his statement was recorded on 13-7-2002 i.e. More than a year and five months after the occurrence, coupled with the fact that the age as mentioned in the statement under section 342, Cr.P.C. Was not challenged by the prosecution, in furtherance of safe administration of justice we are inclined to reduce the sentence of Muhammad Arshad from death to imprisonment for life. Reliance is placed on the case of Abdul Malik and another v. The State others (2008 SCM R 61).
15. As a sequel to the above, while maintaining the conviction of the appellants for offence under section 302(b) read with section 34, P.P.C., we convert the sentence of death awarded to Muhammad Arshad appellant to imprisonment for life. The sentence to the extent of compensation and the punishment in default thereof imposed upon Arshad appellant would remain the same.
The conviction recorded under section 364, P.P.C. Is set aside. Benefit of section 382-B, Cr.P.C. Is extended to the appellants.
' With the above modifications in the quantum of sentence, this appeal is dismissed. However, the death sentence is Not Confirmed and the murder reference is answered in the Negative.