' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Criminal Appeal No,705 of 1999 as well as Murder Reference No,405 of 1999, both arising out of the judgment, dated 30-6-1999 passed by the learned Additional Sessions Judge, Faisalabad, whereby he had convicted Muhammad Rafique alias Mangoo accused under section 302, P.P.C. And had sentenced him to death as Qisas. Vide the same judgment, the learned trial Court had acquitted Rasheed, the co- accused of the appellant.
2. The case against the accused is based on F.I.R. No,359 of 1995 registered on 28-6-1995 in Police Station D-Type Colony, Faisalabad at 8-45 p.m. On the basis of the statement of Abdul Rasheed, complainant. In the F.I.R. Exh.P.F. The complainant had stated that he is a resident of D-Type Colony and that his son Ihsanul-Haq was running a shop of crushed stone (Bajri) in Iron Market, Korian Road. On the day of occurrence i.e, on 28-6-1995 at 7-00 p.m., before Maghrib Prayer's time, the complainant as well as his son Ihsan-ulHaq were about to return to their house after closing their shop when Khalil-urRehman, the nephew of the complainant as well as Muhammad Akram reached there from their Power Looms and all four of them proceeded to their house. The complainant and his son Ihsan-ul-Haq were a few paces ahead while Khalil-ur-Rehman and Muhammad Akram P. Ws. Were coming behind them. When they reached near Jamia Masjid Islam, suddenly Rafique alias Mangoo accused armed with a dagger and Rasheed accused reached there. On seeing them, Rasheed accused raised Lalkara exhorting his co-accused not to let Ihsan- ulHaq go alive and to teach him a lesson for insulting him. In the meanwhile, Rafique alias Mangoo gave a dagger blow to Ihsanul-Haq, hitting him in his ribs towards the right side and he fell down on the ground. Khalil-ur-Rehman and Muhammad Akram P.Ws. Who had also reached near also witnessed the occurrence: Rafique alias Mangoo and Rasheed accused fled away from the spot.
The complainant with the help of P.Ws. Took his son Ihsan-ul-Haq to Civil Hospital, Faisalabad in injured condition, but he expired as soon as they reached there.
3. In the F.I.R. It was also stated that a day before the occurrence i.e, on 27-6-1995 at Asar Prayer's time, there was a quarrel between Ihsan-ul-Haq deceased and the accused namely Rafique alias Mangoo and Rasheed and there was exchange of abuses between them and Ihsan-ul-Haq deceased had given fist blow to Rafique alias Mangoo accused but the respectable of Mohallah had separated them. On account of the said grievance Rafique alias Mangoo and Rasheed accused in consultation of each other had killed Ihsan-ul-Haq deceased by giving him dagger blow. After leaving Muhammad Akram and Khalil-ur-Rehman, P.Ws. Near the dead body in Civil Hospital, Faisalabad, the complainant proceeded to the police station to report the matter to the police.
4. As a result of investigation, the challan was submitted against the accused. Both the accused aforesaid were formally charged by the learned trial Court on 17-9-1998 and to which they pleaded not guilty and the prosecution was thus asked to produce its evidence.
5. In this case the prosecution has examined as many as 13 P.Ws. Of them, P.Ws.13 Feroz Ali S.-I., had recorded the statement of the complainant in the form of F.I.R. And had thereafter, proceeded to the place of occurrence where he had taken certain formal steps in connection with the investigation of the case such as collection of blood-stained earth from the spot and preparation of inquest report and inquiry statement and also preparation of the rough sketch of the place of occurrence. He also got prepared the site-plans Exh. P.D. And Exh.P.D./1 from the Draftsman. On 15- 7-1995, he arrested Muhammad Rafique accused. On 18-7-1995, Rafique accused led to the recovery of dagger P.4 from his residential house and for whkh a separate case under the Arms Ordinance was also registered against him. On the next day, the accused was sent to the judicial lock-up and thereafter, the investigation was enterested to Khalid Masood, S.-I.
6. P.W.11 Abdul Hameed Khan, D.S.P. And P.W.12 Khalid Masood, S.-I. Had partly investigated the case.
7. P.W.10 Binameen is a witness of recovery of dagger P.4 which was effected on the pointation of Rafique accused. He had also attested the recovery memo. Exh. P.H.
8. P.W.1 is Dr. Masood Iqbal Bukhari, D.M.S. Of D.H.Q. Hospital, Faisalabad who on 29-6-1995, at 10-00 a.m. Had conducted the post-mortem examination on the dead body of Ihsan-ulHaq deceased. In his opinion, in this case the cause of death was haemorrhage, shock due to Injury No,1 which was the only injury caused by sharp-edged weapon, was ante-mortem and was sufficient to cause death in the ordinary course of nature. According to him the probable time that elapsed between injury and death was immediate while that between death and post-mortem examination was about 15 hours. Exh.P.A. Is a carbon copy of the post-mortem report while Exh.P.A./1 is the diagram of injuries.
9. The eye-witness account in this case is furnished by P.W.7 Abdul Rasheed complainant, P.W.8 Khalil-ur-Rehman as well as P.W.9 Muhammad Akram, all of whom deposed on the same lines as indicated in the F.I.R. They also made mention of the motive incident i.e, of the quarrel which had taken place a day prior to the occurrence between the deceased and the accused. On 20-5-1999, the Prosecutor tendered in evidence the report of the Chemical Examiner as Exh.P.1 regarding blood-stained earth, report of Serologist as Exh.P.J., report of the Chemical Examiner regarding the blood-stained dagger as Exh P.K. And report of the Serologist as Exh.P.L. And closed the case for the prosecution.
10. On the conclusion of the prosecution evidence the statements of the accused were recorded under section 342, Cr.P.C. When asked as to why this case against him and why the P.Ws. Had deposed against him, Rafique accused/appellant replied that it was "due to hostility" However, none of the accused made statement on oath under section 340(2), Cr.P.C. Nor any of them produced any evidence in defence.
11. The learned counsel for the appellant has argued that all the three eyewitnesses in this case are chance witnesses and all three of them are also interested witnesses and that their testimony cannot be relied upon as their relationship inter se and with the deceased is not denied; that on the day of occurrence, at 7-00 p.m. The presence of the eye-witnesses at the place of occurrence was improbable and that they had deposed against the accused/appellant on account of hostility towards him; that on the basis of the same evidence, one of the accused namely Rasheed who' was father of the appellant has already been acquitted and hence there is no lawful justification for the conviction of the appellant; that the appellant had not allegedly repeated the dagger blow and hence it cannot be assumed that he had the intention to cause Qatl-i-Amd of the deceased and that the evidence on record was insufficient to prove the charge against the accused/ appellant beyond reasonable doubt and hence the accused/appellant is entitled to be acquitted.
12. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the learned trial Court. They both have argued that there is sufficient evidence on record to warrant conviction; that the judgment of the learned trial Court is based on sound reasoning; that there is no justification for interference and hence the judgment of the learned trial Court be upheld and the appeal filed by Rafique accused/appellant be dismissed and the sentence of death awarded to him by the learned trial Court be confirmed.
13. We have carefully considered the argument.
14. Although in every case it is for the prosecution to stand on its own legs but the learned counsel for the appellant has not. Pointed out as to how the prosecution evidence in this case is not sufficient to prove the charge against the appellant. P.W.7 Abdul Rasheed, who is the complainant in this case, is the father of the deceased and it is not expected that he would depose falsely against the appellant so as to let off the actual culprit. The statement of P.W.7 is fully corroborated by two other eye-witnesses of the occurrence i.e, P.W.8 Khalil-ur-Rehman and P.W.9 Muhammad Akram, both the whom claim to have witnessed the occurrence. The eyewitness account in this case is fully corroborated by the medical evidence furnished by P.W.l, Dr. Masood lqbal Bukhari who had conducted the postmortem examination on the dead body of the deceased and who had found a stab wound on front of right side of chest of the deceased and according to whom the said injury caused by sharp-edged weapon was the cause of death in this case. The recovery of dagger P.4 on the pointation of Rafique accused is proved by the Investigating Officer i.e, P.W.13 Feroze Ali, S.-I. Who is supported by P.W. 10 Biniameen who had also attested the recovery memo.
Exh.P.H. The dagger was sent to the Chemical Examiner and the report of the Chemical Examiner Exh. P. K. Is positive for blood while the report of the Serologist Exh.P.L is positive for human blood. As such the ocular account is corroborated not only by the medical evidence but also by the recovery evidence. While making statement under section 342, Cr.P.C., the accused/appellant merely replied that the P.W.3 had deposed against him due to hostility. However, he did not give any detail concerning the said hostility. He also did not produce any evidence in defence. Hence, the charge of committing Qatl-i-Amd of the deceased stood clearly proved against him. However, the proof of Qatl-i-Amd liable to Qisas as required under section 304, P.P.C. Is not available in this case and hence the appellant could be convicted under section 302(b), P.P.C. And not under section 302(a), P.P.C., as has been done by the learned trial Court. Therefore, we are inclined to convert the conviction of the appellant from section 302(a), P.P.C. To section 302(b), P.P.C. Besides that, we feel that the occurrence in this case may have taken place all of a sudden and without premeditation as the appellant is not alleged to have repeated the blow. He had given only a solitary dagger blow to the deceased and which had proved fatal. Under the circumstances, we feel that this provides a sufficient mitigating circumstance and we are, therefore, inclined to convert the sentence of death into life imprisonment.
15. In view of what has been stated above, we convert the sentence of death awarded to Muhammad Rafique alias Mangoo accused by the learned trial Court under section 302(a), P.P.C.
To imprison- C ment for life as Ta'zir under section 302(b), P.P.C. We also direct that the appellant will also pay an amount of Rs,25,000 to the legal heirs of the deceased as compensation. In case of default in payment of compensation, he will undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Is also allowed.
16. With the above modification in the impugned judgment, Criminal Appeal No,705 of 1999 is dismissed. Sentence of death awarded to Muhammad Rafique alias Mangoo accused by the learned trial Court is not confirmed.
17. Murder Reference No,405 of 1999 is answered in the negative.
Sentence reduced.