' SALMAN ANSARI, J.---In the above appeals the appellants above named were convicted by the 1st Additional Sessions Judge, Malir in Session Case No,83/2001 by judgment dated 8-10-2004 for having committed an offence under section 302, P.P.C. Of Qatl-e-Amd and sentenced to life imprisonment and to pay a fine of Rs,100,000 each half of which if recovered be paid to the legal heirs of deceased Ibrahim as compensation, in default of such payment to suffer imprisonment for 2 years more, all three accused were to suffer further R.I. For 4 years under section 324, P.P.C. For attempt to commit Qatl-e-Amd of the injured P. Ws, further R.I. For one year for causing Shajjah-i- Mudihah and other hurts as defined in section 337-L(2) to P.W. Yousuf, for. Causing Shajjah-i- Khafifah to P.W. Ismail and under sections 337-A(1), 337-(A)(II) and 337-L(2), P.P.C, all the sentences to run concurrently, the accused will be entitled for benefit of section 382, Cr.P.C.
2. The .Two accused as shown in the title have preferred to appeal which I intend to decide by this judgment.
3. Briefly the prosecution case according to the section 154, Cr.P.C. Statement of complainant Muhammad Yousuf son of Suleman recorded on 22-2-2001, that he has a cattle is at Sharafi Goth Malir on 21-2-2001 at 10-30 p.m, he was at home near, to the cattle pen with his family when he heard commotion in the locality he went to his cattle pen and found his brother Ibrahim lying injured on the ground, Muhammad Ismail, Muhammad Ali, Muhammad Ishaq, Yousuf and Akram were also present, my brother Ibrahim who was conscious informed me that Jalil alias Yaro and Bashir had caught hold of him and Ameen inflicted Chhurri blow to him, Jalil and Bashir hit him with Dandas. His brother Ibrahim received injuries on his chest and head who succumbed to his injuries.
His dead brother and injured were taken to Jinnah Hospital. On the basis of the said statement a formal F.I.R. No,40/2001 was subsequently registered at Sharafi Goth Police Station on 22-2-2001 at 0355 hours of offences under sections 302/324/34, P.P.C.
4. The investigation was conducted by S.-I. Sultan Mahmood who after recording the statement of the complainant, prepared the inquest report, visited the site of incident and secured bloodstained earth and a broken bat said to have been used in the incident, the chhurri used was not recovered, had the injured medically examined, recorded the statements of the P.Ws., recorded, post-mortem examination of deceased was conducted, accused Muhammad Ameen and Abdul Jalil were arrested on 22-2-2001 according to the memo. Of arrest Exh.8/A the appellant/ accused Ameen was having bandages on both arms and above right eye, injuries suffered 'last night during quarrel'. After completing investigation challan was submitted, appellant/accused Bashir was arrested on 18-6-2001.
5. During the trial the charge was framed on 17-10-2001 under sections 302/ 324/34 P.P.C. To which the accused pleaded not guilty. The prosecution has examined complainant Muhammad Yousuf P.W.1 at Exh.3 he has produced Memo. Of Inspection of dead body at Exh.3/A and inquest report at Exh.3/B, his statement under section 154, Cr.P.C. At Exh.3/C and Memo. Of place of Wardat at Exh.3/D respectively. Muhammad Ali P.W.2 at Exh.4, Muhammad Ismail P.W.3 at Exh.5, Ishaq P.W.4 at Exh.6, Muhammad Hussain P.W.5 at Exh.7, Khizir Hayat P.W.6 at Exh.8, he produced Memo. Of arrest at Exh.8/A, Dr. Nisar, Ali Shah P.W.7 at Exh.10 has produced postmortem report at Exh.10/A, Muhammad Akram P.W.8 at Exh.12, Mazhar Ali P.W.9 at Exh.13, Sultan Ahmed P.W.10 at Exh:14, he has produced cause of death, Medico Legal Certificate and copy of F.I.R. And sketch at Exhs.14/A to 14/D respectively, Dr. Syed Farhat Abbas P.W.11 at Exh.13 he has produced the Medico Legal Certificate of injured P.Ws at Exhs.15/A to 15/C respectively, A.S-I. Zahid Hussain P.W.12 at Exhs.16 he has produced Memo. Of arrest at Exhs.16/A and 16/BD respectively, thereafter prosecution closed the side of evidence vide statement at Exh.17.
6. In their statements under section 342, Cr.P.C. The appellant/accused Haji Muhammad Ameen denied the allegations and claimed to be innocent and having been falsely implicated due to `dispute over the plot, that the P.Ws. Were interested being related inter se, appellant/accused Bashir also denied the allegations. The appellants/accused Ameen, Abdul Jalil and Bashir gave evidence under section 342(2), Cr.P.C. Appellant/accused Ameeri again reiterated. `The dispute over the land was already pending in between Haji Yousaf and my brother', he further stated that he was working in Dubai he had a visa and passport and could easily have escaped if he was guilty. He denied having committed the offence along with appellant Bashir and co-accused Jalil in his cross-examination. Similar was the statement of appellant/accused Bashir Ahmed under section 342(2), Cr.P.C. But with no mention of any dispute with the complainant or any of the P.Ws.
And appellant Abdul Jalil's statement was also one of denial.
7. At the conclusion of the trial the learned 1st Additional Sessions Judge, Malir by his judgment decided the case as given at para. 1 above.
8. I have heard arguments of the learned counsel for the accused and _the State. It has been argued for appellant Haji Muhammad Ameen that no weapon such as Chhurri has been recovered to establish the allegation of committing the offence, the alleged eye-witnesses had not witnessed the killing of the deceased Ibrahim and they had arrived according to their own version found Ibrahim lying on the ground dead, P.W. Yousaf who had allegedly spoken to the injured Ibrahim had arrived after other injured P.Ws who had not stated anything about any dying statement of the deceased, further the version as given in the section 154, Cr.P.C. Statement is different from that in the F.I.R. And the statement before the Court, the material witnesses are all admittedly related and interested and it would be unsafe to rely upon their evidence considering no mohala person has been named to witness the incident. In addition to the above it has been argued for the appellant/accused Bashir Ahmed that the allegations are that the said appellant had caused danda blows to the deceased and other P.Ws, firstly no danda had been recovered secondly the blow attributed to have been suffered by the deceased Ibrahim caused by a hard and blunt object was according to the witnesses attributed to appellant Abdul Jalil with a bat which shows contradiction in prosecution case, even otherwise death did not ensue due to such injury but to have been caused by injuries sustained by a sharp edged weapon. No common intention has been proved because the Judge himself concludes that it was not shown how the incident started hence the learned Judge did not impose maximum punishment which shows that unless= motive was established common intention could not be proved. Hence the offence being a night time incident without any light at the place of incident, witnessed allegedly by interested witness because of a dispute over land moreso the reason for false implication and no weapon being recovered, the appellants accused are innocent should be acquitted and the appeal be allowed.
9. The learned State Counsel has argued in favour of the findings as given in the impugned judgment and that the prosecution had succeeded in establishing the appellant's guilt to the hilt and no interference was warranted by this Court in convictions recorded by the learned trial Court.
10. Having heard the arguments of the learned counsel for their respective parties and gone through the record with their assistance, in my opinion it has been proved beyond doubt that the deceased Ibrahim had died due to his having received two injuries on his chest, one on the right side and the other on his left, both incised A wounds and the third incised wound on the occipital area and according to the postmortem report Exh.10/A issued by Dr. Nisar Ali Shah Rizvi Medico Legal Officer J.P.M.C. Karachi "death was caused by acute chest injury as a result of some sharp weapon", one injury shown in the report suffered by the deceased being "contusion on forehead" caused by a hard and blunt object but "brain not damaged", in his evidence the said doctor at Exh.1 has stated on the same lines and concluded in his cross-examination that "It is a fact that death has been caused as a result of sharp cutting weapon". It is the prosecutions case that appellant Haji Muhammad Ameen was armed with a Chhuri had caused the fatal injuries. In section 154, Cr.P.C. Statement complainant Muhammad Yousaf states that when he came to the place of incident "his brother Ibrahim was conscious said to me that Jalil alias Yaro and Bashir caught hold me and Muhammad Ameen inflicted Chhuri to me. Jalil and Bashir hit me dandas", his brother Muhammad Ibrahim received injuries on his chest and head who succumbed to his injuries and died on the spot. In his statement Exh.No,3 the complainant Muhammad Yousuf had stated as in section 154, Cr.P.C. Statement that Muhammad Ismail, Muhammad Ishaq, Muhammad Ali and Akram were lying injured on the ground, all the above P.Ws. Said to be lying injured on the ground at the time complainant Yousuf arrived at the place has stated that it was appellant Muhammad Ameen who had caused injuries to the deceased with a Chhuri but all of three P.W's have said nothing about the deceased making any dying statement to any one of them or to the complainant Yousuf, hence from the evidence produced by the prosecution and the dispute over land admitted by the appellant Muhammad Ameen in statement under sections 342/340(2), Cr.P.C. And the medical evidence that the death had ensued of deceased Ibrahim because of Chhuri injuries which has been proved beyond doubt was used by the appellant Haji Muhammad Ameen even though the weapon was not recovered though appellant was arrested on the very next day yet there is overwhelming evidence of the same having been used to cause fatal injuries on vital parts of the deceased Ibrahim.
11. Regarding the role played by the appellant Bashir Ahmed in common intention to cause the death of Ibrahim would need careful scrutiny, the allegations of common intention and hence insertion of section 34 P.P.C. Hinges only on the evidence of the complainant Muhammad Yousuf to whom deceased had made a dying statement that lie was caught hold of by co-accused Abdul Jalil and appellants Bashir Ahmed and Muhammad Ameen caused Chhuri injuries and appellant Abdul Jalil and appellant. Bashir caused danda blows, this is controverted by the evidence that deceased had received only one injury caused by a hard and blunt object that being a bat recovered, from the spot which according to the other injured P.W. Was used by appellant Abdul Jalil, hence no injury was caused to the deceased by the appellant Bashir Ahmed and the piece of evidence roping the appellant Bashir Ahmed in having common intention to murder Ibrahim should safely be discarded also taking into consideration that in Exh.8/A at the time of his arrest appellant Muhammad Ameen was found bandaged for injuries received, 'during quarrel from the complainant party' and so also appellant Abdul Jalil who at the time of arrest was found to have 'minor injuries on hands, this -had been suppressed by the P.Ws. Considering that the learned trial Court in his judgment had come to the conclusion "It is not shown how the incident was started and as to what happened immediately before the occurrence of the incident, as such it is unsafe to impose first penalty of death."
12. In view of the above discussion Criminal Appeal No,394/2004 is allowed to the extent that the conviction and sentence recorded by the learned trial Court on the charge of Qatl-e-Amd under section 302, P.P.C. To undergo life sentence awarded to appellant Bashir Ahmed is set aside while the conviction and sentence awarded to the said appellant under section 324, P.P.C. For attempt to commit Qatl-e-Amd and injuries to P.Ws. Is maintained, the appellant Bashir Ahmed is to be released from jail if having already undergone the sentence imposed by learned trial Court under the above provisions of law; however Criminal Appeal No,397/2004 of Haji Muhammad Ameen and Abdul Jalil is dismissed.