1. ' KHAWAJA MUHAMMAD SHARIF, C.J.---This judgment will dispose of Criminal Appeal No, 40 of 2005 filed by Abdul Jalil and Criminal Appeal No,23 of 2005 filed by Shakeel and Iftikhar appellants. They were convicted under section 302(b) read with section 34, P.P.C. For committing the qatl-e-amd of Muhammad Ihsan vide judgment, dated 31-1-2005 rendered by learned Additional Sessions Judge Attock and sentenced as under:-- ' Abdul Jalil. Death and to pay Rs,1,00,000 as compensation, in default to undergo' R.I. For six months.
2. ' Shakil and Iftikhar Ahmad. Imprisonment for life and to pay compensation of Rs,1,00,000 each in default six months' R.I. With the benefit of section 382-B, Cr.P.C.
3. ' Murder Reference No,124 of 2005 for confirmation or otherwise of death sentence of convict Abdul Jalil and Criminal Revision No,19 of 2005 filed by the complainant for enhancement of sentence of Shakil and Iftikhar convicts shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Sher Muhammad (P.W.9) are that on 19-2-2004 at about 5-30 p.m., when he along with his son Muhammad Ihsan (deceased) reached near the house of Muhammad Ashraf, accused Abdul Jalil, Shakil and Iftikhar also reached there, raised joint Lalkara, thereafter Shakil and Iftikhar caught hold Muhammad Ihsan from his arm while Abdul Jalil stabbed a knife on the left side of chest of victim Ishan as a result whereof he died at the spot.
4. ' The motive alleged behind the occurrence was an altercation which took place two days prior to the occurrence between deceased and Abdul Jalil during which Ihsan insulted Jalil and to take the revenge of that grudge, all the accused in furtherance of their common intention committed the murder.
3. The investigation of the case was taken over by Inspector Muhammad Farooq (P.W.11.). He recorded the statement (Exh.PE/1) of Sher Muhammad complainant, brNight the dead-body to the Police Station, prepared injury statement Exh.PF and inquest report Exh.PG; then proceeded to the spot, prepared site plan Exh.PH and after getting the warrants of arrest of the accused finally arrested them on 18-4-2004. During physical remand, accused Abdul Jalil got recovered knife which was taken into possession vide memo. Exh.PD. After completion of formal investigation, all the three accused were sent to face the trial.
4. At the trial prosecution in order to prove its case produced 11 witnesses in all. The learned Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.PJ, report of the Serologist Exh.PK and closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, the accused were convicted and sentenced as stated above.
5. ' Learned counsel for the appellants submits that it is a case of delayed F.I.R.; the appellants were implicated in this case due to enmity; place of occurrence has been changed; no blood-stained earth was taken into possession from the spot by the Investigator; there are material contradictions in the statements of the eye-witnesses; dishonest improvements have been made by the eye-witnesses; they are related inter se and inimical towards the appellants; the eye- witnesses are also chance witnesses; their conduct at the spot was unnatural; net has been thrown widen in as much as Shakil and Iftikhar both real brothers and friends of Jalil have been implicated in this case for single injury and that it is not a case of capital punishment as the appellant Jalil did not repeat the blow.
6. ' On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant submits that it is a case of promptly lodged F.I.R.; ocular account is fully corroborated by medical evidence; mere relationship of the witnesses with the deceased is no criteria to discard their testimony; the eye-witnesses are most natural; there was no previous background of enmity between the parties; the appellants have admitted their presence at the spot in their statements under section 342, Cr.P.C.; Shakil and Iftikhar appellants shared common intention with their co- accused and that it is not a hard and fast rule that single injury can be treated as a mitigating circumstances but the Court has to see the seat of in as also the damage done. At this stage, it is submitted that the deceased was 18 years of age at the time of occurrence.
7. ' We have heard learned counsel for the parties at length and have gone through the record with their able assistance.
8. ' In the instant case, the occurrence had taken place at 5-30 P.M. On 19-2-2004 in the area of Mauza Tatha which is at a distance of five kilometers from Police Station Basal while the matter was reported to the Police by Sher Muhammad (P.W.9) father of deceased through written complaint Exh.PE/1 at 7 P.M., the same evening and the formal F.I.R. Exh. PE was recorded by Inspector Muhammad Farooq, P.W.11.
9. ' The deceased is Muhammad Ihsan while Sher Muhammad complainant is his real father. The ocular account was furnished by Sher Muhammad and Muhammad Irfan, P.Ws., 9 and 10 respectively. The appellants were arrested on 18-4-2004. Abdul Jalil while in custody got recovered a knife on 23-4-2004.
10. ' Dr. Zafar Iqbal P.W.1. At 8 P.M. On 20-2-2004 conducted postmortem examination on the dead body of deceased Muhammad Ihsan and observed a stabbed incised wound on the chest. The duration between injury and death was opined as immediate while and between death and postmortem as 12 to 16 hours.
11. First of all, we would take the motive part of the case. The motive set up by the prosecution was a previous altercation between the deceased and Abdul Jalil, appellant. No motive whatsoever was even alleged against Shakil and Iftikhar appellants. They both are real brothers inter se. It is the case of prosecution that both Shakil and Iftikhar caught hold the deceased from his arms while Jalil stabbed a knife blow on the chest of the deceased. Firstly, to cause a single injury with knife, there was no need to catch hold the victim and secondly, the possibility of hitting the knife to co- accused of Jalil cannot be ruled out when they had caught hold the victim from his arms. In these circumstances, the benefit of doubt arises in favour of the appellants and while extending the same benefit, we accept Criminal Appeal No, 23 of 2005 filed by Shakil and Iftikhar appellants, set aside the conviction and sentence recorded against them by the trial Court vide impugned judgment and acquit them of the charge. Both the appellants Shakil and Iftikhar are in jail. They shall be released forthwith if not required to be detained in any other case.
12. Next is the case of Abdul Jalil, appellant. After going through the record, evidence produced by the prosecution and attending to the submissions made by learned counsel for the parties, we are of the considered opinion that the prosecution has proved its case against him through ocular account which is fully corroborated by medical evidence and the recovery of blood-stained knife.
13. However, there are mitigating circumstances in favour of the appellant. It was the case of the prosecution itself in the F.I.R. That in a quarrel which took place between the deceased and the appellant, the deceased had insulted the appellant and to take the revenge, the appellant caused the injury. Admittedly, the appellant did not repeat the injury. There was no previous background of enmity between the parties. The motive has also been disbelieved by the trial Court. Considering these factors as extenuating circumstances, we though maintain conviction of the appellant under section 302(b), P.P.C. But convert the sentence from death to Imprisonment for Life with the benefit of section 382-B, Cr.P.C. The death sentence of Abdul Jalil appellant is not confirmed and Murder reference is answered in the Negative.
14. ' Criminal Revision No, 19 of 2005 filed by the complainant for enhancement of sentence of Shakil and Iftikhar appellants is dismissed.