JAVID IQBAL, J.-Bashir. Ahmad, 25 years, armed with Chhurra, and Rashid Ahmad, aged 19 years, armed with Chhurra, both ions of Khan Zaman and brothers have been convicted under section 302/34, P. P. C. For the murder of Gauhar Rahman Khan, aged 25 years, their brother-in law (Behnoi) and vide judgment dated 13th March, 1978 of the Additional Sessions Judge, Lahore, Bashir Ahmad was sentenced to death and Rashid Ahmad to imprisonment for life. Each of them was also sentenced to pay fine amounting to Rs. 2,000 or in default to undergo 1-- years' rigorous imprisonment, and if the fine was realized from both of them, it was ordered to be paid as compensation to the legal heirs -of the deceased. Their third brother, namely, Khalilur Rahman; aged 32 years, who was stated to be empty-handed, was given the benefit of doubt and acquitted.
Bashir Ahmad had also an injury oh his person at the time of his arrest. The appeal of the convicts is being taken up along with Reference for the confirmation of death sentence awarded to Bashir Ahmad appellant as well as Criminal Revision No. 383 of 1978 and these matters are being disposed of by this judgment.
Criminal Revision No. 383 of 1978 is filed by the complainant for enhancement of the sentence awarded to Rashid-Ahmad appellant to death. However, subsequently an application had been submitted alongwith an affidavit declaring that the complainant-side would not press this Criminal Revision, that they had compromised with the accused-party and that the appellants be acquitted.
2. The occurrence took place at 7-15 p. m. On VOL January, 1976 on the road near the wall of Islamia High School, Multan Road, Lahore, at a distance of two furlongs from Police Station Nawan Kot, Lahore. F. I. R. Exh. P. G. Was lodged by Gul Zaman Khan P. W. 7 complainant, father of the deceased, at 8- 00 p. m. On the same day and it was recorded by Ghulam Yasin Khan A. S. I. P. W. 12.
3. The motive for crime, as stated in the F. I. R. Is that six years before the present occurrence Mst.
Razia, sister of the appellants, was married to the deceased. The relations of .The parties became strained, because the deceased would not permit her to visit her brothers/ parents according to their wishes. This had annoyed the appellants and the acquit--ted co-accused. On the Sunday preceding the occurrence, the appellants and the acquitted co-accused came to the house of the deceased m order to take Mst. Razia along with them, but the deceased did not allow her to accompany them. On the departure of the accused-party Khalilur Rahman, acquitted co-accused is stated to have held out a threat that they would teach the deceased a lesson for not permitting their sister to accompany them. The prosecution case is that the occurrence had taken place in this background.
4. The prosecution has produced two eye-witnesses of the occurrence namely, Gut Zaman Khan P.
W. 7, father of the deceased, and Mst. Zebun Nisa P. W. 8, mother of the deceased. Aaitbar Khan, an unconnec--ted person and neighbour was cited as an eye-witness in the F. I. R. But could not be produced since he had died before the trial commenced.
5. The appellants were arrested on 28th January, 1976 by Muhammad Siddique S. I. P. W. 11 whereas the acquitted co-accused was arrested by him on 29th January, 1976. From the person of Bashir Ahmad appellant were removed at the time of .His arrest blood-stained Shalwar P. 7 and blood- stained shirt F. 8 and taken into possession vide memo. Exh. P. D. Dated 28th January, 1976. The attesting witnesses are Ghulam Sarwar P. W. 5, Rashid Ahmad (not produced) and Muhammad Siddique S. 1. P. W.
11. At the instance of Bashir Ahmad appellant was recovered blood-stained Chhurra P. 11 and taken into possession vide memo Exh. P. H. Dated 31st January, 1976. The attesting witnesses are Gul Zaman Khan P. W.
7. Ch. Ghulam Rasul (not produced) and Muhammad Siddique S. I. P. W.
11. From the person of Rashid Ahmad appellant were removed at the time of his arrest blood-stained Shalwar P. 9 'and blood-stained shirt p. 10 and taken into possession vide memo.
Exh. P. E. Dated 28th January, 1976. The attesting witnesses are Ghulam Sarwar P. W. 5, Rashid Ahmad (not produced) and Muhammad Siddique S. I. P. W.
11. At the instance of Rashid Ahmad appellant was recovered blood-stained Chhurra P. 12 which was taken into possession vide memo.
Exh. P. J. Dated 31st January, 1976. The attesting-witnesses are Gut Zaman Khan P. W. 7, Ch. Ghulam Rasul (not produced) and Muhammad Siddique S. 1. P. W.
11. According to the report of the Serologist Exh. P. T. At page 10 of the Paper Book all the above recovered articles were found to be stained with human blood. Nothing was recovered from Khalilur Rahman, acquitted co-accused.
6. The appellants as well as the acquitted co-accused, in their state--ments before the trial Court, totally denied having participated in the occurrence. The appellants disowned recoveries and stated that they had been falsely implicated. Bashir Ahmad appellant had stated that the deceased was not the real son of Gut Zaman Khan P. W. But was his adopted son and his staying in his house was opposed by the relatives of Gut Zaman Khan P. W. Besides the presence of the deceased in the only room of the house of Gut Zaman Khan P. W. Was likewise offensive to the relatives as Zebun Nisa P. W. Wife of Gut Zaman Khan P. W. Was a. Young woman and they had thought that there was some shady relation--ship between the deceased and Mst. Zebun Nisa P.
W. When the deceased was made to live in their house Mst. Zebun Nisa P. W. Had turned out the other relatives and for this reason also they were inimical towards the deceased. In other words, according to the defence version the deceased was done to death by some relatives of Gul Zaman Khan P. W. But since the appellants and their third brother were the only close relatives of the deceased, who knew this background and might have demanded probe against Gul Zaman Khan P. W. Or his relatives consequent upon the murder of the deceased, Gut Zaman Khan P. W. Falsely implicated them in the murder case as a counterblast. He also stated that the deceased was his Behnoi and, therefore, extremely dear to him and that there was no dispute whatsoever between them. The identical statement was made by the other appellant. The acquitted co-accused had stated that he was not present at the time of the occurrence on the spot but was watching a film called `Talash' in Saghir Cinema Misri Shah, Lahore. When Bashir Ahmad appellant was asked as to how he had received an injury on his person he stated that on his arrest he was put into the Police lock-up and pushed in where he tumbled and fell on the bar of the gate and was injured in conse- -quence thereof.
7. Dr. Tahir Anis P. W. 1 conducted post-mortem examination on the dead body of the deceased at 12-30 p. m. On 28th January, 1976 and found on his person 27 injuries in the form of incised wounds, stab wounds and two abrasions. These injuries were on the neck, head, face, chest, in the abdomen region as well as hands and other parts of the body. All the injuries except two had been inflicted by sharp-edged weapon. In his opinion, death had occurred due to bleeding and shock mainly as a result of the first injury which was an incised wound 9----- x 4" bone deep over front and sides of upper part of neck. This injury was individually suffi--cient to cause death in the ordinary course of nature. In the cross-exami--nation he stated that the first three injuries could be caused by a weapon with a large cutting blade like hatchet or Toka. He also stated that inclu--ding the first injury three other injuries were grievous in nature and were individually or collectively sufficient to cause death of the deceased in the ordinary course of nature. In his opinion, three kinds of weapons could have been used e. g. Blunt, heavy cutting and sharp-pointed one.
8. In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful day the deceased and his father Out Zaman Khan P. W. 7 were returning to their house on foot from Chauk Yateem Khana. The deceased was 15/20 paces ahead of his father. When he arrived near the wall of Islamia High School, the appellants and the acquitted co-accused, armed as described above, emerged from behind the wall. Bashir Ahmad appellant gave a Chhurra blow to the deceased which he warded off with his left hand and consequently his left hand was injured.
Thereafter, Khalilur Rahman, acquitted co-accused, held the deceased in a Japha and felled him down on the ground. Then Bashir Ahmad appellant gave a Chhurra blow on .The neck of the deceased so much so that he had cut his neck to very large extent. Rashid Ahmad appellant then gave a Chhurri blow which fell in the stomach region of the deceased and due to the injury the intestines of the deceased came out. They went on causing more injuries to the deceased. Gut Zaman Khan P. W. Raised alarm which attracted the attention of Aitbar Khan, neighbour (not produced since dead) who rushed to the scene of crime as well as Mst. Zebun Nisa P. W. 8 wife of Gut Zaman Kban P. W. And mother of deceased, who witnessed the occurrence besides Gut Zaman Khan P. W. The deceased died on the spot. Leaving behind Aitbar Khan to guard the dead body, Gut Zaman Khan P. W. Proceeded to lodge the report.
9. We have heard learned counsel for the parties and carefully perused the record. It is evident from the record that the deceased, is the instant case was an adopted son of Gul Zaman Khan and Mst. Zebun Nisa P. Ws. According to Mst. Zebun Nisa P. W. The deceased was six years old when he had been so adopted as both Gul Zaman Khan and Mst. Zebun Nisa P. Ws. Were issueless.
Thereafter, when he grew up he was married to Mst. Razia, sister of the appellants and the acquitted co--accused, by Mst. Zebus Nisa P. W. Adopted mother of the deceased, about six years before the present occurrence. At the time of the death of the deceased he was about 25/26 years old. It is stated by both the eye--witnesses that the marriage between Mst. Razia and the deceased was quite successful and happy for about five years and two children, a boy and a girl, were born out of the wedlock. During this period Mst. Razia could freely go and visit her parents and brothers, the appellants, and there had been no quarrel between the deceased and the accused-party.
However, thereafter without assigning any reason the deceased disallowed Mst. Razia to visit her brothers according to their wishes and for this reason they were annoyed. The prosecution version is to the effect that on Sunday preceding the occurrence the appellants and their brother Khalilur Rahman acquitted co-accused came to the house of the deceased in order to take Mst. Razia along with them but the deceased refused to send her. It appears that there must have been some altercation on this account and threat was given to the deceased that he would be taught a lesson for not allowing Ust. Razia to accompany her brothers. The prosecution case is that it was in this background that the accused-party had attacked the deceased. It may be pointed out at this stage that the defence version when suggested to the eye-witnesses was vehemently denied as incorrect. There is otherwise also no evidence on the record to support the defence version. To recapitulate, the defence version is that the relatives of Gul Zaman Khan P. W. Were offended by the staying of the deceased in the house of Gul Zaman Khan P. W. Along with his young wife. Mst. Zebun Nisa P. W. Particularly when Gul Zaman Khan P. W. Had thrown out his two nephews from his house.
It was also argued that the deceased used to work in some Mill and there were groups of labourers in the said Mill. In other words, he had also enemies amongst the labourers, who were either for or against the Union. In brief, the case of the defence is that the deceased was done to death either by relatives of Gul Zaman Khan P. W. Or some other enemies amongst the labourers un-witnessed by anyone and the appellants as well as their brother were falsely implicated due to suspicion or due to the reason that they were in the know of the real facts of the relationship between the deceased, Mst. Zebun Nisa and Gul Zaman Khan P. Ws. As we have pointed out earlier there is nothing on the record in support of the defence version which had alse been vehemently denied as incorrect when put to the eye-witnesses. In our considered opinion the defence version is not plausible and, therefore, it was rightly rejected by the trial Judge. The motive version, in the instant case, is supported by both Gul Zaman Khan and Mst. Zebun Nisa P. Ws. It may be pointed out at t his stage that the occurrence took place on the road near the wall of Islamia High School at a distance of 41 feet from the residence of the deceased. The case of the prosecution is that Gul Zaman Khan P. W. The adopted father of the deceased, who worked in the Yateem Khana had accompanied the deceased when the deceased had returned from his Mill and that both of them were going towards their house. The deceased was walking a little ahead of Gul Zaman Khan P. W.
When they arrived at a distance of about 50/51 feet from their house, the appel--lants and the acquitted co-accused are stated to have emerged from behind the school wall and attacked the deceased. At that time there was traffic on the road as well as lights in the shops and the street lights. Consequ--entry, there was no question of lack of identification involved. When the deceased was attacked, he raised alarm and at the same time Gul Zaman Khan P. W. Also raised alarm. Mst.
Zebun Nisa P. W. Who was standing in the courtyard of her house at that time heard the alarm of her husband and rushed to the spot. Aaitbar Khan (not produced since dead) who lived in a neighbouring house, was also attracted by the alarm and. Had arrived at the scene of crime before Mst. Zebun Nisa P. W, arrived there. A perusal of the site-plan indicates that the houses of Aaitbar Khan and Mst. Zebun Nisa P. W. Are not far from the spot where the deceased was attacked. The statements of the eye-witnesses are consistent in the instantly case and they have even otherwise no motive to falsely implicate the appellants. The F. I. R. Was promptly lodged within 45 minutes after the occurrence as the Police Station Nawan Kot was only at a distance of two furlongs from the spot. The ocular testimony, in the instant case, is corroborated by the recovery evidence and is supported try the medical evidence as well as the evidence of motive).
In the light of what has been discussed above, we are convinced in our mind that the prosecution has succeeded in establishing its case as against F the appellants beyond any shadow of doubt.
Their conviction, therefore, under section 302/34, P. P. C. Was quite proper and is accordingly maintained.
However, there remains the question about the sentence, particularly so far as Bashir Ahmad appellant is concerned. Bashir Ahmad appellant has been sentenced to death plus fine, whereas Rashid Ahmad appellant has been sentenced to life imprisonment plus fine. We have also Cr.
Revision No. 383 of 1978 to consider, which is for enhancement of sentence awarded to Rashid Ahmad appellant to death. But subsequently, from the com--plainant side another application had been submitted along with an affidavit declaring that the parties had arrived at a compromise and had forgiven the appellants. Consequently, the Criminal Revision is not pressed and there is a prayer that the appellants be acquitted. If we are to consider that the only reason why the appellants had attacked the deceased was that he had refused to permit his wife Mst. Razia and their sister to go to the house of her parents or to accompany her brothers without assigning any cogent reason, that by itself would constitute a mitigating circumstance at least for the awarding of lesser penalty to Bashir Ahmad appellant. Even in the case of the prosecution no other motive is attributed to the appellants. Thus, if they had any grievance against the deceased, it was only this that he stopped allowing Mst. Razia to visit her brothers according to their wishes and that this must have created grudge or sufficient annoyance so far as the brothers were concerned. We are, therefore, of the view that it would be sufficient to meet the ends of justice if the sentence awarded to Bashir Ahmad appellant is altered from death to that of imprisonment for life. We also note that we have an application before us of Gul Zaman Khan P. W. Supported by the affidavit that there had been a compromise between the parties in pursuance of which the complainant --party had pardoned both the appellants. In this connection, Mst. Razia, widow of the deceased as well as Gul Zaman Khan P. W. 7, father of the deceased and complainant in the instant case are themselves present in the Court. They have been present before us throughout the hearing of the appeal and have supported the application about compromise as well as the affidavit. They have also stated before us that a compromise had been entered into and they had forgiven the appellants. We are satisfied on examining their identification cards that they were Mst. Razia and Gul Zaman Khan P.
Ws. Also in view of this compromise we are of the opinion that it will not be a fit case where the extreme penalty provided by law for the offence under section 302, P. P. C. Be imposed on Bashir Ahmad appellant. In this connection learned counsel for the appellants has placed before us Cr.
Appeal No. 950 of 1979 (M. R. No. 256 of 1979) decided by a D. B. Of this Court consisting of Saad Saood Jan and Sardar Muhammad Dogar, JJ. On 2nd November, 1981 where due to the com-- promise between the parties the Court had set aside the sentences of death and had instead directed that the convicts-appellants should suffer impri--sonment for life. In that case the sentences of fine were also set aside and it was further directed that while computing the sentences the convicts/ appellants should be given credit for the period they had spent under custody before their conviction as provided by section 382-B, Cr. P. C. In this connection learned counsel also placed reliance on Muhammad Anwar v. State Cr. P S L A No. 254 of 1980, decided by the Supreme Court on 9th January: 1982. In the light of these authorities while maintaining the conviction of the appellants under section 302/34, P. P. C. We alter the sentence awarded to Bashir Ahmed appellant from death to imprisonment for life. The sentence of life imprisonment awarded to Rashid Ahmad appellant is maintained. The sentences iof fine to both the appellants are set aside. In computing the life imprisonment sentences awarded to the appellants, credit should be given to them for the period which they had already spent under custody before their conviction and sentence as provided by section 382-B, Cr. P. C. We are informed that both of them had been in the lock-up since 28th January, 1977 and had never been admitted to bail. Their appeal is accepted to this extent.
The death sentence awarded to Bashir Ahmad appellant is not confirmed.
In the light of the above discussion, we do not deem it necessary to pass any order on Cr. Rev. 383 of 1978 particularly when we have accepted the application for compromise.