ABAID ULLAH KHAN, J.-Akhtar Abbas, son of Jafar, aged 22 years Theam by caste and his father's maternal cousin, Muhammad Sarwar, son of Umar Din aged 20 years, caste Arain, cultivator, residents of Chak No. 286/G. B., Tahsil Rajana, District Faisalabad have preferred this appeal against the judgment of the learned Additional Sessions Judge, Faisalabad, dated the 4th November, 1978, convicting them under section 302/34, P.P.C. For committing murder of Abdul Ghaffar, son of Noor Muhammad, aged 23 years, who was not related to them on the 3rd March, 1976, at about 6-00 a.m. In a field of Chak No. 236/G. B, about half a mile distant from Police Station Rajana and sentencing them to death and a fine of Rs. 1,000 or in default of payment thereof to six months' rigorous imprisonment each. The amount of fine if realised, was directed to be paid to the heirs of the deceased Murder Reference No: 254 of 1978 for confirmation of their death sentence is also before us. Jaffar, son of Nadir Khan, father of .Akhtar Abbas appellant, who was tried alongwith the appellants was, however, acquitted by the learned trial Judge. Muhammad Sadiq, complainant, uncle of Abdul Ghaffar deceased, has filed Revision Petition No. 483 of 1980 against the acquittal of Jaffar. This judgment will dispose of the appellants' appeal, murder reference for.
Confirma--tion of their sentence of death and the complainant's aforesaid revision petition.
2. The motive alleged by the prosecution to be behind the commission of the murder of the deceased, which was not relied upon by the learned trial' Court, was that on the 1st March, 1976, at peshiwela Jaffar, acquitted accused, wanted to purchase on credit some cloth from the deceased, who was running a shop of cloth at Adda Rajana, but as the deceased refused to sell cloth on credit Jaffar abused the deceased who paid him back in the same coin and slapped him as well.
Jaffar is stated to have held out a threat that he would avenge the insult.
3. The occurrence, as set out in the First Information Report, Exh. P..F., took place in the following manner. At about half past five in the morning of the 3rd August, 1976, one Abdul Sattar (not produced as he had gone to Saudi Arabia) informed Muhammad Sadiq com--plainant. P.W. 4, that he had seen the deceased and the appellants hurrying towards the dhari of Akhtar Abbas appellant and on inquiry the deceased had not given a satisfactory reply as to where they were going. Muhammad Sadiq, complainant became somewhat apprehen--sive as to why the deceased was accompanying the appellants- when be had to proceed to Lyallpur to purchase cloth that day. Alongwith Abdul Sattar, Nabi Bakhsh (P.W. 5) and Muhammad Akram (not produced as being unnecessary) the complainant followed the appellants and the deceased. When the complainant party reached the dhari of Jaffar, the acquitted accused, at about 6-00 a. m., they heard cries of the deceased calling for help emanating from the nearby field. They accordingly rushed towards that place. They saw Jaffar holding the deceased by his hair and Akhtar Abbas administering a knife blow in front of his neck. The second knife blow was inflicted by Muhammad Sarwar appellant at the back of his neck. At that moment both the hands of the deceased were tied with a piece of string at his back. Receiving knife blows given by the appellants the deceased fell down on the ground and the appellants as also the acquitted accused started running away.
However, Muhammad Sarwar appellant along--with his knife was apprehended by the complainant party at the spot. Akhtar Abbas and Jaffar made good their escape. The deceased succum--bed to the injuries at the spot. The complainant went to Police Station, Rajana where he lodged at 8-00 a.m., the same day the First Information Report, Exh. P.F., which was recorded by Moharrir Head Constable, Muhammad Salim.
4. Sardar Khan Sub-Inspector of Police, P.W. 7, carried out investigation of the case. Reaching the place of occurrence soon after registration of case he prepared the injury statement of the deceased, inquest report in respect of his death and despatched his dead body to mortuary for post-mortem examination. He arrested Muhammad Sarwar appellant who was in the custody of Nabi Bakhsh (P.W. 5), Abdul Sattar and Muhammad Akram. The blood-stained shirt, Exh. P. 2, and blood-stained chadar, Exh. P.
3. Which Muhammad Sarwar was wearing at that moment was secured by him after having been wrapped in a sealed parcel vide memorandum, Exh. P.J. Abdul Sattar produced before him the blood-stained knife, Exh. P. 1, which had been used as weapon of offence by Muhammad Sarwar appellant, and Sardar -Khan took it into his possession after having made it into a sealed parcel vide memorandum, Exh. P.O. The blood-stained piece of string, Exh. P.
4, with which the hands of the deceased had been found tied was also taken possession of by the Investigating Officer vide memorandum; Exh. P.K. Memorandum, Exh. P.G. Was attested by Muhammad Sadiq (P. W. 4), Nabi Bakhsh (P. W. 5), Sardar Khan (P.W. 7), Abdul Sattar and Muhammad Akram. The other memoranda bear the attestation of Nabi Bakhsh (P.W. 5), Sardar Khan (P.W. 7) and Muhammad Akram.
5. As Muhammad Sarwar appellant was found to be id injured condition Sardar Khan. (P.W. 7) prepared his injury statement, Exh. P.M., and got him examined by Dr. Akhtar Ali, Medical Officer, Primary Health Centre, Rajana (P. W. 6), on the 4th March, 1976, at. 11-00 a. m. The following injuries were noticed on his person by Dr. Akhtar Ali
(1) A lacerated wound --" x --" x --" situated on the left parietal region 3--" above the left ear pinna.
(2) A contusion 3" x--" situated on the upper left arm.
(3) A contusion 3" x --" situated on the- left arm, 2" below injury No. 2.
(4) A contusion 2--" x 1--" situated on the back of left forearm 3" above from the left wrist joint.
(5) A contusion 2" x --" situated on the back of , left forearm, 1" above from injury No. 4.
(6) A swelling 3" x --" situated on the back of left wrist.
(7) Abrasion 2--" X --" situated on the back, of neck.
All the injuries had been caused with blunt weapon and were Simple in nature. Exh. P.M./1 is the medico-legal examination report.
6. Sardar Khan (P. W. 7) arrested Akhtar Abbas appellant and Jaffar, acquitted accused, on the 6th March, 1976. While in custody Akhtat Abbas appellant led to the recovery of blood-stained knife, Exh. P. 5, from the compound of his dhari which was covered into a sealed packet and taken possession of by Sardar Khan vide memorandum, Exh. P.L., which was attested by Nabi Bakhsh (P.
W. 5), Sardar Khan (P. W, 7) and Abdul Sattar.
7. The knives, Exh. P. 1 and Exh. P. 2, shirt, Exh. P. 2, and chadar Exh. P. 3, were found to be stained with human blood vide report of the Serologist, Exh. P.Q.
8. Dr. Khurshid Ahmed Khan, Medical Officer, Civil Hospital, Toba Tek Singh, P. W. 1, performed autopsy on the dead body of the deceased on the 4th March, 1976, at 9-00 a.m., and found the following injuries thereon :-
(1) Stab wound 2" x 1" x 2--" on the right side of neck. Blood vessels of neck and muscles were cut.
(2) Stab wound 1" x 1/3" x 1" on back of neck right side.
(3) Ligature marks on wrist joint of right and left arms were present.
Blood vessels of neck on the right side were cut. Both sides of heart were empty. Six ounces of semi-digested food was present in the stomach. Bladder was empty. All other organs of the body were found intact and healthy.
All the injuries were ante-mortem. Injuries 1 and 2 had been caused with sharp-edged weapon.
Injury No. 1 was sufficient to cause death individually in the ordinary course of nature. In the opinion of the Medical Offcer death had resulted from shock and haemorrhage due to injury No. 1 within about a few minutes of infliction of the injuries. Time between death and post-mortem examination was estimated by the Medical Officer to be 24 hours. Exh. P.A, is the copy of the post-mortem examination report and Exh. P.A./1 is the diagrammatic sketch showing location of injuries.
9. The appellants denied commission of murder of the deceased, disowned recoveries of weapons of offence and pleaded false implica--tion due to suspicion. They did not choose to produce any evidence in defence.
10. Muhammad Sarwar appellant denied that he was wearing blood--stained shirt, Exh. P. 2, and blood-stained chadar, Exh. P. 3, at-the time of his arrest. As regards injuries on his person he explained that he had sustained those injuries at the hands of the police when he had been tortur- -ed at the police station.
1 t. The learned trial Judge did not accept the motive as set up by the prosecution to be true. He reasoned, and it seem quite correctly, that had the deceased abused and slapped Jaffar', he would not have dared to accompany his son, Akhtar Abbas, and first cousin, Muhammad Sarwar.
Therefore, he concluded that the prosecution version that the deceased had abused and slapped Jaffar on the 1st March, 1976, was not acceptable at face value. Accordingly he held that the prosecution had failed to prove the alleged motive.
12. The learned trial Judge believed the testimony of Muhammad Sadiq (P. W. 4) and Nabi Bukhsh (P. W. 5) in so far as it pertained to the commission of murder of the deceased by the appellants.
Human blood-stained wearing apparels of Muhammad Sarwar appellant as also recoveries of human blood-stained knife, Exh. P. 1, from Muhammad Sarwar and similarly blood-stained knife.
Exh. P. 5, at the instance of Akhtar Abbas appellant were treated by the learned trial Judge as good corroboration of ocular evidence. Arrest of Muhammad Sarwar appellant at the spot immediately after commission of murder of the deceased was an additional circumstance to hold the appellants guilty of the commission of the murder of the deceased.
13. Obviously it is difficult to accept the truth of the allegation constituting the motive set up by the prosecution. We would agree to the reasoning adopted by the learned trial Judge to hold that the alleged motive has not been established by the prosecution. Takina the incident of alleged insult heaped by the deceased upon Jaffar out of con--sideration we do not find that any previous enmity existed between the deceased and the appellants. Muhammad Sadiq (P. W. 4) is not shown to bear any hostility against the appellants. Nabi Bakhsh (P. W. 4) is quite an independent witness.
Therefore there is no reason to. Disbelieve the evidence of Muhammad Sadiq (P. W. 4) and Nabi Bakhsh (P. W. 5) to the extent of commission of murder of the deceased by the appellants Placing reliance upon their testimony we are left with no option but to H endorse the finding of the learned trial Judge that the appellants were responsible for murdering the deceased. Of course apprehension of Muhammad Sarwar with human blood-stained clothes and knife at the spot as also recovery of human blood-stained knife at the instance of Akhtar Abbas provide good confirmation to their participation in the commission of crime with which they were charged.
14. The opinion of Dr. Khurshid Abmad Khan (P. W. 1) express--ed in his cross-examination that the deceased would have taken his last meal four hours before his death was sought to be exploited by learned counsel for the appellant in support of his contention that the deceased. Might have been murdered during night much before 6-00 a.m. As be could not be presumed to have taken his meals at 2-00 a.m., and that the testimony of the eye-witnesses to the effect that the appellants had murdered the deceased at 6.00 a.m., was not trustworthy. However, we consider the ocular evidence of the eye-witnesses branding the appellant as murderers to be trustworthy and reliable. The opinion of the Medical Officer can scarcely alter what actually happened. The deceased might have taken early morning meal and even that could have been in semi--- digested condition. Therefore, the evidence of the Medical Officer on this point hardly advances the appellants' case.
15. The learned counsel for the appellants canvassed for imposition of lesser penalty of imprisonment for life upon the appellants for the reasons that the appellants gave no more than one blow each to the o deceased, that the motive set up by the prosecution had not been proved and that the real cause of murder of the deceased remained shrouded in mystery. It is true that the Court has not been taken into confidence a to what really prompted the appellants to murder the deceased ; as to why the appellants murdered the deceased remains an open question. May un-- desirable deceased suffered death at the hands of the appellants due to some un--desirable act of his which we do not know. The learned counsel for the appellants relied upon Hakim Ali v. State (1971 SCMR 432) and Sohaila v. State (1978 P Cr. L J 709) to strengthen his argument that as the motive was not established and the immediate cause of death of the deceased remained shrouded in mystery the appellants would be entitled to the concession of lesser penalty Therefore, while maintaining their conviction recorded by the learned trial Court the sentence of death awarded to them is altered to that of imprison--ment for life, the sentence of fine is left intact. Their sentence of death is not confirmed. With this modification in the sentence this appeal is dismissed.
16. We do not find any justification to disturb the acquittal of Jaffar. The revision filed by the complainant against his acquittal is dismissed.