MIAN BURHANUDDIN KHAN, J.--The appellant was tried by the learned Sessions Judge, Bahawalpur under section 302/397/412, P.P.C. For the murder of Issa and for robbing him of Rs. 1,000 in cash and wrist watch etc. On the night between 15th/ l6th February, 1967 in his shop. He was acquitted of all the charges by the learned Sessions Judge vide judgment dated 13th April, 1972.
Appeal under section 417, Cr. P. C. Was preferred in the Lahore High Court against his order of acquittal passed by the learned Sessions Judge, and the learned Judges of the High Court set aside the order of the trial Judge, convicted the accused/ appellant under section 302 and sentenced him to imprisonment for life and a fine of Rs. 500 or in default of payment of fine, to further R. I. For six months. Amount of fine, if recovered, was ordered to be paid to the heirs of the deceased. The accused/appellant was also convicted under section 397, P.P.C. And sentenced to 7 years R.
1. The substantive sentence on both counts was ordered to run concurrently.
2. According to the prosecution case on the night between the 15th/ 16th February, 1967, Issa deceased came to Muhammad Ramzan, P.W. 7, who wag working at his well, in an inured condition and unable to speak on account of injury to his left jaw. Muhammad Ramzan took Issa to Jan Muhammad, P. W. 12 and on their enquiry, Issa deceased pointed towards the northern side of the village and at his direction they proceeded towards the house of accused/appellant. The deceased pointed towards the accused/appellant indicating that he is the person who caused him the injuries with a hatchet. The reason for attack, as given by the deceased by signs, was that he had been deprived of sole money and wrist watch. These two witnesses brought the deceased to the dera of Ghulam Farid, C. W. 1 Chairman Union Council, where Muhammad Ramzan narrated the facts to Abdul Aziz, Lambardar, P.W.
5. In the presence of all these persons namely Abdul Aziz, Ghulam Farid, and Jan Muhammad the deceased again, by signs, charged Muhammad accused/appellant for his injury. Abdul Aziz asked the accused/appellant as to why he has caused injuries to Issa deceased who admitted having done so for the sake of money and pleaded for mercy.
3. A tongs was hired and Issa deceased (then injured) was taken towards Uch Sharif Police Station but on the way Muhammad Yasin, S. I. P. W. 13 met them and he recorded the statement of Abdul Aziz Exh. P.P. At about 2.30 p. m. And this report Exh. P.F. (statement) was sent to the police station for registration of the case. The deceased Issa was sent to the hospital where he was examined by Dr. S. Abdul Rashid P. W.
1. Issa, later on, succumbed to his injury and on 24th February, 1967 Dr. Abdul Mannan Siddique P. W. 3 performed the post-mortem examination and found an incise would 4---x1/2---xl.1-1/2--- on the left side of the face extending from left part of upper lip up to tragus of left ear cutting the lower part of left auxiliary bone and head of the left mandible including 5 upper teeth. Statements of Dr. Abdul Rashid and Dr. Abdul Mannan were recorded by the C. M. And were trans--feered to the Sessions file under section 509, Cr. P. C.
4. The accused/appellant, , while in police custody, led the Investi--gating Officer to the recovery of various articles by producing key Exh. P-4 by which his shop was opened and in a small container Exh. P-10 a handkerchief Exh. P-11, wrist watch Exh. P-12, thirty-two currency notes each of denomination of Rs. 10, Exh. P-13/1-32, thirty-six currency notes each of Rs. 5 Exh. P-14/1-36, three currency notes each of Rs. 100 Exh. P-18/1-3 and thirty-six Eidi notes Exh. 16/1-66, were found and were taken into possession vide Memo. Exh. P.K. The accused /appellant also pro--duced hatchet P-7 concealed under the ceiling of the shop and also led to the recovery of gunny bag P-8, a loincloth P-9, a pair of shoes P-6/ 1-2, a mat P-5. All these articles were found stained with blood.
These articles were sent to the Serologist for chemical examination and the same were found blood-stained. As regards blood stains on the hatchet, the report was negative. Muhammad Hussain, C. W. 3 Patwari Circle prepared the site plans Exh. P. C. And P. C / 1.
5. Abdul Aziz, P. W. 5 lodged the report as stated above and in his presence the deceased had pointed towards the accused/ appellant as the culprit. He stated that the deceased was brought in an injured condition to the dera of Ghulam Farid, where he was called and he saw the deceased in an injured condition. Muhammad Ramzan P. W. 7 and Allah Wasaya P. W. 8 were also present in the dera of Ghulam Farid. On enquiry by him the deceased Issa, who then being injured was unable to speak, but by signs he pointed towards the accused/appel--lant to be the culprit who had caused him the injuries. The accused confessed his guilt but pleaded for mercy. Abdul Aziz further stated that he took the deceased on a tonga to hospital but on the way near Haidarpur Village they met Muhammad Yasin, S. I. He made a state--ment and the same was recorded by the said S. I. And was sent to the P. S. For registration of the case. He also joined the police investigation and various incriminating articles were duly taken into possession by the. Investigating Officer.
6. Bagu Khan, P., W. 6 also witnessed the recovery of the articles at the instance of his accused/appellant which he had taken away from the deceased. And had concealed in his shop.
He signed the Memos. As an attesting witness.
7. Muhammad Ramzan, P. W. 7 was the first person to be-contacted by the deceased, while he was working at his well. He took the deceased to Jan Muhammad, P. W. 12, and then all the three went to the shop of Muhammad accused/appellant where he pointed towards the accused/ appellant to have caused him the injury. Then they took him to the dera of Ghulam Farid where Abdul Aziz Lambardar was summoned.
8. Allah Wasaya, P. W. 8 also made similar statement. In his presence also the deceased, by signs, expressed that he had been dep--rived of Money and his wrist w4tch by the accused/appellant.
9. Ilam Din, P. W. 9 is father of the deceased. According to him the deceased used to purchase sheep and goats and then sell them in the market ; that he used to leave the village in connection with his business and used to stay away when and where it was necessary. He identified the wrist watch and handkerchief belonging to the deceased and recovered from the shop of the accused/appellant.
10. Jan Muhammad, P. W. 12 also made a statement regarding the extra-judicial confession made by the accused. The deceased was brought to him during the morning prayer time in. Wounded condition and then they took him to the shop of the accused/ appellant where the deceased, by signs, informed them that he had been robbed and injured by the accused.
11. Muhammad Yasin P. W. 13 S. I. Investigated the case and made the recoveries of the incriminating articles at the instance of the accused/ appellant, who led him to his shop the scene of crime.
12. Ghulam Farid was examined as C. W.
1. He partly confirmed the statements of the other witnesses. The accused when examined, denied the charge.
13. Learned counsel before us contended that this is a case of no evidence; that the statement of the prosecution witnesses regarding the extra-judicial confession had been disbelieved by the trial Court for cogent reasons ; that the witnesses have contradicted each other on material points regarding the extra-judicial .Confession and the recovery of the incriminating articles. We do not agree with the submissions made by the learned counsel. It is case where there is no reason for any of the prosecution witnesses to implicate the accused/appellant falsely. The deceased who was a stranger was not well-looked after, after the injuries caused to him, by any of the witnesses.
He remained there in the village for sufficient time after having made the accusation against the accused/ appellant. As for Abdul Aziz, Gambardar, Jan Muhammad and Muhammad Ramzan we do not find any reason that they would go to the extent of fabricating a case against the accused/appellant with whom they have no enmity whatsoever. Blood was also found in the shop of the accused and various articles, belonging to the deceased, were recovered from there and this fact corroborates the extra-judicial confession made by the accused/appellant in the presence of the witnesses. Thus, we find that this is a case where the accused /appellant had been rightly convicted and sentenced on both the counts. However, we find that it is a case where imprisonment for life is not to be awarded as punishment provided for the offence at the time of commission of crime in 1967 was transportation for life which was substituted by imprisonment for life by Law Reforms Ordinance, 1972 and, therefore, proper legal sentence in the case would be transportation for life. Thus, we maintain the conviction of accused/appellant under section 302, P.P.C. And sentence him to transportation for life plus fine, and in default, 6 months' R. 1. :'is conviction and sentence under section 397 is also maintained. Both the sentences are to run concurrently. The accused/ appellant would, however, be entitled to the benefit of section 382-B, Cr. P. G,