' JAVID IQBAL, C. J.-Muhammad Akram, son of Barkat Ali, aged 19, armed with knife, Ashiq, son of Barkat Ali, his brother, aged 21, empty-handed, and Boota, son of Sardara, maternal-cousin of the aforesaid two, aged 22, empty-handed, have been convicted and sentenced vide judgment, dated 13th April, 1980 of the Sessions Judge, Gujrat, as follows. They have been convicted under section 302/34, P. P. C. For the murder of Muhammad Ashraf, aged 22/23, and whereas Muhammad Akram was sentenced to death plus fine of Rs, 5,000 or in default to undergo three years' rigorous imprisonment, Ashiq and Boota were sentenced to imprisonment for life plus fine of Rs, 5,000 or in default to undergo three years' rigorous imprisonment each. Each of the three convicts was further ordered to pay Rs, 5,000 as compensation under section 544-A, Cr. P. C. To the heirs of the deceased or in default to undergo rigorous imprisonment for six months. Their co-accused namely, Muhammad Aslam, aged 26, brother of Muhammad Akram and Ashiq convicts (empty-handed) as well as Sher Khan, aged 30, maternal-uncle of Muhammad Akram and Ashiq convicts (empty- handed) were given the benefit of doubt and acquitted. The appeal of the convicts is being disposed of by this judgment along-with the reference for the confirmation of death sentence awarded to Muhammad Akram convict as well as Cr. R. No, 168 of 1983 for enhancement of sentence of life imprisonment to death in the case of Ashiq and Boota appellants.
2. The occurrence took place after Taravih prayers (about 10 p.m.) on 18th August, 1978 (13th of Ramazan) in a street of village Sandhanwala at a distance of 104 miles from Police Station Pahrianwali, District Gujrat. F. I. R. (Exh. P. D.) was lodged by Muhammad Khan (P. W. 7), father of the deceased, at 10 a.m. On 19th August, 1978 and it was recorded by Muhammad Sharif S.-1. (P. W. 11).
3. The motive for crime as stated in the F. I. R. Is that 3/4 months before the present occurrence the accused party had nourished a suspicion that the deceased was carrying on an illicit relationship with Mst. Aziz Begum, wife of Muhammad Aslam acquitted co-accused, and brother of Muhammad Akram and Ashiq appellants. It is stated that it was in this background that the members of the accused party launched an attack on the deceased and due to this suspicion murdered him.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Muhammad Khan (P. W. 7), father of the deceased, Hakam Ali (P. W. 8), paternal uncle of the deceased, and Muhammad Din (P. W. 9) stated to be a partisan. Although unrelated, as he along-with Muhammad Khan (P. W. 7) and Hakam Ali (P. W. 8) was alleged to have, after the present occurrence, committed the murder of Sardara, father of Boota appellant, as well as Lal, his brother and uncle of Boota appellant, although he was acquitted. Muhammad Nazir was cited as eyewitness of the occurrence but was given up as won over.
5. In the F. I. R. The occurrence is reported to have taken place in the following manner. Muhammad Khan and Hakam Ali P. Ws. Who are brothers, were sitting on the roof of the baithak of their house after the Taravih prayers, while the deceased was bringing the buffaloes for tying them inside the haveli. When be was about to bring the third buffalo, the members of the accused party armed as described above, who were already sitting in the form of a there and waiting for him, launched the attack on him. On hearing the alarm Muhammad Khan and Hakam Ali P. Ws. Looked out from the roof as it was a moonlit night and witnessed below that Boota and Ashiq appellants had put a patka around the neck of the deceased, whereas Muhammad Akram appellant whipped out a knife and with it gave a blow which fell on the right chest of the deceased. At that time Muhammad Aslam, acquitted co-accused, was holding the deceased from his hair, whereas Sher Khan, acquitted co-accused, had given him fist blows. The deceased died on the spot. In the meantime, Muhammad Din (P. W. 9) and Muhammad Nazir (not produced) were also attracted to the scene of crime and pleaded the members of the accused party to spare the deceased. The accused party decamped. Leaving behind the others to guard the dead body, Muhammad Khan P. W. Proceeded to lodge the report in the morning as he was afraid to do so at night.
6. The appellants as well as the acquitted co-accused were arrested on 22nd August 1978 by Muhammad Sharif S.-I. (P. W. 11). At the instance of Muhammad Akram appellant was recovered blood-stained knife (Exh. P. 3) which was taken into possession vide Memo. Exh. P. F. Dated 25th August, 1978. The attesting witnesses are Fazal Dad (P. W. 5), Muhammad Hayat Sardar (P. W. 6) and Muhammad Sharif S.-I. (P. W. 11). According to the report of the Serologist (Exh. P. M.) at page 12 of the printed paper-book the aforesaid knife was found to be stained with human blood. No other recovery was made from any other appellant or acquitted co-accused.
7. Dr. Rashid Ahmad (P. W. 1) conducted the post-mortem examination on the dead body of the deceased at 9 a.m. On 20th August, 1978 and found on his person (1) a contusion faint, dark and bluish irregular 4" x 2" encircling right side of neck, (2) abrasion on back of left elbow, (3) incised wound on lower part of left middle finger, and (4) incised penetrating wound in front of chest, right side.
' In his opinion, the death occurred due to shock and haemorrhage as a result of injury No, 4 which had been caused by a sharp-pointed weapon. The other injuries hastened the death. Injury No, 3 was caused by sharp-edged weapon and injury No, 4 by sharp-pointed weapon, whereas rest of the injuries were caused by blunt weapon. The injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. He stated in the cross-examination that injury No, I could be caused by a fall on a hard substance. Similarly injury No, 2 could also be caused by a fall.
Injury No, 3 could have been caused while the victim was defending himself after suffering injury No,
4. He stated that in case the deceased had not received the first three injuries, it could not be said as to how long he might have survived as a result of sustaining injury No,
4. According to his opinion he might have survived 2/3 minutes more after the receipt of these injuries.
8. The appellants as well as the acquitted co-accused totally denied having participated in the occurrence. They stated that they had been falsely implicated due to enmity and suspicion. They pleaded innocence but did not produce any defence. Muhammad Akram appellant as well as his brother Ashiq appellant denied the motive version. Muhammad Akram appellant also disowned the recovery.
9. We have heard learned counsel for the parties and carefully perused the record. The case of the prosecution itself is that the deceased was carrying on an illict relationship with Mst. Aziz Begum who is stated to be the wife of Muhammad Aslam, acquitted co-accused, and who is real brother of Muhammad Akram and Ashiq appellants and cousin of Boota appellant. Muhammad Khan and Hakam Ali P. Ws. Supported the motive version to this effect and Hakam Ali P. W. Had stated in the cross-examination that they had even admonished and restrained the deceased from carrying on this illicit relationship with Mst. Aziz Begum, but in spite of that the deceased kept on meeting the woman. It was argued by learned counsel for the appellants that the eye-witnesses, in the instant case, are closely related to the deceased-one being his father and the other being his paternal uncle, whereas the third eye-witness, namely, Muhammad Din P. W. Was a partisan. He then stated that all the three eye-witnesses had been implicated in the murder of Sardara and La!, although this happened after the present occurrence. His argument is that since the three eye-witnesses were interested witnesses, their testimony should be considered with abundant caution and should not be accepted without corroboration. His first argument was that they might have not seen the occurrence at all and his alternate argument is that even if they had seen the occurrence, their testimony should be considered with abundant caution and should not be accepted without corroboration. He next argued that the houses of the parties were adjoining and that the case of Muhammad Akram appellant may be covered by one of the Exceptions to section 300, P. P. C. As the possibility could not be ruled out that he might have killed the deceased under grave and sudden provocation i,e, having seen him closeted with his sister-in-law in the house. He next submitted that so far as the other appellants are concerned, there was no corroboration of the part ascribed to them by the eye-witnesses and they had been falsely .Implicated only because of their relationship with Muhammad Akram appellant. He also pointed out that in any case their case was at par with the two acquitted co-accused, in the instant case, who are alleged to-have held the deceased by his hair or had given him fist blows. We have carefully considered the arguments of learned counsel for the appellants. First of all there is nothing on the record to show that the deceased was found in the company of Mst. Aziz Begum at the time of the commission of crime or Mst. Aziz Begum was even remotely seen near-about the place of occurrence. In that view of the matter, we are of the considered opinion that there is nothing on the record in support of the proposition that the case of Muhammad Akram appellant was covered by one of the Exceptions to section 300, P. P. C. Or that he had committed culpable homicide not amounting to murder under grave and sudden provocation. We note that two of the eye-witnesses in the instant case, are closely related to the deceased-one being father and the other being uncle, and the third eye- witness, namely, Muhammad Din P. W. Was a partisan of the other two. But we do not agree with learned counsel that they might have not witnessed the occurrence. In our view the houses of the parties are adjoining and it is reasonably probable that after the Taravih prayers in the summer month of August, they might have been sitting on the roof of their baithak at the time of the commission of crime which certainly took place after the Taravih prayers and before the mid-night when every one was expected to be not asleep even if it was the month of Ramazan. Even otherwise, they are natural witnesses of the occurrence. However, being closely related to the deceased, it is probable that they would do padding in the case and, therefore, applying the principle of abundant caution it is proper that their testimony should be only accepted to the extent as it is being corroborated by evidence coming from an independent source. So far as Muhammad Akram appellant is concerned, the part ascribed to him by the ocular testimony, in the instant case, is being corroborated by the recovery evidence as against him and it is being further supported by the motive version as well as the medical evidence. So far as Ashiq and Boota appellants are concerned, the part ascribed to them is that they had put a patka around the neck of the deceased before he was stabbed by Muhammad Akram appellant. First of all we fail to understand how two persons are required to put a patka around the neck of the deceased when this job could be done by a single person. The second point is that no patka was recovered, in the instant case, from Ashiq or Boota appellants. The third point is that although injury No, 1 on the person of the deceased, according to the medical evidence is contusion encircling right side of neck, 4" x 2", the Doctor has expressed his opinion in the cross-examination to the effect that this injury could also be caused by a fall. In the light of this evidence on the record, in our considered view, corroboration of the ocular testimony about the part ascribed to them does not seem to be forthcoming from evidence of an independent source. Consequently benefit of doubt could be given to Ashiq and Boota appellants. We also find this argument of learned counsel for the appellants of substantial force that the part ascribed to Ashiq and Boota appellants was more or less at par with the part ascribed to Muhammad Aslam and Sher Khan acquitted co-accused Who have been given the benefit of doubt. In the light of the above discussion, we are of the view that the prosecution has not succeeded in establishing its case beyond any shadow of doubt as against Ashiq and Boota appellants. Their conviction under section 302/34, P. P. C. And sentence of imprisonment for life etc. Thereunder were not proper and they should have been given the benefit of doubt which we hereby given to them. The result is that the conviction and sentence awarded to Ashiq and Boota appellants are hereby set aside and they are acquitted. The appeal of Ashiq and Boota appellants is accepted. They are already on bail. Their bail bonds shall stand discharged.
In the light of the above discussion we are convinced in our mind that the prosecution has succeeded in establishing its case beyond any shadow of doubt as against Muhammad Akram appellant. His conviction under section 302, P. P. C. Was quite proper although the application of section 34, P. P. C. In his case is uncalled for. His conviction under section 302, P. P. C. Is accordingly maintained. But in the light of the motive version, which appears to be an extenuating circumstance, we reduce his sentence from death to that of imprisonment for life. The sentence of fine and direction for payment of compensation are accordingly maintained. The Jail authorities are hereby directed to grant him the benefit of the provisions of section 382-B, Cr. P. C. At the time of computation of his sentence of life imprisonment. With this modification his appeal is dismissed.
The death sentence in the case of Muhammad Akram appellant is not confirmed.
' In the light of the above discussion we do not find any substance in Criminal Revision No, 168 of 1983 which is accordingly dismissed in limine.