' Khizar Hayat, J.--By his judgment, dated 15th November, 1978, the Additional Sessions Judge, Vehari, convicted appellants Muhammad Ashraf (20 years) and Muhammad Hussain (20 years), under section 302/34, P.P.C. And sentenced each of them to death and a fine of Rs, 5,000 and in default of payment of fine to undergo further rigorous imprisonment for two years, for the murder of Meraj Din, committed at 5-00 p.m. On 22nd November, 1975 in a field near Chak No, 451/E.B., Police Station Burewala, District Vehari. Both of them have filed separate appeals against their conviction and sentence. These appeals and also the reference under section 374, Cr.P.C. For confirmation of death sentences are before us.
2. On 24th November, 1975 at 5-55 p.m., Muhammad Siddiq P.W.6, father of Meraj Din, deceased, lodged a report Exh. P.B. At Police Station Burewala, at a distance of 2 miles from the place of occurrence. It was recorded by A.S.I. Muharrir, Muhammad Azam P.W.2. According to Muhammad Siddique informant, he and his son Meraj Din were present at their house at Asar prayer time when Muhammad Ashraf and Muhammad Hussain appellants came there and asked Mehraj Din deceased to accompany them as they wanted to talk over an important matter in the presence of Rehmat Ullah P.W.5, with whom Muhammad Ashraf appellant used to work as an apprentice. The deceased having agreed left in their company. A little afterwards, the complainant went to Rehmat Ullah's place of calling back his son Meraj Din. On his inquiry Rehmat Ullah told him that in the presence of the appellants, Meraj Din had come to him in the morning and complained that Muhammad Ashraf had illicit liaison with Mst. Guddo, daughter of one Siraj Din and that he (Meraj Din) wished to convey all about it to Guddo's parents. Rehmat Ullah also told him that both the appellants had brought the deceased to him a little before and they had impressed upon the deceased to refrain from talking such indecent things ) Rehmat Ullah also had scolded them and suggested that such secrets should not be divulged to the parents of the girl. Thereafter deceased and the appellants left together towards the fields across the railway line. Having gathered this information, Muhammad Siddique complainant went towards railway line area. He had covered a little distance when he spotted out his son Meraj Din in the fields, who was raising alarm, while Muhammad Ashraf armed with a chhuri and Muhammad Hussain with a knife were inflicting injuries to him on the neck, chest and abdomen. Muhammad Hashim P.W.7, Muhammad Ali P.W.8 and Abdul Majid (not produced) were also attracted to the scene of offence and witnessed the bloody Drama. They shouted at them and seeing them approaching near, the appellants started running. Muhammad Hashim and Muhammad Ali P.Ws. Gave them a hot chase and succeeded in apprehending them at a distance of about one or 1/4 Killa away and snatched weapons from them. Before their return to the spot, Muhammad Siddique complainant, seeing that his son had died, repaired to the Police Station Burewala, leaving Abdul Majid near the dead body. Muhammad Hashim and Muhammad Ali P.Ws. Brought both the appellants at the spot and made them to sit there, waiting for the arrival of the police.
3. Muharrir A.S.I. Muhammad Azam, recorded First Information Report and sent it to A.S.I. Khushi Muhammad P.W.9 for investigation. A.S.I. Khushi Muhammad took Muhammad Siddique complainant with him and reached the spot at 7-00 p.m. The same night. He arrested both the accused persons, seized blood-stained chhuri P.3 and knife P.I4, produced before him by Muhammad Hashim P.W. Vide memo. Exhs. P.H. And P.J., respectively. He also removed blood- stained shirt P.5 and Shalwar P.6 from the person of Muhammad Ashraf appellant and blood- stained shirt P.7 and Chadar P.8 from the person of Muhammad Hussain appellant and sealed them into separate parcels. The aforesaid weapons and clothes were found by the Chemical Examiner as stained with blood. The Serologist later confirmed that the stains were of human origin.
He then prepared the injury statement and inquest report of Meraj Din deceas I and entrusted the dead body to Ahmad Khan Constable P.W.1 for Laking it to the mortuary for autopsy. He also observed one injury each on the hand of both the appellants. Their injury statements were also prepared separately and they were sent for Medical Examination.
4. Dr. Muhammad Afzal Saimi P.W.3 conducted the autopsy on the dead body of Meraj Din at 8 a.m.
On 25th November, 1975 and found the following injuries:--
(1) Incised wound 1" x 3" x bone deep on right side of upper lip near the right angle.
(2) Incised wound 13" x 1" x 1" on the left side of chest at upper area 1" from the mid sternal line.
(3) Incised wound 3/4" x 3" x 1-3/4" on the front of left side of neck at lower area just above inner angle of left clevicle.
(4) An incised wound 3" x i" x by skin deep on the left side of neck at lower area.
(5) Incised wound 13" x 3/4" x muscle deep on the upper right part of right chest 23" inner to right shoulder.
(6) An oblique incised wound 23" x 1" x 2" on the back right side of chest at the iunction of neck.
(7) An incised wound 1" x 11" x 1" on the left side of chest at lower area 5" from the nipple and 3" from the mid sternal line.
(8) An incised wound 1" x 3/4" x skin deep on the front of left side of chest 3/4" inner to injury No,7.
(9) An incised wound 13" x 1" x intestines protruding cuts on the left side of abdomen II" from the umblicus and slightly at lower level.
(10) An incised wound 1" x 3/4" x skin deep on the back of right forearm 1" below the right forearm.
(11) An incised wound 11" x 3/4" x 11" on the inner side of left thigh.
(12) Incised wound 2" x 3/4" x bone deep on the outer side right knee.
(13) Incised wound 3/4" x i" x 3/4" on the inner side of left upper arm.
(14) All the contents of thorax except the left side of chest cavity full of blood. There was a cut on the left lung opposite to injury -No,7.
(15) On the right side were blood clots and left were empty.
(16) The blood vessels of the left side were cut.
(17) All the contents of abdomen were healthy except the abdominal wall were cut opposite the injury No, 9 and intestines were protruding out opposite injury No,
9. The stomach was cut and full.
(18) Small intestines were cut opposite the injury No, 9 and it contains chime.
' In the opinion of the doctor, all the injuries were ante-mortem caused with sharp-edged weapon and the injuries Nos. 3, 7 and 9 were sufficient to cause death in the ordinary course of nature. The same doctor also examined both the appellants on 25th November, 1975. He found one incised wound 3" x 1/10" x 1/20" on the back of left index finger half inch above the tip of Muhammad Ashraf and an incised injury on the palmer surface of right hand of Muhammad Hussain measuring 1" x 1/10" x skin deep.
5. The prosecution has based its case on various pieces of evidence, i,e, the evidence of motive furnished by Rehmat Ullah P.W.5 and Muhammad Siddique P.W.6; the ocular account given by Muhammad Siddique P.W.6, Muhammad Hashim P.W.7 and Muhammad All P.W.8; the incriminating recoveries proved by A.S.I. Khushi Muhammad P.W.9, Muhammad Ali P.W.8 and Muhammad Hashim P.W.7 and lastly the reports of the Chemical Examiner and the Serologist, which are positive in nature.
6. Both the appellants professed innocence at the trial and controverted all the allegations when examined under section 342, Cr.P.C. Muhammad Hussain appellant did not offer to produce defence. Muhammad Ashraf appellant though expressed to lead defence, but the record shows that he did not do so.
7. The learned counsel for the appellants has raised the following points:-
(1) That the presence of the eye-witnesses at the time of alleged occurrence is doubtful; and
(2) That the motive has not been proved.
8. We proceed to discuss first the ocular account furnished by the eye-witnesses. There are three eye-witnesses in this case, namely Muhammad Siddique P.W.6, father of the deceased, Muhammad Hashim P.W.7 and Muhammad All P.W.8. The latter two witnesses have no relationship or connection whatsoever with the deceased. Muhammad Siddique deposed according to his version already contained in the F.I.R. He stated at the trial that both the appellants had come to his house and called his son Meraj Din deceased and asked him to accompany them to the house of Rehmat Ullah P.W. To talk over some important matter there. The deceased went with them. After 15/20 minutes of their departure, he required the services of his son Meraj Din and, therefore, in order to locate him he went to Rehmat Ullah's place. He learnt from him that the deceased had left in the company of the appellants towards the railway line. He went a little beyond the railway line and saw both the appellants :ausing injuries in quick succession to the deceased with their respective weapons. The alarm raised by the deceased attracted Muhammad Hashim P.W.7 and Muhammad Ali P.W.8 and Abdul Majid (not produced). Seeing them approaching nearer, the appellants ran towards the West. Muhammad Hashim and Muhammad Ali P.Ws. Chased and arrested them. Before Muhammad Hashim and Muhammad Ali P.Ws. Could return to the spot, (complainant) left for making report. In cross-examination, he admitted that Rehmat Ullah P.W.
Was his friend. He admitted that he did not raise any hue and cry when he saw his son under attack. He also did not inform his family members about the occurrence before his leaving for the police station. He expressed his ignorance about the apprehension of the two appellants at a distance of one Killa from the spot before he left for Police Station. His conduct as a silent spectator appears to us to be most unnatural. No father could be expected to watch his son being murdered with such a calmness and would leave silently for making report without informing his family even, about the tragedy. He claimed to have gone to the place of Rehmat Ullah P.W. After 20 minutes of the departure of his son in the company of the appellants. He has stated that because he required the services of Meraj Din, therefore, he had set out in his search. The witness has not given out any specific work for which he needed his son most. To us, it looks very strange because only 20 minutes before when Meraj Din had left the house he did not expect that such an emergency would arise. Again the coincidence, that when the witness had practically reached near the scene only then the appellants commenced the attack within his view, is difficult for us to believe. This narration is more than sufficient to dub him as false. It lap pea r s that he has deliberately narrated false facts in order to justify his presence at the spot at the time of occurrence. If he was present during the occurrence, it is unbelievable that he would not know about the factum of apprehension of the appellants by the witnesses made only at a distance of 1 Killa from the scene of occurrence and then being brought to the spot within 2 to 5 minutes. The irresistible conclusion, therefore, is that Muhammad Siddique was not present at the time of occurrence but has been introduced later for creating evidence of "last even" and also to provide evidence of "motive".
' So far as the other two eye-witnesses, namely, Muhammad Hashim .W.7 and Muhammad Ali P.W.8 are concerned, their presence at the cane of offence cannot be doubted for more than one reason.
They had eposed that on 24th November, 1975 at about sunset time they were utting fodder in the field which was quite near to the place of occurrence. Hey heard an alarm and rushed towards the spot. While running towards he scene of incident, they saw Muhammad Ashraf and Muhammad Hussain appellants grappling with Meraj Din who were fighting with each other. Muhammad Ashraf had Churri P.3 with him while Muhammad Hussain had nife P.4 and they were showering blows on Meraj Din deceased, who at act had fallen down. The appellants then ran towards the West, seeing he witnesses running in their direction. The witnesses chased them. Muhammad Ali P.W.8 succeeded in apprehending Muhammad Hussain ppellant while Muhammad Hashim P.W.7 succeeded in apprehending Muhammad Ashraf appellant red-handed at a distance of about a Killa or Killas away from the spot. They snatched their weapons and brought them to the spot and made them sit there and later on produced them longwith their weapons before the police on their arrival. The Investigating officer seized their weapons and blood-stained clothes and sealed them to separate parcels in their presence. They live at a distance of few ills from the place of occurrence, they had gone in the neighbouring field for cutting Barseen fodder and as such they had a definite genuine Eason to be present at the spot. They have no relationship or any other interest with the deceased nor do they have any enmity with the appellants. They were subjected to searching cross-examination but nothing came on record, which could make their testimony doubtful. The learned counsel for the defence made an abortive attempt to make the presence of these witnesses doubtful on the spot. He submitted that since the eyewitnesses had claimed that they were cutting Barseen fodder at the time of occurrence, the absence of Barseen crop around the place of occurrence during those days would explode the myth that they were eye-witnesses of the incident. To substantiate this assertion, a reference was made to the site plan Exh. P.F.
Wherein the occurrence was shown to have taken place in Killa No, 24 of Square No,
76. It is true that in the site-plan cotton crop is shown in Killa No, 24 as well as in the adjoining Killas all around.
To verify whether Barseen crop was available near the place of occurrence, we had to make a close scrutiny of the documents available on record. It was found that Khasra Girdawari Exh.D.D.
(produced by the appellants themselves) showed against the column for Rabi 1976 (which includes period from October, 1975 to March, 1976), that Barseen crop was grown in Killa No, 17 of rectangle No,
76. This land is situated right in the north, contiguous to Killa No, 24, the alleged place of occurrence. Hashim Ali P.W.7 in his cross-examination had stated that he alongwith Muhammad Ali P.W.8 had come running to the place of occurrence from its north-western side. The direction told by this witness coincides exactly with Killa No, 17, which according to the Khasra Girdawari was under Barseen crop during the days of occurrence. It is, therefore, proved beyond any shadow of doubt that the witnesses' claim that they were present near the place of occurrence cutting Barseen fodder is true. In these circumstances, we are convinced that Hashim Ali and Muhammad Ali P.Ws. Were present at the time of occurrence and they had seen both the appellants giving blows to the deceased. Their claim that they had been able to apprehend the appellants near the place of occurrence also stands proved.
9. The motive as stated in the F.I.R. Is that Muhammad Ashraf appellant had liaison with Mst. Guddo daughter of Siraj Din. The deceased told Muhammad Ashraf appellant and Rehmat Ullah P.W. On the morning of the day of occurrence that he would divulge that secret to the parents of Mst.
Guddo and that both the appellants had brought the deceased to Rehmat Ullah where Muhammad Ashraf had pleaded his innocence to Meraj Din and had also asked him to desist from talking indecent. Rehmat Ullah also advised Meraj Din to refrain from divulging such secrets to the parents of the girl and then scolded all the three, whereupon they left his promises. But at the trial, both Rehmat Ullah P.W.5 and Muhammad Siddique P.W.6 have made conscious improvements over it for example, Rehmat Ullah P.W.5 has stated that on the morning of the day of occurrence when Meraj Din deceased expressed his intention of conveying GuddoAshraf illicit relationship to the former's parents, the latter got perturbed. He has further stated that when both the appellants and the deceased visited his premises a little before the occurrence, they had exchanged hot words and then had left together. It appears that Rehmat Ullah has introduced the facts of Muhammad Ashraf appellant having been "perturbed" on listening the allegation against him and also his having "exchanged hot words" with the deceased little before the occurrence. The reason for these embellishments is not far to seek. Obviously, these improvements had been made to show that the appellants were pitched against the deceased fearing the exposure of their objectionable activities. Assuming for arguments sake that relations between appellants and the deceased had ruptured and that they had exchanged hot words a few minutes before the occurrence, then it looks highly improbable that the deceased would go alone in company of the appellants towards the fields far from the Abadi obviously to land himself in trouble. There is yet another aspect which deserves serious notice. The prosecution's claim is that because the deceased wanted to convey information to the parents of Mst. Guddo regarding her illicit connection with Muhammad Ashraf, therefore, it had annoyed the appellants. Rehmat Ullah has admitted in cross-examination that Mst. Guddo was a relation of Muhammad Ashraf and that he had never heard that she had illicit connection with anybody. We, therefore, entertain an impression that after the occurrence this motive had been coined in order to provide a cause for the murder of the deceased by the appellants. In this view of the matter, we are constrained to reject the motive furnished by the prosecution.
10. The upshot of the above discussion is that the evidence on record has established beyond any reasonable doubt that the appellants have caused the death of Meraj Din deceased. They are, therefore, guilty under section 302/34, P.P.C.
11. The next question which falls for consideration is the question of sentence. We have rejected the evidence of Muhammad Siddique P.W.6, the father of the deceased as also the evidence of motive.
It is, therefore, not clear as to why and under what circumstances the incident took place. As observed earlier, Muhammad Hashim P.W.7 and Muhammad Ali P.W.8 only saw the infliction of injuries and they did not know what preceded. Since the cause of murder is shrouded in mystry, the extreme penalty in this case is not called for and the ends of justice would be fairly met if imprisonment for life is awarded to the appellants. We accordingly uphold the conviction of the appellants under section 302/34, P.P.C., but alter the sentence of death to imprisonment for life to each of the appellants. With this modification in the sentences, we dismiss the appeal.
Consequently, the death sentence is not confirmed.