' MIAN BURHANUDDIN KHAN, J.-Nasir Iftikhar appellant stood his trial before the learned Additional Sessions Judge, Lahore under section 302/34, P. P. C. Alongwith Khurshid Ali Shah, for committing the murder of Aftab Hussain alias Tara, resident of Temple Road, Mozang, Lahore. Both were found guilty and convicted. Nasir lftikhar was awarded the death sentence subject to confirmation by the High Court whereas Khurshid Ali Shah was sentenced to imprisonment for life. Both were also fined Rs, 500 each in default, to suffer six months' R. I. And the amount of fine, recovered, was ordered to be paid as compensation to the children of the deceased under section 544-A, Cr. P. C. Vide judgment, dated 30-5-1979. Both the copvicts filed appeal in the High Court, as per impugned judgment, the learned High Court acquitted Khurshid Ali Shah and altered the sentence of Nasir Iftikhar from death to imprisonment for life and amount of fine was increased from Rs, 500 to Rs, 10,000 payable as compensation to the legal heirs of the deceased. Thereafter, Nasir lftikhar filed Jail Petition No, 95/R/81 and leave was granted by this Court, vide order, dated 25-11.1981, on the ground that prosecution evidence has been party believed with regard to the appellan while the same evidence has been rejected in the case of acquitted accused Khurshid Ali Shah.
2. According to the prosecution, on the day of occurrence 9-2-1977 at about 12-30 a. m. In the limits of Katra Wali Shah, Koocha Murad Shah, at a distance of furlongs from Police Station, Yakki Gate, the deceased Aftab Hussain alias Tara visited the house of the accused/appellant in Katra Wali Shah where his wife sister of the accused/appellant namely Mst. Bilqis, due to her strained relations with deceased, had come to put up. After visiting the house of the accused/appellant the deceased came out in the street in perturbed mood and abusing followed by Nasir lftikhar accused/appellant armed with a chhuri in his hand and Khurshid All Shah, a friend of the accused/appellant, armed with a danda. Khurshid All Shah opened the attack by dealing danda blows on the head of the deceased and simultaneously Nasir Iftikhar accused/ appellant gave chhuri blows to the deceased on his chest, abdomen and buttocks. In the meanwhile Mst. Mumtaz Begum, another sister of the accused/appellant also reached the spot and she also sustained an injury but still she and Nasir Ali Shah. P. W. 6 succeeded in rescuing the deceased from both the accused the then who left the scene of occurrence. Nazimuddin and Fariduddin took the deceased, who was still alive, to the hospital while Nasir All Shah proceeded to lodge a report which was recorded by Muhammad 'Ashraf S.-I. P. W. 10 then incharge of P. P. Akbari Gate on the basis of which F.
1. R. Exh. P. A./1 was registered at P. S, Yakki Gate, Lahore,
3. The Investigating Officer then went to the hospital where the dead body of Aftab Hussain was lying in the casualty ward as he had already succumbed to his injuries I.
0. Muhammad Ashraf S.I. Then proceeded to the spot where he arrested Nasir Iftikhar appellant.
After his arrest, the accused/ appellant led the police to the recovery of chhuri Exh. P. 1 from his residential kotha lying behind the boxes which was taken into possession vide Memo. P. C./1 latter on, Khurshid Ali Shah was arrested and he also led the police to the recovery of danda Exh. P. 2 which was taken into possession vide Memo. Exh. P. J. The Investigating Officer then got prepared the site plan Exh. P. B.
4. Dr. Nasrallah Khan P. W. 5 examined the deceased Aftab, then alive, on 9-2-1977 at 1 a. m. And found :
(i) Penetrating wound with clean cut margin on lower part of lateral of left chest measuring 2i x 1 cm.
(ii)Penetrating wound clean cut margins on lower part of right enterior abdomenal wall inguinal region, measuring 2i x 1 cm with coils of intestines coming out of the wound and WO Stab wound 3 x 1 cm on right buttock which was bleeding and going deep.
' The same day Dr. Nasrullah P. W. 5 also examined Mst. Mumtaz Begum and found an incised wound li x 1/4 cm on back of upper part of her left pinna.
5. Dr. Tahir Anees P. W. 7 performed the post-mortem examination and found the following wounds on the dead body of Aftab deceased :- (0 Stab 3.5 x 1.5 cm lower front left chest.
(ii) Stab 5 x 2.5 cm upper right inguinal region with loopes of the intestines protruding out.
(iii) Incised wound 3 x 5 cm inner mid right buttock.
(iv) Contusted swelling 4 x 2.5 cm left frontal region of head.
' There were accamymosis congestion and hamatoma under the scalp against injury No, (iv) above. Injuries Nos. (i) and (ii) were sufficient in the ordinary course of nature, to cause death through bleading and shock.
6. The prosecution examined Javed Shah P. W.
8. He stated that Aftab Hussain deceased was known to him for the last eight years and that the deceased was married to someone in his (witnesses's) Muhallah Katra Wali Shah ; that on the day of occurrence he was present at about 2 a.m. Near Ziarat of Chehlum alongwith his father Aftab; alias Tara came out in the street and fell in the bazar and people started shouting that Khurshid Shah and Mirza whose name he did not know, have murdered the deceased. The deceased sustained the injuries inside the house. This witness. However, was declared hostile by the prosecution and so was Syed Nasir Ali Gardezi P. W. 6 who had lodged the report with the police.
Both these witnesses were cross-examined by the prosecution.
7. Fariduddin P. W. 9 gave ocular account and supported the prosecution case. According to him, he, alongwith his brother Nazimuddin were present near the Ziarat when the deceased came and greeted them saying that he was going to the house of his in-laws. He was still standing in the street when Aftab alias Tara deceased came out and was abusing someone ; Nasir and Khurshid accused were following him, Khurshid had a danda and Nasir was armed with a chhuri ; Khurshid gave danda blows to the deceased on his head and Nasir gave chhuri blows to the deceased who became unconscious ; a woman came there and intervened ; she was sister-in-law of the deceased ; she also suffered simple injury on the ear ; he and his brother took the deceased to the hospital where he succumbed to his injuries.
8. In his cross-examination Fariduddin P. W. 9 also provided motive for the crime stating that Aftab deceased had given a house to his wife in satisfaction of her dower and there was a dispute over the property between the deceased and the accused. Muhammad Ashraf P. W. 10 investigated the case and submitted the challan.
9. Learned counsel for the appellant contended that the prosecution evidence is inconsistent with the doctor's statement regarding the nature of the injuries particularly these submitted to Khurshid Ali Shah acquitted accused ; that the Courts below have disbelieved the evidence with regard to the acquitted accused and as such it is unsafe to rely on the same evidence against the appellant.
He also referred to the statement of C. W. 2 Bilquees Begum, widow of Aftab alias Tara deceased who stated that she was living in the house of appellant Nasir Iftikhar ; that she was married to the deceased 9/10 years ago and had two children from him and that on the night of occurrence she was asleep and was not aware as to when Aftab deceased had turned up ; that she ; later on, learnt that the deceased was murdered at 2 a. m. But she was not aware as to where and how he was assaulted. She also stated that Aftab deceased was convicted and sentenced by Military Court to 10 years' R. I. The learned counsel also referred to the statement of C. W. 1 Mumtaz Begum.
She stated that she was in the house alongwith Bilquees Begum, her sister when she heard an alarm outside the house ; came out and saw Aftab deceased who had already suffered injuries ; Muhalladars were present who took the deceased to the hospital and she also proceeded to the hospital, but she could not say as to how and at whose hand she sustained the injury.
10. It is true that prosecution witnesses namely Nasir Ali Gardezi P. W. 6 and Javed Shah P. W. 8 and the two Court witnesses have not charged the accused/appellant for the injuries caused to the deceased but as stated above, the statement of Fariduddin P. W. 9 cannot be ignored as he is absolutely disinterested witness and in his presence the accused/appellant caused the injuries to the deceased with a chhuri. In the medical evidence of Dr. Tahir Anees P. W. 7 contused swelling 4 x 2.5 cm of the left frontal region of the head of the deceased was observed and the doctor stated that injuries Nos. 1 to 3 had been caused by sharp-edged weapon and injury No, 4 by a blunt weapon ; all the injuries were ante-mortem and under injury No, 4 he found accomymosis congertion and homotoma under the scalp. This established that the deceased was also dealt danda blows on his head and thus we find no contradiction in the medical evidence and the statement of Fariduddin, P. W. 9 who, in his statement, has stated that he lived in Muhallah Katra Wali Shah and his house was third from the place of occurrence and in his presence when Muhariam procession was coming out he saw the accused attacking the deceased with chhuri and danda ; he is also definite about the presence of other witnesses who appear to have been won over by the prosecution particularly Nasir All and Javed. Thus we find no reason to disbelieve Fariduddin P. W. 9 and we are of the view that the conviction has been properly recorded.
Fariduddin is not connected with the deceased nor has he any cause of his own to depose against the appellant. Careful and lengthy cross-examination of this witness shows that nothing had come out to discredit him. The medical evidence, as already mentioned above, supports his version that the deceased was dealt chhuri and danda blows in his presence and the dhhuri was recovered at the instance of the accused/appellant but as the blood had disintegrated, therefore, no positive opinion could be given by the Serologist.
11. We may also refer to the statement of. Syed Nasir All Gardezi P. W. 6 who in his examination-in- chief admitted that there was a dispute between the deceased and accused/appellant because.
Aftab deceased was not willing to get his property transferred in the name of his wife and the later used to live in the house of Nasir Iftikhar appellant. Aftab deceased used to meet his children who were living with their mother in the house of the accused/appellant. This witness stated that he was present when the occourrence took place in Kucha Shah Murad and not in front of the house of Nasir Iftikhar accused/appellant but he had not stated so in the F. I. R. With which he was confronted ; he partly admitted that he had made mention of these facts in the F. I. R. Going through his cross-examination by the public prosecutor we find that this witness has belied himself and the learned trial Court could have proceeded against him for laying wrong information before a public officer namely the police, but no such proceedings were initiated against this witness.
12. Therefore, relying on the statement of Fariduddin P. W. 9 plus they evidence regarding the motive we hold that the prosecution has proved the case against the accused/appellant and even the case of the acquitted accused was not such which would have merited his clean acquittal as from the evidence it appears that he had joined the accused/appellant though he may not have the intention of causing the death of the deceased but as his acquittal was not challenged before us we would, therefore, not go into this question. In the light of the foregoing discussion we find no merits in this appeal which is, consequently, dismissed.