' ASLAM RIAZ HUSSAIN, J.-This order shall dispose of (i) Crl. P.S. L. A. No, 483/79 filed by Mst. Zainab Bibi (complainant) against the acquittal of Akram respondent and for enhancement of the sentence of Mushtaq, and (ii) Crl. P. S. L. A. No, 489/79 filed by Mushtaq against his conviction and sentence.
2. Mushtaq and Akram accused were tried along with two others namely Boota (their father) and Bashir (their uncle) for the murder of Muhammad Saeed (aged 18/19 years). The F. I. R. Was lodged by Mst. Zainab Bibi P. W. 10 (mother of the deceased) which was recorded by Riaz Anmad S. I./S. H.
0. (P. W. 14).
3. The motive for the offence is that there was a murder between the parties one year before the present occurrence in which one Barkat murdered Ghulam Hussain. Two months later Ismail and some others were accused of this murder by Muhammad Ali but the police, during the investigation, found the case to be false. Thereupon Muhammad Ali aforesaid filed a private complaint against Ismail and his companions who were taken into custody. Hassan Din, the father of the deceased had friendly relations with the aforementioned Ismail etc. And, therefore, used to meet them in the jail as well as in the Court. This was resented by the accused party. A day prior to the present occurrence the accused even threatened the deceased and abused him saying that he was helping their enemy Ismail and that they shall take revenge for that.
4. The occurrence, according to the prosecution, took place in the following manner.
' At about 7 a.m. On 12-8-1974, Muhammad Saeed (deceased) left his house for grazing his buffaloes. His mother Mst. Zainab followed him, when she saw Bashir, Akram, Mushtaq and Boota accused emerging from the nearby maize field. All of them except Boota, were armed with chhuris.
Bashir caught hold of Saeed by the arm while Boota raised a Lalkara saying that he (Saeed) should be killed. Muhammad Saeed tried to release himself. During the struggle Bashir's chhuri fell down, but Bashir held Saeed with both hands. Mushtaq accused gave a chhuri blow which hit Saeed on his left arm. Second blow was given by Akram which also hit the deceased on the left arm. Akram then inflicted another blow hitting the deceased in his left flank. Yet another chhuri blow was inflicted on Saeed by Mushtaq in the chest, on receiving which Saeed fell down. His mother raised an alarm, but none dared came forward to rescue Saeed, as the assailants were armed. Mst.
Zainab started weeping and fell on her son. The accused then left with the weapons.
' The investigation was conducted by Riaz Ahmad, Inspector who after preparing necessary documents sent the dead body for post-mortem examination. He took into possession the blood- stained shirt (P. 1) of Mst. Zainab complainant (mother of the deceased). He arrested all the four accused on the same day and found that the clothes of Mushtaq accused were stained with blood.
He took into possession his Shalwar (P. 3) and shirt (P. 3). Blood-stained chhuris were recovered at the instance of Mushtaq and Akram accused on 21-8-1974 i,e, about 9 days after their arrest.
' Post-mortem examination revealed 3 stab injuries on the dead body.
5. At the trial the prosecution relied on the testimony of Mst. Zainab P. W. 10 (mother of the deceased), Muhammad Yousaf P. W. 11 (not related) and Muhammad All P. W. (not related). It also relied on the evidence of motive and medical evidence.
6. The accused pleaded not guilty.
' The learned trial Court acquitted Boota and Bashir co-accused but convicted Mushtaq petitioner (aged 16 years) and Akram (aged 17 years) under section 302/34, P. P. C. And sentenced Mushtaq accused to death and a fine of Rs, 5,000 while it sentenced Akram accused to imprisonment for life and a fine of Rs, 5,000 (in default another one year's R. I.).
' Musbtaq and Akram filed an appeal before the High Court which acquitted Akram vide the impugned judgment, dated 17-12-1978 but maintained the conviction of Mushtaq. It, however, reduced his sentence from death to imprisonment for life, and sentence of fine was, however, maintained.
' Against this judgment Mst. Zainab, mother of the deceased, has filed Crl. P. No, 483/79 praying for setting aside the acquittal of Akram, Boota and Bashir accused-respondent and for the enhancement of sentence of Mushtaq accused-respondent, while Mushtaq convict has filed Crl.
P.S.L.A. No, 489/79 against his conviction and sentence.
7. We have heard the learned counsel for the parties at length and have also gone through the judgments of the Courts below. We are of the view that the learned trial Court was justified in acquitting Boota and Bashir.
We notice that the High Court held the presence of Munawar P. W. 12 at the spot to be doubtful.
With regard to the remaining two witnesses namely Mst. Zainab P. W. 10 and Muhammad Yousaf P.
W. 11, the learned High Court felt that they made certain improvements in their statements and therefore their testimony required independent corroboration qua each accused their conviction could be sustained. It did not rely on the recovery of blood-stained chhuri from each Mushtaq and Akram (acquitted co-accused), because these had been made after 9 days of their arrest. It only relied on the recovery of blood-stained clothes of Mushtaq petitioner-accused who was arrested soon after the occurrence and was found wearing these clothes. Consequently, it acquitted Akram and only maintained the conviction of Mushtaq, reducing his sentence in view of his tender age.
8. After giving our serious consideration to the facts of the case we find ourselves in respectful agreement with the view taken by the High Court. We, therefore, dismiss Cr. P. S. L. A. No, 489/79 filed by Mushtaq accused.
' For the same reason we also dismiss the petition (Cr. P. S. L. A. No, 483/79) filed by Mst. Zainab complainant against the acquittal of Akram, Boota and Bashir respondents. We, however, consider it a fit case to consider her prayer for the enhancement of sentence awarded to Mushtaq accused (respondent in Criminal Petition No, 483/79). We, therefore, convert her petition into appeal only as far as his question of sentence is concerned and proceed to decide it as such.
9. We notice that the learned High Court had reduced sentence of Mushtaq from death to that imprisonment for life in view of his tender age (16 years) and also because it had come to the conclusion that the occurrence appears to be sudden and not premeditated. We are, therefore, of the view that the High Court had rightly set aside his sentence of dated and awarded him lesser penalty of imprisonment for life.
' But we are of the view that considering that the deceased, too, was a young boy of about 18/19 years, the sentence of fine awarded to. Mushtaq is inadequate. Therefore, after hearing his learned counsel on this point we enhance his sentence of fine from Rs, 5,000 to Rs, 20,000 or in default of payment of fine to undergo further R. I. For 5 years. It is further ordered that the fine if recovered should be paid to the parents of the deceased as compensation.
' The result is that the appeal of Mst. Zainab and petition of Mushtaq accused, are dismissed.