' This criminal appeal by Muhammad Asghar and Muhammad Akram appellants, connected revision by Ghulam Muhammad for the enhancement of the sentence of the two appellants; Criminal Revision No,593 of 1982 by the State, for the enhancement of the sentence of the two appellants and Criminal Revision No,104 of 1984 by Ghulam Muhammad against the acquittal of Boota and Abdul Rahim co-accused, arise from the judgment of learned Additional Sessions Judge, Gujranwala whereby he on 13-1-1982 while acquitting Boota and Abdul Rahim, convicted Muhammad Asghar and Muhammad Akram appellants under section 302/34, P.P.C. For causing the death of Karam Elahi alias Ashraf alias Achhu and for murderous assault on Mst. Zainab Bibi and Mst. Hamidan Bibi and sentenced them as under:-
(i) Under section 302/34, P.P.C. To imprisonment for life and a fine of Rs,15,000 in default thereof four years' R.I.
(ii) Under section 307/34, P.P.C. One year R.I. And a fine of Rs,1,000 each in default thereof six months' R.I.
The sentences were to run concurrently.
2. The occurrence took place on 8-8-1980 at 9-30 a.m. In front of the house of Karam Elahi deceased in Gujranwala. F.I.R. Is statement Exh.P.B. Of the deceased, recorded in the D.H.Q., Hospital Gujranwala by Khalid Hussain A.S.I. On the same day at 10-55 a.m. Formal F.I.R. P.B/1 was drawn up on the same day by Inayat Ullah Head Clerk P.W.4. At 11 a.m. The case was originally registered under section 307/34, P.P.C. Karam Elahi died in the hospital on the same day therefore, section 302, P.P.C. Was added. The motive as alleged by the prosecution was that on the night preceding the fateful day there was a quarrel between Karam Elahi deceased and Muhammad Asghar appellant etc. The respectables intervened and the matter was patched up. It was alleged that despite patch up, Muhammad Asghar kept annoyance in his heart, hence this occurrence.
3. As for the main occurrence,it has been stated that at the eventful time, the deceased left his house in the presence of Mst. Zainab Bibi and Mst. Hamidan Bibi P.Ws. When he came out of the house, Muhammad Akram and Muhammad Asghar and Muhammad Boota, armed with Chhuris and Abdul Rahim empty handed came there. Muhammad Asghar gave Chhuri blow on the chest of the deceased. Abdul Rahim caught hold of the deceased. Boota then inflicted Chhuri blow on the hand of the deceased. Muhammad Akram gave Chhuri blow on the wrist of the deceased. The alarm attracted Mst. Zainab Bibi and Mst. Hamidan Bibi to the spot who were also injured by the accused. The occurrence was also seen by Matiullah P.W. Karam Elahi fell down in injured condition.The appellant made good their escape, taking away weapons with them. Abdul Jabbar Pathan also came to the spot and removed Karam Elahi to the hospital. Doctor Nazir Ahmed examined Karam Elahi in his injured condition at 10-15 a.m. And informed the police whereupon Khadim Hussain A.S.I. Came to the hospital and recorded the dying declaration Exh.P.B. Of the deceased and sent the same to the Police Station for the registration of formal F.I.R.
4. Dr. Nazir Ahmed had examined Karam Elahi in injured condition. He found four injuries on his person caused with sharp-edged weapon. Out of those injuries, one stab wound on front of the chest, was found grievous and dangerous to life. The rest of the injuries were simple in nature. On his death the Doctor conducted post-mortem examination on the dead body of Karam Elahi on the same day at 3-30 p.m., and found following injuries on his person:-- "(1) A stitched wound 6 c.m. In front of chest on the mid line, at the level of breast and below.
(2) A stitched wound 5 c.m. On the left palm outer part.
(3) A stitched wound 4 c.m. On the left palm on its middle.
(4) A stitched wound 3 c.m. In front of left wrist.
(5) A stitched wound 5 c.m. On inner aspect of left forearm, above left wrist.
' On internal examination, the doctor found cuts in pleura, and right lung. About 80 ounces of free blood was collected from the chest cavity. The pericardium was cut through and through on its right side. Stomach contained water about 1/2 full. In his opinion, the death was due to shock and haemorrhage resulting from injury No,1 which was sufficient to cause death in the ordinary course of nature. The duration between the injury and the death was about three hours and between the death and the post-mortem was 31/2 hours.
5. The same doctor found two superficial incised wound on Mst. Hamidan Bibi P.W. And one superficial incised wound on the person of Mst. Zainab Bibi P.W. The injuries were caused by sharp- edged weapon and were simple in nature.
6. Khalid Hussain A.S.I. Arrested Muhammad Asghar appellant and Muhammad Boota acquitted accused on 18-8-1980. He arrested Muhammad Akram appellant and Abdul Rahim acquitted accused on 21-8-1980. On 22-8-1980 Muhammad Akram got recovered blood-stained Chhuri P.3 from box lying in his house which was taken into possession vide memo. P.K. On 23-8-1980 Muhammad Boota acquitted co-accused got recovered blood-stained Chhuri P.4 from his shop which was taken into possession vide memo.P.L. On the same day Muhammad Asghar appellant led to the recovery of blood-stained Chhuri from the box lying in his room which was taken into possession vide memo. P.M. Muhammad Aslam P.W.10 and Muhammad Nazir (not produced) had attested these recovery memos.
7. To prove its case, the prosecution, examined 13 witnesses. Mst. Zainab Elahi P.W.12 has given the ocular account of the occurrence. Muhammad Aslam P.W.10 has stated that Muhammad Akram and Muhammad Asghar had led to the recovery of blood-stained Chhuris P.3 and P.5 Dr. Nazir Ahmed had examined the injured witnesses and Karam Elahi, in his injured condition and he also conducted post-mortem on the dead body of Karam Elahi. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. Muhammad Asghar while raising plea of self-defence stated:- "Ashraf alias Achu deceased was a despardo and a notorious person. On 8-8-1980 some time after the sunrise, I was present in front of his shop. The street was lonely. He forcibly dragged me into the shop, pulled out a knife and tried to commit sodomy on me. In order to save my life and honour, I gave a solitary blow to the deceased."
' In defence he tendered certified copy of F.I.R. No,79 under section 8/4 of 1979 against the deceased and report under section 173, Cr.P.C., Exh.P.J., certified copy of the summon from M.I.C.
Exh.P.K. And report on summon P.K/1, certified copy of the order of learned Additional Sessions Judge, Gujranwala, dated 18-11-1981, certified copy of punishment slip Exh.P.M, certified copy of the bail bond of the deceased, certified copy of another bail bond and copy of F.I.R. No,107 under section 325, P.P.C. Against the deceased. Boota co-accused also produced certified copies of F.I.R.
Nos.107 and 108 of Police Station, Model Town, Gujranwala. The trial Court was in doubt as to the participation of Muhammad Boota and Abdul Rahim in the occurrence and while believing the ocular evidence, dying declaration Exh.P.B. To the extent of the appellants, has convicted and sentenced them.
9. The learned counsel for the appellants contends that the prosecution has failed to prove its case beyond reasonable doubt; that the eye-witnesses are not reliable; that the recoveries are fake and that the case of Muhammad Akram is quite distinguishable. On the other hand, the learned counsel for the State and the learned counsel for the complainant have maintained that the prosecution had successfully brought home the commission of offences punishable under section 302/ 307/34, P.P.C. To the appellants and the acquitted co-accused and that there being no extenuating circumstances, the appellants should have been awarded death penalty.
10. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with them. I find that the learned trial Court having distinguished the case of Muhammad Boota and Abdul Rahim, has given sound and good reasons for giving them the benefit of doubt. The dying declaration and the statement of Mst. Zainab Bibi are the statements of interested witnesses. Their statements have not been acted upon to the extent of the two acquitted co-accused and that the trial Court has also disbelieved the recoveries of the incriminating weapons from the appellants and the co-accused. That being the position I am of the view that conviction cannot be sustained on the dying declaration made by the deceased Karam Elahi and the ocular account of the occurrence given by Mst. Zainab Bibi P.W. Qua each appellant without independent corroboration. Since there is no additional evidence or other circumstances to connect Muhammad Akram with the occurrence and his case also appears to be at par with the case of Muhammad Boota, I am of the view that he is also entitled to the benefit of doubt.
11. This brings me to the case of Muhammad Asghar appellant. I find that Karam Elahi deceased and Mst. Zainab Bibi have attributed the fatal injury to him. It was a daylight occurrence and as such there was no difficulty in the identification of the person causing fatal blow to the deceased.
By the fact of Injuries on both of them, the presence of the deceased and Mst. Zainab Bibi at the time of occurrence is very much established. Mst. Zainab Bibi had no serious enmity to attribute fatal injury falsely to Muhammad Asghar appellant. The appellant also admits to have caused fatal injury to the deceased. In these circumstances, I do not feel inclined to exclude from consideration the dying declaration and the statement of Mst. Zainab Bibi to the extent of Muhammad Asghar appellant.
12. Coming to the plea of self-defence raised by the appellant I find that he has not been able to establish his plea through direct or indirect evidence. The circumstances rather falsify the exculpatory part of his statement inasmuch as the occurrence having taken place in a street which was a thoroughfare, it runs counter to the natural probabilities that Muhammad Asghar appellant would have dragged him in his shop in order to commit sodomy upon him. Had the appellant been dragged by the deceased for sodomy purpose, there would have been dragging marks on his person. The possession of the Chhuri by the appellant Muhammad Asghar at the time of occurrence, also shows that he had come duly armed in order to launch murderous attack on Karam Elahi deceased.
13. The upshot of the discussion is that there being no satisfactory basis to uphold the conviction of Muhammad Akram, he is acquitted of the charges. The convictions and sentences of Muhammad Asghar appellant recorded by the trial Court are however maintained. The trial Court has given good reasons for not awarding death penalty to Muhammad Asghar. The connected revisions are resultantly dismissed.