' SARDAR MUHAMMAD ASHRAF KHAN, J.-This judgment will dispose of the Criminal Reference No, 9 of 1983, Criminal Appeal No, 9 of 1983, Criminal Revision No, 1 of 1984 and Criminal Appeal No, 2 of 1984 as they arise out of the same judgments of the Members of the District Criminal Court Mirpur, passed on 4-12-1983 in a murder case.
2. Briefly stated the facts giving rise to the cases titled above are that the S. H. O. Police Station, Mirpur put up a challan against Muhammad Farooq, appellant in Appeal No, 9 of 1983 (hereinafter referred to as appellant) for the offence under section 5 of the Islamic Penal Laws (Enforcement)
Act, 1974 read with section 302, A. P. C. In the District Criminal Court, Mirpur for the murder of Muhammad Razzaq, deceased.
3. The case of the prosecution was that Mst. Saryia Begum, sister of the appellant was married to one Mehraj Din who is real brother of the complainant and Muhammad Razzaq, deceased but about four months prior to the occurrence was divorced by her husband. Two children namely, Rafhet Begum, aged 7/8 years and Nasar Mehmood, aged about three years, born out of the wedlock of the above-named spouses, were however, handed ver to the custody of their father Mehraj Din in terms of mutual settlement reduced into writing and arrived at between the parties at the time of affecting the said divorce. Mehraj Din, on his return to England for earning his livelihood, left his above children in the custody of his father and brothers, Muhammad Iqbal, complainant and Muhammad Razzaq, deceased who started living with them. On 12-11-1973, the children were found missing from the house upon which the complainant and Muhammad Razzaq, deceased undertook a search for them during the course of which they were informed by Muhammad Din, P.
W. That the children had gone to the house of Nizam Din, father of the appellant as well as of their mother Mst. Saryia Begum, divorcee. This information led them to the house of Nizam Din where Muhammad Iqbal, complainant called out the children who came out of the said house and accompanied them to their house. The complainant and the deceased alongwith the children had hardly covered a few yards of distance while on their way to their house, the appellant came out of his house abusing them and shouting that he would not allow them to take away the children. He then pursued them and inflicted a dagger blow beneath armpit of Muhammad Razzaq, deceased on receipt of which he fell down on the ground and expired. The appellant thereafter also attacked Muhammad Iqbal, complainant who escaped by running away after hurling two to three stones at him.
4. The appellant denied the charge levelled against him by the prosecution and in his statement recorded under section 342, Cr. P. C. Took up the plea of having caused the death of Muhammad Razzaq, deceased in exercise of the right of private defence of his person. His plea was that the complainant and the deceased had trespassed into his house at the time of occurrence, abused and attacked him and that the deceased had struck two `Sota' blows on his person, one on his head and the other on his left shoulder, and after grappling with him had thrown him on the ground near the hearth upon when he picked up a `Chhuri' lying there for the purpose of cutting vegetables and in order to save his life, inflicted an injury with it to the deceased who after receiving the same ran out of the house.
5. The District Criminal Court convicted the appellant under section 5 of the Islamic Penal Laws (Enforcement) Act read with section 302, A. P. C. And accordingly its one Member, the Sessions Judge sentenced him to death while the District Qazi, the other Member awarded him the sentence of `Qisas'. The Shariat Court on appeal, however, set aside the above conviction and sentences and remanded the case back to the trial Court with the direction to decide the same afresh after conducting purgation of the witnesses. The trial Court again convicted the appellant under section 5 of the Islamic Penal Laws (Enforcement) Act and awarded him the sentence of `Qisas' with the direction that he be put to death by severing his neck from the body with sword but again on appeal, the Shariat Court remanded the case to the trial Court after setting aside the conviction and sentence awarded to the appellant as it came to the conclusion that one of the eye-witnesses namely, Mehmood Hussain was found 'Chair Aadil' by the District Qazi and that no question was put to the appellant in his examination under section 342, Cr. P. C. With regard to the seizure of blood-stained clothes from him. The trial Court was directed to examine the question as to whether or not the brother of the deceased was a competent witness under the Muslim Law and to put the question to the appellant regarding the seizure of blood-stained clothes from him and then decide the case afresh after giving the appellant an opportunity for leading his evidence and re-hearing the arguments.
6. The District Criminal Court, after complying with the directions in the remand order, decided the case afresh on 4-12-1983. Both the Members of the said Court found the appellant guilty of the offence of murder but could not agree on the question regarding the sentence to be awarded to him for the said offence. The learned Sessions Judge, in the circumstances of the case, did not think proper to award him the punishment of `Qisas' and accordingly sentenced him to life imprisonment under section 24 read with section 3 of the Islamic Penal Laws (Enforcement) Act and also gave him the benefit of section 382 (b), Cr. P. C. While the District Qazi, the other Member of the trial Court imposed upon him the sentence of `Diyyat' of Rs, 1,45,800 under the aforesaid sections of the Islamic Penal Laws (Enforcement) Act and ordered the said amount to be paid to the heirs of the deceased according to their respective shares under the Muslim Law.
7. As a result of the above difference of opinion between the Members of the District Court on the Question of sentence to be awarded to the appellant, the above reference has been made by the District Criminal Court to this Court- for the decision of the case. Muhammad Farooq, appellant has also filed the above appeal against his conviction by the trial Court while the State and the complainant have filed revision petition and appeal respectively against the said order of the trial Court for the conversion of conviction of the appellant under section 5 of the Islamic Penal Laws (Enforcement) Act and imposition of sentence of `Qisas' upon him.
8. We have heard the learned Additional Advocate-General, the learned counsel for the complainant and the learned counsel for the appellant and have also gone through the record of the case including the judgments of the Members of the District Criminal Court, giving rise to the above reference, appeals and revision.
9. It has been argued by the learned counsel for the State and the complainant that the commission of offence of murder under the Islamic Penal Laws (Enforcement) Act is fully proved against the appellant from the ocular evidence, recovery of crime weapon and the medical evidence and in case of his conviction, he should have been awarded the sentence of 'Qisas' under section 5 of the Islamic Penal Laws (Enforcement) Act by the District Criminal Court because it was a grue-some murder where an unarmed person was done to death without any provocation by inflicting with a dagger, a grievous injury on his viral part of the body which penetrated right up to his lungs causing their fracture but the Sessions Judge and the District Qazi, Members of the trial Court, have committed grave error in awarding lesser penalty of life imprisonment and sentence of `Diyyar respectively to the appellant. It is thus, argued that the conviction of the appellant be altered from under section 24 read with section 3 of the Islamic Penal Laws (Enforcement) Act to that of one under section 5 of the said Law and the appellant be awarded the sentence of `Qisas'.
10.On the other hand, it has been contended by the learned counsel for the appellant that the eye- witnesses' account of the occurrence should not be believed and relied upon because they are related to the deceased and out of them, Mehmood Hussain, P. W. Is a chance witness whose presence on the spot at the time of occurrence was not possible as it is not believable that he at the relevant time was going to purchase the firewood from a depot situated near the place of occurrence when there was such a depot near to his hotel as well while it was not possible for Muhammad Din, P. W. To see the occurrence from inside his shop. It is also contended by him that the occurrence had taken place in a populated Mohallah but no independent person of the Mohallah has been produced by the prosecution in support of his case. It is further contended by him that none of the two children who were all gedly accompanying the deceased at the time of the incident were examined in the trial Court although one of them was aged 7/8 years at the time of occurrence and quite capable of understanding the questions and giving their answers. It is next contended by him that the post-mortem report could not be used against the appellant as it was not proved by the prosecution that the Doctor who had made the same had left for some foreign country and as such was not available for recording his evidence with the result that the cause of death of the deceased, in this case, is not proved. To support his above contention, he has referred to 1974 P Cr. L J 180 and 1970 SCMR 405. It is also contended by the learned counsel for the appellant that the recovery of crime weapon i,e, 'dagger' cannot be used as incriminating evidence against the appellant as it is not witnessed by any independent person of the locality but by the relatives of the deceased and there are also contradictions in the statements of the attesting witnesses of recovery memo. Which make the recovery of the weapon of offence from the appellant doubtful. It is further contended by him that from the evidence of the prosecution witnesses and the circumstances of the case, the F. I. R. Appears to have been lodged after the inspection of the spot by the police and preliminary inquiry by it. It is also argued by him that the appellant had inflicted the fatal injury on the person of the deceased in exercise of the right of private defence of his person inasmuch as the complainant and the deceased after having committed criminal trespass into his house and attacked him and out of them the deceased after inflicting Vathr blows on his head and shoulder had thrown him on the ground and it was then that in order to save his life,, the appellant had struck a blow on the person of the deceased with the chhuri which he by chance had found lying there. It is also contended b him that assuming that the deceased and the complainant had not trespassed into the house of the appellant and that the occurrence had taken place outside the said house as alleged by the prosecution even then, from the circumstances of the case, the appellant was justified in giving `dagger' blow to the deceased in exercise of the right of self-defence of 'his person. In this connection, it is contended by him that the presence of injuries on the person of the appellant and the fact of his wearing apparel having been found badly torn soon after the occurrence, go to show that the deceased had grappled with him and injured him who apprehending death or at least grievous hurt had stabbed the deceased in self-defence with a view to saving his own life. In support of his contention, that where exists reasonable doubt that the accused had acted in the exercise of the right of self-defence of his person or property, he is entitled to acquittal has referred to PLD 1981 Lah. 85 ; 1981 P Cr. L J 160, 1977 P Cr. L J 181 ; PLD 1980 Pesh. 186 and 1983 P Cr. L J 238. Lastly it is contended by the learned counsel for the appellants that in case, the accused-appellant is found guilty,, of the offence of murder of the deceased Muhammad Razzaq, the extreme penalty of `Qisas' or death is not called for in the circumstances of the case and only the imposition of lesser penalty of life imprisonment would adequately meet the ends of justice because it was not a pre-meditated and pre-planned murder but had taken place at the spur of the moment and that the appellant had undergone the suffering of protracted trial and had remained in judicial lockup for about ten years which amounts to period of life imprisonment and that the doctrine of life expectancy is attracted in his case. In support of his above contentions he has cited 1983 P Cr. L J .225, PLD 1956 SC 129, PLD 1961 SC 230, 1977 SCMR 159, PLD 1960 SC 286, PLD 1962 Quetta 111, PLD 1982 Kar. 163, 1978 SCMR 257 and 1971 SCMR 647.
11. After giving our due consideration to the arguments addressed at the Bar and going through the record of the case, we are of the opinion that the prosecution has been successful in proving its allegation beyond reasonable doubt that the appellant had caused the death of the deceased by inflicting dagger blow beneath his armpit at a place only 140 feet away from his house when he along with Muhammad Iqbal, complainant was returning home after taking away his brother's children from his house where they had gone to see their mother Mst. Saryia Begum and that the defence version that the appellant had inflicted a fatal injury on the person of the deceased in exercise of the right of private defence of his person, is not true.
12. There is no dispute over the fact that the death of Muhammad Razzaq, deceased had resulted from the stab wound caused beneath his armpit by the appellant as this fact is admitted by him in his statement under section 342, Cr. P. C. Therefore, the only question that requires determination in this case is as to whether or not the appellant had caused the death of the deceased in the exercise of the right of private defence of his person. The case of the prosecution is that on the fateful day of occurrence the two minor children namely Mst. Rafat Begum and Nasar Mehmood who were living with the complainant and the deceased were found missing from the house and the search for them, led the complainant and Muhammad Razzaq, deceased to the house of the appellant where the children's mother was residing. On the call of the complainant the children came out of the said house and accompanied the complainant and the deceased and while they all had covered only few yards on their way to the home, the appellant came out of his house, abused the complainant and the deceased and then after pursuing them stabbed the deceased Muhammad Razzaq causing his instantaneous death.
13. As against the above prosecution story, the version of the appellant, as taken in his statement recorded under section 342, Cr. P. C. Regarding the circumstanses which culminated in the death of the deceased is that when at about 3 p.m. He came to his house from his shop, he found the above-named minor children taking tea and that after about ten minutes. Muhammad Iqbal, complainant and his brother Muhammad Razzaq, deceased came there and started abusing him and launched an attack on him out of whom the deceased gave him two lathis' blows, one on his head and the other on his left shoulder and then grappled with him and threw him on the ground near the hearth upon which he picked up a chhuri used for the purpose of cutting vegetables and lying there and in order to save his life caused an injury to the deceased with it on receipt of which the deceased ran out of his house.
14. As regards the defence version, the appellant did not lead any evidence to prove the same, although he could do so at least by producing someone from the inmates of his house who would have been present there at the relevant time. In the absence of any such evidence in support of the above defence plea and in view of the circumstances of the case to be mentioned hereinafter, it cannot be held that the death of the deceased had taken place in the manner and circumstances, as alleged by the appellant. If the deceased had received fatal injury inside the house of the appellant, as is the case of the defence, then there must have been found some human blood there but neither any such blood was seen by the police or the prosecution witnesses who went there soon after the occurrence nor any was recovered from there by the police.
Similarly, if the deceased had run away from the house of the appellant after receiving the stab would on his person then the drops of the blood would have fallen on the ground right from the house of the appellant to the place where the dead body of the deceased was found lying but no traces of any blood drops were seen at any place between the house of the appellant and the point from where the dead body of the deceased was recovered.
15. Moreover, after receiving such a serious and grave injury which had penetrated right up to his lungs causing their fracture, it was not possible for the deceased to have walked as far as 140 feet and in that case its dead body would have been found either inside the house or at the most somewhere near outside the door of the said house but not at a distance of 140 feet from there.
There is yet another circumstance which negatives the above defence version. The relations between the family of the deceased and the appellant were naturally strained due to the sister of the appellant having been divorced by the brother of the complainant and the deceased and thus it appears to be against the human nature and conduct that the deceased and the complainant would have gone into the house of the appellant in search of their missing children and it was but natural for them to have called out the children from outside the said house.
16.The circumstances enumerated above, go a long way to belie the l defence plea that the appellant, in exercise of his right of private defence) of his person, had inflicted the fatal injury on the person of the deceased inside his house when he was attacked and given Vathi' blows by the deceased.
17.After discarding and discrediting the above defence plea that the deceased had received the fatal stab wound at the hands of the appellant inside his house, we now proceed to take up for consideration the contention of the learned counsel for the appellant that even assuming, the deceased was given dagger blow by the appellant at the place from where his dead body was recovered, still, in the circumstances of the case, the fatal injury appears to have been caused by the appellant. In the right of private defence of his person. In this respect, it is contended by him that two injuries were found on the person of the appellant at the time of his arrest, one on his head and the other on his left shoulder and the cloths worn by him were also found badly torn and for that reason were taken into possession by the police which circumstances to show that the deceased had grappled with the appellant and bad caused injuries with the Valhi' on his person before he was fatally injured by the appellant. It is thus contended by him that the above criminal acts of the deceased were sufficient to cause apprehension to the appellant that he would be either killed or grievously injured by the deceased and thus he was perfectly justified in giving the dagger blow to the deceased in order to save his life with the result that his act of killing the deceased is protected under the right of private defence of his person.
18.We have given our due consideration to the above contentions of the learned counsel for the appellant but in the circumstances of the case, we are unable to agree with him that the presence of the injuries on the person of the appellant and the fact of his clothes, worn by him at the time of occurrence, having been found torn, makes out the case of the appellant having caused the death of the deceased in exercise of the right of private defence of his person. It is correct that the clothes which the appellant was wearing at the time of occurrence were found torn soon after the occurrence and this circumstance does lead to the conclusion that some scuffle or grappling had taken place between the appellant and the deceased prior to inflicting of fatal injury on the person of the deceased by the appellant but this circumstances per se is not sufficient to hold that reasonable doubt has been created regarding the appellant having stabbed G the deceased to death in exercise of the right of private defence of his person. The mere fact that there was some grappling between the accused and the deceased immediately before the occurrence did not confer any right on the appellant to inflict the stab injury on the vital part of the body of the deceased with such a dangerous weapon as dagger. The deceased and his companion were unarmed and the mere grappling by them with the appellant would not have given rise to any apprehension of the appellant of his death or his receiving grievous hurt. It is also possible that the grappling might have ensued as a result of the effort on the part of the deceased to ward off the attack made by the appellant on him.
19. So far the injuries found on the person of the appellant are concerned they are simple in nature, caused by the blunt weapon. There is evidence on the record that at the place of occurrence the stones were lying. 1 has, in absence of any evidence on the record that the deceased was carrying any stick in his hand, it is most possible that these injuries were caused by his fall on the stones during the grappling that had taken place between the deceased and the accused. Even if, it is assumed for the sake of arguments that these were caused by the deceased, their nature and gravity was not such as would have given rise to any apprehension in the mind of the appellant that either his life was in danger or he was going to be grievously hurt so as to entitle him to cause such a dangerous and grievous injury on the vital part of the deceased with a weapon like H dagger. In any case, no right of private defence of his person arose to the appellant, in view of the fact that he had launched an attack on the deceased and was an aggressor. It is a settled law that no right of private defence of person or property accrues to an aggressor. The appellant had followed the deceased and the complainant when they were at a distance of 140 feet from his house which act of the appellant cannot be justified in any case. The deceased or the complainant had not committed any criminal act or given any provocation to the appellant which might have provided any justification or excuse to him to have abused, pursued and attacked them and the only thing they had done was that they had called out the children of their brother, given in their custody and living with them, from the house of the appellant and were taking them back to their home.
20. For the reasons given above, we dismiss, as baseless, the contention of the learned counsel for the appellant that there appears certain features in the evidence on the record of the case giving rise to the possibility that the appellant bad acted in exercise of the right of private defence of his person in inflicting the dagger blow to the deceased, Muhammad Razzaq, resulting in his instantaneous death.
21. After discarding the defence version and not placing any reliance on it, we next proceed to see as to whether or not the prosecution has been able to bring home guilt to the appellant beyond reasonable doubt. From the evidence on the record, we find the answer to the above question in the affirmative and hold that the prosecution has been successful in proving the allegation against the appellant without any reasonable doubt that he had committed the wilful murder of the deceased by causing dagger injury on his person and has committed offence under the Islamic Penal Laws (Enforcement) Act.
22. There are three eye-witnesses in this case namely, Muhammad Iqbal, complainant, Mehmood Hussain and Muhammad Din out of whom we ignore and do not rely upon the evidence of Mehmood Hussain because he has been found 'Ghair Aadil' in a purgation carried out by the District Qazi besides being a chance witness and related to the deceased. After discarding his evidence, there still remains the ocular testimony of two eye-witnesses against the appellant who have deposed to have seen the appellant having given dagger blow to the deceased beneath his armpit resulting in his instantaneous death. We have no good reasons to disbelieve their statements and the grounds on which exception to their evidence has been taken by the learned counsel for the appellant have not much substance in them. It is, of course, true that Muhammad Iqbal, complainant is a real brother of the deceased but his presence at the time of oecurreue is admitted by the accused himself in his statement under section 342, Cr. P. C. The mere fact that he is a brother of the deceased is not a valid ground itself for discarding his evidence especially in view of the fact that he was a natural witness whose presence at the relevant time at the spot is beyond any doubt. He has also rightly been found competent witness under Muslim Law by the Sessions Judge in view of the decision of the Supreme Court given in a case titled Niaz Muhammad v. State (1) and referred to by the Sessions Judge in his judgment under appeal in which it has been held that the brother of the deceased in a murder case is a competent eye-witness under the Muslim Law, if he is not the legal heir of the deceased.
23. As regards the other eye-witness, Muhammad Din, P.W. His presence too near the spot at the time of occurrence cannot be doubted and he can be justifiably termed as natural witness. He was running a shop near the place of incident on the day of occurrence and it was he who had informed the complainant and the deceased that the children of their brother had gone to the house of the father of the appellant. His evidence that he had seen the occurrence after coming out of his shop on hearing the abuses being given by the appellant to the complainant and the deceased is quite believable because shouting and yelling of the appellant immediately before the L occurrence was bound to attract his attention and consequently his coming out of his shop to find out as to what had happened outside was a conduct quite natural and consistent with human nature.
24. The learned counsel for the appellant has also assailed the credibility of the evidence of this witness on the ground that he is related to the deceased but we find that he has no direct relation with the deceased to whom he was remotely related through Ghulam Rasool Mir, P. W. Who happens to be the husband of sister of the deceased. This witness has also remote relationship with the appellant. Thus, we find no reason to disbelieve him simply because he is remotely related to the deceased specially when mere relationship of a witness with the deceased in a murder case is not per se a ground for discarding his evidence if he is not inimical to the accused and has no motive to falsely implicate him. This witness is neither inimical to the appellant nor has any motive to falsely implicate him in a case involving capital punishment.
25. The ocular testimony has also been corroborated by recoveries of crime weapon from the appellant and the blood-stained earth from the place of occurrence. The contention of the learned counsel for the appellant that the recovery of the dagger, alleged to have been used in the commission of offence, has not been proved as no independent person of the locality has witnessed the same and that there are also contradictions in the statements of marginal witnesses of its recovery memo. In the peculiar circumstances of the case, has not much force in it. It is, of course, true that the witnesses of the recovery of crime weapon cannot be regarded as independent witnesses inasmuch as one of them is the brother of the deceased while the other is somehow related to him but when their evidence is taken into consideration along with the statement of Ahmad Saeed, Investigating Officer and the circumstances of the case to be mentioned hereinafter, we are fully satisfied that the dagger was in fact recovered from the appellant at his instance. The appellant was arrested from his house soon after the occurrence by the police and immediately.
(1) PLD 1983 SC 211 after that the dagger in question was recovered at his pointation from one of the rooms of his house. The dagger was found stained with human blood. The appellant himself, in his statement under section 342, Cr. P. C. Has taken the plea that he had caused injury to the deceased with a `chhuri' although he has denied that the dagger in question was recovered from him by the police.
Thus, when the appellant was arrested by the1 police immediately after the incident. And he also admits that he had given `chhuri' blow to the deceased, the recovery of weapon of crime was a first necessary step to be taken by the police during the investigation of the murder case. There is no reason to disbelieve the evidence of Ahmad Saeed, S. H.
0., P.W. Who had recovered the said dagger at the pointation of the appellant from one of the living room of his house. He had no motive, whatsoever, to implant the dagger in the house of the appellant in order to falsely implicate him in the murder case. For the above reasons, it is held that it was the appellant who had led to the recovery of the blood-stained dagger.
26. The learned counsel for the appellant has also taken exception to the admission of post- mortem report in evidence by the trial Court on the ground that before recording the secondary evidence in respect of it, it was not proved as required under law that the doctor who was the author of the report had gone to some foreign country and was thus not available for recording the statement. In presence of the ocular evidence in this case, the medical evidence is not of much significance and since we have believed the ocular account of the occurrence, the absence of medical evidence would make no difference and does not have any adverse effete on to case of the prosecution. However, we are convinced that the Doctor who had written the post-mortem report had gone to some foreign country and was not available for recording his evidence at the time the secondary evidence in respect of his post-mortem report was recorded by the trial Court.
This fact even stands proved from an application moved on behalf of the appellant before the-trial Court wherein a prayer was made for the recording of evidence of the Doctor on the ground that he was now available for the purpose.
27. The sum total of the above discussion is that the ocular evidence, recoveries of crime weapon and the blood-stained earth from the spot, fully establish the case of the prosecution that the appellant had killed Muhammad Razzaq, deceased by stabbing him and thereby committed the willful murder made punishable under the Islamic Penal Laws (Enforcement) Act. After finding tne appellant guilty of the offence of murder under the Islamic Penal Laws (Enforcement) Act, the question that remains to be determined is in respect of the nature of sentences to be awarded to the appellant for his said offence. In their separate judgments, both the Members of the trial Court, nave refrained from awarding the sentence of `Qisas' to the appellant, and in view of the circumstances of the case, each of them has chosen to impose one of the alternative sentences provided in the Islamic Penal Laws (Enforcement) Act. We are also of the opinion that there exist mitigating circumstances which call for the imposition of sentence lesser than that of `Qrsas' on the apps Dant. The murder of Muhammad Razzaq, deceased was not pre-planned and appears to have been committed by the appellant all of a sudden and at the spur of moment. It is the case of the prosecution itself that the complainant and the deceased went to the house of the appellant in search of their missing nephew and niece and after calling them out when they were on their way back to their home the appellant came out of his house and stabbed the deceased. This circumstance goes a long way to indicate that the murder of Muhammad Razzaq, deceased was not pre-arranged and pre-meditated but was committed at the spur of the moment under the influence of an emotional state of mind by the appellant who had probably felt ill of the act of the deceased and the complainant of calling out and taking away the children from his hour where they had gone to meet their mother who was the sister of the appellant. As the human nature is the aforesaid act of the complainant and the deceased of taking away the children from their mother and his sister might have provoked the appellant and arose his emotion although the same was not such as providing him any legal justification to cause the fatal stab wound to the deceased.
But, at the same time, this circumstance cannot be lost sight of while considering the question of sentence to be awarded to the appellant for his criminal act of causing the death of Muhammad Razzaq, deceased by stabbing.
28. There is yet another circumstance which also weighs against awarding the sentence of `Qisas' to the appellant and in favour of some other alternative lesser sentence.
29. As already stated, the presence of minor and simple injuries such as abrasion on the person of the appellant and the fact of the clothes recovered from his body soon after the occurrence having been found torn, go to indicate that there was some grappling between the appellant and the deceased before the appellant caused the stab wound to the deceased. This fact also militates against the imposition of sentence of `Qisas' on the appellant. It may not be out of place to mention here that, we do not find any force in the contention of the learned counsel for the appellant that in view of the doctrine of the expectancy of life, the S sentence of 'Qisas' should not be imposed upon the appellant because no such doctrine is attracted in the present case.
However, in view of the circumstances enumerated above, we think that it would be too harsh to award sentence of `Qisas' to the appellant for his criminal act of T murder of Muhammad Razzaq, deceased and in our view the imposition' of the sentence of life imprisonment upon him would adequately meet the ends of justice.
30. We, therefore, accordingly maintain the conviction of the appellant for the commission of offence of murder under the Islamic Penal Laws (Enforcement) Act recorded by both the members of the trial Court and sentence him to life imprisonment under section 24 of the Islamic Penal Laws (Enforcement) Act read with its section 3. We also give him the benefit of section 382 (b) of the Criminal Procedure Code as has been given by the learned Sessions Judge in his aforesaid judgment. The articles recovered by the Police shall be disposed of after the expiry of the period of appeal as per order of the learned Sessions Judge.
' The above reference made by the District Criminal Court Mirpur stands decided in terms of the above order, in view of which the above appeals and revision petition shall be considered as dismissed.
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