MAZHARUL HAQ, J.------Muhammad Ishaq (45) was tried for the murder of Ashiq Ali. On 8-11-1982, Additional Sessions Judge, Multan convicted him under section 302, P.P.C. And sentenced him to death with a fine of Rs.10,000 in default to undergo three years' R.I. Appeal of the convict and the connected murder reference are before us.
2. Ashiq Ali (deceased) lived with his father Shamsud Din (informant) in Colony No. 1, Khanewal. He developed friendship with Muhammad Ishaq accused who was a resident of Colony No. 3. His father did not approve of their friendship. About nine days before the occurrence in this case, Shamsud Din (informant) stopped Ishaq from visiting his son. The accused took it ill. According to the prosecution at about 9-30 p.m. On 19-6-1981 Ishaq appeared at the house of Shamsud Din and called for Ashiq Ali. There was electric light in the street. Shamsud Din came out. On seeing Muhammad Ishaq, he reprimanded 'him as to why he had come in spite of the fact that he had stopped him from visiting his son. He abused Shamsud Din and also slapped him in the face. On the alarm, Ashiq Ali came out. Informant's brother P.W. Muhammad Shafi who lived next door also appeared on the scene. Ashiq Ali abused Muhammad Ishaq and said as to why he insulted his father. Muhammad Ishaq told him that it was his father who had insulted him and he would avenge the insult. He ripped out a knife and thrust it in the right chest of Ashiq Ali who fell dead at the spot. While leaving Muhammad Ishaq said that he had avenged the insult and if anyone should come near, he would be finished. Several persons collected at the spot but none chased him out of fear. Besides the informant, the occurrence was witnessed by his brother P.W.8 Muhammad Shafi.
After the accused left, Shamsud Din went to the police station and after covering a distance of six furlongs, he reached Police Station Khanewal and made report Exh.P.E. The same night at 10 p.m.
After registering the case, P.W.10 Abid Hussain Shah, S.I./S.H.O., Police Station Khanewal went to the place of occurrence. He prepared the necessary documents and sent the dead body for its post- mortem examination.
3. P.W.3 Dr. Riazud Din, M.O., held the autopsy on the dead body of Ashiq Ali on the following day at 10-45 a.m. And found 'A stab wound on the right side of chest 7 c.m. x 2-- c.m. By chest cavity about 6 c.m. From the nipple lower end of the wound on right border of sternum and about 8 c.m.
Below the clavical. The third and fourth costal cartilages with intercotal space muscles cut. Right lung was collapsed. Aorta was cut and the injury went into the left ventricle of the heart. There was semi-digested food in the stomach. Death in his opinion was due to shock and interthorsis haemorrhage caused by injury to the heart which was sufficient to cause death in the ordinary course of nature.
4. On 28-6-1981, Abid Hussain Shah, S.I. Arrested Muhammad Ishaq accused who on the following day led him to the recovery of blood-stained dagger P.3 from within a suitcase lying in his house.
The same was made into a sealed parcel through memo. Exh.P.D. Attested by P.W.4 Zamir Hussain and P.W.6 Shamsud Din besides the Investigating Officer. After completing the investigation, the accused was tried in due course.
5. At the trial, explaining the case against him, Muhammad Ishaq made the following statement:-- "P.W. Shamsud Din is the father of the deceased while Shafi P.W. Is his brother. Due to relationship inter se they have deposed falsely against me because of the enmity as deceased was involved in a criminal case with me, the father of the deceased Shamsud Din P.W. Suspected that his son Ashiq Ali deceased has been involved in the criminal case due to me. Bagh Ali P.W. Is a close friend of Shamsud Din P.W. And has got business term with each other. He being a close friend of Shamsud Din P.W. Has deposed against me to favour the complainant. "
6. Disbelieving the defence version, trial Court came to the conclusion that the prosecution case was satisfactorily proved against the appellant through the ocular testimony of P.Ws. Shamsud Din and Muhammad Shafi and that of the evidence of the recovery of blood-stained dagger P.3. It, however, considered unsafe to rely on the evidence of P.W. Bagh Ali, the third eye-witness who was not named in the F.I.R. But was later mentioned in the supplementary statement of the informant in which the informant also for the first time put the motive story i.e. In the afternoon on the day of occurrence, Muhammad Ishaq demanded Rs.1,200 from Ashiq Ali for the expenses incurred by him in defence of a case under section 324, P.P.C. In which they were both involved. Ashiq Ali refused to pay him anything for the reason that he was involved in the case on account of the accused. The two grappled with each other but informant's partner P.W.5 Noor Muhammad who happened to be there intervened and separated them. Further, in the supplementary statement Shamsud Din said that P.W.9 Bagh Ali had come to him to get money from him for the bricks and had also seen the occurrence.
7. Criticizing the finding, learned counsel for the appellant contended that it was a blind murder and since the prosecution witnesses are closely related to the deceased, they have therefore, stage-managed their presence at the spot. It was argued that even the trial Court did not take into consideration evidence of P.W.9 Bagh Ali because he was introduced at a later stage and had not been named in the F.I.R. We have considered this aspect of the matter. On his own showing, P.W.9 Bagh Ali lived at a distance of 9/10 miles away from the place of occurrence and had come to the house of the informant at about 9-30 p.m. To borrow Rs.5,000 from him was a story which under the circumstances of this case does not inspire confidence. Had he been there, the informant would have named him in the F.I.R. But this did not mean that the evidence of the other two eye- witnesses should also be brushed aside. The evidence of each witness has to be judged on its own merits. It is not denied that the deceased lived with his father Shamsud Din and that his uncle P.W.8 Shafi lived in the adjacent house. The two eye-witnesses are, therefore, natural witnesses in this case. True, P.W. Shafi is a real uncle of the deceased but we find he had no enmity with the accused so as to rope him in on a capital charge. Similarly the informant had no enmity. They cannot be called interested witnesses. Mere relationship with the deceased is not al. Discredit to a witness. No doubt in the F.1.R., prosecution case was that the informant did not approve of his son's friendship with the accused because the latter was of a bad character. But in his supplementary statement and in the evidence of P.W.5 Noor Muhammad it was further explained that in the afternoon on the day of occurrence, the accused had come to demand money which he had incurred on the litigation of the deceased but the deceased refused to pay him because the deceased had been involved in the criminal case on account of the accused. It may be mentioned at this stage that supplementary statement Exh.DD. Cannot be read as a part of the F.I.R., it would be nothing more than a statement recorded under section 161, Cr.P.C. And per se would not be admissible unless the witness is confronted with any portion of it which portion would be admissible and not the whole of it. The only confrontation put to the informant was about an interpolation in the date of the statement which appears to have been overwritten and changed to 19-7-1981. The informant, however, denied having made the statement on 19th July, 1981, because according to him, he had made the supplementary statement on the day of occurrence. This confrontation with regard to the date of the statement would be admissible and not the entire statement. However, the informant and P.W.5 Noor Muhammad gave the fact about the motive at the trial. The facts of the case under section 324, P.P.C. Have not been detailed in the evidence not even the name of the complainant of that case has been mentioned nor any document has been filed to prove this litigation. From these circumstances, it appears that in all probability there was some kind of I a monetary dispute between the deceased and the accused which the accused pressed. We may mention at this stage that the circumstances' appearing in the evidence of the case indicate that the occurrence was in fact one transaction i.e. Of some kind of demand of money by the accused followed by abuses, altercation and the attack and that there was no gap of time between the demand and the attack. On the other hand in the F.I.R. Prosecution case was that the accused had come for the father and not the son and that the father was the first one to come out of the house on the call of the accused. It is noteworthy that there is not a scratch on Shamaud Din and had the accused come to attack him, he would then not have waited for Ashiq Ali to come out. From these circumstances, it is evident that the informant was not the first one to come out. What happened before the attack, it was in all probability between the accused and the deceased. The fact that the prosecution tried to withhold the story of the motive in the first instance and later introduced it in the supplementary statement shows that the prosecution would like us to believe that it was a premeditated attack. However, we have already considered the evidentiary value of the informant's supplementary statement in this case. The nature of the dispute between the deceased and the accused .Was also sought to be proved by the evidence of P.W.5 Noor Muhammad who we find was not named in the F.I.R. And is admittedly a partner in the brick-kiln business of the informant. Admittedly, he lived at a distance of 30 miles away from the place of occurrence. Keeping these circumstances in view, it would not be safe to rely on his testimony.
8. The defence evidence was worthless because according to D.W.1 Rashid Ahmad who claimed to be in the service of one Dr. Nawazish Ali with P.W. Muhammad Shafi said that on the night of occurrence at about 11 p.m. Shafi approached him and told him that he had received information about the murder of his nephew and was, therefore, going there. Since these facts were not put to the eye-witness in his cross---examination, they have, therefore, no evidentiary value. In so far as the statement of D.W.2 Muhammad Rashid was concerned, he would like us to believe that deceased had received the injury inside his house and he came out with his hand on the chest and fell in the Chowk. It was not suggested to any of the prosecution witnesses whether something happened inside the house of the deceased. Thus, the defence evidence did not help the appellant because it has failed to meet the statements of the two eye-witnesses which cannot be brushed aside. They are not interested witnesses. Of course, the circumstances which led to the attack have not been satisfactorily proved by the prosecution but this would not mean that the evidence of the eye-witnesses in so far as the attack was concerned cannot be relied upon.
9. The sole question of determination in this case would be the extent to which the appellant was liable. Making premium out of the circumstances mentioned earlier that what led to the occurrence has not been satisfactorily proved, learned counsel argued that it was a case of a sudden fight and would thus, be covered by Exception IV of section 300 , P.P.C. We do not agree with him for the simple reason that there was not a scratch on the accused nor it is alleged that the deceased or his father was armed. On the other hand, the accused thrust the knife in the chest of the deceased causing the fatal injury. Undoubtedly, he acted in an unusual and cruel manner against the deceased who was unarmed. He would thus, be liable under section 302, P.P.C. We, therefore, maintain his conviction.
10. As to sentence, we have already made observation regarding the motive story in this case which the prosecution tried to improve stage by stage. In all probability there appears to be some kind of money dispute between the deceased and the accused, the details of which we do not know because the prosecution has not satisfactorily proved it. In view of these circumstances of the case, we do not Propose to award the capital sentence which we substitute for life imprisonment. The appeal is, otherwise, dismissed. The sentence of fine is maintained. The appellant shall, however, be extended the benefit of section 382(b), Cr.P.C.
Death sentence is not confirmed