' IJAZ NISAR, J.-Muhammad Iqbal (19), Muhammad Ashiq (45), Aftab alias Heera (18), Mahmood Hussain (15) and Mst. Sharifan (55) were tried for the murder of Muhammad Awais. By judgment dated 2640.1983 the learned Additional Sessions Judge, Lahore convicted Muhammad Iqbal, Muhammad Ashiq and Aftab alias Heera under section 302/34, P. P. C. And sentenced Muhammad Iqbal alias Bala to death, Muhammad Ashiq and Aftab alias Heera to imprisonment for life and a fine of Rs, 10,000 each. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased. Mahmood Hussain and Mst. Sharifan were, however, given the benefit of doubt and acquitted.
' Challenging their conviction and sentences the convicted accused have filed an appeal while the learned trial Court has made a reference under section 374, Cr. P. C. For confirmation of the death sentence awarded to Muhammad Iqbal alias Bala. Both the matters are being disposed of by this judgment.
2. The prosecution case is that. Muhammad. Iqbal appellant, his mother Mst. Sharifan accused (since acquitted) and his brother-in-law Muhammad Ashiq appellant used to live in front of the house of Muhammad Awais deceased. The latter suspected the chastity of Mst. Sharifan because he had once seen her in the company of a stranger and had stopped her from indulging in immoral activities. Muhammad Iqbal appellant took a strong exception to the accusation of the deceased and thought that he was defaming his mother without any justification and picked up a quarrel with him on that score about 5/6 months prior to the occurrence. However, later on the matter was patched up through the intervention of mohalladars but Muhammad Iqbal appellant felt so offended that he decided to shift to some other place, On 23-3-1982 at 7-15 p.m.
Muhammad Sarfraz Khan accompanied by his friend Muhammad Awais deceased was proceeding towards his shop from Lohari Gate and when they reached near Said Mitha Bazar, they came across Muhammad Iqbal, Muhammad Ashiq, Aftab Ahmad and Mst. Sharifan. The latter asked her son Muhammad Iqbal not to spare the deceased whereupon Muhammad Iqbal who was armed with a revolver started firing at the deceased hitting him on the neck; chest and abdomen. Muhammad Ashiq and Aftab Ahmad accused inflicted daggers blows on the deceased who fell injured. Mst. Sharifan accused continued to exhort the accused to do away with the deceased. On hearing fire report, Muhammad Fayyaz P. W. (given up) and Rashid Akhtar P. W. 9 reached the spot and witnessed the occurrence. The accused fled away with their weapons towards Lohari Gate. Muhammad Sarfraz and Muhammad Fayyaz removed the deceased to Mayo Hospital, Lahore where he succumed to the injuries.
' On receiving an intimation about the occurrence Abdul Wahid S. I. P. W. 20 reached Mayo Hospital and recorded the statement Exh. P. C. Of Muhammad Sarfraz P. W. At 10-30 p.Tn. And sent the same to the police station for formal registration of the case. He prepared the injury statement Exh. P. R.
And the inquest report Exh. P. Q. Of the deceased. He also recorded the statements of the eye- witnesses and the supplementary statement of Sarfraz Khan complainant.
' S. I. Abdul Wahid P. W. 20 arrested Mst. Sharifan, Mahmood Hussain alias Tedi, Aftab Ahmad and Muhammad Ashiq accused on 27-3-1982. Muhammad Iqbal appellant was arrested by the police of P. S. Tibbi on 28-3-1982.
' On 31-3-1982 Aftab Ahmad alias Heera appellant got recovered bloodstained dagger P. 1 through memo. Exh. P. T. On 2-4-1982 Muhammad Iqbal appellant led to the recovery of three empty cartridges through memo. Exh. P. G. On 21-4-1982. Mahmood Hussain got recovered blood-stained dagger P. 2 through memo. Exh. P. F.
3. Dr. Khalid Hussain P. W. 3 conducted the post7mortem examination on the dead body of Muhammad Awais (22) on 24-3-1982 at 11-30 a. m. And found the following injuries thereon :-
(1) An incised wound on the right shoulder 3.5 c.m. x2.5 c. m. Muscle deep on probing it reached the front of the right chest.
(2) An incised wound 2 c.m. x 1 c. m. On the lateral aspect of the right fore-arm, skin deep.
(3) An incised wound on the front of right chest about 9 c. m. Below the right nipple muscle deep and vertical oblique.
(4) Multiple abrasion on the right lower thigh and right knee in an area of 16 c.m. x8 c.m.
(5) Incised wound on the medial side of the right ankle transverse in direction (wound of vensection).
(6) Incised wound on the outer aspect of the upper arm 3 c.m. x1.5 c.m. Passing through and through to the opposite side leaving an incised wound 1 x .5 c.m. About 7.5 c.m. Above the left elbow.
(7) Incised would 3 c.m. x 1.5 c.m. On the outer aspect of left fore-arm 4 c.m. Above the styloid process of the radius muscle deep vertically oblique in direction,
(8) Incised wound on the left middle palm of the hand 3 c.m. X .5 c.m. Muscle deep.
(9) Incised wound 3.8 c.m. x 2 c.m. Transverse in direction part of the omentum was coming out of this wound, the intestine was cut through and through cut according to this wound and there was another cut in the jejunum corresponding to the injury medial end of the wound 15 c. m. Away from the umblicus.
(10) An incised wound 4.5 c.m. x 1 c.m. Transversely oblique going into the abdomenal cavity lying 2.5 c.m. Above the interior superior iliac spin.
(11) A lacerated wound caused` by a firm-arm on the right side of the neck 1 c.m. x 1/2 c.m. x4 c.m.
Above the clevical. There was no exit wound of the bullet. The wound was explored and the bullet recovered which was lying on the right side of the front part of the vertebral column of the neck. It caused no injury to the osophagus and traches.
(12) An incised wound 3 c.m. x 1 c. m. On the front of left thigh 7.5 c.m. Above the knee joint. Injury was muscle deep.
' All the injuries were ante-mortem. Injury No, 11 had been caused by fire-arm and the rest by sharp-edged weapons. Injuries Nos. 1, 9, 10 and 11 were sufficient to cause death. Death was due to shock and haemorrhage. The probable time between injuries and death was two hours and that between death and post-mortem about 12 to 14 hours.
4. The revolver recovered from Muhammad Iqbal alias Bala appdilant was sent to the fire-arm Expert and as per his report Exh. P. Y. The crime empties had been fired from that revolver.
5. The accused denied the prosecution allegations and attributed the case to enmity. According to them the eye-witnesses were related inter se and were interested against them and that it was a night occurrence unwitnessed by anybody. Mst. Sharifan accused stated that a day prior to the occurrence she had left for Okara in connection with the death of a relative and produced evidence of alibi before the police and that she had been declared innocent by the Investigating Officer. Mahmood Hussain accused stated that he had no concern with any of the accused persons and that he was not evehvnamed in the F. I. R. Nor was any part attributed to him. Aftab Ahmad also made a similar statement and stated that due to paralysis he could neither walk nor run and that the injuries attributed to him were not found on the person of the deceased in the post-mortem examination. No evidence was led by the accused in their defence.
6. Relying on ocular testimony of Muhanimad Sarfraz P. W. 4 and Rashid Akhtar P. W. 9, recoveries of dagger P. 1 .From Aftab Ahmad and revolver P. 4 from Muhammad Iqbal and the motive, the trial Court convicted and sentenced Muhammad Iqbal, Muhammad Ashiq and Aftab Ahmad as stated above. Muhammad Iqbal appellant was awarded death sentence being the principal accused while Aftab Ahmad and Muhammad Ashiq appellants were awarded imprisonment for life.
7. It is contended that there has been a misreading of evidence and the eye-witnesses had been disbelieved against Mahmood Hussain who was attributed injuries to the deceased on his vital parts. They were also disbelieved qua Mst. Sharifan who was attributed motive. It is next contended that there is a conflict between the ocular evidence and the Medical evidence. The recovery of revolver from Muhammad Iqbal appellant and its matching with the crime empties is without any signi; ficance as an unexplained delay had taken place in sending the revolver to the fire-arm Expert.. Further that the empty cartridges and the revolver were sent together to the Ballistic Expert.
The F. I. R. Was delayed by three hours. Both the eye-witnesses were interested and chance witnesses. Rashid Akhtar P. W. 9 is a cousin of the deceased while Sarfraz Khan P. W. 4 is a friend of the deceased and that no independent witness had been examined from the vicinity.
8. Though Muhammad Sarfraz P. W. 4 is related to Muhammad Awais deceased but he had no enmity against the appellants to falsely involve them in a case of the present nature. He stands corroborated by Rashid Akhtar P. W. 9 on all the material particulars. The medical evidence corroborates them. According to them the appellants had .Caused injuries to the deceased with a revolver and daggers. In the post-mortem, examination fire-arm and sharp-edged weapon injuries were found on the body of the deceased. The eye-witnesses cannot be discredited or held unworthy of credence merely because some of the injuries attributed by them to the appellants and the acquitted accused were not found exactly on the same parts of the deceased's body as alleged by them. Besides a fire-arm injury. There were as many as eleven sharp-edged weapon injuries on the person of the deceased and in such a tense situation it would be too much to expect from the witnesses a precise account of the attack. Being under extreme mental and physical stress it would not have. Been possible for them to notice the exact location of the injuries caused by each of the accused. In this view of the matter it may not be desirable to totally discard their testimony. Muhammad Sarfraz P. W. 4 is a natural witness because he was accompanying the deceased when the occurrence in question had taken place. Rashid Akhtar P. W. 9 had also advanced a cogent reason for his presence in Said Mitha Bazar at the relevant time. According.To him he had gone to the Clinic of Dr. Bashir Ahmad to see his dispenser namely Zahid.
' We are not impressed by the arguments of the learned counsel for the defence that the prosecution case is doubtful because nobody from the vicinity of the occurrence had been produced by the prosecution. It is a matter of common observation that people usually avoid to offer themselves as witnesses to support the prosecution case before the police or in the Court for fear of reprisal and enmity of the accused person. The eyewitnesses examined by the prosecution had no motive to falsely implicate the accused. They Would not have experienced any difficulty in the identification of the accused because of previous acquaintance with them. The fact that two of the co-accused were given the benefit of doubt and acquitted will' not make- the ocular account wholly unworthy of credit. Mahmood Hiissain was acquitted because his name did not figure in the F.
1. R. But in the supplementary statement of Muhammad Sarfraz P. W. While Mst. Sharifan was acquitted because she was empty-handed and had not been attributed any injury to the deceased and had been attributed the role of exhorting her son Muhammad Iqbal and others for not sparing the deceased.
The objections with regard to the recoveries of revolver and bloodstained dagger at the instance of Muhammad Iqbal and Aftab AhmadjE appellants even if accepted will not have any material- bearing on the case), which otherwise stands established through the unimpeachable testimony' supported by the medical evidence and the motive.
9. In the circumstances discussed above the prosecution case stands fully established against the appellants, they were, therefore, rightly convicted. However, as regards sentence we consider Muhammad Iqbal appellant entitled to some leniency because of the grievance entertained by him against the deceased for dishonoring his mother. As per prosecution's own version Muhammad Awais deceased had accused Mst. Sharifan, mother of Muhammad Iqbal appellant of immorality and picked up a quarrel with him on that score compelling him (Muhammad Iqbal) to shift F to another place. Considering it as a mitigating circumstance we think that the ends of justice will be met if he is awarded the lesser sentence provided for the offence of murder. We and while maintaining his conviction under section 302/34, P. P. C. We alter his sentence from death to that of imprisonment for life and a fine of Rs, 10,000 or in default to undergo two years' R. I. The fine, if recovered, shall be paid to the legal heirs of the deceased.
' The conviction and sentence of Muhammad Ashiq and Aftab Ahmad appellant is, however, maintained.
' The death sentence of Muhammad Iqbal appellant is not confirmed.