MUHAMMAD SHARIF, J.--Both the reference and the appeal emerge out of the judgment, dated 18- 2-1984 pronounced by Mr. Manzoor Hussain Basra, the learned Sessions Judge, Bahawalnagar who convicted Mukhtar Ahmad alias Guddu under section 302, P.P.C. And awarded him death penalty.
Mukhtar Ahmad was also fined Rs.2,000 or in default thereof he was directed to suffer six months` R.I. He was ordered to pay Rs.2,000 by way of compensation to the heirs of the deceased or to undergo six months' R.I. In default of the payment of compensation. The learned Sessions Judge, Bahawalnagar has referred this case to us for the confirmation of the death sentence under section 374 of the Cr.P.C. Mukhtar Ahmad had preferred this appeal and both the reference and the appeal are being disposed of by means of this single judgment.
2. The facts as gleaned from the F.I.R. And the evidence on the file in substance are that Ali Muhammad, the father of the appellant was injured by Muhammad Ishaq and others and they were implicated in a case under section 325, P.P.C. Six or seven months after the registration of the said case, Ali Muhammad died. Mukhtar Ahmad felt chagrined on account of the death of his father and after a period of about 7 years on 31-7-1982 at about 8-30 a.m., he went to the land of Muhammad Ishaq where Muhammad Ishaq deceased was smoking under the shade of a Sheesham tree. Mukhtar Ahmad, the appellant went to him and began puffing out the smoking pipe. Zafar Iqbal and Zafar Hussain, the sons of Muhammad Ishaq were busy in their ordinary chores of agriculture. Suddenly, Mukhtar Ahmad fired at Muhammad Ishaq with a .12 bore pistol which hit him on the chest and the belly. Muhammad Ishaq hurled his smoking pipe on Mukhtar Ahmad to injure him and attempted to apprehend him but he drifted away. Muhammad Ishaq fell down at a distance of 10 or 11 Karams and Mukhtar Ahmad exhorted that he would kill any one who came near him. Mukhtar Ahmad then whipped out a dagger which he had concealed under the string of his Shalwar and gave a number of blows on the back, the arm pit and the wrist of Muhammad Ishaq. The by-standers raised an alarm and wanted to apprehend Mukhtar Ahmad, the appellant; who succeeded in running away. A number of persons came there after the occurrence. Muhammad Ishaq was taken by a trolley to the Civil Hospital, Chishtian and he succumbed to his injuries after entering the hospital. It has been stated in the F.I.R. That the appellant murdered Muhammad Ishaq on the abetment of Abdul Ghaffar, his brother who was not challaned in this case.
3. The police went to the spot and after the collection of the blood-stained earth from two places and the preparation of the injury statement and the inquest report, sent the dead body for autopsy to the mortuary where Dr. Irshad Ahmad, Medical Officer, Tehsil Headquarters Hospital, Chishtian, P.W. 1 performed the autopsy on the dead body of Muhammad Ishaq and listed the following injuries:---- Fire-arm injuries:
(1) There was a gun shot wound present at the lower end of sternum. Burning and tatooing was present. This was a wound of entry of a pellet which was 1 c.m. x 8 c.m. Probe was easily pushed in.
On dissection the following structures were pierced. Diaphragm, liver, stomach and pellet was not recovered.
(2) A gun shot wound present at the exiphisternal burning and tatooing was present. Margins were inverted. 9 c.m. Probe can be pushed in. It was 1 c. m . In diameter and 2 c. m. Below injury No. 1. On dissection liver, stomach, diaphragm was pierced.
(3) A gun shot wound was present at the left side of lower and exiphisternal 1 c.m. In diameter, 5 c.m. Probe can be pushed in. Margins were inverted. Burning and tatooing was present. This was 2 c. m. To the left of injury No. 1. On dissection liver, diaphragm and stomach was ruptured. Pellet was not recovered.
(4) Arrounded burned area 3 c.m. In diameter and 2 mm. Depressed and it was 2 c.m. To the right side of injury No. 1. This injury was due to hit of pellet.
(5) A gun shot wound situated at right side of chest I c.m. In diameter, 5 c.m. Below and inner to the right nipple 6 c.m. Probe was pushed in. Burning and tatooing was present. On dissection thorax wall and right lung was pierced and pellet was recovered.
(6) A burnt area at right costal margin 1 c. m . In diameter, 1 /2 c.m. Depressed which was due to hit of pellet.
(7) A burnt area blackish in colour, situated at left side of upper abdomen. This was due to hit of pellet. This was 5 -- c.m. Below injury No. 3.
(8) A burnt area at the left side of injury No. 7, 1 c.m. In diameter. This was due to hit of pellet.
(9) A burnt area at left side of abdomen 1 c.m. In diameter 3 c.m. Below to injury No. 7. This was due to hit of pellet.
(10) A burnt area at left side of abdomen 1 c.m. In diameter, 2 c.m. To the left side of injury No. 9.
(11) A gun shot wound situated at right side of abdomen 3 c.m. Below and to the right side of umbilicus 1 c.m. In diameter, 6 c.m. Probe could be pushed. Burning and tatooing was present. On dissection abdominal wall, small intestine at two sides was ruptured and pellet was recovered.
Injuries by sharp-edged weapon:-
(12) A vertical incised wound situated at left side of head at temporal region 7 c.m. x 2 x I c.m.
(13) A transverse stab wound at left side of chest at upper region 4 -- c.m. x 2 c.m. And 9 c.m. Deep and 6 c.m. Above the left nipple. On dissection chest and lung was found cut.
(14) A transverse stab wound at left axilla 4 -- c.m. 11 c.m. And 10 c.m. Deep. Thorax wall and left lung was cut. Left pleural cavity was full of blood.
(15) An oblique incised wound at left shoulder 4 --x 1 x -- c.m.
(16) An oblique incised wound at left scapula at back 8 c.m. x 3 c. m. x 1 c. m.
(17) An oblique stab wound left side of the back of chest 4--c.m x 2--c.m. x 11 c.m. Thorax wall, left lung was ruptured.
(18) A vertical incised wound at left lumber region 5 x 1 x --c.m.
(19) A transverse incised wound at left Tore-arm 2 --x --x --c.m.
(20) An oblique incised wound at back of left hand 4 --x --x -- c. m.
4. This medical expert has opined that the stomach of the deceased contained six ounces of semi- digested foot and all the injuries were collectively sufficient to cause death of Muhammad Ishaq.
5. Muhammad Ishaq went to Abdur Razaq, P.W. 9 who lived adjacent to his house. He made an extra-judicial confession of his guilt and Abdur Razaq produced him before the police alengwith the pistol Exh. P.5 and the dagger Exh. P.4 which were taken into possession vide memo. Exh. P.C. On the same day 'i.e. 31-7-1984. The recovery was witnessed by Abdur Razaq, Muhammad Younus and Ghulam Rasool. Muhammad Younus has not been examined. The challan of the appellant was submitted and as a sequel to the impugned trial, he was awarded the aforementioned punishment.
6. Ali Ahmad, P.W. 10 has narrated the incident as stated in the F.I.R. He has elaborated that the appellant came to Muhammad Ishaq and shared the smoking pipe with him and suddenly fired at Muhammad Ishaq with a pistol and Muhammad Ishaq wanted to apprehend him but fell down and the appellant gave him a number of dagger blows and they could not apprehend the appellant as he had held out threats to them. Ali Ahmad lodged the F.I.R. Exh. P.E.
The motive for the commission of this offence is stated to be that Muhammad Ishaq and others had caused injuries to Ali Muhammad father of the appellant and, therefore, he had murdered Muhammad Ishaq. It was suggested to Ali Ahmad that he had divorced Mst. Nasim Akhtar at the instance of Muhammad Ishaq, his brother, and Muhammad Ishaq had enemies on that account and somebody had killed him after morning prayers and the incident was not seen by any person.
He has stated that the case against Muhammad Ishaq and others was compounded.
7. Zafar Iqbal P.W.11, who is the son of Muhammad Ishaq deceased, has corroborated the fact that he was preparing the Nakkas of the water-course when this incident occurred and the appellant who was smoking with Muhammad Ishaq, fired at Muhammad Ishaq and when Muhammad Ishaq hurled his smoking pipe on him and wanted to apprehend him, he fell down and then the appellant gave him dagger blows, who died in the hospital. He has added that they chased the appellant upto a distance of one Killa.
8. Ghulam Rasool S.I., P.W. 7 who had conducted the investigation of this case, has stated that he had collected blood-stained earth from two places and had taken into possession the crime empty Exh. P.3 from the spot and had made the same into sealed parcel vide memo. Exh. P.J. Abdur Razaq and Muhammad Younus had produced the appellant before this officer on the same day and at the time of his arrest the appellant had produced the dagger Exh. P.4 blood-stained and pistol Exh. P.5 along with 4 live cartridges Exh. P.6/1-4 which were taken into possession vide memo.
Exh. P.L. He denied the suggestion that he registered the case after holding a preliminary investigation.
9. When examined under section 342 of the Cr.P.C., the appellant pleaded to be innocent and explained that he was roped in this case on account of enmity against him. Syed Sarfraz Qutab, M.S., D.H.Q. Hospital, Bahawalnagar was examined as a Court witness, who stated the age of Mukhtar Ahmad as 21 years according to the certificate Exh. D.C.
10. It has been contended that a brother and the son of the deceased have been examined as ocular witnesses and their statements need to be examined with the utmost care and circumspection. That is true but the arrest of the appellant on the same day and the production of the crime weapons on the date of this incident make the story probable. The medical evidence goes in favour of the prosecution as there are fire-arm injuries as well as injuries by a sharp-edged weapon. It was suggested that two weapons had been used in murdering Muhammad Ishaq and the probability was that two persons had killed Muhammad Ishaq find the incident was not witnessed by any person. It does not appeal to the reason because in such like cases, it was easier for the complainant to involve Abdul Ghaffar and assign him a role of either holding a pistol or a dagger, but Mukhtar Ahmad is the only person who is assigned the role of killing Muhammad Ishaq by a pistol and a dagger. It was also represented that the appellant had a pistol in his hand and had live cartridges and then why did he use his dagger for killing Muhammad Ishaq. We do not subscribe to this view because it is the brain-wave of an accused which works and the appellant might have brought two weapons in order to kill Muhammad Ishaq. The case was really compounded as stated by both the parties but it depends upon the sensitivity of an accused who kept the injuries and the death of his father in his mind and murdered Muhammad Ishaq.
11. The motive, the medical evidence, the statements of the ocular witnesses and the crime weapons produced by the appellant on the date of occurrence suggest that the culprit was none else but the appellant. He has, therefore, rightly been convicted under section 302, P.P.C.
12. As regards the quantum of sentence the motive for the commission of this crime is to be looked into. It is stated that the father of the appellant died after sustaining injuries at the hands of Muhammad Ishaq and others whereas on the prosecution side, it is suggested that he' died a natural death. It has not been cleared by any party as to how did he die. When there are two versions then the one which goes in favour of the accused is to be adopted. Mr. Ejaz Batalvi, Advocate, the learned counsel for the complainant, scrupulously conceded that it shall be taken that the father of the appellant died as a consequence of the injuries inflicted on him and in this manner it was a mitigating circumstance in his favour and it is a case of reduction of sentence. We, therefore, maintain the conviction and alter the sentence to life imprisonment. The amount of fine and compensation remains unaltered. The appellant shall have the benefit of section 382-B of the Cr.P.C. The appeal is partly accepted and the reference is answered accordingly.