SARDAR MUHAMMAD DOGAR, J-The appeal is directed against the judgment dated 18-9-1985 of Additional Sessions Judge, Gujranwala, whereby the learned Addl. Sessions Judge had convicted Abdul Waheed alias Billa, aged 23/24 years, and Ibrahim alias Abbu, aged 40 years, under section 302/34 PPC and sentenced Abdul Waheed to death and Ibrahim to imprisonment for life. Both of them have also been directed to pay a fine of Rs. 10,000/- each, in defauIt whereof to undergo two years R.I. Each. They have also been direction to pay Rs. 8,000/- each, as compensation to the heirs of the deceased, in defauIt whereof to suffer six months R.I. Each.
Reference for confirmation of death sentence has also been made by the trial Judge. Both the matters are being disposed of together.
2. The occurrence had taken place on 3-3-1984 at 5 p.m. In the Dera of Ibrahim (appellant) in Mohallah Momanabad, at a distance of one mile from Police Station Baghbanpura, Gujranwala.
F.I.R. (Ex.PG) was recorded on the same day at the police station at 6.30 p.m. By Khalid Beg, ASI (PW 10), on the statement of Muhammad Tufail (PW 8), brother of the deceased.
Accoring to the FIR, the complainant and his brother Muhammad Shoaib (given up PW) were working at the Karkhana of Muhammad Azam at Nowshera Road while their deceased brother Zahid used to work at the Karakhana of Muhammad Ashraf, situated on the same road. The complainant and his brother Muhammad Shoaib were going to their house after the close cjf the Karkhana at 4.30 p.m. On 3-3-1984. Munawar Hussain (PW 9) met them when they reached near the bridge of Ganda Nullah on Nowshera Road. He informed them that in spite of their having estopped Ibrahim alias Abbu and Abdul Waheed alias Billa from mixing with their brother, Zahid, on account of their bad reputation, a day earlier, they had taken him (Zahid) to the Dera of Ibrahim.
On being asked by the complainant, Munawar Hussain led them to the Dera of Ibrahim. When they reached near the Dera of Ibrahim, they saw Ibrahim and Abdul Waheed standing with Zahid in the courtyard of the Dera. On seeing them, Ibrahim hurled abuses and raised a Lalkara that he will teach them a lesson for degrading them. Zahid (deceased), who was standing with them, intervened and returned the abuses. Whereupon, Ibrahim took Zahid into clasp from the front side and exhorted Waheed to finish him. Abdul Waheed brought out a Chhuri from the fold of his Shalwar and gave Chhuri blows to Zahid, on the right thigh, left buttock, left thigh and back of the left thigh. Zahid made attempts to catch the Chhuri but he fell down. Abdul Waheed and Ibrahim ran away from the spot threatening the PWs. 21ahid was removed in a tonga to Civil Hospital, Gujranwala, but he died in the hospital before he could be given any medical aid.
3. Khalid Beg, ASI, after recording the FIR, visited DHQ Hospital, Gujranwala, He entrusted the dead body of Zahid to Muhammad Munir and Muhammad Javid constables, after preparing injury statement (Ex.PH) and inquest report (Ex.PJ). He also recorded the statements of the witnesses under section 161 Cr.P.C, who were present there.
The spot was inspected by him on 4-3-1984, where from he collected blood-stained earth vide memo. Ex.PB. Both the appellants were arrested by him on 5.3.1984. Kurta (P.5) and lion-cloth (P.6), worn by Ibrahim at the time of arrest, were got removed and taken into jjossession vide memo.
Ex.PD. Shirt (P.7) worn by Abdul Waheed at the time of arrest was also got removed and taken into possession vide memo. Ex.PE. All the three clothes were stained with blood.
The challan was put to court after completion of investigation.
4. Statements of ten prosecution witnesses were recorded at the trial.
Dr. Ikramullah, who had performed autopsy on the dead body of Zahid on 4-3-1984, appeared as PW-1.- He noted following injuries on the body of the deceased.
1. An incised wound, 3 cm x 1/2 cm x muscle deep back of left thumb upper part. 1An incised wound, l1'L x 1/2 cm x muscle deep on front of left thumb, upper part.An incised wound, 2 1/2 cm x 1/2 cm muscle deep front of left index finger middle part.Incised wound, 2 1/2 cm x 1/2 cm muscle deep front of left middle finger.Incised wound, 9 cm x 1 1/2 cm muscle deep, outer side of left hip- joint.Incised wound, 4 cm x 1 1/2 cm going deep back of left buttock lower part outer side.Incised wound, 2 cm x 1 cm going deep back of left buttock lower part in middle of buttock.Incised wound, 1 1/2 cm x 1 cm x going deep back of left thigh upper part.Incised wound, 2 1/2 cm x 1 cm x going deep back of left thigh middle part.(Injuries No.8 and 9 were through and through corresponding to each other).10. Incised wound, 4 cm x 2 cm x going deep outer side of right thigh middle part.
On internal examination, he found blood vessels under injury on the left and right thighs injured and cut on both sides.
Death, according to his opinion, had occurred due to shock and haemorrhage, causing cardio- respiratory failure by injuries No.8,9 and 10. They were opined to be sufficient to cause death collectively and individually in the ordinary course of nature. All the injuries were opined to have been caused by sharp-edged weapon. The injuries, other than 8, 9 and 10, were declared to be simple. Duration between injuries and death was given to be one hour while time between death and post-mortem was opined to be 18 hours.
During cross-examination, he stated that he had examined the anus of the deceased and had detected nothing abnormal. He opined that the deceased was not habitual passive agent. The reason he gave for that, is, that, the anus, was heaIthy.
5. The ocular account was deposed to by Muhammad Tufail (PW 8) and Munawar Hussain (PW 9).
Muhammad Tufail repeated the facts given by him in the FIR. The only addition he made at the trial was that he had estopped the accused from mixing with his deceased brother as they were pick- pocketers. During cross- examination, he stated that he had told the accused not to mix with his deceased brother at the shop of Yaqub Butt, where three/four other persons were also present apart from PW Munawar Hussain. He expressed inability to name any one of them. He denied the suggestion that there was party fiction in the Mohallah and that he belonged to Gujjar party. He expressed inability to say whether Ibrahim appellant belonged to Malik party. In answer to another question, he stated that the back of his brother(deceased) was towards them when he was being held by Ibrahim and was being given injuries by Waheed. He denied the suggestion that the deceased was a passive agent.
Manawar Hussain (PW 9), corroborated the statement made by Muhammad Tufail. During cross- examination, he was not found to have stated in his statement (Ex.DA) before the police that the accused were pick- pocketers. In answer to another question, he stated that Muhammad Tufail had asked the accused in his presence at the shop not to mix with his deceased brother, in the presence of 3/4 other persons. He made one of them to be Muhammad Afzal. He gave the distance of his house from Ganda Nullah bridge to be one and a half furlongs.(Muhammad Tufail have also stated the same distance.). Both of them denied that they were related to each other. Both the witnesses denied the suggestion that they had not witnessed the occurrence and that the deceased had been done to death by some unknown person.
6. The evidence of recovery of Chhuri at the instance of Abdul Wahced appellant was deposed by Muhammad Ibrahim (PW 6). The same has been corroborated by Khalid Beg, ASI (PW 10). (At the time of trial, Khalid Beg had been reverted as H.C.). Muhammad Ibrahim admitted in cross- examination that his wife was real sister of the mother of the deceased.
The evidence of taking into possession of blood-stained clothes of the two accused was deposed by Abdur Rashid (PW 5) and Khalid Beg, ASI (PW 10).
7. Both the appellants during their statements under section 342, Cr.P.C, denied the prosecution case and pleaded innocence.
Ibrahim took up the plea that he has been involved in the case on account of being a member of Malik party, which had outstanding enmity with the Gujjars of the Ilaqa. Abdul Waheed denied any connection with Ibrahim co-accused. Both of them appeared as their own witnesses in defence.
Therein, also, they pleaded innocence. Abdul Waheed denied of having led to the recovery of Chhuri. Both of them denied that their clothes were stained with blood at the time of their arrest.
Ibrahim also denied the factum of the occurrence having taken place at his Dera.
8. Learned trial Judge believed the ocular account and the evidence of motive and recovery of weapon from Abdul Waheed and thus came to the conclusion that both the accused had participated in the occurrence. The evidence of recovery of blood-stained clothes from both the accused at the time of their arrest was not believed.
9. Both the learned counsel appearing for the appellants contended that the ocular account in this case is not worth reliance for being interested and fhat no reliance can be placed on the evidence of motive, as the same has not been deposed to by any independent witness. Learned counsel for Abdul Waheed contended that the testimony of Muhammad Ibrahim son of Allah Dad (PW 6), who deposed about the alleged recovery of Chhuri from him was not worth reliane, as he was closely related to the deceased and the complainant and that the only remaining witness was a police official. Learned counsel for Ibrahim vehemently argued that the part assigned to him is in conflict with the medical evidence and that it seems clearly to be a case of exaggeration. He cited Zarin Shah etc. Vs. State (1974 SCM R 376) in support of the argument that the allegation of catching hold of the deceased by Ibrahim appellant was doubtful and superflous. Learned counsel for Abdul Waheed lastly argued that there was no enmity of the appellants with the deceased and that even according to the prosecution story, the occurrence of infliction of injuries to the deceased had flared up suddenly, on account of unexpected intervention of the deceased during exchange of abuses between the appellants and the complainant, and so it was not a case of extreme penaIty of death sentence, he pleaded for aIteration of sentence of death to imprisonment for life, in case the conviction is maintained.
10. Learned counsel for the State defended the judgment of the trial court.
11. The ocular account in this case has been deposed to by Muhammad Tufail, real brother of the deceased, and Munawar Hussain (PW 9), who is not related to the complainant or the deceased in any manner. The suggestions put to him as well as to Muhammad Tufail PW in this regard were refuted categorically. Of course, it is on record that they were from the same Berathari. That by itself is no ground to hold that Munawar Hussain is an interested witness. The most important aspect about the testimonies of these two witnesses is, that they were not inimically disposed towards any of the appellants, in any manner. In fact, no suggestion was put in this regard. The 'only suggestions made at the trial were, that, while the complainant belonged to Gujjar party, Ibrahim was a member of Malik party. These suggestions were also denied. Moreover, nothing particular has been brought on record regarding the differences or frictions between the so called Gujjar party and Malik party. In the cirumstances, the testimonies of these two witnesses cannot be held to be of an interested nature.
12. The whole question requiring consideration is, whether the two witnesses were present at the time of occurrence and had witnessed the same or not? The complainant was going home after being free from his duty. So was Munawar Hussain. They had met on way. Munawar Hussain had informed the complainant about the deceased having been taken away by the appellants in spite of the fai I that the complainant had asked them not to mix with the deceased. The complainant had done so in the presence of Munawar Hussain. The imparting of information, therefore, by him to the complainant of having seen the appellants taking away the deceased with them was natural. It was as a resuIt of this information that both of them started for the Dera of Ibrahim. In fact, the house of Munawar Hussain was ahead of the Dera of Ibrahim, at a distance of about a furlong and even if he had not been asked by the complainant to accompany him, he (PW) had to go by that way. It was a day light occurrence. Both the witnesses fully corroborate each other about having seen the deceased with the appellants in the Dera of Ibrahim and of Abdul Wahecd having caused injuries to the deceased. They corroborated each also on the fact that the appellants had abused the complainant for having estopped them to mix with the deceased and the deceased having intervened and returned the abuses to the appellants.
13. The evidence of motive for the occurrence has also been deposed by both these witnesses.
Since there was no previous enmity between the parties, it cannot be assumed by any stretch of imagination that the complainant would have fabricated the motive story. Moreover, if he had at all to concoct a story, he would not have come up with the version, that he put, before the court and before the police at the time of registration of case.
The contention of the learned counsel for the appellants that the same witness cannot corroborate his own statement by deposing two facts of a case, i.e. Regarding motive for the occurrence and the ocular account is, in our view, without any force. Here the motive for the occurrence was that the complainant had estopped the appellants from mixing with his brother (deceased) on account of their bad habits. It was quite natural for an elder brother to have done that and if he - deposed about that at the trial, it cannot be discarded, for the reason that he had also witnessed the murder of his brother. Munawar Hussain, who had witnessed the occurrence happened also to be present at the time when the complainant had estopped the appellants from mixing with the deceased.
That had happened only a day before the occurrence. He, therefore, distinctly remembered that.
His making statement about motive for the occurrence, therefore, cannot be termed as unwholesome. In the circumstances, we arc of the view, that full reliance can be placed on the testimonies of these witnesses about the motive for the occurrence, as well.
14. The Chhuri recovered at the instance of abdul Wahecd was found stained with blood. In this regard positive reports from the offices of the Chemical Examiner and of the Serologist were tendered in evidence. AIthough Muhammad Ibrahim (PW 6) admitted that his wife was real sister of the mother of the deceased, but that, in our view, is not sufficient to discard the evidence of recovery of Chhuri, at the instance of Waheed because his statement has been corroborated by Khalid Beg ASI (PW 10), who was not a biased witness notwithstanding the fact that he is a police official.
15. The evidence of recoveries of blood-stained clothes from the appellants at the time of their arrest, in our view, is not worth reliance, the reason being, that the occurrence had taken place on 3-3-1984, while the arrest of the appellants was effected on 5-3-1984. The prosecution case, is, that they were wearing the blood-stained clothes at the time of their arrest. This, in our view, is highly improbable. They could not have been wearing the blood-stained clothes even two days after the occurrence. It is not the prosecution case that the clothes were washed even. We, therefore, cannot believe that the appellants would have been having those clothes, on, at the time of their arrest.
This evidence is, therefore, excluded from consideration. The learned trial Judge had also not believed this part of the prosecution evidence.
16. AIthough we have believed the testimonies of PWs. 8 and 9, about the motive for the occurrence, and have also accepted their statements that they were present at the time of occurrence and had witnessed the infliction of injuries to the deceased by Abdul Waheed, but on a deeper consideration and sifting of the ocular account in conjection with the medical evidence, we are of the view that the part assigned to Ibrahim by these witnesses is in conflict with the medical evidence. In that, if the deceased had been in clasp when he was inflicted injuries, he could not have suffered injuries on the hands because those injuries could only have been suffered by him if he had been raising hands toward off the blows, which in the position of being in clasp, he could not have done. No allegation has been levelled against Ibrahim of having played any other role in causing injuries to the deceased. The part assigned to him, in the facts and circumstances of this case, seems to be exaggerated one. One of the circumstance worth consideration in this regard is that the occurrence had taken place at his (Ibrahim) Dera. The deceased had accompanied him and Abdul Waheed co- appellant to his Dera. It is quite imaginable that his presence at the Dera, led to, apportion him actual part in the occurrence. The facts of the judgment of the Supreme Court cited by learned counsel appearing for him are almost identical. We, therefore, allow him benefits of doubt by way of abundant caution. Appeal qua him is accepted and he is acquitted.
17. The participation of Abdul Wahecd appellant in the occurrence stands proved from the evidence on record. His conviction, under section 302 PPC is maintained.
18. It is not the prosecution's case that the deceased was taken by the accused to the spot by way of enticement or abduction. He was having friendly relations with the two accused.
Notwithstanding the fact that his brother had estopped the accused to mix with him, he had still accompanied them of his own. The quarrel which led to infliction of injuries to him had not arisen between him and the deceased. In fact, the abuses were exchanged between the accused and the complainant. The deceased had intervened and taken side of his brother while being in the company of the accused. The reaction of Abdul Waheed, therefore, in inflicting injuries to him, must have been sudden and spontaneous. Nothing turns out from the prosecution evidence to hold that there was any premeditation on the part of Abdul Waheed to take his life. In the circumstances, we are of the view that it is not a case of extreme penaIty of death. The lesser sentence, i.e. Imprisonment for life, in our view, will meet the ends of justice in the facts and circumstances of this case. The sentence of death awarded to Abdul Waheed by the trial Judge is, therefore, aItered to imprisonment for life. The sentence of fine and the direction for payment of compensation is maintained. He shall be given the benefit of the provisions of section 382-B, Cr.P.C.