' IJAZ NISAR, J.-- Khalil Ahmad (17) and his brother Shafiq Ahmad (19) sons of Shah Muhammad were tried for the murder of Muhammad Sharif (25) deceased. By his judgment, dated 15-1-1985, Additional Sessions Judge, Gujranwala, convicted Khalil Ahmad appellant under section 302, P.P.C.
And sentenced him to death plus a fine of Rs,2,000 or in default to undergo 2 years' R.I. With a further direction to pay Rs,5,000 as compensation to father of the deceased or in default to suffer two years' R.I. Shafi Ahmad was given the benefit of doubt and acquitted.
' We have before us the appeal filed by Khalil Ahmad appellant and the reference made by learned Sessions Judge, Gujranwala, under section 374, Cr.P.C. For confirmation of his death sentence. Both the matters shall be disposed of by this judgment.
2. The occurrence had taken place on 15-7-1983 at 7-30 p.m. At Tonga Adda. The report Exh.PA. Was lodged with the police by Noor Muhammad P.W.5 father of the deceased, on way to the police station on the same night at 8-45 p.m. And was recorded by Muhammad Hussain Shah A.S.I. P.W.10.
' Formal F.I.R. Exh.PA./1 was recorded by Muhammad Ashraf A.S.I. P.W.2.
3. The prosecution case is that about 8/10 years ago Shah Muhammad father of the appellant wanted the hand of Mst. Parveen sister of Muhammad Sharif deceased for his son Muhammad Sadiq. Her father Noor Muhammad P.W.5 did not accept the proposal causing annoyance to the father of the appellant. About 5/6 years ago Khalil Ahmad appellant alongwith another caused Chhuri blows to Muhammad Sharif deceased for which a case under section 324, P.P.C. Was registered against Khalil Ahmad etc. Later on security proceedings were initiated against both the parties. Two days before the occurrence Tongas of the appellant and Muhammad Sharif deceased had collided with each other resulting in exchange of abuses between them. The deceased told the appellant that he had not intentionally struck his tonga against the tonga of Khalil Ahmad appellant and as there was a heap of pebbles on the other side of the road he could not take his tonga to that side and thus accidentally hit the tonga of the appellant. On the day of occurrence Noor Muhammad P.W.5, father of the deceased and his daughter Balqis Akhtar P.W.6 had returned from Lahore and when they reached near Allahabad Tonga Stand Muhammad Sharif deceased met them and narrated to them the incident taking place two days before over the collision of his tonga with that of Khalil Ahmad appellant. In the meantime, Khalil Ahmad appellant alongwith his elder brother Shafiq Ahmad accused (since acquitted) arrived there in a tonga. Khalil Ahmad appellant started abusing the deceased and asked him as to why he had struck his tonga against his tonga. The deceased replied that it was not intentional but accidental. The appellant was not satisfied with the explanation and while abusing the deceased came down from his tonga.
Muhammad Shafiq accused (since acquitted) caught hold of the deceased by his collar. Khalil Ahmad appellant took out a dagger from the fold of his Shalwar and inflicted blows at the chest and head of the deceased. On receipt of injuries the deceased fell down whereafter Khalil Ahmad and his brother ran away from the spot. Noor Muhammad P.W. 5 and Shaukat AR P.W. (not produced) removed Muhammad Sharif deceased to the hospital but before any medical aid could be given to him he expired. Noor Muhammad P.W.5 reported the matter to the police.
4. After recording the statement Exh.PA. Of Noor Muhammad P.W.5, Muhammad Hussain Shah A.S.I.P.W.10 left for the hospital, prepared the injury statement Exh.P.G. And the inquest report Exh.P.H.
Of the deceased. On the following day he arrested Khalil Ahmad appellant and removed his blood- stained shirt P.4 and took it into possession through memo. Exh.P.E. On 17-7-1983 he arrested Muhammad Shafiq accused (since acquitted) and removed his bloodstained shirt and took the same into possession vide memo. Exh.P.C. On 25-71983 Shafiq Ahmad appellant led to the recovery of blood-stained dagger P.5 from his house which was secured through memo. Exh.P.K.
5. Dr. Imtiaz Ali Cheema conducted autopsy on the dead body of Muhammad Sharif deceased on 16-7-1983 at 8 a.m. And found the following injury thereon: ' Oblique stab wound 3 x 1 c.m. Into going deep on the front of left chest upper part lateral aspect 10 c.m. Above the left nipple.
' The injury was ante-mortem caused by a sharp-edged weapon. Death was due to cut of left pulmonary artery causing shock and haemorrhage. The time between injury and death was sudden and that between death and post-mortem about 12 hours.
6. At the trial Khalil Ahmad appellant denied the prosecution allegations. He, however, admitted that a case was registered against him and others under section 324, P.P.C. Which according to him was compromised after a month. He denied that his father had ever demanded the hand of Mst. Parveen Akhtar, sister of the deceased for his brother. He admitted the initiation of security proceedings between the parties and stated that those were also later on compromised. To explain the occurrence, he made the following statement:- "The deceased was also a tonga driver. As usual, I came in my tonga and deceased came in his tonga at Tonga Stand. Both the tongas had collided with each other due to broken stones. The deceased was of a desperate type. There was exchange of abuses then and there and the deceased came down from the tonga and grappled with each other and during this process we fell on Ice Phatta, installed by Shaukat brother of the deceased at the said Tonga Stand. The deceased suffered injury there, either through some ice breaking instrument or something else."
Shafiq Ahmad accused denied the prosecution case and stated that he was not party to any of the previous proceedings taking place between the parties.
' The accused examined Muhammad Yousaf D.W.1 in their defence. According to him Muhammad Sharif deceased and Khalil Ahmad appellant were coming towards the place of occurrence on their tongas which collided against each other near his shop resulting in an exchange of abuses between them. Muhammad Sharif deceased asked the appellant to come down but Khalil Ahmad did not want to do so. In the meantime, the deceased caught hold of Khalil Ahmad from his collar and pulled him down. Khalil Ahmad pushed him aside as a result of which he fell down on an Ice Phatta lying nearby. Muhammad Sharif suffered an injury from an iron Sooa lying there and started bleeding.
7. The prosecution examined 12 witnesses in support of its case. Noor Muhammad P.W.5 Balqis Akhtar P.W.6 and Tariq Masood P.W.7 furnished the ocular account. Mian Khan P.W.4 testified to the recoveries of blood-stained shirt from Shafiq Ahmad accused while Muhammad Safdar P.W.11 proved the recovery of blood-stained dagger P.5 at the instance of Khalil Ahmad appellant.
Muhammad Hussain Shah P.W.10 conducted investigation of the case.
8. Relying on the motive the ocular testimony and the recovery of bloodstained dagger P.5 at the instance of Khalil appellant, the trial Court convicted and sentenced the appellant as stated above.
Shafiq Ahmad accused was acquitted as in the opinion of the learned trial Court he was not connected with the immediate motive, nor had he caused any injury to the deceased and that the recovery of his blood-stained shirt was in violation of section 103, Cr.P.C.
9. It is contended that Noor Muhammad P.W.5 and Balqis Akhtar P.W.6 are interested witnesses because of their close relationship with the deceased and enmity with the appellant. Noor Muhammad P.W.5 is father of the deceased while Balqis Akhtar P.W.6 is sister of the deceased. They could not be expected to make true statements on account of the enmity existing between the parties. The evidence of Muhammad Safdar P.W.11 who testified to the recovery of blood-stained dagger P.5 from Khalil Ahmad appellant is also assailed on the ground that he was not a witness of the locality.
10. There is no denying the fact that bad blood existed between the parties before the present occurrence. Khalil Ahmad appellant had been challaned under section 324, P.P.C. For causing injuries to the deceased and security proceedings had also been initiated between the parties. In the wake of this situation rule of prudence requires some independent corroboration of Noor Muhammad P.W.5 and Balqis Akhtar P.W.6. The required corroboration is available from the evidence of Tariq Masood P.W.7 who is an independent witness. He has given a cogent explanation of his presence at the spot and is not shown to be having any motive for the false implication, of the appellant. He has fully corroborated Noor Muhammad and Balqis Akhtar P.Ws. On all material particulars. He was cross-examined at length but his evidence could not be shattered. The recovery of blood-stained dagger P.5 at the instance of the appellant lends corroboration to the ocular testimony. Muhammad Safdar P.W.5 who testified to it had no animus against the appellant to falsely involve him in a case of present nature. It was found to be stained with human blood by the Serologist.
As regards the cause of occurrence two versions have been put forth by the parties. According to Noor Muhammad P.W.5 it had taken place on account of the striking of the deceased's tonga against the tonga of the appellant two days prior to the occurrence while according to Khalil Ahmad appellant the occurrnce had taken place as a result of collision of tongas taking place on the day of occurrence. Since Noor Muhammad P.W.5 was not himself present when the tonga of the deceased and the appellant had collided against each other his evidence cannot be accepted being hearsay and we will have to draw our own conclusion from the material on record. It is an admitted fact by both the parties that the occurrence had taken place as a result of collision of tongas of the appellant and the deceased. According to the deceased his tonga had collided against that of the deceased because on the other side of the road there was a heap of pebbles and thus he could not take his tonga to that side. The appellant has also admitted that the collision had taken place due to the presence of stones. Thus it leads to an inference that the occurrence was unpremeditated and took place at the spur of moment on account of collision of tongas. The explanation given by the deceased was probably not accepted by the appellant and he on seeing damage to his tonga got infuriated and caused a single blow to the deceased which proved fatal.
In these circumstances, we think that though the prosecution has succeeded in proving the murder of Muhammad Sharif deceased at the hands of the appellant but in view of the occurrence being unpremeditated we consider that the ends of justice will be met if he is awarded the lesser sentence provided for the offence of murder. We order accordingly and while maintaining his conviction under section 302, P.P.C. Alter his sentence from death to imprisonment for life. The sentence of fine is, however, maintained. He shall pay compensation to the heirs of the deceased as ordered by the learned trial Court but in default thereof he will undergo 6 months' R.I. The order of the learned trial Court directing the appellant to suffer two years' R.I. For failure to pay compensation is illegal as under section 544-A, Cr.P.C. a person failing to pay compensation cannot be ordered to suffer imprisonment exceeding six months.
11. With the above modification in the sentence, the appeal filed by Khali1 Ahmad appellant is otherwise dismissed.
12. The death sentence is NOT confirmed.