' In brief the facts of this case are stated below:--- ' Bashir Ahmed deceased aged about 50 years, at about 12 mid-night on 12-7-1985 was sleeping in street outside his house. Suddenly there was alarm which attracted Shah Ramzan P.W.7, his wife Mst. Zainah P.W.8 and his mother- in-law Mst. Noor Elahi (given up). They opened the door of their Havel and came out in the street. They saw Abdul Ghafoor accused empty handed holding Bashir Ahmad deceased who was being injured with chhuri by Bashir Ahmad accused. They raised alarm where after the accused ran away. Abdul Majid, Abdul Shakoor and many other residents of village reached the spot a short while after the occurrence.
' The motive was stated to be ,that about 10 years earlier Bashir Ahmad deceased had abducted Mst. Arshan. She was restored to her husband 3 months thereafter on the intervention of the respectables. After about one year Bashir Ahmad deceased abducted Mst. Saidan but she was also restored after one month on the intervention of Baradari. The parties involved in these abductions compromised. Bashir Ahmad deceased took up his residence in Chak No,65, Distt: Sahiwal but returned back to village Pir Abdur Rchman a few months before the present occurrence and again developed illicit relations with Mst. Arshan aforesaid. This fact annoyed her relatives.
' Shah Ramzan P.W.7 leaving the dead body of his father in the care of the villagers proceeded to report the matter to police. He met S.I. Muhammad Hanif P.W.10 at 2 a.m. On 13-7-1985 (after about 2 hours of occurrence) at More Ahmadpur Sial. S.I. Muhammad Hanif P.W.10 recorded his statement Exh.P.C. And sent the same to Police Station Garb Maharaja, District Jhang about 17 k.m. From the place of occurrence where H.C. Ahmad Bux P.W.5 at 3 a.m. On the same morning recorded formal F.I.R. Exh.P.C./1.
2. The dead body of Bashir Ahmad deceased aged about 50 years was sent for post-mortem examination which was conducted by P.W.1 Dr.Muhammad Salcem at 8.30 a.m. On 13-7-1985. On external examination, the Medical Officer found 3 incised wounds on the dead body. Injury No,1 was "incised wound 10 c.m. x 6 c.m. x bone deep on the left side of the neck extending from 3 c.m. Below the left car to the back of neck".. The other 2 injuries were also incised wounds on the back of neck and left clavicle. On dissection the cervical spine was completely cut at the level of second cervical vertebra under injury No,1. Spinal cord and blood vessel on left side of neck were completely cut under injury No,1. All injuries had been caused by sharp-edged weapon. The death was due to shock and hemorrhage as a result of injury No,1 which was sufficient to cause death in ordinary course of nature. Time between injuries and death was immediate and post-mortem examination was conducted in about 8 /9 hours from death.
3. S.I. Muhammad Hanif P.W.-10 during inspection of the place of occurrence on 13-7-1985 collected blood-stained earth vide memo. Exh.P.D. He also took in possession cot P.2 on which Bashir Ahmad deceased was sleeping along with pillow P.3, both blood-stained, vide memo Exh.P.E.
' Both the accused were arrested on 17-7-1985. At the time of arrest Bashir Ahmad accused was found wearing Shirt P.4 and Shalwar P.5 which were taken in possession by Si. Muhammad Hanif P.W.10 vide memo. Exh.P.F attested by Abdul Majid P.W.-6 and Abdul Shakoor not examined. In presence of the same witnesses blood-stained shirt P.6 and blood-stained Chaddar P.7 were taken in possession from the person of Abdul Ghafoor accused vide memo Exh.P.H. On 17-7-1985 Bashir Ahmad accused led to the recovery of bloodstained Chhuri from his house vide memo. Exh.P.H signed by S.I. Muhammad Hanif P.W.10 Abdul Majid P.W.6 and Abdul Shakoor P.W. Not examined. The Chhuri P.8 and clothes were found stained with human blood vide report of Chemical Examiner Exh.P.O. And that of Serologist Exh.P.O.
' The accused were challaned after completion of the investigation.
4. In support of its case prosecution examined 10 witnesses in all. P.W.7 Shah Ramzan and his wife P.W.-8 Mst. Zainab were examined as eye-witnesses. Mst. Noor Elahi another witness named in the F.I.R. Was given up as unnecessary. The incriminating recoveries from the accused were witnessed by P.W.6 Abdul Majid. The medical evidence was furnished by P.W.1 Dr. Muhammad Saleem as given in detail above. The case was investigated by S.I. Muhammad Hanif P.W.10. The evidence of the rest of the witnesses was of formal nature.
' The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They denied incriminating recoveries from them. They did not produce any evidence in defence, excepting tendering F.I.R. Dated 8-7-1984 Exh.D.B. FIR. Dated 7-5-1984 Exh.D.C, complaint Exh.D.D. Filed by Mst. Shahida Parvccn ; copy of judgment Exh.D.E. In the case relating to F.I.R. Dated 8-7-1984 Exh. D.B and copy of sale-deed Exh.D.F. Dated 24-2-1986 relating to sale of 4 Kanals and 10 Marlas of land in favour of Abdul Majid.
5. The learned Additional Sessions Judge, Jhang placed reliance on the evidence of eye-witnesses, incriminating recoveries and motive. He therefore, vide the impugned judgment dated 31-3-1987 sentenced Bashir Ahmad 27 and Abdul Ghafoor 25 to imprisonment for life and fine of Rs,5,000 or in default one year's R.I. Each under section 302/34, P.P.C. They were also given benefit of section 382- B, Cr.P.C. Hence this appeal.
' Before commencement of hearing of appeal I gave notice to the learned counsel for appellants to show cause as to why in case this appeal is dismissed the sentence of fine be not enhanced to award compensation to heirs of the deceased. The learned counsel accepted this notice on behalf of the appellants.
6. I have heard the learned counsel appearing for the parties and have carefully gone through the evidence on record.
' The motive in this case is that Mst. Arshan, a sister of Bashir Ahmad accused, was abducted about 10 years earlier by Bashir Ahmad deceased. She was restored to her husband 3 months after the abduction. About one year thereafter Bashir Ahmad deceased abducted Mst. Saidan mother of Abdul Ghafoor. She was also restored to her husband after about one month of abduction. Bashir Ahmad deceased left the village after compromise between the parties. He returned back a few months before the present occurrence and again developed illicit relations with Mst. Arshan a sister of Bashir Ahmad accused. The evidence on motive has been provided by P.W.7 Shah Ramzan a son of Bashir Ahmad deceased. Besides the above-mentioned abductions, the accused and the complainant party had no enmity with each other. It is correct that Shah Ramzan P.W.7 was son of the deceased but he had no motive to falsely involve the accused in this case. He being son of the deceased had direct knowledge about the two I abductions mentioned above. I am of the view that prosecution has successfully proved motive against the accused.
7. Bashir Ahmad and Abdul Ghafoor accused were arrested by S.I. Muhammad Hanif P.W.10 on 17-7- 1985 i,e, after about 4/5 days of the occurrence. The prosecution case is that at the time of arrest they were found wearing blood-stained clothes which were got removed and taken in possession vide memo Exhs.P.F. And P.G. I am not inclined to accept the recovery of bloodstained clothes from the accused. The accused had enough time to do away with their blood-stained clothes. It does not seem probable that they would continue wearing blood-stained clothes and move about in the area. Their natural conduct was either to conceal these clothes or to wash them of the blood stains. I therefore, exclude this evidence from consideration against the accused.
' Bashir Ahmad accused after his arrest on 17-7-1985 led to the recovery of blood-stained Chhuri Exh.P.8 from his house which was taken in possession vide memo Exh.P.H. This recovery was witnessed by P.W.-6 Abdul Majid and Abdul Shakoor (given up P.W.). Abdul Majid P.W. Is not related to the deceased. He had no enmity with the accused to falsely depose against him. The learned counsel contended that even after recording of his statement on 18-1-1987 Abdul Majid PW was present in Court to pursue the case on the date when the statements of eye-witnesses were recorded. It was further argued that this witness was interested and be not relied upon. This argument is without any force. Abdul Majid P.W. Had his house close to the house of deceased in the same village. There was therefore, nothing unusual if he was found present outside the Court when the statements of eye-witnesses were recorded. Mere fact that he was present outside the Court would not mean that he was interested against the accused. The learned counsel drew my attention to sale-deed dated 24-2-1986 Exh. D F to contend that Mst. Shah Begum a daughter of Bashir Ahmad deceased sold land to him which makes him an interested witness. This argument has also no force because Abdul Majid P.W. Had witnessed Chhuri P.8 on 17-7-1985 i,e, much before the sale of said land. In my view he was an independent witness. The recovery of chhuri P.8 is fully proved on record. This recovery furnishes corroborating evidence to the ocular account of the case.
8. P.W.7 Shah Ramzan is son of Bashir Ahmad deceased and husband of P.W.8 Mst. Zainab. The two eye-witnesses, though related, had no enmity to C falsely involve the accused in this case. They were present inside the house and were attracted to the spot on hearing alarm of Bashir Ahmad deceased, who was sleeping just outside the house in the street. They were therefore, natural witnesses. Both the eye-witnesses made consistent statements to support the prosecution case.
The accused were known to the witnesses. There was electric light inside the courtyard and also in the street. It was therefore, not difficult for them to identify the accused at the time of occurrence.
The learned counsel contended that the presence of electric light outside the house of the deceased was highly improbable because no light was provided by any one residing in the neighboring houses. This argument cannot be accepted firstly because it was explained by P.W.7 Shah Ramzan that they had provided light to avoid any mishap to the persons proceeding for prayers in the mosque. Secondly no one else residing in the neighborhood house used to sleep or was sleeping in the street, and thirdly Bashir Ahmad deceased alone was sleeping in the street on account of which the complainant might have thought it necessary to have arrangements of light.
It was next contended that the two eye-witnesses did not raise alarm nor tried to rescue Bashir Ahmad from the accused. This was an unnatural conduct which makes their presence doubtful.
This argument is also without any force. One of the accused was armed with Chhuri. The witnesses were taken by surprise and as such must have felt confused on witnessing the occurrence which made them dumbfounded. It was argued on behalf of the accused that after cut on throat the deceased could not have raised alarm to attract the witnesses. This argument is without merit. The deceased received 3 injuries on his person. There is nothing to show as to which of these was caused prior in time. It must have taken some time for the accused to completely cut his throat. It could therefore, not be said that the deceased was not able to raise alarm at the time of occurrence. The learned counsel finally argued that the deceased was a person of immoral character and had many enemies who could have killed him in the darkness when he was sleeping alone in the street. It is correct that Bashir Ahmad deceased appeared to be of shady character from the evidence on record but I am not inclined to agree that the two accused were falsely involved in the case and that no one had witnessed the occurrence. The occurrence took place at about 12 mid-night. The F.I.R. Was recorded at about 2 a.m. i,e, about 2 hours after the occurrence. It contained the name of the accused, the weapon used during the occurrence and the motive. The fact that the F.I.R. Was recorded without any delay, is a circumstance which corroborated the ocular account of this case.
9. Abdul Ghafoor accused was empty-handed at the time of occurrence. The allegation against him is that he had held Bashir Ahmad deceased who was lying on a cot at the time of occurrence.
There is no evidence to show that Bashir Ahmad and Abdul Ghafoor accused were inter-related. If Abdul Ghafoor accused had shared common intention with Bashir Ahmad accused to murder Bashir Ahmad decesed, he must also have carried some weapon in his hand. He had no immediate motive to kill Bashir Ahmad deceased. The case against him therefore, is not free from doubt.
10. As a result of above discussion, this appeal on behalf of Abdul Ghafoor accused is accepted. His conviction and sentence is set aside. Abdul Ghafoor accused is acquitted and shall be released from prison forthwith if not required in any other case.
' Bashir Ahmad accused caused all the injuries on the person of Bashir Ahmad deceased. He brutally murdered him. The learned trial Judge did not award any compensation under section 544-A, Cr.P.C. Nor any reason for said omission was recorded in the impugned judgment. This appeal on behalf of Bashir Ahmad accused is dismissed. His conviction under section 302, P.P.C. Is maintained. Bashir Ahmad accused-appellant is sentenced to imprisonment for life plus fine of Rs,20,000 or in default one year R.I. Under section 302, P.P.C. A sum of Rs,15,000 out of fine, if recovered shall he paid as compensation to heirs of Bashir Ahmad deceased.
Order accordingly.