' KHALIL-UR-REHMAN RAMDAY, J.--- One Muhammad Sharif, his wife Mst. Hafizan and his two sons, namely, Muhammad Aslam and Muhammad Akram were accused of the commission of an offence punishable under section 302/34, P.P.C. For having allegedly murdered one Akbar Ali. This was through F.T.R. No, 173 dated 18-9-1985 of Police Station Burajwala of district Sahiwal recorded on the statement of one Muhammad Afzal P.W.4. Who is a brother of aforesaid Akbar Ali deceased.
2. Vide his judgment dated 5-8-1986 a learned Additional Sessions Judge of Sahiwal extended the benefit of doubt to Mst. Hafizan aforesaid and accordingly acquitted her of the charge levelled against her. Muhammad Aslam, Muhammad Akram and Muhammad Sharif were however, found guilty of the charge and were consequently convicted under section 302/34 P.P.C. Muhammad Aslam who had, allegedly, inflicted the solitary dagger blow to the deceased was sentenced to suffer death. A fine of Rs,3,000 was also imposed on him in default of payment of which, he was directed to undergo R.I. For six months. He was also ordered to pay a sum of Rs,5,000 as compensation under section 544-A, Cr.P.C. Or to suffer six months' R.I. In default thereof.
Muhammad Sharif and Muhammad Akram who had been attributed Japha were sentenced to life imprisonment with a fine of Rs,2,000 each or to suffer six months' R.I. In default thereof. Each one of them was also directed to pay an amount of Rs,2,000 as compensation under section 544-A, Cr.P.C. Or to undergo R.I. For six months in default of payment of the said compensation.
3. Murder Reference No, 167 of 1986 is a reference submitted by the learned trial Court for confirmation of death sentence awarded to Muhammad Aslam convict whereas Criminal Appeal No,502 of 1986 is the appeal jointly filed by the three convicts challenging their conviction and the consequent punishments awarded to them.
4. This judgment shall dispose of both these matters, namely, Murder Reference No,167 of 1986 and Criminal Appeal No, 502 of 1986.
5. Through the aforementioned F.I.R. Muhammad Afzal complainant P.W.4 had alleged that he and his deceased brother used to work in Karachi; had -come to their village to celebrate Eid and that on the day of occurrence i,e, 18-91985 he heard cries at about 3-00 p.m. And reached the village Chowk alongwith Nazir (given-up P.W.) and Yousaf P.W.S. It was further alleged that on reaching the said Chowk they saw that Muhammad Sharif and Muhammad Akram convicts were holding Akbar Ali deceased whereas Muhammad Aslam convict was inflicting injuries on the back of the deceased with a dagger. Mst. Hafizan, the acquitted co-accused, was alleged to have been standing close-by and to have been giving Lalkaras to the effect that Akbar Ali deceased should be done to death. Afzal complainant further claimed that he and the other P.Ws. Did not intervene on account of the threats being extended by the assailants and that all the four above-mentioned culprits went away after Akbar Ali deceased had fallen on the ground and had died.
6. The motive, according to Afzal complainant, was that Aslam convict had taken photographs of one Mst. Surraya who was a relation of the deceased whereupon the relatives of the said Mst.
Surraya had admonished Sharif convict and his sons who then suspected that it was Akbar Ali deceased who had given the information in question to the relatives of Mst. Surraya and it was on this account that the assailants had conspired to kill Akbar All deceased.
7. The defence version, as divulged by Aslam convict, was that he had gone to the shop of one Ashiq Ali, situate in the village Chowk for making certain purchases where Akbar Ali deceased was already sitting on a chair in front of the said shop. He claimed that on seeing him, Akbar Ali deceased tauntingly remarked that he would take away his (Aslam's) sister to Karachi because he (Aslam) had been writing love letters to Mst. Surraya who was a relative of Akbar Ali deceased.
Aslam convict allegedly took exception to these remarks of Akbar Ali which led to an altercation and a quarrel between the two whereupon Akbar Ali deceased allegedly took out a dagger and attacked Aslam convict who in turn hurled a chair on Akbar All deceased as a result of which the dagger fell down from his hands. Akbar Ali deceased then felled Aslam convict down on the ground, sat over him and started strangulating him whereupon Aslam convict took-up the fallen dagger from the ground and gave a solitary blow on the back of Akbar Ali deceased to liberate himself from his clutches. Aslam convict further claimed that the other three co-accused, namely, his father Sharif, his mother Mst. Hafizan and his brother Akram were not present at the place of occurrence nor were Afzal complainant, Yousaf and Nazir P.Ws. Present at the place of occurrence at the relevant time.
8. Placing the two versions in juxtaposition and analysing the prosecution story first, it transpires that:--
(a) The occurrence had admittedly taken place in front of the shop of one Ashiq. The said Ashiq and other neighbours of the place of occurrence had been examined by Muhammad Ayyaz, Investigating Officer P.W.7 A but were not cited as prosecution witnesses. The inference would be that the said Ashiq and other neighbours of the said place had not supported the prosecution version of the occurrence;
(b) Yousaf P.W.5 is stated to be the keeper of a shop near the plim of occurrence where the complainant and Nazir (given-up P.W.) were allegedly sitting when they heard the cries in question.
This fact was not so stated in the FIR. The alleged shop of Yousaf P.W.5 which is stated to be adjacent to the place of occurrence does not find mention either in the site plan or in the daily diaries of the Investigating Officer. These facts cast doubts about the existence of any shop owned by Yousaf P.W. At the place of occurrence and consequently the presence of Afzal complainant and Yousaf P.W. At the said place;
(c) Afzal complainant and Yousaf P.W. Thus become chance witnesses of the occurrence;
(d) The I.O. P.W.7 admitted that he never interrogated Mst. Surraya abovementioned or any of her relatives including her parents about the motive part of the prosecution version. None of these persons were produced before the trial Court to establish the motive alleged by the prosecution;
(e) The blood stains allegedly found on the dagger P.4 allegedly recovered from Aslam convict have not been proved to be of human origin;
(f) The occurrence allegedly took place in broad daylight in the village Chowk which admittedly has shops around it. The alleged assailants were only four in number including one female and were armed only with one dagger. It is thus not plausible that none, either from amongst the three eye-witnesses or from amongst the shop-keepers or other persons present at the place of occurrence could pick up courage either to intervene or to apprehend the assailants at the place of occurrence.
9. In view of the above analysis of the prosecution evidence, the prosecution version does not inspire confidence.
10. As against this, the defence story appears to be more plausible and convincing. We, therefore, hold accordingly.
11. Our conclusion, thus, is that Muhammad Sharif and Muhammad Akram convicts as also Mst.
Hafizan, the acquitted co-accused were not present at tne F place of occurrence nor did they participate in the said occurrence. The occurrence was the result of a sudden flare-up between Aslam convict and Akbar Ali deceased who happened to confront each other in front of the shop of one Ashiq which finally led to a solitary dagger blow on the person of Akbar Ali deceased at the hands of Aslam convict.
12. The result is that Muhammad Sharif and Muhammad Akram appellants are acquitted of the charge of Akbar Ali's murder and Muhammad Aslam H appellant is found guilty only under section 304, Part I of the Pakistan Penal Code. Consequently, the death sentence awarded to Muhammad Aslam appellant Is Not Confirmed. His conviction under section 302, P.P.C. Is altered to one under section 304, Part I, P.P.C. And he is sentenced to suffer ten years' R.I. The fine imposed on him by the learned trial Court as also the amount of compensation directed to be paid by him and the imprisonment awarded in default of payment of the said fine and the said compensation shall, however, be maintained. Muhammad Aslam convict shall also he entitled to the benefit of the provisions of section 382-B, Cr.P.C.
13. Muhammad Sharif and Muhammad Akram appellants are on bail. They are set at liberty after being discharged from their respective bail/surety bonds.
14. Criminal Appeal No, 502 of 1986 is thus partly accepted in the above terms and Murder Reference No, 167 of 1986 is also answered accordingly.