' TANVIR AHMED KHAN, J.--- Muhammad Nawaz, Nisar Ahmad and Abdul Rashid were tried for the murder of Mushtaq and the learned Additional Sessions Judge, Narowal vide his judgment dated 30-3-1987 convicted all the three appellants under section 302/34, P.P.C. As far as their sentence was concerned, the former was sentenced to death with a fine of Rs,5,000 or in default to undergo R.I. For 2 years and the latter two appellants were sentenced to imprisonment for life and a fine of Rs,3,000 or in default to undergo R.I. For 2 years. Half of the fine in case of its realization was ordered to be paid to the legal heirs of the deceased filed Criminal Revision No,340 of 1987 for the enhancement of sentence of Nisar Ahmad appellant while Murder Reference No,89 of 1987 has been submitted for the confirmation of the death sentence awarded to Muhammad Nawaz appellant. These matters are going to be disposed of by this judgment.
3. The prosecution story as stated by the complainant Muhammad Iqbal (P.W.6) is that on 30-8- 1986 his brother Mushtaq deceased was irrigating his paddy crop with canal water. There he was standing on the Watt of his field. In the meantime Muhammad Nawaz armed with a Chhuri and rest of the two appellants namely Abdul Rashid and Nisar Ahmad empty-handed came at the spot and started hurling abuses at Mushtaq deceased. They asked him as to why he had taken the turn of water since it was their turn. Mushtaq deceased stated that since it was his turn he had taken the same. Thereupon Abdul Rashid appellant raised Lalkara that Mushtaq be caught and taught a lesson for his abuses and taking the turn of water. It was further stated that Nisar Ahmad appellant held the deceased in his clasp and thereupon Muhammad Nawaz appellant inflicted three Chhuri blows. Mushtaq started bleeding and fell on the ground. Karamat Ali and Sardar Ali P.Ws. Are stated to have come rushing to the spot and thereupon the assailants ran away. Mushtaq died at the spot.
4. The motive asserted by the prosecution for this murder was a dispute over the turn of water.
Muhammad Iqbal (P.W.6) narrated the forementioned statement Exh.P.D. Before Zulfiqar All S.I./S.H.O. Police Station Niddoke while the latter was on patrol duty at Lohbin Pulli. After recording this statement the same was sent for registration of the formal F.I.R. Where Zahoor-ul-Hassan A.S.I.
(P.W.10) recorded the formal F.I.R. Exh.P.D./1 at 9-30 a.m.
5. The Investigating Officer Zulfiqar Ali (P.W.9) reached the spot and prepared injury statement Exh.P.G. And inquest report Exh.P.J. Of the deceased. He also secured into possession blood-stained earth from the spot vide memo. Exh.P.E. The dead body of the deceased was sent to mortuary through Zafar Ahmad, Constable P.W.3 along with Arshad Mehmood Constable given up P.W. The Investigating Officer also recorded the statements of the witnesses at the spot. All the accused were arrested on 10-9-1986 and Muhammad Nawaz appellant led to the recovery of blood-stained Chhuri P.3 from the iron chest lying in his house on 12-9-1986 which was taken into possession vide memo. Exh.P.F. This recovery was witnessed by Maqsood Ahmad (P.W.8) and Muhammad Malik, given up P.W. The site plan Exhs.P.A. And P.A./1 was got prepared through Nisar Ahmad, Revenue Patwari (P.W.1). The post-mortem examination of the deceased was conducted by Dr. Fayyaz Ahmad Ranjha (P.W.4) M.O. D.H.Q. Hospital, Narowal on 30-8-1986 at 5-30 p.m. Who found the following injuries on his person:--
(1) An incised wound 2.5 x 1 c.m. Going deep in chest cavity above the left nipple at 4th intercostal space.
(2) A scratch 4 c.m. Long in the mid-line of sternum.
(3) An incised wound 1 c.m. x 1/4 c.m. At the outer angle of left eyebrow.
(4) An incised wound 1/2 c.m. x 1/4 c.m. x 1/4 c.m. At the front of left deltoid region.
6. In the opinion of the doctor death has occurred due to shock and haemorrhage due to injury No,1 which was sufficient to cause death in the ordinary course of nature.
7. The prosecution examined 10 witnesses to establish its case. The ocular account has been stated by Muhammad Iqbal (P.W.6) and Karamat Ali (P.W.7). The former is a real brother of the deceased Mushtaq. He has reiterated the stance taken by him in his statement Exh.P.D. This witness has also stated about the motive as according to him the dispute arose over the violation of Warabandi.
However, in his cross-examination he had admitted that formal Warabandi had not been fixed by the Canal Authorities and on the contrary he referred that the proprietors of the village had mutually agreed and chalked out a programme respecting the turn of water to be availed by each of the owners of land. However, no evidence was brought to establish the aforesaid programme except the bald assertion of the witness. The other eye-witness Karamat All (P.W.7) a first cousin of the deceased, had also supported the ocular account and stated on the same lines as earlier stated by Muhammad Iqbal (P.W.6).
8. The appellants in their statements under section 342, Cr.P.C. Denied the allegation and attributed the case to suspicion.
9. Learned counsel appearing for the appellants has argued that the ocular account in this case has been narrated by Muhammad Iqbal (P.W.6) and Karamat Ali (P.W.7). Both of them are close relatives of the deceased. The former is the real brother of the deceased while the latter is a first cousin of the deceased. He has also pointed out certain discrepancies and improvements in the testimony of the two. To substantiate the same he has pointed out that in the F.I.R. Muhammad Iqbal (P.W.6) has categorically stated that after the occurrence these witnesses rushed to the place of occurrence whereupon the assailants ran away.
10. As far Karamat All (P.W.7) is concerned he has admitted that at the call of Mushtaq deceased for help he alongwith other P.Ws. Rushed to the spot and before they could reach there the appellants had fled away. On the basis of this it is argued by the learned counsel that both the eye-witnesses had not seen the occurrence. It is further argued that both of them are chance witnesses and no plausible explanation has been given for their presence at the place of occurrence. Further states that the medical evidence is not in accord with the ocular account.
According to the doctor the probable time between injuries and death was 1/2 to 2 hours, while both the aforesaid eye-witnesses had stated that Mushtaq deceased died at the spot.
' Learned counsel has also criticised the recovery of incriminating Chhuri P.3 as according to him it is highly improbable that the appellant would be keeping blood-stained Chhuri intact in the iron chest for its onward recovery on 12-9-1986 as alleged by the prosecution. He had also stated that Maqsood Ahrnad (P.W.8) the recovery witness is a close relative. The motive according to the learned counsel for the appellant has simply been asserted by the eye-witnesses but nothing worth the name has been brought on record to establish the same.
11. We have considered the arguments of the parties and have perused the record. In spite of the Minor contradictions, pointed out by the learned counsel, in the ocular testimony, the involvement of Muhammad Nawaz appellant has, been established beyond any doubt. The guilt alleged against him, that he inflicted Chhuri blow to the deceased, has fully been brought home by Muhammad Iqbal (P.W.6) and Karamat Ali (P.W.7). Both of them are consistent qua the manner of injuries inflicted upon the deceased. They have advanced a plausible explanation for their being present at the spot at the time of occurrence. Their testimony cannot be brushed aside simply on the ground of being relative of the deceased, if it otherwise inspires confidence and is supported by independent corroboration. Here in this case the ocular account vis-a-vis Nawaz appellant stands corroborated by the recovery of Chhuri which was found to be stained with human blood by the report of Chemical Examiner and Serologist. The medical evidence too goes further to corroborate the testimony of the eye-witnesses. The argument of the learned counsel that the doctor has opined that the time between injury and death was 1/2 hour to 2 hours would not in any manner affect the ocular account. It is simply his opinion and cannot be given much weight in view of consistent ocular account.
12. As far as motive is concerned that simply has been alleged by the prosecution. No evidence worth mentioning has been brought on record to establish the same. The person who availed of the turn of water prior to the deceased, was not even examined by the Investigating Officer. No person of the adjoining area was even associated during the course of the investigation to determine the existence of alleged Warabandi amongst the proprietors of the area as alleged by the prosecution. Motive in this case appears to be shrouded in mystery. Something must have happened leading to the commission of this B offence which the prosecution has not brought on record. Accordingly, the motive, as alleged by the prosecution, would not be of any avail and is accordingly disbelieved. The close scrutiny of the evidence brought on record reveals that the involvement of Abdul Rashid and Nisar Ahmad appears to have been made because of their inter se, close relationship with Muhammad Nawaz appellant. Both of them were allegedly empty handed and no overt act whatsoever has been C attributed to them. Their presence and involvement in the occurrence, in the circumstances of this case, appears to be doubtful. Hence, we give the benefit of doubt to the two appellants namely, Abdul Rashid and Nisar Ahmad and acquit them from all the charges. They shall be released forthwith, if not required in any other case.
As far as Muhammad Nawaz appellant is concerned, his involvement D has been established on record. But in the circumstances, discussed above, when the immediate cause of the occurrence has not been substantiated by the prosecution, we alter his conviction to section 304, Part I, P.P.C.
And sentence him to ten years' R.I. He shall be given the benefit of section 382-B, Cr.P.C. Death sentence is not confirmed.
' Criminal Revision No,340 of 1987 filed by Muhammad Iqbal complainant for the enhancement of sentence of Nisar Ahmad appellant is dismissed.