' RAJA AFRASIAB KHAN, J.---Muhammad Shafique alias Kaka and Muhammad Saeed were tried by the learned Additional Sessions Judge, Lahore, for the murder of Amjad Hussain and for an attempt to murder Imran Ahmad P.W.10. The appellant Muhammad Shafique was convicted under section 302/34 P.P.C. And was sentenced to death plus a fine of Rs,50,000 or in default thereof to suffer R.I.
For five years. He was also convicted under section 307/34 P.P.C. And was sentenced to undergo R.I.
For three years plus a fine of Rs, 5,000 or in default thereof suffer R.I. For one year. The appellant Muhammad Saeed was convicted under section 302/34, P.P.C. And was sentenced to life imprisonment plus a fine of Rs,50,000 or in default thereof to suffer R.I. For five years. He was also convicted under section 307/34, P.P.C. And was sentenced to undergo two years' R.I. Plus a fine of Rs,5,000 or in default thereof to suffer R.I. For one year. It was directed that the sentences of imprisonment of Muhammad Saeed shall run concurrently. It was ordered that in case of recovery of fine, a sum of Rs, 80,000 shall be paid to the legal heirs of the deceased. The appellants Muhammad Shafique and Muhammad Saeed through Criminal Appeals No, 626 of 1937 and 605 of 1987, respectively, have challenged their conviction and sentences. Imran Ahmad, complainant, has filed Criminal Revision No,257 of 1988 praying for the enhancement of the sentences of the appellants. It is prayed in the revision that the sentence of life imprisonment may be enhanced to death in case of Muhammad Saeed whereas the amount of fine may be enhanced in case of both the convict-appellants. The learned trial Court has sent a reference for confirmation of the death sentence of Muhammad Shafique. We propose to decide these matters through this judgment.
2. The prosecution story is that Muhammad Shafique and Muhammad Saeed came in the Mohallah at Charagh Din Road two days earlier to the occurrence. They were vagabonds and indulged in the sale of heroin etc. The complainant and Amjad Hussain forbade the appellants from coming to their Mohallah. There was a quarrel between them and Muhammad Shafique was beaten by the complainant party. On 21-6-1985, at about 9-30 p.m., Imran Ahmad complainant and Amjad Hussain deceased went to Kucha Takia Sardar Shah Gali, Dr. Nazirwali, to purchase ice where the appellants were standing. They shouted that the complainant party would not be allowed to go alive. Muhammad Saeed held Imran Ahmad whereupon Muhammad Shafique gave a knife blow which landed on his left buttock. On receipt of the injury, the complainant fell down.
Thereafter the appellants opened attack on Amjad Hussain who started running to save his life.
However, Muhammad Saeed succeeded in overtaking Amjad Hussain near the Tuition Centre, Kucha Takia Sardar Shah. Muhammad Shafique gave successive knife injuries on chest, back, thighs and legs of Amjad Hussain. He fell down. On alarm, Imran Ashraf and Muhamad Ilyas reached the spot and witnessed the occurrence. They attempted to catch the appellants but they succeeded in running away. Amjad Hussain and the complainant were brought to Sir Ganga Ram Hospital in a Rickwhaw. Amjad Hussain died on the way. The complainant was, however, admitted to the hospital.
3. Naseem-ul-Hassan, D.S.P. Tounsa (at ' that time posted as Inspector/S.H.O Police Station Mozang, Lahore), investigated the case. On 21-6-1985 at about 10-30 p.m., the Police Officer reached Sir Ganga Ram Hospital, Lahore, on receiving information about the murder. Statement Exh.PA of Imran Ahmad injured was recorded by him. Inquest Report Exh.P.K. And injury statement Exh.P.L. Of the dead body were prepared. Statements of Muhammad Ilyas and Imran Ashraf P.W.s. Were recorded under section 161, Cr.P.C. The dead body was sent for post-mortem examination through Nasrullah and Abdul Hameed Constables. Site-plans Exh. P.H. And Exh.P.H./1 were prepared through Inam Ali Shah P.W.B. Blood-stained earth from the place of occurrence was taken into possession vide memo. Exh.P.B. Muhammad Shafique was arrested by the Police on 23-6-1985 while Muhammad Saeed was arrested on 24-6-1985. Blood-stained clothes Shirts, Vest. Shalwar and Karra of the deceased were taken into possession vide memo. Exh.P.E. On 25-6-1985. Muhammad Shafique while in Police Custody led to the recovery of blood-stained knife P.1 from underneath a big tin-box from his living room. The knife was taken into possession vide memo. Exh. P.C. On the same day, Muhammad Shafique led to the recovery of Shalwar P.2, Kameez P.3 from his room which were found bloodstained. These articles were taken into possession vide memo Exh.P.D. On 27-6-1985 the complainant produced before the witness his blood-stained Pent P.4 which was taken into possession vide memo. Exh.P.J. Positive reports of the Chemical Examiner and the Serologist vide Exhs.P.O. And P.Q. Were tendered in evidence by the learned Prosecutor.
4. Dr. Muhammad Farooq Akmal P.W.6 conducted the post-mortem examination on the dead body on 22-6-1985 and found the following injuries thereon:-
(1) A stab wound on left chest 2.5 c.m x 1.00 c.m in 7 O'clock position of left nipple and 6.0 c.m. Away from it transversely oblique 122 c.m above left heel.
(2) A stab wound on back of left chest 2.0 c.m. x 1.5 c.m. 17 c.m. Below left shoulder tip and 6.0 c.m.
Away from the posterior axillary fold transversely oblique 134 c.m. Above left heel.
(3) A stab wound 1.25 c.m. x 0.5 at the inner lower right thigh, muscle deep 61 c.m. Above right heel.
(4) Stab wound 1.25 c.m. x 0.5 c.m. At the base of right buttock, muscle deep 75 c.m. Above right heel.
(5) A stab wound 2.0 c.m. x 1.25 c.m. At back upper right thigh 59 c.m. Above right heel.
(6) Incised wound 2.0 c.m. x 0.5 c.m. Upper front left leg, 37 c.m. Above left heel.
(7) A stab wound 1.0 c.m. x 0.25 c.m. At inner upper left leg 38 c.m. Above left heel.
' According to the doctor, Injury No,1 had passed through the sixth inter-costal space and cut into the pericardium and the apex of right ventricle through and through and diaphragm into the upper part of left lobe of liver. It was opined that the injuries were ante-mortem and were caused by sharp-edged weapon. Injury No,1 was sufficient to cause death in the ordinary course of nature. In the opinion of the doctor, death occurred due to hemorrhage and shock. Probable time that elapsed between injuries and death was a few minutes whereas the time between the death and post-mortem examination was 12 to 24 hours.
' Dr. Muhammad Latif Aftab P.W.7 on 21-6-1985 at about 9-30 p.m. Examined Imran Ahmad, and found the following injury on his person:-
(1) Stab wound on left gluteal region 20 c.m. From interior superior iliac spine 1.25 c.m. x 1.0 c.m. x 3. c.m."
' The injury was simple in nature and was caused by a sharp-edged weapon. The injury was found fresh by the Doctor.
5. Eye-witness account was given by Muhammad Ilyas P.W.9, Imran Ahmad P.W.10 and Imran Ashraf P.W.11. Imran Ahmad P.W.10 is the complainant. He supported the prosecution version.
Muhammad hays P.W.9 deposed that Muhammad Saeed appellant held Imran Ahmad whereupon Muhammad Shafique inflicted injuries with his knife on his left hip. The witness stated that the appellant Shafique inflicted knife blows on Amjad Hussain on his chest, thighs, back and legs. On receipt of the injuries, Amjad Hussain fell down. Imran Ashraf P.W.11 also supported the prosecution version. The appellants while making statements under section 342 Cr.P.C. Denied the allegations levelled against them. Muhammad Saeed appellant took the plea that he had been involved in the case because of his friendship with the appellant Muhammad Shafique and that he was innocent.
Muhammad Shafique made a detailed statement saying that he was innocent and that he had been fasely implicated in the case. He stated that Amjad Hussain deceased was a vagabond and was not doing any job. He continued to say that some time before this occurrence, wife of his elder brother made a complaint to him that Amjad Hussain had been following her and that he had been cutting jokes with her. About 2/3 days ago, he reprimanded the deceased on account of his uncalled for behaviour which led to a quarrel. The appellant further stated that he had no grievance to cause the death of Amjab Hussain. He maintained that he had been involved in the case because of suspicion on account of his earlier quarrel with the deceased. He further stated that it was just a coincidence that dead body of Amjad Hussain was found near his house and that the deceased was done to death by some unknown assailant in the darkness of the night. He denied to be a dealer in narcotics. He stressed that he was a law abiding citizen. However, no evidence in defence was led by the appellants in support of their case.
7. Learned counsel of Muhammad Saeed had forcefully contended that there is not an iota of evidence to connect him with the commission of the crime. Similarly, learned counsel appearing on behalf of Muhammad Shafique, appellant, argues that the prosecution had miserably failed to prove its case against him. Learned counsel argues that the evidence of the prosecution witnesses is interested and that it is not at all worth reliance. The learned State counsel defends the conviction and sentence of the appellants.
8. We have heard the learned counsel for the parties and have read the record with utmost care.
' Firstly, we take up the case of Muhammad Saeed appellant. In our view, the prosecution did not at all succeed in proving the case against him. To begin with, the appellant Muhammad Saeed did not inflict any injury on the complainant or the deceased. The only allegation against him is that he held Imran Ahmad complainant and facilitated his co-accused Muhammad Shaifque in causing injury on his person. Similarly, he over-powered Amjad Hussain whereupon his co-accused Muhammad Shafique inflicted as many as seven injuries on his person.
' It is in the evidence of Imran Ahmad P.W.10 that it was dark at the time of occurrence. According to him he could identify Shafique appellant only and that he did not identify Saeed appellant. He further conceded that he mentioned the name of Muhammad Saeed as an accused at the instance of relatives of Amjad Hussain deceased. This being so, we are of the view that participation of Muhammad Saeed appellant in the commission of the crime has become doubtful B on account of evidence of complainant himself. Admittedly, Muhammad Saeed appellant was empty-handed and as such we are not prepared to believe the prosecution story that he came at the spot along with Muhammad Shafique in order to commit the offence. Had he any intention to share the intention with his co-accused, he would have surely armed himself like his co-accused.
There is no convincing evidence against Muhammad Saeed, appellant. We, therefore, feel no hesitation to hold that he was faslely implicated in the case at the instance of relatives of the deceased. The conviction and sentence of Muhammad Saeed under sections 302/34 P.P.C. And 307/34 P.P.C. Is, therefore, set aside and he is accordingly acquitted of the charge. His appeal (Criminal Appeal No,605 of 1987) C succeeds and is allowed. Similarly, we do not find any sufficient evidence to maintain the conviction of the appellant Muhammad Shafique under section 307/34, P.P.C. We are not at all convinced with the evidence of the prosecution against him. The evidence of Dr. Muhammad Latif Aftab P.W.7 shows that the complainant was not produced for medical examination by the police and that he came for his medical examination of his own. The prosecution case as deposed by Muhammad hays P.W.9, Imran Ahmad P.W.10 and lmran Ashraf P.W.11 is that Imran Ahmad and Amjad Hussain were brought together in a Rickshaw to the Doctor for their treatment. Thus, the evidence deposed by Dr.Muhammad Latif Aftab P.W.7 wholly negates the prosection case. In consequence, we do not find any justification whatsoever to maintain the conviction and sentence of Muhammad Shafique under section 307/34, P.P.C. As well. Accordingly, his conviction and sentence under section 307/34, P.P.C. Too is set aside and he is acquitted of this charge.
9. There is, however, overwhelming evidence available on record to connect the said appellant with the offence of murder. He was armed with knife P.1 with which he inflicted as many as seven injuries on the vital parts of Amjad Hussain deceased. Muhammad Ilyas P.W.9 deposed that Muhammad Shafique while armed with a knife inflicted injuries on the chest, thighs, back and legs of Amjad Hussain and on receipt of these injuries he fell down. To the same effect are the statements made by Imran Ahmad P.W.10 and Imran Ashraf P.W.11. The evidence of these witnesses is corroborated by the medical evidence of Dr. Muhammad Farooq Akmal P.W.
6. The Doctor noted seven injuries on the person of the deceased. Injury No,1 was on the chest with a dimension of 2.5 c.m x 1.0 c.m. In 7 O'clock position of left nipple and 6.00 c.m. Away from it transversely oblique 122 c.m. Above left heel. This injury had passed through the sixth inter-costal space and cut into the pericardium and the apex of right ventricle through and through and through the diaphragm into the upper part of left lobe of liver. This injury fatally damaged the vital organs of deceased namely the heart and the left lobe of his liver. This shows that the appellant had definite intention to murder. All the witnesses stated that it was the appellant who inflicted injury No,1 alongwith other injuries to the deceased within their sight. Thus, the medical evidence is in consonance with the eye-witness account. The recovery of knife from the possession of the appellant also lends support to the prosecution case. The recovery was attested by Abdul Munaf P.W.4 and Nasimul Hassan P.W.12. The evidence of Abdul Munaf P.W.4 is convincing and worthy of reliance. The recovery of blood-stained knife at the instance of the appellant stands proved beyond doubt. The prosecution evidence as a whole inspires confidence and is worth reliance. We, therefore, proceed to maintain the conviction of the appellant Muhammad Shafique under section 302 P.P.C. Regarding the quantum of sentence, we are of the view that motive part of the prosecution story is shrouded in mystery inasumch as there is no proof whatsoever to show that the appellant indulged in sale of heroin in the locality of deceased and that a quarrel had taken place between the parties. Consequently, we proceed to alter the sentence of the appellant Muhammad Shafique from death to imprisonment for life plus a fine of Rs,10,000 or in default to undergo one year's R.I. With this modification in sentence the appeal is partly allowed.
10. The death sentence of Muhammad Shafique appellant is Not confirmed. The murder reference is answered accordingly.
11. In view of the above decision in the criminal appeals, the criminal revision of the complainant has become infructuous and as such the same is dismissed.