' RAJA AFRASIAB Masih alias Nanna (17) and his brother Ishaque Masih (25) were tried by the learned Additional Sessions Judge, Sheikhupura, for the murder of Muhammad Irshad (24/25). The learned trial Judge vide his judgment dated 20-10-1986 convicted the appellants under section 302/34, P.P.C. Riaz Masih was sentenced to death plus a fine of Rs,10,000 or in default thereof to suffer four years' R.I. Ishaque Masih was sentenced to imprisonment for life plus a fine of Rs,10,000 or in default thereof to suffer further four years' R.I. It was directed that in case of recovery of fine, half of it, shall be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. The appellants have challenged their conviction and sentence through this appeal. The learned trial Judge has also sent a reference under section 374, Cr.P.C. For confirmation for the death sentence of the appellant Riaz Masih. We propose to decide both the matters by this judgment.
2. The prosecution story is that on 15-1-1986, a match of holding and releasing wrists between Muhammad Irshad, younger brother of the complainant and the appellant Riaz Masih alias Nanna was held in order to determine their strength over a bet near a sweetmeat shop of the Mohallah Islampura of Sangla Hill Town. Muhammad Irshad, defeated Riaz Masih in the match and also after winning the contest cut jokes with the appellant. Riaz Masih alias Nanna and his brother Ishaque Masih had to cut a sorry figure. They also quarreled with Muhammad Irshad. However, on intervention of the complainant and Master Muhammad Sharif, the parties were separated. On 17- 1-1986 at about 11-30 a.m., the complainant Muhammad Mushtaq, Bashir Ahmad and Muhammad Latif were sitting outside the Haveli of Abdul Aziz in Sangla Hill Town wherefrom Muhammad Irshad, brother of the complainant passed through Qasba Sangla Hill. When Muhammad Irshad reached near the house of Muhammad Ameen Wahla, Riaz Masih and Ishaque Masih suddenly emerged there. Ishaque Masih held Muhammad Irshad in his clasp while Riaz Masih inflicted a Chhuri blow which landed on the left side of abdomen of Muhammad Irshad. Muhammad Mushtaq, Bashir Ahmad and Muhammad Latif while shouting went ahead to apprehend Riaz Masih and Ishque Masih. They, however, ran away. On receipt of injury, Muhammad Irshad fell down and a lot of blood oozed out of his wound. He was brought to Civil Hospital Sangla Hill for treatment. He died in the hospital immediately after his arrival there. Muhammad Mushtaq reported the matter to Police Station Sangla Hill by making report Exh.P.E.
3. Muhammad Tufail Inspector/S.H.O. (P.W.9) investigated the case. On receipt of information, he went to Civil Hospital Sangla Hill. Injury statement (Exh.P.B.) and inquest report Exh.P.C. Of Muhammad Irshad deceased were prepared by the Police Inspector. The dead body was sent through Muhammad Jameel and Amjad Constables for post-mortem examination. Spot was inspected by the Police Officer on the same day. Blood-stained pieces of earth were taken into possession vide memo Exh.P.G. Jersey P.2, Shirt P.3, Shalwar P.4 and a pair ' of socks P.5 of the deceased were taken into possession vide memo Exh.P.H. Site-plans Exh.P.D. And Exh.P.D./1 were got prepared through Rab Nawaz Draftsman on 18-1-1986. The appellant Riaz Masih while in police custody led to the recovery of blood-stained Chhuri P.1 from a bush which was taken into possession vide memo Exh.P.F. The recovery of Chhuri P.1 was witnessed by Muhammad Sharif and Ghulam Rasool P.Ws.
' Positive reports of the Chemical Examiner Exh.P.J. And that of Serologist Exh.P.K. On earth and Chhuri, respectively, were tendered in evidence by the learned Prosecutor.
3. Dr. Muhammad Rafique Senior Medical Officer P.W.1 conducted the post-mortem examination upon the dead body on 17-1-1986 at 3-15 p.m. He found the following solitary injury thereon:-
(1) An incised stab wound 4 c.m. x 1-1/2 c.m. x 9 c.m. On the anterior, inner and left side of the chest 9 c.m. Below and inner side of left nipple.
' In the opinion of the Doctor, death occurred due to severe shock and hemorrhage on account of the injury which was found sufficient to cause death in the ordinary course of nature. It was opined that the injury had resulted from a long sharp-edged weapon. Probable duration between injury and death was about 5 minutes and between death and post-mortem examination, was 3/5 hours.
4. Eye-witness account was given by Muhammad Mushtaq P.W.4 and Muhammad Latif P.W.S. Muhammad Mushtaq P.W.4 is real brother of the deceased. The deceased was sister's son of Muhammad Latif P.W.S. The third witness, Bashir Ahrnad was given up by the prosecution. The complainant Muhammad Mushtaq supported the prosecution version. Muhammad Latif P.W.5 deposed that on 17-1-1986 at about 11 or 11-30 a.m., he was present in front of the Haveli along with, Muhammad Mushtaq and Bashir Ahmad P.Ws. It is stated by the witness that the deceased came from his house and passed through the metalled road leading to Sangla Hill. The appellants came in front of the deceased. Ishaque Masih held Muhammad Irshad in his clasp whereas Riaz Masih inflicted a blow on the chest of the deceased. An alarm was raised whereupon the appellant's ran away. The learned trial Judge believed the ocular account, the motive, evidence of recovery and the medical evidence and proceeded to convict and sentence the appellants as already stated.
' The appellant Riaz Masih while making a statement under section 342, Cr.P.C. Denied the occurrence. However, he deposed in his statement under section 340, Cr.P.C. That the deceased tried to outrage the modesty of his sister-in-law, Mst. Surraya. She made a complaint to him disclosing that the deceased had tried to molest her inasmuch as her clothes were torn by the deceased. The appellant further said that he was highly provoked over the incident and brought out a Chhuri from his house and inflicted an injury upon the person of the deceased. He further stated that the occurrence was not witnessed by anybody.
' Ishaque Masih in his statement pleaded his innocence and supported the statement made by his brother Riaz Masih.
5. Learned counsel contends that the prosecution has failed to prove its case beyond reasonable doubt against the appellants inasmuch as Riaz Masih alias Nanna had a lawful right to inflict an injury on the person of, the deceased in order to protect the honour of his sister-in-law. Learned counsel maintains that there is absolutely no evidence to connect the appellant Ishaque Masih with the commission of the crime.
' No one has appeared on behalf of the State to defend the conviction and sentences of the appellants.
6. We have heard the learned counsel for the appellants and have read the whole record with utmost care. We arc of the view that the prosecution has miserably failed to prove its case against the appellant Ishaque Masih. The only allegation against him is that he held the deceased in his clasp. Admittedly, he was not armed. There is no evidence whatsoever available on record to show that he had shared common intention with his co-accused to make a short work of the deceased.
In case, he had any common intention with his co-accused naturally, he would have also armed himself. We are, therefore, persuaded to hold that Ishaque Masih appellant is innocent in this case.
It is usual that in such like cases, the complainant party implicates innocent people especially able-bodied members of the family of culprit with an ulterior motive. This being so we are convinced that the case against the appellant Ishaque Masih is not proved beyond reasonable doubt. By giving him the benefit of doubt, we proceed to accept the appeal of Ishaque Masih appellant, set aside his conviction and sentence and acquit him. He shall be released forthwith; provided, he is not required in any other criminal case.
' So far as the appellant Riaz Masih alias Nanna is concerned, the prosecution has succeeded to prove its case beyond reasonable doubt against him. The case of the prosecution has been proved by Muhammad Mushtaq and Muhammad Latif P.Ws.4 and 5. They are reliable eye- witnesses of the occurrence. Undoubtedly, Muhammad Mushtaq P.W.4 is real brother of the deceased and similarly, Muhammad Latif is also related to the deceased, yet we find that their evidence inspires confidence and is worth reliance. The F.I.R. Was lodged in the police station without any delay. The occurrence took place on 17-1-1986 at 11-30 a.m. Whereas the case was registered on the same day at 12-15 a.m. Within 45 minutes of the murder. Thus, there was no time left for deliberation for false implication of the accused. The ocular account has been fully corroborated by the recovery of Chhuri P.1 from the appellant Riaz Masih. Chhuri P.1 was found to be stained with human blood vide the reports of the Chemical Examiner Exh.P..I. And that of the Serolgist Exh.P.K. The medical evidence also corroborates the ocular account. Dr.Muhammad Rafique P.W.1 noted an injury of the dimension of 4 c.m. x 1-1/2 c.m. x 9 c.m. On the anterior inner and left side of the chest 9 c.m. Below and inner side of left nipple. It was opined by the Doctor that on dissection the heart was found to have been penetrated with its left cavity full of blood. Thus it is clear that the injury was inflicted by the appellant with full force with an intention to murder the victim. We are convinced that there is overwhelming evidence available on record to justify his conviction. The appellant himself in his statement did not deny the killing. He has tried to justify the infliction of the injury by pleading that the deceased attempted to outrage the modesty of his sister-in-law. There is not a shred of evidence to show that the sister-in-law of the appellant was, in fact, molested by the deceased providing justification to attack and murder. She was not even produced in support of the plea raised by the appellant. Except for the statement of the appellant there is no material to substantiate this plea. In our view, the plea raised by the appellant is an afterthought and is not worth reliance. We, therefore, reject it.
7. For the reasons discussed above, we are of the view that the prosecution has proved the guilt against the appellant beyond reasonable doubt. We, therefore, proceed to maintain the conviction of the appellant. Regarding the quantum of sentence, we are of the view that the appellant has made out a case for lesser penalty. There was no previous enmity between the parties and it appears that the occurrence had taken place at the spur of the moment on account of the match of holding and releasing the wrists having taken place between the appellant and the deceased.
There was a quarrel between them and as a result thereof the appellant inflicted an injury on the person of the deceased. This is a case of single injury. The appellant is aged about 16/17 years.
Accordingly, we alter his sentence from death to life imprisonment plus a fine of Rs,10,000 or in default to undergo two years' R.I. With the above modification in the sentence his appeal is accordingly dismissed.
' The death sentence of Riaz Masih is NOT confirmed. The murder reference is answered accordingly.