RAJA AFRASIAB KHAN, J: -- Abdul Sattar (25) Tariq Mahmood (20) and Ilyas (23) were tried by Mr. Muhammad Afzal Sohail, learned Sessions Judge, Faisalabad for the murder of Muhammad Ashraf (25). By judgment dated 30-7-1987, the learned trial Judge convicted appellant Abdul Sattar and sentenced him to death plus a fine of Rs.5,000 or in default to suffer one year's R.I. Under section 302, P.P.C. It was directed that in case of recovery of fine, half of it shall be paid to the legal heirs of the deceased. Co-accused Tariq Mahmood and Ilyas were convicted and sentenced to suffer 2 years' R.I. Under section 324, P.P.C. They were also given the benefit of section 382-B, Cr.P.C. Abdul Sattar appellant has challenged his conviction and sentence by filing Criminal Appeal No.549 of 1987. Reference No. 174 of 1987 has been sent by the learned trial Judge under section 374, Cr.P.C.
For confirmation of the death sentence of Abdul Sattar appellant. This judgment shall dispose of both the matters together.
2. The prosecution story is that on 2-2-1985, at 7-30 p.m. Abdur Rehman's son of Nazir Hussain P.W.10 and his brother Muhammad Ashraf deceased after taking dinner went to the Chowk Adda Tangianwala in order to have a cup of tea in the hotel of Rana Irshad. After taking tea they were coming back to home and when they reached near the vacant plot in front of street No.2, Tariq Mahmood son of Zaheer Ahmad, Ilyas son of Ibrahim and appellant Abdul Sattar son of Bashir Ahmad while armed with Chhuris emerged therefrom. They shouted `Lalkara' that they would not allow Ashraf to go alive. Ilyas accused inflicted a Chhuri blow to Ashraf, which landed on his abdomen. Muhammad Ashraf started running and from behind Tairq Mahmood and Abdul Sattar caused Chhuri blows on his back. Muhammad Ashraf victim fell inside Bismillah Medical Store. No body dared to go near him because of the fear of attack by the accused. On alarm, raised by the complainant Sardar Muhammad, Muhammad Sharif reached the spot and witnessed the occurrence. The accused ran away from the spot. Muhammad Ashraf in an injured condition was shifted to Civil Hospital Faisalabad, where he died on account of the injuries.
3. The motive is that a week ago there was a quarrel between Abdul Sattar appellant and Muhammad Ashraf deceased. However, the matter was patched up with the intervention of Muhammad Ramzan, Ghulam Rasool and Muhammad Munshi. On account of this grudge, the aforesaid accused in execution of their common intention attacked and murdered Muhammad Ashraf. On the statement of Abdur Rehman's P.W.10, formal F.I.R. Was registered against the accused by Mehdi Khan S.I. P.W.12. He investigated the case. He went to the Hospital and prepared the Injury Statement and Inquest Report, Exhs.P.H. And P.J. Of Muhammad Ashraf deceased. Spot was inspected by him. The accused were arrested by the Investigating Officer on 3-2-1985. Dead body of Muhammad Ashraf was sent to mortuary for post-mortem examination through Naseer Ahmad F.C. On 5-2-1985, Tariq Mahmood while in custody, led to the recovery of blood-stained Chhuri P.6 from his house lying under a cot. It was taken into possession vide memo. Exh. P.D. On the same day Abdul Sattar, accused led to the recovery of Chhuri P.7, from his house lying underneath the tin box, which was taken into possession vide memo. Exh. P.E. On 6-2-1985, Ilyas co-accused led to the recovery of Chhuri P.8 from his house lying in a box which was taken into possession vide memo. Exh. P.F. He got prepared site plan Exh. PA. And its duplicate Exh.P.A./1 from Aurangzeb Draftsman.
4. Positive reports of Chemical Examiner and Serologist were tendered in evidence as Exhs. P.L. And P.M.
5. Dr. Imtiaz Ahmad Gill, S.M.O. P.W.6 conducted the post-mortem examination upon the dead body of Muhammad Ashraf on 3-2-1985 at 8-00 a.m. And found the following injuries on his person: (1)A stab wound 5 c.m. x 3 c.m. On the supra pubic region. A mass of intestines was coming out.
(2)A stab wound 2 c.m. x 1 c.m. x muscle deep on the sacrum.
(3)A stab wound 1 c.m. x 1/2 c.m. x muscle deep on the outer side right chest.
(4)An incised wound 7 c.m. x 2 c.m. x muscle deep on. The back of right chest near the interior angle of scapula. .
(5)A stab wound 4 c.m. x 1/2 c.m. On the back of left chest.
(6)An incised wound 4 c.m. x 1 c.m., skin deep on the back of left chest below injury No.5.
According to the Doctor all the injuries were ante-mortem and were caused by sharp edged pointed weapon. The small intestines were cut at several places and were coming out of injury No.
1. Large intestine was also cut. The stomach of the deceased was full of food. It was opined that death occurred on account of shock and haemorrhage. Injury No. 1 was sufficient to cause death in the ordinary course of nature. According to him the death was immediate and time between death and post-mortem was about 12 hours.
6. Eye-witness account was given by Abdur Rehman's P.W.10 and Muhammad Sharif P.W. 11 The appellant while making statement under section 342, Cr.P.C. Denied the allegations levelled against him and pleaded that he had been implicated in the case on account of suspicion. He stated that he was innocent. To the same effect is the statements made by Tariq Mahmood and Ilyas co-accused. The learned trial Judge convicted and sentenced the appellant and his co- accused believing the ocular account and the motive part of the story.
7. It is contended that the prosecution did not at all succeed in proving its case against the appellant inasmuch as the injury attributed to him is simple. Learned counsel has attacked the impugned judgment by contending that the evidence of the prosecution has been misread by the learned trial Judge and that an injustice has been done to the appellant. It is argued that fatal injury was attributed to Ilyas accused, who was convicted and sentenced to 2 years' R.I. Under section 324, P.P.C. Learned counsel maintains that the appellant and his co-accused were convicted and sentenced on the basis of their individual liability. This being so, according to the learned counsel the case of the appellant at worst would fall under section 324, P.P.C. And not under section 302, P.P.C: Learned State counsel was unable to substantially controvert the weighty arguments of the learned counsel. We have heard the learned counsel for the parties and have read the record with utmost care. According to the prosecution witnesses, Ilyas opened the attack and gave a Chhuri blow on the abdomen of Muhammad Ashraf deceased. According to Abdur Rehman's P.W.10, the motive is attributed to the appellant, in that a quarrel took place between him and the deceased a week earlier to the occurrence. In order to prove the motive, the prosecution produced Muhammad Munshi P.W.9, whose statement was recorded by the Investigator after two days of the occurrence. There is absolutely no evidence to prove the motive for the commission of the crime. There is nothing on record to show that Tariq Mahmood and Ryas accused shared the motive with Abdul Sattar appellant for the commission of the crime. In our view the learned trial Judge was right in A holding that the three accused acted independent of one another in inflicting I injuries on Muhammad Ashraf deceased. Thus the motive set up by the prosecution does not stand established.
8. According to the medical evidence injury No.1 on the supra pubic region was found fatal and this injury is attributed to Ilyas accused who was convicted and sentenced under section 342, P.P.C.
Admittedly, the State has not filed any appeal against his conviction and sentence. Similarly, the complainant has not filed any criminal revision for enhancement of the sentence of the said accused. As per F.I.R. Ilyas inflicted a Chhuri blow on the abdomen of the deceased while Tariq Mahmood and Abdul Sattar appellant gave Chhuri blows on his back. The evidence of prosecution witnesses does not reconcile with the medical evidence about the number of injuries found on the deceased. There is considerable force in the argument of the learned counsel for the appellant that Abdul Sattar appellant did not intend to cause the death of Muhammad Ashraf deceased, inasmuch as he inflicted only a single simple injury on him. Although he could cause more blows to him but he did not. Had he intended to murder Muhammad Ashraf, he would have inflicted more injuries on him. His conviction under section 302, P.P.C. Was not, therefore, justified But more appropriately he deserves to be convicted under section 324, P.P.C. Because he caused simple injury with Churri to the deceased. We order accordingly and sentence the appellant to 2 years' R.I.
Plus a fine of Rs.5,000 or in default thereof to undergo one year's R.I. The benefit of section 382-B, Cr.P.C. Shall also be extended to him. The death sentence awarded to the appellant is NOT confirmed. With the above modification in conviction and sentence of the appellant, the appeal is partly accepted.