JUDJMENT KHALIL-UR-REHMAN RAMDAYJ.- Through his judgment dated25.6.1986, a learned A.S.J. At Jhang, found Akhtar, aged about 19 years, and his brother Mohammad Hussain, aged about 20 years, guilty of the murder of one Mohammad Iqbal. Both of them were convicted under sections 302/34 PPC and punished with death as also with a fine of Rs.5,000/ each or sufferance of two years R.I. In default of payment of the same. The entire amount of fine was directed to be paid to the heirs of the deceased.
2. Murder Reference No.148 of 1986 is a reference submitted under . Section 374 Cr.P.C, for confirmation of the sentences of death awarded to the two convicts who have in turn challenged their convictions and punishments through Criminal Appeal No.457 of 1986.
3. Both these matters i.e. Murder Reference. No.148 of 1986 and Criminal Appcal'No.457 of 1986 are being disposed of together through this single judgment.
4. Iqbal's brother Abdul Ghafoor (PW-6) had disclosed through FIR No.203 dated 2S.4.1985 of Police Station, Chiniol that the two convicts used to runa restaurant in his MOHALLAH where they used to play music in a loud tone and also used to pass remarks on the females passing through the street.
5. He had alleged that his brother Iqbal deceased used to ask the two. Convicts not to indulge in such activities and that on the day of occurrence i.e. On 28.4.1985 the two convicts had exchanged abuses with Iqbal deceased and had told Iqbal that he would be taught a lesson before that evening.
6. Abdul Ghafoor complainant had further alleged that at about 9-30 p.m. That night, Iqbal deceased was returning home and just as he had reached near chatty Masjid the two convicts appeared there with knives in their hands and after raising lalkaras Akhtar convict inflicted a knife blow on the front chest of the deceased followed by a knife blow by Mohammad Hussain convict on the left flank of the deceased whereafter Akhtar convict repeated his blows which landed on the right side of the abdomen of the deceased.
7. On the alarm raised by the complainant Taj Mohammad P.W., Bashir (not produced) and some other persons collected at the spot whereupon the two convicts decamped from the place of occurrence.
8. As against this the case of Akhtar convict through his statement under section 342 Cr.P.C, was that Iqbal deceased and his two companions, namely, Khalid and Sajid were persons of loose character who used to commit sodomy with young boys. He claimed that they had even teased him once or twice with the intention of committing sodomy with him and that on the day of occurrence after closing his restaurant he was going home at about 1,1-00 p.m. When Iqbal deceased caught him in the BAZAR whereafter the deceased and his two aforesaid companions tried to take him into a vacant shop in the BAZAR. Akhtar convict claims to have resisted this attempt at which Iqbal deceased gave him a blow with a belt. Khalid and Sajid aforementioned assaulted the convict with fists and kicks and dragged him on to the TRARHA of the shop. The deceased put the belt around the neck of the convict and strangulated him. Khalid above said put his knife aside and opened the string of the SHALWAR of the convict and just as they had managed to bring the convict in a kneeling position, Akhtar convict claims to have caught hold of the knife and to have inflicted blows with the same On the person of Iqbal deceased in order to rescue himself.
9. The plea of Muhammad Hussain convict, however, was that he was employed at the looms of Sheikh Mukhtar in Faisalabad and was not present at the place of occurrence in Chiniot at the relevant time and had been falsely implicated due to the complainant's enmity with the said Sheikh Mukhtar.
10. The version offered by Akhtar convicted does not inspire confidence.
11. He claims that Iqbal deceased and his two companions had caught him in the BAZAR and had tried to take him into a shop for committing sodomy. He resisted the attempt but never raised any alarm. He was allegedly strangulated with a belt, was given kicks and fist blows and was even dragged. He was allegedly got medically examined but never brought the report of his medical examination on the record of this case. The deceased and his two companions originallywanted to take the convict a vacant shop for sodomy, did drag him for the purpose but finally decided to put him in a kneeling position for the purpose on a tharha in the open BAZAR. The deceased and his companions were three in number. They had brought Akhtar convict down in a kneeling position yet the convict managed to take up the knife which had allegedly been placed near him by one of the companions of Iqbal deceased and being in that position he inflicted three blows on the front of Iqbal deceased without any intervention or retaliation either by the deceased himself or by any of his companions.
12. Having scrutinised and examined this plea of Akhtar convict we are not impressed with the same and reject it as improbable and unreasonable.
13. Mohammad Hussain convict claimed that he was employed with one Sheikh Mukhtar and worked at his looms in Faisalabad. Added that he was not present in Chiniot at the time of occurrence and that he had been falsely implicated on account of Abdul Ghafoor complainant's enmity with his employer Sheikh Mukhtar.
14. Mohammad Hussain convict has not led any evidence to prove that he was present in Faisalabad at the relevant time. He did not even produce Sheikh Mukhtar to demonstrate either that he was in Faisalabad at the relevant time or that this Sheikh Mukhtar had any enmity with Abdul Ghafoor complainant. However, if it be presumed that Abdul GhafooT was employed with Sheikh Mukhtar then it is not understandable as to how Abdul "Ghafoor complainant would have succeeded in pinching Sheikh Mukhtar by falselydmplicating one of his employees in the murder case in question.
15. We thus hold that convict Mohammad Hussain's plea also remains unsubstantiated on record and is thus not acceptable.
16. The prosecution version is supported by Abdul Ghafoor complainant and Taj Mohammad P.W.
17. It is true that the complainant is a real brother of the deceased but the defence could not bring any thing on record which could even indicate that the complainant had any motive to falsely implicate the two convicts.
18. Taj Mohammad P.W. Is also an independent witness. He is not related to the complainant partly nor has he any animosity or ill-will against the two convicts. He claims to have been on his way home after offering ISHA prayer in CHATTY MASJID when he witnessed the occurrence in question.
The time of occurrence was around 9-30 p.m. And during the last days of April, the ISHA prayers did start around 9-00 p.m. As claimed by Taj Mohammad P.W. And would finish by around 9-30 p.m.
We thus find no reason not to believe Taj Mohammad P.W.
19. Having thus juxta-posed the two versions we find that the prosecution story regarding the actual occurrence inspires confidence and is believable.
20. We thus find that the finding of guilt recorded against the two convicts by the learned trial Court is not open to exception as the prosecution has successfully proved the murder of Iqbal deceased at the hands of these two brothers.
21. We are, however, not fully satisfied about the complainant's claim with respect to the incident and the altercation which allegedly took place at about 2-00 p.m. And which had, according to the prosecution led to the killing of Iqbal deceased.
22. It is only Abdul Ghafoor complainant who made mention of this incident at the trial. Even he does not claim to have been personally present when this 2-00 p.m. Incident took place nor does he state as to hftw he got to know of this incident.
23. Consequently, we feel inclined to hdld that the prosecution has not been able to prove on record that it was on account of this 2-00 p.m. Incident that the two convicts had launched a pre- meditated attack on the deceased.
24. In the circumstances, what really transpired between the convicts and the deceased immediately before the occurrence in question is shrouded in mystery, the benefit of which, at least to this extent, must go to the convicts.
25. In this view of the matter, we find that it would not be safe to impose the normal penalty of death on the two convicts.
26. Accordingly, while maintaining the conviction of Mohammad Akhtar alias Akka and his brother Mohammad Hussain recorded under section 302/34 PPC, we reduce the sentences of death imposed on each one of them to sentences of imprisonment for life. The sentence of fine imposed on each one of them and the term of imprisonment ordered to be suffered by them in default of payment of fine is, however, maintained.
27. The death sentence is thus NOT CONFIRMED and Murder Reference No.148 of 1986 is answered accordingly.
28. Criminal Appeal No.457 of 1986 is partly accepted in the above terms.