MUHAMMAD AMIR MALIK, J. Inayat Ullah, appellant (22 years) was convicted under Section 302 PPC, for the murder of Muhammad Afzal (25 years) a co-villager, by learned Addl. Sessions Judge Gujranwala. Vide judgment dated 26.11.1987 he was sentenced to suffer death and a fine of Rs.2000/- or in default thereof one year's R.I. He was also ordered to pay a compensation of Rs.10,000/- to the heirs of the deceased or to under-go six months R.I. He has appealed. The matter is also before us for the confirmation of the death sentence under Section 374-Cr.P.C. Sardar Ahmad alias Muhammad Tufail complainant (PW.8) also filed Revision petition for the enhancement of the fine and compensation. All the three matters are being disposed of by one and the same judgment.
2. Sardar Ahmad complainant (PW.8) is resident of Babbar Road, Muhallah Shahinabad, Noshehra Wirkan. His son Muhammad Afzal (the deceased) was a lecturer in a college at Ali Pur Chatha. He was injured just near their house at 3.30 p.m. On 29.1.1987. Their house is only about 3 furlongs from police station Noshehra Wirkan. In injured condition Afzal was carried to hospital at Noshehra Virkan. The doctor advised to convey him at once to hospital at Gujranwala. At Gujranwala, the doctor after first aid advised to take him to the hospital at Lahore. When the ambulance with the injured reached Mureedke he breathed his last. The dead body was brought back to the hospital at Gujranwala by the complainant and leaving it there, he reached police station where F.I.R. (Ex.PD) was registered by Muhammad Bashir (PW. Ll) on the same day at 9.30 P-m.
3. The version given in the F.I.R, was that the house of the complainant was at Babbar Road. Three shops had been constructed in the house opening towards the road side, one of it was on rent with Muhammad Sadiq who was doing business as sell as residing in the said shop. Muhammad Sadiq was keeping pigeons as well. Inayat Ullah appellant and Muhammad Munawar Arain usually used to sit at the shop and teased the passers by. On 23.1.1987 Muhammad Afzal deceased had asked Sadiq in presence of the appellant and said Munawar that if these two fellows were to be seated at the shop, the same be vacated. On this the appellant and Munawar abused him. Afzal, however, kept quiet and on the same day the shop was got vacated from said Sadiq. This was taken ill of by the appellant and Munawar.
3. The version proceeds that on 24.1.1987, Afzal deceased left for his duty in the college and on the day of occurrence i.e. 29.1.1987 returned therefrom. The house of the appellant was near the house of the complainant family. When Afzal reached near his own house, the appellant came armed with a chhuri, raised lalkara, assualted him and gave him a blow in the left side of chest. Afzal ran towards his own house and was given another blow by the appellant in the abdomen. He fell down.
The occurrence was witnessed by the complainant, who was standing near his house as well as Inayat (PW.9) and Said (given up PW).
4. It is also in the F.I.R, that the injured was first taken to the hospital at Noshehra, then to the Hospital at Gujranwala, and while on way to Lahore expired in the ambulance near Mureedke.
5. Muhammad Bashir, (PW. Ll) Sub-Inspector, after recording the F.I.R. (Ex.PD) reached, the spot.
Blood stained earth vide Memo (Ex.PE) was taken into possession and sealed into a parcel. Rough site plan of the place of occurrence (Ex.PF) was also prepared. Thereafter the Sub-Inspector reached the hospital at Gujranwala. The dead body was lying in the verandah. He prepared inquest report (Ex.PG) and sent the dead body for post-mortem examination. He arrested the appellant on 4.2.1987 and on 10.2.1987 he. Led to the recovery of blood stained chhuri (P3) which was secured vide memo (Ex.PB) and sealed into a parcel.
6. Dr. Haji Atta-ul-Mustafa (PW.7) of D.H.Q. Hospital Gujranwala, medically examined Muhammad AFzal (the deceased) on 29.1.1987 at 5.00 p.m. He observed the following injuries on his person: 1 An incised wound 3 cm x 1 cm going deep on right side of chest 5 cm below right nipple.
2. An incised wound 5 cm x 1 cm x going deep with omentum coming out from left side of abdomen 10 cm away from ambicous.
The injured was in serious semi conscious condition with BP not recordable. He was sweating with cold skin. After medical aid he was referred to Mayo Hospital, Lahore. The injuries, kept under observation, were opined to be fresh and by a sharp edged weapon.
7. Post mortem examination on the dead body of Afzal was performed by Dr. Klialid Shafqat Cheema, (PW.10) on 30.1.1987 at 10.45 a.m. He observed the same injuries as had been observed by Dr. Atta-ul-Mustafa. He also found that the wall between 5th and 6th rib corresponding to injury No.1 was cut, so was pleurae, right lung and blood vesseled of inferior venocava. Walls of abdomen, peritoneum and large intestines were injured, corresponding to injury No. 2.
In the opinion of the doctor, the injuries were ante-mortem, and by sharp edged weapon. The injuries were sufficient to result in death individually and collectively. The time between injuries and death was within 12 hours and that between death and post mortem examination within 24 hours.
8. The appellant at the close of the trial in his statement under Section 342 Cr.P.C, when asked, "Have you anything also to say?" replied, "I am innocent In fact Muhammad Afzal, deceased had a quarrel with Muhammad Munawar and his mother Mst. Irshad Bibi, and during the same Afzal also received injuries and the parties then compromised and falsely involved me in this case." He also entered into the witness box to make statement on oath under Section 340 Cr.P.C. In cross- examination he deposed that the house of the complainant was about 20/25 yards from the house of his (appellant's) father. He denied that Muhammad Sadiq had been ejected from the shop situated in the house of the complainant by Muhammad Afzal, against his wishes on 23.1.1987 or that he had felt enraged over it. He also said that Afzal deceased was married, had a daughter, and posted at Ali Pur Chatha. According to his Mst. Iqbal Bibi the wife of his brother was murdered and a case was registered against the complainant party. He denied that the accused of that case were found innocent or that they had not been even challaned. He denied that his own brother Taddi had been sent up for the trial. He conceded that he had no direct enmity with the PWs except that they were connected with the complainant.
9. Sardar Ahmad alias Muhammad Tufail complainant and Inayat (PWs 8 & 9) gave the ocular account of the occurrence. The former also stated about the motive. The recovery of blood stained chhuri (P 3) at the instance of the appellant, is deposed to Muhammad Siddique and Muhammad Bashir (PWs. 6 & 11). Drs. Atta-ul-Mustafa and Khalid Shafqat (PWs. 7 & 10) provided the medical evidence. The case was investigated by Muhammad Bashir Sub-Inspector (PW. Ll). Appreciating and relying upon their statements, the learned trial Judge found the charge against the appellant proved.
10. Learned counsel for the appellant challenged the conclusion of the learned trial Judge. On the assertions that there was no shop in the house of the complainant, Sadiq, the shop keeper, had not been examined and produced before the police or at the trial, so the motive part of the story was without any basis. F.I.R, was delayed and the result of consultation. Lastly his submission was that the possibility of the appellant being substituted for Muhammad Munawar Arain could not be ruled out. It was pointed out by the learned counsel for the complainant and the State that the eye- witnesses were independent and disinterested, the recovery of blood stained chhuri, at the instance of the appellant was also proved. According to them the late lodging of the F.I.R, did not made any difference to the merits of the case in a. Much as the prime concern of the family whose young man, well placed in li*" ing a lecturer, had been injured seriously, was to provide best medical aid and only when in this process he breathed his last, the family could be able to report the matter to the police. After hearing the learned counsel for the parties and going through the record we are inclined to agree with the learned counsel for the complainant and the State.
11. Muhammad Bashir, Sub-Inspector (PW. Ll) after recording the F.I.R, reached the spot and there prepared rough site plan (Ex.PA). A bare look at the site plan indicates that three rooms in his house have been so constructed, that these open upon the road and ore of these is described as a shop.
Of course when the site plans (Exs.PA & PA/1) were got prepared rom Arif Hussain (PW.1) the shops were not indicated. Tie complainant has deposed that he had got constructed three shops and one of these was on rent with Muhammad Sadiq. From his statement and the rough site plan (Ex.PF) prepared by Muhammad Bashir, Sub-Inspector after spot inspection, we are convived that the shops had been constructed and one was with Sadiq on rent.
12. The complainant has supported the version given in the F.I.R, that the appellant and Muhammad Munawar Arain used to sit at the shop and to misbehave. On 23.1.1987 Afzal (deceased) asked Sadiq that if these two fellows were to sit there, then he should vacate the shop and eventually it was got vacated on that very day. According to him even at that time the appellant and Muhammad Munawar had abused Afzal. The appellant is a neighbour of the complainant and there is nothing on the record to show that the two families had any ill will of any sort or dispute before the occurrence. The motive is, therefore, proved.
13. We cannot accept the argument that the deceased had a gurrel with Munawar and his mother, whereafter the complainant family compromised with the family of Munawar and falsely substituted the appellant. Afzal was injured at 3.30 p.m. Was firstly taken to the hospital at Noshehra Virkan, then to the hospital at Gujranwala and thereafter while on way to Lahore expired near Mureedke. Dr. Atta-ul-Mustafa treated him in the emergency ward at 5.00 p.m. And then referred his to Mayo Hospital, Lahore. The dead body was brought back to the hospital at Gujranwala from Mureedke. The F.I.R, was lodged at 9.30 p.m. In the situation and the circumstances it can hardly be believed that Munawar and his family on the one hand and that of the complainant on the other, negotiated and entered into compromise to let off Munawar. The plea that it was a case of substitution, is without any basis and so is rejected.
14. The result is that the contentions raised and submissions made by the learned counsel for the appellant are rejected. We think that the oral account coupled with the evidence of motive and the recovery of blood stained chhuri was correctly relied by the learned trial Judge.
15. The appellant being young (22 years), the plea of expectancy of life was pressed into service by the learned counsel as a last resort, for awarding the lesser penalty of imprisonment for life. Young age in itself is hardly a ground for not imposing the normal penalty of death; in any case, if the appellant is young, so was the deceased.
I6. The appeal, therefore, fails and is dismissed. The sentence of death is confirmed. There is no evidence on the record to show that the appellant is economically in such a position that he can pay compensation, hence the revision petition is dismissed in limine.