MUHAMMAD MUNIR KHAN, J.---This Criminal Appeal No.334 of 1988 and connected Murder Reference No.l5 of 1988 arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 2-11-1987, while acquitting Muhammad Siddiq accused, convicted Muhammad lqbal (33) appellant under section 302, P.P.C. For the murder of Noor Muhammad (55) and sentenced him to death and a fine of Rs.10,000, in default thereof further R.I. For one year. The appellant was also directed to pay Rs.10,000 as compensation or in default thereof one year's R.1.
2. The occurrence took place on 17-8-1986 at 7-30 a.m. In the Ahata of Siraj Din situate in Chak No.88/12-L, at a distance of 6 miles from Police Station Shahkot. The F.I.R. Is statement ExYC of Muhammad Sharif P.W.3, the first cousins of the deceased recorded by Ahmad Din A.S.I., P.W.3 at Adda 90-More, 5 miles away from the place of occurrence on the same day at 10-15 a.m. Formal Exh.P.C./1 was drawn, up by Niaz Ahmad, Moharrir Head Constable, P W.2 on the same day at 10-30 a.m.
3. Muhammad lqbal appellant is the husband of the sister of Muhammad Siddiq, acquitted accused. Noor Ahmad deceased was the son of paternal aunt of Muhammad Sharif P.W. Sardar Muhammad P.W.4 is the first cousin of the father of the deceased. Noor Ahmad deceased had contested Local Council Election against Muhammad Siddiq, acquitted accused and was declared elected.
4. The prosecution case, as stated in the F.1.R., was that on the eventful day Noor Ahmad, Muhammad Sharif P.W. a, Sardar Muhammad and Muhammad Shafi (not produced) had gone to the Ahata of Siraj Din, situate in Chak No.88/12-L to offer Eid prayer. Muhammad lqbal appellant armed with gun and Muhammad Siddiq empty handed came there to offer Eid prayer. On seeing Muhammad rebel appellant carrying gun, Noor Ahmad deceased inquired from him as to why he was carrying gun on the Eid day. Questioning the authority of Noor Ahmad deceased to inquire as to why he was carrying the gun, Muhammad Iqbal asked as to whether the deceased was his `Mamun'. Whereupon the deceased replied that he (Iqbal appellant) was the Mamun. Muhammad Siddiq accused raised Lalkara instigating Muhammad Iqbal accused to fire at the deceased and teach him lesson for being elected as a Local Councillor. Muhammad lqbal appellant tried to fire at the deceased but Sardar Muhammad P.W.4 caught hold the barrel of the gun and in this process, the gun went of in the air. Muhammad Siddiq accused then took Noor Ahmad deceased in his Jarnha Sardar Muhammad P.W.Snatched gun from Muhammad Iqbal appellant. At this juncture Muhammad Iqbal took out a knife from the fold of his Shalwar and inflicted injury in the right flank of Noor Ahmad deceased. Thereafter, Sardar Muhammad injured Muhammad lqbal appellant with the Butt of the gun. Muhammad Iqbal appellant and Muhammad Siddiq ran away from the spot.
Noor Ahmad succumbed to the injury on the spot.
5. Muhammad Sharif P.W.3 produced gun Exh.P.4 before Ahmad Din, A.S.I., C.W.3, which was taken into possession vide memo. Exh. P.D. Attested by Sardar Muhammad P.W.4 and Muhammad Iqbal, F.C., C.W.2. Muhammad Iqbal appellant was arrested by Rana lmdad Ali, Inspector, C.W.5 but no knife could be recovered from him. On 26-9-1986, Chiragh Din, father of the deceased produced Khushi Muhammad, cousin of Muhammad Iqbal appellant alongwith blood-stained knife Exh.C.W.4/4 before Rana lmdad Ali, Inspector, C.W.5 as the real culprit, who had stabbed the deceased. Rana Imdad Ali, Inspector, arrested Khushi Muhammad. He took into possession blood- stained knife Exh.C.W.4/4, vide memo. Exh.C.W.4/A,, attested by Sardar Ahmad and Chiragh Din (both not produced). On the direction given by the D.S.P., Khushi Muhammad was also challaned alongwith Muhammad Iqbal appellant and Muhammad Siddiq, acquitted accused. Feeling aggrieved by the opinion of D.S.P. And the report under section 173, Cr.P.C. Submitted by the police, Muhammad Sharif, the first informant, filed complaint Exh P.E. Under section 302/34, P.P.C. Against Muhammad Iqbal and Muhammad Siddiq on 22-11-1986. After preliminary inquiry Muhammad lqbal and Muhammad Siddiq accused were summoned to face trial in the complaint. The trial Court decided to proceed first in the complaint and rightly so. Muhammad lqbal appellant and Muhammad Siddiq co---accused denied the charge.
6. To prove its case, prosecution produced 4 witnesses. Dr. Muhammad Saeed P.W.1 has proved the post-mortem examination report of Noor Ahmad deceased and the medico-legal report of the injuries of Muhammad Iqbal appellant. He conducted post-mortem examination on the dead body of Noor Ahmad on 17-8-1987 at 5-00 p.m. And found following injury on his person: "An incised wound 1-1/4 x 1/2 c.m. x 10 c.m. Deep. The direction was medially and slightly upwards, situated on the right hypochondria surface near cambric margin, about 8 c.m. Anterior to midaxillary line and about 10 c.m. Lateral to mid-clavicle line.
(1) "A contused wound 1-1/2 x 1/5 c.m.x scalp deep on the right side ofanterior of skull with swelling around 4 c.m. x 3 c.m.
(2) An incised wound 4-1/4 x 1/2 c.m. x bone deep on the left half of middle of skull about 9 c.m.
Above left ear, longitudinal in direction, along the skull.
(3) A bruised swelling on the right half of posterior of skull. Dimension 3 x 4c.m.
(4) A bruise dish on the right side of neck and adjacent to shoulder 8 x 4 c.m.
(5)bruise on the left gallic region 6 x 4 c.m.
(6) A bruise on the right half of back just below scapular region 6 x 4 c.m.
(7) A bruised swelling on the back of right band, including index finger, 13 x 8 c.m. X-Ray advised.
(8) A bruise with swelling on the left half, muscle oblique 11 x 5 c.m.
(9) A bruise on the right lower leg, laterally 7 x 3 c.m. Oblique.
(10) Complains of pain all over the body.
All the injuries were simple caused within the duration of a day. Injury No.2 was caused with sharp- edged weapon and the remaining injuries were caused by blunt weapon. Niaz Ahmad, Moharrir Head Constable, P.W.2 has proved the formal F.I.R. Exh.P.C./1. Muhammad Sharif P.W.3 and Sardar Muhammad P.W.4 have given the ocular account of the occurrence. They have fully supported the prosecution case as detailed above. They claim to have seen Muhammad Iqbal appellant inflicting fatal injury with knife on the person of Noor Ahmad deceased.
7. Since the challan relating to the same occurrence had been filed in the Court, therefore, the trial Court decided to record the statements of the five witnesses mentioned in the Kalandra as C.W s. Ghulam Mohy-ud-Din, F.C., C.W.1 had delivered the sealed parcel containing blood-stained earth in the office of Chemical Examiner, Lahore. Muhammad lqbal F.C., C.W.2 had escorted the dead body to mortuary for post-mortem examination. He also received sealed parcel containing blood- stained knife and delivered the same intact in the office of Chemical Examiner, Lahore. Ahmad Din, A.S.I., C.W.3 had recorded the F.I.R. Exh. P.C. Of Muhammad Sharif P.W. And had partly investigated the case. Muhammad Saeed Akhtar C.W.4 had prepared the site plan Exh P.J. On the pointation of the witnesses. Rana Imdad Ali, Inspector C.W.5 stated that on 26-9--1986, Sardar Ahmad and Chiragh Din had produced before him Khushi Muhammad (accused in the connected challan) alongwith blood-stained knife Exh.C.W.4/4, which was taken into possession vide memo Exh.C.W.4/A and that Muhammad lqbal appellant had produced licence. Of his gun which was taken into possession vide memo. Exh.C.W.4/B. Lie stated that during the investigation Sardar Muhammad son of Choghatta, Karam Din and Ali Muhammad had appeared before A.S.P., Chichawatni as eye-witness of the occurrence claiming that they have seen Khushi Muhammad inflicting fatal injury to the deceased with his knife.
8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. While admitting his presence on the spot at the time of occurrence, he raised plea of self-defence of person stating that Khushi Muhammad had given fatal blow to the deceased in order to save him (appellant) In reply to Q.No.7 he stated: "I am innocent. On the- day of occurrence, I went to the Ihata of Seraj Din, to offer Eid-ul-Aiha prayers. I carried my licensed gun with me for my protection. When I reached there Noor Ahmad deceased, his son Muhammad Aslam and Naseer Ahmad son of Dara who were armed with a hatchet and Dangs respectively launched murderous assault on me to kill me. During the occurrence the gun went of accidentally and it fell on the ground. I was being caused injuries with a hatchet and Dangs by Noor Ahmad deceased, his son Muhammad Aslam and Naseer Ahmad son of Dara, a cousin of the deceased and in order to save my life, my cousin Khushi Muhammad who has been challaned by the police for this occurrence caused a single knife blow to the deceased to save my life. My skull bone and my linger bone were fractured by the deceased and his companions. The complainant fabricated a false version and implicated us falsely in this case.
Muhammad Siddiq co-accused was not present at the spot at the time of occurrence."
He gave evidence on Oath in disproof of the charge against him and also produced Muhammad Akhtar D.W.1, who produced X-Ray Film and X-Register relating to his injuries. Dr. Hamand Ali Shah D.W.2 stated that on 18-8-1986 he had X-Rayed the injuries of Muhammad lqbal kept under observation and found that there was the fracture of the right index finger. He also found fracture of skull of the appellant. 1n cross-examination he stated that he was not a qualified Radiologist and that he had not specifically mentioned the point of skull where fracture was found. He also produced statements of Sardar Muhammad and Chiragh Din son of Salman recorded under section 161 Cr. P.C which were marked `A & B' respectively.
9. Believing the version of the occurrence given in the F.1.R supported by the eye-witnesses and disbelieving the involvement of Khushi Muhammad, the trial Court has convicted and sentenced the appellant as stated above: While giving him the benefit of doubt, Muhammad Siddiq was acquitted of the charge.
10. Learned counsel for the appellant contended that there is a delay of 3 months in lodging the complaint; that the eye-witnesses have falsely involved the appellant in the case and in fact the fatal injury was given by Khushi Muhammad and not by the appellant; that the eye-witnesses are inimical towards the appellant and that no weapon of offence could be recovered from the appellant. Learned counsel for the State has supported the judgment of the trial Court.
11. We have anxiously attended to the arguments addressed-by the learned counsel for the parties and have carefully reviewed the evidence produced by the prosecution, statements made by the Court witnesses, statement made by the appellant under section 342, Cr.P.C., statements of the defence witnesses and the circumstances appearing in the case. We do not feel persuaded to agree with the learned counsel for the appellant. We find that the F.I.R was lodged after 3 hours of the occurrence; that there is nothing in evidence to show that the same was not recorded at the time and place as it purports. The complaint Exh P.E. Is almost verbatim copy of the. F.I.R. Exh. P.C., therefore, the delay in filing the complaint is of no consequence. On our independent assessment of the statements made by the eye-witnesses namely Muhammad Sharif and Sardar Muhammad, we do not see any legal infirmity. Their statements cannot be rejected on the ground of their relationship with the deceased. The occurrence took place on Eid day. So the reasons given by them that they had accompanied the deceased to the place of occurrence to offer Eid prayers is quite plausible. Close relatives normally go together to offer Eid prayers. Their names are mentioned in the promptly lodged F.I.R. They have successfully faced the test of cross-examination.
Their statements do not suffer from major contradictions/material discrepancies or dis--honest improvements. The eye=witnesses had no direct enmity with the appellant. It is in evidence that two years before the occurrence one Basher Ahmad had lodged a case under sections 452, 32.1 and 148/149, P.P.C. Against the deceased and Muhammad Sharif P.W.3 and in that case Muhammad Siddiq was P.W. And that 5 months before the present occurrence Abdul Ghani, maternal-cousin of the appellant had lodged a case under section 452/324 against Mst. Naimal Bibi, sister of Noor Ahmad and 114st. Safia Bibi daughter of Noor Ahmad deceased and others. It may be noted here that the eye-witnesses could easily involve Bashir Ahmad and Abdul [him] in this case but they have not done so. We are very much impressed by the straightforward manner in which the eye-witnesses have given their statements. There is no cogent reason for the substitution of Muhammad lqbal appellant in place of Khushi Muhammad. The defence version has neither been established nor there is a reasonable possibility of its being true. The police had arrested Khushi Muhammad and challaned him as accused on the basis of statements made by Chiragh Din, father of the deceased and Sardar Muhammad son of D.1 Muhammad, (copies whereof are marked `B and A", respectively) and on the statements of Sultan, Karam Din and Ali Muhammad. Strangely enough, none of them has been produced in proof of the defence version.
The statements marked `A and B' are not admissible in evidence. The story of the defence that Khushi Muhammad was produced alongwith blood--stained knife on the face of it seems to be absurd. There was no fun to keep knife blood-stained for one month and 9 days. It seems to us that defence version was introduced with the connivance of the police to damage the prosecution case. The eye-witnesses has not been disbelieved to the extent of Muhammad Siddiq. He hits simply been given benefit of doubt. He was empty handed. Fie did not cause any injury to the deceased and the allegations were that he had caught hold of the deceased. His case was quite distinguishable. The submissions made by the learned counsel are devoid of force and substance.
For all these reasons, we feel that no exception can be taken to the conviction of Muhammad lqbal appellant recorded by the trial Court.
12. This brings us to the question of sentence. We have considered this question with utmost care on our part. We Find that there are mitigating/ extenuating circumstances in his favour for lesser penalty. Muhammad Ashraf P.\V.3 has stated that the murder took place on account of the exchange of word 'Alai nun" to each ether. If the appellant was carrying gun with him, the deceased was nobody to object. So the act of the appellant appears to be somewhat provoked by the deceased.
The upshot of the above discussion is that while maintaining the conviction of the appellant under section 302, P.P.C. I-or the murder of Noor Ahmad deceased, the sentence of death is altered to imprisonment for life. ,The fine and compensation imposed by the trial Court and sentence in lieu thereof are maintained. The appellant will get benefit of the provisions of section 3882-B, Cr.P.C.