SARDAR MUHAMMAD DOGAR, J.---Amjad alias Gogi (24-25) was tried by the Additional Sessions Judge, Faisalabad alongwith his brother Muhammad Arshad (26) and father Nazir Ahmad (58), for having murdered Muhammad Saleem and for having launched murderous assault on Muhammad Ilyas at 10-00 p.m. On 18-8-1986 at Bokhary Chowk in `D' Type Colony, Faisalabad, at a distance of 4 fulongs from Police Station `D' Type Colony.
Learned trial Judge vide judgment dated 31-1-1989 convicted Amjad under sections 302 and 307, P.P.C. And awarded sentences as follows:-- {{TABLE}} Under section 302, P.P.C.:Death plus a fine of Rs.10,000 in default of payment of which to undergo R.I. for 6 months.
Half of the fine, on realisation has been directed to be paid as compensation to the heirs of the deceased.
Under section 307, P.P.C.R.I. for 3 years plus a fine of Rs 2,000 in default of payment on which to undergo R.I. for 3 months.
Half of the fine, on recovery, has been directed to be paid as compensation to the injured P.W. {{TABLE}}
3. F.I.R. Exh.P.D. Was registered at the Police Station by Muhammad Iqbal Qureshi, Inspector/S.H.O. At 0-15 a.m. On 19-8-1986, on the statement of Abdul Razzaq (P.W.8).
According to F.I.R. The complainant went to Bokhary Chowk to purchase cigarettes. He found Arshad armed with a Khanjer, Amjad (appellant) armed with a knife and Nazir empty-handed, present there. Nazir caught Muhammad Saleem from behind. Amjad raised a lalkara that he will be taught a lesson for abuses. Arshad hurled a blow with Khanjer which fell on right hand of Muhammad Saleem, as he had attempted to ward off the blow by raisin; it. Amjad had given a blow on the right thigh and another blow on the left thigh of the deceased, while Muhammad Arshad had caused him injuries on the left buttock and neck. When Ilyas P.W. Tried to rescue the deceased, he was given a blow on the abdomen by Amjad, while Arshad caused him an injury on the back. Liaquat Ali and Muhammad Amin came to the spot hearing noise and witnessed the occurrence. All the P.Ws. Rescued the victims by beseeching the accused. The accused ran away raising Lalkaras.
4. For motive for the occurrence, it is stated therein that Amjad had obtained a sum of Rs.50 as loan from the deceased. The deceased had demanded the sum on Eid day, whereupon both had quarrelled and exchanged hot words. Muhammad Saleem had also abused Amjad, whereupon Amjad had threatened that he will avenge the insult.
Both the injured were removed to the hospital. Muhammad Saleem, however, died soon after reaching the hospital.
5. Muhammad Hussain, S.I. Who was entrusted investigation of the case, on reaching the hospital, despatched the dead body for post-mortem examination after preparing injury statement Exh.P.J.
And inquest report Exh.P.K. Thereafter, he went to the spot. Prior to that he had submitted application Exh.P.L. To solicit opinion from the doctor whether Muhammad Ilyas was fit to make a statement or not. Vide Exh.P.L./1 the doctor opined that he was not fit to make a statement. During spot inspection he collected blood-stained earth which was taken into possession vide memo Exh.P.G.
Amjad appellant was arrested on 22-8-1986. Blood-stained knife P.4 got recovered by him on 25- 8-1986 from his house was taken into possession vide memo. Exh.P.F.
Muhammad Arshad and Nazir Ahmad were arrested on 27-8-1986. He had also recorded the statement of Muhammad Ilyas P.W. On 23-8-1986 after obtaining opinion ((Exh.P.N./1) from the doctor that he was fit to make a statement. After completion of necessary investigation the challan was submitted to Court by the S.H.O.
6. Statements of eleven P.Ws. Were recorded at the trial Dr. Imtiaz Ahmad Gill, who had medically examined Muhammad Ilyas P.W. On 18-8-1986 at 10-40 p.m. Appeared as P.W.1. He had noted a stab wound 2 c.m. x 1/2 c.m. D.N.P. On the right side of abdomen and a stab wound 2-1/2 c.m. x 1/2 c.m. D.N.P. On the right side of sacral region, close to mid line.
Both the injuries were opined to have been caused by a sharp-edged weapon. The duration of the injuries was opined to be fresh. Injury No.1 was declared grievous while injury No.2 was declared simple.
7. Dr. Iftikhar Ahmad Piracha who had performed autopsy at 4-00 p.m. On 19-8-1986, appeared as P.W.2. He had noted following injuries on the body of the deceased:-
(1) A cut wound 2 c.m. x 1/4 c.m. x bone deep on back of wep in between middle and ring finger near middle finger base.
(2) A stab wound 2-1/2 c.m. x 1 c.m. x D.N.P. On outer upper area of left thigh at pubic symphysis level underneath there was complete cut of femoral vessels.
(3) An incised wound 3 c.m. x 1/4 c.m. x skin deep on front of neck slightly oblique right to and near the Adams apple.
On internal examination, blood vessels under injury No.2 were found injured. Death was opined to have occurred due to injury No.2 which was sufficient to cause death in the ordinary course of nature. All the injuries were opined to have been caused by a sharp-edged weapon.
Time between the injuries and death was opined to be few minutes while the time between death and post-mortem was opined to be about 16 hours.
During cross-examination he stated that injuries on the person of Ilyas P.W and the deceased might have been caused by the same weapon.
8. Ocular account was deposed to by Abdul Razzaq P.W.8 and Muhammad Ilyas P.W.9.
Abdul Razzaq by and large, repeated the facts given by him in the F.I.R. During cross-examination he admitted that his son Abdul Hamid alias Kala was challaned alongwith Liaquat P.W. For the theft of a goat. He expressed ignorance about his son Abdul Hamid having been arrested under section 109, P.P.C. And about his son Ilyas having been challaned under section 324, P.P.C. He also expressed ignorance about his son Abdul Hamid having been challaned under the Arms Ordinance and about his son Ihsan Elahi having been challaned in narcotics cases. He claimed that the deceased had demanded the return of sum of Rs.50 from Amjad in his presence, at Bokhary Chowk at 7-00 p.m. On Eid day. He stated that the Phatta of Zaheer alias Kala on which he had placed bottles for sale, was at a distance of 100 feet from Bokhary Chowk. He denied the suggestion that he had falsely cooked up motive for the occurrence and had not witnessed the occurrence. He also denied the suggestion that his son (deceased) and Ilyas (P.W.) had attacked Amjad alias Gogi near the Phatta of cold drinks and had thrown soda-water bottles at Amjad, and that when he had run away to save his life, they had chased him and overtaken. He also denied the suggestion that apprehending danger to his life, Amjad had caused injuries to both of them, in self-defence.
9. Muhammad Ilyas P.W.9 corroborated the statement made by his father in so far as it pertained to the actual occurrence. During cross--examination he admitted that a case under the Arms Ordinance was registered against him. He also admitted that he was challaned alongwith Liaquat P.W in a hurt case, registered at the instance of the accused. Like his father, he denied the suggestion that he alongwith the deceased, had attacked Amjad appellant and that Amjad in self- defence had caused injuries to him and the deceased. According to him all the shops near the place of occurrence were closed at the time of occurrence. He stated that Zaheer alias Kala was not present at his Phatta of cold drinks, and instead his minor child was only there.
10. Muhammad Bashir P.W.7 claimed to have witnessed the recovery of knife P.4 at the instance of Amjad alias Gogi from his house. During cross--examination he admitted that he was real brother of the deceased. He admitted that Ramzan the other witness who had joined the recovery proceedings, was son of Mst. Ghafuran, a maternal aunt of his father. He denied the suggestion that he had made a false statement.
11. Amir Umar Khan Niazi, D.S.P. Who had partly investigated the case, appeared as P.W.10 and stated that he had found Nazir Ahmad and Muhammad Arshad innocent during the investigation.
12. Muhammad Hussain, S.I. Who had investigated the case, arrested the accused and got (hem challaned after effecting recovery of knife at the instance of Amjad appellant, appeared as P.W.11 and deposed those facts. During cross-examination, he admitted that Amjad appellant had stated before him on arrest that the deceased and complainant party had thrown bottles at him.
However, he denied the suggestion that Amjad had stated before him that a quarrel had taken place between him and the- deceased a day before the occurrence when the deceased had taken the side of Yasin who had come to their mohallah in a drunk state, while he had objected to that. He also denied the suggestion that no recovery of knife had been effected at the instance of Amjad and he had planted the same.
13. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, ---have you anything else to say---?
"In fact Yaseen son of Bashir is a friend of Muhammad Saleem deceased who on the day of Eid-uz- Zaha i.e. a day before this occurrence, while having drunk came to our mohallah and made alarm whereupon the mohallahdars including myself objected to his behaviour and that Muhammad Salim deceased being his friend took his side and quarrelled with me. On the day and time of occurrence, I was sitting at the Phatta of Muhammad Zaheer alias Kala near the place of occurrence where Muhammad Salim deceased alongwith his brother Muhammad Ilyas reached and launched attack with bottles, whereupon I in order to save my life ran from that Phatta and they chased me and I in exercise of right of self-defence caused injuries to Muhammad Salim deceased and Muhammad Ilyas P.W. I had no intention to kill Muhammad Salim deceased. My brother and my father who are my co-accused were not with me at that time. The P.Ws. Except Muhammad Ilyas were not present at the spot at the time of occurrence. I had made the same statement before the I.O. During investigation and the Investigating officer found my father and brother innocent. During the investigation a Punchayat was arranged by the Investigating Officer, and the members of Punchayat Pir Muhammad Ibrahim and Hakeem Muhammad Yaqub Naurani had opined that the deceased and the injured P.W. Were the aggressors."
He declined to make statement on oath, nor produced evidence in defence,
14. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that .The ocular account has been deposed to by related and interested witnesses; that there was no corroborative evidence of the ocular account as the evidence of recovery of weapon of offence was also deposed to by a real brother of the deceased who was as inimical to the appellant as his father and brother were. Learned counsel contended that the version put forth by the appellant appears to be more probable and nearer the truth than the version of the prosecution. Lastly, learned counsel submitted that even if the conviction of the appellant under section 302, P.P.C. Is maintained, it would not be a case of confirmation of death sentence as the appellant does not seem to have taken undue advantage and might have acted under the influence of his father and elder brother who were also alleged to have participated in the occurrence as his co--accused.
15. Learned counsel for the State defended the judgment of the trial 'Court.
16. There is no denying the fact that the ocular account in this case has been furnished by father and real brother of the deceased. The evidence of recovery of knife, apart from the Investigating Officer, has also been deposed to by a real brother of the deceased. In spite of that we find no substantial reason to discard their testimony, particularly so when the presence of Muhammad Ilyas P.W. At the spot cannot be denied. He had suffered injuries during the occurrence and the stamp of injuries on his person goes a long way to prove that he was present at the time of occurrence. As the appellant was known to the eye-witnesses, there could be no doubt about identification, also. The fact can also not be lost sight of that the appellant also did not deny to have participated in the occurrence. In fact he admitted that he had inflicted injuries to the deceased as well as the injured P.W., although he had put up his own version about the manner in which the occurrence had taken place. In the circumstances, it has got to be assessed, whether the version put forth by the appellant was more probable and nearer the truth or the case of the prosecution was correct and nearer the truth.
17. The stance of the appellant that the deceased and Muhammad Ilyas P.W. Had launched attack on him with a premeditated mind, on account of their annoyance due to the quarrel which had taken place between them a day before the occurrence, does not find support from any substance on the record, in that, he was neither found injured or the Investigating Officer had found any bottles broken or otherwise, lying at or around the place of occurrence. The statement of the appellant, therefore, that the deceased and Muhammad Ilyas P.W. Had thrown bottles at him and they had chased him also, while throwing bottles, was without any substance. His plea, even otherwise was without any substance because if the deceased and Ilyas P.W were annoyed due to previous incident and they had launched attack with premeditated mind, they would not have done so without being armed and in that case two young persons instead of suffering injuries at the hands of single accused, would have at least succeeded in causing some injuries to the appellant. The defence version, as such, is without any substance and is not worth acting upon.
18. The prosecution version on the other hand, deposed to by an injured witness, finds support not only from the testimony of another eye-witness, but stands corroborated by the evidence of recovery of weapon of offence and the medical evidence as well.
In the circumstances, we find no merit in the appeal. The same is dismissed.
19. However, we are not inclined to confirm the sentence of death awarded to the appellant as it was prosecution's own case that the father and elder brother of the appellant had also been with him at the time of occurrence. The possibility of the appellant, therefore, having acted under the influence of his father and brother cannot be ruled out. The sentence of death awarded to him is, therefore, altered to imprisonment for life. Reliance, in this regard is placed on Mukhtar Hussain and another v. The State 1985 SCMR 479. The sentence of imprisonment for life and the sentence of imprisonment awarded to the appellant under section 307, P.P.C. Shall run concurrently. The sentence of fine are maintained. He shall also be given benefit of the provisions of section 382-B of the Code of Criminal Procedure.
Death sentence not confirmed.