1. ' MUHAMMAD AFZAL ZULLAH, C.J.---These two appeals have arisen out of a murder case. Shahid Raza appellant/convict has challenged the conviction and sentence of life imprisonment while Muhammad Nisar complainant, brother of the deceased Muhammad Iqbal, seeks the enhancement of sentence awarded to the convict from life imprisonment to death.
2. ' Mr. S.M. Zafar learned counsel for the appellant, as he, put it, addressed arguments other than classical. He read before us in the very first instance the statement on oath made by Shahid Raza accused as his own witness. He then invited us to put it in juxtaposition to the statements of Muhammad Nisar and Zarin Khan eye-witnesses. They are brother and cousin, respectively, of the deceased. By this exercise he thought it would be easier to discover the truth. The statement made by the accused relied upon by the learned counsel is as follows:-- "I do not know anything about this occurrence and I have been falsely involved in this case. No recovery of any gun, live cartridges, lock and key was ever effected at my instance. No blood- stained shalwar was also recovered at my instance.
3. ' About 1-1/2 year prior to this occurrence the deceased Muhammad Iqbal levelled a false charge of sodomy against me, which he alleged was committed with his son Muhammad Tufail. My mother as well as other relatives approached the deceased regarding my innocence. About the said false charge but he did not accept our request. My mother and other relatives once again approached Muhammad Iqbal deceased and assured him about my innocence but he again refused to accede to our request. After about one month of the said occurrence, Sheerin Khan; Iran Khan; Nur Khan and Muhammad Iqbal deceased induced me and took me to a jungle where the deceased Muhammad Iqbal removed my shalwar at pistol point and committed sodomy with me. I brought this incident to the notice of my mother and other relatives and insisted that matter should be reported to the police but my mother and other relatives did not agree with me on account of our poverty and influence of the other party. Sheerin Khan and others are related to deceased Muhammad Iqbal. After about 2-3 months of the said occurrence while the deceased gagged my mouth and again committed sodomy with me, I again related this fact to my mother but she again did not allow me to lodge the report. However, we left the said village after selling our house and settled at our lands situated at a distance of about 2 miles of our previous village. I therefore, kept on preparing myself for my F.A. Examination. About 3-4 days prior to this occurrence the deceased Muhammad Iqbal again met me at Railway Station Chhab and threatened me at pistol point that I have left the said village, I will be killed if and when he found such an opportunity. The pistol was that of Adam Khan who is husband of his sister. After about 3-4 days of the said occurrence Muhammad Iqbal was murdered and I have been falsely involved for committing his murder. The deceased was man of bad character."
4. ' There is not much in his cross-examination except that Muhammad Tufail son of Muhammad Iqbal was stated to be 14 years of age at the time of the trial and about 12/13 years .At the time of occurrence. It is to be noticed that-in the statement under section 342, Cr.P.C. The accused had also stated that "the deceased Muhammad Iqbal then went away with my shalwar and I had to go to my house without shalwar." He had also emphasized that after the migration by his family he was under constant threat of murder from the deceased who had a pistol. Learned counsel while commenting on the statement emphasized that it has a ring of truth and speaks for itself in so far as weak side of the accused is concerned: namely, that every time he suffered an insult he came back and complained to his mother and not to his father. He also emphasized that the deceased side was the stronger one in the village society. As against the version of the accused that given by Muhammad Nisar appellant is as follows:- "The deceased Muhammad Iqbal was my real brother. I alongwith my father and deceased Muhammad Ribal have been running up our business in Mandi Chhab. Zarin Khan P.W. Also runs his shop separately in the same Mandi.
5. ' About 8 months ago, I alongwith my cousin Zarin Khan left the Mandi at about 4-30 p.m. And made for our village on one bicycle. The deceased Iqbal had lagged behind as he was to close the shop: While We were going on the road near Dhok Mawaz at about 5-00 p.m. The deceased Muhammad Iqbal crossed us on his motor-cycle. The deceased had hardly covered a distance of 100 yards, when the accused Shahid Raza armed with .12 bore gun waylaid him. The deceased Muhammad Iqbal got down from the motor-cycle and thereafter accused asked him to put off his shalwar. The deceased refused to put off his shalwar. Thereupon the accused fired at the deceased with his .12 bore gun. As a result of said fire, the deceased fell down. Thereafter the accused fired the second shot at the deceased which also hit him. Thereafter the accused untied the `azarband' of the shalwar of the deceased, put it off, and went away alongwith shalwar while waiving his gun. Then I and Zarin Khan reached the deceased, who had succumbed to injuries by that time. I and Zarin Khan witnessed the occurrence.
6. ' About 1-1/2 years prior to this occurrence the accused Shahid Raza had committed sodomy with Muhammad Tufail son of Muhammad Iqbal deceased. Thereafter a Jirga was convened and it was decided that Muhammad Iqbal deceased could award any punishment he deemed fit to the accused. Thereafter Muhammad Iqbal deceased alongwith Shahid Raza accused and myself made for a jungle. In presence of the said Jirga Muhammad Iqbal deceased put off the shalwar of the accused and blackened his face. The deceased Muhammad Iqbal had taken away the shalwar of the accused himself. The motor-cycle of the deceased remained lying at the spot. After the occurrence I went to my house and informed my father; uncle and other relatives who also reached the spot. Thereafter I made for police station to lodge the report and while I reached Lakarmar, Mir Zaman SI met me and I lodged the complaint there. I see Exh. P.C. Which bears my signatures. It was read over to me and I signed the same in token of its correctness.
7. ' After 10-11 days of this occurrence I joined the investigation of this case. The accused Shahid Raza led to the recovery of key which was lying concealed under a brick near a well situated adjacent to the house. The said key was taken into possession by the police. Thereafter the accused took us to his house where he opened the lock with the said key and consequently led to the recovery of .12 bore gun which was lying concealed under a cot. The police secured the said gun alongwith blood-stained shalwar and three live cartridges. The said shalwar was of the deceased."
8. ' From cross-examination the learned counsel for the accused read the following statement:-- "One Behram Khan was murdered in 1980 and I was arrested in the said case. It is incorrect that the allegation against me was that I had not only murdered Behram Khan but had also cut his penis. I remained in judicial lock-up for about 26 days in that case."
9. ' This, the learned counsel argued, could be the reason for the family of Behram Khan to have taken revenge but when told that if it were so why Muhammad Nisar would have been spared and instead his brother Muhammad lqbal has been killed, learned counsel could not advance the line of argument any further that there were other persons with equally strong motive who could have killed Muhammad Iqbal.
10. ' Apart from the two oral statements noticed above; one from the accused and the other from the complainant side, it has to be noticed that the empties recovered from the spot did match with the gun recovered from the appellant. And further that the shalwar stated to be of the deceased recovered at the instance of the accused, not only corroborates the statements of the witnesses regarding what happened at the time of occurrence but further this element gets support from another fact that the dead body at the time of postmortem had no shalwar on it. Learned counsel for the accused when commenting on these very strong elements contended that although on face the recoveries of incriminating articles seem to be natural and genuine, on deeper scrutiny they were not. According to him, the gun had been recovered from the accused at a very early stage of the investigation and the empties were only made up. There was no independent witness regarding shalwar. Although initially he stated that the Doctor had found it on the body of deceased as it appeared from the examination-in-chief of the doctor; but on further scrutiny it was found that the doctor either committed an innocent mistake or his statement in this behalf was tainted; because none of the documents prepared at or about the time of post-mortem examination supported his statement regarding shalwar. Be that as it may, lastly, learned counsel when commenting on the recoveries contended that the recovery witnesses in this case were brothers of the deceased, therefore, it would be no corroboration of the testimony of the eye- witnesses. Theoratically the learned counsel is right. But in the circumstances of this case when the dead body is found without a shalwar and, the eye-witnesses gave good explanation for the naked body of the deceased. It all gets support from the documents prepared by the Doctor and the investigator; particularly, this gives sufficiently strong support to the statements of the recovery witnesses. And thus even as brothers of the deceased their veracity having been tested, there is nothing in law not to rely upon them, regarding these recoveries. That being so, they do furnish strong support to the ocular account. Thus the criticism on the eye-witnesses; namely, that they are closely related to the deceased in the facts and circumstances of this case, loses much of its force.
11. ' Lastly, it may be stated that it is one of those rare cases in which the accused has offered a detailed statement about the motive and other elements in the case upto the stage of the main occurrence. This furnished good opportunity to the Courts below to compare the two versions one coming from obviously, the interested party; namely, to save himself: And the other coming from the brother of the deceased who also, in the facts and circumstances of this case, are interested parties.
12. Another interesting feature in this case is that apart from the aforenoted interest of each side to make a statement favourable to itself, there should be obvious tendency further to introduce such falsehood in the narrative which from the complainant's point of view would prove the accused to be guilty; while the latter would introduce similar falsehood to save himself from the gallows. In this light, there will be not much of difference between the afore visualised situation and the one visualised in the famous case of Syed Ali Bepari v. Nibaran Mollah PLD 1962 SC 502. When both parties are determined to withhold reality and truth from the Court, it was held by this Court in the said case that such stage and situation, should not deter the Court from discovering the truth and thus the sifting of grain from the chaff. In this case, as already noticed, there could not be stronger motive to kill Muhammad Iqbal as was with the accused. The evidence in this behalf is furnished in his own testimony. Any person in his position could have committed the murder of his tormentor; namely, the deceased. The argument of the learned counsel that the accused was only a student and a teen ager boy and he could not have entertained any such motive, to say the least is devoid of realism. Further there is nothing in the con-duct of the accused so as to furnish a good defence plea. On the other hand the eye-witness account stands confirmed by the recoveries and also by a very important significant feature in the case; namely, that the shalwar of the deceased was recovered from the accused. This fully falls in line with the type of motive for which Muhammad Iqbal was done to death.
13. ' In the light of the foregoing discussion the appeal of the accused/convict fails and is dismissed.
14. Regarding the sentence, when it was put to the learned counsel for the complainant that the circumstances which furnished very strong motive for the accused to murder the deceased are also well-recognized mitigating circumstances. He had almost been so driven to desperation by the conduct of the deceased that he had been compelled even to migrate alongwith his mother to another place. In such circumstances the lesser sentences of the two was the only appropriate sentence. We also agree that the convict should have been granted the benefit of section 382-B, Cr.P.C. Thus both the appeals are dismissed.