' SARDAR MUHAMMAD DOGAR, J.--- Muhammad Hussain (1516) was murdered on 20-1-1989 at 2-30 p.m. In Butt Chowk of Allama Iqbal Colony, at a distance of 2-1/2 furlongs from Police Station 'D'
Type Colony, Faisalabad.
2. F.I.R. Exh.P.B./1 was registered at the police station by Muhammad Siddiq, S.I. P.W.2, on the same day at 5-50 p.m. On receipt of statement Exh.P.B. Of Abdur Rehman P.W.10, recorded on the same day by Gulsher Khan, Inspector/S.H.O. P.W.12 at 5-30 p.m. In Civil Hospital, Faisalabad.
' According to F.I.R., the deceased (Muhammad Hussain) accompanied by his brother Abdur Rehman (complainant), Muhammad Anwar (given up P.W.) and Muhammad Yaqub P.W.11, reached Butt Chowk at 2-30 p.m. While coming from Basti Ghulam Muhammadabad. He was walking a little ahead of the others. Muhammad Ikram alias Baba (20) armed with a Chhuri, and Muhammad Ashraf alias Bodi (18-19) empty-handed, came there raising Lalkaras, and told him (the deceased) that they will teach him a lesson for having demanded the return of the loan of Rs,100 and for having abused them 15-20 days ago. Muhammad Hussain turned back to run towards his companions. Muhammad Ashraf caught him from behind and exhorted Muhammad Ikram to inflict Chhuri blows, whereupon he (Ikram) gave 2 blows with the Chhuri on his abdomen. Abdur Rehman, Muhammad Anwar and Yaqub who were witnessing the occurrence, raised noise. Many other persons came to the spot. The accused ran away.
' Muhammad Hussain was removed to the hospital. However he died in the Operation Theatre, while being operated upon.
3. About motive for the occurrence, it is stated in the F.I.R. That the deceased had demanded the return of a loan of Rs,100 from both the accused 15-20 days prior to the occurrence. Instead of returning the amount, they had abused him (the deceased). The deceased had also returned abuses, whereupon they had told him that they will avenge the abuses.
4. Gulsher Khan, S.H.O. Who had recorded the statement of Abdur Rehman in the hospital, on having reached there on the information supplied by the doctor, after despatching statement to the police station for registration of case, handed over the dead body to Jamal Din, Constable for post-mortem, after preparing injuries statement and the inquest report. Thereafter he recorded the statements of the P.Ws.
' He arrested both the accused on 22-1-1989 and took into possession blood-stained Chhuri P.6 got recovered by Muhammad Ikram on 23-1-1989 from his residential Kotha, vide memo. Exh.P.E.
Challan was submitted to Court after completion of necessary investigation.
5. Learned Additional Sessions Judge, Faisalabad who was entrusted the trial of the case, after recording statements of twelve P.Ws. And the statements of both the accused under section 342, Cr.P.C. Convicted both of them under section 302/34, P.P.C. Vide judgment dated 9-8-1990, and sentenced Muhammad Ikram to death and Muhammad Ashraf to imprisonment for life. Both of them were also sentenced to pay a fine of Rs,20,000 each in default whereof to undergo R.I. For one year each. Half of the fine, on recovery was directed to be paid as compensation to the heirs of the deceased.
6. The reference made by the learned trial Judge for confirmation of death sentence, and the appeals preferred by both the convicts are being disposed of together.
7. Dr. Abdul Sattar, who had medically examined the deceased whilst alive, on 20-1-1989 at 3-00 p.m. Appeared as P.W.B. He had noted following injuries on his person:--
(1) A stab wound 2-1/2 c.m. x 1 c.m. x depth not, probed, on the left half of abdomen, 6 c.m. From umbilicus.
(2) A stab wound 1-1/2 c.m. x 1/2 c.m. x depth not probed, 1-1/2 c.m. From umbilicus on left half of abdomen. Corresponding cuts were present on jacket, shirt and two sweaters. The injured was under shock. The injuries were kept under observation. These injuries were inflicted by a sharp- edged pointed weapon and they were fresh in duration.
' Dr. Rashed Maqbool, who had performed autopsy on 21-1-1989 at 10-30 p.m. Appeared as P.W.9.
He had noted a stab wound 2-1/2 c.m. x 1 c.m. On the left half of abdomen, 6 c.m. From umbilicus at 10 o'clock position, and a stab wound 1-1/2 c.m. x 1/2 c.m. On the left half of abdomen, 1-1/2 c.m.
From the umbilicus at 3 o'clok position.
' On internal examination, muscles and subcutaneous tissues were found cut under injury No,1.
Peritoneum was also found cut. Stomach and small parts of intestines were found perforated.
' The injuries were opined to have been caused by a sharp-edged pointed weapon. Time between the injuries and death was opined to be 30 minutes to one hour, while the duration between death and post-mortem was opined to be about 19 hours.
8. Ocular account was deposed to by Abdur Rehman P.W.10 and Muhammad Yaqub P.W.11.
' Abdur Rehman while renarrating the facts given by him in the F.I.R., admitted during cross- examination that he was not present at the time of incident of motive. While expressing lack of knowledge about the relations of one Allah Rakha with Muhammad Ikram accused, he also expressed ignorance about Allah Rakha undergoing the sentence of imprisonment. He also expressed ignorance that Allah Rakha had committed the murder of Anwar. He also denied the suggestion that he knew that the aforesaid Anwar was first cousin of the father Muhammad Ashraf accused. The suggestion, that on that account, Ashraf and Ikram (appellants) were not on speaking terms, was denied by him. While admitting that there were shops and hotels around the place of occurrence, he stated that they were closed due to Friday. He denied the suggestion that the deceased was a dare devil and was involved in several criminal cases of fraud and cheating etc. He denied the suggestion that he had not witnessed the occurrence.
9. Muhammad Yaqub P.W.11 corroborated the statement made by P.W.10, in so far as it pertained to the actual occurrence. During cross-examination he admitted that some other persons were attracted to the spot after the accused had run away. He stated that he had helped the other P.Ws.
To remove the deceased to the hospital in injured condition in a rickshaw. He stated that his statement was recorded in the hospital at about 5-30/6-00 p.m. While admitting that he was not present at the time of the quarrel between the parties, which formed motive for the occurrence, he expressed ignorance about uncle of Ikram having been been murdered by the uncle of Ashraf accused. Similarly, he expressed ignorance about their being not on speaking terms on account of that. He denied the suggestion that he had not witnessed the occurrence.
10. Faqir Muhammad who had witnessed the recovery of blood-stained Chhuri at the instance of Muhammad Ikram appellant, appeared as P.W.7 and verified that fact. While stating that no person from the locality was called, as none appeared due to fear, he denied the suggestion that no recovery had taken place in his presence.
11. Gulsher Khan, Inspector/S.H.O. Who had recorded complaint Exh.P.B., had despatched the dead body for post-mortem after recording statements of the eye-witnesses and had submitted the challan to Court after arresting both the appellants and taking into possession the Chhuri got recovered by Ikram, appeared as P.W.12 and deposed those facts.
' During cross-examination he denied the suggestion that the accused had moved any application against him during the investigation. He denied the suggestion that both the accused were innocent and some vagabond type of persons had murdered the deceased. The suggestion that none had supported the prosecution version" from the locality, was also denied by him.
' The statements of the remaining P.Ws. Are more or less of a formal nature.
12. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Both of them took up the stance that they were involved in this case due to enmity.
' Muhammad Ashraf alias Bodi appellant stated as follows in answer to the question "Do you want to say anything else?":-- "My co-accused Ikram had his uncle Allah Rakha, who was involved in the murder of Anwar son of Faqir Muhammad, who was my uncle, was sentenced to life imprisonment on 26-4-1988, by the Sessions Judge, Faisalabad. I produce copy of judgment Exh.D.I."
' None of them examined any person in defence. Both of them declined to make statement on oath under section 340(2), Cr.P.C.
13. We have gone through the evidence with the assistance of learned counsel for the appellants and considered the contentions raised by learned counsel for the parties.
' No doubt, Abdur Rehman P.W.10 who had lodged the F.I.R. And furnished the ocular account, was a real brother of the deceased but Muhammad Yaqub P.W.11 was perfectly an independent witness, as he was neither related to the deceased in any manner nor was connected with him through any other bond. The complainant also cannot be termed as an interested witness, as prior to the occurrence he had no animosity or differences with any of the appellants. Same was the position of P.W.11. Actually no suggestion, even, was put to any of the witnesses that anyone of them was inimically disposed towards any of the accused, prior to the occurrence. Their testimony, therefore, inspires confidence.
14. The evidence of recovery of blood-stained Chhuri at the instance of Muhammad Ikram appellant, which has been deposed to by Faqir Muhamamd P.W.7, who was neither related to the deceased nor inimical to Ikram, corroborated by the testimony of Gulsher Khan, S.H.O. Lends sound corroboration to the ocular account, in so far as it pertains to Muhammad Ikram.
' The medical evidence, in turn, also lends corroboration. The case against him, therefore, stands established beyond any reasonable shadow of doubt. His conviction under section 302, P.P.C. Is, therefore, maintained.
15. However, the case of Muhammad Ashraf appellant stands on a different footing. In that, not only there is no evidence for corroboration of the ocular account qua him, even otherwise, he was stated to be empty-handed at the time of occurrence. The usual part of catching the deceased from behind, ascribed to him, does not find support from anything on record, in that, there is no evidence that his clothes were found stained with blood, oozing out of the wounds, suffered by the deceased, when he was holding him. Not only his clothes were not taken into possession, none of the witnesses alleged even, that his clothes were stained with blood.
Since neither the evidence of recovery, nor the medical evidence nor any other evidence of circumstantial nature, is available in his case for corroboration of the ocular account, we do not consider it safe to maintain his conviction and sentences. He is, therefore, acquitted by way of grant of benefit of doubt. He shall be released forthwith if not required in any other case.
16. Although we have maintained the conviction of Muhammad Ikram appellant under section 302, P.P.C., yet we are not inclined to confirm the sentence of death, as the prosecution have failed to prove motive for the occurrence. No P.W. Was examined to prove the motive. P.W.10 who had lodged the report and furnished the ocular account, as well as P.W.11 who had furnished the ocular account, stated clearly during cross-examination that they had not witnessed the incident which formed motive for the occurrence. P.W.10 did not even state as to from whom he had learnt about the incident of motive.
In the circumstances the sentence of death awarded to Muhammad Ikram is, not confirmed, and the same is altered to imprisonment for life. The sentence of fine is, however, maintained. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. Benefit of the provisions of section 382-B, Cr.P.C. Shall be extended.