1. ' RASHID AZIZ KHAN, J.--- Muhammad Habib, Muhammad Zarif and Muhammad Hanif, all sons of Nawab Din, were sent up by Police Station Sillanwali, District Sargodha, for trial, for an offence under section 302/34/342, P.P.C. Additional Sessions Judge, Sargodha, vide his judgment, dated 29-5- 1990, gave the benefit of doubt to Muhammad Hanif and acquitted him of all the charges.
2. Muhammad Habib appellant was however found guilty under section 302, P.P.C. And sentenced to death and a fine of Rs,20,000 or in default 3 years' R.I. He was further directed to pay compensation of Rs,20,000 or in default to suffer six months' R.I. Muhammad Zarif appellant was sentenced under section 302/34, P.P.C. To imprisonment for life with a fine of Rs,20,000 or in default 3 years' R.I. He was also directed to pay compensation of Rs,20,000 to the legal heirs of the deceased or in default six months' R.I. Both the convicts appealed. Sultan complainant has also filed a revision seeking enhancement of sentence of Muhammad Zarif and challenging the acquittal of Muhammad Hanif.
3. The case is also before us for confirmation of death sentence. All these matters will be disposed of by this judgment.
4. ' The prosecution story in brief, as disclosed in the F.I.R. Was to the effect that the complainant had four brothers. He used to work at Stone Crushing Machine. His younger brothers, Sher Muhammad and Muhammad Jamil had constructed their hotels at Lorry Adda. Last year, Muhammad Azeem, brother of the first informant had an altercation with Muhammad Hanif, Muhammad Zarif and Muhammad Habib, sons of Nawab Din but the matter was patched up due to intervention of the Panchayat. The accused persons however, threatened that they would take revenge of the insult.
5. On 19-2-1988, at 11 a.m. Muhammad Azeem brother of the first informant had a fight with Najeeb, brother of the accused persons. At about 12 noon the same day first informant was present in the Baithak of one Haji Muhammad Siddique with Muhammad Sadiq and Shaukat Ali when Muhammad Habib appellant called him out. He came out and saw Muhammad Zarif appellant was also there. They took him to their Baithak and started abusing him and threatened him that they would teach him a lesson for that day's fight. The commotion attracted Mushtaque Ahmed and Muhammad Akram who came into the Baithak and beseached the accused persons.
6. Thereafter the witnesses brought the first informant out and started towards Lorry Adda. When they reached the Ihata of Hassan Muhammad Gujjar, the first informant's brother Sher Muhammad also came; whereupon Muhammad Hanif co-accused raised a Lalkara to his brothers that they should not be spared whereupon Muhammad Zarif appellant gave a dagger blow on the left shoulder of Sher Muhammad. Thereafter Muhammad Habib appellant fired a .12 bore carbine hitting on the right side of chest of Sher Muhammad who fell down. The blood which oozed from the injuries did not fall on the ground but was absorbed in the shirt. Muhammad Hanif appellant held the first informant in clasp. He was got arrested by the witnesses. Injured Sher Muhammad died at the spot.
7. ' Complaint Exh.PA. Was made by Sultan Ahmed, P.W.4 which was recorded at the spot at 1 p.m. On 19-2-1988 by Taj Muhammad, S.I., P.W.6 with regard to an occurrence which had taken place the same day at 12 noon in the Ihata of one Hassan Muhammad Gujjar in Chak No,,46/S.B., Sargodha 18 miles from the Police Station Sillanwali. Formal F.I.R. Exh.PA./1 was drawn by Shaukat Hayat, A.S.I.
8. P.W.1.
9. ' P.W.6 Taj Muhammad, Si., after recording statement Exh.PA. Sent the same to police station for registration of the case and prepared injury statement Exh.P.E. And inquest report Exh.P.F. Of the deceased and then took the dead body to hospital for autopsy. He secured blood-stained clothes, shirt P.1 and Shalwar P.2 of the deceased vide memo. Exh.P.B. He arrested Muhammad Zarif on 21-2- 1988 and from his personal search recovered dagger P.3, which was secured vide memo. Exh.P.C.
10. On 4-3-1988 he was present at Bus Stop where he arrested Muhammad Habib accused who was going towards his house. On his personal search four live cartridges Exh.P.5/1-4 were recovered and an empty cartridge P.6 was also recovered from the barrel of Carbine. These articles were secured vide memo. Exh.P.D. He got all the memos. Attested from the witnesses. On the same day he also arrested Muhammad Hanif accused. He got prepared site plans Exhs.P.H. And P.H./1 from the Draftsman and gave his notes in red ink thereunder. After usual investigation he challaned the accused.
11. ' P.W.8, Dr. Shafique Ahmed, on 19-2-1988, conducted the postmortem examination on the dead body of Sher Muhammad and found the following injuries:--
(1) Eight lacerated wounds each measuring 2 m.m. x 2 m.m. Circular in shape in area of 3-1/2 x 2 c.m. On front of right lower part of chest and right side of upper abdomen, there is blackening of margins, corresponding marks on shirt were present.
(2) Incised wound 1-1/2 x 1/2 c.m. Behind left upper arm 5 centimetre deep, 6 c.m. From left shoulder joint. Corresponding cuts on shirt were present. Muscles underneath were cut. In his opinion death had occurred due to shock and haemorrhage caused by injury No,1 which was sufficient to cause death in the ordinary course of nature. Injury No,1 was caused with fire-arm while injury No,2 was with sharp-edged weapon.
12. ' Prosecution in support of its case produced 8 witnesses in all. P.W.1, Shaukat Hayat, A.S.I. Had recorded the formal F.I.R. Ocular account was furnished by Sultan Ahmed and Muhammad Akram, P.Ws.4 and 5, respectively. The case was investigated by. Taj Muhammad, S.I. P.W.6. Site plan Exhs.P.H. And P.H./1 was prepared by Muhammad Saleem, P.W.7. Postmortem was conducted by Dr. Shafique Ahmed, P.W.8.
13. ' At the coiklusion of prosecution evidence appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. Muhammad Zarif in answer to a question submitted that deceased was aggressor, he came to their house alongwith his brother Muhammad Azim. They attacked and gave injuries to him and his brother Najeeb. His co-accused were not even present at the spot. He further stated that he produced discharge slip of his brother Najeeb but police did not take any action. Both the accused, however, did not choose to produce any defence nor appeared on oath in their defence.
14. ' It was contended by learned counsel for the appellants that the case against them was not proved at all. Submitted that prosecution had failed to establish its case therefore, the appellants were entitled to the concession of benefit of doubt. Argued that no reliance on the statements of the eyewitnesses could be placed because they were neither natural nor truthful. Argued that the alleged recoveries were of no consequence because dagger was not stained with blood and it is unbelievable that appellant would keep the empty in the Chamber of Carbine till the time of his arrest. Contentions were resisted by learned counsel for the State as well as counsel for the complainant. Learned counsel for the complainant submitted that prosecution had established its case beyond doubt. Further contended that both the accused were equally guilty as they had caused injuries to the deceased therefore, both of them may be awarded the sentence of death.
15. ' We have heard the learned counsel at length and gone through the evidence with his assistance.
16. Prosecution in order to establish its case has mainly relied upon the evidence of motive, recoveries at the instance of the appellants and the ocular account. As far as recoveries in the instant case are concerned, Muhammad Zarif appellant was arrested on 21-2-1988 and on his personal search dagger P.3 was recovered. The dagger was not stained with blood and, in such circumstances, this recovery cannot be used as a corroborative piece of evidence. Muhammad Habib appellant was arrested on 4-3-1988. At the time of his arrest Carbine P.4 was recovered on his personal search which contained an empty in its chamber. As far as recovery at the instance of this appellant is concerned, we cannot rely on it for the simple reason that the occurrence took place on 19-2-1988 and Muhammad Habib appellant was arrested on 43-1988 yet he did not choose to take out the empty cartridge from the chamber of his Carbine. This on the face of it is highly unnatural which casts serious doubt on the recovery. In these circumstances no reliance on the recovery of carbine and empty shall also be placed.
17. ' The motive as given in the F.I.R. As well as in the statement of eyewitness Sultan Ahmed was to the effect that on the day of incident at about 11 a.m., the first informant's brother Muhammad Azim had an altercation with Najeeb, brother of the appellant; whereupon Muhammad Azim brother of the first informant abused him and gave him slap as well. In retaliation of the said incident the present occurrence took place. We have noticed that the witness was not present at the time of the alleged incident which provided motive. According to the statement of this witness, he was present at the Baithak of one Muhammad Siddique when the appellants came to him, and in such circumstances he could not possibly have known regarding the incident of his brother specially about abuses to Najeeb, brother of the appellants and giving him slaps. In such circumstances, it can safely be held that the motive as set up by the prosecution is an afterthought.
18. ' The ocular account was furnished by Sultan Ahmed and Muhammad Akram, P.Ws.4 and 5, respectively. P.W.4 Sultan Ahmed was real brother of the deceased. His presence at the spot cannot be doubted as he hails from the same village. His mere relationship may not be enough to discard his evidence altogether. As far as Muhammad Akram is concerned, he belonged to the brotherhood of the, complainant party. Even otherwise he is an independent witness. He has given a straightforward account of the occurrence the way it transpired. In these circumstances, it is held that both the eye-witnesses were present at the spot and had witnessed the occurrence.
19. ' The question for determination in the instant case would be, did the occurrence take place in the manner alleged by the prosecution or it took place in the circumstances indicated by the defence?
20. According to Sultan Ahmed, P.W.4, appellants came and took him to their Baithak and threatened him as well. This has been corroborated by Muhammad Akram P.W.5, who further stated that at that time accused persons were empty-handed. This clearly indicates that till then they had no intention of committing the murder because being empty-handed. It is prosecution's own case that on seeing Sher Muhammad, Muhammad Hanif appellant raised a Lalkara, therefore, Sher Muhammad was done to death. Prosecution is absolutely silent if any injuries were caused to the appellant side. The appellants produced 2 defence witnesses. D.W.1, Dr. Muhammad Khan, examined Muhammad Zarif appellant on 21-2-1988 and found three injuries on his person. The duration of these injuries was 44 to 46 hours. Similarly, D.W.2, Dr. Muhammad Anwar examined Najeeb, brother of the appellants on 20-2-1988 and found 9 injuries on his person. They were simple in nature. Two injuries were caused with sharp-edged weapon as well. Prosecution has not explained the injuries of these two persons. On the other hand, appellants' case was that the complainant side attacked Najeeb and Sher Muhammad gave him a knife blow thereafter he tried to take out Carbine and the accused side tried to snatch the same and in the scuffle it went off which resulted in the death of Sher Muhammad: Keeping both the versions in juxtaposition we feel the defence version appears to be more probable for the reasons that no blood-stained earth was secured from the spot to indicate that the occurrence took place at the spot where the prosecution alleged. According to post-mortem report, deceased had died because of haemorrhage, which meant excessive bleeding. If that be so, there should have been blood-stained earth at the place where he fell down. Injuries on the persons of the appellants have not been explained which also lends support to the defence version wherein injuries have been explained. The motive as set up by the prosecution has not been proved which indicates that the occurrence took place on the spur of moment without premeditation which resulted in the death of Sher Muhammad. In these circumstances, we hold that the convictions and sentences under section 302, P.P.C. Cannot be maintained. However, both the appellants were responsible for the death of Sher Muhammad but under circumstances explained by the defence. Therefore, we hold that both of them are guilty under section 304, Part II, P.P.C. Read with section 34, P.P.C. As far as Muhammad Habib appellant is concerned, he had fired at the deceased which resulted in his death. Therefore, he is sentenced under section 304/34, Part II, P.P.C. To 10 years' R.I. With a fine of Rs,10,000 or in default six months' R.I.
21. He shall also pay compensation of Rs,10,000 to the legal heirs of the deceased or in default suffer six months' R.I. As far as Muhammad Zarif appellant is concerned, he had caused a knife blow on the shoulder of Sher Muhammad deceased, therefore, he is convicted under section 304/34, P.P.C.
22. To 5 years' R.I. With a fine of Rs,10,000 or in default to suffer six months' R.I. He shall also pay compensation of Rs,10,000 to the legal heirs of the deceased. Both of them shall get the benefit of section 382-B, Cr.P.C. Muhammad Hanif was given the benefit of doubt and was acquitted by the trial Court because no overt act was ascribed to him. He was simply present at the spot. He was empty-handed. Reasons given by the trial Court for his acquittal are based on evidence to which no exception can be taken. In these circumstances and for reasons discussed above, revision petition is dismissed. The death sentence is not confirmed.