' SAJJAD ALI SHAH, J.---This appeal with leave of the Court is directed against judgment dated 11-6- 1990 of the Lahore High Court, Lahore, whereby death sentence of both appellants is not confirmed and reduced to life imprisonment and their appeal is partly accepted to that extent.
2. Briefly stated relevant facts giving rise to this appeal are that appellants, who are brothers, ran restaurant in the neighbourhood, where loud music was played and they used to pass objectionable remarks at females passing through the street. Deceased Iqbal took exception to such behaviour of appellants and on that account an altercation took place between them on 28- 4-1985 at 2 p.m. In which threat was extended to Iqbal by appellants that he would be taught a lesson. On that day at 9-30 p.m. While Iqbal was returning home and reached Chatty Masjid, both appellants armed with knives raised Lalkaras and attacked him. Akhtar gave knife blow on his chest and Muhammad Hussain inflicted knife injury on his left flank. Both appellants further repeated knife blows, which landed on his abdomen. Incident was seen by complainant Abdul Ghafoor, Taj Muhammad, Bashir and other persons, who raised alarm, on which appellants made good their escape. Iqbal died while being taken to the hospital. Abdul Ghafoor filed F.I.R. At 9-50 p.m. At P.S. Chiniot in District Jhang, which was at 4 furlongs from the spot. A.S.1. Javed Ali after recording F.I.R. Took in hand investigation of the case during which arrests were made and knife was recovered at the pointation of Akhtar, which was sealed and sent to the laboratory of Chemical Examiner. It is the case of the prosecution that incident was seen by eye-witnesses in the light of bulbs at the spot.
3. In the trial Court prosecution examined 9 witnesses in support of its case. P.W. 1 Dr. Jamshed Alam deposed that he conducted post-mortem examination of Iqbal deceased and found three stab wounds near nipple above umblicus, left chest and right abdomen respectively. Cause of death was shock and haemorrhage caused by Injury No,l. Ocular testimony is furnished by P.W. 6 complainant Abdul Ghafoor and P.W.7 Taj Muhammad. Other witnesses are formal in nature, who had participated in the investigation. Prosecution produced reports of Chemical Examiner and Serologist with positive finding with regard to knife and blood taken from the spot. In their 342, Cr.P.C. Statements, appellants denied prosecution allegations levelled against them. Appellant Akhtar took up plea that deceased Iqbal and his two companions attempted to assault him sexually and while resisting he gave knife blow to Iqbal. Appellant Muhammad Hussain pleaded alibi. Appellants did not examine any witness in defence.
4. Trial Court after assessm ent of evidence brought on the record came to the conclusion that prosecution case stood proved as ocular evidence was corroborated by circumstantial evidence of recovery of weapon of crime, motive and medical evidence. In the absence of extenuating circumstances, as viewed by the trial Court, both appellants were convicted under section 302/34, P.P.C. And sentenced each to death and fine of Rs,5,000 or in default R.I. For 2 years. It was further directed that fine, if recovered, was to be paid as compensation to the heirs of deceased. During the hearing of appeal and reference for confirmation of death sentence, High Court was not impressed with evidence on altercation that took place between appellants and deceased on the same day at 2 p.m. Before the incident on the ground that complainant did not assert positively in his deposition that he was present at the time of altercation. In such circumstances it was held that reason for attack was shrouded in mystery and on that ground sentence of death of both appellants was reduced to life imprisonment.
5. Leave has been granted by this Court to consider whether High Court was right in examining defence plea before discussion of prosecution case, which gives an impression that conviction is recorded and is result of failure of appellants to prove their defence and to reappraise the whole evidence in accordance with general principle of administration of justice that it is the duty of prosecution to prove its case beyond doubt regardless of the fact whether accused has succeeded or not in proving defence plea.
6. Record shows that in the evidence of prosecution there is ocular evidence of two witnesses. P.W.6 is complainant Abdul Ghafoor, who is eyewitness of the incident and claimed that at the time of incident, which was 9-30 p.m. He was going to the house of his second wife, when he saw deceased Iqbal coming and attack made on him by two appellants with knives. He deposed about the motive also that altercation took place on the same day earlier in point of time at 2 p.m. High Court disbelieved evidence of this witness on the point of motive on the ground that complainant did not say specifically in his deposition that in his presence altercation took place, hence it was open to infer that source of information was unascertainable. To the above extent, we are in agreement with the High Court and at the same time we are of the view that remaining evidence of complainant is worthy of reliance. There is no dispute about the fact that complainant is brother of deceased but he has given valid reason that he was going to the house of his second wife, when on the way incident took place, which he saw. On that point he is not shaken in cross-examination to show that he had lied about it. It does not matter, if he did not mention this fact in F.I.R. In which material particulars of incident are to be given without giving details of incidental matters. He has narrated relevant details of the incident in his deposition which are supported by medical evidence, so far as nature of injuries, weapons and number of assailants are concerned. The fact that this witness had seen the incident and was present at the spot is confirmed by his conduct that he filed F.I.R. Promptly without any delay and also took the dead body to the hospital.
7. Second eye-witness P.W.7 Taj Muhammad is also reliable. Objection that he is a chance witness is not valid as he has stated that he came from the mosque and was going to the bakery. There is nothing in his cross-examination to show that he had lied on that point. Complainant has mentioned his name in F.I.R. which was lodged within 20 minutes of the incident, which excludes probability of manipulation. The fact that both witnesses are related to the deceased does not reduce their credibility as they have no personal enmity against appellants for false implication.
We do not find anything adverse in the cross-examination of this witness to dissuade us from believing him.
8. Evidence of the eye-witnesses is corroborated by recovery of knife from appellant Akhtar and positive finding of Chemical Examiner that it was found to be stained with human blood. Recovery witnesses are P.W. 6 Abdul Ghafoor and Muhammad Yasin. Objection is raised that complainant should not have been joined in the investigation as recovery witness. There is force in the objection and it is correct that Investigation officer should not have joined complainant in the investigation as recovery witness and he should have taken for that purpose other persons of independent nature. This objection does not have serious effect for the reason that in this case in 342, Cr.P.C.
Statement appellant Akhtar has admitted that he inflicted knife blow to the deceased and handed over knife, which is crime weapon, to the police therefore, reliance can be placed on the recovery of knife from appellant Akhtar as crime weapon in respect of which there is finding of Chemical Examiner that it was stained with human blood. In such circumstances, it can be said that prosecution has been able to prove its case against appellant Akhtar even if motive could not be established.
9. Now we proceed to consider defence plea of appellant Akhtar to see as to what extent it has been able to create dent in the credibility of the prosecution case. No burden lies upon appellant Akhtar to disprove prosecution case or to prove his innocence. In his 342, Cr.P.C. Statement appellant Akhtar stated that deceased Iqbal and his two companions Khalid and Sajid with the intention of committing sodomy took him forcibly towards Tharra of shop, gave him beating and forced him to kneeling position and it was at that time that he picked up knife and gave blow to Iqbal . He went to the police station with knife and produced the same before the police. It may be mentioned that place of incident as admitted by appellant Akhtar is same as is alleged by the prosecution. He has not given any explanation as to from where knife came. Whether he picked up the knife from the ground or it was already with him concealed somewhere. If he had gone to the police station and produced the knife then some entry should have been made in the daily diary of the police station to that effect.
When P.W. 9 A.S.I Javed Ali, who investigated the case was in the box, a suggestive question was put to him in the cross-examination to the effect whether appellant Akhtar had appeared befroe him at the police station alongwith knife which was denied by him. The matter ended there and no further effort was made to substantiate this plea. On the other hand, during the interrogation it appears that names of Khalid and Sajid were mentioned but I.O. Did not believe the story which was not further probed. For such reasons we hold that there is no truth in the plea advanced by appellant Akhtar and it has caused no dent in the credibility of the prosecution case which stands already proved by overwhelming evidence of incriminating nature.
10. Case of appellant Muhammad Hussain is slightly on different footing. According to the prosecution, both appellants Muhammad Hussain and Akhtar gave knife blows to Iqbal and during the investigation knife was recovered from Akhtar but not from Muhammad Hussain. P.W. 9 Javed Ali I.O. Has not mentioned in his deposition as to when he had arrested Muhammad Hussain and further no other mention is made by him as to whether crime weapon was recovered from him or not. Secondly, appellant Muhammad Hussain raised plea of alibi and stated in his 342, Cr.P.C.
Statement that he worked at Faisalabad on the powerlooms of Mukhtar Ahmad and resided there.
He used to visit Chiniot after 10/15 days. On the following day of the occurrence he was arrested from Faisalabad. Strangely enough I.O. In his deposition before the trial Court refrained from mentioning anything about arrest of this appellant or plea raised by him about alibi and for that reason advisedly no question was put to him on this point in his cross-examination. Complainant denied suggestion in the cross-examination that appellant worked on the powerlooms of Shaikh Mukhtar Ahmed but admitted that Shaikh Mukhtar Ahmed had got a case registered against him under section 406/420, P.P.C. And further stated voluntarily that he was acquitted in that case. It was argued that on account of enmity with Shaikh Mukhtar appellant Muhammad Hussain was falsely implicated in this case. The argument is untenable for the reason that if complainant had enmity against Shaikh Mukhtar he would have preferred to implicate Shaikh Mukhtar instead of appellant Muhammad Hussain. No other material or evidence of convincing nature was produced in support of that plea. We, therefore, hold that plea of alibi was rightly rejected by the trial Court and the High Court. Without being impressed by falsity of defence plea, we hold that even otherwise prosecution has not produced evidence of recovery of crime weapon from this appellant as has been produced in respect of other appellant Muhammad Akhtar. Since no explanation has been given by I.O. About not making recovery of crime weapon from this appellant, we do not feel inclined to put implicit reliance in totality upon the evidence of two eye-witnesses, who are related to the deceased. Giving benefit of doubt, we acquit appellant Muhammad Hussain.
11. For the facts and reasons mentioned above appeal is dismissed so far appellant Muhammad Akhtar is concerned and appeal is partly allowed so far appellant Muhamamd Hussain is concerned and his conviction and sentence are set aside. In the result he may be set at liberty if not wanted in any other case.