SAJJAD AHMAD SIPRA, J.- The present criminal appeal impugns the judgment dated 31.1.1993 whereby the learned Additional Sessions Judge, Bhalwal, had convicted the appellant under Section 302(b) PPC and sentenced him to death with a fine of Rs. 50,000/- as compensation to the legal heirs of the deceased or in default thereof to further imprisonment for six months.
2. The brief facts leading to the present criminal appeal are that on 5.10.1991 the complainant Shamim Raza (PW7) and Muhammad Amir (PW8) hired a tonga for Ali pur Syedan from Bus stop Bhera and when they reached Tonga stand Ali pur Syedan at about 5.30 p.m. They saw that Irfan Mehdi the appellant caught hold of Hussain Haider Shah (deceased) and gave him knife blows on his chest and the left Hank upon which the deceased fell down and then the accused gave him kick blows. Thereafter the appellant while raising the knife in the air decamped from the place of occurrence.
3. At the trial the prosecution examined as many as nine witnesses to prove its case. The Investigating Officer Taj Muhammad, SHO since dead, on the statement of the complainant Muhammad Shamim Raza (PW7) had recorded the FIR Exh.PB and after preparing injury statement Exh.PH and inquest report Exh.PI about the deceased sent the dead-body to mortuary at Bhera through Riaz Ahmad, Constable (PW1). He had also taken into possession the blood-stained earth vide memo. Exh.PG, attested by Muhammad Amir (PW8) and recorded the statements of the witnesses under Section 161 Cr.P.C. The next day i.e. 6.10.1991 the SHO had taken into possession blood-stained last worn clothes of the deceased viz Shalwar PI, shirt P2 and bunian P3 vide memo.
Exh.PA. Thereafter, the investigation was conducted by Abdul Ghafoor, ASI (PW9) who on 25.10.1991 on pointing out by the appellant had taken into possession blood-stained knife P4 vide Memo.
Exh.PF which was handed over to Muhammad Azam Muharrir (PW3). He bad also, after getting prepared site plans Ex. P.I and Ex.PJ/1 from the draftsman Syed Ghulam Ahmad Shah since dead, recording for marginal notes on them and completing the investigation, challaned The appellant.
4. Dr. Muhammad Aslant (PW5) had conducted post-mortem examination on the dead-body of Hussain Haider Shah (deceased) on 6.10.1991 at 2.15 p.m. And found the following injuries on his person:-
(1) Stab wound 2 cm x 3/4 cm going into left side of the chest.
(2) Stab wound 1 1/2 cm x 3/4 cm going into the abdomen, and
(3) Incised wound 2 cm x 1 cm x skin deep.
On dissection under injury No. 1 skin and muscles were found cut. Cartilaginous of 11th and 12 ribs were also found cut through and through. Under injury' No. 2 skin and muscles were cut and spleen was found injured on its posterior aspect. Under injury No. 3 only skin was found damaged.
According to the opinion of the doctor, the death of the deceased was caused due to shock and haemorrhage because of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. The duration between the injuries and death was fifteen minutes and that of between death and post-mortem examination was about 20 to 24 hours.
5. Riaz Ahmad, Constable (PW1) removed the dead-body from the place of occurrence to the mortuary and attested the recovery memo, of last worn clothes of the deceased. Ahmad Khan.
Constable (PW2) transmitted the sealed parcels containing blood-stained earth and knife from the police station to the office of the Chemical Examiner. Muhammad Azam, Muharrir (PW3) kept the said parcels in malkhana and proved the FIR (Exh.PB) to be drafted by the SHO (since dead)
Ghulam Rasul (PW4) had identified the" dead-body of the deceased before the Post- Mortem Examiner. Dr. Muhammad Aslam (PW5) had conducted post-mortem examination on the dead- body. Kafayat Hussain (PW6) was the recovery witness of knife P4. Muhammad Shamim Raza (PW7) being the complainant of the FIR (Exh.PB) had reiterated his stance taken therein and Muhammad Amir (PW8) being the eye-witness of the occurrence had corroborated the statement made by complainant Abdul Ghafoor, ASI (PW9) had deposed about the investigation made by Taj Muhammad, SHO (since dead) and also the investigation conducted by him.
6. After tendering in evidence reports of the Chemical Examiner Exh.PK and Exh.PL and that of Serologist Exh.PM and Exh.PN, the prosecution had closed its case.
7. In his statement under Section 342 Cr.P.C, the appellant had denied the prosecution case and deposed as under: "It was a blind murder. Shamim Raza complainant is my cousin who forcibly occupied the land of my mother situated in District Laya. Askriul Hassan father of the deceased is a political rival of Mazhar Ali Shah my co-accused and he suspected that I sided with said Mazhar Ali. The deceased was a nephew of Sibat-ul-Hasan retired S.P. While I am an orphen. Shamim Raza, Askri-ul-Hasan and Sibat-ul-Hasan got me involved in this false case."
The appellant did not produce any witness in his defence nor did he record his own statement under the provisions of Section 340(2) Cr.P.C.
8. The learned trial Court, after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellant as stated above.
9. The learned counsel for the appellant and the State were heard at length in support of their respective case and the evidence on the record perused with their assistance. The learned counsel for the State argued for maintaining the conviction and sentence awarded to the appellant by the learned trial Court. The learned counsel for the appellant on the other hand after having taken necessary evidence on the record, submitted that he shall contend only for the modification of the sentence awarded and shall not call into question the conviction of the appellant.
10. However, the Court has, nevertheless, satisfied itself regarding the conviction of the appellant recorded by the impugned judgment. The murder in question had admittedly taken place in a public place i.e. In the bazar during the day time and the accused appellant was known to the two eye-witnesses and there is no possibility of substitution in the instant case of a single accused therefor. Further-more, the testimony of both the eye-witnesses i.e. The complainant Muhammad Shamim Raza (PW7) and Muhammad Amir (PW8) were confidence inspiring and despite being subject to intense cross-examination the defence fails to shake their testimony. Therefore, it is hereby observed that the appellant was rightly convicted of the murder of the deceased Hussain Haider Shah under the provisions of Section 302 PPC.
11. We have given our anxious- consideration to the contentions raised in respect of revising and reducing the sentence awarded to the appellant. As argued in that respect it has been taken notice of that no motive for the fateful occurrence in question had been stated by the complainant Muhammad Shamim Raza (PW7) while recording the FIR Ex.PB: and that improvement made by him in that respect during his testimony before the learned trial Court is also found wanting in every respect tis the complainant has only made a bald statement to the effect that some money was due to one Tauseef-ul-Hassan, an uncle of the deceased, and that he used to side with his uncle in that respect. But neither the said uncle namely, Tauseef-ul- Hassan has been produced as a witness in support thereof nor any cogent and convincing detail has been stated in respect of the said money dispute. Therefore, it is hereby held that the motive thus set up by making a dishonest improvement by the complainant rightly deserves to be discarded. Furthermore, there is a lot of force in the argument advanced by the learned counsel for the appellant to the effect that the immediate cause of the occurrence in question is also shrouded in mystery as two eye- witnesses namely, PW7 and PW8 had stated in their respective testimony that they had been the appellant having caught hold of the deceased from the scruff of his neck but obviously had nothing to say as to what had led to the altercation that had taken place between the appellant and the deceased; whereas, the complainant Muhammad Shamim Raza (PW7) had further stated in his testimony at the trial that he had seen Irfan Mehdi accused and Hussain Haider Shah deceased grappling with each other. Therefore, we are in full agreement with the learned counsel for the appellant that the possibility of the altercation and grappling between the two having been initiated by Hussain Haider Shah cannot be ruled out under such circumstances and that the benefit of doubt thus arising has to be resolved in favour of the appellant.
12. Hence, under the facts and circumstances highlighted the Court is of the considered view that it shall be just and proper to reduce the sentence of death awarded to the appellant to imprisonment for life while maintaining the compensation of Rs. 50.000/- awarded and payable to the legal heirs of the deceased or in default thereof to suffer S.I. For six month. The appellant shall be entitled to the benefit of the provisions of Section 382-B Cr.P.C.
13. In accordance with the modification of sentence stated above, the present criminal appeal is partly allowed and disposed of.
14. The reference is answered in the negative and sentence of death is not confirmed.