' DR. KHALID RANJHA, J.--- Muhammad Bashir son of Ghulam Rasul aged 16/17 years and Muhammad Yasin son of Muhammad Yousaf, aged 22 years were tried by the learned Additional Sessions Judge, Sheikhupura vide judgment, dated 15-2-1992 for committing the murder of Meraj Din. On being found guilty under section 302/34, P.P.C., they were convicted and sentenced to death and directed to pay a fine of Rs,20,000 each or one year's R.I., in default. They were also directed to pay compensation of Rs,20,000 to the legal heirs of the deceased failing which they were to undergo R.I., for six months.
2. Muhammad Irshad (P.W.2),,first informant and Meraj Din (deceased) worked in a Carpet Weaving Factory of Muhammad Youngish. Similarly, Muhammad Bashir and Muhammad Yasin, accused/appellants 'also worked there. About 3/4 days prior to the occurrence Muhammad Bashir and Muhammad Yasin appellants while joking with Meraj Din fell out resulting in exchange of abuses. On the fateful day (19-7-1990) at about 9 a.m. Meraj Din after taking his breakfast was going back to the Factory, followed by his brothers Irshad, Muhammad Riaz and one Muhammad.
Yaqoob. When they reached near Chiti Kothi, they were accosted by the accused-appellants, who were sitting in ambush armed with choirs. Muhammad Bashir and Muhammad Yasin, appellants, raised lalkara that they would take revenge for the abuses earlier hurled by Meraj Din and caused injuries to him on the stomach and the legs. The accused left the scene of occurrence and the deceased breathed his last on reaching the hospital. It was on these premises, that Irshad got a case registered vide F.I.R., (Exh.P.B.) at Police Station, City B-Division, Sheikhupura:
3. On being arrested on 21-7-1990, Muhammad Bashir produced bloodstained chhuri P.3 and Muhammad Yasin also produced blood-stained chhuri 'P.4 on 25-7-1990. Both these weapons were taken into possession vide memos. Exh.PE and Exh.PF respectively duly witnessed by Muhammad Riaz P.W. And Yaqoob. According to the report of Chemical Examiner Exh.P.M. And Exh.P.N. And that of Serologist Exhs.P.O. And P.Q. Both these weapons were stained whih human blood. After completing the investigation, the case was sent up for trial.
4. At the trial prosecution produced seven witnesses. Muhammad Irshad (P.W.2) and Riaz (P.W.3) both the brothers of the deceased gave the eyewitness account. The medical evidence in respect of the injuries suffered by the deceased was furnished by Dr. Abdul Bari, Medical Officer, D.H.Q., Hospital, Sheikhupura (P.W.5). Various steps taken in furtherance of investigation, were explained by Muhammad Ibrahim, S.-I. Appearing as P.W.7.
5. Muhammad Bashir took up the plea of self-defence while Muhammad Yasin took up the plea of denial. Muhammadl Bashir's plea of self-defiance was in the following terms:--- "On the day of occurrence, I was going for labour in that factory. The deceased Meraj Din met me near the place of occurrence. He was after me and was compelling to have offer myself for sodomy to him. On the day of occurrence, he met me near the place of occurrence and dragged me in the maize field and wanted to commit sodomy with me. I resisted his attempt of sodomy. I had a knife with me which I used to have with me for the purposes of cutting threads of carpet.
There was struggle between me and the deceased and in the exercise of resisting, I and Meraj Din came out. The deceased had received injuries during that struggle in the field and he had fallen outside the field. I had acted in my defiance. If I had not resisted that, the deceased might have been succeeded in having sodomy upon me. The deceased had died at about 8-30 a.m. And it was thereafter, that the witnesses were summoned and the story was concocted implicating me and my friend Muhammad Yasin, accused."
6. Learned counsel for the appellants submitted that it was an unseen occurrence and the witnesses did not merit reliance as they had improved the case set up in the F.I.R., by apportioning of injuries in order to tighten up nooze around neck of both the appellants. He explained that according to F.I.R., the accused armed with choirs had caused injuries to the deceased on his stomach and various parts of legs i,e,, a joint composite role was attributed to both the accused.
However, at the trial stage witnesses attributed the two fatal injuries separately to each of the appellants. He submitted that this apportioning of injuries was a designed improvement, on the part of the witnesses to seek maximum punishment for the appellants. According to him, a witness who bends backwards to improve his statement to the detriment of an accused cannot be described as a truthful witness. He further submitted that the occurrence had taken place to Chiti Kothi. The inmates of the house were real and natural witnesses. None of them was either associated with the investigation or produced before the Court. It would be safely inferred from this that the real and natural witnesses were not willing to support the prosecution case set up in the F.I.R.
7. The learned counsel also argued that the prosecution had even failed to prove the motive set up in the F.I.R. The quarrel in the factory 3/4 days prior to the occurrence could well nigh have been ascertained by Investigating Officer by recording statement of witnesses from the factory. In absence of my witness having been produced from the factory, it cannot be safely construed that the motive set up by the prosecution had been established. In such circumstances it would be keeping in with the safer administration of justice to accept the version of Muhammad Bashir, accused-appellant laid out in his statement under section 342, Cr.P.C.
8. He also criticized the recovery of blood-stained Churls on the ground that the recovery was witnessed by Muhammad Riaz (P.W.3) who was also an eye-witness. His evidence in respect of recovery of incriminating articles cannot be used to corroborate himself. He submitted, that the conviction merits to be set aside as the Trial Court had failed to examine the evidence in correct perspective.
9. The learned counsel for the State, on the other hand, canvassed for maintenance of the conviction. In aid of his stance, he submitted that it was a day light occurrence seen by the witnesses who explained their presence at the spot in a reasonable manner. It is submitted that their testimony cannot be discarded merely because they have attributed specific injuries to the accused/appellants. According to him, the F.I.R., was not supposed to be a detailed document and was susceptible of explanation in the course of trial. Such explanations cannot be treated as improvements. The attribution of injuries to both the appellants cannot, in any manner; be treated as a variation in the ocular account to bring the same in line with the medical evidence. Much stress was also laid on the fact that the witnesses had no grudge or grouse against the accused/appellants to falsely implicate them, and therefore, they ought to be relied upon implicitly.
' So far as the plea taken up by Muhammad Bashir, appellant, was concerned, it was dubbed as an afterthought. It could not be considered at all, as it had not been put to either of the eye-witnesses or for that matter even the Investigating Officer.
10. Having heard both the learned counsel for both the sides and brushed through the record of the Trial Court, we feel tliat the eye-witnesses account given by Muhammad Irshad (P.W.2), and Riaz P.W.3 is not at all exceptionable. They have given a proper explanation for their presence at the spot. The occurrence had taken place on the road side in broad day light, in public gaze and the witnesses had no reason to falsely implicate the appellants. Muhammad Bashir, appellant, has tried to justify his killing the deceased by taking up plea of self-defence to ward off a bid by the deceased to commit sodomy with him. The plea has not been put to any of the witnesses. No question has been put to Muhammad Yaqoob, Patwari (P.W.1), as to whether there was any crop on the place of occurrence. According to the site plan Exh.P.A., Killa No,20/18 was a vacant field, and in Killa No,23, we have noticed that on the original site-plan word 'Makai' has written suspiciously in pencil. The allegation by the accused that he retaliated to be dragged in the maize field, is without any foundation and amounts to a bald assertion, largely so when there is an abode (Chiti Kothil and residential abadi close to the place of occurrence. The witnesses have been subjected to protracted cross-examination. Nothing useful has come on the file from which their presence at , the spot could be rendered doubtful or it could be inferred that they were not truthful witnesses.
The testimony is in line with the medical evidence and finds adequate support from the recovery of blood-stained weapons of offence.
11. The quantum of sentence, however, has seriously engaged our attention. Muhammad Bashir, appellant, was a young lad of 16/17 years at the time of occurrence. The injuries have been distributed between both the appellants for the first time at the time of trial. The injuries are both on vital and non-vital part of the body. Likewise, they happen to be both grievous and simple in nature. It is difficult to say with judicial certainty as to which injury was caused by whom out of the appellants. For safer administration of justice, therefore, it would be proper not to impose extreme penalty of death.
12. In view of what has been stated above, death sentence is not confirmed and the sentence of the appellants is reduced from death to life imprisonment. The sentence of fine and compensation however, is maintained.
13. With this modification, the appeal is dismissed.
14. The revision petition filed by the complainant is also dismissed.
Death sentence not confirmed.