' MUHAMMAD NAWAZ ABBASI, J.----The appellants namely Muhammad Rafique son of Muhammad Ashraf alongwith his brother Muhammad Rashid was tried for the charge under sections 302/324/34, P.P.C. In a case F.I.R. No,181, dated 1-6-1987 registered at Police Station Saddar Chakwal, on a complaint lodged by Zahir Hussain by the learned Additional Sessions Judge, Chakwal, and having found guilty of the charge was convicted under section 302, P.P.C. Through judgment, dated 12-12-1999 and sentenced to death with a fine of Rs,50,000 and in default of the payment of fine to undergo R.I. For two years. He was also awarded a sentence of two years' R.I. Under section 324, P.P.C. With a fine of Rs,5,000 and in default of the payment of fine to undergo S.I. For three months.
The fine, if realized was directed to be paid to Zahid Hussain complainant, injured P.W., as compensation. The learned trial Judge, however, acquitted Muhammad Rashid, the co-accused of the appellant from the charge.
2. The appellant has filed Criminal Appeal No,211 of 1993 whereas the State has filed Criminal Appeal No,106 of 1994 against the acquittal of Muhammad Ras'lid. The complainant has also filed Criminal Revision bearing No,112 of 1994 for enhancement of the amount of compensation and sentence of the appellant under section 324, P.P.C. The learned Additional Sessions Judge, Chakwal, has sent Murder Reference No,10 of 1994 to this Court under section 374, Cr.P.C. The criminal appeals alongwith Murder Reference and the criminal revision are disposed of through this judgment.
3. The brief facts of the prosecution case as contained in the complaint Exh.P.A. Lodged by Zahid Hussain P.W.9 on the basis of which Sher Muhammad, S.-I. P.W.13 registered a case under section 302/34, P.P.C. Through F.I.R. Exh.P.A./1 are that the appellant who had friendly relations with his paternal uncle Nasir Hussain deceased and used to purchase medicines from the deceased who was running a medicine shop in Balkassar Bazar. On 1-6-1987 at evening time, Muhammad Rafiq accused visited the shop of the deceased, who demanded the payment of bill for the medicines already purchased by the accused and consequently an altercation took place between Nasir Hussain and Muhammad Rafiq accused, who while extending threats to Nasir Hussain left his shop.
The incident was narrated by the deceased to the complainant, who shortly after the accused left the shop of the deceased went to see the deceased at his shop. Nasir Hussain after closing the shop while in the company of the complainant left for their house at 6-30 p.m. When they reached in front of the shop of Fayyaz Hussain in the same Bazar, Muhammad Rafiq alongwith Muhammad Rashid his brother suddenly emerging from behind raised Lalkara for taking revenge of the insult of Muhammad Rafiq and simultaneously Muhammad Rashid accused caught hold of Nasir Hussain deceased from behind while Muhammad Rafiq accused inflicted a Chhuri blow on his abdomen.
When the complainant had made an attempt to rescue Nasir Hussain, Muhammad Rafiq accused inflicted a second blow on the left buttock of the deceased and also caused injuries on the right hand of the complainant. The deceased on sustaining the injuries fell on the Tharra of the shop of Fayyaz Hussain. Mazhar Abbas P.W.11 and Nazar Abbas P.W.12 also witnessed the occurrence. Nazar Hussain while being taken to the hospital expired.
4. Sher Muhammad, S.-I. After recording the statement (Exh.P.A.) of the complainant Zahid Hussain sent the same for registration of the case and himself prepared the injury statement (Exh.P.C./2) of the complainant and got him medically examined. The Sub-Inspector prepared injury statement Exh.P.E. And inquest report Exh.P.F. Of the deceased in the hospital and sent the dead body to the mortuary for post-mortem examination. The S.-I. Then proceeded to the place of occurrence and during the spot inspection collected blood-stained earth from the spot vide recovery memo.
Exh.P.B. And took into possession blood-stained clothes i,e, Shalwar P.2, Shirt P.3 and pair of Chapple P.4/1-2 produced by the complainant through recovery memo. Exh.P.A. The Sub-Inspector also took into possession blood-stained worn clothes of the deceased and a few articles including the currency-notes belonging to the deceased through memo. Exh.P.K. He got prepared site-plans Exh.P.G., Exh.P.G./1 and Exh.P.G./2 from the draftsman and also made notes on it with red ink. The Sub-Inspector arrested Muhammad Rafiq accused on 5-6-1987 and Muhammad Rashid his co- accused on 9-6-1987. The appellant while in custody got recovered blood-stained Chhuri P.1 from a room of his house in Village Balkassar in presence of Riaz Hussain and Fateh Khan witnesses and took the same into possession through recovery memo. Exh.P.A. And also prepared site-plans Exh.P.C. Of the place of recovery of Chhuri with marginal notes in his hand. He got a separate case registered against Muhammad Rafiq accused under West Pakistan Arms Ordinance, 1965, and after completing the formal investigation, challaned the accused to face the trial.
5. The prosecution produced thirteen witnesses at the trial. P.W.1 Mumtaz Hussain Shah has recorded formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. On 1-6-1987. Imtiaz Ahmad P.W.2 Head Constable was deputed to take the statement Exh.P.A. To the Police Station, who handed over the same to Mumtaz Hussain Shah, S.-I., for registration of the case. Rehmat Khan P.W.3 Moharrir of the Police Station on receipt of parcels from Sher Muhammad S.-I. Kept the same in safe custody in Malkhana and later handed over these parcels of blood-stained Chhuri and earth to Imtiaz Ahmad, Head Constable for onward transmission to the office of Chemical Examiner. Misri Khan P.W.4 identified the dead body of Nasir Hussain in the Mortuary at Chakwal. Fayyaz Hussain P.W.5 witnessed the recovery of blood-stained earth from the spot by the Investigating Officer. Dr. Muhammad Nazir Awan P.W.6 medically examined Zahid Hussain P.W.9 in D.H.Q. Hospital, Chakwal, at 9-30 p.m. On the day of occurrence and traced the following injury on his person:-- "A superficial incised wound 2 x 1/16 inch, on palm originating from 1 inch below the base of little finger and passing towards the base of middle finger. The wound was tapering towards the lateral side of the palm."
' The injury was simple in nature, which was caused with sharpe edged weapon.
6. The same doctor conducted post-mortem examination on the dead body of the deceased on 2- 6-1987 in Civil Hospital, Chakwal, and found the following injuries on the dead body:--
(1) A stab wound 3 x 7/8 inch, chest cavity deep on front of right chest, below 3/5 inch and inside of right nipple, 1/4 inch to right of mid-line going backward and downward.
(2) A stab wound 2 x 1 x 7 inch deep on left buttock going inward and upward.
(3) Two abrasions each 1 x 1 inch on front of left knee-joint.
(4) Two abrasions each 3/4 x 1/2 inch on front of right knee-joint.
7. In the opinion of the doctor, injuries No,1 and 2 were caused with sharp-edged weapon and being fatal independently as well as collectively were sufficient to cause death in the ordinary course of nature, whereas injuries Nos.3 and 4 were caused with blunt weapon and were simple in nature.
The time between the injuries and the death was 10 to 20 minutes whereas between the death and post-mortem examination was 12 to 14 hours. The carbon copy of the post-mortem report is Exh.P.D. Whereas the diagram showing the seat of injuries is Exh.P.D./1, which bears the signatures of the doctor. Muhammad Sharif P.W.7 Draftsman on the direction of the Investigating Officer and pointation of the P.Ws. Prepared site-plans in triplicate (Exh.P.G. To Exh.P.G/2) under his signatures.
Fateh Muhammad P.W.8 is a witness of recovery of blood-stained Chhuri P.1 at the instance of the appellant from a room of his house in Village Balkassar. Zahid Hussain P.W.9, a nephew of the deceased Nasir Hussain is an eye-witness of the occurrence, who lodged complaint Exh.P.A. On the basis of which Mumtaz Hussain, Sub-Inspector P.W.1 recorded formal F.I.R. Exh.P.A./1. Mansha Khan P.W.10 escorted the dead body of the deceased from D.H.Q. Hospital, Chakwal, to the mortuary and after post-mortem examination delivered the blood-stained clothes, pair of shoes, wrist-watch, currency notes and keys belonging to the deceased, to Sher Muhammad, S.-I. Who took the same into possession vide memo. Exh.P.K. The same witness got medically examined Zahid Hussain P.W.
And produced his M.L.R. Before the Investigating Officer. Sher Muhammad, S.-I. P.W.13 investigated the case and after completion of formal investigation challaned the accused to face the trial.
7. The Prosecutor gave up Gulzar Hussain, Riaz Hussain, Hubdar Hussain and Malik Bashir, D.S.P. As unnecessary and after tendering in evidence reports of the Chemical Examiner Exh.P.M. And that of Serologist Exh.P.N. Closed the prosecution case.
8. The accused in his examination under section 342, Cr.P.C. Denied the charge and pleaded innocence. Muhammad Rafiq appellant also denied the recovery of Chhuri P.1 at his instance and in reply to question that "why this case against you and why the P.Ws. Deposed against him" made the following answer:- "Deceased Nasir Hussain, complainant Zahid Hussain, Mazhar Abbas P.W. And other witnesses are members of one family while Nazar Abbas P.W. Is their servant since forefathers. Their family has blood-feud with their opponent groups of Zamindar in the village and there is a background of chain of murders in these two Zamindars families alternately. We are Moches and subservient being Moeens of the said Zamindars who are traditional 'Wadaras'. In the said background of family feud, Nasir Hussain deceased may have been killed by the opposite group of Zamindars in some blind occurrence. I closed my shop as usual at about 6-00 p.m. And went home. I knew nothing thereafter except that it was talk of the town that some unknown person had killed Nasir Hussain and thus rumour was around in the village froth very late in the night. The complainant party brought the police but the matter remained untraced. Myself and my brother had been made scape-goat and falsely implicated for the reason that at the time of murder of Hussain Bakhsh, Lambardar, father of Mazhar Abbas P.W., we were subservient to their group and my father Muhammad Ashraf was cited as an eye-witness in the said case against the opposite-party and later when this murder was avenged by Mazhar Abbas P.W. And Azad was murdered, my father and brother were falsely implicated for the reason of appearing as a witness in the previous case who were later acquitted. After acquittal of my father and brother, we effected a compromise with opponents of the present complainant party and joined the group of opposite Zamindars, which offended the complainant party of this case. All the witnesses are, therefore, inimical towards us."
9. Muhammad Rafiq appellant without appearing himself in the witness-box produced Muhammad Fayyaz, Head Constable as D.W.1, who while producing the Register of F.I.Rs, of Police Station Chakwal stated that a murder case under sections 302/149/148, P.P.C. Was registered through F.I.R. No,52 at Police Station Chakwal between the rival groups.
10. Learned counsel for the appellant questioning the credibility of the ocular account raised the following contentions:--
(a) That the occurrence took place in the Bazar near the shop of Fayyaz Hussain but except the relative of the deceased namely Zahid Hussain P.W.9, his nephew Mazhar Abbas, a close relative of the deceased and Nazar Abbas P.W.12, an employee of Mazhar Abbas, no independent person from the Bazar was produced as prosecution witness.
(b) That the nature of injuries allegedly sustained by Zahid Hussain P.W.9 in the occurrence would show that the same were manipulated to establish his presence at the spot at the time of occurrence.
(c) That the critical analysis of the case would reveal that it was an unseen occurrence, which took place much later to that of the time given in the F.I.R.
(d) That there was no direct evidence in proof of the motive part of the story narrated in the F.I.R., which was not in the direct knowledge of the complainant, therefore, the prosecution story to the extent of motive being hearsay was not acceptable.
(e) That the deceased and the appellant were friendly to each other and the reason of causing injuries to the deceased by the appellant being not understandable, there was a reasonable doubt qua the truthfulness of the allegation against the appellant.
11. Conversely, learned State Counsel has argued that the occurrence took place in the broad daylight at 6-30 p.m, in the month of June in the Bazar in front of the shop of Fayyaz Hussain and was witnessed by a natural witness of the occurrence. He added that presence of Zahid Hussain complainant, real nephew of the deceased, at the spot who had visited the deceased at his shop and also sustained injuries in the occurrence was beyond doubt. The learned counsel submitted that the ocular account is fully corroborated with medical evidence and recovery of Chhuri P.1 and there being no mitigating circumstance in favour of the appellant, he was rightly given the normal penalty of death.
12. We have heard the learned counsel for the appellant as well as the learned State Counsel at length and perused the record with their assistance. The eye-witnesses in the present case despite being related to the deceased have no grudge or enmity against the appellant. The presence of Zahid Hussain P.W.9, nephew of the deceased at the shop of deceased before the occurrence was neither unnatural nor unexpected. He being in the company of the deceased also sustained injuries at the hands of the appellant in the occurrence. He deposed that the deceased was caused two injuries by the appellant with Chhuri and on the intervention, he also sustained injury on his hand. The defence despite lengthy cross-examination, has not been able to bring on record any material to show that either the injury on the person of Zahid Hussain P.W. Was self-inflicted or his presence at the time of occurrence at the spot was doubtful. The relationship of the witness with the deceased is not a convicting reason to disbelieve him who being truthful is confidence inspiring. Mazhar Abbas, another eye-witness is a shopekeeper in the neighbourhood of the deceased in the Bazar. The fateful occurrence took place near his shop and the deceased on sustaining the injuries fell on the Tharra of a shop. There is no evidence that either the shop of this witness was closed or he was not present at the shop at the time of occurrence. He was the most natural and independent witness of the occurrence and notwithstanding of his friendship with the deceased, he had no grudge or malice against the appellant to implicate him in a false case or deposed against him or substituted him with the real culprits. Nazar Abbas being present at his shop also witnessed the occurrence. The presence of Nazar Abbas in the Bazar at the shop of Mazhar Abbas was not challengeable. The appellant as per prosecution story had friendly relations with the deceased and used to purchase medicines from his shop on debt. On the day of occurrence on the demand of the deceased for payment of medicines, the appellant felt insulted and exchanged hot words with him, which led to the fateful occurrence. This motive part of the story was narrated by Zahid Hussain P.W.9, who although was not present when altercation took place between the deceased and the appellant but the same having disclosed to him by the deceased before the occurrence, he might have first-hand knowledge, The blood-stained Chhuri was recovered at the instance of the appellant from a room of his residential house, which was found stained with human blood and wag witnessed by an entirely independent person, which provided a strong corroboration to the ocular account of natural and independent witnesses. The medical evidence further confirmed the sustaining of fatal injuries by the deceased with sharp- edged weapon. The complainant sustained simple injury at his hand with sharp-edged weapon and thus the medical evidence further supports ocular account. The detail scrutiny of the evidence would show that the plea of innocence taken by the accused is not supported by any direct or circumstantial evidence available on record. The witnesses despite being related to the deceased are entirely independent, natural and truthful. They corroborated each other on each material point and their evidence is further supported by the medical evidence and the recovery of weapon of offence, therefore, the minor discrepancies and contradictions as pointed out by the learned counsel during the course of arguments would not affect their testimony. We, therefore, while confirming the findings of guilt of the appellant given by the learned trial Court held that he has been rightly convicted under section 302(b), P.P.C. For committing Qatl-e-Amd of Nasir Hussain.
However, taking into consideration the motive part of the prosecution story, we find that there was no direct evidence in support of the incident relating to the motive and it is difficult to digest the actually some quarrel took place between the deceased and the appellant on that day before the occurrence, which was only in the direct knowledge of the deceased or some other reason, which too, was not known to anyone except the deceased and the appellant. Therefore, the motive being shrouded in mystery, we are not inclined to confirm the sentence of death awarded to the appellant and are of the view that the sentence of imprisonment for life shall sufficiently meet the ends of justice. We, accordingly, 'while maintaining the conviction of the appellant under section 302(b), P.P.C. Reduce his sentence from death to the imprisonment for life. The law does not provide the imposition of fine under section 302, P.P.C. Therefore, the sentence of fine of Rs,50,000 awarded to the appellant by the learned trial Court is converted into compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased and in default of the payment of compensation, the appellant shall suffer S.I. For six months and the compensation shall be recoverable as arrears of land revenue. The conviction and sentence awarded to the appellant under section 324, P.P.C. Is maintained with the modification that the fine of Rs,5,000 on realization shall be paid as compensation under section 544A, Cr.P.C. To the complainant and in case of default, he shall suffer S.I. For three months.
13. With the above modification in the sentence, we dismiss Criminal Appeal No,211 of 1993 as well as Criminal Revision No,112 of 1994 and answer the Murder Reference in the negative. The death sentence is not confirmed. We having considered the case of the State in Criminal Appeal No,106 of 1994 do not find any substance in the said appeal and for the reasons given by the learned trial Judge also dismiss the State appeal against the acquittal of Muhammad Rashid, co-accused of the present appellant.