1. MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.---Akbar Ali appellant alongwith one Muhammad Shareef was tried by the learned Additional Sessions Judge Sheikhupura in a private complaint titled "Khuda Bakhsh. V. Akbar Ali etc". under section 302/34, P.P.C. who vide judgment, dated 10-3- 1994 while acquitting Muhammad Shareef convicted appellant under section 302, P.P.C. and sentenced him to imprisonment for life as Ta'zir and to pay Rs,50.000 as compensation as required under section 544-A, Cr.P.C. to the legal heirs of the deceased.
2. Being aggrieved by the impugned judgment, appellant namely Akbar Ali has filed this criminal appeal whereas the complainant Khuda Bakhsh has also filed a Criminal Revision bearing No,351 of 1994 seeking enhancement of sentence of Akbar Ali as well as has challenged the legality of the judgment of trial Court to the extent of acquittal of Muhammad Shareef respondent.
3. Brief facts of the prosecution case as narrated are that on 21-5-1993 upon the statement of Khuda Bakhsh son of Muhammad Bakhsh case bearing F.I.R. No,95 of 1993 was registered at Police Station Manawala, District Sheikhupura to the 'effect that his son namely Ahmad Ali aged 18 years had secured Rs,400 as loan from Akbar Ali son of Muhammad Shafi. Two days prior to the instant occurrence, Ahmad Ali and Akbar Ali quarrelled over the return of loan but the matter was patched up. On the day of occurrence, i,e, 21-5-1993 at about 11-00 a.m. the complainant alongwith Ahmad Ali and Ghulam was present in his house when Muhammad Shareef came to his house and took away Ahmed Ali deceased with him. Both the complainant and Ghulam Rasool also chased them.
4. In the street, they saw Akbar Ali being armed with Chhuri, statedly, within their view, Muhammad Shareef accused held Ahmad Ali in his clasp (Jhapa) whereupon Akbar Ali raised Lalkara and inflicted Chhuri blow at the chest of Ahmad Ali who died at the spot. This occurrence was also witnessed by Ghulam Rasool son of Muhammad Shareef.
5. During the investigation, Muhammad Shareef accused was found innocent and was not challaned. The complainant party being dissatisfied by the conduct of the Investigating Agency has also filed private complaint, Exh.PB narrating the same facts. Learned trial Court after recording preliminary evidence summoned both Akbar Ali and Muhammad Shareef accused persons in complaint case to face the trial, Learned trial Court after receipt of challan consolidated both these matters and proceedings were carried out in complaint case.
6. During the trial, prosecution produced 12 witnesses in order to prove the charge against the appellant and his co-accused.
7. Khuda Bakhsh P.W.1 and Ghulam Rasul P.W.2. being eye-witnesses of this occurrence narrated the circumstances under which they saw Akbar Ali and Muhammad Shareef accused committing the murder of Ahmed Ali deceased. Both of them supported the prosecution case in verbatim.
8. Dr. Muhammad Aslam, P.W.3, conducted the post-mortem examination on the dead body of Ahmad Ali deceased and observed following injuries:--
(1) An abrasion 1.5 x 0.87 m. on the mid part of chin.
(2) An incised wound (stabbed) wound 2.5 c.m. x 1.3 c.m. x heart deep on the front of left chest just below the left nipple.
9. Incised wound 0.6 x 0.6 c m. x muscle deep in the posterior wall of the left axilla.
10. An abrasion 1.2 x 0.7 c.m. on the front left knee joint lower part.
11. An abrasion 2.5 x 1 c.m. on the front left knee joint lower part.
12. An abrasion 0.7 x 0.7 c.m. on the outer side of left knee joint lower part.
13. In the opinion of doctor death occurred in this case due to shock, severe haemorrhage and cardio respiratory failure. Injury No,2 was sufficient to cause death in the ordinary course of nature.
14. Syed Rab Nawaz P.W.4, prepared the scaled site-plan, Exh. PG and Exh.PG/1 of the place of occurrence.
15. Muhammad Yousaf P.W.5, took the dead body of Ahmed Ali deceased to the mortuary for post- mortem examination and after the same produced last-worn clothes of the deceased before the Investigating Officer, these clothes were taken into possession vide recovery memo. Exh.PH.
16. Muhammad Aslam, F.C./P.W.6, also accompanied Muhammad Yousaf P.W.5 when he took the dead body to the mortuary. This witness also took the sealed parcels of blood-stained earth and blood- stained Chhuri to the office of Chemical Examiner and delivered the same intact on 26-5-1993 and 9-6-1993 respectively.
17. Muhammad Hand, P.W.7, identified the dead body of the deceased at the time of post-mortem examination.
18. Muhammad Akbar, P.W.8/F.C, entered formal F.I.R. Exh.P.A./1 on the basis of complaint, Exh.P.A.
19. Abdul Razzaque P.W.9 and Meraj Din P.W.10, witnessed the recovery of blood-stained Chhuri P.4 at the instance of Akbar Ali appellant.
20. This Chhuri was taken into custody vide recovery memo. Exh.P.J. Both the Witnesses also signed the recovery memo.
21. Muhammad Shareef, P.W.11, conducted formal investigation of this case and submitted the challan.
22. During the investigation, Muhammad Shareef accused was found innocent.
23. Muhammad Akhlaq H.C/P.W.12, kept the parcels (case property of this case) in Malkhana for safe custody and later on handed over the same to constables for onward transmission to the respective offices.
24. Learned S.P.P. tendered in evidence reports of Chemical Examiner about bloodstained Chhuri and blood-stained earth Exh.PL and Exh.PM respectively alongwith the reports of Serologist Exh.PI and Exh.PM/1 respectively and closed the case for the prosecution.
25. Learned trial Court after recording prosecution evidence also exated appellant and his co- accused under section 342, Cr.P.C. The appellant while answering to the question "why this case against you and why P.Ws. have deposed against you" replied as under: "I have been falsely implicated in this case. P.Ws. were not present at the place of occurrence. They are closely related to the deceased. Factually Ahmed Ali deceased secured Rs,400 as loan from me. At the time of occurrence, I was passing from a street when by chance Ahmad Ali met me. I demanded the amount whereupon Ahmad Ali made himself naked. I snubbed him for this misconduct with the result that there was exchange of hot words. Thereafter, Ahmed Ali deceased brought out Chhuri from the folder of Shalwar and assaulted me. I overpowered him and we started grappling with each other. During the course of grappling Ahmed Ali attempted to inflict a Chhuri blow from under Neath arm pit at me but it hit Ahmad Ali at his backside. Thereafter, Ahmad Ali alongwith Chhuri fell down on the ground alongwith Chhuri; during the course of falling on the ground Chhuri, which was in hand penetrated in his chest. I am totally innocent."
26. The appellant neither made any statement under section 340(2), Cr.P.C. nor produced any evidence in his defence.
27. Learned trial Court after appraisal of evidence available on record, vide judgment, dated 10-3-1994 passed the impugned judgment.
28. Learned counsel for the appellant submitted none of the eye-witnesses was present at the spot but they being relative of the deceased were introduced later on during the investigation to strengthen the prosecution case: that discrepancies in the statement of eye-witnesses discredit them and their statement could not be relied upon, that the motive for the commission of this murder as alleged by the prosecution had never been proved and the facts show that evidence of recovery relied upon by the prosecution was malafidely manufactured during the investigation, conversely, learned State counsel while supporting the impugned judgment had vehemently opposed the contentions raised by the learned counsel for the appellant.
29. Heard. Record perused.
30. It is case of two versions in which time, place and weapon used during this occurrence are admitted facts. The only point to be resolved is whether prosecution witnesses are telling true facts or the defence plea is to be relied upon in totality.
31. It was a daylight occurrence and F.I.R. in this regard was lodged promptly giving all necessary details. Both the eye-witnesses namely Khuda Bakhsh P.W.1 and Ghulam Rasul P.W.2 had supported the prosecution case in verbatim. The presence of both the eye-witnesses at the spot being residents of the area was very natural. Both of them had successfully stood the test of lengthy cross-examination. It has also been observed by us that not only the defence has failed to shatter the credibility of these witnesses but also the defence has failed to bring on record an iota .of evidence showing that these witnesses had any malice against the appellant for his false implication in this case. The medical evidence i,e, post-mortem report and the statement . of doctor Muhammad Aslam P.W.3 fully support the ocular account narrated by these witnesses. The nature, location and duration of injuries as narrated by the eye-witnesses stand affirmed by this piece of evidence. The motive for this occurrence that deceased and appellant had quarrelled over some money dispute stands established from the statement of both the eye-witnesses as well as from the statement of the appellant. made under section 342, Cr.P.C. Learned counsel for the appellant has pointed out certain discrepances in the statements of eye-witnesess which occurred during the cross-examination but we are not impressed by the arguments of the learned counsel. The discrepancies highlighted by the learned counsel are not of the nature to doubt the credibility of these witnesses who have no reasons to falsely implicate the appellant in this case.
32. The statement of these eye-witnesses inspire confidence, rings true and the same can very safely be relied upon even in the absence of any corroborative piece of evidence.
33. The plea of the appellant that during his scuffle with the deceased over the issue of money dispute the deceased caused injury to himself with his own weapon, is improbable and does not fit in the circumstances of this case. It has been observed by us that mode in which deceased received injuries during the scuffle was never narrated by the appellant before the I.O. during the investigation and for the first time this explanation was given by the appellant before the trial Court. The defence plea has not impressed us and the same is rejected.
34. For what has been discussed above. we hold that the prosecution has proved its case against Akbar Ali appellant beyond the shadow of reasonable doubts and thus appeal has no force, same stands dismissed.
35. While awarding lesser sentence to the appellant, trial Court kept in mind the youth and the relationship of the appellant with the deceased. Learned counsel for the petitioner in Criminal Revision No,351 of 1994 has failed to point out any illegality or irregularity on this score. The complainant has also challenged the acquittal of Muhammad Shareef respondent through this criminal revision. Under section 417 (2-A), Cr.P.C. appeal, against the order of acquittal is available thus this revision petition is not maintainable under section 439 (5), Cr.P.C. In this view of the matter, finding no force in this petition, same stands dismissed.