1. ' BASHIR A. MUJAHID, J.---Ashiq Hussain and Mohabbat Hussain sons of Rehmat Hussain have challenged judgment dated 9-10-1997 passed by learned Additional Sessions Judge, Rawalpindi whereby they were convicted under sections 302/460/34, P.P.C. And sentenced to death under section 302(b)/34, P.P.C. And two years' R.I. Each under section 460. P.P.C. They were also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A. Cr.P.C., in default of the same they had to undergo sentence for a period of six months' S.I. Each.
2. ' The brief facts of the prosecution case are that F.I.R. No,46 (Exh.P.A./1) was registered on the written application Exh.P.A. Of Muhammad Younas P.W.3 at Police Station Rawat on 12-3-1996 at 6-30 a.m.
3. Under sections 452, 337-A/34. P.P.C. About the occurrence which took place at about 2-30 a.m. On the same day in the vicinity of Karli at a distance of 8 miles from the police station with the allegation that the complainant was sleeping in his house when at about 2-30 a.m. On hearing the hue and cry of his brother Farzand Ali. He rushed to his courtyard where an electric bulb was lit at two places and also in his residential room and he saw both the appellants armed with Sotis came out of the room and extended threats to the complainant for dire consequences and entered into their house. Muhammad Naeem son of Farzand Ali P.W.1 was also present in the same room while Imtiaz Bibi wife of Farzand All P.W.2 was available in the adjacent room alongwith her sister Salma Farzand. The complainant was informed by Muhammad Naeem that he alongwith his father were sleeping in the room and all of a sudden he was awakened and saw Ashiq Hussain and Mohabbat Hussain accused causing injuries to Farzand Ali and they inflicted injuries on eyebrow, ear, cheeks.
4. Muhammad Naeem raised hue and cry which attracted Mst. Imtir Bibi and Salma Farzand. All of them saw the occurrence. The accused fled away from the place of occurrence. Farzand was removed to Civil Hospital in injured condition. The motive for the alleged occurrence was that 3/4 months before a dog of the . Accused had fallen in the joint well of the complainant and his brothers situated in courtyard which was taken out through Khara. Farzand had reprimanded the accused for not keeping the dog tightened and an altercation took place between the parties. On 17-3-1996 Farzand died in the hospital on which sections 302/34/460 were added.
5. ' Allah Ditta, A.S.-I. P.W.10 after registration of the F.I.R. Undertook the investigation of the case.
6. Muhammad Younas complainant produced blood-stained clothes of Farzand Ali which were taken into possession through memo. Exh.P.B. He recorded the statement of Farzand Ali injured through memo. Exh.P.K. In the hospital. He arrived at the place of occurrence on 13-3-1996 and took into possession the earth from the spot through memo. Exh.P.C. On 14-3-1996 he added offence under section 324. P.P.C. On 17-3-1996 Farzand Ali died in C.M.H., Rawalpindi. Thereafter, investigation was taken over by Rehmat Khan. S.-I./S.H.O. P.W.l1. Who arrived at C.M.H. Hospital, Rawalpindi, prepared the injury statement through memo. Exh.P.M. Of the dead-body of Farzand Ali and inquest report Exh.P.N. And despatched the dead body for post-mortem examination to D.H.Q. Hospital, Rawalpindi through Muhammad Akram, F.C. On 18-3-1996 Muhammad Akram F.C./P.W.6 produced last-worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.D. On the same day, he arrested the accused/appellants. On 21-3- 1996 Ashiq Hussain appellant led to the recovery of Danda P.5 which was taken into possession through memo.
7. ' Exh.P.F. And Mohabbat Hussain appellant also got recovered Danda P.6 which was taken into possession through memo. Exh.P.H. Thereafter, he completed the investigation and submitted the challan.
8. ' The trial Court framed the charge which was denied by the appellants and they claimed trial.
9. ' The prosecution examined as many as 11 witnesses to prove the guilt of the accused.
10. ' The medical evidence was furnished by Dr. Munawar Hussain Gondal P.W.9 who on 12-3-1996 at 5- 30 a.m. Medically examined Farzand Ali and found the following injuries on his person:--
(1) A stitched wound 4 c.m. Long on left eyebrow. Right eye was blackened.
(2) Stitched wound I c.m. Long on left ear cartilage.
(3) A scab formation 1.5 x 1 c.m. On left maxilla.
(4) Right central upper incisor tooth was missing from socket.
11. ' On dissection of injuries Nos.1 and 3 there was fracture of left frontal bone above left orbit.
12. Haematoma (clotted blood) about 50 cc present undernearth of fracture site (extra dural).
13. ' On 18-3-1996, he conducted the post-mortem examination on the dead body of Farzand Ali and found the same injuries as mentioned above in the M.L.R.
14. ' Sobedar Major Ilam Din was examined as C.W:1, who had produced the original register of admission and discharge of the patients to show that on 14-3-1996 Farzand Ali was admitted in C.M.H., Rawalpindi for head injury and remained there till 17-3-1996 and died at 17-30 p.m.
15. ' The ocular account was furnished by Muhammad Naeem P.W.1 who was son of the deceased supported the prosecution story as an eyewitness and stated that he was sleeping in the same room with his father Farzand Ali and during the night at about 2-30 a.m. On 12-3-1996, the appellants armed with Sotis had caused head blows to Farzand Ali and he witnessed the occurrence and identified the accused. On his hue and cry Mst. Imtiaz Bibi P.W.2 his mother was also attracted and witnessed the occurrence. Imtiaz Bibi P.W.2 corroborated Muhammad Naeem P.W.1 and implicated both the appellants for causing injuries with the Sotis to her husband Farzand Ali and she deposed as an eye-witness of the occurrence. Muhammad Younas P.W.3 had supported the version of the F.I.R. And his written statement Exh.P.A. He also narrated the motive of the occurrence that the appellants' dog had fallen in the common well of the complainant and of the deceased, on which the deceased reprimanded the appellants and they caused injuries due to that altercation grudge. Muhammad Farooq P.W.4 had deposited the sealed parcels of incriminating articles in Maalkhana at the police station for onward transmission to the Chemical Examiner. Farman Ali, H.C. P.W.5 had deposited the sealed parcels at the office of Chemical Examiner. Muhammad Akram F.C. P.W.6 had escorted the dead body of Farzand Ali from C.M.H., Rawalpindi to DHQ Hospital for postmortem examination and thereafter he produced last-worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.D. Qamar Din P.W.7 had prepared the site plan of the place of occurrence. Tariq Hussain P.W.8 had attested the recovery memos. Exh.P.F. And Exh.P.G. Whereby the accused/appellants got recovered weapons of offence i,e, Sotis which were taken into possession by the Investigating Officer Allah Ditta, A.S.-l. P.W.10 and Rehmat Ali, S.-I. P.W.11 had investigated the case as mentioned above.
16. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.O. And that of Serologist Exh.P.Q.
17. ' The statements of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement and to question No,17 as to why the case against them and the P. Ws. Deposed against them, they replied as under:- "Deceased Farzand Ali was having strained relations with Muhammad Younas complainant/P.W.
18. On account of some Rishta due to which in order to get rid of his brother in collusion with his brother's wife Imtiaz Bibi giving the family members false impression, managed damage to the deceased Farzand Ali and in order to hide his own conspiracy knowing ourselves to be the weakest possible people of the village got implicated in false and fabricated case. No independent witness of the locality has deposed against us. However, the witnesses produced by the prosecution are all interested-cum-false and inimical witnesses who deposed against us due to false impression given by the complainant."
19. ' The trial culminated into conviction of the appellants as mentioned above. They have filed Criminal Appeal No,155 of 1997 challenging their conviction and sentence. While the complainant has tiled Criminal Revision No,106 of 1997 for enhancement of the compensation. The trial Court has sent up Murder Reference No,290 of 1997 for confirmation of death sentence of the appellants under section 374, Cr.P.C. All the matters are being decided by this single judgment.
20. ' Learned counsel for the appellants has argued that it was an unwitnessed night occurrence and the appellants have been involved falsely; that the prosecution witnesses are related inter se and their testimony has not been corroborated by any other independent source that recovery of weapons of offence has been planted and the same is of no consequences as those were not blood-stained that the fatal injury has not been specifically attributed to any of the appellants, therefore, the sentence awarded is not warranted under the law.
21. ' Conversely the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment. Learned counsel for the complainant has pressed his revision petition for enhancement of compensation.
22. ' We have given our due consideration to the contentions raised at the bar.
23. ' The alleged occurrence took place at 2-30 a.m. In the house of the deceased. Farzand All was removed to the hospital in injured condition where he was medically examined at 5-30 a.m. And F.I.R. Was lodged at 6-30 a.m. On the same day. There is no delay in lodging the F.I.R. The appellants have been nominated in the F.I.R. Muhammad Naeem son of the deceased P.W. I and Mst. Imtiaz Bibi widow P.W.2 being inmates are natural witnesses. There is no reason for false implication of the appellants by letting off the real culprits. They stood the test of lengthy cross-examination, but their testimony would not be shattered. They are truthful and confidence-inspiring witnesses. No material has been brought on record to disbelieve their testimony. Muhammad Younas P.W.3 himself admitted that he had not witnessed the occurrence and identified the accused in the courtyard of the deceased armed with weapons of offence when they came out of the room. The ocular account furnished by both the eye-witnesses Muhammad Naeem P.W.1 and Mst. Lmtiaz Bibi P.W.2 has been fully corroborated by medical evidence and by the recovery of weapons of offence, therefore, we, after reappraisal of the evidence do not find any ground to interfere in the conviction recorded against the appellants.
24. ' As far as sentence is concerned; the weapons of offence used by the appellants are Sotis of ordinary nature and it has not been specifically stated that who caused the fatal injury i,e, injury No, 1 . It is correct that absence of the motive or weakness of motive is no ground to award lesser penalty. But in the instant case Muhammad Younas P.W.3 has alleged that some altercation had taken place between the deceased and the accused about 3/4 months ago, as the former had reprimanded the accused for not keeping their dog tightened. No unpleasant occurrence took place till the day of occurrence despite the fact that they live in the neighborhood. Why the accused selected odd hours during the night to attack the deceased armed with Sotis of ordinary nature. The defence plea was that there was some dispute over claim of hand of girl for marriage.
25. It appears that some important facts have been concealed by the parties and what happened immediately before the occurrence is not clear, therefore, for safer administration of criminal justice, we consider that sentence of death awarded to the accused/appellants is to be substituted to imprisonment for life which will meet the ends of justice. . The other sentences are maintained.
26. All the sentences shall run concurrently and the appellants will get benefit of section 382-B, Cr.P.C.
27. Death sentence of the appellants is not confirmed. Criminal Revision is also dismissed having no force.
28. ' Murder Reference is answered in the negative.