1. ' BASHIR A. MUJAHID, J.-- Muhammad Arif son of Ghulam Mohy-udDin has challenged judgment dated 7-8-1997 passed by learned Addl. Sessions Judge, M.B.Din whereby he was convicted under section 302(b)/34, P.P.C. For commission of murder of Muhammad Saleem and sentenced to death. He was also ordered to pay Rs,20,000 as compensation under section 544-A, Cr.P.0 to the legal heirs of the deceased, in case of default thereof, he' had to undergo six months' R.I. He was also convicted under section 337-F(ii)/34, P.P.C. For causing injuries to Sajid Iqbal and was sentenced to two years' R.I. As Tazir. He was ordered to pay Rs,5,000 as Daman to the injured and till the payment to remain in jail as simple imprisonment. Through the same judgment Muhammad Afzal, co-accused was also convicted under the same offence but was sentenced to imprisonment for life. He has not challenged his conviction.
2. ' Briefly the facts of the prosecution case are that F.I.R. No,117 Exh.PA/3 was registered with Police Station Pahrianwali District M.B.Din at 9-30 p.m on the statement of Muzaffar Hussain, P.W.8 recorded by Muhammad Younas, S.H.O.P.W.12 about the occurrence, which took place at 8-15 p.m.
3. On 14-9-1993. It was stated by the complainant that he has two brothers, one was Arshad and the youngest was Muhammad Saleem aged about 21/22 years and was unmarried. All the three had separate business. Muhammad Saleem (deceased)r was residing separately with his mother and sisters namely Nasreen (18) and Shabana (I6), he was running a cloth shop in the village Jaukalyan. He had cordial relations with Muhammad Arif who used to sit at his shop and had also visiting terms in the house of Muhammad Saleem. About four months before Muhammad Saleem suspected that Muhammad Arif had bad eyes on his sisters which caused him annoyed who stopped Muhammad Arif to visit his house in future and also terminated his relations with the accused. About 11/2 months ago Muhammad Arif came to the shop of Muhammad Saleem and had altercation with him. Muhammad Saleem slapped Muhammad Arif but with the intervention of respectable the matter was patched up. Muhammad Arif threatened Muhammad Saleem for dire consequences and to take revenge for his insult. Muhammad Saleem also informed his teacher Muhammad Nasrullah who asked Muhammad Arif and Muhammad Afzal to be peaceful but they nourished grudge against Muhammad Salem. On 14-9-1993, at 8-15 p.m. Muhammad Saleem (deceased) along with complainant and Sajid Iqbal P.W.7 after having supper went out for a walk towards Kacha path near Darbar, where they sat on the grass and were talking. Meanwhile Muhammad Arif and Muhammad Afzal armed with daggers arrived at the spot and started abusing Muhammad Saleem. They launched attack at Muhammad Saleem. Muhammad Arif caused two successive dagger blows on Muhammad Saleem hitting on his chest. Muhammad Afzal alias Gohgi also caused two dagger blows at the back of Muhammad Saleem who fell down on the ground after receiving the injuries. Muhammad Arif again caused dagger blows on Muhammad Saleem when he was lying on the ground. The complainant tried to intervene when Muhammad Afzal accused caused a dagger blow on the back of the complainant. He raised hue and cry, on which Munawar Hussain P.W.9 son of Eiday Khan was attracted at the spot. The prosecution witnesses challenged the assailants but they fled away from the place of occurrence.
4. Muhammad Saleem in injured condition was taken to the village by the complainant Munawar Hussain and Sajid Iqbal P. Ws. And when they reached near the office of Union Council, he succumbed to the injuries and his dead body was put on a cot in the office of Union Council and the complainant got the criminal case registered after leaving behind Munawar Hussain with the dead body.
5. ' Muhammad Younas , S.H.O.P.W. 12 after registration of F.I.R. Exh.PA/3 arrived' at the office of Union Council and took the dead body of Muhammad Saleem into possession and prepared inquest report through memo. Exh.PI. Thereafter, he inspected the place of occurrence and collected the blood-stained earth where Muhammad Saleem deceased fell in injured condition through memo.
6. Exh.PF. He prepared the injury statement of Sajid Iqbal injured witness and recorded the statements of the prosecution witnesses under section 161. Cr.P.C. He despatched the dead body for post- mortem examination and also sent Sajid Iqbal for his medical examination. He also took into possession a pair of Ilawai Chappal' of Muhammad Saleem, deceased P.3 from the place of occurrence through memo-. Exh.PG. He also recorded the supplementary statement of the complainant at the spot, wherein it was stated that instead of complainant Sajid Iqbal, P.W.7 was injured in the occurrence. On the next day he took into possession last worn clothes of the deceased through memo. Exh.PH. On 15-9-1993, he arrested both the accused Muhammad Arif and Muhammad Afzal and obtained their physical remand. On 17-9-1993, Muhammad Arif, appellant while in police custody led to the recovery of bloodstained dagger P.1 which was taken into possession through memo. Exh.PC. On the same day, Muhammad Afzal got recovered dagger P.2 which was taken into possession through memo. Exh.PD. He completed the investigation and submitted the challan before the trial Court.
7. ' The trial Court framed the charge which was denied by the accused and they claimed trial.
8. ' During the trial prosecution examined as many as 12 witnesses to prove the guilt of accused.
9. ' The medical evidence was furnished by Dr. Mazhar Hussain; P.W.4 who on 14-9-1993 medically examined Sajid Iqbal, P:W. And found the following injuries on his person:-- "An incised wound on back of trunk near mid line measuring 1 c.m. x muscle deep 20 c.m. From inferior angle of right scapula. All sensation intact, movement of body below are intact."
10. ' Dr. Shaheed Ul Hassan Chatha, P.W.6 on 15-9-1994 while posted on M.0 at T.H.Q Hospital, Phalia conducted the postmortem examination on the dead body of Muhammad Saleem and found the following injuries:--
(1) Incised wound 2.5 x 1 c.m. Going deep in front of chest, 7 c.m. Medial to left nipple at its level.
(2) Incised wound 2.5 x 1 c.m. Going deep in front of chest 4 c.m. Info lateral to left nipple.
(3) Incised wound 2 x .75 c.m. Going deep in the back of chest on right side 2 c.m. Below lower angle of scapula. ,
(4) Incised wound 2.25 x 1 c.m. Going deep on the back of chest on the right side of the vertebral column at the level of above injury.
(5) Incised wound 2 x 1,c.m. Going deep on the back of chest on left side below the lower angle of left scapula at the level of above two injuries.
(6) Incised wound 3 x .75 can. Going deep on the back of left side chest 4 c.m. Below above injury.
11. ' In the opinion of the doctor death had occurred due to haemorrhage and shock due to all the injuries which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by sharp-edged weapon. Probable time that elapsed between injuries and death was an hour and between death and post-mortem examination 12 hours.
9. The ocular account was furnished by Muzaffar Hussain, P.W.8 who was complainant of the case.
12. He supported the version of the F.I.R. And narrated the facts of the case as mentioned by him in F.I.R. Exh. PA/3. He also stated that at the spot he got his supplementary statement recorded by stating that during the occurrence Sajad Iqbal P.W. Was injured instead of him and in the F.I.R. His statement to the extent that he was injured at the hand of Muhammad Afzal was not correctly incorporated. Sajid Iqbal, P.W.7 was an injured eye-witness of the occurrence. He supported the prosecution story and corroborated Muzaffar Hussain, P.W.S on all material points. He stated that he was available with Muhammad Saleem, deceased and were talking each other when Muhammad Arif, appellant and co-accused Muhammad Afzal armed with daggers arrived at the spot and they attacked Muhammad Salem and caused him injuries as mentioned by Muzaffar Hussain, P.W.8 in his statement. He tried to intervene when Muhammad Afzal accused caused him a dagger blow on his back. He also stated that Munawar Hussain, P.W.9 was attraciw at the spot and had witnessed the occurrence. They tried to apprehend the accused but they fled away with their weapons of offence. Munawar Hussain, P.W.9 was also eye-witness of the occurrence. His statement is in line with statement of Muzaffar Hussain, P.W.8 and Sajid Iqbal, P.W.7. Qamar Abbas, P.W.1 had escorted the dead body of Muhammad Saleem deceased to T.H.Q. Hospital, Phalia for his post-mortem examination and produced the last worn clothes of the deceased before the Investigating Officer .1- Mian Muhammad Siddiq, P.W.2 Draftsman had prepared the site plan of place of occurrence. Muhammad Munawar, H.C.P.W.3 had received the sealed parcel of incriminating articles from the Investigating Officer and he kept the same in police Maalkhana and on 21-9-1993 despatched the same to be deposited at the respective destinations. Muhammad Aslam, P.W.5 had attested the recovery memos. Of blood-stained daggers P.1 and P.2 got recovered by both the accused. Muhammad Nawaz, F.C.
13. ' P.W.10 had deposited the sealed parcels at the office of Chemical Examiner after receiving the same from Maalkhana. Haji Muhammad Hussain P.W.11 had attested the recovery memos. Exh.PF and Exh.PG whereby the Investigating Officer had taken the articles into possession from the place of occurrence and the last worn clothes of the deceased. Muhammad Younas, S.H.O. P.W.12 had investigated the case, recorded the statements of the P. Ws. And submitted the challan.
14. ' The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.PN qua the dagger got recovered by Muhammad Arif, appellant and Exh.PO of dagger of Muhammad Afzal, accused and that of Serologist Exh.PP, Exh.PQ and Exh.PR.
15. ' The statements of the accused were recorded under section 342, Cr.P.C. The appellant denied the allegations and claimed his innocence and false involvement and in reply to question No,4 as to why the, case against him, he stated as under:- " I am falsely roped in this case. I am innocent. Actual facts are that Sajid Iqbal P.W. Suspected illicit relation of her sister Mst. 'Ruksana with deceased Muhammad Saleem. He took deceased to a deserted place graveyard and caused him dagger blows and murdered him; order to, cover this fact and justify himself he caused one simple sharpe-edged injury on his own body and became eye-witness. He also satisfied the parents of deceased relatives that he has not murdered Saleem and got this false case to be registered against us."
16. ' The trial culminated into conviction of the appellant/accused as mentioned above. Muhammad Arif has challenged his conviction and sentence through Criminal Appeal No,450 of 1997 while Muzaffar Hussain, complainant has filed Criminal Revision No,366 of 1997 for enhancement of sentence of Muhammad Afzal. The trial Court has sent up Murder Reference No,197 of 1997 for confirmation of death sentence of Muhammad Arif. All the matters are being decided by this single judgment.
17. ' Learned counsel for the appellant has argued that it was an unwitnessed night occurrence and the deceased was done to death by Sajid Iqbal himself and the appellant has been substituted falsely; that there is clear contradiction in ocular account and the medical evidence. The complainant states that the deceased had gone for walk after taking his supper while according to the postmortem examination his stomach was empty and had digested food and it takes N hours to digest the food completely which shows that the complainant has not witnessed the occurrence; that the recovery of weapons of offence has been planted; that the complainant has made dishonest improvement by getting his supplementary statement recorded and in the F.I.R.
18. He states that he was injured in the occurrence while in his supplementary statement he changed his stance by stating that Sajid Iqbal was injured, that the prosecution case is doubtful and the benefit is to be extended in favour of the appellant and he is entitled for acquittal.
19. ' Conversely, the appeal has been opposed by learned counsel for the State and for the complainant. Tpey have supported the impugned judgment. Learned counsel for complainant has also pressed his revision.
20. ' Heard. Record perused.
21. ' The occurrence took place at 8-15 p.m. And the F.I.R. Was recorded at 9-30 p.m. On the same day at police station at a distance of 8 k.m. From the place of occurrence. The accused were nominated in the promptly recorded F.I.R. We do not find any deliberation or consultation among the prosecution witnesses before registration of the criminal case. Sajid Iqbal, P.W.7 who was injured in the occurrence was got medically examined at 11-40 p.m. From Dr. Mazhar Hussain, P.W.4 through the police which corroborates the version of the F.I.R. And of the supplementary statement.
22. The mistake committed in the F.I.R. By mentioning that the complainant was injured instead of Sajid Iqbal might be due to inadvertence and was rightly corrected as the injury 'on the person of Sajid Iqbal was neither self-inflicted nor was caused by friendly hands. The presence of Munawar Hussain, P.W.9 and complainant Muzaffar Hussain, P.W.8 at the spot has also been established and their statements are confidence-inspiring. Presence of Sajid Iqbal at the spot cannot be doubted.
23. He was injured in the same occurrence. The plea of the accused was that Sajid Iqbal was with the deceased and he himself inflicted injuries on the deceased and murdered him, shows that presence of Sajid Iqbal has been admitted. The accused were arrested on the very next day. They were produced by two respectable before the Investigating Officer a day after i,e, on 17-9-1993 they led to the recovery of blood-stained daggers used by them in commission of the crime. They never objected for unfair investigation or their false involvement or agitated the matter before any higher police officials which also supports the prosecution version as true. The ocular account has been further corroborated by medical evidence. The complainant or the P.Ws. Have no previous enmity with the appellant/acCused for false involvement or substitution by letting of the real culprits. We also do not find any conflict in medical evidence and the ocular account. The complainant was not cross-examined on this score as at what time they had taken their supper. According to the post- mortem examination the stomach of the deceased was full with digested food and he might have taken his meal about 2/3 hours before. The motive alleged by the prosecution has also been established by the prosecution witnesses.
24. ' After deep appraisal of the evidence, we are convinced that the prosecution case has been established against the accused/appellants beyond any shadow of doubt and do not find any reason to interfere in the conviction recorded against them or the sentence awarded. Resultantly, Criminal Appeal No,450 of 1997 filed by the appellant is dismissed having no force. His conviction and sentence is maintained. Death sentence awarded to Muhammad Arif, appellant is C confirmed. As regards Criminal Revision No,366 of 1997 filed by the complainant for enhancement of sentence of Muhammad Afzal, since he had not caused fatal blow on the deceased so has been rightly awarded lesser punishment, therefore, we do not find any reason for enhancement of his sentence. The same is also dismissed having no force.
25. ' Murder reference is answered in affirmative.