1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No.391 of 1985, Murder Reference No. 179 of 1985 and connected Criminal Revision No. 219 of 1986 filed by Ahmad complainant against acquittal of Muhammad Khan co‑accused arise from the judgment of learned Additional Sessions Judge, Sargodha whereby he on 16‑6‑1985 while acquitting Muhammad Khan co‑accused, convicted Nasrullah alias Nasra (18) for the murder of Muhammad Akram and sentenced him to death and a fine of Rs.5,000, in default thereof six months' R.I. with the direction that the fine when recovered be paid to the legal heirs of the deceased. We propose to dispose of the three matters through single judgment.

2. The occurrence took place on 20‑12‑1983 at about 11‑30 a.m. in a field in Chak No. 11/M.L. at a distance of 61 miles from Police Station Bhalwal. The F.I.R. Exh.P.D. was lodged by Ahmad, father of the deceased P.W.5 on the same day at 2‑00 p.m. and was recorded by Ahmad Yar, A.S.I. P.W.8.

3. The background of the occurrence was that Dost Muhammad, father of Nasrullah appellant had illicit relations with the niece of Ahmad complainant namely Mst. Sultan Bibi. On the night preceding the day of occurrence, Dost Muhammad was seen in the house of Mst. Sultan Bibi by Muhammad Akram deceased, Ahmad complainant and one Noor. On seeing them Dost Muhammad started running. He was, overtaken by the deceased in the street and was given shoe beating, hence this occurrence.

4. As far the main occurrence, it has been stated that at the eventful time, Muhammad Akram deceased and Ahmad were cutting fodder in the field when Nasrullah appellant armed with a spear and Muhammad Khan, acquitted accused empty‑handed came there. They raised Lalkara. Muhammad Khan caught hold of Ahmad complainant and threw him on the ground. In the meantime. Nasrullah appellant gave a blow on the neck of Muhammad Akram. The occurrence was seen by Ahmad P.W.5, 14anzoor P.W.6 and Allah Yar P.W.10. Muhammad Akram succumbed to the injuries on the spot. Nasrullah appellant and Muhammad Khan made good their escape. On 20‑12‑1983 at 9‑00 a.m. Dr. Muhammad Rafi Ullah P.W.7 conducted post‑mortem examination on the dead body of Muhammad Akram and found following injury:‑- "A stab wound over the front of the neck just to the right of middle line 31 x 11 x 4 c.m. deep with slightly serrated margine. The wound was oblique in direction going from right to the left penetrating the trachia from the third tracheal ring to the 8th tracheal ring, left common artery and internal jugular main of left side." In his opinion, the death was due to shock and haemorrhage resulting from injury No.1 which was caused by sharp‑edged weapon and was sufficient to cause death in the ordinary course of nature.

6. On 28‑12‑1983 Nasrullah appellant was arrested by Zulfiqar Ali Khan Inspector P.W.11. On 5‑1‑1984 he led to the recovery of blood‑stained spear Exh.P.3 from his cattle‑shed which was taken into possession vide memo. Exh.P. C. attested by Muhammad Ramzan P.W.4, Allah Yar P.W.10 and Zulfiqar Ali Khan, Inspector, P.W.11. Serologist Report Exh.P.M. reveals that spear Exh.P.3 was stained r with human blood.

7. To prove its case, prosecution examined 11 witnesses. Ahmad P.W.5, Manzoor P.W.6 and Allah Yar P.W.10 have given the ocular account of the occurrence. They claim to have seen the appellant causing spear blow on the neck of Muhammad Akram deceased. They stated that Muhammad Khan co‑accused was empty‑handed and had caught hold of the complainant during the occurrence. Ahmad P.W.5 has also deposed about the motive of the appellant to do away with the deceased. Muhammad Ramzan P.W.4 and Allah Yar P.W.10 have stated that the appellant had got recovered blood‑stained spear Exh.P.3 in their presence. Dr. Muhammad Rafi Ullah P.W.7 has proved the post‑mortem examination report of Muhammad Akram deceased. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr, P. C. the appellant denied all the incriminating circumstances. He raised the plea of false implication. He did not produce any witness in defence. He also declined to give evidence on oath in disproof of the charge against him.

9. The learned trial Court gave benefit of doubt to Muhammad Khan co‑accused and while believing motive, ocular evidence, medical evidence and the recovery of blood‑stained spear Exh.P.3 from the appellant, has convicted and sentenced him as stated above.

10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that the eye‑witnesses being closely related to the deceased and their evidence having already been disbelieved to the extent of Muhammad Khan co‑accused, are not reliable witnesses and that the recovery of spear from the appellant is doubtful. In the alternative, the learned counsel requested for the reduction in sentence. The learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the complainant /petitioner contended that since, in the circumstances of the case, Muhammad Khan had come alongwith, Nasrullah appellant and had caught hold of Ahmad P.W. at the time of occurrence in order to disable him to rescue his son Muhammad Akram, therefore, he was constructively liable for the murder of the y deceased and as such has been acquitted without any legal justification.

11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statement of the appellant and acquitted accused Muhammad Khan recorded under section 342, Cr.P.C. and circumstances appearing in the case, with care. We have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that the occurrence took place in the light of the day. The appellant and Muhammad Khan acquitted accused were previously known to Ahmad P.W.5, Manzoor P.W.6 and Allah Yar P.W.10. The statements of the three eye‑witnesses cannot be discarded on the ground of their relationship with the deceased. They have given plausible cause of their presence on the spot at they time of occurrence. There is no doubt that they were in a position to identify the assailants. They were subjected to lengthy cross-examination but nothing damaging their integrity and veracity could be elicited. The statements made by them are in consonance with the probabilities and fit in with the rest of the evidence. The statements made by them do not suffer from infirmities such as material contra?dictions, major discrepancies or dishonest improvements. They have not been disbelieved to the extent of Muhammad Khan co‑accused as the latter has simply been given benefit of doubt as his case was quite distinguishable. He neither caused any injury to the deceased nor had even caught hold of the deceased. The names of the eye?witnesses are mentioned in the promptly lodged F.I.R. The occurrence took place at 11 a.m. on 20‑12‑1983 and the F.I.R. was lodged after 2 hours on the same day. There is nothing in evidence to show that the F.I.R. was in fact recorded after preliminary investigation. The promptitude with which the F.I.R. was lodged excludes the chances of procuring complainant or the eye‑witnesses. Their statements are further supported by the recovery of blood‑stained spear from the appellant. Muhammad Ramzan P.W.4 had no animosity against the appellant. The mere fact that he is related to the complainant, is not ground to discard his evidence which otherwise seems to be convincing The mere fact that Lambardar and Chowkidar of the village were not associated with the investigation at the time of recovery does not detract his statement from correctness. Allah Yar P.W.10 has already been found reliable by us. Zulfiqar Ali Khan Inspector had no reason to plant spear P.3 on the appellant. The statement of Zulfiqar Ali Khan, S.H.O. should not be disbelieved because of the office he holds. The appellant has not been able to rebut prosecution case or the evidence produced against him. The trial Court has applied its conscious mind to the evidence and circumstances of the case and has given sound and cogent reasons for believing the prosecution evidence. For all these reasons we are convinced that the trial Court has rightly convicted Nasrullah allas Nasra appellant for the murder of Muhammad Akram.

12. This brings us to the question of sentence. Since there is wide difference between life and death so we have considered this question with utmost care on our part. We find that there are mitigating, circumstances in favour of the appellant for lesser penalty inasmuch as Muhammad Akram deceased had given shoe beating to his (appellant father on the night preceding the day of occurrence. We however, find that adequate compensation to the legal heirs of the deceased have not been awarded. The trial Court simply directed that the fine of Rs.5,000 when recovered, be paid to the legal heirs of the deceased. After giving notice to the appellant as to why the fine be not enhanced we have heard the learned counsel for the appellant on the point. He has no objection to the enhancement of amount of fine. So the fine of Rs.5,000 awarded by the trial Court is enhanced to Rs.20,000 or it default thereof two years' R.I.

13. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction of the appellant under section 302, P. P. C., the appeal is dismissed. The sentence of death is altered to imprisonment for life and a fine of Rs.20,000 or in default, two years' R.I. with the direction that the fine, when recovered, be paid to the legal heirs of the deceased The connected revision automatically fails. DEATH SENTENCE IS NOT CONFIRMED. M.Y.H./N‑115/L???????????????????????????????????????????????????????? Appeal partly accepted.