1989 P Cr (PLP)

(5) An incised wound 2" x 1" into chest cavity deep. Air was coming out in the right axillary line 3‑1/2" above the right illiac crest. (6) An incised wound 1‑3/4" x 3/4" x chest cavity deep, on the right side of the chest in the auxiliary line 8" above the illiac crest. Air was coming out from the wound. (7) An incised wound 3/4" x 1/4" x skin deep on the left auxillary line 6‑1/2" above the illiac crest. (8) An incised wound 1‑1/4" x 1/2" x muscle deep on the back of left chest 2" below the inferior angle of scapula. (9) An incised wound 2" x 1" x the chest cavity deep, on the back of left chest. Air was coming out 3‑1/2" below the inferior angle of the left scapula. Injuries Nos. 5, 6 and 8 were declared grievous. All injuries were opined to have been caused by a sharp‑edged weapon. He had noted the same injuries in the same sequence at the time of post- mortem examination. According to his opinion, the deceased had died due to shock and haemorrhage, resulting from injuries Nos. 5, 6 and 9 collectively and indi%7dually. He also stated that he had informed the police vide Ruqa (Exh.P.C.) and had confirmed the same on phone that Muhammad Rafiq son of Allah Din was admitted in the hospital in injured condition and that his statement recorded. He also verified the fact of having tendered opinion to the Assistant Commissioner before he recorded the dying declaration of Muhammad Rafiq of being lit to make a statement and of having expressed opinion that Muhammad Rafiq had remained 6t and conscious while making statement.

8. Anwar Ali (P.W.7), Jan Muhammad (P.W.9) and Muhammad Din (P.W.10) deposed the ocular account. All of them stated of having seen Bhola and Meena causig injuries with Khanjars to Muhammad Rafiq on the exhortation of Ashraf (acquitted accused) at 9‑45 p.m. on the day of occurrence. They stated that they could not intervene due to fear. According to them, Anwar Ali, after the occurrence, went to the house of Allah Din, father of Muhammad Rafiq, to inform him about the occurrence, while they had remained there and had accompanied Muhammad Rafiq to the hospital. In spite of lengthy cross -examination, the defence could not elicit anything favourable to Muhammad Yaseen alias Bhola, nor anything was brought on record to prove that anyone of them was related to the deceased. The suggestion made to each of them of having not witnessed the occurrence was denied emphatically by them. Jan Muhammad and Muhammad Din P.Ws. also stated of having witnessed the taking into possession of blood‑stained clothes of the deceased by the S.I. in the hospital and of having witnessed the taking into possession of blood‑stained earth from the spot. Allah Din, father of the deceased, appeared as P.W.3. He stated that Anwar P.W. and one Sher had come to his house and had told him that Muhammad Amin and Yaseen alias Bhola had killed his son Muhammad Rafiq alias Billo with daggers, whereupon he reached the spot and found his son in senses. The son told him on query that the two accused, named above, had killed him, at the instance of Muhammad Ashraf, who was raising Lalkaras that he (deceased) be killed. He added that he removed his son to the hospital, where Assistant Commissioner, Okara came and recorded his statement. The motive for the occurrence given by him was that 7/8 days before the occurrence, his deceased son had quarrelled with one Akbar, a friend of Ashraf (acquitted accused) and that Ashraf had provided a gun to Akbar to murder his son, of which his son had told him before the present occurrence. During cross -examination, he admitted that he was a clerk of Sardar Sultan Ahmad Landlord, but had left his service two years prior to the occurrence. He expressed lack of knowledge about P.Ws. Anwar, Jan Muhammad and Muhammad Din being employees of said Sardar Sultan Ahmad. Most of the cross‑examination conducted on him pertained to strained relationship between the abovenamed Sardar Sultan Ahmad and Ashraf (acquitted accused). He also admitted in cross -examination of having been challaned in certain cases and also being a witness in some cases. He, however, denied the suggestion that he had made a false statement. Mr. Iqbal Ahmad Bossan, Assistant Commissioner, who had recorded the dying declaration (Exh.PA./8) of Muhammad Rafiq, at 11‑40 p.m. on 27‑9‑1980 appeared as P.W.8. He gave the account of having been approached by the S.I. for recording the statement of Muhammad Rafiq, who was admitted in the hospital in critical condition. He stated that the statement was recorded without oath, but it was read out to the deceased and he admitted the same to be correct and had thumb‑marked the same. He also stated that Dr. Muhammad Athar, on query, had opined before the recording of statement, that Muhammad Rafiq was fit to make a statement and that he had given opinion after the statement also that the injured had remained conscious while making the statement. Muhammad Yaqub, S.I., who had investigated the case and arrested the accused, appeared as P.W.11, gave the account of registration of case and the investigation conducted by him. He denied the suggestion that he had implicated the accused falsely in the case at the behest of said Sardar Sultan Ahmad. Muhammad Ali Shah, D.S.P., who had partly investigated the case, was examined as C.W.1. He stated that he forwarded the challan by placing the name of Muhammad Ashraf in column No.2. Although he stated that some persons at the spot had stated before him that Meena was only the real culprit, but he admitted during cross‑examination that neither he had recorded their statements nor had noted in case diaries that Muhammad Yaseen was innocent.

9. Muhammad Yaseen appellant during statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence.

10. Statements of thirteen P.Ws. were recorded at the trial of Muhammad Amin alias Meena. In that‑Dr. Muhammad Athar, who had medically examined the deceased during lifetime on 27‑9‑1980 and had performed autopsy on the dead body on the following day was examined as P.W.12. He gave the same number of injuries, which he had found on the deceased at the time of medical examination during lifetime and at the time of post‑mortem examination that he had given while appearing as P.W.4 in the trial against Muhammad Yaseen. The weapon with which the deceased suffered injuries and the cause of death were also given by him to he the same as given earlier. He also verified of having tendered opinion about fitness of the deceased before making the statement and while making statement. Statements of Muhammad Din, Jan Muhammad and Anwar Ali, who had witnessed the occurrence, were recorded as P.Ws. 2, 3 and 4 respectively. They made similar statements, as they made at the time of trial of Muhammad Yaseen. All of them charged Muhammad Amin alias Meena of having caused injuries to the deceased with a dagger alongwith Yaseen alias Bhola. Nothing particular was brought out during cross‑examination from any of them. Most of the questions and answers were the same as put to them during the trial of Muhammad Yaseen. The dying declaration of Muhammad Rafiq, recorded by Mr. Iqbal Ahmad Bossan, Assistant Commissioner was also tendered in evidence. Munsif Khan, Inspector, who had arrested Muhammad Amin alias Meena as proclaimed offender, was examined as P.W.11. He verified the facts of having arrested Muhammad Amin as proclaimed offender and of having submitted challan to the Court. Mr. Iqbal Ahmad Bossan, A.C., who had recorded the dying declaration of Muhammad Rafiq, appeared as P.W.13. He gave the facts in the same sequence as he had given at the trial of Muhammad Yaseen about recording of statement of Muhammad Rafiq deceased. Allah Din, father of the deceased, appeared as P.W.1. He also made the same statement, which he had made at the trial of Muhammad Yaseen. During cross‑examination nothing particular has been elicited favourable to the accused. Appellant Muhammad Amin alias Meena during statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. 10‑A. We have gone through the evidence with the assistance of the learned counsel for the appellants and have perused the impugned judgments.

11. Before proceeding to adjudicate the contentions of the learned counsel for the appellants in both the appeals, we would like to mention here that Allah Din, father of Muhammad Rafiq deceased, had submitted two separate applications, in each of the appeals filed by two appellants that he had compromised with them and had forgiven them. His statement was recorded on 5‑11‑1988, wherein he reiterated the fact of having compromised with the two appellants and of having forgiven them. He stated that his wife had died before the murder of his son and that the wife of his son had remarried after his murder and that he had no other son or daughter and that the only heirs of the deceased apart from him are three minor children of the deceased, the eldest of whom is now aged 8 years while the youngest is 4 years old. He stated that he had forgiven the appellants in the name of Allah. Learned counsel, for the appellants in both the appeals, did not challenge I the conviction of both of them on merits. The only plea advanced on their behalf is, that since father of the deceased had compromised with them arid had forgiven them, the sentences of death awarded to them may be altered to imprisonment for life and they may be given the benefit of the provisions of section 382‑B, I Cr.P.C.

13. Notwithstanding the fact that learned counsel for both the appellants has not challenged the conviction of any of them on merits, we have examined the record and assessed the prosecution evidence in the light of the statements made by the appellants.

14. The ocular account in this case has been deposed to by three witnesses who are neither related to the deceased nor inimical to any of the appellants. They are independent witnesses by all means. The assertions made at the trial and the suggestions put to the witnesses that Anwar P.W. had not witnessed the occurrence, stand diluted by the statement made by Allah Din father of the deceased that it was Anwar P.W. who had come to inform him about the occurrence and had told him about the appellants having caused injuries to his son and that on going to the spot he had seen his son lying there in injured condition, and that his son had told him that he was given injuries by Yaseen alias Bhola and Muhammad Amin alias Meena (appellant). Muhammad Din and Jan Muhammad P.Ws. were present in this hospital, when the police arrived there. They had witnessed the taking into possession of blood‑stained clothes of the deceased and had attested memo. Exh.P.K. These clothes were removed during lifetime of the deceased. They had accompanied father of the deceased when he had taken him to the hospital from D the spot. They had gone alongwith the S.I. to the spot and had pointed out to him the place of occurrence and had also attested the recovery memo. vide which blood‑stained earth was collected from there. Their claim, therefore, of being present at the time of occurrence cannot be doubted by any means. The suggestions put to them as such that they had not witnessed the occurrence possess no force. The statements of the eye‑witnesses are fully corroborated by the dying declaration of the deceased which was recorded by Mr. Iqbal Ahmad Bossan, Assistant Commissioner. In fact, the deceased made two dying declarations, one E verbally to his father Allah Din, and the other recorded by the Assistant Commissioner. Allah Din while appearing as a witness, narrated the statement made by the deceased to him. The two statements, i.e. the one made to him and the other recorded by the Assistant Commissioner, are corroborative of each other. They were made at two different places with a short interval. In the circumstances, no exception can be taken to the statement recorded by the Assistant Commissioner for any reasons. These two dying declarations are fully corroborative of the ocular account furnished by the eye‑witnesses. The evidence of` motive and the attending circumstances, also are corroborative of the prosecution case. In the circumstances, convictions of both the appellants recorded vide two different judgments under section 302/34. P.P.C. are maintained. The sentences of death awarded to each of the appellants, are however, altered to imprisonment for life, as the parties have compromised, following the rule laid down in Muzaffar Mustafa alias War Ali v. State 1982 S C M R

695. The sentences of fine are maintained. Instead of half, the whole of the fine, on recovery from Yaseen appellant, shall be paid as compensation to the heirs of the deceased. They shall also be given the benefit of the provisions of section 382‑B, Cr.P.C. M.Y.H./M.1243/L Appeal partly allowed.