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Criminal Appeal No.129 and Murder Reference No.70 of 1985, heard on 23rd May, 1987.

---S.302--Presence of eye-witness established by fact of blood stains on his clothes and mention of his name in statement of complainant which was recorded soon after occurrence--Testimony of eye-witnesses possessing weight for reason that they had no. animosity with accused--Infliction of injuries admitted by accused--Nothing available in statement of accused which could bring his case under any exception of S.300, Penal Code, for holding that accused was liable for some offence other than offence under S.302, Penal Code--Prosecution, held, succeeded in proving case against accused--Conviction maintained.

---S.302--Sentence--Motive alleged by prosecution not enough and logical--Sentence of death altered to imprisonment for life in circumstances.

---S.544-A--Penal Code (XLV of 1860), S.302--Compensation Accused not a man of means and doing a labour type of job--Amount of compensation to be paid to heirs of deceased reduced.--[Compensation].

Nusratullah for Appellant.

Kh. Hafeezullah for the State.

Date of hearing: 23rd May, 1987.

--Muhammad Aslam, aged 19 years, was tried by Sessions Judge, Gujranwala, along with his brother Muhammad Akram, for having murdered Muhammad Ilyas, aged 22 years, on 1-10-1983, at 3.30 p.m. on Katcha Mian Sansi Road, Gujranwala, near the corner of street known as Majeedwali Street. The learned trial Judge found him guilty under sexton 302 PPC, convicted him accordingly and sentenced him to death, plus to pay a fine of Rs.5,000, in default whereof to undergo R.I. for two years. He has also been directed to pay a sum of Rs.3,000 as compensation to the heirs of the deceased, in default whereof to further undergo R.I. for six months, vide judgment dated 14-2-1985.

Muhammad Akram co-accused was acquitted vide the same judgment.

2. The convict has filed appeal. The reference made by the trial Judge for confirmation of death sentence is also before us. Both the matters are being disposed of by the ensuing judgment.

3. FIR (Ex. PF) was registered at Police Station Kotwali, Gujranwala, on 1-10-1983, at 5.20 p.m. by Abdul Hameed, Naib MHC (PW 6), on receipt of statement (Ex. PH) of Muhammad Abbas (PW 8), recorded by Khushi Muhammad, ASI (PW 11) at 5 p.m. in DHQ Hospital, Gujranwala.

4. According to the FIR, the complainant was standing in front of the main gate of his Karkhana. It was 3.30 p.m. Muhammad Ilyas, his deceased brother, was returning from the bazar, after collecting sale money from the shopkeepers. When he reached the corner of the street, appellant armed with a Chhuri, accompanied by Muhammad Akratn, his brother, empty handed, appeared there and ran towards the deceased. Muhammad Akram after giving a Lalkara that Ilyas should not escape today, caught him from behind. Muhammad Aslam appellant started giving Chhuri blows to him. The first blow struck the deceased on the right side of the armpit, under the ribs. The second blow hit the deceased on the right elbow. Thereafter, he was given injuries on the wrist, right and left thighs. Muhammad Shamshad (PW 9) and given up PWs Muhammad Shafiq and Muhammad Afzal reached the spot on the noise raised by the complainant and witnessed the occurrence. The assailants ran away raising Lalkaras. Muhammad Ilyas was taken to DHQ Hospital, Gujranwala, where he died while being attended to by the doctor.

Motive for the occurrence mentioned in the FIR is that 3/4 years prior to the occurrence, Muhammad Ilyas deceased had quarrelled with Zulfiqar, a brother of the appellant and acquitted accused. Muhammad Ilyas had given him Chhuri blows, as a result of which a case under section 307 PPC was registered. Although that case had ended in compromise, but the accused are alleged to have not forgiven and forgotten the matter.

5. Khushi Muhammad, ASI (PW 11), after recording the statement (EX.PH), despatched the dead body for post-mortem examination, after preparing the inquest report (Ex. PM) and injury statement (Ex .PN). Thereafter, he proceeded to the spot, wherefrom he collected blood-stained earth vide memo. Ex. PK. Blood-stained shirt (P.4) and blood-stained Dhoti (P.5), worn by Muhammad Abbas complainant, were taken into possession by the ASI on the same day, after having got those removed from his person, vide memo. Ex.PJ/1. Agreement deed (Ex.PL), which was stained with blood, was also taken into possession by the ASI on 4-10-1983, on production by Muhammad Abbas complainant, vide memo. Ex.PL/1.

The appellant was arrested on 5-10-1983. On the same day, he led to the recovery of blood-stained Chhuri (P.3) from an abandoned Ihata near Main Sansi Road, after digging the earth. It was taken into possession vide memo. Ex.PD.

After completion of necessary investigation, challan was put to Court.

6. At the trial prosecution examined eleven witnesses in all.

Dr. Khalid Mahmood, who had medically examined Muhammad I1yas during his lifetime on 1-10-1983 at 4 p.m. appeared as PW-1. He noted following injuries on the person of Ilyas:-

(1) Incised wound, 5 c.m. x 2 c.m. x skin deep on the back of right elbow.

(2) Incised wound, 4 c.m. x 2 c.m: x skin deep on the back of right elbow, close to injury No.l.

(3) Incised wound, 1 c.m. x c.m. x skin deep on radial side of right wrist.

(4) Incised wound, 11 c.m. x 5 c.m. x going deep on the right axilla, cutting the axillary vessels.

(5) Incised wound, 3 c.m. x 2 c.m. x muscle deep on front lower part left side.

(6) Incised wound, 2 c.m. x 1/2 c.m. x skin deep on the outer upper part right thigh.

(7) Abrasion, 3 c.m. x 2 c.m. on the right illiac crest.

Injuries 1 to 6 were opined to have been caused by a sharp-edged weapon, while injury No.7 was opined to have been caused by a blunt weapon.

The condition of the patient was serious and he was under severe shock at the time of medical examination.

The same doctor had performed the autopsy on the body of Ilyas on the following day at 11 a.m. He had noted the same injuries as found by him at the time of medical examination on 1-10-1983. Big blood vessels in right Axilla under injury No.4 were found cut.

According to the opinion of the doctor, the deceased had died as a result of shock and haemorrhage, resulting from injury No.4.

During cross-examination, the doctor admitted that the name and address of the person accompanying the injured was not mentioned in the medico-legal report of Muhammad Ilyas, in the column meant for that.

7. The ocular account was deposed to by Muhammad Abbas complainant (PW 8) and Muhammad Shamshad (PW 9).

Muhammad Abbas re-narrated the facts given by him in. the FIR. He also stated about the police having taken into possession his blood-stained clothes, i.e. shirt (P.4) and Dhoti (P.5). In cross examination, he admitted that he had been engaged to Najuma, daughter of Muhammad Sharif, maternal uncle of appellant 11 years before the occurrence, but the engagement was broken. He also stated that appellant Aslam, who was working with some one else had obtained Rs.2200 as advance from Ilyas deceased to work with him in his factory, eight or ten days before the occurrence, for which a written agreement was executed. He added that the appellant had neither turned up to work in the factory of the deceased, nor had returned the advance money. He denied the suggestion that he had not witnessed the occurrence and that the deceased had caught the appellant when he was going to meet his maternal uncle Sharif and there during scuffle Aslam appellant had picked up a piece of scrap and had waived the same, in order to defend himself and the deceased had suffered injuries, as a result of the waiving of piece of scrap.

Muhammad Shamshad (PW 9) corroborated the statement made by PW 8. During cross-examination, he admitted that he was real uncle of the deceased and was living at a distance from the place of occurrence. While answering a question during cross-examination, he stated that Abbas PW had reached the place of occurrence when the deceased had fallen on the ground.

Muhammad Shafiq (PW 4) deposed about having witnessed the recovery of Chhuri, at the instance of the appellant and his statement in this regard is corroborated by Khushi Muhammad, ASI (PW 11).

Muhammad Anwar, father of the deceased appeared as PW 10 and deposed about agreement deed (Ex.PL). In cross-examination, he deposed that the agreement was executed In his presence and the deceased had paid the advance money to the appellant in his presence. He also stated that the deceased had been insisting that the appellant should join his factory, but the appellant had neither joined his factory, nor had returned the advance.

8. The appellant during his statement under section 342, Cr.P.C. admitted about the end of 307 PPC case registered against the deceased, for injuries suffered by Zulfiqar, through compromise. He also admitted that he had received Rs.2200 as advance from the deceased. He added that he could not join the service of the deceased, as he was not relieved by his former employer. He denied to have led to the recovery of the Chhuri (P.3). While refuting the ocular account of the occurrence, he put up his own version. In answer to the question, "Why this case against you and why PWs have deposed against you ", he stated as follows:-

"The PWs have deposed because of their close relationship with the deceased and complainant, and due to enmity with me. As I have not returned the money and had not joined the work, therefore, they had grudge against me. None of the PWs was present at the spot at the time of occurrence.

In reality, I was coming to see my maternal uncle Sharif in routine. He lives in the neighbourhood of the factory of Ilyas deceased. When I was just crossing the factory of Dr. Taj Din, Ilyas deceased came out from the factory of Dr. Taj Din PW. He caught hold of me in front of the main gate of the factory. He began to give me blows by fists and I also paid him in the same coin. He had caught me because I had not returned him the advance money and had not joined the work with him. I and Ilyas deceased fell down on the ground near the factory of Dr.Taj Din. The scraps (Katran) of metalled sheet were lying there. I picked up one Katran, and waived it towards Ilyas to ward off his assault and during this process, he sustained 1/2 injuries from my hand. My brother Akram co-accused in this case was not there. I am a poor man and I have been falsely implicated in this case by the complainant in connivance with the police."

9. Learned counsel for the appellant contended that the prosecution have failed to prove the motive for the occurrence, that the statements of the eye-witnesses, who are related and interested, do not inspire confidence, that the evidence of recovery of Chhuri (P.3) is also not worth reliance, as the only witness produced at the trial to have attested the recovery is related to the complainant and his statement is widely discrepant with that of Khushi Muhammad, ASI (PW 11). Learned counsel argued that the version put forth by the appellant seems to be nearer the truth and worth acting upon than, the prosecution version. Lastly, learned counsel contended that in view of the sudden nature of occurrence and keeping in view the age of the appellant at the time of occurrence, the sentence of death awarded to the appellant is excessive and not proportionate to the offence committed by him.

10. Learned counsel for the State defended the judgment of the trial Court.

11. The incident of quarrel between the deceased and Zulfiqar, a brother of the appellant, which had resulted in registration of case under section 307 PPC against the deceased, mentioned in the FIR as motive for the occurrence, had, even according to the prosecution, ended in compromise, within five months of the occurrence. The incident had taken place three years before the present occurrence. During all this period nothing untoward had happened between the parties. Rather, it appears that the parties had overcome that unhappiness. This we have gathered from the fact that the appellant had entered into an agreement for serving with the deceased and had received a sum of Rs.2200 from the deceased for working with him. This agreement was in writing. The same is admitted by the appellant as well. Had they still been surging under the impulse of hatred as a result of the first incident, they would not have entered into such an agreement.

We, therefore, find ourselves in complete agreement with the learned counsel for the appellant that the motive set up in the FIR was not enough for the happening of this occurrence. '

However, the prosecution did come up with another motive by disclosing that the deceased had advanced a sum of Rs.2200 to the appellant for working with him and the appellant had neither joined his service nor had returned the advance money. It has also been stated that he had submitted an application to the S.P. against the appellant. The appellant also did not deny this fact during trial while snaking statement under section 342, Cr.P.C. Since the fact of the agreement having been entered into and the same having not been complied with, is accepted by both the parties, we do not feel any difficulty in concluding that the occurrence resulted due to non-compliance of that agreement.

12. The argument of the learned counsel for the appellant that the narration of occurrence given by Abbas (PW 8) should not be believed, in view of the statement made by Shamshad PW.9 that he had reached the spot after the deceased had fallen on the ground, has not impressed us for two reasons. First, that the learned counsel for the appellant in the second breath had argued that Shamshad PW.9 had not witnessed the occurrence and so his testimony was not worth reliance. If he had not witnessed the occurrence, then his statement that Abbas PW had come a little late at the scene would be of no consequence. Secondly, Shamshad PW did not elaborate that Abbas had not seen the infliction of injuries. He might have been a little bit away from the place where the deceased had fallen and might have witnessed the occurrence from that place.

The presence on the spot of Muhammad Abbas (PW 8) even otherwise stands proved from the fact that his blood-stained clothes, i.e. shirt (P.4) and Dhoti (P.5), were taken into possession by the Investigating Officer on the very day of occurrence, soon after the registration of the case. If he had not witnessed the infliction of injuries to his deceased brother and had not attended to him, his clothes would not have been smeared with blood. The presence of bloodstains on his clothes, therefore, not only gives support to his testimony of having witnessed the occurrence, but also lends support to his presence in the hospital along with the deceased.

The other ground on the basis of which learned counsel wanted us to discard the testimonies of the -eye-witnesses is, that relevant column of MLR (Ex. PA) of the deceased., prepared by Dr. Khalid Mahmood (PW 1), did not contain the name of any relative, who accompanied the injured td the hospital. The stance of the learned counsel was that had anyone of them witnessed the occurrence, they would have definitely accompanied the deceased to the hospital and name of someone of them must have been noted by the doctor in the relevant column.

Although apparently, the argument seems to possess weight, yet in the circumstances of this case, we do not feel inclined to rule out the presence of the eye-witnesses at the spot merely on this ground. The reason being that the deceased of this case had died while being attended to, by the doctor, who had medically examined him. Obviously the doctor would have prepared Ex. PA, after having fully attended to the deceased. What appears is that the witnesses lost all interest in the MLR on the expiry of their relative and so they must not have been available to the doctor, while preparing Ex. PA.

13. The argument of the learned counsel for discarding the statement of Shamshad PW on the ground that he was residing at a place away from the place of occurrence, has not impressed us, keeping in view the fact that he had given plausible reasons to be present at the place of occurrence. His name is mentioned in the statement of the complainant (Ex.PH), which was recorded soon after the occurrence. It cannot be visualized that the complainant could have taken the risk of putting his name as an eye-witness, if he had not witnessed the occurrence, without getting his consent, after contact, which in so short time, he could not have done.

14. The testimonies of these two witnesses even otherwise possess weight for the reason that they had no animosity with the appellant. The only earlier incident, which had taken place between the families was the case under section 307 PPC, but that had ended in compromise some 21 years before the present occurrence.

15. The evidence of recovery of Chhuri (P.3) is not only discrepant, but has also come from a witness, who apart .from being a chance witness was interested also, being father-in-law of the complainant. In fact, we feel more inclined to discard his statement in view of wide and important discrepancies in his statement and the statement of the Investigating officer, than his relationship. In this view of the matter, we find no difficulty to grant the contention of learned counsel for the appellant that the evidence of recovery of Chhuri (P.3) from the appellant is not worth reliance.

16. We have gone through the statement of the appellant under section 342, Cr.P.C. in order to examine the contention of the learned counsel for the appellant that the version put forth by the appellant seemed more 'plausible and nearer the truth than the version of the prosecution.

17. The infliction of injuries and the murder resulting therefrom has been admitted by the appellant. No case stands made out from the statement of the appellant for bringing his case under any Exception of section 300 PPC, for holding that the appellant was liable for some other offence than the offence under section 302 PPC. His stance, is that they firstly exchanged abuses, followed by exchange of fist blows, whereafter, as a result of grappling, they had fallen down and then he had given injuries to the deceased. It is not his case that the deceased was armed with anything, or had tried to inflict injury with anything, after fall, or had tried to strangulate him. The version put forth by the appellant thus does not take him anywhere.

18. As a result of the analysis of the prosecution evidence, the defence version and the contentions raised by the learned counsel for the parties, we are of the clear view that the prosecution had succeeded in proving the commission of murder by the appellant. His conviction under section 302 PPC is, therefore, maintained.

However, considering the fact that the motive alleged by the prosecution has not been found to be enough and logical, we feel that lesser sentence provided under section 302 PPC for murder, will meet the ends of justice in this case. The sentence of death awarded to the appellant is, therefore, altered to imprisonment for life. Sentence of fine is, however, maintained.

The appellant shall be given the benefit of the provisions of section 382-B, Cr.P.C.

There is nothing on record that the appellant was a man of means and was in a position to pay substantial amount as compensation to the heirs of the deceased. In fact, it is on record that the appellant was doing labour type of job in the factory. Considering his financial position, we reduce the amount of compensation, to be paid to the heirs of the deceased, from Rs.30,000 to Rs.10,000. For non-payment of amount of compensation, he will undergo S.I. for six months.

M. Y. H./M-242/L Appeal partly accepted.

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