1. ' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been preferred against the judgment dated 1-10-1998 passed by a Division Bench of Lahore High Court, Bhawalpur Bench, Bahawalpur in Criminal Appeal No,147 of 1996 and Murder Reference No,23 of 1996.
2. ' Muhammad Tariq-appellant and two others, namely Ishtiaqur Rehman and Tasaddiq Hussain, were tried by learned Sessions Judge, Bahawalpur, for the charge under section 302/34, P.P.C. And 324/34, P.P.C. For committing murder of Muhammad Anees and causing murderous assault upon Umer Farooq. The learned trial Judge having found the appellant and his above named co- accused guilty of the chargesconvicted and sentenced them vide judgment dated 17-12-1996 in the following manner:--
(a) Muhammad Tariq, appellant, was sentenced to death whereasIshtiaqur Rehman and Tasaddiq Hussain his co-accused, were sentenced to imprisonment for life with fine of Rs,20,000 each and in default of payment of fine to undergo R.I. For six months each for the charge under section 302/34, P.P.C.
(b) The appellant was awarded R.I. For 10 years with fine of Rs,20,000 under section 324, P.P.C. And in default of payment of fine was directed to undergo S.I. For six months. The co-accused of the appellant were sentenced to five years' R.I. Each with fine of Rs,10,000 each under section 324, P.P.C.
3. And in default of payment of fine they were directed to undergo, S.I. For six months each.
4. ' The appellant and his co-accused through Criminal Appeal No,147 of 1996 challenged their conviction and sentences in the Lahore High Court, Bahawalpur Bench, whereas the learned Sessions Judge, Bahawalpur sent the Murder Reference bearing No,23 of 1996 under section 374, Cr.P.C. To the High Court for confirmation of the sentence of death awarded to the appellant. The learned Division Bench of Lahore High Court while maintaining the conviction of the present appellant both under sections 302, P.P.C. And 324, P.P.C. Dismissed his appeal and acquitted Tassadiq Hussain and Ishtiaqur Rehman, co-accused of the appellant, from all the charges vide the judgment under challenge.
5. ' The relevant facts as contained in the complaint (Exh.P.A./1) lodged by Muhammad Mubeen, on the basis of which the case was registered against the appellant and his co-accused at Police Station Donga Bonga, District Bahawalnagar, are that Muhammad Saghir and Rafaqat, the close relatives of Muhammad Mubeen complainant, were in possession of an Ahatta measuring 16 Marlas whereas the accused claiming themselves the owner of Ahatta, were resisting to the construction of boundary wall of said Ahatta and the appellant on 24-3-1994 at 4-00 p.m. Armed with .12 double-barrel gun with the help of his co-accused (since acquitted), who were armed with Lathees while coming to the scene of occurrence committed aggression upon the complainant party and while raising the Lalkara challenged Umer Farooq who was sitting outside his shop to recite Kalma Sharif to die and simultaneously fired at him hitting on his left thigh. Umer Farooq ran into inside the, house adjoining to the shop to take shelter, whereas the accused took position in wheat crop field in the nearby and meanwhile. Muhammad Anees, real brother of Umer Farooq, who was coming back from school on a bicycle arrived there and appellant also fired at him.
6. ' Muhammad Anees in injured condition reached in the disputed Ahatta by crawling and succumbed to the injuries. The fateful occurrence was also witnessed by Abdur Rauf and Muhammad Yousaf, Akhtar Hussain, Inspector/S.H.O. (P.W.11) on reaching at the spot prepared the inquest report and the, injury statement of the deceased, dispatched the dead body for post- mortem examination and secured blood-stained earth and five crime empties from the place of occurrence. The Investigating Officer then recording the statements of witnesses and after preparing the injury statement of Umer Farooq, got him medically examined. Later he took into possession the last-worn clothes of the deceased, produced before him by a Constable. The Investigating Officer also took into possession the licensed gun (P.6) produced by the appellant before him at the time of arrest on 29-3-1994. The parcels of the crime empties, blood-stained earth and the weapon of offence were kept in Malkhana of the police station and subsequently were dispatched to the concerned offices for expert opinion. Dr. Muhammad Mukarram, P.W.3 who conducted medical examination of Umer Farooq traced following injuries on his person:--
(1) 1 c.m. x 1 c.m. Ovel in shape punctured wound on the anterolateral suface of the left thigh.
7. Margin was inverted. Bleed profusely. Burning around the wound was present. Depth not probed.
8. Injury was 18 c.m. Above the left knee-joint. This was the wound of entry.
(2) 1 c.m. x 1 c.m. An over shape punctured wound on the posterior surface of the left thigh at the same level. Margin of the wound was everted. Bleed profusely. This was an exit wound.
9. ' Dr. Rao Muhammad Iqbal, P.W.4, conducted the post-mortem examination on the dead body of Muhammad Anees deceased on 25-3-1994 at 8-00 a.m. And found following injuries on his person:-- "(1) A rounded shape wound 0.8 x 0.8 c.m. Over the left side ofsternum 8 c.m. Medial and above the left nipple of chest.
(2) Only clotted blood was present on the cheek.
(3) Blood was present in both the nostrils. Corresponding tear was present over the left side of shirt."
10. ' Muhammad Mubeen (P.W.5) complainant, Umer Farooq the injured witness (P.W.6) and Abdul Rauf (P.W.7) while repeating the prosecution story as narrated in the F.I.R. In their statements at the trial supported the charge against the appellant. The evidence of Umer Farooq was confined only to the extent of first part of occurrence in which he was injured. Muhammad Ashraf (P.W.8) delivered the sealed parcels in the office of Chemical Examiner and Forensic Science Laboratory,Lahore, whereas Abdul Rashid (P.W.9) and Muhammad Saghir (P.W.10) were examined as recovery witnesses. Akhtar Hussain, Inspector/S.H.O. (P.W.11) investigated the ease and submitted challan and Hafiz Abbas (P.W.12) prepared the site-plan of the place of occufrence. The prosecution after having tendered the report of Chemical Examiner, Serologist and Forensic Science Laboratory in evidence closed the prosecution case.
11. ' The appellant in his statement under section 342, Cr.P.C. While denying the allegation pleaded false implication. However, he did not make a statement under section 340(2), Cr.P.C. Or produced any evidence in his defence.
12. ' Vide order dated 16-7-1999, leave was granted in this appeal asunder:-- "Learned counsel has argued that there is material conflict between the medical evidence and the ocular account, inasmuch as, according to him, there is burning on the wound of Umer Farooq, P.W.
13. According to the medical report whereas the ocular account demonstrates that the shot was fired by the accused from a distance of about 200 yards. It is added that two out of three accused namely Tassadaq Hussain and Ishtiaq-ur Rehman have been acquitted by the High Court by discarding the ocular account which has been relied upon to convict and sentence the petitioner.
14. He further submits that the recovery of the empty was effected on 24-3-1994 while the weapon of offence namely, the gun was recovered on 29-3-1994 i.e, after the delay of 5 days. According to the learned counsel, this type of recovery is of no avail to the case of the petitioner.
(2) The points raised, inter alia need consideration. Leave to appeal is, therefore, granted."
15. ' Learned counsel for appellant has raised the following contentions in support of this appeal:--
(a) That the possession of Ahatta in question was not with complainant party and appellant had no such dispute with the deceased and Umer Farooq, therefore, he had no motive to commit the crime. The appellant had a dispute of Ahatta with Muhammad Saghir and Rafaqat but none of them was present at the spot.
(b) That the place of occurrence was at a reasonable distance from the Ahatta in question and the boundary wall was not being constructed to suggest that the occurrence was the result of dispute over its construction.
(c) That the circumstances of the case would reasonably speak that .The deceased and Umer Farooq sustained injuries at the hands of unknown assailant during the night and appellant was involved in the case due to the enmity.
(d) That the presence of Abdul Rauf and Muhammad Mubeen P.Ws. At the spot was doubtful as it was not possible for them to witness the whole occurrence, which had taken place at two places with reasonable distance and interval.
(e) That the burning was found on the injuries on the person of Umer Farooq in the medical evidence whereas according to the eye-witnesses he was fired at froth a reasonable distance and this conflict of eye-witnesses account with medical evidence would be a strong circumstance to suggest that it was an unseen occurrence which had not taken place in the manner as stated by the prosecution.
(f) That the discrepancies and contradictions in the prosecution evidence would create reasonable doubt regarding the truthfulness of the prosecution story and therefore, the conviction and sentence was not sustainable.
(g) That the crime empties recovered from the spot on the day of occurrence were dispatched after the recovery of gun from the accused. It is in the statement of P.W.8 that the parcels of gun and empties were sent together to the concerned office and'thus the evidence of recovery would lose its evidentiary value, therefore, the positive report regarding matching of crime empties with the licensed gun recovered from the appellant would be of no consequence.
16. ' Learned counsel appearing on behalf of the State, on the other hand, has contended that it is a broad daylight occurrence in which Umer Farooq sustained injuries and Muhammad Anees, a young boy of 18 years, lost his life at the hand of appellant. The learned counsel added that the presence of Umer Farooq being beyond doubt he was the natural witness of the occurrence.
17. ' We have heard the learned counsel for the parties at length and also perused the record with their help. It is not denied that the dispute relating to the ownership of Ahatta existed between the parties and criminal case was also registered against Muhammad Mubeen at the instance of Tasaddaq Hussain. Muhammad Mubeen is maternal, uncle of Umer Farooq and Muhammad Anees (deceased) the real brothers and Muhammad Saghir is their cousin. The shop of Umer Farooq where he was fired at is 'situated at a short distance from the disputed Ahatta andMuhammad Anees was attacked when he was passing through the field near the said Ahatta. Obviously Umer Farooq could not see the second part of occurrence in which Muhammad Anees was caused fire- arm injury as he on sustaining the injury at the hand of appellant, ran inside the home, However, Muhammad Mubeen and Abdur Rauf claimed to have witnessed the whole occurrence and stated that Umer Farooq and Muhammad Anees deceased were caused injuries as a result of separate shots fired by the appellant. The medical evidence revealed that Muhammad Anees sustained sole injury on very sensitive part of the body which caused damage to blood vessels and chest. Umer Farooq was caused injury on thigh and keeping in view the directions and distance of deceased from Umer Farooq, it can safely be said that the injuries on their person were not result of single shot. The existence of burning on the injury of Umer Farooq would show that he was fired at from close range whereas the deceased was fired at from some distance and the circumstances show that deceased reached there by chance and appellant had no knowledge that deceased would be arriving at the spot and probably the deceased would not be target of appellant rather he while passing on the bicycle was hit as a result of firing of the appellant. Be that as it may, we having scrutinized the evidence, are of the view that no exception can be taken to the finding of guilt of appellant arrived at by the trial Court and upheld by the High Court.
18. However, while taking into consideration the circumstances under which Muhammad Anees sustained injury coupled with the fact that at the time of fateful occurrence the Ahatta which was bone of contention between the parties was in possession of the complainant and no unpleasant incident happened before the occurrence, it can be said that immediate cause of fateful occurrence remained shrouded in mistery. In the given circumstances, we are of the view that the sentence of imprisonment for life would be adequate to meet the ends of justice. The learned trial Judge without giving effect to the provisions of section 544-A, Cr.P.C. Imposed the fine upon the appellant which was not legal. Therefore, we while setting aside the fine direct that the appellant shall pay an amount of rupees one lac as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
19. For the foregoing reasons we convert the sentence of death awarded to the appellant into the imprisonment for life. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C. The sentence under section 324, P.P,.C. Is maintained which shall run concurrently with the sentence of life. Imprisonment under section 302, P.P.C. With the above modification in the sentence, this appeal is dismissed.