Raja Muhammad Sabir, J.--Through this appeal appellants have challenged their conviction awarded to them by the learned Additional Sessions Judge, Lahore vide judgment dated 3.7.1997 whereby they were convicted and sentenced to death under Section 302/34 PPC for committing murder of Nazir Ahmad deceased and fine of Rs, 50,000/- each, in default whereof to undergo six months R.I. each. The fine if recovered was directed to be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. They were further convicted and sentenced to 10 years R.I. under Section 324/34 PPC for causing injuries to Abdul Wahid complainant and fine of Rs, 5000/- each, in default whereof to further undergo three months R.I. Both the fines were directed to be recovered as arrears of land revenue. By the same judgment Yousaf son of Sher Muhammad was acquitted of the charges. The learned trial Court has also sent Murder Reference No, 184 of 1997 which is also being disposed of through this judgment.
2. Brief facts of the case as disclosed by Abdul Wahid complainant in the private complaint are that he alongwith his son Nazir deceased was running Bismillah shop at Macca Colony Street No, 9.
On 7.3.1995 at 7.00 p.m. after offering the Maghrab prayer alongwith his brother Haji Abdul Majced was returning to the said shop where. his son Nazir deceased was sitting. There was enough light inside and outside the shop. Six persons, namely, Yaqoob son of Sher Muhammad (died before the institution of private complaint), Murtaza son of Muhammad Yousaf, Razzaq son of Yaqoob, Mushtaq son of Yaqoob, Abbas son of Mushtaq and Yousaf son of Sher Muhammad armed with fire-arms came there on motorcycles. They parked their motorcycles near the shop. Yaqoob raised lalkara that they would take the revenge of the murder of Zulfiqar alias Boochi his son. At the exhortion of Yaqoob, Murtaza fired at Nazir which hit his body. The complainant caught hold of Murtaza from his back in his clasp so that Murtaza should not repeat the fire. Yaqoob fired at the complainant which hit him on his arm. Rest of the accused made indiscriminate firing at him and his son which hit their various parts of the body. The occurrence was witnessed by Abid son of Allah Ditta, Shahid son of Anwar, Abdul Majeed, Amin son of Abdul Karim and Naeem son of Abdul Majeed. The complainant and his son Nazir were removed to the Services Hospital Lahore where Nazir succumbed to the injuries.
The motive for the occurrence was that on 10.8.1993 Yaqoob got registered a criminal case vide FIR No, 170/1993 against him and others regarding the murder of his son Zulfiqar in which he and Arif were discharged and Rashid Ahmad and Khalil Ahmad were convicted.
3. On 7.3.1995 Haji Abdul Hameed brother of complainant got registered case FIR No, 50/1995 under Sections 302/324/148/149 PPC at Police Station Naseerabad Lahore. The local police as well as DSP found the accused guilty and challaned them but On the interference of political high-ups the accused except Razzaq were discharged despite the recovery of firearms and motorcycles.
Feeling dissatisfied from the investigation, Abdul Wahid complainant filed a private complaint (Ex.
PA) against the accused in which the learned trial Court after recording preliminary evidence summoned the accused persons to face the trial under Sections 302/324/148/149 PPC. After their appearance the learned trial Court charge sheeted them to which they did not plead guilty on which the complainant was called upon to produce his evidence and he produced as many as nine witnesses.
4. Abdul Wahid complainant appeared as PW-1 and reiterated the story narrated by him in the private complaint. Abdul Majeed PW-2 and Muhammad Naeem PW-3 supported the complainant.
Mian. Muhammad Anwar brother of the complaintant appeared as PW-4 and deposed about the recoveries of fire-arms etc., from the accused. Abdul Rehman PW-5 is also the witness of recovery of fire-arms from the accused.
Muhammad Ilyas HC No, 7177 who escorted the dead body of the deceased alongwith Amir Ali FC for conducting post-mortem examination appeared as PW-6. He deposed that after the post- mortem examination he handed over to the Investigating Officer one parcel containing led bullet P-10 given to him by the Medical Officer which the Investigating Officer took into his possession vide memo Ex. PK.
Dr. Abid Karim who conducted the post-mortem examination on the dead body of Nazir Ahmad deceased appeared as PW-7 and found as many as seven injuries on his person. According to the doctor Injuries Nos, 1, 2 and 3 are surgical wounds and correspond with operation notes. Injuries Nos, 4, 5, 6 and 7 were caused by fire arm. All are ante-mortem. Cause of death in this case was damage to vital structure in the abdomenal cavity due to injury No, 5 leading to profuse internal haemorrhage and shock which was sufficient to cause death in ordinary course of nature.
Probable time between injury and death cannot be calculated due to treatment in hospitals, between death and post-mortem was 18 to 36 hours. After post-mortem examination dead body alongwith post-mortem report, police papers, x-rays and one sealed bottle having a bullet were handed over to Amir Ali FC No, 9267 and Muhammad Ilyas FC No, 7111. Ex. PL is the correct copy of Post-mortem report and the diagrams are Ex. PL/1-2.
Dr. Zaheer-ud-Din Babar Malik Sajjad appeared as PW-8 and stated that on 7.3.1995 he examined Haji Abdul Wahid. He found the following injuries on his person :-
1. Punctured wound on the posterior aspect of right arm, 8 inch above of olecranan. 5 cm in diameter with irregular margins. There was profused bleedings.
2. A punctured wound on the back of the neck 3 cm to the left of the mid line near the upper medial angle of the scapula.
3. A lacerated wound on the forehead above left eye skin deep wound was bleeding 1 x (1/2) cm.
4 A lacerated wound on the outer aspect of left eye 1 x cm.
According to the doctor Injuries Nos, 1 and 2 were kept under observation. Injury was declared to be re-assessed after 90 days for neurological defecit. Injuries Nos, 3 and 4 were declared as Shajjah Khafifah u/S. 337 PPC. Kind of weapon used was fire-arm. Probable duration of injuries was about half an hour. Ex. PM is the correct carbon copy of the M.L.R. and Ex. PM/1 is the diagram of injuries.
On the same day the same doctor examined Nazir Ahmad son of Haji Abdul Wahid. The patient was pulseless and B.P. less. He found as many as seven injuries on person and was referred to Surgical Special Emergency Services Hospital, Lahore for treatment. Ex. PN is the correct carbon copy of the M.L.R. of Nazir Ahmad.
5. After closing of the evidence by the complainant, Court examined as many as seven CWs. Dr. Muhammad Khalid Usman one of the doctors who operated Nazir Ahmad appeared as CW-1.
Muhammad Rafiq Constable No, 7604 appeared as CW-2 and stated that on 7.3.1995 I and Muhammad Binyamin Constable No, 5233 were present at Emergency Ward Services Hospital, Lahore. The doctor handed over us the last worn clothes of Nazir Ahmad deceased Kamiz P-11, shalwar P-12 and vest P-13 stained with blood which the Investigating Officer took into his possession vide memo Ex. PP. Muhammad Iqbal ASI who kept different parcels containing blood stained earth, last worn clothes, empties, led and sealed phial in sealed condition in the malkhana intact which were transmitted to the office ot Chemical Examiner and Forensic Science Laboratory through Binyameen constable appeared as CW-3.
Syed Imran Bokhari Draftsman who prepared map Ex. CW/3/C appeared as CW-4. Farmaish Ali SI appeared as CW-5. He stated that on 15.4.1995 Abdul Razzaq accused led to the recovery of 30 bore pistol P-5 from his residential baithak. The pistol was taken out from his pillow which he took into his possession vide memo Ex. PF alongwith two live cartridges P-4/1-2 vide memo Ex. PG. He prepared the maps of recovery Ex. CW-4/1 and Ex. CW-4/2. He also recovered 30 bore pistol P-7 from Ghulam Murtaza accused alongwith four live cartridges P-1/1-4 and were taken into possession vide memo Ex. PH, Yamaha motorcycle P-9 vide memo Ex. PJ. He recovered 30 bore pistol P-2 alongwith two live cartridges P-2/1-2 from Abbas accused vide memo Ex. PD. He also recovered 30 bore pistol P-2 alongwith 3 live cartridges P-3/1-3 from the shop of Mushtaq accused vide memo Ex. PE. The map of recovery from Ghulam Murtaza Ex. CW-4/3 pertaining to pistol and Ex. CW-4/4 pertaining to motorcycle. May of recovery from Abbas accused is Ex. CW-4/5 and that of Mushtaq Ex. CW4/6.
Sohail Latif Inspector who conducted the investigation appeared as CW-6 and deposed that he moved application Ex. CW-6/1 for recording the statements of Nazir Ahmad and Abdul Wahid out of whom Nazir had expired. He moved second application Ex. CW-6/2 for recording statement of Abdul Wahid on which the doctor opined that the injured were not fit to record their statements.
The opinion of the doctor is Ex. CW-6/1/A and Ex. CW-6/2/B. Thereafter Abdul Majeed complainant got recorded his statement Ex. PB/1 on the basis of which formal FIR Ex. PB was recorded. Then he went to the place of occurrence, inspected the place of occurrence from where he took into his possession blood-stained earth vide memo Ex. PC, nine empties P-1/1-9 and three led bullets P-2/1- 3 vide memo Ex.PD and Ex.PE. He prepared sketch map Ex.CW-3/C. He also took into possession last worn clothes of deceased qameez P-1, shalwar P-2 and vest P-3 vide memo Ex. CW-6/C and sealed phial sent by the Medical Officer vide memo Ex.CW-6/D.
Malik Zulfigar Ahmad S.P. who also conducted investigation in this case appeared as CW-7.
6. The complainant after giving up Abid Shahid, Amin, Yasin, Maqbool and Amir Ali as being unnecessary closed the case for prosecution,
7. The accused were examined under Section 342 Cr.P.C. in which they took up the plea that they have been falsely implicated in the case owing to prevailing enmity in between them and the complainant party. In fact the complainant party committed the intentional murder of Zulfigar alias Boochi which case was registered against them and due to taking revenge they had been falsely implicated in the case. They stated that they were present at the marriage of daughters of Yousaf co-accused while Razzaq took up the plea that at the time of occurrence he was incarcerated in jail. The accused opted not to appear as their own witnesses under Section 340(2)
Cr.P.C. However, they led their defence.
8. Nazir Ahmad who recited nikah of Mst. Tahira Parveen and Mst. Zahida Parveen daughters of Muhammad Yousaf appeared as DW-1 and produced copies of the nikah namas Ex. DW-1/A and Ex.
DW-1/B.
Muhammad Aslam DW-2 stated that he participated in the marriage ceremoney on 7.3.1995 and Razzaq accused had not participated in the marriage. Hakim Ali DW-3 also stated the same version.
Muhammad Sharif DW-4 stated that at the time of occurrence he was returning home afterseiling the fruit. He had seen the deceased and one motorcycle having two riders thereon. The accused present in the Court were not there.
Major Mubasharullah DW-5 stated to have conducted the investigation and the complainant party did not appear before him inspite of notice. He stated that the accused were busy at the eve of the marriage while Razzaq accused was incarcerated.
Wajid Ali DSP Crimes Branch appeared as DW-6 and stated that he cannot say as to whether 31 person appeared on 24.7.1995 and on 16.8.1995 and stated that except Razzaq rest of the accused were busy at the eve of marriage of daughters of Yousaf accused.
Shoaib Ahmad Inspector appeared as DW-7 and narrated the same story as stated by DW-6.
Muhammad Aslam ASI DW-8 stated to have made efforts for summoning complainant party to join the investigation. He also stated that Naveed and Amjad accused were responsible for the present occurrence.
Farooq Lodhi Assistant Superintendent Camp Jail Lahore appeared as DW-9 and stated that Razzaq accused was brought to camp jail in case FIR No, 59/95 dated 7.3.1995 in a drug case and was released from the jail after he was allowed bail. He produced the extracts of register about the entry of Razzaq accused Ex. DW-9/A and regarding his release from jail Ex.DW-9/A/1.
Hassan Abbas FC No, 248 appeared as DW-10 and deposed that he did not have wireless message dated 7.3.1995.
Abdul Samad Shah DSP Crimes Branch and Muhammad Amin ASI who partly investigated the case appeared 'as DW-11 and DW-12 respectively. Muhammad Ijaz SI DW-13 stated to be present on 7.3.1995 at Liberty Park alongwith other police officials in a functions, received a wireless message heard by his driver that two unknown persons had injured some person near Makka Colony.
9. Learned defence counsel gave up Nazir son of Hakim Ali, Abdul Majeed ASI and Sher Dil SI as being unnecessary and not traceable and thereafter accused closed their defence.
10.Learned trial Court after hearing arguments of the learned counsel for the parties convicted and sentenced the appellants as stated above.
11.Learned counsel for the appellants has not challenged the conviction but so far as sentence is concerned submits that Nazir Ahmad deceased received 7 injuries and all are attributed to appellants. Injury No, 5 was sufficient to cause death in ordinary course of nature. This injury is not specifically attributed to any accused, as such, it is not clear whose injury caused death of the deceased. In these circumstances it is a case of lesser penalty.
12.Khawaja Sultan Ahmad learned counsel for the complainant concedes that the seats of injuries are not specified in the FIR or complaint to a particular accused. However, he submits that all are liable to normal penalty of death.
13.Heard. Record perused. Prosecution case is supported by evidence of Abdul Wahid PW-1, Abdul Majeed PW-2 and Muhammad Naeem PW-3. PW-1 is an injured witness. He has reiterated the allegations set up in the FIR alongwith the motive. Abdul Majeed PW-2 corroborated the statement of PW-1. He is also witness of the recovery of empties Ex. P-1/1-3 and Ex. P-1/1-9, blood-stained earth taken into possession vide recovery memo Ex. PC. Accused used fire-arms during the occurrence.
Dr. Abdul Karim Assistant Professor Forensic Medicines Post Graduate Medical Institute appeared as PW-7. He conducted the post-niortem examination on the dead body. of Nazir Ahmad deceased and found Injuries Nos, 1, 2 and 3 surgical wounds corresponding with the operation notes. Injuries Nos, 4, 5, 6 and 7 were caused by fire-arms. All were ante-mortem. Cause of death was damage to vital structure in the abdominal cavity due to Injury No, 5 leading to profuse internal haemorrhage and shock which was sufficient to cause death in the ordinary course of nature. Dr. Zaheer-ud-Din Babar PW-8 examined Haji Abdul Wahid injured PW and found the injuries on the person of PW-1 as stated in the FIR. The ocular account is corroborated by the medical evidence and the alleged motive. The prosecution has proved its case against the accused beyond any reasonable shadow of doubt. Admittedly Abdul Wahid PW-1 is an injured witness and his fire-arm injuries cannot be said to be self inflicted. He has given true account of the occurrence qua appellants. Learned defence counsel knowing the fate of the case on merit have fairly not challenged the conviction and confined their arguments to the quantum of sentence. The conviction recorded by the learned trial Court is based on proper appreciation of evidence on record and is maintained.
14. Injuries Nos, 4, 5, 6 and 7 were caused to the deceased by firearms. The prosecution alleged that the appellants caused injuries to the deceased with their respective fire-arms weapons one after the other. Complainant as well as other eye-witnesses have not specified the seat of the injuries of each accused to the deceased. Injury No, 5 according to the doctor was fatal. Said injury is not specifically attributed to a specified accused. In these circumstances it is difficult to determine who has caused Injury No, 5 to the deceased. Out of aforesaid four, three injuries have not caused death of the deceased. When it is not certain whose injury has caused death award of extreme penalty is unjustified. Keeping in view the circumstances of the case and the fact that we are not sure whose fire has caused death of the deceased, the sentence of the appellants is reduced from death to imprisonment for life maintaining the sentence of fine. The sentence under Section 324 PPC is also maintained. Both the sentences shall run concurrently. Benefit of Section 382-B Cr.P.C. is extended to the accused-appellants. The appeal is dismissed with the modification in the sentence and the murder reference is answered in the negative.