GHULAM MUJADDID MIRZA, J.-----Manzoor Hussain (36) and his father Zulfiqar (75), were convicted for the murder of Mazhar Hussain by the learned Additional Sessions Judge, Multan; who vide his judgment dated 25th October 1976; sentenced former to death and the latter to life imprisonment, and a fine of Rs. 2,000 default one year's R.
3. Each They were further convicted under section 30//34, P. P. C. And sentenced to three years' R. I. Each. The sentences of Zulfiqar were to run concurrently. The convicts have filed Criminal Appeal No. 1170 of 1976, Murder Reference No. 281 of 1976, for confirmation of death sentence of Manzoor Hussain is also before us. Criminal Revision No. 101 of 1977, is also to be heard Along with the appeal and the Murder Reference. All, these three matters shall be disposed of by this judgment.
2. On 25th June 1974, at 10-00 a.m., Muhammad Nawaz along with his son Mazhar Hussain and one Ahmad Yar, was taking a round to his cotton crop. All of a sudden, Manzoor Hussain armed with a shot-gun, his father with a rifle, appeared from the southern side of the Jawar field.
They challenged both the father and the son and said that they would not be spared today because of their highhandedness. Muhammad Nawaz begged for mercy, but it was in vain. Zulfiqar instigated Manzoor Hussain to fire, who fired at Mazhar Hussain with his gun. He was hit in the chest and left forearm and fell down. The second shot was fired by Zulfiqar at Muhammad Nawaz, but he lay down on the ground and the bullet passed over him. Ahmed Yar and Muhammad Rafiq who were then present at the spot, saw the occurrence. They asked the accused why they had been so cruel, but the accused with their weapons went towards their house. Mazhar Hussain died at the spot.
The motive for the murder of Mazhar Hussain was that Muhammad Nawaz and Zulfiqar owned land jointly. About a year before the occurrence, they mutually partitioned the land. Subsequently, Zulfiqar accused blamed Muhammad Nawaz for taking better land. He, therefore, wanted partition of the land de novo. Muhammad Nawaz did not agree to that. This led to the murder of Mazhar Hussain.
3. Report about the aforesaid occurrence was lodged by Muhammad Nawaz at Police Station, Kabirwala, on 25-6-74 at 12-00 noon which was recorded by Sher Samad Khan A. S. I. He after recording the report pro--ceeded to the spot which was at a distance of 12113 miles from the police station. There he found the dead body of Mazhar Hussain lying. He prepared the injury statement (Exh. P. K.) and inquest report (Exh. P. J.) and sent the dead body for post-mortem. The officer also found some blood-stained earth which he took into possession vide memo. Exh. P. B., as well as one empty P. 1 vide memo. P. C.
The accused were arrested on 25th June 1974. Manzoor Hussain while in police custody got recovered gun P. 2 and licence P. 3 from his residential Kotha, which were taken into possession vide memo. Exh. P. D. Zulfiqar led to the recovery of rifle P. 5 and licence P. 6, which were also taken into possession vide memo. Exh. P. F.
Manzoor Hussain denied the allegation of murder, but admitted that on the asking of the police he produced his gun and licence.
When questioned "Why this case against you" he gave the following answer: "The case is false. Mazhar Hussain deceased was a quarrelsome and loose moral, he had many enemies and was shot and killed by somebody. Noor Muhammad my step-brother is however, dead enemy and has left our village so as to not live near us. He has seized the opportunity to involve us in this concocted case."
Zulfiqar also denied the allegations, but admitted that his grandfather and the father of Muhammad Nawaz were real brothers; Muhammad Nawaz had joint ancestral property which was divided between the parties, About the rifle he said that it belonged to, and was a licensed weapon.
The case against him was false.
Zulfiqar produced-copies of judgments. Exhs. D. B.D.C.D. D. And D. E., in defence. According to him the case was fabricated by his son Noor Muhammad and Haji Khan Muhammad.
5. The prosecution evidence in this case consists of two eye-witnesses, namely, -Muhammad Nawaz and Ahmad Yar; recovery of empty P. 1 and gun from Manzoor Hussain, rifle from Zulfiqar; report of the Forensic Expert and the medical evidence.
6. We would first of all like to discuss the entire evidence and then examine the contentions raised by the learned defence counsel. Muhammad Nawaz deposed about the motive and attributed the fatal shot to Manzoor Hussain. He also accused Zulfiqar for firing at him, but he escaped. His version before the trial Court is substantially the same as in the F. I. R. His statement finds corroboration from the testimony of Ahmad Yar.
Ahmad Yar was taking round along with Mazhar Hussain and Muhammad Nawaz when the two accused appeared. Zulfiqar raised lalkara; Manzoor Hussain opened the fire which hit Mazhar Hussain in the chest and the left arm as a result of which he died, but Muhammad Nawaz had a miraculous escape, although he was fired at by Zulfiqar.
He also attested recovery memos. Exhs. P. B., P. C. And P. D.
7. The post-mortem of Mazhar Hussain was performed by Dr. Abdul Ghaffar on 25th June 1974, at 6- 00 p.m. He found' a gunshot wound, 3--" x 3" bone deep, on front of left arm, 4' above the elbow, skin fat and muscles were burnt, a gunshot wound 2----- X 3--- bone deep, into chest cavity, on front and outer side of left chest, 1--- on the outer side of the left nipple. Margins were inverted and somewhat blackish. Death was due to injury to the lung and heart leading to haemorrhage and shock.
8. Ocular evidence was criticised by the learned defence counsel on the ground that it was of interested witnesses, because of their close relation--ship with the deceased. Learned counsel tried to prove that as a matter of fact, both of them were not present at the spot. The fact is established from the material change in their testimony: Muhammad Nawaz never made any statement either before the police or before the Committing Magistrate about the reloading of the gun. It was only before the trial Court that this evidence was introduced; the reason for that was that the prosecution was aware of the weakness in its ease because of lack of corro--borative evidence.
It was next submitted that if Muhammad Nawaz was present when the alleged incident took place, be would- have certainly given the Khasra number where Mazhar Hussain was shot dead, but he admitted in his evidence that he did not know in which Khasra number or Square number the occurrence took place.
Learned counsel further submitted that Muhammad Nawaz could not be relied upon because he said that his sons Nazar Hussain and Mazhar Hussain were not party to the partition of the land; which, was ultimately compromis--ed between the parties. It was submitted that be is belied by documentary evidence Exhs. D. B., D. C., D. D. And D. E.
So far as the other witness was concerned, it was submitted that be had not given reasonable explanation of his presence at the spot at the time of the occurrence.
For the foregoing reasons learned counsel submitted that the case against the appellants was highly doubtful.
9. Learned counsel appearing for the State argued that it was broad day occurrence. The ocular version could not-be discarded on account of relationship of the witnesses with the deceased, because they were also related to the accused party, and the defence did not bring anything on the record to establish that they were more favourable to the complainant side than the accused.
It was next submitted that both these witnesses gave convincing explanation of their presence at the spot.
10. It has been established from the evidence on record that both the parties are related inter se.
Muhammad Nawaz is the maternal uncle of Manzoor Hussain accused and Ahmad Yar P. W.
Zulfiqar is the husband of the sister of Muhammad Nawaz, and Khaloo of Ahmad Yar P. W. The learned State counsel .Was right in submitting that both the eye-witnesses are related to both sides. Both of them categorically deposed how and who shot Mazhar Hussain. Muhammad Nawaz was cross-examined at length and the mere fact that at the time when he was being examined by the trial Court he did not give Khasra number or square number is not that strong a ground to discard his testimony. He was examined 4-- years after the occurrence. Though he did not remember the Khasra number, neverthe--less, he rightly pointed out the place where the alleged occurrence took place.
Similarly, we do not find much force in the submission of the learned counsel that the story of re- loading the gun was introduced at a late stage. The witness did give an explanation as to why this fact was not mentioned by him earlier and his explanation was that nobody ever questioned him on this point.''
11. First information report is not' that sacrosanct so that if a particular fact is :not mentioned in it and is deposed later on by the witness on oath before the trial Court, then the entire testimony of that witness is to be discarded.. Some of the facts to be considered while examining the first information report are of delay, if any, in lodging the report, chances A of implicating innocent persons and suppression of material facts so as to make the prosecution story doubtful from the very beginning. The sole purpose 'of the first information report is to put the criminal law in motion without any loss of time.
We have not come across any material contradictions in the statements of the eye-witnesses and we, therefore, believe their version from the circumstantial evidence, i.e. Recovery of gun, empty; report of the Forensic Expert about the empty and finally the medical evidence. We are, therefore, of the opinion that Manzoor Hussain has been rightly convicted under section 302, P. P. C.
12. So far as Zulfiqar. Is .Concerned, keeping in view his age and the part attributed to him by the prosecution, we are doubtful about his participation. We, therefore, give him the benefit of doubt and acquit him on both counts. He is on bail and shall be discharged from his bail bonds:
13. This leaves us to examine the question of sentence of Manzoor, Hussain. There is evidence to the effect that the parties were not happy and satisfied with regard to the distribution of land. Even after partition, hard feelings existed. There is no evidence that on the day of occurrence any untowardly incident took place or that it was pre-planned murder. The incident took place all of a sudden. We are, therefore, of the view that capital sentence is not called for in this case. Hence we decline to confirm the death sentence, and commute it to life imprisonment.
The conviction under section 307, P. P. C. Is not legal. The same is, therefore, set aside.
14. The trial Court sentenced Manzoor Hussain to a fine of Rs. 2,000 in addition to the capital sentence. The sentence of fine is neither legal nor proper nor did the trial Court award compensation to the legal heirs of the deceased. It has been held in State v. Rab Nawaz (PLD 1974 SC 87) that the provision of section 544-A, Cr. P. C. Is mandatory. We have also reviewed the entire law with regard to compensation in Criminal Appeal No. .277 of 1977.And Murder Reference No. 130 of 1977, decided on 14th February 1979. We accordingly gave notice to the learned counsel as to why compensation be not awarded to the legal heirs of the deceased. Notice was duly accepted by the defence counsel, who in writing placed an application on the record. The last paragraph of the application is to the following effect:- "That the undersigned counsel was also instructed to make a submission before the learned Court that in case, in their wisdom the learned judges enhance the amount of compensation within reasonable limits and the paying capacity of the appellant, he would have no objection to its payment."
15. We did not want any approval or suggestion from the appellant and disapprove the aforesaid language. The notice was served as a legal formality and to give reasonable opportunity to the appellant to show cause.
The accused party are land-owners. They are well off. Muhammad Nawaz lost his young son aged
25. We, therefore, order that a sum Rs. 50,000.00 (rupees fifty thousand only) be paid as compensation to legal heirs of the deceased and direct the Collector concerned to issue warrant under section 380, Cr. P. C. For realisation of the amount of fine.
The murder reference and the appeal are disposed of accordingly.
Criminal Revision No. 101 of 1977, filed by the complainant for enhance ment of sentence is dismissed ins limine.