' ASIF SAEED KHAN KHOSA, J.--- Through this appeal Umar Hayat complainant-appellant has called in question the judgment dated 10-7-1998 rendered by the learned Additional Sessions Judge, Faisalabad whereby Muhammad Abdullah respondent No.1 and Muhammad Khalid respondent No.2 were acquitted of the charge in case F.I.R. No.86 registered at Police Station Satiana, District Faisalabad on 11-3-1996 for offences under sections 302/324/34, P.P.C. At the time of preliminary hearing of , this appeal the learned counsel for the appellant had not pressed this appeal to the extent of respondent No.2 and the same was admitted to regular hearirg only to the extent of respondent No. 1 .
2. The prosecution's case unfolded in the F.I.R. Was that -Umar Hayat complainant-appellant was a resident of Chak No.283/GB, Mandi Rodala situated within the area of Police Station Satiana, District Faisalabad and was a labourer by profession. During the night between 10/11-3-1996 the complainant, his father namely Shahamand Ali and their guest and relative namely Muhammad Akram were sleeping in the compound of the complainant's house whereas the complainant's brother namely. Muhammad Nawaz was sleeping in the Baithak of that house. Electric light was statedly available at that time. At about 11-30 p.m. The complainant and others got up upon hearing the noise of the complainant's brother Muhammad Nawaz quarrelling with somebody. The complainant, his father and Muhammad Akram came out through the door and saw in the electric light that Muhammad Abdullah respondent No.1, armed with a .12 bore single-barrel gun, and Muhammad Khalid respondent No.2 armed with a .1 bore gun were hurling abuses at Muhammad Nawaz. They also saw that Muhammad Nawaz was also responding by abusing the said accused persons. In the meanwhile Muhammad Khalid accused fired at Muhammad Nawaz which hit the latter above his left ankle making an exit through the opposite side. Muhammad Nawaz fell down upon receipt of that injury and in that fallen condition he was given butt blows by Muhammad Abdullah accused on various parts of his body including left leg, right leg and right flank. Upon this the complainant's father lunged forward to rescue Muhammad Nawaz and Muhammad Abdullah accused fired at the complainant's father hitting him above his groin And making an exist from his right hip-joint. The Complainant's father also fell down upon receipt of, that injury. This episode was witnessed by the complainant and Muhammad Akram while taking cover behind a wall but they did not go near the accused while fearing. For their lives. Thereafter the accused persons left the spot while firing. The said occurrence had also attracted the complainant's mother namely Mst.
Sardaran Bibi who had also witnessed the same. The complainant and others then took the complainant's father and brother in injured condition to Civil Hospital, Jaranwala but the complainant's father succumbed to his injuries and died upon recatching the said hospital whereas the complainant's brother was admitted to that hospital for treatment. The motive stated in the F.I.R. Was that 'Rishta' of one Mst. Shaheen Bibi had been arranged with the complainant's brother Muhammad Nawaz but the accused persons, who are uncles of the said girl, were opposed to the said arrangement and were extremely agitated at the same. According to the F.I.R. It was on the basis of the said grievance that the accused persons had killed the, complainant's father and had injured the complainant's brother. Leaving the dead body of his father in the care of Muhammad Akram and Mst. Sardaran Bibi the complainant proceeded to report the matter to the police and met Naib Ali, S.-I. (P.W.10) at Pull Tahrarkana and made a statement before him at 2-05 a.m. On 11-3-1996 in respect of the incident. Subsequently F.I.R. No.86 was registered at Police Station Satiana, District Faisalabad in that regard at 3-10 a.m. On 11-3-1996 for offences under sections 302/324/34, P.P.C.
3. After recording the statement of the complainant and after sending the said statement to the police station for registration of a formal F.I.R. Naib Ali, S.-I. (P.W.10) proceeded to the place of occurrence, collected blood-stained earth from there and then he went to Civil Hospital, Jaranwala whereas he prepared an injury statement and an inquest report and sent the dead body of Shahamand Ali to the mortuary for autopsy. He then recorded the statements of Mst. Sardaran Bibi and Muhammad Akram and went to the place of occurrence again where he inspected the same and prepared a rough site-plan thereof.
4. Dr. Tahir Mehmood (P.W.3) medically examined Muhammad Nawaz (P.W.8) at 12-35 a.m. On 11-3- 1996 and found five injuries on his person out of which Injuries Nos.1 and 2 were caused by fire-arm and the remaining injuries were caused by blunt weapon. In his opinion the said injuries had been caused within two hours of the medical examination.
5. Captain Dr. Muhammad Akram (P.W.5) conducted post-mortem examination of the dead body of Shahamand Ali deceased at 10-40 a.m. On 11-3-1996 and found two fire-arm injuries on the dead body, one of which was an entrance wound whereas the other was an exit wound. In his opinion the cause of death was haemorrhage and shock due to Injury No.1 which was sufficient to cause death in the ordinary course of nature. Both the injuries were caused by fire-arm and were ante-mortem. Time elapsing between the injuries and death was immediate and the same between the death and post-mortem examination was about nine hours.
6. After post-mortem examination of the dead body Naib Ali, S.-I. (P.W.10), the Investigating Officer, received the last worn clothes of the deceased. On 13-3-1996 he recorded the statement of Muhammad Nawaz (P.W.8) at Civil Hospital, Jaranwala and on 17-3-1996 he got a formal site-plan of the place of occurrence prepared by a draftsman. Thereafter the investigation of this case was entrusted to Muhammad Yaqoob, S.-I. (P.W.13) who found Muhammad Khalid accused to be innocent and arrested Muhammad 'Abdullah accused on 14-6-1996. On 19-6-1996 he recovered a gun from Muhammad Abdullah accused. The investigation of this case was then verified by the Station House Officer of the relevant police station and also by the Deputy Superintendent of Police, Jaranwala whereafter a challan was submitted.
7. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 302/34 and 324/34, P.P.C. To which the accused persons pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as fourteen witnesses in support of its case against the accused persons. Muhammad Nawaz (P.W.8) and Umar Hayat complainant (P.W.9) furnished the ocular account of the incident in question and also proved the motive. Dr. Tahir Mehmood (P.W.3) and Captain Dr. Muhammad Akram (P.W.5) provided the medical evidence.
Allah Ditta (P.W.12) deposed about recovery of a gun from the custody of Muhammad Abdullah accused during the investigation of this case. Naib Ali, S.-I. (P.W.10) and Muhammad Yaqoob, S.-I.
(P.W.13) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In their statements recorded under section 342, Cr.P.C. Both the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. Muhammad Khalid accused had maintained that he was not present at the place of occurrence at the relevant time and he had been falsely implicated by the complainant party.
As against that Muhammad Abdullah accused had accepted his presence and participation in the incident in question but had advanced his own version of the same in the following words:-- "I am innocent. In fact, Mst. Mughlani wife of Altaf and mother of Mst. Sheema against the wiil and consent of parents had come to the house of Altaf and contracted marriage with him of her own freewill and consent, being a sui juris. Mst. Mughlani is the real sister of Mst. Sardaran Bibi, P.W.
Mother of Muhammad Nawaz P.W. The parents of Muhammad Nawaz forced Altaf Hussain father of Mst. Sheema Bibi to give her hand in marriage to Muhammad Nawaz P.W. And "Watta" for Mst.
Mughlani. The parents of Mst. Sheema did not agree and the matter continued for about a year prior to this occurrence and the complainant party persistently continued to force them to agree for giving Mst. Sheema Bibi in marriage to Muhammad Nawaz P.W., but they did not yield to their demand. On the alleged night of occurrence, I took Jahangir son of Taja Harral resident of Chak No.282/GB with me as Panchayat to the house of the complainant party, as he was a influential Zamindar of the Ilaqa for the purpose that he may ask the complainant party not to compel and force the parents of Mst. Sheema Bibi to give her hand in marriage to Nawaz, against their wishes.
During the conversation in Chak No.283/GB in front of.House of the complainant hot words were exchanged which led to abuses consequently a souffle ensued and Jahangir abovesaid, fired with his gun hitting Muhammad Nawaz P.W. And his father Shahamand Ali deceased. Since Jahangir was an influential Zamindar of the area of complainant party could not dare face him to register the case against him for the incident and in his place they have roped me and my father falsely in this case."
' The accused persons opted not to make any statement on oath under section 340(2), Cr.P.C. And they also did not produce any witness in their defence. The learned trial Court, however, recorded the statement of Manzar Ali Shah, D.S.P. As C.W.l.
10. At the conclusion of the trial the learned trial Court found that the prosecution had failed to prove its case against both the accused persons beyond reasonable doubt and, thus, they were acquitted of the charge. Hence, the present appeal before this Court by Umar Hayat complainant- appellant. It has already been observed by us above that this appeal had been admitted to regular hearing only to the extent of Muhammad Abdullah respondent No.1 and not to the extent of Muhammad Khalid respondent No.2.
11. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the complainant- appellant that the prosecution had successfully proved the guilt of respondent No. 1 to the hilt through cogent and reliable evidence and, therefore, the learned trial Court was not justified in acquitting the said respondent. The reasons recorded by the learned trial Court in that regard have been brought under snatching criticism by the learned counsel for the appellant. As against that the learned counsel for respondent No.1 has supported the impugned judgment passed by the learned trial Court and has maintained that the prosecution had failed to prove its case against respondent No.I beyond reasonable doubt and, therefore, the benefit of doubt had rightly been extended by the learned trial Court to respondent No.1. The learned counsel for the State has argued that the State had chosen not to challenge the impugned judgment passed by the learned trial Court and, therefore, she is not in any position to support the present appeal filed by the complainant before this Court.
12. After hearing the learned counsel for the parties and going through the record of this case with their assistance we are constrained to observe that we have found the impugned judgment passed by the learned trial Court to be a labored judgment wherein emphasis had been placed by the learned trial Court upon factors which were not of much significance or importance and at the same time other factors of crucial importance and relevance had conveniently been overlooked by the learned trial Court. We may to add B that the learned trial Court has not appeared to us to have undertaken the exercise of appreciation of evidence in this case in accordance with the settled principles governing dispensation of criminal justice and appraisal of evidence. We have, therefore, ourselves undertaken a complete and exhaustive survey and analysis of the evidence available on the record in this case so as to arrive at a just and fair as well as a correct decision of this case.
13. We have found that the F.I.R. In this case had been lodged with reasonable and sufficient promptitude and respondent No.1 had been duly nominated therein as the principal perpetrator of the alleged offences with a specific role of giving butt blows to Muhammad Nawaz (P.W.8) and of causing the fatal fire-arm injury on the person of Shahamand Ali deceased. Umar Hayat complainant (P.W.9) and his brother Muhammad Nawaz (P. W:8) were natural witnesses of the occurrence in question as the same had taken place right in front of the house of these witnesses.
Apart from that Muhammad Nawaz (P.W.8) had a stamp of injuries on his person so as to vouchsafe his presence at the scene of the crime at the relevant time. The motive in this case pertaining to the Rishta of a girl stood amply proved as the same was acknowledged and admitted even by respondent No.1 himself in his statement recorded under section 342, Cr.P.C. The medical evidence had provided full support to the ocular account in respect of all the necessary details regarding the time of occurrence, the weapons used and the locale of injuries. Thus, the consistent statements made by the natural eyewitnesses in this case had received sufficient corroboration from the prompt F.I.R. As well as the motive besides receiving sufficient support from the medical evidence.
14. It is of critical importance in this case that in his statement recorded under section 342, Cr.P.C.
Respondent No.1 had admitted his presence and participation in the occurrence in question but he had maintained in the said statement that the fatal fire-arm injury received by Shahamand Ali deceased had been received by him at the hands of one Jahangir Harral and the same had not been caused by respondent No. 1 . Respondent No.1 had, however, failed to produce any evidence whatsoever in support of the said stand taken by him.
He had also failed to explain the injuries sustained by Muhammad Nawaz (P.W.8). In this context the learned counsel for respondent No.1 has tried to draw premium from the statement of Manzar Ali Shah, D.S.P. (C.W.1) but that statement is not of much avail to respondent No.1 as the same was based merely upon an opinion of C.W.1 formed by him during the investigation of this case. It is trite that an opinion of an Investigating Officer regarding guilt or innocence of an accused person or even in respect of the manner or circumstances in which an occurrence had taken place inadmissible in evidence and the same carries little evidentiary value. In this regard we have further noticed that the opinion of C.W.1 was statedly based upon the statements of sixteen persons appearing before him from the complainant's side but either those sixteen persons had been named by him before the learned trial Court nor any of them was produced by respondent No.1 before the learned trial Court in his defence. In this view of the matter the stand taken by respondent No.1 before the learned trial Court regarding firing of the fatal shot at the deceased by the said Jahangir Harral had remained far from being established and at the same time it had also gone a long way in establishing respondent No. l's presence and participation in the occurrence in question.
15. For what has been discussed above we have entertained no doubt whatever that the prosecution had succeeded in proving the guilt of respondent No.1 beyond reasonable doubt. We may also add here that the complainant-appellant could also have an arguable case against the acquittal of Muhammad Khalid respondent No.2 but he had not pressed this appeal to the extent of respondent No.2 and, thus, the said aspect of the matter may not detain us any further.
16. We have also given anxious consideration to the question of sentence to be passed against respondent No.1 for the murder committed by him. In this regard we have observed that there are indications available on the record that at the relevant time respondent No.1 had not approached the complainant party with any predetermination to kill although he had come prepared in that regard by bringing a gun with him. According to the evidence available on the record the negotiations being conducted by respondent No.1 with the complainant party at the latter's house during the fateful night had taken an ugly turn and the same had progressively degenerated from talks to exchange of abuses and then to giving of butt blows and ultimately to the firing of the fatal shot at the deceased by respondent No.1 at a vital part of the former's body. These factors have convinced us that respondent No.1 had formed an intention to kill at the spur of the moment. In view of this lack of predetermination on the part of respondent G No.1 we have found it to be unsafe and also undesirable to pass a sentence of death against respondent No.1 on the charge of murder. imprisonment for six months. For causing injuries to Muhammad Nawaz (P.W.8) respondent No.1 is convicted for an offence under section 337-L(2), P.P.C. And is sentenced to rigorous imprisonment for one year and also to pay a sum of Rs.5,000 to Muhammad Nawaz (P.W.8) as Daman or in default of payment thereof to undergo simple imprisonment for two months. The sentences of imprisonment passed against respondent No.1 shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. Shall be extended to him. He shall be taken into custody forthwith and lodged in jail so as to serve his sentences.