' ALI NAWAZ CHOWHAN, J.--- Azmatullah appellant in Criminal Appeal No,541 of 1998 was convicted under section 302, P.P.C. By the learned Additional Sessions Judge, Daska vide judgment dated 11- 6-1998 in case. F.I.R. No,96 dated 24-3-1994 registered under section 302/34, P.P.C. At Police Station Sambrial Tehsil Daska District Sialkot and sentenced to death with a fine of Rs,50,000, or in lieu thereof to undergo two years' R.I. Half of fine, if recovered was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., for the murder of Imtiaz Ahmad deceased. By the same judgment the learned trial Court acquitted Muhammad Aslam. Naseem Ullah complainant has filed Criminal Appeal No,564 of 1998 against the acquittal of Muhammad Aslam. The learned trial Court has also sent Murder Reference No,316 of 1998 for confirmation of death sentence awarded to Azmat Ullah. All these matters are being disposed through this single judgment.
2. Nasim Ullah complainant while making his depositions in Court as P.W.10 narrated the prosecution story as under:-- "On 24-3-1994 at 5-30 p.m. I along with my brother Imtiaz Ahmad deceased of this case and Master Muhammad Yousaf were sitting at our shop situated on the southern side of the village.
Meanwhile, Azmat Ullah, Zaka Ullah, Ihsan Ullah all armed with rifles and Muhammad Aslam empty-handed came at my shop/oil agency. Ihsan and Azmat Ullah are sons of Muhammad Aslam, while Zaka Ullah is his nephew. At their arrival, Aslam accused present in Court raised a Lalkara that we would be caught hold of and be killed for not having compromised, in the previous murder case. Azmat Ullah accused fired from a rifle and the shot hit Imtiaz Ahmad on left side of his head. Imtiaz Ahmad fell down and I entered the adjoining room in an attempt to save my life. The other accused resorted to firing and thereafter they left the spot."
' The motive part of the story was narrated by him as under:-- "In the year 1990, one Muhammad Afzal who was my maternal-uncle in line of brotherhood was murdered by the accused. The accused were convicted and sentenced to 25 years imprisonment in that murder case. The accused were granted bail after conviction by the High Court and they came to the village as free-men. Ever since their enlargement on bail, the accused had been pressing us to arrange for reconciliation between the parties in the earlier murder case. We attempted a compromise between the parties but the aggrieved party i,e, the complainant party in that case did not agree and as such our attempt for reconciliation failed. Due to this grudge, the accused murdered my brother."
' Muhammad Yousaf P.W.11 supported the complainant.
3. Dr. Shaukat Ali P.W.8 conducted the post-mortem examination on the dead body of Imtiaz Ahmad deceased and found the following injuries on his person:--
(1) A lacerated wound 11 x 2 c.m. Brain deep obliquely on the front of left side of head starting from 2 c.m. Above the medial edge of left eyebrow and ending 3 c.m. Above the left pinna.
(2) A fire-arm lacerated wound 3 x 2 c.m. Stellate in shape, brain deep on the left side of head 8 c.m. Above from left pinna antero supirly. Margins were inverted and blackening was present around the wound.
(3) A lacerated wound 5 x 2 c.m. Brain deep obliquely on the left side of top of head. 12 c.m. Above from left pinna.
(4) A fire-arm lacerated wound 5 x 3 c.m. Brain deep obliquely on the top of head in middle.
Margins were everted.
' According to the doctor death was due to haemorrhage and shock caused by injuries Nos.1, 2, 3 and 4 which were grievous and fatal and were sufficient to cause death in the ordinary course of nature. Injuries Nos.1 and 3 were caused by blunt weapon whereas injuries Nos.2 and 4 were with fire-arm. The probable time that elapsed between injuries and death was sudden and that between death and post-mortem was within 20 hours. Exh.P.C. Is the post-mortem report whereas Exh.P.C./1 is the diagram of injuries.
4. Akhtar Hussain constable P.W.1 transmitted the sealed parcels containing two fire-arms to the office of Forensic Science Laboratory, Lahore. Muhammad Saleem constable P.W.2 and Muhammad Yagoob P.W.13 escorted the dead body of the deceased to the mortuary for autopsy and produced last-worn clothes of the deceased before the Investigating Officer. Zia Ullah P.W.3 identified the dead body of the deceased at the time of post-mortem examination. Muhammad Ashraf P.W.4 is the witness of taking into possession last-worn clothes of the deceased by the Investigating Officer vide memo. Exh.P.A., bloodstained earth vide memo. Exh.P.B. He also witnessed the recovery of rifle .222 bore on the pointation of Ihsan Ullah accused vide memo. Exh.P.C. Sana Ullah P.W.5 is the witness of recovery of rifles .222 bore on the pointation of Azmat Ullah and Zaka Ullah accused vide memo. Exh.P.D. And Exh.P.E. Muzaffar Hussain H.C. P.W.6 deposed about the safe custody of sealed parcels containing blood-stained earth and rifles in the Malkhana of the police station.
5. Iftikhar Ahmad H.C. P.W.7 transmitted the sealed parcel containing blood-stained earth to the office of Chemical Examiner, Lahore. Akhtar Naqqash Draftsman P.W.9 prepared site plan Exh.P.H.
Sabir Hussain Chatha S.-I. P.W.12 after conducting partial investigation submitted the challan.
Muhammad Tariq Inspector P.W.14 recorded F.I.R. Exh.P.I. He inspected the spot, prepared inquest report Exh.P.J., application for post-mortem examination Exh.P.F. And injury statement Exh.P.K., took blood-stained earth into his possession vide memo. Exh.P.B., last-worn clothes of the deceased vide memo. Exh.P.A. Prepared rough site plan Exh.P.L. He arrested Muhammad Aslam and Ihsan Ullah accused on 27-4-1993, recovered rifle .222 at the instance of Ihsan Ullah accused vide memo.
Exh.P.C. He also arrested Azmat Ullah and Zaka Ullah accused and recovered rifles .222 at the instance of Azmat Ullah and Zaka Ullah vide memo. Exh.P.D. And Exh.P.E. Muhammad Asif constable who was entrusted with non-bailable warrants of Ihsan Ullah and Zaka Ullah accused was examined by the learned trial Court.
6. The appellant produced Gulzar Ahmad (D.W.1) in support of his. Plea that the occurrence had taken place in different circumstances which find mention in the statement of Gulzar Ahmad, the relevant portion of which is reproduced below:-- "On 24-3-1994, one Muhammad Shafiq of my village was married with Bushra Parveen daughter of Jalal Din of Village Kuthiala Gannan Tehsil Daska District Sialkot. I joined the marriage party from my village. The marriage party consisted of 100/125 persons. Five persons had guns and rifles. I had no weapon. I had taken gun of Sagheer and had also fired. Iqbal, Amjad, Islam and Iqbal son of Noor Hussain also had weapons. Iqbal had also a gun. We had fired in jubilation. Near an, oil agency, a fire hit on the head of Imtiaz deceased while the marriage party was passing near oil agency in Village Kuthiala."
"I know that to possess a weapon or to keep any fire-arm in hand without licence is an offence. The incident had taken place when the marriage party was returning. The time of occurrence was a little before evening time. Those persons who forgave us, are not known to me. I could not know whether they were relatives of the deceased or not. I made statement before the police but the police did not record it. Jalal Din, the father of the bride was not known to me. I do not know the sons of Jalal nor their names. We had 'not taken the gun of Sagheer to the police. Nikah was performed on that day. I do not know the name of the Nikah Khawn. The Nikah was performed at 1- 30/2- 00 p.m. In my presence."
7. Muhammad Iqbal (C.W.1) stated that he did not join any marriage party in that village that day.
8. Muhammad Boota (C.W.2) whose sister Mst. Bushra Parveen was married on that day in his examination-in-chief stated as under:-- "The marriage party straightaway came to our house. The marriage party returned at about 4-00 p.m. None of the participants of the marriage party resorted to firing. Iqbal C.W. Had visited us a day before marriage but he did not participate in the marriage. Any person of the name of Gulzar did not participate in the marriage party of my sister."
9. The case of Azmat Ullah appellant in his statement under section 342, Cr.P.C. Was one of denial while he pleaded his innocence. It was said by him that he has been implicated in this case because of old grudge with the complainant side. He went on to say that the occurrence had taken place when a marriage party had resorted to aerial firing in euphoria and a stray shot hit the deceased. He further went on to say that the assailant had tendered his apology but the police fabricated a case against him and his co-accused. But he produced no evidence to support this theory of aerial firing and of a stray bullet hitting the deceased nor against the apology allegedly offered by the assailant.
10. He also did not appear as his own witness under section 340(2), Cr.P.C. And only tendered a Nikahnama pertaining to the marriage ceremony taking place in the vicinity.
11. The following excerpts from the statement of the complainant being relevant are also reproduced below:-- "There was a distance of about 2 yards intervening Azmat Ullah accused and the deceased. Yousaf came to the spot half an hour before the occurrence. He is my first cousin. Ghulam Rasul P.W. Is my paternal-uncle. There were 5 to 6 shots fired in all by the accused. Five/six crime-empties fell on the ground during the firing. Volunteered, that Aslam accused collected those. I had not disclosed to the police while lodging the F.I.R. That Aslam accused picked up and had taken those crime empties."
"There was no mark of firing on any of the walls around the place of occurrence, as a result of general firing. Volunteered, that I could not see the direction of fire. It is incorrect to suggest that I have given false evidence."
12. Learned counsel appearing on behalf of the appellant stated that whereas, according to the F.I.R. Story no blunt weapon injuries were suffered by the deceased but according to the M.L.R. He did suffer blunt weapon injuries which were minor in nature. It was his contention that had the eye- witnesses been present at the spot these injuries would have found mentioned in the F.I.R.
13. His next argument was that the appellant was under the commanding exhortation of his father Aslam now an acquitted accused. While he himself was in his early youth at the relevant time and this constitutes a mitigating circumstance because this is the prosecution's own story and the acquittal of Muhammad Aslam the father would have no adverse effects against this plea made by the appellant.
14. The third argument was that a single shot had been fired. That even if several shots as alleged were fired no evidence was produced to substantiate it and it is the prosecution's own case that the empties disappeared from the place of occurrence. He went on to say that, therefore, it is to be presumed that only a single fire was shot and as this was a case of single fire and the appellant was under the commanding Lalkara of his father as alleged by the prosecution and had caused a single injury to the deceased although at a vital part of the body he will still be entitled to mitigation.
15. Speaking of mitigation reliance has been placed by the learned counsel on the following cases:- -
(1) Abid Khan v. The State 2003 PCr.LJ 442;
(2) Nazeer Ahmad v. The State 1999 SCM R 396;
(3) Ziaullah v. The State 1993 SCM R 155;
(4) Shahzad Ahmad Khan v. The State 2004 PCr.LJ 320.
16. Whereas, the case of the complainant side was that although a single fire had been shot it was on vital part of the body and the intention of the appellant was clear from the locale of the injury.
17. Unfortunately, the locale of the injury was the head where the dastardly fire shot had caused the death but here we are not to see merely the locale of the injury alone we have also to see the other circumstances viz.; the youth of the appellant at the time of occurrence, the exhortation which stimulated his impulses and other circumstances.
18. Usually, every criminal case has its own features and a punishment is to be awarded keeping in view the general principles laid in harmony with the circumstances. We also see in this case that the witnesses were related and there is enmity inter se the parties which further add to the merit of the argument for mitigation.
19. Since from the prosecution side as well the emphasis was on mitigation and as we find that the prosecution has established its case against Azmat Ullah appellant without any doubt we uphold the order of conviction but keeping in view the circumstances of this case we reduce the sentence from death to life imprisonment. The benefit accruing under section 382-B, Cr.P.C. Shall be available to the appellant. The order with respect to quantum of fine will also remain intact.
Criminal Appeal No,541 of 1998 is disposed of accordingly and the Murder Reference No,316 of 1998 is answered in the negative.
20. After the appraisement of the evidence in the above case and the conclusions drawn by us we are of the view that the order of acquittal in favor of Muhammad Aslam does not suffer from any infirmity because the probabilities on the basis of which he was acquitted by the learned trial Court were possible thus, we do not find any miscarriage of justice at the end of trial Court arriving at those conclusions. The appeal (Criminal Appeal No,564 of 1998) against acquittal is, therefore, dismissed.