' SH. ABDUL RASHID, J.--- Falchar-ur-Rehman son of Sher Bahadur, Attiqur Rehman son of Sher Bahadur, Khan Bahadur alias Munir son of Muhammad Akbar, Muhammad Iqbal son of Taj Muhammad, all Pathan by Caste residents of Ballokhel, Mianwali City and Sami Ullah son of Said Mir Caste Pathan resident of Alam Khel, Mianwali City appellants accused were tried in case F.I.R.
No.129, dated 21-4-1997 under sections 302, 148, 149 P.P.C. Of Police Station, Mianwali by the learned Sessions Judge, Sargodha vide judgment, dated 9-6-1999 convicted and sentenced as under:--
(i) Fakhar-ur-Rehman appellant was convicted under section 302(b), P.P.C. And sentenced to death subject to confirmation by the High Court and to pay compensation of Rs.20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. In default of payment of which to further undergo imprisonment for six months.
(ii) All the remaining four appellants were convicted under sections 302(b)/149, P.P.C. And sentenced to life imprisonment each and to pay Rs.20,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default whereof to further undergo imprisonment for a period of six months.
(iii) All the five appellants were convicted and sentenced under section 148, P.P.C. Read with section 149, P.P.C. And sentenced them to undergo Rigorous imprisonment for 3 years each and also to pay fine of R.3,000 each, in default of payment of which to further undergo imprisonment for four months.
2. Feeling aggrieved by their conviction and sentence appellants have filed Appeal No.527 of 1999.
3. Murder Reference No.323 of 1999 has been received for confirmation of death sentence of Fakhar-ur-Rehman appellant.
' Both appeal and the Murder Reference are being jointly disposed of by this judgment.
4. Briefly stated the facts of the prosecution case as set out in the F.I.R. Exh. PH/1 lodged by Muhammad Ramzan complainant are that the said complainant is permanent resident of Ballokhel, Mianwali and was carrying on as Contractor at Lahore and had come to his house on Eid occasion during. The days of occurrence; that there was Haveli of one Latif Shah, which generally remained vacant, near house of the complainant, in which Sami Ullah Khan, Fakhar-ur-Rehman, Attiqur Rehman, Muhammad Iqbal and Khan Bahadur appellants often used to indulge in consumption of intoxicants and that on 20-4-1997 at about Degarwela Ghulam Yasin P.W, a close relative of the complainant proscribed them from indulgence in their Shenanigans and on the same night at 11 p.m. Sami Ullah Khan etc. Came to the house of the complainant and resorted to firing in the air and shouting invectives and on account of the said incident in the morning of 21-4- 1997 the complainant along with the brothers Abdur Rehman, Muhammad Zaman and Ghulam Yasin were on way to the police station to lodge the report and when they reached near the house of Dost Muhammad son of Ali Muhammad at about 8 a.m. Sami Ullah appellant empty-handed, Fakhar-ur-Rehman appellant armed with .7MM rifle, Attiqur Rehman armed with .30 bore pistol, Khan Bahadur alias Munir appellant armed with .12 bore double barrel gun and Muhammad Iqbal appellant armed with .222 bore rifle suddenly came over there and that Sami Ullah appellant called out Lalkara to teach a lesson to the complainant party for forbidding them to sit in the Haveli of Altaf Shah. Abdur Rehman who was going ahead of his other companions, turned back and he was fired at by Fakhar-ur-Rehman appellant which hit him at his back who then fell down on the ground. Thereafter Attiqur Rehman, Khan Bahadur alias Munir and Muhammad Iqbal appellant resorted to indiscriminate firing and called.Out Lalkara that if anyone 'ventured to come nearby he.
Would not go alive. However on the alarm raised by the complainant and the P.Ws., the appellants ran away towards their houses brandishing their fire-arms. The motive for the occurrence couched in the F.I.R. By the complainant was that on the preceding day at Degarwela Ghulam Yasin P.W. Had proscribed the appellants accused from sitting in the Haveli of Latif Shah to which they took offence and committed the occurrence to avenge their insult.
5. The complainant then removed Abdur Rehman injured to Mianwali hospital and leaving him there in the custody of his brother Muhammad Zaman and 'other relative he was on way to police station when he accosted Fateh Khan, A.S.-I. Near Hospital Chowk anti he narrated the occurrence to him who recorded his statement Exh. PH which was read over to the complainant and he signed the same in token of its correctness. The complaint was sent to police station through Abdullah Constable No.1047 and Muhammad Anwar A.S.-I. Police Station City Mianwali recorded formal F.I.R.
Exh.PH/1 on the basis of the same.
6. Fateh Khan A.S.-I. Along with complainant then proceeded to Civil Hospital Mianwali where Abdur Rehman deceased was lying admitted in injured condition. He prepared his injury statement Exh.PJ and handed over to Sher Bahadur Constable for medical examination of the injured. He recorded the statement under section 161, Cr.P.C. Of Muhammad Zaman, Ghulam Yasin P.Ws. In the hospital.
He then submitted application Exh. PK before the Medical Officer to enquire about the fitness of Abdur Rehman injured to make a statement to which the Medical Officer opined in the negative vide his endorsement Exh.PK/1. He then proceeded to the place of occurrence and carried out spot inspection. He collected blood-stained earth from the spot and made into a sealed parcel vide memo. Exh.PG in presence of Muhammad Ramzan and Ghulam Yasin P.Ws. And they attested the same. He collected from the place of occurrence three crime empties of .12 bore Exh.P5/1-3, 2 crime empties of .7 MM rifle Exh. P6/1-2 and six crime empties of .30 bore pistol Exh.P7/1-6 and made them into a sealed parcel vide memo. Exh.PF which was also attested -by Muhammad Ramzan and Ghulam Yasin P.Ws. Subsequently he had handed over both the sealed parcels intact to Moharrir on returning to the police station.
7. On the same day i.e. 21-4-1997 at 8-25 a.m. Dr. Arshad Mehmood, Medical Officer D.H.Q. Hospital, Mianwali (P.W.17) conducted medical examination of Abdur Rehman son of Haji Muhammad Abdullah aged 35 years and found the following injuries on his person:--
(1) A fire-arm wound of entry 1-1/2 x 1 c.m. Muscle deep on left lower back 8 c.m. Left to midline 7 c.m. Above left posterior iliac spine. There was blackening over the wound.
(2) A fire-arm wound of exit 3 x 2 c.m. In size with omentum coming out from the wound in the area of abdomen 6 c.m. Above umbilicus, 2 c.m. From the midline towards left side.
8. Injury No.1 was Ghyr Jaifa Mutalahima and was kept under observation. Injury No.2 was Jaifa and they had been caused by fire-arm and their duration was about 2 hours. Exh.PB is the correct carbon copy of the Medico-Legal Report which is in the handwriting of the said Medical Officer, bearing his signatures whereas Exh. PB/1 is the pictorial depiction of injuries which was also in the handwriting of the Medical Officer, bearing his signatures.
9. The Medical Officer delivered blood-stained shirt P1 of Abdur Rehman injured to Sher Bahadur Constable who produced it before Fateh Khan A.S.-I. Which was taken into possession vide memo.
Exh.PA.
10. On 22-4-1997 Fateh Khan A.S.-I. Again inquired from the Medical Officer vide application Exh.P1 to ascertain about the fitness of Abdur Rehman injured to make a statement and after examining the injured Dr. Rana Hafeez Ullah Medical Officer (P. W.18) vide his endorsement Exh.PL/1 declared him unfit to make his statement.
11. Again on 23-4-1997 Fateh Khan A.S.-I. Inquired from the Medical Officer vide application Exh. PM regarding fitness of Abdur Rehman injured to make his statement and after examining the injured Dr. Rana Hafeez Ullah, Medical Officer vide his endorsement Exh.PM/1 declared the injured fit to make his statement and thereafter Fateh Khan A.S.-I. Recorded the statement of Abdur Rehman injured.
12. The injured was referred to Mayo Hospital, Lahore, for treatment where he died on 29-4-1997 at about midnight. Upon receiving the said information Ghulam Muhammad S.-I. Then went to Mayo Hospital, Lahore and took the dead body of Abdur Rehman in his possession. He prepared injury statement Exh. PR, inquest report Exh. PS and handed it over to Inam Ullah Constable for post- mortem examination.
13. Dr. Aamir Mirza Senior Medical Officer Department of Forensic Medicine King Edward Medical College, Lahore conducted post-mortem examination on the dead body of Abdur Rehman on 30- 4-1997 at about 6-10 p.m. And found the following injury on its person.
(1) A lacerated healing wound 1.5 x 1 c.m. Present on back of left lower side, 8 c.m. To the left of midline, 9 c.m. Below fold of buttock.
(2) 1 x 1 c.m. Lacerated healed wound present on front of left side of abdomen 7 c.m. To the left midline at 3.0' clock position with reference to the umbilicus.
14. Both the injuries corresponded to the MLC No.169 of 1997 issued by CMO DHQ Hospital, Mianwali and the cause of death was injuries to the abdomen and its complications. The probable duration between death and post-mortem was 18 to 24 hours. Exh.PX is the correct carbon copy of post- mortem report and Exh.PX/1 is the pictorial depictions of the said notes which are in the handwriting of the said Medical Officer, bearing his signatures.
15. After the post-mortem examination the Medical Officer handed over to Inam Ullah Constable the last-worn clothes of the deceased which were taken into possession by Ghulam Sarwar S.-I.
Vide memo Exh.PD, site-plan Exh.PD and its copy Exh.PD/1 from Shafique Khan Draftsman and gave his notes in red ink on the same.
16. Ghulam Muhammad S.-I. P.W.13/ Investigating Officer arrested Sami Ullah accused on 13-5-1997 and thereafter the investigation was taken over by Naveed Anwar Inspector P. W.
16.
17. On 25-5-1997 Sher Bahadur brother of Khan Bahadur accused produced him before Naveed Anwar Inspector/ Investigating Officer and during interrogation Khan Bahadur alias Munir accused led to the recovery of .12 bore gun P.9 along with its licence which was made into a sealed parcel and was taken into possession vide memo. Exh.PU.
18. On 6-6-1997 Naveed Anwar arrested Fakhar-ur-Rehman, Attiqur Rehman and Muhammad Iqbal accused who were produced before him by Sher Bahadur and thereafter the investigation was transferred to Raja Muhammad Latif Inspector C . I. A . (P. W. 15). On 13-6-1997 Fakhar-ur-Rehman appellant while in custody led to the recovery of .7 MM rifle Exh.P4 which was taken into possession vide memo. Exh.PE.
19. On 15-5-1997 Muhammad Iqbal accused led to the recovery of .7 MM rifle P.2 which was made into a sealed parcel and taken into possession vide memo. Exh.PB. On the same day Attiqur Rehman accused appellant also led to the recovery of .12 bore pistol Exh.P3 which was made into a sealed parcel and taken into possession Exh.PC.
20. All the sealed parcels were handed over to Moharrir of Police Station, Mianwali City.
21. The investigations were again transferred to Malik Ghulam Jillani Inspector P.W.19 by order of D.I.-G., Sargodha on 25-7-1997 and he finalized the investigations by reaching the conclusion that all the appellants were involved in the occurrence and the file was sent to local police for submitting the challan against the accused which was consequently submitted.
22. The appellants were charged under sections 302, 148 and 149, P.P.C. Was read over and explained to them and they pleaded not guilty and claimed to be tried.
23. The prosecution had produced Sher Bahadur Constable P.W.1, Hameed Ullah Moharrir Head Constable P.W.2, Liaqat Ali Constable P.W.3, Zia Ullah P.W.4, Alam Khan Constable P.W.5, Muhammad Shafique Khan Draftsman P.W.6, Muhammad Zaman P.W.7, Abdur Rauf P.W.8, Ghulam Yasin (eye-witness) P.W.9, Mehr Zaman (eye-witness) P.W.10, Fateh Khan A.S.-I. P.W.11, Muhammad Khan Constable P.W.12, Ghulam Muhammad S.-I. P.W.13, Inam Ullah Constable P.W.14, Raja Muhammad Latif Inspector P.W.15, Naveed Anwar Inspector P.W.16, Dr. Arshad Mehmood P.W.17, Dr. Rana Hafeez Ullah P.W.18, Malik Ghulam Jillani Inspector P.W.19, Muhammad Anwar S.-I. P.W.20 and Dr. Aamir Mirza P.W.21 in support of its case.
24. The learned D.D.A. Gave up the remaining P.Ws. And tendered in evidence the report of Chemical Examiner Exh.PX and report of Serologist Exh.PY and the report of Fire-arm Expert Exh.PZ and PAA and closed the prosecution case.
25. The statements of the appellants under section 342, Cr.P.C. Without oath were recorded and all the incriminating evidence was put to them, which they refuted.
26. Fakhar-ur-Rehman appellant took up the plea in his said statement that his co-accused Sami Ullah and Anees-ur-Rehman son of Ghulam Yasin P.W. Used to catch fish from Chashma Barrage pond and sell in the market. A dispute arose between them regarding the sale price. On 21-4-1997 while 'Sami Ullah accused was passing in the street near house of Ghulam Yasin P.W. He was overpowered by Ghulam Yasin P.W., his son Fazalur Rehman, his brother-in-law Abdur Rauf and was dragged inside the house and was put to wrongful confinement. On his hue and cry and on learning the incident his relatives came in the street from the other Mohallah and there was an exchange of firing between them. Abdur Rehman deceased who was passing through the street was hit by the fire-shot of his own party. Sami Ullah managed to escape during the cross-firing and that he had been falsely implicated due to previous enmity with Mehr Zaman and Ghulam Yasin P.Ws. On account of the murder of Fakhar-ud-Din father of Ghulam Yasin. However, none of the appellants neither produced any defence evidence nor opted to appear as a witness in disproof of the prosecution evidence.
27. Upon conclusion of the trial the appellants were convicted as mentioned above. Feeling aggrieved thereby the appellants have filed this appeal.
28. The learned counsel for the appellants has mainly argued that according to the prosecution version Ghulam Yasin P.W.1 had forbidden the appellants from sitting in the Haveli of Latif Shah which gave offence to the appellants and as such the appellants would have grudge and motive against Yasin P.W. But he was not allegedly attacked at and fired by the appellants despite the fact that they were able to do so and that belies the prosecution version about the motive and that the appellants had no motive whatsoever or enmity against Abdur Rehman deceased. It is further argued that the appellants had not attacked the house of the complainant party and indulged in firing on the night of 21-4-1997 and that according to the eyewitnesses the police had been called after the said incident but no report had been lodged, no action taken which would definitely had been taken had any such incident taken place and thus there was no occasion for the complainant party to go to the police station in the morning of 21-4-1997 for lodging report with the police and the entire prosecution version is being stated by the P.Ws. Who are closely related to each other and are inimical to the appellants and that there is no corroboration of the prosecution version and witnesses coming from an independent source. It is further contended that both the parties suddenly accosted each other and resorted to firing and that the occurrence was not a premeditated affair but was a sudden flare-up and the learned trial Court has wrongly recorded the appellants' conviction under section 148, P.P.C. And thereby wrongly convicted the appellant under section 302(b) read with section 149, P.P.C. It has been argued that the four appellants namely Attiqur Rehman son of Sher Bahadur, Khan Bahadur alias Munir son of Muhammad Akbar, Muhammad Iqbal son of Taj Muhammad, did not cause any injury to the A deceased or to any of the P.Ws. Despite the fact that they were able to do so and that their conviction through application of section 149, P.P.C. Is not legally tenable. The appellants' counsel has further argued that both the parties had accosted each other suddenly and there was no premeditation and that Fakhar-ur- Rehman appellant had allegedly fired only one shot at the deceased in a sudden flare up which does not justify award of death penalty. The learned counsel for the appellant has also argued that according to the prosecution version 11 crime empties were picked up from the place of occurrence which is reflective of cross-firing between the parties. The learned counsel for the appellants does not challenge the conviction of Fakhar-ur-Rehman appellant but merely presses for award of lesser penalty and has further offered to pay Rs.3,00,000 as compensation to the wife and daughters of the deceased in case his death sentence is not confirmed and he is awarded lesser sentence.
29. The prosecution in this case has produced evidence in regard to (i) motive, (ii) eye-witness account and (iii) recoveries of crime empties from the place of occurrence and weapon of offence from the four appellants. Fateh Khan A.S.-I. Who reached the place of occurrence for the first time picked up 11 crime empties from the place of occurrence. The crime empties of .12 bore gun matched with the licensed double barrel gun recovered from Khan Bahadur alias Munir appellant whereas the other empties did not match with the firearms recovered from the other appellants namely Fakhar-ur-Rehman, Attiqur Rehman and Muhammad Iqbal. The evidence of recovery, therefore, does not incriminate the remaining four appellants except Khan Bahadur alias Munir. He had not caused injury to the deceased. However it only establishes the presence of Khan Bahadur at the scene of occurrence which has been almost conceded by the appellant's counsel in his arguments while raising the plea that the appellants and the complainant party suddenly came across each other and there was an exchange of firing in which the fire-shot of Fakhar-ur-Rehrnan appellant had hit the deceased.
30. The prosecution version about motive deposed by Ghulam Yasin P.W.9 and Mehr Zaman P.W.10 is that there was a vacant Haveli of . Latif Shah near their houses in which the appellants used to sit and consume narcotics and that on 20-4-1997. At Degarwela Ghulam Yasin P.W. Forbade them from sitting in the said Haveli due to which the appellants felt insulted and they on the same night at about 11 p.m. The appellants came to the house of Ghulam Yasin P.W. And resorted to aerial firing. Ghulam Yasin P.W.9 conceded in his cross-examination that Latif Shah was alive during the day of occurrence and was unmarried and he was a noble person and that he lived in the said Haveli. He also conceded that there were inhabited houses around the Haveli of Latif Shah and that he had seen the accused taking alcohol/Charas 3/4 months prior to the fateful day. However, he did not lodge any complaint either before the elders of the village or with the police regarding their said conduct. It was highly unlikely that when Latif Shah resided in his Haveli the appellants could indulge in the alleged activities and that for an occurrence which took place 3/4 months back Ghulam Yasin P.W. Would forbid the appellants from sitting in the Haveli on 20-4-1997. Thus apparently the allegations that the appellants used to use Haveli of Latif Shah for consuming intoxicant and forbidding them by Ghulam Yasin P.W. Does not appeal to reason.
31. Ghulam Yasin P.W.9 had further admitted in his cross-examination that many persons from the Mohallah had gathered outside his house when the appellants fired at his house at 11 P.M. And he had named them also but none of the said persons had appeared before the police to support this factum. Ghulam Yasin P.W. Also admitted to have informed the police regarding the firing incident at 11 p.m. And according to his testimony and that of Mehl- Zaman, Zulfiqar Thanedar along with 4/5 Constables who were carrying weapons had reached there but no action was taken against the appellants. If any such incident had taken place and the police had in fact come to the place of occurrence then definitely the report of the incident would have been recorded. Thus there was no occasion for the complainant party to proceed to the police station on the morning of 21-4-1997 at 8 a.m.
32. According to the motive evidence produced by the prosecution Ghulam Yasin P.W. Had forbidden the appellants from sitting in the Haveli of Latif Shah and thus the appellants had motive against him. Ghulam Yasin P.W. Was accompanying the deceased at the time of attack but none of the appellants fired at him despite the fact that he was present within their view. Abdur Rehman deceased had not proscribed the appellants or objected to their activities in any manner. There was no dispute or row between them and as such the appellants had no specific motive to kill him.
The prosecution evidence regarding motive is, therefore, replete with infirmities and does not inspire confidence.
33. Admittedly the occurrence had taken place in a street. The appellants accosted the complainant party suddenly in the street and there was exchange of firing between them. It has been admitted by Naveed Anwar Inspector P.W. That the complainant party also fired after the occurrence meaning thereby that they were also carrying fire-arms at the time of occurrence. It is but natural that when the complainant party was having fire-arms they would have used them at the time of occurrence. The large number of crime empties picked up from the scene of occurrence is also indicative of the fact that there had been exchange of firing between the complainant party on the one side and the appellants on the other. The prosecution had not produced any reliable evidence to support the factum that the appellants had knowledge that the complainant party would be proceeding to the police station to make report against them and to prevent them from doing so they launched a premeditated attack. In fact there was no reason for the complainant party to go to the police station, as already observed. Thus it is apparent that both the parties while being armed suddenly accosted each other in the lane and resorted to firing.
There is no evidence on the record that prior to the act of firing the appellants had armed themselves with the design to launch attack on the complainant party and constituted an unlawful assembly. The trial Court has thus wrongly invoked the application of sections 148 and 149, P.P.C.
Against the appellants and wrongly recorded their conviction under the said offences. Therefore the conviction and sentence of all the appellants under sections 148 and 149, P.P.C. Is set aside. The trial Court has also wrongly convicted four appellants namely (i) Attiqur Rehman son of Sher Bahadur, (ii) Khan Bahadur alias Munir son of Muhammad Akbar, (iii) Muhammad Iqbal son of Taj Muhammad and Sami Ullah son of Said Muhammad under sections 302(b)/149, P.P.C. Their conviction and sentence under sections "302(b)/149, P.P.C. Is also set aside and they are acquitted of the charges. They are in jail, they shall be released forthwith if not required in any other case.
34. As we have already observed that the occurrence was a sudden affair and that Fakhar-ur- Rehman appellant had only fired one shot and did not repeat the same at the deceased despite the fact that nothing prevented him from doing so we are of the opinion that the sentence of death awarded to him is rather harsh. We, therefore, by maintaining the conviction of Fakhar-urRehman under section 302(b), P.P.C. Alone convert his death penalty into life imprisonment. He shall pay a compensation of Rs.3,00,000 (rupees three lac) which will be payable to widow of the deceased and his two daughters alone. We further direct that till the said compensation is paid Fakhar-ur- Rehman appellant will not be entitled to any benefit of section 382(b), Cr.P.C. Or to the benefit of any other reduction in sentence permissible in past or in future. However, only after payment of compensation of Rs.3,00,000 (rupees three lac) to the widow and daughters of the deceased he would become eligible to the benefit of section 382(b), Cr.P.C. And the other reductions in sentence.
35. Resultantly, the murder reference is answered in the negative.
36. Gun P.9 along with its licence shall be returned to Sher Bahadur appellant. The remaining two 7MM rifles and pistol shall be confiscated to the State.