' CH. IFTIKHAR HUSSAIN. J.-- Appellant Muhammad Ilyas along with three others namely Tariq Mehmood, Irfan Mehmood and Shahbaz was tried under section 302, P.P.C. Read with section 34, P.P.C. In case F.I.R. No.221 registered with Police Station, Sadar 'Lea Musa, District, Gujrat on 29-7-1998 for that day at about 2-00 p.m. In furtherance of their common intention, in the area of Kotla Sarang Khan, committing the Qatl-e-Amd of deceased Mazhar Iqbal by causing his death.
2. On the conclusion of their trial appeal Muhammad Ilyas was found guilty of the Qatl-e-Amd of the deceased, while not his said co-accused.
3. He vide the judgment rendered on 20-12-2000 by Mr. Hassan Mubrub, learned Additional Sessions Judge, Gujrat was convicted under section 302(b), P.P.C. And sentenced to death subject to confirmation by this Court and to pay Rs.50,000 as compensation to the legal heirs of the deceased and in case of default to suffer two years' rigorous imprisonment, whereas his aforesaid co-accused were acquitted of the charge giving them the benefit of doubt.
4. He feeling himself aggrieved of the impugned judgment to the extent of his conviction and sentence has assailed the same by way of the afore-mentioned appeal.
5. The Murder Reference mentioned above has been submitted to this Court for confirmation of his sentence of death.
6. As these matters have arisen out of one and the same case, hence are being disposed of by this single judgment.
7. Briefly the facts relevant for the disposal of these matters are that the aforesaid case has been registered on the statement Exh.P.A. Of Muhammad Sadiq complainant (P.W.1). He has mentioned therein that in the morning on 29-7-1998, a quarrel had taken place between their child and that of.
Muhammad Ilyas's. Muhammad Ilyas had threatened them that he will avenge their insult. At about 2-00 p.m. That day he, Zafar Iqbal, Ghulam Sarwar, Fazal Begum and Mst. Irshad were returning to their house after Fatehe Khawni from the house of Ch. Barkat Ali. They when reached near the house of Sardar Khan Kumhar, all of a sudden from the front side, Ilyas, Muhammad Shahbaz, Tariq and Irfan, all armed with .30 bore pistols came there while raising Lalkaras.
Muhammad Shahbaz said that Mazhar Iqbal be not spared. Tariq and Irfan encircled them and asked Muhammad Ilyas to shoot them as they are with him Muhammad Ilyas on their asking fired with pistol at Mazhar Iqbal, which hit on the front left side of his chest near the nipple. On the receipt of fire shot, he fell down and died instantaneously. On their noise, many persons were attracted to the spot. They on seeing them fled away from the scene while firing in the air.
8. During the investigation acquitted co-accused Irfan was found innocent, while appellant Muhammad Ilyas and the other two acquitted accused namely Muhammad Shahbaz and Tariq involved in the matter. They were challaned to the Court.
9. The learned trial Court formally charged them under section 302 read with section 34, P.P.C. They pleaded not guilty.
10. The prosecution at their trial relied upon its ocular account, medical evidence, motive and the recovery of crime weapon pistols from appellant Muhammad Ilyas and his acquitted co-accused Muhammad Shabaz. The appellant and his acquitted co-accused pleaded bare denial.
11. Learned trial Court after hearing the parties concluded that the charge of the Qatl-e-Amd of the deceased stood proved against the appellant beyond any shadow of reasonable doubt, while not against the acquitted accused. It so, has convicted and sentenced him, while acquitted his co- accused as said above.
12. Learned counsel for appellant Muhammad Ilyas has frankly submitted before us that he does not assail his conviction and only requests for reduction in his sentence as he has caused solitary blow to the deceased and it was on the asking of his co-accused and that the motive of the occurrence is shrouded in mystery. Learned State counsel has urged nothing as against the same.
13. We have considered the submissions made from both the sides and perused the record.
14. We find that the approach of the learned counsel for the appellant in not assailing his conviction is absolutely justified in the facts and circumstances of the case.
15. The ocular account of the prosecution consists of the statement of complainant Muhammad Sadiq (P.W.1) and Mst. Irshad Begum, the wife of brother of deceased Mazhar Iqbal. Muhammad Sadiq has improved his statement at the trial inasmuch as that he initially in the F.I.R. Has mentioned that appellant Muhammad Ilyas had fired only pistol shot to the deceased hitting on the left front side of his chest near the nipple. He in the F.I.R. Has ascribed no shot to any other accused. He, while at the trial has attributed one pistol shot to acquitted accused Muhammad Shahbaz hitting on the left flank under the armpit of the deceased. This was an improvement on his part at the trial. This perhaps was due to the fact that on the autopsy two fire-arm entry wounds were found on the dead-body of the deceased. This seemingly was to bring his testimony in accord with such line in the medical evidence. This shows that he perhaps had not seen the occurrence and had he seen the same, he would have definitely mentioned the injury attributed to the said acquitted accused in the F.I.R. He has made another significant improvement at the trial in attributing a role of fire shot at him to acquitted accused Tariq Mehmood. He but had never assigned such role to him in F.I.R. Exh.P.A. This again shows that he perhaps was not present at the spot and had not seen the incident and had he been there, he would have given an accurate account of the occurrence. The account of the occurrence xendered by him also stands not supported by the medical evidence. According to Dr. Farooq Ahmad Bangash (P.W.5), the following injuries were found on the dead-body of the deceased.
(1) A fire-arm entry wound 1/2 c.m. x 1/2 c.m. x margin inverted over the front side of upper part of left side of the chest 2 c.m. Above the left nipple. No blackening was present around the edges of wound.
(2) A fire-arm entry wound 1/2 c.m. x 1/2 c.m. x inverted margin over the outer and front of the left side of the chest on the interior be order of the exilia. No blackening was present. Exit wound 1 c.m. x 1 c.m. Over the back of right side of the chest with averted margins 9 c.m. Below the interior angle of right scapula.
16. He in the cross-examination has stated that Injury No.1 was upward to downward and backward, whereas Injury No.2 from the left side travelled horizontally and entered into the lungs.
17. Muhammad Sadiq P.W.1 in the cross-examination has stated that all the accused were standing together and they had started firing together. This does not appear from his evidence that level of any of the accused at the time of firing was higher than that of the deceased. This, thus appears from his evidence that he perhaps was not present at the time of occurrence and had it been otherwise, he would have seen the locale and exact manner of infliction of injuries to the deceased and there had not been any inconsistency in-between his deposition and the medical evidence.
We, therefore, feel that it was not safe to rely upon him. His evidence, therefore, is discarded.
18. As regards the evidence of Mst. Irshad Begum (P.W.2), the same had found support from the medical evidence on regards the infliction of the injury to the deceased by the appellant. She has stated that appellant had fired with pistol at the deceased, which hit on the left side of his chest.
The said injury is available in the evidence of the doctor. She is a lady though related to the deceased but also to the appellant as it has come in the evidence that appellant and the deceased were closely related to each other. He was his maternal cousin as the mothers of the both were real sisters to each other. She, therefore, appeared to have no motive to depose falsely against him. She is a housewife. The family including the deceased was returning to their house after offering Fatehe Khawani in the house of aforesaid Barkat Ali. It is a common phenomenan that family jointly visits other houses at such occasions. So, her evidence has inspired confidence to us as regards the involvement of the appellant in the murder of the deceased. Her evidence, as said above has found support from the medical evidence as regards the appellant's role of infliction of injury on the left front side of the chest of the deceased. We, therefore, find that she was a reliable witness. Her evidence has completely connected the appellant with the charge of the Qatl-e-Amd of the deceased.
19. As regards the motive part of the story the same has not been proved. Muhammad Sadiq complainant has not uttered a word even in the examination-in chief as regards the motive. Mst.
Irshad Begum only has deposed about the same. According to her, it was a quarrel between the nephew of Mazhar Iqbal deceased and the son of appellant Muhammad Ilyas. According to her, it was a day prior to the occurrence. This position but is inconsistent to the version of the complainant in F.I.R. Exh.P.A. He in the same has stated that such quarrel had taken place between their child and that of appellant Muhammad Ilyas in the morning on the day of the occurrence. She but in the examination-inchief has stated that it was a day prior to the same. It, however, is also interesting to note that she in the cross-examination has admitted it to be correct that she had stated before the police that the accused have made fight between the children as an excuse for killing the deceased, while no such fight had taken place. She, thus has negated her own version in that regard by stating that such fight had not taken place. The motive part of the prosecution story, therefore, had not been proved at all on the record. The learned trial Court, therefore, has wrongly found the same to have been proved. The same, thus could not be used in corroboration to the ocular testimony in anyway. Its approach in that regard was erroneous.
20. As regards the recovery of crime weapon .30 bore pistol P.1 from the appellant, the same was inconsequential as admittedly no empty had been found from the spot and no matching report was available to the prosecution to say that the said weapon was used in the killing of the deceased. It may be mentioned here that report Exh.P.O. Of the Forensic Science Laboratory is available in the prosecution evidence as regards the .30 bore pistols shown to have been recovered from the appellant and acquitted accused Muhammad Shahzad. The same is simply to the effect that these were semi-automatic weapons and in working condition. This was to rio other effect. The learned trial Court did not find such recovery to be of any value. It was rightly so.
21. Anyway, appellant Muhammad Ilyas as on the basis of the evidence of Mst. Irshad Begum (P.W.2) supported by the medical evidence is connected with the charge of the Qatl-e-Amd of the deceased. He, therefore, has rightly been convicted for the offence of his Qatl-e-Amd. We, therefore, maintain his conviction. However, it is clarified that his conviction shall be under section 302(c), P.P.C. Instead of section 302(b), P.P.C.
22. As regards the question of sentence to him, we have found some extenuating circumstances in his case for awarding of lesser penalty to him. These firstly are that he had fired solitary shot to the deceased. Secondly, it has sufficiently been proved from the evidence of Mst. Irshad Begum that it was on the asking of his co-accused Tariq Mehmood and Irfan. Thirdly, the motive behind the occurrence has remained shrouded in mystery as the origin of the occurrence has not become known. We, therefore, for safer administration of justice, while exercising our discretion, reduce his sentence from death to imprisonment for life. However, in the event of failure by him to- pay the compensation to the legal heirs of the deceased, he shall suffer six months' simple imprisonment instead of two years' rigorous imprisonment, as according to section 544-A, Cr.P.C. This much sentence of imprisonment is provided in case of such failure. He shall also be given the benefit of section 382-B, Cr.P.C.
23. With the above reduction/ modification in his sentence, we dismiss his appeal.
24. The murder reference is answered in the negative. The sentence of death is not confirmed.