' MIAN MUHAMMAD NAJUMUZ-ZAMAN, J.---Appellant Muhammad Kamran son of Akhtar Yazdani Ijaz along with 2 other co-accused namely Akhtar Yazdani Ijaz alias Abdul Jabbar and Muhammad Rizwan, father and brother of the appellant respectively was tried for the murder of one Muhammad Rafiq in case F.I.R. No.211 dated 17-8-1996 registered under section 302/34, P.P.C. At Police Station, Gujarpura, Lahore by the Additional Sessions Judge, Lahore who vide judgment dated 16-3-1999 while acquitting co-accused convicted the appellant under section 302(b), P.P.C.
And sentenced him to death as well as to pay compensation amounting to Rs.50,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to undergo six months' S.I.
2. Challenging his conviction and sentence appellant filed Criminal Appeal No.272 of 1999 while Muhammad Hanif complainant filed Crl. Rev. 165 of 1999 seeking enhancement of compensation.
Trial Court has also made a reference (M.R. 89 of 1999) under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Muhammad Kamran. All these matters are being disposed of together by this judgment.
3. Succinctly the facts giving rise to this case are that 3/4 days prior to the occurrence, younger son of the complainant namely Kashif brought a video film from the video shop of Kamran accused and when he went to return the same Kamran accused objected to its late return. He (accused) not only hurled abuses but also gave slap to Kashif who told the matter to his brother Sikandar.
Sikandar went to the shop of Kamran accused and asked as to why he had belaboured his brother whereupon both of them exchanged hot words. However, people present at the spot separated them. Kamran said that he would take revenge of that altercation. On 17-8-1996 at 8-30 p.m, when complainant and his son Muhammad Rafiq were coming back to home after paying Salam at the shrine of Miran Hussain and reached near Dhobian Wali Gali, Ijaz Khan accused along with his sons Kamran accused with pump action .12 bore gun and Rizwan accused were standing there and asked the complainant and his son Rafiq the whereabouts of Sikandar. Complainant asked them what they had to say to Sikandar. They said that they had to teach him a lesson for the quarrel whereupon complainant replied that they did not know the whereabouts of Sikandar. On this all the three accused said to them to put off their clothes and Kamran made firing in the air. All the three accused then put them ahead and brought them in Gali in front of their house and again said to tell them the whereabouts of Sikandar upon which complainant raised alarm save, save. On hearing hue and cry Tanveer-ud-Din, Muhammad Mushtaq and other Ahle Mohallah attracted to the spot. On seeing them Kamran accused went on the roof of his house and extended threats to Ahle Mohallah that if anyone came forward he would shot him. Allegedly at the instigation of Ijaz Khan and Rizwan accused, Kamran appellant fired a shot which hit Muhammad Rafiq on the back and he fell down after receiving injury. Thereafter the accused fled away and the injured was removed to the hospital where he succumbed to the injuries.
4. On receiving information about the said occurrence Malook Ali, S.-I., P.W.12 reached at the Emergency Ward, Mayo Hospital, Lahore where he recorded the statement Exh.P.C. Of Muhammad Hanif P. W.11 (father of deceased) and sent a copy of the same to the police station for registration of formal F.I.R. The police officer after inspecting the dead body prepared injury statement Exh.P.H., inquest report Exh.P.J. And sent the dead body to the mortuary for post-mortem examination.
Thereafter he went to the spot where he prepared inspection notes and took into possession blood-stained earth vide memo. Exh.P.A. He also collected one crime empty P.1 and secured the same vide memo. Exh. P.B. During investigation he also recorded statements of the witnesses under section 161, Cr.P.C. As well as got prepared scaled site-plan Exh.P.F. And P.F./1 through Syed Imran Bokhari Draftsman P.W.7. On 24-8-1996 appellant and his co-accused were arrested. On 28-8-1996 appellant while in police custody led to the recovery of .12 bore gun P.2 along with five live cartridges Exh.P.3/1-5 from his house. These articles were taken into possession vide memo. Exh.P.D.
The police officer finally after complying with legal formalities submitted challan before the trial Court where prosecution produced 12 witnesses to prove the charge against the appellant and his co-accused.
5. Muhammad Arif, P.W.l was present when blood-stained earth and crime empty were taken into possession from the Spot. He also signed the recovery memos. Muhammad Nasim, S.-I., P.W.2 entered formal F.I.R. Exh.P.C./1 at the police station. Muhammad Idrees P.W.3 identified the dead body of Muhammad Rafiq deceased at the time of post-mortem examination. He was present when the appellant led to the recovery of crime weapons. He also signed the recovery memos. In this regard Mehmood Ahmad F.C., P.W.4 took the dead body to the mortuary for post-mortem examination and after the same handed over last-worn clothes of the deceased to the Investigating Officer. Faiz Ahmad, F.C., P.W.5 took the parcels (case property) to the relevant offices and delivered the same, intact. Muhammad Akram, A.S.-I., P.Vst.6 kept the parcels (case property) in Malkhana for safe custody and later on delivered the same to the constables for onward transmission to the relevant offices. Syed Imran Bokhari, Draftsman P.W.7 prepared scaled site-plan Exh.P.F. And P.F./1, Dr. Mahfooz Ahmad P. W.8 conducted post-mortem examination on the dead body of Muhammad Rafiq and observed the following injuries thereon:-- "Multiple rounded lacerated wounds, each measuring about .5 x .5 c.m. x going deep in to the chest and abdomen, with inverted margins in an area 42 x 34 c.m. On the back of chest and abdomen (wounds of entry)"
' In the opinion of doctor said injury was sufficient to cause death in the ordinary course of nature and the probable time between the injury and death was 5 to 10 minutes.
' Muhammad Mushtaq, P.W.9, Tanvir-ud-Din, P.W.10 and Muhammad Hanif, P.W.11 being the eye- witnesses of the case while supporting the prosecution case narrated the circumstances under which appellant and his co-accused in furtherance of their common intention had committed the murder of Muhammad Rafiq deceased. All of them were subjected to lengthy and searching cross- examination but they remained steadfast. Malook Ali, S.-I., P.W.12 conducted the investigation as narrated earlier.
6. Learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.M., that of Serologist Exh.P.N. And Forensic Science Laboratory Exh.P.O. And closed the prosecution case.
7. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. While answering to the question why the P.Ws. Deposed against you and why this case against you?
Appellant replied as under:-- "The P.Ws. Falsely deposed against me due to the relation with the deceased and his brother.
Sikandar teased my sister and my father Akhtar Ijaz Yazdani complained to Mohalladar and to complainant. The complainant party felt annoyed and on 17-8-1996 at about 8-30 p.m. I was present at my video shop Mehr Hanif Road, the deceased Rafiq, Sikandar Mushtaq P.W. Along with four persons came there and attacked on me on which I became injured. They dragged me out of my shop. And Sikandar the brother of the deceased, ordered his companions to take off my clothes and took me in the Bazaar in naked position. Sikandar was armed with pump action gun and fired in the air and raised Lalkara to teach us lesson how my father complained about teasing girl against them. Then they dragged me from the shop. I fled away, they chased me and during this Sikandar again fired on me near the house of Munir Ahmed which did not hit me and later on this fact came to my knowledge that the fire of Sikandar hit his own brother Rafique deceased who was following me. I am innocent and I have not committed the murder of Rafique. When I appeared before the police on 18-8-1996 I was in injured condition but the police did not obtain my medical examination with mala fide intention."
' Neither the appellant nor his co-accused made any statement under section 340(2), Cr.P.C. Nor produced evidence in his defence.
8. Trial Court after appraisal of evidence available on record vide judgment dated 16-3-1999 convicted and sentenced the appellant as narrated earlier.
9. Learned counsel for the appellant while challenging the legality of the impugned judgment, argued that prosecution had not come before the trial Court with clean hands; that in fact murderous assault was launched by complainant party on Kamran appellant and the fire made by Sikandar (brother of the deceased) hit Muhammad Rafiq on the back as a result of which he died at the spot but later on by twisting the facts with the connivance of local police appellant and his co-accused were involved in this case; that during investigation witnesses who were not present at the spot were introduced just to strengthen the prosecution case; that recovery evidence relied upon by the prosecution to connect the appellant with this offence was tailored during the investigation and the motive was never produced before the trial Court. It was lastly argued that in the circumstances trial Court had erroneously convicted and sentenced the appellant. Conversely, learned counsel for the State and the complainant while supporting the impugned judgment opposed the arguments advanced by the learned counsel for the appellant.
10. With the able assistance of learned counsel for the parties we have minutely gone through the record of this case. The entire case of the prosecution rests upon the statements of Muhammad Mushtaq, P.W.9, Tanvir-ud-Din, P.W.10 and Muhammad Hanif P.W.11, motive for the commission of this offence, Medico-legal reports and the recovery of incriminating articles at the instance of the appellant.
11. This occurrence took place in a thickly-populated area which was witnessed by Muhammad Mushtaq, P.W.9, Tanvirud-Din, P.W.10 and Muhammad Hanif, P.W.11, Muhammad Mushtaq, P.W.9 was the employee of Babar Hussain Niazi whose house was few paces away from the place of occurrence. At the relevant time Muhammad Mushtaq, P.W.9 was present at the house of his employer and on hearing the commotion he came outside the house and witnessed the occurrence. Tanvir-udDin, P.W.10 was the resident of the area and his house was situated very close to the place of occurrence. He was also attracted to the place of occurrence on hearing commotion in the street. Both the said witnesses are neither related to the complainant party nor their enmity with the appellant stands established from the record. Both of them are absolutely independent and disinterested witnesses having no axe to grind against the appellant.
Muhammad Hanif, P. W.11 was father of deceased and was present along with the deceased when he was brought to the place of occurrence by the appellant and his co-accused. He was also resident of the same lane. In the light of the data available on the record the presence of all the three eye-witnesses at the relevant time seems to be very natural and stands established from the record. All of them were subjected to lengthy and searching cross-examination but we have observed that not only these witnesses revenged, steadfast, all of them have deposed in a very natural manner and their statements have painted a vivid and true picture of the occurrence. It is very much apparent from the statement of these witnesses that the fire made by the -appellant had hit at the back of the deceased as a result-a which he died while on his way to hospital. Report prepared by Dr. Mahfooz P.W.8 affirms the -location, duration and nature of injuries as narrated by the eye-witnesses and this piece of evidence (i.e. Post-mortem report) renders ample support to the ocular account. During the spot inspection a crime empty was also recovered from the place where from the appellant had brought the deceased in front of his house. Statedly, at that spot a fire in the air was made by the appellant. The said empty had matched with the gun recovered at the instance of the appellant as it is apparent from the report of the. Forensic Science Laboratory Exh.P.O. This piece of evidence further supports the prosecution case and renders sufficient corroboration to the ocular account. evidence, is sufficient to be relied upon to Auphold the conviction of the appellant.
12. As far the quantum of sentence of appellant is concerned, we are of the considered view that in .The circumstances of this case trial Court has taken a harsh view in this regard. The motive for this occurrence, as alleged in the F.I.R. Was that a few days prior to the occurrence, Sikandar real brother of the deceased had quarreled with the appellant and to take revenge of the said insult Muhammad Rafiq deceased was done to death. The said Sikandar was never produced before the trial Court in support of the motive part of E the prosecution case and there is no direct evidence in this regard.
' Similarly, the appellant and his co-accused wanted to get even with Sikandar for the said insult. It is not understandable as to why Muhammad Rafiq was slain by the appellant and his co-accused.
Further from the very beginning case, of the prosecution was that when the witnesses came at spot, Kamran appellant being armed with gun along with other co-accused was present in the lane and at the same place he was instigated by his co-accused to fire from his gun at Muhammad Rafiq deceased. It is not understandable as to why appellant went at roof top of fiis house and fired from there. It seems that some thing else had happened prior to the act of firing at the deceased and prosecution had deliberately concealed, that fact. The circumstances which compelled Kamran appellant to climb up the roof top of his house and to fire from there are shrouded in mystery.
The ocular account which rings true inspire-confidence, is persuasive in nature and finds, support from other independent corroborative piece of In the said view of the matter, we are persuaded to take a lenient view qua the quantum of sentence of the appellant. Accordingly, while maintaining the conviction, the sentence of the appellant is reduced to imprisonment for life with the benefit of section 382-B, Cr.P.C. The appellant shall pay compensation to the regal heirs of the deceased on the same terms as fixed by the trial Court.
13. Learned counsel for the complainant has failed to bring on record any circumstance showing that the appellant is a man of mean and can pay more compensation than fixed by the trial Court.
In this view of the matter, we see no force in Crl. Rev. No.165 of 1999, which stands dismissed.
14. Death sentence is not confirmed and murder reference is answered in the negative.
Sentence reduced.