' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No. 59 of 1999 filed by Muhammad Nawaz, Ramzan, Haq Nawaz, Sultan, Ghulam, Shaban, Razman, Kameer, Ramzan, Riaz, Manzoor, Riaz son of Fareed and Riaz son of Allah Ditta, appellants were convicted and sentenced by learned Additional Sessions Judge, Toba Tek Singh vide judgment, dated 27-2- 1999 as under:-- ' Muhammad Nawaz ' Death and to pay a fine of Rs.20,000, in default 2 years' R.I. And also to pay compensation of Rs.20,000, in default six months' S.I. Under section 302(b) read with section 149, P.P.C., 7 years' R.I.
With a fine of Rs. 10,000, in default six months' R.I. Under sections 324/149, P.P.C. For causing injuries to Mst. Daulat Bibi. 7 years' R.I. With a fine of Rs.10,000 in default six months' R.I. Under section 324 read with section 149, P.P.C. For causing injury to Noor Nawal.
' 3 years' R.I. And to pay a fine of Rs.10,000 each as Daman under section 337-F(iv) read with section 149, P.P.C. For causing injury to Mst. Daulat.
' 3 years' R.I. With a fine of Rs.10,000 each under section 337F(iii) read with section 149, P.P.C. For injury to Ranizan.
' 2 years' R.I. With a fine of Rs.10,000, in default six months' S.I. Under section 148, P.P.C.
' Haq Nawaz, Ramzan, Riaz son of Fareed and Ghulam ' Imprisonment for life and a fine of Rs.20,000, in default two years' R.I. And also to pay compensation of Rs.20,000 in default six months' S.I. Each under section 302(b) read with section 149, P.P.C.
' 7 years' R.I. And to pay a fine of Rs.10,000, in default six months' R.I. Under section 324 read with section 149, P.P.C. For causing injuries to Mst. Daulat.
' 7 years' R.I. And to pay a fine of Rs.10,000 in default six months' R.I. Under section 324 read with section 149, P.P.C. For causing injury to Noor Nawal.
' 2 years' R.I. With a fine of Rs.10,000 in default six months' S.I. Under section 148, P.P.C.
' Shahban, Ramzan son of Kameer ' Kameer son of Mutalli, Ramzan son of Fareed, Riaz son of Fareed, ' Manzoor son of Fazal, Riaz son of Allah Ditta and Allah Bukhsh son of Ahmad 2 years' R.I. With a fine of Rs.10,000 each in default six months' S.I. Under section 148, P.P.C.
' All the sentences except the: sentence of death to Muhammad Nawaz, appellant were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
' Murder Reference No.107 of 1999 for confirmation or otherwise of death sentence of Muhammad Nawaz, appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place in between the night of 8th/9th May, 1994 within the revenue estate of Chak No.684/25 at a distance of 7 kilometres from Police Station Pir Mahal District Toba Tek Sindh while the matter was reported to Polcie by Dost Muhammad at 10-55 a.m. On 10-5- 1994 and the formal F.I.R. Exh.PN was recorded by Muhammad Irshad, A.S.-I.
3. Briefly stated the facts of the case are that on the night in between of 8th and 9th of May, 1994, Dost Muhammad, complainant, Noor Nawal, Mst. Daulat Bibi, Ramzan, Dilmeer, Zulifqar, Noor and Muhammad Nawaz were installing thrashing machine in Acres Nos.24 and 25 of Square No.29. At about 11-30 p.m., accused Muhammad Nawaz armed with .12 bore gun, Haq Nawaz armed. With rifle, Ramzan armed with .12 bore gun, Ramzan son of Fareed armed with hatchet, Riaz son of Fareed armed with Sota, Manzoor alias Manza, Sultan both armed with guns, Ghulam armed with iron bar, Ramzan armed with Dang, Kameer armed with Sota, Allah Bukhsh, Raiz son of Allah Ditta, both armed with guns, Ameer (since dead) armed with Sota and 4/5 unknown assailants trespassed into land of the complainant party. Allah Bukhsh raised Lakara that Dilmeer etc. For not vacating possession of the land and that they be done to death whereupon Muhammad Nawaz accused fired from his gun and the shot hit Dilmeer deceased at his back in consequence of which he fell down. Thereafter Haq Nawaz accused fired from his rifle at Mst. Daulat Bibi and the shot hit her at right thigh and she fell down. Thereafter, Ramzan son of Mahmood twice fired from his gun at Noor Nawal P.W. And the shots hit on the big toe of his right foot. It was also alleged that Riaz son of Fareed and Ghulam accused delivered two blows with their weapons of offence to Muhammad Ramzan P.W which hit at little finger of his left hand and back side of his chest respectively. It was alleged that other accused had been firing in the air and raising Lakara. It was further alleged that Dost Muhammad complainant, Zulifqar, Muhammad Nawaz and Noor P. Ws. Had been entreating the accused and in the meantime other males of village gathered at the place of occurrence who also entreated the accused and released the injured person from the accused.
' The motive alleged was that a civil suit with regard to the agricultural land was pending adjudication between the accused and the complainant party in the Civil Court. The accused wanted to take forcible possession of the land and to achieve their object, they launched murderous assault at Noor Nawal, Dilmeer and Daulat Bibi. Dilmeer succumbed to the injuries on 10-5-1994.
4. Invation of the case was taken over by Muhammad Irshad A.S.-I. (P.W.I4). He, after registration of the formal F.I.R. Went to the place of occurrence, prepared the site-plan Exh.PF; took into possession the blood-stained earth vide memo. Ex. PK from the place where Dilmeer sustained injuries, similarly bloodstained earth from the place where Daulat Bibi was injured was secured vide memo.
Exh.PL, blood-stained earth from the place where Noor Nawal was injured was secured vide memo.
Exh.PM, three crime empties were secured vide memo. Exh.PC, similarly 5 crime empties of 7 MM rifle were taken into possession vide memo. Exh.PD, four empty cartridges were also secured vide memo. Exh.PE, 30 empty of rifle 8 MM were taken into possession vide memo. Exh.PF, on 11-5-1994 Dilmeer succumbed to injuries; section 302, P.P.C. Was added, thereafter the investigation was taken over by Muhammad Siddique Inspector (P. W.15), he inspected the dead body of Dilmeer, prepared the injury statement Exh.PY, inquest report Exh.PZ and on 4-6-1994, arrested Sultan, Ramzan son of Mahmood and Kameer and also Ameer since dead. On 10-6-1994, Ameer while in custody led to the recovery of Sota P.7 which was taken into possession vide memo. Exh.PG, Sultan accused also got recovered gun P.8 which was taken into possession vide memo. Exh.PH, Kameer got recovered Sota P.12 which was secured vide memo. Exh.PJ, on the same day Ramzan led to the recovery of shot gun P.10 which was taken into possession vide memo. Exh.PI, on the same day the I.O. Arrested Muhammad Nawaz, Riaz son of Ghulam Farid, Muhammad Ramzan son of Ghulam Farid, Muhammad Shahban, Muhammad Ramzan son of Kameer, Ghulam and Allah Bukhsh, on 13- 6-1994 Ramzan son of Fareed while in Police custody led to the recovery of hatchet P.13 which was taken into possession vide memo. Exh.PP, on the same day, Ramzan led to the recovery of Dang P.14 which was secured vide memo. Exh.PQ, similarly, on the same day Shaban accused got recovered Sota P.15 which was taken into possession vide memo. Exh.PR and on 18-6-1994 Haq Nawaz, Riaz son of Allah Ditta and Manzoor alias Manza were arrested. On the same day, Nawaz son of Mehmood under the custody got recovered shot-gun P.16 which was taken into possession vide memo. Exh.PS, Allah Bukhsh accused also got recovered shot-gun P.20, Ghulam accused led to the recovery of iron bar P.19, Haq Nawaz accused got recovered rifle 7 MM P.23, Riaz accused led to the recovery of shotgun P.25, Manzoor accused got recovered gun P.27 and after completion of the remaining formal investigation, all the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 15 witnesses in all. Then the learned APP tendered in evidence report of the Chemical Examiner Exh.PKK, report of the Serologist Exh.PLL and closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. However, after conclusion of the trial, all the accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants in support of this appeal submits that prosecution has failed to prove the motive; that occurrence had taken place in dark hour of the night; there is delay of 36 hours in lodging the F.I.R., so the F.I.R. Was recorded with due deliberation and consultation; Muhammad Nawaz, appellant who was awarded death sentence was found innocent by the Police along with Allah Bukhsh and Riaz son of Allah Ditta during the course of investigation were got discharged; there is partial compromise between Muhammad Nawaz, appellant and the complainant party, that is, between wife and sister of the deceased Dilmeer, so it is a mitigating circumstance in favour of Muhammad Nawaz, appellant; Riaz and Nazeer son of Allah Bukhsh, appellant had purchased 4 acres of land, the possession of 2 acres was given by Nawaz Dhobi, while possession of four Kanals was with Bahadur, brother of Noor Nawal, injured P.W.; the said Riaz and Nazir had filed a an ejectment suit which was still pending; learned counsel has taken us through Exh.DB to Exh.DF; injuires on the persons of the injured P. Ws. Are simple in nature, none of the injuries are on vital part of their bodies; crime empties were recovered from the spot but were not sent to the office of Fire Arms Expert for wedding with the weapons recovered on the pointation of the appellants and that the prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal.
7. Learned counsel for the State assisted by learned counsel for the complainant submits that the appellants are vicariously liable; they all armed with firearms and Dandas in prosecution of their common object committed the murder of Dilmeer deceased and caused injuries on the persons of Daulat Bibi, Noor Nawal and Ramzan; ocular account is corroborated by medical evidence; in fact the appellants in order to take forcible possession of the land came at the spot to take possession from the complainant party and that the prosecution has been successful in proving its case against the appellants. They both support the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the evidence on record. In the instant case, the occurrence had taken place in between the night of 8th and 9th May, 1994.
The Police Station was at a distance of 7 kilometres from the place of occurrence but till 10-54 a.m.
On 10-5-1994 nobody reported the matter to the Police. This inordinate delay in reporting the matter to the Police casts doubt upon the veracity of the prosecution story. On the other hand, reply to Question No.19 given by Muhammad Nawaz, appellant in his statement under section 342, Cr.P.C. Reads as under:-- "Shafqat Mahmood and Muhammad Afzal owners of Square Nos.29 and 41 sold Killas Nos.16, 17, 18, 23 24 and 25 of Square No.29 to Riaz son of Allah Ditta accused and Nazir son of accused Allah Bukhsh. One Nawaz son of Nawaz Dhobi was cultivating Killas Nos.16 and 25 of Square No.29. He gave the possession of these Killas to above mentioned Riaz and Nazir. The possession of remaining Killas Nos.17, 18, 23 and 24 were with Bahadur. The complainant party was annoyed at the possession of above mentioned Raiz and Nazir. It is pertinent to mention here that the complainant party was in litigation with aforementioned Shafqat Mahmood and Muhammad Afzal regarding the above mentioned two squares of land. They planned to get the possession of these two Killas of agricultural land back. To materialize their design, they started firing at the place of occurrence from different sides on the night of occurrence. Riaz and Muhammad Nazir having gone to the place of occurrence resorted to firing in their self-defence, resisted for some time but ultimately escaped from the spot. Dilmir deceased and Daulat Bibi P.W received injuries during that cross-firing in the darkness of night. Noor Nawal and Ramzan P.Ws. Manoeuvred self-suffered injuries and got this false case registered against me and my co-accused. P.Ws. Are inter-related and inimical towards us."
' From a perusal of the above reply, it is clear that Muhammad Nawaz, appellant too had not told the truth. We are of the considered view that there was some dispute over possession of the land between the parties and occurrence had not taken place as the prosecution wants us to believe.
There is only one injury on the person of the deceased and that was attributed to Muhammad Nawaz, appellant with whom the widow and sister of the decease have compromised. The injuries on the persons of injured Daulat Bibi, Ramzan and Noor Nawal were simple in nature and on non- vital parts of the bodies. Though the crime empties were recovered from the spot but those were not sent to the Fire Arms Expert for wedding with the weapons of offence recovered on the pointation of the appellants for the reasons best known to the prosecution. Muhammad Nawaz who has been awarded death sentence along with Allah Bukhsh and Raiz was found innocent by the Police during the course of investigation.
Since partial compromise has been arrived at between Muhammad Nawaz, appellant and widow and sister of Dilmeer deceased, so we though maintain the conviction of Muhammad Nawaz, appellant under section 302(b), P.P.C. But reduce the sentence from death to imprisonment for life with the benefit of section 382-B Cr,P,C. The sentence of fine is converted into compensation and the same shall be paid along with the amount of compensation, in default six months' S.I. The other sentences awarded to Muhammad Nawaz, appellant are however, maintained but all .The sentences shall run concurrently. The death sentence of Muhammad Nawaz, appellant is Not confirmed and Murder Reference is replied in the Negative.
' Now, we take up the case of Haq Nawaz son of Mahmood, Ramzan son of Mahmood, Raiz son of Fareed and Ghulam son of Ameer. All these appellants were sentenced to imprisonment for life.
They did not touch the deceased Dili-neer. Haq Nawaz appellant has caused an injury on the thigh of Daulat Bibi. Ramzan had fired two shots which hit Noor Nawal on his left foot while Riaz and Ghulam appellants caused Sota blows on the left hand of Ramzan, injured P.W. There is a discharge report, Exh.DD with regard to Allah Bukhsh and Riaz. Exh.DB is copy of the Khasra Girdawarl. While Exh.DC is copy of the ejectment suit filed by Raiz Ahmad son of Allah Ditta against Bahadur son of Ameer. Exh. DE is a plaint of suit for preemption filed by Haji Muhammad Hanif against Nazir etc. And Exh.DF is copy of the judgment delivered in the suit for preemption. In our considered view, it is not a case of vicarious liability but of individual liability /responsibility. The occurrence had taken place in between the night of 8th and 9th of May, 1994. 'They faced the agony of trial till 27-2-1999 when the judgment was pronounced by the trial Court. This appeal is pending for the last more than 3 years. In this, view of the matter, the period of sentence which the appellants namely Haq Nawaz son of Mahmood, Ramzan son of Mahmood, Riaz son of Fareed and Ghulam son of Ameer have suffered is treated to be sufficient to meet the ends of justice. The 'Conviction and sentence recorded against them by the trial Court is modified accordingly.
' Sultan son of Ameer, Shahban son of Kameer, Ramzan son of Kameer, Kameer son of Mutali, Ramzan son of Fareed, Manzoor alias Manza son of Fazal, Riaz son of Allah Ditta and Allah Bulchsh son of Ahmad were convicted under section 148, P.P.C. And sentenced to 2 years' R.I. Each with fine as stated before. They did not cause any either injury to the deceased or P.Ws., so the sentence which they have already undergone is treated to be sufficient to meet the ends of justice. All these appellants are on bail. They shall stand discharged from their bail bonds.
Sentence reduced.