' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 11-11-2000 passed by the learned Additional Sessions Judge, Sahiwal, whereby the appellants have been convicted and sentenced as under:--
(i) Bashir Ahmad for offence under section 302, P.P.C. To death plus payment of Rs.50,000, as compensation, to the legal heirs of the deceased.
(ii) Amin and Shaukat Ali for offence under section 302/34, P.P.C. To undergo R.I. For 25 years each.
' Murder Reference No.212 of 2002, seeking confirmation or otherwise of death sentence imposed upon Bashir Ahmad, has also been placed before us. We propose to decide both these matters through this single judgment.
2. The facts of the prosecution case, in brief, as narrated by Naseer Ahmadcomplainant in F.I.R.
Exh.PE, are that on 16-10-1998 at about 7-30 a.m., he along with his wife Mst. Safia Bibi, Mst. Jannat Bibi and Haitam was going to their land and when they reached in front of the shop of Rajab Ali Maulvi, all of a sudden Shaukat Ali, Bashir Ahmad armed with .12 bore gun and Amin emerged out of the said shop. Amin and Shaukat Ali raised Lalkara that as Liaqat Ali, brother of Mst. Safia Bibi, had murdered Mst. Jatti Bibi, the wife of their paternal cousin Muhammad Ramzan, Mst. Safia Bibi should not go alive. Bashir Ahmad fired a shot at Mst. Safia Bibi but the shot missed the target and in order to save her life, she ran towards the house of Nazar Bodla. Bashir fired second shot, hitting Mst. Safia Bibi on the backside of her head, in view whereof she fell down. The complainant and his companions tried to apprehend Bashir Ahmad, who raised Lalkara that he, whoever came near him, would face the same fate. The accused persons made good their escape along with the weapon. Mst. Safia Bibi succumbed to the injuries at the spot.
3. After registration of formal F.I.R. On 16-10-1998, Muhammad Amjad Javed, S.-I./P.W.6, went to the place of occurrence, prepared the injury statement Exh.PB and inquest report (Exh.PC) of the deceased and sent the dead body for postmortem examination. He arrested Bashir Ahmad and Shaukat Ali on 26-11-1998. On 28-11-1998, Bashir Ahmad, while in custody, led to the recovery of gun P-4 and four live cartridges (P-5/1-4) from his house, which were taken into possession through memo. Exh.PH. After completion of investigation, the accused were challaned to face trial.
4. To prove its case at the trial, the prosecution examined nine witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PK and Serologist Exh.PK/1 closed its side.
Thereafter, the accused in their statements under section 342, Cr.P.C. Pleaded their innocence and false implication due to enmity.
5. Learned counsel for the appellant, in support of this appeal, submits that Naseer Ahmad, complainant/P.W.4, was not present on the spot; that in fact, he was present at T.H.Q. Hospital, Cheechawatni, in connection with the post-mortem examination of Mst. Safia Bibi, who was murdered three days earlier to the present occurrence and the post-mortem examination was conducted on 16-10-1998, i.e. On the day of occurrence and this is evident from the statement of P.W.8 Rustam Ali, father of Mst. Safia Bibi, the deceased of the instant case; that in fact, the F.I.R. Was recorded after due deliberations and consultations by summoning Naseer Ahmad, husband of the deceased from Cheechawatni. Learned counsel submits that in fact, the occurrence took place in earlier part of the day during night and was not a witnessed one. Learned counsel submits that lady Dr. Shaista Zubair/P.W.1, who conducted the postmortem examination on the dead body of the deceased, has given the duration between death and post-mortem examination as within twenty four hours, so the possibility of the murder taking place in the darkness of the night cannot be ruled out. Learned counsel submits that Naseer Ahmad P.W.4 is husband of the deceased, while P.W.5 Mst. Jannat Bibi is the mother of the deceased and they lived at a distance of 2-1/2 acres from the place of occurrence; that they are related and chance witnesses; that their evidence is contradictory to medical evidence. Learned counsel submits that according to the lady Doctor/P.W.1, a led was recovered from the skull of the deceased and the led was divided into many pieces after hitting the skull bone; that it was a pellet injury, and not a gun injury as alleged by the eyewitness. Learned counsel submits that there is only one punctured injury on the person of the deceased and this cannot take place if fire is shot from a distance of 32 feet as has been mentioned in the site-plan. Learned counsel submits that there are interpolations in the document prepared by the doctor, so the F.I.R. Was not truthful narration of facts; that along with Bashir Ahmad, Amin and Sharif have been implicated in the case and they were apprehended and no injury is attributed to them; that gun has been planted after one month and ten days of the occurrence; that no empty was recovered from the spot, so the recovery of gun is of no consequence; that doubts are surfaced on the record of the case and the benefit of the same may be given to the appellants. Learned counsel submits that as far as Bashir is concerned, no case of death sentence is made out, as on the same day post-mortem of Mst. Jatti Bibi was being taken place; that it was a case of single shot and this was the strong provocation which led to the unfortunate occurrence.
6. On the other hand, learned counsel for the State submits that there was no question of substitution, as it was a broad-daylight occurrence; that the F.I.R. Was promptly lodged; that fatal injury was attributed to Bashir Ahmad and that Amin and Shaukat Ali also shared the common intention with Bashir Ahmad. He supports the judgment of the trial Court.
7. We have heard the learned counsel for the parties at a great length and have gone through the record with their assistance.
8. Occurrence took place on 16-10-1998 at about 7-30 a.m. Matter was reported to the, police on the same day at about 9-15 a.m. At the police station. Distance between police station and place of occurrence is eleven miles. The deceased in this case is Mst. Safia Bibi. She is the wife of Naseer Ahmad P.W.4. Prosecution examined Naseer Ahmad and Mst. Jannat Bibi P.W.4 and P.W.S. There are three appellants. Bashir Ahmad, who is attributed fatal shot on the person of Mst. Safia Bibi, has been awarded death penalty, while his co-accused Amin and Shaukat have been sentenced to imprisonment for life each. The motive behind the occurrence is that three days prior to the presence occurrence, Liaqat Ali, real brother of Mst. Safia Bibi, had murdered Mst. Jatti Bibi and on the day of occurrence when Mst. Safia Bibi was seen by the appellants, they raised Lalkara that she would not be spared. Mst. Safia Bibi, in order to save her life, ran towards the house of one Nazar Bodla. The appellant Bashir Ahmad not only fired one shot but two shots: first shot did not hit her, upon which she ran away and when she was running to save her life, second shot was made on the back of her head. She fell there and then died on the spot. We would like to state that the injury which was caused by the appellant, cannot be caused except by the gun as the dimension of the injury was 7 c.m. x 6 c.m. Due to the said injury brain matter came out from the wound. Missies pieces recovered from the wound. The case was registered against Liaqat Ali, brother of Mst. Safia Bibi. Mst. Safia had no fault for the murder of Mst. Jatti Bibi. On the very same day postmortem of Mst. Jatti had taken place. In fact we have gathered from the above facts that the appellant wanted speedy justice, so he took the law in his own hands. The ocular account is fully corroborated by the medical evidence. Parties were known to each other. There is no question of mistaken identity, as it was a broad-daylight occurrence. There is no mitigating circumstance in favour of the appellant Bashir Ahmad So the appeal to his extent is dismissed. His death sentence is confirmed. The murder reference stands answered accordingly.
9. As far as Amin and Shaukat Ali, appellants, are concerned, suffice it to say that they were admittedly empty-handed at the time of occurrence and no injury on the person of the deceased is attributed to them. Therefore, while granting benefit of doubt, the appeal to the extent of Amin and Shaukat Ali, appellants, is allowed. Resultantly, they are acquitted of the charge. They are on bail. Their bail bonds are cancelled and the sureties are discharged of their liability.