' ALI NAWAZ CHOWHAN, J.---Jahangir Iqbal appellant was convicted under section 302(b), P.P.C. By the learned Additional Sessions Judge, Sargodha vide judgment, dated 29-2-2000. In case F.I.R.
No,166, dated 2-9-1998 registered under sections 302/324/34, P.P.C. At Police Station Phularwan Tehsil Bhalwal District Sargodha and sentenced to death as Tazir for causing death of Baqiri and to pay compensation of Rs,20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C.
Muhammad Amir appellant was convicted under section 337F(i), P.P.C. And sentenced to six months punishment as tazir and to pay demand of Rs,2000, under section 337-F(v), P.P.C. Two years imprisonment and daman of Rs,5000 to Muhammad Afzal P.W.11. Both the sentences were ordered to run concurrently. By the same judgment Zulfiqar accused was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life as tazir for causing death of Baqiri and to pay compensation of Rs,20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to further suffer imprisonment for six months. By the same judgment Khalid Mehmood, Hamad Hussain, Nazar Muhammad, Muhammad Afzal, Iftikhar son of Sardar and Iftikhar son of Motalli and Zafar Iqbal were acquitted of the charge. Jahangir Iqbal and Muhammad Amir appellants have challenged their conviction in Criminal Appeal No,432 of 2000 while the learned trial Court has also sent Murder Reference No,122 of 2000 for confirmation of death sentence of Jahangir Iqbal. Both these matters are being disposed of together.
2. The prosecution story as given in the F.I.R. Exh.PQ was steadfastly supported in his testimony by Muhammad Aslam, the son of the deceased saying:-- "Baqiri deceased was my father. About one year, four and half months ago, at about 9 or 10.00 p.m.
I myself, my father Baqiri deceased, my mother Mst. Fatima P.W., and my cousin Muhammad Afzal P.W. Were sitting on charpai in front of our dera in the area of village Dhori. There was moon-light and a lantern was also lying lit hanging against the wall of our kotha. In the meantime, from the northern side of us, thirteen accused persons came there. Zulfiqar accused, Nazar Muhammad, Hamad and Muhammad Afzal accused were armed with .12-bore guns, Muhammad Amir, Iftikhar son of Hafiz Sardar, Iftikhar Kumhar, Zafar, Muslim Sheikh, Jahangir armed with rifles along with three unknown persons armed with rifles reached near us. They shouted that they have come to avenge the murder of Tanvir Iqbal. On the Lalkara, my father Baqiri and Muhammad Afzal P.W. Got up from the cot and after crossing the bridge on the watercourse ran towards the south. The accused also pursued them and they reached the said bridge. Jahangir accused fired at my father Baqiri hitting him on his chest and said shot went out from the back of his chest. Baqiri deceased fell down and thereafter Zulfiqar accused fired at him from his gun hitting him near the neck.
Jahangir accused fired again from his rifle hitting my father, on his left wrist. Muhammad Amir accused fired at Muhammad Afzal P.W. Hitting him on his left thigh. Muhammad Afzal P.W. Also fell down. The other accused also continued firing but their shots did not hit anyone."
3. The motive part of the story according to him and in his own words is as follows:-- "Motive for the occurrence was that Tanvir Iqbal brother of Jahangir accused was murdered on the day of occurrence. My father Baqiri deceased was nominated as one of the accused in the F.I.R. Of the said case, relating to the murder of Tanvir Iqbal. In order to take revenge of the said murder the accused persons, murdered my father and committed murderous assault on my cousin Muhammad Afzal P.W."
4. The accused are related inter se. This information was given by the complainant:-- "Afzal acused is a first cousin of Jahangir accused. Amir, KhalidMehmood and Nazra alias Nazir accused are real brothers. Iftikhar and Zulfiqar sons of Hafiz Sardar are real brothers interse.
Hamad accused is collateral of Afzal and Jahangir accused. Iftikhar Kumhar and Zafar Iqbal, Muslim Sheikh are servants of Zulfiqar and Iftikhar accused."
5. Talking of the relationship interse the complainant party the following information was offered by the complainant:-- "The deceased was my father. Fatima P.W. Is my mother. Afzal P.W is my paternal cousin whereas Muhammad Bashir, Akram and Sultan are my relatives."
6. The following excerpts are also taken from the complainant's testimony:-- "According to me, Baqiri deceased was hit by the fires of only Jahangir and Zulfiqar accused. It is correct that except Jahangir, Mukhtar and Amir, the fires of other accused did not hit anyone during the occurrence".
"It is correct that my brother Akram and Ghulam Muhammad were nominated as accused persons for the murder of Tanvir Iqbal." "it is also correct that Muhammad Amir, Muhammad Afzal, Zafar Iqbal, Nazar Muhammad, Iftikhar Gondal, Zulfiqar Gondal and Iftikhar Kumhar were declared innocent in this case and were placed in Column No,2 of the challan as being innocent."
"I do not know whether, Jahangir accused was a student during the days of occurrence. I do not know whether his date of birth is 1-8-1981."
"I was challaned for the murder of two womanfolk namely Naziran and Rabia of our village. It is incorrect that Baqiri deceased was also challaned for the said murder in 1987. It is correct that my brother Ashraf was challaned for the fractures of the legs of one Ahmad Bakhsh. It is also correct that my brother Ashraf son of Baqiri deceased was challaned for the murder of one Zulfiqar Jaspal.
It is correct that Zulfiqar Jaspal was murdered about four months before this occurrence. It is correct that my brother Muhammad Ashraf was challaned for giving injuries to Ahmad Nawaz son of Muhammad Akram and Advocate."
7. Muhammad Afzal, the injured P.W.11 corroborated the complainant fully.
8. Dr. Ata Muhammad Irfan medically examined Muhammad Afzal injured and found the following injuries on his person:--
(1) A circular lacerated wound about 1 cm x 1 cm on the outer side of lower one third of left thigh, deep to the skin. No burning or blackening was present. There was corresponding hole on the shalwar.
(2) Complained of pain and there was swelling of the size of about 6 cm x 6 cm on the left groin and left iliac area.
' Dr. Mehboob Ahmad P.W.6 conducted the post-mortem examination on the dead-body of Baqiri and found the following injuries on his person:--
(1) A lacerated wound 2 cm x 2 cm circular in shape on the upper part of center of chest (just above sternal angle).
(2) An elongated 11 cm x 5 cm lacerated wound on upper part of left side of chest and front of left shoulder in parallel with injury No,1, damaged underlying muscles and broken pieces of the local bones visible.
(3) 1/2 cm x 1/2cm circular wound of lacerated type, 5 cm medial and down to the left nipple.
(4) 1 1/2 cm 1 cm an elliptical wound of lacerated variety on the back of right lumber area.
(5) A lacerated wound 4 cm x 2 cm on the outer border of lower 1/3rd of left forearm, tendence underline visible.
' In his opinion the cause of death in this case was due to injuries Nos. 1 to 4 resulting in damage to the heart, left lung, liver, and vessels which were sufficient to cause death in the ordinary course of nature. The time between the injuries and death was within half an hour and in between death and postmortem examination was five to eight years. Exh. PM is the postmortem report whereas Exh.PM/1 and Exh.PM/2 are the sketches of injuries.
9. Fayyaz Ahmad Faiz Patwari P.W.2 prepared the site plans Exh.PE and Exh.PE/1. Muhammad Mumtaz A.S.-I. P.W.3 deposedabout the safe custody of sealed parcel containing blood-stained earth in the malkhana of the police station. Muhammad Ijaz constable P.W.4 delivered the sealed parcel containing blood-stained earth to the office of the Chemical Examiner. He is also witness of recovery of rifle P-1 recovered on the pointation of Jahangir accused which was taken into possession vide memo Exh.PF. Zafar Hussain Shah P.W.5 after postmortem examination produced before the Investigating Officer the last-worn clothes of the deceased turbon P-2, shirt P-3, chaddar P-4 which he took into his possession vide memo. Exh.PG. Muhammad Khan S.-I. P.W.7 arrested Khalid Mehmood and Hamad Hussain accused. Muhammad Bashir P.W.8 is the witness of recovery of blood-stained earth from the place where Baqiri was done to death and Muhammad Afzal injured. Nazar Iqbal A.S.-I. P.W.9 is the witness of recovery of rifle 7-MM from Khalid Mehmood and .12-bore gun from Hamad Hussain which were taken into possession vide memo Exh. PM and Exh.PN. Haji Sultan Ahmad P.W.12 identified the dead-body of the deceased in the mortuary.
' Abdul Sattar P.W.13 recorded statement of the complainant Exh.PQ, prepared injury statement Exh.PI, inquest report Exh.PJ, and collected blood-stained earth vide memo Exh. PL. He prepared rough sketch of place of occurrence Exh.PS and investigated the case. Ehsanullah S.-I. P.W.14 also investigated the case.
10. Learned DDA after tendering in evidence report of the Chemical Examiner Exh. PT and that of the Serologist Exh.PU closed the case for prosecution whereafter the accused were examined under section 342, Cr.P.C. They took the plea that the P.Ws. Had made false statements. They neither opted to appear as their own witnesses nor produced any defence evidence, but Jahangir accused produced documents Exh.DB to Exh. DK. Exh.DB his school certificate showing his date of birth as 1-8-1981.
11. The parties appeared to be. Trigger happy and have criminal backgrounds. This Court was informed that Zulfiqar a co-appellant has already been released in these cases after a compromise with the complainant side. Amir has also undergone his part of the sentence, the appeal to his extent was not pressed. We are, therefore, left with appeal of Jahangir for purposes of adjudication. .
12. Learned counsel appearing on behalf of Jahangir Iqbal went on to say that his whole family was implicated and but of them only three persons aforementioned were found guilty and sentenced.
That this also had a bearing on the conduct of the complainant side. 'However, the only thrust of 11s argument was directed against the reduction of the sentenceand the grounds taken by him, inter alia, in this connection were as follows:--
(i) The extreme youth of the appellant said to have born on 1-8-1981 whereas the occurrence took place on 1-9-1998 which means that he was about 16 years eight months of age then.
(ii) That in the previous occurrence took place the same day in which his real brother had been murdered by the deceased of this case and he was nourishing anger and was actuated with extreme provocation being a youth.
(iii) That according to the views of the doctor the deceased Baqiri died because of the accumulative effect of all the injuries and, therefore, it could not be said with any certainty that the injury caused by the appellant was responsible for his death.
(iv) That while sentencing Zulfiqar a lesser sentence was given to him although allegedly he had shared the same motive and had participated in the occurrence fully.
(v) That keeping all this in view the sentence of death given to the appellant was exceptional.
13. The learned counsel has placed reliance on the following cases in support of his arguments:-
(a) Mokha v. Zulfiqar and 9 others (PLD 1978 Supreme Court 10), (b) Hafiz Muhammad Alam v. The State (1984 SCM R 276), (c) Muhammad Din v. The State (1985 SCM R 625), (d) Waris Ali and 5 others v. The State (2001 SCM R 640), (e) Anwar and another v. The State (2001 SCM R 1518) and (f) Ijaz Hussain v. The State (2002 SCM R 1455).
14. After hearing both sides and keeping in view the fact that the elder brother of Jahangir Iqbal had been murdered on the same day by the complainant party it is obvious that he received a lot of provocation on this account while keeping in view the village background of the parties and the over all circumstances and the arguments advanced before this Court and the plea canvassed, whereas we uphold the order of conviction we are reducing his sentence from death to life imprisonment. The quantum of fine awarded by the learned trial Court shall remain unaltered.
Appellant after the change in the sentence wilj be entitled to the benefit of section 382-B, Cr.P.C.
The appeal is disposed of accordingly and the Murder Reference is answered in the negative.
Sentence reduced.