' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 5-5-2004 passed by the learned Additional Sessions Judge, Gujranwala whereby after having tried the appellant, he was convicted under section 302(b), P.P.C. And sentenced him to imprisonment for life as Tazir with a further direction to pay a compensation of Rs,1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months.
Benefit of section 382-B, Cr.P.C. Was also extended to the appellant. He was also convicted under section 324, P.P.C. And sentenced to imprisonment for life and a compensation of Rs,5,000 in default whereof to further undergo S.I. For two months. Both the sentences were directed to run concurrently. However, co-accused of the appellant, namely, Irshad alias Kala was given benefit of doubt and acquitted from the case and accused Mehmood alias Mooda, was declared P.O. And perpetual warrants of arrest were issued against him.
2. Brief facts of the case, as given by the complainant Jafar Ali in the F.I.R., are that on the fateful date and time he along with his deceased son Faisal and other prosecution witnesses were going towards his Dera to give meal to his brother Nasir Khan, when they reached near brick-kiln of Haji Iqbal, accused Mehmood (P.O.) and appellant in furtherance of their common intention suddenly stood up, the prosecution witnesses identified them in the light of the bulb which was on, on the Lalkara raised by appellant that the deceased Faisal be taught a lesson for firing at Kala whereupon Mehmood made a .30 bore straight fire with his pistol at Faisal which hit on his left flank above the ribs, he fell down, appellant made a pistol shot straight on Nasir Khan who luckily saved and the same hit milk untensil which was in his hand whereafter the accused fled away from the spot, the injured was shifted to Civil Hospital Kamoke where he succumbed to the injuries. The motive was that 5/6 years ago Faisal fired at Irshad alias Kala (acquitted accused) and injured him due to which grudge both the brothers have done the deceased Faisal to death.
3. After having completed legal formalities challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced sixteen witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that the appellant has falsely been implicated in this case; that it was an unwitnessed occurrence; that the appellant did not share the common intention with the main accused Mehmood who was declared Proclaimed Offender; that there is no evidence as to how the accused party would come to know about the passage of the complainant party; that the appellant had no motive to kill the deceased and that it is a case under section 302(c), P.P.C. And not 302(b), P. P. C .
5. On the other hand, learned counsel for the State submits that the appellant is connected with the motive part of the prosecution case; that recovery has been effected from him; that no question of false implication arises; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on 30-5-2003 at 8-30 p.m., the matter was reported to the police at 10-30 p.m. At Civil Hospital Kamoke, formal F.I.R. Was recorded at 10-45 p.m. And the distance between the place of occurrence and the police station is four kilometers. So, it can safely be said that the A F.I.R. Was prompt and the delay, if any, has been reasonably explained in the same.
' According to the prosecution case, the complainant along with his deceased son Faisal and other prosecution witnesses were going towards his Dera to give meal to his brother Nisar Ahmad, when they reached near brick-kiln of Haji Iqbal, accused Mehmood (P.O.) and appellant in furtherance of their common intention suddenly stood up, the prosecution witnesses identified them in the light of the bulb which was on, on the Lalkara raised by appellant that the deceased Faisal be taught a lesson for firing at Kala whereupon Mehmood made a .30 bore straight fire with his pistol at Faisal which hit on his left flank above the ribs, he fell down, appellant made a pistol shot straight on Nasir Khan who luckily saved and the same hit milk utensil which was in his hand whereafter the accused fled away from the spot, the injured was shifted to Civil Hospital Kamoke where he succumbed to the injuries. The motive was that 5/6 years ago Faisal fired at Irshad alias Kala (acquitted accused) and injured him due to which grudge both the brothers have done the deceased Faisal to death. Mehmood became fugitive from law and was declared Proclaimed Offender. The police also took into possession blood-stained earth Exh.P.E. And milk utensil (P5) in which milk was there and two holes were present i.e, one entrance and the other of exist. The star witness in this case is Nasir Khan on whom appellant made a straight fire but it was hit luck that he was saved from the said fire. A .30 bore Mausar along with two live bullets was recovered from the appellant during the course of investigation.
' It is a case of common intention between the appellant and his co-accused Mehmood Proclaimed Offender because both armed with fire-arms had come to the spot, started waiting for the complainant party, on reaching the complainant party at the spot appellant raised Lalkara whereupon Mehinood P.O. Fired at the deceased followed by a fire by the appellant on Nasir Khan which luckily went amiss and hit milk utensil, two holes of fire are present on the said milk utensil, there was no previous background of enmity, motive is proved against the appellant to take revenge of his brother who was fired upon by the deceased and even no question of enmity was suggested to the said Nasir P.W. It is imperative to quote answer to Question No,8 given in his statement under section 342, Cr.P.C. Wherein the appellant stated that he was falsely involved due to suspicion but did no state the reason of false implication. It reads as under:-- "I have been falsely involved in this case as Faisal deceased had fired at my brother Irshad alias Kala co-accused 5/6 years prior to this occurrence and had disabled him. A compromise was effected between the parties and as a result of compromise parties were living peacefully and cordially. Faisal was murdered by some unknown culprits and due to darkness the P.Ws. Could not identify the culprits. The entire family has been falsely involved in this case due to previous quarrel with the complainant party and due to suspicion. I have been involved in this case falsely".
' Even otherwise, it is law of the land that where the eye-witness account was worthy of credence, unimpeachable, confidence-inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged but not proved would hardly, make any difference in awarding the sentence.
8. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt to sustain conviction against the appellant because both armed with fire-arms had come to the spot, started waiting for the complainant party, on reaching the complainant party at the spot appellant raised Lalkara whereupon Mehmood P.O. Fired at the deceased followed by a fire by the appellant on Nasir Khan which luckily went amiss and hit milk utensil, two holes of fire are present on the said milk utensil, there was a previous background of enmity, motive is proved E against the appellant to take revenge of his brother who was fired upon by the deceased and even no question of enmity was suggested to the said Nasir P.W. The learned trial Court has delivered a well-reasoned judgment to convict the appellant which does not call for interference by this Court, in the appellant jurisdiction although he has awarded lesser sentence to the appellant. Resultantly, this appeal has no merit which is accordingly dismissed after having maintained the conviction and sentence awarded to the appellant by the learned trial Court vide the impugned judgment, in toto.