' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,344 of 1999 filed by Muhammad Hayat alias Mehdi and Criminal Appeal No,351 of 1999 filed by Pervez Akhtar, who were convicted and sentenced by the learned Additional Sessions Judge, Mandi Baha-ud-Din, vide his judgment dated 12-4-1999 as under:--
(1) Muhammad Hayat alias Mehdi Death under section 302(b), P.P.C. For causing Qatl-e-Amd of Shaukat Ali.
' Seven years' R.I. For causing injuries to Mst. Fatima Bibi under section 324, P.P.C. With fine of Rs,20,000 in default of payment whereof three years' S.I.
(2) Pervez Akhtar Imprisonment for life under section 302(b), P.P.C.
' Murder Reference No,261 of 1999 for confirmation or otherwise of death sentence awarded to Muhammad Hayat alias Mehdi appellant and Criminal Revision No,243 of 1999 filed by Nazir Ahmad seeking compensation under section 544-A, Cr.P.C. And enhancement of sentence inflicted upon Pervez Akhtar respondent No,2 shall also be disposed of through this single judgment.
' It is pertinent to note here that Criminal Appeal No,449 of 1999 filed against acquittal of Dost Muhammad, Saee Muhammad and Ghulam Ali was dismissed in limine vide order, dated 20-10- 1999.
2. Brief facts of the case as narrated by Nazir Ahmad (complainant/P.W.9) in F.I.R. Exh.P.C. Are that he was cultivator. On the day of occurrence at about 2-00 p.m., while he along with Ali Ahmad and Baati Khan was sitting in the house of his real brother Shaukat Ali and they were talking, Saee Muhammad called Shaukat Ali from outside. When Shaukat Ali went outside, the complainant, Ali Ahmad and Baati Khan followed him. They saw that Saee Muhammad and Ghulam Ali, both armed with Sotas, while Dost Muhammad armed with hatchet were standing in the land of one Dara.
Muhammad Hayat alias Mehdi and Pervez Akhtar, both armed with .12 bore double-barrel guns, were standing on the roof of the room of one Iqbal. As Shaukat Ali reached near them, Ghulam Ali raised Lalkara that Shaukat Ali be taught lesson for their insult. Muhammad Hayat fired with his gun which hit on the left side of head of Shaukat Ali. Pervez Akhtar also fired which landed on the left side of head near the ear of Shaukat Ali. After receiving injuries Shaukat Ali fell on the ground.
Thereafter, Dost Muhammad gave hatchet blow to Shaukat Ali on his forehead from its blunt side.
Saee Muhammad gave Sota blow on the back of the head of Shaukat Ali. When the P.Ws. Tried to catch the accused, Muhammad Hayat fired upon the P.Ws., who luckily escaped, but the fire hit Mst.
Fatima Bibi, who was on her way, on her right bicep. She fell down due to the injury. The noise of firing attracted the inhabitants of the locality. On seeing them, the accused fled away from the spot along with their respective weapons. Shaukat Ali succumbed to the injuries in the hospital, while he was being providing medical aid.
' The motive behind the occurrence was that Pervez Akhtar had illicit relations with a lady in village Malkpur. When Muhammad Hayat and Pervez Akhtar were present in village Malkpur, Pervez Akhtar was-apprehended while Muhammad Hayat fled away. The accused had suspicion that Shaukat Ali was behind the incident. For that reason they with common intention launched murderous assault upon Shaukat Ali and Mst. Fatima Bibi.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Anwar, S.-I./P.W.12. He proceeded to the hospital and prepared injury statements Exh.P.Q. And Exh.P.R. Of Shaukat Ali and Mst. Fatima Bibi respectively. Thereafter he visited the spot and took into possession blood-stained earth from the spot vide memo. Exh.P.E. He also collected 4 empties.
P.3/1-4 and secured the same vide memo. Exh.P.G. On 7-2-1995 he arrested Muhammad Hayat, Pervez Akhtar, Dost Muhammad, Saee Muhammad. On 14-2-1995 Muhammad Hayat led to the recovery of .12 bore double-barrel gun along with 5 live cartridges from his cattle-shed, which were take into possession vide memo. Exh.P.J. On the same day, Pervez Akhtar also led to the recovery of .12 bore double-barrel gun along with 4 live cartridges from his Dera. The articles were taken into possession vide memo. Exh.P.K. Hatchet was also recovered at the instance of Dost Muhammad from his residential house, which was taken into possession vide memo. Exh.P.M. Saee Muhammad got recovered Sota from his residential house, which was taken into possession vide memo. Exh.P.L.
While Saee Muhammad produced his licensed gun before the Investigating Officer and the same was secured vide memo. Exh.P.N. On 28-2=1995 Ghulam Ali accused produced Sota before P.W.12, which was taken into possession vide memo. Exh.P.O. After completions of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 14 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.X. Serologist Exh.P.Y.
And that of Forensic Science Laboratory Exh.P.Z. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. The accused did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Dost Muhammad, Saee Muhammad and Ghulam Ali, convicted and sentenced the appellants as stated above.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for Pervez Akhtar appellant after arguing the case at some length straightforward submits that he would be satisfied if benefit of section 382-B, Cr.P.C. Is extended to Pervez Akhtar appellant as he was in jail since 7-2-1995.
6. Mr. M. Saleem Shad, learned counsel for Muhammad Hayat alias Mehdi argues that both the witnesses (P.W.9 and P.W.10) were closely related to Shaukat Ali deceased and they have been disbelieved qua Dost Muhammad, Saee Muhammad and Ghulam Ali, acquitted co-accused; that as far as Mst. Fatima Bibi is concerned, she is not a witness when Shaukat Ali received fires and even she has given an exaggerated statement by implicating Dost Muhammad, Saee Muhammad and Ghulam Muhammad (acquitted co-accused); that the statements of the eye-witnesses, which were disbelieved qua the acquitted co-accused, do not find corroboration from any independent source; that the prosecution has miserably failed to prove motive but in fact enmity existed between the parties prior to the occurrence; and that the case of Muhammad Hayat is at par with that of Pervez Akhtar, who has been sentenced to imprisonment for life. Thus, in any case death sentence should not have been inflicted upon Muhammad Hayat alias Mehdi. During the course of arguments the original learned counsel Mr. Muhammad Faisal Malik has also put in appearance.
7. On the other hand, the learned counsel for the complainant has argued that it was a daylight occurrence and the matter was reported to the police station within two hours, while the police station was at a distance of 8 Kms. That both the P.Ws. (P.W.9 and P.W.10) have given a very straightforward confidence-inspiring account of the occurrence before the learned trial Court and their statements were fully supported by the medical evidence and corroborated by the factum of recovery of weapons and their being tallied with the empties recovered from the spot; that weakness of motive or non-existence of motive would not benefit the appellants as it has been proved that Shaukat Ali lost his life due to fires caused by the appellants; that the learned trial Court has committed error in law by not imposing the normal penalty of death upon Pervez Akhtar appellant; and that substitution is rare phenomenon and in the instant case no such reasons existed.
8. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant.
9. We have heard the learned counsel for the parties at length and gone through the entire record minutely. The occurrence took place at 2-00 p.m. In Mouza Kot Jalian, while the matter was reported at the police station, which was at a distance of 8 Kms. At 4-00 p.m. Nazir Ahmad P.W.9 and Ali Muhammad P.W.10, brother and uncle of the deceased respectively, furnished the ocular account. Both these witnesses have corroborated each other on all the material points, As far as the roles of the appellants are concerned. Both the above noted witnesses were related to Shaukat Ali deceased but at the same hand there is nothing on record to reveal that they had any previous animus or grudge against the appellants. Their statements also find support from the statement of P.W.3, who received injury during occurrence and her presence cannot be denied. She did not try to be an eye-witness of the occurrence relating to the death of Shaukat Ali and frankly conceded that she came out of the house after hearing first fire. Her statement is of corroborative value and establishes the time and place of occurrence as well as presence of the witnesses at the spot. The statements, of the witnesses are also supported by the medical evidence and corroborated by the factum of recovery of weapons from both the appellants, which wedded with the empties recovered from the scene of occurrence, moreso when the empties and the weapons were sent to the Forensic Science Laboratory on different dates. As far as the motive is concerned, it is a far- fetched one and no direct evidence is available in support of it. The acquittal of rest of the accused would not benefit the appellants, as allegation levelled against them were not supported by medical evidence and the learned trial Court had acquitted them by extending benefit of doubt. In our considered opinion the prosecution has successfully proved its case through ocular account, which is supported by the medical evidence and corroborated the circumstances like lodging of F.I.R. Without delay and recovery of weapons which tallied with the empties recovered.
10. Now we come to the quantum of sentence. The learned trial Court while convicting Pervez Akhtar for offence under section 302(b), P.P.C. Sentenced him to imprisonment for life, while it has sentenced Muhammad Hayat alias Mehdi to death. No cogent reasons have been advanced by the learned trial Court as to why both the appellants were not treated equally while passing sentence. We find that according to prosecution case both the appellants had affected one fire each on the deceased and none of them had repeated the same as far as the deceased was concerned. The mere fact that subsequent fire of Muhammad Hayat aimed at the P.Ws. Hit Mst.
Fatima Bibi would not be enough to treat him differently on the question of sentence. Though the motive was set in F.I.R. But no direct evidence was produced to prove it. P.Ws. Admitted that no case was registered either against Pervez Akhtar or Muhammad Hayat at the instance of the deceased or on the basis of information of the deceased. Hence, while maintaining the conviction of both the appellants for offence under section 302(b), P.P.C. We reduce the sentence inflicted upon Muhammad Hayat alias Mehdi appellant to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to both the appellants.
11. It has been noticed by us that the learned trial Court failed to pass any order under section 544- A, Cr.P.C. Which was mandatory. Thus, we direct both the appellants to pay Rs,1,00,000 each as compensation to the legal heirs of the deceased and in case of default of realization or payment thereof both the appellants would suffer six months' S.I. Muhammad Hayat alias Mehdi appellant was also convicted for offence under section 324, P.P.C. And sentenced to seven years' R.I. The sentences would run concurrently.
' The amount of fine is also maintained with modification that in default of payment thereof Pervez Akhtar appellant would suffer three months' S . I.
12. With the above noted modifications, both the appeals are partly allowed. Murder Reference is answered in the negative. Death sentence is not confirmed.
13. For reasons noted above criminal revision to the extent of enhancement of sentence awarded to Pervez Akhtar is dismissed. However, for reasons recorded in para.11 of the judgment this revision to the extent of compensation is allowed.