' SARDAR MUHAMMAD ASLAM, J.--- Muhammad Imran alias Mithu son of Ghulam Asghar has preferred this appeal questioning his conviction recorded under section 302(b)/34, P.P.C. And sentenced to death by the learned Additional Sessions Judge, Gujranwala. He was also convicted under section 324/34, P.P.C. For attempting to commit Qatl-eAmd of Mst. Nasreen Bibi and sentenced to ten years' R.I. He was directed to pay fine of Rs,50,000 to Mst. Nasreen Bibi and in case of non-payment of fine he would have to serve R.I. For six months. He was also directed to pay Rs,1,00,000 to the legal heirs of the deceased as compensation, in default whereof he would have to serve six months' R.I. Vide judgnient, dated 31-5-2000 in case F.I.R. No,99 dated 2-2-1998 registered under sections 302/324/34, P.P.C. At Police Station, Satellite Town, Gujranwala.
2. The prosecution case as set up in the F.I.R. Is that on 2-2-1998 at about 10-30 a.m., the complainant along with his son Muhammad Safdar were sitting at the shop when a Mohalladar Imran alias Mithu came there and started abusing his son Safdar. When he asked about its abusing he flared up and went away while advancing threats to murder him. The complainants along with his son Muhammad Safdar were busy in their business when his Mohallandar Muhammad Naeem and Iftikhar Ahmad came and stood in front of his shop by chance. The complainant telling them the said incident, when at about 11-30 a.m. Imran alias Mithu and Zeshan alias Shani armed with pistols along with an unknown accused empty-handed stood out side their house and started abusing the complainant. Imran and Zeshan also fired a shot each from their pistol. On this, he went to his plot through the inner door of the shop. His daughter Nasreen Bibi aged about 18/20 years, who was having his grandson Ijaz Ahmad aged 10/11 months in her lap came on the rooftop of the house. On seeing the complainant and his daughter Mst. Nasreen, Imran alias Mithu and Zeshan alias Shani fired single shot each from their respective pistols. One of the said fire hit Mst. Nasreen while the other fire hit his grandson Ijaz Ahmad. They became injured and fell down on the ground. Iftikhar Ahmad and Muhammad Naeem requested the accused to refrain from firing. On this, the accused ran away while raising Lalkaras. The complainant, Muhammad Naeem, Iftikhar along with Mohalladars took Mst. Nasreen and his grandson Ijaz Ahmad to Civil Hospital, Gujranwala in Suzuki pick-up and got them admitted there. Medico-legal reports of the aforesaid injured were obtained. During this period, injured Ijaz Ahmad succumbed to the injuries while due to precarious condition of Mst. Nasreen Bibi, Medical Officer referred her to Lahore. On this, the relatives of the complainant took Mst. Nasreen Bibi to Lahore. Allegation as contained in the F.I.R. Is that Imran alias Mithu and Zeshan alias Shani along with another unknown person in furtherance of their common intention injured Mst. Nasreen Bibi, daughter of the complainant by firing and murdered his grandson Ijaz Ahmad.
3. The investigation was conducted by Muhammad Younas Khan, S.-I./Investigating Officer who after receiving the information about the occurrence went to the Civil Hospital, Gujranwala where he recorded the statement Exh.P.C. Of Muhammad Siddique, complainant. He also produced before the Investigating Officer the M.L.Rs, of Ijaz Ahmad and Mst. Nasreen Bibi at that time, which he sent the same to the police station through Ashiq Hussain constable No,1227 for registration of F.I.R. In the hospital he inspected the dead body of minor Ijaz Ahmad, prepared the inquest report Exh.P.H., its injury statement Exh.P.I. And application for conducting post-mortem examination of Ijaz Ahmad deceased Exh.P.J. He deputed Muhammad Aslam and Muhammad Yousaf constables to escort the dead body to the mortuary along with Allah Ditta and Hassan for identification of the dead body. He recorded the statements of Naeem and Iftikhar Ahmad P.Ws. Under section 161, Cr.P.C. In the hospital. In the meanwhile Muhammad Ashiq constable returned from the police station and produced the copy of F.I.R. Of the case. Thereafter, the Investigating Officer proceeded to the spot along with the complainant and other P.Ws. He inspected the spot and collected the blood-stained soaked cotton from the rooftop of the house of the complainant. The same was made into a sealed parcel vide recovery memo. Exh.P.B. In the presence of Naeem and Iftikhar Ahmad P.Ws. He also drafted the rough site plan Exh.P.K. Regarding the place of murder. He also recorded the statements of P.Ws. Under section 161, Cr.P.C. In Mayo Hospital where the injured was referred, made an application to the doctor Exh.P.L. For permission to record the statement under section 161, Cr.P.C. On 3-2-1998 Muhammad Yousaf constable No,1069 produced before him the last-worn clothes of the deceased Ijaz comprising Pajama P.1, Shirt P.2, both blood-stained and Jarsi, which were duly signed by the doctor and bore the marks of bullet. He also took into possession vide memo. Exh.P.A. And handed over these parcels to the Moharrir for safe custody in Malkhana. On 6-2-1998 he got inspected the spot by Masood Ahmad Bhatti, Draftsman in presence of the complainant and witnesses and directed him to prepare the scaled site plan of the spot, who produced before the Investigating Officer the same as Exh.P.M. And Exh.P.M./1 and made relevant note thereon with red ink. On 14-2-1998 he arrested Muhammad Imran and Zeshan accused and obtained their physical remand from the Court of Ilaqa Magistrate. Imran appellant led to the recovery of pistol .30 bore P.4 from the house and live bullets of .30 bore P.1/1-5 from the said place which was taken into possession vide recovery memo. Exh.P.G. He also drafted the rough sketch of the pistol as Exh.P.G./1. The accused could not produce his valid licence and a case under section 13, Arms Ordinance XX of 1965 was registered against the accused. After due investigation the challan was submitted in the Court.
4. In order to prove its case the prosecution has examined as many as 11 witnesses. P.W.1 Allah Ditta identified the dead body of Ijaz Ahmad deceased at the time of post-mortem examination. He is also marginal witness of recovery memo. Exh.P.A. P.W.2, Mst. Nasreen Bibi, P.W.3 Iftikhar Ahmad and P.W.4 Muhammad Siddique, the complainant, furnished the ocular account of the incident. P.W.3 is also marginal witness of recovery memo. Exh.P.B. Of blood soaked cotton collected by the police from the rooftop of the house. P.W.5 is Dr. Shaukat Khurshid, who conducted the medical examination of Ijaz and Mst. Nasreen Bibi on 2-2-1998 vide his medico-legal reports Exh.P.D. And Exh.P.E. And testified that they both were injured by fire-arm. He also conducted the post-mortem examination on the dead body of Ijaz Ahmad on 3-2-1998. P.W.6 Muhammad Yousaf constable No,1069, who escorted the dead body, to the autopsy and after post-mortem examination he received the last-worn clothes of Ijaz Ahmad deceased, which he produced before the Investigating Officer who took into possession vide memo. Exh.P.A. P.W.7 is Zafar Ali constable who attested the memo. Exh.P.G. And Exh.P.G./1. P.W.8 is the Investigating Officer whose evidence has been discussed in the earlier para. Of this judgment. P.W.9 Ali Sher is the witness of Fard Bayan Exh.P.C. Of Muhammad Siddique complainant sent by Muhammad Younas Khan, S.-I. Through Muhammad Ashiq L.H.C. No,1227 and on the basis of the same he chalked the F.I.R. Exh.P.C./1. P.W.10 is Munir Ahmad constable who received one sealed parcel allegedly containing blood-soaked cotton from the Moharrir and delivered the same to the office of Chemical Examiner. P.W.11 is Masood Ahmad Bhatti, who prepared the scaled site plan in duplicate as Exh.P.M. And Exh.P.M./1.
5. The accused Zeshan Khalid was examined under section 342, Cr.P.C. He in answer to a question as to why this case against him, he replied as under:-- "I have been falsely implicated in this case on suspicion. My first plea before the police was that I did not participate in the occurrence. During investigation I produced defence evidence and the police considering sufficient material declared me innocent in the case and the complainant was also satisfied with my innocence. The P.Ws. Have deposed against me on account of their relationship inter se."
6. Muhammad Imran, appellant accused was examined under section 342, Cr.P.C. He in answer to question as to Why this case against him, he replied as under:-- "It is a blind murder and I have been falsely involved in this case due to enmity with the complainant. The complainant is a greedy man. He firstly involved Zeshan accused and gave him an effective role but after getting some thing from him he exonerated said Zeshan accused. The deceased and injured were hit by unknown person and the complainant with the connivance of the police falsely involved me."
7. The learned trial Court having heard the learned counsel for the parties passed the above said conviction and sentence, which is being impugned herein.
8. Learned counsel for the appellant contends that the ocular account furnished by the prosecution does not describe with certainty as to who, the appellant or the acquitted accused fired fatal shot to the deceased, hence it is a case of lesser punishment. He relied on Allah Dad and another v. The State 1995 SCM R 142; Nooran (Mst.) v. Nura and another PLD 1975 SC 174; Nazir Ahmad and others v.
The State 1999 PCr.LJ 508 (Lahore) ; The State v. Rashid Ahmad 1995 PCr.LJ 2001 (Lahore); Muhammad and others v. The State 1994 PCr.LJ 2102 (Karachi) and Qasim and 8 others v. The State 1994 PCr.LJ 1295 (Lahore).
9. On the other hand, learned counsel for the State opposed the arguments and stated that P.W.2 Mst. Nasreen Bibi is an injured eyewitness and her presence cannot be doubted. The appellant deserves normal sentence passed by the learned trial Court.
10. Heard.. Record perused.
11. Ocular account has been furnished by Mst. Nasreen Bibi. She was injured in the incident. The deceased is her sister's son. He is child of about 10/11 months. He was in the lap of Mst. Nasreen Bibi when the appellant and Zeshan, acquitted co-accused fired one shot each causing injury on the person of Mst. Nasreen and Ijaz deceased. Motive given for the incident by her is that her father and brother Safdar were present on their vegetable shop when the appellant hurled abuses to his brother Safdar. Her father inquired reason for this behaviour and the accused went away issuing threat to kill him. Naeem and Iftikhar P.Ws. Were also present at the shop. On the same day at 11-30 a.m., the appellant and Zeshan acquitted co-accused, both armed with pistols came there and fired one shot each in the air. Her father closed the door of the shop and went on the rooftop of the house. She followed her father while carrying her sister's son 10/11 months old. The appellant Imran fired first shot, which landed on the person of the deceased while Zeshan shot hit on her left shoulder. Her statement was recorded by the police after one hour of the incident at 12-00 night time. She did not attribute fireshot by the appellant specifically on the person of the deceased in her statement Exh.D.A. She in her statement Exh.D.A. Stated that Imran and Zeshan, both fired at the time of occurrence. P.W.3 Iftikhar Ahmad, father of the deceased child, also stated on the same line.
His statement was recorded on the same day at. 1-30 a.m. Night time. He, too, in his statement Exh.D.C. Did not specifically attribute the injury to the appellant or acquitted accused. Muhammad Siddique complainant appeared as P.W.4. He stated that both the appellant and Zeshan fired one shot each in the air while standing in front of the door of the shop. He closed his shop and went on rooftop of his house. Appellant and Zeshan, both accused fired one shot each, which landed on the person of Ijaz deceased and Mst. Nasreen, .Injured P.W. Zeshan co-accused was acquitted on the basis of compromise.
12. The deceased Ijaz as well as Mst. Nasreen Bibi received on injury each with fire-arm. It cannot be attributed with judicial certainty C as to who caused the injury. At this stage, we will survey the precedent cases referred by the learned counsel for the appellant.
13. In Allah Dad and another v. The State 1995 SCM R 142, it was held by the Honourable Supreme Court of Pakistan that the record did not show with certainty that it was the shot of the accused, which killed the deceased and not of the other accused. Sentence of death awarded to the accused was thus, altered to imprisonment for life in circumstances., In Nuran (Mst.) v. Nura and another PLD 1975 SC 174, the Honourable Supreme Court was pleased to hold that though there was evidence of assailants having fired at but no evidence as to whose fire shot resulted in injury.
Sentence was reduced to transportation for life. In Nazir Ahmad and others v. The State 1999 PCr.LJ 508 (Lahore), it was held that during the trial injuries were distributed between both the accused for the first time and it was difficult to say, with judicial certainty as to which injury was caused by whom out of the accused persons. Sentence of death was altered to life imprisonment. In case The State v. Rashid Ahmad 1995 PCr.LJ 2001 (Lahore), the Court reduced the sentence from death to life imprisonment finding that as to who out of two accused has caused fatal injury to the deceased was not clear. Similar is the principle laid down in case of Muhammad and others v. The State 1994 PCr.LJ 2102 (Karachi) and Qasim and 8 others v. The State 1994 PCr.LJ 1295 (Lahore).
14. After examination of the above precedent case-law we are of the view that the Honourable Supreme Court of Pakistan in Nuran (Mst.)'s case, has given benefit of lesser sentence in case of nature where it could not be proved with certainty as to who out of the assailants caused injuries on the person of the deceased. The Courts as noted above have followed this view consistently.
The Honourable Supreme Court of Pakistan in case of Muhammad and others' case has also taken the same view.
15. We are fortified in our view that the prosecution has not been able to prove that who out of the appellant and acquitted accused caused fatal shot to the deceased Ijaz with whom the appellant had no enmity. The record also indicates that even if the motive was against Safdar and not against Mst. Nasreen or the minor child.
16. Mst. Nasreen Bibi herself attributed injury on her person by acquitted accused. Therefore, conviction of the appellant under section! 324, P.P.C. Is set aside.
17. For what has been discussed above, we are of the considered views that the appellant deserves the lesser sentence. Accordingly we maintain his conviction and alter his sentence from death to life imprisonment. Fine shall remain intact. Benefit of section 382-B, Cr.P.C. Is granted to the appellant-accused. With this modification, this appeal is dismissed. Murder Reference is .
Sentence reduced.