' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Murder Reference No,279 of 2001, Criminal Appeal No,176 of 2001 (Muhammad Izharul Haq and others v. The State) and Criminal Revision No,106 of 2001 as they arise out of the same judgment dated 28-2-2001 passed by the learned Additional Sessions Judge, Vehari whereby appellant Izharul Haq was convicted under section 302(b), P.P.C. And sentenced to death with the compensation of Rs,50,000 to be paid to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default hereof to further undergo six months S.-I. While appellant Irshadul Haq as sentenced to two years' R.I. Under section 337-A(i), P.P.C., 3-1/2 years' R.I., under section 337-A(ii), P.P.C. And one years' R.I. Under section 337- F(i), P.P.C. With a compensation of Rs,10,000 to be paid to injured Faqir Ahmad P.W. In default whereof to further undergo six months' S.-I.
2. Brief facts of the case as disclosed by the complainant BaqirAhmad (P.W.7) at More Chak No,59/WB'at 1-00 p.m. Are that he along with his deceased brother Ghulam Rasool was present at his Dera and water was being supplied from their tubewell to the land of one Iftikhar; that he along with Ashraf went to complainant's land in Acre No,25 where appellants while armed with .12 bore gun and Sota started abusing ' by saying that why the water was being supplied through the public watercourse meant only for them; that On hearing noise his deceasedbrother Ghulam Rasool and nephew (Bhateeja) Arshad reached there; that in the meanwhile appellant Irshadul Haq gave Sota blows on complainant's head and back; that appellant Izharul Haw made a straight fire with his gun which hit on left side of his head who died at the spot and the appellants decamped form the spot. The motive behind the occurrence was stated to be a case of Lamberdari between the parties and "Khal" due to which they caused the above loss
3. The investigation of. The case was carried out by the police and after having completed legal formalities the accused were sent up for trial before the learned trial Court where the prosecution, in order to prove its case produced nine prosecution witnesses whereas the accused in their statements recorded under section 342, Cr.P.C. Pleaded not guilty and claimed trial.
4. Learned counsel for the appellants in support of this appealcontended that there is no mention in the F.I.R. Of the injuries of Faqir Muhammad; that even no injury statement was prepared by the Investigating Officer before sending him for medical examination; that there was no background of enmity because dispute of Lamberdari had come to an end 1995 so that motive had fallen on the ground; that presence of P.W.8 Muhammad Arshad at the spot was doubtful; that according to the prosecution it was a .12 bore gun injury while it is a rifle injury so nature of injury is doubtful because had it been done with .12 bore gun there should have been some pallet in the wound which does not exist; that it is an unwitnessed occurrence, injury of Faqir Muhammad was suppressed to strengthen its case; that if this Court is not convihced with the above arguments ,then for the reasons that the occurrence had taken place at the spur of the moment, the motive was not proved, the occurrence was started by the complainant party over the dispute of khal, non- mentioning of rifle in the site-plan after point No,6 and was added later on with different ink and that this case being a case of single shot is a case of mitigation. Relied on Muhammad Sahrif v. The State (2004 SCM R 8) in support of the contention of mitigation.
5. On the other hand, learned counsel for the State assisted bycomplainant's learned counsel submits that the names of the appellants, the kind of weapons and role has specifically been mentioned in the F.I.R.; that it is a broad-daylight occurrence and since the parties were known to each other, so, no question of false implication arises; that the injury attributed to appellant Izharul Haq proved fatal; that the ocular account in this case corroborated by the medical evidence; that the injuries of Faqir Muhammad have been mentioned in the F.I.R. And there is nothing on record to have been self-inflicted; that even maximum sentence was not awarded to Irshadul Haq; that, according to the learned State counsel, defence had taken a specific plea of alibi but failed torove the same and substitution is a rare phenomenon; that the prosecution has proved its case against the appellants to the hilt and that the appeal filed by the appellants against the captioned conviction and sentences is liable to be dismissed by this Court.
6. We have heard learned counsel for the parties at a great length,have given anxious consideration to their submissions made before this Court and have also gone through the record with their able assistance.
7. The occurrence in this case had taken place on 13-5-1997 at11-30 a.m. And the matter was reported to the police at 1-00 p.m. At More Chak No,59-WB whereafter formal F.I.R. Was recorded at the Police Station at 1-45 p.m. And distance from the place of occurrence and the police station was nine miles meaning thereby that it is a case of promptly lodged F.I.R.
8. There are two appellants in this case, namely, Izharul Haq and Irshadul Haq. The deceased in this case is Ghulam Rasool while Faqir Muhammad is the injured and appeared as P.W.7, while the other eyewitness is P.W.8 Muhammad Arshad. Although complainant P.W. Is the real brother of the deceased while P.W.8 Muhammad Arshad is a nephew "Bhateeja" of the complainant yet they had no enmity or strong motive to falsely implicate the appellants in the present occurrence because it is a rare phenomenon that such a close relations would let off the real killers and would substitute them. They were subjected to lengthy cross-examination but nothing could be shaken from their testimony so far as ocular account is concerned. Their presence at the spot also appears to be a natural one.
9. Apart from above, the ocular account in this case was corroborated by the medical evidence, the evidence of recovery and positive report of the Fire-Arm Expert which is a positive one.
10. So far as motive is concerned, two motives have been given i.e, first motive was regarding dispute of Lamberdari of Abdul Ghafoor, father-in-law of appellant Izharul Haq and second was of passing of water through a "Khal". It has come on record through cross-examination that the dispute of Lamberdari had come to an end in 1995 while the present occurrence had taken place in 1997, so, this motive part of the prosecution is disbelieved by us. Coming to the second motive of use of water through a "Khal" we may observe here that as the occurrence had taken place at the said place so it appears that it happened at the spur of the moment over the use of the said Khal.
11. Argument of the learned counsel for the appellant regarding non-mentioning of injuries of Faqir Muhammad P.W. In Karwai Police has no force because there is a mention of his injuries not only in the F.I.R. But also in the Inquest Report prepared by the Investigating Officer.
12. The analysis of the entire record of this case coupled with anxious consideration given to the submissions made at the bar by the learned counsel for the respective parties and application of independent judicial made would lead us to an irresistible conclusion that the prosecution has proved its case against the appellants beyond any shadow of doubt and we have no doubt in mind regarding commission of the offence by the appellants.
13. However, while coming to the point of quantum of sentence, we are in agreement with the argument of the learned counsel for the appellant that it is not a case of capital punishment and there are circumstances which make this case a case of mitigation for reasons, firstly, the dispute of Lamberdari was not proved by the prosecution as the same came to an end in 1995 while the occurrence in question had taken place in 1997 and even nothing had happened during these two years, secondly, the occurrence had happened at the spur of the moment over the use of "Khal" at the annoyance of the complainant party and, thirdly, it is a case of single shot which was not repeated by the appellant Izharul Haq coupled with the benefit from the precedent case-law relied upon by the learned counsel for the appellant on Muhammad Sharif v. The State (2004 SCM R 8).
14. Resultantly, while maintaining the conviction and sentence of the appellant Izharul Haq under section 302(b), P.P.C. We convert his sentence of death into imprisonment for life with benefit of section 382-B, Cr.P.C. With a further direction that the amount of compensation and imprisonment in default whereof shall remain the same. So far as conviction and sentence of appellant Irshadul Haq is concerned, the same is, maintained in to to because neither the State nor the complainant filed any appeal against the acquittal of Irshadul Haq appellant under section 302(b)/34, P.P.C. And even no notice of enhancement of sentence has been issued in the connected revision petition filed for enhancement of sentence of the appellants coupled with the fact that the matter is pending for the last eight years. Appellant Irshadul Haq is stated to be on bail. He shall be taken into custody by the relevant authorities to serve out the remaining part of his sentence.##T##
15. Murder Reference is answered in the negative, Criminal Appeal No,176 of 2001 is dismissed with the above modification in the quantum of sentence and the sentence of death awarded to appellant Izharul Haq is not confirmed while for reasons given above Criminal Revision No,1.06 of 2001 filed for enhancement of sentence of the appellants is hereby dismissed.