' KHAWAJA MUHAMMAD SHARIF, J.---Both the appellants Mumtaz alias Taj and Ejaz Ahmad were tried by the learned Additional Sessions Judge, Sahiwal, in lieu of case F.I.R. No,43 registered at Police Station Kamir. On 28-2-2000 for offences under section 302/34, P.P.C. Vide judgment dated 26-2-2001, the learned trial Judge convicted and sentenced the appellants as follows:--
(i) Ejaz Ahmad for offence under section 302(b), P.P.C. To death plus payment of Rs,1,00,000, as compensation to the legal heirs of the deceased, recoverable from his estate as first charge.
(ii) Mumtaz alias Taj for offence under section 302(c)/34, P.P.C. To undergo 25 years' R.I. And also to pay Rs,50,000, as compensation, to the legal heirs of the deceased, in default whereof to suffer further S.I. For six months. The benefit of section 382-B, Cr.P.C. Was given to him.
2. Aggrieved by their above noted conviction and sentence, both the convicts have filed the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No,186 of 2001, seeking confirmation or otherwise of death sentence imposed upon Ejaz Ahmad, as contemplated by section 374, Cr.P.C. We propose to decide both these matters through this single judgment.
3. The brief facts of the prosecution case, as narrated by Khan Ahmadcomplainant, are that on 28- 2-2000 at about 1-30 p.m. When the complainant, Muhammad Ahmad, Mushtaq Ahmad and Ali Ahmad, on their way back to their home, while taking chaff from Killa No,7 of Square No,46, reached Killa No,17 of the aforesaid Square belonging to one Razzaq, Mumtaz alias Taj armed with pistol and Ejaz Ahmad armed with .12 bore double barrel gun came across them and Mumtaz raised Lalkara that Muhammad Ahmad should not go alive, whereupon Ejaz Ahmad fired a shot from his gun, hitting Muhammad Ahmad on the right side of his chest, as a result he fell down. The complainant party raised alarm. The accused decamped from the spot, brandishing their weapons, towards their house. The P.Ws. Were taking Muhammad Ahmad on a tractor trolley to Kameer Hospital and when they reached at Bus Stand, Kameer, Muhammad Ahmad had succumbed to the injuries.
4. As to the motive, it was alleged that the accused had suspicion of illicit intimacy between the deceased and their sister Mst. Shahnaz.
5. After registration of formal F.I.R. Exh.PE, Imdad Ali, S.-I./P.W.10, inspected the place of occurrence, took blood-stained earth vide memo. Exh.PF and empty P.7 through memo Exh.PG. Then he went to Adda Kameer, prepared inquest report Exh.PJ, injury statement Exh.PJ/1 and sent the dead body of the deceased for post-mortem examination. Then he again went to the place of occurrence and prepared the visual site-plan Exh.PK and recorded drawings and notes 1-3 thereon. After post- mortem examination, on 29-2-2000, he took into possession the last-worn blood-stained clothes of the deceased, consisting of Shalwar P.1, Kamiz P.2 and vest P.3, through memo. Exh.PB. He got prepared the site-plan of the place of occurrence (Exh.PA). He recorded the statements of the P.Ws.
Under section 161, Cr.P.C. The accused were arrested on 23-3-2000. On 25-3-2000, Mumtaz- accused, while in custody, led to the recovery of revolver P.4 along with four live bullets P.5/1-4 from inside his home and the same were taken into possession vide memo. Exh.PC. On the same date, time and place, Ejaz Ahmadaccused, while in custody, led to the recovery of gun P.6 which was taken into possession vide memo. Exh.PD. The Investigating Office prepared the site-plan Exh.PD/1 with regard to the place of recoveries of revolver and gun. After completion of investigation, the accused was sent to face trial.
7. (sic) In support of its case, the prosecution produced ten witnesses in all and after tendering in evidence the positive reports of Chemical Examiner Exh.PL, Serologist Exh.PL/1 and Forensic Science Laboratory Exh.PM closed its case. Thereafter, the accused in their statements under section 342, Cr.P.C. Pleaded their innocence and false implication due to previous enmity. Ejaz took the plea of grave and sudden provocation and, thus, admitted the commission of murder of the deceased. He also made statement in his defence as contemplated by section 340(2), Cr.P.C. However, Mumtaz totally denied his presence at the spot.
8. Learned counsel for the appellants, in support of this appeal, submits that both the appellants are real brothers and have been falsely implicated in this case; that the witnesses were not present at the spot; that it is the case of the prosecution itself that the accused persons, who are real brothers of Mst. Shahnaz, have committed the murder of the deceased due to illicit relationship between him and Mst. Shahnaz; that it is a case of two versions, i.e, one put-forth by the prosecution and the other by the appellants, and according to the learned counsel, the version given by the appellants seem to be true and believable one. As far as Mumtaz appellant is concerned, learned counsel submits that although he was armed with a pistol, yet no role whatsoever has been ascribed to him.
9. On the other hand, learned State counsel submits that the occurrence took place on 28-2-2000 at about 1-30 p.m. In broad-daylight; that distance between police station and the place of occurrence was 12 kilometres; that both the appellants were named in the first information report which was lodged within one hour and fifteen minutes after the occurrence in the police station and that the ocular account is fully corroborated by the medical evidence.
10. We have heard the learned counsel for the parties and have gone through record of the case with their assistance.
11. Before proceeding further, it would be advantageous to reproduce answer to Question No,9 by appellant-Ejaz Ahmad under section 342, Cr.P.C.:-- "The complainant and his family were on inimical terms with me and my family because my mother Mst. Zulaikhan married my father after elopement and out of the wedlock, besides me, Mst.
Shahnaz and Mumtaz, co-accused, were born. Said Mst. Zulaikhan is real Phuphi of the deceased and the complainant Khan Ahmad, P.W. We lived out of the. Village Abadi and the house of complainant Khan Ahmad and his brother is adjacent to our houses. Deceased Muhammad Ahmad had established illicit relations with my sister Mst. Shahnaz and I, time and again, had warned deceased Muhammad Ahmad to abstain from such relations because in fact, the deceased intended to take revenge of the abduction of Mst. Zulaikhan from us. On 28-2-2000 while I was going to my lands from my home, I on the way, detected Muhammad Ahmad and Mst.
Shahnaz in compromising position in Killa No,17 of Square No,46, on detection, my sister Shahnaz rushed to nearby sugarcane crop, while Muhammad Ahmad attempted to hide himself in the nearby Khal which was dry at that time. I soon picked up the gun .12 bore which was lying there and possessed by Muhammad Ahmad and fired in provocation at Muhammad Ahmad while he was in the Khal. I failed to control myself on account of `Ghairat' and after throwing away the gun there at the spot, I went to police station and appeared before the police. I had narrated the same occurrence to the Investigating Officer. The P.Ws. Were not present. The deceased Muhammad Ahmad died there in the Khal and it came much later at about sunset time to the notice of the complainant party when police came along with me at the spot of occurrence. On 28-2-2000, whereafter, after investigation of the Investigating Officer, fabricated the prosecution story by way of recording Exh.PE and inducting false P.Ws. No recovery was effected from me.
' Mumtaz, co-accused, was not with me at that time."
12. It is a case of two versions, one given by the prosecution and the other by the appellants. The Court has to put the two versions in juxta-position in order to ascertain as to which one of the two is believable and confidence-inspiring. The occurrence took place in a broad-daylight. Mst. Shahnaz did not receive any injury on her person. She was never produced even before the police or before the trial Court to substantiate the version of the appellant. It is settled law that when an accused person wants to bring his case within exceptions to section 300, P.P.C. (old law) wants to be convicted under section 302(c), P.P.C., the onus lies on him to prove the same as contemplated by Article 121 of the Qanun-e-Shahadat Order, 1984. With the above said view, we are of the considered opinion that version of the appellants is not believable and the same is discarded. He has committed the murder of the deceased by pistol fire with premeditation without any rhyme or reason and the injury proved fatal. No case is made out in his favour. The ocular account is fully supported by the medical evidence, corroborated by the recovery of incriminating weapon from the possession of the appellant, coupled with the positive report of the Fire-arms Expert. Ejaz Ahmad appellant has been rightly convicted and sentenced. He does not deserve any leniency.
Accordingly, the appeal to his extent is dismissed and his death sentence is confirmed. The murder reference is replied in the affirmative.
13. As far as Mumtaz alias Tajappellant, who is also real brother of Mst. Shahnaz, is concerned, suffice it to say that B although pistol was recovered from him yet no injury has been attributed to him; hence, the possibility of his false implication, being real brother of Ejaz appellant, cannot be ruled out.
' Therefore, we allow this appeal to his extent and set aside the impugned judgment of the trial Court qua him. He is acquitted of the charge. He is on bail. His bail bonds are cancelled and surety is discharged.