' MUHAMMAD FARRUKH MAHMUD, J.---The appellants Naik Muhammad alias Naika and Said along with their co-accused namely Amir Haider, Sher, Kanda, Zulfiqar, Humayun and Allahyar, were tried by the learned Additional Sessions Judge, Jhang, in lieu of case F.I.R. No,949 registered at Police Station Sadar Jhang on 25-12-1996 for offences under section 302/34, P.P.C. Vide judgment dated 12-6-2000, the learned trial Court, while acquitting their aforesaid co-accused, convicted both the appellants for offences under section 302/34, P.P.C. Each and sentenced them to death each plus a fine of Rs,20,000 each. They were also directed to pay Rs,50,000 each to thelegal heirs of the deceased or in default in payment thereof to suffer R.I. For six months each.
2. Aggrieved by their above noted conviction and sentence, both the appellants have filed the instant appeal, while the learned trial Court has made reference bearing Murder Reference No,388 of 2000 seeking confirmation or otherwise of death sentence. Both these matters are being decided through this consolidated judgment.
3. Briefly, the facts of the prosecution case, as unfolded by thestatement of Sher Muhammad, complainant/P.W.8 (Exh.P.F.), recorded by Naib Ali, S.-I./Incharge Police Post Khewa/P.W.11, at Mauza Shabal on 25-12-1996 at 4-15 p.m., on the basis of which formal F.I.R. (Exh.P.F./1) was recorded by Riaz Hussain, Moharrer/A.S.-I./P.W.4, at Police Station Sadar Jhang on the same date at 5-00 p.m., are that on 25-12-1996 at about 3-00 p.m. When the complainant along with Murtaza alias Pappu, Sajjad Ahmad and Muhammad Anwar son of Ghulam/P.W.9, while on their way back to the village after having delivered sugarcane at Sultanpur Kanda, reached at Kacha road near Thatha Romana, Naik Muhammad alias Naika/appellant armed with .8-MM rifle, Amir (acquitted accused) armed with .12-bore gun, Said/appellant armed with .7-MM rifle and Haider (acquitted accused) armed with hatchet emerged from the sugarcane crop. Haider abused Murtaza and exhorted his co-accused that Murtaza be taught a lesson for assisting Waris in the theft committed at his house (Jhuggi). In the meanwhile, Said fired a short from his rifle hitting Murtaza on his arm near the left shoulder, in view whereof Murtaza ran towards the Barseem crop when Naik Muhammad alias Naika fired a shot from his rifle which hit him on his left flank, as a result whereof Murtaza fell down.
Amir continued from his gun. The complainant, Sajjad and Muhammad Anwar took refuge in the nearby watercourse and witnessed the occurrence.
' The motive behind the occurrence was that Naika and Said, appellants, committed theft in the house/Jhuggi of Waris, a close relative of the complainant. The complainant and his son Murtaza (deceased) had been rendering help to Waris in that connection, which annoyed Naika etc., who had committed the murder of Murtaza. It was further alleged that a few days prior to the occurrence, when the complainant along with Muhammad Aslam and Haq Nawaz/P.W.10 was present at his Dera, the accused Sher, Kanda, Zulfiqar, Humayun and Allah Yar came there and asked the complainant to restrain his son Murtaza from helping Waris, otherwise he would be done to death.
4. After recording and sending the statement of Sher Muhammad/complainant to the police station for formal registration of the case, Naib Ali, S.-I./P.W.11, went to the place of occurrence, prepared injury statement Exh.P.D. And inquest report Exh.P.E. Of thedeceased and sent the dead body to the mortuary for post-mortem examination. On spot inspection, he prepared site-plan Exh.P.K., collected blood-stained earth from the spot and sealed the same into parcel vide memo.
Exh.P.J., attested by Muhammad Anwar/P.W.5 and one Sajjad Ahmad. On 26-12-1996, the last-worn clothes of the deceased, i.e, Shirt P-1, Shalwar P-2 and Vest P-3, vide memo. Exh.P.A., attested by Qamar-uz-Zaman/P.W.1 and Muhammad Aslam. On 26-2-1997 Naik Muhammad appellant was arrested and .7-MM rifle P-4 along with six bullet P-5/1-6 was recovered form his possession and the same were taken into possession by the Jan Muhammad, S.-I./S.H.O./P.W.12, vide memo.
Exh.P.G., attested by Zafar Hayat/ P.W.6 and Barkhurdar. Said appellant was arrested on 30-3-1997 and .7-MM rifle P-6 along with four cartridges P-7/1-4 were recovered from his possession and the same were taken into possession by Muhammad Siddique, Inspector/P.W.7, vide memo. Exh.P.H., attested by Sher Muhammad/P.W.8 and Muhammad Riaz. After completion of investigation, the accused/appellants were -challanedto face trial.
5. At the trial, the prosecution produced twelve witnesses in nsupport of its case. Ocular account was furnished by SherMuhammad/P.W.8 and Muhammad Anwar/P.W.9. Evidence with respect to motive was given by Sher Muhammad/P.W.8 and Haq Nawaz/P.W.10. The recoveries of .8-MM rifle and .7-MM rifle from the possession of Naik Muhammad alias Naika/appellant and Said/appellant were attested by Zafar Hayat P.W.6 and Sher Muhammad/P.W.8 respectively besides the Investigating Officers. Dr. Manzoor Ahmad Cheema P.W.3 conducted post-mortem examination on the dead body of the deceased and found four fire-arms injuries in his person. In his opinion the aforesaid injuries were sufficient to cause death in the ordinary course of nature. Duration between the injuries and death was immediate and between death and post-mortem examination was within 18 to 24 hours. Riaz Hussain, A.S.-I./P.W.4, stated about the registration of the case.
Muhammad Siddique Inspector/P.W.7, Naib Ali, S.-I./P.4.11 and Jan Muhammad, S.-I./P.W.12 stated about the investigation of the case.After tendering in evidence the reports of Chemical Examiner Exh.P.L.And Serologist Exh.P.M., the prosecution closed its side. Thereafter, the statements of the accused/appellants under section 342, Cr.P.C. Were recorded, wherein they pleaded their innocence and false implication in the case. They did not appear as their own witnesses under section 340(2), Cr.P.C. However, they produced Akbar Ali, S.-1./D.W.1., and Ghazanfar Hayat, DSP/D.W.2, in their defence.
5. After having read the entire evidence, the statements of theaccused/appellants recorded under section 342, Cr.P.C. And other material available on record, the learned counsel for the appellants submits that he would not press for acquittal of the appellants and would pray for reduction of sentence alone as mitigating circumstances exist in favour of the appellants. The learned counsel on that regard has referred to the medical evidence which does not fix the liability of the fatal shot and that the occurrence took place about ten years ago and the appellants have been facing the rigours of jail since their arrest. The learned counsel appearing on behalf of the State has submitted that it was a day light occurrence; that the matter was reported to the police without any loss of time; that the mere relationship of the P.Ws. With the deceased would not term them as interested witnesses; that plausible explanation is available on the record that they accompanied the deceased on the fateful day; that the ocular account is supported by the medical evidence and the circumstances of the case; that the prosecution has successfully proved the motive against the appellants; that the acquittal of the other accused would not benefit the appellants as the learned trial Court has acted on the principle of sifting the grain from the chaff. He has supported the impugned judgment.
7. We have heard the learned counsel for the parties and have also gone through the relevant record of the case.
8. It is true that Sher Muhammad/P.W.8 is the father of the deceased, while Muhammad Anwar/P.W.9 is the cousin of the deceased and they lived at a distance of two miles from the place of occurrence but the mere fact of their relationship with the deceased would not be enough to discard their evidence. Both of them have stated that they along with Murtaza deceased and Sajjad Ahmad had gone to deliver sugarcane at Sultanpur Kanda .And were returning when they were surprised by the appellants and two acquitted accused Amir and Haider. Normally, the villagers go together to do such-like errands. There is nothing abnormal in it. Despite lengthy cross- examination, it could not be brought on record that there was no Sugar Mills or there was no Kanda. Both the witnesses were cross-examined at length but no describable dent was caused to the veracity of their statements. Both these witnesses have corroborated each other on all material aspects of the case. The contradictions are very minor in nature and relate to the name of the driver of the tractor; how much money was paid etc. The statements of P.Ws.8 and 9 were recorded after more than three years and with the lapse of time such contradictions naturally crop up. Their statements are confidence-inspiring and are supported by the circumstances of the case and the medical evidence. The statements are also corroborated by the motive. In these circumstances, learned counsel for the appellants has rightly not pressed for the acquittal.
9 So far as question of sentence is concerned, we find thefollowing mitigating circumstances in favour of the appellants:--
(i) that both the appellants are real brothers;
(ii) that one shot has been attributed to each of them;
(iii) that it is not ascertainable from medical evidence as to whose shot proved fatal. In somewhat similar circumstances, the Hon'ble Supreme Court in the case of Allah Dad and another v. The State (1995 SCM R 142) converted the death sentence into imprisonment for life.
' Hence, while maintaining the conviction of the appellants for offence under section 302(b)134, P. P .0 . , we reduce the sentence to imprisonment for life each. The amount of compensation is enhanced to rupees one lac each or in default in payment or non-realisation thereof, the appellants would suffer S.I. For six months each. (Notice for enhancement was given to the learned counsel for the appellants, who accepted the same). Benefit of section 382-B, Cr.P.C. Is extended to the appellants. The sentence of fine of Rs,20,000 imposed by the learned trial Court is set aside, as the same is not warranted by law. The death sentence is not confirmed.
10. With the above modification and reduction in sentence, this appeal is partly allowed. The Murder Reference is answered in the negative.