' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,64 of 2001 filed by Rizwan Ullah and Imran Ullah appellants, who were convicted and sentenced by the learned Sessions Judge, Vehari, vide his judgment, dated 26-1-2001 as under:-- "Rizwan Ullah, death and compensation of Rs,1,00,000 or in default six months' R.I. Under section 302(b), P.P.C. Imran Ullah, ten years' R.I. With fine of Rs,10,000 or in default six months' S.I. Under section 324, P.P.C. Five years' R.I. With daman amounting to Rs,10,000 to be paid to Nazakat Hussain P.W. Under section 337-F(v), P.P.C. Ten years R.I. Under section 302(c), P.P.C."
2. Criminal Revision No,148 of 2001 filed by Ghulam Muhammad complainant seeking enhancement of sentence awarded to Imran Ullah respondent No,2 and Murder Reference No,58 of 2001 for confirmation or otherwise of death sentence of Rizwan Ullah shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.PG recorded on the statement of Ghulam Muhammad complainant are that he was Mujawar of Darbar Hazrat Mai Sain Sahiba. On 26-9- 1997, Muhammad Ramzan alias Kala and Rab Nawaz sons of Ashiq Khokhar along with Rizwan son of Sahib Naseeb Gujjar came in the graveyard for extracting the Honey and the complainant's son Mumtaz Husain (deceased) forbade them, the above named accused-persons and they abused him. Mumtaz Hussain was threatened by them. Accused went away. On the same day at about 2:00 p.m. Complainant and his sons Mumtaz Hussain deceased and Nazakat Ali injured/PW were present outside of their house. Meanwhile, accused Imran Ullah armed with gun .12 bore, Rizwan Ullah armed with pistol, Asad Ullah also armed with pistol, Bashir Ahmad, Rab Nawaz and Ramzan alias Kala armed with sotas emerged there. Rizwan Ullah raised Lalkara that they had come to teach a lesson to Mumtaz Hussain for earlier insulting them. Imran Ullah made a fire shot with his gun, which hit Nazakat Ali on left shin. He was followed by Rizwan Ullah, who made a fire shot with pistol hitting Mumtaz Hussain on left side of belly. Asad Ullah also fired with a pistol shot at Mumtaz Hussain, which hit on left palm. On hearing the fire shots Muhammad Aslam and Hafiz Abdul Razzaq were attracted at the site of occurrence. Whereupon, co-accused Bashir Ahmad, Ramzan alias Kala and Rab Nawaz armed with sotas raised Lalkara, that if any person will come forward, he will be killed. After causing injuries on the person of Mumtaz Hussain and Nazakat Hussain, all the accused left towards their houses. Mumtaz Husain succumbed to the injuries at the spot. Nazakat Ali was brought to Civil Hospital, Tibba Sultanpur. Leaving Muhammad Aslam and Muhammad Nawaz P.Ws with the dead body, the complainant left the place of occurrence and proceeded towards Police Station Tibba Sultanpur. Inspector/S.H.O. Met him at Asim Chowk Tibba Sultanpur, who recorded the statement of the complainant. At the same time, complainant produced support of barrel of gun and live cartridge of gun .12 bore before the police, which were left by the accused at the spot.
4. After registration of case, Muhammad Yousaf, Inspector/P.W.11 proceeded to the place of occurrence, took over the dead body of the deceased,- prepared injury statement. Exh. PM and inquest report Exh. PO. He collected bloodstained earth from two places vide memos. Exh. PD and Exh. PE. He arrested the accused on 17-10-1997. While in custody, on 22-10-1997, Rizwan Ullah led to the recovery of pistol P-6 and three live cartridges P-7/1-3, which were taken into custody vide memo Exh. PH. On the same day Muhammad Bashir alias Ramzan alias Kala and Rab Nawaz accused led to the recovery of sotas P-9 and P-8, which were taken into possession vide memo.
Exh.PK and Exh.PJ, respectively. On 26-10-1997 at the instance of Bashir Ahmad gun P-5 was recovered and taken into possession vide memo. Exh.PC. After completion of investigation, all the accused were sent up to face trial.
5. At the trial, the prosecution in order to prove its case produced 11 witnesses in all, thereafter, the learned D.D.A. Tendered in evidence reports of Chemical Examiner Exh.PQ and that of Serologist Exh.PQ/1 and closed the prosecution case, then the accused in their statements recorded under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, Bashir Ahmad, Rab Nawaz, Asad Ullah, and Muhammad Bashir were acquitted, while Rizwan Ullah and Imran Ullah were convicted and sentenced as stated above.
6. The learned counsel for the appellants in support of this appeal submits that no previous enmity existed between the parties; that no independent witness was produced by the prosecution to support its version; that there is no evidence available as far as the motive is concerned, which is shrouded in mystery; that in fact it is one incident and the prosecution has coloured it into two incidents and no time of earlier incident was mentioned in the first information report or before the learned trial Court; that on the same evidence four co-accused have been acquitted by the learned trial Court; that the version given by the defence during cross-examination that tt was an accidental fire is plausible and convincing; that according to site-plan and ocular evidence the fire was caused from a distance of 2/3 Karms but there was burning and blackening around the wound, which negates the prosecution version; that possibility of defence version cannot be ruled out and the benefit of that should be given to the appellants; and that the above said defence of the appellants was from the very first day. The learned counsel has relied upon the case reported as PLD 1998 SC 523 and submits that in view of this judgment it is a case of life imprisonment and not of death sentence. The learned counsel has also relied upon the case reported as 1983 SCM R 806 and submits that immediate cause of incident was not clarified by both the parties.
7. The learned counsel for the complainant at the very outset does not press the revision, which stands dismissed as having not been pressed. As far as the appeal against conviction is concerned, the learned counsel for the complainant adopting the support of the learned State counsel submits that the occurrence has been admitted by the appellants from the very first day; that it was not a case of grave or sudden provocation; and that the presence of the eye-witnesses cannot be denied.
8. We have heard the learned counsel for the parties at length and gone through the entire record of the case minutely. The occurrence took place on 26-9-1993 at 2-00 p.m. And the matter was reported to the police at Asim Chowk at about 4-30 p.m. The distance between the police station and the place of occurrence was 12 Km. Out of six accused, four accused namely Asad Ullah, Rab Nawaz, Bashir Ahmad and Muhammad Bashir have been acquitted by the learned trial Court. No appeal was preferred against their acquittal either by the State or by the complainant party.
Deceased in this case Mumtaz Hussain, who is son of Ghulam Muhammad and brother of Nazakat Ali. Both appeared as P.W.9 and P.W.10. In our considered view the presence of both the appellant at the spot has been proved by the prosecution, as Nazakat Hussain received fire-arm injury on his left leg and tibia bone was fractured. He has appeared before the learned trial Court in support of the prosecution case. There is no previous enmity between the parties. It is a broadday-light occurrence. The patties are known to each other. There is no mistaken identification. However, there are mitigating circumstances in the case, P.W.9 during cross-examination stated that he was not present at the time of earlier incident and he was told about the earlier incident by his son Mumtaz Hussain but this fact was not mentioned either in the first information report or before the learned trial Court. The appellants were arrested by Muhammad Yousaf, Inspector/ P.W.11 on 17-10- 1997. No crime empty was recovered from the spot, so no report of Fire-arm Expert was obtained. It is a case of single shot. Thus, in the above noted circumstances, while maintaining the conviction under section 302(b), P.P.C. Sentence of Rizwan Ullah-appellant is reduced to life imprisonment with benefit of section 382-B, Cr.P.C. The order of compensation and in default is maintained.
9. As far as Imran Ullah-appellant is concerned, he was armed with a gun. He fired a shot which hit on the leg of. Nazakat Hussain and caused tibia bone's fracture. He was rightly convicted under sections 324, P.P.C. And 337-F(v), P.P.C. We are unable to understand that how the learned trial Court convicted Imran Ullah under section 302(c), P.P.C. It was not a case of, grave or sudden provocation. In the second last para. Of the judgment it was held by the learned trial Court that it is a case of common intention, which attracts the provisions of section 34, P.P.C. But the appellant was convicted under section 302(c), P.P.C. No appeal against acquittal under section 302, P.P.C. Is filed either by the complainant party or by the State. Thus in the above noted circumstances, we set aside the conviction under section 302(c), P.P.C. However, convictions under sections 324, P.P.C.
And 337-F(v), P.P.C. Are maintained. Both the sentences would run concurrently. Benefit of section 382-B, Cr.P.C. Is extended to him. The order regarding compensation and default is mainta
10. With the above modifications in convictions and sentences, this appeal is dismissed. Death sentence is not confirmed. Murder Reference is answered in the negative.