' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,656 of 2001 filed by Saeed Ahmad and Zafar Iqbal appellants, who were convicted and sentenced by learned Sessions Judge, Khanewal vide his judgment dated 17-9-2001 as under:-- ' Saeed Ahmad appellant under section 302(b)/34, P.P.C. Deathand a compensation of Rs,100,000 or in default six months' S.-I.
' Zafar Iqbal appellant under section 302(b)134, P.P.C. Imprisonment for life and a compensation of Rs,50,000 or in default three months' S.-I. With the benefit of section 382-B, Cr.P.C.
' Murder Reference No,761 of 2001 for confirmation of death sentence or otherwise of Saeed Ahmad appellant shall also be replied through this single judgment.
2. Brief facts of the case, as disclosed by Zafar Iqbal complainant,are that on the eventful night of 24-6-1999 he along with 'Muhammad Ramzan having conversation in their Bheni situated in Square No,39 Killa No,10. At about 10 p.m. Suddenly Saeed Ahmad accused armed with pistol .30 bore, Muhammad Yousaf armed with pistol and Zafar Iqbal armed with rifle came at the spot, who were identified in the light of moon. In the meanwhile, Zafar Iqbal raised Lalkara to avenge the complainant party for taking "Dolli" of Mst. Zareena Bibi. After this juncture all the three accomplices came near the cot of deceased and extended threats for dire consequence to the P.Ws. In their sight Zafar Iqbal inflicted rifle's butt upon the right forehead of Ziadat Ali deceased. Thereafter, Muhammad Yousaf inflicted fire with his pistol, which landed upon the right side of the head of deceased. Receiving this injury complainant's father prone down. In the meanwhile, Saeed Ahmad inflicted pistol fire-shot on the back of the neck. The complainant party raised hue and cry. Hearing the noise Allah Ditta P.W. Attracted towards the place of occurrence, thereafter, accused persons along with their respective weapons decamped from the place of occurrence. When the Ziadat Ali was attended he was taking last breath. Allah Ditta was sent for to call the doctor but the deceased succumbed to the injuries at the spot.
3. Motive behind the occurrence was that two years prior to the registration of this case, Luqman real brother of the complainant was wedded with Mst. Zareena Bibi daughter of Ghulam Muhammad but the Rukhsati had not taken place. Saeed Ahmad and Muhammad Yousaf accused were unhappy upon this Rishta. On 24-6-1999 father of Saeed Ahmad with the consent of his wife arranged Rukhsati of Mst. Zarrena with Luqman. Due to this grudge, the accused persons having premeditation plan and armed with lethal weapon terminated the life of Ziadat Ali deceased.
4. After registration of the formal F.I.R., the investigation of thecase was taken over by Syed Nazir Ahmad Shah S.-I. C. W.1. He went to the spot, prepared injury statement Exh.P.B. And inquest reportExh.P.C., prepared site-plan without scale Exh.P.L., took into possession blood-stained cot P.4, Channi P.5 vide memo. Exh.P.I., took into possession blood-stained earth vide memo. Exh.P.J., also collected two empties of .30 bore P.1/1-2, which were taken into possession vide memo., Exh.P.F. On 12-7-1999 he arrested accused Zafar Iqbal (died) Muhammad Yousaf (acquitted) and Saeed Ahmad (present appellant), who on 19-7-1999 got recovered pistol P.2 along with three live cartridges P.3/1-3, which was taken into possession vide memo. Exh.P.G. After completion of the remaining formal investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced nine witnesses in all, thereafter, learned D.D.A tendered in evidence report of Chemical Examiner Exh.P.M., report of Serologist Exh.P.N., report of Forensic Science Laboratory Exh.P.O. And closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. Nishan Ali and Mamoor Ali were examined as D.Ws.1 and 2 while Syed Nazir Ahmad Shah S.-I. Was examined as C.W.1 in this case.
5A. After having read the entire prosecution evidence, statement of the appellant Saeed Ahmad recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellants at the very outset submits that as far as, Zafar Iq4bal appellant, is concerned, he had met his natural death, so his appeal to this extent has become in fructuous. So far as, Saeed Ahmad appellant is concerned, learned counsel submits that occurrence had taken place on 24-6-1999 at 10-00 p.m. And it was 9th of lunar month, that it was an unwitnessed occurrence, that F.I.R. Was recorded after due deliberation and consultation and fabricated one, that on the same evidence Yousaf co-accused had already been acquitted by the learned trial Court, that two D.Ws. Namely, Nishan Ali and Mamoor Ali while appearing before the learned trial Court stated that Yousaf and Zafar Iqbal accused are innocent in this case. Further submits that as far as, recovery is concerned, that has been planted and so far as, motive is concerned, the prosecution has failed to prove the motive against the appellant because the Nikah of Mst.
Zareena had taken place with Luqman and if there was any motive that was against Luqman, who was alive and not against his father Ziadat Ali deceased, that same evidence has been disbelieved qua co-accused Yousaf, who has been acquitted by the learned trial Court. Concluding his arguments, learned counsel submits that prosecution evidence is consistent about the first shot fired by Yousaf and opinion of the police regarding his innocence is not admissible in evidence. He lastly submits that benefit of doubt should be granted to Saeed appellant.
6. On the other hand, learned State counsel submits that time, date and place of occurrence is not disputed, that prosecution has proved the motive in this case, that ocular account is fully corroborated by medical evidence, that according to post-mortem report of the deceased Injury No,1 is attributed to Saeed Ahmad appellant, that statements of eyewitnesses are consistent one, that according to report of Fire-arm Expert recovery has been proved, as the crime empty recovered from the spot matched with the pistol recovered on the pointation of Saeed Ahmad appellant, that learned counsel for both Saeed Ahmad appellant and Yousaf acquitted co- accused have been making suggestions before the learned trial Court to the eye-witnesses that deceased was killed by them. He supports the judgment of the learned trial Court.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. According to the F.I.R., the occurrence in this case had taken place on 24-6-1999 to 10-00 p.m. Within the revenue estate of Chak No,173/10-R, which is at distance of 12 miles away from Police Station, Jahanian, District Khanewal while the matter was reported to the police on 25-6-1999 at 4-00 a.m. By Zafar Iqbal complainant. The deceased in this is Ziadat Ali, who is father of Zafar Iqbal complainant. There were three accused in this case, namely, Saeed Ahmad appellant, Zafar Iqbal (died his natural death) and Yousaf, who was acquitted by the learned trial Court on the ground that injury attributed to him was exit wound and moreover, he was found innocent by the Investigating Agency. Zafar Iqbal accused was awarded imprisonment for life but as the statement made by learned counsel for the appellants that he had died his natural death, so this appeal to his extent has become infructuous.
' As far as, Saeed Ahmad appellant is concerned, according to the prosecution case, he gave an injury on the neck of the deceased, which proved fatal and resulted into the death of Ziadat Ali deceased. Dr. Muhammad Aslam P. W.1, who conducted the post-mortem examination on the dead body of Ziadat Ali deceased on 25-6-1999 at 10-00 a.m., has given the time between injury and death as 12 hours, which coincide with the time of occurrence.
' The eye-witness account in this case was furnished by Zafar lqbal P.W.3, Muhammad Ramzan P.W.4 (sons of the deceased) and Allah Ditta P.W.5 (Nephew of the deceased). It is well-known to everybody that complainant party also falsely involved close relative of the real culprits along with them, so that they may not pursue the case and so was done in this case by implicating Yousaf (acquitted accused), who is step-brother of Saeed Ahmad appellant. Yousaf acquitted co- accused was attributed an injury on the head of Ziadat Ali deceased, which in fact was an exit wound, so he was rightly acquitted by the learned trial Court and even no appeal against his acquittal had been filed by the complainant or the State.
As far as Saeed Ahmad appellant is concerned, ocular account is fully .Corroborated by medical evidence, recovery was also effected from him and there is a positive report of Fire-arm Expert (Exh.P.O.) in this regard., However, there are some mitigating circumstances in favour of Saeed Ahmad appellant, that's, that motive of the occurrence as stated by A the complainant in the F.I.R., is that Mst. Zareena was married to Luqman son of the deceased and appellant's party had joined the Nikah ceremony of Luqman with Mst. Zareena sister of Saeed Ahmad but Saeed Ahmad and Muhammad Yousaf were unhappy on this Rishta. To our mind, the motive if any that was against Luqman and not against his father Zaidat Ali. Saeed Ahmad also joined the Nikah ceremony, so in our view, no grievance should have been there on this score. This is very unfortunate that Saeed Ahmad and Muhammad Yousaf had engaged their counsel before the learned trial Court separately, where both the learned counsel have been making statements levelling allegation of murder against each other but the false implication of Muhammad Yousaf (acquitted accused) has been proved from the record beyond any shadow of doubt. However, the immediate cause of motive is shrouded in. Mystery and the reasons for murder of Ziadat Ali deceased is not proved by the prosecution: So taking into consideration, this aspect of the case, though we maintain the conviction of Saeed Ahmad appellant under section 302(b), P.P.C. But convert the same from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. His death sentence is not confirmed and murder reference is replied in negative.