' KHAWAJA MUHAMMAD SHARIF, J.---This Judgment will dispose of Criminal Appeal No.200 of 2001 filed by Sohail Shahzad, appellant and Criminal Appeal No.202 of 2001 filed by Mukhtar Ahmad, appellant. Both the appellants were convicted under section 302(b), P,P.C. And sentenced to death with further direction to pay Rs.50,00,000 each, in default six month's S.I. Vide the judgment dated 30-1-2001 rendered by learned Additional Sessions Judge, Narowal.
' Murder Reference No.185 of 2001 for confirmation or otherwise of death sentence of both the appellants along with Criminal Appeal No.398 of 2001 filed by the complainant against acquittal of respondents Shabbir and Khalid shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 12-03 midnight on 31-5-1998 within the revenue estate of Mauza Phagwari at a distance of four kilometers from Police Station Shakargarh, District Narowal.
3. Briefly stated the facts of the case are that Muhammad Arif and Muhammad Asif, both sons of the complainant Muhammad Akram, at about 12-30 midnight were playing cards with others in the Haveli of Saleem. In the Haveli, Mukhtar, Shabbir, Khalid and Sohail Shahzad were also playing cards. There an altercation took place between sons of the complainant as also Mukhtar etc. And Mukhtar etc. Though, went to their houses but nourished a grudge in their minds. The sons of the complainant also came back to shop of their father. After a short while, Mukhtar Ahmad armed with a Mauzar, Sohail Shahzad also armed with mauzar and Khalid and Shabbir both empty- handed, came there. Shabbir raised Lalkara, upon which Mukhtar and Sohail fired at Muhammad Asif, which hit on different parts of his body. Muhammad Khalid and Muhammad Saleem witnessed the occurrence.
4. Inspector Muhammad Islam P.W.7 took over the investigation. He after registration of the formal F.I.R. Went to the place of occurrence; prepared inquest report Exh.PE, injury statement Exh.PE.
Recorded supplementary statement of the complainant, took into possession the blood-stained earth vide memo. Exh.PI and on 24-6-1998 arrested the accused. On 5-7-1998 Mukhtar accused led to the recovery of pistol .30 bore P.1, which was taken into possession, vide memo. Exh.PB. The same day, on the pointation of Sohail accused, .30 bore pistol P.2 was secured vide memo. Exh.PC. After completion of all formal investigation, all the four accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned S.S.P. Tendered in evidence report of the Chemical Examiner Exh.PM and coloured the case of prosecution. The accused in their statements under section 342, Cr.P.C. Pleaded false implication.
After conclusion of the trial, Khalid and Shabbir were acquitted by the trial Court.
6. Learned counsel for the appellants submits that no specific injury was attributed to any of the appellants and a perusal of the post-mortem examination report shows that the deceased was hit by a burst fire and all the injuries are on close vicinity of the body of the deceased. According to learned counsel, one person in fact fired at the deceased. Further submits that according to case of the prosecution the deceased was fired at by the accused from a distance of 10-11 feet but blackening having been around the wounds, the veracity of the prosecution story stands shattered.
Adds that to disbelieve the veracity of the prosecution story, further support can be sought from the fact that in the F.I.R. The occurrence was alleged to have been witnessed by Khalid and Saleem but they were not produced as P. Ws. Before the trial Court and against that Muhammad Nadeem (paternal grandson of the complainant) was alleged to have not witnessed the occurrence in the F.I.R. But his name was introduced in the supplementary statement of the complainant was produced before the trial Court.
' Further submits that the deceased having received injuries inside the shop, it was not possible for the eye-witnesses to have witnessed the same and the seat of injuries was beyond imagination.
' Learned counsel also pressed into service the dishonest improvements made on the part of the eye-witnesses inasmuch as the complainant stated before the trial Court that first shot was fired by Mukhtar Ahmad, appellant.
' So far as recovery of pistols are concerned, learned counsel submits that no crime empty having been taken into possessions mere recovery of fire-arms on the pointation of the appellants does not lend any support to case of the prosecution.
' Learned counsel submits that the prosecution failed to prove the alleged motive and except the bald statement, of the complainant, who was not eye-witness of the motive part of the case, there is no independent corroboration.
' At the end learned counsel submits that if the submission made by him do not find favour with the Court then in the alternate, it is not a case of death punishment and there are extenuating circumstances in favour of the appellants.
7. Learned counsel for the complainant submits that it is a case of promptly lodged F.I.R. With specific names of the accused and the acts done by real father of the deceased alone is sufficient to maintain conviction and he had no previous enmity with the appellants to falsely implicate them at the cost of leaving the actual culprits for the murder of his son. He has drawn out attention to certain portions of statement of Muhammad Akarm P.W.1, the complainant to submit that he has fully proved the motive. According to learned counsel, some of the injuries on the person of the deceased having blackening and some not, sufficiently prove that the deceased was fired at by two persons and from different distances. He submits that discrepancies in medical evidence range could not be fatal as the range/distance cannot be measured with exactitude. Adds that no crime empty having been recovered from the spot by the Investigating Officer can be irregularity and not fatal to case of the prosecution. He concludes that it was an intentional and brutal murder and there is no mitigation in favour of the appellants.
8. Learned counsel for the State adopt the arguments advanced by learned counsel for the complainant.
9. We have heard learned counsel for the parties and have gone through the evidence recorded by the trial Court.
First ,of all, we would take up the eye-witness account. In this regard, in the F.I.R., the occurrence was alleged to have been witnessed by Muhammad Khalid and Muhammad Salim. Both these P.Ws. Were not produced before the trial Court as having been won over and one Muhammad Nadeem (P.W.2) who is real grandson of the complainant was produced before the trial Court who deposed as an eye-witness. We, therefore, without any hesitation, rule out of consideration his evidence because he was not named in the F.I.R. Muhammad Akram, is now left in the field. He is father of the deceased and is also complainant. The occurrence had taken place at 12-30 p.m. On 31-5-1998 and the matter was reported to the Police in the hospital at 2-00 p.m. At hospital. The distance between the place of occurrence and the police station was 4 kilometers, so it can safely be said that it is a case of promptly lodged F.I.R. The number of injuries and presence and absence of the blackening around the wounds prove that there were more than one accused who fired at the deceased. The substitute the actual culprits is a rare phenomenon and especially when the real father is the complainant. We, therefore, believe the presence of Muhammad Akram complainant at the time and place of occurrence.
' Admittedly there was no previous background of enmity between the parties. Before the actual occurrence of murder, there was a quarrel over playing of cards between the deceased and the appellants. Something else has happened which is shrouded in mystery and the same has not been disclosed before the trial Court.
' No specific injuries were attributed to any of the appellants. The motive we are also forced to observe the prosecution has failed to prove. Except the assertion of Muhammad Akram, complainant there is no corroboration to the same.
' The upshot of the above discussion is that we are satisfied in our mind that it were the appellants who committed the murder of Muhammad Asif deceased.
' However, there are extenuating circumstances such as the occurrence having taken place at the spur of the moment, what happened just before the occurrence being shrouded in mystery, the prosecution having failed to prove the motive and the set of injuries having not been specified, we though maintain conviction of the appellants under section 302(b), P.P.C. But reduce their sentence from death to. The sentence of compensation and in default thereof is maintained.
The death sentence of both the appellants namely Mukhtar Ahmad and Sohail Shahzad is not confirmed and Murder Reference is replied in the Negative.
Now is the turn of Criminal Appeal No.398 of 2001 filed by the complainant against the acquittal of respondents Shabbir and Khalid. Both were empty-handed. No injury on the person of the deceased was attributed to them. The police found them innocent. They were, therefore, rightly acquitted by the trial Court and we maintain their acquittal.