' HASNAT AHMAD KHAN, J.--- Appellant Muhammad Nawaz, Allah Wasaya, Saifullah along with their co-accused namely Nadir were tried by the learned Additional Sessions Judge, Jampur District Rajanpur in case F.I.R. No,124, dated 19-8-1999 for the offence under sections 302/324/337- D/148/149, P.P.C. Registered with Police Station Harrand, Tehsil Jam Pur District Rajanpur who vide judgment, dated 12-2-2002 convicted Muhammad Nawaz appellant under section 302, P.P.C. And sentenced him to death. He was further directed to pay compensation amounting to Rs,1,00,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased, in default whereof he was directed to suffer S.I. For six months. Allah Wasaya appellant was convicted under section 324, P.P.C. And was sentenced to ten years' R.I. With a fine of Rs,15,000 for the commission of murderous assault upon Muhammad Amin, P.W., in default whereof he was directed to suffer R.I. For one year.
In addition to that he was convicted and sentenced to 10 years' R.I. Under section 337-D for causing injuries to Muhammad Amin, injured P.W. He was further directed to pay Arsh which would be 1/3rd of Diyat amount. Saif Ullah appellant was convicted under section 324, P.P.C. And sentenced to ten years' R.I. Along with a fine of Rs,5,000, in default whereof he was directed to further suffer R.I. For three months. All the sentences were ordered to run concurrently they were given benefit of section 382-B, Cr.P.C. Also. However, Nadir co-accused was acquitted of the charge.
2. Feeling aggrieved by the impugned judgment the appellants have filed Criminal Appeal No,106 of 2002 while Muhammad Nawaz challenged the acquittal of Allah Wasaya and Saif Ullah appellant vide Criminal Revision No,231 of 2002 whereas the learned trial Court has also made a reference (Murder Reference No,107 of 2002) for the confirmation of death sentence awarded to Muhammad Nawaz appellant. All the matter are being disposed of by this single judgment.
3. Rab Nawaz was done to death in the morning of 19-8-1999 within the area of Mauza Gulabi falling within the jurisdiction of Police Station Harrand which is at a distance of 12 kilometers from said police station. The matter was reported to the police by Muhammad Nawaz P.W.9 on the same day at about 8-30 a.m.
4 . Briefly facts narrated in the F.I.R. Exh.P.A. Registered on the original complaint (Exh.P.A./1) of Muhammad Nawaz P.W.9 are that the complainant along with Rab Nawaz, Muhammad Amin and Abid Hussain reached at Chhab Rair for using the turn of their water and turned the flow of water towards their land when Allah Diwaya, P.O. And Muhammad Nawaz alias Nazoo appellant armed with kalashnikovs, Wazir armed with rifle, Allah Wasaya and Saif Ullah armed with official rifles, Nadir armed with hatchet and Mir Hazar armed with Sota, who were irrigating their land nearby at their Band came there and challenged Rab Nawaz as to why he had cut their water. Rab Nawaz replied that their time had finished so he had turned the flow of water to his land where upon Allah Diwaya fired at Rab Nawaz deceased with kalashnikov hitting on his face. Muhammad Nawaz alias Nazoo fired a burst of his kalashnikov hitting Rab Nawaz deceased on his right leg who fell down whereafter Allah Diwaya, P.O. And Allah Wasaya appellant caused firearm injuries to Muhammad Amin hitting on his chest and left foot who also fell down. Wazir fired at Muhammad Amin hitting on his foot and later on Saifullah appellant tried to shot at complainant but instead of him his fire hit Abid Hussain injured P.W. On his right leg. Nadir acquitted co-accused armed with hatchet and Mir Hazar armed with Sota threatened the complainant party with dire consequences while Allah Diwaya, Allah Wasaya, Wazir, Nawaz and Muhammad Nadir acquitted co-accused fired at Rab Nawaz who died at the spot while Muhammad Amin was seriously injured. Ghulam Sarwar Khan, S.- I. P.W.6 recorded the complaint Exh.P.A. At the instance of Muhammad Nawaz for the murder of Rab Nawaz deceased and sent the same for registration of case, whereafter he proceeded to the spot, took into the possession the dead body and prepared injury statement Exh.P.C. And inquest report Exh.P.D. He prepared injury statement of Abid Hussain as Exh.P.E. Thereafter he prepared site plan Exh.P.F. And took into possession blood-stained earth from the spot vide recovery memos. Exhs.P.G., P.H. And P.I., After post-mortem examination he secured last-worn clothes of the deceased shirt P.1, Shalwar P.2 and Chaddar P.3 through Exh.P.K. Blood-stained shirt P.4 of Muhammad Amin was secured by him as Exh.P.L. And blood-stained Shalwar of Abid Hussain P.5 was secured by him as Exh.P.M. Thereafter the investigation was transferred to Ashiq Hussain, S.-I. Who appeared as P.W.12.
He arrested Allah Wasaya accused/appellant and sent him to judicial lock-up. He got prepared site plan of the occurrence Exhs.P.B. And P.B./1. During the investigation he found Allah Wasaya, Saifullah, Muhammad Nawaz, appellants and Nadar acquitted co-accused innocent while rest of the accused namely Allah Diwaya, Wazir and Mir Hazar could not be arrested. After completion of the investigation the challan was sent up firstly to Special Court for Suppression of Terrorist Activities Act but later on the case was transferred and tried by the learned Additional Sessions Judge, Jampur District Rajanpur. During the trial the prosecution produced as many as 12 witnesses to prove its case. Dr. Muhammad Nasrullah who conducted the autopsy on the dead body of Rab Nawaz appeared as P. W.11. According to him at the time of post-mortem he found the following injuries on the dead body of Rab Nawaz:--
(1) A fire-arm wound 1 x 1 c.m. Circular in shape burning and blackening was present. Margins inverted 5 c.m. Below to tip of left shoulder on lateral surface of upper 1/4 of left arm going deep to muscle around the humerus to axilla and entering x chest cage injuring the pleura, right lung and fractured the fourth rib and major blood vessels, injured, the oesophagus and tracheal, heart and left lung. Chest cage inside was full of blood (wound of entry).
(2) A lacerated wound 1-1/2 c.m. x 1 c.m. Irregular in shape margins everted present on 10th intercostal space on back of right chest 3 c.m. Lateral to spinal region, blood and air coming out freely from wound with buzzing sound (wound of exit).
(3) A fire-arm wound 1 x 1 c.m. Circular in shape burning and blackening present around the margins and margins inverted, present on upper 1/4 of left leg on frontal surface below to middle of injunal ligament going deep into the muscles and fracturing the hip bone and injuring the major blood vessels (wound of entry).
(4) A lacerated wound 4 x 3 c.m. Irregular in shape margins everted. Superficial fat on skin some what muscles had been missing, present on lateral middle part of left buttock (Exit).
(5) A fire-arm wound 1 x 1 c.m. Circular in shape margins inverted, blackening and burning around the margins present on medial surface and middle part of left leg going deep into the muscle.
(Entry wound).
(6) A lacerated wound 1 x 1 c.m. Irregular in shape margins everted, no burning and blackening was present it was on upper 1/4 of left leg lateral surface. (Exit wound).
(7) A fire-arm wound 1 x 1 c.m circular in shape and burning and blackening was present around the wound. Margins inverted present on back of lower muscle and fracturing the bones, Tibia and Fibula. (Wound of entry).
(8) A lacerated wound 5 x 4 c.m. Irregular in shape with bony pieces visible and fracturing both bones of left middle 1/3rd of left leg on front to medial surface. (Exit wound).
' Ribs, pleura, Trachea, right lung, left lung, pericardium and heart and blood vessels were injured, along with tip of penis.
' In his opinion all injuries were ante-mortem, caused by fire-arm weapons. Injuries Nos.1, 2, 3, 4, 7 and 8 caused death of the deceased and injuries were sufficient to cause death in ordinary course of nature. The probable time between injuries and death was immediate and between death and post-mortem it was within 8 to 12 hours.
' On the same day he medically examined Muhammad Amin and found the following injuries:--
(1) A fire-arm wound 1 x 1 c.m. Circular burning and blackening was present, margins were inverted wound was going deep into chest at 6 c.m. Back of right nipple to mid axillary line. (Entry wound).
X-ray was advised.
(2) A lacerated wound 1-1/2 x 1 c.m. Irregular in shape margins everted on backside of chest. (Exit wound).
(3) A lacerated wound (kissing fire-arm injury), burning and blackening present on middle region of dorsal surface of left foot.
(4) A fire-arm wound 1 x 1/2 c.m. Circular in shape blackening and burning was present, margins inverted present 3 c.m. Below to medial maleolus of left foot. X-ray was advised.
' Injuries Nos.1 and 2 were declared "Jureh Jaifa", Injury No,3 as "Jureh Damiyeh" and injury No,4 as "Jureh Mutlahimah". All injuries were caused by fire-arm weapons. Abid Hussain was also examined by him on the same day and following injuries were found on his body:--
(I) A fire-arm wound 1 x 1/2 c.m. Irregular in shape burning and blackening was present around the margins, and margins were inverted. Injury was skin deep present on medial surface at middle part of right leg. (It was entrance wound).
(2) A lacerated wound, no burning and blackening present around the margins, margins everted and skin deep. Wound of exit.
' Both the injuries were declared as "Jureh Damiya" and were caused by fire-arm weapons.
' Ahmad Ali Shah Patwari who prepared the site plans Exh.P.B. And Exh.P.B./1 appeared as P.W.2.
Muhammad Ibrahim constable and Rab Nawaz constable appeared as P.W.4 and P.W.5. Their evidence is of formal in nature. Ghulam Sarwar, S.-I. As mentioned above appeared as P.W.6 while Zulfiqar Ali recovery witness of blood-stained earth appeared as P.W.7. Hafeez Khan who had identified the dead body of Rab Nawaz appeared as P.W.8 while Muhammad Nawaz complainant/ eye-witness and Muhammad Amin injured eye-witness appeared as P.Ws.9 and 10 respectively and furnished the ocular account. Ashiq Hussain, S.-I. Who had challaned the accused appeared as P.W.12. According to him Allah Wasaya, Saif Ullah and Muhammad Nawaz appellants along with Nadir acquitted accused were found innocent by him. After tendering in evidence report of Chemical Examiner Exh.P.Q. And proclamation in the newspaper against Wazir, Mir Hizar and Allah Divaya as Exh.P.R,, Exh.P.R./1, Exh.P.R./2 the learned A.D.A. Closed prosecution evidence. Therefore, all the accused were examined under section 342, Cr.P.C. Who completely denied the prosecution charges but refused to appear as defence witnesses under section 340(2), Cr.P.C. However, they produced Mussarat Hussain Moharrir BMP post Murrang and Saleem Khan Dafdar as D.W.1 and D.W.2 in their defence.
5. After completion of the trial the learned trial Court acquitted Nadir co-accused of all the charges while proceeded to convict and sentence Muhammad Nawaz, Allah Wasaya and Saifullah as mentioned in opening paragraph of this judgment.
6. Mr. Balakh Sher Khosa, Advocate while arguing the case before us on behalf of Muhammad Nawaz appellant has assailed the impugned judgment on the dint of following points:--
(i) That the learned trial Court has erred in disbelieving the defence version which was more probable than that of prosecution witnesses;
(ii) That the prosecution witnesses being related to the deceased are interested witnesses and as such not worthy of any reliance;
(iii) That Muhammad Nawaz appellant was found innocent during the investigation and no recovery was effected from him.
(vi) That medical evidence is not in line with the ocular account inasmuch as the doctor who conducted the post-mortem upon the body of the deceased and found that blackening and burning was present around injuries Nos.1, 3, 5, 6 and 7 and same was case of injuries suffered by injured P. Ws. And as such injuries could not be result of firing from a long distance as alleged by the prosecution. To support this point much emphasis has been placed upon the site plan Exh.P.B.
And evidence of Patwari according to which the deceased was shot at from the distance of thirty Karams;
(v) That the prosecution story itself shows that the accused had acted in defence of their property and as such Muhammad Nawaz also is entitled to acquittal on this score also.
7. Sahibzada Farooq Ali Khan, Advocate while appearing on behalf of rest of convicts has adopted the arguments advanced by learned counsel for Muhammad Anwar and in addition to said arguments he has contended that Abid injured P.W. Did not appear in the witness-box as such the conviction awarded to Saif Ullah appellant is not sustainable. As far as Allah Wasaya appellant is concerned he has contended that injuries attributed to him being on the foot of Muhammad Amin, injured P.W. Sentence awarded to him is harsh.
8. Mian Bashir Ahmad Bhatti, learned Deputy Prosecutor-General has supported the judgment.
9. We have heard all the learned counsel very carefully and perused the record minutely.
10. The prosecution case is mainly based on ocular testimony furnished by Muhammad Nawaz complainant P.W.9 and Muhammad Amin, injured P.W. And medical evidence furnished by Dr. Muhammad Nasrullah who appeared as P.W.11. F.I.R. In this case was lodged by Muhammad Nawaz very promptly. Both the witnesses are natural witnesses. As the deceased was closely related to the eye-witnesses there was nothing unnatural for the eye-witnesses to be present at the place of occurrence as they had gone for irrigating their land. As such the distance of two squares of the residence of Muhammad Nawaz complainant from the place of occurrence is not of much significance. His testimony was supported by Muhammad Amin, injured P.W. The nature of the fire- arm injuries suffered by Muhammad Amin, injured P.W.10 shows that same cannot be termed as fabricated. Having the stamp on injuries on his body the presence of said injured P.W. Is not open to any doubt. He has fully supported the evidence of the complainant Muhammad Nawaz.
Statements of both eye-witnesses are very consistent and corroborative to each other despite the lengthy and searching cross-examination they did not conceive anything in favour of the appellants. As far as the contention of the learned counsel regarding the contradictions of ocular evidence by the medical evidence is concerned that is also devoid of any force as according to P.W.9 the deceased and the injured P.W. Were from the distance of A5 feet. During cross- examination P.W.10 stated that at the time of occurrence all the accused came to the spot while running as such at the time of attack the appellants were not stationary and possibility of firinig from close distance cannot be ruled out in circumstances of the case. Eye-witnesses being rusty rural persons were not expected to give the exact measurement of the assailants from their target specially when at the time of assault they were under serious threat of being fired by the numerous persons who were armed with weapons like kalaishnikovs. As far as the site plan is concerned that is never considered to be substantial piece of evidence and as such no reliance can be placed upon in support of the contention of the learned counsel for Muhammad Nawaz. As far as the number of the injuries is concerned same are nine in prosecution evidence as such medical evidence is fully corroborated the ocular version.
11. As far as the opinion of the police is concerned same being not binding on the Court is not helpful to the appellants. Similarly the non-recovery of weapons of offence cannot advance the defence case inasmuch as the recovery evidence is always considered as corroborative piece of evidence. In the present case the prosecution case is based upon the evidence of the injured P.W.
As such no corroboration is re.Quired to decide the fate of the case.
12. As far as the contention of the learned counsel for Miuhammad Nawaz appellant that the accused have acted in self-defence is c oncerned same is spurned on the ground that while appearing under sect ion 342, Cr.P.C. The appellant had not advanced such plea. Likewise he did not opt to appear as his own witness under section 340(2), Cr.P.C. And even , otherwise under the Article 121 of Qanun-e-Shahadat Order, 11984 the burden of proving the existence of circumstances bringing the case within any of general exceptions in the P.P.C. Lies on the shoulders of the accused but in the present case no attempt was made to discharge said burden. The accused party had launched an attack on armless persons after arming themselves with lethal and sophisticated weapons hence, they cannot validly claim benefit of section 103, P.P.C. However, we have observed that there was no previous enmity between the parties and the occurrence had started at spur of moment due to the conduct of the complainant party by way of diverting the irrigating water towards their own land which became the immediate cause of occurrence. For the same reasons the learned trial Court had treated the case as that of individual liability. Keeping said circumstances as the mitigating circumstance we are persuaded to convert the death penalty awarded to Muhammad Nawaz the appellant with that of imprisonment for life.
13. As far as Allah Wasaya appellant is concerned he has already been leniently considered by the learned trial Court by awarding sentence of ten years' R.I. Though he was found guilty of attempt to murder of Muhammad Amin injured P.W. As such impugned qua him does not demand any interference.
14. As far as Saifullah appellant is concerned we are in full agreement with the contention advanced by his counsel as according to the learned trial Court it was a case of individual liability but the prosecution had failed to prove its case against Saifullah appellant inasmuch as Abid injured P.W. Who was allegedly fired upon by Saifullah appellant was not pushed to the witness- box as such he is given benefit of doubt and acquitted of the charge. He be released immediately from jail if not required in any other case.
15. Case being of individual liability Criminal Revision No,231 of 2002 is dismissed.
16. The nutshell of the above discussion is that appeal of Saifullah appellant as mentioned above is accepted while the appeal to the extent of Muhammad Nawaz is dismissed with modification of sentence from death to mgorous imprisonment for life with benefit of section 382-B, Cr.P.C.
However, he would pay the compensation in terms of the order passed by the learned trial Court and in default of said payment he would suffer sinple imprisonment for six months as ordered by the learned trial Court. Appeal to the extent of Allah Wasaya is dismissed. Death sentence awarded to Muhammad Nawaz is not confirmed. Murder Reference is answered in the negative.