' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction, IThimber dated 31-12-2004 whereby Khadim Hussain appellant was convicted and sentenced life imprisonment under section 302, A.P.C. Seven years' imprisonment under section 324, A.P.C. And one year's simple imprisonment under section 13/20/65, A.A. While Nasreen Bibi was also convicted and awarded 10 years' simple imprisonment under sections 302/109, A.P.C. And 5 years' imprisonment under sections 324/109, A.P.C.
2. Brief facts leading to the background of the appeals are that a case under sections 302/324, 34, A.P.C. Was registered at Police Station Barnala on the complaint of Liaquat Ali. It was reported that on 8-5-2004 at 8-15 p.m., Imran, Nazir Ahmad and the complainant were sitting in the house of Inayat Ali. In the meantime they saw his dog crying and coming from the side bf the'house of Khadim Hussain. Upon this Inayat Ali went out and asked Khadim Hussain as to why he gave beating to his dog. It was alleged that Khadim Hussain and Mst. Nasreen Bibi started abusing him.
Nasreen Bibi lit a torch and focused at Inayat Ali while Khadim Hussain opened fire with .12 bore gun. The fires hit him and he fell down. Imran, Nazir, Shaukat Ali and the complainant came at the place of occurrence. They saw Nasreen Bibi with a torch in her hand, focused on Inayat Ali while Khadim Hussain was firing at him. The witnesses tried to stop him but he fired at Shaukat Ali on the instigation of Nasreen Bibi, who hides himself behind a wall. While on way to hospital the victim succumbed to the injuries. Motive behind the occurrence was that Khadim Hussain and Nasreen Bibi attributed allegation of Zina to Muhammad Afzal nephew of the complainant with their daughter who was in judicial lock-up Bhimber. Inayat Ali made a statement in favour of his nephew in the case. This annoyed Khadim Hussain and he committed the offence.
3. During investigation section 13/20/65, A.A. Was added and the challan for commission of alleged offences was submitted before the trial Court. After completion of the trial, the Court convicted Khadim Hussain and sentenced him the life imprisonment under section 302, A.P.C., seven years' imprisonment under section 324, A.P.C. And one year simple imprisonment under section 13/20/65, A..A. While Nasreen Bibi was awarded 10 years' simple imprisonment under sections 302/109, A.P.C.
And 5 years' imprisonment under sections 324/109, A.P.C. Appeal No,4 of 2005 has been filed against the order of conviction recorded by the trial Court while the other Appeal No,12 of 2005 stands registered on behalf of the complainant and another for enhancement of the-sentence.
4. Since both appeals arise out of same case, therefore, these shall be disposed of through this common judgment.
5. Learned counsel for the convict-appellants argued that an enmity was prevailing between the parties. All the prosecution witnesses were closely related to the deceased. They concocted a false story to rope the appellants and suppressed the true accounts. In fact the complainant party was aggressor. Muhammad Afzal nephew of the deceased committed Zina with daughter of the convict appellants. He was in a judicial lock-up and the complainant party was forcing the appellants for compromise. Because of refusal of the parents they attacked at their house and opened fire'. However, due to dark hour they could not target \ him and the fires hit the deceased.
He further argued that the story regarding beating the dog was improbable and was concocted to justify the presence of Khadim Hussain, Nasreen Bibi and Inayat Ali at the place of occurrence.
Learned counsel contended that the recoveries of weapon, of offence and torch were highly doubtful. No independent corroborative material in support of the ocular version was brought on record. The deposition of interested witnesses was not worth consideration, therefore, by accepting the appeal the impugned judgment may be set aside and the convict appellants be acquitted of the charge.
6. On the other hand it was argued that prosecution successfully proved its case against the convict appellants. In light of the evidence it stands established that Khadim Hussain fired six shots with .12 bore gun at. Lnayat Ali. The fires hit him and he succumbed to the injuries. The occurrence was witnessed by Liaquat Ali, Shaukat Ali, Imran, Ghaffar and Nazir Ahmad. Three of them were examined in support of the case. The role played by each of the accused person was described by them. The recovery of blood-stained clay from the place of occurrence and weapon of offence at the instance of Khadim Hussain appellant lends support to the ocular version. According to the learned counsel strong corroborative material in shape of post-mortem report and Forensic Science Expert's report was also present on record. He submitted that the presence of convict appellant and the deceased at the place of occurrence was not disputed. Motive was proved. The origin of fight and manner of occurrence were also established. No mitigating circumstances in favour of the convicts were available on record and there' was no justification for lesser punishment, therefore, by accepting the appeal, Khadim Hussain convict may be awarded sentence of Qisas and imprisonment awarded to Nasreen Bibi also be enhanced.
7. Learned Assistant Advocate-General supported the arguments advanced by the learned counsel for the complainant.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution story as it appears from the statements of eyewitnesses, that on 8-5-2004 at 8- 15 p.m., they were sitting in the house of Inayat Ali. In the meantime his dog who was crying came there from the side of the house of Khadim Hussain. Upon this Inayat Ali went out and asked Khadim Hussain as to why he gave beating to his dog. Khadim Hussain and Mst. Nasreen Bibi started abusing him. Nasreen Bibi lit a torch and focused at Inayat All while Khadim Hussain started firing at him with .12 bore gun. On hearing the sound of fires they came at the place of occurrence.
Khadim Hussain was still firing. They tried to stop him but on the instigation of Nasreen Bibi he also fired at Shaukat Ali who hides himself behind a wall. The deceased succumbed to the injuries while on his way to hospital. It further appears that prior to the occurrence the convict appellants made allegation of Zina against Muhammad Afzal nephew of the deceased with their daughter.
' Muhammad Afzal.Was in a judicial lock-up. Inayat Ali deposed in favour of his nephew and was also trying for his bail. This annoyed Khadim Hussain and he committed the offence.
10. From perusal of the record it transpires that F.I.R. Exh.P.B. , was a genuine document. The names of the accused appellants and eyewitnesses were specifically given there. The place of occurrence and weapon used for commission of offence were clearly mentioned. It was promptly lodged thus, can be used to corroborate the version given by the complainant and the prosecution witnesses.
The eye-witnesses successfully faced the test of cross-examination. There was no inherent infirmity in their statements. The evidence given by them was in consonance with the probabilities and material fits in with other evidence more particularly with the medical evidence and the circumstances of the case. The number of injuries found at the person of deceased commensurates with the number of fires made by Khadim Hussain accused appellant and their statements did not suffer from material discrepancies or even contradictions.
11. The recovery of crime-empties and weapon of offence was established. The use of weapon for commission of the offence was corroborated by post-mortem report Exh.P.P./1 and Forensic Science Expert's report Exh.P.P. In my view it stands established that the eyewitnesses were present in the house of Inayat Ali. They were attracted to the spot on hearing the sound of fires and as such did not see the origin of attack and only witnessed the appellant firing and causing injuries to the deceased.
12. Motive as alleged by the prosecution was that prior to the occurrence Muhammad Afzal nephew of the deceased raped the daughter of the appellants. He was in judicial lock-up Bhimber for commission of the alleged offence. The deceased deposed in favour of Muhammad Afzal in the case and was also trying for his release on bail. This annoyed Khadim Hussain. The claim of the prosecution that the dog of the deceased was beaten by Khadim Hussain upon which the victim went out did not ring true, however, it stands established that at the time of occurrence the deceased was present at the place of occurrence and he was attacked upon by Khadim Hussain due to the rape case of his daughter.
13. It may be mentioned here that the allegations such as common intention, instigation and conspiracy must be proved beyond any doubt to rule out the possibility of false implication. Mere presence of co-accused is not sufficient to hold that he or she shared intention with the principal offender. In the present case Nasreen Bibi appellant was ascribed the role of lighting torch to facilitate Khadim Hussain and instigate him to fire at Shaukat 'Ali who was cited as witness by the prosecution but was given up during trial. Non-production of the witness creates a doubt about the allegation of fire at him by Khadim Hussain appellant on the instigation of Nasreen Bibi. In view of the close relations between the prosecution witnesses and the deceased the possibility cannot be ruled out that she might had been roped in the case by the complainant and the witnesses on account of prevailing enmity. The trial Court failed to appreciate that material on record was not sufficient to convict her, therefore, she is acquitted of (the charges.
14. This brings me to the question of sentence awarded to Khadim Hussain by the trial Court in my view there were mitigating circumstances in favour of the appellant for lesser penalty inasmuch as B the eye-witnesses were present in the house of the deceased and were attracted to the spot on hearing the sound of fires as such did not see the origin of attack and only saw the appellant firing and causing injuries to the deceased. It also cannot be ruled out that the allegation of rape against Muhammad Afzal nephew of the deceased might have provoked him, therefore, the capital punishment was not warranted in the, situation and he has rightly been awarded life imprisonment by the Court below for the offence under section 302, A.P.C. However, the allegation of, firing at Shaukat Ali against the appellant was not proved during trial, therefore, his conviction under section 324, A.P.C. Was not justified thus, the same stands set aside.
15. The upshot of the above discussion is that the appeal filed by the appellants is partly accepted and that of complainant and another is dismissed. Resultantly Nasreen Bibi is acquitted of the charge. The appeal filed by Khadim Hussain convict to the extent for commission of the offences under sections 302, A.P.C. And 13/20/65, A.A. Is dismissed. The sentences of life imprisonment and one year's S.I. Awarded to him by the Court below are maintained. The benefit of section 382-B, Cr.P.C. Is also extended to him.