' MUHAMMAD FARRUKH MAHMUD, J.-This judgment will dispose of Criminal Appeal No, 1324 of 2001 filed by Muhammad Ashraf and Shams ul Haq, who along with Haq Nawaz, Jugday and Muhammad Aslam faced trial in case F.I.R. No,601, registered at Police Station, Bhawana, District Jhang, on 30-12-1999, for offences under sections 302/148/149, -P.P.C., before the learned Additional Sessions Judge, Jhang, who vide his judgment dated 18-7-2001 while acquitting the rest of the accused convicted and sentenced the appellants as under:- Muhammad Ashraf Death with fine of Rs,20,000 or in default one year S.I, under section 302(b), P.P.C. + compensation of Rs, 1,00,000 to be paid to the legal heirs of the deceased or in default one year S.I.
Shams ul Haq Life with fine of Rs,20,000 or in default one year S.I. + compensation of Rs,50,000 to be paid to the legal heirs of the deceased or in default one year S.I.
Murder Reference No,601 of 2001 for confirmation or otherwise of death sentence of Muhammad Ashraf, appellant and Criminal Appeal No, 1381 of 2001 filed by Nausher Khan against acquittal of Haq Nawaz, Jugday and Muhammad Aslam shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated by Nausher Khan/complainant through complaint Exh.P.G. Are that on 29-12-1999 Muhammad Yousaf and Sultan Ahmad came to see Alam Sher real brother of the complainant. After taking their meals at night the complainant along with his brother Alam Sher, guests Muhammad Yousaf and Sultan Ahmad went to sleep in the eastern room of the Girls Primary School adjacent to the house of the complainant. The said school stood closed for a ponsiderable time. At about 3-00 a.m, brother of the complainant Alam Sher went out side the room to ease himself. A sudden alarm raised by him attracted the attention of the P.Ws. Who went out and in the light of the bulb installed there they saw Muhammad Ashraf armed with .12-bore gun, Shams ul Haq armed with a rifle, Jugday armed with .12-bore gun, Haq Nawaz and Muhammad Aslam empty handed (all residents of village), present there. Haq Nawaz raised Lalkara that Alam Sher be taught a lesson for the illicit relations with Mst. Kausar. Thereafter Shams ul Haq caught hold of Alam Sher whereas Muhammad Ashraf accused fired a gun shot at him, which hit Alam Sher underneath the right ear and on his neck; as a result thereof Alam Sher fell down on the ground. The P.Ws. Rushed towards Alam Sher to rescue him when Jugde pointed his gun towards them and Muhammad Aslam threatened that if any of the P.Ws. Intervened he would also be done to death. The accused fled away from the spot after hurling abuses. Alam Sher succumbed to the injuries at the spot.
3. After registration of formal F.I.R., the investigation of the case was taken over by Javid Iqbal, S.- I./P.W.14. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.B. And inquest report Exh.P.C. He took into possession blood-stained earth from the spot vide memo. Exh.P.J. On 3-2-2000 Tallat Mehmood, S.-I./S.H.O./ P.W. 13 arrested Shams ul Haq, Muhammad Ashraf and Haq Nawaz. While in custody, Muhammad Ashraf led to the recovery Oof gun P.4 from his residential house, which was taken into possession vide memo. Exh.P.F. During investigation he found Jugday and Muhammad Aslam innocent. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 14 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.M. Closed its case. Muhammad Ashraf in his statement recorded under section 342, Cr.P.C. In answer to Question No,9 stated that "On the fateful night I was irrigating my fields. At about midnight when I was coming back to my home, I was also having my gun with me while passing nearby the Girls School, I heard whispering and I went ahead and saw my niece Mst.
Kausar with Alam Sher (deceased) in compromising position. I lost my self control and under grave and sudden provocation and extreme 'Ghairat' I fired at the deceased while my niece made her good escape due to darkness. None else was present with him. I have committed no offence". On the other hand, Shams ul Haq pleaded his innocence. Both the accused did not appear as witness under section 340(2), Cr.P.C. In their defence. However, Muhammad Ashraf produced Mrs. Rubbab Bukhari, School Teacher as D.W.l. After conclusion of trial the appellants Were convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that the witnesses were not only related but also chance witnesses; that the defence plea taken by Muhammad Ashraf, appellant is plausible and is borne out from the circumstances of the case; that the defence plea is further supported by the motive as set down by the prosecution itself; and that the prosecution with ltiala fide intention has tried to rope adult family members of Muhammad Ashraf, appellant.
6. The learned counsel appearing on behalf of the complainant submits that F.I.R. Was lodged promptly, hence there was no chance to fabricate the story; that both the P.Ws. Had no previous enmity with the accused, so as to involve them in a false case; that Muhammad Ashraf has admitted the occurrence but he has wilfully told lie by stating that the other accused were not present at the spot; that the defence plea is neither supported by the circumstances of the case nor by any evidence; that Mst. Kausar did not receive any scratch during occurrence; that the prosecution has successfully proved the motive; that the appellants along with other accused murdered Alam Sher merely on suspicion of illicit relationship between Mst. Kausar daughter of Haq Nawaz, accused and the deceased; that since all the accused shared common intention, Haq Nawaz, Jugday and Muhammad Aslam were wrongly acquitted; and that it was not a case of lesser punishment.
7. The learned counsel appearing on behalf of the State have adopted the line of arguments advanced by the learned counsel for the complainant. However, they support the judgment.
8. We have heard the learned counsel for the parties at length and gone through the record. The occurrence took place at 3-00 a.m. During night on 29-12-1.999 in the courtyard of Government Girls Primary School, Boharwala. Nousher Khan, complainant/P.W.9 (brother of the deceased) and Sultan Ahmad, P.W.10, who was also related to the deceased, are chance witnesses, who claim that they were sleeping in a room of school on the fateful night. Sultan Ahmad, P.W., who according to complainant lived at a distance of 4/5 Km but according to Sultan Ahmad himself he lived at a distance of 4/5 Miles from the place of occurrence, had gone to visit the house of Alam Sher, deceased for no special purpose. According to him, he reached the house of the deceased at 5-00 p.m. And then remained with him and other P.Ws. Gossiping in the Haveli of the deceased till 8/9 p.m. And then the deceased and the P.Ws. Went to the room of school and slept there. It is in evidence that the .House of the deceased consisted of four rooms. No reasonable explanation is available on record as to why P.Ws. Did not sleep inside the house and why they opted to sleep in the room of school. It is also not available on record as to why Sultan Ahmad P.W.10, who was a married person and was issueless, did not return to his house to sleep. It is also noteworthy that during cross-examination, firstly, Nausher Khan P.W.9 stated that all the rooms of the school were locked and the keys were with Imam Masjid, who had been teaching in the school one year prior to the occurrence, then he took 180 degree turn and stated that none of the rooms of the school was locked. Both the witnesses have thrown a large net by involving five adults, who are related inter se, in the case. As the deceased received one fire-arm injury, hence, in order to involve Shams ul Haq he was saddled with responsibility of holding the deceased. The allegation levelled against Shams ul Haq is ridiculous. According to P.Ws., Shams ul Haq was armed with rifle and could easily fire at the deceased, who was all alone in the compound of school. There was no necessity to take the risk of holding the deceased while he was being fired upon by Muhammad Ashraf, as the holder could also receive injury. The story of holding the deceased is further belied by medical evidence, as no blackening or burning was seen around the wounds and it could not be said that while Shams ul Haq overpowered the deceased Muhammad Ashraf also went close to the deceased and fired upon him.
9. In the F.I.R. It was mentioned that electric bulb was on. So the first impression would be that the bulb was on in the compound of the school but after knowing that the school was closed since long the witnesses improved their statements subsequently by stating that electric pole was installed in their house on which electric bulb was hanging with a rope. Their dishonest improvement is fully exposed by the site-plan Exh. P.K., which was prepared by the Investigating Officer when he visited the spot on 30-12-1999, wherein no source of light has been shown. In the above noted circumstances, we are of the considered view that it was an unwitnessed occurrence and the P.Ws. Were not present at the time of incident.
10. Now we are left with the defence plea taken by Muhammad Ashraf, appellant. The defence plea is supported by the following circumstances:~
(1) Alam Sher, deceased was unmarried;
(2) Murder of Alam Sher at odd hours of winter night in a deserted place;
(3) Motive set down by the prosecution itself; and
(4) Relationship between Mst. Kausar tniece of Muhammad Ashrat) and deceased was suspected.
11. For what has been discussed above, we allow this appeal, set aside the impugned judgment to the extent of Shams ul Haq and acquit him of all the charges. He is on bail, his bail bonds are cancelled and the sureties are discharged.
12. As far as Muhammad Ashraf, appellant is concerned we alter his conviction from offence under section 302(b), P.P.C. To section 302(c), P.P.C. He is in Jail since 3-2-2000. His sentence is reduced to the period already served out by him. However, we would refrain from awarding compensation because the deceased was mainly responsible for this tragedy. Reliance is placed on the case of Mairaj. Begum v. Ejaz Anwar and others PLD 1982 SC 294. He would be released from Jail forthwith, if not required in any other case.
13. Resultantly, murder reference is answered in the negative. The death sentence is not confirmed.
14. For the same reasons Criminal Appeal No, 1381 of 2001 filed by Nausher Khan, complainant against Haq Nawaz, Jugday and Muhammad Aslam is dismissed being devoid of any merit.