' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeal and the reference arise out of the judgment dated 20-12-2004 passed by District Court of Criminal Jurisdiction, Bhimber whereby the appellant was convicted under section 13/20/65, A.A. And was awarded one year rigorous imprisonment and also convicted him but had a difference of opinion on quantum of sentence in the offence under section 302, A.P.C. The Sessions Judge proposed life imprisonment while District Qazi the other member proposed sentence of "Qisas".
2. Brief facts leading to the background of the appeal and the reference are that a case under section 302, A.P.C. Was registered against'the convict-appellant at Police Station Bhimber on the complaint of Muhammad Yousuf. It was reported that complainant was a resident of Upperly Las situated in Barhing. One year prior to the occurrence Muhammad Younis and Muhammad Tariq had a quarrel. The accused had been following him to take revenge. On 15-4-2003 at 24-00 hours the complainant asked his son Muhammad Younis to call his uncle Muhammad Khan as he had to discuss some important matter with him..
' While on his way back when he reached in his street Muhammad Tariq accused who was waylaying, fired at him with .7 mm gun. The fire hit him at his abdomen and he fell down.
Muhammad Tariq ran away after committing the offence. The victim was taken to hospital by the complainant, Muhammad Khan and co-villagers where he succumbed to the injury. The occurrence was stated to be witnessed by Muhammad Khan, Rehmat Khan and the complainant.
3. After completion of the investigation challan was submitted before the trial Court against Muhammad Tariq. The charge was framed on 22-5-2003. The accused pleaded not guilty and the prosecution was ordered to lead evidence in support of its case. Thirteen out of fourteen witnesses cited in the challan were examined by the prosecution. After considering the material on record, the Court arrived at the conclusion that the prosecution succeeded in proving its case against Muhammad Tariq. He was convicted under section 13/20/65 A.A. And was sentenced with one year's R.I. However, learned members of the trial Court had a difference of opinion in respect of sentence for the offence under section 302, A.P.C. The 'learned District Qazi, member of the Court convicted and sentenced him to Qisas while the other member learned Sessions Judge sentenced him to life imprisonment. Hence the above titled appeal and the Reference.
4. Since the -reference and the appeal arise out of same case, therefore, these shall be disposed of through this common judgment.
5. Learned counsel for the convict-appellant argued that the accused was involved in a false case on account of enmity. All the prosecution witnesses were closely related to the deceased. They concocted a story to rope the appellant in a false case. The occurrence was not witnessed by anybody. The only independent witness Rehmat Khan was given up during trial. The prosecution failed to prove the alleged motive. Recovery of weapon of offence was also highly doubtful and the report submitted by the Forensic Science Expert about the weapon of offence, crime-empty and led bullet negates the claim of the prosecution. According to the learned counsel the accused also sustained injuries during the occurrence. Explanation given by the prosecution regarding the injuries was not satisfactory. He submitted that in fact the accused was attacked by the complainant party while he along with his wife and daughter was present in the house of Rehmat Khan. Muhammad Khan was armed with .30 bore pistol who fired at the appellant which hit Muhammad Younis and he died. According to the learned counsel plea taken by the defence gets support from the prosecution evidence. Mst. Shamim Akhtar wife of the convict-appellant also moved an application before Superintendent Police Bhimber about the same occurrence but due to the influence of the complainant party it was not properly attended by the police. He further submitted that the trial Court failed to appreciate that there was nothing on record to prove that the accused was armed with alleged fire-arm weapon at the time of occurrence. As per statement of the P.W. Doctor the fire was made from a maximum distance of three feet which was against the claim of eye-witnesses who deposed to have been fired at the deceased from a distance of 21 feet.
No independent corroborative material to the ocular version was brought on record. The prosecution story being highly doubtful was not worth-consideration, therefore, by accepting the appeal the convict may be acquitted of the charge.
6. On the other hand it was argued that presence of the accused, deceased and prosecution witnesses at the place of occurrence at relevant time was established. In light of the evidence it stands proved that the accused armed with .7 mm gun was lying in wait of the deceased. He was caught red-handed by the co-villagers after commission of the offence. During investigation weapon of offence along with crime-empty was recovered at the instance of accused from his house. Medical report and Forensic Science Expert's report supports the prosecution story.
According to the learned counsel prosecution has given a reasonable explanation about the injuries found at the person of the accused. He further argued that eye-witnesses examined by the prosecution successfully proved that Muhammad Younis died of the injury caused by the convict and a very strong case against him was present on the record. He emphasized that learned Qazi arrived at correct decision and there was no justification for lesser punishment as awarded by the learned Sessions Judge, therefore, the appeal filed by the accused may be dismissed and sentence of Qisas provided under law be awarded to the convict.
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 perused the record of the case.
9. The prosecution story as it appears from the record that one year prior to the occurrence Muhammad Younis and Muhammad Tariq had a quarrel. The accused had been following him to take revenge. On 15-3-2003 at 2400 hours Muhammad Yousuf father of the deceased asked him to call his uncle Muhammad Khan as he had to discuss some important matter with him.
Muhammad Tariq was lying in wait .In the street. As Muhammad Younis and Muhammad Khan reached at the place of occurrence the accused fired at the deceased which hit him at his abdomen. In the meantime complainant, Ahmad Khan, Muhammad Khan, Rehmat Khan and other residents of the locality arrived at the place of occurrence. Muhammad Younis was taken to hospital where he succumbed to the injury. The accused was arrested by the police and the weapon of offence along with crime-empty was recovered at his instance.
10. It may be mentioned here that at the time of his examination under section 342, Cr.P.C. The accused categorically stated that the deceased died of bullet injury which was caused by his uncle Muhammad Khan. He along with his wife and son was present there. They suffered injuries during the occurrence and their clothes were stained with blood. He produced D.Ws. Dr. Atif Anwar and Dr. Jahangir in support of his version. The accused appellant also filed a written statement before the trial Court stating therein that on 16-4-2003 he along with his family came to the house of Rehmat Khan for dinner. They also watched a movie. At about 2400, hours, they came out of the house. Muhammad Khan and Muhammad Younis were standing in the street: They abused and started beating them. Muhammad Younis inflicted a hatchet injury on his head. In the meantime Muhammad Khan took out his pistol and fired two shots at him, hiding himself behind Muhammad Younis, the fires hit the deceased who fell down. According to the statement he was injured and was caught by the complainant party. After the occurrence his wife informed his relatives. They came and took him to Police Station Bhimber where he made a verbal report. In the meantime Muhammad Younis succumbed to the injuries and he was arrested by the police. Later on his wife made a written complaint before S.P. Bhimber.
11. It was to be judged as to which of the above mentioned versions was plausible. The trial Court relied upon the prosecution evidence and convicted the appellant under section 13/20/65, A.A. But had a difference of opinion on the quantum of sentence. Before making any observation on merits of the case. I would like to mention here that Muhammad Yousuf, complainant was father of the deceased. P.Ws. Muhammad Khan, Ahmad Khan and Mian Khan were his real uncles, Rehmat Khan who was given up by the prosecution was a cousin of the deceased while P.W. Muhammad Siddique attester of the recovery memo. Exh.P.D. Was co-villager and a close friend of the complainant party. It may be added here that it is celebrated principle of law that the statements of interested witnesses needs very careful consideration.
12. Alleged motive behind the occurrence was that the deceased and the accused had a quarrel a year prior to the occurrence and the accused had been following the victim to take revenge. It appears from the statements of the witnesses that the issue was resolved through a compromise.
The accused was a resident of village Bunny Las. The complainant party imposed a ban on his entry in village Upperly Las.
' This clearly indicates that due to some reason they had grudge against the accused and were inimical towards him.
13. The prosecution case was that on the night of occurrence Muhammad Yousaf asked his son to call his uncle as he had to discuss some important matter with him. While on way back the deceased and Muhammad Khan when reached at the place of occurrence, Muhammad Tariq who was waylaying, fired which hit the deceased at his abdomen. It is evident from the record that Rehmat Khan invited Muhammad Tariq and his family, where they also watched a movie and on their way back to their village the occurrence took place. The statement of P.W. Asar Hayat, Inspector, C.I.A. Bhimber also lends support to the version. In this situation it is not believable that the accused came at the place of occurrence to commit the offence, therefore, the allegation that the accused was lying in wait to kill the deceased was without any substance.
14. As per statement of P.W. Dr. Mazhar Iqbal the fire was made from a maximum distance of three feet. In his statement he denied the possibility that it was made from 20/22 feet while the eye- witnesses claimed that the distance between the assailant and the victim was 21 feet. It may be mentioned here that in case of fire-arm injury inverted edges and presence of blackening more or less depends upon the velocity of the weapon and in my view not a doctor but only a Fire-arm Expert can determine the distance between assailant and the victim. Even otherwise no such opinion appears in the post-mortem report Exh.P.M.
15. According to the record weapon of offence .7 mm rifle was recovered at the instance of accused through recovery memo. Exh.P.D. A crime-empty was present in it. The articles including led bullet recovered from the dead body were sent to Forensic Science Expert. The report shows that no identification mark was present on the empty and the led bullet to establish that these were fired from the said weapon. It may be stated here that eye-witnesses deposed that accused was caught red-handed by them and the co-villagers after the occurrence. He was beaten by them who suffered injuries. It is hard to believe that after overpowering the accused they set him free and did not snatch the weapon of offence which was later on recovered at his instance, therefore, the recovery was doubtful.
16. The above mentioned facts indicate that the parties were inimical towards each other and the complainant party imposed a ban on the entry of the accused in village Upperly Las. On 15-4-2003 Rehmat invited the accused and his family at a dinner. At about 2400 hours they left the house- and came in the street. Muhammad Khan and Muhammad Younis were present there. Due to fear and threat the accused fired at Muhammad Younis which hit him at his abdomen. The victim was taken to hospital where he succumbed to the injury. However, strong mitigating circumstances in favour of the accused were present on record. The prosecution failed to prove the alleged motive, weapon used for commission of offence was not recovered. The occurrence was not premeditated and there was nothing on the record to prove that the accused was intending to kill the deceased.
Particularly the part of prosecution story regarding waylaid was not proved during trial. Therefore, I am of the opinion that the accused cannot be convicted under subsections (a) or (b) however, his case falls under subsection (c) of section 302, A.P.C. Which provides imprisonment of either description for a term which may extend to 25 years.
17. In light of the facts listed in para.16 the appeal filed against the order of conviction under section 13/20/65 A.A. Is accepted and appellant is acquitted of the charge, however, he stands convicted under section 302, A.P.C. And is sentenced 14 years' imprisonment for commission of offence of murder. Benefit of section 382-B is also extended to him. The reference is answered accordingly.