' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose Criminal Appeal No.1771 of 2002 filed by Noor Karim appellant and Criminal Appeal No.399/J of 2002 filed by Ajmal alias Ajoo appellant, who were convicted and sentenced by learned Additional Sessions Judge, Hafizabad vide his judgment dated 31-8-2002 as under:--- ' Noor Karim appellant.--- Under section 302(b), P.P.C. Imprisonment for life and fine of Rs.100,000 or in default six months' S.I. With the benefit of section 382-B, Cr.P.C.
' Amjal alias Ajoo appellant.-- Under Section 302(c) read with section 308, P.P.C. 14 years R.I. With a fine of Rs.50,000 or in default six months. S.I. With the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as narrated by Muhammad Ismail complainant are that on 9-11-2000 at about 4-30 p.m. He along with his 'son Muhammad Razzaq and one Allah Ditta were going to Kot Hassan Khan on a Tractor Trolley, loaded with paddy crop. Muhammad Razzaq was driving the said tractor trolley while Ismail complainant and Allah Ditta P.W. Were boarded on the trolley and when they reached near the house of Noor Karim there was ambushed, Noor Karim armed with .12 bore gun, Taj Din armed with .12 bore gun, Jamal Din armed with rifle .7 MM and Ajmal alias Ajoo armed with .12 bore gun, who suddently appeared and Jamal Din made a Lalkara that Muhammad Razzaq was not to be spared and revenge of the murder of Riasat Ali, brother of Jamal Din would be taken from him. At the said Lalkara, Taj Din made a fire with his :12 bore gun, at Muhammad Razzaq which hit Muhammad Razzaq at the back of his left hand. Then Noor Karim made a fire hitting Muhammad Razzaq at the left side of his neck. After receiving the said injuries Muhammad Razzaq fell down from the tractor and then Noor Karim made a fire with his .12 bore gun at Muhammad Razzaq when he was lying on the ground which hit Muhammad Razzaq at the left side of the front of his chest. Ismail and Allah Ditta stepped forward to save the life of Muhammad Razzaq but Jamal Din by making aerial firing, threatened that if any one came near he would also face similar consequences. Muhammad Razzaq died at the spot. Motive behind the occurrence was that Muhammad Razzaq deceased was involved in the murder of Riasat Ali brother of Noor Karim etc. Accused; 3: After registration of the formal F.I.R. Rafi Ullah S.-I. P.W.9 reached at the place of occurrence, inspected the-dead body of Muhammad Razzaq deceased, prepared inquest report Exh.PG and injury statement Exh.PH, then took into possession blood-stained earth from the spot vide memo.
Exh.PA, prepared site-plan Exh.PK, recorded the statements of the P.W. Under section 161, Cr.P C. On 24-11-2000 he arrested accused Ajmal alias Ajoo, Noor Karim and Taj Din and on 6-12-2000 he got recovered gun .12 bore gun on the pointation of Ajmal alias Ajoo which was taken into possession vide memo. Exh.PC. After completion of the remaining investigation, the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced nine witnesses in all, thereafter, learned ADA tendered, in evidence report of Chemical Examiner Exh.PL, report of Serologist Exh.PM, report of Forensic Science Laboratory Exh.PN and closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence.
5. Learned counsel for Noor Karim appellant submits that two co-accused of the appellant, namely, Taj Din and Jamal Din have been acquitted by the learned trial Court on the same evidence. He has read' before me statement of Dr. Captain Khalid Farooq P.W.8, which according to him. Injuries Nos.2 to 5 are, grazing wounds, that in fact it is case of single injury, that no recovery was effected from Noor Karim appellant, that during the course of investigation he was found to be empty handed at the spot and that to his extent ocular account is not corroborated by medical evidence and he is entitled to acquittal.
6. Learned counsel for Ajmal alias Ajoo appellant submits that he has been falsely implicated in this case, that injury is from downward to upward, that fire has been caused from a very close range but according to draftsman it is 10 feet from where fire was made, that in fact it was an un- witnessed occurrence, that recovery of weapon of offence does not support the prosecution case, as no crime empty was recovered from the spot, that motive was not attributed to Ajmal appellant and he is entitled to acquittal.
7. Learned counsel for the complainant submits that there are five injuries on the person of the deceased, that specific injuries are attributed to both the appellants, that recovery has been effected from Ajmal appellant but admits that no recovery was effected from Noor Karim appellant, that Ijaz Ahmad S.-I. D.W.1 was himself produced by the appellants, who had stated that Jamal Din and Taj Din were innocent while the present appellants were guilty in this case. He further submits that fire was shot from a gun and if the length of the gun is taken into consideration, then, the distance between the accused, who fired at the deceased and the deceased will be within the range which create blackening, that learned trial Court has not awarded Diyat amount to Ajmal appellant because it's a mandatory provision under section 308, P.P.C. But has awarded compensation amount to Rs.50,000, which is illegal under the eyes of law.
He lastly submits that prosecution has proved its case against the appellants, beyond any shadow of doubt and their appeals be dismissed.
8. On the other hand. Learned counsel_ for the State supports the submissions made by learned counsel for the complainant and supports the judgment of the learned trial Court.
9. I have hear learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 9-11-2000 at 4-00 p.m. While the matter was reported to the police on the same day at 5-45 p.m., the distance between the place of occurrence and the police station was 5 Kms. Two eyewitnesses, namely, Ismail P.W.5 and Allah Ditta P.W.6 were produced by the prosecution. Four accused, namely, Noor Karim, Taj Din, Jamal Din and Ajmal alias Ajoo were named in the F.I.R, Taj Din accused who was also attributed injury on the back of left hand of the deceased' Muhammad Razzaq was acquitted by the learned trial Court, in fact he 'was present in the school, where he was teacher and he was also found innocent by the police. Jama1 Din, who was attributed only Lalkara, was also acquitted by the learned trial Court. Even no motive was attributed to Taj Din and Jamal Din. It may also be mentioned here, that Noor Karim, Taj Din and Jamal Din are real bothers inter se while Ajmal alias Ajoo is son of Noor Karim. For the just decision of the case, statement of Dr. Captain Khalid Farooq P.W. 8, who has conducted post-mortem examination on the dead body of Muhammad Razzaq deceased on 10-11-2000 at .10-30 a.m., is very necessary. He not only in the cross-examination but in Examination-in-Chief after giving six injuries had stated that "Injuries Nos.2, 3, 4 and 5 were due to grazing along of the metallic foreign body. Injury No.6 was skin deep and a broken piece of pellet was recovered from the skin" During cross-examination, the said doctor also stated "the range of infliction of injuries in respect of injuries Nos:1 to 6 is the same, as well as the weapon is also same."
10. The bare perusal of the above said statement of the doctor would show that in fact there was only one injury on the person of the deceased because the said doctor recovered only broken piece of pellet from the body, of the deceased. I do not agree with the argument of learned counsel for Ajmal alias Ajoo appellant that the blackening and tattooing cannot be caused by a fire short from such a distance for the reasons that 10 feet distance has been given between the assailant and the deceased and the assailant was having gun 3/4 feet length and after having stretched his hand while making a fire, the distance must have decreased, therefore, the existence of blackening and tattooing on the wound is not fatal to the prosecution case. In the instant case, no recovery was effected from Noor Karim appellant. Ijaz Ahmad S.-I. D.W.1 while appearing before the learned trial Court had stated that Noor Karim appellant was empty-handed at the spot, so in fact, it means, it was Ajmal alias Ajoo, who in order to take the revenge of his uncle committed the murder of the deceased, recovery was also effected from him, although no crime empty was recovered from the spot because it was al single fire-shot and unless he fired another shot, then, the possibility of crime empty having been recovered from the spot cannot be ruled out, so while granting the benefit] of doubt to Noor Karim, appellant, I accept his appeal. The conviction and sentence E recorded against him by the learned trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case.
11. As far as, Ajmal alias Ajoo' appellant is concerned, both the eyewitnesses have fully implicated him in this case and moreover, he has been found guilty by the police, recovery of gun has also been effected from him and medical evidence is also against him, therefore, his appeal is dismissed. The conviction and sentence recorded against him by the learned trial Court is maintained. However, I it has been brought to my notice by learned counsel for the complainant that learned Additional Sessions Judge, while convicting Ajmal alias Ajoo appellant under section 308, P.P.C, did not mention in his impugned judgment the awarding of Diyat amount because he has not awarded Diyat amount, which is a mandatory provision, sol in this regard, notice has been issued toll learned counsel for Aimal alias Ajoo appellant, who accepts the same. In this view of the matter, as far as, compensation amounting to Rs.50,000 awarded to Ajmal alias Ajoo appellant is concerned, that's, F set aside but he is directed to pay Diyat amount to the legal heirs of the deceased, which was prevalent on the day of occurrence.