' ABDUL SHAKOOR PARACHA, J.---Ghulam Murtaza son of Rashid Ahmad, impugns the judgment, dated 16-12-1999, passed by Additional Sessions Judge, Sialkot, through which he was found guilty of Qatl-i-Amd of Muhammad Sarwar and for committing murderous assault on Azam Masih and sentenced to death under section 302, P.P.C. With a direction to pay an amount of Rs.50,000 as compensation to the legal heirs of Muhammad Sarwar the deceased, or in default in payment whereof, to undergo R.I. For six months. He was further convicted under section 324, P.P.C. And sentenced to seven years' R.I. With a fine of Rs.1000 for causing injuries to Azam Masih, and in default of payment of fine, to undergo R.I. For six months. He was also directed to pay an amount of Rs.1000 as compensation in the form of Daman to said injured Azam Masih, and in default of payment of compensation he was to remain in prison and suffer simple imprisonment even after the expiry of the substantial sentences until payment. He has challenged his convictions and sentences by filing Criminal Appeal No.1386 of 1999. Nazir Ahmad, Muhammad Anwar and Muhammad Boota, co-accused of the appellant, were found innocent in the complaint case and acquitted, therefore complainant Mukhtar Ahmad, P.W. Has filed P.S.L.A. No.5 of 2000 challenging their acquittal. Murder Reference for confirmation of death sentence of Ghulam Murtaza is also before us. All the matters are being.Disposed of through this judgment.
2. Facts of the case, in brief, are that on the statement of Mukhtar Ahmad, F.I.R. No.493, dated 3-9- 1995 was registered under sections 302/324/34, P.P.C., at Police Station Uggoki, District Sialkot.
During investigation by the police Nazir and Boota were placed in Column No.2, whereas names of Ghulam Murtaza and Muhammad Anwar accused were placed in Column No.3 of the Challan.
Complainant being dissatisfied with the investigation, filed a complaint before the Allaqa Magistrate, who sent the same to the learned Sessions Judge, who further entrusted the same to the Additional. Sessions Judge for trial along with the challan case. The learned trial Court consolidated both the State case as well as complaint case and carried the proceedings in the complaint case.
' In the complaint, complainant Mukhtar Ahmad (P.W.5), stated that a month before the present incident a quarrel took place between his son Muhammad Sarwar (deceased) on one side and Ghulam Murtaza, Muhammad Boota, Muhammad Nazir and Muhammad Anwar on the other side; the respectables of the village brought about a compromise but Ghulam Murtaza etc. Kept the grudge alive in their hearts; on 3-9-1995 at about 6-45 a.m., Muhammad Sarwar (deceased) started from his house towards his cattle-shed (Dera); as soon as he reached near the Haveli of Faqir Hussain son of Ahmad Din Rajput, Nazir Ahmad empty-handed, Ghulam Murtaza (appellant), Muhammad Anwar both armed with .30-bore pistols and Muhammad Boota with Sota emerged from the Haveli of Nazir Ahmad; Nazir Ahmad, who was controlling the whole operation, raised a Lalkara and asked his co-accused to kill Muhammad Sarwar; he pronounced openly that Muhammad Sarwar should not be permitted to go alive; the complainant along with his son Muhammad Latif, Munawar Hussain son of Muhammad Tufail and Azam Masih son of Barkat Masih was attracted to the spot; Ghulam Murtaza (appellant) made a shot with his pistol which hit on the left upper arm of Azam Masih; thereafter he made two fire-shots from his pistol hitting Muhammad Sarwar on the front of his chest and left side of the umbilicus at its lower level; Muhammad Bota gave a Sota-blow on the person of Muhammad Latif causing injury on the finger of his left hand; Muhammad Anwar also kept on firing and extended threats saying that if any-body intervened he would be shot dead; Muhammad Sarwar succumbed to the injuries at the spot.
' Mukhtar Ahmad, complainant went to the Police Station to lodge the report but on his way to the police station he met Muhammad Aslam, S.-I. (P.W.12) at Chowk Naul, where statement Exh.PF of the complainant was recorded, on the basis of which F.I.R. Exh.PF/1 was registered.
3. P.W.10 Dr. Khalid Mehmood, the then Medical Officer, A.I.M. Hospital, Sialkot, on 3-9-1995 conducted the postmortem examination on the dead-body of Muhammad Sarwar and found the following injuries:--
(1) A lacerated wound 1-1/2 x 1-1/2 c.m. x DNP on front of chest at sternum 3 c.m. Above the level of nipple, margins were inverted.
(2) Lacerated wound 1 x 1 c.m .x DNP inverted slightly also margins on left iliac fossa of abdomen 5 c.m. Above and on front of left anterior superior iliac spire with a small portion of omentum coming out from the wound.
(2A) A lacerated wound 1 x 1-1/2 c.m. With everted margins on left buttock.
' In the opinion of the doctor, the death had occurred due to excessive haemorrhage and shock caused by both the injuries which were sufficient to cause death in ordinary course of nature. He proved the spot-mortem report Exh.PJ and the pictorial sketch of injuries Exh. Pill. Injury statement Exh. PK was also proved by the said doctor.
4. On 3-9-1995 this doctor Khalid Mehmood also medically examined Muhammad Latif, P.W.2, and found the following injuries on his person:-
(1) A lacerated wound 1-1/2 x 1/2 c.m. x cutaneous deep on back of left middle finger, distal phalanx.
(2) Abrasion 1-1/2 c.m. On back of left middle finger 1-1/2 c.m. Above to injury No. 1.
5. P. W.
1. Dr. Zahid Waqar, the then Medical Officer, A . I. M . Hospital Sialkot, on 3-9-1995 medically examined Azam Masih and found the following injuries on his person:-
(1) A circular wound 1 x 1 c.m. With inverted margins, was present on lateral aspect of left upper arm , blackening around the wound, was present (wound of entry).
(2) A circular wound 2 c.m in diameter on medial aspect of left upper arm. The margins were everted (wound of exit).
6. The case was investigated by P.W.12. Muhammad Aslam, the then S.-I./Additional S.H.O., Police Station Uggoki. He stated that he after recording the statement (Exh.PF) of the complainant, proceeded to the place of occurrence, where he prepared the inquest report Exh.PM as well as injury statement Exh.PN of Muhammad Sarwar, deceased. Blood-stained earth was secured by him from the place of occurrence vide memo. Exh.P.A. Recovery memo. Was signed by Muhammad Anwar and Faqir Hussain, P.Ws. Tariq Mehmood, Constable produced before him the last-worn blood-stained clothes of the deceased, i.e. Shirt P.1, Shalwar P.2 along with a sealed bottle, which he secured vide memo. Exh.PB., attested by Muhammad Sarwar, Tariq Mehmood, Munawar Hussain and Faqir Hussain, P.Ws., He also got prepared site-plan Exhs.PG and PG/1 of the place of occurrence from the draftsman. On 30-9-1995 Ghulam Murtaza, accused, .While in police custody got recovered .30 bore pistol P.4 from his residential house, which was taken into possession by the Investigating Officer vide recovery memo. Exh.PC. In his investigation he found, Muhammad Boota and Nazir innocent.
7. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court.
Being dissatisfied with the investigation, the complainant filed the private complaint Exh.PE. After recording the preliminary evidence under section 202, Cr.P.C., the accused were summoned. The appellant along with other accused was charged. They pleaded not guilty.
8. To prove the case against the, appellant and other acquitted accused, the prosecution/complainant examined 13 witnesses in all. Statement of Baqir Hussain, Inspector/S.H.O.
Was recorded as C.W.1. Report of the. Chemical examiner was tendered in evidence as Exh. PP.
9. After closure of the prosecution evidence, statement of the appellant as well as other acquitted accused was recorded under section 342, Cr.P.C. The accused stated that they would produced defence evidence and would also appear -as their own witnesses under section 340(2), Cr.P.C. But on 20-11-1999 they stated that they would not produce any defence evidence nor would appear under section 340(2), Cr.P.C.
16. On the application of the accused under section 540, Cr.P.C. Syed Sajid Ali, Medical Officer, District Jail, Silakot, the then Medical Officer, A.I.M. Hospital, Sialkot, appeared as C.W.2, and stated that on 3-9-1995 at 8-25 a.m. He medically examined Ghulam Murtaza son of Bashir Ahmad (the appellant), who was brought by Muhammad Khan (uncle of the injured), and found the following injuries on his person:--
(1) Incised wound 3-1/2 c.m. x 1 c.m. x DNP on left temporary region of head vertical oblique in direction 2 c.m. Above the left pinna. Left eye was also black.
(2) Lacerated wound 2 c.m. x 1/2 c.m. x DNP on left side of occipital region of head.
(3) Incised wound 1 c.m. x 1/2 c.m. x skin deep on front of left forearm upper part.
(4) Incised wound 2 c.m. x 1/4 c.m. x superficial on outer aspect of left upper arm.
(5) Swelling 4 c m. x 1 c.m. On left cheek.
11. After hearing the parties, the learned trial Court convicted the appellant as aforesaid, whereas the remaining four accused, against whom P.S.L.A. No.5/2000 has been filed, were acquitted.
12. The learned counsel for the appellant contends that prior to the main occurrence a quarrel took place between Muhammad Sarwar, deceased, and Ghulam Murtaza accused and both the parties later on exchanged fires on each other, which fact has been suppressed by the complainant-P.W in his statement before the police, in the complaint Exh PE and in his statement before the Court; that during the occurrence Ghulam Murtaza, appellant also received injuries but this fact was also suppressed by the complainant and the other P.Ws. Although the appellant was examine." on the same day and C.W.2 Dr. Syed Sajid Ali proved this fact in his evidence and the medical report Exh.C.W.2/A; the prosecution has miserably failed to prove motive against the appellant and it was in fact a sudden fight in which the complainant party was the aggressor and Ghulam Murtaza appellant fired with his pistol in exercise of the right of self-defence; that Muhammad Latif, P.W.2, allegedly sustained injuries from the hand of Muhammad Boota but according to Exh.PH he was examined by the doctor at 3 p.m. Although the alleged - occurrence took place at 6-45 a.m. This delay has not been explained by Muhammad Latif, P.W., in his statement; the witnesses are close relative of the deceased, whereas Azam Masih was a friend of the deceased hence no reliance could have been placed on the testimony of these interested witnesses and the complainant has failed to prove its case against the appellant beyond any reasonable doubt because no crime empty was recovered from the place of occurrence therefore alleged recoveries of pistol and revolver from Ghulam Muartaza and Muhammad Anwar, respectively are of no help to the prosecution.
13. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant submitted that the case has been fully proved against the appellant as well as other acquitted accused through the testimony of the injured witness Muhammad Latif, P.W.2, and the complainant; though the complainant is father of the deceased, yet Azam Masih was an independent witness; the complainant and other witnesses namely Azam Masih, Muhammad Latif, Munawar Hussain, P.Ws. 1 to 3 had no motive to falsely involve the appellant and his co-accused in the case; motive has been proved on the record because the witnesses were not cross-examined by the defence on this importance issue. However, the learned counsel concedes that he recovery of weapons of offence from the accused was of no consequence; and the medical evidence fully corroborates the ocular testimony.
14. Before we proceed to discuss the motive part of the occurrence ascribed by the complainant in the complaint, we may observe that ocular account consisting of the statement of Azam Masih, P.W.1, Muhammad Latif P.W.2, Munawar Hussain P. W.3 and Mukhtar Ahmad P. W.5 is corroborated by the medical evidence on the record. Presence of Azam Masih, P.W.1 and Muhammad Latif P.W.2 is admitted by the appellant, because it was suggested that these witnesses along with Muhammad Sarwar, deceased, launched an attack at Ghulam Murtaza, appellant, who fired at them in his self-defence. The complainant alleged that the police had joined hands with the accused party and was favouring them, hence he was compelled to file the complaint. The learned counsel for the appellant contends that statements of Muhammad Latif and Azam Masih Exhs. DB and DC were recorded under section 161, Cr.P.C. By the police, wherein they have admitted the version of the appellant. The witnesses stated that the police recorded their statements of their own. We have examined the statements of Muhammad Latif and Azam Masih Exhs.DB and DC. Not only Exh.DC has been signed by Azam Masih, but the said statement was also attested by two witnesses, namely Muhammad Qamar and Mehboob Ali. In this view of the matter, these statements Exhs.DB and DC cannot be considered as statements under section 161, Cr.P.C. The witnesses have also stated that the police recorded their statements on its own, hence benefit of these confrontations cannot be given to the appellant. Azam Masih P.W. Is an independent witness as he is not related to either party. He is a natural witness as he has a shop near the place of occurrence. He has no motive to falsely implicate the appellant and his other co-accused in the case. His presence at the place of occurrence is also admitted by the appellant. He was also injured in the occurrence. Muhammad Latif, P.W.2, is related to the deceased, yet his presence at the spot was not denied by the appellant. He is not interested witness because he has no motive to falsely implicate the appellant. It has been ruled in the case reported as Nazir and another v. The State (PLD 1962 SC 269) that the `interested witness' is that who has motive to falsely implicate the accused. It is also rule of law that mere relationship of the witness with the deceased does not necessarily render a witness account of the occurrence subject to doubt. See case reported as Abdul Rashid v. The State (1997 SCM R .373). Munawar Hussain, P. W. 3 though related to Muhammad Sarwar deceased, but there is nothing on the record to disbelieve him or to reject his testimony on the basis of relationship.
15. Dr. Khalid Mehmood, P.W.10 fully corroborated the statements of the above stated P.Ws. He conducted the postmortem examination on the dead-body of Muhammad Sarwar. The statements of the witnesses are also corroborated by the statement of Dr. Zahid Waqar, P.W.11 who had examined Azam Masih, P. W.1. The learned trial Court has rightly disregarded the recovery of pistol and revolver from the co-accused of the appellant on the ground that these weapons were not sent to the Forensic Science Laboratory because no crime empty was recovered from the place of occurrence.
16. Nazir Ahmad and Muhammad Anwar, acquitted accused, have been ascribed the role of Lalkara and ineffective firing. Muhammad Boota was attributed an injury to have been caused by him to Muhammad Latif, P.W., with Sota, Dr. Khalid Mehmood, P. W.10, has opined that these injuries could be suffered due to fall on some hard substance. The learned Additional Sessions Judge has given reasons for acquitting Nazir Ahmad and Muhammad Anwar because they were attributed Lalkaras and ineffective firing and that it was not possible for Muhammad Boota to cause injuries to Muhammad Latif on the middle finger of the left land with a Sota-blow because 'the other fingers did not receive any injury. The learned trial Court has rightly concluded that Muhammad Latif, P.W.2 received these injuries due to fall on hard substance and not convicted Muhammad Boota.
17. Ghulam Murtaza, appellant-convict, has taken a specific plea of self-defence in his statement under section 342, Cr.P.C. Burden of proving that he had fired on the deceased and the P.Ws. In exercise of right of self-defence was on him under Article 121 of the Qanun-eShahadat Order, 1984.
The appellant in his statement under section 342, Cr.P.C. Has stated that in fact prior to the present occurrence a quarrel had taken place between him and Muhammad Sarwar, deceased, Muhammad Sarwar went home and came with a double barrel gun and dagger along with Azam Masih and Muhammad Latif, P.Ws.1 and 2 Muhammad Sarwar deceased fired two shots with his gun which did nod hit any person and then he attacked Ghulam Murtaza accused with his dagger; hence in self-defence Ghulam Murtaza appellant fired at said Muhammad Sarwar, deceased, and Azam Masih, P.W.I. This defence has not been taken before the police during investigation. No witness from the locality has been produced before the trial Court to prove this plea. The appellant has not given any explanation of his presence with pistol at the site. The story given by the appellant that Muhammad Sarwar, deceased, fired two shots with .12 bore gun but not a single pellet hit Ghulam Murtaza appellant or any other person at the spot is not acceptable. Despite the fact that the deceased was having a double barrel gun with him but he initiated attack with dagger does not stand to reason. Learned counsel for the appellant contends that the plea of self- defence is corroborated by the statement of Dr. Syed Sajid Ali, C.W.2. This doctor C.W.2 found five injuries on the person of the appellant. In cross-examination he stated that possibility of the injuries Nos. 3 and 4 being self-suffered or friendly-hand cannot be ruled out. Injury No.5 could be caused by fist blow. The possibility of injury No.2 due to fall on hard ground cannot be out. On the basis of the above statement of the doctor, the statement of the accused is not corroborated by medical evidence. Moreover, while getting his statement recorded under section 342, Cr.P.C. The appellant has not stated a single word with regard to his medical examination by Dr. Syed Sajid Ali, C.W.2. He firstly made his statement to the effect that he did not want to produce defence evidence nor to appear on oath under section 340(2), Cr.P.C. But thereafter he moved an application under section 540(2), Cr.P.C. And produced Dr. Syed Sajid Ali as C.W.2. On recording the statement of said C.W.2 the appellant did not opt to appear as his own witness under section 340(2), Cr.P.C. To substantiate his version. The learned trial Court has rightly rejected his plea of self-defence.
18. This brings us to discuss the motive part of the case, Motive as narrated in the complaint was that a month before the present incident a quarrel took place between Muhammad Sarwar, deceased son of the complainant on the one hand and Muhammad Boota, Muhammad Nazir, Muhammad Anwar and the appellant on the other. The respectables of the village had brought about a compromise but Ghulam Murtaza, appellant etc. Kept the grievance of the said quarrel alive in their hearts. Neither any F.I.R/report regarding the said occurrence between Muhammad Sarwar, deceased son of the complainant on the one side, and the accused persons on the other side was lodged with the police. The date and time of that occurrence, which took place one month before the present incident, has also not been given in the complaint Exh.PE nor the name of any witness of that occurrence has been mentioned. It has been admitted by the complainant P.W.5 that, "In Exh.PF got so recorded that respectables got the matter settled regarding the incident of motive. They include Doctor Anwar, Munawar, Babu, Allah Rakha etc. Respectables were about 25 persons. None of them from the aforementioned respectables appeared before the police to prove the incident of motive." P. W.1 Azam Masih has suppressed his earlier stand stand which he had taken before the police regarding the fact that there was a quarrel between the parties before the occurrence and they were separated, whereupon Muhammad Sarwar and others went for their houses.
19. The story of quarrel one month prior to the present occurrence between the two parties has been introduced only to create a motive against the appellant. Had there been any intention for murder of the deceased, the appellant would not have waited for one month. According to the prosecution, acquitted accused Muhammad Nazir, was directing the whole operation and he was the first who raised Lalkara and directed his other co-accused to kill Muhammad Sarwar deceased; he pronounced openly that Muhammad Sarwar should not be permitted to go alive.
Said Nazir has been acquitted through a well-reasoned judgment of the trial Court. It is an admitted position on the record that the appellant also sustained injuries and he was medically examined. Under what circumstances the appellant had sustained injuries and what happened before the present incident is shrouded in mystery. It is rule of law that when the motive is shrouded in mystery, the Courts normally award lesser punishment. See case of Nawaz Khan and another v. Ghulam Shabbir and another (1995 SCM R 1007). In this view of the matter, we are of the view that capital punishment of death is not called for.
20. The upshot of the above discussion is that we while maintaining the conviction of the appellant under section 302, P.P.C., alter the sentence of death of imprisonment for life. The remaining sentences are also maintained. He shall, however, be given benefit of section 382-B, Cr.P.C. The appeal is dismissed.
21. We also do not find any reason to interfere with the judgment of acquittal of the co-accused, and accordingly dismiss the P.S.L.A., filed by the complainant against their acquittal.
' Death is not confirmed.