This appeal is directed against the judgment dated 28.2.2005 passed by the learned Additional Sessions Judge, Pakpattan Sherif, whereby, after having tried the appellants, they were convicted under Section 302(b) PPC and sentenced to imprisonment for life each with a further direction to pay an amount of Rs, 2,00,000/- as compensation/fine each to the legal heirs of the deceased in default whereof to further undergo SI for six months each. Both the appellants were further convicted under Section 337-L(2)/34 PPC and sentenced to two years FIR each, appellant Maqsood was further sentenced to pay a fine of Rs, 20,000/- to be paid by injured Sabir Ali, both the sentences were directed to run concurrently while benefit of Section 382-B, Cr.P.C. was extended.to the appellants.
2. Brief facts of the case, as given by the complainant/accused (Ghulam Ali) in the FIR, are that on 6.6.2003 at about 9.00 a.m. He was constructing the grave/mazar of his father Wali Muhammad when all of a sudden appellant Maqsood armed with a .12 bore double barrel gun alongwith Manzoor and appellant Hameed came there, Is/Ianzoor raised a Lalkara upon which appellant Maqsood fired a shot which hit on the right thigh of the deceased while on pallet hit injured Sabir on the right thigh and the other on the right flank, Hameed raised a Lalkara to hit the deceased as he was alive, the witnesses were attracted to the spot and both the injured were shifted to the DHQ Hospital and later on Ghulam Ali died as a result of the said injury. The motive statedly was that a grudge existed between the parties for committing excess with the daughter of the deceased as he had insulted the accused in the Punchayat which grudge resulted into the above loss.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution., in order to prove its case against .the accused, produced 12 witnesses during the trial.
4. Learned counsel for the appellants in support of this appeal submits that there is a conflict between the ocular account and the medical evidence because according to the doctor fire was made from a distance of one feet while according to the PWs it was 6/7 feet; that the deceased died as a result of septic in the injury; that the sealed parcels were sent to the. Chemical Examiner and Forensic Laboratory after a delay of two months eight days; that the report of the Forensic Science Laboratory is negative so recovery of gun is no avail; that the eyewitnesses made dishonest improvements in their statements; that no blood-stained earth was taken qua injured Sabir; that the Bench was neither recovered nor produced before the police; that Sabir is resident of another place so his presence at the spot is doubtful; that there is no evidence of alleged abduction of daughter of Ghulam All deceased by Maqsood appellant; that only a single shot was fired and deceased died after 40 days due to septic in the -injury and to the least the offence,. if any, fails within the Section 324 PPC and not 302(b) PPC; that Exh. PP i,e, statement of Ghulam Ali deceased cannot be treated as a dying declaration and cannot be used against the appellants; that all the three eye-witnesses of the occurrence are interested witnesses i,e, PW5 Ghulam Farid is real brother of the deceased, Allah Ditta PW7 is nephews while injured Sabir was their servant; that recovery of double barrel gun is of no avail to the prosecution which recovery was witnessed by two police constables which is, a violation of Section 103 Cr.P.C. although the place of recovery was a thickly populated area; that the appellant Hameed is attributed only a Lalkara and is not connected with the alleged commission of the offence; that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court.
5. On the other hand, Ch. Jamshed Hussain, Deputy Prosecutor General Punjab assisted by learned counsel for the complainant submits that it is a broad-day-light occurrence, FIR was promptly lodged, appellants were named in the FIR with specific roles which was further supported by injured PW Sabir, recovery of weapon of offence was affected from Maqsood appellant, fatal injury is attributed to Maqsood appellant which led to the death of the deceased, ocular account in this case is corroborated by the medical evidence, the motive was admitted by the appellants; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that this appeal is liable to be dismissed. Learned counsel for the complainant adds that it was a case of capital punishment so far as Maqsood appellant is concerned as his act of killing the deceased is a callous and desperate one.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given, anxious consideration to the submission made at the bar by the learned counsel for the parties.
7. Occurrence in this case had taken place at 9.00 a.m., matter was reported by Ghulam Ali (deceased) himself in the injured condition at 12.30 (noon) while FIR was recorded at 12.45 (noon) in the hospital and distance from the police station and the place of occurrence is 13 kilometers.
8. There were three accused in this case, namely both the appellants Maqsood (-4? Soodi and Hameed who have been convicted and sentenced while Manzoor, father of Maqsood appellant, was acquited by the learned trial Court.
9. Deceased in this case is .Ghulani Ali while Sabir is injured. PW5 Ghulam Farid is real brother of the deceased while Allah Ditta PW7 is nephews of the deceased.
10. PW1 Dr. Muhammad Alcorn firstly conducted medical examination on the persons of both the injured and found following injured: SABIR ALI:
1. A fire-arm lacerated wound 1 cm x 0.75 cm x going deep on the outer aspect of right chest 12 cm below and outer side of right nipple. Edges of the wounds were inverted. Corresponding holes present on Qameez.
2. 2.A fire-arm lacerated wound-.1 cm x 0.75 cm going deep on the outer aspect of right thigh in its upper half. Edges of the wound were inverted. Corresponding holes present on the Shalwar.
GRULAM ALI INJURELVDEClEASED:
1. A lacerated fire-arm wound 7 cm x 4cm going deep on the -anterior aspect of right thigh, 8 cm above the right knee joint. Edges of the wound were inverted and burnt. Corresponding hole present on Dhoti.
2. A lacerated fire-arm wound 13 cm x 7cm going deep in lateral aspect of right thigh, 5 cm above the right knee joint. Edges of the wound were inverted and burnt.
Corresponding hole present on Dhoti.
He also conducted post-mortem examination on the dead body of the deceased Ghulam Ali on 11.7.2003 at 11.30 a.m. Appellant Maqsood was, arrested in this case on 25.6.2003 and got recovered a double barrel .12 bore gun on 29.6.2003 while crime empty was taken into possession on 20.9.2003, report of the Fire-arm ExperL is Exh. PN according to which due to multiple hits on the crime empty comparison could not be made on the gun coupled with the opinion that it was in the working, order.
11. In the instant case, there are two very important witnesses, namely Ghulam Ali injured (now deceased) who himself got recorded the FIR. Then there is an injured witness of the case, namely, Sabir who appeared as PW6 and fully supported the prosecution case. Being injured, he is a star witness of the case, whose testimony cannot be doubted.
12.Ocular account in this case is corroborated by the medical evidence. Ghulam Ali received one fire-arm injury on his right thigh. According to PW1 Dr. Muhammad Akram, as per Injury No, 1, a lacerated fire-arm wound 7 cm x 4cm x going deep on the anterior aspect of right thigh, 8 cm above the right knee joint, edges of the wound were inverted and burnt while corresponding hole was present on Dhoti. According to Injury No, 2, a lacerated fire-arm wound 13 cm x 7cm x going deep in later aspect of right thigh, 5 cm above the right knee joint, edges of the wound were everted and burnt while corresponding hole was present on his Dhoti. Sabir Ali received two injuries i,e, on the chest and the other on his right thigh. While appearing before the learned trial Court, he has fully supported the prosecution case.
13.It has been argued before this Court that these are inter related and interested witnesses which argument has no force because there is no background of enmity between both the parties and mere relationship of witnesses with each other is no reason to discard their testimony.
14.Much stress was laid by the learned counsel for the appellants that according to the doctor the fire was made from a distance of one feet while according to the eye-witnesses the said distance was 6/7 feet. This argument is of no avail to the defence because one should know the length of the barrel of the gun and its other wooden part, so, when the gun is pointed towards an injured/deceased at least 4/5 feet we will have to minus from that distance, so, there is no conflict between the ocular account and the medical evidence.
15.After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellant Maqsood @ Soodhi beyond any shadow of doubt to sustain conviction, therefore, for afore- referred reasons find no merit in this appeal to his extent which is accordingly dismissed after having maintained the conviction and sentence awarded toto the said appellant by the learned trial Court in to with the only modification that the amount of Rs, 2,00,000/- (Rupees two lac only) shall be read as compensation (not fine) and shall be paid to the legal heirs of the deceased under Section 544-A Cr.P.C. in default six months.
16.So far as case of appellant Hameed is concerned, he is attributed only a Lallakra, his sentence was suspended by this Court, his absence led to issuance of his non-bailable warrants of arrest, he has been produced before this Court in handcuffs, this appeal to his extent is allowed, the impugned judgment to his extent is set-aside, he is acquitted from the case, his handcuffs shall be removed and he is discharged from his bail/surety bonds.