' SYED HUSSAIN MAZHAR KALEEM, J. ---The above titled appeals and reference arise out of the order of the District Court of Criminal Jurisdiction, Sudhnooti (Pallandari) dated 20-12-2004, whereby Muhammad Akram was convicted and awarded death sentence under section 302(B), A.P.C., Rs,80,000 fine under sections 324/337, P.P.C. And Rs,1000 fine under section 13/20/65, A.A.
Muhammad Akram convict has filed the appeal challenging his conviction and sentence while the complainant and heirs of the deceased have also filed appeals for enhancement of the sentence.
There is also a reference for confirmation of the death sentence.
2. Brief facts leading to the background of the appeals and reference are that a case under sections 324/337, A.P.C. Was registered against the convict appellant at Police Station, Trarkhal on the complaint of Hassan Muhammad. It was reported that the complainant constructed a basement in Tangigala Bazar and placed a moveable cabin at its roof. On 7-9-2004 at about 3-00 p.m. He removed the cabin from there and kept it on water drain near mosque to raise construction of first floor on the basement. In the meantime, Muhammad Akram son of Fazal Hussain armed with .30 bore pistol came there and attacked the complainant and his son. He fired three shots. One out of them hit the left thigh of the complainant while the other one hit Muhammad Ishaq at the joint of his left thigh. The occurrence was stated to be witnessed by Muhammad laved, Ameer Muhammad and others present in the bazaar. Motive behind the occurrence was placing the cabin on drain by the complainant.
3. On 18-10-2004 Muhammad Ishaq succumbed to the injury and section 302, A.P.C. Was added.
After completion of investigation, challan was submitted before the trial Court and on conclusion of the trial Muhammad Akram was convicted through the impugned judgment, hence the above titled appeals and the reference.
4. Learned counsel for appellant argued that an enmity due to possession over a piece of land was prevailing between the parties. Mst. Dil Jan widow of Munawar Khan was the owner and the complainant and other prosecution witnesses were pressurizing her to give the land to them but she refused and gifted it to his nephew Muhammad Akram. On account of this the complainant nourished a grudge and later on roped him in the false case. He contended that the occurrence was not preplanned. The complainant party tried to get possession of the said land upon which the incident took place. In fact the deceased and the others were aggressor and the appellant exercised his right of defence of property. He further argued that the complainant nominated his nephew Muhammad Javed and Ameer Muhammad as eye-witnesses in the F.I.R. During investigation he also introduced Muhammad Siddique and Muhammad Anwar as eyewitnesses.
They were close friends of the complainant and were inimical towards the accused. Ameer Muhammad was the only independent witness and he made no allegation of firing at the victims.
He further contended that the prosecution failed to prove alleged motive. Recovery of weapon of offence and crime empties from the place of occurrence was highly doubtful. The prosecution failed to establish the place of occurrence. Site plan Exh.PG was in conflict with the claim of the prosecution regarding distance between the assailant and the victims. Incriminating material such as post-mortem report, site plan and recoveries etc. Was not supporting the ocular version. The origin of fight and manner of occurrence were shrouded in mystery and true account of the occurrence was suppressed by the prosecution witnesses. The learned counsel pointed out that the statement of the eye-witnesses were full of contradictions. The version given by the interested witnesses was not reliable, as it was not supported by any independent corroborative material. The prosecution story being highly doubtful was not worth consideration and sentence awarded to the appellant by the trial Court was not justified in the circumstances, therefore, by accepting the appeal, the convict may be acquitted of the charges.
5. On the other hand, it was argued that F.I.R. Was promptly lodged. The names of the witnesses, the deceased and the accused were specifically given in it. The occurrence took place during broad daylight. Identification of the accused was not in doubt. According to the learned counsel the place of occurrence was established through the recoveries of bloodstained clay and crime empties.
During trial the prosecution witnesses successfully established the origin of fight and manner of occurrence while the alleged motive was also proved. He emphasized that the ocular version was supported by the recovery of weapon of offence, post-mortem report, Forensic Science Expert's report and site plan etc. The deposition of eye-witnesses corroborated by the incriminating material was confidence inspiring and in light of the evidence it was proved that the convict committed the offence in presence of five eye-witnesses, who were found "Adil" in purgation. The required standard of evidence for the sentence of Qisas was available on record and there was no reason to award death sentence under section 302(b), A.P.C. To the appellant. He submitted that lesser penalty of Rs,80,000 fine under sections 324/337, A.P.C. And Rs,1000 fine under section 13/20/65 A.A. Was also not justified in the circumstances, therefore, by accepting the appeal filed by the complainant and heirs of the deceased the sentences may be enhanced in accordance with law.
6. Learned Assistant Advocate General supported the arguments advanced by the learned counsel for the complainant.
7. Since the appeals and the reference arise out of the order of the trial Court, therefore, these shall be disposed of through this common judgment.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution story as it appears from the statement of the complainant that prior to the occurrence the complainant constructed a basement in Tungigala bazaar and placed a moveable cabin at its roof. On the day of occurrence he removed the cabin and placed it on water drain to construct second floor. At about 2-30 p.m. Muhammad Akram came at the place, kicked the cabin and asked the complainant to remove it from there. He also threatened to shoot him. The complainant agreed and when they were going to pick up the cabin, the appellant fired three shots with .30 bore pistol. One of the fires hit him at his left thigh while the other to his son Muhammad Ishaq at the joint of his left thigh and the third fire went ineffective. The victims fell down. They were taken to Police Station by the residents of the locality where they lodged the report and were referred to Hospital. Later on due to medical complication Muhammad Ishaq was shifted to Rawalpindi for treatment. There he was operated but succumbed to the injury.
10. The deposition of Ameer Muhammad shows that he was present in his shop situated in Tungigala bazaar. He heard the complainant who was asking Muhammad Akram to stop. In the meantime he came in front of his shop. Meanwhile the witness heard Muhammad Akram saying that do not come close to me and also heard the sound of fires, one of which hit Muhammad Ishaq at the joint of his left thigh and he fell down while other hit the complainant at his left thigh. The witness was not cross-examined by the. Defence. Though it appears that he did not see Muhammad Akram while firing at the deceased but at least confirmed the presence of victims, eye-witnesses and convict appellant at the place of occurrence at relevant time.
11. The other eye-witnesses supported the version narrated by the complainant regarding motive, origin of fight and manner of occurrence. The above mentioned story was relied upon by the trial Court while convicting the appellant.
12. From perusal of the prosecution evidence it appears that the time and place of occurrence was proved and it was established that the convict appellant fired three shots with .30 bore pistol. One of the fires hit the complainant at his left thigh and the other hit the deceased at the joint of his left thigh while the third one went ineffective. Muhammad Ishaq was admitted in hospital but because of the medical complication which occurred due to the fire-arm injury, was shifted to Rawalpindi where he was operated but could not survive. It also appears that due to a dispute B over a piece of land an enmity was prevailing between the parties.
13. It may be mentioned here that according to the defence version Mst. Dil Jan widow of Munawar Din who was issueless adopted Muhammad Akram when he was two years of age. She was owner of the land where the occurrence took place. Hassan Muhammad and the other members of the complainant party were forcing her to give them the land but she refused and gifted it to Muhammad Akram. As per deposition of D.W. Mst. Dil Jan even after the occurrence the complainant had been forcing her to give the land to him. D.W. Nasir Ahmad also supported the claim of the defence regarding ownership and possession of the said land. A perusal of his statement shows that prior to the occurrence the deceased placed a chicken Cage in the land of the accused due to which an unpleasant situation took place but it was resolved by him through a compromise and the deceased promised that he will lift the cage on demand of the appellant.
14. A careful consideration of the above listed facts indicates that a dispute over a piece of land was existing between the parties. On 7-9-2004 at 2-30 p.m. The complainant removed the cabin from the roof of his building and placed it in the land. Site plan Exh.PG shows that at the time of occurrence the cabin was at point No,3 which according to Exh.PG/2 was in the land of Muhammad Akram. Even otherwise the complainant did not claim the ownership or possession of the said land thus it stands established that appellant was the owner and was in possession of the land at the time of occurrence and the complainant placed the cabin over there.
15. From perusal of the record it transpires that the occurrence was not D preplanned. Muhammad Akram came at the place and 'saw the cabin in his land. He might have perceived that complainant party was trying to take possession because of which he asked them to remove it. It is father clear that just before the occurrence the accused asked the complainant party not to come close to him and in the meanwhile he fired at them. In this background the possibility cannot be ruled out that complainant and his son Muhammad Ishaq tried to come close to the accused, upon which he felt threatened and opened fire which hit the deceased and the complainant.
16. It may be stated here that he convict appellant was not charged under section 13/20/65, A.A. At the time of submission of challan. During trial no evidence regarding unlicensed weapon was brought on record, therefore, it cannot be said that whether the same was licensed or not.
17. The trial Court while passing the impugned order failed to appreciate that there were mitigating circumstances in favour of the convict appellant for lesser penalty for the occurrence being not premeditated. No evidence regarding intention for commission of offence against the convict was available on record. The complainant and the deceased placed the cabin into the land of the appellant, which provoked him. At the time of incident he tried to stop them from coming close to him and fired at the non-vital parts of their bodies, therefore, in my view capital punishment was not warranted in the circumstances.
18. In light of the above discussion the conviction is maintained however, the sentence of death is altered to life imprisonment and benefit of section 382-B, Cr.P.C. Is also extended to the convict. The punishment of fine under section 337, A.P.C. For causing injury at the person of the complainant is reduced from Rs,80,000 to Rs,50,000, while the appellant is acquitted of the charges under section 324, A.P.C. And Arms Act by accepting the appeal partly. The appeal filed by the complainant and heirs of the deceased dismissed.
' The Reference is answered accordingly.