' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,376-J of 2001 filed by Muhammad Asif and Muhammad Mansoor alias Poma, who faced trial in case F.I.R.
No,282, registered at Police Station Sara-e-Alamgir, District, Gujrat, on 1-6-1999 for offences under section 302/34, P.P.C., before learned Additional Sessions Judge, Kharian, who after conclusion of trial, vide his judgment, dated 1 1 - 10-2001 convicted Muhammad Asif appellant under section 302(b), P.P.C. And sentenced him to death, while Muhammad Mansoor alias Poma was convicted for offences under section 302(c)/34, P.P.C. And sentenced him to 14 years' R.I.
2. Murder Reference No,709 of 2001 for confirmation or otherwise of death sentence of Muhammad Asif-appellant and Criminal Revision No, 685 of 2003 seeking enhancement of sentence awarded to Muhammad Mansoor alias Poma shall also be decided through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.PB/1 are that on 1-6-1999 at about 8-30 p.m.
Muhammad Arif complainant along with his brother Tahir Mehmood came out of his shop (Al- Jannat Sweet Bakers) situated in Sara-e-Alamgir. When they had boarded their Suzuki'car Muhammad Asif armed with .30 bore pistol, while Muhammad Mansoor alias Poma and Abdullah alias Bhalla empty handed came there. Poma raised Lalkara that Tahir should not be spared alive today. Abdullah dragged Tahir^deceased out of the car and Muhammad Asif fired at Tahir Mehmood, which landed on the left thigh of Tahir. Thereafter all the three accused fled away from the spot. The injured was rushed to the District Headquarter Hospital, Jhelum, but just after his arrival at the Hospital, he succumbed to the injuries.
4. The motive behind the occurrence was the quarrel which took place on 31-5-1999 between Tahir Mehmood- deceased and Wahid, Muhammad Asif and Poma but the matter was patched up.
According to F.I.R., the accused for that grudge committed the offence.
5. After registration of formal F.I.R., the investigation of the case was taken over by Nadir Khan, S.- L/P.W.9, who conducted thorough investigation, arrested the accused and after effecting recovery of weapon used during the occurrence, sent them to face trial.
6. At the trial, the prosecution in order to prove its case produced 10 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PJ and that of Serologist Exh.PM closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellants at the very outset has submitted that as far as Muhammad Asif-appellant is concerned he would pray for lesser sentence in the circumstances of the case, as the motive could not be proved and injury was not caused on vital part of the body; and there is no allegation that Muhammad Asif even tried to repeat the injury; that as far as Muhammad Mansoor alias Poma-appellant is concerned, he was involved due to his relationship with Muhammad Asif-appellant and no role except Lalkara has been attributed to him; that according to evidence, it was coaccused Abdullah who brought the deceased out of the car and held him from his hairs; and that undeniably Poma was empty handed.
8. On the other hand, the learned counsel appearing on behalf of the complainant submits that presence of Muhammad Arif P.W.4 was established; that though he was brother of the deceased but he had no previous enmity with the accused so as to depose against him falsely; that ocular account is fully supported by the medical evidence; that delay in lodging the F.I.R. Is explained by the fact that the complainant being real brother had made desperate efforts to save the life of his younger brother; and that as far as Poma is concerned, he was present on the day when altercation took place between the parties and accompanied the principal accused on the fateful day and contributed by raising Lalkara.
9. We have heard the learned counsel for the parties at length and scanned the entire record of the case. According to prosecution case, the occurrence took place at 8-30 p.m. While deceased Tahir Mehmood and his brother Muhammad Arif- first informant/P.W.4 boarded their Suzuki car, the accused reached there. Poma raised Lalkara that Tahir Mehmood should not be spared. Thereafter Abdullah co-accused (tried separately), dragged Tahir Mehmood out of the car. Muhammad Asif fired at Tahir, which caused injury on his left thigh. The motive behind the occurrence was that a day prior to the occurrence at evening time an altercation took place between Tahir-deceased, Wahid, Muhammad Asif and Poma accused. Muhammad Arif, who is brother of the deceased and Muhammad Saeed, who was related to the deceased, appeared in support of the prosecution case before the learned trial Court. It is not denied that shop in the name and style of Al-Jannat Sweet Bakers was situated near the place of occurrence and it was owned by Muhammad Arif P.W.
It is also in evidence that Muhammad Saeed lived at a distance of 1-1/2 furlongs from the place of occurrence. No serious ill will or enmity existed between first informant and Muhammad Asif- appellant, so as to involve him in a false case.
10. During cross-examination much emphasis was laid on the point of delay in reporting the matter to the police, as the police station was situated at a distance of only two furlongs from Al-Jannat Bakery/ place of occurrence. The delay stands duly explained as both the P.Ws. Had taken their brother to District Hospital, Jhelum, in order to save his life. Their main concern was to save the life of their brother and it was not unusual that they did not inform about the occurrence at the police station which was nearby and the police officers who were available on the G.T. Road. Taking of deceased at District Hospital, Jhelum, stands proved as P.W.6 Dr. Farooq Ahmad Bangush, who conducted the post-mortem examination on the dead body of the deceased explained during cross- examination that his opinion about the time of death was' based on many factors including the documents issued by Dr. Khalid C.M.O., D.H.Q. Hospital, Jhelum. It -is also brought on record that after receiving information of incident Nadir Khan, S.-I./P.W. 9 reached the Civil Hospital, Jhelum and recorded the statement of Muhammad Arif. Undeniably, the injury was on the thigh and there was a chance to save the life of the deceased, so he was rushed to the hospital. Muhammad Arif stood the acid test of cross- examination on the point and he explained that Tahir Mehmood was still alive when he reached the D.H.Q. Hospital, Jhelum and the medical officer took him inside for his. Treatment. He further stated that he and other witnesses kept waiting oufside the emergency room and thereafter Doctor informed him that Tariq could not survive, It was suggested to Muhammad Arif that Nouroz, father of Muhammad Asif, was employed as driver by Sona Bread and he supplied breads and other items in Sara-e- Alamgir, where shop of the complainant was situated and that supply of bakery items had badly affected the bakery business of the complainant. It was suggested to him that the complainant had been repeatedly asking Nouroz to restrain from this supply. This suggestion is jiot supported by any evidence at all. The complainant denied this suggestion and it is also noteworthy that it was not likely that the complainant, who had a good business having income in between Rs,10,000 to Rs,25.,000 per day, would have any grudge against the driver. It is also not plausible that the complainant would substitute the real killer by an innocent merely because of business competition.
11. It was also suggested to this P.W. That light was not available at the time of occurrence, which was duly denied by the P.W. It is common knowledge that Bakery shops remained opened till late night and also are well lighted. It is also in evidence that not one shop but many shops, Khokhas and stores were situated near, the bakery.
12. The occurrence took place at about 8-30 p.m., statement of the complainant was recorded at 9-30 p.m. And the postmortem examination was conducted at 10-30 p.m. The promptness of the postmortem examination leaves little room for doubt. The seat of injury mentioned in the post- mortem report is in accordance with D the F.I.R. In short, as far as the appellant Muhammad Asif is concerned, the prosecution case stands proved through reliable ocular evidence, which was supported by the medical evidence and corroborated by the circumstances of the case. The learned counsel for the appellant rightly did not press for, acquittal of Muhammad Asif.
13. Having come to this conclusion, we have given our considerate and anxious thought to the quantum of sentence in the circumstances of the case. It has been noticed by us that though it was stated in the F.I.R. That an altercation took place between the parties on 31-5-1999 at evening time but it was also mentioned that the matter was patched up between the parties. It has not been mentioned at all as to why the altercation took place between the deceased and the accused. Undeniably, no one received any injury during altercation and the complainant admitted that only abuses were exchanged between the parties. It is also noteworthy that Wahid, who was with Tahir when the altercation took place, was held back and was not produced either before the learned trial Court or before the Investigating Officer. There is no allegation that the accused, who was armed with .30 bore pistol, tried to repeat the fire after the first which did not land on the vital part of body. In these circumstances, while maintaining 'the conviction of Muhammad Asif- appellant for offence E under section 302(b), P.P. C . We reduced his sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C, is given to Muhammad Asif-appellant. He is directed to pay compensation of. Rs,50,000 to the legal heirs of the deceased. In default of realization or non- payment of compensation he Would suffer S.I. For six months.
14. With the above modification in sentence, this appeal is dismissed to the extent of Muhammad Asif-appellant. Death sentence is not confirmed. Murder reference is answered in the negative.
15. Now coming to the case of Muhammad Mansoor alias Poma, undeniably he was empty handed at the time of occurrence and the only allegation levelled against him was that of Lalkara, which was totally unnecessary as Muhammad Asif, who was armed with pistol, needed no prompting.
The possibility that he was roped in this case for his being brother of the principal accused cannot be ruled out. Hence while extending the benefit of doubt to Muhammad Mansoor alias Poma we allow this appeal to, his extent. He is acquitted of all the charges and the judgment passed by the learned trial Court to his extent is set aside. He is on bail. His bail bonds are cancelled and the sureties are discharged.
16. For the afore mentioned reasons we find no merit in the revision and dismiss the same.