The above titled appeal and reference arise out of judgment passed by District Court of Criminal Jurisdiction, Mirpur, dated 26.2.2007, whereby the appellant was convicted and sentenced to death under Section 302, A.P.C. one month R.I under Section 341,, A.P.C. and one year R.I. under Sections 13/20/65, A.A.
2. Brief facts forming background of, the appeal and reference are that a case under Sections 324/337/341, A.P.C. was registered against the appellant and others at Police Station, Barnala on the complaint of Taj Din. He alongwith Muhammad Shafique and Salah-udDin reported that Muhammad Aslam was injured by his son Muhammad Abbas during a quarrel resultantly Muhammad Abbas was arrested and Muhammad Shafique, husband of complainant's sister-in- law was making efforts for his release. Thereafter, a compromise was affected but Muhammad Aslam was insisting to seek apology from his father as well. According to the programme on 23.3.1997 the complainant alongwith Muhammad Shafique, Abdul Rehman, Salah-udDin and Muhammad Fayyaz left Lahore on a Jeep. At 8.15, a.m. they reached at a small bridge 'near village Porh. Muhammad Aslam and Mazhar Iqbal accused armed with `Kalashnikovs' while another armed with fire-arm stopped their jeep. Muhammad Aslam asked every one to come out of the jeep, upon which they did so. It was alleged that Muhammad Aslam asked others to get aside, fired at the abdomen of Muhammad Shafique and said that he should suffer for the help rendered by him to Muhammad Abbas. Mazhar Iqbal also fired at Muhammad Shafique which hit on his right leg and he fell down. Salahud-Din was also hit at arm by the firing of the accused whose name was not known. After committing the offence the accused persons also fired at the Jeep and disappeared from the scene. The occurrence was stated to be witnessed by the companions of the complainant.
3. Later on Muhammad Shafique died and Section 302, A.P.C. was added. Muhammad Aslam and, Mazhar Iqbal were arrested While the unknown person mentioned in the FIR was identified as Shoukat Hussain S/O Muhammad Khan but the Police failed to apprehend him consequently, he was proceeded under Section 512, Cr.P.C. During trial' Mazhar Iqbai also became fugitive from law and on 23.7.2005 he too was proceeded under the said section. After taking cognizance the prosecution examined eleven witnesses in support of the prosecution version. On conclusion of trial, the Court convicted the appellant under Sections 302 & 341, A.P.C. and Section 13 of Arms Act, XX of 1965. He was sentenced to death under Section 302, one month R.I. under Section 341, A.P.C. and one year R.I. under Section 13/20/65 A.A through the impugned judgment, hence the above titled appeal and the reference.
4. Learned counsel for the appellant argued that the convict was roped in a false case on account of enmity. Motive was not proved during trial. No direct enmity between the deceased and the convict appellant was brought on record. The place of occurrence was not established. Origin of fight and manner of occurrence were shrouded in mystery. The FIR was lodged after preliminary investigation. The prosecution witnesses were inter se related, interested and inimical towards the convict. No independent corroborative material in support of their deposition was brought on record. Medical report was in contradiction with the ocular version. Recovery of weapon of offence was highly doubtful. Seizing of crime empties from the palce of occurrence lying near the dead body also creates a serious doubt about the truthfulness of the prosecution version. He further argued that as per deposition of Taj. Din, Muhammad Shafique recorded his statement but it was not brought on record and in view of the fact that P.W. Abdul Rehman and his brother Muhammad Tufail were also arrested by the Police, it stands established that the deceased gave a different version about the occurrence which was suppressed by the complainant and so called eye- witnesses with connivance of the police. Learned counsel emphasized that the trial Court while passing the impugned judgment failed to appreciate that the prosecution story being highly doubtful was not worth consideration. The deposition of inter se related and interested witnesses who were also inimical towards the convict was not safe to be believed without support from some independent source. The true facts are suppressed and a story was concocted to rope the convict appellant in the case. The prosecution version was fake and fabricated. Material contradictions were not considered by the trial Court. Mis-reading and wrong interpretation of evidence resulted into illegal, unlawful and invalid judgment which is liable to be set aide, therefore, by the accepting the appeal the convict may be acquitted of the charge.
5. On the other hand, it was argued that the occurrence took place during broad-day-light. The convict appellant and others were nominated in promptly lodged FIR. Identification of the convict appellant was not in doubt. The convict appellant was alleged for causing fatal injury to the deceased. Weapon of offence 222 bore gun was recovered at his instance. Crime empties fired from the gun were seized from the palce of occurrence. Motive was proved beyond any doubt.
Origin of fight and manner of occurrence were established by the prosecution witnesses. Post- mortem report confirmed the claim of prosecution that the victim suffered bullet injuries.
According to the learned counsel minor discrepancies in statements of the prosecution witnesses were not wroth consideration. The ocular version given by independent witnesses was supported by strong corroborative material. They were; cross-examined at length but they stood at the touch stone of the test and defence failed to obtain anything favourable. It was proved beyond any doubt that the convict-appellant fired at Muhammad Shafique with .222-bore gun and caused injury resulting into his death. The trial Court appreciated the evidence in a judicial manner and arrived at a correct decision. The prosecution successfully proved its case, the impugned judgment being correct and in accordance with law and facts of the case needs no interference; therefore, the appeal, may by dismissed.
6. Learned Addl. Advocate General supported the arguments advanced by the learned counsel for the complainant.
7. Since the appeal and the reference arise out of single order, therefore, these shall be disposed- off 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 evidence that prior to the occurrence during a quarrel Muhammad Abbas son of the complainant fired at Muhammad Aslam appellant which hit him at his legs, however, the matter was compromised but the convict appellant insisted that the assailant and others should seek apology from his parents as they had been looking after him during the period he was under treatment, upon which the complainant and others decided to go to the village of convict appellant for the purpose. On 23.3.1997 at about 4.00 or 4.30, a.m. they left Lahore in a Jeep. Muhammad Shafique was driving while Salah-ud-Din alias Tipu, Muhammad Fayyaz, Haji Taj Din and Abdur Rehman were sitting in the Jeep. As they reached at small bridge near the village, Muhammad Aslam and Mazhar Iqbal armed with Kalashnikovs and an unknown person with mouser were present there. They stopped them and asked the complainant and his companions to get down from the Jeep and when they came out, Mazhar Iqbal fired at the leg of Muhammad Shafique. He fell down after receiving the injury and in the meantime Muhammad Aslam also fired with Kalashnikovs which hit him at left side of abdomen. The unknown accused person fired at Selah-ud-Din which hit at his right arm. Muhammad Shafique was taken to Rural Health Centre, Barnala but due to critical condition after first aid was shifted to Aziz Bhatti Hospital, Gujrat where he succumbed to the injuries.
10.The ocular version was supported by P.Ws. Taj Din, Abdul Rehman, Salah-ud-Din and Muhammad Fiaz. Post-mortem report Exk. PK confirmed that the deceased died of bullet injuries.
Recovery of weapon of offence Kalashnikovs at instance of the convict-appellant through seizer memo Exh. PG was proved by P.Ws. Muhammad Rafique, Muhammad Akram and the Investigating Officer, while place of occurrence was also established during trial. The Court by putting reliance on the above-mentioned facts convicted the appellant and awarded death sentence.
11.It is interesting to note that the incident which took place between convict-appellant and Muhammad Abbas in 1989 was compromised on payment of Rs, 1,00,000/- by Taj Din to Muhammad Aslam. No material showing any unpleasantness between the parties or indicating a direct enmity between assailant and the victim was brought on record. Particularly in view of the fact that convict made no attempt towards Taj Din father of Muhammad Abbas, the question that he nourished a grudge against the complainant party on account of the incident which took palce in 1989 and was admittedly compromised needs serious consideration.
12.It may be stated here that soon after the occurrence victim was taken to. Rural Health Centre, Barnala where he remained about half an hour and was given first aid. As per deposition of P.W. doctor he was fully conscious. The eye-witnesses claimed that Muhammad Shafique told the police and doctor in their presence that Muhammad Aslam fired at him but surprisingly neither the Police Officer bothered to record his dying declaration or statement under Section 161, Cr.P.C. nor P.W. doctor supported the witnesses on this point, therefore, contention of the learned counsel for the appellant that arrest of P.W. Abdur Rehman and his brother Muhammad Tufail in the case as suspects clearly indicates that the victim made a statement giving different version of the occurrence was suppressed by the prosecution needs serious consideration. The apprehension that the deceased might have said something regarding origin of fight or manner of occurrence cannot out rightly be discarded from consideration.
13.It may be mentioned here that according to the site plan Exh. PM the victim was present at Point No, 1 from where 21 crime empties were also seized while Muhammad Aslam and Mazhar Iqbal were shown towards South-West at a distance of 7% feet at Points No, 2 and 3 but no crime empty either from the palce of firing or from left or right side of the convict-appellant was found.
14. Though the eye-witnesses successfully established that Muhammad Aslam and Mazhar Iqbal fired at the deceased which hit him at abdomen and leg and the allegation was further supported by Forensic Science Expert's report which shows that the crime empties seized from the place of occurrence were fired from the weapons recovered at their instance but the deposition regarding manner of occurrence was inconsistent with each other. P.Ws Taj Din and Salah-ud-Din stated that the convict-appellant fired at the deceased which hit at left side of his abdomen whereas according to Abdul Rehman, Muhammad Aslam and the unknown accused person fired at Muhammad Shafique with Kalashnikovs while Muhammad Fayyaz , alleged that Muhammad Aslam and Mazhar Iqbal simultaneously fired at the deceased, thud it implies that at least two eye- witnesses failed to specify that whose fire caused the fatal injury.
15.The trial Court while awarding death sentence failed to appreciate that there were mitigating circumstances such as Haji Taj Din was related to the deceased while P.Ws Abdul Rehman, Salah- ud-Din and Muhammad Fiaz were his close friends and it cannot be ruled out that they may have common interest. The members of complainant paity came from Lahore together to seek apology from father of the convict-appellant but there was nothing on record indicating that their programme was in knowledge of the convict, thus the allegation of commission offence under Section 341, A.P.C. was not proved. Abdul Rehman and Muhammad Fiaz failed to perceive that who caused fatal injury to the deceased. The claim of Salah-ud-Din that he suffered fire arm injury during the occurrence was not proved for being contradicted by medical report Exh. PL, therefore, the capital punishment was not warranted.
16.In light of the facts listed above, by amending the impugned judgment, death sentence awarded to the convict-appellant by the trial Court is altered into life imprisonment however, conviction under the Arms Act is maintained while he is acquitted of the charge under Section 341, A.P.C. The convict shall be entitled to the benefit of Section 382-B Cr.P.C.
17.Upshot of the above discussion is that appeal filed by the convict is accepted in the terms indicated above. The death sentence is not confirmed and the reference is answered accordingly.