' HASNAT AHMAD KHAN, J.---By this single judgment we intend to dispose of Murder Reference No,101 of 2002, Criminal Appeal No,1632/2002 and Criminal Revision No,287/2002.
2. Muhammad Jamil and Mumtaz Hussain-appellants, along with six others, were reported against at Police Station, Sharqpur, District Sheikhupura, for the murder of Sanaullah and causing injuries to Amir Ali-complainant, P.W.9. Consequently, a case F.I.R. No,52/1999 under section 324, 337 F (v) and 302, P.P.C. Was registered against them. Subsequently, offence under section 427, P.P.C. Was also added. All the accused were tried by an Additional Sessions Judge, Sheikhupura, who vide his judgment dated 13-2-2002 awarded death sentence to Muhammad Jamil-appellant under section 302(b), P.P.C. With a direction to pay Rs,100,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased-Sanaullah or in default thereof, to further undergo six months' S.I. Mumtaz Hussain-appellant was convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life with a direction to pay Rs,100,000 as compensation under section 544-A Cr.P.C. To the legal heirs of the deceased-Sanaullah or in default thereof, to further undergo S.I. For six months. He was further convicted under section 337-F(v) and sentenced to R.I of 5 years along with daman amounting to Rs,10,000 and five years' R.I under section 324, P.P.C. And also to pay a fine of Rs,5,000 or in default thereof, to undergo two months' S.I. Benefit of section 382- B, Cr.P.C. Was however, awardedto him.
3. Through Criminal Appeal No,1623/2002 both the appellants have challenged their conviction, and sentence awarded to them
4. Criminal Revision No,287/2002 has been filed by the complainant for the enhancement of compensation awarded by the trial Court to legal heirs of the deceased. The learned trial Court has sent a reference under section 374, Cr.P.C. For confirmation, or otherwise of the death sentence handed down to Jamil Ahmad-appellant.
5. Prosecution story in brief, as unfurled in the F.I.R. (Exh.PM) lodged by complainant Amir Ali (P.W.9), is to the effect that on the fateful day, i,e, 18-2-1999 at about 11-00 a.m. He along with his son Sana Ullah (slain) and Umar Hayat (PW.8) was present at his dera. On hearing the noise of firing, they reached near a mosque, where they were told by Asghar Ali (P.W-10) that the appellant had fired shots. Panic-stricken complainant, Umar Hayat (P.W-8) and Sanaullah (deceased) went out to inquire after their kids. At about 11-30 a.m., Jamil Ahmad (appellant), Naseer Ahmad, Riaz, Abbas, Riasat Ali alias Riahghi and Nisar alias Pannun, armed with rifles, Mansha and Mumtaz-appellant, armed with .12 bore guns, reached near an electric transformer. On seeing the complainant, Mumtaz-appellant, allegedly fired with his .12 bore double barrel gun, which hit the complainant on his right wrist, whereafter, the accused proceeded towards the dera of the complainant and followed Sanaullah (slain), who was present in the Haveli of one Arif. Jamil-appellant fired at Sanaullah, which hit him on his forehead. He fell down and became unconscious. He was rushed to the hospital where he succumbed to his injuries.
' Raison deter behind the occurrence was stated to be some dispute amongst Asghar Ali, P.W.10, Jamil Ahmad-appellant and Naseer Ahmad, over a piece of land. The complainant and his son Sanaullah statedly, often used to help Asghar Ali, P.W.10, which nurtured in the mind of the accused.
Consequently, all the accused, named in the F.I.R. With their common intention, duly armed with fire-arms, shot injured the complainant Amir Ali, and his son-Sanaullah (slain), who as mentioned above, died subsequently.
6. On the receipt of the information regarding the said crime, Dilawar Hussain, S.-I, Police Station Sharqpur, the Investigating Officer, P.W.14 recorded the F.I.R. (Exh.PM) on the statement of Amir Ali- complainant (P.W.9) prepared the injury statement of Amir Ali (Exh.PD) and got him medically examined from a doctor at RHC, Sharaqpur Sharif. Thereafter, he went to the place of occurrence and secured the blood-stained earth through Memo. Exh.PJ, which was signed by Muhammad Tufail and Umar Hayat, P.Ws. He secured four crime empties of .12 bore gun (P.7/1-4), six empties of .7 mm rifle (P.6/1-6), five empties of .303 rifle bullets (P.8/1-5) and made into sealed parcel vide Memo. Exh.PK, attested by the P.Ws. He also prepared the site plan of the place of occurrence (Exh.PN) and recorded statement of P.Ws. Under section 161, Cr.P..C. Next day, the Investigating Officer was informed that Sanaullah had expired in General Hospital, Lahore due to his injuries, therefore, section 302, P.P.C. Was added vide Rapat No,34 dated 18-2-1999 by Ghulam Mustafa, Naib Moharrir, which is Exh. PO. He reached the hospital and prepared the inquest report (Exh.PP) and injury statement of the deceased (Exh.PQ). He wrote an application (Exh PR) for postmortem of the deceased and an application (Exh.PS) for issuance of docket. The dead-body was entrusted to Zulfiqar and Abdul Saboor Constables for its onward escort to the mortuary of King Edward Medical College, Lahore. Sarfraz Ahmad and Fayyaz Ahmad identified the dead body. After the autopsy on the dead body of Sanaullah, the Investigating Officer took into possession last-worn blood-stained clothes of the deceased Sanaullah, comprising Tehband (P.1), Banyan (P.2) Qameez (P.3), vide Memo Exh.PA, attested by Sarfraz and Fayyaz Ahmad, P.Ws. He handed over the sealed parcels of the articles to the Muharrir for placing them in the Malkhana.
7. After arresting Jamil Ahmad (appellant), Naseer Ahmad, Riaz Ahmad, Abbas, Nasir alias Pannun, Muhammad Mansha on 15 1-1999, the Investigating Officer obtained their physical remand. On 18- 3-1999, Abbas Ali-acquitted co-accused, while in police custody, led to the recovery of a licensed rifle .303(P.4), in presence of Fayyaz, which was taken into possession vide memo. Exh.PB. He recorded the statements of the said P.W. And prepared a site plan of the place of recovery as Exh.PB/1. On 24-3-1999, Jamil-appellant, while in police custody, led to the recovery of .7 mm rifle (P.12) in the presence of Muhammad Tufail and Umar Hayat, P.Ws, from his house which was taken into possession vide memo. Exh.PL. The said investigator prepared a site plan of the place of recovery of said rifle, which is Exh.PL/1. He handed over a parcel of P.12 to the Moharrir for its safe custody and also recorded the statements of the Moharrir and other Constables, who took the parcels to their respective offices. On a spot inspection, he observed fire-marks on the electric transformer, installed near the place of occurrence and subsequently offence under section 427, P.P.C. Was also added. After getting X-ray report of Amir Ali and .Opinion of the doctor, section 337- F(V) P.P.C. Was also added. He carried on the investigation uptil 26-3-1999, when the same was transferred to the S.H.O.
8. The appellants as well as M/s. Naseer Ahmad, Muhammad Riaz, Abbas Ali, Riasat Ali, Nisar Ahmad and Muhammad Mansha, acquitted co-accused, were indicted on the charge of murder of Sanaullah (slain) and causing injuries to complainant. During the trial, the prosecution, in support of its case, produced as many as 17 witnesses. Arif Hussain, Constable appeared as P.W-1 and deposed regarding the delivery of sealed parcel to the office of Forensic Science Laboratory Muhammad Yaqoob, Constable appeared as P.W.2 and deposed about the delivery of a sealed parcel containing blood-stained earth and another sealed parcel containing .7 mm rifle to the office of Chemical Examiner and Forensic Science Laboratory, respectively. Abdul Saboor, Constable appeared as P.W.3 and stated that he had escorted the dead body of Sanaullah to the mortuary. He further deposed about the production of last-worn clothes of the deceased before the Investigating Officer Fayyaz Ahmad appeared as P.W.4 and stated that he along with Sarfraz had identified the dead body of Sanaullah. He also deposed about delivery of last-worn blood stained clothes of Investigating Officer by Zulfiqar Constable and recovery of rifle (P.4) from his residential house of Abbas, acquitted co-accused.
9. Dr. Fayyaz Ahmad Butt, who had medically examined Amir Ali-complainant, appeared in the witness-box as P.W.5 and gave the detail of the injury on his body as under: "A lacerated wound 1.5 cm. x 1.3 cm. x DNP on later surface of right wrist joint. There was swelling 20 cm. x 7 cm. On lower part of right fore-arm and dorsal surface of right hand, corresponding cut was present on arm of the kurta."
' According to P.W.5 the said injury was declared by him as Jurh Ghair Jafia Hashima, which was caused by fire-arm weapon.
9. Abdul Rahim Kazmi, Draftsman came forward and appeared as P.W.6 and stated that he had inspected the place of occurrence and prepared the site plan. Muhammad Azam appeared as P.W.7 and deposed about the arrest of Mumtaz Hussain and Riasat (Acquitted co-accused) and recovery of fire-arm weapons (P.5) and (P.7), respectively on the pointing out of the said accused.
Umer Hayat appeared as P.W.8 and gave the ocular account of the occurrence besides proving the recoveries of the crime-empties from the spot and .7 mm rifle on the pointing out of Jamil- appellant. Amir Ali complainant, who had triggered off the legal machinery into motion by making a statement, which culminated into the F.I.R., Exh.PM, appeared before the learned trial Court as P.W.9 and reiterated his version as given in F.I.R. Asghar Ali appeared in the witness-box as P.W.10 and corroborated the statement of other eye-witnesses. Muhammad Ashraf A.S.I., who at the relevant time was serving as Moharrir, appeared as P.W.11 and deposed about delivery of the parcels containing blood-stained earth, crime empties, .7 mm rifle to Constables, namely, Muhammad Yaqoob and Muhammad Arif for onward transmission to the office of Chemical Examiner and that of Forensic Science Laboratory. Dr. Muhammad Tahir Bashir, Radiologist appeared as P.W. 12 and deposed about his report regarding injury suffered by Amir Ali.
Muhammad Abbas, A.S.I. Who, during the investigation had arrested Mumiaz Hussain (appellant) and Riasat (co-acidized), appeared before the trial Court as P. W.13 and further proved the fact of recovery of the Gun and Rifle, respective from the said accused. Dilawar Hussain, S.-I. Appeared before the trial Court as P.W.14 and furnished the detail of investigation conducted by him.
10. Dr. Abdul Jabbar Khan, who had conducted autopsy on the dead body of Sanaullah (slain), showed up as P. W.15 and proved the post mortem report prepared by him. He gave the detail of injury suffered by Sanaullah deceased as under:-- "Surgical stitched wound with four black silk stitches measuring 3 cm. x 1.5 cm. On front of forehead, just on midline, 2 cm. Above the bridge of nose."
' In his opinion the injury was ante-mortem and caused with firearm weapon. According to him, the cause of death in this case was damage to vital organs brain which led to comma and death and that the injury was sufficient to case death in the ordinary course of nature.
12. Shahid Ahmad, D.S.P, who after partly investigating the case had recommended the report under section 173, Cr.P.C, appeared as P.W.16 Dr. Muhammad Ubaidullah, who had medically examined Sanaullah (slain) appeared as P.W.17 and furnished the detail of injury suffered by the said Sanaullah as under:-- "One lacerated wound 1 c.m. x 1 c.m. x DNP on middle part of the forehead. Wound was bleeding profusely, X-ray was advised of the skull with the posture of antro-posterior and intro-lateral posture. Injury was kept under observation for treatment notes."
12. The prosecution gave up Habib Ullah, ASI. And Abbas Ali, P.W. Being unnecessary.
13. After rendering report of Chemical Examiner (Exh.PU), report of Serologist (Exh.PW) and report of Foresic Science Laboratory (Exh.PV), the learned D.D.A. Opted to close the prosecution's evidence where after the appellants were called upon to make their statements under section 342, Cr.P.C.
While making the said statements, the appellant denied the prosecution version and gave their own versions while responding to question No,10, Jamil appellant stated as under:-- "I have been falsely implicated in this case on account of party friction. The P. Ws are highly interested witnesses, so they have deposed falsely due to enmity."
' Mumtaz Hussain-appellant made exactly the same statement in answer to question No,10. All the accused, including the appellants, however denied to appear as their own witnesses. After the conclusion of the trial, both the appellants were convicted and sentenced as mentioned in para-2 of this judgment, which has been impugned by them through the instant appeal. All the other co- accused were, however, acquitted of the charge.
12. Mr. Naseer-ud-Din Khan Nayyer, learned counsel for the appellants after tearing the prosecution evidence to pieces contended that the prosecution had miserably failed to prove its case beyond shadow of doubt; that though a specific motive was set up by the complainant at the time of lodging of the F.I.R. But the prosecution badly failed to prove the same; that according to the complainant the accused had a dispute over four canals of land with Asghar Ali P.W.-10. However the fact that Sanaullah (slain) and the complainant were shot and injured in admitted presence of the said Asghar Ali at the time and place of occurrence, does not make any sense; that while disbelieving the ocular evidence of the alleged eye-witnesses six co-accused of the appellants were acquitted of the charge by the learned trial Court, therefore, a strong and independent corroboration was required to convict the appellant on the basis of the same ocular evidence but the same is not forthcoming inasmuch as the prosecution failed to establish any motive for the commission of this crime and recovery of the weapon of offence; that the medical evidence is also contradictory to the ocular version; that according to the prosecution deceased had received a bullet shot but according to the doctor, who had conducted the autopsy on the dead body of Sanaullah three metallic piece were recovered from his brain, which shows that the deceased was shot dead by a gunshot; that the said glaring contradiction and seeming inconsistency between the medical evidence and the ocular evidence clearly shows that the occurrence was not witnessed by the so-called eye-witnesses; that the positive report of Forensic Science Laboratory does not advance the case of the prosecution inasmuch as the empties allegedly recovered from the spot were sent to the Forensic Science Laboratory on the day when the rifle, allegedly recovered from Jamil appellant, was sent to said laboratory; that while appearing in the witness- box all the eye-witnesses had made lot of dishonest and material improvements to ensure the conviction of the appellants; that the ocular evidence, besides being self-contradictory remains unable to inspire any confidence; that the manner in which the occurrence allegedly took place is neither believable nor plausible; that there are lots of loopholes in the ocular evidence which do not reconcile with the actual hard facts of the case; that in addition to all this as both the parties have failed to make a clear breast of the real facts, this Court while exercising the judicious perceptions can plumb the depths of the real facts and that no bloodstained earth was collected from the place where the complainant allegedly received the injury.
16. On the basis of the said contentions the learned counsel for the appellants has prayed for the acquittal of both the appellants. In the alternative, he has made a prayer to convert the death sentence of Jamil appellant into one of imprisonment for life on the ground that there are mitigating and extenuating circumstances in favour of said appellant inasmuch as the origin of the fight remained shrouded in mystery and that the prosecution failed to prove the immediate cause of the gun battle. In support of his arguments the learned counsel has placed reliance on the case of Sayyed Ali Bepare v. The Nibran Mollah and others (PLD 1962 SC 502), Muhammad Iqbal' v. The State (PLD 1996 Lahore 402), Naubahar v. The State (1999 SCMR 637), Ahmad Khan v. Nazir Ahmad (1999 SCMR 803), Husnain Shah v. The State (1999 SCMR 1937), Shahid Raza v. The State (1992 SCMR 1647), Muhammad Yousaf v. The State (1994 SCMR 1733) and Abbas v. State (1992 SCMR 320).
17. Conversely, learned D.P.G. Assisted by the learned counsel for the complainant has refuted the arguments put forth by the learned counsel for the appellants contending that the prosecution has successfully proved its case beyond any shadow of doubt; that it was a case of prompt F.I.R.; that in the absence of previous animosity between the parties the eye-witnesses cannot be regarded as interested witnesses, therefore, their evidence cannot be discarded simply on the ground that there are minor discrepancies in their evidence; that though on the basis of the same evidence some accused were acquitted of the charge by the learned trial Court, yet applying the principle of sifting the grain from the chaff the appellants were rightly convicted and sentenced especially when the ocular evidence got due corroboration from the evidence of motive and medical, as well as the recovery of the weapon of offence; that the positive report of Forensic Science Laboratory furnished an additional corroboration to the prosecution's case; that the death sentence awarded to Jamil-appellant cannot be converted into one of the life imprisonment only on the ground that Sanaullah (deceased) was wiped out by a single fire and that the weakness of motive or even absence of the same cannot be treated as a mitigating circumstance. In support of his arguments learned counsel for the complainant has relied upon the cases of Farman Ullah v. Qadeem Khan (2001 SCMR 1474), Muhammad Afzal and 2 others v. State (2003 SCMR 1678), Muhammad Nisar v.
The State (2006 SCMR 161) and Muhammad Boota v. State (2003 SCMR 489).
18. After hearing the learned counsel for the parties and going through the record, we have straightaway gathered that there are certain circumstances, which are not disputed, for instance there is no dispute regarding the place and time of occurrence. Similarly it is not denied by the defence that during this occurrence Amir Ali-complainant also received a fire-arm wound. We have further noticed that in this case the unfortunate incident was reported to the police very promptly. However, we have gathered that on the basis of the same evidence six co-accused of the appellants were acquitted of the charge, so in this background we have to see whether the ocular evidence does not get due corroboration from the other attending circumstance and whether the ocular evidence is trust-worthy and unimpeachable. In the peculiar circumstances of the case, we have picked to pieces the whole of the prosecution evidence to plumb the depths of the real facts and to know the ropes.
19. For doing the said exercise, we have found that in this case, apart from the ocular evidence, the prosecution evidence is based upon the evidence of motive, medical, recoveries of weapons of offence as well as the positive report of Forensic Science Laboratory.
20. As far as the motivating factor behind the occurrence is concerned, we have noticed that according to the prosecution, the apple of discord between the parties was a dispute between Asghar Ali P.W10 and Jamil Ahmad appellant over a piece of land measuring four Kanals. It was further alleged by the prosecution that the complainant and Sanaullah deceased used to support Asghar Ali but interestingly enough, Asghar Ali, who was a thorn in Jamil Ahmad-appellant's flesh, and according to the prosecution, he was very much available and present at the time and place of occurrence but was spared by the accused and instead of him Sanaullah (slain) and the complainant were targeted, so the motive part of the story appears to be a bit hazy and economical with truth. Moreover, during the trial while appearing in the witness-box the eyewitnesses tried to improve the motive part of the prosecution's version. Umar Hayat (PW-8) during his examination-in-chief (at page 49 of the paper book) stated as under:- "There was a dispute over irrigation of the land among the parties due to which this occurrence took place."
' The said witness tried to improve the version regarding the motive by stating that there was a dispute between Asghar P.W.10. Sanaullah (deceased) and Jamil appellant. Though initially it was a case of the prosecution that only Asghar had a dispute over said piece of land with Jamil appellant. The said witness was duly confronted with the statement (Exh.DB) wherein his stance was different. Amir Ali P.W.9 made similar improvements on the point of motive. During his cross- examination, he further contradicted his own version given in the F.I.R. By stating that there was a dispute of two Kanals of land between Asghar P.W.10, Niamat and Jamil. Moreover, the prosecution did not produce any documentary evidence in the shape of Jamabandi or Khasragirdawari to establish the motive part of the prosecution's version. During the cross-examination P.W.9 further admitted that there was no civil litigation over the disputed land. He went on to narrate that consolidation proceedings had been conducted 7/8 years prior to the occurrence. He admitted that there had been no dispute on consolidation between the parties. According to him the dispute arose after the consolidation but he admitted that no appeal was filed against the consolidation proceedings. As recorded on page 58 of the paper book he further conceded in the following terms:- "The land of four Kanals was cultivated by Asghar Ali P.W.
' There was a dispute for sowing the field but that was settled. That dispute arose about 2 to 1 N prior to the occurrence. No, puppet was lodged for that dispute. In result of settlement the disputed land four canals remained with P.W. Asghar Ali."
' Asghar Ali P.W-10 also made a distorted and improved version regarding the motive part of the story. In his examination-in-chief he stated that Sanaullah was also co-sharer in the disputed land.
To establish his version on the point of motive, he also made lot of improvements. In those circumstances we have come to a definite conclusion that the prosecution miserably failed to prove motive as narrated by the complainant while triggering off the legal machinery into motion.
21. As far as medical evidence is concerned, according to the prosecution Sanaullah deceased had received a single fire of rifle on his forehead while Amir Ali complainant P.W-9 had received a fire- arm injury on his wrist. The medical evidence was furnished by Dr. Fayyaz Ahmad P.W.5 who had medically examined Amir Ali P.W.9. Dr. Muhammad Abdullah who had medically examined Sanaullah (deceased), appeared as P.W.17 and Dr. Abdul Jabbar, who had conducted autopsy on the dead-body of Sanaullah appeared as P.W.15. Medical evidence B furnished by said doctors is quite in line. With the ocular evidence, which on this point has been found by us to be consistent and straightforward. Learned counsel for the appellants has tried to take benefit from the fact that according to P.W.15, at the time of autopsy, conducted on the dead-body of Sanaullah, three metallic pieces were recovered from the brain matter. Therefore, according to the learned counsel, it was not a bullet injury, as claimed by the prosecution; rather, it was a gun-shot wound. But while doing so he lost the sight of the following part of the statement of said doctor:-- "On dissection projectile made its entry after damaging skin, soft tissue making circular role in the frontal bone which was on measuring 1.5 c.m. x 1 c.m, it was a bullet wound. There was dwelling of frontal bone inside which was 0.5 c.m. x 1 c.m. There was fracture of base of skull inside."
21. We have further noticed that the pictorial diagram on the postmortem report also shows that there was a single entry wound. Had it been a wound of gun-shot, there would have been more than one entry wounds. Moreover, in the peculiar circumstances a chance of breaking of a metallic piece of bullet into pieces after hitting the bones cannot be ruled out, altogether. Besides, on this point the doctor who had conducted the autopsy, was not cross-examined by the defence, therefore, we have concluded that the medical evidence did corroborate the ocular version.
23. Insofar as recovery of 7 mm rifle from Jamil-appellant is concerned, the same stands established through impeachable evidence furnished by recovery witnesses. Three of crime empties of .7 mm recovered from the spot, wedded with the said rifle. It is true that the empties were recovered on 18-2-1999 yet the same were dispatched to the Forensic Science Laboratory on 24-3-1999 the day on which rifle was allegedly recovered from Jamil-appellant. But the positive report of Forensic Science Laboratory cannot be' discarded only due to this irregularity. Reliance is placed on the case of Sheraz Asghar v. The State (1995 SCMR 1365). Besides during the cross examination to concerned prosecution witnesses, it was not suggested by the defence that the rifle in question was sent to the said laboratory after producing the said crime empties from it, rather the suggestions put to P.W.2 by the defence are found to be self-destructive to the argument raised before us.
23. Insofar as ocular evidence is concerned, in absence of serious enmity between the parties, the same cannot be disbelieved or discarded simply due to the relationship of the eye-witnesses with the deceased. The matter was reported to the police quite promptly. Out of the eyewitnesses one is injured witness so his presence at the spot cannot be disbelieved. Even the learned defence counsel did not dispute his presence at the spot rather he argued that from the point where Amir Ali injured P.W.9 had received fire-arm injury, he could not have seen the shooting which caused the death of Sanaullah (deceased). But, considering the fact that it was a broad-day time occurrence and the close range from where the said eye-witness, allegedly, witnessed the occurrence, the argument raised by the learned defence counsel is hereby spurned. Besides, according to the injured witness, he did not remain static on the point where he received the injury, rather he was following Sanaullah who had also attempted to save his life from the assailants. It is true that there are some contradictions and improvements made by the eyewitnesses but the same have been found to be minor in nature and cannot be regarded of such a nature, which can become a ground for discarding the ocular evidence, therefore, we have come to the conclusion that the ocular evidence, which does not comprise interested witnesses, and is duly supported by the medical evidence and other attending circumstances cannot be discarded and disbelieved, therefore, we have come to the conclusion that the prosecution has proved its case against both the appellants beyond any shadow of doubt.
24. Now, reverting to the quantum of sentence we have observed, as noted above, that the prosecution failed to prove motive part of its story. Dilawar Hussain, S.-I. (P.W.14) deposed that during his investigation no documentary evidence was produced by the prosecution before him to prove the motive. According to the said witness, Jamil-appellant, in his version recorded by the said Investigating Officer, had narrated that in the first instance one Azam belonging to the complainant side had started firing in the air in his house and thereafter, there had been a cross- fire in which Sanaullah also joined and made firing during the occurrence. When this part of the evidence is put in juxtaposition with prosecution version according to which the complainant had been attracted to the scene of the crime after hearing the gun shots, it becomes crystal clear that both the parties suppressed the real cause of occurrence. In the circumstances, we have come to a conclusion that both the parties did not come forward with the true story and the genesis of the fight is not clear. It cannot be said with certainty as to what transpired between the parties prior to the occurrence. Possibility of a chance encounter clash between the parties cannot be ruled out.
Recovery of crime empties of three kinds of weapon also shows that both the parties were determined withholding the reality and truth from the Court, therefore, while relying upon the case- law cited by the learned counsel for the appellants, we have concluded that there are mitigating and extenuating circumstance requiring the conversion of death sentence awarded to Jamil appellant into one of imprisonment for life. Conviction and sentence awarded to Mumtaz appellant, is however, maintained sentence of compensation and in default thereof awarded to Jamil appellant is also maintained. However, the benefit of section 382-B, Cr.P.C. Shall be given to him. The Murder Reference is answered in negative. With the above said modification in the sentence, this appeal stands disposed of. Criminal Revision No,287/2002 stands dismissed as not pressed.