' MUHAMMAD FARRUKH MAHMUD, J.---The appellants Nazir Ahmad alias Zaheer, Muhammad Imran and Muhammad Yasin along with Allah Rakha, Abdul Hameed and Bashir alias Poona were tried by the learned Additional Sessions Judge, Faisalabad, in case F.I.R. No,446 registered at P.S. Sadar Faisalabad on 28-5-1999 for offences under sections 302/109/34, P.P.C. Vide judgment dated 29-3- 2002 the learned trial Court, while acquitting Allah Rakha, Abdul Hameed and Bashir alias Poona, convicted and sentenced the appellants as under:-
(i) Nazir Ahmad alias Zaheer for offence under section 302(b), P.P.C. To death plus payment of Rs,50,000 as fine, in default whereof to undergo further R.I. For two years. He was further directed to pay Rs,50,000 as compensation to the legal heirs of the deceased or in default in payment thereof to further suffer R.I. For six months;
(ii) Muhammad Imran and Muhammad Yasin for offences under sec tions 302(b)/34, P.P.C. Each to imprisonment for life plus payment of Rs,50,000 each as fine, in default whereof to undergo further R.I. For two years each. Each of them were also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased or in default thereof to suffer further S.I. For six months each. Both these convicts were granted the benefit of section 382-B, Cr.P.C.
2. Nazir Ahmad alias Zaheer, Muhammad Imran and Muhammad Yasin, convicts/appellants have challenged their convictions and sentences by filing Criminal Appeal No,539 of 2002. Abdul Rasheed, complainant/petitioners, has brought Criminal Revision No,49 of 2007 seeking enhancement of sentence awarded to Muhammad Imran and Muhammad Yasin, convicts. Murder Reference No,271 of 2002 seeking confirmation or otherwise of death sentence imposed upon Nazir Ahmad alias Zaheer, convict/appellant, has also been placed before us. We propose to decide all these matters through this single judgment.
3. The brief facts of the case per complaint Exh.P.A. Recorded by Khalid Mahmood, S.-I./P.W.10, at the instance of Abdul Rasheed, complainant/P.W.6, which based the registration of formal F.I.R., Exh.P.A./1, are that Abdul Rasheed/ complainant, who was employed in the Pakistan Army, had come to his village on leave for five days and .Had gone to Chak No,204/RB to see his sister on the fateful day. The complainant along with his brother in law (Bahnoi) Maqsood Ahmad (deceased) went to the mosque to say Jumma Prayer. After saying the prayer, the deceased came out of the mosque and proceeded to his house, followed by the complainant, Abdul Hameed/P.W.7 and Haji Mahmood proceeding towards their respective houses. The deceased was just a few yards ahead, when within the view of the P.Ws., all of a sudden Zaheer armed with .12 bore gun, Imran and Yasin, both empty handed, who were sitting behind the wall of a house, while raising Lalkara, came across the deceased. All the three accused raised Lalkara that they would teach a lesson to the deceased for litigation and started beating the deceased with fists. Imran caught hold of the deceased from his arms and felled him on the ground. Yasin and Imran overpowered Maqsood Ahmad, while Zaheer Ahmad caused a fire from his .12 bore gun which hit Maqsood Ahmad on his right thigh. When the complainant and his companions came forward to rescue Maqsood Ahmad, Zaheer Ahmad, while aiming his gun towards them, threatened them that whosoever came forward would be done to death. The P.Ws. Stopped there and then due to fear. The accused made good their escape. Maqsood Ahmad succumbed to the injuries at the spot due to excessive bleeding.
' As to the motive, it was alleged that one year prior to the incident, a quarrel took place between Maqsood Ahmad deceased and Abdul Hameed accused over the drain of sewerage water and the complainant party got a criminal case registered against the accused party in that regard. The said case was under trial before the Area Magistrate during the days of occurrence. Abdul Hameed and Allah Rakha, accused, used to extend threats to the complainant party on every date of hearing. Due to that grudge on the conspiracy and abetment of Abdul Hameed, Allah Rakha and Bashir alias Bona, the appellants. Nazir alias Zaheer, Imran and Yasin committed the murder of Maqsood Ahmad.
4. On 28-5-1999 at about 4-00 p.m. When Khalid Mahmood, S.-I./P.W.10, along with other police officials was present in connection with patrol duty and investigation of other cases in Chak No,208/RB, Abdul Rashed/complainant appeared before him and got recorded his statement Exh.P.A. Which was sent to the police station for registration of formal F.I.R. Then the S.- I./Investigating Officer (I.0.) went to the spot; prepared injury statement Exh.P.D. And inquest report Exh.P.E. Of the deceased and sent the dead body of the deceased to Allied Hospital, Faisalabad, for post-mortem examination. He collected blood stained earth from the spot and sealed the same into parcel vide memo. Exh.P.F. He prepared rough site plan Exh.P.H. Of the place of occurrence. He got prepared the scaled site plan Exh.P.E. From Aurangzeb, Draftsman/ P.W:4. On 7-6-1999 Nazir Ahmad alias Zaheer, Muhammad Imran and Muhammad Yasin, accused/appellants, were arrested. On the same date, Nazir Ahmad alias Zaheer led to the recovery of .12 bore gun P.1 which was taken into possession through memo. Exh.P.G. Bashir Ahmad, Allah Rakha and Abdul Hameed, acquitted co-accused, were arrested on 13-6-1999. After completion of investigation, the accused were sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced ten witnesses in all After tendering in evidence the reports of Chemical Examiner Exh.P.K. And Serologist Exh.P.L., the prosecution closed its side.
6. In their statements recorded under section 342, Cr.P.C. The accused pleaded their innocence and false implication. Nazir Ahmad alias Zaheer, accused/appellant, took up a defence plea in the following words:--- ' "P.Ws. Are related inter se and related to the deceased and inimical to us. P. Ws. Deposed falsely against us. The version given by the prosecution is false. In fact on the day of occurrence there was competition of pigeons flying and my pigeons, pigeons of others and of the deceased were taking part in the competition of pigeons flying. I was present in the village pond with gun so that pigeons may not take water from the pond. Maqsood came at the pond and quarreled with me and altercation took place there, during this Maqsood deceased tried to snatch the gun from me and during the struggle gun went off accidentally and hit the deceased. I had no intention to kill the deceased. At the time of occurrence no P.W. Or complainant was present at the spot. My co- accused were also not present at the spot. The story of abetment is also false. Complainant is an Army personnel and due to his influence police had made a false case against us. Under the influence of complainant police did not record our version correctly and investigated the case dishonestly and malafidely. I was minor at the time of occurrence. We are poor and complainant party is an influential. I am innocent."
' The rest of the accused relied upon the statement of Nazir Ahmad alias Zaheer. However, none of the accused appeared as his own witness under section 340(2), Cr.P.C. Nor did produce any witness in defence. However, Nazir Ahmad appellant produced his School Leaving Certificate in his defence as Exh.D.E.
7. Learned counsel for the appellants submits that both the eye-witnesses were related to the deceased and were chance witnesses who could not plausibly explain their presence on the spot; that both the witnesses have tried to implicate as many male members of the family of the appellant as possible; that the ocular version is not supported by the medical evidence, as there was no occasion for the appellant to fire on the thigh while the deceased had been fallen down and over-powered allegedly by Muhammad Imran and Muhammad Yasin; that the motive as set in the F.I.R. Could not be proved by the prosecution; that both the witnesses are not shy of telling lies as is apparent from the fact that they stated that on every date of hearing the accused party used to issue threats to the complainant party. P.W.6, being Subedar in the army, would not be present on all the dates of hearing of the case pending in the Court of a Magistrate; that the defence plea is plausible as borne out from the record and was not afterthought, as the I.O.
Admitted that the first version of appellant Nazir Ahmad was the same as put-forth in the statement under section 342, Cr.P.C.; that there was no evidence against Muhammad Imran and Muhammad Yasin, co-convicts, who were admittedly empty handed at the time of occurrence and both of them deserved acquittal; that as far as Nazir Ahmad is concerned, it was not a case of capital sentence in view of the defence plea taken; that the deceased lost his life due to fire which was caused incidentally.
8. Conversely, the learned counsel for the complainant submits that it is a day light occurrence; that the P.Ws. Have plausibly explained their presence at the time of occurrence; that their relationship with the deceased would not be enough to discard their statements; that the statements of the eye-witnesses were supported by the medical evidence; that the implication of Muhammad Imran and Muhammad Yasin is proved by the medical evidence, as the deceased had injuries on his elbows; that the defence plea was an afterthought and it was not supported either by the circumstances of the case or by any oral evidence; that the I.O. Categorically denied that there was any competition of pigeon flying on the fateful day. Learned Additional Prosecutor General appearing on behalf of the State has supported the judgment passed by the learned trial Court.
9. We have heard the, learned counsel for the parties and have also perused the record of the case with their assistance.
10. Prosecution case rests on the statements of Abdul Rasheed/P.W.6 whose sister was the wife of the deceased and Abdul Hameed/P.W.7, Mamoon of the deceased. The house of Abdul Rasheed was situated at a distance of thirty six Kilo meters from the place of occurrence, while the house of Abdul Hameed was thirty Kilo meters away from the place of occurrence. Both the witnesses were not only related to the deceased but were also chance witnesses. In order to justify their presence, Abdul Rasheed complainant stated that he was on leave of five days and on the fateful day he had gone to the house of his sister and at the time of Jumma Prayers, he along with Maqsood Ahmad went to the village mosque. Abdul Hameed, according to his statement, had gone to offer Jumma Prayers along with Haji Mahmood (not produced at the trial) to the mosque situated in Chak No,204/RB. N6 special occasion for visiting the house of his sister could be mentioned by Abdul Rasheed. Similarly, Abdul Hameed failed to explain as to why he chose a mosque which was at a distance of thirty Kilo-meters and in a different Chak for offering Jumma Prayer on the fateful day.
Both the witnesses are not shy of telling lies, which is apparent from the facts that according to Abdul Hameed, B there were. 40/50 persons who had offered Jumma Prayers along with them but according to him, all the 40/50 persons had left the mosque prior to them and none had come there during the occurrence. He further stated that there was no pond; however, there was a plot in which some water was present nearby. Perusal of scaled site plan Exh.P.E., which is available at page 116 of the paper book, clearly shows the presence of a water pond near the place of occurrence and the pond is of quite a considerable size. It cannot be said that Abdul Hameed was simple enough to know difference between a water pond and a plot where some water was present. Obviously, he made a deliberate attempt to conceal the facts in order to defeat the defence plea that the appellant Nazeer was present near the pond along with the gun in order to stop pigeons from taking water from the pond during the flying competition of the pigeons.
11. Now coming to Abdul Rasheed complainant. When he was questioned about the relationship of Abdul Hameed with the deceased, his first answer was that Abdul Hameed P.W.7 was not Mamoon of the deceased and Abdul Hameed was also not related to him. Then he stated that the daughter of Taya of Maqaood deceased was wife of Abdul Hameed P.W. Then he took a shift and stated that the relationship which he had mentioned earlier was between Maqsood deceased and Abdul Hameed accused and not between deceased and Abdul Hameed P.W. In the same breath he conceded that Hameed P.W. Was Mamoon of Maqsood deceased. He made dishonest improvement before the learned trial Court by stating that he went to mosque of Basti for saying Jumma Prayers. He was confronted with his earlier statement wherein Bastiwala Mosque was not mentioned. He admitted that the mosque of the village and mosque of the Basti were two different mosques which were apart by ten Killas. He had been hiding the facts in order to justify saying of prayers in the mosque situated in Chak No,204/RB. However, he remained unable to state as to why he did not start for his house after saying of prayers. In order to show his presence on the spot, he stated ,that three minutes after the occurrence he went to the house of Maqsood deceased from- where he got motorcycle and after about fifteen minutes of the occurrence, he started for the police station. According to him, during the period of three minutes, which he spent near the dead body, no one from the Namazies or the inhabitants of the locality reached there. He insisted that the deceased died on the spot within his presence and there was no occasion to bandage the wound of the deceased. Undeniably, the injury was on the thigh and in ordinary circumstances, the witnesses in case of their presence would have tried to stop the bleeding.
12. It is note-worthy that the matter was not reported at the police station, rather the complainant, per chance, met Khalid Mahmood, S.-I./P.W.10, at Chak No,208/RB at 4-00 p.m. And his statement was recorded. The statement recorded by Khalid Mahmood, S.-I., is Exh.P.A., which contains the note of the I.O. Under the heading of proceedings wherein it has been mentioned that the complainant made oral statement which was reduced into writing and was read over to the complainant. Khalid Mahmood S.-I. Appeared as P.W.10 before the learned trial Court and reiterated that he had recorded the statement of Abdul Rasheed. On the contrary, Abdul Rasheed stated before the learned trial Court that he had presented a written application before the I.O. He further stated that .He himself had written the application. It has been held by the superior Courts in a number of cases that F.I.Rs, which are not recorded at the police stations are surrounded by inherent doubt that those were recorded at the spot after due deliberations. The time of death has not been mentioned in column No,3 of the inquest report Exh.P.C. And in the relevant column of the post- mortem report Exh..B. Further more, the post-mortem examination was conducted on the next day.
All the above noted facts have led us to conclude that P.W.6 Abdul Rasheed and Abdul Hameed P.W.7 were not present at the time of occurrence.
13. As far as motive is concerned, it only denotes that sortie grievance existed between the parties over the registration of E a case and this could very well be the reason for implication the accused.
14. As regards the medical evidence. It supports the prosecution case to the extent that the deceased lost his life due to fire-arm injury caused on his right thigh but it does not support the prosecution version that prior to causing of fire, Nazeer alias Zaheer, Imran and Yasin gave fist blows to the deceased and that Imran felled Maqsood on the ground; thereafter Yasin and Imran over-powered Maqsood Ahmad and Zaheer caused a fire. The injuries on the right elbow joint, left fore-arm and left elbow joint would not denote that all the accused had given beating to the deceased prior to the occurrence. Both the injuries could easily be caused when the deceased fell on the ground after receipt of fire-arm injury. Prosecution version is also belied by the selection of the seat of injury after overpowering the enemy. The most likely seat of injury would be chest and not thigh.
15. As a consequence of what has been said above, we allow this appeal to the extent of Muhammad Imran and Muhammad Yasin, appellant, who, undeniably, were empty handed at the time G of occurrence. The judgment passed by the learned trial Court is set aside to their extent.
They are acquitted of all the charges. They are on bail. Their bail bonds are cancelled and the sureties are discharged. For the same reasons Criminal Revision No,49 of 2007 seeking enhancement of sentence of Muhammad Imran and Muhammad Yasin is dismissed.
16. Now coming to the defence plea. It has been noticed by us that undeniably, Nazir alias Zaheer appellant who was a teenager was present near the pond along with his gun. There is no evidence to support the plea taken by the appellant that there was any competition of flying pigeons and the appellant was under duty to ward off the pigeons from taking water at the pond. The appellant has not come out with the whole truth and now it has fallen upon us to draw inference from the available evidence. It appears that some altercation took place between the deceased and the appellant and during scuffle the appellant pulled the trigger which caused fatal injury. In these circumstances, we alter the conviction of Nazir Ahmad alias Zaheer appellant to offence under section 302(c), P.P.C. And reduce his sentence to fourteen years' R.I. Benefit of section 382B, Cr.P.C. Is extended to the appellant. The H sentence of fine imposed by the learned trial Court, being illegal, is set aside. The order passed under section 544-A, Cr.P.C. By the learned trial Court is also modified to the extent that in default of realization or payment thereof, the appellant would suffer S.-I. For six months.
17. With the above modification in the conviction and sentence of the appellant, this appeal is partly allowed. The death sentence is not confirmed. The murder reference is answered in the negative.